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Consult the Reader Aids section at the end of this issue for phone numbers, online resources, finding aids, reminders, and notice of recently enacted public laws.
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Federal Crop Insurance Corporation, USDA.
Final rule; correction.
This document contains a correction to the final regulation the Federal Crop Insurance Corporation published in the
February 22, 2002.
Gary Johnson, Insurance Management Specialist, Product Development Division, Federal Crop Insurance Corporation, United States Department of Agriculture, 6501 Beacon Drive, Kansas City, MO, 64133, telephone (816) 926-7730.
On page 3037, in the second column, under section 457.165, Millet crop insurance provisions, introductory text, the year 2002 should read 2003.
Animal and Plant Health Inspection Service, USDA.
Interim rule and request for comments.
We are establishing animal health regulations to provide for the payment of indemnity by the United States Department of Agriculture for the voluntary depopulation of captive cervid herds known to be infected with chronic wasting disease. The payment of indemnity will encourage depopulation of infected herds, and therefore will reduce the risk of other cervids becoming infected with the disease. We have determined that this action, which will accelerate existing chronic wasting disease eradication efforts, is necessary to protect cervids not infected with chronic wasting disease from the disease.
This interim rule was effective February 5, 2002. We invite you to comment on this docket. We will consider all comments we receive that are postmarked, delivered, or e-mailed by April 9, 2002.
You may submit comments by postal mail/commercial delivery or by e-mail. If you use postal mail/commercial delivery, please send four copies (an original and three copies) to: Docket No. 00-108-1, Regulatory Analysis and Development, PPD, APHIS, Station 3C71, 4700 River Road Unit 118, Riverdale, MD 20737-1238. Please state that your comment refers to Docket No. 00-108-1. If you use e-mail, address your comment to
You may read any comments that we receive on this docket in our reading room. The reading room is located in room 1141 of the USDA South Building, 14th Street and Independence Avenue SW., Washington, DC. Normal reading room hours are 8 a.m. to 4:30 p.m., Monday through Friday, except holidays. To be sure someone is there to help you, please call (202) 690-2817 before coming.
APHIS documents published in the
Dr. Lynn Creekmore, Staff Veterinarian, VS, APHIS, 4101 LaPorte Avenue, Fort Collins, CO 80521, (970) 266-6128.
Chronic wasting disease (CWD) is a transmissible spongiform encephalopathy (TSE) of cervids (elk, deer, and other members of the deer family) that to date has only been found in North America. First recognized as a clinical “wasting” syndrome in 1967, it is typified by chronic weight loss leading to death. Species that have been affected with CWD include Rocky Mountain elk, mule deer, white-tailed deer, and black-tailed deer. Other ruminant species, including wild ruminants and domestic cattle, sheep, and goats, have been housed in wildlife facilities in direct or indirect contact with CWD-affected deer and elk, and to date there has been no evidence of transmission of CWD to these other species.
In the United States, CWD has been confirmed in free-ranging deer and elk in a limited number of counties in northeastern Colorado, southeastern Wyoming, and western Nebraska. CWD has also been diagnosed in fewer than 20 captive (farmed) elk herds in South Dakota, Nebraska, Oklahoma, Montana, and Colorado.
Research is being conducted to develop live-animal diagnostic tests for CWD. Currently, definitive diagnosis is based on postmortem examination (necropsy) and testing of postmortem samples. On microscopic examination, lesions of CWD in the central nervous system resemble those of other TSE's. In addition, using a technique called immunohistochemistry, scientists test
The origin and mode of transmission of CWD is unknown. Animals born in captivity and those born in the wild have been affected with the disease. Based on epidemiology, transmission is thought to be lateral, or from animal to animal. Although maternal transmission may also occur, it appears to be relatively unimportant in maintaining epidemics. These facts about CWD transmission, in conjunction with the small number of captive herds currently affected by CWD, suggest that prompt action now may control the CWD problem in captive herds, but lack of such action would allow more movement of CWD-infected animals to new herds, escalating the CWD problem.
Surveillance for CWD in free-ranging deer and elk in Colorado and Wyoming has been ongoing since 1983, and, to date, has confirmed the limits of the endemic areas in those States. CWD in free-ranging deer in Nebraska was detected in 2000/2001; more intensive surveillance to better define the prevalence and distribution of the disease in free-ranging deer in Nebraska is underway. An extensive nationwide surveillance effort was started in 1997-98 to better define the geographic distribution of CWD in free-ranging cervids in the United States. This surveillance effort is a two-pronged approach consisting of hunter-harvest cervid surveys conducted in many States, as well as surveillance throughout the entire country targeting deer and elk exhibiting clinical signs suggestive of CWD. Surveillance for CWD in captive elk began in 1997 and has been a cooperative effort involving State agriculture and wildlife agencies and the Animal and Plant Health Inspection Service (APHIS) of the U.S. Department of Agriculture (the Department). Farmed cervid surveillance has been increasing each year since 1997 and will be an integral part of the Department's program to eliminate CWD from captive cervids.
The presence of CWD in cervids causes significant economic and market losses to U.S. producers. Recently, Canada has begun to require, as a condition for importing U.S. elk into Canada, that the animals be accompanied by a certificate stating that the herd of origin is not located in Colorado or Wyoming, and CWD has never been diagnosed in the herd of origin. South Korea and Japan recently suspended the importation of deer and elk and their products from the United States and Canada. The domestic prices for elk are severely affected by fear of CWD; it is extremely difficult to sell elk that have any history of exposure to CWD.
APHIS's regulations in 9 CFR subchapter B govern cooperative programs to control and eradicate communicable diseases of livestock. In accordance with 21 U.S.C. 111-113, 114a, 115, 117, 120, 123, and 134a, the Secretary of Agriculture has the authority to promulgate regulations and take measures to prevent the introduction into the United States and the interstate dissemination within the United States of communicable diseases of livestock and poultry, and to pay claims growing out of the destruction of animals. Animal health regulations promulgated by the Department under this authority include those specifically addressing control programs and indemnity payments for tuberculosis (part 50), brucellosis (part 51), pseudorabies (part 52), and scrapie (part 54), and regulations in part 53 regarding payment of claims for other diseases.
This interim rule establishes a new part 55, “Control of Chronic Wasting Disease.”
We are establishing the following new definitions for part 55. We also define a number of other terms in part 55 that are not discussed below, because they are already defined in other parts of 9 CFR subchapter B with respect to other APHIS animal disease control programs.
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The requirements of § 55.8 regarding how APHIS will authorize official tests and approve laboratories to conduct them is essentially the same as requirements APHIS has established for this purpose in other animal disease programs, e.g., scrapie (9 CFR part 54) and pseudorabies (9 CFR part 52). They include requirements such as using test protocols provided by the National Veterinary Services Laboratories, and demonstrating that laboratories have the necessary equipment and personnel skills to properly conduct the tests listed in § 55.8(a) and properly record and preserve test results data.
We have determined that all of the factors discussed above—the danger of further spread of CWD, the relatively small number of herds currently infected with CWD, and the opportunity to limit the CWD problem before it escalates—make this an appropriate time to accelerate the CWD eradication effort by swift and thorough elimination of infected herds. Coordinated action at the Federal level will accelerate the efforts toward removal of infected cervids already underway at the State level. Therefore, in this interim rule, we are establishing regulations that will allow the Department to pay indemnity to owners of herds who destroy positive, exposed, or suspect animals. We are also authorizing payments to reimburse State animal health agencies that have paid indemnity to owners prior to the effective date of this rule, in accordance with cooperative agreements between the States and APHIS and the maximum indemnity amounts in this rule, to purchase and destroy positive, exposed, or suspect animals. APHIS has used such cooperative agreements with States to enhance the ability of State programs to contribute to the control of CWD. States will be reimbursed for their costs for indemnity payments to owners, and for associated carcass disposal and cleaning and disinfecting costs, as authorized in a cooperative agreement. These cooperative agreements will be quite restrictive, as our intent is not to reimburse States for all of the CWD indemnity payments they may choose to make in the future. This provision will only provide reimbursement for certain payments States made in support of Federal efforts to control CWD before Federal indemnity funds were available.
Although the regulations being established will allow for the payment of indemnity by the Department, participation in the indemnity program will be entirely voluntarily for producers. Producers who choose not to have an eligible herd depopulated will not be required by APHIS to do so. However, State quarantines on CWD positive herds will probably serve as a strong incentive for participation.
We intend to pay indemnity primarily for whole-herd depopulation of herds of captive cervids that are determined to be CWD positive. Given CWD's long incubation period, the absence of a live animal, pre-clinical test, and our incomplete knowledge of CWD transmission, whole herd depopulation with no restocking on depopulated premises without APHIS approval appears to be the best option to prevent further spread of the disease once a positive diagnosis has been made. However, in the future we may develop alternative approaches to address situations where whole-herd depopulation is impractical or unnecessary. For example, better understanding of modes of transmission of CWD might make it possible to remove selected high risk animals rather than depopulating entire herds.
We will also pay indemnity when APHIS removes individual animals from herds to euthanize them and test for CWD. We do this when animals have been identified as CWD suspect or exposed; e.g., we might remove and test animals from a herd that received animals from another herd that was later determined to be CWD positive.
Cervid producers who choose to take part in the indemnity program may apply for participation as of the effective date of this interim rule. The indemnity program will extend from the effective date of this interim rule until funds allocated for the program are depleted.
The owner of any herd that is determined to be a CWD positive herd will be eligible to apply for payment of indemnity for depopulation.
Subject to the availability of funding, the amount of indemnity payments for eligible animals will be determined by appraisal, with the indemnity payment set at 95 percent of the appraised value, with a cap on payments of $3,000 per animal. CWD positive herds will be appraised by an APHIS official appraiser and a State official appraiser jointly, or, if APHIS and State authorities agree that both appraisers are not needed for a given situation, by either a State official appraiser or an APHIS official appraiser alone. The appraised value of the cervids will be their fair market value as determined by the meat or breeding value of the animals. Animals may be appraised in groups, provided that where appraisal is by the head, each animal in the group is the same value per head, and where appraisal is by the pound, each animal in the group is the same value per pound.
To make this indemnity program equitable for producers in all the States that might participate, we will reduce the Federal indemnity payment for an animal when indemnity payments for the same animal from non-Federal sources exceed 5 percent of its appraised value. The reduction in the Federal payment will equal the amount by which the non-Federal payments exceed 5 percent of the animal's appraised value. We are taking this action to prevent inequities that could reduce participation by owners who believe that the total Federal and non-Federal payments offered to them is unfairly lower than payments offered in other States.
Appraisals of cervids must be reported on forms furnished by APHIS and signed by the appraisers and the owner of the cervids. Reports of appraisals must show the number of cervids and the value per head or the weight and value by pound. We will not pay indemnity unless the owners have signed the appraisal form, indicating their agreement with the appraisals.
As a condition of receiving indemnity, producers must sign a written agreement with APHIS in which they agree that if they maintain cervids in the future on their premises, they will maintain the animals in accordance with a herd plan developed by APHIS, and they will not introduce cervids to the premises until after the date specified in that herd plan. We are currently evaluating research to determine how to effectively clean and disinfect premises, and how long to wait before reintroducing cervids in order to
After cervids are destroyed, their premises must be cleaned and disinfected. All structures on the premises, including barns, stockyards, and pens used to house the cervids, all cars and other conveyances used to transport the cervids, and the materials on those premises or conveyances must be cleaned and disinfected under the supervision of an APHIS employee or a State representative, using methods specified by the APHIS employee or a State representative, before being reused to house or convey cervids. Generally, the owners of the cervids for which indemnity is paid will be responsible for the costs of all cleaning and disinfection, except that APHIS or a State will pay for the cleaning and disinfection of conveyances used to transport the cervids to the disposal location. APHIS may also decide to pay the cost of cleaning and disinfecting premises when the procedures needed to conduct effective cleaning and disinfection are unusually extensive and require methods that are not normally available on a premises. For example, normal procedures would include washing surfaces with high-pressure hoses and disinfectants and burying or burning contaminated materials. Unusually extensive procedures would include, but are not limited to, disposing of contaminated materials by digestive disposal or high-temperature incineration.
Owners who receive indemnity but then fail to comply with the cleaning and disinfection requirements, or the requirement not to reintroduce cervids to the premises for a period defined in the herd plan, will be in violation of the regulations and may be subject to civil or criminal penalties under 18 U.S.C. 1001, 21 U.S.C. 117 and 122, or other statutory authorities. In addition, State governments are prepared to cooperate with APHIS to ensure compliance by using appropriate State quarantine authorities to prevent movement of cervids onto or from premises that have been exposed to CWD and have not been cleaned and disinfected. Such State cooperation will also help address situations where a premises exposed to CWD is sold to a new owner who has not signed a herd plan with APHIS; in such cases, many State animal health statutes allow States to exercise authority over the premises.
Claims for indemnity for the value of animals destroyed must be documented on a form furnished by APHIS and presented to an APHIS employee or a State representative authorized to accept the claims. The owner of the animals must certify on the form that the animals covered either are or are not subject to any mortgage. If the owner states that there is a mortgage, the owner, and each person holding a mortgage on the animals, must sign forms furnished by APHIS consenting to the payment of indemnity to the owner or lienholder.
APHIS will pay the reasonable costs of destruction and carcass disposal for animals that are indemnified. To obtain reimbursement for disposal costs, animal owners must obtain written approval of the disposal costs from APHIS, prior to disposal. Except in cases where APHIS or a State directly arranges for disposal, the owner of the animals must present an APHIS employee with a written contract or estimate of disposal costs. Prior to receiving reimbursement the owner must also present an APHIS employee with a copy of either a receipt for expenses paid by the owner or a bill for services rendered to the owner. Any bill for services rendered presented by the owner must not be greater than the normal fee for similar services provided by a commercial entity. APHIS does not intend to allow owners to personally dispose of carcasses on their premises, so this provision does not allow claims from owners for their own labor.
This interim rule provides that no indemnity will be paid if the eligible animals have been moved or handled by the owner in violation of a law or regulation administered by the Secretary regarding animal disease, or in violation of a law or regulation for which the Secretary has entered into a cooperative agreement.
At the option of APHIS, cervids for which we pay indemnity will be destroyed on their premises, moved to another location for destruction under conditions specified by APHIS, or moved to an approved research facility under conditions specified by APHIS.
The carcasses of any cervids destroyed in accordance with this rule must be incinerated, destroyed in an alkaline hydrolysis tissue digestor, or disposed of by another method authorized by an APHIS employee and in accordance with local, State, and Federal laws. The carcasses may not be sold to be processed for human or animal food, including dietary supplements.
This rulemaking is necessary on an emergency basis to ensure that the CWD indemnity program is implemented as soon as possible to prevent the spread of CWD. Under these circumstances, the Administrator has determined that prior notice and opportunity for public comment are contrary to the public interest and that there is good cause under 5 U.S.C. 553 for making this rule effective less than 30 days after publication in the
We will consider comments we receive during the comment period for this interim rule (see DATES above). After the comment period closes, we will publish another document in the
This rule has been reviewed under Executive Order 12866. The rule has been determined to be significant for the purposes of Executive Order 12866 and, therefore, has been reviewed by the Office of Management and Budget.
Below is a summary of the economic analysis for the chronic wasting disease indemnity program described in this document. The economic analysis provides a cost-benefit analysis as required by Executive Order 12866 and an analysis of the potential economic effects on small entities as required by the Regulatory Flexibility Act. A copy of the full economic analysis is available for review in our reading room (information on the location and hours of the reading room is listed under the heading
We do not have enough data for a comprehensive analysis of the economic effects of this interim rule on small entities. Therefore, in accordance with 5 U.S.C. 603, we have performed an initial regulatory flexibility analysis for this interim rule. We are inviting comments about this interim rule as it relates to small entities. In particular, we are interested in determining the number and kind of small entities who may incur benefits or costs from implementation of this rule and the economic impact of those benefits or costs.
In accordance with 21 U.S.C. 111-113, 114a, 115, 117, 120, 123, and 134a, the Secretary of Agriculture has the authority to promulgate regulations and take measures to prevent the introduction into the United States and the interstate dissemination within the United States of communicable diseases of livestock and poultry, and to pay claims growing out of the destruction of animals. Animal health regulations promulgated by the Department under
CWD is recognized to cause considerable and growing economic losses. The Secretary of Agriculture has authorized the transfer of $2.65 million in funds from the Commodity Credit Corporation to begin conducting a CWD indemnity program. Most of this money will be used for indemnity costs, and the remainder will be used for euthanasia, transport, disposal, cleanup, and surveillance. Payment of indemnity will be based on fair market value, and the amount paid per cervid will likely fluctuate during the course of the CWD indemnity program. Participation may be limited if funds are exhausted due to increases in the fair market value above our current estimates. Since this is a voluntary indemnity program, some eligible producers may not choose to participate.
This interim rule provides Federal indemnification of up to $3,000 per animal for the depopulation of CWD positive, CWD exposed, or CWD suspect captive cervids. Previously, there was no such indemnification program.
The number of deer and elk in the United States that have died as a result of contracting CWD is unknown, largely because there is no way to track deaths among the free-ranging segment of the cervid population. However, sampling in a limited area where CWD is known to exist in wildlife—i.e., northern Colorado, southern Wyoming, and southwestern Nebraska—has suggested an infection rate of 15 percent among wild mule deer and 2 percent among wild elk. For captive cervids, the number of deaths to date has been relatively low. Based on nonmandatory stock sale and disease report records kept by industry associations, it is estimated that fewer than 50 farmed elk, and no farmed deer, have died as a result of contracting CWD.
Limited hard statistical data exist on the deer and elk farming industries, mostly compiled by the two major industry associations—the North American Elk Breeders Association (NAEBA) and the North American Deer Farmers Association (NADeFA). Deer and elk farms are not included as a separate line item in the most recent agricultural census data.
NAEBA estimates that there are about 110,000 elk on 2,300 U.S. farms. The number of elk per farm varies, from a high of about 700 (for commercial farms) to a low of about 10 (for hobby farms). The value of each elk held also varies, depending on the type of animal (
NADeFA estimates that there are between 100,000 and 150,000 deer on approximately 2,000 U.S. farms. The number of deer per farm varies, from a high of about 3,000 (for commercial farms) to a low of about 5 (for hobby farms). The value of each deer also varies, depending on such factors as the type of animal (
This action will provide herd owners with a financial incentive to identify and destroy their CWD positive, exposed, and suspect animals, thus arresting the spread of the disease and accelerating eradication efforts. Those producers not engaging in surveillance of their herds would have incentive to do so. Several benefits flow from this action. First, it will reduce costs to the elk and deer industries from animal mortality, reductions in per animal breeding, meat, and recreation values from being associated with an infected herd, costs from possible State regulatory actions, and trade restrictions on U.S. elk, deer, and related product exports. Second, this action will also help reduce the possibility of cross-species transmission. Third, an accelerated program now, while the number of known infected herds is small, may obviate the need for higher future Federal costs to contain a more widespread outbreak.
While the number of captive cervids that have died from or are infected with CWD is currently small, it is possible that the number could quickly expand. Based on the rate of increase in the number of infected herds in recent years, APHIS estimates that without improved CWD control efforts, the disease could infect almost the entire U.S. captive elk herd over the next 15-20 years. This estimate is based on an unpublished study by the APHIS Centers for Epidemiology and Animal Health that employed informal growth rate models based on the limited available data. Data is limited because the spread of CWD has been closely studied for only a few years, but the 15-20 year estimate takes into account CWD spread patterns in both the United Sates and Canada. The elk industry is in its early stages, which requires owners to purchase and sell large numbers of animals for breeding stock as they develop superior lines. Such large movements of animals between herds exacerbates risks of disease spread. One herd in Colorado sold approximately 400 animals to many other herds in one year. In Canada, after CWD was discovered in 1996, movements of animals from one herd resulted in the infection of 38 other herds, which resulted in the Canadian government buying and destroying 7,400 animals. While it is risky to extrapolate from limited data covering only a few years, the few herds studied in detail do suggest that CWD is easily spread through unrestricted commerce in elk, and could become established in most U.S. herds within 15 years. Hence, we feel that almost the entire U.S. elk herd, currently valued at an estimated $220 million, is at risk. The value of animals from herds known to be infected are sharply discounted compared to animals from CWD-free herds. Action now could protect substantial industry assets. CWD has not been diagnosed in captive deer except in association with positive captive elk, so comparable projections of savings are not available for the captive deer industry.
Other benefits would be expected from this action. Eradication of CWD may save owners of infected herds
This action would also reduce the impact, felt by owners of infected and non-infected animals, of trade restrictions due to CWD. South Korea and Japan temporarily suspended all imports of deer and deer products (including antler velvet) from the United States and Canada. Cervid exports to Canada also must meet CWD-specific Canadian import requirements.
This rule will also produce third-party trade benefits by demonstrating to trading partners the intent and ability of the United States to protect its animal industries, thus easing ability to negotiate access to foreign markets.
A further benefit of the rule is to reduce the potential for any transmission of CWD across species. While current evidence does not indicate much risk of such transmission, much remains unknown about the CWD disease agent.
If producers participate in this program, this action would also help reduce potential future eradication program costs. As cited earlier, Government costs to operate the scrapie eradication program may have been reduced with more aggressive action upon initial diagnoses. Similarly, the Canadian Government estimates that delayed action has increased its eradication program costs.
Under this interim rule, subject to available funding, cervid herd owners would be eligible for Federal indemnity payments equal to 95 percent of the appraised value of each animal, up to a cap of $3,000 per animal, when they destroy their eligible CWD positive, CWD exposed, or CWD suspect animals. Currently, there are an estimated 1,500 CWD positive or CWD exposed captive elk in the United States, spread among 7 herds (including 1 herd with approximately 700 affected elk). Assuming an average indemnity payment of $1,900 per animal (i.e., 95 percent of the $2,000 average value of each captive elk), APHIS' indemnity liability, based on the number of elk now known to be infected or exposed, would be $2.85 million (1,500 x $1,900). We may also request additional funding, if needed, to complete the indemnity program in the future.
Due to limited funding for surveillance and other initiatives, the full extent of infection in captive cervids is unknown. It is likely that there are some infected herds that have not been detected, and that additional funds would have to be expended to indemnify owners for the destruction of these animals. It is also possible that imperfections in our current state of knowledge about CWD e.g., how to effectively clean and disinfect premises, or exactly how long an infected premises should lie fallow before restocking with elk—may result in elk on restocked premises becoming infected with CWD, causing additional indemnity to be paid.
In assessing the need for this interim rule, we identified three alternatives. The first was to maintain the status quo, where State efforts are supported by Federal technical assistance but not by Federal compensation programs or interstate movement restrictions. We rejected this option because it does not fully address the animal disease risks associated with CWD. While States generally have authority to quarantine a herd once it is known to be infected with CWD, they may lack the legal authorities, infrastructure, and resources for comprehensive testing and traceback programs to identify newly infected herds. States also lack authority to directly regulate interstate commerce in elk. Finally, while State quarantines are an important tool, quarantining a herd does not eliminate the risk posed by the herd, since people may deliberately or accidentally violate the quarantine. Making Federal indemnity funds available serves as a powerful incentive for owners of quarantined herds to depopulate, eliminating the risk of further spread of CWD from the herd.
The second option would have been to provide financial and technical assistance to the cervid industry for continuation and expansion of a variety of herd management practices to reduce or eliminate CWD. Although this option may be less costly than the option we chose, option 3 below, we did not select it because it does not allow us to advance CWD eradication as quickly or effectively as the chosen option. However, APHIS will continue to work with industry to develop voluntary herd management practices to preserve and increase the reduction in CWD levels that the indemnity program is expected to achieve.
The third option, to provide indemnity payments to depopulate CWD-infected herds, was the one we chose. Given our current understanding of the disease, depopulation of infected herds is currently the most effective way to eliminate CWD. Under this alternative, producers will gain partial compensation for animals in CWD positive herds. These animals are often unable to be sold at prices anywhere near the price brought by similar animals from herds that are not CWD positive.
This interim rule establishes a voluntary program that allows cervid producers to be paid indemnity for CWD positive, CWD exposed, or CWD suspect animals. Many producers, as well as a number of slaughter plants that process cervids, may be small businesses.
To the extent that the interim rule contributes to the elimination of CWD in captive cervid herds in the United States, all herd owners should benefit over the long term. In the short term, the economic impact on herd owners will vary. In most cases, the payment of indemnity will allow owners to recoup much of the value of destroyed animals. In cases where the animals destroyed are highly valuable breeding stock, the authorized indemnity payments will fall far short of the potential value of such animals if they were CWD free; however, in the real market, a breeding elk from highly regarded stock loses almost all of its value if it is suspected of being infected with CWD. Another variable arises in view of the fact that, while indemnity payments may cover the full market value of an animal, an owner may face additional costs associated with cleaning and disinfecting premises, delays in restocking, and complying with herd plan conditions for a restocked herd (identification and health monitoring requirements, etc.). The cost of cleaning and disinfection will vary with the size and characteristics of the premises. The costs caused by delayed restocking and herd plan conditions would also vary depending on the nature of the owner's business operations.
The number and size of the affected herd owners is unknown. However, it is reasonable to assume that most are small in size, under the U.S. Small Business Administration's (SBA) standards. This assumption is based on composite data for providers of the same and similar services in the United States. In 1997, there were 10,045 U.S. farms in NAICS 11299, a classification comprised solely of establishments primarily engaged in raising certain animals (including cervids but excluding cattle, hogs and pigs, poultry, sheep and goats, animal aquaculture, apiculture, horses and other equines, and fur-bearing animals). For all 10,045 farms, the per-farm average gross receipts in 1997 were $105,624, well below the SBA's small entity threshold
This interim rule contains various recordkeeping and reporting requirements. These requirements are described in this document under the heading “Paperwork Reduction Act.”
This rule has been reviewed under Executive Order 12988, Civil Justice Reform. This rule: (1) Preempts all State and local laws and regulations that are in conflict with this rule; (2) has no retroactive effect; and (3) does not require administrative proceedings before parties may file suit in court challenging this rule.
In accordance with section 3507(j) of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
We plan to request continuation of that approval for 3 years. Please send written comments on the 3-year approval request to the following addresses: (1) Office of Information and Regulatory Affairs, OMB, Attention: Desk Officer for APHIS, Washington, DC 20503; and (2) Docket No. 00-108-1, Regulatory Analysis and Development, PPD, APHIS, suite 3C03, 4700 River Road Unit 118, Riverdale, MD 20737-1238. Please state that your comments refer to Docket No. 00-108-1 and send your comments within 60 days of publication of this rule.
This interim rule establishes regulations to provide for the payment of indemnity by the Department for the voluntary depopulation of CWD positive, exposed, or suspect animals. In order to take part in the indemnity program, cervid producers must apply for participation, must sign a payment, appraisal, and agreement form, and must certify as to whether any other parties hold mortgages on the herd. Implementing this program will entail the use of two information collection activities: an Appraisal/ Indemnity Claim Form, and a Herd Plan Agreement. We are soliciting comments from the public (as well as affected agencies) concerning our information collection and recordkeeping requirements. These comments will help us:
(1) Evaluate whether the information collection is necessary for the proper performance of our agency's functions, including whether the information will have practical utility;
(2) Evaluate the accuracy of our estimate of the burden of the information collection, including the validity of the methodology and assumptions used;
(3) Enhance the quality, utility, and clarity of the information to be collected; and
(4) Minimize the burden of the information collection on those who are to respond (such as through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, e.g., permitting electronic submission of responses).
Copies of this information collection can be obtained from Mrs. Celeste Sickles, APHIS' Information Collection Coordinator, at (301) 734-7477.
Animal diseases, Cervids, Chronic wasting disease, Deer, Elk, Indemnity payments, Transportation.
Accordingly, we are amending 9 CFR, chapter I, subchapter B, by adding a new part 55 to read as follows:
21 U.S.C. 111-113, 114, 114a, 114a-1, 120, 121, 125, and 134b; 7 CFR 2.22, 2.80, and 371.4.
(1) Under common ownership or supervision and are grouped on one or more parts of any single premises (lot, farm, or ranch) or
(2) All animals under common ownership or supervision on two or more premises which are geographically separated but on which animals have been interchanged or had direct or indirect contact with one another.
The Administrator is authorized to pay for the purchase and destruction of CWD positive animals, CWD exposed animals, and CWD suspect animals. Subject to available funding, the amount of the Federal payment for any such animals will be 95 percent of the appraised value established in accordance with § 55.3 of this part, but the Federal payment shall not exceed $3,000 per animal. If a non-Federal source makes a payment for an animal for which a Federal indemnity is paid, and the non-Federal payment exceeds 5 percent of the appraised value established in accordance with § 55.3 of this part, the amount of the Federal payment for any such animals will be reduced by the amount by which the non-Federal payment exceeds 5 percent of the appraised value. The Administrator is also authorized to reimburse State governments or State animal health agencies for payments they make for the purchase and destruction, on or after October 1, 2001, of CWD positive animals, CWD exposed animals, and CWD suspect animals, and for State expenditures for associated carcass disposal and cleaning and disinfection costs resulting from such purchase and destruction, in accordance with cooperative agreements signed by the Administrator and the duly authorized agent of the State.
(a) CWD positive herds, or individual CWD suspect animals or exposed animals removed by APHIS from a herd for testing, will be appraised by an APHIS official appraiser and a State official appraiser jointly, or, if APHIS and State authorities agree, by either a State official appraiser or an APHIS official appraiser alone.
(b) The appraisal of cervids will be the fair market value as determined by the meat or breeding value of the animals. Animals may be appraised in groups, provided that where appraisal is by the head, each animal in the group is the same value per head, and where appraisal is by the pound, each animal in the group is the same value per pound.
(c) Appraisals of cervids must be reported on forms furnished by APHIS and signed by the appraisers, and signed by the owner of the cervids to indicate agreement with the appraisal amount. Reports of appraisals must show the number of cervids and the value per head or the weight and value by pound.
(d) In accordance with instructions from an APHIS employee, cervids for which indemnification is sought must be:
(1) Destroyed on the premises where they are held, pastured, or penned at the time indemnity is approved;
(2) Moved to another location for destruction under conditions specified by the APHIS employee; or
(3) Moved to an approved research facility under conditions specified by the APHIS employee.
(e) The carcasses of any cervids destroyed in accordance with this part are authorized by the Administrator to be incinerated, destroyed in an alkaline hydrolysis tissue digestor, or disposed of by any other method authorized by an APHIS employee and in accordance with local, State, and Federal laws. APHIS will pay the reasonable costs of destruction and carcass disposal for animals that are indemnified. To obtain reimbursement for disposal costs, animal owners must obtain written approval of the disposal costs from APHIS, prior to disposal. Except in cases where APHIS or a State directly arranges for disposal, the owner of the animals must present an APHIS employee with a written contract or estimate of disposal costs. Prior to
After cervids are destroyed in accordance with this part, all premises, including barns, stockyards and pens, all cars and other conveyances, and all other materials on any premises or conveyances used to house or transport such cervids must be cleaned and disinfected under the supervision of an APHIS employee or a State representative, using methods specified by the APHIS employee or a State representative. Premises may not be restocked with cervids until after the date specified in the herd plan required by § 55.7(b) of this part. The owner to whom the indemnity is paid will be responsible for expenses incurred in connection with the cleaning and disinfection, except that APHIS or a State will pay for cleaning and disinfection of the conveyances used to transport the cervids to the location of disposal. However, APHIS may also decide to pay the cost of cleaning and disinfecting premises when the procedures needed to conduct effective cleaning and disinfection are unusually extensive and require methods that are not normally available on a premises. For example, normal procedures would include washing surfaces with high-pressure hoses and disinfectants and burying or burning contaminated materials. Unusually extensive procedures would include disposing of contaminated materials by digestive disposal or high-temperature incineration.
Claims for indemnity for the value of animals destroyed must be documented on a form furnished by APHIS and presented to an APHIS employee or a State representative authorized to accept the claims.
When cervids have been destroyed under this part, any claim for indemnity must be presented on forms furnished by APHIS. The owner of the cervids must certify on the forms that the cervids covered are, or are not, subject to any mortgage as defined in this part. If the owner states there is a mortgage, the owner and each person holding a mortgage on the cervids must sign, consenting to the payment of indemnity to the person specified on the form.
(a) The Department will not allow claims arising out of the destruction of cervids unless the cervids have been appraised as prescribed in this part and the owners have signed the appraisal form indicating agreement with the appraisal amount as required by § 55.3(c) of this part.
(b) The Department will not allow claims arising out of the destruction of cervids unless the owners have signed a written agreement with APHIS in which they agree that if they maintain cervids in the future on the premises used for cervids for which indemnity is paid, they will maintain the cervids in accordance with a herd plan and will not introduce cervids onto the premises until after the date specified in that herd plan. Persons who violate this written agreement may be subject to civil and criminal penalties.
(c) The Department will not allow claims arising out of the destruction of cervids that have been moved or handled by the owner or a representative of the owner in violation of a law or regulation administered by the Secretary regarding animal disease, or in violation of a law or regulation for which the Secretary has entered into a cooperative agreement.
(a) An official CWD test is:
(1) Histopathological examination of central nervous system (CNS) tissues from the animal for characteristic microscopic lesions of CWD, using test protocols provided by the National Veterinary Services Laboratories (NVSL);
(2) The use of proteinase-resistant protein analysis methods including but not limited to immunohistochemistry and/or western blotting on CNS and/or peripheral tissue samples from a live or a dead animal, using test protocols provided by NVSL; or
(3) Any other test method approved by the Administrator in accordance with this section.
(b) The Administrator may approve new tests for the diagnosis of CWD conducted on live or dead animals, and will base the approval or disapproval of a test on the evaluation by APHIS and, when appropriate, outside scientists, of:
(1) A standardized test protocol that must include a description of the test, a description of the reagents, materials, and equipment used for the test, the test methodology, and any control or quality assurance procedures;
(2) Data to support reproducibility, that is, the ability to reproduce the same result repeatedly on a given sample;
(3) Data to support suitability, that is, data to show that similar results can be produced when the test is run at other laboratories;
(4) Data to support the sensitivity and specificity of the test; and
(5) Any other data requested by the Administrator to determine the suitability of the test for program use.
(c) Specific protocols for official CWD tests are available upon request to NVSL.
(d) State, Federal, and university laboratories will be approved by the Administrator to conduct official CWD tests when he or she determines that the laboratory:
(1) Employs personnel assigned to supervise the testing who are qualified to conduct the test based on education, training, and experience and who have been trained by NVSL or who have completed equivalent training approved by NVSL;
(2) Has adequate facilities and equipment to conduct the test;
(3) Follows standard test protocols;
(4) Meets check test proficiency requirements;
(5) Meets recordkeeping requirements;
(6) Will retain records, slides, blocks, and other specimens from all cases for at least 1 year and from positive cases for 5 years;
(7) Will allow APHIS to inspect
(8) Will report all test results to State and Federal animal health officials within agreed timeframes.
(e) The Administrator may withdraw approval of any laboratory for failure to meet any of the conditions required by paragraph (d) of this section. The Administrator shall give written notice of the proposed withdrawal to the director of the laboratory and shall give the director an opportunity to respond. If there are conflicts as to any material fact concerning the reason for withdrawal, a hearing will be held to resolve the conflicts. The hearing will be conducted in accordance with rules of practice that will be adopted by the Administrator for the proceeding.
Nuclear Regulatory Commission.
Direct final rule; confirmation of effective date.
The Nuclear Regulatory Commission (NRC) is confirming the effective date of February 12, 2002, for the direct final rule that appeared in the
The effective date of February 12, 2002, is confirmed for this direct final rule.
Documents related to this rulemaking, including comments received, may be examined at the NRC Public Document Room, 11555 Rockville Pike, Rockville, MD. These same documents may also be viewed and downloaded electronically via the rulemaking web site(
Merri Horn, Office of Nuclear Material Safety and Safeguards, U.S. Nuclear Regulatory Commission, Washington, DC 20555. Telephone (301) 415-8126 (E-mail:
On November 29, 2001 (66 FR 59531), the NRC published in the
Federal Aviation Administration (FAA), DOT.
Final special conditions; request for comments.
These special conditions are issued for Boeing Model 747-100, -100B, -200B, -200C, -200F, -300, SR, and SP series airplanes modified by Electronic Cable Specialists. These airplanes will have novel and unusual design features when compared to the state of technology envisioned in the airworthiness standards for transport category airplanes. The modification incorporates the installation of triple Honeywell Classic Navigator Systems. The applicable airworthiness regulations do not contain adequate or appropriate safety standards for the protection of these systems from the effects of high-intensity radiated fields (HIRF). These special conditions contain the additional safety standards that the Administrator considers necessary to establish a level of safety equivalent to that provided by the existing airworthiness standards.
The effective date of these special conditions is January 25, 2002. Comments must be received on or before March 11, 2002.
Comments on these special conditions may be mailed in duplicate to: Federal Aviation Administration, Transport Airplane Directorate, Attn: Rules Docket (ANM-113), Docket No. NM210, 1601 Lind Avenue SW., Renton, Washington, 98055-4056; or delivered in duplicate to the Transport Airplane Directorate at the above address. All comments must be marked: Docket No. NM210. Comments may be inspected in the Rules Docket weekdays, except Federal holidays, between 7:30 a.m. and 4 p.m.
Meghan Gordon, FAA, Standardization Branch, ANM-113, Transport Airplane Directorate, Aircraft Certification Service, 1601 Lind Avenue SW., Renton, Washington, 98055-4056; telephone (425) 227-2138; facsimile (425) 227-1149.
The FAA invites interested persons to participate in this rulemaking by submitting written comments, data, or views. The most helpful comments reference a specific portion of the proposal, explain the reason for any recommended change, and include supporting data. We ask that you send us two copies of written comments.
We will file in the docket all comments we receive, as well as a report summarizing each substantive public contact with FAA personnel concerning these proposed special conditions. The docket is available for public inspection before and after the comment closing date. If you wish to review the docket in person, go to the address in the
We will consider all comments we receive on or before the closing date for comments. We will consider comments filed late if it is possible to do so without incurring expense or delay. We may change this proposal for special conditions in light of the comments we receive.
If you want the FAA to acknowledge receipt of your comments on this proposal, include with your comments a pre-addressed, stamped postcard on which the docket number appears. We will stamp the date on the postcard and mail it to you.
On September 18, 2001, Electronic Cable Specialists, 5300 West Franklin Drive, Franklin, WI 53132, applied for a supplemental type certificate (STC) to modify Boeing Model 747-100, -100B, -200B, -200C, -200F, -300, SR, and SP series airplanes approved under Type Certificate No. A20WE. The 747 series airplanes are 231 feet, 10.2 inches long and have a wing span of 195 feet, 8 inches. The height at vertical stabilizer to ground is 63 feet, 5 inches. The passenger load is 366 to 496 passengers, and the range is from 6,100 to 7,700 statute miles. The modification incorporates the installation of triple Honeywell Classic Navigator Systems. Each system consists of a Honeywell HT9100 Navigation Management System, an Inertial Reference Unit, and a Digital to Analog Adapter. These advanced systems use electronics to a far greater extent than the original Inertial Navigation Systems and may be more susceptible to electrical and magnetic interference caused by high-intensity radiated fields (HIRF). This disruption of signals could result in loss of attitude or present misleading information to the pilot.
Under the provisions of 14 CFR 21.101, Electronic Cable Specialists must show that the Boeing Model 747-100, -100B, -200B, -200C, -200F, -300, SR, and SP series airplanes, as changed, continue to meet the applicable provisions of the regulations incorporated by reference in Type Certificate No. A20WE, or the applicable regulations in effect on the date of application for the change. The regulations incorporated by reference in the type certificate are commonly referred to as the “original type certification basis.” The certification basis for the modified Boeing Model 747-100, -100B, -200B, -200C, -200F, -300, SR, and SP series airplanes includes 14 CFR part 25, dated February 1, 1965, as amended by amendments 25-1 through 25-77, except for special conditions and exceptions noted in Type Certificate Data Sheet (TCDS) A20WE.
If the Administrator finds that the applicable airworthiness regulations (that is, 14 CFR part 25, as amended) do not contain adequate or appropriate safety standards for the Boeing Model 747-100, -100B, -200B, -200C, -200F, -300, SR, and SP series airplanes because of novel or unusual design features, special conditions are prescribed under the provisions of 14 CFR 21.16.
In addition to the applicable airworthiness regulations and special conditions, the Boeing Model 747-100, -100B, -200B, -200C, -200F, -300, SR, and SP series airplanes must comply with the fuel vent and exhaust emission requirement of 14 CFR part 34 and the noise certification requirement of part 36.
Special conditions, as defined in 14 CFR 11.19, are issued in accordance with § 11.38, and become part of the type certification basis in accordance with 14 CFR 21.101(b)(2).
Special conditions are initially applicable to the model for which they are issued. Should Electronic Cable Specialists apply at a later date for a supplemental type certificate to modify any other model already included on the same type certificate to incorporate the same novel or unusual design features, these special conditions would also apply to the other model under the provisions of 14 CFR 21.101(a)(1).
The Boeing Model 747-100, -100B, -200B, -200C, -200F, -300, SR, and SP series airplanes will incorporate triple Honeywell Classic Navigator Systems, which perform critical functions. Each system consists of a Honeywell HT9100 Navigation Management System, an Inertial Reference Unit, and a Digital to Analog Adapter. Because these advanced systems use electronics to a far greater extent than the original Inertial Navigation Systems, they may be more susceptible to electrical and magnetic interference caused by high-intensity radiated fields (HIRF) external to the airplane. The current airworthiness standards (14 CFR part 25) do not contain adequate or appropriate safety standards that address protecting this equipment from the adverse effects of HIRF. Accordingly, these instruments are considered to be a novel or unusual design feature.
There is no specific regulation that addresses protection requirements for electrical and electronic systems from HIRF. Increased power levels from ground-based radio transmitters and the growing use of sensitive avionics/electronics and electrical systems to command and control airplanes have made it necessary to provide adequate protection.
To ensure that a level of safety is achieved equivalent to that intended by the regulations incorporated by reference, special conditions are needed for the Boeing Model 747-100, -100B, -200B, -200C, -200F, -300, SR, and SP series airplanes modified to include the new navigation system. These special conditions will require that the new Honeywell Classic Navigator Systems, which perform critical functions, be designed and installed to preclude component damage and interruption of function due to both the direct and indirect effects of HIRF.
With the trend toward increased power levels from ground-based transmitters, plus the advent of space and satellite communications, coupled with electronic command and control of the airplane, the immunity of critical digital avionic/electronics and electrical systems to HIRF must be established.
It is not possible to precisely define the HIRF to which the airplane will be exposed in service. There is also uncertainty concerning the effectiveness of airframe shielding for HIRF. Furthermore, coupling of electromagnetic energy to cockpit-installed equipment through the cockpit window apertures is undefined. Based on surveys and analysis of existing HIRF emitters, an adequate level of protection
1. A minimum threat of 100 volts rms (root-mean-square) per meter electric field strength from 10 KHz to 18 GHz.
a. The threat must be applied to the system elements and their associated wiring harnesses without the benefit of airframe shielding.
b. Demonstration of this level of protection is established through system tests and analysis.
2. A threat external to the airframe of the field strengths indicated in Table 1 for the frequency ranges indicated. Both peak and average field strength components from Table 1 are to be demonstrated.
The threat levels identified above are the result of an FAA review of existing studies on the subject of HIRF, in light of the ongoing work of the Electromagnetic Effects Harmonization Working Group of the Aviation Rulemaking Advisory Committee.
As discussed above, these special conditions are applicable to Boeing Model 747-100, -100B, -200B, -200C, -200F, -300, SR, and SP series airplanes modified by Electronic Cable Specialists to include the Honeywell Classic Navigator Systems. Should Electronic Cable Specialists apply at a later date for a supplemental type certificate to modify any other model already included on Type Certificate A20WE to incorporate the same novel or unusual design features, these special conditions would apply to that model as well under the provisions of 14 CFR 21.101(a)(1).
This action affects only certain design features on Boeing Model 747-100, -100B, -200B, -200C, -200F, -300, SR, and SP series airplanes modified by Electronic Cable Specialists. It is not a rule of general applicability and affects only the applicant who applied to the FAA for approval of these features on the airplane.
The substance of the special conditions for this airplane has been subjected to the notice and comment procedure in several prior instances and has been derived without substantive change from those previously issued. Because a delay would significantly affect the certification of the airplane, which is imminent, the FAA has determined that prior public notice and comment are unnecessary and impracticable, and good cause exists for adopting these special conditions upon issuance. The FAA is requesting comments to allow interested persons to submit views that may not have been submitted in response to the prior opportunities for comment described above.
Aircraft, Aviation safety, Reporting and recordkeeping requirements.
The authority citation for these special conditions is as follows:
49 U.S.C. 106(g), 40113, 44701, 44702, 44704.
Accordingly, pursuant to the authority delegated to me by the Administrator, the following special conditions are issued as part of the supplemental type certification basis for Boeing Model 747-100, -100B, -200B, -200C, -200F, -300, SR, and SP series airplanes modified by Electronic Cable Specialists.
1. Protection from Unwanted Effects of High-Intensity Radiated Fields (HIRF). Each electrical and electronic system that performs critical functions must be designed and installed to ensure that the operation and operational capability of these systems to perform critical functions are not adversely affected when the airplane is exposed to high-intensity radiated fields.
2. For the purpose of these special conditions, the following definition applies:
Critical Functions. Functions whose failure would contribute to or cause a failure condition that would prevent the continued safe flight and landing of the airplane.
Federal Aviation Administration, DOT.
Final rule.
This amendment adopts a new airworthiness directive (AD), that is applicable to GE CF6-45 and CF6-50 series turbofan engines. This AD requires a reduction of the cyclic life limit for certain low pressure turbine rotor (LPTR) stage 2 disks, and requires removing certain LPTR stage 2 disks from service before exceeding the new, lower cyclic life limit. In addition, this amendment requires removing from service certain LPTR stage 2 disks that currently exceed, or will exceed, the new, lower cyclic life limit according to the compliance schedule described in this action. This amendment is prompted by a report of a cracked LPTR stage 2 disk found initially by flourescent penetrant inspection and later confirmed by a visual inspection. The actions specified by this AD are intended to prevent an uncontained engine failure and damage to the airplane, resulting from cracks in the LPTR stage 2 disk.
Effective date: March 15, 2002.
Ann Mollica, Aerospace Engineer, Engine Certification Office, FAA, Engine and Propeller Directorate, 12 New England Executive Park, Burlington, MA 01803-5299; telephone (781) 238-7740; fax (781) 238-7199.
A proposal to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) to include an AD that is applicable to GE CF6-45 and CF6-50 series 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 commenter states that he has no technical objections to the proposal.
GEAE states that the number of disks noted in the NPRM that will be effected by the proposal is incorrect. According to GEAE records, currently there are a total of 747 disks installed world-wide that would be affected by this AD, of which 201 disks are installed on airplanes of U.S. registry. The FAA agrees. The economic analysis provided in the proposed rule reflects the FAA's best estimates of fielded engines at that time. This estimate was based on historic data. The FAA, however, recognizes that the manufacturer's records are more up-to-date and accurate based on the active service reporting program they have established with the operators of their engines. Therefore, the economic analysis has been adjusted to reflect the decrease in impacted disks.
GEAE further states that the cracked LPTR stage 2 disk was initially discovered by fluorescent penetrant inpsection rather than visually, and was later confirmed by visual inspection. The FAA agrees.
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 747 GE CF6-45 and CF6-50 series turbofan engines of the affected design in the worldwide fleet. The FAA estimates that 201 engines installed on airplanes of U.S. registry would be affected by this AD. The rule does not impose any additional labor costs. A new disk would cost approximately $72,870 per engine. Based on these figures, and on the prorating for the usage of the disks, the cost effect of the proposed AD on U.S. operators is estimated to be $3,133,775.
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, Safety.
49 U.S.C. 106(g), 40113, 44701.
This airworthiness directive (AD) is applicable to General Electric Company (GE) CF6-45 and CF6-50 series turbofan engines. These engines are installed on, but not limited to Airbus Industrie A300 series, Boeing 747 series, and McDonnell Douglas DC-10 series airplanes.
This AD applies to each engine identified in the preceding applicability provision, regardless of whether it has been modified, altered, or repaired in the area subject to the requirements of this AD. For engines that have been modified, altered, or repaired so that the performance of the requirements of this AD is affected, the
Compliance with this AD is required as indicated, unless already done.
To prevent an uncontained engine failure and damage to the airplane, resulting from cracks in the low pressure turbine rotor (LPTR) stage 2 disk, do the following:
(a) Remove from service LPTR stage 2 disks, part numbers (P/N's) 9061M22P08 and 9061M22P10 in accordance with Table 1 as follows:
(b) After the effective date of this AD, do not install any LPTR stage 2 disk, P/N 9061M22P08 or 9061M22P10, that has 10,400 or more CSN into an engine.
(c) Except for as provided in paragraph (a) of this AD, this action establishes a new, cyclic life limit of 10,400 CSN for LPTR stage 2 disk, P/N 9061M22P08 and 9061M22P10, which is published in Chapter 05-10-00 of CF6-45 and CF6-50 Engine Shop Manual, GEK 50481.
(d) For the purpose of this AD, LPTR stage 2 disk exposure is defined as disassembly and removal of the LPTR stage 2 disk from the LPTR structure, regardless of whether any blades, bolts, nuts, bolt retainers, blade retainers, blade inserts, balance weights, wear strips, or seals remain assembled to the disk.
(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, Engine Certification Office (ECO). Operators must submit their request 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.
(f) Special flight permits may be issued in accordance §§ 21.197 and 21.199 of the Federal Aviation Regulations (14 CFR 21.197 and 21.199) to operate the airplane to a location where the requirements of this AD can be done.
(g) This amendment becomes effective on March 15, 2002.
Commodity Futures Trading Commission.
Final rule.
The Commodity Futures Trading Commission is revising certain provisions of its regulations on the ethical conduct of employees relating to business and financial transactions and interests. This action relates solely to the Commission's organization, procedure, and practice.
February 8, 2002.
Susan Nathan, Assistant General Counsel, Commodity Futures Trading Commission, Three Lafayette Centre, 1155 21st Street, NW., Washington, DC 20581. Telephone: (202) 418-5000; e-mail:
The Commodity Futures Trading Commission is today adopting amendments to subpart C of part 140, 17 CFR part 140, under the Commodity Exchange Act, as amended, 7 U.S.C. 4a(f) and (j), 12a(5) and 13. The amendments to § 140.735-2 remove certain restrictions on business and financial transactions by and interests held by or on behalf of a Commission member or employee where the interest was obtained prior to the commencement of employment, or acquired by inheritance, gift, merger, acquisition or other change in corporate ownership, or acquired by a spouse or minor child as part of an employee compensation package. In addition, the rule would retain the 10 percent limitation on an employee's financial interest in any person required to file reports under the Commodity Exchange Act or rules and regulations promulgated thereunder, but would eliminate from the definition of “significant ownership” the $25,000 total investment in the entity. The amendments do not eliminate the current reporting and disqualification requirements prescribed by the Part 140 rules or by the Standards of Ethical Conduct for Employees of the Executive Branch, 5 CFR part 2635; OGE Standard Forms 278 and 450; the restrictions in sections 2(a)(7) and 9 of the CEA; and the statutory prohibition against participating in matters affecting an employee's own financial interests, 18 U.S.C. 208.
The amendments to § 140.735-8(b)(3) clarify the duties of the General Counsel as ethics counsel as well as the process by which actual or apparent conflicts of interests are to be resolved.
The Commission has determined that the exceptions to the prohibitions against financial interests created by these amendments are neither contrary to the public interest nor otherwise inconsistent with the purposes of section 9(c) of the CEA, which generally makes it a felony for a Commissioner or Commission employee to participate, directly or indirectly, in commodity futures, option or leverage transactions or, with certain limited exceptions, in investment transactions in actual commodities.
The Commission has determined that this rule relates solely to agency organization, procedure and practice. Accordingly, the provisions of the Administrative Procedure Act, 5 U.S.C. 553, which generally require notice of proposed rulemaking and opportunity for public participation, are not applicable. The Commission further finds that there is good cause to make
Section 15 of the CEA requires the Commission to consider the costs and benefits of its action before issuing a new regulation under the Act. The Commission understands that, by its terms, section 15 does not require the Commission to quantify the costs and benefits of a new regulation or to determine whether the benefits of the regulation outweigh its costs. Section 15 specifies that costs and benefits shall be evaluated in light of five broad areas of market and public concern: Protection of market participants and the public; efficiency, competitiveness and financial integrity of futures markets; price discovery; sound risk management practices; and other public interest considerations. Accordingly, the Commission could in its discretion give greater weight to any one of the five enumerated areas of concern and could in its discretion determine that, notwithstanding its costs, a particular rule was necessary or appropriate to protect the public interest or to effectuate any of the provisions or to accomplish any of the purposes of the Act.
Because the amendments to part 140 relate solely to agency organization, procedure and practice, they do not directly implicate the specific areas of concern identified in section 15. The Commission has considered the costs and benefits of these amendments and has concluded that the rules are fully consistent with the public interest and with the requirements and prohibitions of the Commodity Exchange Act, as amended, 7 U.S.C. 4a(f) and (j), 12a(5), and 13.
The Paperwork Reduction Act of 1995 (PRA), 44 U.S.C. 3501
The Regulatory Flexibility Act (RFA), 5 U.S.C. 601
Conflict of interests, Ethics, Organization and functions.
7 U.S.C. 4a(f) and (j), 12a(5), and 13, as amended by the Commodity Futures Modernization Act of 2000, Appendix E of Pub. L. 106-554, 114 Stat. 2763 (2000).
This subpart sets forth specific standards of conduct required of Commission members, employees of the Commission, and special government employees as well as regulations concerning former Commissioners, employees, and special government employees of the Commodity Futures Trading Commission. These rules are separate from and in addition to the Office of Government Ethics' conduct rules, Standards of Ethical Conduct for Employees of the Executive Branch, 5 CFR part 2635. In addition, this subpart contains references to various statutes governing employee conduct in order to aid Commission members, employees of the Commission and others in their understanding of statutory restrictions and requirements.
(a)
(b)
(1) Participate, directly or indirectly, in any transaction:
(i) In commodity futures;
(ii) Involving any commodity that is of the character of or which is commonly known to the trade as an option, privilege, indemnity, bid, offer, put, call, advance guaranty, or decline guaranty; or
(iii) For the delivery of any commodity under a standardized contract commonly known to the trade as a margin account, margin contract, leverage account, or leverage contract, or under any contract, account, arrangement, scheme, or device that the Commission determines serves the same function or functions as such a standardized contract, or is marketed or managed in substantially the same manner as such a standardized contract;
(2) Effect any purchase or sale of an option, futures contract, or option on a futures contract involving a security or group of securities;
(3) Sell a security which he or she does not own or consummate a sale by the delivery of a security borrowed by or for his or her account;
(4) Participate, directly or indirectly, in any investment transaction in an actual commodity if:
(i) Nonpublic information is used in the investment transaction;
(ii) It is prohibited by rule or regulation of the Commission; or
(iii) It is effected by means of any instrument regulated by the Commission and is not otherwise permitted by an exception under this section;
(5) Purchase or sell any securities of a company which, to his or her knowledge, is involved in any:
(i) Pending investigation by the Commission;
(ii) Proceeding before the Commission or to which the Commission is a party;
(iii) Other matter under consideration by the Commission that could have a direct and predictable effect upon the company; or
(6) Recommend or suggest to another person any transaction in which the
(c)
(d)
(1) A transaction entered into by any publicly-available pooled investment vehicle (such as a mutual fund or exchange-traded fund) other than one operated by a person who is a commodity pool operator with respect to such entity if the direct or indirect ownership interest of the member or employee neither exercises control nor has the ability to exercise control over the transactions entered into by such vehicle;
(2) The acceptance or exercise of any stock option or similar right granted by an employer as part of a compensation package to a spouse or minor child or other related member of the immediate household of a member or employee, or to the exercise of any stock option or similar right granted to the member or employee by a previous employer prior to commencement of the member's or employee's tenure with the Commission as part of such member's or employee's compensation package from such previous employer;
(3) A transaction by any trust or estate of which the member or employee or the spouse, minor child, or other related member of the immediate household of the member or employee is solely a beneficiary, has no power to control, and does not in fact control or advise with respect to the investments of the trust or estate;
(4) The exercise of any privilege to convert or exchange securities, of rights accruing unconditionally by virtue of ownership of other securities (as distinguished from a contingent right to acquire securities not subscribed for by others), or of rights in order to round out fractional shares in securities;
(5) The acceptance of stock dividends on securities already owned, the reinvestment of cash dividends on a security already owned, or the participation in a periodic investment plan when the original purchase was otherwise consistent with this rule; or
(6) Investment in any fund established pursuant to the Federal Employees Retirement System.
(e)
(f)
(a)
(b)
(1) Have a financial interest, through ownership of securities or otherwise, in any person
(2) Own or control, through securities or otherwise, ten percent or more of the total ownership interests in any other person required to file reports under the Commodity Exchange Act, or pursuant
(c)
(1) A financial interest in any publicly-available pooled investment vehicle (such as a mutual fund or exchange-traded fund) other than one operated by a person who is a commodity pool operator with respect to such entity if such vehicle does not have invested, or indicate in its prospectus the intent to invest, ten percent or more of its assets in securities of persons described in paragraph (b) of this section and the member or employee neither exercises control nor has the ability to exercise control over the financial interests held in such vehicle;
(2) A financial interest in any corporate parent or affiliate of a person described in paragraph (b)(1) of this section if the operations of such person provide less than ten percent of the gross revenues of the corporate parent or affiliate;
(3) A financial interest in any trust or estate of which the member or employee is solely a beneficiary, has no power to control, and does not in fact control or advise with respect to the investments of the trust or estate; except that such interest is subject to the provisions of paragraphs (d) and (f) of this section.
(d)
(1) Retaining a financial interest that was permitted to be retained by the member or employee prior to the adoption of this regulation, was obtained prior to the commencement of employment with the Commission, or was acquired by a spouse prior to marriage to the member or employee; or
(2) Acquiring, retaining, or controlling an otherwise prohibited financial interest, including but not limited to any security or option on a security (but not a security futures product), where the financial interest was acquired by inheritance, gift, stock split, involuntary stock dividend, merger, acquisition, or other change in corporate ownership, exercise of preemptive right, or otherwise without specific intent to acquire the financial interest, or by a spouse or minor child or other related member of the immediate household of the member or employee as part of an employment compensation package;
(i) Makes full disclosure of any such interest on his or her annual financial disclosure (Standard Form 278 or Standard Form 450);
(ii) Makes full written disclosure to the General Counsel within 30 days of commencing employment or, for incumbents, within twenty days of his or her receipt of actual or constructive notice that the interest has been acquired;
(iii) Will be disqualified in accordance with 5 CFR part 2635, subpart D, and 18 U.S.C. 208 from participating in any particular matter that will have a direct and predictable effect on the financial interest in question. Any Commission member or employee affected by this section may, pursuant to 18 U.S.C. 208(b)(1) and 5 CFR 2640.301-303, request a waiver of the disqualification requirement.
With respect to any financial interest retained under paragraph (c)(3) or (d) of this section, Commission members and employees are reminded of their obligations under 18 U.S.C. 208 and 5 CFR part 2635, subpart D, to disqualify themselves from participating in any particular matter in which they, their spouses or minor children have a financial interest.
(e)
(f)
(b)
(3) Receive information on, and resolve or forward to the Commission for consideration, any conflict of interests or apparent conflict of interests which appears in the annual financial disclosure (Standard Form 278 or Standard Form 450), or is disclosed to the General Counsel by a member or employee pursuant to § 140.735-2a(d) of this part, or otherwise is made known to the General Counsel.
(i) A conflict of interests or apparent conflict of interests is considered resolved by the General Counsel when the affected member or employee has executed an ethics agreement pursuant to 5 CFR 2634.801
(ii) If, after advice and guidance from the General Counsel, a member or employee does not execute an ethics agreement, the conflict of interests is considered unresolved and must be referred to the Commission for resolution or further action consistent with 18 U.S.C. 208 and 28 U.S.C. 535.
(iii)
By the Commission on February 1, 2002.
Food and Drug Administration, HHS.
Final rule.
The Food and Drug Administration (FDA) is issuing a final rule amending the final monograph for over-the-counter (OTC) topical antifungal drug products to add the ingredient clotrimazole as generally recognized as safe and effective for the treatment of athlete's foot, jock itch, and ringworm. This final rule is part of FDA's ongoing review of OTC drug products.
This rule is effective March 11, 2002.
Gerald M. Rachanow, Center for Drug Evaluation and Research (HFD-560), Food and Drug Administration, 5600 Fishers Lane, Rockville, MD 20857, 301-827-2307.
In the
In the
In response to the proposal, the agency received one comment, which is on public display in the Dockets Management Branch (HFA-305), 5630 Fishers Lane, rm. 1061, Rockville, MD 20852. The comment supported the agency's determination that clotrimazole has been marketed to a material extent and for a material time as a topical antifungal drug and that, based on the available data, it can be generally recognized as safe and effective for the treatment of athlete's foot, jock itch, and ringworm and included in the OTC drug monograph for this class of products.
The agency has determined that clotrimazole in a 1-percent concentration has been marketed to a material extent and for a material time as a topical antifungal drug. Based on the available data, it can be generally recognized as safe and effective for the treatment of athlete's foot (tinea pedis), jock itch (tinea cruris), and ringworm (tinea corporis) and included in the OTC drug monograph for this class of products. Therefore, the agency is adding clotrimazole 1-percent as new paragraph (g) in § 333.210. Any product containing clotrimazole that is marketed under the monograph must use all of the labeling that is required by the final monograph (part 333, subpart C) and must follow the content and format requirements in 21 CFR 201.66.
This final rule does not apply to clotrimazole marketed OTC as an antifungal agent in intravaginal drug products labeled for the treatment of vaginal yeast infections. The existing monograph for topical antifungal drug products does not contain any claims for intravaginal use.
FDA has examined the impacts of the final rule under Executive Order 12866 and the Regulatory Flexibility Act (5 U.S.C. 601-612) (as amended by subtitle D of the Small Business Regulatory Fairness Act of 1996 (Public Law 104-121)), and the Unfunded Mandates Reform Act of 1995 (Public Law 104-4). Executive Order 12866 directs agencies to assess all costs and benefits of available regulatory alternatives and, when regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety, and other advantages; distributive impacts; and equity). Under the Regulatory Flexibility Act, if a rule has a significant economic impact on a substantial number of small entities, an agency must analyze regulatory options that would minimize any significant impact of the rule on small entities.
Section 202(a) of the Unfunded Mandates Reform Act requires that agencies prepare a written statement of anticipated costs and benefits before proposing any rule that may result in an expenditure in any one year by State, local, and tribal governments, in the aggregate, or by the private sector, of $100 million (adjusted annually for inflation).
The agency concludes that this final rule is consistent with the principles set out in the Executive order and in these two statutes. The final rule is not a significant regulatory action as defined by the Executive order and so is not subject to review under the Executive order. Further, since this final rule is not expected to result in any 1-year expenditure that would exceed $100 million adjusted for inflation, FDA need not prepare additional analyses under the Unfunded Mandates Reform Act.
The purpose of this final rule is to include clotrimazole 1-percent in the monograph for OTC topical antifungal drug products. This rule allows current manufacturers of these products to market their products under the OTC drug monograph instead of an NDA and enables other manufacturers who wish to market clotrimazole products OTC to enter the marketplace without having to obtain an NDA. In both cases, there will be cost savings from marketing without an NDA.
When current manufacturers market these products under the OTC drug monograph, they should incur only minor costs to relabel their products to meet the monograph. Some manufacturers may have to add a warning that was included in the final monograph, but not required when
Because no small firms will be adversely affected, the agency certifies that this final rule will not have a significant economic impact on a substantial number of small entities.
FDA concludes that the labeling requirements for clotrimazole are not subject to review by the Office of Management and Budget because they do not constitute a “collection of information” under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
The agency has determined under 21 CFR 25.31(a) that this action is of a type that does not individually or cumulatively have a significant effect on the human environment. Therefore, neither an environmental assessment nor an environmental impact statement is required.
FDA has analyzed this final rule in accordance with the principles set forth in Executive Order 13132. FDA has determined that the rule does not contain policies that have substantial direct effects on the States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government. Accordingly, the agency has concluded that the rule does not contain policies that have federalism implications as defined in the Executive order and, consequently, a federalism summary impact statement is not required.
Labeling, Over-the-counter drugs.
1. The authority citation for 21 CFR part 333 continues to read as follows:
21 U.S.C. 321, 351, 352, 353, 355, 360, 371.
(g) Clotrimazole 1 percent.
Food and Drug Administration, HHS.
Final rule.
The Food and Drug Administration (FDA) is amending the medical device tracking regulation. FDA is making substantive changes to revise the scope of the regulation and add certain patient confidentiality requirements, and nonsubstantive changes to remove outdated references and simplify terminology. These revisions are made to conform the regulation to changes made in section 519(e) of the Federal Food, Drug, and Cosmetic Act (the act) by the FDA Modernization Act of 1997 (FDAMA), and to simplify certain requirements.
This rule is effective May 9, 2002. The information collection provisions of this final rule have been submitted to the Office of Management and Budget (OMB) for review. Prior to the effective date of this final rule, FDA will publish in the
Chester T. Reynolds, Center for Devices and Radiological Health (HFZ-300), Food and Drug Administration, 2094 Gaither Rd., Rockville, MD 20850, 301-594-4618.
Section 211 of FDAMA (Public Law 105-115) became effective on February 19, 1998. It amended the previous tracking provisions in section 519(e)(1) and (e)(2) of the act (21 U.S.C. 360i(e)(1) and (e)(2)) that were added by the Safe Medical Devices Act (SMDA). Unlike the tracking provisions under SMDA, which required tracking for any device meeting certain criteria, FDAMA allows FDA discretion in applying tracking requirements to devices that meet certain criteria and provides that tracking requirements can be imposed only after FDA issues an order.
Current section 519(e)(1) of the act, as amended by FDAMA, provides that FDA may by order require a manufacturer to adopt a method of tracking a class II or class III device if: (1) Its failure would be reasonably likely to have serious adverse health consequences, or (2) it is intended to be implanted in the human body for more than 1 year, or (3) it is a life-sustaining or life-supporting device used outside a device user facility. FDA interprets the discretion inherent in the language “may by order require” tracking to allow the agency to consider additional relevant factors in determining whether to issue a tracking order for a device that meets the statutory threshold tracking criteria set out in current section 519(e)(1) of the act.
As amended by FDAMA, current section 519(e)(2) of the act provides that patients receiving a device subject to
The discretionary authority to issue tracking orders, and the three statutory criteria that operate independently of one another in section 519(e)(1) of the act, allow FDA to accomplish the intended purpose of device tracking under FDAMA, as identified by Congress, i.e., to facilitate the recall of dangerous or defective devices, under section 518(e) of the act (21 U.S.C. 360h(e)) (S. Rept. 108, 105th Cong., 1st sess. 37 (1997)).
In the
On December 19, 1997, FDA sent letters to manufacturers with device tracking responsibilities under section 519(e) of the act. The letters explained that FDA would implement statutory changes in medical device tracking under FDAMA. The letters advised that existing tracking requirements imposed by previously issued FDA regulations or FDA orders would remain in effect until FDA notified a firm of any changes in its responsibilities.
At the January 15, 1998, public meeting, comments from consumer groups, clinicians, manufacturers, and industry associations suggested nonbinding factors that FDA should consider, in addition to the tracking criteria set out under FDAMA, to determine whether tracking should be ordered by FDA.
On February 11, 1998, FDA issued orders to manufacturers of 28 types of devices, which the agency determined met the revised tracking criteria in section 519(e) of the act, as amended by FDAMA. These “new” orders became effective on February 19, 1998, the effective date of the revised tracking provision under FDAMA. The devices ordered to be tracked included 26 device types previously identified as subject to tracking under the SMDA criteria in the tracking regulation at § 821.20(b)(1), (b)(2), and (c) (21 CFR 821.20(b)(1), (b)(2), and (c)). Arterial stents and intraocular lenses, which had not been listed previously as subject to tracking in the regulation, also were ordered to be tracked under FDAMA.
Beginning on August 26, 1998, FDA rescinded the tracking orders issued on February 19, 1998, for 14 types of devices, including intraocular lenses and arterial stents.
FDA determined, in light of its discretionary authority under FDAMA, that these 14 device types did not warrant continued tracking based on additional factors, even though the statutory criteria were met. The additional and nonbinding factors FDA considered included: (1) The likelihood of sudden, catastrophic failure; (2) the likelihood of significant adverse clinical outcomes; and (3) the need for prompt professional intervention.
On December 14, 1998, FDA issued orders to manufacturers of dura mater devices, requiring them to track the devices under section 519(e) of the act, as amended by FDAMA. These medical devices met the statutory criteria and may have significant adverse clinical outcomes.
On September 28, 1999, FDA issued orders to manufacturers of stent grafts intended to treat abdominal aortic aneurysms (AAA), requiring them to track the devices.
Upon reviewing premarket applications, the agency determined these devices met the statutory tracking criteria of amended section 519(e) of the act, because their failure would be reasonably likely to have serious adverse consequences, and also would necessitate prompt professional intervention.
In April, August, and October 2000, FDA issued tracking orders to seven firms that received agency clearance to market devices of the type the agency had already subjected to the tracking requirement. Three of these firms had not tracked devices before. They received FDA orders to track the replacement heart valves, temporomandibular joint (TMJ) prostheses, and continuous ventilators they marketed, as other firms had been ordered to do before them. The four other firms were already tracking other models of the cardiovascular permanently implantable pacemaker electrodes and continuous ventilators that they were ordered to track in 2000.
FDA published a series of
a. 63 FR 10638, March 4,1998—FDA issued a notice announcing its issuance on February 11, 1998, of new tracking orders under its new authority under FDAMA. These new orders became effective on February 19, 1998, and made 28 types of devices manufactured by specific firms subject to the tracking requirements of section 519(e) of the act, as amended under FDAMA. FDA also announced its intention to exercise its new discretionary authority under FDAMA. The agency advised that it would identify additional nonbinding factors to determine whether tracking requirements, and the issuance of agency tracking orders, were warranted for devices that otherwise qualify to be tracked under section 519(e)(1) of the act criteria.
This notice announced FDA’s intention to review and reconsider the imposition of tracking requirements for 13 devices that were identified as meeting the threshold statutory criteria and that were subject to February 1998 tracking orders. FDA solicited public comment on which nonbinding factors it should consider in making such discretionary tracking determinations.
b. 63 FR 10640, March 4, 1998—FDA issued a notice announcing the availability of the guidance document entitled “Guidance on Medical Device Tracking.” This document provided guidance to manufacturers and distributors about their tracking responsibilities under section 519(e) of the act, as amended by FDAMA. It discussed which statutory and regulatory requirements had changed, and which requirements remained the same. The guidance represented FDA’s thinking at that time on medical device tracking under the FDAMA amendments.
c. 64 FR 7197, February 12, 1999—FDA issued a notice announcing the availability of the revised final guidance document entitled “Guidance on Medical Device Tracking.” It replaced the previous guidance issued on March 4, 1998.
The revised February 1999 guidance noted FDA’s December 1998 issuance of
d. 64 FR 3722, January 24, 2000—FDA issued a notice announcing the availability of an updated and revised “Guidance on Medical Device Tracking” that both reaffirmed previous agency positions regarding FDAMA revised tracking requirements and clarified current thinking regarding certain devices subject to tracking requirements.
The January 24, 2000, revised guidance document clarified that the category of replacement heart valves that must be tracked is limited to mechanical heart valves only and does not include human allograft (tissue) heart valves. The January 2000 guidance stated that FDA reevaluated the tracking status of infusion pumps because their labeling does not always make clear the types of fluids the pumps are intended to deliver.
Infusion pump labeling statements became an issue when the previous February 1999 guidance document identified infusion pumps as devices subject to tracking, “except those designated and labeled for use exclusively for fluids with low potential risks, such as enteral feeding or anti-infectives.” FDA experience, upon reexamination, was that most infusion pumps have labeling that is general in nature, i.e, they are intended “to deliver medications,” and very few pumps are labeled with a specific indication. Thus, there was uncertainty whether product labels would provide sufficient information to determine which infusion pumps must be tracked.
To reduce the above uncertainties and clarify FDA's position, the January 2000 guidance stated that tracking is required only for electromechanical infusion pumps used outside device user facilities. Thus, FDA's current position is that tracking is not needed for elastomeric, electromechanical, gravity flow, and other infusion pumps used in hospitals and other device user facilities. This also means that FDA does not consider tracking warranted for elastomeric and gravity flow pumps used outside device user facilities, based on the regulatory history of these products. A firm may request a tracking variance or exemption under § 821.2 (21 CFR 821.2) for an electromechanical infusion pump used outside a device user facility if the firm can demonstrate that the pump is labeled and used solely to administer fluids with low potential risks.
In the
• Revising the existing scope and authority set out in §§ 821.1 and 821.20;
• Modifying existing definitions of “importer” (§ 821.3(b)) and “permanently implantable device” (§ 821.3(f));
• Removing existing criteria, responsibilities, and authority from § 821.20(b)(1), (b)(2), and (c); and
• Adding new patient confidentiality provisions in new § 821.55(a), and references to new § 821.55(a) to existing § 821.30(b)(3) and (c)(1)(iii).
For simplification, FDA further proposed nonsubstantive changes to remove unneeded references to the 1993 effective date of tracking provisions in § 821.1(c), and to outdated procedures for citizen petitions received before August 29, 1993, in § 821.2(d). FDA also proposed substituting the simple inclusive term “tracked devices” to replace the more complex detail describing devices subject to tracking in existing § 821.25(a)(2) and (a)(3).
FDA did not propose changes in parts of the existing regulation that were not affected by FDAMA. Except for the nonsubstantive changes described above, FDA did not propose changes in the regulation with respect to: Existing system and content requirements for tracking; existing obligations of persons other than device manufacturers, such as distributors; existing records and inspection requirements; and existing record retention requirements.
FDA received just one comment on its April 25, 2000 (65 FR 24144 at 24145), proposal. The comment came from a device firm. It identified a reference in the preamble of the proposal to clarifications made by FDA concerning infusion pumps subject to tracking. FDA had discussed which infusion pumps are covered by the tracking orders it issued, under FDAMA, in nonbinding guidance documents that the agency made available to the public on February 12, 1999 (64 FR 7197), and an updated and revised version that FDA made available on January 24, 2000 (65 FR 3722).
The comment maintained that infusion pumps should be tracked on the basis of high-risk uses (per FDA's February 1999 guidance) rather than on operating technology, i.e., whether or not they are electromechanical infusion pumps (per FDA's January 2000 guidance). The comment claimed that FDA's position in the January 2000 guidance “* * * would, again, make enteral feeding pumps which are electromechanical in nature, subject to tracking, while unfairly exempting enteral feeding pumps which are not electromechanical.”
The issue raised by the comment is outside the scope of the regulation. Specifically, the comment relates to the appropriateness of the issuance of orders that were issued under section 519(e) of the act as amended by FDAMA, prior to the existence of this proposed regulation. The comment also relates to the appropriateness of guidance that was published prior to the existence of this proposed regulation. Since the issuance of these orders relating to infusion pumps took place under authority that was independent of the proposed regulation, the appropriateness of the order’s issuance is not within the scope of this regulation.
FDA does note, however, that in describing the criteria for triggering the issuance of the future orders that will be issued under the regulation, the regulation mirrors the language of the statute. If it has concerns about the issuance of previous orders relating to infusion pumps, the firm may request an exemption from the tracking regulations, and may also submit comments on the guidance relating to the application of tracking requirements to infusion pumps.
On February 19, 1998, FDAMA amended section 519(e) of the act. By operation of statute, certain provisions in the current tracking regulation, part 821, became inconsistent with the tracking requirements as revised by FDAMA. On April 25, 2000, FDA published in the
This final rule incorporates, unchanged, all of the proposed revisions that the agency set out in its April 25, 2000, proposal to amend the existing regulation. In particular, the final rule revises certain sections of part 821 to conform to section 519 of the act, as amended. Thus, FDA is revising the scope of the tracking requirements, including the appropriate modification of certain definitions and certain requirements relating to patient confidentiality, to reflect FDAMA’s changes.
Other than the final changes described above, parts of the tracking regulation that were not affected by FDAMA remain unchanged. Except for the nonsubstantive terminology change noted above, this final rule makes no revisions to:
• The regulation’s existing system and content tracking requirements,
• The current obligations of persons other than device manufacturers, such as distributors,
• Records and inspection requirements, and
• Existing record retention requirements.
Each of the revisions made by this final rule amending the existing medical devices tracking regulation is discussed in more detail below.
1. FDA is amending § 821.1 by revising paragraph (a) to conform its language to the statutory language in section 519(e) of the act, as amended by FDAMA.
Under FDAMA, the types of persons subject to tracking are no longer linked to registration requirements under section 510 of the act (21 U.S.C. 360). As amended, the tracking requirements apply only to manufacturers who receive a tracking order from FDA.
FDAMA modifies the criteria for tracking devices. In revised section 519(e)(1) of the act amended by FDAMA, FDA may order a manufacturer to track only a “class II or class III device—(A) the failure of which would be reasonably likely to have serious adverse health consequences; or (B) which is—(i) intended to be implanted in the human body for more than one year, or (ii) a life sustaining or life supporting device used outside a device user facility.”
FDAMA allows FDA to exercise discretion in determining whether a device that meets the criteria in section 519(e) of the act shall be tracked. This means that, even if the statutory criteria are met, tracking is not required unless FDA issues an order that directs a manufacturer to track a device. Under FDAMA, the statutory criteria establish a minimum threshold. If the device does not meet any of the criteria in section 519(e) of the act, FDA may no longer designate a device as one that requires tracking to protect the public health.
Accordingly, to conform the language in § 821.1(a) to the statutory language in current section 519(e) of the act, FDA is amending section 519(a) to read as follows:
“The regulations in this part implement section 519(e) of the Federal Food, Drug, and Cosmetic Act, which provides that the Food and Drug Administration may require a manufacturer to adopt a method of tracking a class II or class III device, if the device meets one of the following three criteria and FDA issues an order to the manufacturer: the failure of the device would be reasonably likely to have serious adverse health consequences; or the device is intended to be implanted in the human body for more than 1 year; or the device is a life-sustaining or life-supporting device used outside a device user facility. A device that meets one of these criteria and is the subject of an FDA order must comply with this part and is referred to, in this part, as a ‘tracked device.’ ”
2. FDA is revising the third sentence in paragraph (b) in § 821.1, which describes persons subject to tracking requirements, by removing the words “must register under section 510 of the act,” and substituting the words “are subject to tracking orders.” As noted above, this change reflects the revisions made to section 519(e) of the act by FDAMA. The revised tracking requirements, as amended by FDAMA, are triggered for the manufacturer by the issuance of an FDA tracking order, not by registration requirements. For clarity, FDA is also revising the second sentence in paragraph (b) in § 821.1 by removing the words “any person for whom the device is intended” and substituting the words “the patient.”
3. FDA is amending § 821.1 by removing paragraph (c). Section 821.1(c) was included in the final tracking regulations issued in 1993 to clarify that the effective date for the tracking requirements under SMDA was August 29, 1993. Because the requirements of these regulations have been in effect since August 29, 1993, and have been implemented by industry for more than 5 years, it is not necessary to include the effective date in the current regulation.
4. In conjunction with the removal of paragraph (c) from § 821.1, FDA is redesignating current paragraphs (d) and (e) in this section as paragraphs (c) and (d), respectively. No changes are made in these redesignated paragraphs.
5. FDA is amending § 821.2 by removing paragraph (d). Paragraph (d) refers to the procedures that FDA used to handle tracking petitions received prior to the August 29, 1993, effective date of the tracking regulation. Because FDA has responded to all of those petitions, there is no longer any need to include deadlines and timeframes for these particular petitions.
6. FDA is revising the definition of “Importer” in existing § 821.3(b). “Importer” was previously defined as “the initial distributor of an imported device who is required to register under section 510 of the act and § 807.20 of this chapter. “Importer” does not include anyone who only performs a service for the person who furthers the marketing, i.e., brokers, jobbers, or warehouser.”
FDA is removing the existing language “required to register under section 510 of the act and § 807.20 of this chapter,” from the end of the first sentence in the definition and replacing it with the phrase “subject to a tracking order.” For tracking purposes, this change makes the term “Importer” mean “the initial distributor of an imported device who is subject to a tracking order.” For clarity, FDA is also revising the phrase “who only performs a service for the person who furthers the marketing,” to “who only furthers the marketing.”
Accordingly, this final rule amends § 821.3(b) to read as follows:
“(b) Importer means the initial distributor of an imported device that is subject to a tracking order. “Importer” does not include anyone who only furthers the marketing, e.g., brokers, jobbers, or warehousers.”
7. FDA is amending § 821.3(f) by revising the definition of “Permanently implantable device.” Previously, § 821.3(f) defined “Permanently implantable device” as meaning “a device that is intended to be placed into a surgically or naturally formed cavity of the human body to continuously assist, restore, or replace the function of an organ system or structure of the human body throughout the useful life of the device. The term does not include
FDAMA amended section 519(e)(1)(B)(i) of the act to provide that FDA only may order tracking of an implanted device if the device “is intended to be implanted in the human body for more than 1 year.” Thus, FDA is changing the type of implanted device defined under § 821.3(f) from “permanently implantable device” to “device intended to be implanted in the human body for more than 1 year.”
FDA is also adding the phrase “for more than 1 year” in the first sentence of the revised definition after the phrase “of the human body.” And, at the end of the second sentence, FDA is adding the phrase “in 1 year or less.” These latter two revisions further incorporate into the revised definition the minimum implantation time period established by the FDAMA amendment.
FDA believes that devices implanted for more than 1 year must continue to perform the function for which they were designed and implanted, throughout their useful life. FDA continues to believe that implanted devices which may remain “permanently” in the body, but whose function may be replaced by natural or other processes after a given period of time, should not be tracked (57 FR 22973, May 29, 1992). Thus, in revised § 821.3(f), FDA is retaining the “continuously assist, restore, or replace” portion of the current definition as a condition of meeting the criterion in section 519(e)(1)(B)(i) of the act.
Accordingly, FDA is amending § 821.3(f) to read as follows:
“(f) Device intended to be implanted in the human body for more than 1 year means a device that is intended to be placed into a surgically or naturally formed cavity of the human body for more than 1 year to continuously assist, restore, or replace the function of an organ system or structure of the human body throughout the useful life of the device. The term does not include any device that is intended and used only for temporary purposes or that is intended for explantation in 1 year or less.”
8. FDA is amending § 821.20 by revising paragraph (a), by removing paragraphs (b) and (c), by redesignating paragraph (d) as paragraph (b), and by revising newly redesignated paragraph (b).
9. FDA is revising paragraph (a) to conform § 821.20(a) to the tracking provision of section 519(e) of the act, as amended by FDAMA. The existing paragraph (a) conformed to the tracking provision that was added to the act under section 519(e) by SMDA. That earlier version of section 519(e) of the act required the tracking of devices that met the statutory tracking criteria for devices in section 519(e) and manufacturers made the initial determination whether their devices met the statutory criteria for tracking. It also required the tracking of devices that FDA, in its discretion, designated as requiring tracking.
FDA is revising paragraph (a) of § 821.20 to conform its language to the statutory language of the revised section 519(e) of the act under FDAMA. Accordingly, amended § 821.20(a) requires the manufacturer of a class II or class III device to track the device when ordered by FDA to do so, under the agency’s discretion, after making a determination that the device is:
• One the failure of which would be reasonably likely to have serious adverse health consequences, or
• One which is intended to be implanted in the human body for more than a year, or
• One which is life-sustaining or life-supporting and used outside a device user facility, and is
• One which warrants tracking.
10. In the amended regulation, FDA is revising § 821.20, further, by removing paragraphs (b) and (c).
As explained above, the current tracking requirement under section 519(e) of the act, as amended by FDAMA, is triggered solely by the issuance of FDA tracking orders. FDAMA authorizes FDA to exercise its discretion in determining whether a class II or class III device, meeting the criteria for “trackable” devices, warrants tracking. FDA must then issue a tracking order to the manufacturer of the class II or class III device when the agency determines that the device warrants being subject to the tracking requirement.
Introductory paragraph (b) and paragraph (b)(1) are being removed because it is no longer necessary to give manufacturers guidance about how to decide whether they should initiate tracking. Under the revisions to section 519(e) of the act by FDAMA, manufacturers no longer need to determine whether their devices are subject to tracking. Instead, FDA makes the determination by order.
11. In the amended regulation, FDA has removed paragraph (c) of § 821.20. That paragraph, which identified devices FDA designated for tracking that did not meet the mandatory tracking criteria under SMDA, is no longer relevant. As amended by FDAMA, section 519(e)(2) of the act no longer allows FDA to designate for tracking devices that do not meet the tracking criteria in section 519(e)(1).
12. Although distributors, final distributors, and multiple distributors of tracked devices will not be provided tracking orders, as manufacturers are, FDA believes it can keep such interested parties apprised of revisions to device types subject to tracking orders through the use of guidance or periodic
FDA has already disseminated the status and identification of tracked devices successfully through
13. In removing previous § 821.20(b) and (c) from the regulation, FDA is redesignating existing paragraph (d) as paragraph (b), and is editing, revising, and deleting provisions of redesignated paragraph (b).
In redesignated § 821.20(b), FDA is revising the language in existing § 821.20(d) describing the content of 510(k) and premarket approval application orders to reflect the fact that tracking requirements are accomplished by order under FDAMA. Revised § 821.20(b) reads as follows: “When responding to premarket notification submissions and premarket approval applications, FDA will notify the sponsor by issuing an order that states that FDA believes the device meets the criteria of section 519(e)(1) of the act and, by virtue of the order, the sponsor must track the device.”
14. FDA is amending § 821.25 by revising the terms currently used in the introductory texts of paragraphs (a)(2) and (a)(3). The term “tracked device(s)” replaces existing device descriptions to shorten the identification of the types of devices subject to data requirements set out under § 821.25(a)(2)(i) through (a)(2)(vii) and (a)(3)(i) through (a)(3)(viii). In describing the types of tracked devices that were subject to the reporting requirements in § 821.25(a)(2)(i) through (a)(2)(vii) and (a)(3)(i) through (a)(3)(viii), the existing regulation restated the statutory criteria of section 519(e) of the act, as added by the SMDA, that were used to subject devices to tracking.
FDA is amending the introductory text of § 821.25(a)(2) and (a)(3) to remove descriptions that reflect SMDA criteria that no longer apply.
15. FDA is substituting, in revised § 821.25(a)(2) and (a)(3), a description of devices that are subject to reporting requirements that is consistent with the section 519(e) of the act criteria as amended by FDAMA. To simplify, however, FDA is choosing to use the term “tracked device” to discuss devices subject to tracking orders under FDAMA, rather than to fully restate the revised FDAMA section 519(e) of the act criteria for tracked devices.
FDA revisions of the introductory texts of final § 821.25(a)(2) and (a)(3) do not change the data reporting requirements for single patient use, implants, or multiple patient use devices that are subject to tracking requirements by virtue of the issuance of a FDA tracking order.
16. FDA further amends § 821.25 by revising paragraphs (a)(2)(iii) and (a)(3)(iv). These paragraphs previously stated that manufacturers must provide “(t)he name, address, telephone number, and social security number (if available) of the patient” receiving or using the device. In this final rule, FDA is revising these paragraphs by adding, at the end of each one, the clause “unless not released by the patient under § 821.55(a).”
These changes conform § 821.25(a)(2)(iii) and (a)(3)(iv) of the final regulation to section 519(e)(2) of the act, as amended by FDAMA, which specifically states that patients receiving a tracked device may refuse to release, or refuse permission to release, the type of patient identifying information required under the current regulatory requirements.
17. In this final rule, FDA is amending § 821.30 by revising paragraphs (b)(3) and (c)(1)(ii) in identical fashion. FDA is changing the semicolons at the end of both regulatory requirements to commas. FDA then adds the phrase “unless not released by the patient under § 821.55(a);” following the comma in each requirement.
These revisions are made in the amended regulation for the reasons discussed above under item 16.
18. FDA is adding new paragraph (a) to 821.55 for the reasons stated above under item 16, and redesignating existing paragraphs (a) and (b) as paragraphs (b) and (c), respectively.
The agency has determined under 21 CFR 25.30(h) that this final action is of a type that does not individually or cumulatively have a significant effect on the human environment. Therefore, neither an environmental assessment nor an environmental impact statement is required.
FDA has examined the impacts of the final rule under Executive Order 12866 and the Regulatory Flexibility Act (5 U.S.C. 601-612) (as amended by Subtitle D of the Small Business Regulatory Fairness Act of 1996 (Public Law 104-721)), and the Unfunded Mandates Reform Act (Public Law 104-4). Executive Order 12866 directs agencies to assess all costs and benefits of available regulatory alternatives and, when regulation is necessary, to select regulatory approaches that maximize the benefits (including potential economic, environmental, public health and safety, and other advantages; distributive impacts; and equity). The Unfunded Mandates Reform Act (in section 202) requires that agencies prepare an assessment of anticipated costs and benefits before proposing any expenditure by State, local, and tribal governments, in the aggregate, or by the private sector of $100 million in any one year. Under the Regulatory Flexibility Act, unless an agency certifies that a rule will not have a significant impact on a substantial number of small entities, the agency must analyze regulatory options that would minimize any significant economic impact of a rule on small entities.
Regulations implementing the tracking requirements of SMDA became effective on August 29, 1993. The purpose of device tracking is to ensure that manufacturers of certain devices establish tracking systems that will enable them to promptly locate devices in commercial distribution. Device tracking systems can reduce serious risks by facilitating patient notifications and device recalls. Manufacturers of certain devices are required to develop, document, and operate a tracking system that will allow them to quickly notify all distributors, health professionals, or patients of a recall or a serious health risk. FDAMA amends the scope of devices that may be subject to tracking requirements, and requires the agency to issue an “order” notifying manufacturers to adopt a tracking method. This final rule codifies the FDAMA changes by amending the 1993 regulation to give FDA greater flexibility to issue and rescind tracking orders in response to changing levels of risk.
In December 1997, FDA advised manufacturers that the tracking requirements imposed by existing FDA regulations would remain in effect until the agency notified a firm of any change in responsibilities. On February 11, 1998, FDA sent tracking orders to manufacturers of all of the device types listed in the 1993 device tracking regulation. Beginning in August 1998, FDA used its discretionary authority under FDAMA to rescind tracking orders for approximately half of these devices because it was determined that they did not have a level of risk warranting device tracking. FDA issued tracking orders to four manufacturers of two additional devices known to be associated with serious risks, i.e., dura mater implants and AAA stent grafts. In September 1999, FDA limited the scope of tracking orders for two other device types, i. e., replacement heart valves and electromechanical infusion pumps. No additional types of devices have been added to the list of tracked devices during 2000. However, in August and October 2000, FDA issued orders to three manufacturers without previous tracking systems in place, to begin tracking their own versions of devices already on the list of tracked devices, namely, replacement heart valves, continuous ventilators, and TMJ prostheses. The discussion below estimates the cost consequences attributable to these changes in the number of manufacturers tracking
A recent agency analysis projects that the cost to industry of maintaining device tracking systems will rise from approximately $40 million in 1999, to $71 million in 2006 (Ref. 1). As detailed in that analysis, this estimate accounts for the FDAMA-related changes that: (1) Add approximately $1.8 million in new annualized costs to track the additional devices for which orders were sent in December 1998, and September 1999; and (2) save industry approximately $19.2 million per year by eliminating tracking for a number of device types and by limiting the scope of another order to devices that operate electromechanically and are used outside device user facilities. Although FDAMA changed the scope of devices subject to tracking, no requirements have been added for devices that are already tracked. Therefore, the manufacturers and distributors of devices that are already being tracked will not incur additional costs as a result of this rule. The FDAMA-related changes to the 1993 list of tracked devices result in net savings to industry of approximately $17.4 million per year (i.e., $19.2 million minus $1.8 million). In the future, the total cost of industry device tracking systems may increase as devices are added or decrease as devices are rescinded. FDA could not forecast the cost or cost savings of such future actions, however, it is likely that these would be incurred at the same rate as they have since the requirements became effective in 1993.
This final rule would also reduce agency costs by bypassing rulemaking procedures each time a device is added to or removed from the tracking list. This analysis does not quantify these costs, although substantial savings are expected from this more flexible and efficient system.
FDA has reviewed this final rule and has determined it is consistent with the regulatory philosophy and principles identified in the Executive order and these two statutes. Because the costs of the final rule total less than $100 million in any one year, the final rule is not a “significant regulatory action” under the Executive order and FDA is not required to perform a cost benefit analysis under to the Unfunded Mandates Reform Act.
These changes have, so far, resulted in net savings to industry. However, under the total annual distribution scheme used by FDA to estimate tracking costs by manufacturers, additional costs will be incurred by manufacturers that did not previously have tracking systems in place, as follows: (1) Four manufacturers of dura mater implants and AAA stents, which were not previously tracked under SMDA provisions but which are now subject to tracking orders issued by FDA, under FDAMA, in December 1998 and December 1999; and (2) three manufacturers of replacement heart valves, continuous ventilators, and TMJ prostheses which were ordered to be tracked in August and October 2000. To implement tracking systems, these seven manufacturers would incur total average annualized costs of approximately $1,718,500.00, or approximately $245,500 per manufacturer.
According to the Department of Commerce, there are 873 establishments with fewer than 500 employees manufacturing medical and surgical equipment and they account for about $2.4 billion in shipments, or about $2.7 million in shipments per establishment (Ref. 1). Thus, $245,000 per manufacturer would be less than 1 percent of the average annual shipments of a small manufacturer of medical equipment.
Under the total annual distribution scheme used by FDA to estimate distributor costs, additional costs would only be incurred by distributors when device types not previously tracked under SMDA provisions are added by FDA order, under FDAMA provisions, to the list of devices tracked by distributors. Implanted medical devices such as dura mater implants and AAA stents usually move directly from the manufacturer to the hospital,
FDA has analyzed this final rule in accordance with the principles set forth in Executive Order 13132. FDA has determined that the rule does not contain policies that have substantial direct effects on the States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government. Accordingly, the agency has concluded that the rule does not contain policies that have federalism implications as defined in the order and, consequently, a federalism summary impact statement is not required.
This final rule contains information collection provisions that are subject to review by OMB under the Paperwork Reduction Act of 1995 (the PRA) (44 U.S.C. 3501-3502). The title, description, and respondent description of the information collection provisions are shown below with an estimate of the annual reporting and recordkeeping burden. Included in the estimate is the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing each collection of information.
This final rule revises the scope, removes the lists of tracked devices, and amends certain confidentiality requirements of the current medical device tracking regulation (part 821). This rule also makes certain nonsubstantive revisions in the tracking regulation to remove outdated references or to simplify terminology.
Under the revised scope of the amended tracking regulation, FDA is requiring manufacturers of class II or class III devices, including repackers, relabelers, and importers of these devices, when required by tracking orders issued by FDA for particular devices, to adopt a method of tracking the devices throughout distribution to
Manufacturers of tracked devices, i.e., devices subject to FDA tracking orders, continue to be required by the amended regulation to gather, record, maintain, and make available during FDA inspection, and to provide within 3 or 10 working days, upon FDA request, information on the location and current users of tracked devices, and other use-related information. Upon receiving tracked devices, distributors, final distributors, and multiple distributors must continue to provide tracked device manufacturers with device identity and receipt information and, when applicable, patient identity and other related usage information.
As it was before revision by this final rule, the purpose of the tracking requirements is to facilitate manufacturers identifying the current location and identity of all persons using tracked devices, to the extent permitted by patients. With this information, manufacturers of tracked devices and FDA can expedite the recall of distributed tracked devices that are dangerous or defective.
FDA received one public comment on the proposed rule of April 25, 2000. On May 30, 2000, OMB approved the information collection related to the tracking of medical devices as it pertains to the previous rule approved in 1993. The approved information collection was assigned OMB control No. 0910-0442. At that time, OMB stated: “OMB files comment on this collection as it pertains to the new proposed rule, and FDA will resubmit this collection with any changes along with the final rule. In drafting the final rule and paperwork submission, FDA should consider uses of appropriate technology (e.g. electronic submission of information) that could reduce burden.”
With respect to OMB comment, FDA notes that the proposed rule, and now the final rule, provides for broad use of electronic submission for this information collection in accordance with FDA’s regulations governing electronic submission of information (21 CFR part 11). FDA addresses the minor changes in the burden from the approved information collection below.
FDA addresses the one public comment related to the tracking of infusion pumps earlier in this preamble. The comment objected to the issuance of tracking orders for a category of infusion pumps that FDA issued before the proposed rule. As explained above, FDA considers this comment beyond the scope of this rule.
Under OMB control No. 0910-0442, OMB approved a burden of 10,175,490 responses and 2,790,693 burden hours. At that time, there were 207 manufacturers tracking devices. In 2000, FDA ordered three manufacturers that did not previously track devices to track their devices cleared for marketing and FDA rescinded a previous tracking order issued to one firm. Therefore, 209 manufacturers currently track devices (207 previous + 3 additional - 1 rescinded). FDA has no reason to believe that the change in the number of manufacturers will result in a change in the number of devices implanted. The change will only result in differences in market share.
The PRA analysis stated in the April 2000 proposed rule remains the same except for the analysis of § 821.25(c). Accordingly, the analysis stated in the proposed rule in 65 FR 24144 at 24150 for all sections of the final rule, other than § 821.25(c) is incorporated herein.
The analysis for § 821.25(c) changes because of the additional manufacturers that received tracking orders since the publication of the April 2000 proposal. As described above, three additional manufacturers received orders, and one was rescinded, therefore the analysis of § 821.25(c) is changed by the additional manufacturers.
Under § 821.25(c), manufacturers must establish standard operating procedures (SOPs) for collecting, maintaining, and auditing tracking data. FDA estimates the three new firms would take an average of 2 staff months to plan and develop a tracking system, and 1 month to draft and implement
There would be no such burdens for 206 manufacturers that have had tracking systems in place. Manufacturers with tracking systems in place would review and/or revise their tracking system SOPs on an annual basis, expending approximately 10 percent of the amount of time spent originally in drafting the SOPs (18 hours). Over the next 3 years, 617 firms would annually revise tracking SOPs as follows: 206 firms (excludes dura mater firms) for the first year, and 209 firms (includes 3 new firms) for the second and third year. The total annual burden for revising SOPs for 3 years would amount to: 624 firms x 18 hours per firm = 11,232 hours. The annual burden would be 3,744 hours (11,232/3). Thus, the total burden for § 821.25(c) would be 5,328 hours (1,584 hours + 3,744 hours).
The information collection provisions of the final rule have been submitted to OMB for review.
Prior to the effective date of this final rule, FDA will publish in the
The following reference has been placed on display in the Dockets Management Branch (address above) and may be seen by interested persons between 9 a.m. and 4 p.m., Monday through Friday.
1. “Cost Assessment of Medical Device Tracking,” Economics Staff, Food and Drug Administration, 1999.
Imports, Medical devices, Reporting and recordkeeping requirements.
21 U.S.C. 331, 351, 352, 360, 360e, 360h, 360i, 371, 374.
(a) The regulations in this part implement section 519(e) of the Federal Food, Drug, and Cosmetic Act (the act), which provides that the Food and Drug Administration may require a manufacturer to adopt a method of tracking a class II or class III device, if the device meets one of the following three criteria and FDA issues an order to the manufacturer: the failure of the device would be reasonably likely to have serious adverse health consequences; or the device is intended to be implanted in the human body for more than 1 year; or the device is a life-sustaining or life-supporting device used outside a device user facility. A device that meets one of these criteria and is the subject of an FDA order must comply with this part and is referred to, in this part, as a “tracked device.”
(b) These regulations are intended to ensure that tracked devices can be traced from the device manufacturing facility to the person for whom the device is indicated, that is, the patient. Effective tracking of devices from the manufacturing facility, through the distributor network (including distributors, retailers, rental firms and other commercial enterprises, device user facilities, and licensed practitioners) and, ultimately, to the patient is necessary for the effectiveness of remedies prescribed by the act, such as patient notification (section 518(a) of the act) or device recall (section 518(e) of the act). Although these regulations do not preclude a manufacturer from involving outside organizations in that manufacturer’s device tracking effort, the legal responsibility for complying with this part rests with manufacturers who are subject to tracking orders, and that responsibility cannot be altered, modified, or in any way abrogated by contracts or other agreements.
3. Section 821.2
4. Section 821.3 is amended by revising paragraphs (b) and (f) to read as follows:
(b)
(f)
5. Section 821.20 is revised to read as follows:
(a) A manufacturer of any class II or class III device that fits within one of the three criteria within § 821.1(a) must track that device in accordance with this part, if FDA issues a tracking order to that manufacturer.
(b) When responding to premarket notification submissions and remarket approval applications, FDA will notify the sponsor by issuing an order that states that FDA believes the device meets the criteria of section 519(e)(1) of the act and, by virtue of the order, the sponsor must track the device.
6. Section 821.25 is amended by revising the introductory text of paragraph (a)(2), paragraph (a)(2)(iii), the introductory text of paragraph (a)(3), and paragraph (a)(3)(iv) to read as follows:
(a) * * *
(2) Within 10 working days of a request from FDA for tracked devices that are intended for use by a single patient over the life of the device, after distribution to or implantation in a patient:
(iii) The name, address, telephone number, and social security number (if available) of the patient receiving the device, unless not released by the patient under § 821.55(a);
(3) Except as required by order under section 518(e) of the act, within 10 working days of a request from FDA for tracked devices that are intended for use by more than one patient, after the distribution of the device to the multiple distributor:
(iv) The name, address, telephone number, and social security number (if available) of the patient using the device, unless not released by the patient under § 821.55(a);
7. Section 821.30
8. Section 821.55 is amended by redesignating paragraphs (a) and (b) as paragraphs (b) and (c), respectively, and by adding a new paragraph (a) to read as follows:
(a) Any patient receiving a device subject to tracking requirements under this part may refuse to release, or refuse permission to release, the patient's name, address, telephone number, and social security number, or other identifying information for the purpose of tracking.
Environmental Protection Agency (EPA).
Final rule; correction.
On August 20, 2001, EPA published a direct final action approving revisions to the 1-hour ozone maintenance state implementation plan (SIP) for Marshall and a portion of Livingston Counties, Kentucky (the Paducah area). Those revisions were incorporated by reference into the Kentucky SIP by adding an entry to the table “EPA-Approved Kentucky Nonregulatory Provisions” contained in the Code of Federal Regulations (CFR). Today's document makes corrections that affect two entries in that table.
This final rule is effective on February 8, 2002.
Lynorae Benjamin, Air Quality Modeling and Transportation Planning Section, Air Planning Branch, U.S. Environmental Protection Agency Region 4, 61 Forsyth Street, SW, Atlanta, Georgia 30303-8960, 404/562-9040, (
On August 20, 2001 (66 FR 43488), EPA published a direct final action approving revisions to the 1-hour ozone maintenance SIP for the Paducah area, Kentucky. Those revisions were incorporated by reference into the Kentucky SIP by adding the entry “Appendix 21” to the table “EPA-Approved Kentucky Nonregulatory Provisions” that is contained in 40 CFR 52.920(e). On October 23, 2001, (66 FR 53662) EPA took final action to approve negative declarations for four control techniques guideline categories for a portion of the Louisville area. These revisions were also incorporated by reference as “Appendix 21” to the above-mentioned table. Thus, two different revisions were mistakenly incorporated by reference as the same entry to this table. In addition, the original Paducah area maintenance plan was approved as “Appendix 14” of this same table. The title/subject of “Appendix 14” was also mistakenly identified as “Maintenance Plan for Pudach Area.” Today's document makes all the necessary corrections to this table by revising the entry “Appendix 14” as follows. The subject/title is corrected to read “Maintenance Plan for the Paducah Area.” The State effective date, EPA approval date, and
Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). This action merely corrects an incorrect federal citation for a previous action and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
This action also does not have tribal implications because it will not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). This action also does not have Federalism implications because it does not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). This action merely corrects a federal citation of 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 (CAA). This action also is not subject to Executive Order 13045 “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), because it is not economically significant.
In addition, since this action is only correcting a federal citation for a SIP submission that has already been approved by EPA, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. This action does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
The Congressional Review Act, 5 U.S.C. 801
Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by April 9, 2002. 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, Carbon monoxide, Intergovernmental relations, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements, Volatile Organic Compounds.
42 U.S.C. 7401
(e) * * *
Environmental Protection Agency (EPA).
Final rule.
EPA is approving a State Implementation Plan (SIP) revision submitted by the State of West Virginia. This revision amends West Virginia's ten-year plan to maintain the national ambient air quality standard (NAAQS) for ozone in the Huntington-Ashland area (the maintenance plan). The intended effect of this action is to approve amendments to the maintenance plan that implement contingency measures in response to recorded violations of the 1-hour ozone NAAQS, and that revise the motor vehicle emission sub-regional budgets for the West Virginia counties (Cabell and Wayne) that are located in the Huntington-Ashland area. This action is being taken under the Clean Air Act (the Act).
This final rule is effective on March 11, 2002.
Copies of the documents relevant to this action are available for public inspection during normal business hours at the Air Protection Division, U.S. Environmental Protection Agency, Region III, 1650 Arch Street, Philadelphia, Pennsylvania 19103; the Air and Radiation Docket and Information Center, U.S. Environmental Protection Agency, 401 M Street, SW, Washington, DC 20460; and the West Virginia Department of Environmental Protection, Division of Air Quality, 7012 MacCorkle Avenue, S.E., Charleston, West Virginia 25304-2943.
Christopher Cripps, (215) 814-2179, or via e-mail at cripps.christopher@epa.gov.
On November 27, 2001 (66 FR 59205), EPA published a notice of proposed rulemaking (NPR) for the State of West Virginia. The NPR proposed approval of a State Implementation Plan (SIP) revision submitted by the State of West Virginia. This revision amends West Virginia's 1-hour ozone maintenance plan for the Huntington-Ashland area. These maintenance plan amendments implement contingency measures in response to recent recorded violations of the 1-hour ozone NAAQS, and revise the motor vehicle emission sub-regional budgets for the West Virginia counties (Cabell and Wayne) that are located in the Huntington-Ashland area. The State of West Virginia submitted the formal SIP revision on November 29, 2001 with a supplement on December 18, 2001.
This revision was proposed under a procedure called parallel processing, whereby EPA proposes rulemaking action concurrently with the state's procedures for amending its SIP. On September 25, 2001, the West Virginia Department of Environmental Protection (WVDEP) submitted a request that EPA parallel process revisions to the West Virginia SIP's 1-hour ozone maintenance plan for the Huntington-Ashland area. Under parallel processing, if the state's final submission is not substantially changed, EPA can publish a final rulemaking notice without publishing another notice of proposed rulemaking. On November 29, 2001 with a supplement on December 18, 2001, West Virginia submitted the adopted amendments to the maintenance plan which contained no substantive changes from that on which EPA proposed approval in the November 27, 2001 notice of proposed rulemaking.
Other specific requirements of the amendments to West Virginia's maintenance plan for the Huntington-Ashland area and the rationale for EPA's proposed action are explained in the NPR and will not be restated here. No public comments were received on the NPR.
EPA is approving amendments to West Virginia's maintenance plan for the Huntington-Ashland area that implement contingency measures and that revise the motor vehicle emission sub-budgets for the West Virginia counties (Cabell and Wayne) in this area as a revision to the West Virginia SIP.
Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). This action merely approves state law as meeting Federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because this rule approves pre-existing requirements under state law and does not impose any additional enforceable duty beyond that required by state law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Public Law 104-4). This rule also does not have tribal implications because it will not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). This action also does not have Federalism implications because it does not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). This action merely approves a state rule implementing a Federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. This rule also is not subject to Executive Order 13045 “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), because it is not economically significant.
In reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. In this context, in the absence of a prior existing requirement for the State to use voluntary consensus standards (VCS), EPA has no authority to disapprove a SIP submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a SIP submission, to use VCS in place of a SIP submission that otherwise satisfies the provisions of the Clean Air Act. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
The Congressional Review Act, 5 U.S.C. 801
Under section 307(b)(1) of the 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 April 9, 2002. 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 to approve revisions to West Virginia's 1-hour ozone maintenance plan for the Huntington-Ashland area may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)
Environmental protection, Air pollution control, Carbon monoxide, Incorporation by reference, Intergovernmental relations, Nitrogen dioxide, Ozone, Reporting and recordkeeping requirements.
42 U.S.C. 7401
(c) * * *
(45) Revisions to the West Virginia Regulations amending the ten-year maintenance plan for Huntington, West Virginia (Cabell and Wayne Counties) submitted on November 29, 2001 and December 18, 2001 by the West Virginia Department of Environmental Protection:
(i) Incorporation by reference.
(A) Letter of November 29, 2001 from the West Virginia Department of Environmental Protection transmitting amendments to the ten-year maintenance plan for Huntington, West Virginia (Cabell and Wayne Counties).
(B) Letter of December 18, 2001 from the West Virginia Department of Environmental Protection transmitting amendments to the ten-year maintenance plan for Huntington, West Virginia (Cabell and Wayne Counties).
(C) Amendments to the Huntington, West Virginia (Cabell and Wayne Counties) ozone maintenance plan submitted by the West Virginia Department of Environmental Protection effective November 16, 2001. This plan establishes motor vehicle emissions budgets for VOCs of 11.20 tons/day for 2002, and 11.00 tons/day for 2005. This plan also establishes motor vehicle emissions budgets for NO
(ii) Additional Material.—Remainder of the November 29, 2001 and December 18, 2001 submittals pertaining to the revisions to the West Virginia Regulations amending the ten-year maintenance plan for Huntington, West Virginia (Cabell and Wayne Counties) revisions.
Environmental Protection Agency (EPA).
Notice of deletion for the White Bridge Road property of the Asbestos Dump Superfund Site from the National Priorities List.
The Environmental Protection Agency (EPA) announces the deletion of the White Bridge Road property of the Asbestos Dump Superfund Site (Site) from the National Priorities List (NPL). The Asbestos Dump Site is listed on the NPL as being located in Millington, New Jersey; however, the portion of the Site which is the subject of this deletion, the White Bridge Road property, is located in Long Hill Township, New Jersey. The NPL is appendix B of 40 CFR part 300 which is the National Oil and Hazardous Substances Pollution Contingency Plan (NCP), which EPA promulgated pursuant to section 105 of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA), as amended. EPA and the New Jersey Department of Environmental Protection have determined that all appropriate Fund-financed responses under CERCLA, as amended, have been implemented at the White Bridge Road property of the Asbestos Dump Site and that no further response action by responsible parties is appropriate. This partial deletion pertains only to the White Bridge Road property and does not include the other properties which make up the Asbestos Dump Site, which remain on the NPL.
February 8, 2002.
Kim O'Connell, Chief, Southern New Jersey Remediation Section, U.S. Environmental Protection Agency, Region II, 290 Broadway—19th Floor, New York, NY 10007-1866, (212) 637-4399.
To be deleted from the NPL is: the White Bridge Road property of the Asbestos Dump Superfund Site, Long Hill Township, New Jersey. A Notice of Intent to Delete for this portion of the Asbestos Dump Site was published in the
Environmental protection, Air pollution control, Chemicals, Hazardous substances, Hazardous waste, Intergovernmental relations, Penalties, Reporting and recordkeeping requirements, Superfund, Water pollution control, Water supply.
42 U.S.C. 9601-9657; 33 U.S.C. 1321(c)(2); E.O. 12777, 56 FR 54757, 3 CFR 1991 Comp., p.351; E.O. 12580, 52 FR 2923; 3 CFR, 1987 Comp., p. 193.
Federal Communications Commission.
Final rule; petitions for reconsideration.
In July 2001, the Commission published three documents asking parties to refresh the record regarding petitions for reconsideration of the
Richard D. Smith, Attorney, Common Carrier Bureau, Accounting Policy Division, (202) 418-7400.
This is a summary of the Commission's Order in CC Docket Nos. 96-45 and 97-21 released on December 7, 2001. The full text of this document is available for public inspection during regular business hours in the FCC Reference Center, Room CY-A257, 445 Twelfth Street, SW., Washington, DC 20554.
1. In this Order, we grant the request of several petitioners to withdraw petitions for reconsideration filed in CC Docket Nos. 96-45 and 97-21.
2. To the extent that parties have requested to withdraw petitions for reconsideration to various universal service orders, we hereby grant the requests as set forth below.
3. Pursuant to the authority contained in section 405 of the Communications Act of 1934, as amended, and §§ 0.291 and 1.429 of the Commission's rules, the requests to withdraw petitions for reconsideration in CC Docket No. 96-45 and 97-21, as set forth, are granted.
Federal Communications Commission.
Final rule.
This document denies a petition for rule making filed by H. David Hedrick (RM-10028), proposing the allotment of FM Channel 245A to Butler, Georgia.
Effective March 11, 2002. A filing window for Channel *245A at Reynolds, Georgia, will not be opened at this time. Instead, the issue of opening this allotment for application will be addressed by the Commission in a subsequent Order.
Nancy Joyner, Mass Media Bureau, (202) 418-2180.
This is a synopsis of the Commission's Report and Order, MM Docket No. 01-5, adopted January 16, 2002, and released January 25, 2002. The full text of this Commission decision is available for inspection and copying during normal business hours in the FCC's Reference Information Center (Room CY-A257), 445 12th Street, SW., Washington, DC. The complete text of this decision may also be purchased from the Commission's copy contractor, Qualtex International, Portals II, 445 12th Street, SW., Room CY-B402, Washington, DC 20554, telephone (202) 863-2893.
Radio broadcasting.
Part 73 of title 47 of the Code of Federal Regulations is amended as follows:
47 U.S.C. 154, 303, 334, and 336.
Federal Aviation Administration, DOT.
Notice of proposed rulemaking (NPRM).
This document proposes the supersedure of an existing airworthiness directive (AD), applicable to certain Bombardier Model CL-215-1A10 and CL-215-6B11 series airplanes, that currently requires repetitive inspections to detect cracking on certain wing-to-fuselage frame angles; and repair, if necessary. This action would decrease the compliance time for the initial inspection to detect cracking on certain wing-to-fuselage frame angles and would decrease the interval between repetitive inspections. This proposal is prompted by issuance of mandatory continuing airworthiness information by a foreign civil airworthiness authority. The actions specified by the proposed AD are intended to detect and correct cracking in the wing-to-fuselage frame angles, which could result in reduced structural integrity of the airframe.
Comments must be received by March 11, 2002.
Submit comments in triplicate to the Federal Aviation Administration (FAA), Transport Airplane Directorate, ANM-114, Attention: Rules Docket No. 2000-NM-398-AD, 1601 Lind Avenue, SW., Renton, Washington 98055-4056. Comments may be inspected at this location between 9 a.m. and 3 p.m., Monday through Friday, except Federal holidays. Comments may be submitted via fax to (425) 227-1232. Comments may also be sent via the Internet using the following address:
The service information referenced in the proposed rule may be obtained from Bombardier, Inc., Canadair, Aerospace Group, P.O. Box 6087, Station Centre-ville, Montreal, Quebec H3C 3G9, Canada. This information may be examined at the FAA, Transport Airplane Directorate, 1601 Lind Avenue, SW., Renton, Washington; or at the FAA, Engine and Propeller Directorate, New York Aircraft Certification Office, 10 Fifth Street, Third Floor, Valley Stream, New York 11581.
Serge Napoleon, Aerospace Engineer, Airframe and Propulsion Branch, ANE-171, FAA, Engine and Propeller Directorate, New York Aircraft Certification Office, 10 Fifth Street, Third Floor, Valley Stream, New York 11581; telephone (516) 256-7512; fax (516) 568-2716.
Interested persons are invited to participate in the making of the proposed rule by submitting such written data, views, or arguments as they may desire. Communications shall identify the Rules Docket number and be submitted in triplicate to the address specified above. All communications received on or before the closing date for comments, specified above, will be considered before taking action on the proposed rule. The proposals contained in this action may be changed in light of the comments received.
Submit comments using the following format:
• Organize comments issue-by-issue. For example, discuss a request to change the compliance time and a request to change the service bulletin reference as two separate issues.
• For each issue, state what specific change to the proposed AD is being requested.
• Include justification (e.g., reasons or data) for each request.
Comments are specifically invited on the overall regulatory, economic, environmental, and energy aspects of the proposed rule. All comments submitted will be available, both before and after the closing date for comments, in the Rules Docket for examination by interested persons. A report summarizing each FAA-public contact concerned with the substance of this proposal will be filed in the Rules Docket.
Commenters wishing the FAA to acknowledge receipt of their comments submitted in response to this action must submit a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket Number 2000-NM-398-AD.” The postcard will be date stamped and returned to the commenter.
Any person may obtain a copy of this NPRM by submitting a request to the FAA, Transport Airplane Directorate, ANM-114, Attention: Rules Docket No. 2000-NM-398-AD, 1601 Lind Avenue, SW., Renton, Washington 98055-4056.
On July 23, 1999, the FAA issued AD 99-16-04, amendment 39-11239 (64 FR 41775, August 2, 1999), applicable to certain Bombardier Model CL-215-1A10 and CL-215-6B11 series airplanes, to require repetitive inspections to detect cracking on certain wing-to-fuselage frame angles, and repair, if necessary. The requirements of that AD are intended to detect and correct cracking in the wing-to-fuselage frame angles, which could result in reduced structural integrity of the airframe.
Since the issuance of that AD, Transport Canada Civil Aviation (TCCA), the Canadian civil airworthiness authority, has informed the FAA that cracks on the wing-to-fuselage frame angles have been found in three in-service CL-215T series airplanes. The cracking, which is due to structural fatigue, has occurred much sooner than had been anticipated. The wing-to-fuselage frame angles were found to be affected by the number of times the pilot scoops down to get water to drop onto a fire, referred to in this AD as the number of “total water drops.” Cracking of the wing-to-fuselage frame
Bombardier has issued Alert Service Bulletin 215-A476, Revision 4, dated August 18, 2000, which describes procedures for an eddy current inspection of fasteners on the front and rear spar frame angles and for reporting results of the inspection, negative or positive, to Bombardier. Accomplishment of the actions specified in the service bulletin is intended to adequately address the identified unsafe condition. The TCCA classified this service bulletin as mandatory and issued Canadian airworthiness directive CF-1997-07R2, dated August 17, 2000, in order to assure the continued airworthiness of these airplanes in Canada.
These airplane models are manufactured in Canada and are type certificated for operation in the United States under the provisions of section 21.29 of the Federal Aviation Regulations (14 CFR 21.29) and the applicable bilateral airworthiness agreement. Pursuant to this bilateral airworthiness agreement, the TCCA has kept the FAA informed of the situation described above. The FAA has examined the findings of TCCA, reviewed all available information, and determined that AD action is necessary for products of this type design that are certificated for operation in the United States.
Since an unsafe condition has been identified that is likely to exist or develop on other airplanes of the same type design registered in the United States, the proposed AD would supersede AD 99-16-04 to require an additional trigger for the initial (and the repetitive) inspections for cracks of the wing-to-fuselage frame angles. That trigger—the total number of water drops—has been added, because water drops have been found to be associated with cracking of the wing-to-fuselage frame angles. Adding this trigger is likely to decrease the time before an initial inspection is required and to shorten the interval between repetitive inspections. The actions would be required to be accomplished in accordance with the service bulletin described previously.
There is one airplane of U.S. registry that would be affected by this proposed AD.
The inspections that are currently required by AD 99-16-04 take approximately 2 work hours 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 $120 per airplane, per inspection cycle.
The inspections that are proposed in this AD action would take approximately 3 work hours per airplane to accomplish, at an average labor rate of $60 per work hour. Based on these figures, the cost impact of the proposed requirements of this AD on U.S. operators is estimated to be $180 per airplane, per inspection cycle.
The cost impact figures discussed above are based on assumptions that no operator has yet accomplished any of the current or proposed requirements of this AD action, and that no operator would accomplish those actions in the future if this AD were not adopted.
The regulations proposed herein would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, it is determined that this proposal would not have federalism implications under Executive Order 13132.
For the reasons discussed above, I certify that this proposed regulation (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and (3) if promulgated, will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. A copy of the draft regulatory evaluation prepared for this action is contained in the Rules Docket. A copy of it may be obtained by contacting the Rules Docket at the location provided under the caption
Air transportation, Aircraft, Aviation safety, Safety.
Accordingly, pursuant to the authority delegated to me by the Administrator, the Federal Aviation Administration proposes to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) as follows:
1. The authority citation for part 39 continues to read as follows:
49 U.S.C. 106(g), 40113, 44701.
2. Section 39.13 is amended by removing amendment 39-11239 (64 FR 41775, August 2, 1999), and by adding a new airworthiness directive (AD), to read as follows:
Docket 2000-NM-398-AD. Supersedes AD 99-16-04, Amendment 39-11239.
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 (g) 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 detect and correct cracking in the wing-to-fuselage frame angles, which could result in reduced structural integrity of the airframe, accomplish the following:
(a) Perform an eddy current inspection to detect cracking of the fuselage frame angles at the wing front and rear spar attachment to the fuselage at the later of the times specified in paragraphs (a)(1) and (a)(2) of this AD, in accordance with Bombardier Alert Service Bulletin ASB 215-A476, Revision 3, dated August 21, 1998. Thereafter, repeat the inspection at intervals not to exceed 415 flight hours.
(1) Prior to the accumulation of 2,300 total flight hours.
(2) Within 150 flight hours or 4 months after September 7, 1999 (the effective date of AD 99-16-04), whichever occurs first.
Accomplishment of the eddy current inspections of the lower surfaces of the frame angles conducted in accordance with Bombardier Alert Service Bulletin ASB 215-A476, Revision 1, dated January 14, 1997, or ASB 215-A476, Revision 2, dated June 15, 1998, prior to the effective date of this AD, is considered to be acceptable for compliance with the requirements of paragraph (a) of this AD for that area only.
(b) If the results of any inspection required by paragraph (a) of this AD are outside the limits specified in paragraph 2.C.(7) of Bombardier Alert Service Bulletin ASB 215-A476, Revision 3, dated August 21, 1998, or ASB 215-A476, Revision 4, dated August 18, 2000: Prior to further flight, repair in accordance with a method approved by the Manager, New York Aircraft Certification Office (ACO), FAA.
(c) Unless paragraph (a) of this AD has been accomplished, perform an eddy current inspection to detect cracking of the fuselage frame angles at the wing front and rear spar attachment to the fuselage at the later of the times specified in paragraphs (c)(1) and (c)(2) of this AD, in accordance with Bombardier Alert Service Bulletin 215-A476, Revision 4, dated August 18, 2000.
(1) Prior to the accumulation of 2,300 total flight hours or 7,500 total water drops, whichever occurs first.
(2) Within 60 days after the effective date of this AD.
(d) Perform an eddy current inspection to detect cracking of the fuselage frame angles at the wing front and rear spar attachment to the fuselage, in accordance with Bombardier Alert Service Bulletin 215-A476, Revision 4, dated August 18, 2000, at intervals not to exceed 415 flight hours or 1,500 water drops, whichever occurs first.
(e) If the results of any inspection required by paragraph (c) or (d) of this AD are outside the limits specified in paragraph 2.C.(7) of Bombardier Alert Service Bulletin ASB 215-A476, Revision 4, dated August 18, 2000: Prior to further flight, repair in accordance with a method approved by the Manager, New York Aircraft Certification Office (ACO), FAA.
(f) Within 10 days after performing any inspection required by paragraph (a), (c), or (d) of this AD: Report the findings, positive or negative, to Bombardier Inc., Amphibious Aircraft Division, Customer Support, Department 645, Attention: Manager of Technical Support, Fax Number (514) 855-7602. Information collection requirements contained in this AD 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
(g) 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, New York ACO. Operators shall submit their requests through an appropriate FAA Principal Maintenance Inspector, who may add comments and then send it to the Manager, New York ACO.
Information concerning the existence of approved alternative methods of compliance with this AD, if any, may be obtained from the New York ACO.
(h) 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.
The subject of this AD is addressed in Canadian airworthiness directive CF-1997-07R2, dated August 17, 2000.
Postal Service.
Proposed rule; correction.
This document corrects a proposed rule published in the
Comments on the corrected proposed rule must be received on or before March 1, 2002.
Anne Emmerth, 703-292-3641.
This document corrects a proposed rule published by the Postal Service in the
1. Page 4563, column 2, first paragraph under item 2: Replace the entire paragraph with the following: “For automation cards and letters, the current rate structure contains a 5-digit, 3-digit, and basic rate. The proposed rate structure would split the basic rate into an automated area distribution center (AADC) rate (for all pieces in an AADC tray) and a mixed AADC rate (for all pieces in a mixed AADC tray). The AADC rate also would apply to pieces in a less-than-full origin 3-digit tray. There are no proposed sortation changes for automation cards and letters. The 5-digit sort level would still be optional; all other sort levels would be required.”
2. Page 4567, column 1, last paragraph (beginning with “Mailers would not be permitted * * *”): The first sentence is correct. The remaining sentences in that paragraph are not correct and should be deleted.
3. Page 4567, column 3, fourth full paragraph: Replace the entire paragraph with the following: “This change would not apply to pieces mailed at the ECR basic letter rate (because the letter and nonletter rates are the same, there would be no discount to subtract).”
4. Page 4578, column 3, section E130.2.2, “Keys and Identification Devices”: Replace the entire paragraph with the following: “Keys and identification devices (identification cards or uncovered identification tags) that weigh 13 ounces or less are mailed at the applicable single-piece letter rate plus the fee in R100.10.0 and, if applicable, the nonmachinable surcharge. The keys and identification devices must bear, contain, or have securely attached the name and complete address of a person, organization, or concern, with instructions to return the piece to that address and a statement guaranteeing payment of postage due on delivery.”
5. Page 4580, column 3, section E217.5.5, “Destination Entry Per Piece Pallet”: Replace the first sentence with the following: “The destination entry per-piece pallet discount applies to each addressed piece of nonletter-size mail (flats and irregular parcels) prepared in packages on any destination entry pallet.”
6. Page 4583, column 3, section E630.4.2, “Letter-Size Pieces”: Replace the last sentence of the paragraph with the following: “Pieces not meeting the standards in this section may be mailed at the saturation nonletter rate or at the basic letter rate.”
7. Page 4587, column 1, section F010.5.3g: For the weighted fee, the nonmachinable surcharge is added to the postage due and then multiplied by the factor. Replace the entire paragraph with the following: “g. A weighted fee is charged when an unforwardable or undeliverable piece is returned to the sender and the piece is endorsed “Address Service Requested” or “Forwarding Service Requested.” The weighted fee is the single-piece First-Class Mail or Priority Mail rate applicable for the weight of the piece, plus the nonmachinable surcharge if it applies (see E130), multiplied by 2.472 and rounded up to the next whole cent (if the computation yields a fraction of a cent). The weighted fee is computed (and rounded if necessary) for each piece individually. Using “Address Service Requested” or “Forwarding Service Requested” obligates the sender to pay the weighted fee on all returned pieces.”
8. Page 4590, under the heading “Enhanced Carrier Route Letters—Nonautomation (Not Barcoded but Machinable)”: For 3-digit carrier routes trays, the content identifier number is 568.
9. Page 4596, column 3, section M730.4.1, “Sacking”: Replace the first sentence of the paragraph with the following: “A sack must be prepared when the quantity of mail for a required presort destination reaches 10 addressed pieces or 20 pounds, whichever occurs first.”
10. Page 4598, column 1, section M740.4.1, “Required Sacking”: Replace the first sentence of the paragraph with the following: “A sack must be prepared when the quantity of mail for a required presort destination reaches 10 addressed pieces or 20 pounds, whichever occurs first.”
11. Page 4612, section R200.1.2, “Outside County Piece Rates”: The 5-digit nonautomation rate is $0.256.
12. Page 4613, section R200.2.2, “Outside County Science-of-Agriculture Piece Rates”: The 5-digit nonautomation rate is $0.256.
Federal Communications Commission.
Proposed rule.
This document proposes new allotments to Ash Fork, AZ; Bunnell, FL; and Ketchum, ID. The Commission requests comments on a petition filed on behalf of Liberty Ventures, III, LLC, proposing the allotment of Channel 285A at Ash Fork, Arizona, as the community's first local aural transmission service. Channel 285A can be allotted to Ash Fork in compliance with the Commission's minimum distance separation requirements with a site restriction of 13.6 kilometers (8.4 miles) west of Ash Fork, Arizona. The coordinates for Channel 285A at Ash Fork, are 35-12-27 North Latitude and 112-37-49 West Longitude. The Commission requests comments on a petition filed on behalf of Chesapeake-Portsmouth Broadcasting Corporation, proposing the allotment of Channel 254A at Bunnell, Florida, as the community's first local aural transmission service. Channel 254A can be allotted to Bunnell in compliance with the Commission's minimum distance separation requirements with a site restriction of 9.8 kilometers (6.1 miles) east of Bunnell. The coordinates for Channel 254A at Bunnell are 29-29-38 North Latitude and 81-09-45 West Longitude. The Commission requests comments on a petition filed by Best Ski Country Radio proposing the allotment of Channel 224A at Ketchum, Idaho, as that community's second local aural transmission service. Channel 224A can be allotted to Ketchum in compliance with the Commission's minimum distance separation requirements with a site restriction of 3.6 kilometers (2,2 miles) northwest of Ketchum. The coordinates for Channel 224A at Ketchum are 43-41-58 North Latitude and 114-23-55 West Longitude.
Comments must be filed on or before March 18, 2002, and reply comments on or before April 2, 2002.
Federal Communications Commission, Washington, D.C., 20554. In addition to filing comments with the FCC, interested parties should serve the petitioners, as follows: Scott C. Cinnamon, Law Offices of Scott C. Cinnamon, PLLC; 1090 Vermont Ave., Suite 800; Washington, 20005. (Counsel for petitioner for Ash Fork, Arizona); James P. Riley and Anne Goodwin Crump, Fletcher, Heald & Hildreth, P.L.C.; 1300 North 17th Street, Eleventh Floor; Arlington, Virginia 22209 (Counsel for petitioner for Bunnell, Florida); and Walter A. Sanders, Jr., Best Ski Country Radio; 28 Union Creek Road; Tylertown, Mississippi 39667 (Petitioner for Ketchum, Idaho).
R. Barthen Gorman, Mass Media Bureau, (202) 418-2180.
This is a synopsis of the Commission's Notice of Proposed Rule Making, MM Docket No. 02-12; MM Docket No. 02-13; and MM Docket No. 02-14, adopted January 16, 2002, and released January 25, 2002. The full text of this document is available for public inspection and copying during regular business hours in the FCC Reference Information Center, Portals II, 445 12th Street, SW., Room CY-A257, Washington, DC, 20554. This document may also be purchased from the Commission's duplicating contractor, Qualex International, Portals II, 445 12th Street, SW, Room CY-B402, Washington, DC, 20554, telephone 202-863-2893, facsimile 202-863-2898, or via e-mail
Provisions of the Regulatory Flexibility Act of 1980 do not apply to this proceeding.
Members of the public should note that from the time a Notice of Proposed Rule Making is issued until the matter is no longer subject to Commission consideration or court review, all
For information regarding proper filing procedures for comments, see 47 CFR 1.415 and 1.420.
Radio broadcasting.
For the reasons discussed in the preamble, the Federal Communications Commission proposes to amend 47 CFR Part 73 as follows:
1. The authority citation for Part 73 continues to read as follows:
47 U.S.C. 154, 303, 334, and 336.
1. Section 73.202(b), the Table of FM Allotments under Arizona, is amended by adding Ash Fork, Channel 285A.
2. Section 73.202(b), the Table of FM Allotments under Florida, is amended by adding Bunnell, Channel 254A.
3. Section 73.202(b), the Table of FM Allotments under Idaho, is amended by adding Channel 224A at Ketchum.
Federal Communications Commission.
Proposed rule.
The Commission requests comments on a petition filed by
Comments must be filed on or before March 18, 2002, reply comments on or before April 2, 2002.
Federal Communications Commission, Washington, DC 20554. In addition to filing comments with the FCC, interested parties should serve the petitioner, or its counsel or consultant, as follows: Christopher D. Ornelas, Esq., Wilkin, Barker, Knauer, LLP, 2300 N Street, NW., Suite 700, Washington, DC 20037.
Sharon P. McDonald, Mass Media Bureau, (202) 418-2180.
This is a synopsis of the Commission's Notice of Proposed Rule Making, MM Docket No. 02-15, adopted January 16, 2002, and released January 25, 2002. The full text of this Commission decision is available for inspection and copying during normal business hours in the FCC Reference Information Center (Room CY-A257), 445 12th Street, SW., Washington, DC. The complete text of this decision may also be purchased from the Commission's copy contractor, International Transcription Service, Inc., (202) 857-3800, 1231 20th Street, NW., Washington, DC 20036.
Provisions of the Regulatory Flexibility Act of 1980 do not apply to this proceeding.
Members of the public should note that from the time a Notice of Proposed Rule Making is issued until the matter is no longer subject to Commission consideration or court review, all
Radio broadcasting.
For the reasons discussed in the preamble, the Federal Communications Commission proposes to amend 47 CFR Part 73 as follows:
1. The authority citation for part 73 continues to read as follows:
47 U.S.C. 154, 303, 334 and 336.
2. Section 73.202(b), the Table of FM Allotments under Oklahoma, is amended by removing Okmulgee, Channel 231C1 and adding Glenpool, Channel 231C1.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of availability; request for comments.
NMFS has prepared a report that summarizes the results of the scoping process to date for a comprehensive environmental impact statement (EIS) on Federal management of the Pacific Coast Groundfish Fishery. As a result of public comments received during the scoping process, NMFS has improved its approach to the EIS through development of an enhanced description of the purpose and need for NMFS action, a clear identification of significant issues related to the proposed action, and a distinction of certain elements of the proposed action related to essential fish habitat (EFH) from the broader management program for Pacific groundfish. To avoid confusion as a result of this distinction, NMFS will prepare two separate EISs. The intent of this document is to announce the availability of the scoping summary and to describe the rationale for preparing two EISs.
Written comments will be accepted on or before March 11, 2002.
Copies of the scoping report may be obtained during business hours at the office of the NMFS Northwest Regional Administrator. The scoping report is also available on the NMFS, Northwest Region's website at
Written comments on the scoping report should be submitted to D. Robert Lohn, Northwest Regional Administrator, NMFS, 7600 Sand Point Way N.E., Bin C15700, Bldg. 1, Seattle, WA, 98115-0070. Comments also may be sent via facsimile (fax) to 206-526-6737. Comments will not be accepted if submitted via e-mail or the internet.
Steve Copps, Northwest Region, NMFS, 206-526-6187; fax: 206-526-6426 and e-mail:
This notice of availability is also accessible via the internet at the Office of the
NMFS has concluded the initial scoping process for an EIS on the Federal management of the Pacific Coast Groundfish Fishery and has published a summary report. Scoping was initiated on April 10, 2001, through publication of a Notice of Intent (66 FR 18586). The report was initially published on the NMFS, Northwest Region website in August, 2001, to provide a summary of all comments received and key issues identified during the scoping process. In contemplation of these comments and issues, NMFS has taken advantage of the scoping process to clarify the purpose and need for Federal action and to revise the scope of analysis. This clarification will result in the preparation of two separate EISs. One EIS will be a broad analysis of the Federal management program, and the other will be specific to the designation of EFH and associated management measures, including measures to reduce effects of fishing on EFH. NMFS believes this separation will improve public understanding and participation in the National Environmental Policy Act (NEPA) process, make each EIS more useful in future management decisions, and, more clearly, distinguish between programmatic and specific EFH issues. NMFS' goals in preparing these EISs are as follows:
NMFS is proposing to continue authorization and management of the Pacific Coast Groundfish Fishery pursuant to the Pacific Coast Groundfish Fishery Management Plan (FMP). In order to ensure this action complies with the requirements of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) and other legal requirements, NMFS has initiated an EIS on the FMP.
The Pacific Fishery Management Council (Council) prepared the original FMP and EIS in the late 1970s, and NMFS implemented the FMP in 1982. Since then, the Council has amended the FMP 13 times in response to development of the commercial and recreational groundfish fisheries, changes in the groundfish resources, and amendments to the Magnuson-Stevens Act. NMFS has initiated this EIS to update the original EIS to reflect changes in the fishery and to evaluate the impacts of the Federal groundfish management program on the human environment, including the marine fish resources, the physical ocean environment and ecosystem, and human society.
Additional long-term direction for the fishery was provided in October 2000 when the Council adopted the Groundfish Fishery Strategic Plan - “Transition to Sustainability.” The Strategic Plan recommends significant changes in the management and structure of the groundfish fishery.
The EIS will be a broad analysis of the entire management program, including alternative management strategies not currently in place. As a “programmatic” EIS, it will analyze the impacts of alternative management policies and regulations on the human environment. NMFS envisions that future FMP amendments and regulations will address discrete issues and that subsequent analyses will be of narrower scope. Those action-specific FMP or regulatory amendments will tier off this programmatic EIS as defined by the Council on Environmental Quality (40 CFR 1508.25).
NMFS is proposing to amend the FMP to comply with section 303(a)(7) of the Magnuson-Stevens Act. More specifically, the purpose is to identify and describe EFH for each managed species, to identify habitat areas of particular concern (HAPCs) within EFH, if appropriate, and to minimize, to the extent practicable, adverse effects on EFH caused by fishing. These actions are being undertaken to ensure the conservation and enhancement of EFH as required under the Magnuson-Stevens Act and to comply with an order by the U.S. District Court for the District of Columbia.
Pursuant to the Magnuson-Stevens Act and the EFH regulations (50 CFR part 600, subpart J), the eight Fishery Management Councils submitted fishery management plan amendments and associated environmental assessments (EAs), as required under NEPA, to NMFS for Secretarial review. NMFS approved or partially approved all the EFH fishery management plan amendments in accordance with section 304(a) of the Magnuson-Stevens Act. Subsequently, a coalition of seven environmental groups and two fishermen's associations brought suit challenging NMFS' approval of certain EFH amendments prepared by the Gulf of Mexico, Caribbean, New England, North Pacific, and Pacific Fishery Management Councils (
The U.S. District Court for the District of Columbia found that the agency's decisions on the subject EFH amendments were in accordance with the Magnuson-Stevens Act, but found that the EAs for the Councils' amendments were inadequate and in violation of NEPA. The Court determined that the EAs prepared for the EFH provisions of the fishery management plans did not fully consider all relevant alternatives. The Court specifically criticized several of the EAs for evaluating only two options for the EFH amendments: either the approval of the amendment or the status quo. Additionally, the decision noted that the descriptions and analyses of the environmental impacts of the proposed actions and alternatives were vague or not fully explained. The Court ordered NMFS to complete a new and thorough NEPA analysis for each EFH amendment named in the suit. This EIS responds to the Court's directive to NMFS to complete new NEPA analyses for Amendment 11 to the Pacific Coast Groundfish FMP.
16 U.S.C. 1801
Forest Service, USDA.
Notice of meeting.
The Okanogan and Wenatchee National Forests Resource Advisory Committee will meet on Wednesday, February 27, 2002, at the Rural County Fire District #1 Fire Station conference room, 206 Easy Street, Wenatchee, Washington. The meeting will begin at 9 a.m. and continue until 3 p.m. Committee members will review Kittitas County and Yakima County projects proposed for Resource Advisory Committee consideration under Title II of the Secure Rural Schools and Community Self-Determination Act of 2000. All Okanogan and Wenatchee National Forests Resource Advisory Committee meetings are open to the public. Interested citizens are welcome to attend.
Direct questions regarding this meeting to Paul Hart, Designated Federal Official, USDA, Wenatchee National Forest, 215 Melody Lane, Wenatchee, Washington 98801, 509-662-4335.
Forest Service, USDA.
Notice of meeting.
The Okanogan and Wenatchee National Forests Resource Advisory Committee will meet on Wednesday, March 27, 2002, at the Rural County Fire District #1 Fire Station conference room, 206 Easy Street, Wenatchee, Washington. The meeting will begin at 9 a.m. and continue until 3 p.m. Committee members will review Chelan County projects proposed for Resource Advisory Committee consideration under Title II of the Secure Rural Schools and Community Self-Determination Act of 2000. All Okanogan and Wenatchee National Forest Resource Advisory Committee meetings are open to the public. Interested citizens are welcome to attend.
Direct questions regarding this meeting to Paul Hart, Designated Federal Official, USDA, Wenatchee National Forest, 215 Melody Lane, Wenatchee, Washington, 98801, 509-662-4335.
Forest Service, USDA.
Notice of meeting.
The Tuolumne County Resource Advisory Committee will meet on March 6, 2002, at the City of Sonora Fire Department, in Sonora, California. The purpose of the meeting is to initiate the Tuolumne County Resource Advisory Committee, and review Public Law 106-393, the Secure Rural Schools and Community Self-Determination Act of 2000.
The meeting will be held March 6, 2002, from 12 p.m. to 3 p.m.
The meeting will be held at the City of Sonora Fire Department located at 201 South Shepherd Street, in Sonora, California (CA 95370).
Pat Kaunert, Committee Coordinator USDA, Stanislaus National Forest, 19777 Greenley Road, Sonora, CA 95370 (209) 532-3671; EMAIL
Agenda items to be covered include: (1) Welcome and Committee introductions; (2) Legislative History and Federal Advisory Committee Act requirements; (3) Operational guidelines; (4) Preliminary project ideas; (5) Public comment; and (6) Next meeting date, location, and purpose. The meeting is open to the public. Those in attendance will be provided the opportunity to address the Committee.
Forest Service, USDA.
Meeting.
The Willamette Province Advisory Committee (PAC) will meet on Thursday, February 21, 2002. The meeting is scheduled to begin at 9 a.m., and will conclude at approximately 2:30 p.m. The meeting will be held at the Red Lion Inn, 3301 Market Street NE., Salem, Oregon (503) 370-7888.
The tentative agenda includes: (1) Progress report on the annual Survey and Manage species review process, (2) Presentation on land stewardship agreements between the Grand Ronde Tribe and federal agencies, (3) Overview of 2002 program of work for Forest Service and BLM units in the Province, (4) Subcommittee Reports, (5) Public Forum. The Public Forum is tentatively scheduled to being at 10:30 a.m. Time allotted for individual presentations will be limited to 3-4 minutes. Written comments are encouraged, particularly if the material cannot be presented within the time limits for the Public
Designated Federal Official Neal Forrester; Willamette National Forest; 211 East Seventh Avenue; Eugene, Oregon 97401; (541) 465-6924.
Committee for Purchase from People Who Are Blind or Severely Disabled.
Addition to the Procurement List.
This action adds to the Procurement List a commodity to be furnished by nonprofit agencies employing persons who are blind or have other severe disabilities.
March 10, 2002.
Committee for Purchase From People Who Are Blind or Severely Disabled, Jefferson Plaza 2, Suite 10800, 1421 Jefferson Davis Highway, Arlington, Virginia 22202-3259.
Sheryl D. Kennerly (703) 603-7740.
On December 14, 2001, the Committee for Purchase From People Who Are Blind or Severely Disabled published a notice (66 FR 64806) of proposed additions to the Procurement List.
After consideration of the material presented to it concerning capability of qualified nonprofit agencies to provide the services and impact of the additions on the current or most recent contractors, the Committee has determined that the commodity listed below is suitable for procurement by the Federal Government under 41 U.S.C. 46-48c and 41 CFR 51-2.4. I certify that the following action will not have a significant impact on a substantial number of small entities. The major factors considered for this certification were:
1. The action will not result in any additional reporting, recordkeeping or other compliance requirements for small entities other than the small organizations that will furnish the services to the Government.
2. The action will not have a severe economic impact on current contractors for the commodity.
3. The action will result in authorizing small entities to furnish the services to the Government.
4. There are no known regulatory alternatives which would accomplish the objectives of the Javits-Wagner-O'Day Act (41 U.S.C. 46-48c) in connection with the commodity proposed for addition to the Procurement List.
Accordingly, the following commodity is added to the Procurement List.
Committee for Purchase From People Who Are Blind or Severely Disabled.
Proposed addition to and deletion from Procurement List.
The Committee is proposing to add to the Procurement List services to be furnished by nonprofit agencies employing persons who are blind or have other severe disabilities, and to delete products previously furnished by such agencies.
March 10, 2002.
Committee for Purchase From People Who Are Blind or Severely Disabled, Jefferson Plaza 2, Suite 10800, 1421 Jefferson Davis Highway, Arlington, Virginia 22202-3259.
Sheryl D. Kennerly (703) 603-7740.
This notice is published pursuant to 41 U.S.C. 47(a)(2) and 41 CFR 51-2.3. Its purpose is to provide interested persons an opportunity to submit comments on the possible impact of the proposed actions.
If the Committee approves the proposed addition, the entities of the Federal Government identified in the notice for each service will be required to procure the service listed below from nonprofit agencies employing persons who are blind or have other severe disabilities. I certify that the following action will not have a significant impact on a substantial number of small entities. The major factors considered for this certification were:
1. The action will not result in any additional reporting, recordkeeping or other compliance requirements for small entities other than the small organizations that will furnish the service to the Government.
2. The action will result in authorizing small entities to furnish the service to the Government.
3. There are no known regulatory alternatives which would accomplish the objectives of the Javits-Wagner-O' Day Act (41 U.S.C. 46-48c) in connection with the service proposed for addition to the Procurement List. Comments on this certification are invited. Commenters should identify the statement(s) underlying the certification on which they are providing additional information. The following services are proposed for addition to Procurement List for production by the nonprofit agencies listed:
I certify that the following action will not have a significant impact on a substantial number of small entities. The major factors considered for this certification were:
1. The action will not result in any additional reporting, recordkeeping or other compliance requirements for small entities.
2. The action will result in authorizing small entities to furnish the service to the Government.
3. There are no known regulatory alternatives which would accomplish the objectives of the Javits-Wagner-O' Day Act (41 U.S.C. 46-48c) in connection with the service proposed for deletion from the Procurement List.
The following commodities are proposed for deletion from the Procurement List:
Import Administration, International Trade Administration, Department of Commerce.
The Department of Commerce (the Department) has received a timely request to conduct a new shipper review of the antidumping duty order on silicon metal from the People's Republic of China (PRC). In accordance with section 751(a)(2)(B) of the Tariff Act of 1930, as amended (the Act), and 19 CFR 351.214(d), we find the request to meet all of the regulatory requirements, and are, therefore, initiating this new shipper review.
February 8, 2002.
Christian Hughes or Maureen Flannery, AD/CVD Enforcement, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, N.W., Washington, D.C. 20230; telephone: (202) 482-0648 or (202)482-3020, respectively.
Unless otherwise indicated, all citations to 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 references to the Department's regulations are to 19 CFR Part 351 (2001).
On December 31, 2001, the Department received a request from China Shanxi Province Lin Fen Prefecture Foreign Trade Import and Export Corp. (Lin Fen) for a new shipper review of the antidumping duty order on silicon metal from the PRC, in accordance with section 751(a)(2)(B) of the Act and 19 CFR 351.214(c). This order has a June anniversary month; however, this request was made at the end of the semiannual anniversary month in accordance with section 351.214 (b)(2)(d)(2) of the regulations, and is therefore timely.
Pursuant to 19 CFR 351.214(b)(2)(i) and 19 CFR 351.214(b)(2)(iii)(A) and (B), Lin Fen's December 31, 2001 request for a review certified that Lin Fen and its supplier had not exported the subject merchandise to the United States during the period of investigation (POI) and that they had not been affiliated with any company which exported subject merchandise to the United States during the POI. Pursuant to 19 CFR 351.214, Lin Fen and its supplier also certified that their export activities are not controlled by the central government of the PRC. We have determined that the certifications filed on December 31, 2001 are adequate under the Department's regulations. See “Memorandum to the File, Silicon Metal: Initiation of a New Shipper Review for China Shanxi Province Lin Fen Prefecture Foreign Trade Import and Export Corp.” (Public Document),” dated January 31, 2002.
In addition, pursuant to 19 CFR 351.214(b)(2)(iv), Lin Fen's December 31, 2001 request contained documentation establishing: the date the subject merchandise was first shipped to the United States, the volume of that shipment, and the date of the first sale to an unaffiliated customer in the United States. Lin Fen also certified that it had no subsequent shipments to the United States in accordance with section 351.214(b)(2)(iv)(B).
Therefore, in accordance with section 751(a)(2)(B) of the Act and 19 CFR 351.214(d), we are initiating a new shipper review of the antidumping duty order on silicon metal from the PRC.
It is the Department's usual practice in cases involving non-market economies to require that a company seeking eligibility for a separate rate from the country-wide rate provide
Pursuant to 19 CFR 351.214 (g)(1)(i)(B) of the Department's regulations, the POR for a new shipper review initiated in the month immediately following the semiannual anniversary month will be the six-month period immediately preceding the semiannual anniversary month. Therefore, the POR for this review is June 1, 2001 through November 30, 2001.
Concurrent with the publication of this initiation notice, and in accordance with 19 CFR 351.214(e), effective on the date of publication of this notice, we will instruct the U.S. Customs Service to allow, at the option of the importer, the posting of a bond or security in lieu of a cash deposit at the existing PRC-wide rate of 139.49 percent for each entry of the subject merchandise exported by the company named above, until the completion of the review.
Interested parties may submit applications for disclosure of business proprietary information under administrative protective order in accordance with 19 CFR 351.305 and 351.306.
This initiation and notice are in accordance with section 751(a) of the Act (19 U.S.C. 1675(a)) and 19 CFR 351.214.
Import Administration, International Trade Administration, Department of Commerce.
Notice of preliminary negative countervailing duty determination.
The Department of Commerce preliminarily determines that countervailable subsidies are not being provided to producers or exporters of carbon and certain alloy steel wire rod from Brazil.
February 8, 2002
Melani Miller or Jennifer Jones, Office of Antidumping/Countervailing Duty Enforcement, Group 1, Import Administration, U.S. Department of Commerce, Room 3099, 14th Street and Constitution Avenue, N.W., Washington, D.C. 20230; telephone (202) 482-0116 and (202) 482-4194, respectively.
Unless otherwise indicated, all citations to the statute are references to the provisions of the Tariff Act of 1930, as amended by the Uruguay Round Agreements Act effective January 1, 1995 (“the Act”). In addition, unless otherwise indicated, all citations to the Department's regulations are to 19 CFR Part 351 (April 2001).
The petitioners in this investigation are Co-Steel Raritan, Inc., GS Industries, Keystone Consolidated Industries, Inc., and North Star Steel Texas, Inc. (collectively, “petitioners”).
The following events have occurred since the publication of the notice of initiation in the Federal Register. See Notice of Initiation of Countervailing Duty Investigations: Carbon and Certain Alloy Steel Wire Rod from Brazil, Canada, Germany, Trinidad and Tobago, and Turkey, 66 FR 49931 (October 1, 2001) (“Initiation Notice”).
On October 9, 2001, we issued countervailing duty (“CVD”) questionnaires to the Government of Brazil (“GOB”) and the producers/exporters of the subject merchandise. Due to the large number of producers and exporters of carbon and certain alloy steel wire rod (“wire rod” or “subject merchandise”) in Brazil, we decided to limit the number of responding companies to the three producers/exporters with the largest volumes of exports to the United States during the period of investigation: Companhia Siderurgica Belgo-Mineira (“Belgo Mineira”), Companhia Siderurgica de Tubarao (“CST”), and Gerdau S.A. (“Gerdau”). See October 9, 2001 memorandum to Susan Kuhbach, Respondent Selection, which is on file in the Department of Commerce's (“the Department's”) Central Records Unit in Room B-099 of the main Department building (“CRU”).
Also on October 9, we received a request from the petitioners to amend the scope of this investigation to exclude certain wire rod. The petitioners submitted further clarification with respect to their scope amendment request on November 28, 2001. Also on November 28, 2001, the five largest U.S. tire manufacturers and the industry trade association, the Rubber Manufacturers Association (“tire manufacturers”), submitted comments on the proposed exclusion. The tire manufacturers submitted further comments on January 28, 2002. See, infra, “Scope Comments” section.
On October 18, 2001, the petitioners filed a letter raising several concerns with respect to the Department's initiation of this investigation and the concurrent investigations in Canada, Germany, and Trinidad and Tobago. With respect to Brazil, the petitioners also re-alleged certain subsidy allegations. The Department initiated an investigation of one of these re-alleged programs on November 2, 2001, and issued a questionnaire with respect to this new subsidy allegation on November 5, 2001. The Department addressed most of the remaining concerns in a memo dated December 4, 2001. This memorandum is on file in the Department's CRU.
On October 22, 2001, CST notified the Department that it neither shipped nor manufactured the subject merchandise during the period of investigation (“POI”). We will verify this information prior to issuing the final determination in this investigation.
On November 14, 2001, we published a postponement of the preliminary determination of this investigation until February 1, 2002. See Carbon and Certain Alloy Steel Wire Rod From Brazil, Canada, Germany, Trinidad and Tobago, and Turkey: Postponement of Preliminary Determinations of Countervailing Duty Investigations, 66 FR 57036 (November 14, 2001).
The Department received the GOB and company responses to the Department's questionnaires (including the new subsidy allegation questionnaire) on November 29, 2001. On December 6, 2001, the petitioners submitted comments regarding these questionnaire responses. The Department issued supplemental questionnaires to the GOB and the companies on December 13, 2001, and received responses to those questionnaires on January 7 and January 14, 2002.
On December 5, 2001, the petitioners filed a critical circumstances allegation with respect to Brazil, Germany, and Turkey. Supplemental critical circumstances information and arguments relating to Brazil were filed by the petitioners on December 19, December 21, and December 27, 2001, and January 25, 2002; and by the respondents on January 10 and January 28, 2002. Additionally, comments on the critical circumstances allegations were filed on behalf of the American
Finally, both the petitioners and the respondents submitted comments on the upcoming preliminary determination on January 14 and January 18, 2002, respectively. In their January 14 submission, the petitioners made several new allegations that relate to several specific programs that we are investigating. Each allegation will be addressed infra in the “Analysis of Programs” section.
The period for which we are measuring subsidies is calendar year 2000.
The merchandise covered by this investigation is certain hot-rolled products of carbon steel and alloy steel, in coils, of approximately round cross section, 5.00 mm or more, but less than 19.0 mm, in solid cross-sectional diameter.
Specifically excluded are steel products possessing the above-noted physical characteristics and meeting the Harmonized Tariff Schedule of the United States (“HTSUS”) definitions for (a) stainless steel; (b) tool steel; (c) high nickel steel; (d) ball bearing steel; and (e) concrete reinforcing bars and rods. Also excluded are (f) free machining steel products (i.e., products that contain by weight one or more of the following elements: 0.03 percent or more of lead, 0.05 percent or more of bismuth, 0.08 percent or more of sulfur, more than 0.04 percent of phosphorus, more than 0.05 percent of selenium, or more than 0.01 percent of tellurium). All products meeting the physical description of subject merchandise that are not specifically excluded are included in this scope.
The products under investigation are currently classifiable under subheadings 7213.91.3010, 7213.91.3090, 7213.91.4510, 7213.91.4590, 7213.91.6010, 7213.91.6090, 7213.99.0031, 7213.99.0038, 7213.99.0090, 7227.20.0010, 7227.20.0090, 7227.90.6051 and 7227.90.6058 of the HTSUS. Although the HTSUS subheadings are provided for convenience and customs purposes, the written description of the scope of these investigations is dispositive.
In the Initiation Notice, we invited comments on the scope of this proceeding. As noted above, on October 9, 2001, we received a request from the petitioners to amend the scope of this investigation and the companion CVD and antidumping duty (“AD”) wire rod investigations. Specifically, the petitioners requested that the scope be amended to exclude high carbon, high tensile 1080 grade tire cord and tire bead quality wire rod actually used in the production of tire cord and bead, as defined by specific dimensional characteristics and specifications.
On November 28, 2001, the petitioners further clarified and modified their October 9 request. The petitioners suggested the following five modifications and clarifications: (1) Expand the end-use language of the scope exclusion request to exclude 1080 grade tire cord and tire bead quality that is used in the production of tire cord, tire bead, and rubber reinforcement applications; (2) clarify that the scope exclusion requires a carbon segregation per heat average of 3.0 or better to comport with recognized industry standards; (3) replace the surface quality requirement for tire cord and tire bead with simplified language specifying maximum surface defect length; (4) modify the maximum soluble aluminum from 0.03 to 0.01 for tire bead wire rod; and (5) reduce the maximum residual element requirements to 0.15 percent from 0.18 percent for both tire bead and tire cord wire rod and add an exception for chromium-added tire bead wire rod to allow a residual of 0.10 percent for copper and nickel and a chromium content of 0.24 to 0.30 percent.
Also on November 28, 2001, the tire manufacturers submitted a letter to the Department in response to petitioners' October 9, 2001 submission regarding the scope exclusion. In this letter, the tire manufacturers supported the petitioners' request to exclude certain 1080 grade tire cord and tire bead wire rod used in the production of tire cord and bead.
Additionally, the tire manufacturers requested that the Department clarify whether 1090 grade was covered by the petitioners' exclusion request. The tire manufacturers further requested an exclusion from the scope of this investigation for 1070 grade wire rod and related grades (0.69 percent or more of carbon) because, according to the tire manufacturers, domestic production cannot meet the requirements of the tire industry.
The tire manufacturers stated their opposition to defining scope exclusions on the basis of actual end use of the product. Instead, the tire manufacturers support excluding the product if it is imported pursuant to a purchase order from a tire manufacturer or a tire cord wire manufacturer in the Untied States. Finally, the tire manufacturers urged the Department to adopt the following specifications to define the excluded product: A maximum nitrogen content of 0.0008 percent for tire cord and 0.0004 percent for tire bead; maximum weight for copper, nickel, and chromium, in the aggregate, of 0.0005 percent for both types of wire rod. In their view, there should be no additional specifications and tests, as proposed by the petitioners.
On January 28, 2002, the tire manufacturers responded to the petitioners' November 28, 2001 letter. The tire manufacturers continue to have three major concerns about the product exclusion requested by the petitioners. First, the tire manufacturers urge that 1070 grade tire cord quality wire rod be excluded (as it was in the 1999 Section 201 investigation). Second, they continue to object to defining the exclusion by actual end use. Finally, they reiterate their earlier position on the chemical specifications for the excluded product.
At this point in the proceeding, we recognize that the interested parties have both advocated excluding certain tire rod and tire core quality wire rod. However, the Department continues to examine this issue. Therefore, for this preliminary determination we have not amended the scope, and this preliminary determination applies to the scope as described in the Initiation Notice.
We plan to reach a decision as early as possible in these proceedings. Interested parties will be advised of our intentions prior to the final determination and will have the opportunity to comment.
Because Brazil is a “Subsidies 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 Brazil materially injure, or threaten material injury to, a U.S. industry. On October 15, 2001, the ITC transmitted to the Department its preliminary determination that there is a reasonable indication that an industry in the United States is being materially injured by reason of imports from Brazil of the subject merchandise. See Carbon and Certain Alloy Steel Wire Rod From Brazil, Canada, Egypt, Germany, Indonesia, Mexico, Moldova, South Africa, Trinidad and Tobago, Turkey, Ukraine, and Venezuela, 66 FR 54539 (October 29, 2001).
The petitioners have alleged that critical circumstances within the meaning of section 703(e) of the Act exist with respect to the subject merchandise.
We need not address the critical circumstances allegation at this time. Because our preliminary determination is negative, we are not ordering a suspension of liquidation pursuant to section 703(d) of the Act. Consequently, retroactive suspension of liquidation pursuant to section 703(e)(2) of the Act is not applicable.
On February 2, 2000, the U.S. Court of Appeals for the Federal Circuit (“CAFC”) in Delverde Srl v. United States, 202 F.3d 1360, 1365 (Fed. Cir. 2000), reh'g en banc denied (June 20, 2000) (“Delverde III”), rejected the Department's change-in-ownership methodology as explained in the General Issues Appendix of the Final Affirmative Countervailing Duty Determination: Certain Steel Products from Austria, 58 FR 37217, 37225 (July 9, 1993). The CAFC held that “the Tariff Act, as amended, does not allow Commerce to presume conclusively that the subsidies granted to the former owner of Delverde's corporate assets automatically 'passed through' to Delverde following the sale. Rather, the Tariff Act requires that Commerce make such a determination by examining the particular facts and circumstances of the sale and determining whether Delverde directly or indirectly received both a financial contribution and benefit from the government.” Delverde III, 202 F.3d at 1364.
Pursuant to the CAFC finding, the Department developed a new change-in-ownership methodology. This new methodology was first announced in a remand determination on December 4, 2000, and was also applied in Grain-Oriented Electrical Steel from Italy; Final Results of Countervailing Duty Administrative Review, 66 FR 2885 (January 12, 2001). Likewise, we have applied this new methodology in analyzing the changes in ownership in this preliminary determination.
The first step under this new methodology is to determine whether the legal person (entity) to which the subsidies were given is, in fact, distinct from the legal person that produced the subject merchandise exported to the United States. If we determine the two persons are distinct, we then analyze whether a subsidy has been provided to the purchasing entity as a result of the change-in-ownership transaction. If we find, however, that the original subsidy recipient and the current producer/exporter are the same person, then that person benefits from the original subsidies, and its exports are subject to countervailing duties to offset those subsidies. In other words, we will determine that a “financial contribution” and a “benefit” have been received by the “person” under investigation. Assuming that the original subsidy has not been fully amortized under the Department's normal allocation methodology as of the beginning of the POI, the Department would then continue to countervail the remaining benefits of that subsidy.
In making the “person” determination, where appropriate and applicable, we analyze factors such as (1) continuity of general business operations, including whether the successor holds itself out as the continuation of the previous enterprise, as may be indicated, for example, by use of the same name, (2) continuity of production facilities, (3) continuity of assets and liabilities, and (4) retention of personnel. No single factor will necessarily provide a dispositive indication of any change in the entity under analysis. Instead, the Department will generally consider the post-sale person to be the same person as the pre-sale person if, based on the totality of the factors considered, we determine the entity in question can be considered a continuous business entity because it was operated in substantially the same manner before and after the change in ownership.
We have preliminarily determined that Gerdau is the only respondent with changes in ownership requiring this type of analysis because no other respondent (or its predecessor) received subsidies prior to a change in ownership that were not fully expensed or allocated prior to the POI. For Gerdau, the two changes in ownership are Gerdau's acquisition of Cia Siderurgica do Nordeste (“Cosinor”) in 1991 and Gerdau's acquisition of Usina Siderurgica da Bahia S.A. (“Usiba”) in 1989.
We have not made a finding for the purposes of this preliminary determination as to whether pre-sale Cosinor and pre-sale Usiba are distinct persons from the respondent Gerdau. This is because the potential POI benefits for the pre-sale subsidies to Cosinor found in this preliminary determination (e.g., 1991 Debt-to-Equity Conversion Provided to Cosinor) are insignificant, amounting to 0.06 percent. Additionally, the POI benefits for any pre-sale subsidies found in this preliminary determination (e.g., 1988 Equity Infusions/Debt Forgiveness Provided to Usiba) are insignificant, amounting to 0.35 percent. Assuming, arguendo, that these pre-sale subsidies continued to benefit Gerdau in the POI, the preliminary ad valorem rate (reflecting, in full, any POI benefits of pre-sale subsidies) for Gerdau would be de minimis. Therefore, application of the change in ownership methodology is not relevant in this investigation.
However, we are seeking further information on potential subsidies Cosinor and Usiba may have received in addition to those found to be countervailable in this preliminary determination. Should we obtain any information subsequent to this preliminary determination indicating the final ad valorem rate for Gerdau would be above de minimis, we will give all parties sufficient opportunity to comment on whether and how Usiba's 1989 sale and Cosinor's 1991 sale affect the POI benefit to Gerdau of any pre-sale subsidies.
Pursuant to 19 CFR 351.524(b), non-recurring subsidies are allocated over a period corresponding to the average useful life (“AUL”) of the renewable physical assets used to produce the subject merchandise. 19 CFR 351.524(d)(2) creates a rebuttable presumption that the AUL will be taken from the U.S. Internal Revenue Service's 1977 Class Life Asset Depreciation Range System (the “IRS Tables”). For wire rod, the IRS Tables prescribe an AUL of 15 years. None of the responding companies or interested parties disputed this allocation period. Therefore, we have used the 15-year allocation period for all respondents.
19 CFR 351.525(a)(6) directs that the Department will attribute subsidies received by certain affiliated companies to the combined sales of those companies. Based on our review of the responses, we find that “cross ownership” exists with respect to certain companies, as described below, and we have attributed subsidies accordingly.
Belgo Mineira: Belgo Mineira, the parent company, is responding on behalf of itself and its four manufacturing facilities at Montevade, Vitoria, Sabara, and Piracicaba (formerly Dedini Siderurgicia de Piracicaba (“Dedini”)). Belgo Mineira is also responding on behalf of one of its subsidiaries, Belgo Mineira Participacao Industria e Comercio S.A. (“BMP”),
In accordance with 19 CFR 351.525(b)(6)(i) and (ii) we are attributing any subsidies received by Belgo Mineira (including its above-noted production facilities) and BMP to the combined sales of these entities.
Belgo Mineira also reports that it has numerous other subsidiaries and affiliations with various companies. However, our analysis indicates no basis to attribute any subsidies received by these other subsidiaries or affiliates to the production of the subject merchandise. Specifically, although cross-ownership may exist with these other companies, they do not produce the subject merchandise as required in 19 CFR 351.525(b)(6), nor do they meet any of the other criteria specified in 19 CFR 351.525(b)(6).
Gerdau: Gerdau, the parent company, is responding on behalf of itself and its four manufacturing facilities at Aconorte, Cosigua, Riograndense, and Usiba, all of which produce the subject merchandise. Gerdau is also reporting on behalf of its parent company, Metalurgica Gerdau S.A., a holding company which owns 82.97 percent of Gerdau's shares. In accordance with 19 CFR 351.525(b)(6)(i) and (ii), we are attributing subsidies received by all of these entities to the combined total sales of Gerdau.
Gerdau produces a wide variety of products, such as civil construction products, industrial products, agricultural products, nails, metallurgy products, and specialty steel products, including wire rod. Our analysis indicates no basis to attribute any subsidies received by these other subsidiaries or affiliates to the production of the subject merchandise. Specifically, although cross-ownership may exist with these other companies, they do not produce the subject merchandise as required in 19 CFR 351.525(b)(6), nor do they meet any of the other criteria specified in 19 CFR 351.525(b)(6).
Gerdau has reported that it has an affiliate, Aco Minas Gerais S.A. (“Acominas”), which supplies billets to Cosigua for use in its wire rod production. Gerdau contends that, although Acominas provides inputs into the production process of the subject merchandise, cross-ownership does not exist between the two companies. Specifically, Gerdau argues that its equity holding in Acominas does not position Gerdau to “use or direct the individual assets of” Acominas “in essentially the same way its uses its own assets” as required for cross-ownership pursuant to 19 CFR 351.525(b)(6)(vi).
Based on our analysis, we preliminarily determine that, because of Gerdau's minority percentage of ownership of Acominas, Gerdau is not in a position to “use or direct” Acominas' individual assets as required by 19 CFR 351.525(b)(6)(vi). Thus, we have preliminarily determined that cross-ownership does not exist between Gerdau and Acominas pursuant to 19 CFR 351.525(b)(6)(vi).
Pursuant to 19 CFR 351.505(a) and 19 CFR 351.524(d)(3)(i), the Department will use as a long-term loan benchmark and a discount rate the actual cost of comparable long-term borrowing by the company, when available. 19 CFR 351.505(a)(2) defines a comparable commercial loan as one that, when compared to the government-provided loan in question, has similarities in the structure of the loan (e.g. fixed interest rate v. variable interest rate), the maturity of the loan (e.g. short-term v. long-term), and the currency in which the loan is denominated. In instances where no applicable company-specific comparable commercial loans are available, 19 CFR 351.505(a)(3)(ii) requires the Department to use a national average interest rate for comparable commercial loans.
Both Gerdau and Belgo Mineira have reported that they have loans from commercial lending institutions that can be used as benchmarks. Specifically, both Belgo Mineira and Gerdau report that they have commercial loans in certain years that can be used as benchmarks for the long-term, variable interest rate loans provided through the Financing for the Acquisition or Lease of Machinery and Equipment through the Special Agency for Industrial Financing (“FINAME”) program. Belgo Mineira has also reported short-term, variable interest rate commercial loans that can be used as the benchmark for its short-term, variable interest rate National Bank for Economic and Social Development (“BNDES”) Export Financing loans.
Belgo Mineira's commercial short-term loans were made in the same currency as the BNDES Export Financing loans. Therefore, because the Belgo Mineira short-term, variable interest rate loans are comparable to the government loans pursuant to 19 CFR 351.505(a)(2), we are using these loans as the benchmark for Belgo Mineira's BNDES Export Financing loans.
The long-term commercial loans reported by Belgo Mineira and Gerdau are similar in maturity and structure to the government loans being provided by the GOB. However, the proposed benchmark commercial loans were reported in U.S. dollars, whereas the FINAME long-term, variable interest rate loans were denominated in Brazilian currency.
As stated in 19 CFR 351.505(a)(2), it is the Department's preference when choosing a comparable commercial loan for benchmark purposes to have a benchmark rate that is denominated in the same currency as the government-provided loan. The Department has found in past Brazilian CVD cases, however, that there were no long-term commercial loans made in Brazilian currency that could be used as benchmark or discount rates because BNDES was the only Brazilian institution that provided long-term Brazilian-currency denominated loans. See, e.g., Final Affirmative Countervailing Duty Determination: Certain Cold Rolled Flat-Rolled Carbon-Quality Steel Products from Brazil, 65 FR 5538 (February 4, 2000) (“Brazil Cold-Rolled Steel”), Final Affirmative Countervailing Duty Determination: Certain Hot-Rolled Flat-Rolled Carbon-Quality Steel Products from Brazil, 64 FR 38741 (July 19, 1999) (“Brazil Hot-Rolled Steel”), and Final Affirmative Countervailing Duty Determinations: Certain Steel Products from Brazil, 58 FR 37295 (July 9, 1993) (“Brazil Certain Steel”).
In those same cases, the Department determined that the most reasonable way to deal with the lack of an appropriate Brazilian long-term benchmark rate was to use data for U.S. dollar lending in Brazil for long-term non-guaranteed loans from private lenders as published in the World Bank Debt Tables: External Finance for Developing Countries (“World Bank Debt Tables”). See, e.g., Brazil Certain Steel, Brazil Hot-Rolled Steel; and Final Affirmative Countervailing Duty Determination: Steel Wire Rod from Venezuela, 62 FR 55014, 55019, 55023 (October 21, 1997).
In the instant investigation the Department has found, as it has in the past, that there are no similar long-term loans made in Brazilian currency. Therefore, consistent with the Department's past practice of employing benchmarks denominated in different currencies, we are using a weight-average rate from the dollar-denominated variable rate commercial loans as the benchmark for Gerdau and
Additionally, because we have found one of Gerdau's subsidiary companies, Usiba, to be uncreditworthy in 1988 (see, infra, section on “Creditworthiness”), we have calculated for Usiba only a long-term uncreditworthy discount rate for 1988 in accordance with 19 CFR 351.524(c)(3)(ii).
In accordance with 19 CFR 351.524(d)(3)(ii), the discount rate for companies considered uncreditworthy is the rate described in 19 CFR 351.505(a)(3)(iii). According to 19 CFR 351.505(a)(3)(iii), to calculate that rate, the Department must specify values for four variables: (1) the probability of default by an uncreditworthy company; (2) the probability of default by a creditworthy company; (3) the long-term interest rate for creditworthy borrowers; and (4) the term of the debt.
For the probability of default by an uncreditworthy company, we have used the average cumulative default rates reported for the Caa- to C-rated category of companies as published in Moody's Investors Service, “Historical Default Rates of Corporate Bond Issuers, 1920-1997” (February 1998). For the probability of default by a creditworthy company, we used the cumulative default rates for investment grade bonds as published in Moody's Investor Services: “Statistical Tables of Default Rates and Recovery Rates” (February 1998). For the commercial interest rate charged to creditworthy borrowers, we used the World Bank Debt Tables, discussed above. For the term of the debt, we used 15 years because all of the non-recurring subsidies examined were allocated over a 15-year period.
Section 771(5)(E)(i) of the Act and 19 CFR 351.507 state that, in the case of a government-provided equity infusion, a benefit is conferred if an equity investment decision is inconsistent with the usual investment practice of private investors. 19 CFR 351.507 states that the first step in determining whether an equity investment decision is inconsistent with the usual investment practice of private investors is examining whether, at the time of the infusion, there was a market price for similar newly-issued equity. If so, the Department will consider an equity infusion to be inconsistent with the usual investment practice of private investors if the price paid by the government for newly-issued shares is greater than the price paid by private investors for the same, or similar, newly-issued shares.
If actual private investor prices are not available, then, pursuant to 19 CFR 351.507(a)(3)(i), the Department will determine whether the firm funded by the government-provided infusion was equityworthy or unequityworthy at the time of the equity infusion. In making the equityworthiness determination, pursuant to 19 CFR 351.507(a)(4), the Department will normally determine that a firm is equityworthy if, from the perspective of a reasonable private investor examining the firm at the time the government-provided equity infusion was made, the firm showed an ability to generate a reasonable rate of return within a reasonable time. To do so, the Department normally examines the following factors: 1) objective analyses of the future financial prospects of the recipient firm; 2) current and past indicators of the firm's financial health; 3) rates of return on equity in the three years prior to the government equity infusion; and 4) equity investment in the firm by private investors.
19 CFR 351.507(a)(4)(ii) further stipulates that the Department will “normally require from the respondents the information and analysis completed prior to the infusion, upon which the government based its decision to provide the equity infusion.” Absent an analysis containing information typically examined by potential private investors considering an equity investment, the Department will normally determine that the equity infusion provides a countervailable benefit. This is because, before making a significant equity infusion, it is the usual investment practice of private investors to evaluate the potential risk versus the expected return, using the most objective criteria and information available to the investor.
The individual equityworthiness analyses relating to any equity programs being examined in the instant investigation are in the program-specific “Analysis of Programs” sections, below.
The examination of creditworthiness is an attempt to determine if the company in question could obtain long-term financing from conventional commercial sources. See 19 CFR 351.505(a)(4). According to 19 CFR 351.505(a)(4)(i), the Department will generally consider a firm to be uncreditworthy if, based on information available at the time of the government-provided loan, for example, the firm could not have obtained long-term loans from conventional commercial sources. In making this determination, according to 19 CFR 351.505(a)(4)(i), the Department normally examines the following four types of information: 1) the receipt by the firm of comparable commercial long-term loans; 2) present and past indicators of the firm's financial health; 3) present and past indicators of the firm's ability to meet its costs and fixed financial obligations with its cash flow; and 4) evidence of the firm's future financial position. With respect to item number one, above, it is the Department's practice to not consider in the case of a government-owned firm the receipt of comparable commercial loans as being dispositive of a firm's likely ability to obtain long-term commercial credit. This is because, in the Department's view, in the case of a government-owned firm, a bank is likely to consider that the government will repay the loan in the event of a default. See Countervailing Duties; Final Rule, 63 FR 65348, 65367 (November 28, 1998).
In the Initiation Notice, we initiated a creditworthiness investigation for Usiba for 1988 only. In its questionnaire responses, Gerdau does not challenge the creditworthiness of Usiba in 1988, and does not provide a response to the Department's questions relating to Usiba's creditworthiness in 1988. Therefore, because Gerdau has not provided information requested by the Department pursuant to section 776(a)(2), we are, as facts available, preliminarily determining that Usiba was uncreditworthy in 1988. Thus, any non-recurring benefits received by Usiba in 1988 which are also attributable to Gerdau have been allocated using an uncreditworthy discount rate.
Based upon our analysis of the petition and the responses to our questionnaires, we determine the following:
The FINAME program, which is administered through BNDES and agent banks throughout Brazil, was established in 1966 by Decree No. 59.170 of September 2, 1966 and Decree/Law No. 45 of November 18,
Both Belgo Mineira and Gerdau received loans through this program that had interest and principal outstanding during the POI. Specifically, Belgo Mineira has reported that it has FINAME loans outstanding during the POI that originated in each year from 1995 through 2000, and Gerdau has reported that it has FINAME loans outstanding during the POI from 1990 and in each year from 1993 through 2000.
We preliminarily determine that FINAME loans are specific because they constitute an import substitution subsidy within the meaning of 771(5A)(C) of the Act because, although these loans are available for machinery and equipment manufactured outside of Brazil, most loans for the acquisition of merchandise are made for Brazilian-produced merchandise. Additionally, loans to lease equipment are limited only to Brazilian-produced machinery. We also preliminarily determine that these FINAME loans provide a financial contribution in the form of a direct transfer of funds as described in section 771(5)(D)(i) of the Act.
Finally, we determine that a benefit exists for loans originating in certain years for both Belgo Mineira and Gerdau pursuant to section 771(5)(E)(ii) of the Act. According to 19 CFR 351.505(a)(5), in order to determine whether long-term variable interest rate loans confer a benefit, the Department first compares the variable benchmark interest rate to the rate on the government-provided loan for the year in which the government loan terms were established. For instance, for a FINAME loan originating in 1993, we compare the FINAME interest rate in 1993 to the rate on the comparable commercial loans also originating in 1993.
According to 19 CFR 351.505(a)(5), if the comparison shows that the interest rate on the government-provided loan was equal to or higher than the interest rate on the comparable commercial loan, the Department will determine that the government-provided loan did not confer a benefit. However, if the interest rate in the year of origination of the government-provided loan was lower than the origination-year interest rate on the comparable commercial loan, the Department will examine that loan in the POI to measure the benefit.
In this instance, only Gerdau reported the FINAME loan rates for some of the years in which its loans originated. Specifically, Gerdau has reported FINAME loan interest rates for loans originating in 1995 through 2000. Based on a comparison of the origination year interest rates of the FINAME and the benchmark loans, we found that the government loan rates were lower than the benchmark rates in 1997 through 2000. However, the government loan rates were higher than the benchmark rates in 1995 and 1996. Thus, we preliminarily determine that no benefit exists according to 19 CFR 351.505(a)(5) for the 1995 and 1996 FINAME loans. With respect to the 1997 through 2000 loans, because the government loan rates were preferential when compared with the benchmark rates in those years, we preliminarily determine that a benefit was conferred through these loans as described in 19 CFR 351.505(a)(5), and that the Gerdau FINAME loans that originated in 1997 through 2000 constitute a countervailable subsidies pursuant to section 771(5) of the Act. Thus, as is further discussed below, we will calculate a benefit during the POI in accordance with 19 CFR 351.505(c)(4).
Belgo Mineira did not provide FINAME loan interest rates by year of origination for the loans it received from 1995 through 2000. Additionally, Gerdau did not provide origination year FINAME loan rates for its loans from 1990, 1993, and 1994.
Therefore, we were unable to make the comparison described in 19 CFR 351.505(a)(5), noted above. Instead, we determined whether a benefit existed, as well as the amount of the benefit, by calculating the difference between the amount actually paid on the outstanding loans during the POI and the amount the firms would have paid on a comparable commercial loan during the POI consistent with 19 CFR 351.505(c)(4). Based on this comparison, we preliminarily determine that Belgo Mineira received a benefit on all FINAME loans outstanding during the POI. For Gerdau, we preliminarily determine that Gerdau received a benefit on all FINAME loans taken out in 1993, 1994, and 1997 through 2000.
To calculate the POI subsidy amount, we divided the total POI benefit from these loans for each company by each company's total sales during the POI. Accordingly, we preliminarily determine that a countervailable benefit of 0.01 percent ad valorem exists for Gerdau and a countervailable benefit of 0.00 percent ad valorem exists for Belgo Mineira.
The PROEX program, which allows Brazilian companies to finance exports on terms consistent with the international market, is administered by the Banco do Brasil. PROEX funding is available to Brazilian companies involved in exporting only. PROEX funds are available in two forms: 1) PROEX Financing, which involves the direct financing of a company's exports and 2) PROEX Equalization, which reimburses certain interest costs to Brazilian exporters.
Under the PROEX Equalization program, exporters discount their receivables with a private lender. After payment is collected by the private bank from the customer, the GOB remits to the bank the difference between the financing costs collected from the exporter and the financing costs that would have been collected based on international financial rates at the time. The private bank then forwards this differential to the Brazilian company. Thus, the Banco do Brasil, in effect, reimburses the exporter for the part of the financing costs actually incurred so that the net financial costs to the Brazilian company are consistent with financial expenses incurred in the international market.
During the POI, neither Gerdau nor Belgo Mineira utilized the PROEX Financing program; Gerdau also did not use the PROEX Equalization program. However, Belgo Mineira did use the PROEX Equalization program during the POI.
We preliminarily determine that the PROEX Equalization program constitutes an export subsidy pursuant to 771(5A)(B) of the Act because equalization funds are provided only for export-related activities. We furthermore preliminarily determine that PROEX equalization funds provided by the GOB through this program constitute a financial contribution as described in section 771(5)(D)(i) of the Act and a corresponding benefit in the amount of equalization funds received.
Because the interest reimbursement reasonably can be anticipated by the exporter at the time the loan is taken
The GOB has argued in its response that these equalization payments are not countervailable because they fall within the exemption provided by 19 CFR 351.516(a)(1), i.e., that the equalization payments merely serve to equate financing terms to those commercially available on world markets. We preliminarily disagree with this claim because the exception applies only to “products,” and we do not view export financing loans as products.
The SUDENE program was created under Law No. 3692 in order to promote the development of the Northeast Region of Brazil. The SUDAM program is a similar program that promotes the development of the Amazonia Region of Brazil. Both programs are administered by the Brazilian federal government, and are linked to the Ministry of National Integration. Under these programs, companies can receive either a partial or complete tax exemption on the standard income tax for Brazilian companies, which is 25 percent of annual income. The tax exemption applies only to income from facilities operating in the designated regions. Both programs allow companies a 100 percent exemption if the company 1) makes an initial investment in the region involved, 2) increases capacity in the applicable region, or 3) modernizes its facilities in the specific region. If a company does not meet these three criteria, it is permitted to exempt 37.5 percent of its income from facilities operating in that region from taxation.
During the POI, only Gerdau used the SUDENE program. Neither Gerdau nor Belgo Mineira reported using the SUDAM program.
A tax benefit is a financial contribution as described in section 771(5)(D)(ii) of the Act which provides a benefit to the recipient in the amount of the tax savings pursuant to section 771(5)(E) of the Act and 19 CFR 351.509(a)(1). Moreover, we preliminarily determine that SUDENE tax benefits are de jure specific pursuant to section 771(5A)(D)(ii) of the Act because
SUDENE tax benefits are limited to operations in the Northeast Region. Therefore, we find these benefits to constitute a countervailable subsidy.
In calculating the benefit, consistent with 19 CFR 351.524(c)(1), we treated the tax savings as a recurring benefit and divided the tax savings received by Gerdau during the POI by Gerdau's total sales during the POI. On this basis, we preliminarily determine that a countervailable benefit of 0.28 percent ad valorem exists for Gerdau.
In 1988, as part of the Federal Privatization Program established by decree No. 95866/88, SIDERBRAS began a privatization program for Usiba. As part of the privatization program, SIDERBRAS restructured Usiba's debt in a debt for equity swap. According to Usiba's 1988 Financial Statement, SIDERBRAS “cleans{ed}” past due debt of US$79.6 million in exchange for increased equity. The responses to our questionnaire further indicate that SIDERBRAS made additional investments in Usiba in 1986, 1987 and 1989, for the following amounts: $US 6,799,395.57; $US 17,424,755.80; and $US 48,241.80, respectively.
Ultimately, the Usiba privatization program culminated in the company's being sold at auction in October 1999 to Gerdau. BNDES Particapacoes S.A.- BNDESPAR (“BNDESPAR”), a subsidiary of BNDES, was responsible for administering the privatization of Usiba, as well as other companies being privatized under the Federal Privatization Program. As part of these privatizations, BNDESPAR hired private consultants to set minimum share prices based on the company's discounted cash flow. Additionally, certain requirements were set to qualify potential bidders based on residency, economic capacity, and prior business success. After having its bid accepted, a purchasing company could complete the transaction through BNDES by paying 30 percent of the purchase price down and 70 percent of the purchase price on an installment basis at 12 percent per year.
Neither the GOB nor Gerdau are contesting the unequityworthiness of Usiba at the time of the 1988 infusion, and neither respondent provided a response to the Department's questions relating to Usiba's equityworthiness in 1988. Therefore, because neither Gerdau nor the GOB has provided information requested by the Department pursuant to section 776(a)(2), as facts available, we preliminarily determine that under section 771(5)(E)(i) of the Act and 19 CFR 351.507(a), the 1988 equity infusion into Usiba conferred a benefit because the infusion was not consistent with the usual investment practices of private investors. Furthermore, the 1988 infusion constitutes a financial contribution within the meaning of section 771(5)(D)(i) of the Act. Finally, the 1988 equity infusion is specific within the meaning of section 771(5A)(D)(i) of the Act because it was limited to Usiba. Accordingly, we find that this equity infusion confers a countervailable subsidy within the meaning of section 771(5) of the Act.
Assuming, arguendo, that this subsidy is properly assigned to Gerdau (see, supra, related discussion in “Changes in Ownership” section), we have treated the 1988 debt-for-equity swap as a benefit to Usiba in the amount of the equity infusion pursuant to 19 CFR 351.507(a)(6). Because Usiba was uncreditworthy in 1988, the year in which the equity infusion was received, we used the uncreditworthy discount rate described in the “Subsidies Valuation Information” section, above. We divided the amount allocated to the POI by Gerdau's sales during the POI and preliminarily determine the net subsidy to be 0.35 percent ad valorem for Gerdau.
Regarding the 1989 equity infusion into Usiba for $US 48,241.80, which was reported by the GOB in its January 8, 2002 supplemental response, we note that, under 19 CFR 351.524(b)(2), if the total amount of a non-recurring subsidy is less than 0.5 percent of the recipient's sales during the year in which the subsidy was approved, then the benefit under the program will be allocated to the year of receipt. Thus, although we have incomplete information on the nature of the 1989 transaction, if we assume, arguendo, that the 1989 equity infusion is countervailable, then the benefit received thereunder would be completely allocated to the year of receipt pursuant to 19 CFR 351.524(b)(2) with no benefit remaining in the POI.
Regarding the 1986 and 1987 equity infusions into Usiba also reported by the GOB in its January 8, 2002 response, we find that there is a reasonable basis to believe or suspect that Usiba was unequityworthy in 1986 and 1987. Specifically, the 1989 “Usiba Pre-qualification Notice for Interested Parties,” published as part of the GOB's Federal Program of Privatization, indicates that Usiba operated at a significant net loss during 1986 and
Finally, regarding the BNDES financing provided to Gerdau for its purchase of Usiba, we note that this program potentially constitutes a direct transfer of funds under section 771(5)(D)(i) of the Act. Furthermore, a comparison of the interest rate charged on the loan to contemporaneous commercial interest rates in Brazil as discussed in the “Subsidies Valuation Information” section, above, indicates that a benefit may have been provided to Gerdau. Therefore, although we also do not currently have enough information to fully analyze this program for the preliminarily determination, we will be requesting additional information on the nature of this program prior to the final determination pursuant to section 775(1) of the Act.
In 1991, the GOB, through BNDES and BNDESPAR, converted as much as US$12.8 million of Cosinor's debt into equity. In return for this forgiveness of debt, BNDES received 8,965,103 common shares of Cosinor stock, and BNDESPAR received 4,806,439 common shares of Cosinor stock, for a total of 13,771,542 shares of Cosinor common stock.
We preliminarily determine that this debt-to-equity conversion is specific pursuant to section 771(5A)(D)(i) of the Act because it was limited only to Cosinor. We also preliminarily determine that this debt-to-equity conversion constitutes a financial contribution pursuant to section 771(5)(D)(i) of the Act in the form of a direct transfer of funds.
Regarding the benefit to Cosinor, neither Gerdau nor the GOB contests that Cosinor was unequityworthy in 1991, and neither provided the information the Department would need to make an equityworthiness determination. Therefore, because neither Gerdau nor the GOB has provided information requested by the Department, as facts available, pursuant to section 776(a)(2), we preliminarily determine that Cosinor was unequityworthy. Consequently, the 1991 debt-to-equity conversion conferred a benefit upon Cosinor pursuant to section 771(5)(E)(i) of the Act because this debt-to-equity conversion was not consistent with the usual investment practices of private investors.
Assuming, arguendo, that this subsidy is properly assigned to Gerdau (see, infra, related discussion in “Change in Ownership” section), we first had to determine the actual amount of debt converted by the GOB. In its response, Gerdau reported three different possible amounts, stating that the exact amount was not known because of the age of the transaction and the inability of Gerdau and the GOB to obtain related records. We have preliminarily determined that $12.8 million is the appropriate amount of the debt that was converted based on references in the Privatization Notice for this company.
To calculate the subsidy rate, we divided the amount of the debt conversion attributable to Gerdau during the POI by Gerdau's total sales during the POI. On this basis, we preliminarily determine that a countervailable benefit of 0.06 percent ad valorem exists for Gerdau.
With respect to the capital increases reported in Cosinor's financial statements through the injection of “shareholders' funds” in 1987, 1988, and 1989, based on the information on the record, there is a reasonable basis to believe or suspect that Cosinor was unequityworthy in 1987 through 1989. Specifically, Cosinor's financial statements show that Cosinor operated at a loss in all of those years. Furthermore, in the September 1991 Public Notice announcing Cosinor's sale, it states that “Cosinor did not revert its loss curve during all of the period in which it was under government control.” This Public Notice also cites to “Cosinor's incapacity of transforming its operations into economical-financial results” as justification for privatizing the company. Finally, because the GOB was the majority shareholder in Cosinor prior to its privatization, it is reasonable to assume that the “shareholder” that made the contributions or advances to Cosinor was the GOB.
While we do not currently have enough information to analyze these infusions for the preliminary determination, based on the above analysis and pursuant to section 775(1) of the Act, we will be requesting additional information on the nature of these infusions and on Cosinor's equityworthiness during these years prior to the final determination.
BNDES provides three types of export loans (“exim loans”) to exporters meeting certain criteria: (1) Pre-shipment loans, (2) Special Pre-shipment loans, and (3) Post-shipment loans. Pre-shipment loans are linked to specific export shipments. Special Pre-shipment loans are not linked to specific export shipments but rather are granted to exporters who pledge to increase exports. BNDES only grants special pre-shipment loans to a company that has previously exported and seems in a likely position to increase exports. Post-shipment loans finance the export sales of goods or services abroad by financing an exporter's accounts receivable.
A company may apply directly to BNDES or through agent banks to receive BNDES exim loans. However, regardless of a company's application method, exim loans are disbursed through agent banks rather than directly to the recipient company. BNDES long-term exim loans are provided in either Brazilian reals or in foreign currency, usually US dollars.
The terms of these loans are determined by the agent bank after evaluating a company's creditworthiness and the proposed use of the loan. The interest rate for exim loans is determined by either the London Interbank Offered Rate (“LIBOR”) or the official long-term interest rate (“TJLP”), which is set periodically by the Brazilian Central Bank, plus a basic spread of 1 percent or 2 percent, which is paid to BNDES. If an agent bank provides a guarantee to BNDES, then the basic spread is 1 percent. If no such guarantee is provided, then the basic spread is 2 percent. Additionally, the agent bank charges an additional spread which is negotiated with the borrowing company. This spread covers, inter alia, any cost associated with administering the loan.
Belgo Mineira had certain long-term Brazilian real and short-term U.S. dollar denominated loans outstanding during the POI. Because all of the long-term Brazilian real loans were initially received during 2000, no payments were due during the POI. Therefore, we preliminarily determine that no benefit exists for the long-term Brazilian real loans during the POI. (See 19 CFR 351.505(c)(2).)
Regarding Belgo Mineira's U.S. dollar-denominated loans, the interest rate on the BNDES loans exceeds the benchmark. Therefore, we preliminarily determine that BNDES U.S. dollar-
The IPTU tax in Brazil is administered by each individual municipality in Brazil. Thus, the collection of the IPTU tax is the responsibility of each municipality, and any individual tax exemption results from direct negotiations between the municipality and the recipient of the exemption. Gerdau did not receive an IPTU tax exemption during the POI. However, one municipality in Minas Gerais offered an IPTU tax concession to Belgo Mineira during the POI. Specifically, the city of Sabara provided a 50 percent reduction of IPTU taxes beginning in 1996 through 2003 to Belgo Mineira's facility in the city of Sabara. This tax abatement was given to Belgo Mineira as payment for a parcel of land Belgo Mineira transferred to Sabara.
In comparing the net present value of the tax abatement and the value of the land, we found that these values are approximately equivalent. Additionally, it is the Department's practice in situations where any benefit to the subject merchandise would be so small that there would be no impact on the overall subsidy rate, regardless of a determination of countervailability, to not determine whether benefits conferred under these programs to the subject merchandise are countervailable. (See, e.g., Live Cattle From Canada; Final Negative Countervailing Duty Determination, 64 FR 57040, 57055 (October 22, 1999).) In this instance, any benefit to the subject merchandise resulting from these transactions would be so small that there would be no impact on the overall subsidy rate, regardless of a determination of countervailability. Thus, consistent with our past practice, we do not consider it necessary to determine whether benefits conferred thereunder to the subject merchandise are countervailable.
In 1999, Acominas, Gerdau, and BNDES agreed on a modernization program in which Acominas issued a total of 165,501,872,821 shares of common stock to the public for R$339 million. At the same time, Gerdau agreed to purchase 79,769,148,475 shares of Acominas common stock for R$164 million. Acominas agreed to use this investment for the purchase of new machinery in order to modernize and improve the Acominas production facilities.
Based on Acominas' pledge to use the funding in the above manner, BNDES agreed to provide Gerdau with a FINEM loan, typically intended to finance capacity expansions or modernizations, to provide Gerdau with the necessary funds for the Gerdau investment in Acominas. Normally, BNDES makes these loans available at variable interest rates dependent on the credit rating of the borrower and the size of the project. The Acominas FINEM loan to Gerdau covered a period of over six years and consisted of four sub-credits all with different conditions for repayment and financing.
We preliminarily determine that this type of FINEM loan, including the loan Gerdau received to invest in Acominas, is widely available to all producers in Brazil. Moreover, the steel industry received only 4.7 percent of the funds distributed under this program. In light of the shares received by other industries (e.g., 33.7 percent by the mail/telecommunications sector, 13.9 percent by the electricity/gas/water sector, and 8.2 percent by the automotive vehicle sector) the steel sector is not a predominant or disproportionate user of the program. Therefore, we preliminarily determine that this program, and FINEM loans in general, are not specific within the meaning of section 771(5A) of the Act.
Mendes Junior operated a steel mill in the state of Minas Gerais. In 1995, because Mendes Junior could no longer service its existing debt obligation, it entered into negotiations with Belgo Mineira. Mendes Junior and Belgo Mineira reached an agreement in which Belgo Mineira would lease Mendes Junior's facility in the state of Minas Gerais. In 1998, Belgo Mineira negotiated an agreement with BNDES in which BNDES transferred Mendes Junior's debt to Belgo Mineira in exchange for R$98 million in debentures and certain other rights, the details of which are proprietary. At the point of the BNDES negotiation, Mendes Junior's debt was categorized by BNDES as a non-performing loan.
The debentures issued by Belgo Mineira to BNDES in this transaction are for a term of 12 years at the interest rate of TJLP plus 3 percent. Belgo Mineira has not received any payment from Mendes Junior toward the debt acquired from BNDES and has made no efforts to recover this debt from Mendes Junior. Furthermore, the agreement between BNDES and Belgo Mineira is structured so that if Belgo Mineira reached agreement with other creditors of Mendes Junior on terms more favorable than those included in the BNDES-Belgo Mineira agreement, then Belgo Mineira would compensate BNDES in the amount of the difference.
We preliminarily determine that this transaction between BNDES and Belgo Mineira is not countervailable. We find that the amount paid by Belgo Mineira to BNDES for the acquisition of Mendes Junior's debt is not less than the amount Belgo Mineira paid to the other Mendes Junior creditors. Thus, BNDES sold the debt on commercial terms. Furthermore, the interest rate being paid by Belgo Mineira on its debentures, TJLP plus 3 percent, is a commercial rate. Therefore, we preliminarily determine that no benefit exists under section 771(5)(E)(ii) of the Act. As a result, we find the transaction between BNDES and Belgo Mineira related to the acquisition of Mendes Junior's debt to be not countervailable.
Based on the information provided in the responses, we determine no responding companies applied for or received benefits under the following programs during the POI:
Based on the information provided in the responses, we preliminarily determine that the following program has been terminated:
Exemption of Import Duties, the Industrial Products Tax (“IPI”), the Merchandise Circulation Tax (“ICMS”), and the Merchant Marine Renewal Tax (“AFRMM”) on the Imports of Spare Parts and Machinery
Based on the information provided in the responses, we preliminarily determine that the following program does not exist:
In 1998, Belgo Mineira purchased 51 percent of Dedini. Prior to this transaction, Belgo Mineira owned 49 percent of the outstanding shares in Dedini. Although the petitioners alleged that Belgo Mineira purchased the remaining 51 percent of Dedini using preferential loans from BNDES, the GOB confirmed that Belgo Mineira used no BNDES financing for this purchase. Based on these facts, we determine that BNDES financing for the acquisition of Dedini does not exist.
In accordance with section 782(i)(1) of the Act, we will verify the information submitted by the respondents prior to making our final determination.
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 nonprivileged 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)(3) of the Act, if our final determination is negative, the ITC will make its final determination within 75 days after the Department makes its final determination.
Case briefs for this investigation must be submitted no later than one week after the issuance of the last verification report. Rebuttal briefs must be filed within five days after the deadline for submission of case briefs. A list of authorities relied upon, a table of contents, and an executive summary of issues should accompany any briefs submitted to the Department. Executive summaries should be limited to five pages total, including footnotes. Section 774 of the Act provides that the Department will hold a public hearing to afford interested parties an opportunity to comment on arguments raised in case or rebuttal briefs, provided that such a hearing is requested by an interested party. If a request for a hearing is made in this investigation, the hearing will tentatively be held two days after the deadline for submission of the rebuttal briefs at the U.S. Department of Commerce, 14th Street and Constitution Avenue, NW, Washington, DC 20230. Parties should confirm by telephone the time, date, and place of the hearing 48 hours before the scheduled time.
Interested parties who wish to request a hearing, or to participate if one is requested, must submit a written request to the Assistant Secretary for Import Administration, U.S. Department of Commerce, Room 1870, within 30 days of the publication of this notice. Requests should contain: (1) the party's name, address, and telephone number; (2) the number of participants; and (3) a list of the issues to be discussed. Oral presentations will be limited to issues raised in the briefs.
This determination is published pursuant to sections 703(f) and 777(i) of the Act.
Import Administration, International Trade Administration, Department of Commerce.
Notice of preliminary negative countervailing duty determination.
The Department of Commerce preliminarily determines that countervailable subsidies are not being provided to producers or exporters of carbon and certain alloy steel wire rod from Turkey.
February 8, 2002.
Jennifer D. Jones or S. Anthony Grasso, Office of Antidumping/Countervailing Duty Enforcement, Group 1, Import Administration, U.S. Department of Commerce, Room 3099, 14th Street and Constitution Avenue, N.W., Washington,D.C. 20230; telephone (202) 482-4194 and (202) 482-3853, respectively.
Unless otherwise indicated, all citations to the statute are references to the provisions of the Tariff Act of 1930, as amended by the Uruguay Round Agreements Act (“URAA”) effective January 1, 1995 (“the Act”). In addition, unless otherwise indicated, all citations to the Department of Commerce's (“the Department's”) regulations are to 19 CFR Part 351 (April 2001).
The petitioners in this investigation are Co-Steel Raritan, Inc., GS Industries, Keystone Consolidated Industries, Inc., and North Star Steel Texas, Inc. (collectively, “petitioners”).
The following events have occurred since the publication of the notice of initiation in the Federal Register. See Notice of Initiation of Countervailing Duty Investigations: Carbon and Certain Alloy Steel Wire Rod from Brazil, Canada, Germany, Trinidad and Tobago, and Turkey, 66 FR 49931 (October 1, 2001) (“Initiation Notice”).
On October 9, 2001, we issued countervailing duty (“CVD”) questionnaires to the Government of the Republic of Turkey (“GRT”) and the producers/exporters of the subject merchandise. Due to the large number of producers and exporters of carbon and certain alloy steel wire rod (“wire rod” or “subject merchandise”) in Turkey, we decided to limit the number of responding companies to the two producers/exporters with the largest volumes of exports to the United States during the period of investigation: Colakoglu Metalurji, A.S. (“Colakoglu”) and Habas Sinai ve Tibbi Gazlar Istihsal Endustrisi, A.S. (“Habas”). See October 5, 2001 memorandum to Susan Kuhbach, Respondent Selection, which is on file in the Department's Central Records Unit in Room B-099 of the main Department building (“CRU”).
Also on October 9, we received a request from the petitioners to amend the scope of this investigation to exclude certain wire rod. The petitioners submitted further clarification with respect to their scope amendment request on November 28, 2001. Additionally on November 28, the five largest U.S. tire manufacturers and the industry trade association, the Rubber Manufacturers Association (“the tire manufacturers”), submitted comments on the proposed exclusion. Counsel for the GRT and the companies submitted comments on this scope amendment request also on November
On November 14, 2001, we postponed the preliminary determination of this investigation until February 1, 2002. See Carbon and Certain Alloy Steel Wire Rod From Brazil, Canada, Germany, Trinidad and Tobago, and Turkey: Postponement of Preliminary Determinations of Countervailing Duty Investigations, 66 FR 57036 (November 14, 2001).
The Department received the GRT and company responses to the Department's questionnaires on November 30, 2001. On December 6, 2001, the petitioners submitted comments regarding these questionnaire responses. The Department issued supplemental questionnaires to the GRT and the companies on December 13, 2001, and received responses to those questionnaires on January 7, 2002. On January 14, 2002, the petitioners submitted comments regarding these questionnaire responses. The Department issued additional supplemental questionnaires to the companies on January 17, 2002, and received responses to those questionnaires on January 18, 2002. On January 24, 2002, the respondents submitted replies to the petitioners' January 14, 2002 comments. Because of the lack of time between the Department's receipt of these replies and the date of our preliminary determination, we were unable to analyze these comments fully for the preliminary determination. However, we will consider them in their entirety for our final determination.
On December 5, 2001, the petitioners filed a critical circumstances allegation with respect to Brazil, Germany, and Turkey. In a letter filed on December 21, 2001, the petitioners extended this allegation to include Trinidad and Tobago. On December 17, 2001, independently of each other, the American Wire Producers Association and Saarstahl AG submitted letters in opposition to the petitioners' critical circumstances allegation. The petitioners filed supplemental critical circumstances information and arguments relating to Turkey on December 19, 2001.
The period for which we are measuring subsidies is calendar year 2000.
The merchandise covered by this investigation is certain hot-rolled products of carbon steel and alloy steel, in coils, of approximately round cross section, 5.00 mm or more, but less than 19.0 mm, in solid cross-sectional diameter.
Specifically excluded are steel products possessing the above-noted physical characteristics and meeting the Harmonized Tariff Schedule of the United States (“HTSUS”) definitions for (a) stainless steel; (b) tool steel; (c) high nickel steel; (d) ball bearing steel; and (e) concrete reinforcing bars and rods. Also excluded are (f) free machining steel products (i.e., products that contain by weight one or more of the following elements: 0.03 percent or more of lead, 0.05 percent or more of bismuth, 0.08 percent or more of sulfur, more than 0.04 percent of phosphorus, more than 0.05 percent of selenium, or more than 0.01 percent of tellurium). All products meeting the physical description of subject merchandise that are not specifically excluded are included in this scope.
The products under investigation are currently classifiable under subheadings 7213.91.3010, 7213.91.3090, 7213.91.4510, 7213.91.4590, 7213.91.6010, 7213.91.6090, 7213.99.0031, 7213.99.0038, 7213.99.0090, 7227.20.0010, 7227.20.0090, 7227.90.6051 and 7227.90.6058 of the HTSUS. Although the HTSUS subheadings are provided for convenience and customs purposes, the written description of the scope of these investigations is dispositive.
In the Initiation Notice, we invited comments on the scope of this proceeding. As noted above, on October 9, 2001, we received a request from the petitioners to amend the scope of this investigation and the companion CVD and antidumping duty (“AD”) wire rod investigations. Specifically, the petitioners requested that the scope be amended to exclude high carbon, high tensile 1080 grade tire cord and tire bead quality wire rod actually used in the production of tire cord and bead, as defined by specific dimensional characteristics and specifications.
On November 28, 2001, the petitioners further clarified and modified their October 9 request. The petitioners suggested the following five modifications and clarifications: (1) Expand the end-use language of the scope exclusion request to exclude 1080 grade tire cord and tire bead quality that is used in the production of tire cord, tire bead, and rubber reinforcement applications; (2) clarify that the scope exclusion requires a carbon segregation per heat average of 3.0 or better to comport with recognized industry standards; (3) replace the surface quality requirement for tire cord and tire bead with simplified language specifying maximum surface defect length; (4) modify the maximum soluble aluminum from 0.03 to 0.01 for tire bead wire rod; and (5) reduce the maximum residual element requirements to 0.15 percent from 0.18 percent for both tire bead and tire cord wire rod and add an exception for chromium-added tire bead wire rod to allow a residual of 0.10 percent for copper and nickel and a chromium content of 0.24 to 0.30 percent.
Also on November 28, 2001, the tire manufacturers submitted a letter to the Department in response to petitioners' October 9, 2001 submission regarding the scope exclusion. In this letter, the tire manufacturers supported the petitioners' request to exclude certain 1080 grade tire cord and tire bead wire rod used in the production of tire cord and bead.
Additionally, the tire manufacturers requested that the Department clarify whether 1090 grade was covered by the petitioners' exclusion request. The tire manufacturers further requested an exclusion from the scope of this investigation for 1070 grade wire rod and related grades (0.69 percent or more of carbon) because, according to the tire manufacturers, domestic production cannot meet the requirements of the tire industry.
The tire manufacturers stated their opposition to defining scope exclusions on the basis of actual end use of the product. Instead, the tire manufacturers support excluding the product if it is imported pursuant to a purchase order from a tire manufacturer or a tire cord wire manufacturer in the Untied States. Finally, the tire manufacturers urged the Department to adopt the following specifications to define the excluded product: A maximum nitrogen content of 0.0008 percent for tire cord and 0.0004 percent for tire bead; maximum weight for copper, nickel, and chromium, in the aggregate, of 0.0005 percent for both types of wire rod. In their view, there should be no additional specifications and tests, as proposed by the petitioners.
On January 28, 2002, the tire manufacturers responded to the petitioners' November 28, 2001 letter. The tire manufacturers continue to have three major concerns about the product exclusion requested by the petitioners. First, the tire manufacturers urge that 1070 grade tire cord quality wire rod be excluded (as it was in the 1999 Section 201 investigation). Second, they continue to object to defining the exclusion by actual end use. Finally, they reiterate their earlier position on
At this point in the proceeding, we recognize that the interested parties have both advocated excluding certain tire rod and tire core quality wire rod. However, the Department continues to examine this issue. Therefore, for this preliminary determination we have not amended the scope, and this preliminary determination applies to the scope as described in the Initiation Notice.
We plan to reach a decision as early as possible in these proceedings. Interested parties will be advised of our intentions prior to the final determination and will have the opportunity to comment.
Because Turkey is a “Subsidies 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 Turkey materially injure, or threaten material injury to, a U.S. industry. On October 15, 2001, the ITC transmitted to the Department its preliminary determination that there is a reasonable indication that an industry in the United States is being materially injured by reason of imports from Turkey of the subject merchandise. See Carbon and Certain Alloy Steel Wire Rod From Brazil, Canada, Egypt, Germany, Indonesia, Mexico, Moldova, South Africa, Trinidad and Tobago, Turkey, Ukraine, and Venezuela, Investigations Nos. 701-TA-417-421 and 731-TA-953-963, Determinations and Views of the Commission, USITC Publication No. 3456, 66 FR 54539 (October 29, 2001).
The petitioners have alleged that critical circumstances within the meaning of section 703(e) of the Act exist with respect to the subject merchandise.
We need not address the critical circumstances allegation at this time. Because our preliminary determination is negative, we are not ordering a suspension of liquidation pursuant to section 703(d) of the Act. Consequently, retroactive suspension of liquidation pursuant to section 703(e)(2) of the Act is not applicable.
Pursuant to 19 CFR 351.524(b), non-recurring subsidies are allocated over a period corresponding to the average useful life (“AUL”) of the renewable physical assets used to produce the subject merchandise. 19 CFR 351.524(d)(2) creates a rebuttable presumption that the AUL will be taken from the U.S. Internal Revenue Service's 1977 Class Life Asset Depreciation Range System (the “IRS Tables”). For wire rod, the IRS Tables prescribe an AUL of 15 years. None of the responding companies or interested parties disputed this allocation period. Therefore, we have used the 15-year allocation period for all respondents.
19 CFR 351.525(a)(6) directs that the Department will attribute subsidies received by certain affiliated companies to the combined sales of those companies. Based on our review of the responses, we find that “cross ownership” does not exist with respect to certain Colakoglu or Habas affiliates, as discussed below.
Colakoglu: Colakoglu reports that it has numerous subsidiaries and affiliations with various companies. However, our analysis indicates no basis to attribute any subsidies received by these other subsidiaries or affiliates to the production of the subject merchandise. Specifically, although cross-ownership may exist with these other companies, they do not produce the subject merchandise as required in 19 CFR 351.525(b)(6), nor do they meet any of the other criteria specified in 19 CFR 351.525(b)(6).
Habas: Habas reports that it has numerous subsidiaries and affiliations with various companies. However, our analysis indicates no basis to attribute any subsidies received by these other subsidiaries or affiliates to the production of the subject merchandise. Specifically, although cross-ownership may exist with these other companies, they do not produce the subject merchandise as required in 19 CFR 351.525(b)(6), nor do they meet any of the other criteria specified in 19 CFR 351.525(b)(6).
The Department uses company-specific interest rates, where possible, to determine whether government-provided loans under investigation confer a benefit. (See 19 CFR 351.505(a)(2)). In this case, neither Colakoglu nor Habas submitted company-specific benchmark interest rates for lira denominated loans.
Where no company-specific benchmark interest rates are available, 19 CFR 351.505(a)(3)(ii) directs us to use a national average interest rate as the benchmark. The GRT does not maintain or publish data concerning the predominant national average short-term interest rates in Turkey. Therefore, we have calculated benchmark interest rates for lira denominated loans based on the short-term interest rates in Turkey for 2000 as reported weekly by The Economist. This methodology is consistent with Certain Welded Carbon Steel Pipes and Tubes and Welded Carbon Steel Line Pipe from Turkey; Final Results of Countervailing Duty Administrative Review, 65 FR 49230 (August 11, 2000) (“1998 Pipe Final”) and Certain Pasta From Turkey; Final Results of Countervailing Duty Administrative Review, 66 FR 64398 (December 13, 2001) (“1999 Pasta Final”).
We note that short-term interest rates in Turkey fluctuated significantly during the POI. Consequently, we have calculated monthly benchmark rates. Therefore, for example, the interest rate paid on a government loan obtained in January 2000 has been compared to the interest rate paid on a benchmark loan obtained the same month.
With respect to US dollar denominated loans, Habas has provided the interest rates it paid on short-term US dollar denominated commercial loans. In accordance with 19 CFR 351.505(a)(2), we have used these interest rates as the benchmark rate for Habas.
Pursuant to 771(5)(E)(ii) of the Act, the Department uses a “comparable commercial loan that the recipient could actually obtain on the market” as the benchmark in determining whether a government provided loan confers a benefit. In the preamble of the Department's regulations, it states that it is the Department's practice to normally compare effective interest rates rather than nominal rates in making this comparison. However, where effective rates are not available, the preamble reads that we will compare nominal rates or, as a last resort, nominal to effective rates. See 63 CFR at 65362 (November 25, 1998).
For our preliminary determination, the respondents argue that we should use the effective rates paid by the companies on the government loans being investigated. These effective rates include required commissions and fees paid to the intermediary banks that guarantee the loans (as required by the Turkish Eximbank). As noted above, we would normally use the effective rates paid on the government loan. However, our benchmark rates drawn from The Economist do not include these commissions or fees. At this time, we have insufficient information on the record to either adjust the rates reported
Regarding Pre-Shipment Loans from the Turkish Eximbank, Habas reported only effective rates, i.e., inclusive of the commissions and fees paid to intermediary banks. Thus, for these loans, we compared the effective rates to our nominal benchmark rates. However, in all other instances, we compared the benchmark rates to the companies' reported rates, exclusive of the commissions and fees paid to intermediary banks, i.e., we made our comparison on a nominal basis.
During the POI, the inflation rate in Turkey exceeded 25 percent, as shown in the International Monetary Fund's International Financial Statistics (“IFS”). Adjusting the subsidy benefits and the sales figures for inflation neutralizes any potential distortion in our subsidy calculations caused by high inflation and the timing of the receipt of the subsidy. Consistent with the methodology used in 1998 Pipe Final and 1999 Pasta Final, we calculated the ad valorem subsidy rates for each program by multiplying the benefit in the month of receipt by the rate of inflation from the month of receipt until the end of the POI. Next, we adjusted the monthly sales values in the same way and added these adjusted values, thus obtaining total sales for the POI valued at December 2000 prices. In these calculations, we used the Wholesale Price Index Wholesale Price Index as reported in the IFS.
Based upon our analysis of the petition and the responses to our questionnaires, we determine the following:
According to Article 40 of the Income Tax Law, documented expenditures made to earn business income are deductible from taxable income. On January 1, 1995, Article 19 of Law No. 4108 amended Article 40 to allow taxpayers to deduct expenses related to export, construction, maintenance, assembly or transportation activities abroad, in an amount not to exceed 0.5 percent of the hard currency income resulting from these activities, in addition to other expenses specified in this article.
Consistent with Certain Welded Carbon Steel Pipes and Tubes and Welded Carbon Steel Line Pipe from Turkey; Final Results and Partial Rescission of Countervailing Duty Administrative Reviews, 63 FR 18885, 18886 (April 16, 1998) (“1996 Pipe Final”), we have preliminarily determined that this tax exemption is a countervailable subsidy. First, the exemption provides a financial contribution within the meaning of section 771(5)(D)(ii) of the Act and 19 CFR 351.509(a) because it represents revenue forgone by the GRT. The exemption provides a benefit in the amount of the tax saving to the company pursuant to section 771(5)(E) of the Act and 19 CFR 351.509(a). Also, the subsidy is specific under section 771(5A)(B) of the Act because its receipt is contingent upon export performance.
Of the companies investigated, only Habas utilized this tax exemption on the tax return it filed in 2000. The Department typically treats tax exemptions as recurring grants in accordance with 19 CFR 351.524(c)(1). To calculate the countervailable subsidy under this program, we divided the tax savings realized during the POI by the company's export sales during the POI, adjusting for inflation as described in the Subsidies Valuation Information section above. On this basis, we preliminarily determine the countervailable subsidy from this program to be 0.11 percent ad valorem for Habas.
Through this program, the Turkish Eximbank extends short-term US dollar and Lira denominated loans to exporters through intermediary commercial banks. Turkish Eximbank allocates certain credit lines to these intermediary banks. The intermediary commercial banks, which take the risk that the borrower may default, can require additional fees to offset this risk and may also charge a commission. Exporters, manufacturers-exporters, and export-oriented manufacturers are eligible to participate in this program provided they exported a specified amount during the previous calendar year and they commit to future exports within a specified period of time. Like all other export-related short-term loans, the pre-shipment export loans are exempted from the Resource Utilization Support Fund tax (“KKDF”), Banking and Insurance tax (“BIST”), and stamp tax (see Foreign Exchange Loan Assistance, infra).
The Department has previously found that these loans confer a countervailable subsidy within the meaning of section 771(5) of the Act because the interest rate paid on these loans is less than the amount the recipient would pay on a comparable commercial loan. See, 1999 Pasta Final, Decision Memorandum at p. 4 (December 13, 2001). The loans provide a financial contribution in the form of a direct transfer of funds from the GRT, pursuant to section 771(5)(D)(i) of the Act, that bestow a benefit in the amount of the difference between the benchmark interest rate (including the taxes listed above) and the interest rate and fees paid by the recipient companies. (See section 771(5)(E)(ii) of the Act). In 1999 Pasta Final, we found the pre-shipment export loans to be specific in accordance with section 771(5A)(B) of the Act because receipt of these loans is contingent upon export performance. We have also previously found that these loans are not tied to a particular export destination and have, therefore, treated this program as an untied export loan program which renders it countervailable regardless of whether or not the loans were used for exports to the United States. ( See Certain Welded Carbon Steel Pipes and Tubes and Welded Carbon Steel Line Pipe from Turkey; Preliminary Results of Countervailing Duty Administrative Review, 65 FR 18070, 18072 (April 6, 2000)). In this investigation, no new information has been provided that would warrant reconsideration of these determinations.
Pursuant to 19 CFR 351.505(a), we have calculated the benefit as the difference between the payments of interest and taxes that Colakoglu and Habas made on their pre-shipment export loans during the POI and the payments the companies would have made on comparable commercial loans. We divided the resulting benefit by the value of each company's exports during the POI, adjusting for inflation as described in the Subsidies Valuation Information section above. On this basis, we preliminarily determine the countervailable subsidy from this program to be 0.04 percent ad valorem for Colakoglu and 0.11 percent ad valorem for Habas.
The Foreign Trade Corporate Companies Rediscount Credit Facility was implemented to assist large export trading companies in their export financing needs. This program is
For the eligible companies, the Turkish Eximbank will provide short-term export credits based on their past export performance. Through this credit program, the Turkish Eximbank extends short-term export credit directly to exporters in lira and foreign currencies up to 100 percent of FOB export commitments with a repayment period up to 180 days. Additionally, companies are exempt from taxes, duties, and related fees associated with the operations and processes of obtaining these credits under the provisions of the Export Encouragement Decree and Communiques. Of the companies investigated, only Colakoglu received Eximbank short-term export credits under this program.
We have preliminarily determined that this program is a countervailable subsidy within the meaning of section 771(5) of the Act. The loans constitute a financial contribution in the form of a direct transfer of funds under section 771(5)(D)(i) of the Act. A benefit exists under section 771(E)(ii) of the act in the amount of difference between the payment of interest and taxes that Colakoglu made on its Foreign Trade Corporate Companies Rediscount loan during the POI and the payment the company would have made on a comparable commercial loan. The program is specific pursuant to section 771(5A)(B) of the Act because receipt of the loans is contingent upon export performance.
Pursuant to 19 CFR 351.505(a), we have calculated the benefit as the difference between the payment of interest and taxes that Colakoglu made on its Foreign Trade Corporate Companies Rediscount loan during the POI and the payment the company would have made on a comparable commercial loan. This benefit was divided by Colakoglu's total exports to the United States during the POI, adjusting for inflation as described in the Subsidies Valuation Information section above. On this basis, we determine the countervailable subsidy from this program to be 0.00 percent ad valorem for Colakoglu.
The Turkish Undersecretariat of Foreign Trade Regulation 95/7, Article 14, allows the Turkish Central Bank, commercial banks, insurance companies, and other organizations to exempt certain fees on loans or credits used in export-related and foreign-exchange earning activities. Specifically, loans obtained for these activities are exempt from the KKDF tax, the BIST, and stamp tax. Both the KKDF and BIST taxes are calculated based on a certain percentage of the interest paid on the qualifying loan. The stamp tax is calculated based on a certain percentage of the principal amount.
In prior proceedings, the Department has treated the KKDF, BIST, and stamp tax exemptions, collectively, under the “Foreign Exchange Loan Assistance program” when these exemptions were linked to underlying loans which were countervailable. (See, e.g., Certain Welded Carbon Steel Pipes and Tubes and Welded Carbon Steel Line Pipe from Turkey; Final Results of Countervailing Duty Administrative Review, 64 FR 44496, 44497 (August 16, 1999) (“1997 Pipe Final”)). Alternatively, the Department has treated these exemptions under the name of the countervailable loan on which these fees are calculated, such as “pre-shipment export loans.” More recently, in 1999 Pasta Final, the Department treated these exemptions separately, under “KKDF,” “BIST,” and “stamp tax” exemptions. Furthermore, in 1999 Pasta Final, because these exemptions are allowed both on loans at preferential interest rates (see Pre-Shipment Export Loans, supra) and on loans at non-preferential interest rates, we included the countervailable benefit from these exemptions in the benefit on the underlying countervailable loan, when applicable, and as separate benefits when linked to non-countervailable loans. We continue to follow this methodology in the instant investigation. Therefore, tax exemptions on preferential rate, pre-shipment export loans, foreign trade corporate rediscount facilities, and export-related guarantees (see taxes, duties and credit charges exemption, infra) have been included in the calculation of the countervailable benefit for those programs. This discussion, therefore, addresses only KKDF tax exemptions and BIST tax exemptions on non-preferential export-related loans. For a discussion of the stamp tax exemption, see “Programs Preliminarily Determined to be not Countervailable,” infra.
In prior proceedings, the Department has found that KKDF tax exemptions confer a countervailable subsidy within the meaning of section 771(5) of the Act. (See, e.g., 1999 Pasta Final; Certain Welded Carbon Steel Pipes and Tubes and Welded Carbon Steel Line Pipe from Turkey; Preliminary Results and Partial Recission Administrative Review, 62 FR 64808, 64810 (December 9, 1997) (“1996 Pipe Prelim”); and Certain Welded Carbon Steel Pipes and Tubes and Welded Carbon Steel Line Pipe from Turkey; Preliminary Results of Countervailing Duty Administrative Review, 62 FR 16782, 16785 (April 8, 1997) (“1995 Pipe Prelim”)). Nothing on the record of the instant investigation directs us to reexamine our prior decisions.
Therefore, we preliminarily determine, according to section 771(5)(D)(ii) of the Act, that the KKDF tax exemptions provide a financial contribution in the form of revenue forgone by the GRT. We further preliminarily determine, according to section 771(5)(E)(ii)of the Act, that they provide a benefit in the amount of the tax exemptions. Finally, because the tax exemptions are contingent upon export performance, we preliminarily determine that they are specific in accordance with section 771(5A)(B) of the Act. Thus, we preliminarily determine that KKDF tax exemptions are countervailable.
During the POI, Colakoglu received and paid interest on US dollar export-related loans from various commercial banks; Habas received and paid interest on both Lira and US dollar export-related loans from various commercial banks. The Department treats tax exemptions as recurring grants in accordance with 19 CFR 351.524(c)(1). To calculate the countervailable subsidy on KKDF tax exemptions, we divided the total amount of the exemptions received by each respondent on export-related loans outstanding during the POI by the value of each respondent's exports during the POI, adjusting for inflation as described in the Subsidies Valuation Information section, supra. On this basis, we preliminarily determine the countervailable subsidy from this program to be 0.05 percent ad valorem for Colakoglu and 0.01 percent ad valorem for Habas.
In prior proceedings, the Department has found that BIST exemptions confer a countervailable subsidy within the
During the POI, Colakoglu received and paid interest on US dollar export-related loans from various commercial banks; Habas received and paid interest on both Lira and US dollar export-related loans from various commercial banks. The Department treats tax exemptions as recurring grants in accordance with 19 CFR 351.524(c)(1). To calculate the countervailable subsidy on BIST tax exemptions, we divided the total amount of the exemptions received by each respondent on export-related loans outstanding during the POI by the value of each respondent's exports during the POI, adjusting for inflation as described in the Subsidies Valuation Information section, supra. On this basis, we preliminarily determine the countervailable subsidy from this program to be 0.08 percent ad valorem for Colakoglu and 0.03 percent ad valorem for Habas.
Although we received no information from the GRT regarding this program, Colakoglu reported having received this exemption as a countervailable benefit during the POI. We will be requesting additional information on this program from the GRT. Based solely on Colakoglu's response, we preliminarily determine that it received a countervailable benefit in the amount of the exemption granted under this program. We preliminarily determine that this program provides a financial contribution in the form of foregone revenue under section 771(D)(ii) of the Act. Furthermore, we preliminarily determine that this program is specific under section 771(5A)(B) of the Act because it is an export subsidy.
The Department treats tax exemptions as recurring grants in accordance with 19 CFR 351.524(c)(1). To calculate the countervailable subsidy on Colakoglu's FCET exemptions, we divided the total amount of the exemptions received by Colakoglu on export-related loans outstanding during the POI by the value of Colakoglu's exports during the POI, adjusting for inflation as described in the Subsidies Valuation Information section, supra. On this basis, we preliminarily determine the countervailable subsidy from this program to be 0.00% percent ad valorem for Colakoglu.
The GRT states that in order to benefit from the Taxes, Duties, and Credit Charges Exemption program, a company must hold an “investment incentive certificate” and demonstrate that it can achieve U.S. $10,000 of exports within two years upon the completion of the physical investment. According to the GRT, during the investment stage, there are certain taxes, such as for operations and processes of obtaining standard credits through banks, and other official dues, such as land registration and company registration. Under this program, a company that holds an investment incentive certificate and commits to export U.S. $10,000, is exempt from paying these taxes otherwise due. These exemptions are conferred under Temporary Article 2 of the Law No. 3505 (December 31, 1988).
Colakoglu, in its January 24, 2002, submission, and the GRT, in its January 7, 2002, response, state that this program falls under the umbrella of the General Incentive Program (“GIP”). Moreover, Colakoglu and the GRT argue that the petitioners and the Department are confusing this program with the Investment Allowance program also under the GIP. We agree with Colakoglu and the GRT that this program is part of the GIP. However, we do not agree that this program is actually part of the Investment Allowance program. In the “Verification Report of the Government of Turkey,” dated March 25, 1996, on the record of Certain Welded Carbon Steel Pipes and Tubes and Welded Carbon Steel Line Pipe From Turkey; Final Results of Countervailing Duty Administrative Reviews, 62 FR 43984 (August 18, 1997), under the section “Taxes, Fees (Duties), Charge Exemption,” it states that companies that obtain financing for their investment projects are exempted from paying taxes, duties, and charges that they would otherwise have to pay if they make an export commitment. Moreover, it quotes government officials as stating that this is the only GIP program with an export requirement. This position coincides with the GRT's statements in the instant investigation that in order to benefit from this program a company must make an export commitment. See GRT's November 30, 2001 Questionnaire Response at 36, 39. This export commitment is what distinguishes this program from the Investment Allowance program.
During the POI, Habas obtained a loan from a foreign bank for investment in a power plant. Habas posted bank guarantees issued by a Turkish bank on this loan. The letters of guarantee, in accordance with this program, were exempt from the stamp tax, the KKDF, and the BIST.
As discussed below, we preliminarily determine the stamp tax exemption to be non-countervailable. See Stamp Tax, infra. As previously discussed under the Foreign Exchange Loan Assistance program, we preliminarily are determining that exemptions from paying the KKDF and the BIST are countervailable subsidies within the meaning of section 771(5) of the Act. These exemptions, according to section 771(5)(D)(ii) of the Act, represent revenue forgone by the GRT and provide a benefit, according to 771(5)(E)(ii) of the Act, in the amount of the tax savings to the company. Also, this subsidy program is specific in accordance with 771(5A)(B) of the Act because its receipt is contingent upon export performance.
The Department typically treats tax exemptions as recurring grants in accordance with 19 CFR 351.524(c)(1). Thus, to calculate the countervailable subsidy, we divided the tax savings realized during the POI by the company's export sales during the POI. On this basis, we determine the countervailable subsidy from this program to be 0.36 percent ad valorem for Habas.
Colakoglu reported certain tax exemption in response to our questions about this program. Based on our analysis of Colakoglu's response, the reported exemptions related to the company's export financing. Therefore, we have calculated the benefit for Colakoglu under export loan programs described above.
Under the GIEP, which is the successor to GIP examined in Certain Pasta from Turkey; Final Affirmative
In 1963, the Turkish Income Tax Law, Articles 1-5, initiated the investment allowance which allows a company who has qualified for an “Investment Incentive Certificate” to deduct certain investment expenditures from its taxable income. These allowances fall under the umbrella of GIEP. An investment must meet certain qualifications to be deductible: for example, investments which generally qualify under this program are those related to buildings, machinery, equipment, and vehicles related to the main activity of the business. Furthermore, varying levels of deduction are granted depending upon the location, type of investment, or amount of investment: (1) a 40 percent allowance is available in developed regions; (2) a 100 percent allowance is available in Priority Development Regions and Organized Industrial Regions; and (3) an allowance of up to 200 percent for certain industrial investments of at least US $250 million. Investments qualifying for the maximum 200 percent allowance must meet two of the following criteria: provide international competitiveness, necessitate high technology, produce a high amount of value added, increase tax revenues, or increase employment.
We note that the investigation of the 200 percent investment allowance is limited to those companies who have qualified for the allowance based on the “international competitiveness” criterion. (See September 24, 2001 Initiation Checklist). Neither Colakoglu nor Habas reported receiving the entire 200 percent investment allowance during the POI.
During the POI, both Colakoglu and Habas used certain GIEP Investment Allowance benefits. Colakoglu reports receiving an Investment Allowance based on its investment providing international competitiveness, increasing tax revenues and increasing employment. Habas reports receiving Investment Allowances based on its investments providing international competitiveness, necessitating high technology and increasing employment. The tax deduction which Colakoglu used during the POI resulted from an investment incentive certificate approved in 1998. The tax deduction which Habas used during the POI resulted from multiple investment incentive certificates approved in the following years: 1994 -1997, 1999, and 2000. In both 1998 Pipe Final and 1999 Pasta Final, we analyzed the specificity of the Investment Allowances by examining the specificity of the investment incentive certificates. We have applied the same type of analysis to the Investment Allowances used by Habas and Colakoglu in this investigation.
In order to determine whether the Investment Allowance benefits are specific, in law or in fact, to an enterprise or industry, according to section 771(5A)(D) of the Act, as we did in the 1998 Pipe Final and 1999 Pasta Final, we examined the following factors as applicable to the investment incentive certificates: (1) whether the enabling legislation expressly limits access to the subsidy to an enterprise or industry; (2) whether the actual recipients of the subsidy, whether considered on an enterprise or industry basis, are limited in number; (3) whether an enterprise or industry is a predominant user of the subsidy; (4) whether an enterprise or industry receives a disproportionately large amount of the subsidy; and (5) whether the manner in which the authority providing the subsidy has exercised discretion in the decision to grant the subsidy indicates that an enterprise or industry is favored over others.
Consistent with the Department's treatment of de jure specificity in 1998 Pipe Final and 1999 Pasta Final, we find that this program's enabling legislation does not expressly limit access to an enterprise or industry; therefore, the subsidy is not de jure specific.
In determining whether this program is de facto specific, we examined information supplied by the GRT, including a breakdown of the number of companies within each industry and region that received investment incentive certificates for 1998 - 2000. This data shows that more than 10,000 certificates were issued to different companies in numerous and varied industries and regions throughout Turkey. Similarly, when compared to the number of certificates issued to other sectors, including agriculture, mining, and services, e.g., there is no record evidence which indicates that either respondent, or the steel industry as a whole, received a disproportionate number of certificates. Instead, we find the record evidence in this investigation indicates that investment incentive certificates were widely and evenly distributed with no one sector, enterprise, or region receiving a disproportionate amount.
Therefore, we preliminarily determine that the steel industry did not receive a disproportionate number of investment incentive certificates during the time period 1998-2000 when compared to the overall number of certificates issued. On this basis, we preliminarily determine that the Investment Allowances received under investment incentive certificates issued between 1998-2000 are not specific pursuant to section 771(5A) of the Act and, therefore, not countervailable.
Although the GRT has not provided in the instant investigation distribution information for investment incentive certificates granted prior to 1998, we note that in the 1998 Pipe Final, we confirmed that the iron and steel industry did not disproportionately benefit from investment incentive certificates for the year 1996. Based on our finding in 1998 Pipe Final, we preliminarily determine that the steel industry did not receive a disproportionate number of investment incentive certificates during 1996. On this basis, we preliminarily determine that the Investment Allowances received under investment incentive certificates issued in 1996 are not specific under section 771(5A) of the Act and, therefore, are not countervailable.
Finally, we note that Habas received certain Investment Allowances based on investment incentive certificates issued in 1994, 1995, and 1997. Because we do not have distribution information for these investment incentive certificates, we are unable to analyze the specificity of this program in 1994, 1995, and 1997. However, we are issuing a request for this information which we will analyze for the final determination.
Through this program, exporters can obtain short-term export credit insurance from the Turkish Eximbank. These are one-year blanket insurance policies which cover up to 90 percent of losses incurred due to political risks (e.g., cancellation of the buyer's import permit or license and losses resulting from war, revolution, etc.) and commercial risks (e.g., the insolvency of the buyer or the refusal or failure of the buyer to take delivery of the goods). The insurance provided under this program is a post-shipment insurance because the Turkish Eximbank becomes liable only if the loss occurs on or after the date of shipment.
The premium rates differ depending on the following factors: (1) whether the buyer is a public or a private entity, (2) the risk classification of the buyer's country, (3) the payment terms, and (4) the length of the credit period. Previously, it was obligatory for companies taking pre-shipment export loans (see above) to use the export credit insurance program. However, since February 1997, use of the export credit insurance program is voluntary for borrowers under the pre-shipment export loan programs.
In the 1999 Pasta Final, the Department found that for the calendar year 1999 the premiums paid for the export credit insurance and other income generated by the program exceeded the insurance claims paid to participating companies. Upon review of information provided by the GRT in the current investigation, we preliminarily find that for the year 2000 the premiums paid for the export credit insurance and other income generated by the program also exceeded the insurance claims paid to participating companies. On this basis, consistent with the 1999 Pasta Final, and in accordance with 19 CFR 351.520(a)(1), we preliminarily find the export credit insurance program to be not countervailable.
In the 1999 Pasta Final, we found this program to be non-countervailable. Specifically, in the 1999 Pasta Final, we found that the stamp tax exemption is an indirect tax as defined in 19 CFR 351.102(b). In accordance with 19 CFR 351.517(a), the non-excessive exemption of indirect taxes upon exports is not countervailable. Nothing on the record of the current investigation indicates that the stamp tax exemptions on export-related loans were excessive. Therefore, consistent with the 1999 Pasta Final, we preliminarily determine that the stamp tax exemption on pre-shipment and other export-related loans is not countervailable.
A Customs Duty Exemption program was first established in Turkey on January 24, 1980, by the Export Promotion Decree numbered 8/82. On December 23, 1999, the GRT issued “Resolution Concerning Domestic Processing Regime,” Resolution Number 99/13819, with the intent of increasing Turkish exports by allowing procurement of raw materials at world market prices. Under this program, companies are exempt from paying customs duties and value added taxes (“VAT”) on raw material imports to be used in the production of exported goods. In place of payments, a company will provide a letter of guarantee worth twice the value of the imported raw material. The guarantee letter is returned to the company upon fulfillment of the committed export.
To participate in this program a company must hold an “Inward Processing Certificate,” which lists the amount of raw materials to be imported and the amount of product to be exported. The key issues determining eligibility for this exemption are whether a company has fulfilled its commitments made in previous inward processing certificates granted to the company and whether the kind and amount of the good to be exported is appropriate to the kind and amount of raw material to be imported. In cases where excess raw materials are requested, an appropriate amount of raw material will be calculated and approved. Additionally, according to the import processing system, the value of imported raw material cannot exceed the value of the committed export.
In regard to the customs duty exemption granted under this program, pursuant to 19 CFR 351.519(a)(1)(ii), a benefit exists to the extent that the exemption extends to inputs that are not consumed in the production of the exported product, making normal allowances for waste, or if the exemption covers charges other than import charges that are imposed on the input. In regard to the VAT exemption granted under this program, pursuant to 19 CFR 351.518(a)(1), a benefit exists to the extent that the exemption extends to inputs that are not consumed in the production of the exported product, making normal allowance for waste, or if the exemption covers taxes other than indirect taxes that are imposed on the input.
Colakoglu and Habas imported raw materials used in the production of wire rod under Inward Processing Certificates. However, there is no indication that either company used these raw material inputs for any other product besides those exported or that the amount received under these exemptions was otherwise excessive. On this basis, we preliminarily determine that the tax and duty exemption on raw material imports under the Inward Processing Certificates are not countervailable.
Based on the information provided in the responses, we determine no responding companies applied for or received benefits under the following programs during the POI:
Based on the information provided in the responses, we preliminarily determine that the following program has been terminated:
Based on the information provided in the responses, we preliminarily determine that the following program does not exist:
In accordance with section 782(i)(1) of the Act, we will verify the information submitted by the respondents prior to making our final determination.
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 nonprivileged 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)(3) of the Act, if our preliminary determination is negative, the ITC will make its final determination within 75 days after the Department makes its final determination.
Case briefs for this investigation must be submitted no later than one week after the issuance of the last verification report. Rebuttal briefs must be filed within five days after the deadline for submission of case briefs. A list of authorities relied upon, a table of contents, and an executive summary of issues should accompany any briefs submitted to the Department. Executive summaries should be limited to five pages total, including footnotes. Section 774 of the Act provides that the Department will hold a public hearing to afford interested parties an opportunity to comment on arguments raised in case or rebuttal briefs, provided that such a hearing is requested by an interested party. If a request for a hearing is made in this investigation, the hearing will tentatively be held two days after the deadline for submission of the rebuttal briefs at the U.S. Department of Commerce, 14th Street and Constitution Avenue, NW, Washington, DC 20230. Parties should confirm by telephone the time, date, and place of the hearing 48 hours before the scheduled time.
Interested parties who wish to request a hearing, or to participate if one is requested, must submit a written request to the Assistant Secretary for Import Administration, U.S. Department of Commerce, Room 1870, within 30 days of the publication of this notice. Requests should contain: (1) the party's name, address, and telephone number; (2) the number of participants; and (3) a list of the issues to be discussed. Oral presentations will be limited to issues raised in the briefs.
This determination is published pursuant to sections 703(f) and 777(i) of the Act.
Import Administration, International Trade Administration, Department of Commerce.
Notice of preliminary affirmative countervailing duty determination.
The Department of Commerce preliminarily determines that countervailable subsidies are being provided to producers or exporters of carbon and certain alloy steel wire rod from Canada. For information on the estimated countervailing duty rates, see infra section on “Suspension of Liquidation.”
February 8, 2002.
Sally Hastings or Andrew Covington, Office of Antidumping/Countervailing Duty Enforcement, Group 1, Import Administration, U.S. Department of Commerce, Room 3099, 14th Street and Constitution Avenue, N.W., Washington, D.C. 20230; telephone (202) 482-3464 and (202) 482-3534, respectively.
Unless otherwise indicated, all citations to the statute are references to the provisions of the Tariff Act of 1930, as amended by the Uruguay Round Agreements Act (“URAA”) effective January 1, 1995 (“the Act”). In addition, unless otherwise indicated, all citations to the Department's regulations are to 19 CFR Part 351 (April 2001).
The petitioners in this investigation are Co-Steel Raritan, Inc., GS Industries, Keystone Consolidated Industries, Inc., and North Star Steel Texas, Inc. (collectively, “petitioners”).
The following events have occurred since the publication of the notice of initiation in the Federal Register. See Notice of Initiation of Countervailing Duty Investigations: Carbon and Certain Alloy Steel Wire Rod from Brazil, Canada, Germany, Trinidad and Tobago, and Turkey, 66 FR 49931 (October 1, 2001) (“Initiation Notice”).
On October 9, the Department of Commerce (“the Department”) received a request from the petitioners to amend the scope of this investigation to exclude certain wire rod. The petitioners submitted further clarification with respect to their scope amendment request on November 28, 2001. Also on November 28, 2001, the five largest U.S. tire manufacturers and the industry trade association, the Rubber Manufacturers Association, submitted comments on the proposed exclusion. The tire manufacturers submitted additional comments on January 28, 2002.
On October 11, 2001, the Department issued countervailing duty (“CVD”) questionnaires to the Government of Canada (“GOC”) and the producers/exporters of the subject merchandise. Due to the large number of producers and exporters of carbon and certain alloy steel wire rod (“wire rod” or “subject merchandise”) in Canada, we decided to limit the number of responding companies to the three producers/exporters with the largest volumes of exports to the United States during the period of investigation: Ispat Sidbec Inc. (“Ispat Sidbec”), Ivaco Inc. (“Ivaco”) and Stelco Inc. (“Stelco”). See October 4, 2001 memorandum to Susan Kuhbach, Respondent Selection, which is on file in the Department's Central
On October 18, 2001, the petitioners filed letters raising several concerns with respect to the Department's initiation of this investigation and the concurrent countervailing duty investigations of wire rod from Brazil, Germany, and Trinidad and Tobago. The Department addressed these concerns in the December 4, 2001 memorandum from Susan Kuhbach to Richard Moreland, entitled “Petitioners' Objections to Department's Initiation Determinations,” which is on file in the Department's CRU. For Canada, the Department also initiated an investigation of two alleged subsidies raised in the petitioners' October 18, 2001 letter. Supplemental questionnaires on these alleged subsidies were sent to the GOC on December 6, 2001.
On November 14, 2001, we published a postponement of the preliminary determination of this investigation until February 1, 2002. See Carbon and Certain Alloy Steel Wire Rod From Brazil, Canada, Germany, Trinidad and Tobago, and Turkey: Postponement of Preliminary Determinations of Countervailing Duty Investigations, 66 FR 57036 (November 14, 2001).
The Department received responses to its countervailing duty questionnaires from the GOC, the Government of Quebec (GOQ), and the companies from November 19 through December 4, 2001. The GOC and Stelco responded to the Department's December 6, 2001 questionnaires regarding the newly initiated subsidies allegations on December 19, 2001.
Comments on these questionnaire responses were received from the petitioners between December 13, 2001, and January 7, 2002. Included in the petitioners' December 13, 2001 comments regarding Stelco was a request that the Department seek more information about “other research” initiatives undertaken by Stelco and, in particular, Stelco's relationship with the McMaster Steel Research Center. The petitioners alleged that this Center receives both federal and provincial funding for its research activities under the Ontario Research and Development Challenge Fund (“ORDCF”) and the Natural Sciences and Engineering Research Council of Canada (“NSERC”). Based on our review of the supporting documentation submitted by the petitioners regarding ORDCF and NSERC, there is no indication that funding provided by these organizations is limited to specific enterprises or industries in Ontario or Canada, respectively, as required by section 771(5)(A) of the Act. Therefore, we have not investigated Stelco's involvement with the McMaster Steel Research Center.
In their December 20, 2001 comments regarding the GOQ's questionnaire response, the petitioners raised issues concerning the sale of Sidbec-Dosco to Ispat Sidbec. On January 17, 2002, the petitioners alleged that Ispat Sidbec received countervailable subsidies in conjunction with its purchase of Sidbec-Dosco. Specifically, the petitioners claimed that a subsidy was conferred in the amount of the difference between the fair market value of Sidbec-Dosco and the amount paid for the company by Ispat. The petitioners alleged additional subsidies arising from the change in ownership that are proprietary and cannot be summarized in this notice.
Regarding the petitioners' allegation that the price paid for Sidbec-Dosco did not reflect fair market value, it is the Department's practice not to conduct an analysis of whether a sales transaction reflects fair value when a change-in-ownership occurs and we find that the pre-sale and post-sale entities are the same “person.” (See “Final Results of Redetermination Pursuant to Court Remand” Acciai Speciali Terni S.p.A. v. United States, Court No. 99-06-00364, Remand Order (CIT August 14, 2000).) Because we have determined that Sidbec-Dosco and Ispat Sidbec were the same “person” (see “Change in Ownership” section, infra), we do not reach the issue identified by the petitioners and have no basis to investigate this transaction as a possible subsidy. The other issues raised by the petitioners are addressed in the February 1, 2002 memorandum to the file entitled “Petitioners' Allegations Regarding Ispat's Purchase of Sidbec Dosco,” a public version of which is on file in the Department's CRU.
Supplemental questionnaires were sent to the GOC, the GOQ and the companies between December 21, 2001 and January 4, 2002. Responses to these supplemental questionnaires were received between January 4 and January 15, 2002.
On December 28, 2001, Stelco submitted a letter seeking sanctions against the petitioners for their alleged failure to serve the petitioners' October 18 letter on Stelco. On February 1, 2002, the Department responded to Stelco's complaint finding that the petitioners had not violated their service obligations.
The period for which we are measuring subsidies is calendar year 2000.
The merchandise covered by this investigation is certain hot-rolled products of carbon steel and alloy steel, in coils, of approximately round cross section, 5.00 mm or more, but less than 19.0 mm, in solid cross-sectional diameter.
Specifically excluded are steel products possessing the above-noted physical characteristics and meeting the Harmonized Tariff Schedule of the United States (“HTSUS”) definitions for (a) stainless steel; (b) tool steel; (c) high nickel steel; (d) ball bearing steel; and (e) concrete reinforcing bars and rods. Also excluded are (f) free machining steel products (i.e., products that contain by weight one or more of the following elements: 0.03 percent or more of lead, 0.05 percent or more of bismuth, 0.08 percent or more of sulfur, more than 0.04 percent of phosphorus, more than 0.05 percent of selenium, or more than 0.01 percent of tellurium). All products meeting the physical description of subject merchandise that are not specifically excluded are included in this scope.
The products under investigation are currently classifiable under subheadings 7213.91.3010, 7213.91.3090, 7213.91.4510, 7213.91.4590, 7213.91.6010, 7213.91.6090, 7213.99.0031, 7213.99.0038, 7213.99.0090, 7227.20.0010, 7227.20.0090, 7227.90.6051 and 7227.90.6058 of the HTSUS. Although the HTSUS subheadings are provided for convenience and customs purposes, the written description of the scope of these investigations is dispositive.
In the Initiation Notice, we invited comments on the scope of this proceeding. As noted above, on October 9, 2001, we received a request from the petitioners to amend the scope of this investigation and the companion CVD and antidumping duty (“AD”) wire rod investigations. Specifically, the petitioners requested that the scope be amended to exclude high carbon, high tensile 1080 grade tire cord and tire bead quality wire rod actually used in the production of tire cord and bead, as defined by specific dimensional characteristics and specifications.
On November 28, 2001, the petitioners further clarified and modified their October 9, request The petitioners suggested the following five
Also on November 28, 2001, the five largest U.S. tire manufacturers and the industry trade association, the Rubber Manufacturers Association, (“the tire manufacturers”) submitted a letter to the Department in response to petitioners' October 9, 2001 submission regarding the scope exclusion. In this letter, the tire manufacturers supported the petitioners' request to exclude certain 1080 grade tire cord and tire bead wire rod used in the production of tire cord and bead.
Additionally, the tire manufacturers requested clarification from the Department of whether 1090 grade was covered by the petitioners' exclusion request. The tire manufacturers further requested an exclusion from the scope of this investigation for 1070 grade wire rod and related grades (0.69 percent or more of carbon) because, according to the tire manufacturers, domestic production cannot meet the requirements of the tire industry.
The tire manufacturers stated their opposition to defining scope exclusions on the basis of actual end use of the product. Instead, the tire manufacturers support excluding the product if it is imported pursuant to a purchase order from a tire manufacturer or a tire cord wire manufacturer in the Untied States. Finally, the tire manufacturers urged the Department to adopt the following specifications to define the excluded product: A maximum nitrogen content of 0.0008 percent for tire cord and 0.0004 percent for tire bead; maximum weight for copper, nickel, and chromium, in the aggregate, of 0.0005 percent for both types of wire rod. In their view, there should be no additional specifications and tests, as proposed by the petitioners.
On January 28, 2002, the tire manufacturers responded to the petitioners' November 28, 2001 letter. The tire manufacturers continue to have three major concerns about the product exclusion requested by the petitioners. First, the tire manufacturers urge that 1070 grade tire cord quality wire rod be excluded (as it was in the 1999 Section 201 investigation). Second, they continue to object to defining the exclusion by actual end use. Finally, they reiterate their ealier position on the chemical specifications for the excluded product.
At this point in the proceeding, we recognize that the interested parties have both advocated excluding tire rod and tire core quality wire rod. However, the Department continues to examine this issue. Therefore, for this preliminary determination we have not amended the scope, and this preliminary determination applies to the scope as described in the Initiation Notice.
We plan to reach a decision as early as possible in this proceeding. Interested parties will be advised of our intentions prior to the final determination and will have the opportunity to comment.
Because Canada is a “Subsidies 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 Canada materially injure, or threaten material injury to, a U.S. industry. On October 15, 2001, the ITC transmitted to the Department 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 Canada of the subject merchandise. See Carbon and Certain Alloy Steel Wire Rod From Brazil, Canada, Egypt, Germany, Indonesia, Mexico, Moldova, South Africa, Trinidad and Tobago, Turkey, Ukraine, and Venezuela, 66 FR 54539 (October 29, 2001).
On February 2, 2000, the U.S. Court of Appeals for the Federal Circuit (“CAFC”) in Delverde Srl v. United States, 202 F.3d 1360, 1365 (Fed. Cir. 2000), reh'g en banc denied (June 20, 2000) (“Delverde III”), rejected the Department's change-in-ownership methodology as explained in the General Issues Appendix of the Final Affirmative Countervailing Duty Determination: Certain Steel Products from Austria, 58 FR 37217, 37225 (July 9, 1993). The CAFC held that “the Tariff Act, as amended, does not allow Commerce to presume conclusively that the subsidies granted to the former owner of Delverde's corporate assets automatically 'passed through' to Delverde following the sale. Rather, the Tariff Act requires that Commerce make such a determination by examining the particular facts and circumstances of the sale and determining whether Delverde directly or indirectly received both a financial contribution and benefit from the government.” Delverde III, 202 F.3d at 1364.
Pursuant to the CAFC finding, the Department developed a new change-in-ownership methodology following the CAFC's decision in Delverde III. This new methodology was first announced in a remand determination on December 4, 2000, and was also applied in Grain-Oriented Electrical Steel from Italy; Final Results of Countervailing Duty Administrative Review, 66 FR 2885 (January 12, 2001). Likewise, we have applied this new methodology in analyzing the changes in ownership in this preliminary determination.
The first step under this new methodology is to determine whether the legal person (entity) to which the subsidies were given is, in fact, distinct from the legal person that produced the subject merchandise exported to the United States. If we determine the two persons are distinct, we then analyze whether a subsidy has been provided to the purchasing entity as a result of the change-in-ownership transaction. If we find, however, that the original subsidy recipient and the current producer/exporter are the same person, then that person benefits from the original subsidies, and its exports are subject to countervailing duties to offset those subsidies. In other words, we will determine that a “financial contribution” and a “benefit” have been received by the “person” under investigation. Assuming that the original subsidy has not been fully amortized under the Department's normal allocation methodology as of the POI, the Department would then continue to countervail the remaining benefits of that subsidy.
In making the “person” determination, where appropriate and applicable, we analyze factors such as: (1) continuity of general business operations, including whether the successor holds itself out as the continuation of the previous enterprise, as may be indicated, for example, by use of the same name, (2) continuity of production facilities, (3) continuity of assets and liabilities, and (4) retention of
We have preliminarily determined that Ispat Sidbec is the only respondent to have undergone a change in ownership and, therefore, have limited our analysis to this company.
In 1994, Sidbec, a corporation wholly owned by the GOQ, sold all the shares of its subsidiary, Sidbec-Dosco, to Ispat Mexicana S.A. de C.V. The company that was purchased is known today as Ispat-Sidbec.
After applying our “person” analysis to the facts and circumstances of the privatization of Sidbec-Dosco, we preliminarily determine that the pre-sale and post-sale entities are not distinct persons. Specifically, Ispat Sidbec is still in the same general business as Sidbec-Dosco, the manufacture of steel products including steel wire rod. Although Ispat Sidbec has to some extent refocused and shifted its product line since the privatization, the products are essentially the same. The Sidbec name has been retained and used continually since the privatization. After its sale, Sidbec-Dosco Inc. became Sidbec-Dosco (Ispat) and later, Ispat Sidbec, Inc.
As to the second factor, continuity of production facilities, although Ispat Sidbec has closed one facility since it purchased Sidbec-Dosco, it has maintained the facilities at Contrecoeur, Longueill, and Montreal, Quebec. The volume of steel produced immediately before and after the privatization has changed only minimally.
Next, we compared the assets and liabilities of Sidbec-Dosco to those of Sidbec-Dosco (Ispat), and found them to be approximately the same. Last, we reviewed information about workforce retention and concluded that the post-privatization Sidbec-Dosco (Ispat) retained personnel, including management.
Therefore, we preliminarily determine that the subsidies provided to Sidbec prior to the privatization of its wholly owned subsidiary Sidbec-Dosco continued to benefit Sidbec-Dosco (Ispat), later Ispat Sidbec, during the POI.
Pursuant to 19 CFR 351.524(b), non-recurring subsidies are allocated over a period corresponding to the average useful life (“AUL”) of the renewable physical assets used to produce the subject merchandise. 19 CFR section 351.524(d)(2) creates a rebuttable presumption that the AUL will be taken from the U.S. Internal Revenue Service's 1977 Class Life Asset Depreciation Range System (the “IRS Tables”). For wire rod, the IRS Tables prescribe an AUL of 15 years.
In order to rebut the presumption in favor of the IRS tables, the Department must find that the IRS tables do not reasonably reflect the company-specific AUL or the country-wide AUL for the industry in question, and that the difference between the company-specific or country-wide AUL and the IRS tables is significant. (See 19 CFR 351.524(d)(2)(i).) For this difference to be considered significant, it must be one year or greater. (See 19 CFR 351.524(d)(2)(ii).)
In this proceeding, the petitioners have claimed that the AULs for Ispat Sidbec and Ivaco should differ from the presumed 15-year AUL, based on information from these companies' recent financial statements. The responding companies do not address this allegation, pointing out that use of the alternative periods proposed by the petitioners would make no difference in this investigation because the companies received no non-recurring subsidies in the period proposed by the petitioners (Ivaco) or because they received no non-recurring subsidies that are not captured in the 15-year AUL period from the IRS Tables (Ispat Sidbec). Regarding Ivaco, we agree and have not addressed the petitioners' allegation further.
However, regarding Ispat Sidbec, the two non-recurring subsidies which we have preliminarily determined to be countervailable were previously allocated in Final Affirmative Countervailing Duty Determination: Steel Wire Rod from Canada, 62 FR 54972, 54975-76 (October 22, 1997) (“1997 Wire Rod”). The allocation period calculated for Ispat Sidbec in 1997 Wire Rod was a company-specific period. The length of the period is proprietary.
For the reasons discussed in the proprietary February 1, 2002 memorandum to the file entitled “Ispat Sidbec's AUL,” (to be written) we have preliminarily determined that the petitioners have not rebutted the presumption in favor of the IRS tables. (A public version of this memorandum is available in the Department's CRU.) Therefore, we have used the 15-year period to allocate Ispat Sidbec's subsidies.
19 CFR 351.525(b)(6)(ii)-(v) directs that the Department will attribute subsidies received by certain affiliated companies to the combined sales of those companies. Based on our review of the responses, we find that “cross-ownership” exists with respect to certain companies, as described below, and have attributed the subsidies received by these companies accordingly.
Ispat Sidbec: Ispat Sidbec has responded on behalf of Ispat Sidbec Inc. and two of its subsidiaries, Sidbec-Feruni (Ispat) Inc. (100 percent owned) and Deitcher Brothers (1992) Inc. (50 percent owned). Both of these subsidiaries provide processed scrap to Ispat Sidbec Inc. for use in the production of slabs and billets which, in turn, are used in the production of the subject merchandise.
Although Ispat Sidbec has responded on behalf of Deitcher Brothers (1992) Inc. (Deitcher Brothers), Ispat Sidbec argues that cross-ownership does not exist between these two companies because Ispat Sidbec Inc. does not have majority voting ownership and does not direct the operations of Deitcher Brothers. Based on Ispat Sidbec's description of the voting rights of the owners (which is proprietary), we preliminarily determine that cross-ownership does not exist between Ispat Sidbec Inc. and Deitcher Brothers (see 19 CFR 351.525(b)(6)(vi)). Thus, according to 19 CFR 351.525(b)(6)(i), we should not include Deitcher Brothers' sales in the denominator used to calculate the ad valorem subsidy rate for Ispat Sidbec. However, for purposes of this preliminary determination, we do not have sufficient information to remove these sales.
Also, based on Ispat Sidbec's supplemental questionnaire response, it appears that Ispat Sidbec should also have responded on behalf of the Canadian holding company that owns all the outstanding shares of Ispat Sidbec Inc., Ispat Canada.
For our final determination, we intend to gather information regarding the value of Deitcher Brothers' sales that are included in the financial results for Ispat Sidbec Inc. and to investigate any subsidies received by Ispat Canada.
For this preliminary determination, we find that cross-ownership within the meaning of 19 CFR 351.525(b)(6)(vi) exists between Ispat Sidbec Inc. and
Ivaco: Ivaco has responded on behalf of Ivaco, Inc. (including its divisions) and Ivaco Rolling Mills Limited Partnership (“IRM”). IRM is virtually 100 percent owned by Ivaco, Inc. and produces unprocessed wire rod which it sells in processed and unprocessed forms. For sales of processed wire rod, the processing is done by Sivaco Ontario Processing Division (“Sivaco Ontario”) or Sivaco Quebec, both divisions of Ivaco, Inc. Sivaco Ontario also sells processed wire rod using inputs supplied by IRM and others. Sivaco Quebec occasionally sells the subject merchandise. Based on the extent of the relationship between Ivaco, Inc. and IRM, we preliminarily determine that cross-ownership within the meaning of 19 CFR 351.525(b)(6)(vi) exists.
Ivaco also reported that Bakermet, Inc., a company that was 50 percent owned by Ivaco, Inc. until November 23, 2000, supplied IRM with a small amount of scrap that was used by IRM to produce billets, an input into the subject merchandise. Ivaco claims that it cannot report more information about Bakermet, beyond the 1998 and 1999 financial statements it has submitted, pointing to the fact that Bakermet's financial results were never combined with those of Ivaco, Inc.
Based on the record of this proceeding, we find no evidence that Bakermet received any subsidies. Thus, even if we were to combine Bakermet with Ivaco due to cross-ownership during a portion of the POI, it would not change our preliminary results. Therefore, we are not addressing the issue of whether cross-ownership existed between these companies through November 2000.
Stelco: Stelco has responded on behalf of Stelco Inc., Stelco-McMaster Ltee. Quebec (Stelco-McMaster), Wabush Mines Nfld and Quebec (Wabush Mines), Fers et Metaux Recycles Ltee. (Fers et Metaux), and Stelwire Ltd. (Stelwire). Stelco Inc. produces the subject merchandise, using inputs from Stelco-McMaster (billets) and Wabush Mines (iron ore). Additionally, Fers et Metaux supplies recycled scrap to Stelco-McMaster. Stelwire sold some subject merchandise to the United States and Canada. Stelco-McMaster and Stelwire are 100 percent owned by Stelco Inc. Stelco-McMaster owns 50 percent of Fers et Metaux. Stelco Inc. owns 37. 87 percent of Wabush Mines.
Although Stelco has responded on behalf of Wabush Mines and Fers et Metaux, saying that neither received the subsidies being investigated in this proceeding, it disputes that cross- ownership exists between these companies and Stelco Inc. Regarding Wabush Mines, Stelco points to the fact that another shareholder of that company also owns 37.87 percent of Wabush Mines' shares. Hence, Stelco claims that it does not control Wabush mines. Regarding Fers at Metaux, Stelco claims that because it has no direct ownership interest in Fers et Metaux, cross-ownership cannot be considered to exist.
For purposes of the preliminary determination, we agree that cross-ownership does not exist between Stelco Inc. and Wabush Mines because of the lack of majority voting ownership. (See 19 CFR 351.525(b)(6)(vi) and February 1, 2001 memorandum to the file entitled “Stelco's Affiliation with Wabush Lake Railway Company, Ltd. and Arnaud Railway Company,” a public version of which is on file in the Department's CRU. ). However, we disagree with Stelco that we cannot find cross-ownership with Fers et Metaux because the ownership is indirect. Nothing in 19 CFR 351.525(b)(6)(vi) indicates that the ownership must be direct in order for cross-ownership to exist. Moreover, we note that Fers et Metaux is 100 percent owned by Stelco-McMaster, whose subsidies and sales are properly combined with those of Stelco Inc. under our cross ownership rules. Therefore, lacking other evidence to indicate that Stelco Inc.'s 50 percent ownership does not confer majority voting ownership, we find that cross-ownership exists between Stelco Inc. and Fers et Metaux.
Consequently, for these preliminary results, we are combining Stelco Inc., Stelco-McMaster, Fers et Metaux, and Stelwire for attribution purposes. However, we do not have sufficient information to include 100 percent of Fers et Metaux sales; nor do we have the information to exclude Wabush Mines' sales. We intend to seek this information for our final determination.
In the Initiation Notice, we stated that the Department had found Ispat Sidbec's predecessor company, Sidbec Dosco, to be uncreditworthy between 1983 and 1992 in 1997 Wire Rod. Ispat Sidbec and the GOQ have correctly noted that the Department found Sidbec, Sidbec-Dosco's owner, and not Sidbec-Dosco to be uncreditworthy. It was Sidbec that received grants from the GOQ during the period 1984 - 1992, and it was Sidbec's debt that was converted to equity in 1988.
In the instant investigation, the GOQ has provided financial information regarding Sidbec-Dosco's creditworthiness. However, we have not analyzed that information. Instead, following the approach adopted by the Department in 1997 Wire Rod, we believe that Sidbec is the proper focus of our creditworthiness analysis. (See 62 FR 54972, 54987).
Because we have received no new information regarding Sidbec's creditworthiness, we preliminarily determine that Sidbec was uncreditworthy from 1983 - 1992.
In 1997 Wire Rod, we determined that Sidbec was unequityworthy in 1988 and that the 1988 conversion of Sidbec's debt to equity was a countervailable subsidy. In the instant investigation, the GOQ has provided financial information regarding Sidbec-Dosco's equityworthiness. However, we have not analyzed that information. Instead, following the approach adopted by the Department in 1997 Wire Rod, we believe that Sidbec is the proper focus of our equityworthiness analysis. (See 62 FR 54972, 54983 - 84).
Because we have received no new information regarding Sidbec's equityworthiness, we preliminarily determine that Sidbec was unequityworthy at the time of the 1988 debt-to-equity conversion.
The only non-recurring, allocable subsidies in this preliminary determination are the 1988 conversion of Sidbec's debt to equity and grants received by Sidbec between 1984 and 1992. As discussed above, we have preliminarily found Sidbec to be uncreditworthy in those years.
In accordance with 19 CFR 351.524(d)(3)(ii), the discount rate for companies considered uncreditworthy is the rate described in 19 CFR 351.505(a)(3)(iii). To calculate that rate, the Department must specify values for four variables: (1) the probability of default by an uncreditworthy company; (2) the probability of default by a creditworthy company; (3) the long-term interest rate for creditworthy borrowers; and (4) the term of the debt.
For the probability of default by an uncreditworthy company, we have used the average cumulative default rates reported for the Caa- to C-rated category of companies as published in Moody's Investors Service, ``Historical Default Rates of Corporate Bond Issuers, 1920-1997'' (February 1998). For the probability of default by a creditworthy company, we used the cumulative
Ispat Sidbec reported two values for total sales. The first includes merchandise produced in whole or in part in Canada, while the second excludes merchandise that undergoes substantial transformation outside of Canada. For purposes of this preliminary determination, we have used the second amount. Given that this merchandise is substantially transformed outside of Canada, we are assuming that much of its value is non-Canadian. Therefore, use of this sales value better reflects the Department's policy of attributing subsidies only to merchandise produced in the jurisdiction of the subsidizing country. See 19 CFR 351.525(b)(7).
We intend to seek clarification of two sales values for our final determination.
Based upon our analysis of the petition and the responses to our questionnaires, we determine the following:
In 1988, the GOQ began exploring options for increasing the value of its investment in Sidbec. To improve the company's debt-to-equity ratio, the GOQ decided to convert four Sidbec debt instruments it held into equity. According to the GOQ, converting Sidbec's debt allowed Sidbec to invest in Sidbec-Dosco, thereby increasing the value of that company and the likelihood that Sidbec-Dosco could be successfully privatized. The amount of debt converted totaled Cdn$81,559,630, reflecting the principal and interest outstanding on the debt as of December 23, 1988.
We preliminarily determine that this debt-to-equity conversion is a countervailable subsidy. The investment was a direct transfer of funds from the GOQ to Sidbec within the meaning of section 771(5)(D)(i) of the Act. As discussed above, we have determined that Sidbec was unequityworthy. Consequently, the debt-to-equity conversion was inconsistent with the usual investment practice of private investors, including the practice regarding the provision of risk capital, in Quebec and conferred a benefit in the amount of the conversion. See section 771(5)(E)(i) of the Act and 19 CFR 351.507(a)(6). Finally, the debt-to-equity conversion was limited to Sidbec and, hence, specific within the meaning of 771(5A).
To calculate the benefit, we have allocated the amount of debt and accumulated interest that was converted over Ispat-Sidbec's AUL (as computed in 1997 Wire Rod). We divided the amount attributed to the POI by Ispat Sidbec's total sales (excluding goods which undergo substantial transformation outside Canada). On this basis, we preliminarily determine the net countervailable subsidy during the POI to be 0.78 percent
In 1976, Sidbec entered into a joint venture, Normines JV, to mine iron ore. By 1983, the losses of the Normines JV were such that Sidbec was forced to borrow money to finance the JV's operations. Sidbec borrowed additional funds in 1984 in connection with the Normines JV. Between 1984 and 1992, the GOQ reimbursed Sidbec for all payments of principal and interest on these loans.
We preliminarily determine that these grants reimbursing Sidbec for the loan costs associated with the Normines JV are countervailable subsidies. The grants were a direct transfer of funds from the GOQ to Sidbec within the meaning of section 771(5)(D)(i) of the Act, providing a benefit in the amount of the grants (see 19 CFR 351.504(a)). Also, the grants were limited to Sidbec and, hence, specific within the meaning of 771(5A).
To calculate the benefit, we have allocated the grants over Ispat-Sidbec's AUL (as computed in 1997 Wire Rod). We divided the amount for the POI by Ispat Sidbec's total sales (excluding goods which undergo substantial transformation outside Canada). On this basis, we preliminarily determine the net countervailable subsidy during the POI to be 5.59 percent
Under Canada's federal corporate income tax, companies are permitted to take a resource allowance. This allowance is provided in lieu of deductions for Crown royalties, provincial mining taxes and other charges related to oil and gas or mining production. The allowance equals 25 percent of a taxpayer's annual resource profits, computed after operating costs, but before the deduction of exploration expenses, development expense, earned depletion and interest expenses. Resource allowances are also deductible from income for purposes of calculating income taxes owed in certain provinces.
According to Stelco, the resource allowance represents the reduction in the mineral contents of the reserves from which the mineral is taken. Therefore, Stelco claims, the resource allowance is equivalent to a depletion allowance.
Stelco points to Final Affirmative Countervailing Duty Determination; Iron Ore Pellets from Brazil, 51 FR 21961 (June 17, 1986) (Iron Ore Pellets), arguing that the resource allowance in not countervailable. Stelco also states that even if the resource allowance were found to be countervailable, the benefit to Stelco from the federal and provincial tax savings would be a de minimis 0.07 percent. (See Stelco's December 3, 2001 Questionnaire Response, at page IV-28)
In Iron Ore Pellets, the Department stated, “In the past, we have found that depreciation allowances, per se, are not countervailable. Because the depletion allowance, which is comparable to a depreciation allowance on minerals, is part of the normal tax practice in Brazil and because there is no indication that it favors exports over domestic products, we determine the program not to be countervailable.” Id at 21963. In the instant proceeding, we find that the federal resource allowance is a normal tax practice in Canada because: (1) it is available to all resource-based companies in Canada; (2) the method for claiming the allowance is a standard schedule to the federal corporate tax form, Schedule 51; and (3) the allowance has been in place since 1976 (when it replaced an earlier resource tax abatement). Also, the resource tax allowance does not favor export over domestic sales.
Consequently, consistent with our determination in Iron Ore Pellets, we preliminarily determine that the resource allowance taken by Stelco on its federal corporate income tax does not confer a countervailable subsidy.
Regarding the resource allowances taken on provincial corporate income taxes, Stelco has shown that the same allowance taken on its federal tax return is apportioned between the three provinces with tax authority over the
Therefore, we preliminarily determine that the resource allowances offered by Ontario and Quebec do not confer countervailable subsidies because they are part of the normal tax practice of these provinces and do not favor export over domestic sales.
In 1989, Stelco and Sidbec-Dosco (among other Canadian steel producers) entered into a joint venture to develop a commercial scale strip caster. Co-financing for this R&D initiative was sought from several federal and provincial government sources, and initial approval was given by the governments. However, the original approach to the project was abandoned and the funding agencies suspended, then withdrew their support.
Therefore, we preliminarily determine that there was no financial contribution by the GOC or the provincial governments in
We further note that Stelco responded that direct casting for the manufacture of hot-rolled strip was not related to the production of the subject merchandise (which is produced from billets). Thus, had any subsidies been received for R&D on direct casting those subsidies would not be attributed to the products covered by this proceeding. (See 19 CFR 351.525(b)(5).)
In a 1999 report issued by Stelco, Industrial Energy Innovators Action Plan Report, the company stated that it had used incentives provided by the government for many of its energy projects. In response to our questionnaires, Stelco has explained that the “incentive” it was describing was its honorary designation as an “Industrial Energy Innovator.” It received this designation because it was successful in lowering its energy usage and increasing its efficiency.
Therefore, we preliminarily determine that there was no financial contribution by the GOC in support of Stelco's energy projects and, consequently, no subsidy. See section 771(5)(B)(i) of the Act.
As discussed above under “Tax Credits for Mining Incentives,” Stelco was subject to taxes in three provinces during the POI. For the third province, Newfoundland, the amount of tax savings generated by the resource allowance is so small that it yields no measurable benefit. Given the insignificance of any benefit under this program, we are not planning to seek further information to determine whether the resource allowance in Newfoundland is a countervailable subsidy.
In accordance with section 782(i)(1) of the Act, we will verify the information submitted by the respondents prior to making our final determination.
In accordance with section 703(d)(1)(A)(i) of the Act, we calculated an individual rate for each manufacturer of the subject merchandise. We preliminarily determine the total estimated net countervailable subsidy rates to be:
In accordance with sections 777A(e)(2)(B) and 705(c)(5)(A), we have set the “all others” rate as Ispat Sidbec's rate because the rates for all other investigated companies are zero.
In accordance with section 703(d) of the Act, we are directing the Customs Service to suspend liquidation of all entries of wire rod from Canada which are entered, or withdrawn from warehouse, for consumption on or after the date of the publication of this notice in the Federal Register, and to require a cash deposit or bond for such entries of the merchandise in the amounts indicated above, except for entries from Ivaco Inc. and Stelco Inc. This suspension will remain in effect until further notice. Entries from Ivaco Inc. and Stelco Inc. are not subject to this suspension of liquidation because we have preliminarily determined their rates to be zero.
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 nonprivileged 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.
Case briefs for this investigation must be submitted no later than one week after the issuance of the last verification report. Rebuttal briefs must be filed within five days after the deadline for submission of case briefs. A list of authorities relied upon, a table of contents, and an executive summary of issues should accompany any briefs submitted to the Department. Executive summaries should be limited to five pages total, including footnotes.
Section 774 of the Act provides that the Department will hold a public hearing to afford interested parties an opportunity to comment on arguments raised in case or rebuttal briefs, provided that such a hearing is requested by an interested party. If a request for a hearing is made in this investigation, the hearing will tentatively be held two days after the deadline for submission of the rebuttal briefs at the U.S. Department of Commerce, 14th Street and Constitution Avenue, NW, Washington, DC 20230. Parties should confirm by telephone the time, date, and place of the hearing 48 hours before the scheduled time.
Interested parties who wish to request a hearing, or to participate if one is requested, must submit a written request to the Assistant Secretary for Import Administration, U.S. Department of Commerce, Room 1870, within 30 days of the publication of this notice. Requests should contain: (1) the party's name, address, and telephone number; (2) the number of participants; and
(3) a list of the issues to be discussed. Oral presentations will be limited to issues raised in the briefs.
This determination is published pursuant to sections 703(f) and 777(i) of the Act.
Import Administration, International Trade Administration, Department of Commerce.
Notice of preliminary affirmative countervailing duty determination and preliminary negative critical circumstances determination.
The Department of Commerce has preliminarily determined that countervailable subsidies are being provided to producers or exporters of carbon and certain alloy steel wire rod from Germany. For information on the estimated countervailing duty rates, see
February 8, 2002.
Melanie Brown or Annika O'Hara, Office of Antidumping/Countervailing Duty Enforcement, Group 1, Import Administration, U.S. Department of Commerce, Room 3099, 14th Street and Constitution Avenue, NW., Washington, DC 20230; telephone (202) 482-4987 and (202) 482-3798, respectively.
Unless otherwise indicated, all citations to the statute are references to the provisions of the Tariff Act of 1930, as amended by the Uruguay Round Agreements Act (“URAA”) effective January 1, 1995 (“the Act”). In addition, unless otherwise indicated, all citations to the Department of Commerce's (“the Department”) regulations are to 19 CFR Part 351 (April 2001).
The petitioners in this investigation are Co-Steel Raritan, Inc., GS Industries, Keystone Consolidated Industries, Inc., and North Star Steel Texas, Inc. (collectively, “the petitioners”).
The following events have occurred since the publication of the notice of initiation in the
Due to the large number of producers and exporters of carbon and certain alloy steel wire rod (“wire rod” or “subject merchandise”) in Germany, we decided to limit the number of responding companies to the two producers/exporters with the largest volumes of exports to the United States during the period of investigation: Ispat Walzdraht Hochfeld GmbH (“IWHG”) and Saarstahl AG (“Saarstahl”).
On October 9, 2001, the Department decided to initiate an investigation of two additional subsidy programs alleged by the petitioners in a submission filed on September 13, 2001. Due to the lateness of their filing, we were unable to analyze the petitioners' allegations before the initiation of this investigation.
Also on October 9, 2001, we issued countervailing duty (“CVD”) questionnaires to the Government of Germany (“GOG”) and the producers/exporters of the subject merchandise. We issued a CVD questionnaire to the European Commission (“EC”) on October 19, 2001.
On October 9, we received a request from the petitioners to amend the scope of this investigation to exclude certain tire rod. The petitioners submitted further clarification with respect to their scope amendment request on November 28, 2001. Also on November 28, 2001, the five largest U.S. tire manufacturers and the industry trade association, the Rubber Manufacturers Association (“the tire manufacturers”), submitted comments on the proposed exclusion. On January 21, 2002, we received comments on the proposed exclusion of tire cord from Tokusen U.S.A., Inc., a manufacturer of steel cord for steel belted radial tires. Finally, the tire manufacturers filed a letter with the Department on January 28, 2002, affirming the position they had taken in their November 28, 2001, submission.
On October 18, 2001, the petitioners filed a letter raising several concerns with respect to the Department's initiation of this investigation and the concurrent CVD investigations of wire rod producers in Brazil, Canada, and Trinidad and Tobago. On the same day, the petitioners also filed a separate submission objecting to the Department's decision not to investigate certain subsidy programs alleged specifically for Germany. The Department addressed the petitioners' concerns in a December 4, 2001, memorandum to Richard W. Moreland entitled “Petitioners' Objections to Department's Initiation Determinations,” which is on file in the CRU.
On November 6, 2001, we postponed the preliminary determination in this investigation until February 1, 2002, upon request of the petitioners.
The GOG and Saarstahl submitted their responses to the Department's questionnaire on November 15 and November 21, 2001, respectively. The EC responded to our questionnaire on November 26, 2001. IWHG filed its response on November 29, 2001, and on the same date, we also received a response from Ispat Hamburger Stahlwerke GmbH (“IHSW”), a German producer of the subject merchandise affiliated with IWHG (
On December 5, 2001, the petitioners filed a critical circumstances allegation with respect to Brazil, Germany, and Turkey. In a letter filed on December 21, 2001, the petitioners extended this allegation to include Trinidad and Tobago.
On December 21, 2001, and January 18, 2002, the petitioners claimed that IHSW received a countervailable subsidy in conjunction with the 1995 change in ownership. The petitioners' description of the subsidy arising from
In their January 18, 2002, submission the petitioners also raised other issues for purposes of the Department's preliminary determination. On January 25, 2002, we received a response to the petitioners' comments on the preliminary determination from Saarstahl.
The period for which we are measuring subsidies is calendar year 2000.
The merchandise covered by this investigation is certain hot-rolled products of carbon steel and alloy steel, in coils, of approximately round cross section, 5.00 mm or more, but less than 19.0 mm, in solid cross-sectional diameter.
Specifically excluded are steel products possessing the above-noted physical characteristics and meeting the Harmonized Tariff Schedule of the United States (“HTSUS”) definitions for (a) stainless steel; (b) tool steel; (c) high nickel steel; (d) ball bearing steel; and (e) concrete reinforcing bars and rods. Also excluded are (f) free machining steel products (
The products under investigation are currently classifiable under subheadings 7213.91.3010, 7213.91.3090, 7213.91.4510, 7213.91.4590, 7213.91.6010, 7213.91.6090, 7213.99.0031, 7213.99.0038, 7213.99.0090, 7227.20.0010, 7227.20.0090, 7227.90.6051 and 7227.90.6058 of the HTSUS. Although the HTSUS subheadings are provided for convenience and customs purposes, the written description of the scope of these investigations is dispositive.
In the
On November 28, 2001, the petitioners further clarified and modified their October 9 request. The petitioners suggested the following five modifications and clarifications: (1) Expand the end-use language of the scope exclusion request to exclude 1080 grade tire cord and tire bead quality that is used in the production of tire cord, tire bead, and rubber reinforcement applications; (2) clarify that the scope exclusion requires a carbon segregation per heat average of 3.0 or better to comport with recognized industry standards; (3) replace the surface quality requirement for tire cord and tire bead with simplified language specifying maximum surface defect length; (4) modify the maximum soluble aluminum from 0.03 to 0.01 for tire bead wire rod; and (5) reduce the maximum residual element requirements to 0.15 percent from 0.18 percent for both tire bead and tire cord wire rod and add an exception for chromium-added tire bead wire rod to allow a residual of 0.10 percent for copper and nickel and a chromium content of 0.24 to 0.30 percent.
Also on November 28, 2001, the tire manufacturers submitted a letter to the Department in response to petitioners' October 9, 2001, submission regarding the scope exclusion. In this letter, the tire manufacturers supported the petitioners' request to exclude certain 1080 grade tire cord and tire bead wire rod used in the production of tire cord and bead.
Additionally, the tire manufacturers requested that the Department clarify whether 1090 grade was covered by the petitioners' exclusion request. The tire manufacturers further requested an exclusion from the scope of this investigation for 1070 grade wire rod and related grades (0.69 percent or more of carbon) because, according to the tire manufacturers, domestic production cannot meet the requirements of the tire industry.
The tire manufacturers stated their opposition to defining scope exclusions on the basis of actual end use of the product. Instead, the tire manufacturers support excluding the product if it is imported pursuant to a purchase order from a tire manufacturer or a tire cord wire manufacturer in the United States. Finally, the tire manufacturers urged the Department to adopt the following specifications to define the excluded product: A maximum nitrogen content of 0.0008 percent for tire cord and 0.0004 percent for tire bead; maximum weight for copper, nickel, and chromium, in the aggregate, of 0.0005 percent for both types of wire rod. In their view, there should be no additional specifications and tests, as proposed by the petitioners.
On January 28, 2002, the tire manufacturers responded to the petitioners' November 28, 2001 letter. The tire manufacturers continue to have three major concerns about the product exclusion requested by the petitioners. First, the tire manufacturers urge that 1070 grade tire cord quality wire rod be excluded (as it was in the 1999 Section 201 investigation). Second, they continue to object to defining the exclusion by actual end use. Finally, they reiterate their earlier position on the chemical specifications for the excluded product.
On January 21, 2002, the Department received a submission from Tokusen U.S.A., Inc. (“Tokusen”), a manufacturer of steel cord used in steel belted radial tires, in which Tokusen urged the Department to exclude tire cord quality wire rod, including 1070 carbon grade, from the scope of this investigation. Tokusen stated that it must have dependable sources of tire cord quality rod in order to produce the kind of tire cord that U.S. tire manufacturers require. According to Tokusen, no U.S. tire manufacturer produces 1080 grade tire cord wire rod and only one manufacturer produces 1070 grade tire cord wire rod. Tokusen claimed that it would suffer severe damage if the Department were to impose import restrictions in the form of countervailing duties on foreign-produced tire cord wire rod.
At this point in the proceeding, we recognize that the interested parties have both advocated excluding certain tire rod and tire core quality wire rod. However, the Department continues to examine this issue. Therefore, for this preliminary determination we have not amended the scope, and this preliminary determination applies to the scope as described in the
We plan to reach a decision as early as possible in the proceeding. Interested parties will be advised of our intentions prior to the final determination and will have the opportunity to comment.
Because Germany is a “Subsidies Agreement Country” within the
On December 5, 2001 the petitioners alleged that critical circumstances exist with respect to imports of subject merchandise from, inter alia, Germany. The petitioners provided the Department with additional submissions supporting those allegations on December 19, 27, and 28, 2001, and on January 25, 2002. In accordance with 19 CFR 351.206(c)(2)(i), because the petitioners submitted a critical circumstances allegation more than 20 days before the scheduled date of the preliminary determination, the Department must issue a preliminary critical circumstances determination not later than the date of the preliminary determination.
Section 703(e)(1) of the Act provides that critical circumstances exist if the Department determines that there is a reasonable basis to believe or suspect that (1) an alleged subsidy is inconsistent with the Subsidies Agreement
The Department preliminarily determines that critical circumstances do not exist with respect to subject merchandise from Germany because the petition does not allege that subsidies inconsistent with the Subsidies Agreement exist in Germany. Thus, the first requirement of Section 703(e)(1) of the Act has not been met. More specifically, the petition does not allege any prohibited subsidies (
On February 2, 2000, the U.S. Court of Appeals for the Federal Circuit (“CAFC”) in
Pursuant to the CAFC ruling, the Department has developed a new change-in-ownership methodology following the CAFC's decision in
The first step under this new methodology is to determine whether the legal person (entity) to which the subsidies were given is, in fact, distinct from the legal person that produced the subject merchandise exported to the United States. If we determine the two persons are distinct, we then analyze whether a subsidy has been provided to the purchasing entity as a result of the change-in-ownership transaction. If we find, however, that the original subsidy recipient and the current producer/exporter are the same person, then that person benefits from the original subsidies, and its exports are subject to countervailing duties to offset those subsidies. In other words, we will determine that a “financial contribution” and a “benefit” have been received by the “person” under investigation. Assuming that the original subsidy has not been fully amortized under the Department's normal allocation methodology as of the POI, the Department would then continue to countervail the remaining benefits of that subsidy.
In making the “person” determination, where appropriate and applicable, we analyze factors such as (1) continuity of general business operations, including whether the successor holds itself out as the continuation of the previous enterprise, as may be indicated, for example, by use of the same name, (2) continuity of production facilities, (3) continuity of assets and liabilities, and (4) retention of personnel. No single factor will necessarily provide a dispositive indication of any change in the entity under analysis. Instead, the Department will generally consider the post-sale person to be the same person as the pre-sale person if, based on the totality of the factors considered, we determine the entity in question can be considered a continuous business entity because it was operated in substantially the same manner before and after the change in ownership.
As early as 1978, the Government of Saarland (“GOS”) began restructuring the steel companies in the Saarland region. This included the restructuring and privatization of Saarstahl Volkingen GmbH (“Saarstahl Volkingen”). Saarstahl Volkingen's privatization started in 1986. At the time, Saarstahl Volkingen was owned by Arbed Luxembourg (“Arbed”), a company owned by the Government of Luxembourg. Due to continued unprofitability, shares of Saarstahl Volkingen were offered to the GOS. Arbed transferred 76 percent of Saarstahl Volkingen's shares to the GOS, making Saarstahl Volkingen a majority state-owned company.
In 1989, the GOS started searching for a new investor for Saarstahl Volkingen. Usinor-Sacilor, a company owned by the Government of France and parent company of the French steel company Dillinger, expressed interest in Saarstahl Volkingen and reached an agreement with the GOS and Arbed. Under the
Bankruptcy proceedings were initiated against Saarstahl in 1993. In an attempt to resolve Saarstahl's financial situation, DHS spun off 100 percent of Saarstahl to the GOS for one German Mark (“DM”).
In December 1997, a plan of reorganization was approved by the bankruptcy trustees. This reorganization called for the GOS to transfer a portion of its shareholdings in Saarstahl to third parties. The recipients of this transfer were: (1) AG der Dillinger Huttenwerke (“Dillinger”), formerly part of DHS; (2) the Kreditanstalt fur Wiederaufbau (“KfW”), a bank funded by the German federal and state governments, and; (3) Saarstahl Treuhand, a trust established as part of the bankruptcy proceeding to hold and sell the remaining interest in Saarstahl. After the share transfer, the GOS held approximately 32 percent of Saarstahl's shares. The remaining 68 percent were divided as follows: Saarstahl Treuhand—28.1 percent; Dillinger—19.9 percent; and KfW—20 percent.
In December 1998, subsequent to the 1997 reorganization, KfW's shares were transferred to the Saarstahl Treuhand. In October 1999, the GOS sold 5.2 percent of Saarstahl's shares to Dillinger.
Regarding the 1997 change in ownership, the petitioners argue in their January 18, 2002, preliminary determination comments, that the new shareholders in Saarstahl should not be considered private entities. They argue that Saarstahl Treuhand is a trust that was set up and controlled by the GOG because no private investor could be found for these shares. They argue further that because of the GOS's ownership position in DHS and Dillinger, Dillinger is government-controlled. Finally, they argue that, because the KfW is a development bank of the GOG, shares assigned to it represent no ultimate change in the ownership of Saarstahl.
Consequently, in the petitioners' view, the 1997 transaction was not an arm's-length sale, but a continuing effort by the GOS to benefit Saarstahl. Furthermore, the 1997 reorganization and the 1999 sale of shares to Dillinger by the GOS were merely exchanges of shares between governmental entities. Thus, even after the sale, the GOS continued to control the company's activities, and there was no effect on Saarstahl's operations or its identity.
For these reasons, the petitioners argue that none of the three parties' purchase price can constitute repayment of Saarstahl's previously bestowed subsidies. In addition, the petitioners urge the Department to treat all of the purchase price as a grant to Saarstahl because none of the parties to the privatization made its purchase on terms consistent with those of a private investor.
Saarstahl rebuts the petitioners' contention that the buyers of Saarstahl in 1997 were not private actors. Saarstahl argues that Saarstahl Treuhand is a private trust established under German law for the benefit of bankruptcy creditors and that it is not in any way controlled by the government. Regarding Dillinger, Saarstahl states that approximately 5 percent of Dillinger's shares are held by individual investors and the remaining 95 percent by DHS. They then explain that the majority of DHS is owned by Usinor-Sacilor and Arbed, which are now private companies. Regarding KfW, Saarstahl argues that the administrative record of this proceeding clearly indicates that the development bank's decision to invest in Saarstahl was made on terms consistent with commercial considerations and, on this basis, its payment should be included as part of the purchase price. Thus, Saarstahl argues that since all three parties made their decision to invest in Saarstahl independent of the GOG and the GOS, the Department should determine that 100 percent of the purchase price constitutes repayment of Saarstahl's previously bestowed subsidies.
For the purposes of this preliminary determination, we are not treating the 1997 reorganization (or the subsequent share transfers) as a change in ownership because we do not view two of the new owners, KfW and Saarstahl Treuhand, as private entities. As noted above, KfW is a government-owned bank. Saarstahl Treuhand appears to have been created simply to hold Saarstahl's stock, including not only the shares it purchased in 1997, but also the shares it received from KfW in 1998. Although Saarstahl has stated that Saarstahl Treuhand is not controlled by the government and that Saarstahl's creditors are the beneficiaries of the trust, there is no indication that the money paid by Saarstahl Treuhand for the shares it purchased came from private sources. Also, the shares it received in 1998 were “transferred” from KfW, in contrast to the 1999 transaction between the GOS and Dillinger, where Dillinger “acquired” the shares.
Under Department practice regarding privatizations, sales “must involve unrelated parties, one of which must be privately-owned.” (
Our analysis of the subsidies bestowed through the 1997 reorganization is discussed below under “Programs Preliminarily Determined to be Countervailable.”
IHSW was created in 1995 through a restructuring and change in ownership of its predecessor company, the privately owned Hamburger Stahlwerke (“HSW”). Prior to this transaction, there had been at least one major restructuring and change in ownership of HSW since the company was formed in the 1960s. In a 1984 restructuring, the Hamburgische Landesbank (“HLB”) (a bank owned by the Government of the Free and Hanseatic City of Hamburg (“GOH”)) provided HSW with a credit line in the amount of DM 130 million, which subsequently was raised to DM 174 million. A loan guarantee provided by the GOH covered up to 60 percent of the credit line and was later extended to cover 100 percent of the credit. As part of the 1984 restructuring, an agreement was made with HLB that any sale or transfer of shares in HSW, as well as any liquidation of HSW, was subject to HLB's approval.
Due to a downturn in the steel market, HSW's financial situation was so precarious in 1993-94 that the company either had to be liquidated, which would have resulted in a huge loss for HLB, its main creditor, or an investor who would buy HSW had to be found. Based upon the conclusions and recommendations in a January 1994 report from the consulting firm McKinsey & Co., it was decided to sell HSW. After negotiations held in 1993 and 1994 with investors from Germany, Italy, and the United Kingdom failed, the GOH commissioned the investment bank M.M. Warburg (“Warburg”) to obtain bids for HSW and to negotiate a sales contract. Warburg issued a prospectus in August 1994 to start the bidding process, which was open to all bidders. Warburg selected a bid submitted by Venuda Investments B.V. (“Venuda”), a company in the Ispat group, as the winning bid. The Department has no further information about the bidding process or any of the competing bids.
In an agreement dated December 27, 1994, Venuda bought all the shares in HSW from its former owner, a private individual, for 10 million DM. At the same time, Venuda took over HSW's outstanding debt to HLB in the amount of DM 154.1 million. Venuda paid DM 60 million to HLB for the debt and took the bank's place as HSW's main creditor. The DM 60 million amount was calculated according to a formula based on the value of HSW's net current assets on December 31, 1994.
After Venuda's purchase of HSW's shares and debt, it formed a new company called Ispat Hamburger Stahlwerke GmbH (
Venuda eventually changed its name to Ispat International Holdings B.V., which on December 31, 1998, sold its shares in IHSW to another holding company in the Ispat Group, Ispat Germany GmbH (“Ispat Germany”). In the POI, Ispat Germany was the sole shareholder of IHSW.
As noted above, in making the “person” determination, we primarily analyze the following factors while holding that no single factor will necessarily provide a dispositive indication of any change in the entity under analysis:
(1)
Apart from certain changes in the company's operations such as using the services of the Ispat Group's shipping company and selling steel in the United States through Ispat America, IHSW continued the general business operations of HSW. Even the name of the company remained largely the same except for the addition of the word “Ispat” to indicate that the steel plant was now part of the Ispat Group. Indeed, IHSW's product brochure refers to the company as having existed for more than 25 years, which obviously includes the time before it was purchased by Venuda.
(2)
IHSW used the same production facilities to manufacture the same products as HSW.
(3)
As described above, IHSW took over HSW's productive assets, first through a leasing arrangement and later by purchasing them. Thus, there was continuity of assets. Apart from the forgiveness of HSW's DM 154.1 million debt to HLB (
(4)
New management personnel was brought into IHSW from the Ispat Group after the change in ownership. Also the composition of the board of directors changed in its entirety as a result of the sale. Regarding the general labor force, IHSW reduced the number of workers by over 100 individuals in the first five years after the change in ownership. However, under the sales contract, IHSW was obliged to maintain a minimum workforce of 630 people through 1999.
Based on our analysis of the four factors listed above, we preliminarily determine that IHSW for all intents and purposes was the same “person” as HSW. Therefore, any non-recurring subsidies obtained by HSW will continue to benefit IHSW after the change in ownership.
Pursuant to 19 CFR 351.524(b), non-recurring subsidies are allocated over a period corresponding to the average useful life (“AUL”) of the renewable physical assets used to produce the subject merchandise. Section 351.524(d)(2) of the regulations creates a rebuttable presumption that the AUL will be taken from the U.S. Internal Revenue Service's 1977 Class Life Asset Depreciation Range System (“the IRS Tables”). For wire rod, the IRS Tables prescribe an AUL of 15 years.
In order to rebut the presumption in favor of the IRS tables, the challenging party must show that the IRS tables do not reasonably reflect the company-specific AUL or the country-wide AUL for the industry in question, and that the difference between the company-specific or country-wide AUL and the IRS tables is significant. (
In this proceeding, Saarstahl and IHSW have pointed to the fact that in
We preliminarily determine that for both Saarstahl and IHSW, the previously calculated AULs rebut the presumption in favor using the period from the IRS tables. The AULs are country-wide for the industry in question (Saarstahl) or company-specific (IHSW), and they differ significantly from the 15 year-period from the IRS tables. As no new evidence has been presented to indicate that circumstances with respect to the initial AUL decision have changed, use of these periods is consistent with the Department's practice of using the same allocation period for a given subsidy when that subsidy has been allocated in a previous proceeding.
In the case of IHSW, we are countervailing the same non-recurring subsidy in this investigation as in
Regarding Saarstahl, the two non-recurring subsidies that were countervailed in
For subsidies to Saarstahl that were not countervailed in
19 CFR 351.525(a)(6) directs that the Department will attribute subsidies received by certain affiliated companies to the combined sales of those companies. Based on our review of the responses, we find that “cross-ownership” exists with respect to certain companies, as described below. We have attributed subsidies received by these companies accordingly.
1.
Saarstahl has stated in its questionnaire response that there is cross-ownership within the meaning of 19 CFR 351.525(b)(6)(vi) between Saarstahl and Saarstahl Burdach. Saarstahl Burdach is a separately incorporated subsidiary of Saarstahl which uses Saarstahl employees and has only limited capital. The subject merchandise is produced by Saarstahl Burdach. Thus, because Saarstahl Burdach is a wholly-owned subsidiary of Saarstahl and because Saarstahl Burdach produces the subject merchandise, we preliminarily find that cross-ownership exists. Accordingly, pursuant to Department regulations, any subsidies received by Saarstahl and Saarstahl Burdach will be attributed to the combined sales of Saarstahl Burdach.
2.
According to the questionnaire responses, IHSW and IWHG are wholly-owned subsidiaries of Ispat Germany, a non-producing holding company within the larger Ispat Group. Both IHSW and IWHG produce and export the subject merchandise. In addition, Ispat Germany has a third subsidiary, Ispat Stahlwerk Ruhrort GmbH (“ISRG”) which sells input products to IWHG that are primarily dedicated to the production of the subject merchandise. On this basis, we preliminarily find that cross-ownership exists between IWHG, IHSW, and ISRG under 19 CFR 351.525(b)(6)(iv) and (vi). Accordingly, we have attributed the subsidies received by IWHG, IHSW, and ISRG to the combined sales of these three companies, net of intercompany sales.
The examination of creditworthiness is an attempt to determine if the company in question could obtain long-term financing from conventional commercial sources.
In
Regarding Saarstahl, we stated in the
However, with respect to the time period 1993 through 1999, we have preliminarily determined that Saarstahl received a long-term loan in 1996 and a non-recurring subsidy in 1997, as discussed under the “Analysis of Programs” section below. We have, therefore, analyzed Saarstahl's creditworthiness in 1996 and 1997.
To determine Saarstahl's past and present financial health, we calculated standard financial ratios from the company's financial statements for the 1993-1997 time period because it is the Department's standard practice to examine such ratios in the year for which a creditworthiness determination is to be made and the three preceding years. In addition, we considered other factors such as Saarstahl's bankruptcy proceedings that were initiated in 1993, the amount of debt that was forgiven in an attempt to sustain Saarstahl's business operations and the fact that under all these conditions, the company continued to operate at a loss. Based on our review of the above factors, we have preliminarily determined that Saarstahl was uncreditworthy in both 1996 and 1997. Consequently, as noted in the “Discount and Benchmark Rates” section below, we have included an uncreditworthiness premium in the benchmark interest rate for the subsidies received by Saarstahl in 1996 and 1997. For further discussion,
All of the allocable, non-recurring subsidies received by IHSW and Saarstahl were given in years in which these companies were uncreditworthy.
In accordance with 19 CFR 351.505(a) and 351.524(c)(3)(i), the benchmark and discounts rates for companies considered to be uncreditworthy are described in 19 CFR 351.505(a)(3)(iii). To calculate this rate, the Department must specify values for four variables: (1) The probability of default by an uncreditworthy company; (2) the probability of default by a creditworthy company; (3) the long-term interest rate for creditworthy borrowers; and (4) the term of the debt.
For the probability of default by an uncreditworthy company, we used the average cumulative default rates for the Caa- to C-rated category of companies and for the probability of default by a creditworthy company, we used the cumulative default rates for investment grade bonds, as shown in Exhibit 28 of “Historical Default Rates of Corporate Bond Issuers, 1920-1997,” published by Moody's Investors Service (February 1998). For the probability of default by a creditworthy company, we have used the cumulative default rates for investment grade bonds as published in Moody's Investors Service's “Statistical Tables of Default Rates and Recovery Rates” (February 1998). As the commercial interest rate charged to creditworthy borrowers in 1994 and 1996, consistent with
Based upon our analysis of the petition and the responses to our questionnaires, we preliminarily determine the following:
1.
Article 54 of the European Coal and Steel Community (“ECSC”) Treaty allows the EC to grant loans to coal and steel companies in accordance with Articles 50 and 51 of the Treaty. Loans are granted to purchase new equipment and to finance modernization but cannot exceed 50 percent of the total eligible investment. The EC borrows money on international capital markets at what the EC in its questionnaire response has described as market interest rates. It then re-lends the funds to the companies at a slightly higher interest rate to cover the EC's costs. According to the EC's questionnaire response, virtually no new loans have been granted since 1997 because of the expiration of the ECSC Treaty in July 2002.
Saarstahl received an Article 54 loan in 1991 which was a rescheduling of old Article 54 loans taken by Saarstahl in the 1980s. As part of Saarstahl's bankruptcy proceedings (
We preliminarily determine that Article 54 loans confer a countervailable subsidy within the meaning of section 771(5) of the Act. They are a direct transfer of funds from the EC providing a benefit in the amount of the difference between the benchmark interest rate and the interest rate paid by Saarstahl. Also, we have found these loans to be specific within the meaning of section 771(5A)(D)(i) of the Act because they are limited to firms in the coal and steel industries.
In accordance with 19 CFR 351.505(c)(2), we calculated the benefit for the POI by computing the difference between the payments that Saarstahl made on its Article 54 loan during the POI and the payments the company would have made on a comparable commercial loan. We divided this benefit by the combined sales of Saarstahl and Saarstahl Burdach in the POI. On this basis, we preliminarily determine the countervailable subsidy from rate from this program to be 0.48 percent ad valorem for Saarstahl.
2.
As described above under the “Change in Ownership” section, Saarstahl's bankruptcy trustees approved a reorganization plan for Saarstahl in 1997. Under that plan, the GOS transferred a portion of its shareholdings in Saarstahl to KfW, Saarstahl Treuhand, and Dillinger. The new owners, as well as the GOS, agreed to make a payment totaling DM 120 million to an escrow account. The share paid by each was proportional to its ownership of Saarstahl.
This payment was used to satisfy the claims of Saarstahl's ordinary creditors. These claims arose from debt incurred by Saarstahl prior to entering the bankruptcy proceeding in 1993. The total debt outstanding was DM 1.2 billion. Therefore, the DM 120 million payment by the shareholders represented 10 percent of the amount owed to the creditors. The bankruptcy trustees believed that this amount of repayment would be necessary in order to obtain the creditors' approval for the reorganization. With the reorganization, the remaining debt was removed from Saarstahl's books.
We preliminarily determine that the elimination of Saarstahl's debt through the bankruptcy proceeding does not confer a subsidy. Bankruptcy protection is available to all types of companies in Germany, and government- and privately-owned companies are not treated differently. Moreover, there is no indication from the record that Saarstahl received preferential or differential treatment, or that any discretion in the proceeding was exercised in Saarstahl's favor in terms of the amount of debt forgiven. Therefore, we preliminarily find that the debt elimination that resulted from the bankruptcy proceeding was not specific to Saarstahl.
However, we preliminarily determine that the portion of the DM 120 million debt that was paid through contributions by the GOS, Saarland Treuhand, and KfW is a countervailable subsidy. Although Saarstahl Treuhand and KfW received shares in return for their contribution, we do not view the transaction as a sale of shares because these entities are not private companies. (
To calculate the benefit, we allocated these amounts over 11 years using the uncreditworthy discount rate. We divided the benefit attributable to the POI by the combined sales of Saarstahl and Saarstahl Burdach in the same period. On this basis, we preliminarily
We note that the Department also included in its investigation certain tax write-offs that allegedly were received by Saarstahl as part its reorganization process. Saarstahl has claimed that the tax write-offs it received were two types. First, Dillinger sought reimbursement for VAT liabilities which it paid on behalf of the Saarstahl corporate group. The VAT had already been received by the GOG and Dillinger was simply requesting to be reimbursed by Saarstahl through the bankruptcy proceedings. Second, VAT liabilities associated with trade accounts payable were discharged when the accounts payable were discharged under the bankruptcy proceeding.
Because these liabilities were addressed under the bankruptcy proceedings in the same manner as claims by other creditors of Saarstahl, we find that the tax write-offs were not specific to Saarstahl under section 771(5A)(D)(i) of the Act. On this basis, we preliminarily determine that the tax write-offs did not convey a countervailable subsidy to Saarstahl.
3.
As described in the “Change in Ownership” section above, Venuda took over HSW's DM 154.1 million debt to HLB in connection with Venuda's purchase of HSW. Venuda paid HLB approximately DM 60 million for the debt and took the bank's place as HSW's main creditor. The DM 154.1 million debt was left on the books of “old HSW,” which was later renamed DSG (
In
In
In accordance with 19 CFR 351.508(c), we have treated the debt forgiveness as a non-recurring subsidy. Because the same subsidy was allocated over time in
4.
Under Article 56 of the ECSC Treaty, persons employed in the coal and steel industries who lose their jobs due to restructuring may receive readaptation aid for social adjustment. Payments from the EC are conditional upon an at least equivalent contribution from the government of the country in which the affected industry is located.
According to the EC's response, Article 56 worker assistance disbursed by the EC is funded from the ECSC's operational budget. The Department has previously found that because the ECSC's operational budget is funded by levies on coal and steel companies, the portion of the aid financed by the EC is not countervailable.
Regarding the portion of the assistance that is financed by the national government, we have in two previous countervailing duty investigations of the German steel industry determined that only half of the amount paid by the GOG constitutes a countervailable subsidy if a social plan is in effect for the recipient company (
ISRG received assistance under this program in the POI. However, there is no information on the record as to whether ISRG had a social plan in place when it received the Article 56 readaptation aid. Therefore, we determine preliminarily that the entire portion of the grant funded by the GOG (
Worker assistance is a type of subsidy that the Department normally treats as recurring grants in accordance with 19 CFR 351.524(c). We, therefore, calculated the benefit by dividing half of the amount of the grant received by ISRG by the combined total sales of IHSW, IWHG, and ISRG, net of intercompany sales (
On this basis, we preliminarily determine the countervailable subsidy rate for this program to be 0.04 percent ad valorem.
On August 30, 2000, in accordance with its obligations under the European Steel Aid Code, the GOG notified the EC of its intention to provide research and development (“R&D”) assistance to Saarstahl for a project involving the development of steels for thixoforging. On October 18, 2000, the EC approved the GOG's R&D aid to Saarstahl. According to a March 21, 2001, report from the EC, the R&D project, entitled “New Materials for Key Technologies of the 21st Century” (“MaTech”), was developed to “improve materials and steels for thixoforging.” However, the
However, in the course of our investigation, we discovered evidence that Saarstahl had received other R&D grants prior to the POI. Since all these grants were smaller than 0.5 percent of the company's total sales in the year of approval, we expensed them in the year of receipt.
On this basis, we preliminarily determine that the R&D assistance to Saarstahl did not provide a countervailable benefit in the POI.
In the POI, Saarstahl received Article 56 readaptation aid from the EC and the GOG for workers taking early retirement or becoming unemployed. As noted above, the EC has stated that Article 56 assistance paid by the EC originated from the ECSC's operational budget. Also, as noted above, the Department has previously found that because the ECSC's operational budget is funded by levies on coal and steel companies, the portion of the aid financed by the EC is not countervailable.
With respect to the portion of the aid funded by the GOG, Saarstahl has stated that the readaptation aid received in the POI was paid to the company's workers under the 1993 bankruptcy social plan. In
On this basis, we preliminarily determine that the Article 56 readaptation aid received by Saarstahl in the POI is not countervailable.
The purpose of the 1999 ecological tax reform laws is two-fold: (1) To reduce energy consumption and environmental pollution, and (2) to increase employment in Germany. The laws consist of the Act Introducing the Ecological Tax Reform, dated March 24, 1999, and the Act on Continuation of the Ecological Tax Reform, dated December 16, 1999. These two Acts increased the excise taxes on mineral oil and electricity. The revenue generated by these taxes is used to lower non-wage labor costs, particularly social security contributions. By lowering such labor costs, the GOG hopes to create more jobs.
Companies in the manufacturing, agricultural, and forestry sectors can apply for a 20 percent reduction of the tax rate if they pay more than DM 1,000 in excise taxes on electricity and mineral oils (except fuels for motor vehicles). Companies created before January 1, 1998, that are particularly affected by the higher energy taxes may under certain circumstances receive an additional reduction of these taxes.
The GOG has stated that in the POI, the total value of the tax reductions on electricity and mineral oils was DM 4.4 billion. Around 100,000 companies used the basic level of the program while another 2,500 companies received the additional tax reduction.
The documentation submitted by the GOG shows that all industries in the manufacturing, agricultural, and forestry sectors with a tax liability of over DM 1,000 could use this tax program. There is no indication that the tax reductions are directed to a specific industry or enterprise, or to a specific group of industries or enterprises. Thus, we preliminarily determine that this tax program is not
Regarding actual use of the program, the GOG has stated that it does not have any statistics showing the number of enterprises in individual sectors or geographical regions that used the program. The GOG has, however, stated that there were a total of 37 steel companies in Germany in the POI. Because of the contrast between the relatively small number of steel companies compared to the very large number of users of the tax program and the total size of the tax reductions (DM 4.4 billion), we preliminarily conclude that this program is not
On this basis, we preliminarily determine that the ecological tax scheme is not countervailable because it does not meet the specificity criteria in section 771(5A)(D) of the Act.
This program is not listed in the
Before the 1997 corporate tax reform, German tax law, which is universally applicable, exempted bankrupt companies from paying taxes on gains resulting from debt forgiveness that had been provided to these companies as part of a restructuring plan. In October 1997, the German parliament passed a comprehensive corporate tax reform under which such tax exemptions would be repealed. The new corporate tax law was originally planned to go into effect retroactively from January 1, 1997.
According to the GOG, there were numerous protests against the retroactive effect of the repeal of the tax exemption, as well as against certain other measures in the tax act, because the retroactive nature of these provisions did not give bankrupt companies a chance to adapt their restructuring plans to the new law. In light of these protests, it was decided to delay the repeal of the tax exemption, as well as certain other provisions of the new tax act, until January 1, 1998.
We find no record evidence for the petitioners' claim that the repeal was postponed specifically to help Saarstahl, which had declared bankruptcy in 1993. The repeal simply meant that all bankrupt companies in Germany could continue to follow the old tax law for another year until the repeal went into effect on January 1, 1998. Moreover, the GOG has indicated that a large number of protests against the retroactive nature of the repeal were received by the finance ministries in several of the German Lander (states) as well as by the Federal Ministry of Finance. Thus, it appears that many bankrupt companies other than Saarstahl felt that they would be negatively affected by the retroactive tax repeal. Against this background, we preliminarily find that the delay of the repeal of the tax exemption was neither de jure, nor de facto, specific to an enterprise or industry, or to a group of enterprises or industries in Germany.
On this basis, we preliminarily determine that the delay in the repeal of the tax exemption for bankrupt companies is not countervailable because it does not meet the specificity criteria in section 771(5A)(D) of the Act.
We initiated an investigation of this program based on the final determination in
On this basis, we preliminarily determine that this program is not countervailable.
Based on the information provided in the responses, we preliminarily determine that no responding companies applied for or received benefits under the following programs during the POI:
1.
The GOG has submitted documentation indicating that the 1979 Investment Allowance Act was repealed on December 31, 1989. After the repeal, no benefits under this Act were granted after December 31, 1990. Depending on the length of the allocation period, German companies may still receive residual benefits from this program, which we countervailed as a non-recurring grant in a recent final determination in a countervailing duty investigation (
2.
3.
4.
5.
6.
7.
8.
This program was initiated under the name “Subsidies Offered by the German Federal Government to Companies in Brandenburg” in an October 9, 2001 memorandum to Richard W. Moreland entitled “New Subsidy Allegations,” which is on file in the CRU.
Based on the information provided in the responses, we preliminarily determine that the following programs have been terminated:
1.
The Department determined in
1.
The Department determined in
In accordance with section 782(i)(1) of the Act, we will verify the information submitted by the respondents prior to making our final determination.
In accordance with section 703(d)(1)(A)(i) of the Act, we calculated an individual rate for each manufacturer of the subject merchandise. We preliminarily determine the total estimated net countervailable subsidy rates to be:
In accordance with sections 777A(e)(2)(B) and 705(c)(5)(A), we have calculated the “all others” rate as the weighted average rate of Saarstahl's and IHSW's, IWHG's and ISRG's net subsidy rates. The suspension of liquidation resulting from this preliminary affirmative CVD determination will remain in effect no longer than four months in accordance with section 703(d) of the Act.
In accordance with section 703(d) of the Act, we are directing the U.S. Customs Service to suspend liquidation of all entries of wire rod from Germany 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 nonprivileged 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.
Case briefs for this investigation must be submitted no later than one week after the issuance of the last verification report. Rebuttal briefs must be filed within five days after the deadline for submission of case briefs. A list of authorities relied upon, a table of contents, and an executive summary of issues should accompany any briefs submitted to the Department. Executive summaries should be limited to five pages total, including footnotes. Section 774 of the Act provides that the Department will hold a public hearing to afford interested parties an opportunity to comment on arguments raised in case or rebuttal briefs, provided that such a hearing is requested by an interested party. If a request for a hearing is made in this investigation, the hearing will tentatively be held two days after the deadline for submission of the rebuttal briefs at the U.S. Department of Commerce, 14th Street and Constitution Avenue, NW., Washington, DC 20230. Parties should confirm by telephone the time, date, and place of the hearing 48 hours before the scheduled time.
Interested parties who wish to request a hearing, or to participate if one is requested, must submit a written request to the Assistant Secretary for Import Administration, U.S. Department of Commerce, Room 1870, within 30 days of the publication of this notice. Requests should contain: (1) the party's name, address, and telephone number; (2) the number of participants; and (3) a list of the issues to be discussed. Oral
This determination is published pursuant to sections 703(f) and 777(i) of the Act.
Import Administration, International Trade Administration, Department of Commerce.
Notice of preliminary affirmative countervailing duty determination and preliminary negative critical circumstances determination.
The Department of Commerce preliminarily determines that countervailable subsidies are being provided to producers or exporters of carbon and certain alloy steel wire rod from Trinidad and Tobago. For information on the estimated countervailing duty rates, see infra section on “Suspension of Liquidation.” We also determine that critical circumstances do not exist with respect to imports of carbon and certain alloy steel wire rod from Trinidad and Tobago.
February 8, 2002.
Melani Miller or Anthony Grasso, Office of Antidumping/Countervailing Duty Enforcement, Group 1, Import Administration, U.S. Department of Commerce, Room 3099, 14th Street and Constitution Avenue, N.W., Washington, D.C. 20230; telephone (202) 482-0116 and (202) 482-3853, respectively.
Unless otherwise indicated, all citations to the statute are references to the provisions of the Tariff Act of 1930, as amended by the Uruguay Round Agreements Act effective January 1, 1995 (“the Act”). In addition, unless otherwise indicated, all citations to the Department of Commerce's (“the Department”) regulations are to 19 CFR Part 351 (April 2001).
The petitioners in this investigation are Co-Steel Raritan, Inc., GS Industries, Keystone Consolidated Industries, Inc., and North Star Steel Texas, Inc. (collectively, “petitioners”).
The following events have occurred since the publication of the notice of initiation in the Federal Register. See Notice of Initiation of Countervailing Duty Investigations: Carbon and Certain Alloy Steel Wire Rod from Brazil, Canada, Germany, Trinidad and Tobago, and Turkey, 66 FR 49931 (October 1, 2001) (“Initiation Notice”).
On September 21, 2001, the petitioners properly filed a new subsidy allegation. Although it was filed prior to the signature of the Initiation Notice, due to a lack of time for proper analysis, we did not include this new allegation in our initiation. Instead, we addressed the allegation in the October 17, 2001 memorandum to Richard W. Moreland entitled “New Subsidy Allegations”(“October 17 Memorandum”), which is on file in the Department's Central Records Unit in Room B-099 of the main Department building (“CRU”).
On October 9, 2001, we received a request from the petitioners to amend the scope of this investigation to exclude certain tire rod. On November 28, 2001, the petitioners submitted further clarification with respect to their scope amendment request. Also on November 28, the five largest U.S. tire manufacturers and the industry trade association, the Rubber Manufacturers Association (“tire manufacturers”), submitted comments on the proposed exclusion. The tire manufacturers submitted further comments on January 28, 2002. See, infra, “Scope Comments” section.
On October 11, 2001, we issued countervailing duty (“CVD”) questionnaires to the Government of Trinidad and Tobago (“GOTT”) and to Caribbean Ispat Limited (“CIL”), the only producer/exporter of carbon and certain alloy steel wire rod (“wire rod” or “subject merchandise”) in Trinidad and Tobago.
On October 18, 2001, the petitioners filed a letter raising several concerns with respect to the Department's initiation of this investigation and the concurrent CVD investigations in Brazil, Canada, and Germany. With respect to Trinidad and Tobago, the petitioners also filed a second letter on October 18 resubmitting a subsidy allegation that the Department rejected in the Initiation Notice. The Department addressed the concerns raised in these two letters with respect to Trinidad and Tobago in the December 4, 2001 memorandum to Richard W. Moreland entitled “Petitioners' Objections to Department's Initiation Determinations,” which is on file in the Department's CRU.
On November 14, 2001, we postponed the preliminary determination of this investigation until February 1, 2002. See Carbon and Certain Alloy Steel Wire Rod From Brazil, Canada, Germany, Trinidad and Tobago, and Turkey: Postponement of Preliminary Determinations of Countervailing Duty Investigations, 66 FR 57036 (November 14, 2001).
On December 3, 2001, the Department received responses to the Department's questionnaires from CIL and the GOTT (collectively, the “respondents”). On December 10, 2001, the petitioners submitted comments regarding these questionnaire responses. The Department issued supplemental questionnaires to the GOTT and CIL on December 11, 2001 and January 4, 2002, and received responses to those questionnaires on January 3, and January 11, 2002.
On December 21, 2001, the petitioners submitted a letter alleging that critical circumstances exist with respect to imports of wire rod from Trinidad and Tobago. Supplemental critical circumstances information and arguments relating to Trinidad and Tobago were filed by the American Wire Producers Association on December 31, 2001, the petitioners on January 2, 2002 and January 25, 2002, and by the respondents on January 11, and January 18, 2002. See infra “Critical Circumstances” section for a discussion on the Department's critical circumstances analysis for this preliminary determination.
Finally, the petitioners and respondents submitted comments on the upcoming preliminary determination on January 17, and January 18, 2002, respectively. In their comments, the petitioners made two new subsidy allegations, and also resubmitted the subsidy allegation which the Department addressed in its October 17 Memorandum. Under 19 CFR 351.301(d)(4)(A), new subsidy allegations are due no later than 40 days prior to a preliminary determination, a deadline which had passed by January 17, 2002. However, even if these allegations had been timely filed, we would not have included them in our investigation for the reasons outlined below.
The petitioners' first new allegation pertains to the GOTT's Repair Program for the Iron and Steel Company of Trinidad and Tobago's (“ISCOTT”) facilities. According to the petitioners, ISCOTT's financial statements show that ISCOTT continued to incur expenses on its leased assets during the period when CIL leased the ISCOTT facilities (1989 through 1994). Citing to the Final Affirmative Countervailing Duty Determination: Certain Stainless Steel Wire Rod From Italy, 63 FR 40474, 40485 (July 29, 1998) and the Final Affirmative Countervailing Duty Determination: Stainless Steel Bar from Italy 67 FR 3163 (January 23, 2002), the petitioners allege that the maintenance obligation during the pendency of the lease rested with the tenant. Therefore, the petitioners claim, a subsidy was conferred in the amount of the maintenance payments made.
In making this new subsidy allegation, the petitioners have not demonstrated that a financial contribution or a benefit has been provided by the GOTT to CIL or ISCOTT through this program pursuant to sections 771(5)(D) and (E) of the Act. Furthermore, the Plant Lease Agreement required that ISCOTT hand over the plant to CIL with the plant operating in accordance with its specified design capacities. Information on the record indicates that ISCOTT did not meet this requirement, and the payments made by ISCOTT to CIL with respect to plant maintenance were made in order to allow CIL and ISCOTT to meet these Plant Lease Agreement stipulations. Therefore, unlike the Italian cases, noted above, the evidence in this proceeding supports the conclusion that CIL was not responsible for this maintenance. Consequently, we neither have a basis to investigate these payments, nor have the petitioners properly alleged the elements necessary for the imposition of countervailable duties as required by section 701(a) of the Act.
The petitioners' second new allegation relates to the sale of ISCOTT's assets to CIL. The petitioners allege that the change-in-ownership transaction was not at arm's length because, inter alia, ISCOTT's and CIL's operations were closely intertwined as a result of CIL's having leased ISCOTT's plant. Additionally, according to the petitioners, ISCOTT did not receive fair market value when it sold the assets to CIL. This is evidenced, the petitioners claim, by the fact that ISCOTT received significantly less than the book value of the assets. Thus, the petitioners allege, CIL received a benefit by virtue of the low sales price it paid.
Under the Department's practice, when a change in ownership occurs and we find that the pre-sale and post-sale entities are the same “person,” we do not conduct an analysis of whether the transaction reflected fair value. (See “Final Results of Redetermination Pursuant to Court Remand” Acciai Speciali Terni S.p.A. v. United States, Court No. 99-06-00364, Remand Order (CIT August 14, 2000).) Because we have determined that the business entity owned by ISCOTT prior to the 1994 sale was the same “person” as the business entity owned by CIL after the 1994 sale (see “Change in Ownership” section, infra), we do not reach the issue identified by the petitioners in this proceeding and have no basis to investigate this transaction as a possible subsidy.
Finally, the petitioners raised again their allegation that CIL's commitment to invest in the company it had just purchased conferred a subsidy. This allegation had been dismissed by the Department in the October 17 Memorandum, and the petitioners' January 17, 2002 submission did not provide additional evidence in support of their claim. Based on our review of the evidence, there is no indication that revenue was foregone by the GOTT or ISCOTT in selling the wire rod production assets to CIL.
The period for which we are measuring subsidies, or the period of investigation (“POI”), is calendar year 2000.
The merchandise covered by this investigation is certain hot-rolled products of carbon steel and alloy steel, in coils, of approximately round cross section, 5.00 mm or more, but less than 19.0 mm, in solid cross-sectional diameter.
Specifically excluded are steel products possessing the above-noted physical characteristics and meeting the Harmonized Tariff Schedule of the United States (“HTSUS”) definitions for (a) stainless steel; (b) tool steel; (c) high nickel steel; (d) ball bearing steel; and (e) concrete reinforcing bars and rods. Also excluded are (f) free machining steel products (i.e., products that contain by weight one or more of the following elements: 0.03 percent or more of lead, 0.05 percent or more of bismuth, 0.08 percent or more of sulfur, more than 0.04 percent of phosphorus, more than 0.05 percent of selenium, or more than 0.01 percent of tellurium). All products meeting the physical description of subject merchandise that are not specifically excluded are included in this scope.
The products under investigation are currently classifiable under subheadings 7213.91.3010, 7213.91.3090, 7213.91.4510, 7213.91.4590, 7213.91.6010, 7213.91.6090, 7213.99.0031, 7213.99.0038, 7213.99.0090, 7227.20.0010, 7227.20.0090, 7227.90.6051 and 7227.90.6058 of the HTSUS. Although the HTSUS subheadings are provided for convenience and customs purposes, the written description of the scope of these investigations is dispositive.
In the Initiation Notice, we invited comments on the scope of this proceeding. As noted above, on October 9, 2001, we received a request from the petitioners to amend the scope of this investigation and the companion CVD and antidumping duty (“AD”) wire rod investigations. Specifically, the petitioners requested that the scope be amended to exclude high carbon, high tensile 1080 grade tire cord and tire bead quality wire rod actually used in the production of tire cord and bead, as defined by specific dimensional characteristics and specifications.
On November 28, 2001, the petitioners further clarified and modified their October 9 request. The petitioners suggested the following five modifications and clarifications: (1) Expand the end-use language of the scope exclusion request to exclude 1080 grade tire cord and tire bead quality that is used in the production of tire cord, tire bead, and rubber reinforcement applications; (2) clarify that the scope exclusion requires a carbon segregation per heat average of 3.0 or better to comport with recognized industry standards; (3) replace the surface quality requirement for tire cord and tire bead with simplified language specifying maximum surface defect length; (4) modify the maximum soluble aluminum from 0.03 to 0.01 for tire bead wire rod; and (5) reduce the maximum residual element requirements to 0.15 percent from 0.18 percent for both tire bead and tire cord wire rod and add an exception for chromium-added tire bead wire rod to allow a residual of 0.10 percent for copper and nickel and a chromium content of 0.24 to 0.30 percent.
Also on November 28, 2001, the tire manufacturers submitted a letter to the Department in response to petitioners' October 9, 2001 submission regarding the scope exclusion. In this letter, the tire manufacturers supported the petitioners' request to exclude certain 1080 grade tire cord and tire bead wire
Additionally, the tire manufacturers requested that the Department clarify whether 1090 grade was covered by the petitioners' exclusion request. The tire manufacturers further requested an exclusion from the scope of this investigation for 1070 grade wire rod and related grades (0.69 percent or more of carbon) because, according to the tire manufacturers, domestic production cannot meet the requirements of the tire industry.
The tire manufacturers stated their opposition to defining scope exclusions on the basis of actual end use of the product. Instead, the tire manufacturers support excluding the product if it is imported pursuant to a purchase order from a tire manufacturer or a tire cord wire manufacturer in the Untied States. Finally, the tire manufacturers urged the Department to adopt the following specifications to define the excluded product: A maximum nitrogen content of 0.0008 percent for tire cord and 0.0004 percent for tire bead; maximum weight for copper, nickel, and chromium, in the aggregate, of 0.0005 percent for both types of wire rod. In their view, there should be no additional specifications and tests, as proposed by the petitioners.
On January 28, 2002, the tire manufacturers responded to the petitioners' November 28, 2001 letter. The tire manufacturers continue to have three major concerns about the product exclusion requested by the petitioners. First, the tire manufacturers urge that 1070 grade tire cord quality wire rod be excluded (as it was in the 1999 Section 201 investigation). Second, they continue to object to defining the exclusion by actual end use. Finally, they reiterate their earlier position on the chemical specifications for the excluded product.
At this point in the proceeding, we recognize that the interested parties have both advocated excluding tire rod and tire core quality wire rod. However, the Department continues to examine this issue. Therefore, for this preliminary determination we have not amended the scope, and this preliminary determination applies to the scope as described in the Initiation Notice.
We plan to reach a decision as early as possible in this proceeding. Interested parties will be advised of our intentions prior to the final determination and will have the opportunity to comment.
Because Trinidad and Tobago is a “Subsidies 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 Trinidad and Tobago materially injure, or threaten material injury to, a U.S. industry. On October 15, 2001, the ITC transmitted to the Department its preliminary determination that there is a reasonable indication that an industry in the United States is being materially injured by reason of imports from Trinidad and Tobago of the subject merchandise. See Carbon and Certain Alloy Steel Wire Rod From Brazil, Canada, Egypt, Germany, Indonesia, Mexico, Moldova, South Africa, Trinidad and Tobago, Turkey, Ukraine, and Venezuela, 66 FR 54539 (October 29, 2001).
On December 21, 2001 petitioners alleged that critical circumstances exist with respect to imports of subject merchandise from,
Section 703(e)(1) of the Act provides that critical circumstances exist if the Department determines that there is a reasonable basis to believe or suspect that (1) an alleged subsidy is inconsistent with the Subsidies Agreement
The Department preliminarily determines that critical circumstances do not exist with respect to subject merchandise from Trinidad and Tobago because we have preliminarily found no subsidies inconsistent with the Subsidies Agreement to exist in Trinidad and Tobago. Thus, the first requirement of Sec. 703(e)(1) of the Act has not been met. More specifically, we have preliminarily found no prohibited subsidies (i.e., Part II of the Subsidies Agreement) to be countervailable in this case. Actionable subsidies, although they may give rise to a right to a remedy (e.g. countervailing duties), are not inconsistent with the Subsidies Agreement within the meaning of Section 703(e)(1) of the Act.
On February 2, 2000, the U.S. Court of Appeals for the Federal Circuit (“CAFC”) in Delverde Srl v. United States, 202 F.3d 1360, 1365 (Fed. Cir. 2000), reh'g en banc denied (June 20, 2000) (“Delverde III”), rejected the Department's change-in-ownership methodology as explained in the General Issues Appendix of the Final Affirmative Countervailing Duty Determination: Certain Steel Products from Austria, 58 FR 37217, 37225 (July 9, 1993). The CAFC held that “the Tariff Act, as amended, does not allow Commerce to presume conclusively that the subsidies granted to the former owner of Delverde's corporate assets automatically ‘passed through’ to Delverde following the sale. Rather, the Tariff Act requires that Commerce make such a determination by examining the particular facts and circumstances of the sale and determining whether Delverde directly or indirectly received both a financial contribution and benefit from the government.” Delverde III, 202 F.3d at 1364.
Pursuant to the CAFC finding, the Department developed a new change-in-ownership methodology. This new methodology was first announced in a remand determination on December 4, 2000, and was also applied in Grain-Oriented Electrical Steel from Italy; Final Results of Countervailing Duty Administrative Review, 66 FR 2885 (January 12, 2001). Likewise, we have
The first step under this new methodology is to determine whether the legal person (entity) to which the subsidies were given is, in fact, distinct from the legal person that produced the subject merchandise exported to the United States. If we determine the two persons are distinct, we then analyze whether a subsidy has been provided to the purchasing entity as a result of the change-in-ownership transaction. If we find, however, that the original subsidy recipient and the current producer/exporter are the same person, then that person benefits from the original subsidies, and its exports are subject to countervailing duties to offset those subsidies. In other words, we will determine that a “financial contribution” and a “benefit” have been received by the “person” under investigation. Assuming that the original subsidy has not been fully amortized under the Department's normal allocation methodology as of the POI, the Department would then continue to countervail the remaining benefits of that subsidy.
In making the “person” determination, where appropriate and applicable, we analyze factors such as (1) continuity of general business operations, including whether the successor holds itself out as the continuation of the previous enterprise, as may be indicated, for example, by use of the same name, (2) continuity of production facilities, (3) continuity of assets and liabilities, and (4) retention of personnel. No single factor will necessarily provide a dispositive indication of any change in the entity under analysis. Instead, the Department will generally consider the post-sale person to be the same person as the pre-sale person if, based on the totality of the factors considered, we determine the entity in question can be considered a continuous business entity because it was operated in substantially the same manner before and after the change in ownership.
The change in ownership being examined in this instance involves the sale of ISCOTT's assets by the GOTT to CIL on December 30, 1994. Although this change in ownership was analyzed in detail in the Final Affirmative Countervailing Duty Determination: Steel Wire Rod from Trinidad and Tobago, 62 FR 55003, 55005 (October 22, 1997) (“1997 Trinidad and Tobago Wire Rod”) under the Department's previous privatization methodology, as noted above, the Department's change-in-ownership methodology has changed. Thus, a new analysis must be carried out pursuant to the methodology currently being followed by the Department.
As noted above, the first step under our current change-in-ownership methodology is to determine whether the legal person, or, more specifically, the business entity to which the subsidies were given, is distinct from the business entity that produced the subject merchandise exported to the United States. As the name of the methodology implies, our analysis is triggered at the time of the actual change-in-ownership event, and is based on a comparison of the business entity before and after that ownership change. In this instance, we have preliminarily determined that the business entity owned by ISCOTT benefitted from subsidies bestowed by the GOTT between 1986 and 1991, and that this entity also received debt relief in 1994. Although CIL leased and updated the wire rod plant from ISCOTT between 1989 and 1994, the actual change in the ownership of the business entity did not occur until December 1994. Therefore, in analyzing whether the subsidies received by ISCOTT continued to benefit CIL, we have compared the business entity that was owned by ISCOTT (but run by CIL) in 1994 prior to the change in ownership to the business entity owned by CIL in 1995 after the change in ownership.
The first of the four criteria examined by the Department, as noted above, is the continuity of general business operations, including whether the successor holds itself out as the continuation of the previous enterprise. This may be indicated, for example, by use of the same name. In both 1994 and 1995, the respondents reported that merchandise manufactured by the entity in question was marketed under CIL's trade name. The respondents also reported that, because the product lines manufactured at the plant are standard throughout the industry (e.g., billets, wire rod, etc.), the product lines have essentially remained the same. Thus, although a shift was being implemented by CIL toward a higher-end line of wire rod products, the plant continued to produce billets, steel wire rod, and direct reduced iron both before and after the change in ownership in December 1994. Thus, CIL's longer-term efforts to revise certain areas of the plant's business operations notwithstanding, the overall business operations of pre- and post- change in ownership were essentially the same.
As for the second and third criteria, continuity of production facilities and assets and liabilities, the respondents reported that major investments were made during the lease period (i.e. prior to the sale of ISCOTT's assets to CIL) and after the sale was completed. The respondents reported that, prior to the purchase of ISCOTT's assets in 1994, significant investments were made to repair and improve the plant with the result that the plant's productivity was increased significantly. The respondents further note that, following the sale, CIL implemented an even more substantial program of major investments and changes to the plant. The respondents also reported that no liabilities were transferred to the new owners. Based on an examination of this information, we note that a comparison of the asset structure in 1994 and 1995 shows an increase in the plant's assets during those two years, ostensibly based on the upgrades being carried out throughout the plant. Thus, we note that changes in the plant's asset structure were likely based on the plant upgrades that occurred both before and after the sale.
Finally, regarding the fourth criterion, retention of personnel, the respondents reported that few changes were made as a result of the change in ownership.
Based on the totality of the factors considered, we preliminarily determine that the pre- and post- sale production entity in question is a continuous business entity because it was operated in substantially the same manner before and after the change in ownership. Although it is evident that long-term changes were being carried out by CIL, the business entity continued to produce substantially the same products under the same name. Thus, for the preliminary determination, we are attributing subsidies received by ISCOTT that continue to be allocable during the POI to CIL's sales during the POI.
Section 771(5)(E)(i) of the Act and 19 CFR 351.507 state that, in the case of a government-provided equity infusion, a benefit is conferred if the investment decision is inconsistent with the usual investment practice of private investors. 19 CFR 351.507 states that the first step in determining whether an investment decision is inconsistent with the usual investment practice of private investors is to examine whether, at the time of the infusion, there was a market price for similar newly-issued equity. If so, the Department will consider an equity infusion to be inconsistent with the usual investment practice of private investors if the price paid by the government for newly-issued shares is greater than the price paid by private
If actual private investor prices are not available, then, pursuant to 19 CFR 351.507(a)(3)(i), the Department will determine whether the firm funded by the government-provided infusion was equityworthy or unequityworthy at the time of the equity infusion.
In making the equityworthiness determination, pursuant to 19 CFR 351.507(a)(4), the Department will normally determine that a firm is equityworthy if, from the perspective of a reasonable private investor examining the firm at the time the government-provided equity infusion was made, the firm showed an ability to generate a reasonable rate of return within a reasonable time. To do this, the Department normally examines the following factors:
1) objective analyses of the future financial prospects of the recipient firm; 2) current and past indicators of the firm's financial health; 3) rates of return on equity in the three years prior to the government equity infusion; and 4) equity investment in the firm by private investors.
19 CFR 351.507(a)(4)(ii) further stipulates that the Department will “normally require from the respondents the information and analysis completed prior to the infusion, upon which the government based its decision to provide the equity infusion.” Absent an analysis containing information typically examined by potential private investors considering an equity investment, the Department will normally determine that the equity infusion provides a countervailable benefit. This is because, before making a significant investment, it is the usual practice of private investors to evaluate the potential risk versus the expected return, using the most objective criteria and information available.
Our equity analysis for ISCOTT is described below in the section entitled “Equity Infusions into ISCOTT.”
The examination of creditworthiness is an attempt to determine if the company in question could obtain long-term financing from conventional commercial sources. See 19 CFR 351.505(a)(4). According to 19 CFR 351.505(a)(4)(i), the Department will generally consider a firm to be uncreditworthy if, based on information available at the time of the government-provided loan, the firm could not have obtained long-term loans from conventional commercial sources. In making this determination, according to 19 CFR 351.505(a)(4)(i), the Department normally examines the following four types of information: 1) the receipt by the firm of comparable commercial long-term loans; 2) present and past indicators of the firm's financial health; 3) present and past indicators of the firm's ability to meet its costs and fixed financial obligations with its cash flow; and 4) evidence of the firm's future financial position. If a firm has taken out long-term loans from commercial sources, this will normally be dispositive of the firm's creditworthiness. However, if the firm is government-owned, the existence of commercial borrowings is not dispositive of the firm's creditworthiness. This is because, in the Department's view, in the case of a government-owned firm, a bank is likely to consider that the government will repay the loan in the event of a default. See Countervailing Duties; Final Rule, 63 FR 65348, 65367 (November 28, 1998).
In this investigation, we are examining ISCOTT's creditworthiness from 1986 (the beginning of the average useful life (“AUL”) period, as discussed below in the “Subsidies Valuation Information” section) through 1994. In 1997 Trinidad and Tobago Wire Rod, the Department determined that ISCOTT was uncreditworthy during the time period June 13, 1984 through December 31, 1994. In 1997 Trinidad and Tobago Wire Rod, we concluded the following:
ISCOTT did not show a profit for any year during this period and continued to rely upon support from the GOTT to meet fixed payments. The company's gross profit ratio was consistently negative in each of the years in which it had sales. Additionally, the company's operating profit (net income before depreciation, amortization, interest and financing charges) was consistently negative. The firm continued to show an operating loss in each year it was in production, and was never able to cover its variable costs.
See 1997 Trinidad and Tobago Wire Rod, 62 FR at 55005.
Based on an examination of the information submitted in the instant proceeding with respect to ISCOTT's creditworthiness during the period 1986 through 1994, we have concluded that no new information has been presented that would lead to a different conclusion than the determination made in 1997 Trinidad and Tobago Wire Rod. Therefore, we preliminarily determine that ISCOTT was uncreditworthy from 1986 through 1994.
Pursuant to 19 CFR 351.524(b), non-recurring subsidies are allocated over a period corresponding to the AUL of the renewable physical assets used to produce the subject merchandise. 19 CFR section 351.524(d)(2) creates a rebuttable presumption that the AUL will be taken from the U.S. Internal Revenue Service's 1977 Class Life Asset Depreciation Range System (the “IRS Tables”). For wire rod, the IRS Tables prescribe an AUL of 15 years. This is the same AUL period used for CIL in 1997 Trinidad and Tobago Wire Rod. Neither CIL nor any other interested party disputed this allocation period. Therefore, we have used the 15-year allocation period for CIL.
Because we have found CIL's predecessor, ISCOTT, to be uncreditworthy for the period 1986 through 1994 (see supra section on “Creditworthiness”), we have calculated the long-term uncreditworthy discount rates for the period 1986 through 1994 in accordance with 19 CFR 351.524(d)(3)(ii).
In accordance with 19 CFR 351.524(d)(3)(ii), the discount rate for companies considered uncreditworthy is the rate described in 19 CFR 351.505(a)(3)(iii). To calculate that rate, the Department must specify values for four variables: (1) the probability of default by an uncreditworthy company; (2) the probability of default by a creditworthy company; (3) the long-term interest rate for creditworthy borrowers; and (4) the term of the debt.
For the probability of default by an uncreditworthy company, we have used the average cumulative default rates reported for the Caa- to C- rated category of companies as published in Moody's Investors Service, “Historical Default Rates of Corporate Bond Issuers, 1920-1997” (February 1998). For the probability of default by creditworthy companies, we used the cumulative default rates for investment grade bonds as published in Moody's Investor Services: “Statistical Tables of Default Rates and Recovery Rates” (February 1998). For the commercial interest rate charged to creditworthy borrowers, we used the weighted-average rate on fixed-rate loans offered by commercial banks in Trinidad and Tobago as reported by the Central Bank of Trinidad and Tobago. For the term of the debt, we used the average cumulative default rates for both uncreditworthy and creditworthy
Based upon our analysis of the petition and the responses to our questionnaires, we determine the following:
In 1978, ISCOTT and the GOTT entered into a Completion and Cash Deficiency Agreement (“CCDA”) with several private commercial banks in order to obtain a part of the financing needed for construction of ISCOTT's plant. Under the terms of the CCDA, the GOTT was obligated to 1) provide certain equity financing toward completion of construction of ISCOTT's plant, 2) cover loan payments to the extent not paid by ISCOTT, and 3) provide cash as necessary to enable ISCOTT to meet its current liabilities.
In Carbon Steel Wire Rod from Trinidad and Tobago: Final Affirmative Countervailing Duty Determination and Countervailing Duty Order, 49 FR 480 (January 4, 1984) (“1984 Trinidad and Tobago Wire Rod”), the Department determined that payments or advances made by the GOTT to ISCOTT through April of 1983, the end of the original POI, were not countervailable because these advances were consistent with the practice of a reasonable private investor.
Subsequently, in 1997 Trinidad and Tobago Wire Rod, the Department determined that payments or advances made by the GOTT to ISCOTT during the period June 13, 1984 through December 31, 1991 were not consistent with the practice of a reasonable private investor and were countervailable subsidies. Specifically, the Department found that, during the period from 1983 to 1989, ISCOTT and the GOTT commissioned several studies to determine the financially preferable course of action for the company. Despite ISCOTT's continued losses, however, and without any reason to believe that there was any hope of improvement given the conditions in place at that time, the GOTT continued to provide funding for ISCOTT, nor did the GOTT make its continued support contingent upon actions that would have been required by a reasonable private investor.
However, the Department also found in 1997 Trinidad and Tobago Wire Rod that payments or advances made by the GOTT to ISCOTT after December 31, 1991 were consistent with the practice of a reasonable private investor. Based on a review of internal documents, financial projections, and historical financial data, the Department found that, after December 31, 1991, the operations of the ISCOTT plant under CIL and ISCOTT's financial condition improved such that investments in ISCOTT after this date were consistent with the practice of a reasonable private investor.
In the instant investigation, we are investigating these equity infusions based on our previous finding that the investments up to December 31, 1991 were countervailable. Moreover, because of the change in our equity methodology since 1997 Trinidad and Tobago Wire Rod, we initiated an investigation of the payments and advances made between January 1, 1992 and December 31, 1994. The respondents do not contest the Department's prior determination in 1997 Trinidad and Tobago Wire Rod with respect to equity infusions received prior to April 8, 1988. However, the respondents do challenge the Department's determination with respect to the period April 9, 1988 through December 31, 1991.
Based on our finding in 1997 Trinidad and Tobago Wire Rod, and because no new evidence has been submitted that would change that determination, we preliminarily determine that GOTT equity infusions received by ISCOTT from January 1, 1986 through April 8, 1988 are countervailable subsidies. (We note that any benefit related to countervailable equity infusions received prior to January 1, 1986 expired prior to the POI.) As for the GOTT equity infusions in ISCOTT during the period April 9, 1988 through December 31, 1991, the respondents have not provided any information that was not already closely examined in 1997 Trinidad and Tobago Wire Rod. Therefore, consistent with 1997 Trinidad and Tobago Wire Rod, we preliminarily determine that these equity infusions are countervailable subsidies.
Finally, with respect to the GOTT's equity infusions in ISCOTT during the period January 1, 1992 through December 31, 1994, the Department conducted an extensive review of ISCOTT and CIL's internal documents, financial projections, and historical financial data in 1997 Trinidad and Tobago Wire Rod. Much of that evidence has been submitted in this investigation. This evidence shows that the GOTT, from very early in ISCOTT's existence, sought objective outside advice on how to address the problems that arose with respect to ISCOTT's operations.
As noted in 1997 Trinidad and Tobago Wire Rod, 62 FR at 5506, “during the period 1983 to 1989, the GOTT commissioned several objective, outside studies to determine the financially preferable course of action for {ISCOTT}.” Although the contents of these studies are proprietary, the studies each consistently focused on the need for ISCOTT and the GOTT to take steps to improve ISCOTT's operations and the management of ISCOTT. For example, an August 27, 1987 International Finance Corporation (“IFC”) report analyzed ISCOTT's position at the time and its future prospects, and concluded that several options, such as leasing the plant to an outside party, were possible to make ISCOTT's operations viable. The IFC report stated that the lease of the ISCOTT plant was likely the best option for making ISCOTT operationally sound.
Subsequent to this study and consistent with its recommendations, the GOTT formed an outside committee to negotiate a lease for ISCOTT. Both this committee and another outside committee created to review the findings of the first committee agreed with the IFC study that leasing the ISCOTT property was the preferred option to make ISCOTT viable. The studies from the two outside committees were completed in late 1987 and early 1988.
Based on these studies and a detailed examination of the available options, ISCOTT took steps to make its operations viable. ISCOTT leased its assets to CIL as of May 1, 1989 according to the recommendations in the studies, and, as noted in 1997 Trinidad and Tobago Wire Rod, by the end of 1991, ISCOTT's financial picture had improved. Although no new studies were performed after CIL's lease of the ISCOTT plant, we preliminarily determine that the studies which led to the lease and ISCOTT's actions in carrying out the recommendations in these studies provided a sound basis for the GOTT to invest in ISCOTT from January 1, 1992 through December 31, 1994. Therefore, we preliminarily determine that the GOTT's investments into ISCOTT from January 1, 1992 through December 31, 1994 were consistent with the actions of a reasonable private investor and, thus, did not provide a countervailable subsidy pursuant to section 771(5)(E)(i).
Based on the above analysis and consistent with 1997 Trinidad and Tobago Wire Rod, we preliminarily determine that the GOTT's equity
As noted in the “Change in Ownership” section, supra, we have determined that subsidies received by ISCOTT prior to the purchase of ISCOTT's assets are attributable to CIL. Therefore, to calculate the benefit to CIL during the POI from this program, consistent with past cases (see 1997 Trinidad and Tobago Wire Rod and 1984 Trinidad and Tobago Wire Rod), we treated the advances from 1986 through 1991 as equity infusions and divided the amount of the equity infusions attributable to the POI by CIL's total sales during the POI. Accordingly, we preliminarily determine that a countervailable benefit of 7.45 percent ad valorem exists for CIL.
In December 1994, CIL exercised the purchase option in the plant lease agreement and purchased the assets of ISCOTT. After the sale of its assets, ISCOTT was nothing but a shell company with liabilities exceeding its assets. CIL, on the other hand, had purchased most of ISCOTT's assets without being burdened by ISCOTT's liabilities.
The liabilities remaining with ISCOTT after the sale of productive assets to CIL had to be repaid, assumed, or forgiven. In 1995, the National Gas Company of Trinidad and Tobago Limited (“NGC”), which was owned by the GOTT, and the National Energy Corporation of Trinidad and Tobago Limited, a wholly owned subsidiary of NGC, wrote off amounts owed to them by ISCOTT totaling Trinidad and Tobago Dollars (“TTD”) 77,225,775. Similarly, Trinidad and Tobago National Oil Company Limited, also owned by the GOTT, wrote off debts owed by ISCOTT totaling TTD 10,492,830 as bad debt.
In 1997 Trinidad and Tobago Wire Rod, the Department found that this debt forgiveness constituted a countervailable subsidy because it was a direct transfer of funds pursuant to section 771(5)(D)(i) with the benefit being the amount of the debt forgiveness pursuant to section 771(5)(E). The Department also found this transaction to be specific within the meaning of section 771(5A) of the Act because it was limited to one company. No information has been presented in this investigation to warrant a reconsideration of these findings.
We also found in 1997 Trinidad and Tobago Wire Rod that, after the 1994 sale of assets, certain non-operating assets (e.g., cash and accounts receivable) remained with ISCOTT. These assets were used to fund repayment of ISCOTT's remaining accounts receivable. Consistent with 1997 Trinidad and Tobago Wire Rod, in order to account for the fact that certain assets, including cash, were left behind in ISCOTT, we subtracted this amount from the liabilities outstanding after the 1994 sale of assets.
As noted in the “Change in Ownership” section, supra, we have determined that subsidies received by ISCOTT prior to the purchase of ISCOTT's assets are attributable to CIL. Therefore, to calculate the benefit to CIL during the POI from this program, we used our standard grant methodology and applied an uncreditworthy discount rate. We then divided the benefit attributable to the POI by CIL's total sales during the POI. Accordingly, we preliminarily determine that a countervailable benefit of 0.93 percent ad valorem exists for CIL.
Provision of Electricity
The Trinidad and Tobago Electric Commission (“TTEC”), which is wholly-owned by the GOTT, is solely responsible for the transmission, distribution, and sale of electric power in Trinidad and Tobago. The sole generators of electric power in Trinidad and Tobago are the Power Generating Company of Trinidad and Tobago (“PowerGen”) and InnCogen, Limited (“Incogen”). Prior to December 23, 1994, TTEC generated the power that it sold, but on and after this date, TTEC divested its power generating assets to PowerGen, which is owned 51 percent by TTEC, 39 percent by Southern Electric International Trinidad Inc., and 10 percent by Amoco Power Resources Corporation.
For billing purposes, TTEC classifies electricity consumers into one of the following categories: residential, commercial, industrial, and street lighting. Industrial users are further classified into one of four categories depending on the voltage at which they take power and the size of the load taken. Under TTEC's customer categories, CIL is classified as a Rate E (Heavy Industrial - Very Large Load) user.
TTEC's rates and tariffs for the sale of electricity are set by the Public Utilities Commission (“PUC”), an independent authority. In setting electricity rates, the PUC takes into account cost of service studies done by TTEC. These studies are submitted to the PUC, where they are reviewed by teams of economists, statisticians, and auditors. Public hearings are held and views expressed orally and in writing. After considering all of the views and studies submitted, the PUC issues detailed orders with the new rates and explanations of how they were calculated. In establishing these rates, the PUC is required by section 32 of the Public Utilities Act to ensure that the new rates will cover costs and expenses and allow for a return. Additionally, section 32 of the Public Utilities Act sets out the guidelines the PUC is to follow in determining the extent of utility rate increases.
The rates in effect during the POI for all rate classes, except Rate D3 (Heavy Industrial - Large Load) and Rate E (Heavy Industrial - Very Large Load), were published in PUC Order No. 80 in October 1992. In July 1998, the electricity rates for industrial users D3 and E were increased by PUC Order No. 85 and were applied retroactively to six months before the date of TTEC's application, i.e., to January 11, 1997. These electricity rates were based on the Cost of Service Study for 1996 and a formal claim filed by TTEC requesting an increase in the rates and charges payable by industrial consumers.
As noted above, TTEC is the only supplier in Trinidad and Tobago of electricity. Consequently, there are no competitively-set, private benchmark prices in Trinidad and Tobago to use in determining whether TTEC is receiving adequate remuneration within the meaning of section 771(5)(E) of the Act. Lacking such benchmarks, and consistent with 1997 Trinidad and Tobago Wire Rod, the only basis we have for determining what constitutes adequate remuneration are TTEC's costs and revenues.
In 1997 Trinidad and Tobago Wire Rod, the Department found that, despite the PUC's mandate to set rates that will cover the costs of providing electricity plus an adequate return, past history indicated that this directive was seldom met. Moreover, the Department found that the evidence in the 1996 Cost of Service Study indicated that TTEC did not receive adequate remuneration for
In the current investigation, the GOTT provided in its questionnaire responses the TTEC Cost of Service Studies for 1999 and 2000. These Cost of Service Studies indicate that TTEC realized profits on its sales under the Rate E customer category. As noted above, in 1997 Trinidad and Tobago Wire Rod, we found this program to bestow a benefit because the 1996 Cost of Service Study indicated that TTEC had incurred losses on its sales to CIL (Rate E). See 1997 Trinidad and Tobago Wire Rod, 62 FR at 55007. Consequently, as TTEC earned a profit on the rate E customer category during the POI, we preliminarily determine that the GOTT did not receive less than adequate remuneration under section 771(5)(E) of the Act for its provision of electricity to CIL.
On this basis, we preliminarily determine that the provision of electricity is not countervailable.
Based on the information provided in the responses, we determine that CIL neither applied for nor received benefits under the following programs during the POI:
A. Export Allowance Under Act No. 14
B. Export Market Development Grants
C. Export Promotion Allowance
D. Corporate Tax Exemptions Under the Fiscal Incentives Act
In accordance with section 782(i)(1) of the Act, we will verify the information submitted by the respondents prior to making our final determination.
In accordance with section 703(d)(1)(A)(i) of the Act, we calculated an individual rate for each manufacturer of the subject merchandise. We preliminarily determine the total estimated net countervailable subsidy rate for CIL to be the following:
In accordance with sections 777A(e)(2)(B) and 705(c)(5)(A), we have set the “all others” rate as CIL's rate.
Moreover, in accordance with section 703(d) of the Act, we are directing the U.S. Customs Service to suspend liquidation of all unliquidated entries of wire rod from Trinidad and Tobago for CIL and for any non-investigated exporters that entered, or were withdrawn from warehouse, for consumption on or after the date of the publication of this notice in the Federal Register, and to require a cash deposit or bond for such entries of the merchandise in the amounts indicated above. This suspension will remain in effect until further notice. However, this suspension of liquidation may not remain in effect for more than four months pursuant to section 703(d)(3) of the Act.
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 nonprivileged 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.
Case briefs for this investigation must be submitted no later than one week after the issuance of the last verification report. Rebuttal briefs must be filed within five days after the deadline for submission of case briefs. A list of authorities relied upon, a table of contents, and an executive summary of issues should accompany any briefs submitted to the Department. Executive summaries should be limited to five pages total, including footnotes.
Section 774 of the Act provides that the Department will hold a public hearing to afford interested parties an opportunity to comment on arguments raised in case or rebuttal briefs, provided that such a hearing is requested by an interested party. If a request for a hearing is made in this investigation, the hearing will tentatively be held two days after the deadline for submission of the rebuttal briefs at the U.S. Department of Commerce, 14th Street and Constitution Avenue, NW, Washington, DC 20230. Parties should confirm by telephone the time, date, and place of the hearing 48 hours before the scheduled time.
Interested parties who wish to request a hearing, or to participate if one is requested, must submit a written request to the Assistant Secretary for Import Administration, U.S. Department of Commerce, Room 1870, within 30 days of the publication of this notice. Requests should contain: (1) the party's name, address, and telephone number; (2) the number of participants; and (3) a list of the issues to be discussed. Oral presentations will be limited to issues raised in the briefs.
This determination is published pursuant to sections 703(f) and 777(i) of the Act.
Department of Defense (DOD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA).
Notice of request for an extension to an existing OMB clearance.
Under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35), the Federal Acquisition Regulation (FAR) Secretariat has submitted to the Office of Management and Budget (OMB) a request to review and approve an extension of a currently approved information collection requirement concerning descriptive literature. A request for public comments was published at 66 FR 58453, November 21, 2001. No comments were received.
Submit comments on or before March 11, 2002.
Submit comments regarding this burden estimate or any other aspect of this collection of information, including suggestions for reducing this burden to: FAR Desk Officer, OMB, Room 10102, NEOB, Washington, DC 20503, and a copy to the General Services Administration, FAR Secretariat (MVP), 1800 F Streets, NW, Room 4035, Washington, DC 20405.
Ralph DeStefano, Acquisition Policy Division, GSA (202) 501-1758.
Descriptive literature means information which shows the characteristics or construction of a product or explains its operation. It is furnished by bidders as a part of their bids to describe the products offered. Bidders are not required to furnish descriptive literature unless the contracting office needs it to determine before award whether the products offered meet the specification and to establish exactly what the bidder proposes to furnish.
Department of Defense (DOD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA).
Notice of request for public comments regarding an extension to an existing OMB clearance.
Under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35), the Federal Acquisition Regulation (FAR) Secretariat has submitted to the Office of Management and Budget (OMB) a request to review and approve an extension of a currently approved information collection requirement concerning place of performance. A request for public comments was published at 66 FR 58456, November 21, 2001. No comments were received.
Public comments are particularly invited on: Whether this collection of information is necessary for the proper performance of functions of the FAR, and whether it will have practical utility; whether our estimate of the public burden of this collection of information is accurate, and based on valid assumptions and methodology; ways to enhance the quality, utility, and clarity of the information to be collected; and ways in which we can minimize the burden of the collection of information on those who are to respond, through the use of appropriate technological collection techniques or other forms of information technology.
Submit comments on or before March 11, 2002.
Submit comments regarding this burden estimate or any other aspect of this collection of information, including suggestions for reducing this burden to: FAR Desk Officer, OMB, Room 10102, NEOB, Washington, DC 20503, and a copy to the General Services Administration, FAR Secretariat (MVP), 1800 F Street, NW, Room 4035, Washington, DC 20405
Ralph DeStefano, Acquisition Policy Division, GSA (202) 501-1758.
The information relative to the place of performance and owner of plant or facility, if other than the prospective contractor, is a basic requirement when contracting for supplies or services (including construction). This information is instrumental in determining bidder responsibility, responsiveness, and price reasonableness. A prospective contractor must affirmatively demonstrate its responsibility. Hence, the Government must be apprised of this information prior to award. The contracting officer must know the place of performance and the owner of the plant or facility to (a) determine bidder responsibility; (b) determine price reasonableness; (c) conduct plant or source inspections; and (d) determine whether the prospective contractor is a manufacturer or a regular dealer. The information is used to determine the firm's eligibility for awards and to assure proper preparation of the contract.
Department of Defense (DOD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA).
Notice of request for public comments regarding an extension to an existing OMB clearance (9000-0048).
Under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35), the Federal Acquisition Regulation (FAR) Secretariat has submitted to the Office of Management and Budget (OMB) a request to review and approve an extension of a currently approved information collection requirement concerning authorized negotiators. A request for public comments was published at 66 66 FR 58455, November 21, 2001. No comments were received.
Submit comments on or before March 11, 2002.
Submit comments regarding this burden estimate or any other aspect of this collection of information, including suggestions for reducing this burden to: FAR Desk Officer, OMB, Room 10102, NEOB, Washington, DC 20503, and a copy to the General Services Administration, FAR Secretariat (MVP), 1800 F Streets, NW, Room 4035, Washington, DC 20405.
Ralph DeStefano, Acquisition Policy Division, GSA (202) 501-1758.
Firms offering supplies or services to the Government under negotiated solicitations must provide the names, titles, and telephone numbers of authorized negotiators to assure that discussions are held with authorized individuals. The information collected is referred to before contract negotiations and it becomes part of the official contract file.
Department of Defense (DOD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA).
Notice of request for an extension to an existing OMB clearance.
Under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35), the Federal Acquisition Regulation (FAR) Secretariat will be submitting to the Office of Management and Budget (OMB) a request to review and approve an extension of a currently approved information collection requirement concerning organization and direction of work. The clearance currently expires April 30, 2002.
Submit comments on or before April 9, 2002.
Submit comments regarding this burden estimate or any other aspect of this collection of information, including suggestions for reducing this burden to: FAR Desk Officer, OMB, Room 10102, NEOB, Washington, DC 20503, and a copy to the General Services Administration, FAR Secretariat (MVP), 1800 F Street, NW, Room 4035, Washington, DC 20405. Please cite OMB Control No. 9000-0064, Organization and Direction of Work, in all correspondence.
Cecelia Davis, Acquisition Policy Division, GSA (202) 219-0202.
When the Government awards a cost-reimbursement construction contract, the contractor must submit to the contracting officer and keep current a chart showing the general executive and administrative organization, the personnel to be employed in connection with the work under the contract, and their respective duties. The chart is used in administration of the contract and as an aid in determining cost. The chart is used by contract administration personnel to assure the work is being properly accomplished at reasonable prices.
Department of Defense (DOD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA).
Notice of request for an extension to an existing OMB clearance.
Under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35), the Federal Acquisition Regulation (FAR) Secretariat will be submitting to the Office of Management and Budget (OMB) a request to review and approve an extension of a currently approved information collection requirement concerning material and workmanship. The clearance currently expires on April 30, 2002.
Submit comments or before April 9, 2002.
Submit comments regarding this burden estimate or any other aspect of this collection of information, including suggestions for reducing this burden to: FAR Desk Officer, OMB, Room 10102, NEOB, Washington, DC 20503, and a copy to the General Services Administration, FAR Secretariat (MVP), 1800 F Street, NW., Room 4035, Washington, DC 20405. Please cite OMB Control No. 9000-0062, Material and Workmanship, in all correspondence.
Cecelia Davis, Acquisition Policy Division, GSA (202) 219-0202.
Under Federal contracts requiring that equipment (e.g., pumps, fans, generators, chillers, etc.) be installed in a project, the Government must determine that the equipment meets the contract requirements. Therefore, the contractor must submit sufficient data on the particular equipment to allow the Government to analyze the item.
The Government uses the submitted data to determine whether or not the equipment meets the contract requirements in the categories of performance, construction, and durability. This data is placed in the contract file and used during the inspection of the equipment when it arrives on the project and when it is made operable.
Department of Defense (DOD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA).
Notice of request for an extension to an existing OMB clearance.
Under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35), the Federal Acquisition Regulation (FAR) Secretariat will be submitting to the Office of Management and Budget (OMB) a request to review and approve an extension of a currently approved information collection requirement concerning Standard Form (SF) 255; Architect-Engineer and Related Services Questionnaire for Specific Project. The clearance currently expires April 30, 2002.
Submit comments on or before April 9, 2002.
Submit comments regarding this burden estimate or any other aspect of this collection of information, including suggestions for reducing this burden to: FAR Desk Officer, OMB, Room 10102, NEOB, Washington, DC 20503, and a copy to the General Services Administration, FAR Secretariat (MVP), 1800 F Street, NW, Room 4035, Washington, DC 20405. Please cite OMB Control No. 9000-0005, Architect-Engineer and Related Services Questionnaire for Specific Project (SF 255), in all correspondence.
Cecelia Davis, Acquisition Policy Division, GSA (202) 219-0202.
Standard Form 255 is used by all Executive agencies to obtain information from architect-engineer (A-E) firms interested in a particular project. The information on the form is reviewed by a selection panel composed of professional people and assists the panel in selecting the most qualified A-E firm to perform the specific project. The form is designed to provide a uniform method for A-E firms to submit information on experience, personnel, capabilities of the A-E firm to perform, along with information on the consultants they expect to collaborate with on the specific project.
Department of Defense (DOD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA).
Notice of request for an extension to an existing OMB clearance.
Under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35), the Federal Acquisition Regulation (FAR) Secretariat will be submitting to the Office of Management and Budget (OMB) a request to review and approve an extension of a currently approved information collection requirement concerning accident prevention plans and recordkeeping. The clearance currently expires April 30, 2002.
Public comments are particularly invited on: Whether this collection of information is necessary for the proper performance of functions of the FAR, and whether it will have practical utility; whether our estimate of the public burden of this collection of information is accurate, and based on valid assumptions and methodology; ways to enhance the quality, utility, and clarity of the information to be collected; and ways in which we can minimize the burden of the collection of information on those who are to respond, through the use of appropriate technological collection techniques or other forms of information technology.
Submit comments on or before April 9, 2002.
Submit comments regarding this burden estimate or any other aspect of this collection of information, including suggestions for reducing this burden to: FAR Desk Officer, OMB, Room 10102, NEOB, Washington, DC 20503, and a copy to the General Services Administration, FAR Secretariat (MVP), 1800 F Street, NW, Room 4035, Washington, DC 20405. Please cite OMB Control No. 9000-0060, Accident Prevention Plans and Recordkeeping, in all correspondence.
Cecelia Davis, Acquisition Policy Division, GSA (202) 219-0202.
The FAR clause at 48 CFR 52.236-13 Accident Prevention requires Federal construction contractors to keep records of accidents incident to work performed under the contract that result in death, traumatic injury, occupational disease or damage to property, materials, supplies or equipment. Records of personal inquiries are required by OSHA (OMB Control No. 1220-0029). The FAR requires records of damage to property, materials, supplies or equipment to provide background information when claims are brought against the Government.
If the contract involves work of a long duration, the contractor must submit a written proposal for implementation of the clause. The Accident Prevention Plan, for projects that are hazardous or of long duration, is analyzed by the contracting officer along with the agency safety representatives to determine if the proposed plan will meet the requirement of the safety regulations and applicable statutes. The records maintained by the contractor are used to evaluate compliance and may be used in workmen's compensation cases. The Accident Prevention Plan is placed in the contract file for reference.
Department of Defense (DOD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA).
Notice of request for comments regarding an extension to an existing OMB clearance (9000-0141).
Under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35), the Federal Acquisition Regulation (FAR) Secretariat will be submitting to the Office of Management and Budget (OMB) a request to review and approve an extension of a currently approved information collection requirement concerning the Buy American Act—Construction (Grimberg Decision). The clearance currently expires on April 30, 2002.
Public comments are particularly invited on: Whether this collection of information is necessary for the proper performance of functions of the FAR, and whether it will have practical utility; whether our estimate of the public burden of this collection of information is accurate, and based on valid assumptions and methodology; ways to enhance the quality, utility, and clarity of the information to be collected; and ways in which we can minimize the burden of the collection of information on those who are to respond, through the use of appropriate technological collection techniques or other forms of information technology.
Submit comments on or before April 9, 2002.
Cecelia Davis, Acquisition Policy Division, GSA (202) 219-0202.
Submit comments regarding this burden estimate or any other aspect of this collection of information, including suggestions for reducing this burden to: FAR Desk Officer, OMB, Room 10102, NEOB, Washington, DC 20503, and a copy to the General Services Administration, FAR Secretariat, 1800 F Street, NW., Room 4035, Washington, DC 20405.
The clauses at FAR 52.225-9, Buy American Act-Balance of Payments Program Construction Materials, and FAR 52.225-11, Buy American Act Balance of Payments Program-Construction Materials under Trade Agreements provide that offerors/contractors requesting to use foreign construction material, other than construction material eligible under a trade agreement, shall provide adequate information for Government evaluation of the request.
These regulations implement the Buy American Act for construction (41 U.S.C. 10a-10d).
Department of Defense (DOD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA).
Notice of request for an extension to an existing OMB clearance.
Under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35), the Federal Acquisition Regulation (FAR) Secretariat will be submitting to the Office of Management and Budget (OMB) a request to review and approve an extension of a currently approved information collection requirement concerning schedules for construction contracts. The clearance currently expires on April 30, 2002.
Public comments are particularly invited on: Whether this collection of information is necessary for the proper performance of functions of the FAR, and whether it will have practical utility; whether our estimate of the public burden of this collection of information is accurate, and based on valid assumptions and methodology; ways to enhance the quality, utility, and clarity of the information to be collected; and ways in which we can minimize the burden of the collection of information on those who are to respond, through the use of appropriate technological collection techniques or other forms of information technology.
Submit comments on or before April 9, 2002.
Submit comments regarding this burden estimate or any other aspect of this collection of information, including suggestions for reducing this burden to: FAR Desk Officer, OMB, Room 10102, NEOB, Washington, DC 20503, and a copy to the General Services Administration, FAR Secretariat (MVP), 1800 F Street, NW., Room 4035, Washington, DC 20405. Please cite OMB Control No. 9000-0058, Schedules for Construction Contracts, in all correspondence.
Cecelia Davis, Acquisition Policy Division, GSA (202) 219-0202.
Federal construction contractors may be required to submit schedules, in the form of a progress chart, showing the order in which the contractor proposes to perform the work. Actual progress shall be entered on the chart as directed by the contracting officer. This information is used to monitor progress under a Federal construction contract when other management approaches for ensuring adequate progress are not used.
Department of Defense (DOD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA).
Notice of request for public comments regarding an extension to an existing OMB clearance (9000-0038).
Under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35), the Federal Acquisition Regulation (FAR) Secretariat has submitted to the Office of Management and Budget (OMB) a request to review and approve an extension of a currently approved information collection requirement concerning mistakes in bids. A request for public comments was published at 66 FR 58474, November 21, 2001. No comments were received.
Public comments are particularly invited on: Whether this collection of information is necessary for the proper performance of functions of the FAR, and whether it will have practical utility; whether our estimate of the public burden of this collection of information is accurate, and based on valid assumptions and methodology; ways to enhance the quality, utility, and clarity of the information to be collected; and ways in which we can minimize the burden of the collection of information on those who are to respond, through the use of appropriate technological collection techniques or other forms of information technology.
Submit comments on or before March 11, 2002.
Submit comments regarding this burden estimate or any other aspect of this collection of information, including suggestions for reducing this burden to: FAR Desk Officer, OMB, Room 10102, NEOB, Washington, DC 20503, and a copy to the General Services Administration, FAR Secretariat (MVP), 1800 F Streets, NW., Room 4035, Washington, DC 20405.
Ralph DeStefano, Acquisition Policy Division, GSA (202) 501-1758.
When a mistake in bid is discovered by the contracting officer (CO) after bid opening but before award, the CO obtains verification of the bid intended. This verification is needed to establish the bidder's correct bid. If the bidder requests permission to correct the bid, the bidder must submit clear and convincing evidence that a mistake was made. If the bidder requests permission to correct the bid and submits evidence that a mistake was made, the evidence is analyzed by the CO to determine whether or not the bidder should be allowed to correct the bid. The data (evidence) submitted by the bidder is attached to the bidder's bid and placed in the contract file along with the CO's determination.
The verification of the correct bid is attached to the original bid and a copy of the verification is attached to the duplicate bid and placed in the contract file.
Department of the Army, DOD.
Notice.
In compliance with section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995, the Department of the Army announces a proposed public information collection and seeks public comment on the provisions thereof. Comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden of the proposed information collection; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the information collection on respondents, including through the use of automated collection techniques or other forms of information technology.
Consideration will be given to all comments received by April 9, 2002.
Written comments and recommendations on the proposed information collection should be sent to the U.S. Total Army Personnel Command, Officer Personnel Management Directorate, 200 Stovall Street, Alexandria, Virginia 22332-0314. ATTN: TAPC-OPD-C (Annette Bush). Consideration will be given to all comments received within 60 days of the date of publication of this notice.
To request more information on this proposed information or to obtain a copy of the proposal and associated collection instruments, please write to the above address, to call Department of the Army Reports clearance officer at (703) 692-1451.
Region commanders are responsible for operating and administering the JROTC training conducted within their areas.
Completed DA 3126 forms are submitted to the regional ROTC commanders. Data provided on the application is used to determined which schools are selected and addresses such factors as: (1) Receipt of signed applications and agreements; (2) enrollment potential; (3) capacity of the institution to conduct the program; (4) accreditation status; (5) ability to comply with statutory and contractual requirements; and (6) fair and equitable distributions of units throughout the nation.
Department of the Army, DoD.
Notice.
In accordance with 37 CFR 404.6, announcement is made of the availability for licensing of U.S. Patent Application No. 09/812,271 entitled “Electronic Drink-O-Meter to monitor Fluid Intake and Provide Consumption Guidance” filed March 19, 2001. The United States Government as
Commander, U.S. Army Medical Research and Materiel Command, ATTN: Command Judge Advocate, MCMR-JA, 504 Scott Street, Fort Detrick, Frederick, Maryland 21702-5012.
For patent issues, Ms. Elizabeth Arwine, Patent Attorney, (301) 619-7808. For licensing issues, Dr. Paul Mele, Office of Research & Technology Assessment, (301) 619-6664. Both at telefax (301) 619-5034.
An apparatus for monitoring fluid intake includes a bladder having a known volume and capable of holding fluid, the bladder having a fill opening and an extraction opening; a first section of tubing connected to the extraction opening; a fluid monitoring unit having a downstream end and an upstream end, the first section of tubing being connected to the fluid monitoring unit at the downstream end; a check valve disposed at the upstream end of the fluid monitoring unit; a second section of tubing connected to the check valve; and a bite valve connected to an end of the second section of tubing.
Department of the Army, DoD.
Notice.
In accordance with 37 CFR 404.6, announcement is made of the availability for licensing of U.S. Patent Application No. 60/278,615 entitled “Method for Self-Detection of Pupillary Response” filed March 26, 2001. The United States Government as represented by the Secretary of the Amy has rights in this invention.
Commander, U.S. Army Medical Research and Materiel Command, ATTN: Command Judge Advocate, MCMR-JA, 504 Scott Street, Fort Detrick, Frederick, Maryland 21702-5012.
For patent issues, Ms. Elizabeth Arwine, Patent Attorney, (301) 619-7808. For licensing issues, Dr. Paul Mele, Office of Research & Technology Assessment, (301) 619-6664. Both at telefax (301) 619-5034.
A method for self-detection of exposure to organophosphates includes (a) providing a device for monitoring pupillary response; (b) switching the device on and placing the eyeglass cup over the eye to be tested; (c) blocking light from entering the other eye; and (d) observing whether or not the pupil in the eye to be tested dilates. The device for monitoring papillary response includes a housing; an eyeglass cup attached to the housing, the eyeglass cup including an insert tower and a glass aperture disposed on an end of the insert tower; a power supply disposed in the housing; a light source connected to the power supply; and a switch for controlling power to the light source.
Army Corps of Engineers, DoD.
Notice of intent.
The Bogue Banks study area is located on the coast of North Carolina, about 80 miles of north Wilmington, North Carolina. This area is at risk from hurricanes and winter storms, which regularly erode the shoreline, causing damages to structures and environmental resources. The proposed shoreline protection study will evaluate several alternatives for implementing solutions to shore protection and related issues on Bogue Banks. These alternatives may include restoration of berms and dunes, with stabilizing vegetation on dunes, removal and/or relocation of structures, and the no-action alternative. The potential project area may be up to 24 miles in length (
Questions about the proposed action and DEIS can be answered by: Mr. Hugh Heine; Environmental Resources Section; U.S. Army Engineer District, Wilmington; Post Office Box 1890; Wilmington, North Carolina 28402-1890; telephone: (910) 251-4070.
The proposed shore protection project may consist of a berm or combination of berm and dune to be constructed along various reaches of the oceanfront within the study area. Additionally, the removal and/or relocation of structures from the shoreline will be evaluated. The selection of final project features and reaches for inclusion in the recommended plan will be based on a maximization of net benefits. During the feasibility study, potential offshore sources of borrow material and quantities of sand required for project construction will be determined. Maintenance of project reaches are expected to require renourishment every 3 to 5 years; however, renourishment of portions of the project area could be required more frequently.
Alternative methods of beach nourishment and dredging of offshore borrow areas will also be evaluated including the use of an ocean-certified hydraulic pipeline or hopper dredge.
All private parties and Federal, State, and local agencies having an interest in the study are hereby notified of the study and are invited to comment at this time. Also, a scoping letter requesting input to the study was sent to all known interested parties on December 29, 1999.
Based on comments received to date, a scoping meeting will not be needed. All comments received as a result of this notice of intent and the scoping letter will be considered in the preparation of the DEIS.
Significant environmental resources to be addressed in project development include: (1) Benthic resources, (2) sea turtles and marine mammals, and (3) cultural resources. Efforts will be made to enhance resource conditions and minimize impacts.
The lead agency for this project is the U.S. Army Corps of Engineers District, Wilmington. Cooperating agency status has not been assigned to, nor requested by, any other agency. The DEIS is being prepared in accordance with the requirements of the National Environmental Policy Act of 1969, as amended, and will address the relationship of the proposed action to all other applicable Federal and State Laws and Executive Orders. The DEIS is
Department of Education.
The Leader, Regulatory Information Management Group, Office of the Chief Information Officer invites comments on the submission for OMB review as required by the Paperwork Reduction Act of 1995.
Interested persons are invited to submit comments on or before March 11, 2002.
Written comments should be addressed to the Office of Information and Regulatory Affairs, Attention: Lauren Wittenberg, Desk Officer, Department of Education, Office of Management and Budget, 725 17th Street, NW., Room 10202, New Executive Office Building, Washington, DC 20503 or should be electronically mailed to the internet address
Section 3506 of the Paperwork Reduction Act of 1995 (44 U.S.C. chapter 35) requires that the Office of Management and Budget (OMB) provide interested Federal agencies and the public an early opportunity to comment on information collection requests. OMB may amend or waive the requirement for public consultation to the extent that public participation in the approval process would defeat the purpose of the information collection, violate State or Federal law, or substantially interfere with any agency's ability to perform its statutory obligations. The Leader, Regulatory Information Management Group, Office of the Chief Information Officer, publishes that notice containing proposed information collection requests prior to submission of these requests to OMB. Each proposed information collection, grouped by office, contains the following: (1) Type of review requested, 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 Sheila Carey at (202) 708-6287 or via her internet address
National Center for Education Statistics, Department of Education.
Notice of dates of submission of State revenue and expenditure reports for fiscal year 2001 and of revisions to those reports.
The Secretary of Education announces dates for the submission by State educational agencies (SEAs) of expenditure and revenue data and average daily attendance statistics on ED Form 2447 (the National Public Education Financial Survey) for fiscal year (FY) 2001. The Secretary sets these dates to ensure that data are available to serve as the basis for timely distribution of Federal funds. The U.S. Bureau of the Census is the data collection agent for the Department's National Center for Education Statistics (NCES). The data will be published by NCES and will be used by the Secretary in the calculation of allocations for FY 2003 appropriated funds.
The date on which submissions will first be accepted is March 15, 2002. The mandatory deadline for the final submission of all data, including any revisions to previously submitted data, is September 3, 2002.
SEAs may mail ED Form 2447 to: Bureau of the Census, ATTENTION: Governments Division, Washington, DC 20233-6800.
SEAs may submit data via the World Wide Web using the interactive form at
Alternatively, SEAs may hand deliver submissions by 4 p.m. (Eastern Time) to: Governments Division, Bureau of the Census, 8905 Presidential Parkway, Washington Plaza II, Room 508, Upper Marlboro, MD 20772.
If an SEA's submission is received by the Bureau of the Census after September 3, 2002, in order for the submission to be accepted the SEA must show one of the following as proof that the submission was mailed on or before the mandatory deadline date:
1. A legibly dated U.S. Postal Service postmark.
2. A legible mail receipt with the date of mailing stamped by the U.S. Postal Service.
3. A dated shipping label, invoice, or receipt from a commercial carrier.
4. Any other proof of mailing acceptable to the Secretary.
If the SEA mails ED Form 2447 through the U.S. Postal Service, the Secretary does not accept either of the following as proof of mailing:
1. A private metered postmark.
2. A mail receipt that is not dated by the U.S. Postal Service.
The U.S. Postal Service does not uniformly provide a dated postmark. Before relying on this method, an SEA should check with its local post office.
Mr. Lawrence R. MacDonald, Chief, Bureau of the Census, ATTENTION: Governments Division, Washington, DC 20233-6800. Telephone: (301) 457-1574. If you use a telecommunications device for the deaf (TDD), you may call the Federal Information Relay Service (FIRS) at 1-800-877-8339.
Individuals with disabilities may obtain this document in an alternative format (e.g., Braille, large print, audiotape, or computer diskette) on request to: Frank Johnson, National Center for Education Statistics, U.S. Department of Education, Washington, DC 20208-5651. Telephone: (202) 502-7362.
Under the authority of section 404(a) of the National Education Statistics Act of 1994 (20 U.S.C. 9003(a)), which authorizes NCES to gather data on the financing of education, NCES collects data annually from SEAs through ED Form 2447. The report from SEAs includes attendance, revenue, and expenditure data from which NCES determines the average state per pupil expenditure (SPPE) for elementary and secondary education, as defined in the Elementary and Secondary Education Act of 1965 (ESEA) (currently 20 U.S.C. 8801(12)).
In addition to using the SPPE data as useful information on the financing of elementary and secondary education, the Secretary uses these data directly in calculating allocations for certain formula grant programs, including Title I of the Elementary and Secondary Education Act of 1965 as amended by the No Child Left Behind Act (Title I), Impact Aid, and Indian Education. Other programs such as the Educational Technology State Grants (Title II, Part D), the Education for Homeless Children and Youth Program under Title VII of the Stewart B. McKinney Homeless Assistance Act, the Teacher Quality State Grants (Title II, Part A) Program, and the Safe and Drug-Free Schools and Communities Program make use of SPPE data indirectly because their formulas are based, in whole or in part, on State Title I allocations.
In January 2002, the Bureau of the Census, acting as the data collection agent for NCES, will mail to SEAs ED Form 2447 with instructions and request that SEAs submit data to the Bureau of the Census on March 15, 2002, or as soon as possible thereafter. SEAs are urged to submit accurate and complete data on March 15, or as soon as possible thereafter, to facilitate timely processing. Submissions by SEAs to the Bureau of the Census will be checked for accuracy and returned to each SEA for verification. All data, including any revisions, must be submitted to the Bureau of the Census by an SEA not later than September 3, 2002.
Having accurate and consistent information, on time, is critical to an efficient and fair allocation process, as well as the NCES statistical process. To ensure timely distribution of Federal education funds based on the best, most accurate data available, NCES establishes, for allocation purposes, September 3, 2002 as the final date by which ED Form 2447 must be submitted. However, if an SEA submits revised data after the final deadline that results in a lower SPPE figure, its allocations may be adjusted downward or the Department may request the SEA to return funds. SEAs should be aware that all of these data are subject to audit and that, if any inaccuracies are discovered in the audit process, the Department may seek recovery of overpayments for the applicable programs. If an SEA submits revised data after September 3, 2002, the data may also be too late to be included in the final NCES published dataset.
You may view this document, as well as all other Department of Education documents published in the
To use PDF you must have Adobe Acrobat Reader, which is available free at this site. If you have questions about using PDF, call the U.S. Government Printing Office (GPO), toll free, at 1-888-293-6498; or in the Washington, DC area at (202) 512-1530.
The official version of this document is the document published in the
20 U.S.C. 9003(a).
U.S. Department of Energy (DOE).
Notice of program interest.
The U.S. Department of Energy (DOE) announces an unrestricted program which will provide identification of isotopes needed by the research community to explore and develop new and innovative uses for isotopes. These isotopes will be used for production in support of medical and scientific research. The Department's objective of this effort is to poll the research community in order to generate a list of research isotopes that DOE will consider for production for FY 2003 and beyond. A peer-review process that examines the merits of the isotope-based research as described in the Expressions of Interest in response to this Notice of Program Interest (NOPI) will be used to help determine which isotopes will be placed on the Nuclear Energy Protocol for Research Isotopes (NEPRI) list and therefore be eligible for production.
Opening date: February 18, 2002, and Closing date: March 29, 2002.
Complete details, instructions on how to apply, and opening and closing dates will be provided via a formal solicitation document which will be disseminated electronically as solicitation number DE-RI01-02NE00000 through the Department's Industry Interactive Procurement System (IIPS) home page located at
John Pantaleo, Jr., Program Manager, at (301) 903-2525, Phyllis Morgan, Contract Specialist at 202-287-1504, and Paul Gervas, Attorney and Advisor at 202-586-6918.
The Department will support its unique infrastructure for isotope production. Buyers of NEPRI isotopes must cover cost of production. Expressions of Interest will be subject to peer review by the Department's Isotope Review Advisory Panel.
Effective October 1, 1999, the IIPS system became the primary way for the Office of Headquarters Procurement Services to disseminate solicitations and receive responses in a paperless environment. All documents included in your Expression of Interest should be submitted in the Microsoft Word format. To get more information about IIPS and to register your organization, go to
Department of Energy.
Notice of Open Meeting.
This notice announces a meeting of the Basic Energy Sciences Advisory Committee (BESAC). Federal Advisory Committee Act (Pub. L. 92-463, 86 Stat. 770) requires that public notice of these meetings be announced in the
Monday, February 25, 2002, 8 a.m. to 5 p.m., and Tuesday, February 26, 2002, 8 a.m. to 12 p.m.
Gaithersburg Marriott Washingtonian Center, 9751 Washingtonian Boulevard, Gaithersburg, MD 20878.
Sharon Long; Office of Basic Energy Sciences; U.S. Department of Energy; 19901 Germantown Road; Germantown, MD 20874-1290; Telephone: (301) 903-5565.
Monday, February 25, 2002
Tuesday, February 26, 2002
Department of Energy.
Notice of postponement of public workshop.
On January 17, 2002, the United States delegation to the North American Energy Working Group's Electricity Regulatory Experts Group published a notice of a public workshop to be held at the Washington, DC headquarters of the Department of Energy, in Room 1E-245, on February 13, 2002 from 9 a.m. until 4 p.m., and a request for comments, 67 FR 2423. The workshop will be postponed until further notice because the draft discussion paper of the Electricity Regulatory Issues Group of Experts, which was to form the basis of the workshop discussions, is not yet ready for public dissemination. In addition, it is requested that no further comments be submitted pursuant to the January 17, 2002 notice.
Office of Fossil Energy, Department of Energy.
Notice of Filings.
The owners/operators of 30 baseload electric powerplants have submitted coal capability self-certifications pursuant to section 201 of the Powerplant and Industrial Fuel Use Act of 1978, as amended, in accordance with 10 CFR 501.60, 61.
Copies of self-certification filings are available for public inspection, upon request, in the Office of Coal & Power Import/Export, Fossil Energy, Room 4G-039, FE-27, Forrestal Building, 1000 Independence Avenue, SW., Washington, DC 20585.
Ellen Russell at (202) 586-9624
Title II of the Powerplant and Industrial Fuel Use Act of 1978 (FUA), as amended (42 U.S.C. 8301
Bonneville Power Administration (BPA), Department of Energy (DOE).
Notice of finding of no significant impact (FONSI) and floodplain statement of findings.
BPA is issuing this FONSI on its proposal to rebuild the first 17 miles of the Santiam-Chemawa transmission line from Santiam Substation to the line's connection (tap) to Portland General Electric's (PGE) Bethel Substation to improve transmission system reliability in the Salem area of northwestern Oregon. A Floodplain Statement of Findings is also included.
For copies of this FONSI and/or the Environmental Assessment (EA), please call BPA's toll-free document request line at 1-800-622-4520, and record your name, address, project name, and the document(s) you wish. The documents are also on the internet at
Tish Levesque—KEC-4, Bonneville Power Administration, PO. Box 3621, Portland, Oregon, 97208-3621; direct telephone number 503-230-3469; toll-free telephone number 1-800-282-3713; fax number 503-230-5699; e-mail
BPA's existing Santiam-Chemawa No. 1 230-kV transmission line is about 25 miles long and is located in Linn and Marion Counties, Oregon. BPA is proposing to rebuild the first 17 miles of the Santiam-Chemawa transmission line from Santiam Substation to the tap to PGE's Bethel Substation. BPA's Santiam-Chemawa No. 1 transmission line serves BPA customers that in turn serve communities in the Willamette Valley. This line provides voltage support and also backs up BPA's 500-kV transmission system in case one of BPA's 500-kV lines or substations goes out of service.
BPA would replace the existing single-circuit 230-kilovolt (kV) line with towers that could support two circuits (double-circuit) in the existing right-of-way. The existing line supplies both Bethel Substation and BPA's Chemawa Substation. The new lines would eliminate overloading of the existing line from Santiam Substation to the tap to Bethel Substation by having one new line supply Bethel Substation and the other new line supply Chemawa Substation. BPA has prepared an Environmental Assessment (DOE/EA-1366) evaluating the proposed project. Based on the analysis in the EA, BPA has determined that the Proposed Action is not a major Federal action significantly affecting the quality of the human environment, within the meaning of the National Environmental Policy Act (NEPA) of 1969. Therefore, the preparation of an Environmental Impact Statement (EIS) is not required
The existing BPA Santiam-Chemawa 230-kV transmission line is at risk of overloading during peak winter electrical power usage (maximum demand). During normal and extreme winter peak load conditions, outages on BPA's 500-kV or 230-kV transmission grid in the area could cause the Santiam Substation to Bethel Substation section of the Santiam-Chemawa line to overload. For example, an outage of BPA's Pearl-Marion No. 1 500-kV line during extreme cold winter peak load conditions could cause the line to overload. During normal winter peak load conditions, an outage of BPA's Santiam-Albany No. 1 230-kV line or an outage of BPA's Albany 230/115-kV transformer would also overload the line.
An overload could damage electrical equipment sensitive to power fluctuations. An overload could cause the line to sag too close to the ground, which could harm people or property under the line. In addition, an overload could cause switches on the Santiam-Chemawa line to automatically take the line out of service, which could create blackouts in the Salem area. Overloading the line could also cause permanent damage to the conductor and BPA would be required to remove the line from service. Removing the line from service could curtail electrical power in the area. BPA needs to improve system reliability by rebuilding the Santiam-Chemawa line to a double-circuit line.
Low, minor, short-term, or temporary impacts from construction of the Proposed Action would occur to the following resources: Fish and wildlife, soils, water quality, land use, socioeconomics, visual resources, and vegetation resources. Though noise would disturb wildlife close to the construction area, wildlife would most likely return after the disturbance is removed. Although unlikely, construction may create indirect or temporary increases in soil erosion to streams near the right-of-way, which could affect water quality and fish habitat. Mitigation measures would be used to prevent erosion. Potential impacts would diminish after disturbed areas are restored and erosion and runoff control measures take effect. Construction-related noise, dust, traffic disruption, and crop harvest disruption would also temporarily disturb human populations. Spending in the local community and an increase in employment would be short-term but beneficial. Minor visual impacts may occur from construction activities in certain locations along the right-of-way. The new towers would be taller than the existing towers. Noxious weeds could grow in the right-of-way as the ground surface and vegetation are disturbed during construction. Radio and television interference from the new line could occur temporarily, but BPA would promptly correct all interference.
A biological assessment (BA) was prepared to evaluate the potential effect of the project on the bald eagle, northern spotted owl, Fender's blue butterfly, the Upper Willamette River chinook salmon Evolutionarily Significant Unit (ESU), the Upper Willamette River steelhead ESU, Oregon chub, Nelson's checker-mallow, Bradshaw's lomatium, Willamette daisy, golden Indian paintbrush, water Howellia, and Kincaid's lupine. Based on a review of the latest Federal threatened and endangered species lists, review of habitat requirements, and use of project mitigation measures proposed in the BA and the EA, it is BPA's opinion that the proposed project “may affect but is not likely to adversely affect” all the listed species that may be present in the project area except the northern spotted owl. It is BPA's opinion that the proposed project would have “no effect” on the northern spotted owl. The National Marine Fisheries Service and U.S. Fish and Wildlife Service concurred with these findings.
Background research indicated that no prehistoric or historic-period archaeological sites have been recorded within a one-mile radius of any tower locations or right-of-way along the 17-mile portion of line to be rebuilt. As part of the field study, 90 discrete areas were surveyed and 33 areas were investigated using shovel test probes. No archaeological materials were observed on the ground surface at any of the tower locations or within the right-of-way between the towers. One prehistoric artifact was recovered from a total of 34 shovel test probes excavated along the 17-mile portion of right-of-way. Artifact isolates are not recognized as sites by the Oregon State Historic Preservation Officer (SHPO) and the single prehistoric artifact does not represent a cultural resource potentially eligible for listing in the National Register of Historic Places. It is BPA's opinion that the proposed project would have no effect on cultural resources. The Oregon SHPO concurred with these findings. During review of the Preliminary EA, the Confederated Tribes of Grand Ronde discussed with BPA the presence of areas of cultural sensitivity in the project vicinity. To ensure protection of the culturally sensitive areas, a member of the Tribe would be present during construction activities at those sites.
No impacts are expected to wetlands and floodplains, or public health and safety.
BPA also studied the No Action Alternative. For the No Action Alternative, BPA would not rebuild the Santiam-Chemawa transmission line. As a result, normal and extreme cold winter load conditions could cause thermal overloading of existing facilities.
The Proposed Action would not violate Federal, State, or local law or requirements imposed for protection of the environment. All applicable permits would be obtained.
BPA will allow 15 days of public review after publication of this statement of findings before implementing the Proposed Action.
Take notice that on February 1, 2002, the Commission issued an order in the above-indicated dockets initiating a proceeding in Docket No. EL02-53-000 under section 206 of the Federal Power Act.
The refund effective date in Docket No. EL02-53-000 will be 60 days after publication of this notice in the
Revision of FR Notice published on 09/28/2001: CEQ Review Period Ending on 12/14/2001 has been Extended to 03/29/2002.
Availability of EPA comments prepared pursuant to the Environmental Review Process (ERP), under section 309 of the Clean Air Act and section 102(2)(c) of the National Environmental Policy Act as amended. Requests for copies of EPA comments can be directed to the Office of FEDERAL ACTIVITIES AT (202) 564-7167.
An explanation of the ratings assigned to draft environmental impact statements (EISs) was published in
Lemhi Pass National Historic Landmark Management Plan, Implementation, Beaverhead-Deerlodge National Forest, Beaverhead County, MT and Salmon-Challis National Forest, Lemhi County, ID.
Spruce Moose and Moose Lake Right-of-Way Analysis Area, Implementation, Timber Harvesting, Road Construction, Reforestation and Watershed Restoration, Clearwater National Forest, Lochsa Ranger District, Idaho County, ID.
Iron Honey Resource Area Project, Aquatic, Vegetative and Wildlife Habitat Improvement Activities, Implementation, Coeur d'Alene River Ranger District, Idaho Panhandle National Forests, Kootenai and Shoshone Counties, ID.
Falcon to Gonder 345kV Transmission Project, Construction, Resource Management Plan Amendments, Right-of-Way Grant, Lander, Elko, Eureka and White Pine Counties, NV.
County Highway J/WIS 164 (I-94 to County E) Corridor Improvements Project, Funding, Pewaukee, Villages of Pewaukee and Sussex, Towns of Lisbon, Richfield and Polk, Waukesha and Washington Counties, WI.
U.S. Mission to the United Nations (USUN), Demolition of Current USUN and the Construction of a New Facility on the Same Site, Located at 799 United Nations Plaza, New York, NY.
Goat Canyon Enhancement Project, Sediment Basins, Staging Area and Visual Screening Berm Establishment, Tijuana River National Estuarine Research Reserve (TRNERR), Imperial Beach, City and County of San Diego, CA.
Los Angeles Eastside Corridor Transit Improvements, Light Rail Transit (LRT) Selected Build Alternative Options A and B, Los Angeles Central Business District to just east of Atlantic Boulevard, Funding, NPDES and US Army COE Section 404 Permits, Los Angeles County, CA.
MO-60 Transportation Improvements, East of Willow Springs to West of Van Buren, Funding, Forest Land Acquisition and US Army COE 404 Permit Issuance, (Job No. J9P0455) Howell, Shannon and Carter Counties, MO.
Environmental Protection Agency (EPA).
Notice of meeting.
The next meeting of the Good Neighbor Environmental Board, a federal advisory committee that reports to the President and Congress on environmental and infrastructure projects along the U.S. border with Mexico, will take place in Calexico, California on February 20-21, 2002. It is open to the public.
On February 20, the meeting will begin at 8:30 a.m. and end at 5:30 p.m. On February 21, the meeting will begin at 8 a.m. and end at 12 noon. Invited speakers will address local environmental concerns, especially water and energy issues, on the first day and a public comment session will be held. The following day, February 21, the Board will conduct a routine half-day business meeting.
The meeting will take place in the campus library of the San Diego State University Imperial Valley Campus in Calexico. The address is 720 Heber Avenue in Calexico.
Elaine M. Koerner, Designated Federal Officer for the Good Neighbor Environmental Board, Office of Cooperative Environmental Management, Office of the Administrator, USEPA, MC1601A, 1200 Pennsylvania Ave. NW, Washington, DC 20004, (202) 564-1484,
Individuals requiring special accommodation at this meeting, including wheelchair access to the meeting room, should contact the Designated Federal Officer at least five business days prior to the meeting so that appropriate arrangements can be made.
Members of the public desiring additional information about the meeting, must contact Mr. Robert Flaak, Designated Federal Officer, Clean Air Scientific Advisory Committee, EPA Science Advisory Board (1400A), Suite 6450, U.S. EPA, 1200 Pennsylvania Avenue, NW, Washington, DC 20460; telephone/voice mail at (202) 564-4546; fax at (202) 501-0582; or via e-mail at
Members of the public desiring additional information about the meeting location or the call-in number, must contact Ms. Rhonda Fortson, Management Assistant, Clean Air Scientific Advisory Committee, EPA Science Advisory Board (1400A), Suite 6450, U.S. EPA, 1200 Pennsylvania Avenue, NW, Washington, DC 20460; telephone/voice mail at (202) 564-4563; fax at (202) 501-0582; or via e-mail at
It is the policy of the Science Advisory Board to accept written public comments of any length, and to accommodate oral public comments whenever possible. The Science Advisory Board expects that public statements presented at its meetings will not be repetitive of previously submitted oral or written statements.
Environmental Protection Agency (EPA).
Notice.
This notice announces the initial filing of pesticide petitions proposing the establishment of regulations for residues of a certain pesticide chemical in or on various food commodities.
Comments, identified by docket control number PF-1065, must be received on or before March 11, 2002.
Comments may be submitted by mail, electronically, or in person. Please follow the detailed instructions for each method as provided in Unit I.C. of the
By mail: Sidney Jackson, Registration Division (7505C), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460; telephone number: (703) 305-7610; e-mail address: jackson.sidney@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
1.
2.
You may submit comments through the mail, in person, or electronically. To ensure proper receipt by EPA, it is imperative that you identify docket control number PF-1065 in the subject line on the first page of your response.
1.
2.
3.
Do not submit any information electronically that you consider to be CBI. You may claim information that you submit to EPA in response to this document as CBI by marking any part or all of that information as CBI. Information so marked will not be disclosed except in accordance with procedures set forth in 40 CFR part 2. In addition to one complete version of the comment that includes any information claimed as CBI, a copy of the comment that does not contain the information claimed as CBI must be submitted for inclusion in the public version of the official record. Information not marked confidential will be included in the public version of the official record without prior notice. If you have any questions about CBI or the procedures for claiming CBI, please consult the person identified under
You may find the following suggestions helpful for preparing your comments:
1. Explain your views as clearly as possible.
2. Describe any assumptions that you used.
3. Provide copies of any technical information and/or data you used that support your views.
4. If you estimate potential burden or costs, explain how you arrived at the estimate that you provide.
5. Provide specific examples to illustrate your concerns.
6. Make sure to submit your comments by the deadline in this notice.
7. To ensure proper receipt by EPA, be sure to identify the docket control number assigned to this action in the subject line on the first page of your response. You may also provide the name, date, and
EPA has received pesticide petitions as follows proposing the establishment and/or amendment of regulations for residues of a certain pesticide chemical in or on various food commodities under section 408 of the Federal Food, Drug, and Cosmetic Act (FFDCA), 21 U.S.C. 346a. EPA has determined that the petitions contain data or information regarding the elements set forth in section 408(d)(2); however, EPA has not fully evaluated the sufficiency of the submitted data at this time or whether the data support granting of the petitions. Additional data may be needed before EPA rules on the petitions.
Environmental protection, Agricultural commodities, Feed additives, Food additives, Pesticides and pests, Reporting and recordkeeping requirements.
The petitioner's summaries of the pesticide petitions are printed below as required by section 408(d)(3) of the FFDCA. The summaries of the petitions were prepared by the BASF Corporation, the registrant, and represents the view of BASF Corporation. EPA is publishing the petition summaries verbatim without editing them in any way. The petition summaries announces the availability of a description of the analytical methods available to EPA for the detection and measurement of the pesticide chemical
EPA has received pesticide petitions (0E6068 and 1E6226) from the Interregional Research Project Number 4 (IR-4), 681 U.S. Highway #1 South, North Brunswick, NJ 08902-3390 proposing, pursuant to section 408(d) of the FFDCA, 21 U.S.C. 346a(d), to amend 40 CFR 180.494 by establishing tolerances for residues of pyridaben, (2-tert-butyl-5-(4-tert-butylbenzylthio)-4-chloropyridazin-3(2H)-1) as specified in 40 CFR 180.494 in or on the raw agricultural commodities:
1. PP 0E6068 proposes the establishment of a tolerance in or on strawberry at 2.5 parts per million (ppm).
2. PP 1E6226 proposes the establishment of a tolerance in or on hops at 10 ppm.
EPA has determined that the petitions contain data or information regarding the elements set forth in section 408(d)(2) of the FFDCA; however, EPA has not fully evaluated the sufficiency of the submitted data at this time or whether the data support granting of the petitions. Additional data may be needed before EPA rules on the petitions.
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Three hop residue trials were conducted, one in each of three states. Residues of pyridaben were measured by GC/ECD. The MOD had a LOD of 0.05 ppm. Residues ranged from 4.35 to 8.49 ppm.
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In conducting a Tier 2 chronic dietary risk assessment, EPA has made somewhat conservative assumptions in that 100% of crops treated with anticipated residues will contain pyridaben residues. The chronic dietary exposure evaluation model (DEEM) analysis indicates that the most highly exposed population subgroup is non-nursing infants which occupy up to 64% of the chronic population adjusted dose (PAD).
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EPA does not have, at this time, available data to determine whether pyridaben has a common mechanism of toxicity with other substances or how to include this pesticide in a cumulative risk assessment. Unlike other pesticides for which EPA has followed a cumulative risk approach based on a common mechanism of toxicity, pyridaben does not appear to produce a toxic metabolite produced by other substances. For the purposes of this tolerance action, therefore, BASF Corporation has not assumed that pyridaben has a common mechanism of toxicity with other substances.
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FFDCA section 408 provides that EPA shall apply an additional ten-fold margin of safety for infants and children in the case of threshold effects to account for prenatal and postnatal toxicity and the completeness of the data base unless EPA determines that a different margin of safety will be safe for infants and children. Margins of safety are incorporated into EPA risk assessments either directly through use of a margin of exposure (MOE) analysis or through using uncertainty (safety) factors in calculating a dose level that poses no appreciable risk to humans. EPA believes that reliable data support using the standard MOE and uncertainty factor (usually 100 for combined interspecies and intraspecies variability) and not the additional ten-fold margin of exposure/uncertainty factor MOE/UF when EPA has a complete data base under existing guidelines and when the severity of the effect in infants or children or the potency or unusual toxic properties of a compound do not raise concerns regarding the adequacy of the standard margin of exposure/safety factor MOE/(SF).
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Taking into account the completeness and reliability of the toxicity data and this conservative exposure assessment, BASF Corporation concludes that there is a reasonable certainty that no harm will result to infants and children from chronic aggregate exposure to pyridaben residues.
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There are no CODEX, Canadian, or Mexican maximum residue levels established for pyridaben on hops or strawberry.
Environmental Protection Agency (EPA).
Notice.
This notice announces the initial filing of pesticide petitions proposing the establishment of regulations for residues of certain pesticide chemicals in or on various food commodities.
Comments, identified by docket control number PF-1067, must be received on or before March 11, 2002.
Comments may be submitted by mail, electronically, or in person. Please follow the detailed instructions for each method as provided in Unit I.C. of the
By mail: Shaja R. Brothers, Registration Division (7505C), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460; telephone number: (703) 308-3194; e-mail address: brothers.shaja@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
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You may submit comments through the mail, in person, or electronically. To ensure proper receipt by EPA, it is imperative that you identify docket control number PF-1067 in the subject line on the first page of your response.
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Do not submit any information electronically that you consider to be CBI. You may claim information that you submit to EPA in response to this document as CBI by marking any part or all of that information as CBI. Information so marked will not be disclosed except in accordance with procedures set forth in 40 CFR part 2. In addition to one complete version of the comment that includes any information claimed as CBI, a copy of the comment that does not contain the information claimed as CBI must be submitted for inclusion in the public version of the official record. Information not marked confidential will be included in the public version of the official record without prior notice. If you have any questions about CBI or the procedures for claiming CBI, please consult the person identified under
You may find the following suggestions helpful for preparing your comments:
1. Explain your views as clearly as possible.
2. Describe any assumptions that you used.
3. Provide copies of any technical information and/or data you used that support your views.
4. If you estimate potential burden or costs, explain how you arrived at the estimate that you provide.
5. Provide specific examples to illustrate your concerns.
6. Make sure to submit your comments by the deadline in this notice.
7. To ensure proper receipt by EPA, be sure to identify the docket control number assigned to this action in the subject line on the first page of your response. You may also provide the name, date, and
EPA has received a pesticide petition as follows proposing the establishment and/or amendment of regulations for residues of a certain pesticide chemical in or on various food commodities under section 408 of the Federal Food, Drug, and Cosmetic Act (FFDCA), 21 U.S.C. 346a. EPA has determined that this petition contains data or information regarding the elements set forth in section 408(d)(2); however, EPA has not fully evaluated the sufficiency of the submitted data at this time or whether the data support granting of the petition. Additional data may be needed before EPA rules on the petition.
Environmental protection, Agricultural commodities, Feed additives, Food additives, Pesticides and pests, Reporting and recordkeeping requirements.
The petitioner summaries of the pesticide petitions are printed below as required by section 408(d)(3) of the FFDCA. The summaries of the petitions
EPA has received pesticide petitions (1E6341, 1E6339, and 1E6343), from the Interregional Research Project Number 4 (IR-4), 681 U.S. Highway #1 South, North Brunswick, NJ 08902-3390 proposing, pursuant to section 408(d) of the Federal Food, Drug, and Cosmetic Act (FFDCA), 21 U.S.C. 346a(d), to amend 40 CFR part 180.553 by establishing tolerances for residues of fenhexamid, (N-2,3-dichloro-4-hydroxyphenyl)-1-methylcyclohexanecarboxamide) in or on the following raw agricultural commodities: Caneberry at 20.0 parts per million (ppm), the bushberry subgroup, juneberry, loganberry and Salal at 5.0 ppm, and pistachio at 0.02 ppm. EPA has determined that the petitions contain data, or information regarding the elements set forth in section 408(d)(2) of the FFDCA; however, EPA has not fully evaluated the sufficiency of the submitted data at this time, or whether the data support granting of the petitions. Additional data may be needed, before EPA rules on the petitions. This notice includes a summary of the petition prepared by Tomen Agro, Inc., 100 First Street, Suite 1700, San Francisco, CA 94105.
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ii. In rats, fenhexamid was administered by gavage at doses of 0 or 1,000 mg/kg for gestation days 6-15. No maternal toxicity, embryotoxicity, fetotoxicity, or teratogenic effects were observed at the limit dose of 1,000 mg/kg/day. Therefore, the NOAEL for maternal and developmental toxicity was 1,000 mg/kg/day.
iii. In rabbits, fenhexamid was administered by gavage at doses of 0, 100, 300, and 1,000 mg/kg for gestation days 6-18. Body weight gain, and feed consumption of the dams were reduced at the two top doses. One abortion occurred in each of the top two dose groups, and two total resorptions occurred in the top dose group. The placental weights were slightly decreased at 300 mg/kg/day and above. In the 1,000 mg/kg/day group, slightly decreased fetal weights and a slightly retarded skeletal ossification were observed. All other parameters investigated in the study were unaffected. Therefore, the NOAELs for maternal and developmental toxicity were 100 mg/kg/day in this study.
Based on the 2-generation reproduction study in rats, fenhexamid is not considered a reproductive toxicant and shows no evidence of endocrine effects. The data from the developmental toxicity studies on fenhexamid show no evidence of a potential for developmental effects (malformations or variations) at doses that are not maternally toxic. The NOAEL for both maternal and developmental toxicity in rats was 1,000 mg/kg/day, and for rabbits the NOAEL for both maternal and developmental toxicity was 100 mg/kg/day.
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ii. Fenhexamid was administered in the diet to mice for approximately 14 weeks at doses of 0, 100, 1,000, and 10,000 ppm. The NOAEL was 1,000 ppm (266.6 mg/kg/day in males and 453.9 mg/kg/day in females). Increased feed and water consumption and kidney and liver effects were observed at 10,000 ppm.
iii. Fenhexamid was administered in the diet to beagle dogs for 13 weeks at doses of 0, 1,000, 7,000, and 50,000 ppm. The NOAEL was 1,000 ppm (33.9 mg/kg/day in males and 37.0 mg/kg/day in females). Increased Heinz bodies were observed at 7,000 ppm.
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ii. A combined chronic/carcinogenicity study was performed in Wistar rats. Fifty animals/sex/dose were administered doses of 0, 500, 5,000, or 20,000 ppm for 24 months in the feed. A further 10 animals/sex/group received the same doses and were sacrificed after 52 weeks. The doses administered relative to body weight were 0, 28, 292, or 1,280 mg/kg/day for males and 0, 40, 415, or 2067 mg/kg/day for females. The NOAEL in the study was 500 ppm (28 mg/kg/day for males and 40 mg/kg/day for females) based on body weight decreases in females at 5,000 ppm and above, changes in biochemical liver parameters in the absence of morphological changes in both sexes at 5,000 ppm and above, and caecal mucosal hyperplasia evident at 5,000 ppm and above.
The NOAEL in the chronic dog study was 17.4 mg/kg/day based on body weight, hematology and clinical chemistry effects. The lowest NOAEL in the 2-year rat study was determined to be 28 mg/kg/day based on body weight, clinical chemistry parameters in the liver, and caecal mucosal hyperplasia.
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ii. Rats were administered radiolabeled fenhexamid (a single oral low dose of 1 mg/kg, a single oral high dose of 100 mg/kg, or 15 repeated low doses of 1 mg/kg/day). Radiolabeled fenhexamid was rapidly eliminated and tissue residues declined rapidly. After 48 hours the total radioactivity residue in the body excluding the GI tract, was
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Consideration of a common mechanism of toxicity is not appropriate at this time since it has a unique mode of action. Moreover, there is no significant toxicity observed for fenhexamid. Even at toxicology limit doses, only minimal toxicity is observed for fenhexamid. Therefore, only the potential risks of fenhexamid are considered in the exposure assessment.
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In assessing the potential for additional sensitivity of infants and children to residues of fenhexamid, the available developmental toxicity and reproductive toxicity studies and the potential for endocrine modulation by fenhexamid were considered.
1. Developmental toxicity studies in two species indicate that fenhexamid does not impose additional risks to developing fetuses and is not a carcinogenic.
2. The 2-generation reproduction study in rats demonstrated that there were no adverse effects on reproductive performance, fertility, fecundity, pup survival, or pup development at non-maternally toxic levels. Maternal and developmental NOAELs and LOAELs were comparable, indicating no increase in susceptibility of developing organisms. No evidence of endocrine effects was noted in any study. It is therefore concluded that fenhexamid poses no additional risk for infants and children and no additional uncertainty factor is warranted.
International caneberry tolerances are in effect in the following countries: Belgium, Slovenia, and Switzerland (3.0 ppm), Netherlands and other EU countries (5.0 ppm). Bushberry (currant and gooseberry) tolerances are as follows: Belgium and Netherlands (3.0 ppm), Slovenia, and other EU countries (5.0 ppm). Austrian tolerances (5.0 ppm) have been drafted for berries, including small fruit. German tolerances (5 ppm)
Office of National Drug Control Policy.
Notice of meeting.
In accordance with the Drug-Free Communities Act, a meeting of the Advisory Commission on Drug Free Communities will be held on March 5 and 6, 2002 at the Office of National Drug Control Policy in the 5th Floor Conference Room, 750 17th Street NW., 7th Floor, Washington, DC. The meeting will commence at 9 a.m. on Tuesday, March 5, 2002 and adjourn for the evening at 5 p.m. The meeting will resume at 9 a.m. on Wednesday, March 6, 2002 and conclude at 3 p.m. The agenda will include: remarks by ONDCP Director, John P. Walters; Report on Reauthorization of the Drug-Free Communities Program; Administrator's Progress Report; Progress Report on National Evaluation; and National Youth Anti-Drug Media Campaign: Coalition Building initiative. There will be an opportunity for public comment from 11 a.m. until 11:30 on Wednesday, March 6, 2002.
Linda V. Priebe, (202) 395-6622.
Federal Emergency Management Agency (FEMA).
Notice of publicly observed meeting.
FEMA announces the following joint publicly observed meeting sponsored by the Nuclear Regulatory Commission (NRC) and FEMA.
(a) NRC/FEMA introductions and statement of purpose.
(b) Discussion of an Exercise Evaluation Methodology for evaluation of capability to notify the public during rapidly developing emergency scenarios.
(c) Change of the Alert and Notification System Reliability Performance Indicator to use availability vice reliability.
(d) Discussion of need to change FEMA-REP-10 surveillance reporting guidance in conformance with a change to the performance indicator.
(e) Future discussions/meetings.
Mr. O.C. Payne, Federal Emergency Management Agency, (telephone) 202-646-2864 or (e-mail)
We expect that representatives of the NRC, FEMA, Nuclear Energy Institute, nuclear power industry, States, and public interest groups will participate in the meeting. Our purpose is to collect information to develop performance criteria for evaluating fast-breaking nuclear power plant emergency events. This meeting will be open to the public with limited seating available on a first-come, first-served basis. Members of the general public who want to attend the meeting should contact Mr. O.C. Payne, (telephone) 202-646-2864 or (e-mail)
The Commission gives notice that it has requested that the parties to the below listed agreement provide additional information pursuant to section 6(d) of the Shipping Act of 1984, 46 U.S.C. app. §§ 1701
By Order of the Federal Maritime Commission.
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 February 22, 2002.
Board of Governors of the Federal Reserve System, February 4, 2002.
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 February 25, 2002.
Board of Governors of the Federal Reserve System, February 5, 2002.
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 March 5, 2002.
In connection with this application, Applicant also has applied to engage
Board of Governors of the Federal Reserve System, February 4, 2002.
The companies listed in this notice have given notice under section 4 of the Bank Holding Company Act (12 U.S.C. 1843) (BHC Act) and Regulation Y (12 CFR Part 225) to engage
Each notice is available for inspection at the Federal Reserve Bank indicated. The notice also will be available for inspection at the offices of the Board of Governors. Interested persons may express their views in writing on the question whether the proposal complies with the standards of section 4 of the BHC Act. 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 the applications must be received at the Reserve Bank indicated or the offices of the Board of Governors not later than February 22, 2002.
Board of Governors of the Federal Reserve System, February 4, 2002.
General Services Administration, National Capital Region; Department of Transportation.
Lease acquisition of a new or renovated headquarters building for the Department of Transportation in the Central Employment Area of Washington, DC.
The General Services Administration (GSA) announces the availability of the Record of Decision (ROD) for the proposed lease acquisition of a new or renovated headquarters building for the Department of Transportation (DOT) in the Central Employment Area (CEA) of Washington, DC.
On July 25, 2001, GSA published in the
DOT seeks to update its facilities, maximize efficiency, and reorganize and consolidate its operations. To this end, GSA conducted a competitive procurement of 1.35 million square feet of new or renovated space, under an operating lease for a term of fifteen years. Consolidation in a new or renovated headquarters will produce significant operating efficiencies in support of DOT's mission.
The Government conducted this procurement as a negotiated, best value source selection. The procurement process was developed with full integration of the NEPA process, incorporating NEPA compliance into the agency's decision-making framework. This resulted in full public participation and submission of final proposals that addressed potential environmental impacts. The Government's evaluation of proposals considered an Offeror's ability and willingness to address impacts and implement proposed mitigation measures identified through the NEPA process, including public comments received on the Final EIS.
The Final Environmental Impact Statement announced that Alternative 4, proposing construction of a new DOT headquarters facility at the Southeast Federal Center, was the preferred action alternative for satisfying DOT's space needs. This proposal was judged by the selection panel for the competitive procurement, as being the highest technically rated and lowest priced, consistent with the criteria provided in the Solicitation for Offers (SFO). The ROD announces GSA's decision to proceed with implementation of the preferred action alternative.
The ROD and other information regarding this project are available on the Internet at
Mr. John Simeon, General Services Administration, and (202) 260-5786.
Centers for Medicare and Medicaid Services, HHS.
In compliance with the requirement of section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995, the Centers for Medicare and Medicaid Services (formerly the Health Care Financing Administration), Department of Health and Human Services, is publishing the following summary of proposed collections for public comment. Interested persons are invited to send comments regarding this burden estimate or any other aspect of this collection of information, including any of the following subjects: (1) The necessity and utility of the proposed information collection for the proper performance of the agency's functions; (2) the accuracy of the estimated burden; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) the use of automated collection techniques or other forms of information technology to minimize the information collection burden.
To obtain copies of the supporting statement and any related forms for the proposed paperwork collections referenced above, access CMS's Web site address at
Centers for Medicare and Medicaid Services, HHS.
In compliance with the requirement of section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995, the Centers for Medicare and Medicaid Services (formerly the Health Care Financing Administration), Department of Health and Human Services, is publishing the following summary of proposed collections for public comment. Interested persons are invited to send comments regarding this burden estimate or any other aspect of this collection of information, including any of the following subjects: (1) The necessity and utility of the proposed information collection for the proper performance of the agency's functions; (2) the accuracy of the estimated burden; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) the use of automated collection techniques or other forms of information technology to minimize the information collection burden.
To obtain copies of the supporting statement and any related forms for the proposed paperwork collections referenced above, access CMS's Web site address at
Centers for Medicare and Medicaid Services, HHS.
In compliance with the requirement of section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995, the Centers for Medicare and Medicaid Services (CMS) (formerly known as the Health Care Financing Administration (HCFA)), Department of Health and Human Services, is publishing the following summary of proposed collections for public comments. Interested persons are invited to send comments regarding this burden estimate or any other aspect of this collection of information, including any of the following subjects: (1) The necessity and utility of the proposed information collection for the proper performance of the agency's functions; (2) the accuracy of the estimated burden; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) the use of automated collection techniques or other forms of information technology to minimize the information collection burden.
To obtain copies of the supporting statement and any related forms for the proposed paperwork collections referenced above, access CMS's Web Site address at
Centers for Medicare and Medicaid Services, HHS.
In compliance with the requirement of section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995, the Centers for Medicare and Medicaid Services (CMS) (formerly known as the
To obtain copies of the supporting statement and any related forms for the proposed paperwork collections referenced above, access CMS's Web Site address at
In compliance with the requirement of section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995, the Centers for Medicare and Medicaid Services (CMS), Department of Health and Human Services, has submitted to the Office of Management and Budget (OMB) the following proposal for the collection of information. Interested persons are invited to send comments regarding the burden estimate or any other aspect of this collection of information, including any of the following subjects: (1) The necessity and utility of the proposed information collection for the proper performance of the agency's functions; (2) the accuracy of the estimated burden; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) the use of automated collection techniques or other forms of information technology to minimize the information collection burden.
To obtain copies of the supporting statement for the proposed paperwork collections referenced above, access CMS's Web site address at
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is announcing an opportunity for public comment on the proposed collection of certain information by the agency. Under the Paperwork Reduction Act of 1995 (the PRA), Federal agencies are required to publish notice in the
Submit written or electronic comments on the collection of information by April 9, 2002.
Submit electronic comments on the collection of information to: http://www.accessdata.fda.gov/scripts/oc/dockets/comments/commentdocket.cfm. Submit written comments on the collection of information to the Dockets Management Branch (HFA-305), Food and Drug Administration, 5630 Fishers Lane, rm. 1061, Rockville, MD 20852. All documents should be identified with the docket number found in brackets in the heading of this document.
JonnaLynn P. Capezzuto, Office of Information Resources Management (HFA-250), Food and Drug Administration, 5600 Fishers Lane, Rockville, MD 20857, 301-827-4659.
Under the PRA (44 U.S.C. 3501-3520), Federal agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. “Collection of information” is defined in 44 U.S.C. 3502(3) and 5 CFR 1320.3(c) and includes agency request or requirements that members of the public submit reports, keep records, or provide information to a third party. Section 3506(c)(2)(A) of the PRA (44 U.S.C. 3506(c)(2)(A)) requires Federal agencies to provide a 60-day notice in the
With respect to the following collection of information, FDA invites comments on: (1) Whether the proposed collection of information is necessary for the proper performance of FDA's functions, including whether the information will have practical utility; (2) the accuracy of FDA's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques when appropriate, and other forms of information technology.
Under section 351 of the Public Health Service Act (the PHS Act) (42 U.S.C. 262), manufacturers of biological products must submit a license application for FDA review and approval before marketing a biological product in interstate commerce. Licenses may be issued only upon showing that the establishment and the products for which a license is desired meets standards prescribed in regulations designed to ensure the continued safety, purity, and potency of such products. All such licenses are issued, suspended, and revoked as prescribed by regulations in part 601 (21 CFR part 601). Section 601.2(a) requires a manufacturer of a biological product to submit an application with accompanying information, including labeling information, to FDA for approval to market a product in interstate commerce. The container and package labeling requirements are provided under 21 CFR 610.60, 610.61, and 610.62. Section 601.12(a) provides the general requirements for submitting a change to an approved application. Section 601.12(b), (c), and (d) requires applicants to follow specific procedures in informing FDA of each change, established in an approved license application, in the product, production process, quality controls, equipment, facilities, or responsible personnel. The appropriate procedure depends on the potential for the change to have a substantial, moderate, minimal, or no adverse effect on the safety or effectiveness of the product. Section 601.12(e) requires applicants to submit a protocol, or change to a protocol, as a supplement requiring FDA approval before distributing the product. Section 601.12(f)(1), (f)(2), and (f)(3) requires applicants to follow specific procedures in reporting labeling changes to FDA. Section 601.12(f)(4) requires applicants to report to FDA advertising and promotional labeling and any changes. Section 601.45 requires applicants to submit to the agency for consideration, during the preapproval review period, copies of all promotional materials, including promotional labeling as well as advertisements. Section 601.27(a) requires that applications for new biological products contain data that are adequate to assess the safety and effectiveness of the biological product for the claimed indications in pediatric subpopulations, and to support dosing and administration information. Section 601.27(b) provides that an applicant may request a deferred submission of some or all assessments of safety and effectiveness required under § 601.27(a). Section 601.27(c) provides that an applicant may request a full or partial waiver of the requirements under § 601.27(a). Section 601.28 requires sponsors of licensed biological products to submit the information in section 601.28(a), (b), and (c) to the Center for Biologics Evaluation and Research (CBER) each year, within 60 days of the anniversary date of approval of the license. Section 601.28(a) requires sponsors to submit to FDA a brief summary stating whether labeling supplements for pediatric use have been submitted and whether new studies in the pediatric population to support appropriate labeling for the pediatric population have been initiated. Section 601.28(b) requires sponsors to submit to FDA an analysis of available safety and efficacy data in the pediatric population and changes proposed in the labeling based on this information. Section 601.28(c) requires sponsors to submit to FDA a statement on the current status of any post-marketing studies in the pediatric population performed by, on or behalf of, the applicant. Sections 601.33 through 601.35 clarify the information to be submitted in an application to FDA to evaluate the safety and effectiveness of in vivo radiopharmaceuticals. In addition to §§ 601.2 and 601.12, there are other regulations in parts 640, 660, and 680 (21 CFR parts 640, 660, and 680) that relate to information to be submitted in a license application or supplement for certain blood or allergenic products: §§ 640.6, 640.17, 640.21(c), 640.22(c), 640.25(c), 640.56(c), 640.64(c), 640.74(a) and (b)(2), 660.51(a)(4), and 680.1(b)(2)(iii). In the table 1 of this document, the burden associated with the information collection requirements in these regulations is included in the burden estimate for §§ 601.2 and 601.12. A regulation may be listed under more than one section of § 601.12 due to the type of category under which a change to an approved application may be submitted. In addition, the burden associated with the information collection requirements in § 601.27(a) and §§ 601.33 through 601.35 is included in the burden estimate for § 601.2 since these regulations deal with information to be provided in an application. Sections 600.15(b) (21 CFR 600.15(b))and 610.53(d) require the submission of a request for an exemption or modification regarding the temperature requirements during
In July 1997, FDA revised Form FDA 356h “Application to Market a New Drug, Biologic, or an Antibiotic Drug for Human Use” to harmonize application procedures between CBER and the Center for Drug Evaluation and Research (CDER). The application form serves primarily as a checklist for firms to gather and submit to the agency studies and data that have been completed. The checklist helps to ensure that the application is complete and contains all the necessary information, so that delays due to lack of information may be eliminated. The form provides key information to the agency for efficient handling and distribution to the appropriate staff for review. The estimated burden hours for submissions using FDA Form 356h to CDER are reported under OMB Control No. 0910-0001.
Form FDA 2567 “Transmittal of Labels” and Circulars( is used by manufacturers of licensed biological products to submit labeling (e.g., circulars, package labels, container labels, etc.) and labeling changes for FDA review and approval. The labeling information is submitted with the form for license applications, supplements, or as part of an annual report. Form FDA 2567 is also used for the transmission of advertisements and promotional labeling. Form FDA 2567 serves as an easy guide to assure that the manufacturer has provided the information required for expeditious handling of their labeling by CBER. For advertisements and promotional labeling, manufacturers of licensed biological products may submit to CBER either Form FDA 2567 or FDA 2253. Form FDA 2253 was previously used only by drug manufacturers regulated by CDER. In August of 1998, FDA revised and harmonized Form FDA 2253 so the form may be used to transmit specimens of promotional labeling and advertisements for biological products as well as for prescription drugs and antibiotics. The revised, harmonized form updates the information about the types of promotional materials and the codes that are used to clarify the type of advertisement or labeling submitted; clarifies the intended audience for the advertisements or promotional labeling (e.g., consumers, professionals, news services); and helps ensure that the submission is complete.
Under table 1 of this document, the number of respondents is based on the estimated annual number of manufacturers that submitted the required information to FDA in fiscal year (FY) 2000, or the number of submissions received in FY 2000. Based on information obtained from CBER's database system, there are an estimated 350 licensed biologics manufacturers. However, not all manufacturers will have any submissions in a given year and some may have multiple submissions. The total annual responses are based on the estimated number of submissions (e.g., license applications, labeling and other supplements, protocols, advertising and promotional labeling, notifications) received annually by FDA. Based on previous estimates, the rate of submissions is not expected to change significantly in the next few years. The hours per response are based on information provided by industry and past FDA experience with the various submissions or notifications. The hours per response include the time estimated to prepare the various submissions or notifications to FDA, and, as applicable, the time required to fill out the appropriate form and collate the documentation. Additional information regarding these estimates is provided below as necessary.
Under §§ 601.12(f)(4) and 601.45, manufacturers of biological products may use either Form FDA 2567 or FDA 2253 to submit advertising and promotional labeling. In FY 2000, CBER received 4,302 submissions of advertising and promotional labeling from 117 manufacturers. FDA estimates that approximately 36 percent of those submissions were received with Form FDA 2567 resulting in an estimated 1,549 submissions by 42 manufacturers. The burden hours for the remaining submissions received using Form FDA 2253 are reported under OMB Control No. 0910-0376.
Under §§ 600.15(b) and 610.53(d), FDA receives very few requests for an exemption or modification to the requirements, therefore, FDA has estimated one respondent per year in table 1 to account for the rare instance in which a request may be made.
Under § 601.25(b)(3), FDA estimates no burden for this regulation since all requested data and information had been submitted by 1974. Under § 601.26(f), FDA estimates no burden for this regulation since there are no products designated to require further study and none are predicted in the future. However, based on the possible reclassification of a product, the labeling for the product may need to be revised, or a manufacturer, on its own initiative, may deem it necessary for further study. As a result, any changes to product labeling would be reported under § 601.12.
Under § 601.6(a), the total annual responses is based on FDA estimates that establishments may notify an average of 20 selling agents and distributors of such suspension and provide FDA with the records of such notification. The number of respondents is based on the estimated annual number of suspensions by FDA of a biologics license.
There were also 1,585 amendments to an unapproved application or supplement and 21 resubmissions (total of 1,606 submissions) submitted in FY 2000 using Form FDA 356h.
FDA estimates the burden of this collection of information as follows:
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is announcing that a collection of information entitled “Assessment of Physician and Patient Attitudes Toward Direct-to-Consumer Promotion of Prescription Drugs” 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 the proposed collection of information listed below has been submitted to the Office of Management and Budget (OMB) for review and clearance under the Paperwork Reduction Act of 1995.
Submit written comments on the collection of information by March 11, 2002.
Submit written comments on the collection of information to the Office of Information and Regulatory Affairs, OMB, New Executive Office Bldg., 725 17th St. NW., rm. 10235, Washington, DC 20503, Attn: Stuart Shapiro, Desk Officer for FDA.
Karen L. Nelson, Office of Information Resources Management (HFA-250), Food and Drug Administration, 5600
In compliance with 44 U.S.C. 3507, FDA has submitted the following proposed collection of information to OMB for review and clearance.
Respondents are sponsors of marketing applications that contain clinical data from studies covered by the regulations. These sponsors represent pharmaceutical, biologic, and medical device firms. The applicant will incur reporting costs in order to comply with the final rule. Applicants will be required to submit, for example, the complete list of clinical investigators for each covered study, not employed by the applicant and/or sponsor of the covered study, and either certify to the absence of certain financial arrangements with clinical investigators or disclose the nature of those arrangements to FDA and the steps taken by the applicant or sponsor to minimize the potential for bias. The clinical investigator will have to supply information regarding financial interests or payments held by the sponsor of the covered study. FDA has said that it has no preference as to how this information is collected from investigators and that sponsors/applicants have the flexibility to collect the information in the most efficient and least burdensome manner that will be effective.
FDA estimated that the total reporting costs of sponsors would be less than $450,000 annually. Costs could also occur after a marketing application is submitted if FDA determines that the financial interests of an investigator raise significant questions about the integrity of the data.
FDA estimates the burden of this collection of information as follows:
In the
The comment states that member companies reported that in calendar year 2000, less than 1 percent of all investigators, subinvestigators and their spouses and dependent children reported any financial arrangement with the sponsor. According to the comment, large global companies almost never pay investigators with proprietary interests in the product or give compensation that is affected by study outcome.
FDA's Center for Drug Evaluation and Research (CDER) surveyed the rate of disclosure of financial information according to numbers of applications. CDER reviewed 129 total applications, including 119 new drug applications (NDAs) and 10 abbreviated new drug applications. Out of the original 129 applications, 33 applications or 25 percent of the total number of applications included the disclosure form (FDA 3455), meaning that at least one investigator had a disclosable interest. Out of those reporting, 12 applications included disclosable equity interests in the sponsor, 18 applications reported significant payments of other sorts (SPOOS) and 3 included information about clinical investigations who held proprietary interests in the product under study. FDA did not break down submission of financial information according to individual investigators, but it is, as the comment states, clearly a small minority.
FDA agrees with the comment that it would be very unlikely for a company to compensate investigators differentially, depending on study outcome or to include investigators who hold proprietary interests in the product under study, and we did not expect to encounter many such financial arrangements. Providing assurance that such financial interests do not exist, however, imposes almost no collection burden on companies because they can certify that investigators hold none of these types of financial interest without asking the investigators.
These financial interests represent an unusual occurrence, but other interests also deserve attention. FDA has found that it is not unusual for investigators to have received significant payment of other sorts and to hold equity interest in the sponsor exceeding $50,000. Collecting this information is clearly more difficult. For both of these cases, however, FDA has amended the final rule (21 CFR 54.2(b) and (f)) in order to help reduce the collection burden and has lifted the retroactive requirement on studies completed before February 2, 1999, on SPOOS and equity interests in publicly held companies, thereby relieving the sponsor from contracting the investigators retroactively. With regard to SPOOS, FDA has asked for information on payments made on or after February 2, 1999, and for equity interests in publicly held companies whose value exceeds $50,000 in value, FDA has asked only for those financial holdings relating to ongoing studies after February 2, 1999.
Another concern was the accuracy of FDA's estimate of the burden of the proposed collection of information, including the validity, methodology, and assumptions used.
Some companies report that it takes approximately 15 workweeks to collect, compile, and verify the information about financial relationships for a single phase 3 study involving 50 sites. According to the comment, these figures translate into an average low of approximately 3 and a high of 26 workweeks to collect, compile, and verify the information. Also, according to the comment, an additional, but a smaller amount of staff time is necessary to compile and verify information for phase 2 and phase 1 studies; the comment concluded that FDA's estimates of 1 to 4 hours to complete a response is unrealistic.
FDA held extensive discussions with the drug, device, and biotechnology
Companies, therefore, have to ask the investigators about SPOOS or develop new tracking systems for such payments. Because no organized tracking systems existed in many companies, large companies through the public comment process and during meetings asked FDA whether it would be acceptable for a company to use a questionnaire to collect information on SPOOS from an investigator. FDA said it had no preference as to how the information is collected and that sponsor/applicants may collect the information in the most efficient and least burdensome manner that is still effective. Although FDA did make a good faith estimate of the data collection burden based on extensive discussions with the affected communities, FDA will revise its burden estimate upward to reflect the fact that companies could not easily access some of the information, particularly relating to SPOOS payments. FDA noted that industry queries to investigators about SPOOS payments may be made in the initial letter that inquires about equity interests held by clinical investigators and that both could also be updated through the same inquiry.
In the comment, concerns were raised on the issue of ways to enhance the quality, utility, and clarity of the information to be collected. The comment has said some companies collect, compile, and report investigator financial interest information for all studies, whether or not they are covered by the rule. They have asked that we clarify the definition of covered study and ensure that reviewers apply a consistent definition of what studies are covered. They have asked that FDA exclude all large, multicenter studies in which no single investigator contributes more than 20 percent of the data. The comment also said that companies report difficulties locating investigators who have already left the study prior to completion and also during the 1-year period following completion of the study. The comment asked that FDA define what constitutes due diligence in attempting to locate those investigators. The comment also recommended that FDA clarify and limit the definition of investigator and subinvestigator because some companies are interpreting the definition very broadly.
In response to the concerns above, a covered clinical study means any study of drug, biologic, or device in humans submitted in a marketing application or reclassification petition that the applicant or FDA relies on to establish efficacy of a product or any study where a single investigator makes a significant contribution to the demonstration of safety. This, in general, does not include phase 1 tolerance studies or pharmacokinetic studies, most clinical pharmacology studies (unless they are critical to an efficacy determination), large open safety studies conducted at multiple sites, treatment protocols and parallel track protocols. FDA continues to strongly encourage companies to consult with FDA early on about which clinical studies constitute “covered clinical studies” for purposes of complying with these requirements. Regarding comments about ensuring that reviewers apply a consistent definition of covered study, FDA has provided clarification through the guidance process. In addition, FDA has extensively discussed these requirements with review staff in training sessions; FDA will also issue Manuals of Practices and Procedures (MaPPs) to CDER staff to help further ensure consistent interpretation of the financial disclosure requirements by FDA staff.
Large scale, multicenter efficacy studies with many investigators are considered covered clinical studies within the meaning of the final rule. (See 21 CFR 54.4(c)). Data from an investigator having only a small percentage (<20 percent) of the total subject population (in a study with large numbers of investigators and multiple sites) could still affect the overall study results. FDA has, therefore, declined to exclude all large, multicenter studies in which no single investigator contributes less than 20 percent of the data.
The comment also mentioned difficulty in locating clinical investigators who leave the study or clinical trial site prior to completion of the study or completion of the 1-year followup period and asked for clear parameters in defining the term due diligence to search out these investigators. With regard to the definition of due diligence, FDA has suggested through guidance that sponsors and applicants should use reasonable judgment in deciding how much effort should be expended to collect this information. This suggestion was made in an effort to provide flexibility to sponsors and applicants and encourage them to use their best judgment while complying with the requirements.
However, based on the comment, FDA is now providing more specific advice on due diligence in seeking information from investigators who have left the study prior to its completion, or 1 year following completion of the study period. FDA recommends that sponsors and applicants try to locate the investigator through at least two telephone calls and include written memoranda of telecons. In addition, they should followup in writing and send no fewer than two certified letters in an effort to locate lost investigators. For all clinical trials begun after February 2, 1999, which is the effective date of the regulation, information should be collected from clinical investigators prior to study start, which should prevent the difficulty in collecting the information retrospectively.
Regarding the comment requesting additional clarification on the definition of clinical investigator. FDA would like to reiterate once again the definition of clinical investigator and subinvestigator. The definition of clinical investigator in 21 CFR part 54 is intended to identify the individuals who should be considered investigators for purposes of reporting under the rule, generally, the people taking responsibility for the study at a given study site. (For purposes of this rule, the term investigator also includes the spouse and each dependent child of the investigator and subinvestigator). For drugs and biologics, clinical investigator means the individual(s) who actually conduct(s) and take(s) responsibility for an investigation, i.e., under whose immediate direction the drug or biologic is administered to a subject or who is directly involved in the evaluation of research subjects. Where an investigation is directed by more than one person at a site, there may be more than one investigator who must report. These definitions could, in some cases, leave uncertainty about whether a particular individual was an investigator for purposes of the rule. The agency has, therefore, recommended specific criteria that should be considered for determining
The comment raised concerns over ways to minimize the burden of the collection of information on the respondents, including through the use of automated collection techniques when appropriate, and other forms of information technology.
The comment stated that it is not so much the initial startup costs to develop tracking mechanisms but the ongoing costs of collecting, compiling, verifying and maintaining the information that are high. In the comment, a request was made that FDA limit the scope of people for whom sponsors are required to collect financial information. In addition, the comment recommended streamlining the data collection process by allowing sponsors to use e-mail to communicate with potential investigators; allowing investigators to fax completed forms to the sponsor, rather than requiring that sponsors retain forms with original signatures; and allowing sponsors to collect information at or near the start of each investigator's participation in the trial rather than prior to initiation of the study.
FDA has addressed in detail the definition of clinical investigator earlier in this response and believes it has provided appropriate clarification. The suggested ways of streamlining the data collection process are acceptable. It is permissible to communicate through e-mail or fax machines with investigators. E-mails should be printed and all hard copies of correspondence should be maintained in company files. Finally, as has been stated earlier, information must be collected prior to study start in order to alert the IND/investigational device exemption (IDE) sponsor of the study to any potentially problematic financial interest as early in the drug development process as possible in order to minimize the potential for study bias and to facilitate accurate collection of data that may be submitted many years later.
Periodically, the Health Resources and Services Administration (HRSA) publishes abstracts of information collection requests under review by the Office of Management and Budget, in compliance with the Paperwork Reduction Act of 1995 (44 U.S.C. chapter 35). To request a copy of the clearance requests submitted to OMB for review, call the HRSA Reports Clearance Office on (301) 443-1129.
The following request has been submitted to the Office of Management and Budget for review under the Paperwork Reduction Act of 1995:
The National Health Service Corps (NHSC) of the Bureau of Health Professions (BHPr), HRSA, is committed to improving the health of the Nation's underserved by uniting communities in need with caring health professionals and by supporting communities' efforts to build better systems of care.
The Application for NHSC Recruitment and Retention Assistance submitted by sites or clinicians requests information on the practice site, sponsoring agency, recruitment contact, staffing levels, service users, site's 5-year infant mortality or low birth rate averages, and next nearest site. Assistance in completing the application may be obtained through the appropriate State Primary Care Offices, State Primary Care Associations and HRSA field offices. The information on the application is used for determining eligibility of sites and to verify the need for NHSC providers. Sites must submit an application annually or when they need a provider.
Written comments and recommendations concerning the proposed information collection should be sent within 30 days of this notice to: John Morrall, Human Resources and Housing Branch, Office of Management and Budget, New Executive Office Building, Room 10235, Washington, DC 20503.
Periodically, the Health Resources and Services Administration (HRSA) publishes abstracts of information collection requests under review by the Office of Management and Budget, in compliance with the Paperwork Reduction Act of 1995 (44 U.S.C. chapter 35). To request a copy of the clearance requests submitted to OMB for review, call the HRSA Reports Clearance Office on (301)-443-1129.
The following request has been submitted to the Office of Management and Budget for review under the Paperwork Reduction Act of 1995:
The National Health Service Corps (NHSC) of the Bureau of Health Professions (BHPr), Health Resources and Services Administration (HRSA), is committed to improving the health of the Nation's underserved by uniting communities in need with caring health professionals and by supporting
The NHSC needs to collect data on its programs to ensure compliance with legislative mandates and to report to Congress and policymakers on program accomplishments. To meet these objectives, the NHSC requires a core set of information collected annually that is appropriate for monitoring and evaluating performance and reporting on annual trends. The following information will be collected from each site: services offered and delivery method; users by various characteristics; staffing and utilization; charges and collections; receivables, income, and expenses; and managed care.
The estimated burden is as follows:
Written comments and recommendations concerning the proposed information collection should be sent within 30 days of this notice to: John Morrall, Human Resources and Housing Branch, Office of Management and Budget, New Executive Office Building, Room 10235, Washington, DC 20503.
National Institutes of Health (NIH), HHS.
Notification of altered system of records.
In accordance with the requirements of the Privacy Act, the National Institutes of Health is publishing a notice of a proposal to alter the system of records 09-25-0165, “National Institutes of Health Office of Loan Repayment and Scholarship (OLRS) Records System, HHS/NIH/OD.” The main purposes of the major alteration include: (1) Addition of three new programs, (2) addition of the National Center on Minority Health and Health Disparities to “System Location,” (3) addition of grant numbers to “Categories of Records in the System,” and (4) two modified routine uses and one new routine use.
The NIH invites interested parties to submit comments on the proposed uses on or before March 11, 2002. The NIH will send a Report of the Altered System to the Congress and to the Office of Management and Budget (OMB). The alteration of this system of records will be effective 40 days from the date submitted to the OMB, unless NIH receives comments that would result in a contrary determination.
Please address comments to: NIH Privacy Act Officer, 6011 Executive Boulevard, Room 601, MSC 7669, Rockville, Maryland 20892, (301) 496-2832 (This is not a toll-free number).
Comments received will be available for inspection at this same address from 9 a.m. to 3 p.m., Monday through Friday.
Marc S. Horowitz, J.D., Director, Office of Loan Repayment and Scholarship, National Institutes of Health, 2 Center Drive, Room 2E30, Bethesda, Maryland 20892-0230, (800) 528-7689 (toll-free number).
For the loan repayment program administered by the National Center on Minority Health and Health Disparities (NCMHD), the contact is: John Ruffin, Ph.D., Director, National Center on Minority Health and Health Disparities, 6707 Democracy Boulevard, Suite 800, Bethesda, Maryland 20892-5465, (301) 402-1366.
Sections 487A-C, E and F of the Public Health Service (PHS) Act (42 U.S.C. 288-1, 2, 3, 5, 5a, and 6), Section 103 of the Minority Health and Health Disparities Research and Education Act (Pub. L. 106-525) as amended, and section 223 of Public Law 106-554 (114 Stat. 2763A-30) authorizes the Secretary or the Director, National Center on Minority Health and Health Disparities to implement and establish programs of entering into agreements with appropriately qualified health professionals under which such health professionals agree to conduct research, as employees or extramural grantees of the NIH or to conduct research with respect to contraception or infertility as employees or affiliates of the National Institute of Child Health and Human Development (NICHD) Intramural Laboratories and NICHD Extramural sites, in consideration of the Federal Government agreeing to repay, for each year of service, not more than $35,000 of the principal and interest of the educational loans of such health professionals. These programs include the following: (1) The NIH AIDS Research Loan Repayment Program, (2) the NIH General Research Loan Repayment Program, (3) the NIH Clinical Research Loan Repayment Program for Individuals from Disadvantaged Backgrounds, (4) the NIH Contraceptive and Infertility Research Loan Repayment Program, (5) the NIH Loan Repayment Program Regarding Clinical Researchers, (6) the NIH Pediatric Research Loan Repayment Program, and (7) the NIH Loan Repayment Program for Minority Health Disparities Research.
Section 487D of the PHS Act (42 U.S.C 288-4) authorizes a scholarship program for individuals who agree to pursue, as undergraduates, academic programs appropriate for careers in professions needed by the NIH and who agree to serve as NIH employees in exchange for receipt of the scholarship. This program is known as the NIH Undergraduate Scholarship Program (UGSP) for Individuals from Disadvantaged Backgrounds.
The NIH is recommending this proposed major alteration to expand system coverage for three new programs: (1) The Loan Repayment Program Regarding Clinical Researchers, (2) the Pediatric Research Loan Repayment Program, and (3) the Loan Repayment Program for Minority Health Disparities Research.
NIH is proposing to include grant numbers in the “Categories of Records in the System.” In addition, two modified routine uses and one new routine use are proposed: (a) Modified Routine Use No. 4—the disclosure of records to HHS contractors and subcontractors for the purposes of collecting, compiling, aggregating, analyzing, or refining records in the system, and for the purposes of evaluating NIH programs; Modified
The 09-25-0165 system notice was last published in the
The following notice is written in the present tense, rather than the future tense, in order to avoid the unnecessary expenditure of public funds to republish the notice after the system has become effective.
National Institutes of Health (NIH) Office of Loan Repayment and Scholarship (OLRS) Records System, HHS/NIH/OD.
None.
Office of Loan Repayment and Scholarship (OLRS), National Institutes of Health, 2 Center Drive, 2E30, Bethesda, Maryland 20892-0230.
Office of Loan Repayment and Scholarship (OLRS), National Institutes of Health, 6011 Executive Boulevard, Suite 206, Rockville, Maryland 20892.
National Center on Minority Health and Health Disparities, National Institutes of Health, 6707 Democracy Boulevard, Suite 800, Bethesda, Maryland 20892-5465.
See Appendix I for a listing of NIH offices responsible for administration of the NIH LRSPs. Write to the System Manager at the address below for the address of any Federal Records Center where records from this system may be stored.
Individuals who have applied for, who have been approved to receive, who are receiving, or who have received funds under the NIH LRSPs; and individuals who are interested in participation in the NIH LRSPs.
Name, address, Social Security number (SSN), grant number, program application and associated forms, service pay-back obligations, employment data, professional performance and credentialing history of licensed health professionals; personal, professional, and demographic background information; academic and research progress reports (which include related data, correspondence, and professional performance information consisting of continuing education, performance awards, and adverse or disciplinary actions); standard school budgets; financial data including loan balances, deferment, forbearance, and repayment/delinquent/default status information; commercial credit reports; educational data including tuition and other related educational expenses; educational data including academic program and status; employment status verification (which includes certifications and verifications of continuing participation in qualified research); Federal, State and county tax related information, including copies of tax returns.
Sections 487A-F (42 U.S.C. 288-1, 288-2, 288-3, 288-4, 288-5, 288-5a, 288-6) of the PHS Act, as amended; Section 103 of the Minority Health and Health Disparities Research Education Act (Pub. L. 106-525), as amended; and section 223 of Pub. L. 106-554 (114 Stat. 2763A-30) authorize the NIH to establish and implement (a) multiple programs of educational loan repayment for qualified health professionals who agree to conduct research, subject to each program's specific statutory requirements; and (b) a scholarship program for undergraduates who agree to pursue academic programs appropriate for careers in professions needed by the NIH and who agree to serve as NIH employees. The provisions of subpart III of part D of title III of the PHS Act (42 U.S.C. 2541
These records are used to: (1) Identify and select applicants for the NIH LRSPs; (2) monitor loan repayment and scholarship activities, such as payment tracking, academic status and performance, research and related services, deferment of service obligation, and default; and (3) assist NIH officials in the collection of overdue debts owed under the NIH LRSPs. Records may be transferred to System No. 09-15-0045, “Health Resources and Services Administration Loan Repayment/Debt Management Records System, HHS/HRSA/OA,” for debt collection purposes when NIH officials are unable to collect overdue debts owed under the NIH LRSPs.
1. Disclosure may be made to a Member of Congress or to a Congressional staff member in response to an inquiry of the Congressional office made at the written request of the constituent about whom the record is maintained.
2. The Department of Health and Human Services (HHS) may disclose information from this system of records
3. When a record on its face, or in conjunction with other records, indicates a violation or potential violation of law, whether civil, criminal or regulatory in nature, and whether arising by general statute or particular program statute, or by regulation, rule, or order issued pursuant thereto, disclosure may be made to the appropriate agency, whether Federal, foreign, State, local, or tribal, or other public authority responsible for enforcing, investigating or prosecuting such violation or charged with enforcing or implementing the statute, or rule, regulation, or order issued pursuant thereto, if the information disclosed is relevant to any enforcement, regulatory, investigative or prosecutive responsibility of the receiving entity.
4. The NIH may disclose records to HHS contractors and subcontractors for the purpose of collecting, compiling, aggregating, analyzing, or refining records in the system, and/or for the purpose of evaluating the programs covered by the system. Contractors maintain, and are also required to ensure that subcontractors maintain, Privacy Act safeguards with respect to such records.
5. The NIH may disclose information from this system of records to private parties such as present and former employers, references listed on applications and associated forms, other references and educational institutions. The purpose of such disclosures is to evaluate an individual's professional and or academic accomplishments and plans, performance, credentials, and educational background, and to determine if an applicant is suitable for participation in the NIH LRSPs.
6. The NIH will disclose information from this system of records to a consumer reporting agency (credit bureau) to obtain an applicant or participant's commercial credit report for the following purposes: (1) To establish his/her creditworthiness; (2) To assess and verify his/her ability to repay debts owed to the Federal Government; and (3) To determine and verify the eligibility of loans submitted for repayment. The NIH will also disclose information from this system of records to the National Student Clearinghouse using the Loan Locator Internet System or similar system to assist in the verification of loan data submitted by LRP applicants. Disclosures are limited to the individual's name, address, Social Security number and other information necessary to identify him/her; locate all student loans and verify payment addresses; identify the funding being sought or amount and status of the debt; and the program under which the applicant or claim is being processed.
7. The NIH may disclose from this system of records a delinquent debtor's or a defaulting participant's name, address, Social Security number, and other information necessary to identify him/her; the amount, status, and history of the claim, and the agency or program under which the claim arose, as follows:
a. To another Federal agency so that agency can effect a salary offset for debts owed by Federal employees; if the claim arose under the Social Security Act, the employee must have agreed in writing to the salary offset.
b. To another Federal agency so that agency can effect an authorized administrative offset;
c. To the Treasury Department, Internal Revenue Service (IRS), to request an individual's current mailing address to locate him/her for purposes of either collecting or compromising a debt, or to have a commercial credit report prepared.
8. The NIH may disclose information from this system of records to another agency that has asked the HHS to effect a salary or administrative offset to help collect a debt owed to the United States. Disclosure is limited to the individual's name, address, Social Security number, and other information necessary to identify the individual, information about the money payable to or held for the individual, and other information concerning the offset.
9. The NIH may disclose to the IRS information about an individual applying for any NIH loan repayment or scholarship program authorized by the Public Health Service Act to find out whether the applicant has a delinquent tax account. This disclosure is for the sole purpose of determining the applicant's creditworthiness and is limited to the individual's name, address, Social Security number, other information necessary to identify him/her, and the program for which the information is being obtained.
10. The NIH may report to the IRS, as taxable income, the written-off amount of a debt owed by an individual to the Federal Government when a debt becomes partly or wholly uncollectible, either because the time period for collection under statute or regulations has expired, or because the Government agrees with the individual to forgive or compromise the debt.
11. The NIH may disclose to debt collection agents, other Federal agencies, and other third parties who are authorized to collect a Federal debt, information necessary to identify a delinquent debtor or a defaulting participant. Disclosure will be limited to the individual's name, address, Social Security number, and other information necessary to identify him/her; the amount, status, and history of the claim, and the agency or program under which the claim arose.
12. The NIH may disclose information from this system of records to any third party that may have information about a delinquent debtor's or a defaulting participant's current address, such as a U.S. post office, a State motor vehicle administration, a university's office of the registrar or dean's office, a professional organization, an alumni association, etc., for the purpose of obtaining the individual's current address. This disclosure will be strictly limited to information necessary to identify the individual, without any reference to the reason for the agency's need for obtaining the current address.
13. The NIH may disclose information from this system of records to other Federal agencies that also provide loan repayment or scholarship at the request of these Federal agencies in conjunction with a matching program conducted by these Federal agencies to detect or curtail fraud and abuse in Federal loan repayment or scholarship programs, and to collect delinquent loans or benefit payments owed to the Federal Government.
14. The NIH will disclose from this system of records to the Department of Treasury, IRS: (1) A delinquent debtor's or a defaulting participant's name, address, Social Security number, and other information necessary to identify the individual; (2) the amount of the debt; and (3) the program under which the debt arose, so that the IRS can offset against the debt any income tax refunds which may be due to the individual.
15. The NIH may disclose information provided by a lender or educational
16. The NIH may disclose information from this system of records to officials or representatives of grantee institutions in connection with the review of an LRP application or performance or administration under the terms and conditions of the LRP award, or in connection with problems that might arise in performance or administration of the LRP contract.
17. The NIH will disclose records consisting of names, disciplines, current mailing addresses, and dates of scholarship support and dates of graduation of scholarship recipients to: (a) Designated coordinators at each school participating in the scholarship program for the purpose of determining educational expenses and resulting levels of scholarship support, and for the purpose of guiding and informing these recipients about the nature of their service obligations to the NIH; and (b) undergraduate, graduate and medical schools, attended by UGSP scholars who have elected to defer their service obligation, for the purpose of determining their academic status and verifying the validity of the NIH UGSP service deferment.
18. The NIH may disclose records to HHS contractors and subcontractors for the purpose of recruiting, screening, and matching health professionals for NIH employment in qualified research positions under the NIH LRSPs. In addition, HHS contractors and subcontractors: (1) May disclose biographic data and information supplied by potential applicants (a) to references listed on application and associated forms for the purpose of evaluating the applicant's professional qualifications, experience, and suitability, and (b) to a State or local government medical licensing board and/or to the Federation of State Medical Boards or a similar nongovernment entity for the purpose of verifying that all claimed background and employment data are valid and all claimed credentials are current and in good standing; (2) may disclose biographic data and information supplied by references listed on application and associated forms to other references for the purpose of inquiring into the applicant's professional qualifications and suitability; and (3) may disclose professional suitability evaluation information to NIH officials for the purpose of appraising the applicant's professional qualifications and suitability for participation in the NIH LRSPs. Contractors maintain, and are also required to ensure that subcontractors maintain, Privacy Act safeguards with respect to such records.
Disclosures pursuant to 5 USC 552a(b)(12): Disclosures may be made from this system to “consumer reporting agencies” as defined in the Federal Claims Collection Act of 1966, as amended (31 USC 3701(a)(3)). The purposes of these disclosures are: (1) To provide an incentive for debtors to repay delinquent debts to the Federal Government by making these debts part of their credit records, and (2) to enable NIH to improve the quality of loan repayment and scholarship decisions by taking into account the financial reliability of applicants, including obtaining a commercial credit report to assess and verify the ability of an individual to repay debts owed to the Federal Government. Disclosure of records will be limited to the individual's name, Social Security number, and other information necessary to establish the identity of the individual, the amount, status, and history of the claim, and the agency or program under which the claim arose.
Records are maintained in file folders, file cards, microfiche and electronic media, including computer tape, discs, servers connected to local area networks, and Internet servers.
Records are retrieved by name, NIH Institutes and Centers, grantee institutions, Social Security number, grant number, or other identifying numbers or characteristics.
1.
2.
3.
Records are retained and disposed of under the authority of the NIH Records Control Schedule contained in NIH Manual Chapter 1743, Appendix 1— “Keeping and Destroying Records” (HHS Records Management Manual, Appendix B-361), item 2300-537-1. Participant case files are transferred to a Federal Records Center one year after closeout and destroyed five years later. Closeout is the process by which it is determined that all applicable administrative actions and disbursements of benefits have been completed by the OLRS and service obligations have been completed by the participant. Applicant case files are destroyed three years after disapproval or withdrawal of their application. Appeal and litigation case files are destroyed six years after the calendar year in which the case is closed. Other
Director, Office of Loan Repayment and Scholarship, National Institutes of Health, 2 Center Drive, Suite 2E30, Bethesda, Maryland 20892-0230.
Director, Office of Loan Repayment and Scholarship, National Institutes of Health, 6011 Executive Boulevard, Suite 206, Rockville, Maryland 20892.
Director, National Center on Minority Health and Health Disparities, National Institutes of Health, 6707 Democracy Boulevard, Suite 800, Bethesda, Maryland 20892-5465.
Director, Contraceptive and Infertility Research Loan Repayment Program, National Institute of Child Health and Human Development, National Institutes of Health, 6100 Executive Boulevard, Room 8B01A, Rockville, Maryland 20892.
To determine if a record exists, write to the appropriate System Manager listed above. A written request must contain the name and address of the requester, Social Security number, and his/her signature which is either notarized to verify his/her identity or includes a written certification that the requester is the person he/she claims to be and that he/she understands that the knowing and willful request or acquisition of records pertaining to an individual under false pretenses is a criminal offense subject to a $5,000 fine. In addition, the following information is needed: dates of enrollment in the NIH LRSPs and current enrollment status, such as pending application approval or approved for participation.
An individual who appears in person at a specific location seeking access to or disclosure of records relating to him/her shall provide his/her name, current address, Social Security number, dates of enrollment in an NIH loan repayment or scholarship program, and at least one piece of tangible identification, such as driver's license, passport, or voter registration card. Identification papers with current photographs are preferred but not required. If an individual has no identification papers but is personally known to an agency employee, such employees shall make a written record verifying the individual's identity. Where the individual has no identification papers, the responsible agency official shall require that the individual certify in writing that he/she is the individual who he/she claims to be and that he/she understands that the knowing and willful request or acquisition of a record concerning an individual under false pretenses is a criminal offense subject to a $5,000 fine. Since positive identification of the caller or sender cannot be established, telephone and electronic mail requests are not honored.
Write to the appropriate System Manager specified above to attain access to records and provide the same information as is required under the Notification Procedures. Requesters should also reasonably specify the record contents being sought. Individuals may also request an accounting of disclosures of their records, if any.
Contact the appropriate System Manager specified above and reasonably identify the record, specify the information to be contested, the corrective action sought, and your reasons for requesting the correction, along with supporting information to show how the record is inaccurate, incomplete, untimely or irrelevant. The right to contest records is limited to information that is incomplete, irrelevant, incorrect, or untimely (obsolete).
Subject individual; participating lending and loan servicing institutions; educational and grantee institutions; other Federal agencies; consumer reporting agencies/credit bureaus; National Student Clearinghouse; and third parties that provide references concerning the subject individual.
None.
Office of Refugee Resettlement (ORR), Administration for Children and Families (ACF), DHHS.
Notice of modification.
The Office of Refugee Resettlement Standing Announcement “ORR Standing Announcement for Services to Recently Arrived Refugees” (66 FR 23705), issued May 9, 2001 in the
A new Standing Announcement for Victims of a Severe Form of Trafficking will be forthcoming from ORR at a future date. Organizations seeking discretionary grant funding for victims of a severe form of trafficking will have the opportunity at that time to submit new applications.
These changes are effective February 8, 2002.
For further information, please contact Neil Kromash, Office of Refugee Resettlement, telephone: 202-401-5702 or Jay Womack, Office of Refugee Resettlement, telephone: 202-401-5525.
The public is invited to comment on the following application(s) for a permit to conduct certain activities with endangered species. This notice is provided pursuant to section 10(c) of the Endangered Species Act of 1973,
The applicant requests a permit to import the sport-hunted trophy of one male bontebok (
The applicant requests re-issuance of a permit to import samples and non-viable eggs obtained from wild green sea turtle,
The public is invited to comment on the following application(s) for a permit to conduct certain activities with marine mammals. The application(s) was submitted to satisfy requirements of the Marine Mammal Protection Act of 1972,
Written data, comments, or requests for copies of these complete applications or requests for a public hearing on these applications should be submitted to the Director (address below) and must be received within 30 days of the date of this notice. Anyone requesting a hearing should give specific reasons why a hearing would be appropriate. The holding of such a hearing is at the discretion of the Director.
The applicant requests a permit to import a polar bear (
The U.S. Fish and Wildlife Service has information collection approval from OMB through March 31, 2004, OMB Control Number 1018-0093. Federal Agencies may not conduct or sponsor and a person is not required to respond to a collection of information unless it displays a current valid OMB control number.
Documents and other information submitted with these applications are available for review, subject to the requirements of the Privacy Act and Freedom of Information Act, by any party who submits a written request for a copy of such documents within 30 days of the date of publication of this notice to: U.S. Fish and Wildlife Service, Division of Management Authority, 4401 North Fairfax Drive, Room 700, Arlington, Virginia 22203, telephone 703/358-2104 or fax 703/358-2281.
Bureau of Indian Affairs, Interior.
Notice.
This notice advises the public that the Bureau of Indian Affairs (BIA) and the City of Palm Springs, in cooperation with the Agua Caliente Band of Cahuilla Indians, intend to file a draft Environmental Impact Statement/Environmental Impact Report (EIS/EIR) for approval of the Section 14 Master Development Plan on the Agua Caliente Indian Reservation, located within the boundaries of the City of Palm Springs, Riverside County, California. Details of the proposed action, location and areas of environmental concern are addressed in the DEIS/EIR and provided in the
Written comments on the DEIS/EIR must arrive by April 12, 2002. The public hearing will be held on Wednesday, April 3, 2002, from 7 p.m. to 9 p.m., or until the last public comment is received.
You may mail or hand carry written comments to Ronald Jaeger, Regional Director, Bureau of Indian Affairs, Pacific Regional Office, 2800 Cottage Way, Sacramento, California 95825-1846. Please include your name, return address and the caption, “DEIS/EIR Comments, Section 14 Master Plan, Riverside County, California,” on the first page of your written comments.
The public hearing will be at the Tahquitz Room of the Spa Resort Casino, 100 North Indian Canyon Drive, Palm Springs, California 92264. This meeting will be co-hosted by the BIA and Agua Caliente Band of Cahuilla Indians.
To obtain a copy of the DEIS/EIR, please write or call William Allan, Environmental Protection Specialist, Pacific Region, Bureau of Indian Affairs, 2800 Cottage Way, Sacramento, California 95825-1846, telephone (916) 978-6043. Copies of the DEIS/EIR are also available in the Agua Caliente Tribal Administration Office, 650 East Tahquitz Canyon Way, Palm Springs, and at the public library, 300 South Sunrise Way, Palm Springs.
William Allan, (916) 978-6043.
The proposed project is the approval of the Section 14 Master Development Plan, which facilitates approval of future leases on trust land in Section 14 by the BIA. Section 14 is located on the Agua Caliente Indian Reservation in downtown Palm Springs. It is comprised of tribally owned parcels, allotted parcels and parcels owned in fee. The section is bounded by Alejo Road to the north, Sunrise Road to the east, Ramon Road to the south and Indian Canyon Drive to the west. The 640 acre section is one block east of downtown Palm Springs and one mile west of Palm Springs Regional Airport.
The intent of the Section 14 Master Development Plan is to:
• Create an attractive, feasible and marketable vision for the area's future development;
• Achieve the highest and best use of Indian trust lands;
• Maximize and coordinate the development potential of Indian trust and fee lands in Section 14;
• Revitalize existing uses;
• Ensure compatibility with existing, proposed and planned development in the downtown area;
• Achieve a comprehensive master plan of development that is high quality, marketable and able to be implemented in a timely manner; and
• Provide a specific plan that ensures quality development will occur independent of ownership.
Businesses that are expected to be attracted and which will result in new construction include restaurants and various retail establishments. These establishments will consist of cinemas, live theaters, museums, and “entertainment retail” shopping where customers are entertained as they browse. There will also be health, sports and recreational complexes along with a large-scale hotel located across from the existing Convention Center.
In addition to the new development, existing structures will receive facade rehabilitation in order to blend in with the new destination resort theme of Section 14. Streets will also be redesigned and enhanced within Section 14 to promote a pedestrian-friendly destination resort environment.
Alternative transportation modes will be established within the area to help limit automobile traffic. Walkways and bikeways will be linked into the existing street grid and the major attractions of the area. Shade features such as awnings, overhangs and trellises will be established to attract both recreational and destination oriented pedestrians and cyclists. A rubber-tire shuttle will be installed linking Section 14, the airport and downtown, with stops at major hotels and attractions.
Alternatives to the proposed project that are considered in the DEIS/EIR include (1) no action, which will keep the City of Palm Springs General Plan in effect; (2) reduced intensity development; and (3) increased intensity development. Environmental issues addressed in the DEIS/ EIR include landform/topography, geology/soils/seismicity, hydrology/water quality, biological resources, cultural and scientific resources, land use, air quality, traffic/circulation, noise, health and safety, public services and utilities, and visual resources.
Comments, including names and addresses of respondents, will be available for public review at the mailing address shown in the
This notice is published in accordance with § 1503.1 of the Council on Environmental Quality Regulations (40 CFR, part 1500 through 1508) implementing the procedural requirements of the National Environmental Policy Act of 1969, as amended (42 U.S.C. 4371
Bureau of Indian Affairs, Interior.
Notice of approved Tribal-State compact.
Pursuant to section 11 of the Indian Gaming Regulatory Act of 1988 (IGRA), Pub. L. 100-497, 25 U.S.C. 2710, the Secretary of the Interior shall publish, in the
This action is effective upon date of publication.
George T. Skibine, Director, Office of Indian Gaming Management, Bureau of Indian Affairs, Washington, DC 20240, (202) 219-4066.
Bureau of Indian Affairs, Interior.
Notice of approved Tribal-State compact.
Pursuant to section 11 of the Indian Gaming Regulatory Act of 1988 (IGRA), Pub. L. 100-497, 25 U.S.C. 2710, the Secretary of the Interior shall publish, in the
This action is effective upon date of publication.
George T. Skibine, Director, Office of Indian Gaming Management, Bureau of Indian Affairs, Washington, DC 20240, (202) 219-4066.
Bureau of Indian Affairs, Interior.
Notice of approved Tribal-State Compact.
Pursuant to section 11 of the Indian Gaming Regulatory Act of 1988 (IGRA), Pub. L. 100-497, 25 U.S.C. 2710, the Secretary of the Interior shall publish, in the
This action is effective upon date of publication.
George T. Skibine, Director, Office of Indian Gaming Management, Bureau of Indian Affairs, Washington, DC 20240, (202) 219-4066.
Bureau of Indian Affairs, Interior.
Notice of approved Tribal-State compact.
Pursuant to section 11 of the Indian Gaming Regulatory Act of 1988 (IGRA), Pub. L. 100-497, 25 U.S.C. 2710, the Secretary of the Interior shall publish, in the
This action is effective upon date of publication.
George T. Skibine, Director, Office of Indian Gaming Management, Bureau of Indian Affairs, Washington, DC 20240, (202) 219-4066.
On the basis of the record
The Commission also determines,
The Commission instituted these investigations effective December 7, 2000, following receipt of a petition filed with the Commission and Commerce by USEC Inc. and its wholly owned subsidiary United States Enrichment Corp., Bethesda, MD. The final phase of the investigations was scheduled by the Commission following notification of preliminary determinations by Commerce that imports of low enriched uranium from France, Germany, the Netherlands, and the United Kingdom were being subsidized within the meaning of section 703(b) of the Act
The Commission transmitted its determinations in these investigations to the Secretary of Commerce on February 4, 2001. The views of the Commission are contained in USITC Publication 3486 (February 2002), entitled Low Enriched Uranium from France, Germany, the Netherlands, and the United Kingdom: Investigations Nos. 701-TA-409-412 and 731-TA-909 (Final).
By order of the Commission.
Department of Justice.
Notice of advance consent for providing aviation training to certain alien trainees.
Under section 113 of the Aviation and Transportation Security Act (ATSA), training providers subject to regulation by the Federal Aviation Administration (FAA) are prohibited from providing training to aliens in the operation of aircraft with a maximum certificated takeoff weight of 12,500 pounds or more, unless they provide prior notification to the Attorney General. This notice temporarily grants advance consent for the training of certain categories of aliens, without requiring that they provide identifying information to the Attorney General, based on a provisional finding that they do not constitute a risk to aviation or national security at this time.
This notice is effective February 8, 2002, and remains in effect until further notice.
Steven C. McCraw, Director, Foreign Terrorist Tracking Task Force, U.S. Department of Justice, 950 Pennsylvania Avenue, NW, Washington, DC 20530, Telephone (703) 414-9535.
On November 19, 2001, Congress enacted the Aviation and Transportation Security Act (ATSA), Pub. L. 107-71. Upon enactment, section 113 of the ATSA imposed new constrictions on persons subject to regulation under Title 49 subtitle VII part A, United States Code, with respect to providing aviation training to aliens. Persons subject to regulation under Title 49 subtitle VII Part A, United States Code, include individual training providers, certificated carriers, and flight schools (hereinafter collectively referred to as “training providers”). Pursuant to section 113, training providers must provide the Attorney General with the alien's identification in such form as the Attorney General may require in order to initiate a security risk assessment by the Department of Justice. After notification, the Attorney General then has 45 days to inform the training provider that the alien should not be given the requested training because he or she presents a risk to aviation or national security. If the Attorney General does not indicate that the person is a risk within this 45-day review period, then the training provider may proceed with training. The ATSA, however, permits the Attorney General to interrupt training if he later determines that the alien poses a risk to aviation or national security. The Attorney General has delegated his authority under section 113 to the Director of the Foreign Terrorist Tracking Task Force. The Department plans to publish implementation procedures shortly to provide a means by which training providers may notify the Attorney General with respect to covered individuals seeking aviation instruction who are not eligible for advance consent in order to initiate the Department of Justice's 45-day review period.
On January 16, 2002, the Department published a notice in which it granted advance consent for certain categories of aliens to begin aviation training (the “First Advance Consent Notice”). 67 FR 2238 (Jan. 16, 2002). As discussed in that notice, the Department recognized that section 113 of the ATSA became immediately effective, and that training providers have been forced to suspend the training of aliens covered by the ATSA pending the implementation of the process for notification to the Attorney General. Because the suspension of training imposed a substantial economic burden on regulated training providers, the Department granted provisional advance consent, effective January 15, 2002, for training providers to resume aviation training for certain categories of aliens who appeared to pose a risk to aviation and national security which was sufficiently minimal that the Department would not deny them training. This notice supercedes the notice published in the
Since publication of the First Advance Consent Notice, the Department has continued to analyze the types of aliens seeking aviation training. The Department continues to believe that the primary intent of Congress regarding the enactment of this statute was to prevent potentially dangerous aliens from being taught how to pilot aircraft with a maximum certificated takeoff weight of 12,500 pounds or more. Based on that standard, it appears that certain categories of aliens pose little such risk. For example, currently licensed pilots who seek recurrent training already know how to fly the aircraft for which they wish to maintain proficiency. Denying such retraining would appear to offer no benefit to aviation or national security. Indeed, the purpose behind recurrent training is to make flying safer for the public.
The Department has determined that advance consent for aviation training could be granted to additional categories of aliens who appear not to pose the risk to aviation or national security contemplated by Congress in section 113 of the ATSA. The new categories of aliens identified by the Department have some overlap with respect to the three categories previously identified in the First Advance Consent Notice. Therefore, in order to prevent confusion, this notice supercedes the First Advance Consent Notice. Any training commenced in compliance with the First Advance Consent Notice, however, remains valid and may
Effective immediately and until further notice, the Department is granting a provisional advance consent for the training of the following categories of aliens, based on a determination that they do not appear to pose a risk to aviation or national security:
(1) Foreign nationals who are current and qualified as pilot in command, second in command, or flight engineer with respective certificates and ratings recognized by the United States for aircraft with a maximum certificated takeoff weight of 12,500 pounds or more;
(2) Military pilots or other crew members who are being provided training by a component of the Department of Defense or the U.S. Coast Guard, or pursuant to a contract awarded by a component of the Department of Defense or the U.S. Coast Guard;
(3) Military pilots or other crew members who are being provided training pursuant to an export authorization of the Department of State, provided such authorization was issued prior to February 1, 2002 and that the training was scheduled to commence prior to April 1, 2002; and
(4) Commercial, governmental, corporate or military pilots of aircraft with a maximum certificated takeoff weight of 12,500 pounds or more who must receive familiarization training on a particular aircraft in order to transport it to the purchaser or recipient, provided that the training provided be limited to familiarization and not basic flight instruction.
The categories covering military pilots were devised after consulting with the Departments of Defense and State. Based on these consultations, the Department believes that military pilots training under the auspices of the Department of Defense or Coast Guard are thoroughly investigated prior to training and pose no risk to aviation or national security. Aliens being trained pursuant to export authorizations of the Department of State, however, are not always investigated to the same extent. As a result, the Department is limiting the advance consent for this category to certain aliens already scheduled for training, as these were not found to constitute a risk to aviation or national security.
Section 113 of the ATSA applies to all aliens as defined in section 101(a)(3) of the Immigration and Nationality Act, but does not currently apply to citizens or nationals of the United States. Accordingly, training providers must make a determination as to whether or not a prospective trainee is an alien. If the prospective trainee establishes that he or she is a citizen or national of the United States, the restrictions of section 113 do not apply.
Training providers should require appropriate proof of citizenship or nationality from all trainees who claim to be citizens or nationals of the United States, before commencing aviation training on aircraft with a maximum certificated takeoff weight of 12,500 pounds or more. This requirement is necessary to prevent aliens from falsely claiming to be United States citizens or nationals in order to evade the Department's security risk assessment.
The Department believes that the following documents are sufficient to establish proof of citizenship or nationality:
(1) A valid, unexpired United States passport;
(2) An original birth certificate with raised seal documenting birth in the United States or one of its territories;
(3) An original U.S. naturalization certificate with raised seal, Form N-550 or Form N-570;
(4) An original certification of birth abroad, Form FS-545 or Form DS-1350; or
(5) An original certificate of U.S. citizenship, Form N-560 or Form N-561.
(6) In the case of training provided to a federal employee pursuant to a contract between a U.S. Government agency and a training provider, the agency's written certification as to its employee's U.S. citizenship may be accepted as sufficient proof of such citizenship.
If a training provider has questions about the documents above or any other documentation presented by a person who claims to be a citizen or national of the United States, the training provider may seek further guidance from the Department, the Immigration and Naturalization Service, or the appropriate federal agency.
After a training provider reasonably determines that a prospective alien trainee falls within one of the four advance consent categories, the training provider may proceed with training the alien immediately and does not have to submit any identifying information to the Department. The training provider, however, should retain records to document how the training provider made the determination that the alien was eligible for advance consent. Appropriate measures will be taken by the Department with respect to any alien who is determined to pose a risk to aviation or national security. Available civil and/or criminal penalties will be pursued with respect to any training provider who knowingly or negligently provides training to aliens not covered by this notice.
In accordance with Departmental Policy, 28 CFR 50.7, notice is hereby given that a proposed Consent Decree in
The proposed Consent Decree would require restoration or mitigation of affected wetlands, filling of ditches, payment of civil penalties totaling $15,000, and preservation of approximately 40 acres of wetlands as part of a Supplemental Environmental Project.
The United States Department of Justice will receive written comments relating to the proposed Consent Decree for a period of thirty (30) days from the date of publication of this Notice. Comments should be faxed to 202.514.8865 to the attention of S. Randall Humm, Attorney, United States Department of Justice, Environmental Defense Section, PO Box 23986, Washington, DC 20026-3986, and should refer to
The proposed Consent Decree may be examined at the Clerk's Office, United States District Court for the Eastern District of North Carolina, 310 New Bern Avenue, Federal Building, 5th Floor, Raleigh, North Carolina.
Office of Justice Programs, Office of Juvenile Justice and Delinquency Prevention, Justice.
Notice of solicitation and availability of the Juvenile Mentoring Program (JUMP) Program Announcement.
The Office of Juvenile Justice and Delinquency Prevention (OJJDP), pursuant to part G, section 288 of the Juvenile Justice and Delinquency Prevention (JJDP) Act of 1974, as amended (42 U.S.C. 5601
Applications for JUMP funding must be received by March 25, 2002.
All application packages must be mailed or delivered to the Office of Juvenile Justice and Delinquency Prevention, c/o Juvenile Justice Resource Center, 2277 Research Boulevard, Mail Stop 2K, Rockville, Maryland 20850; 301-519-5535. Interested applicants can obtain a copy of the
Travis Cain, Program Manager, Office of Juvenile Justice and Delinquency Prevention, 202-307-5914. (This is not a toll-free number.)
The JUMP program supports one-to-one mentoring projects for youth at risk of failing in school, dropping out of school, or being involved in delinquent activities, including gang participation and substance use. The goals of JUMP are to reduce juvenile delinquent activities and gang participation, improve academic performance, and reduce the dropout rate through a one-to-one, supportive relationship between an adult and an at-risk youth. Applications are invited from local education agencies (LEAs), public agencies, private for-profit or nonprofit organizations, and tribal nations that can demonstrate knowledge of and/or experience with mentoring programs, volunteers, and programming for at-risk youth. When an LEA is the primary applicant, it must collaborate with a public agency, private for-profit or nonprofit agency (including faith-based groups), or tribal nation. Likewise, if a public agency, private for-profit or nonprofit organization (including faith-based groups), or tribal nation is the primary applicant, it must collaborate with an LEA. OJJDP encourages applications from both new mentoring programs and mentoring programs with proven track records that want to expand mentoring activities in accordance with the JUMP goals and objectives. National organizations are not eligible to apply for JUMP funds. Grantees or collaborative entities that have received JUMP funds previously are not eligible to compete for funding through this solicitation. Applicants selected for funding will receive a one-time award of up to $220,000 for a 3-year project and budget period.
Prior program requirements restricted funding to applicants (LEAs, public agencies, private for-profit or nonprofit organizations, or tribal nations) that could demonstrate that the participating school(s) had 60 percent or more youth eligible for Chapter 1 funding (Elementary and Secondary Education Act of 1965). OJJDP has modified this eligibility requirement. Instead, OJJDP will give priority in the selection process to applicants that can demonstrate that the population being served is “high risk” using one of three criteria, including a disproportionately high arrest rate within the target area, disproportionately high dropout rates in the targeted schools, and schools with 60 percent or more youth eligible for Chapter 1 funding. See the
OJJDP now defines a “mentor” as an adult age 18 or older. The previous age requirement was age 21 or older.
Projects must maintain a minimum of 25 new matches each year, for a total of at least 75 matches over 3 years. The previous match requirement was 50 to 60 each year, for a total of at least 150 to 180 over 3 years.
The Department of Labor (DOL) has submitted the following public information collection requests (ICRs) to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995 (Pub. L. 104-13, 44 U.S.C. Chapter 35). A copy of each individual ICR, with applicable supporting documentation, may be obtained by calling the Department of Labor. To obtain documentation contact Darring King on (202) 693-4129 or e-mail:
Comments should be sent to Office of Information and Regulatory Affairs, Attn: OMB Desk Officer for OSHA, Office of Management and Budget, Room 10235, Washington, DC 20503 ((202) 395-7316), within 30 days from the date of the publication in the
The OMB is particularly interested in comments which:
* Evaluate whether the proposed collection of information is necessary for the proper performance of the
* Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
* Enhance the quality, utility, and clarity of the information to be collected; and
* Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, e.g., permitting electronic submission of responses.
Subpart B consists of several standards governing employee entry into confined and enclosed spaces and other dangerous atmospheres. These standards require employers to: Warn employees not to enter hazardous spaces and other dangerous atmospheres; exchange information regarding hazards, safety rules, and emergency procedures concerning these spaces and atmospheres with other employers whose employees may enter these spaces and atmospheres; post signs prohibiting ignition sources within or near a space that contains bulk quantities of flammable or combustible liquids or gases; ensure that a marine chemist or a U.S. Coast Guard authorized person tests and certifies confined and enclosed spaces and other dangerous atmospheres before performing hot work in these spaces and atmospheres; post this certificate in the immediate vicinity of the hot-work operation while the operation is in progress; and retain the certificate on file for at least three months after completing the operation. These paperwork requirements regulate employee entry into confined and enclosed spaces and other dangerous atmospheres located in shipyards, thereby preventing death or serious injury and illness that may result from employee exposure to the explosive, combustible, and toxic hazards contained in these spaces.
Under the AEGC program, the employer must test all cord sets, receptacles that are not part of the permanent wiring of the building or structure, and cord- and plug-connected equipment that require grounding. Accordingly, employers must test each equipment-grounding connector for continuity and ensure that it is electrically continuous, and test each receptacle and attachment cap or plug for correct attachment of the equipment-grounding conductor, and ensure that the conductor connects to the proper terminal. Employers are to perform these tests before; First using the equipment; returning the equipment to service following repair; and using equipment after any incident that the employer reasonably suspects damaged the equipment. In addition, an employer must conduct testing at least every three months, except for fixed cord sets and receptacles not exposed to damage, which employers must test at least every six months. Employers must also record the tests, including the identity of each receptacle, cord set, and cord- and plug-connected equipment that passed the test, and the previous testing date or the interval covered by the last test. The employer is to maintain these records using logs, color coding, or other effective means until replaced by the next record, and make them available at the job site for inspection by OSHA compliance officers and affected employees.
The purpose of the AEGC program is to detect and correct faults in grounding conductors before a high-voltage accident occurs. Grounding conductors often fail because of the rough use they receive at construction sites, and such failure results in improperly grounded equipment; employees who then use the improperly grounded equipment are at risk for death or injury caused by high-voltage electrical shock. The written program identifies the equipment that the competent person must inspect and test, and delineates the procedures they are to use while inspecting and testing the equipment for grounding faults. Making the written program available for review and copying by OSHA compliance officers and affected employees ensures that the program covers the required equipment currently used at the work site, and that the competent person is following appropriate procedures during inspection and testing. Recording the test results informs OSHA compliance officers and affected employees that the competent person tested the required equipment, and whether or not this equipment is safe to use.
• § 1926.403(i)(2)(iii). Mark the entrances to rooms and other guarded locations containing exposed live parts with conspicuous warning signs that forbid unqualified employees from entering.
• § 1926.403(i)(2)(iii). Post warning signs if unauthorized employees may come in contact with live parts.
• § 1926.405(h). Mark termination enclosures for portable cable over 600 volts (nominal) with a high-voltage hazard warning.
• Section 1926.408(a)(2)(iii). Provide a means to completely isolate equipment for inspection and repairs. Accordingly, employers must ensure that means of isolation not designed to interrupt the load current of the circuit either are capable of interlocking with a circuit interrupter or they must post a sign warning against opening the means under load.
• Section 1926.408(a)(3)(i). Provide a metallic structure on mobile or portable equipment for enclosing the terminals of the power cables, and mark the structure with a sign warning that the structure contains energized parts.
• Section 1926.416(a)(3). Before starting work, determine whether or not an employee, tool, or machine may come into physical or electrical contact with an energized electric power circuit, whether exposed or concealed. If so, the employer must post and maintain proper warning signs where such circuits exist, and advise employees of the location of such circuits, the hazards involved, and the protective measures they are to take.
These warning signs and marks alert unqualified and unauthorized employees to the presence of electrical hazards, and notify electricians of the need to exercise caution and to take other measures to protect themselves when they are near electrical hazards. Therefore, these paperwork requirements prevent death and serious injury among these employees that may result from inadvertent contact with high-voltage electrical hazards.
By complying with these paperwork requirements, employers ensure that PSDI-equipped mechanical power presses are in safe working order, thereby preventing severe injury and death to press operators and other employees who work near this equipment. In addition, these records provide the most efficient means for an OSHA compliance officer to determine that an employer performed the requirements and that the equipment is safe.
OSHA is proposing to extend OMB approval of the information-collection requirements specified by the Standard even though the Agency can attribute no burden hours and cost to these requirements. In previous ICRs, OSHA estimated that each year employers would convert 1,988 mechanical presses to PSDI operation, and that manufacturers would produce an additional 250 new presses using PSDI (for an annual total of 2,238 presses). However, to date, no such presses appear to be in use, either because employers selected other stroke-control devices for mechanical power presses, or because no third-party organization is available to validate employer manufacturer certifications that their PSDI equipment and practices meet the requirements of the Standard. Therefore, the Standard does not currently affect any known employer; accordingly, the paperwork requirements currently result in no burden hours or cost to employers.
The Agency believes that efforts by the American National Standards Institute (ANSI) to develop a national consensus standard for PSDI may increase use of these devices in the near future. The metal-forming industry, which is working with ANSI on developing the national consensus standard, requested that Agency to retain the Standard. Therefore, OSHA is proposing that OMB extend its approval of the information-collection requirements specified by the Standard so that the Agency can enforce these requirements if employers begin using PSDI.
The Department of Labor (DOL) has submitted the following public information collection requests (ICRs) to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995 (Pub. L. 104-13, 44 U.S.C. Chapter 35). A copy of this ICR, with applicable supporting documentation, may be obtained by calling the Department of Labor. To obtain documentation contact Darrin King on (202) 693-4129 or e-Mail:
Comments should be sent to Office of Information and Regulatory Affairs, Attn: OMB Desk Officer for ETA, Office of Management and Budget, Room 10235, Washington, DC 20503 ((202) 395-7316), within 30 days from the date of this publication in the
The OMB is particularly interested in comments which:
* Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
* Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
* Enhance the quality, utility, and clarity of the information to be collected; and
* Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, e.g., permitting electronic submission of responses.
The Department of Labor (DOL) has submitted the following public information collection requests (ICRs) to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995 (Pub. L. 104-13, 44 U.S.C. Chapter 35). A copy of each individual ICR, with applicable supporting documentation, may be obtained by calling the Department of Labor. To obtain documentation contact Darrin King on (202) 693-4129 or e-Mail:
Comments should be sent to Office of Information and Regulatory Affairs, Attn: OMB Desk Officer for MSHA, Office of Management and Budget, Room 10235, Washington, DC 20503 ((202) 395-7316), within 30 days from the date of this publication in the
The OMB is particularly interested in comments which:
*Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
*Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
*Enhance the quality, utility, and clarity of the information to be collected; and
*Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, e.g., permitting electronic submission of responses.
Requirements—30 CFR 77.215(j); 77.215-2 thru 4; and 77.216-2 thru 5.
General wage determination decisions of the Secretary of Labor are issued in accordance with applicable law and are based on the information obtained by the Department of Labor from its study of local wage conditions and data made available from other sources. They specify the basic hourly wage rates and fringe benefits which are determined to be prevailing for the described classes of laborers and mechanics employed on construction projects of a similar character and in the localities specified therein.
The determinations in these decisions of prevailing rates and fringe benefits have been made in accordance with 29 CFR part 1, by authority of the Secretary of Labor pursuant to the provisions of the Davis-Bacon Act of March 3, 1931, as amended (46 Stat. 1494, as amended, 40 U.S.C. 276a) and of other Federal statutes referred to in 29 CFR part 1, Appendix, as well as such additional statutes as may from time to time be enacted containing provisions for the payment of wages determined to be prevailing by the Secretary of Labor in accordance with the Davis-Bacon Act. The prevailing rates and fringe benefits determined in these decisions shall, in accordance with the provisions of the foregoing statutes, constitute the minimum wages payable on Federal and federally assisted construction projects to laborers and mechanics of the specified classes engaged on contract work of the character and in the localities described therein.
Good cause is hereby found for not utilizing notice and public comment procedure thereon prior to the issuance of these determinations as prescribed in 5 U.S.C. 553 and not providing for delay in the effective date as prescribed in that section, because the necessity to issue current construction industry wage determinations frequently and in large volume causes procedures to be impractical and contrary to the public interest.
General wage determination decisions, and modifications and supersedeas decisions thereto, contain no expiration dates and are effective from their date of notice in the
Any person, organization, or governmental agency having an interest in the rates determined as prevailing is encouraged to submit wage rate and fringe benefit information for consideration by the Department. Further information and self-explanatory forms for the purpose of submitting this data may be obtained by writing to the U.S. Department of Labor, Employment Standards Administration, Wage and Hour Division, Division of Wage Determinations, 200 Constitution Avenue, NW., Room S-3014, Washington, DC 20210.
The number of the decisions listed to the Government Printing Office document entitled “General Wage Determinations Issued Under the Davis-Bacon and related Acts” being modified are listed by Volume and State. Dates of publication in the
None
None
None
None
None
General wage determinations issued under the Davis-Bacon and related Acts, including those noted above, may be found in the Government Printing Office (GPO) document entitled “General Wage determinations Issued Under the Davis-Bacon And Related Acts”. This publication is available at each of the 50 Regional Government Depository Libraries and many of the 1,400 Government Depository Libraries across the country.
General wage determinations issued under the Davis-Bacon and related Acts are available electronically at no cost on the Government Printing Office site at
Hard-copy subscriptions may be purchased from: Superintendent of Documents, U.S. Government Printing Office, Washington, DC 20402, (202) 512-1800.
When ordering hard-copy subscription(s), be sure to specify the State(s) of interest, since subscriptions may be ordered for any or all of the six separate Volumes, arranged by State. Subscriptions include an annual edition (issued in January or February) which includes all current general wage determinations for the States covered by each volume. Throughout the remainder of the year, regular weekly updates will be distributed to subscribers.
The National Endowment for the Arts (“Endowment”) has requested that the Office of Management and Budget (OMB) approve reinstatement of an expired clearance for a series of collections of information under the Paperwork Reduction Act. The purpose of the information collections, which will be conducted through focus groups and short questionnaires administered
All comments must be submitted to OMB by March 11, 2002.
All written comments should be addressed to: Office of Information and Regulatory Affairs of OMB, Attention: Desk Officer for the National Endowment for the Arts, 725 17th Street, NW., Room 10235, Washington, DC 20503. The request for approval will be available for public inspection at the National Endowment for the Arts, room 628, 1100 Pennsylvania Avenue, NW., Washington, DC 20506-0001, between the hours of 9 a.m. and 5:30 p.m.
Laurence M. Baden, Deputy Chairman for Management & Budget, or Martha Jones, Management Analyst, National Endowment for the Arts, room 628, 1100 Pennsylvania Avenue, NW., Washington, DC 20506-0001, 202/682-5496 for TTY and TDD). (These are not toll-free numbers.)
The Paperwork Reduction Act of 1995 establishes policies and procedures for controlling the paperwork burdens imposed by Federal agencies on the public. The Act vests OMB with regulatory responsibility over these burdens, and OMB has promulgated rules on the clearance of collections of information by the Federal agencies.
Executive Order 12862, “Setting Customer Service Standards,” directs all executive departments and agencies that provide significant services directly to the public to render those services in a manner that seeks to meet the quality standard established in the executive order,
The Endowment intends to establish mechanisms to explore issues of mutual concern (
Areas of concern to the Endowment and its customers will change over time, and it is important the Endowment be able to evaluate customer concerns quickly. Accordingly, the Endowment requests OMB to grant generic approval, for a three-year period, of focus groups and brief questionnaires targeting the Endowment's outside customer groups. Customer participation in these endeavors will be strictly voluntary.
The Endowment published a notice of intention to request OMB approval of these collections in the
This voluntary collection of information will put a slight burden on an extremely small percentage of the public. The Endowment expects to convene three to six focus groups involving a total of about 120 persons during the three-year period, with a total annual burden of about 540 hours, including travel time. The Endowment also expects to administer brief questionnaires to approximately 180 persons during the three-year period, representing a total annual burden of about 10 hours if done apart from focus group meetings. If done in conjunction with a focus group, a small fraction of the 540 hours would be allotted to participants' completion of a short written questionnaire.)
National Science Foundation, National Institutes of Health, Office of Naval Research, Department of Energy, Department of Agriculture, Air Force Office of Scientific Research, Army Research Office, Army Medical Research & Materiel Command, National Aeronautics & Space Administration, Environmental Protection Agency.
Notice.
This Notice announces a solicitation for large and small public and private colleges and universities (including predominantly undergraduate institutions and minority serving institutions), non-profit research and education organizations (e.g., science museums and research institutes), and hospitals to participate in Phase IV of the Federal Demonstration Partnership (FDP). FDP is a unique forum of federal agencies and recipients committed to testing innovative approaches and streamlining processes and systems for federally supported research and education. It is anticipated that the Government University Industry Research Roundtable of the National Academy of Sciences will continue to function as a neutral covener for the FDP. The full solicitation is found at the Federal Demonstration Partnership Web site
Proposals must be received by C.O.B. on April 9, 2002. Evaluation and selection of organizations will be completed on or about May 15, 2002. Phase IV organization and execution of agreements will be completed on or about June 30, 2002. The Phase IV organizational meeting will take place September 12 and 13, 2002 at the National Academy of Science, Washington, D.C. Phase IV concludes September 30, 2008.
Visit the FDP Web site
This proceeding involves the proposed increase in capacity (through the addition of high-density storage racks) of the spent fuel storage pool of the Millstone Nuclear Power Station, Unit No. 3, in New London County, Connecticut. The proceeding is
Notice is hereby given that the oral argument prescribed by 10 CFR part 2, subpart K, 2.1109 and 2.1113, will take place at the Best Western Sovereign Hotel, 9 Whitehall Avenue, Mystic, CT, on Tuesday, April 2, 2002, beginning at 9:30 a.m.
Under 10 CFR 2.1113, by Monday, March 18, 2002 (15 days prior to the oral argument as set forth above), each party, including the NRC Staff, shall submit a detailed written summary of all the facts, data, and arguments which are known to the party at that time and on which the party proposes to rely at the oral argument either to support or refute the existence of a genuine and substantial dispute of fact. Each party shall also submit all supporting facts and data in the form of sworn written testimony or other sworn written submission.
Each party's written summary and supporting information shall be simultaneously served on all other parties. In that connection, service of paper copies is currently required by the NRC rules (
To complete service on members of the Licensing Board and other parties by e-mail transmission, a party should (a) send the filing (which should include the certificate of service) as a file attached to an e-mail message directed to each of the Licensing Board members (Internet addresses:
If a party has a pleading it wishes to send by e-mail that includes attachments it is unable to convert to electronic form, it should do
Parties may also elect to complete their March 18, 2002, filing by hand delivery or facsimile transmission. To complete service on members of the Licensing Board by facsimile transmission, a party should (a) send one copy by rapifax to the attention of members of the Licensing Board at (301) 415-5599 (verification (301) 415-7550); and (b) that same date, send conforming copies to each of the Licensing Board members by regular mail, at the address listed above.
As set forth in the February 9, 2000, Notice of Hearing for this proceeding,
Documents related to this proceeding, issued prior to December 1, 1999, are available in microfiche form (with print form available on one-day recall) for public inspection at the Commission's Public Document Room (PDR), Room O-1 F21, NRC One White Flint North, 11555 Rockville Pike, Rockville, Maryland 20852-2738. Documents issued after November 1, 1999, are available electronically through the Agencywide Documents Access and Management System (ADAMS), with access to the public through NRC's Internet Web site (Public Electronic Reading Room Link, <
For the Atomic Safety and Licensing Board.
The U.S. Nuclear Regulatory Commission (NRC) is in receipt of and is making available for public inspection and comment the License Termination Plan (LTP), Revision 2, for the Maine Yankee Atomic Power Station (MYAPS, or the licensee) located in Lincoln County, Maine. The NRC is also in receipt of a license amendment request that would terminate license jurisdiction for a portion of the MYAPS site, thereby releasing these lands from Facility Operating License No. DPR-36 before the license is terminated.
MYAPS announced permanent cessation of power operations of MYAPS on August 7, 1997. In accordance with NRC regulations, the licensee submitted a Post-Shutdown Decommissioning Activities Report for MYAPS to the NRC on August 27, 1997. The facility is undergoing active decontamination and dismantlement.
In accordance with 10 CFR 50.82(a)(9), all power reactor licensees must submit an application for termination of their license. The application for termination of license must be accompanied or preceded by an LTP to be submitted for NRC approval. If found acceptable by the NRC staff, the LTP is approved by license amendment, subject to such conditions and limitations as the NRC staff deems
By application dated August 13, 2001, the licensee submitted Revision 2 to its proposed LTP for MYAPS. Due to the extensive changes incorporated into Revision 2, the NRC staff is again providing notice to individuals in the vicinity of the site that the NRC is in receipt of the MYAPS LTP, and will accept comments from affected parties. In addition, by application dated August 16, 2001, MYAPS submitted a license amendment request that would terminate license jurisdiction for a portion of the MYAPS site. In part, the release of these lands will facilitate the donation of a portion of this property to an environmental organization pursuant to a Federal Energy Regulatory Commission approved settlement between the licensee and its ratepayers. The NRC staff will conduct a meeting to discuss the MYAPS LTP, Revision 2, and partial site release license amendment request on Monday, March 11, 2002, at 7 p.m. at Wiscasset Middle School, 83 Federal Street, Wiscasset, Maine.
The MYAPS LTP and partial site release may be examined, and/or copied for a fee, at the NRC's Public Document Room (PDR), 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 System (ADAMS) Public Electronic Reading Room on the internet at the NRC Web site,
Comments regarding the MYAPS LTP may be submitted in writing and addressed to Mr. Michael Webb, Mail Stop O-7 D1, U.S. Nuclear Regulatory Commission, Washington, DC. 20555-0001, telephone (301) 415-1347 or e-mail mkw@nrc.gov.
Nuclear Regulatory Commission.
Notice of meeting.
The NRC will host a coordination meeting with key standards development organizations (SDOs) and other stakeholders. These meetings have been held approximately semi-annually as part of the NRC's commitment to utilize consensus standards to increase the involvement of licensees and others in the NRC's regulatory development process. This is consistent with the provisions of Public Law (P.L.) 104-113, the National Technology and Transfer Act of 1995, and Office of Management and Budget (OMB) Circular A-119, “Federal Participation in the Development and Use of Voluntary Consensus Standards and Conformity Assessment.” The primary purpose of these meetings is to foster better communication between SDOs and NRC regarding standards development and their use. This notice provides the date and agenda for the next meeting.
Among the topics to be discussed are: Standards for the use of graphite in high temperature reactors; Updating existing high temperature design and construction standards; Inspection standards and inspection frequencies for high temperature reactors; Flaw acceptance criteria and weld repair treatment; Status of on-going SDO efforts.
For the Nuclear Regulatory Commission,
Pursuant to section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The Exchange proposes to extend through April 15, 2002, the pilot rule interpretation relating to the trading of Nasdaq/NM securities in subpenny increments. The pilot is due to expire on January 14, 2002. The CHX does not propose to make any substantive or typographical changes to the pilot; the only change is an extension of the pilot's expiration date through April 15, 2002. The text of the proposal is available at the Commission and at the CHX.
In its filing with the Commission, the CHX included statements concerning the purpose of and basis for its proposal and discussed any comments it received regarding the proposal. The text of these statements may be examined at the places specified in Item IV below. The CHX has prepared summaries, set forth in Sections A, B and C below, of the most significant aspects of such statements.
On April 6, 2001, the Commission approved, on a pilot basis through July 9, 2001, a pilot rule interpretation (CHX Article XXX, Rule 2, Interpretation and Policy .06 “Trading in Nasdaq/NM Securities in Subpenny Increments”)
The CHX believes the proposal is consistent with the requirements of the Act and the rules and regulations thereunder that are applicable to a national securities exchange, and, in particular, with the requirements of Section 6(b).
The Exchange does not believe that the proposed rule change will impose any inappropriate burden on competition.
No written comments were either solicited or received.
Because the foregoing proposed rule change does not:
(i) Significantly affect the protection of investors or the public interest;
(ii) Impose any significant burden on competition; and
(iii) Become operative for 30 days from the date on which it was filed, or such shorter time as the Commission may designate, it has become effective pursuant to section 19(b)(3)(A) of the Act
The Exchange has requested that the Commission accelerate the operative date. The Commission finds good cause to designate the proposal both effective and operative upon filing with the Commission because such designation is consistent with the protection of investors and the public interest. Acceleration of the operative date will allow the pilot to continue uninterrupted through April 15, 2002, the deadline for which self-regulatory organizations must file proposed rule changes to set the minimum price variation for quoting in a decimals environment. For these reasons, the Commission finds good cause to designate that the proposal is both effective and operative upon filing with the Commission.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposal is consistent with the Act. Persons making written submissions should file six copies thereof with the Secretary, Securities and Exchange Commission, 450 Fifth Street, NW., Washington, DC 20549-0609. 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 CHX. All submissions should refer to file number SR-CHX-2002-02 and should be submitted by March 1, 2002.
On October 11, 2001, the Emerging Markets Corporation (“EMCC”) filed with the Securities and Exchange Commission (“Commission”) pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
The rule change addresses liability issues that may arise after the completion of the integration of EMCC, the Government Securities Clearing Corporation (“GSCC”), and the MBS Clearing Corporation (“MBSCC”) with The Depository Trust and Clearing Corporation (“DTCC”).
An important aspect of the integration plan is to insulate EMCC, its members, and its clearing fund from the risks and obligations that may arise from the activities of the other Synergy Companies.
Section 17A(b)(3)(F) of the Act
On the basis of the foregoing, the Commission finds that the proposal is consistent with the requirements of the Act and in particular with the requirements of section 17A of the Act and the rules and regulations thereunder.
For the Commission by the Division of Market Regulation, pursuant to delegated authority.
On October 11, 2001, the Government Securities Clearing Corporation (“GSCC”) filed with the Securities and Exchange Commission (“Commission”) pursuant to section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
The proposed rule change will amend GSCC's rules to reflect GSCC's new ownership and governance structure that will result from the integration of GSCC, MBS Clearing Corporation (“MBSCC”), and Emerging Markets Clearing Corporation (“EMCC”) with the Depository Trust & Clearing Corporation (“DTCC”) whereby GSCC. MBSCC, and EMCC will become operating subsidiaries of DTCC.
In order for GSCC to maintain orderly and efficient operations, GSCC will implement a three-tiered governance structure. The first tier will be the Board of Directors of GSCC that will be identical in composition to the Board of Directors of MBSCC, EMCC, DIT, NSCC, and DTCC. GSCC's business will be managed under the direction of the
The Commission finds that the proposed rule change is consistent with the requirements of the Act and the rules and regulations thereunder and particularly with the requirements of section 17A(b)(3)(A)
The Commission has previously found that GSCC's integration plan satisfies the requirement of section 17A(b)(3)(C)
GSCC has requested that the Commission find good cause for approving the proposed rule change prior to the thirtieth day after the date of publication of notice of filing. The Commission finds good cause for approving the proposed rule change prior to the thirtieth day after the date of publication of notice of filing because such approval will allow GSCC to implement changes to its governance structure in an efficient, orderly, and expeditious manner once its integrated into the DTCC organization.
On the basis of the foregoing, the Commission finds that the proposal is consistent with the requirements of the Act and in particular with the requirements of section 17A of the Act and the rules and regulations thereunder.
For the Commission by the Division of Market Regulation, pursuant to delegated authority.
On October 11, 2001, the MBS Clearing Corporation (“MBSCC”) filed with the Securities and Exchange Commission (“Commission”) pursuant section 19(b)(1) of the Securities Exchange Act of 1945 (“Act”)
The rule change addresses liability issues that may arise after the completion of integration of MBSCC, the Government Securities Clearing Corporation (“GSCC”), and the Emerging Markets Clearing Corporation (“EMCC”) with The Depository Trust and Clearing Corporation (“DTCC”).
An important aspect of the integration plan is to insulate MBSCC, its members, and its clearing fund from the risks and obligations that may arise from the activities of the other Synergy Companies.
Section 17A(b)(3)(F) of the Act
On the basis of the foregoing, the Commission finds that the proposal is consistent with the requirements of the Act and in particular with the requirements of section 17A of the Act and the rules and regulations thereunder.
For the Commission by the Division of Market Regulation, pursuant to delegated authority.
On October 11, 2001, the MBS Clearing Corporation (“MBSCC”) filed with the Securities and Exchange Commission (“Commission”) pursuant to section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
The proposed rule change will amend MBSCC's rules to reflect MBSCC's new ownership and governance structure that will result from the integration of MBSCC, the Government Securities Clearing Corporation (“GSCC”), and Emerging Markets Clearing Corporation (“EMCC”) with The Depository Trust & Clearing Corporation (“DTCC”) whereby MBSCC, GSCC, and EMCC will become operating subsidiaries of DTCC.
In order for MBSCC to maintain orderly and efficient operations, MBSCC will implement a three-tiered governance structure. The first tier will be the Board of Directors of MBSCC that will be identical in composition to the Board of Directors of GSCC, EMCC, DTC, NSCC, and DTCC. MBSCC's business will be managed under the direction of the MBSCC Board, which will set the basic policy direction for MBSCC. The second tier will consist of committees of or established by the MBSCC Board and committees of or established by the DTCC Board.
The Commission finds that the proposed rule change is consistent with the requirements of the Act and the rules and regulations thereunder and particularly with the requirements of section 17A(b)(3)(A)
The Commission has previously found that MBSCC's integration plan satisfies the requirement of Section 17A(b)(3)(C)
MBSCC has requested that the Commission find good cause for approving the proposed rule change prior to the thirtieth day after the date of publication of notice of filing. The Commission finds good cause for approving the proposed rule change prior to the thirtieth day after the date of publication of notice of filing because such approval will allow MBSCC to implement changes to its governance structure in an efficient, orderly, and expeditious manner once it is integrated into the DTCC organization.
On the basis of the foregoing, the Commission finds that the proposal is consistent with the requirements of the Act and in particular with the requirements of section 17A of the Act and the rules and regulations thereunder.
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 (“Exchange Act”) and Rule 19b-4 thereunder,
The MSRB has filed a proposed rule change consisting of an amendment to its rule G-15 on confirmation, clearance and settlement of transactions with customers and an amendment to its rule G-8 on books and records. The proposed rule change would require brokers, dealers and municipal securities dealers (collectively “dealers”) that safekeep municipal securities to retransmit official documents about municipal securities issues to their safekeeping clients under certain conditions.
The text of the proposed rule change follows.
(a) through (e) No change.
(f) *Reserved for future use*
(g)
(i)
(ii)
(a)
(A) through (K) No change.
In its filing with the Commission, the MSRB 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 MSRB has prepared summaries, set forth in Sections A, B, and C below, of the most significant aspects of such statements.
Certain parties, such as municipal issuers, may need to transmit an official document relating to an issue of municipal securities to the owners of the issue, the “beneficial owners.” In attempting to distribute such documents to beneficial owners, the party requesting official communications retransmission may send the documents to the holders registered with the transfer agent, or to a list of depository participants holding positions in the issue. Substantial numbers of municipal securities investors, however, do not hold positions via the records of the transfer agent or with a depository, but rather own the securities through a safekeeping agent such as a dealer. In this case, for the beneficial owners to receive the document, it is necessary for the party seeking to send such a document to ask the safekeeping agent to retransmit the document to its safekeeping clients who own the issue.
The proposed rule change includes an amendment to rule G-15 on confirmation, clearance and settlement of transactions with customers that, as described below, would require dealers who serve as safekeeping agents to undertake “reasonable efforts” to retransmit “official communications” to their safekeeping clients when requested to do so. That amendment also allows dealers in certain circumstances to send to the party requesting an official communication retransmission a list of beneficial owners who do not object to the disclosure of their name, contact information and security positions (“non-objecting beneficial owners”) in lieu of retransmitting documents. The proposed rule change also includes an amendment to rule G-8 on books and records to be made by brokers, dealers and municipal securities dealers that would require dealers to retain as an official record a customer's written authorization, if any, as to the customer's status as a non-objecting beneficial owner.
The MSRB realizes that some dealers today retransmit documents to their customers voluntarily, or under specific terms of their safekeeping agreements, and in many cases do so without compensation from the party requesting retransmission. It is not the intent of the proposed rule change to discourage retransmissions of official communications in these cases. Rather, the purpose of the proposed rule change is to help ensure that parties needing to transmit official communications to beneficial owners would be able to depend on dealers undertaking reasonable efforts, under the explicit terms of the rule G-15 amendment, to retransmit such official communications to the parties for whom those dealers safekeep municipal securities.
(a) Official Communications
The proposed rule change defines an “official communication” as a document or collection of documents addressed to beneficial owners that was prepared or authorized by an issuer of municipal securities, a trustee for an issue of municipal securities, a state or federal tax authority or a custody agent for a stripped coupon municipal securities program in its capacity as custody agent. These official communications may include notices of technical default or default as to payment of interest or principal, requests for votes by bondholders, update memoranda from the trustee of a defaulted issue, as well as other official communications to owners of municipal securities that are not in default.
(b) Reasonable Efforts.
The rule G-15 amendment addresses six topics to help clarify what would constitute “reasonable efforts” to be made by a dealer in retransmitting an official communication in specific situations. These provisions are discussed below.
The rule G-15 amendment also includes a “compensation threshold.” It states that, for retransmission where the total compensation sought will be less than $500, the dealer should begin retransmitting immediately and ask for the calculated compensation concurrently. For retransmission where compensation sought will be greater than $500, the dealer either follows the general rule, or may instead promptly contact the party offering compensation, inform it of the amount of compensation required, obtain specific agreement on the amount of compensation and wait for receipt of such compensation prior to proceeding with the retransmission.
The MSRB believes the proposed rule change is consistent with section 15B(b)(2)(C) of the Exchange Act, which provides that the MSRB's rules:
* * * be designed to prevent fraudulent and manipulative acts and practices, to promote just and equitable principals of trade * * * and to protect investors and the public interest . * * *
The MSRB does not believe that the proposed rule change will impose any burden on competition not necessary or appropriate in furtherance of the purposes of the Exchange Act since it applies equally to all dealers in municipal securities.
On March 28, 2001, the MSRB published a notice seeking comment on an exposure draft of the proposed rule change (“March 2001 draft amendment”)
• The March 2001 draft amendment did not include within the definition of “official communication': (i) A state or federal tax authority sending an official communication to beneficial owners; or (ii) a custody agent forwarding official communications to the owners of custodial receipts.
• The March 2001 draft amendment did not specify that dealers should send official communications to investment advisors when a dealer has on file a written authorization for such documents to be sent to the investment advisor in lieu of the beneficial owner.
• The March 2001 draft amendment stated that, if the total compensation would be greater than $500, then the dealer
The MSRB received comments on the March 2001 draft amendment from the following five commentators: American Bankers Association (“ABA”); Association for Investment Management and Research (“AIMR”); Bankers Trust; Regional Municipal Operations Association (“RMOA”); and The Bond Market Association (“TBMA”).
A majority of the commentators offered general support for the March 2001 draft amendment. The TBMA “fully supports the laudable goal of the Board in promoting timely communications and increased information to bondholders.” The AIMR stated “the types of information included within the definition of official communications are just the types of material information that investors need in order to manage their accounts in an informed and responsible manner.” The RMOA stated that the municipal securities “industry has the infrastructure in place to support this initiative.”
One commentator, the ABA, expressed dissatisfaction with the language of March 2001 draft amendment in that it referred specifically to corporate trustees in the compensation section. The ABA, which represents corporate trustees, was particularly concerned that the language of the March 2001 draft amendment left an impression that the MSRB may take the position that trustees are legally responsible for sending documents and compensating dealers for retransmission of those documents. It was not the intent of the MSRB to opine on this issue; thus technical changes were made in the language of the proposed rule change to delete the specific reference to trustees.
Even under the best of circumstances, an official communication may take a week or more to reach beneficial owners. Bankers Trust stated its concern over potential delays in the timing of dissemination of documents under the procedure outlined in the March 2001 draft amendment. The MSRB notes, however, that the proposed rule change is not intended to be a mechanism for dissemination of time-critical material information to market participants, but rather addresses the problem of how the specific owners of an issue can be identified and communicated with, for example, under the terms of a trust indenture when a vote of securities holders is being held. The MSRB believes it is important to acknowledge that retransmitting paper documents through a chain of nominees and other custodians cannot possibly provide information to beneficial owners as quickly as the information in those documents will reach the market from other sources such as information vendors, NRMSIRs, the issuer's web site, etc. The MSRB believes that if each nominee acts promptly when it is its turn to act, official communications normally should reach beneficial owners in a week or two and this normally will be sufficient time for a vote of bondholders or other purposes that require the issuer (or trustee if it chooses to do so) to communicate directly with bondholders.
The MSRB decided to change the compensation threshold so that it would be an optional course of action for the dealer rather than a requirement. The revised compensation provision would permit those dealers who would like to retransmit official communications as promptly as possible, even without assurance that compensation will be provided, to do so without having to wait for receipt of agreement or funds from the party offering compensation. However, for dealers that wish to be assured that compensation would be provided on retransmissions costing in excess of $500, the option is left for the dealer to seek specific agreement with the party offering compensation and to receive funds prior to retransmitting documents.
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 forgoing, including whether the rule proposal change is consistent with the Exchange 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 submissions, 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 MSRB's principal offices. All submissions should refer to File No. SR-MSRB-2001-08 and should be submitted by March 1, 2002.
Penobscot County and the contiguous counties of Aroostook, Hancock, Piscataquis, Somerset, Waldo and Washington in the State of Maine constitute an economic injury disaster loan area as a result of fires that occurred on January 17 and 20, 2002. Eligible small businesses and small agricultural cooperatives without credit available elsewhere may file applications for economic injury assistance until the close of business on October 31, 2002 at the address listed below or other locally announced locations: U.S. Small Business Administration, Disaster Area 1 Office, 360 Rainbow Blvd, South 3rd Floor, Niagara Falls, NY 14303.
The interest rate for eligible small businesses and small agricultural cooperatives is 3.5 percent.
The number assigned for economic injury for this disaster is 9O4100 for Maine.
The U.S. Small Business Administration Wisconsin District Advisory Council will hold a public
Anyone wishing to make an oral presentation to the Board must contact Yolanda Staples-Lassiter, in writing by letter of fax no later than February 14, 2002 in order to be included on the agenda. Ms. Lassister can be contacted at (414) 297-1090 phone, (414) 297-3941 fax. For further information, please write or call Yolanda Staples-Lassiter, U. S. Small Business Administration, 310 West Wisconsin Ave, suite 400, Milwaukee, Wisconsin 53202, Telephone number (414) 297-1090.
Notice.
The Department of State is seeking Office of Management and Budget (OMB) approval for the information collection described below. The purpose of this notice is to allow 60 days for public comment in the
The following summarizes the information collection proposal to be submitted to OMB:
Public comments are being solicited to permit the agency to:
• Evaluate whether the proposed information collection is necessary for the proper performance of the functions of the agency.
• Evaluate the accuracy of the agency's estimate of the burden of the proposed collection, including the validity of the methodology and assumptions used.
• Enhance the quality, utility, and clarity of the information to be collected.
• Minimize the reporting burden on those who are to respond, including through the use of automated collection techniques or other forms of technology.
Public comments, or requests for additional information, regarding the collection listed in this notice should be directed to Keith D. Miller, Office of Overseas Schools, U.S. Department of State, Washington, DC 20520. He may be reached at 202-261-8200.
United States Department of State.
Notice.
Notice is hereby given of the following determinations: Pursuant to the authority vested in me by the Act of October 19, 1965 [79 Stat. 985; 22 U.S.C. 2459], Executive Order 12047 of March 27, 1978, the Foreign Affairs Reform and Restructuring Act of 1998 [112 Stat. 2681,
For further information, including a list of exhibit objects, contact Paul W. Manning, Attorney-Adviser, Office of the Legal Adviser, 202/619-5997, and the address is United States Department of State, SA-44, Room 700, 301 4th Street, SW, Washington, DC 20547-0001.
Coast Guard, DOT.
Request for comments.
In compliance with the Paperwork Reduction Act of 1995, the Coast Guard intends to seek the approval of OMB for the renewal of one Information Collection Request (ICR). The ICR concerns the Operational Measures to Reduce Oil Spills from Existing Tank Vessels Without Double Hulls. Before submitting the ICR to OMB, the Coast Guard is requesting comments on it.
Comments must reach the Coast Guard on or before April 9, 2002.
To make sure that your comments and related material do not enter the docket [USCG 2002-11422] more than once, please submit them by only one of the following means:
(1) By mail to the Docket Management Facility, U.S. Department of Transportation, room PL-401, 400 Seventh Street SW., Washington, DC 20590-0001. Caution: Because of recent delays in the delivery of mail, your comments may reach the Facility more quickly if you choose one of the other means described below.
(2) By delivery to room PL-401 on the Plaza level of the Nassif Building, 400 Seventh Street SW., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.
(3) By fax to the Docket Management Facility at 202-493-2251.
(4) Electronically through the Web Site for the Docket Management System at
The Docket Management Facility maintains the public docket for this notice. Comments and material received from the public, as well as documents mentioned in this notice as being available in the docket, will become part of this docket and will be available for inspection or copying at room PL-401 on the Plaza level of the Nassif Building, 400 Seventh Street SW., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. You may also find this docket on the Internet at
Copies of the complete ICR are available through this docket on the Internet at
Barbara Davis, Office of Information Management, 202-267-2326, for questions on this document; or Dorothy Beard, Chief, Documentary Services Division, U.S. Department of Transportation, 202-366-5149, for questions on the docket.
The Coast Guard encourages interested persons to submit comments. Persons submitting comments should include their names and addresses, identify this document [USCG 2002-11422], and give the reasons for the comments. Please submit all comments and attachments in an unbound format no larger than 8
1.
Coast Guard, DOT.
Notice of meeting.
The Subcommittee of the Chemical Transportation Advisory Committee (CTAC) on Vessel Cargo Tank Overpressurization will meet to continue their work on their Subcommittee Task Statement. The Subcommittee will meet to continue developing recommendations for CTAC in an effort to prevent cargo tank overpressurization during inerting, padding, purging, line clearing, and railcar transfer operations. This meeting will be open to the public.
The Subcommittee will meet on Wednesday, February 20, 2002, from 9 a.m. to 3:30 p.m. This meeting may close early if all business is finished. Written material and requests to make oral presentations should reach the Coast Guard on or before February 15, 2002. Requests to have a copy of your material distributed to each member of the Subcommittee should reach the Coast Guard on or before February 15, 2002.
The Subcommittee will meet at Stolt-Nielsen Transportation Group Ltd., 15635 Jacintoport Blvd., Houston, Texas. Send written material and requests to make oral presentations to Lieutenant Michael McKean, Coast Guard Technical Representative for the Subcommittee, Commandant (G-MSO-3), U.S. Coast Guard Headquarters, 2100 Second Street SW., Washington, DC 20593-0001.
Lieutenant Michael McKean, the Coast Guard Technical Representative for the Subcommittee, telephone 202-267-0087, fax 202-267-4570.
Notice of this meeting is given under the Federal Advisory Committee Act, 5 U.S.C. App. 2.
The agenda of the CTAC Subcommittee on Vessel Cargo Tank Overpressurization includes the following:
(1) Introduction of Subcommittee members and attendees.
(2) Brief review of Subcommittee tasking and desired outcome.
(3) Continue risk analysis of applicable marine operations using the CTAC Prevention Through People (PTP) Subcommittee draft Marine Operations Risk Assessment Guide.
(4) Continue work to complete long-term task.
This meeting is open to the public. Please note that the meeting may close early if all business is finished. All attendees at the meeting are encouraged to fully review the Subcommittee's past work prior to the meeting. Copies of the Subcommittee's past work can be obtained from Lieutenant Michael McKean, telephone 202-267-0087, fax 202-267-4570. Information is also available from the CTAC Internet Web site at:
For information on facilities or services for individuals with disabilities, or to request special assistance at the meeting, contact the Coast Guard Technical Representative for the Subcommittee as soon as possible.
Federal Aviation Administration (FAA), DOT.
Notice of request to release airport property.
The FAA proposes to rule and invites public comment on the release of land at DeQuincy Industrial Airport under the provisions of Section 125 of the Wendell H. Ford Aviation Investment Reform Act for the 21st Century (AIR 21)
Comments must be received on or before March 11, 2002.
Comments on this application may be mailed or delivered to the FAA at the following address: Mr. Lacey D. Spriggs, Federal Aviation Administration, Southwest Region, Airports Division, Manager, LA/NM Airports Development Office, ASW-640, Fort Worth, Texas 76193-0640.
In addition, one copy of any comments submitted to the FAA must be mailed or delivered to Mr. Ray Hyatt, Airport Manager at the following address: P.O. Box 968, DeQuincy, LA 70633.
Mr. Michael J. Saupp, Program Manager, Federal Aviation Administration, LA/NM ADO, ASW-640, 2601 Meacham Blvd. Fort Worth, Texas 76193-0640.
The request to release property may be reviewed in person at this same location.
The FAA invites public comment on the request to release property at the DeQuincy Industrial Airport under the provisions of the AIR 21.
On January 22, 2002, property at DeQuincy Industrial Airpark submitted by the City met the procedural requirements of the Federal Aviation Order 5190.6A, Compliance Handbook an may approve the request, in whole or in part, no later than August 15, 2000.
The following is a brief overview of the request: The city of DeQuincy requests the release of 2.0432 acres of airport property. The release of property will allow for use of a larger tract of land being sold in an industrial tract adjoining the Airpark to proceed. The sale is estimated to provide $4,000 for airport improvements by the city of DeQuincy.
Any person may inspect the request in person at he FAA office listed above under
In addition, any person may, upon request, inspect the application, notice and other documents germane to the application in person at the Office of the Mayor, DeQuincy, Louisiana.
Research and Special Programs Administration, DOT.
List of applications delayed more than 180 days.
In accordance with the requirements of 49 U.S.C. 5117(c), RSPA is publishing the following list of exemption applications that have been in process for 180 days or more. The reason(s) for delay and the expected completion date for action on each application is provided in association with each identified application.
J. Suzanne Hedgepeth, Director, Office of Hazardous Materials, Exemptions and Approvals, Research and Special Programs Administration, U.S. Department of Transportation, 400 Seventh Street, SW., Washington, DC 20590-0001, (202) 366-4535.
1. Awaiting additional information from applicant.
2. Extensive public comment under review.
3. Application is technically complex and is of significant impact or precedent-setting and requires extensive analysis.
4. Staff review delayed by other priority issues or volume of exemption applications.
• is necessary to support U.S. efforts to counter international terrorism;
• is necessary to support the operational readiness of U.S. Armed Forces or coalition partners to counter international terrorism;
• is important to Azerbaijan's border security; and
• will not undermine or hamper ongoing efforts to negotiate a peaceful settlement between Armenia and Azerbaijan or be used for offensive purposes against Armenia.
1) progress toward democratization in Burma;
2) progress on improving the quality of life of the Burmese people, including progress on market reforms, living standards, labor standards, use of forced labor in the tourism industry, and environmental quality; and
3) progress made in developing a comprehensive, multilateral strategy to bring democracy to and improve human rights practices and the quality of life in Burma, including the development of a dialogue between the State Peace and Development Council and democratic opposition groups in Burma.
In rule document 02-157 beginning on page 520 in the issue of Friday, January 4, 2002, make the following correction:
On page 524, in § 1.497(c), in the third column, eighth line, “date” should read, “data”.
Office of the Assistant Secretary for Community Planning and Development, HUD.
Notice.
This Notice identifies unutilized, underutilized, excess, and surplus Federal property reviewed by HUD for suitability for possible use to assist the homeless.
Mark Johnston, room 7266, Department of Housing and Urban Development, 451 Seventh Street SW., Washington, DC 20410; telephone (202) 708-1234; TTY number for the hearing- and speech-impaired (202) 708-2565 (these telephone numbers are not toll-free), or call the toll-free Title V information line at 1-800-927-7588.
In accordance with 24 CFR part 581 and section 501 of the Stewart B. McKinney Homeless Assistance Act (42 U.S.C. 11411), as amended, HUD is publishing this Notice to identify Federal buildings and other real property that HUD has reviewed for suitability for use to assist the homeless. The properties were reviewed using information provided to HUD by Federal landholding agencies regarding unutilized and underutilized buildings and real property controlled by such agencies or by GSA regarding its inventory of excess or surplus Federal property. This Notice is also published in order to comply with the December 12, 1988 Court Order in
Properties reviewed are listed in this Notice according to the following categories: Suitable/available, suitable/unavailable, suitable/to be excess, and unsuitable. The properties listed in the three suitable categories have been reviewed by the landholding agencies, and each agency has transmitted to HUD: (1) Its intention to make the property available for use to assist the homeless, (2) its intention to declare the property excess to the agency's needs, or (3) a statement of the reasons that the property cannot be declared excess or made available for use as facilities to assist the homeless.
Properties listed as suitable/available will be available exclusively for homeless use for a period of 60 days from the date of this Notice. Where property is described as for “off-site use only” recipients of the property will be required to relocate the building to their own site at their own expense. Homeless assistance providers interested in any such property should send a written expression of interest to HHS, addressed to Brian Rooney, Division of Property Management, Program Support Center, HHS, room 5B-41, 5600 Fishers Lane, Rockville, MD 20857; (301) 443-2265. (This is not a toll-free number.) HHS will mail to the interested provider an application packet, which will include instructions for completing the application. In order to maximize the opportunity to utilize a suitable property, providers should submit their written expressions of interest as soon as possible. For complete details concerning the processing of applications, the reader is encouraged to refer to the interim rule governing this program, 24 CFR part 581.
For properties listed as suitable/to be excess, that property may, if subsequently accepted as excess by GSA, be made available for use by the homeless in accordance with applicable law, subject to screening for other Federal use. At the appropriate time, HUD will publish the property in a Notice showing it as either suitable/available or suitable/unavailable.
For properties listed as suitable/unavailable, the landholding agency has decided that the property cannot be declared excess or made available for use to assist the homeless, and the property will not be available.
Properties listed as unsuitable will not be made available for any other purpose for 20 days from the date of this Notice. Homeless assistance providers interested in a review by HUD of the determination of unsuitability should call the toll free information line at 1-800-927-7588 for detailed instructions or write a letter to Mark Johnston at the address listed at the beginning of this Notice. Included in the request for review should be the property address (including zip code), the date of publication in the
For more information regarding particular properties identified in this Notice (
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) 2001-04. 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 2001-04 and specific FAR case number(s). Interested parties may also visit our website at
Summaries for each FAR rule follow. For the actual revisions and/or amendments to these FAR cases, refer to the specific item number and subject set forth in the documents following these item summaries.
FAC 2001-04 amends the FAR as specified below:
This final rule amends the FAR to clarify definitions that are used for classified procurements. The final rule—
• Moves the definitions of “classified acquisition,” “classified contract,” and “classified information” from FAR 4.401 to FAR 2.101, because the definitions apply to more than one FAR part;
• Amends those definitions for clarity;
• Amends the definition of “classified information” to reflect classification of privately generated restricted data in accordance with Department of Energy regulations; and
• Amends the policy regarding bid openings for classified acquisitions at FAR 14.402-2 for clarity.
This rule amends FAR Subpart 13.5 to implement Section 823 of the National Defense Authorization Act for Fiscal Year 2002 (Pub. L. 107-107). Section 823 amends Section 4202(e) of the Clinger-Cohen Act of 1996 (Divisions D and E of Pub. L. 104-106; 110 Stat. 654; 10 U.S.C. 2304 note) to extend, through January 1, 2003, the expiration of the test of special simplified procedures for purchases of commercial items greater than the simplified acquisition threshold, but not exceeding $5,000,000.
This final rule amends Table 15-2, Instructions for Submitting Cost/Price Proposals When Cost or Pricing Data are Required, located at FAR 15.4, Contract pricing. The rule removes the requirement for a contractor to notify the contracting officer when there is a noncompliance that has an immaterial cost impact. The rule affects contracting officers that require cost or pricing data on cost accounting standard-covered contracts.
The interim rule published in the
This interim rule amends FAR 25.003, 25.400, 25.404, and the clause at 52.225-5, Trade Agreements, to implement the determination of the United States Trade Representative (USTR) to renew the treatment of Caribbean Basin country end products as eligible products under the Trade Agreements Act (TAA), with the exception of end products from the Dominican Republic, Honduras, and Panama. This rule applies only if an acquisition is subject to the TAA (see FAR 25.403). The Dominican Republic and Honduras were already removed from the definition of Caribbean Basin countries in FAC 97-17, FAR case 2000-003, published in the
This interim rule also amends the definition of “Caribbean Basin country end product” at FAR 25.003 and in the clause at 52.225-5, Trade Agreements, to implement Section 211 of the United States—Caribbean Basin Trade Partnership Act and the determinations of the USTR as to which countries qualify for the enhanced trade benefits under that Act. Offerors of end products from the Caribbean Basin must understand the revised definition in order to certify whether the products that they are offering qualify as Caribbean Basin country end products. The definition of “Caribbean Basin country end product” excludes products that do not qualify for duty-free treatment. Information provided in this rule helps offerors determine the duty-free status of a product by review of the Harmonized Tariff Schedule of the United States.
This final rule amends FAR 42.705, Final indirect cost rates, and FAR 52.216-7, Allowable Cost and Payment, to explicitly state the right of the contracting officer to unilaterally determine the final contract payment amount when the contractor does not submit the final invoice or voucher within the time specified in the contract. The rule is applicable to contracting officers that administer contract closeout procedures.
These amendments update sections and make editorial changes at sections 3.807, 9.203, 12.301, 13.301, 14.205-2, 14.409-1, 15.404-4, 31.002, 31.205-17, 36.606, 42.705-1, 46.202-4, 51.101, 52.212-3, 52.213-4, 52.219-21, and 52.222-44.
Federal Acquisition Circular (FAC) 2001-04 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 2001-04 is effective February 20, 2002.
Department of Defense (DoD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA).
Final rule.
The Civilian Agency Acquisition Council and the Defense Acquisition Regulations Council (Councils) have agreed to amend the Federal Acquisition Regulation (FAR) to provide consistent definitions for classified acquisitions.
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. Ralph DeStefano, Procurement Analyst, at (202) 501-1758. Please cite FAC 2001-04, FAR case 2000-404.
This rule amends the FAR to address perceived inconsistencies in definitions that are used for classified acquisitions. The rule moves the definitions of “classified acquisition,” “classified contract,” and “classified information” from FAR 4.401 to FAR 2.101, because the definitions apply to more than one FAR part. Those definitions also have been amended for clarity. The definition of “classified information” has been further amended to reflect classification of privately generated restricted data in accordance with Department of Energy regulations at 10 CFR 1045.21. The rule also amends the policy regarding bid openings for classified acquisitions at FAR 14.402-2 for clarity.
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.
Therefore, DoD, GSA, and NASA amend 48 CFR parts 2, 4, 14, and 32 as set forth below:
40 U.S.C. 486(c); 10 U.S.C. chapter 137; and 42 U.S.C. 2473(c).
(1)(i) Is owned by, is produced by or for, or is under the control of the United States Government; or
(ii) Has been classified by the Department of Energy as privately generated restricted data following the procedures in 10 CFR 1045.21; and
(2) Must be protected against unauthorized disclosure according to Executive Order 12958, Classified National Security Information, April 17, 1995, or classified in accordance with the Atomic Energy Act of 1954.
The general public may not attend bid openings for classified acquisitions. A bidder or its representative may attend and record the results if the individual has the appropriate security clearance. The contracting officer also may make the bids available at a later time to properly cleared individuals who represent bidders. No public record shall be made of bids or bid prices received in response to classified invitations for bids.
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 Section 823 of the National Defense Authorization Act for Fiscal Year 2000 (Pub. L. 107-107). Section 823 extends the test of the special simplified procedures for purchases of commercial items greater than the simplified acquisition threshold, but not exceeding $5,000,000, until January 1, 2003.
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 2001-04, FAR case 2002-002.
This final rule amends FAR Subpart 13.5 to implement section 823 of the National Defense Authorization Act for Fiscal Year 2002 (Pub. L. 107-107). Section 823 amends section 4202(e) of the Clinger-Cohen Act of 1996 (Divisions D and E of Pub. L. 104-106; 110 Stat. 654; 10 U.S.C. 2304 note) to extend, through January 1, 2003, the expiration of the test of special simplified procedures for purchases of commercial items greater than the simplified acquisition threshold, but not exceeding $5,000,000.
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.
This final rule does not constitute a significant FAR revision within the meaning of FAR 1.501 and Public Law 98-577, and publication for public comments is not required. However, the Councils will consider comments from small entities concerning the affected FAR Subpart 13.5 in accordance with 5 U.S.C. 610. Interested parties must submit such comments separately and should cite 5 U.S.C. 601,
The Paperwork Reduction Act does not apply because the changes to the FAR do not impose information collection requirements that require the approval of the Office of Management and Budget under 44 U.S.C. 3501,
Government procurement.
Therefore, DoD, GSA, and NASA amend 48 CFR part 13 as set forth below:
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).
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 remove the requirement for a contractor to notify the contracting officer when there is a cost accounting standard (CAS) noncompliance that has an immaterial cost impact.
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 2001-04, FAR case 2001-013.
Contracting officers may require submission of cost or pricing data in the format indicated in Table 15-2, Instructions for Submitting Cost/Price Proposals When Cost or Pricing Data are Required, which is included in FAR 15.408, Solicitation provisions and contract clauses. This Table requires contractors to state whether they have been notified that they are or may be in noncompliance with the CAS. When there is a noncompliance and the cognizant Federal agency official determines the noncompliance has an immaterial cost impact, it is not necessary for the contractor to notify the contracting officer because the noncompliance will not impact the contract price. If the noncompliance is not corrected and it subsequently results in materially increased costs to the Government, the provisions of the applicable CAS clauses will continue to be enforced. Since the notification requirement is an inefficient use of resources and may cause an unnecessary delay, this rule deletes it.
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.
This final rule does not constitute a significant FAR revision within the meaning of FAR 1.501 and Public Law 98-577, and publication for public comments is not required.
However, the Councils will consider comments from small entities concerning the affected FAR Part 15 in accordance with 5 U.S.C. 610. Interested parties must submit such comments separately and should cite 5 U.S.C. 601,
The Paperwork Reduction Act does not apply because the changes to the FAR do not impose information collection requirements that require the approval of the Office of Management and Budget under 44 U.S.C. 3501,
Government procurement.
Therefore, DoD, GSA, and NASA amend 48 CFR part 15 as set forth below:
40 U.S.C. 486(c); 10 U.S.C. chapter 137; and 42 U.S.C. 2473(c).
A. * * *
(8) Whether your organization is subject to cost accounting standards; whether your organization has submitted a CASB Disclosure Statement, and if it has been determined adequate; whether you have been notified that you are or may be in noncompliance with your Disclosure Statement or CAS (other than a noncompliance that the cognizant Federal agency official has determined to have an immaterial cost impact), and, if yes, an explanation; whether any aspect of this proposal is inconsistent with your disclosed practices or applicable CAS, and, if so, an explanation; and whether the proposal is consistent with your established estimating and accounting principles and procedures and FAR Part 31, Cost Principles, and, if not, an explanation;
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 Executive Order (E.O.) 13204, Revocation of Executive Order on Nondisplacement of Qualified Workers Under Certain Contracts, signed by the President on February 17, 2001. The E.O. requires that any rules implementing E.O. 12933, Nondisplacement of Qualified Workers Under Certain Contracts, be promptly rescinded.
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 2001-04, FAR case 2001-017.
This final rule amends the FAR to implement Executive Order (E.O.) 13204, Revocation of Executive Order on Nondisplacement of Qualified Workers Under Certain Contracts. The E.O. required the prompt recession of any orders, rules, regulations, guidelines, or policies implementing or enforcing E.O. 12933, Nondisplacement of Qualified Workers Under Certain Contracts, to the extent consistent with law.
DoD, GSA, and NASA published an interim 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).
Department of Defense (DoD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA).
Interim rule with request for comments.
The Civilian Agency Acquisition Council and the Defense Acquisition Regulations Council (Councils) have agreed on an interim rule amending the Federal Acquisition Regulation (FAR) to implement the determination of the United States Trade Representative (USTR) to extend the treatment of certain end products, from countries designated by the President as beneficiaries under the Caribbean Basin Economic Recovery Act, as eligible products under the Trade Agreements Act, with the exception of end products from the Dominican Republic, Honduras, and Panama. This rule also implements Section 211 of the United States—Caribbean Basin Trade Partnership Act and the determination of the USTR as to which countries qualify for the enhanced trade benefits under that Act.
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 2001-04, FAR case 2000-306, in all correspondence related to this case.
The FAR Secretariat, Room 4035, GS Building, Washington, DC 20405, (202) 501-4755, for information pertaining to
The USTR published a notice in the
This interim rule also amends the FAR to implement Section 211 of the United States—Caribbean Basin Trade Partnership Act (Title II of Pub. L. 106-200) and the determinations of the USTR under that Act. To date, the USTR has published determinations 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 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, the Administrator of General Services, and the Administrator of the National Aeronautics and Space Administration that urgent and compelling reasons exist to promulgate this interim rule without prior opportunity for public comment. This action is necessary because the determination of the USTR to provide enhanced benefits to the products of certain countries under the Caribbean Basin Trade Partnership Act became effective on October 2, 2000, and because the USTR reinstated the expired Caribbean Basin program on December 14, 2001, effective immediately. However, pursuant to Public Law 98-577 and FAR 1.501, the Councils will consider public comments received in response to this interim rule in the formation of the final rule.
Government procurement.
Therefore, DoD, GSA, and NASA amend 48 CFR parts 25 and 52 as set forth below:
40 U.S.C. 486(c); 10 U.S.C. chapter 137; and 42 U.S.C. 2473(c).
(1) Means an article that—
(i)(A) Is wholly the growth, product, or manufacture of a Caribbean Basin country; or
(B) In the case of an article that consists in whole or in part of materials from another country, has been substantially transformed in a Caribbean Basin country into a new and different article of commerce with a name, character, or use distinct from that of the article or articles from which it was transformed; and
(ii) Is not excluded from duty-free treatment for Caribbean countries under 19 U.S.C. 2703(b).
(A) For this reason, the following articles are not Caribbean Basin country end products:
(
(
(
(
(B) Access to the HTSUS to determine duty-free status of articles of the types listed in paragraph (1)(ii)(A)(
(
(
(
(
(2) Refers to a product offered for purchase under a supply contract, but for purposes of calculating the value of the acquisition, includes services (except transportation services) incidental to the article, provided that the value of those incidental services does not exceed that of the article itself.
4. Amend section 25.404 by removing the second and third sentences.
a. Removing “Panama,” from the definition “Caribbean Basin country”; and
b. Revising the definition “Caribbean Basin country end product” to read as follows:
(a) * * *
(1) Means an article that—
(i)(A) Is wholly the growth, product, or manufacture of a Caribbean Basin country; or
(B) In the case of an article that consists in whole or in part of materials from another country, has been substantially transformed in a Caribbean Basin country into a new and different article of commerce with a name, character, or use distinct from that of the article or articles from which it was transformed; and
(ii) Is not excluded from duty-free treatment for Caribbean countries under 19 U.S.C. 2703(b).
(A) For this reason, the following articles are not Caribbean Basin country end products:
(
(
(
(
(B) Access to the HTSUS to determine duty-free status of articles of these types is available at http://www.customs.ustreas.gov/impoexpo/impoexpo.htm. In particular, see the following:
(
(
(
(
(2) Refers to a product offered for purchase under a supply contract, but for purposes of calculating the value of the acquisition, includes services (except transportation services) incidental to the article, provided that the value of those incidental services does not exceed that of the article itself.
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 explicitly state the right of the contracting officer to unilaterally determine the final contract payment amount when the contractor does not submit the final invoice or voucher within the time specified in the contract.
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 Klein, Procurement Analyst, at (202) 501-3775. Please cite FAC 2001-04, FAR case 1999-026.
DoD, GSA, and NASA published a proposed rule in the
• Explicitly state that the contracting officer may issue a unilateral modification that reflects the contracting officer's determination of the amounts due to the contractor under the contract. The contracting officer may make this determination if the contractor fails to submit a completion invoice or voucher within the time specified (normally 120 days after settlement of the final indirect cost rates but may be longer, if approved in writing by the contracting officer); and
• Make the contracting officer's determination not subject to appeal under the Disputes clause of the contract.
Thirteen respondents submitted public comments to the proposed rule. The Councils considered all comments when developing the final rule, which was modified as a result. The following issues merit noting:
1. Almost half of the respondents questioned the language in paragraphs 42.705(c)(2) and 52.216-7(d)(6)(ii) of the proposed rule that stated that the contracting officer's decision would not be subject to appeal under the Disputes clause. The Councils agreed that precluding the right to appeal is not equitable and may result in inaccurate financial payment decisions. The rule has been revised by making the contracting officer's decision final and
2. Several respondents disagreed with the conclusion that contractor failure to submit a final voucher is the leading reason contract closeouts are not accomplished in a timely manner. The Councils agreed that there are many causes for delays in contract closeout and that it would be helpful to list examples of circumstances a contracting officer should consider in deciding whether or not to extend the time for submission of a final voucher or to issue a final decision regarding final payment. The rule has been revised at 42.705(b) by providing examples of extenuating circumstances that may justify the contracting officer's extension of the 120-day due date for submission of a completion invoice or voucher.
3. Several respondents indicated that the rule should define when settlement of final indirect rates takes place. The Councils did not concur since the actual date of settlement depends on the circumstances of the negotiation. Establishing a universal definition of settlement date is unnecessary and would reduce the flexibility of both contractors and contracting officers.
4. One respondent stated that the rule should include a provision requiring the contracting officer to provide written notice to the contractor and to provide an opportunity to respond before the issuance of a unilateral determination of amounts due. The Councils did not agree. The requirement to submit a timely final invoice is already stated in FAR 52.216-7, Allowable Cost and Payment. Therefore, the contractor is already responsible for complying with this requirement or communicating with the contracting officer if the requirement cannot be met. It is unnecessary to repeat contract requirements in separate notices.
5. Several respondents requested that the rule explicitly preclude the application of the proposed revised closeout procedures to existing contracts. The Councils did not concur. Contracting officers already have the authority to determine final voucher payment amounts and issue final decisions. While the new language in this rule makes that authority explicit, it does not, and should not, impact the contracting officer's authority under existing contracts.
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.
Therefore, DoD, GSA, and NASA amend 48 CFR parts 42 and 52 as set forth below:
40 U.S.C. 486(c); 10 U.S.C. chapter 137; and 42 U.S.C. 2473(c).
(b) Within 120 days (or longer period, if approved in writing by the contracting officer,) after settlement of the final annual indirect cost rates for all years of a physically complete contract, the contractor must submit a completion invoice or voucher reflecting the settled amounts and rates. To determine whether a period longer than 120 days is appropriate, the contracting officer should consider whether there are extenuating circumstances, such as the following:
(1) Pending closeout of subcontracts awaiting Government audit.
(2) Pending contractor, subcontractor, or Government claims.
(3) Delays in the disposition of Government property.
(4) Delays in contract reconciliation.
(5) Any other pertinent factors.
(c)(1) If the contractor fails to submit a completion invoice or voucher within the time specified in paragraph (b) of this section, the contracting officer may—
(i) Determine the amounts due to the contractor under the contract; and
(ii) Record this determination in a unilateral modification to the contract.
(2) This contracting officer determination must be issued as a final decision in accordance with 33.211.
(d) * * *
(5) Within 120 days (or longer period if approved in writing by the Contracting Officer) after settlement of the final annual indirect cost rates for all years of a physically complete contract, the Contractor shall submit a completion invoice or voucher to reflect the settled amounts and rates.
(6)(i) If the Contractor fails to submit a completion invoice or voucher within the time specified in paragraph (d)(5) of this clause, the Contracting Officer may—
(A) Determine the amounts due to the Contractor under the contract; and
(B) Record this determination in a unilateral modification to the contract.
(ii) This determination constitutes the final decision of the Contracting Officer in accordance with the Disputes clause.
Department of Defense (DoD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA).
Final rule.
This document makes amendments to the Federal Acquisition Regulation in order to update references and make editorial changes.
The FAR Secretariat, Room 4035, GS Building, Washington, DC 20405, (202) 501-4755. Please cite FAC 2001-04, Technical Amendments.
Government procurement.
Therefore, DoD, GSA, and NASA amend 48 CFR parts 3, 9, 12, 13, 14, 15, 31, 36, 42, 46, 51, and 52 as set forth below:
40 U.S.C. 486(c); 10 U.S.C. chapter 137; and 42 U.S.C. 2473(c).
(c) * * *
(2) Defense Standardization Manual 4120.24-M, Appendix 2, as amended by Military Standards 961 and 962.
Contractors needing assistance in developing or improving their accounting systems and procedures may request a copy of the Defense Contract Audit Agency Pamphlet No. 7641.90, Information for Contractors. The pamphlet is available via the Internet at http://www.dcaa.mil.
(b)
(b) * * * Examples of higher-level quality standards are ISO 9001, 9002, or 9003; ANSI/ISO/ASQ Q9001-2000;
(h)
(1) [ ] Are, [ ] are not presently debarred, suspended, proposed for debarment, or declared ineligible for the award of contracts by any Federal agency; and
(2) [ ] Have, [ ] have not, within a three-year period preceding this offer, been convicted of or had a civil judgment rendered against them for: Commission of fraud or a criminal offense in connection with obtaining, attempting to obtain, or performing a Federal, state or local government contract or subcontract; violation of Federal or state antitrust statutes relating to the submission of offers; or Commission of embezzlement, theft, forgery, bribery, falsification or destruction of records, making false statements, tax evasion, or receiving stolen property; and
(3) [ ] Are, [ ] are not presently indicted for, or otherwise criminally or civilly charged by a Government entity with, commission of any of these offenses.
(a) * * *
(2) * * *
(vi) 52.244-6, Subcontracts for Commercial Items (Dec 2001).
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 amends the FAR to clarify definitions that are used for classified procurements. The final rule—
• Moves the definitions of “classified acquisition,” “classified contract,” and “classified information” from FAR 4.401 to FAR 2.101, because the definitions apply to more than one FAR part;
• Amends those definitions in accordance for clarity;
• Amends the definition of “classified information” to reflect classification of privately generated restricted data in accordance with Department of Energy regulations; and
• Amends the policy regarding bid openings for classified acquisitions at FAR 14.402-2 for clarity.
This rule amends FAR Subpart 13.5 to implement Section 823 of the National Defense Authorization Act for Fiscal Year 2002 (Pub. L. 107-107). Section 823 amends Section 4202(e) of the Clinger-Cohen Act of 1996 (Divisions D and E of Pub. L. 104-106; 110 Stat. 654; 10 U.S.C. 2304 note) to extend, through January 1, 2003, the expiration of the test of special simplified procedures for purchases of commercial items greater than the simplified acquisition threshold, but not exceeding $5,000,000.
This final rule amends Table 15-2, Instructions for Submitting Cost/Price Proposals When Cost or Pricing Data are Required, located at FAR 15.4, Contract pricing. The rule removes the requirement for a contractor to notify the contracting officer when there is a noncompliance that has an immaterial cost impact. The rule affects contracting officers that require cost or pricing data on cost accounting standard-covered contracts.
The interim rule published in the
This interim rule amends FAR 25.003, 25.400, 25.404, and the clause at 52.225-5, Trade Agreements, to implement the determination of the United States Trade Representative (USTR) to renew the treatment of Caribbean Basin country end products as eligible products under the Trade Agreements Act (TAA), with the exception of end products from the Dominican Republic, Honduras, and Panama. This rule applies only if an acquisition is subject to the TAA (see FAR 25.403). The Dominican Republic and Honduras were already removed from the definition of Caribbean Basin countries in FAC 97-17, FAR case 2000-003, published in the
This interim rule also amends the definition of “Caribbean Basin country end product” at FAR 25.003 and in the clause at 52.225-5, Trade Agreements, to implement Section 211 of the United States—Caribbean Basin Trade Partnership Act and the determinations of the USTR as to which countries qualify for the enhanced trade benefits under that Act. Offerors of end products from the Caribbean Basin must understand the revised definition in order to certify whether the products that they are offering qualify as Caribbean Basin country end products. The definition of “Caribbean Basin country end product” excludes products that do not qualify for duty-free treatment. Information provided in this rule helps offerors determine the duty-free status of a product by review of the Harmonized Tariff Schedule of the United States.
This final rule amends FAR 42.705, Final indirect cost rates, and FAR 52.216-7, Allowable Cost and Payment, to explicitly state the right of the contracting officer to unilaterally determine the final contract payment amount when the contractor does not submit the final invoice or voucher within the time specified in the contract. The rule is applicable to contracting officers that administer contract closeout procedures.
Office of Policy Development and Research, HUD.
Notice of Funding Availability (NOFA).
This NOFA announces the availability of approximately $3.0 million for the Community Development Work Study Program (CDWSP).
The information collection requirements contained in this NOFA have been approved by the Office of Management and Budget, under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520), and assigned OMB Control Number 2528-0175. An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection displays a valid control number.
Up to $3 million, plus any additional funds recaptured from prior appropriations.
CDWSP funds two-year grants to institutions of higher education, area-wide planning organizations, and States to provide assistance to economically disadvantaged and minority graduate students who participate in a community development work study program, are U.S. citizens or resident aliens, and are enrolled full-time in a graduate community building academic degree program. Grants will cover the academic period August 2002 through August 2004.
You must demonstrate that you are eligible to apply for the program. You are an eligible applicant if (a) you are an institution of higher education offering graduate degrees in a community development academic program, (b) an Area-wide Planning Organization (APO) applying on behalf of two or more eligible institutions of higher education located in the same Standard Metropolitan Statistical Area (SMSA) or non-SMSA as the APO (as a result of a final rule for the program published at 24 CFR 570.415, institutions of higher education are permitted to choose whether to apply independently or
You may request no more than $15,000 per year per student, for a total of two years. The total is broken down as follows: an administrative allowance of $1,000 per student per year; a work stipend of no more than $9,000 per student per year; and tuition, fees, and additional support of no more than $5,000 per student per year.
You must comply with all statutory and regulatory requirements applicable to this program. CDWSP regulations can be found at 24 CFR part 570.415. Copies of the regulations are available on request from HUD User.
An eligible community building academic degree program includes but is not limited to graduate degree programs in community and economic development, community planning, community management, public administration, public policy, urban economics, urban management, and urban planning. The term excludes social and humanistic fields such as law, economics (except for urban economics), education, sociology, social work, business administration, and history. The term also excludes joint degree programs except where both joint degree fields have the purpose and focus of educating students in community building.
You are encouraged to contact Armand W. Carriere at the above listed telephone number if you have any questions about eligibility of a proposed degree program.
You are not required to respond to HUD's affirmatively furthering fair housing requirements.
Two types of reviews will be conducted—a threshold review to determine applicant eligibility and a rating based on the selection criteria for all applications that pass the threshold review.
You must meet the following threshold requirement before an application can be evaluated, rated, and ranked:
(a)
(b)
(c)
(d)
(e)
To review and rate applications, the Department may establish panels including persons not currently employed by HUD to obtain certain expertise and outside points of view, including views from other Federal agencies. You will be evaluated competitively and ranked against all other applicants that have applied for the same funding program.
The factors for rating and ranking your application, and maximum points for each factor, are provided below. The maximum number of points for this program is 100. The rating of your organization and staff, unless otherwise specified, will include any sub-contractors, consultants, sub-recipients, and members of consortia that are firmly committed to your project, to the extent of their participation.
HUD will evaluate the quality of the academic program you offer (or in the case of an application from an APO or State, those offered by the institutions included in your application) including, without limitation, the:
(i) Quality of your course offerings in terms of their depth, sophistication, quality, and emphasis on applied coursework;
(ii) Appropriateness of your course offerings for preparing students for careers in community building; and
(iii) Qualifications of your faculty and percentage of their time devoted to teaching and research in community building.
HUD will evaluate the extent to which participating students will receive a sufficient number and variety of work placement assignments, the assignments will provide practical and useful experience to students participating in your program, and the assignments will further the participating students' preparation for professional careers in community building. In applying this factor, HUD will consider the quality in terms of relevance to community building and variety of work placement agencies and the quality and variety of projects/experiences at each agency and overall. You must have a plan for rotating students among work placement agencies. In order to receive full points on this factor, you must propose at least three different work placement experiences (typically, one each school year and one during the summer between the two school years). Students engaging in community building projects
HUD will evaluate the degree to which you will be able to coordinate and administer your program. HUD will allocate the maximum points available under this criterion equally among the following three considerations, except that the maximum points available under this criterion will be allocated equally only between (i) and (ii), where you have not previously administered a CDWSP-funded program. If you received a CDWSP grant in FY 1998 or before and have not received one since then, you are considered a new applicant, for purposes of this factor.
(i) The strength and clarity of your plan for placing CDWSP students on rotating work placement assignments and for monitoring CDWSP students' progress both academically and in their work placement assignments;
(ii) The degree to which the individual who will coordinate and administer your program has clear responsibility, ample available time, and sufficient authority to do so;
(iii) The effectiveness of your prior coordination and administration of a CDWSP-funded program, where applicable. In addressing this factor, you should describe the timeliness of report submission. You should review your prior CDWSP grant agreements and reports and compare when reports were due with when the reports actually were submitted. A chart of your report submissions for each grant by submission time should be included. You should also describe your timeliness in drawing down grant funds.
HUD will evaluate your commitment to meeting the needs of economically disadvantaged and minority students as demonstrated by your policies and plans, and past efforts and successes in, recruiting, enrolling and financially assisting economically disadvantaged and minority students, including the provision of reasonable accommodations for students with disabilities. If you are an APO or State, HUD will consider the demonstrated commitment of each institution of higher education on whose behalf you are applying; HUD will also consider your demonstrated commitment to recruit and hire economically disadvantaged and minority students.
HUD will evaluate the rates of students previously enrolled in a community building academic degree program, specifically (where applicable) graduation rates from any previously funded CDWSP academic programs or similar programs. This factor measures the rate of graduation for all applicable years and awards points based on the extent to which the applicant exceeds a 50% graduation rate each applicable year.
HUD will evaluate your commitment and ability to assure that CDWSP students will receive sufficient financial assistance above and beyond the CDWSP funding to complete their academic program in a timely manner and without working in excess of 20 hours a week during the school year. When addressing this issue, you should, among other responsive information, delineate the full costs budgeted annually for a student (including living expenses, fees, etc), explain the basis for your budget and explain how the financial assistance package you will offer to each CDWSP student will meet that budget. You should have an adequate means of addressing reasonable variations in budget needs among students and for addressing emergency financial needs of students. Loans are less preferred than grants because students have to repay them.
HUD will evaluate the extent to which your proposed program will lead participating students directly and immediately to permanent employment in community building, as indicated by:
(i) Your past success in placing your graduates (particularly CDWSP-funded and similar program graduates, where applicable) in permanent employment in community building; and
(ii) The amount of faculty/staff time and resources you devote to assisting students (particularly students in CDWSP-funded and similar programs, where applicable) in finding permanent employment in community building.
Your application should include an original and two copies of the items listed below. In order to be able to recycle paper, you should not submit applications in bound form; binder clips or loose leaf binders are acceptable. Also, please do not use colored paper.
(1) Transmittal Letter, which must be signed by your Chief Executive Officer, or his or her designee. If a designee signs, your application must contain a copy of the official delegation of signatory authority. The letter must contain an assurance that you were not awarded a CDWSP grant in Fiscal Year 1999 or were awarded a Fiscal Year
(2) Designation of your degree program(s) under which students will be educated.
(3) Executive Summary.
(4) Narrative statement addressing the Factors for Award in Section V. No attachments are permitted.
(5) Management/Work Plan.
(6) Recipient/Student Binding Agreement. HUD does not provide a model or sample format for this document.
(7) Recipient/Work Placement Agreement. HUD does not provide a model or sample format for this document. If you include executed agreements with your application, they belong here.
(8) Budget. Using the forms provided for the August 2002 through August 2004 funding period.
(9) Application for Federal Assistance (HUD-424).
(10) Standard Form for Assurances—Non-Construction Programs (SF-424B).
(11) Drug-Free Workplace Certification (HUD-50070).
(12) Certification of Payments to Influence Transactions (Form HUD-50071).
(13) Applicant/Recipient Disclosure Update Report (HUD-2880).
(14) Assurance regarding the applicant's financial management systems.
If your application passes the threshold requirements, it will be rated and then ranked based on its total score on the selection factors. Your application will be considered for selection based on its rank order. HUD may make awards out of rank order to achieve geographic diversity, and may provide assistance to support a number of students that is less than the number requested under your application or a lower funding level per student, in order to provide assistance to as many highly ranked applications as possible.
If there is a tie in the point scores of two applications, the rank order will be determined by the scores on Rating Factor 1 entitled “Quality of the Academic Program.” The application with the most points on this factor will be given the higher rank. If there is still a tie, the rank order will be determined by the applicants' scores on Rating Factor 2 entitled “Effectiveness of program administration.” The application with the most points for this selection factor will be given the higher rank.
If there are insufficient funds to fund an application, even if the request is reduced to the minimum number of students which could be funded (i.e., three students per institution of higher education), HUD may select the next ranked application which would not exceed the funding left available and still fund the minimum number of students allowed.
HUD reserves the right to make selections out of rank order to provide for geographic distribution of funded CDWSPs. If HUD decides to use this option, it will do so only if two adjacent HUD Hubs (formerly referred to as regions) do not yield at least one fundable CDWSP on the basis of rank order. If this occurs, HUD will fund the highest ranking applicant within the two Hubs.
HUD reserves the right to reduce your amount of funding in order to fund as many highly ranked applications as possible. Additionally, if funds remain after funding the highest ranked application, HUD may fund part of the next highest ranking application (as long as it would provide assistance to the minimum number of students required to be served) in a given program area. If you turn down the award offer, HUD will make the same determination for the next highest-ranking application. If funds remain after all selections have been made, the remaining will be carried over to the next funding cycle's competition.
After selections have been made, HUD may require winners to participate in negotiations to determine the Grant Budget. In cases where HUD cannot successfully conclude negotiations, or you fail to provide HUD with requested information, an award will not be made. In such instances, HUD may elect to offer an award to the next highest ranking applicant, and proceed with negotiations with the next highest applicant.
After the application due date, HUD may not, consistent with its regulations in 24 CFR part 4, subpart B, consider any unsolicited information you, the applicant, may want to provide. HUD may contact you, however, to clarify an item in your application or to correct technical deficiencies. You should note, however, that HUD may not seek clarification of items or responses that improve the substantive quality of your response to any selection factors. In order not to unreasonably exclude applications from being rated and ranked, HUD may, however, contact applicants to ensure proper completion of the application and will do so on a uniform basis for all applicants.
This NOFA does not direct, provide for assistance or loan and mortgage insurance for, or otherwise govern or regulate real property acquisition, disposition, leasing, rehabilitation, alteration, demolition, or new construction, or establish, revise, or provide for standards for construction or construction materials, manufactured housing, or occupancy. Accordingly, under 24 CFR 50.19(c)(1), this NOFA is categorically excluded from environmental review under the National Environmental Policy Act of 1969, as amended (42 U.S.C. 4321) and no Finding of No Significant Impact is needed. In addition, the provision of assistance under this NOFA is categorically excluded from environmental review under § 50.19(b)(3) and (b)(9).
This notice does not have federalism implications and does not impose substantial direct compliance costs on State and local governments or preempt State law within the meaning of Executive Order 13132 (entitled “Federalism”). (B)
Applicants for funding under this NOFA (except Indian Housing Authorities established by tribal governments exercising their sovereign powers with respect to expenditures specifically permitted by Federal law) are subject to the provision of Section 319 of the Department of Interior and Related Agencies Appropriations Act for Fiscal Year 1991, 31 U.S.C. 1352 (the Byrd Amendment) and to the provisions of the Lobbying Disclosure Act of 1995, Pub. L. 104-65 (December 19, 1995).
The Byrd Amendment, which is implemented in regulations at 24 CFR part 87, prohibits applicants for Federal contracts and grants from using appropriated funds to attempt to influence Federal Executive or legislative officers or employees in connection with obtaining such assistance, or with its extension, continuation, renewal, amendment, or modification. The Byrd Amendment applies to the funds that are the subject of this NOFA. Therefore, applicants must file a certification stating that they have not made and will not make any prohibited payments and, if any payments or agreement to make payments of nonappropriated funds for these purposes have been made, a form SF-LLL disclosing such payments must be submitted. The certification and the SF-LLL are included in the application kit.
The Lobbying Disclosure Act of 1995, Pub. L. 104-65 (December 19, 1995), which repealed section 112 of the HUD Reform Act and resulted in elimination of the regulations at 24 CFR part 86, requires all persons and entities who lobby covered Executive or Legislative Branch officials to register with the Secretary of the Senate and the Clerk of the House of Representatives and file reports concerning their lobbying activities.
Section 102 of the Department of Housing and Urban Development Reform Act of 1989 (HUD Reform Act) and the final rule codified at 24 CFR part 4, subpart A, published on April 1, 1996 (61 FR 1448), contain a number of provisions that are designed to ensure greater accountability and integrity in the provision of certain types of assistance administered by HUD. On January 14, 1992, HUD published, at 57 FR 1942, a notice that also provides information on the implementation of section 102. The documentation, public access, and disclosure requirements of section 102 are applicable to assistance awarded under this NOFA as follows:
(1)
(2)
(3)
HUD's regulations implementing section 103 of the Department of Housing and Urban Development Reform Act of 1989 (42 U.S.C. 3537a), codified in 24 CFR part 4, apply to this funding competition. The regulations continue to apply until the announcement of the selection of successful applicants. HUD employees involved in the review of applications and in the making of funding decisions are limited by regulations from providing advance information to any person (other than an authorized employee of HUD) concerning funding decisions, or from otherwise giving any applicant an unfair competitive advantage. Persons who apply for assistance in this competition should confine their inquiries to the subject areas permitted under 24 CFR part 4.
Applicants or employees who have ethics-related questions, such as whether particular subject matter can be discussed with persons outside the Department, should contact HUD's Ethics Law Division (202) 708-3815 (voice), (202) 708-1112 (TTY). (These are not toll-free numbers.) For HUD employees who have specific program questions, the employee should contact the appropriate Field Office Counsel or Headquarters Counsel for the program to which the question pertains.
Section 107(c) of the Housing and Community Development Act of 1974, as amended (42 U.S.C. 5301
Environmental Protection Agency (EPA).
Final rule.
EPA is finalizing a revision to the long-term strategy portion of the Nevada federal implementation plan (FIP) for Class I visibility protection. This revision concerns emissions reduction requirements for the Mohave Generating Station (MGS) located in Clark County, Nevada. The new requirements are based on a consent decree entered into by the owners of MGS and the Grand Canyon Trust (GCT), the Sierra Club, and the National Parks and Conservation Association (NPCA). The emissions reductions resulting from compliance with the consent decree will address concerns raised by the Department of the Interior (DOI) regarding MGS's contribution to visibility impairment at the Grand Canyon National Park (GCNP) due to sulfur dioxide (SO
This rule is effective on March 11, 2002.
Materials in Docket Number A-2001-04 related to this final rulemaking are available for review during normal business hours at the following locations: EPA Region IX, Air Division, 75 Hawthorne Street, San Francisco, California 94105-3901; and EPA, Air Docket (6102), Ariel Rios Building, 1200 Pennsylvania Avenue, NW., Washington, DC 20460. This document is also available as an electronic file on the EPA Region IX Web Page at
Steve Frey at (415) 972-3990, Air Division (AIR-1), EPA Region IX, 75 Hawthorne Street, San Francisco, California 94105-3901.
Throughout this document, “we,” “us” and “our” refer to EPA.
EPA published a proposed rule in the
This rule is EPA's first report assessing the long-term visibility strategy for Nevada since promulgating the Nevada Visibility FIP. We reviewed the long-term strategy only for the purpose of addressing DOI's certification of existing visibility impairment at GCNP and MGS's contribution to that impairment, and evaluating whether the terms of the Mohave consent decree will make reasonable progress toward the national visibility goal. This revision of the long-term strategy of the Nevada Visibility FIP will allow for reasonable progress toward the CAA national visibility goal with respect to MGS's contribution to visibility impairment at GCNP due to SO
EPA received comments on the proposed rule from Southern California Edison, Peabody Group, Environmental Defense, Grand Canyon Trust, Sierra Club, and one private citizen. A summary of their comments and EPA's responses are provided below.
EPA is finalizing the revisions to the long-term strategy of the Nevada Visibility FIP with minor corrections to the final rule noted in section III. As discussed in the proposal, the final rule adopts the emission limits, compliance deadlines and other requirements of the consent decree between the Grand Canyon Trust, Sierra Club, National Parks and Conservation Association and the owners of the Mohave Generating Station (Southern California Edison, Nevada Power, Salt River Project, Los Angeles Department of Water and Power) as approved by the U.S. District Court of Nevada on December 15, 1999. Under the terms of the consent decree, MGS owners will install pollution control equipment by 2006 to reduce SO
The Office of Management and Budget (OMB) has exempted this regulatory action from Executive Order 12866, entitled “Regulatory Planning and Review.”
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.
For purposes of assessing the impacts of today's rule on small entities, small entity is defined as: (1) A small business that is a small industrial entity as defined in the U.S. Small Business Administration (SBA) size standards; (2) a small governmental jurisdiction that is a government of a city, county, town, school district or special district with a population of less than 50,000; and (3) a small organization that is any not-for-profit enterprise which is independently owned and operated and is not dominant in its field. For small entities engaged in fossil fuel electric generation, the SBA defines small entities as those generating 4 million or fewer megawatts of electric output per year.
After considering the potential for economic impacts of today's final rule on small entities, I certify that this action will not have a significant economic impact on a substantial number of small entities. The rule revises the Nevada Visibility FIP to incorporate the requirements of a consent decree entered into by the owners of MGS and the Grand Canyon Trust, the Sierra Club, and the National Parks and Conservation Association. Thus, the rule does not create any new requirements or impose any additional control costs beyond those created by the consent decree. Moreover, MGS, which has a generating capacity of 13.4 million megawatts per year, is not a small business. Therefore, because the FIP does not create any new requirements and applies only to one entity which does not meet the definition of a small entity, I certify that this action will not have a significant economic impact on a substantial number of small entities.
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
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 April 8, 2002. 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).)
Under the Paperwork Reduction Act, 44 U.S.C. 3501
Environmental protection, Air pollution control, Intergovernmental relations, Particulate matter, Reporting and recordkeeping requirements, Sulfur oxide.
42 U.S.C. 7401
(d) This paragraph (d) is applicable to the Mohave Generating Station located in the Las Vegas Intrastate Air Quality Control Region (§ 81.80 of this chapter).
(1)
(2)
(i) The owner or operator shall install and operate lime spray dryer technology on Unit 1 and Unit 2 at the Mohave Generating Station. The owner or operator shall design and construct such lime spray dryer technology to comply with the SO
(A) SO
(B) SO
(C) Compliance with the SO
(D) For purposes of calculating rolling averages, the first boiler-operating-day of a rolling average period for a unit shall be the first boiler-operating-day that occurs on or after the specified compliance date for that unit. Once the unit has operated the necessary number of days to generate an initial 90 or 365 day average, consistent with the applicable limit, each additional day the unit operates a new 90 or 365 day (“rolling”) average is generated. Thus, after the first 90 boiler-operating-days from the compliance date, the owner or operator must be in compliance with the 85 percent sulfur removal limit based on a 90-boiler-operating-day rolling average each subsequent boiler-operating-day. Likewise, after the first 365 boiler-operating-days from the compliance date, the owner or operator must be in compliance with the .150 sulfur limit based on a 365-boiler-operating-day rolling average each subsequent boiler-operating-day.
(E) Nothing in this paragraph (d) shall prohibit the owner or operator from substituting equivalent or superior control technology, provided such technology meets applicable emission limitations and schedules, upon approval by the Administrator.
(ii) The owner or operator shall install and operate fabric filter dust collectors (also known as FFDCs or baghouses), without a by-pass, on Unit 1 and Unit 2 at the Mohave Generating Station. The owner or operator shall design and construct such FFDC technology (together with or without the existing electrostatic precipitators) to comply with the following emission limitations:
(A) The opacity of emissions shall be no more than 20.0 percent, as averaged over each separate 6-minute period within an hour, beginning each hour on the hour, measured at the stack.
(B) In the event emissions from the Mohave Generating Station exceed the opacity limitation set forth in paragraph (d) of this section, the owner or operator shall not be considered in violation of this paragraph if they submit to the Administrator a written demonstration within 15 days of the event that shows the excess emissions were caused by a malfunction (a sudden and unavoidable breakdown of process or control equipment), and also shows in writing within 15 days of the event or immediately after correcting the malfunction if such correction takes longer than 15 days:
(C) Notwithstanding the foregoing, the owner or operator shall be excused from meeting the opacity limitation during cold startup (defined as the startup of any unit and associated FFDC system after a period of greater than 48 hours of complete shutdown of that unit and associated FFDC system) if they demonstrate that the failure to meet such limit was due to the breakage of one or more bags caused by condensed moisture.
(D) Compliance with the opacity emission limitation shall be determined using a continuous opacity monitor installed, calibrated, maintained and operated consistent with applicable law (e.g., 40 CFR Part 60, or such other provisions as may be enacted).
(iii) The owner or operator shall install and operate low-NO
(3)
(i) Issue a binding contract to design the SO
(ii) Issue a binding contract to procure the SO
(iii) Commence physical, on-site construction of SO
(iv) Complete construction of SO
(v) Complete construction of SO
(4)
(A) For one unit, January 1, 2006; and
(B) For the other unit, April 1, 2006.
(ii) The unit that is to meet the emission limitations by April 1, 2006 may only be operated after December 31, 2005 if the control equipment set forth in paragraph (d)(2) of this section has been installed on that unit and the equipment is in operation. However, the control equipment may be taken out of service for one or more periods of time between December 31, 2005 and April 1, 2006 as necessary to assure its proper operation or compliance with the final emission limits.
(iii) If the current owners' entire (
(5)
(i) SO
(ii) Opacity: The opacity of emissions shall be no more than 30 percent, as averaged over each separate 6-minute period within an hour, beginning each hour on the hour, measured at the stack, with no more than 375 exceedances of 30 percent allowed per calendar quarter (including any pro rated portion thereof), regardless of reason. If the total number of excess opacity readings from the date of the consent decree (December 15, 1999) to the time the owner or operator demonstrates compliance with the final opacity limit in paragraph (d)(2) of this section, divided by the total number of quarters in the interim period (with a partial quarter included as a fraction), is equal to or less than 375, the owner or operator shall be in compliance with this interim limit.
(6)
(ii) Within 30 days after the end of the first calendar quarter for which the emission limitations in paragraph (d)(2) of this section first take effect, but in no event later than April 30, 2006, the owner or operator shall provide to the Administrator on a quarterly basis the following information:
(A) The percent SO
(B) All opacity readings in excess of 20.0 percent, and a statement of the cause of each excess opacity reading and any documentation with respect to any claimed malfunction or bag breakage.
(C) Each unit's 365-boiler-operating-day rolling average for each boiler-operating-day in the prior quarter following the first full 365 boiler-operating-days after the .150 pound SO
(7)
(ii) Without limitation, unanticipated or increased costs or changed financial circumstances shall not constitute a force majeure event. The absence of any administrative, regulatory, or legislative approval shall not constitute a force majeure event, unless the owner or operator demonstrates that, as appropriate to the approval: they made timely and complete applications for such approval(s) to meet the deadlines set forth in paragraph (d)(3) of this section or paragraph (d)(4) of this section; they complied with all requirements to obtain such approval(s); they diligently sought such approval; they diligently and timely responded to all requests for additional information; and without such approval, the owner or operator will be required to act in violation of law to meet one or more of the deadlines in paragraph (d)(3) of this section or paragraph (d)(4) of this section.
(iii) If any event occurs which causes or may cause a delay by the owner or operator in meeting any deadline in paragraphs (d) (3) or (4) of this section and the owner or operator seeks to assert the event is a force majeure event, the owner or operator shall notify the Administrator in writing within 30 days of the time the owner or operator first knew that the event is likely to cause a delay (but in no event later than the deadline itself). The owner or operator shall be deemed to have notice of any circumstance of which their contractors or subcontractors had notice, provided that those contractors or subcontractors were retained by the owner or operator to implement, in whole or in part, the requirements of paragraph (d) of this section. Within 30 days of such notice, the owner or operator shall provide in writing to the Administrator a report containing: an explanation and description of the reasons for the delay; the anticipated length of the delay; a description of the activity(ies) that will be delayed; all actions taken and to be taken to prevent or minimize the delay; a timetable by which those measures will be implemented; and a schedule that fully describes when the owner or operator proposes to meet any deadlines in paragraph (d) of this section which have been or will be affected by the claimed force majeure event. The owner or operator shall include with any notice their rationale and all available documentation supporting their claim that the delay was or will be attributable to a force majeure event.
(iv) If the Administrator agrees that the delay has been or will be caused by a force majeure event, the Administrator and the owner or operator shall stipulate to an extension of the deadline for the affected activity(ies) as is necessary to complete the activity(ies). The Administrator shall take into consideration, in establishing any new deadline(s), evidence presented by the owner or operator relating to weather, outage schedules and remobilization requirements.
(v) If the Administrator does not agree in her sole discretion that the delay or anticipated delay has been or will be
(vi) At all times, the owner or operator shall have the burden of proving that any delay was caused by a force majeure event (including proving that the owner or operator had given proper notice and had made “best efforts” to avoid and/or mitigate such event), and of proving the duration and extent of any delay(s) attributable to such event.
(vii) Failure by the owner or operator to fulfill in any way the notification and reporting requirements of this Section shall constitute a waiver of any claim of a force majeure event as to which proper notice and/or reporting was not provided.
(viii) Any extension of one deadline based on a particular incident does not necessarily constitute an extension of any subsequent deadline(s) unless directed by the Administrator. No force majeure event caused by the absence of any administrative, regulatory, or legislative approval shall allow the Mohave Generating Station to operate after December 31, 2005, without installation and operation of the control equipment described in paragraph (d)(2) of this section.
(ix) If the owner or operator fails to perform an activity by a deadline in paragraphs (d)(3) or (4) of this section due to a force majeure event, the owner or operator may only be excused from performing that activity or activities for that period of time excused by the force majeure event.
Environmental Protection Agency (EPA).
Direct final rule.
EPA is taking direct final action on the rule regarding Recognition Awards Under the Clean Water Act (CWA). Under the authority of CWA section 501(e), the EPA is establishing the framework for the annual CWA Recognition Awards Program formerly known as the Wastewater Management Excellence Awards Program. CWA section 501(e) authorizes the Administrator, on behalf of the U.S. Government, to recognize industrial organizations and political subdivisions of States which demonstrate an outstanding technological achievement or innovative process, method or device in waste treatment and pollution abatement programs. Today's action establishes the framework under which the EPA will implement the Awards Program. The existing awards program recognizes innovative and outstanding achievements, processes, methods or devices in: Operations and Maintenance (O&M) of Publicly Owned Treatment Works (POTW); Biosolids Management (Biosolids); POTW Pretreatment Programs; Municipal and Industrial Storm Water (SW) Management; and Combined Sewer Overflow (CSO) Controls. These wastewater management programs can generally be characterized as waste treatment and/or pollution abatement programs. Individual EPA Regional Administrators (and Regional officials they may designate) also may conduct Regional CWA Recognition Awards Programs according to and consistent with the provisions of this part. EPA headquarters issues annual guidance memoranda to administer each year's awards process and to request nominations for the awards program. EPA may later establish, discontinue, combine or rename categories by notice published in the
This rule is effective on May 9, 2002 without further notice, unless EPA receives adverse written comment by April 9, 2002. If EPA receives such comments, it will publish a timely withdrawal of the direct final rule in the
Written comments should be mailed to the W-01-01 Direct Final CWA Recognition Awards Comment Clerk, Water Docket, MC-4101, Environmental Protection Agency, 1200 Pennsylvania Avenue, NW., Washington, DC 20460, or hand delivered to the Water Docket in Room EB 57, 401 M Street, SW., Washington, DC. Due to the uncertainty of mail delivery in the Washington, DC area, in order to ensure that your comments are received, we suggest you mail in, and hand deliver or fax your comments to (202) 501-2396. A copy of supporting information for this rulemaking is available for public inspection under docket number W-01-01. For access to the docket materials, call (202) 260-3027, Monday through Friday, except Federal holidays between 9:00 a.m. and 3:30 p.m. (Eastern time) for an appointment. Please indicate that the docket to be accessed is for the February 8, 2002
Maria E. Campbell, Municipal Support Division, Office of Wastewater Management (MC4204-M), U.S. Environmental Protection Agency, Ariel Rios Building, 1200 Pennsylvania Avenue, NW., Washington, DC 20460, (202) 564-0628, e-mail at
EPA promulgates today's rule under the authority of Clean Water Act sections 501(a) and (e), 33 U.S.C. 1361(a) and (e).
CWA sections 501(a) and (e) authorize a program which provides official recognition by the U.S. Government to those industrial organizations and political subdivisions of States which demonstrate an outstanding technological achievement or an innovative process, method, or device in their waste treatment and pollution abatement programs. The authority also provides for EPA's consultation with the appropriate State agencies to develop regulations under which the recognition may be applied for and granted. That consultation has been carried out. Not all States are involved in the CWA awards program. States and EPA may use an application and/or nomination process as appropriate for the program, State or EPA.
Additionally, section 501(e) provides that no applicant will be eligible for an award if it is not in total compliance with all applicable water quality requirements, or otherwise does not have a satisfactory record with respect to environmental quality. The Agency has presented CWA awards for several years. Though EPA's predecessor proposed a regulation in the
The Agency's CWA Recognition Awards Program currently includes awards for the following program categories: Operations and Maintenance (O&M) of Publicly Owned Treatment Works (POTW); Biosolids Management (Biosolids); POTW Pretreatment Programs; Municipal and Industrial Storm Water (SW) Management; and Combined Sewer Overflow (CSO) Controls. See 66 FR 48873 (Sept. 24, 2001). These wastewater management programs can generally be characterized as waste treatment and/or pollution abatement programs. Individual EPA Regional Administrators (and Regional officials they may designate) also may conduct Regional CWA Recognition Awards Programs according to and consistent with the provisions of this part. All of the awards categories recognize outstanding and innovative achievements in waste treatment and/or pollution abatement programs. Further, all award winners are required to have strong compliance records.
—For the O&M awards, the Agency currently has categories for large, medium and small advanced treatment plants; large, medium and small secondary treatment plants; large and small non-discharging treatment plants, and most improved treatment plant. The trainer organization for the most improved treatment plant is also recognized.
—The Biosolids awards currently have categories which recognize municipal and other biosolids operations at large and small operating projects, technology, research
—Categories for consideration for the Pretreatment awards currently are based on the total number of significant industrial users (SIUs) of the control authority.
—The SW awards currently have two categories that recognize outstanding municipal and industrial storm water pollution control.
—Finally, the CSO awards have one category to recognize outstanding and innovative CSO abatement programs.
EPA later may establish other categories by notice published in the
Not all States participate in the CWA Recognition Awards Program. EPA does however, encourage all authorized National Pollutant Discharge Elimination System (NPDES) agencies, as well as non-authorized States and Tribes, to play a role in the nomination process. National award winners are selected by EPA based upon evaluations of the applications or nominees' information and recommendations of EPA staff and/or representatives of State and Tribal water pollution control agencies. EPA Regional offices may also conduct a Regional awards program according to and consistent with the provisions of this part. Award decisions are not subject to administrative review.
Today's rule announces EPA's interpretation of eligible award winners, specifically, industrial organizations and political subdivisions of States. EPA interprets the term “industrial organizations” to include any company, corporation, association, partnership, firm, university, not-for-profit organization, or wastewater treatment facility, as well as a Federal, State or Tribal wastewater treatment facility, or U.S. military command, to the extent such government and other organizations operate in an “industrial” capacity in the treatment of wastes or abatement of pollution.
You may obtain further information about the current year's CWA Recognition Awards Program from the EPA Regional offices or our Web site
Today's action codifies the intent of the Agency to continue the Wastewater Management Excellence Awards Program as the CWA Recognition Awards Program under the authority of section 501(e) of the CWA. It also amends 40 CFR part 9 to identify information collection, record keeping, and reporting requirements.
EPA is publishing this rule without prior proposal because we view this as a noncontroversial amendment and anticipate no adverse comment since we are essentially codifying an existing practice of implementing a CWA Recognition Awards Program. However, in the “Proposed Rules” section of today's
Under Executive Order 12866, (58 FR 51,735 (October 4, 1993)) the Agency must determine whether the regulatory action is “significant” and therefore subject to OMB review and the requirements of the Executive Order. The Order defines “significant regulatory action” as one that is likely to result in a rule that may:
(1) Have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector or the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or Tribal governments or communities;
(2) Create a serious inconsistency or otherwise interfere with an action taken or planned by another agency;
(3) Materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or
(4) Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the Executive Order.”
It has been determined that this rule is not a “significant regulatory action” under the terms of Executive Order 12866 and is therefore not subject to OMB review.
Under Executive Order 12898, “Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations,” as well as through EPA's National Environmental Justice Advisory Council, EPA has undertaken to incorporate environmental justice into its policies and programs. EPA is committed to addressing environmental justice concerns, and is assuming a leadership role in environmental justice initiatives to enhance environmental quality for all residents of the United States. The Agency's goals are to ensure that no segment of the population, regardless of race, color, national origin or income, bears disproportionately high and adverse human health and environmental effects as a result of EPA's policies, programs, and activities, and all people live in clean and sustainable communities.
No action from this rule will have a disproportionately high and adverse human health and environmental effect on any segment of the population. In addition, this rule does not impose substantial direct compliance costs on those communities. Accordingly, the requirements of Executive Order 12898 do not apply.
The RFA generally requires an agency to prepare a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements under the Administrative Procedure Act or any other statute unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small organizations, and small governmental jurisdictions.
For purposes of assessing the impacts of today's rule on small entities, small entity is defined as: (1) A small business based on the Small Business Administration's size standards; (2) a small governmental jurisdiction that is a government of a city, county, town, school district or special district with a
After considering the economic impact of today's final rule on small entities, I certify that this action will not have a significant economic impact on a substantial number of small entities. For purposes of evaluating the economic impact of today's rule on small entities, EPA reflects on the recent history of small entities' participation in the CWA Recognition Awards Program. No unnecessary or disproportionately burdensome demands are imposed on small entities to meet eligibility requirements, and nominations or selection criteria for participation in the voluntary program. The rule merely establishes a framework for an existing Agency practice and does not substantially affect the rights of non-agency parties.
Although this final rule will not have a significant economic impact on a substantial number of small entities, EPA nonetheless has tried to reduce the impact of this rule on small entities. Where EPA Regions may determine that the awards program questionnaire applications may be too lengthy or too complicated for applicants in small communities, a condensed or more simplified version of the questionnaire application may be used. States and EPA may also use an application and/or nomination process as appropriate for the program, State or EPA. Participation in EPA's CWA Awards Program is voluntary.
Executive Order 13045: “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 final rule is not subject to Executive Order 13045 because it is not “economically significant” and it does not concern an environmental health or safety risk that EPA has reason to believe may have a disproportionate effect on children. The rule merely establishes a framework to implement a CWA Recognition Awards Program.
The Office of Management and Budget (OMB) has approved the information collection requirements contained in this rule under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501
The projected cost and hour burden for the information collection activity for the O&M, biosolids, storm water and CSO programs is estimated to be $79,200 per year ($46,600 for the respondents and $33,200 for the States' review time), and 2800 hours (1600 hours for the respondents time and 1200 hours for the States' review time) for the next three years. The proposed frequency of responses is once annually and the estimated number of respondents is 200. The annual public reporting and record keeping burden for this collection of information is estimated to average eight hours per response. The projected cost and hour burden for the information collection activity for the pretreatment awards is estimated to be $16,151.19 per year ($13,819.20 for the respondents burden and $2,331.99 for the States' review time), and 561 hours (480 hours for the respondents time and 81 hours for the States' review time) for the next three years. The proposed frequency of responses is once annually and the estimated number of respondents is 40. The annual public reporting and record keeping burden for this collection of information is estimated to average 12 hours per response. These estimates include the time needed to review instructions; collect, validate, and verify information, complete and review the collection of information; and transmit the information to EPA.
Burden means the total time, effort, or financial resources expended by persons to generate, maintain, retain, or disclose or provide information to or for a Federal agency. This includes the time needed to review instructions; develop, acquire, install, and utilize technology and systems for the purposes of collecting, validating, and verifying information, processing and maintaining information, and disclosing and providing information; adjust the existing ways to comply with any previously applicable instructions and requirements; train personnel to be able to respond to a collection of information; search data sources; complete and review the collection of information; and transmit or otherwise disclose the information.
An Agency may not conduct or sponsor, and a person is not required to respond to a collection of information unless it displays a currently valid OMB control number. The OMB control numbers for EPA's regulations are listed in 40 CFR part 9 and 48 CFR chapter 15. EPA is amending the table in 40 CFR part 9 of currently approved ICR control numbers issued by OMB for various regulations to list the information requirements contained in this final rule.
Section 12(d) of the National Technology Transfer Advancement Act of 1995 (“NTTAA”), Public Law 104-113, section 12(d) (15 U.S.C. 272 note) directs EPA to use voluntary consensus standards in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., materials specifications, test methods,
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the
Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999), 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.”
This direct final rule does not have federalism implications. It 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. This rule is established for those States which voluntarily choose to participate in EPA's awards program. No direct compliance costs are imposed. Thus Executive Order 13132 does not apply to this rule. Although section 6 of Executive Order 13132 does not apply to this rule, CWA section 501(e) requires EPA to consult with the appropriate State water pollution control agencies to establish the regulation. Specifically, hard copies of the draft proposed rule were mailed to representatives of State water pollution control agencies for their review and comments. Only one response was received. The response was in support of the CWA Recognition Awards Program. Local officials may volunteer to participate if a facility is nominated for an award in their State. Not all States participate in EPA's CWA Awards Program and their participation is voluntary.
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. This rule is established for Federally recognized Tribes which voluntarily choose to participate. No direct compliance costs are imposed. Thus, Executive Order 13175 does not apply to this rule. Although section 5 of Executive Order 13175 does not apply to this rule, EPA did consult with EPA Regional program managers regarding Tribal participation of the CWA Recognition Awards Program in developing this rule. Traditionally, Tribes have not participated in the Recognition Awards Program. However, consistent with EPA's Indian policy to work with Tribes on a government to government basis, Tribes will be provided the opportunity to participate in the nomination process in the CWA Recognition Awards Program. Additionally, Tribes that operate facilities or abate pollution are eligible to receive awards as “industrial organizations.” EPA sent copies of the draft proposed rule to Federally recognized Tribes for comment. No responses were received.
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public Law 104-4, establishes requirements for Federal agencies to assess the effects of their regulatory actions on State, local, and Tribal governments and the private sector. Under section 202 of the UMRA, EPA generally must prepare a written statement, including a cost-benefit analysis, for proposed and final rules with “Federal mandates” that may result in expenditures to State, local, and Tribal governments, in the aggregate, or to the private sector, of $100 million or more in any one year. Before promulgating an EPA rule for which a written statement is needed, section 205 of the UMRA generally requires EPA to identify and consider a reasonable number of regulatory alternatives and adopt the least costly, most cost-effective or least burdensome alternative that achieves the objectives of the rule. The provisions of section 205 do not apply when they are inconsistent with applicable law. Moreover, section 205 allows EPA to adopt an alternative other than the least costly, most cost-effective or least burdensome alternative if the Administrator publishes with the final rule an explanation why that alternative was not adopted. Before EPA establishes any regulatory requirements that may significantly or uniquely affect small governments, including Tribal governments, it must have developed under section 203 of the UMRA a small government agency plan. The plan must provide for notifying potentially affected small governments, enabling officials of affected small governments to have meaningful and timely input in the development of EPA regulatory proposals with significant Federal intergovernmental mandates, and informing, educating, and advising small governments on compliance with the regulatory requirements.
Today's rule contains no Federal mandates (under the regulatory provisions of Title II of the UMRA) for State, local or Tribal governments or the private sector. The rule imposes no enforceable duty on any State, Tribal, or local government or the private sector. Also, the UMRA generally excludes from the definition of “Federal intergovernmental mandate” duties that arise from participation in a voluntary
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, 1001)) because it is not a significant regulatory action under Executive Order 12866.
Key documents included in the administrative record supporting today's rule are: (1) Guidance for the Year 2001 National Wastewater Operations and Maintenance (O&M) Excellence Awards Program; (2) Nominations Guidance for the 2001 Biosolids Exemplary Management Awards Program; (3) Nominations for the 2001 National Pretreatment Program, Combined Sewer Overflow (CSO) Control Program, and Storm Water Management Program Excellence Awards; (4) National Pretreatment Program Information Collection Request; (5) Information Collection Activity: Questionnaire for Operations and Maintenance (O&M), Biosolids Use (Biosolids), Combined Sewer Overflow (CSO), and Storm Water (SW) Awards Nominees Under the Annual National Wastewater Management Excellence Award Program (NWMEAP); (6) EPA's 1994 National Combined Sewer Overflow Controls Policy; (7) Wastewater Awards Program Brochure; (8)
Environmental protection, Reporting and recordkeeping requirements.
Environmental protection, Administrative practice and procedure, Reporting and recordkeeping requirements, Water pollution control.
1. The authority citation for part 9 continues to read as follows:
7 U.S.C. 135
Section 501(a) and (e) of the Clean Water Act (CWA), 33 U.S.C. 1361(a) and (e).
The Environmental Protection Agency's (EPA) Clean Water Act (CWA) Recognition Awards Program is authorized by CWA section 501(e). The Administrator may provide official recognition to industrial organizations and political subdivisions of States which during the preceding year demonstrated an outstanding technological achievement or an innovative process, method or device in their waste treatment and pollution abatement programs. The wastewater management programs can generally be characterized as waste treatment and/or pollution abatement programs. Individual EPA Regional Administrators (and Regional officials they may designate) also may conduct Regional CWA Recognition Awards Programs according to and consistent with the provisions of this part.
The awards are known as the National Clean Water Act Recognition Awards (hereinafter, the Awards Program).
(a) EPA will administer the Awards Program, and should establish annual guidance as necessary to administer the Awards Program. EPA will request from the various offices, and States and Tribes as appropriate, nominations for the Awards Program.
(b) Nominees must be in total compliance with all applicable water quality requirements under the CWA in order to be eligible for an award, and otherwise have a satisfactory record with respect to environmental quality.
(c) Nominees must provide written documentation as evidence to support their outstanding technological achievement or innovative process, method or device in their waste treatment and/or pollution abatement programs.
(d) EPA may issue annual guidance memoranda to administer each year's awards programs. For information on the availability of additional guidance, contact the U.S. Environmental Protection Agency, Municipal Assistance Branch, 1200 Pennsylvania Avenue, NW., Mail Code 4204-M, Washington, DC 20460. You may also visit EPA's Web site at
A municipality, city, town, borough, county, parish, district, association, government agency, or other public body, (including an intermunicipal agency of two or more of the foregoing entities) created by or pursuant to State law; a company, corporation, association, partnership, firm, university, not-for-profit organization, or wastewater treatment facility, as well as a Federal, State or Tribal government wastewater treatment facility, or U.S. military command to the extent such government and other organizations operate in an industrial capacity in the treatment of wastes or abatement of pollution may be considered for a recognition award.
EPA will publish from time to time, a notice in the
You may contact your local EPA Regional office for information on the Awards Program guidance each year, or check the Web site at
You can contact your local EPA Regional office for award submission deadline information which may vary for the award categories, or check the Web site at
You may apply to, or ask your State, Tribe or EPA Region to nominate you for an award. Only applications or nominations recommended by EPA Regions are considered for the national award. EPA personnel conduct compliance evaluations prior to presenting a national award.
Your facility or pollution abatement program must be in total compliance with all applicable water quality requirements, and otherwise have a satisfactory record with respect to environmental quality. Additionally, your facility or pollution abatement program must provide written documentation as evidence of an outstanding technological achievement or an innovative process, method or device demonstrated in the preceding year, which resulted in environmental benefits, cost savings and/or public acceptance.
After EPA receives the completed application, the application is evaluated by a review committee. After the review committee completes its evaluation of the programs that have been nominated, they make recommendations for the national awards. EPA then analyzes the results and selects the award winners.
EPA review committee members are selected by the EPA and in some cases, State or Tribal water pollution control agencies. The number of participants in a nominations review process is based on staff availability, and may be one person.
Nominees and applications are recommended by EPA regions. EPA personnel conduct compliance evaluations prior to presenting a national award. EPA selects national award winners based on demonstrated evidence of outstanding and/or innovative wastewater treatment and pollution abatement programs or projects which result in environmental benefits, cost savings and/or public acceptance. Based upon results of review committee evaluations, the Agency selects first place winners for a national award in the appropriate awards categories. A second place winner may or may not be selected. EPA may or may not select an award winner for every awards program category. Award decisions are not subject to administrative review.
EPA notifies national award winners by letter.
EPA presents national award winners with a certificate or plaque at an awards presentation ceremony as recognition for an outstanding technological achievement or an innovative process, method or device in wastewater treatment and/or pollution abatement programs. The President of the United States, the Governor of the State, or Tribal leader of the jurisdiction reservation in which the awardee is situated, the Speaker of the House of Representatives and the President pro tempore of the Senate are notified by the Administrator.
EPA announces the annual national recognition award winners through notice published in the
Environmental Protection Agency (EPA).
Proposed rule.
EPA is proposing a framework for making annual Clean Water Act (CWA) Recognition Awards, formerly known as Wastewater Management Excellence Awards. CWA section 501(e) authorizes the Administrator, on behalf of the U.S. Government, to recognize outstanding technological achievements or innovative processes, methods or devices in waste treatment and pollution abatement programs.
Written comments must be received by April 9, 2002.
Written comments should be mailed to the W-01-01 Proposed Rule CWA Recognition Awards Comment Clerk, Water Docket, MC-4101, Environmental Protection Agency, 1200 Pennsylvania Avenue, NW., Washington, DC 20460, or hand delivered to the Water Docket in Room EB 57, 401 M Street, SW., Washington, DC. Due to the uncertainty of mail delivery in the Washington DC area, in order to ensure that your comments are received, we suggest you mail in, and hand deliver or fax your comments to (202) 501-2396. A copy of supporting information for this rulemaking is available for public inspection under docket number W-01-01. For access to the docket materials, call (202) 260-3027, Monday through Friday, except Federal holidays between 9:00 a.m. and 3:30 p.m. (Eastern time) for an appointment. Please indicate that the docket to be accessed is for the February 8, 2002
Maria E. Campbell, Municipal Support Division, Office of Wastewater Management (MC4204-M), U.S. Environmental Protection Agency, Ariel Rios Building, 1200 Pennsylvania Avenue, NW., Washington, DC 20460, (202) 564-0628, e-mail at
This document proposes a framework for making annual Clean Water Act Recognition Awards, formerly known as Wastewater Management Excellence Awards. In the “Rules and Regulations” section of today's
Environmental Protection Agency (EPA).
Direct final rule.
The EPA is providing direct final approval of the New Mexico State Implementation Plan (SIP) for the Don
This direct final rule will become effective on April 9, 2002 without further notice unless the EPA receives adverse comments by March 11, 2002. Should the EPA receive such comments, it will publish a timely document in the
Written comments on this action should be addressed to Mr. Thomas H. Diggs, Chief, Air Planning Section (6PD-L), at the EPA Region 6 Office listed below. Copies of documents relevant to this action are available for public inspection during normal business hours at the following locations. Anyone wanting to examine these documents should make an appointment with the appropriate office at least two working days in advance.
Environmental Protection Agency, Region 6, Air Planning Section (6PD-L), 1445 Ross Avenue, Dallas, Texas 75202-2733.
New Mexico Environment Depart, Air Quality Bureau, 1190 St. Francis Drive, Santa Fe, New Mexico 87502.
Mr. Matthew Witosky, Air Planning Section (6PD-L), Multimedia Planning and Permitting Division, EPA Region 6, 1445 Ross Avenue, Dallas, Texas 75202-2733, telephone (214) 665-7214, electronic mail
Throughout this document, the EPA uses the word “we,” “us,” or “our,” to mean the EPA. The information in this section is organized as follows.
1. What action is the EPA taking today?
2. Why is this necessary?
3. What part of New Mexico is affected?
4. What part of the SIP is being approved?
a. Emission inventory (EI).
b. Emission Certification Statement in Emission Reports.
c. NSR permit program for the construction and operation of new and modified major stationary sources of VOC (section 172(c)(5) of the Act)
5. Does the SIP submitted contain a motor vehicle emissions budget for on-road emissions of volatile organic compounds (VOC's) for transportation conformity purposes?
6. What is a waiver of NO
7. Why is the Doña Ana County area being granted a NO
8. How long is the waiver of NO
9. What process did the State use to approve the SIP and the NO
10. Did EPA make an exception for Doña Ana County under section 179B(a) of the Act, because the area borders Mexico?
EPA is approving a revision to the New Mexico SIP, for the Doña Ana County (marginal) ozone nonattainment area. A portion of Doña Ana County was designated nonattainment for the National Ambient Air Quality Standards (NAAQS) for ozone (see 40 CFR 81.332). The SIP contains four elements that were adopted by the State to meet the requirements of the Act. EPA is approving three of these elements in this action. The fourth element, revisions to the transportation conformity rule, (see 65 FR 14873) was approved March 20, 2000. By approving these final three elements, the EPA is approving the Doña Ana County SIP. With final approval of this action, the State has met all the requirements that apply to Doña Ana county under the one-hour ozone standard. The EPA is also approving a waiver of NO
The EPA designated the area as nonattainment, and classified it as “marginal” due to violations of the ozone standard during 1993, 1994, and 1995 (see 60 FR 30789, June 12, 1995). That action imposed certain requirements under the Act to reduce pollution in order to bring the area back into attainment of the ozone standard. New Mexico has adopted the appropriate regulations, submitted them to EPA for review and approval, and implemented them. Under the Act, the EPA must approve these regulations and other actions into the existing federally-approved State Implementation Plan (SIP), to make them federally enforceable.
The Doña Ana County nonattainment area encompasses the community of Sunland Park, and several smaller communities adjacent to El Paso, Texas, and Ciudad Juarez, Mexico. (See 40 CFR 81.332)
The Doña Ana County SIP constitutes a revision to New Mexico's overall SIP, adopted prior to the 1990 Amendments to the Act. The Doña Ana County SIP is made up of four components, three of which the EPA will approve in this action.
a. Emission inventory (EI),
b. Emission Certification Statement,
c. Revisions to new source review (NSR), The fourth component, Revisions to the transportation conformity rule, was approved in a previous action (see 65 FR 14873, March 20, 2000).
New Mexico completed a comprehensive, accurate, and current inventory of actual emissions from all sources of relevant pollutants in the nonattainment area. The State used 1995 as the base year for the inventory, using a three-month ozone season of August through October, 1995. Stationary point sources, area sources, on-road mobile sources, non-road mobile sources, and biogenic sources of ozone precursors, VOC's and NO
For a listing of the ozone peak season daily emissions estimates by source
EPA reviewed the emissions inventory submitted by the State, and the methodology used to generate it. EPA verified that the State followed EPA's emission inventory guidance in developing the inventory. Please see the docket file for more information on the inventory.
For calendar year 1998 and for each three-year period thereafter (until the area is redesignated to attainment), NMED will be required to submit to EPA a revised inventory meeting the requirements of sections 182(a)(1) and 182(a)(3) of the CAA.
Section 182(a) of the Act requires that States insert an emission certification requirement into their regulations. That means the owner or operator of each stationary source of NO
Subsequent reports must be submitted at least every year thereafter. All reports must contain a certification that the information submitted is accurate to the best knowledge of the individual certifying the statement.
New Mexico revised 20 NMAC, chapter 2, part 73, to meet these requirements. Subpart III, sections 300 to 304, contain the detailed reporting requirements for sources affected by the regulation. These sections will be incorporated by reference into the approved SIP. See the docket file for the actual text of the regulation.
Prior to designation as nonattainment, New Mexico operated an air permit program in Doña Ana County, under New Mexico Air Code (NMAC) part 72—Construction Permits and part 74—Prevention of Significant Deterioration (see generally the Act, sections 110(a) (2)(c) and sections 160-169). After designation to nonattainment, new major sources and major modifications of VOC sources in the nonattainment area of Doña Ana County were required
The SIP submitted by the State does not contain an MVEB. Although the area is subject to the transportation conformity requirements, as are all nonattainment and maintenance areas, the State has directed the planning agency responsible for transportation planning in Sunland Park to perform all necessary conformity analyses using the build/no-build test (see 40 CFR 93.119). The El Paso Metropolitan Planning Organization is the agency that currently performs this analysis for the Sunland Park area. The build/no-build test is an acceptable method to meet the transportation conformity requirements under 40 CFR 93.109(c)(4)(i).
Under the Act, marginal and certain other ozone nonattainment areas are required to control NO
The State requested a NO
In the case of Doña Ana County, which is classified marginal for ozone, granting its request will waive requirements applicable under the Act; NO
The EPA believes that all waivers of section 182(f) requirements that are approved, should be approved only on a contingent basis. If the area exceeds the one-hour ozone standard in the future, the EPA would re-evaluate all available data and modeling to determine the continuing validity of our decision to grant the NO
Under the authority of section 107(d)(3) of the Act, the EPA designated the area as a marginal ozone nonattainment area on June 12, 1995 (see 60 FR 30789, June 12, 1995).
The Act requires states to observe certain procedural requirements in
The SIP package was received on October 8, 1997. The submittal included a Governor's letter dated September 24, 1997, a certification of public hearing with the hearing record, and copies of the rules adopted to fulfill the requirements of the Act. The certificate of public hearing showed that public hearings were held on July 11, 1997, to entertain public comment on a revision of the SIP. Following the public hearing, this revision was adopted by the State on August 8, 1997, and submitted to the EPA as a proposed revision to the SIP. This submittal is necessary to satisfy the requirements of sections 182(a) and 179B of the Act. The State adopted the request for a NO
The SIP revision was reviewed by EPA to determine completeness, in accordance with the completeness criteria referenced above. A letter dated December 24, 1997, was forwarded to the Governor indicating the SIP was complete. This direct rulemaking notice would constitute final action by EPA to approve the SIP and NO
EPA does not have to justify its approval of the SIP under section 179B, because the area is monitoring attainment and has met the other applicable nonattainment requirements of the Act.
Section 179B(a)(2) of the Act contains provisions under which EPA can approve SIP revisions that meet all the applicable requirements for a nonattainment area, even though the area has not achieved attainment. In doing so, EPA must have evidence that the failure to attain the standard is due to the contribution of emissions originating from outside the United States.
In addition to authorizing waivers of the requirement to demonstrate attainment, section 179B(a) also allows an area affected by emissions from outside the United States to avoid being reclassified or “bumped up” to the next higher classification because of its inability to demonstrate attainment. Without such a waiver, the area would be compelled to implement more rigorous control requirements. The EPA has granted such approvals in cases that demonstrate the area would be in attainment of a standard, but for emissions from outside the United States. For example, this was done for El Paso, in approving their PM-10 SIP (see 59 FR 2532, January 19, 1994).
When New Mexico submitted the Doña Ana County SIP to the EPA, the area had not yet attained the one-hour ozone standard. Since that time, the area has attained the standard, by accumulating three consecutive years of quality-assured ambient air data showing no violations of the standard. The most recent data provided by the State of New Mexico, available through the EPA Aerometric Information and Retrieval Service (AIRS) demonstrates that the area continues to attain the one-hour standard. New Mexico has recorded three consecutive years of valid data in the area showing that ozone readings meet the standard.
Since the area has been able to demonstrate it is attaining the one-hour ozone standard, EPA does not need to use the flexibility allowed under section 179B at this time. Similarly, because the area is now attaining the ozone NAAQS, the provisions of section 179B are not needed to insulate the area from the possibility of reclassification. However, the State has provided EPA with evidence indicating that the nonattainment area is influenced by ozone precursor emissions from El Paso, Texas, and Ciudad Juarez, Mexico—a much larger metropolitan region that continues to suffer ozone exceedences. The State is concerned that these other areas could affect air quality in the Doña Ana County nonattainment area in the future and interfere with its current attainment status. Indeed, because the potential for the area to fall out of attainment due to pollution impacts from these adjoining areas cannot be discounted, the State has informed the EPA that it does not intend to seek to formally redesignate the Doña Ana County nonattainment area to attainment under section 107(d)(3)(e) at this time.
Since the situation envisioned by Congress when it enacted section 179B is not now occurring in the Doña Ana County nonattainment area, there is no basis for the EPA to evaluate and/or make a determination at this time regarding the applicability of that section. If the State's fears about the impact of regional emissions are subsequently realized, and ozone concentrations violate the standard, the State will need to analyze and submit any air quality information available in support of their approved SIP and NO
The EPA is approving New Mexico's request for approval of a revision to the State Implementation Plan for New Mexico. This revision is the implementation plan for the Doña Ana County ozone nonattainment area. The revision contains an inventory of actual emissions from all sources, a state regulation requiring that sources covered by the regulation certify the actual emissions of NO
The EPA is also approving a waiver of NO
The EPA is publishing this rule without prior proposal because we view its contents as noncontroversial and anticipate no adverse comments, because this action approves State regulations in place at the State level for some time, into the Federally approved SIP. However, in the “Proposed Rules” section of today's
The Office of Management and Budget (OMB) has exempted this regulatory action from Executive Order 12866, entitled “Regulatory Planning and Review.”
Protection of Children from Environmental Health Risks and Safety
This rule is not subject to Executive Order 13045 because it does not involve decisions intended to mitigate environmental health or safety risks.
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 approves a state rule implementing a federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. Thus, the requirements of section 6 of the Executive Order do not apply to this rule.
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.
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.
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 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 approve 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. 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 sections 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 the 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 approves pre-existing requirements under State or local law, and imposes no new requirements. Accordingly, no additional costs to State, local, or tribal governments, or to the private sector, result from this action.
The Congressional Review Act, 5 U.S.C. 801
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
The EPA believes that VCS are inapplicable to this action. Today's action does not require the public to perform activities conducive to the use of VCS.
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 April 9, 2002. 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, Nitrogen dioxide, Volatile Organic Compounds, Ozone, Reporting and recordkeeping requirements.
42 U.S.C. 7401
(c) * * *
(e) * * *
Environmental Protection Agency (EPA).
Proposed rule.
The EPA is providing direct final approval of the New Mexico State Implementation Plan (SIP) for the Doña Ana County ozone nonattainment area. The area was designated nonattainment for ozone and classified as “marginal” in 1995. New Mexico submitted its SIP for the Doña Ana County area in 1997 requesting approval of the SIP and requesting approval of a waiver of nitrogen oxides (NO
Comments on this proposed rule must be received by March 11, 2002.
You should address comments on this action to Mr. Matthew Witosky, EPA Region 6, Air Planning Section (6PD-L), 1445 Ross Avenue, Suite 1200, Dallas, Texas 75202. Copies of all materials considered in this rulemaking may be examined during normal business hours at the following locations: EPA Region 6 offices, 1445 Ross Avenue, Suite 700, Dallas, Texas 75202, and at New Mexico Environment Department, Air Monitoring & Control Strategy Bureau, 1190 St. Francis Drive, Room So. 2100, Santa Fe, NM 87503.
Mr. Matthew Witosky at (214) 665-7214.
Environmental protection, Air pollution control, Hydrocarbons, Incorporation by reference, Intergovernmental relations, Nitrogen Oxides, Volatile Organic Compounds, Ozone, Reporting and recordkeeping requirements.
42 U.S.C. 7401-7671q.