Forest Service
Inspector General Office, Health and Human Services Department
Industry and Security Bureau
National Oceanic and Atmospheric Administration
Energy Information Administration
Federal Energy Regulatory Commission
Presidential Documents
Centers for Disease Control and Prevention
Centers for Medicare & Medicaid Services
Food and Drug Administration
Inspector General Office, Health and Human Services Department
Land Management Bureau
Minerals Management Service
National Park Service
Immigration and Naturalization Service
Justice Programs Office
Labor Statistics Bureau
Pension and Welfare Benefits Administration
Centers for Disease Control and Prevention
Food and Drug Administration
Federal Aviation Administration
Federal Highway Administration
National Highway Traffic Safety Administration
Internal Revenue Service
Thrift Supervision Office
Consult the Reader Aids section at the end of this issue for phone numbers, online resources, finding aids, reminders, and notice of recently enacted public laws.
To subscribe to the Federal Register Table of Contents LISTSERV electronic mailing list, go to http://listserv.access.gpo.gov and select Online mailing list archives, FEDREGTOC-L, Join or leave the list (or change settings); then follow the instructions.
Board of Governors of the Federal Reserve System.
Final rule.
The Board of Governors has amended its Regulation A on Extensions of Credit by Federal Reserve Banks to reflect its approval of a decrease in the basic discount rate at each Federal Reserve Bank. The Board acted on requests submitted by the Boards of Directors of the twelve Federal Reserve Banks.
The amendments to part 201 (Regulation A) were effective November 6, 2002. The rate changes for adjustment credit were effective on the dates specified in 12 CFR 201.51.
Jennifer J. Johnson, Secretary of the Board, at (202) 452-3259, Board of Governors of the Federal Reserve System, 20th and C Streets NW., Washington, DC 20551; for users of Telecommunications Device for the Deaf (TDD) only, contact (202) 263-4869.
Pursuant to the authority of sections 10(b), 13, 14, 19,
The “basic discount rate” is a fixed rate charged by Reserve Banks for adjustment credit and, at the Reserve Banks' discretion, for extended credit for up to 30 days. In decreasing the basic discount rate from 1.25 percent to .75 percent, the Board acted on requests submitted by the Boards of Directors of the twelve Federal Reserve Banks. The new rates were effective on the dates specified below. The 50-basis-point decrease in the discount rate was associated with a similar decrease in the federal funds rate approved by the Federal Open Market Committee (FOMC) and announced at the same time.
In a joint press release announcing these actions, the FOMC and the Board stated that the FOMC continues to believe that an accommodative stance of monetary policy, coupled with still-robust underlying growth in productivity, is providing important ongoing support to economic activity. However, incoming economic data have tended to confirm that greater uncertainty, in part attributable to heightened geopolitical risks, is currently inhibiting spending, production, and employment. Inflation and inflation expectations remain well contained. In these circumstances, the FOMC believes that this additional monetary easing should prove helpful as the economy works its way through this current soft spot. With its recent action, the FOMC believes that, against the background of its long-run goals of price stability and sustainable economic growth and of the information currently available, the risks are balanced with respect to the prospects for both goals in the foreseeable future.
Pursuant to section 605(b) of the Regulatory Flexibility Act (5 U.S.C. 605(b)), the Board certifies that the change in the basic discount rate will not have a significant adverse economic impact on a substantial number of small entities. The rule does not impose any additional requirements on entities affected by the regulation.
The provisions of 5 U.S.C. 553(b) relating to notice and public participation were not followed in connection with the adoption of the amendment because the Board for good cause finds that delaying the change in the basic discount rate in order to allow notice and public comment on the change is impracticable, unnecessary, and contrary to the public interest in fostering price stability and sustainable economic growth.
The provisions of 5 U.S.C. 553(d) that prescribe 30 days prior notice of the effective date of a rule have not been followed because section 553(d) provides that such prior notice is not necessary whenever there is good cause for finding that such notice is contrary to the public interest. As previously stated, the Board determined that delaying the changes in the basic discount rate is contrary to the public interest.
Banks, Banking, Credit, Federal reserve system.
12 U.S.C. 343
The rates for adjustment credit provided to depository institutions under § 201.3(a) are:
By order of the Board of Governors of the Federal Reserve System.
Internal Revenue Service (IRS), Treasury.
Temporary regulations.
This document contains temporary regulations under section 6043(c) requiring information reporting by a corporation if control of the corporation is acquired or if the corporation has a recapitalization or other substantial change in capital structure. This document also contains temporary regulations under section 6045 concerning information reporting requirements for brokers with respect to transactions described in section 6043(c). The text of these temporary regulations also serves as the text of proposed regulations set forth in the Proposed Rules section of this issue of the
Nancy Rose at (202) 622-4910 (not a toll-free number).
These regulations are being issued without prior notice and public procedure pursuant to the Administrative Procedure Act (5 U.S.C. 553). For this reason, the collection of information contained in these regulations has been reviewed and, pending receipt and evaluation of public comments, approved by the Office of Management and Budget under control number 1545-1812. Responses to this collection of information are mandatory.
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid OMB control number.
For further information concerning this collection of information, and where to submit comments on the collection of information and the accuracy of the estimated burden, and suggestions for reducing this burden, please refer to the preamble to the cross-referencing notice of proposed rulemaking published in the Proposed Rules section of this issue of the
Books or records relating to a collection of information must be retained as long as their contents may become material in the administration of any internal revenue law. Generally, tax returns and tax return information are confidential, as required by 26 U.S.C. 6103.
Section 6043(c) provides that if any person acquires control of a corporation, or if there is a recapitalization or other substantial change in capital structure of a corporation, the corporation, when required by the Secretary, shall make a return setting forth the identity of the parties to the transaction, the fees involved, the changes in the capital structure involved, and such other information as the Secretary may require with respect to such transaction.
Proposed regulations under section 6043(c) were previously published in the
At this time, the IRS believes that information reporting under section 6043(c) for certain large corporate transactions is appropriate. The transactions covered by this reporting requirement are acquisitions of control and substantial changes in the capital structure of a corporation. The temporary regulations require a corporation to attach a form to its income tax return describing these transactions, and to file information returns with respect to certain shareholders in such transactions. Duplicate reporting is not intended; thus, the regulations provide that no reporting is required under this section where reporting is required under another section. The text of these temporary regulations also serves as the text of the proposed regulations set forth in the cross-referencing notice of proposed rulemaking published in the proposed rules section of this issue of the
These temporary regulations require a domestic corporation involved in certain large taxable transactions to file form 8806 reporting and describing such transactions. The corporation must attach form 8806 to its timely filed income tax return. If form 8806 is not available at least 90 days prior to the due date (including extensions) of the corporation's income tax return for the year in which the acquisition of control or the substantial change in capital structure occurs or at least 90 days before such return is timely filed (whichever is sooner), the regulation allows a corporation to make the report by attaching an interim statement to its return containing certain required information.
The temporary regulations define an acquisition of control of a corporation as a transaction or series of related transactions in which stock representing control of that corporation is distributed by a second corporation or in which stock representing control of that corporation is acquired (directly or indirectly) by a second corporation and the shareholders of the first corporation receive cash, stock or other property. For these purposes, control is determined in accordance with the first sentence of section 304(c)(1). With certain limitations, the constructive ownership rules of section 318(a) apply to determine ownership. Acquisitions of control within an affiliated group are excepted from this definition, as are acquisitions in which the fair market value of the stock acquired in the transaction or series of related transactions is less than $100,000,000.
Under the temporary regulations, a corporation has a substantial change in its capital structure if the corporation in a transaction or series of related transactions (a) undergoes a recapitalization with respect to its stock, (b) redeems its stock, (c) merges, consolidates or otherwise combines with another entity or transfers substantially all of its assets to one or more entities, (d) transfers all or part of its assets to another corporation in a title 11 or similar case and, in pursuance of the plan, distributes stock or securities of that corporation, or (e)
The temporary regulations also require a domestic corporation involved in the specified transactions to issue, with respect to each of its shareholders, a form 1099-CAP reporting the amount of any cash plus the fair market value of any property (including stock) provided to the shareholder in the transaction. Corporations are not required to report amounts distributed to certain exempt recipients or the fair market value of any stock provided to a shareholder if the corporation reasonably determines that the receipt of such stock would not cause the shareholder to recognize gain (if any). Further, transactions and distributions already reported under other sections are not subject to reporting under these regulations.
Penalties under section 6652(l) may be imposed for failing to file required returns under section 6043(c) (including failure to file on magnetic media, as required under section 6011(e) and § 1.6011-2). The penalty under section 6652(l) is $500 for each day the failure continues, but the total amount imposed with respect to a return cannot exceed $100,000. The temporary regulations provide that the information returns required under these regulations shall be treated as one return for purposes of the section 6652(l) penalty, so that the penalty shall not exceed $500 per day ($100,000 in total) with respect to any acquisition of control or change in capital structure. Further, as provided in section 6652(l), such penalty does not apply if the failure is due to reasonable cause. Until regulations are promulgated under section 6652(l) to set forth specific standards for determining reasonable cause, the IRS will use the reasonable cause standards set forth in § 301.6724-1 of this chapter as a guideline for determining reasonable cause.
Section 1.6045-3T requires a broker who, as the record holder of stock, receives a form 1099-CAP from a corporation pursuant to the reporting requirements of § 1.6043-4T, to file a form 1099-CAP with respect to the actual owner and furnish such form 1099-CAP to the actual owner.
The temporary regulations are effective only for acquisitions of control and substantial changes of capital structure that occur after December 31, 2001, and for which the reporting corporation or any shareholder is required to recognize gain (if any) as a result of the application of section 367(a). The cross-referencing proposed regulations published in proposed rules section of this issue of the
It has been determined that this Treasury decision is not a significant regulatory action as defined in Executive Order 12866. Therefore, a regulatory assessment is not required. It has also been determined that section 553(b) of the Administrative Procedure Act (5 U.S.C. chapter 5) does not apply to these regulations. For the applicability of the Regulatory Flexibility Act (5 U.S.C. chapter 6), refer to the Special Analyses section of the preamble to the cross-referencing notice of proposed rulemaking published in the proposed rules section of this issue of the
The principal author of these temporary regulations is Nancy L. Rose, Office of Associate Chief Counsel (Procedure and Administration). However, other personnel from the IRS and Treasury Department participated in their development.
Income taxes, Reporting and recordkeeping requirements.
Reporting and recordkeeping requirements.
26 U.S.C. 7805 * * *
(a)
(i)
(ii)
(iii)
(iv)
(v)
(A) A description of the transaction or transactions that gave rise to the acquisition of control or the substantial change in capital structure of the corporation;
(B) The date or dates of the transaction or transactions that gave rise to the acquisition of control or the substantial change in capital structure;
(C) A description of and a statement of the fair market value of any stock provided to the reporting corporation's shareholders in exchange for their stock if the reporting corporation reasonably determines that the shareholders are not required to recognize gain (if any) from the receipt of such stock for U.S. Federal income tax purposes; and
(D) A statement of the aggregate amount of cash plus the fair market value of any property (including stock if the reporting corporation reasonably determines that its shareholders would be required to recognize gain (if any) on the receipt of such stock, but excluding stock described in paragraph (a)(1)(v)(C) of this section) provided to the reporting corporation's shareholders in exchange for their stock.
(2)
(3)
(4)
(ii) No reporting is required under paragraph (a) of this section with respect to a transaction for which information is required to be reported pursuant to section 6043(a), provided the transaction is properly reported in accordance with that section.
(5)
(b)
(2)
(3)
(4)
(i) The name, address, telephone number and TIN of the reporting corporation;
(ii) The name, address and TIN of the shareholder;
(iii) The number and class of shares in the reporting corporation exchanged by the shareholder;
(iv) The amount of cash and the fair market value of any stock (other than stock described in paragraph (a)(1)(v)(C)) of this section or other property provided to the shareholder in exchange for its stock; and
(v) Such other information as may be required by the instructions to form 1099-CAP.
(5)
(6)
(i) Any shareholder who receives solely stock described in paragraph (a)(1)(v)(C) of this section in exchange for its stock in the corporation.
(ii) Any shareholder who is required to recognize gain (if any) as a result of the receipt of cash, stock, or other property if the corporation reasonably determines that the amount of such cash plus the fair market value of such stock and other property does not exceed $1,000. Stock described in paragraph (a)(1)(v)(C) of this section is not taken into account for purposes of this paragraph (b)(6)(ii).
(iii) Any shareholder described in paragraphs (b)(6)(iii)(A) through (K) of this section if the corporation has actual knowledge that the shareholder is described in one of paragraphs (b)(6)(iii)(A) through (K) of this section or if the corporation has a properly completed exemption certificate from the shareholder (as provided in § 31.3406(h)-3 of this chapter). The corporation also may treat a shareholder as described in paragraphs (b)(6)(iii) (A) through (J) of this section based on the applicable indicators described in § 1.6049-4(c)(1)(ii).
(A) A tax-exempt organization, as described in § 1.6049-4(c)(1)(ii)(B)(1).
(B) An individual retirement plan, as described in § 1.6049-4(c)(1)(ii)(C).
(C) The United States, as described in § 1.6049-4(c)(1)(ii)(D).
(D) A state, as described in § 1.6049-4(c)(1)(ii)(E).
(E) A foreign government, as described in § 1.6049-4(c)(1)(ii)(F).
(F) An international organization, as described in § 1.6049-4(c)(1)(ii)(G).
(G) A foreign central bank of issue, as described in § 1.6049-4(c)(1)(ii)(H).
(H) A real estate investment trust, as described in § 1.6049-4(c)(1)(ii)(J).
(I) An entity registered under the Investment Company Act of 1940, as described in § 1.6049-4(c)(1)(ii)(K).
(J) A common trust fund, as described in § 1.6049-4(c)(1)(ii)(L).
(K) A corporation, as defined in section 7701(a)(3) (except for corporations for which an election under section 1362(a) is in effect), if the reporting corporation reasonably determines that such corporation is not a broker (as defined in § 1.6045-1(a)(1)) or a record holder for the actual owner of the stock.
(iv) Any shareholder that the corporation, prior to the transaction, associates with documentation upon which the corporation may rely in order to treat payments to the shareholder as made to a foreign beneficial owner in accordance with § 1.1441-1(e)(1)(ii) or as made to a foreign payee in accordance with § 1.6049-5(d)(1) or presumed to be made to a foreign payee under § 1.6049-5(d)(2) or (3). For purposes of this paragraph (b)(6)(iv), the provisions in § 1.6049-5(c) (regarding rules applicable to documentation of foreign status and definition of U.S. payor and non-U.S. payor) shall apply. The provisions of § 1.1441-1 shall apply by substituting the terms “corporation” and “shareholder” for the terms “withholding agent” and “payee” and without regard to the fact that the provisions apply only to amounts subject to withholding under chapter 3 of the Internal Revenue Code. The provisions of § 1.6049-5(d) shall apply by substituting the terms “corporation” and “shareholder” for the terms “payor” and “payee”. Nothing in this paragraph (b)(6)(iv) shall be construed to relieve a corporation of its withholding obligations under section 1441.
(v) Any shareholder if, on January 31 of the year following the calendar year in which the shareholder receives cash, stock, or other property, the corporation did not know and did not have reason to know that the shareholder received such cash, stock, or other property in a transaction or series of related transactions that would result in an acquisition of control or a substantial change in capital structure.
(7)
(c)
(i) Stock representing control of the first corporation is distributed by a second corporation to shareholders of the second corporation and the fair market value of such stock on the date of distribution is $100,000,000 or more; or
(ii) (A) Before an acquisition of stock of the first corporation (directly or indirectly) by a second corporation, the second corporation does not have control of the first corporation;
(B) After the acquisition, the second corporation has control of the first corporation;
(C) The fair market value of the stock acquired in the transaction and in any related transactions as of the date or dates on which such stock was acquired is $100,000,000 or more; and
(D) The shareholders of the first corporation (determined without applying the constructive ownership rule of section 318(a)) receive cash, stock, or other property pursuant to the acquisition.
(2)
(3)
(ii) The determination of whether there has been an acquisition of control shall be made without regard to whether the person or persons from whom control was acquired retain indirect control of the first corporation under section 318(a).
(iii) For purposes of paragraph (c)(1)(ii) of this section, section 318(a) shall not apply to cause a second corporation to be treated as owning, before an acquisition of stock in a first corporation (directly or indirectly) by the second corporation, any stock that is acquired in the first corporation. For example, if the shareholders of a domestic corporation form a new holding company and then transfer their shares in the domestic corporation to the new holding company, the new holding company shall not be treated as having control of the domestic corporation before the acquisition. The new holding company acquires control of the domestic corporation as a result of the transfer. Similarly, if the shareholders of a domestic parent corporation transfer their shares in the parent corporation to a subsidiary of the parent in exchange for shares in the subsidiary, the subsidiary shall not be treated as having control of the parent before the transaction. The subsidiary acquires control of the parent as a result of the transfer.
(4)
(5)
(d)
(2)
(i) Undergoes a recapitalization with respect to its stock;
(ii) Redeems its stock (including deemed redemptions);
(iii) Merges, consolidates or otherwise combines with another corporation or transfers all or substantially all of its assets to one or more corporations;
(iv) Transfers all or part of its assets to another corporation in a title 11 or similar case and, in pursuance of the plan, distributes stock or securities of that corporation; or
(v) Changes its identity, form or place of organization.
(e)
(f)
(g)
(h)
(A) The transaction satisfies the requirements of section 368;
(B) The C shareholders who exchange their C stock solely for D stock will not be required to recognize gain (if any) on the exchange; and
(C) The C shareholders who exchange their C stock for a combination of short term notes and D stock will be required to recognize gain (if any) on the exchange solely with respect to the receipt of the short term notes.
(ii) If a statement is filed in accordance with § 1.368-3(a) with respect to the transaction, C is not required to attach form 8806 (or an interim statement) to its return under paragraph (a) of this section. Regardless of whether a statement is filed in accordance with § 1.368-3(a), C (or D as the successor to C) must comply with the rules in paragraph (b) of this section. With respect to each shareholder who receives a combination of short term notes and D stock, and who is not an exempt recipient, C or D must file a form 1099-CAP showing the fair market value of the short term notes provided to the shareholder, and C (or D) must furnish a copy of the form 1099-CAP to that shareholder. The form 1099-CAP should not show the fair market value of the D stock provided to the shareholder. C and D are not required to file and furnish forms 1099-CAP with respect to shareholders who receive only D stock in exchange for their C stock.
(i)
(a)
(b)
(c)
(1) The name, address and taxpayer identification number of the actual owner;
(2) The number and class of shares in the corporation exchanged by the actual owner;
(3) The amount of cash and the fair market value of stock or other property provided to the actual owner in exchange for its stock, that would have been reported by the corporation under § 1.6043-4T if the corporation had provided the form 1099-CAP directly to the actual owner (rather than to the broker as nominee); and
(4) Such other information as may be required by form 1099-CAP.
(d)
(e)
(f)
26 U.S.C. 7805 * * *
(b) * * *
National Park Service, Interior.
Final rule.
The National Park Service (NPS) is postponing the implementation of some existing snowmobile regulations in Yellowstone National Park, the John D. Rockefeller, Jr., Memorial Parkway, and Grand Teton National Park for one year. This additional time is needed because the NPS has not had sufficient time to plan for and implement the NPS-managed, mass-transit, snowcoach-only system outlined in the existing Winter Use Plan and Record of Decision and to complete the Supplemental Environmental Impact Statement (SEIS).
This rule becomes effective December 18, 2002.
Kym Hall, Regulations Program Manager, National Park Service, 1849 C Street, NW., Room 7248, Washington, DC 20240. Phone: (202) 208-4206. Email:
The NPS published the proposed rule on March 29, 2002 (67 FR 15145). Background information on this rulemaking is in the proposed rule.
We provided 60 days for public comment on our proposal, through May 28, 2002. By midnight of that day, we had received 7,709 comments in the form of individual letters, form letters, petitions and e-mails. Of the comments, 3,693 supported postponing the implementation of existing snowmobile regulations (the proposed rule) and 4,016 opposed the proposed rule. We received 403 comments from Gateway communities (Gardner and West Yellowstone, Montana, and Jackson and Cody, Wyoming), 1,195 from the surrounding states of Idaho, Montana and Wyoming (outside the Gateway communities) and 6,111 comments from the remainder of the United States.
The comment period for this rule ran concurrently with the comment period for the Draft SEIS. It is likely that many of the comments received during the rulemaking comment period were more likely intended to apply to the SEIS. Many of the comments went beyond the narrow focus of the proposed rule and opined on whether the NPS should alter its decision from November, 2000, to allow continued recreational snowmobile use in the three park units. The pending SEIS process will result in a determination of whether such use will occur. At this time the NPS believes it can accommodate some level of recreational use in the three park units.
The following is a summary of all substantive comments we received on the proposed rule and our responses to them.
Finally, the Regulatory Flexibility Act requires us to consider the economic impact to businesses from our rulemaking decisions. These businesses could be anything from snowmobile manufacturers to the hotel that provides a room for an out-of-town visitor coming to ride a snowmobile.
The one year extension of the phase-out of certain provisions of the existing regulation is justified on the same basis as that stated with the publication of that regulation in January 2001:
Under our Management Policies 2000, if there is an impairment of park resources and values from ongoing activities, as here, we must eliminate it as soon as reasonably possible. If the impairment is not from permanent impacts, as here, in determining how soon that is, we may make due allowance for avoiding unacceptable social, economic, or environmental effects of the action eliminating the impairment. (66 FR 7259, January 22, 2001)
As stated previously, NPS has not had sufficient time to implement the NPS-managed, mass-transit, snowcoach-only decision under the existing regulation and Record of Decision, and additional time is still needed to complete the SEIS. The impacts during the winter of 2002-03 are, in any event, anticipated to be less than those identified in the previous planning effort as a result of the various regulatory changes that will go into effect this winter, and the planned enhanced pilot project developed on the basis of our experience the past winter.
Over 1,200 other letters were received supporting on the continued use of snowplanes on Jackson Lake. The NPS specifically indicated in the proposed rule that snowplane use would not be reconsidered since it was not an element of the SEIS. The use of snowplanes on Jackson Lake continues to be prohibited.
This document is a significant rule and has been reviewed by the Office of Management and Budget under Executive Order 12866.
(1) This rule will not have an effect of $100 million or more on the economy. It will not adversely affect in a material way the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities.
This rule would delay most adverse economic impact from the existing rule for potentially two winter seasons, and there may be economic benefits resulting from the proposed extension. In the economic report “Proposed Restrictions on Snowmobile Riding in the Greater Yellowstone Area Under the Delay Rule” (MACTEC Engineering and Consulting of Georgia, Inc., BBL Sciences, and RTI International, November 2002) net economic gains are estimated to be between $3.0 million and $7.3 million. These estimates only include the monetized impacts of this rule, and do not include non-monetized values such as environmental effects. The full economic analysis can be viewed at
(2) This rule will not create a serious inconsistency or otherwise interfere with an action taken or planned by another agency.
Implementing actions under this rule will not interfere with other agencies or local government plans, policies, or controls. This is an agency specific change.
(3) This rule does not alter the budgetary effects of entitlements, grants, user fees, or loan programs or the rights or obligations of their recipients.
This rule will only postpone the phase out of snowmobiles for one year within specific park units. No grants or other forms of monetary supplements are involved.
(4) This rule may raise novel legal or policy issues.
The issue of prohibiting snowmobiles or allowing their continued use has generated local as well as national interest on the subject in the greater Yellowstone area. Previously, tens of thousands of public comments were received and analyzed in the development of the FEIS, Winter Use Management Plan, and existing regulations.
The Department of the Interior certifies that this document will not have a significant economic effect on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
After considering the economic impacts of the delay rule on small entities, NPS concludes the delay rule will mitigate the impacts on small businesses during the winters of 2002-2003 and 2003-2004 relative to the impacts under the January 2001 rule. The NPS projects higher total levels of revenue for firms providing unguided and guided snowmobile rentals and snowcoach tours in those winters.
This rule is not a major rule under 5 U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act. This rule:
a. Does not have an annual effect on the economy of $100 million or more.
This rule would delay most adverse economic impact from the existing rule for one year, there may be economic benefits resulting from the proposed extension.
b. Will not cause a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions.
Delaying the implementation of current snowmobile regulations for one year will have little effect on costs or prices for consumers, individual industries or any government agency.
c. Does not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S.-based enterprises to compete with foreign-based enterprises.
This rulemaking has no effect on methods of manufacturing or production and specifically influences only the Greater Yellowstone region of Wyoming, Montana and Idaho, not national or U.S. based enterprises.
This rule does not impose an unfunded mandate on State, local, or tribal governments or the private sector of more than $100 million per year. The rule does not have a significant or unique effect on State, local or tribal governments or the private sector.
This rule postpones the implementation of existing snowmobile regulations for one year. It imposes no other requirements on other agencies, governments, or the private sector.
In accordance with Executive Order 12630, the rule does not have significant takings implications.
This rule proposes to delay the implementation of certain existing snowmobile regulation for one year. Owners of private property within the boundaries of Grand Teton National Park will still be afforded access to their private property during the winter use season. No other property is affected.
In accordance with Executive Order 13132, the rule does not have sufficient federalism implications to warrant the preparation of a Federalism Assessment.
This proposed rule effects use by the public of NPS administered lands. It has no outside effects on other areas and only addresses a portion of the use within parks.
In accordance with Executive Order 12988, the Office of the Solicitor has determined that this rule does not unduly burden the judicial system and meets the requirements of sections 3(a) and 3(b)(2) of the Order.
This regulation does not require an information collection from 10 or more
In 2000, NPS completed a Final Environmental Impact Statement and issued a Record of Decision. That Record of Decision was the basis for the existing rule, and the rationale in that document supports the decision set forth in this rule. A Draft Supplemental Environmental Impact Statement (DSEIS) has been prepared to reconsider the Record of Decision.
In accordance with the President's memorandum of April 29, 1994, “Government to Government Relations with Native American Tribal Governments” (59 FR 22951) and 512 DM 2:
We have evaluated potential effects on federally recognized Indian tribes and have determined that there are no potential effects.
Numerous tribes surrounding the greater Yellowstone area were consulted in the development of the Winter Use Plan and FEIS. The main concerns expressed by the tribes were the effects on wildlife by snowmobiles while operating inside the park units. The National Park Service is currently studying how to minimize adverse snowmobile-wildlife interactions in the SEIS. During the winter use season 2002-2003, the NPS will again provide additional staff presence to enforce existing regulations and educate visitors about proper snowmobile use in order to reduce conflicts between snowmobiles and wildlife. This rule has no effect on tribal lands or trusts.
District of Columbia, National Parks, Reporting and recordkeeping requirements.
16 U.S.C. 1, 3, 9a, 460(q), 462(k); Sec. 7.96 also issued under D.C. Code 8-137(1981) and D.C. Code 40-721 (1981).
(l)(5)
(l)(7)
(l)(11)(i) Snowcoaches , and during the winter use seasons of 2002-2003 and 2003-2004 snowmobiles, may not be operated in the park between the hours of 9 p.m. and 7 a.m. except by authorization.
(l)(11)(viii) During the winter season of 2003-2004, snowmobiles must be accompanied by an NPS permitted guide and may not travel in groups of more than 11 snowmobiles.
(a)(1)
(a)(4)
(a)(5)
(a)(9)(vi) Snowcoaches, and during the winter use seasons of 2002-2003 and 2003-2004 snowmobiles, may not be operated in the park between the hours of 9 p.m. and 7 a.m. except by authorization.
(g)(1)
(g)(4) Effective until the end of the winter use season 2002-2003, the following water surface is designated for snowmobile use: The frozen surface of Jackson Lake.
(g)(6)
(g)(7)(vi) Snowcoaches, and during the winter use seasons of 2002-2003 and 2003-2004 snowmobiles, may not be operated in the park between the hours of 9 p.m. and 7 a.m.
Postal Service.
Final rule.
This final rule amends the regulations for inspecting postage meter production facilities that are located outside the continental United States. This rule requires the manufacturer to reimburse the Postal Service for certain costs incurred by required inspections of production facilities located outside the continental United States.
The rule is effective November 18, 2002.
Wayne Wilkerson, manager of Postage Technology Management, at 703-292-3782, or by fax at 703-292-4050.
Title 39, Code of Federal Regulations (CFR) part 501, Authorization to Manufacture and Distribute Postage Meters, requires the Postal Service to inspect meter production facilities to determine if the facilities satisfy Postal Service requirements for meter and component security and production quality. A manufacturer may have valid business reasons for selecting a particular location for its production facilities. However, when a manufacturer chooses to locate these facilities outside the continental United States, conducting the required inspections of such facilities places an undue cost burden on the Postal Service. The Postal Service is requiring the manufacturer to reimburse the travel-related costs.
The proposed rule was published in the
1. Both commenters opposed having the provider become responsible for the costs incurred by the Postal Service when it conducts required inspections of provider facilities located outside the continental U.S. One commenter claimed that this requirement is both unfair and unreasonable, since it puts an undue burden on a company with production facilities outside the U.S., and therefore places non-U.S.-based companies at a disadvantage. The commenter also noted that in the global economy, it is unreasonable to expect products to be sourced from a single country. The other commenter noted that even though providers have maintained facilities in Europe for years, the Postal Service has not asked that the providers pay postal expenses for travel to these European locations. The commenter requested that European production facilities be exempt from the new rule.
The Postal Service understands the concern about having providers pay the costs incurred for Postal Service personnel who travel outside the continental United States to inspect production facilities. The initially approved foreign manufacturing and production facilities were located in Europe. The Postal Service was able to minimize its cost by conducting periodic, routine, security inspections of multiple production locations on a single trip. Ongoing routine inspections of these long-established locations have resolved many of the security issues that can arise during facility startup. Although the final rule includes no exemption from the requirement for manufacturers to pay for Postal Service inspections of European production facilities, the Postal Service plans to continue its policy of funding the cost of certain inspection trips, as it has in the past, at its discretion. Postal Service funding will be limited to trips for routine inspections when the Postal Service can conduct multiple inspections and costs are not excessive. The Postal Service must limit its cost exposure by requiring manufacturers to pay the travel-related costs for inspections outside the continental United States whenever the costs are associated with particular security issues related to the manufacturer's products, or with the startup or implementation of a new plant or of a new or substantially changed manufacturing process. The Postal Service revised the proposed rule in response to this comment.
2. One commenter noted that when the Postal Service inspected overseas facilities in the past, the inspection team often visited more than one manufacturer or facility on a given trip. The other commenter noted that it is unreasonable to require the provider to pay travel expenses for inspections, which are conducted in the interests of the Postal Service. The commenter suggested that each organization consider whether the expense of travel is justified by the benefit gained. If it is not, then the trip should be postponed and not billed to another organization. The commenter noted that requirement for providers to reimburse the Postal Service also raises the issue of who is to decide the specifics of travel, including the number of Postal Service representatives.
Although the decision on where to locate production facilities for meter products or components is not one in which the Postal Service would expect to participate, such decisions may have the effect of increasing Postal Service costs incurred in the administration of the postage meter program. Given the financial constraints under which the Postal Service must operate, and our determination to avoid additional revenue security issues, the Postal Service cannot allow the business decisions of providers to determine the security of Postal Service revenues or to increase Postal Service costs indiscriminately. However, in recognition of the concerns expressed, the Postal Service is adding paragraph 501.2(c)(i) to clarify the final rule by defining how the Postal Service will control the costs allocated to the manufacturer. For example, the Postal Service will combine trips to more than one facility whenever possible and will limit the number of Postal Service representatives on the inspection team to the minimum number required to conduct the inspection.
3. It has come to the attention of the Postal Service that companies are considering using production facilities in certain foreign countries where political or other impediments may prevent the Postal Service from conducting security evaluations of these facilities. Postal Service approval to distribute meters produced in such facilities may be suspended until such time as satisfactory inspections may be conducted. In recognition of this concern, the Postal Service is adding paragraph 501.2(c)(ii) to clarify the final rule.
Administrative practice and procedure, Postal Service.
5 U.S.C. 552(a); 39 U.S.C. 101, 401, 403, 404, 410, 2601, 2605; Inspector General Act of 1978, as amended (Public Law 95-452, as amended); and 5 U.S.C. App. 3.
Any concern wanting authorization to manufacture and/or lease postage meters for use by licensees under
(c) Have, or establish, and keep under its supervision and control, adequate production facilities suitable to carry out the provisions of §§ 501.15 through 501.21 to the satisfaction of the Postal Service. The production facilities must be subject to unannounced inspection by representatives of the Postal Service. If the provider's production facilities are located outside the continental United States, the provider will be responsible for all reasonable and necessary travel-related costs incurred by the Postal Service to conduct the inspections. Travel-related costs are determined in accordance with Postal Service Handbook F-15,
(i) When conducting an inspection outside the continental United States, the Postal Service will make every effort to combine the inspection with other inspections in the same general geographic area in order to enable affected manufacturers to share the costs. The Postal Service team conducting such inspections will be limited to the minimum number necessary to conduct the inspection. All air travel will be contracted for at the rates for official government business, when available, under such rules respecting class of travel as apply to those Postal Service representatives inspecting the facility at the time the travel occurs.
(ii) If political or other impediments prevent the Postal Service from conducting security evaluations of meter manufacturing facilities in foreign countries, Postal Service approval to distribute meters produced in those facilities may be suspended until such time as satisfactory inspections may be conducted.
(d) Have, or establish, and keep under its active supervision and control adequate facilities for the control, distribution, and maintenance of meters and their replacement or secure disposal or destruction when necessary.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Correction to final rule.
This document contains a correction to a final rule published on October 29, 2002. It removes an amendatory instruction that was inadvertently published in the October 29, 2002 document.
November 18, 2002.
On October 29, 2002, (67 FR 65902) NMFS published a final rule in the
In the FR Doc. 02-27360 in the issue of Tuesday, October 29, 2002 (67 FR 65902) make the following correction:
1. On page 65906, in the third column, under instruction 7.(i), remove “ and (g)(2).”
Department of Energy.
Proposed rule; opportunity for public comment.
This proposed rule would revise the Department of Energy's (DOE's) floodplain and wetland environmental review requirements to add flexibility and remove unnecessary procedural burdens by: Simplifying DOE public notification procedures for proposed floodplain and wetland actions; exempting additional actions from the floodplain and wetland assessment provisions of these regulations; providing for immediate action in an emergency; expanding the existing list of sources that may be used in determining the location of floodplains and wetlands; and allowing floodplain and wetland assessments for actions proposed to be taken under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) to be coordinated with the CERCLA environmental review process rather than the National Environmental Policy Act (NEPA) process. In addition, the proposed revisions would make the rule easier to use by reordering sections, clarifying requirements, and eliminating provisions that are no longer necessary. The proposed revisions would streamline existing procedures and add no new or additional requirements. This proposed revision also would provide a conforming change to 10 CFR part 1021 to allow for issuance of a floodplain statement of findings in a final environmental impact statement (EIS) or separately.
Interested persons should submit comments by January 14, 2003.
You should address written comments on the proposed revisions to Carolyn Osborne, U.S. Department of Energy, Office of NEPA Policy and Compliance, 1000 Independence Avenue SW., Washington, DC 20585-0119. You also may e-mail written comments to:
For information regarding DOE's regulations for compliance with floodplain and wetland environmental review requirements or these proposed revisions, contact Carolyn Osborne at the above address. Telephone (202) 586-4600 or leave a message at (800) 472-2756.
For information on DOE's NEPA process, contact Carol M. Borgstrom, Director, Office of NEPA Policy and Compliance, at the above address and telephone numbers.
We published our regulations entitled “Compliance with Floodplain/Wetlands Environmental Review Requirements” (10 CFR Part 1022) on March 7, 1979 (44 FR 12596) to implement the requirements of Executive Order 11988, “Floodplain Management” (42 FR 2951, May 24, 1977), and Executive Order 11990, “Protection of Wetlands” (42 FR 26961, May 24, 1977).
Executive Orders 11988 and 11990 direct Federal agencies to consider and protect the beneficial values of floodplains and wetlands, and Executive Order 11988 also requires Federal agencies to consider, and implement protection from, the risk of loss from floods. The Executive Orders direct that Federal agencies evaluate the potential impacts of, and look for alternatives to, actions proposed in a floodplain or wetland. The Executive Orders also direct that agencies locate any new development outside floodplains and any new construction outside wetlands whenever there is a practicable alternative for doing so. When the action must proceed in a floodplain or wetland, the responsible agency is to implement steps to mitigate any potential harm. The assessment process under the Executive Orders is to include an opportunity for public review, and the Executive Orders are to be implemented through existing procedures, including those used to comply with NEPA, to the extent possible. The Executive Orders contain other informational requirements, including that Federal agencies notify the White House Office of Management and Budget (OMB) when new budget requests involve actions proposed to be in a floodplain or wetland and that Federal agencies provide certain information during transfers of property to non-Federal parties.
While this basic framework is the same in both Executive Orders, they differ in three important ways. First, Executive Order 11988 requires an assessment for any action proposed in a floodplain, whereas Executive Order 11990 only requires an assessment for new construction in a wetland. Second, Executive Order 11988 directs that if an agency finds that there is no practicable alternative to undertaking the action in a floodplain, then the agency will circulate a brief notice explaining the basis for its finding. Executive Order 11990 contains no similar provision for actions in wetlands. Finally, Executive Order 11988 requires the use of certain building standards and related measures for development in a floodplain. There is nothing comparable in Executive
Central to our implementation of Executive Orders 11988 and 11990 are the floodplain and wetland assessment processes contained in subpart B of 10 CFR part 1022. The assessments ensure that we fulfill the substantive provisions of the Executive Orders to examine alternatives to undertaking actions in a floodplain or wetland, potential impacts on the beneficial values of floodplains and wetlands, and possible mitigation measures. As required by the Executive Orders, we look for practicable alternatives to locating a proposed action in a floodplain or wetland and only conduct a floodplain or wetland assessment when no alternative location is practicable. Our processes also ensure that we fulfill the procedural provisions of the Executive Orders to allow early public review of our proposals for certain activities in a floodplain or wetland, provide notice of a finding that there are no practicable alternatives to undertaking an action in a floodplain, and make use of existing processes, including those used to implement NEPA.
Our floodplain and wetland assessment process has five steps. First, we determine early in the planning process for all proposals if a floodplain or wetland assessment is required, based on the location of the proposed action and the applicability provisions in our regulation, which are taken from the Executive Orders. As noted above, Executive Order 11988 requires an assessment for a broader set of actions proposed in a floodplain than Executive Order 11990 requires for actions proposed in a wetland. Our requirements in part 1022 reflect this difference. When an action is proposed in a wetland that is located in a floodplain, we apply the more encompassing requirements for an action proposed in a floodplain.
Second, if a floodplain or wetland assessment is required, we provide public notice and allow at least 15 days for public review of our proposal. If we are preparing an EIS for the proposal, then we may incorporate this announcement into the EIS notice of intent required under applicable NEPA regulations. Otherwise, we announce the opportunity for early public review through a public notice that describes the proposed action and its location and is published in the
Third, we prepare the floodplain or wetland assessment. If we are also preparing an EIS or environmental assessment (EA), then we usually incorporate the floodplain or wetland assessment into the NEPA documentation. Otherwise, we separately document the floodplain or wetland assessment. In either case, we describe the proposed action and include a map showing the location of the proposed action with respect to the floodplain or wetland. We discuss the positive and negative, direct and indirect, and long- and short-term effects of the proposed action on the floodplain or wetland. For actions proposed in a floodplain, the assessment evaluates effects of the proposed action on lives and property and evaluates natural and beneficial floodplain values. For actions proposed in a wetland, the assessment evaluates effects on the survival, quality, and natural and beneficial values of the wetland. The floodplain or wetland assessment also considers alternatives that may avoid adverse effects and incompatible development in floodplains or wetlands and addresses mitigation measures.
Fourth, we determine whether there are any practicable alternatives to locating the proposed action in a floodplain or wetland. If we find that there are not, then before taking action in a floodplain we publish a brief statement of findings describing the proposed action, explaining why the action is proposed in a floodplain, listing alternatives considered, stating whether the action conforms to state or local floodplain protection standards, and describing steps to be taken to minimize potential harm to or within the floodplain. The statement of findings may be incorporated into the finding of no significant impact (FONSI) or final EIS, as appropriate, or issued separately. Where no EA or EIS is required, we publish the statement of findings in the
Fifth, we follow up decisions to locate actions in a floodplain or wetland through methods appropriate for the circumstances of each action.
The current rule contains one exemption from the requirement to prepare a floodplain or wetland assessment, which is for routine maintenance of existing facilities and structures on DOE property within a floodplain or wetland. By routine maintenance, we mean those activities needed as a normal part of operations to maintain and preserve facilities and structures in a condition suitable for continued use for their designated purpose. Routine maintenance does not include upgrades, improvements, or replacements that significantly extend the originally intended useful life of a facility or structure or that change its purpose. Where unusual circumstances indicate the possibility of adverse impacts on a floodplain or wetland, though, we will consider the need for a floodplain or wetland assessment even for routine maintenance activities.
Other requirements in 10 CFR part 1022 that implement aspects of Executive Orders 11988 and 11990 address building standards, providing floodplain and wetland information to external parties, property management, and budget requests. Although these requirements are designed to promote awareness of the values of floodplains and wetlands and the risks of flood loss, they are not part of the floodplain and wetland assessment process.
The Secretary of Energy has approved issuance and publication of this notice of proposed rulemaking.
We propose to revise 10 CFR part 1022 to add flexibility to our implementation of the Executive Orders, remove unnecessary procedural burdens, and make the rule easier to use by reordering sections, clarifying requirements, and eliminating provisions that are no longer needed. These changes stem from our experience implementing the existing requirements over the past 20 years. We expect these changes to improve our ability to meet our goals for floodplain and wetland protection in a timely and cost-effective manner. We propose to revise 10 CFR part 1021 to allow floodplain statements of findings to be issued in a final EIS or separately.
The major revisions we propose would: (1) Simplify our public notification procedures for proposed floodplain and wetland actions by emphasizing local publication as opposed to publication in the
Rather than require publication in the
As noted above, part 1022 currently does not ordinarily require a floodplain or wetland assessment for routine maintenance of existing facilities and structures on DOE property in a floodplain or wetland. We propose to exempt four additional classes of floodplain and wetland actions from subpart B, Procedures for Floodplain and Wetland Reviews. At proposed section 1022.5(d)(2), we would add exemptions for three similar classes of activities (site characterization, environmental monitoring, and environmental research activities) on DOE or non-DOE property in a floodplain or wetland, unless the activities would involve building a structure; involve draining, dredging, channelizing, filling, diking, impounding, or related activities; or result in long-term change to the ecosystem. At proposed section 1022.5(d)(3), we would add an exemption for minor modification of an existing facility or structure in a floodplain or wetland to improve safety or environmental conditions, unless the modification would result in a significant change in the expected useful life of the facility or structure or would involve building a structure or draining, dredging, channelizing, filling, diking, impounding, or related activities. Our experience with these classes of actions is that they are of short duration with very small intrusion in a floodplain or wetland and have very small or no adverse impact on a floodplain or wetland. Additionally, these classes of actions typically lead to improved environmental protection or public and worker safety. For each of these exemptions, if unusual circumstances arise, we would consider the need for a floodplain or wetland assessment in order to consider any unusual circumstances associated with a particular proposal that indicate the possibility of adverse impact on a floodplain or wetland (proposed section 1022.5(e)).
We propose to clarify our provision for immediate action in the event of an emergency (proposed section 1022.16(a)). The existing rule allows minimum time periods prior to implementation of a proposal to be waived in response to emergency circumstances. We propose that action may be taken during an emergency without complying with provisions of these regulations. We also propose, however, that after taking action, we would assess the environmental impacts of our emergency actions and consider potential mitigation in conjunction with our NEPA regulations for emergency actions (10 CFR 1021.343(a)) or our CERCLA procedures.
The existing rule establishes a 15-day waiting period between issuance of the notice of proposed floodplain action and issuance of the floodplain statement of findings, and another 15-day waiting period after issuance of the floodplain statement of findings before implementing the proposed floodplain action. For a proposed wetland action, the existing rule requires a 15-day waiting period after issuance of the notice of proposed action before implementing the action. In the event of statutory deadlines or overriding considerations of program or project expense or effectiveness, the existing rule provides for waiving any of the waiting periods except the 15-day period between issuing a notice of proposed floodplain action and the floodplain statement of findings. We propose to add a provision allowing the waiver of all minimum waiting periods under the same exigent circumstances (
We propose to expand the existing list of sources that may be used in determining the location of floodplains and wetlands (proposed sections 1022.11(b) and (c)). For floodplain determinations we have relied upon Flood Insurance Rate Maps, Flood Hazard Boundary Maps, and information from the relevant land administering agency or from agencies with floodplain determination expertise. We propose to also use information in safety basis documents as defined at 10 CFR part 830 and in DOE environmental documents,
We propose adding provisions acknowledging that floodplain and wetland assessments for actions proposed to be taken under CERCLA would be coordinated with the CERCLA
To make the rule simpler and easier to use, we propose to reorder sections, add clarifications, delete text, and make numerous stylistic changes. These proposed changes would not alter applicable requirements. The existing rule has two subparts, A and B. We propose reordering sections in Subpart B to only address provisions associated with floodplain and wetland assessment processes. All other requirements currently in Subpart B would be moved to a proposed new subpart (Subpart C, Other Requirements).
We propose to clarify how this regulation applies differently to actions proposed in a floodplain, and actions proposed in a wetland but not in a floodplain, consistent with provisions in Executive Orders 11988 and 11990 and our existing regulation. We would not change any requirements in this regard; rather we propose to revise definitions of floodplain, floodplain action, and wetland action (proposed section 1022.4) to better describe our intent and the way we implement this regulation. These changes, and related changes to maintain consistency throughout the regulation, clarify that we treat a proposal that would be located in both a wetland and a floodplain as we would any other action proposed to be located in a floodplain.
We propose to delete text that is repeated between sections in the existing rule, and in one case, we would delete an entire section (existing section 1022.21) that specifies we will periodically review these regulations and make revisions. Existing section 1022.21 is not required for us to propose additional changes to this rule at a future date, and therefore, we propose deleting it as unnecessary. We also propose to delete language that was needed to transition the rule into effect but that is no longer needed (proposed section 1022.5).
The details of these and other proposed changes are described below in section III, Description of Proposed Revisions to the Existing Rule. Because we often reference our existing rule to describe our proposed changes, you may want to refer to it. Our existing 10 CFR Part 1022 regulations are available on the Internet at
We propose to revise section 1021.313 to make it consistent with our proposed new section 1022.14(c), as described above in section II, Purpose of the Revisions to 10 CFR Parts 1021 and 1022, and below. Currently, section 1021.313(c) requires a DOE final EIS to include any floodplain statement of findings required by Part 1022. This requirement is overly prescriptive and is inconsistent with the flexibility afforded under existing section 1022.15 and proposed section 1022.14(c) to include a floodplain statement of findings in a final EIS or to issue the statement of findings separately. Under our proposal, section 1021.313(c) would track the language at the new section 1022.14(c).
To provide guidance on implementing Executive Order 11988, Floodplain Management, we propose adding a reference to the Federal Interagency Floodplain Management Taskforce document, “A Unified National Program for Floodplain Management” (FEMA 248, June 1994). We also propose adding words from Executive Orders 11988 and 11990 emphasizing two purposes of the regulation: That Federal agencies are to avoid development in a floodplain or new construction in a wetland wherever there is a practicable alternative and to ensure the evaluation of potential impacts associated with proposed new construction in wetlands. These changes would add no new requirements.
As described above in section II, we propose identifying the CERCLA review process as an alternative mechanism for implementing the regulation. Sections 1022.11(a) and 1022.13(c) (detailed below) would be revised to reflect this additional flexibility.
To better group floodplain and wetland policy statements, we propose reordering paragraphs within this section. We also propose updating the reference to construction requirements in proposed paragraph (a)(4) from “regulations promulgated by the Federal Insurance Administration pursuant to the National Flood Insurance Act of 1968, as amended, 42 U.S.C. 4001
We propose to change our definition of “action” to clarify that it includes any activity necessary to carry out DOE's responsibilities for the tasks listed in Executive Orders 11988 and 11990, rather than that it includes any activity “including, but not limited to,” those tasks listed in the Executive Orders. This proposed language more closely parallels the Executive Orders.
We propose deleting the definition of “base flood” and incorporating it into the definition of “base floodplain.”
We propose to revise the definitions of “environmental assessment,” “environmental impact statement,” and “finding of no significant impact” to reference the Council on Environmental Quality's (CEQ's) and DOE's NEPA regulations at 40 CFR parts 1500-1508 and 10 CFR part 1021, respectively. Our NEPA regulations were not in place when 10 CFR part 1022 was promulgated.
We propose to simplify the definition of “floodplain” by creating separate definitions for “base floodplain” and “critical action floodplain.” We also propose to define the critical action floodplain as, at a minimum, the 500-year floodplain. While for most proposed actions, we prepare a floodplain assessment if the action would be located in the 100-year floodplain, for a proposed critical action (
We propose to clarify the definition of “floodplain action” by adding “including any DOE action in a wetland that is also within the floodplain.”
We propose to add a definition for “floodplain and wetland values” to describe the range of issues to be addressed in a floodplain or wetland assessment under the existing section 1022.12(a)(2) and proposed section 1022.13(a)(2). We adapted the proposed definition from that used by FEMA (44 CFR 9.4) and terms used in Executive Orders 11988 and 11990.
We propose to delete the definition of “floodproofing,” because the term is not used in the rule.
We propose simplifying our definition of “new construction” by deleting the reference to October 1, 1977, as the starting point for applicability of the definition. That clause appropriately exempted certain actions underway before Executive Order 11990 became effective, but it is no longer necessary.
We propose to change the name and definition of “public notice.” We would call the notice a “notice of proposed floodplain action” or a “notice of proposed wetland action” to better reflect its purpose to announce that a proposed action would be in a floodplain or wetland, respectively, the location of the floodplain or wetland, and the opportunity for public review. We also propose to delete any requirements on how to issue the notice from the definition and instead to include such requirements in proposed section 1022.12, Notice of proposed action.
We propose to change the name “statement of findings” to “floodplain statement of findings” and to delete any requirements from the definition and instead to include such requirements in proposed section 1022.14, Findings.
We propose changing our definition of “wetland” to make it consistent with the Clean Water Act implementing regulations of both the U.S. Army Corps of Engineers (33 CFR 328.3(b)) and the U.S. Environmental Protection Agency (40 CFR 230.41(a)(1)), as the definition in the existing rule was taken from Executive Order 11990. This proposed revision would involve deleting the examples of “similar areas such as sloughs, potholes, wet meadows, river outflow, mudflats and natural ponds.” An important note about the proposed definition is that it is more broadly defined than the wetlands over which the U.S. Army Corps of Engineers has regulatory jurisdiction (33 CFR 328.3(a) and 328.4). The broader definition we use for this rule is consistent with Executive Order 11990 in order to ensure that we apply appropriate protections to valuable wetlands that might not qualify as wetlands subject to the Corps' jurisdiction (
We propose to modify the definition of “wetland action” to specify that it applies to any DOE action “related to new construction” that takes place in a wetland not located in a floodplain. This change would make the definition consistent with Executive Order 11990, which requires a wetland assessment only for activities related to new construction in a wetland.
We propose deleting a significant portion of text from the existing section 1022.5 because it is outdated or redundant of other sections of the rule. The result would be a more concise section, reduced from eight to four paragraphs, which is easier to read. We propose deleting text from existing paragraphs (b) and (c) that exempts actions that were underway when the rule was issued. Any such actions have since been completed, and the text is no longer necessary. We would delete text from existing paragraphs (d), (e), and (f) that repeats parts of the definition of “action” (proposed section 1022.4); this results in deletion of the entirety of paragraph (f). We would also delete existing paragraph (h) since it is repetitive of the definition of floodplain action (proposed section 1022.4).
We propose relocating requirements regarding license, easement, lease, transfer, or disposal of property to non-Federal public or private parties from existing section 1022.5(d) to proposed section 1022.21(a), Property management, in a new Subpart C, Other Requirements. From existing section 1022.5(e), we propose moving the requirements for applicants for assistance into proposed section 1022.23, Applicant responsibilities (proposed redesignation from existing section 1022.13), described below.
We propose adding four exemptions from the requirements for preparing a floodplain or wetland assessment to paragraph (d). These proposed exemptions are described above in section II, Purpose of the Revisions to 10 CFR parts 1021 and 1022.
We propose moving this section from Subpart B (where it had been designated section 1022.20) to Subpart A because it is more appropriately a part of general statements related to this rule. We also propose updating the contact to which inquiries may be directed from the Assistant Secretary for Environment to the Office of NEPA Policy and Compliance.
We propose reordering the sections in this subpart to better reflect the sequence of events in our process for preparing a floodplain or wetland assessment and to relocate to subparts A and C those requirements not directly related to the preparation of a floodplain or wetland assessment. The particular changes are described below for each section in proposed subpart B.
We propose to change section 1022.11(a) by adding a reference to environmental review requirements under the CERCLA process to conform to the proposed change in section 1022.2(b), discussed above in section II, Purpose of the Revisions to 10 CFR parts 1021 and 1022.
As also discussed above in section II, we propose to expand the list of information sources that may be used to determine if a proposed action would be located in a floodplain or wetland (proposed sections 1022.11(b) and (c)). We also propose to update references to two information sources. FEMA, rather than the Federal Insurance Administration of the Department of Housing and Urban Development, would be cited because FEMA currently maintains primary responsibility for interagency planning to address Federal floodplain management requirements (proposed section 1022.11(b)). We also propose to change the existing reference to the Soil Conservation Service to the Natural Resources Conservation Service to reflect the agency's current name (proposed sections 1022.11(b) and (c)).
We propose to add a new section (proposed 1022.11(d)) that would specify whether a floodplain or wetland assessment is required based on the location of the proposed action. This paragraph would clarify existing requirements by associating the determination made pursuant to sections 1022.11(b) and (c) with the definitions of critical action, floodplain action, and wetland action.
We propose to change, in proposed section 1022.12 and throughout the rule, all references to “public notice” to “notice of proposed floodplain action” or “notice of proposed wetland action” to better reflect the purpose of the notice.
We propose to change existing sections 1022.14(b) and (c) by deleting the requirement that DOE always publish a notice in the
We propose emphasizing in proposed paragraph (a)(2) that the assessment shall incorporate floodplain and wetland values that are appropriate to the location under evaluation. This would underscore the need to focus only on those values most appropriate to local conditions and also to clarify that when evaluating a proposal for an action within a wetland located in a floodplain, we consider both floodplain and wetland values, as appropriate. This proposed revision would reference a new definition of floodplain and wetland values (described above for proposed section 1022.4) that lists several topics that might be included in the assessment. Although these changes do not add any new requirement, they do add further guidance about how the assessment should be performed.
We propose adding to proposed paragraph (c) that when an EA or EIS is not being prepared for the proposed floodplain or wetland action, the assessment “shall be prepared separately or incorporated when appropriate into another environmental review process (
We propose a new section (1022.14(c)) to describe how to issue a statement of findings for floodplain actions for which no EA or EIS is being prepared. For these floodplain actions, we would distribute copies of the floodplain statement of findings to government agencies and to others who submitted comments on the proposed action. We propose to publish the floodplain statement of findings in the
We also propose a new section (1022.14(d)) regarding the distribution of floodplain statements of findings to state governments. We propose to update the existing reference to Office of Management and Budget Circular A-95 (from the existing section 1022.15) and refer instead to Executive Order 12372, Intergovernmental Review of Federal Programs, and DOE's implementing regulations at 10 CFR part 1005, Intergovernmental Review of
We propose to relocate the requirements regarding timing in sections 1022.14(c) and 1022.18 of the existing rule to proposed section 1022.15. This would consolidate references to the time periods for DOE to consider public comments after issuing a notice of proposed floodplain action or a notice of proposed wetland action or a floodplain statement of findings.
We propose to add a section providing a variance for emergency actions (proposed section 1022.16(a)) that would, as described above in section II, Purpose of the Revisions to 10 CFR Parts 1021 and 1022, reflect provisions in our NEPA procedures (10 CFR 1021.343(a)). We also propose to incorporate into this section as paragraph (b) the existing variance (1022.18(c) in the existing rule) that allows abbreviated schedules in some circumstances and to broaden the applicability of this variance as described above in section II, Purpose of the Revisions to 10 CFR Parts 1021 and 1022. We also propose to add a section 1022.16(c) requiring consultation with the Office of NEPA Policy and Compliance whenever this section is being implemented.
We propose adding a new subpart to consolidate requirements that are not general policy (subpart A) nor a part of the floodplain and wetland assessment processes (subpart B).
We propose a new section that would consolidate existing requirements from sections 1022.5(d) and 1022.3(b)(8) of the existing rule. These sections address property in a floodplain or wetland that is proposed for license, easement, lease, transfer, or disposal to non-Federal public or private parties and any transaction that DOE guarantees, approves, regulates, or insures that is related to an area located in a floodplain. There are no substantive changes in this new consolidated section.
We propose to move this section into Subpart C, Other Requirements, for the reasons stated above.
We propose revising this section to allow flexibility in what information we request of applicants for any use of real property (
No substantive changes to this section are proposed.
Today's proposed regulatory action has been determined not to be a “significant regulatory action” under Executive Order 12866, “Regulatory Planning and Review” (58 FR 51735, October 4, 1993), as amended by Executive Order 13258 (67 FR 9385, February 26, 2002). Accordingly, today's proposed regulatory action would not be subject to review under that Executive Order by the Office of Information and Regulatory Affairs of the Office of Management and Budget.
With respect to the review of existing regulations and the promulgation of new regulations, section 3(a) of Executive Order 12988, “Civil Justice Reform” (61 FR 4779, February 7, 1996) imposes on Federal agencies the general duty to adhere to the following requirements: eliminate drafting errors and needless ambiguity, write regulations to minimize litigation, provide a clear legal standard for affected conduct rather than a general standard, and promote simplification and burden reduction. Section 3(b) requires Federal agencies to make every reasonable effort to ensure that a regulation, among other things: clearly specifies the preemptive effect, if any, adequately defines key terms, and addresses other important issues affecting the clarity and general draftsmanship under guidelines issued by the Attorney General. Section 3(c) of Executive Order 12988 requires Executive agencies to review regulations in light of applicable standards in section 3(a) and section 3(b) to determine whether they are met or it is unreasonable to meet one or more of them. The Assistant Secretary for Environment, Safety and Health has completed the required review and determined that, to the extent permitted by law, the proposed rule meets the relevant standards of Executive Order 12988.
Today's regulatory action has been determined not to be a “policy that has federalism implications,” that is, it does not have substantial direct effects on the states, on the relationship between the national government and the states, nor on the distribution of power and responsibility among the various levels of government under Executive Order 13132 (64 FR 43255, August 10, 1999). Accordingly, no “federalism summary impact statement” was prepared or subjected to review under the Executive Order by the Director of the Office of Management and Budget.
Under Executive Order 13175 (65 FR 67249, November 6, 2000) on “Consultation and Coordination with Indian Tribal Governments,” DOE may not issue a discretionary rule that has “tribal implications” and imposes substantial direct compliance costs on Indian tribal governments. DOE's Assistant Secretary for Environment, Safety and Health has determined that the proposed rule would not have such effects and concluded that Executive Order 13175 does not apply to this proposed rule.
The proposed revisions to the existing regulations have been reviewed under the Regulatory Flexibility Act of 1980 (5 U.S.C. 601
No additional information or recordkeeping requirements are imposed by this proposed rulemaking. The proposed changes would actually reduce paperwork requirements by eliminating a requirement that public notices always be published in the
DOE has concluded that promulgation of these proposed revisions to existing regulations falls into a class of actions that would not individually or cumulatively have a significant impact on the human environment, as determined by DOE's regulations implementing the National Environmental Policy Act of 1969 (42 U.S.C. 4321
Title II of the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) requires each Federal agency to prepare a written assessment of the effects of any Federal mandate in a proposed or final agency regulation that may result in the expenditure by states, tribal, or local governments, on the aggregate, or by the private sector, of $100 million in any one year. The Act also requires a Federal agency to develop an effective process to permit timely input by elected officials of state, tribal, or local governments on a proposed “significant intergovernmental mandate,” and requires an agency plan for giving notice and opportunity to provide timely input to potentially affected small governments before establishing any requirements that might significantly or uniquely affect small governments. DOE
Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001) requires Federal agencies to prepare and submit to the Office of Information and Regulatory Affairs in the Office of Management and Budget a Statement of Energy Effects for any significant energy action. Today's proposed rule is not a significant energy action, as that term is defined in the Executive Order. Accordingly, DOE has not prepared a Statement of Energy Effects.
Section 654 of the Treasury and General Government Appropriations Act of 1999 (Pub. L. 105-277) requires Federal agencies to issue a “Family Policymaking Assessment” for any proposed rule that may affect family well-being. The proposed rule has no impact on the autonomy or integrity of the family as an institution. Accordingly, DOE's Assistant Secretary for Environment, Safety and Health has concluded that it is not necessary to prepare a Family Policymaking Assessment.
You should submit comments by January 17, 2003, but we will consider comments received after that date to the extent practicable. We continue to experience occasional mail delays due to extra processing required for the delivery of mail to Federal agencies, and we will take this into consideration. However, you are encouraged to submit comments electronically or via a service offering a guaranteed delivery date. Comments should be submitted to the street address, e-mail address, or fax number indicated in the
All comments received will be available for public inspection as part of the administrative record on file for this rulemaking in the DOE Freedom of Information Office Reading Room, Room 1E-190, Forrestal Building, 1000 Independence Avenue, SW., Washington, DC 20585, (202) 586-3142, between 9 a.m. and 4 p.m., Monday through Friday, except Federal holidays.
If you submit information that you believe to be exempt by law from public disclosure, you should submit one complete copy, as well as two copies from which the information claimed to be exempt by law from public disclosure has been deleted. The Department is responsible for the final determination with regard to disclosure or non-disclosure of the information and for treating it accordingly under the Freedom of Information Act section on “Handling Information of a Private Business, Foreign Government, or an International Organization” (10 CFR 1004.11).
Flood plains, Wetlands.
For the reasons set forth in the preamble, parts 1021 and 1022 of chapter III of title 10, Code of Federal Regulations are proposed to be amended as follows:
1. The authority citation for part 1021 continues to read as follows:
42 U.S.C. 7254; 42 U.S.C. 4321
2. In § 1021.313, paragraph (c), the last sentence is amended as follows:
a. Remove the word “shall” and insert in its place the word “may”.
b. Remove the period and add the words ”, or may be issued separately.” at the end of the sentence.
3. Part 1022 is revised to read as follows:
E.O. 11988, 42 FR 26951, 3 CFR, 1977 Comp., p. 117; E.O. 11990, 42 FR 26961, 3 CFR, 1977 Comp., p. 121.
(a) Executive Order (E.O.) 11988—Floodplain Management (May 24, 1977) directs each Federal agency to issue or amend existing regulations and procedures to ensure that the potential effects of any action it may take in a floodplain are evaluated and that its planning programs and budget requests reflect consideration of flood hazards and floodplain management. Guidance for implementation of the E.O. is provided in the floodplain management guidelines of the U.S. Water Resources Council (40 FR 6030, February 10, 1978) and in “A Unified National Program for Floodplain Management” prepared by the Federal Interagency Floodplain Management Taskforce (Federal Emergency Management Agency, FEMA 248, June 1994). E.O. 11990—Protection of Wetlands (May 24, 1977) directs all Federal agencies to issue or amend existing procedures to ensure consideration of wetlands protection in decisionmaking and to ensure the evaluation of the potential impacts of any new construction proposed in a wetland.
(b) It is the intent of the E.O.s that Federal agencies implement both the floodplain and the wetland provisions through existing procedures such as those established to implement the National Environmental Policy Act
(a) This part establishes policy and procedures for discharging the Department of Energy's (DOE's) responsibilities under E.O. 11988 and E.O. 11990, including:
(1) DOE policy regarding the consideration of floodplain and wetland factors in DOE planning and decisionmaking; and
(2) DOE procedures for identifying proposed actions located in a floodplain or wetland, providing opportunity for early public review of such proposed actions, preparing floodplain or wetland assessments, and issuing statements of findings for actions in a floodplain.
(b) To the extent possible, DOE shall accommodate the requirements of E.O. 11988 and E.O. 11990 through applicable DOE NEPA procedures or, when appropriate, the environmental review process under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) (42 U.S.C. 9601
DOE shall exercise leadership and take action to:
(a) Incorporate floodplain management goals and wetland protection considerations into its planning, regulatory, and decisionmaking processes, and shall to the extent practicable:
(1) Reduce the risk of flood loss;
(2) Minimize the impact of floods on human safety, health, and welfare;
(3) Restore and preserve natural and beneficial values served by floodplains;
(4) Require the construction of DOE structures and facilities to be, at a minimum, in accordance with FEMA National Flood Insurance Program building standards;
(5) Promote public awareness of flood hazards by providing conspicuous delineations of past and probable flood heights on DOE property that has suffered flood damage or is in an identified floodplain and that is used by the general public;
(6) Inform parties during transactions guaranteed, approved, regulated, or insured by DOE of the hazards associated with locating facilities and structures in a floodplain;
(7) Minimize the destruction, loss, or degradation of wetlands; and
(8) Preserve and enhance the natural and beneficial values of wetlands.
(b) Undertake a careful evaluation of the potential effects of any proposed floodplain or wetland action.
(c) Avoid to the extent possible the long- and short-term adverse impacts associated with the destruction of wetlands and the occupancy and modification of floodplains and wetlands, and avoid direct and indirect support of development in a floodplain or new construction in a wetland wherever there is a practicable alternative.
(d) Identify, evaluate, and as appropriate, implement alternative actions that may avoid or mitigate adverse floodplain or wetland impacts.
(e) Provide opportunity for early public review of any plans or proposals for floodplain or wetland actions.
The following definitions apply to this part:
(1) Acquiring, managing, and disposing of Federal lands and facilities;
(2) Providing DOE-undertaken, -financed, or -assisted construction and improvements; and
(3) Conducting activities and programs affecting land use, including but not limited to water- and related land-resources planning, regulating, and licensing activities.
(a) This part applies to all organizational units of DOE, including the National Nuclear Security Administration, except that it shall not apply to the Federal Energy Regulatory Commission.
(b) This part applies to all proposed floodplain or wetland actions, including those sponsored jointly with other agencies.
(c) This part does not apply to the issuance by DOE of permits, licenses, or allocations to private parties for activities involving a wetland that are located on non-Federal property.
(d) Subject to paragraph (e) of this section, subpart B of this part does not apply to:
(1) Routine maintenance of existing facilities and structures on DOE property in a floodplain or wetland;
(2) Site characterization, environmental monitoring, or environmental research activities in a floodplain or wetland, unless these activities would involve building any structure; involve draining, dredging, channelizing, filling, diking, impounding, or related activities; or result in long-term change to the ecosystem; and
(3) Minor modification of an existing facility or structure in a floodplain or wetland to improve safety or environmental conditions unless the modification would result in a significant change in the expected useful life of the facility or structure or involve building any structure or draining, dredging, channelizing, filling, diking, impounding, or related activities.
(e) Although the actions listed in paragraphs (d)(1), (d)(2), and (d)(3) of this section normally have very small or no adverse impact on a floodplain or wetland, where unusual circumstances indicate the possibility of adverse impact on a floodplain or wetland, DOE shall determine the need for a floodplain or wetland assessment.
Inquiries regarding DOE's floodplain and wetland environmental review requirements may be directed to the Office of NEPA Policy and Compliance, U.S. Department of Energy, 1000 Independence Avenue, SW., Washington, DC 20585-0119, or a message may be left at 1-800-472-2756, toll free.
(a) Concurrent with its review of a proposed action to determine appropriate NEPA or CERCLA process requirements, DOE shall determine the applicability of the floodplain management and wetland protection requirements of this part.
(b) DOE shall determine whether a proposed action would be located within a base or critical action floodplain consistent with the most authoritative information available relative to site conditions from the following sources, as appropriate:
(1) Flood Insurance Rate Maps or Flood Hazard Boundary Maps prepared by FEMA;
(2) Information from a land-administering agency (
(3) Information contained in safety basis documents as defined at 10 CFR part 830; and
(4) DOE environmental documents,
(c) DOE shall determine whether a proposed action would be located within a wetland consistent with the most authoritative information available relative to site conditions from the following sources, as appropriate:
(1) U.S. Army Corps of Engineers “Wetlands Delineation Manual,” Wetlands Research Program Technical Report Y-87-1, January 1987, or successor document;
(2) U.S. Fish and Wildlife Service National Wetlands Inventory or other government-sponsored wetland or land-use inventories;
(3) U.S. Department of Agriculture Natural Resources Conservation Service Local Identification Maps;
(4) U.S. Geological Survey Topographic Maps; and
(5) DOE environmental documents,
(d) Pursuant to § 1022.5 of this part and paragraphs (b) and (c) of this section, DOE shall prepare:
(1) A floodplain assessment for any proposed floodplain action in the base floodplain or for any proposed floodplain action that is a critical action located in the critical action floodplain; or
(2) A wetland assessment for any proposed wetland action.
(a) For a proposed floodplain or wetland action for which an EIS is required, DOE shall use applicable NEPA procedures to provide the opportunity for early public review of the proposed action. A notice of intent to prepare the EIS may be used to satisfy the requirement for DOE to publish a notice of proposed floodplain or wetland action.
(b) For a proposed floodplain or wetland action for which no EIS is required, DOE shall take appropriate steps to send a notice of proposed floodplain or wetland action to appropriate government agencies and to persons or groups known to be interested in or potentially affected by the proposed floodplain or wetland action. DOE also shall distribute the notice in the area where the proposed action is to be located (
(a) A floodplain or wetland assessment shall contain the following information:
(1)
(2)
(3)
(b) For proposed floodplain or wetland actions for which an EA or EIS is required, DOE shall prepare the floodplain or wetland assessment concurrent with and included in the appropriate NEPA document.
(c) For floodplain or wetland actions for which neither an EA nor an EIS is prepared, DOE shall prepare the floodplain or wetland assessment separately or incorporated when appropriate into another environmental review process (
(a) If DOE finds that no practicable alternative to locating or conducting the action in the floodplain or wetland is available, then before taking action DOE shall design or modify its action in order to minimize potential harm to or within the floodplain or wetland, consistent with the policies set forth in E.O. 11988 and E.O. 11990.
(b) For actions that will be located in a floodplain, DOE shall issue a floodplain statement of findings, normally not to exceed three pages, that contains:
(1) A brief description of the proposed action, including a location map;
(2) An explanation indicating why the action is proposed to be located in the floodplain;
(3) A list of alternatives considered;
(4) A statement indicating whether the action conforms to applicable floodplain protection standards; and
(5) A brief description of steps to be taken to minimize potential harm to or within the floodplain.
(c) For floodplain actions that require preparation of an EA or EIS, DOE may incorporate the floodplain statement of findings into the finding of no significant impact or final EIS, as appropriate, or issue such statement separately.
(d) DOE shall send copies of the floodplain statement of findings to appropriate government agencies and to others who submitted comments on the proposed floodplain action.
(e) For proposed floodplain actions that may result in effects of national concern, DOE shall publish the floodplain statement of findings in the
(f) For floodplain actions subject to E.O. 12372—Intergovernmental Review of Federal Programs (July 14, 1982, 47 FR 30959), DOE shall send the floodplain statement of findings to the State in accordance with 10 CFR Part 1005—Intergovernmental Review of Department of Energy Programs and Activities.
(a) For a proposed floodplain action, DOE shall allow 15 days for public comment following issuance of a notice of proposed floodplain action. DOE shall reevaluate the practicability of alternatives to the proposed floodplain action and the mitigating measures, taking into account all substantive comments received, after the close of the public comment period and before issuing a floodplain statement of findings. After issuing a floodplain statement of findings, DOE shall endeavor to allow at least 15 days of public review before implementing a proposed floodplain action. If a
(b) For a proposed wetland action, DOE shall allow 15 days for public comment following issuance of a notice of proposed wetland action. After the close of the public comment period, DOE shall reevaluate the practicability of alternatives to the proposed wetland action and the mitigating measures, taking into account all substantive comments received, before implementing a proposed wetland action. If a
(a)
(b)
(c)
For those DOE actions taken in a floodplain or wetland, DOE shall verify that the implementation of the selected alternative, particularly with regard to any adopted mitigation measures, is proceeding as described in the floodplain or wetland assessment and the floodplain statement of findings.
(a) If property in a floodplain or wetland is proposed for license, easement, lease, transfer, or disposal to non-Federal public or private parties, DOE shall:
(1) Identify those uses that are restricted under applicable floodplain or wetland regulations and attach other
(2) Withhold the property from conveyance.
(b) Before completing any transaction that DOE guarantees, approves, regulates, or insures that is related to an area located in a floodplain, DOE shall inform any private party participating in the transaction of the hazards associated with locating facilities or structures in the floodplain.
It is DOE policy to indicate in any requests for new authorizations or appropriations transmitted to the White House Office of Management and Budget, if a proposed action is located in a floodplain or wetland and whether the proposed action is in accord with the requirements of E.O. 11988 and E.O. 11990 and this part.
DOE may require applicants for any use of real property (
If DOE and one or more agencies are directly involved in a proposed floodplain or wetland action, in accordance with DOE's NEPA or CERCLA procedures, DOE shall consult with such other agencies to determine if a floodplain or wetland assessment is required by Subpart B of this part, identify the appropriate lead or joint agency responsibilities, identify the applicable regulations, and establish procedures for interagency coordination during the environmental review process.
Federal Aviation Administration, DOT.
Notice of proposed rulemaking (NPRM).
This document proposes the adoption of a new airworthiness directive (AD) that is applicable to certain Saab Model SAAB 340B series airplanes equipped with Hamilton Sundstrand propellers. This proposal would require a one-time inspection of two remote controlled circuit breakers (RCCB), located in specific electrical compartments, to identify the part number, and replacement of the RCCBs with new RCCBs having a different part number if necessary. This action is necessary to ensure removal of 35-ampere (amp) RCCBs on a 50-amp electrical circuit. Incorrect RCCBs on an electrical circuit could result in erroneous tripping of the RCCBs (even though an overload condition does not exist), premature failure of the RCCBs, loss of power to the feather pump system, and consequent reduced controllability of the airplane. This action is intended to address the identified unsafe condition.
Comments must be received by December 18, 2002.
Submit comments in triplicate to the Federal Aviation Administration (FAA), Transport Airplane Directorate, ANM-114, Attention: Rules Docket No. 2002-NM-200-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 Saab Aircraft AB, SAAB Aircraft Product Support, S-581.88, Linköping, Sweden. This information may be examined at the FAA, Transport Airplane Directorate, 1601 Lind Avenue, SW., Renton, Washington.
Rosanne Ryburn, Aerospace Engineer, International Branch, ANM-116, FAA, Transport Airplane Directorate, 1601 Lind Avenue, SW., Renton, Washington 98055-4056; telephone (425) 227-2139; fax (425) 227-1149.
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 (
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 2002-NM-200-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,
The Luftfartsverket (LFV), which is the airworthiness authority for Sweden, notified the FAA that an unsafe condition may exist on certain Saab Model SAAB 340B series airplanes. The LFV advises that these airplanes were manufactured with 50-ampere (amp) remote controlled circuit breakers (RCCB) installed. However, the illustrated parts catalog incorrectly references a 35-amp RCCB, which is specific to Dowty propellers. A 35-amp RCCB on a 50-amp electrical circuit, if not corrected, could result in erroneous tripping of the RCCBs (even though an overload condition does not exist), premature failure of the RCCBs, loss of power to the feather pump system, and consequent reduced controllability of the airplane.
Saab has issued Service Bulletin 340-61-038, dated January 30, 2002, which describes procedures for a one-time inspection to identify the part number of the RCCB located in electrical compartment 407VU and the RCCB located in electrical compartment 408VU, and replacement of RCCBs with certain part numbers with new RCCBs having different part numbers if necessary. Accomplishment of the actions specified in the service bulletin is intended to adequately address the identified unsafe condition. The LFV classified this service bulletin as mandatory and issued Swedish airworthiness directive 1-172, dated January 31, 2002, in order to assure the continued airworthiness of these airplanes in Sweden.
This airplane model is manufactured in Sweden and is type certificated for operation in the United States under the provisions of section 21.29 of the Federal Aviation Regulations (14 CFR 21.29) and the applicable bilateral airworthiness agreement. Pursuant to this bilateral airworthiness agreement, the LFV has kept the FAA informed of the situation described above. The FAA has examined the findings of the LFV, 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 require accomplishment of the actions specified in the service bulletin described previously.
The FAA estimates that 251 airplanes of U.S. registry would be affected by this proposed AD, that it would take approximately 1 work hour per airplane to accomplish the proposed inspection, and that the average labor rate is $60 per work hour. Based on these figures, the cost impact of the proposed inspection on U.S. operators is estimated to be $15,060 or $60 per airplane.
The cost impact figure discussed above is based on assumptions that no operator has yet accomplished any of the proposed requirements of this AD action, and that no operator would accomplish those actions in the future if this proposed AD were not adopted. The cost impact figures discussed in AD rulemaking actions represent only the time necessary to perform the specific actions actually required by the AD. These figures typically do not include incidental costs, such as the time required to gain access and close up, planning time, or time necessitated by other administrative actions.
The regulations proposed herein would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, it is determined that this proposal would not have federalism implications under Executive Order 13132.
For the reasons discussed above, I certify that this proposed regulation (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and (3) if promulgated, will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. A copy of the draft regulatory evaluation prepared for this action is contained in the Rules Docket. A copy of it may be obtained by contacting the Rules Docket at the location provided under the caption
Air transportation, Aircraft, Aviation safety, Safety.
Accordingly, pursuant to the authority delegated to me by the Administrator, the Federal Aviation Administration proposes to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) as follows:
1. The authority citation for part 39 continues to read as follows:
49 U.S.C. 106(g), 40113, 44701.
2. Section 39.13 is amended by adding the following new airworthiness directive:
This AD applies to each airplane identified in the preceding applicability provision, regardless of whether it has been modified, altered, or repaired in the area subject to the requirements of this AD. For airplanes that have been modified, altered, or repaired so that the performance of the requirements of this AD is affected, the owner/operator must request approval for an alternative method of compliance in accordance with paragraph (c) of this AD. The request should include an assessment of the effect of the modification, alteration, or repair on the unsafe condition addressed by this AD; and, if the unsafe condition has not been eliminated, the request should include specific proposed actions to address it.
To prevent erroneous tripping of the remote controlled circuit breakers (RCCB) (even though an overload condition does not exist), premature failure of the RCCBs, loss of power to the feather pump system, and consequent reduced controllability of the airplane, accomplish the following:
(a) Within 6 months after the effective date of this AD, perform a one-time inspection of RCCB 29KFC located in electrical compartment 407VU, and RCCB 30KFC located in electrical compartment 408VU, to identify the part number, per the Accomplishment Instructions of Saab Service Bulletin 340-61-038, dated January 30, 2002.
(1) If both RCCBs are identified as part number (P/N) M83383-01-09, no further action is required by this paragraph.
(2) If any RCCB is identified as P/N M83383-02-07, prior to further flight, replace the RCCB with an RCCB having P/N M83383-01-09, per the service bulletin.
(b) As of the effective date of this AD, no person shall install an RCCB, P/N M83383-02-07, in electrical compartment 407VU or electrical compartment 408VU, on any airplane.
(c) An alternative method of compliance or adjustment of the compliance time that provides an acceptable level of safety may be used if approved by the Manager, International Branch, ANM-116, Transport Airplane Directorate, FAA. Operators shall submit their requests through an appropriate FAA Principal Maintenance Inspector, who may add comments and then send it to the Manager, International Branch, ANM-116.
Information concerning the existence of approved alternative methods of compliance with this AD, if any, may be obtained from the International Branch, ANM-116.
(d) Special flight permits may be issued in accordance with sections 21.197 and 21.199 of the Federal Aviation Regulations (14 CFR 21.197 and 21.199) to operate the airplane to a location where the requirements of this AD can be accomplished.
The subject of this AD is addressed in Swedish airworthiness directive 1-172, dated January 31, 2002.
Federal Aviation Administration, DOT.
Notice of proposed rulemaking (NPRM).
This document proposes the adoption of a new airworthiness directive (AD) that is applicable to certain Boeing Model 777-200 and 777-300 series airplanes. This proposal would require application of high-temperature sealant to the strut aft dry bay. This action is necessary to prevent leakage of hydraulic fluid into the strut aft dry bay, where high temperatures associated with the adjacent primary exhaust nozzle may ignite the fluid, resulting in an uncontrolled fire in the strut aft dry bay. This action is intended to address the identified unsafe condition.
Comments must be received by January 2, 2003.
Submit comments in triplicate to the Federal Aviation Administration (FAA), Transport Airplane Directorate, ANM-114, Attention: Rules Docket No. 2001-NM-295-AD, 1601 Lind Avenue, SW., Renton, Washington 98055-4056. Comments may be inspected at this location between 9:00 a.m. and 3:00 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 Boeing Commercial Airplane Group, P.O. Box 3707, Seattle, Washington 98124-2207. This information may be examined at the FAA, Transport Airplane Directorate, 1601 Lind Avenue, SW., Renton, Washington.
John Vann, Aerospace Engineer, Propulsion Branch, ANM-140S, FAA, Seattle Aircraft Certification Office, 1601 Lind Avenue, SW., Renton, Washington 98055-4056; telephone (425) 227-1024; fax (425) 227-1181.
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.
• Organize comments issue-by-issue. For example, discuss a request to change the compliance time and a request to change the service bulletin reference as two separate issues.
• For each issue, state what specific change to the proposed AD is being requested.
• Include justification (
Comments are specifically invited on the overall regulatory, economic, environmental, and energy aspects of the proposed rule. All comments submitted will be available, both before and after the closing date for comments, in the Rules Docket for examination by interested persons. A report summarizing each FAA-public contact concerned with the substance of this proposal will be filed in the Rules Docket.
Commenters wishing the FAA to acknowledge receipt of their comments submitted in response to this action must submit a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket Number 2001-NM-295-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. 2001-NM-295-AD, 1601 Lind Avenue, SW., Renton, Washington 98055-4056.
The FAA has received a report indicating that one operator had found coked hydraulic fluid in the strut aft dry bay, which is located directly above the primary exhaust nozzle. Investigation revealed that hydraulic fluid had leaked from the strut aft fairing through an unsealed gap between the strut aft bulkhead, the diagonal brace fitting, and the cowl fairing. This unsealed gap, if not corrected, permits leakage of hydraulic fluid into the strut aft dry bay, where high temperatures associated with the adjacent primary exhaust nozzle may ignite the fluid. The result would be an uncontrolled fire in the strut aft dry bay, which lacks fire detection or fire extinguishing equipment.
The FAA has reviewed and approved Boeing Alert Service Bulletin 777-54A0016, dated January 25, 2001, which describes procedures for application of high temperature sealant to fill the gap between the strut aft bulkhead, the diagonal brace fitting, and the aft cowl fairing. Accomplishment of the actions specified in the service bulletin is intended to adequately address the identified unsafe condition.
Since an unsafe condition has been identified that is likely to exist or develop on other products of this same type design, the proposed AD would require accomplishment of the actions specified in the service bulletin described previously.
There are approximately 298 airplanes of the affected design in the worldwide fleet. The FAA estimates that 95 airplanes of U.S. registry would be affected by this proposed AD, that it would take approximately 4 work hours per airplane to accomplish the proposed application of sealant, and that the average labor rate is $60 per work hour. Required materials would cost approximately $20 per airplane. Based on these figures, the cost impact of the proposed AD on U.S. operators is estimated to be $24,700, or $260 per airplane.
The cost impact figure discussed above is based on assumptions that no operator has yet accomplished any of the proposed requirements of this AD action, and that no operator would accomplish those actions in the future if this proposed AD were not adopted. The cost impact figures discussed in AD rulemaking actions represent only the time necessary to perform the specific actions actually required by the AD. These figures typically do not include incidental costs, such as the time required to gain access and close up, planning time, or time necessitated by other administrative actions.
The manufacturer may cover the cost of required materials and labor associated with this NPRM, subject to warranty conditions. As a result, the costs attributable to the proposed AD may be less than stated above.
The regulations proposed herein would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, it is determined that this proposal would not have federalism implications under Executive Order 13132.
For the reasons discussed above, I certify that this proposed regulation: (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and (3) if promulgated, will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. A copy of the draft regulatory evaluation prepared for this action is contained in the Rules Docket. A copy of it may be obtained by contacting the Rules Docket at the location provided under the caption
Air transportation, Aircraft, Aviation safety, Safety.
Accordingly, pursuant to the authority delegated to me by the Administrator, the Federal Aviation Administration proposes to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) as follows:
1. The authority citation for part 39 continues to read as follows:
49 U.S.C. 106(g), 40113, 44701.
2. Section 39.13 is amended by adding the following new airworthiness directive:
This AD applies to each airplane identified in the preceding applicability provision, regardless of whether it has been modified, altered, or repaired in the area subject to the requirements of this AD. For airplanes that have been modified, altered, or repaired so that the performance of the requirements of this AD is affected, the owner/operator must request approval for an alternative method of compliance in accordance with paragraph (b) of this AD. The request should include an assessment of the effect of the modification, alteration, or repair on the unsafe condition addressed by this AD; and, if the unsafe condition has not been eliminated, the request should include specific proposed actions to address it.
To prevent leakage of hydraulic fluid into the strut aft dry bay, where high temperatures associated with the adjacent primary exhaust nozzle may ignite the fluid, resulting in an uncontrolled fire in the strut aft dry bay; accomplish the following:
(a) Within 1,000 flight hours after the effective date of this AD: Apply high-temperature sealant to the strut aft dry bays, in accordance with Boeing Alert Service Bulletin 777-54A0016, dated January 25, 2001.
(b) 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, Seattle Aircraft Certification Office (ACO), FAA. Operators shall submit their requests through an appropriate FAA Principal Maintenance Inspector, who may add comments and then send it to the Manager, Seattle ACO.
Information concerning the existence of approved alternative methods of compliance with this AD, if any, may be obtained from the Seattle ACO.
(c) Special flight permits may be issued in accordance with sections 21.197 and 21.199 of the Federal Aviation Regulations (14 CFR 21.197 and 21.199) to operate the airplane to a location where the requirements of this AD can be accomplished.
Federal Aviation Administration, DOT.
Notice of proposed rulemaking (NPRM).
This document proposes the adoption of a new airworthiness directive (AD) that is applicable to all McDonnell Douglas transport category airplanes listed above. This proposal would require a check of the slant pressure panels of the wheel wells of the left and right main landing gear (MLG) for water leakage, and repair of any leaks found. This action is necessary to prevent the accumulation of water in the wheel wells of the MLG during flight, which could freeze on the lateral control mixer and control cables, resulting in restricted lateral control and consequent reduced controllability of the airplane. This action is intended to address the identified unsafe condition.
Comments must be received by January 2, 2003.
Submit comments in triplicate to the Federal Aviation Administration (FAA), Transport Airplane Directorate, ANM-114, Attention: Rules Docket No. 2001-NM-170-AD, 1601 Lind Avenue, SW., Renton, Washington 98055-4056. Comments may be inspected at this location between 9:00 a.m. and 3:00 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 Boeing Commercial Aircraft Group, Long Beach Division, 3855 Lakewood Boulevard, Long Beach, California 90846, Attention: Data and Service Management, Dept. C1-L5A (D800-0024). This information may be examined at the FAA, Transport Airplane Directorate, 1601 Lind Avenue, SW., Renton, Washington; or at the FAA, Los Angeles Aircraft Certification Office, 3960 Paramount Boulevard, Lakewood, California.
Wahib Mina, Aerospace Engineer, Airframe Branch, ANM-120L, FAA, Los Angeles Aircraft Certification Office, 3960 Paramount Boulevard, Lakewood, California 90712-4137; telephone (562) 627-5324; fax (562) 627-5210.
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 (
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 2001-NM-170-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. 2001-NM-170-AD, 1601 Lind Avenue, SW., Renton, Washington 98055-4056.
The FAA has received numerous reports indicating water leakage from the slant pressure panel into the wheel well of the main landing gear (MLG) on certain McDonnell Douglas Model DC-9 series airplanes. The water froze on the lateral control mixer and control cables. If the slant pressure panel drain valve is clogged, or a drain system is not installed, any water that accumulates during flight will be squeezed out of the panel into the wheel well due to damaged sealant. Accumulation of water in the wheel wells of the MLG could freeze on the lateral control mixer and control cables, resulting in restricted lateral control and consequent reduced controllability of the airplane.
We have reviewed and approved Boeing Alert Service Bulletin DC9-53A295, Revision 01, including Appendix A, dated February 28, 2002, which describes procedures for a check of the slant pressure panels of the wheel wells of the left and right MLG for water leakage, and repair of any leaks found. The leak check includes the following:
• Pressurizing the airplane to 1 pound per square inch gage and checking the panels for leaks;
• Marking any leaks found;
• Pressurizing the airplane to 3 pounds per square inch gage and checking the panels for additional leaks;
• Marking any leaks found and depressurizing the airplane; and
• Repairing all leaks found and pressurizing the airplane to 3 pounds per square inch gage to verify that all leaks are repaired.
The service bulletin also recommends reporting initial leak check findings to the manufacturer. Accomplishment of the actions specified in the service bulletin is intended to adequately address the identified unsafe condition.
Since an unsafe condition has been identified that is likely to exist or develop on other products of this same type design, the proposed AD would require accomplishment of the actions specified in the service bulletin described previously, except as discussed below.
Although the service bulletin recommends that operators report findings to the manufacturer after doing the initial leak check, this proposed AD does not include such a reporting requirement.
There are approximately 1,919 airplanes of the affected design in the worldwide fleet. The FAA estimates that 1,159 airplanes of U.S. registry would be affected by this proposed AD, that it would take approximately 4 work hours per airplane to accomplish the proposed leak check, and that the average labor rate is $60 per work hour. Based on these figures, the cost impact of the proposed AD on U.S. operators is estimated to be $278,160, or $240 per airplane.
The cost impact figure discussed above is based on assumptions that no operator has yet accomplished any of the proposed requirements of this AD action, and that no operator would accomplish those actions in the future if this proposed AD were not adopted. The cost impact figures discussed in AD rulemaking actions represent only the time necessary to perform the specific actions actually required by the AD. These figures typically do not include incidental costs, such as the time required to gain access and close up,
The regulations proposed herein would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, it is determined that this proposal would not have federalism implications under Executive Order 13132.
For the reasons discussed above, I certify that this proposed regulation (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and (3) if promulgated, will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. A copy of the draft regulatory evaluation prepared for this action is contained in the Rules Docket. A copy of it may be obtained by contacting the Rules Docket at the location provided under the caption
Air transportation, Aircraft, Aviation safety, Safety.
Accordingly, pursuant to the authority delegated to me by the Administrator, the Federal Aviation Administration proposes to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) as follows:
1. The authority citation for part 39 continues to read as follows:
49 U.S.C. 106(g), 40113, 44701.
2. Section 39.13 is amended by adding the following new airworthiness directive:
This AD applies to each airplane identified in the preceding applicability provision, regardless of whether it has been modified, altered, or repaired in the area subject to the requirements of this AD. For airplanes that have been modified, altered, or repaired so that the performance of the requirements of this AD is affected, the owner/operator must request approval for an alternative method of compliance in accordance with paragraph (c) of this AD. The request should include an assessment of the effect of the modification, alteration, or repair on the unsafe condition addressed by this AD; and, if the unsafe condition has not been eliminated, the request should include specific proposed actions to address it.
To prevent the accumulation of water in the wheel wells of the left and right main landing gear (MLG), which could freeze on the lateral control mixer and control cables, resulting in restricted lateral control and consequent reduced controllability of the airplane; accomplish the following:
(a) Prior to the accumulation of 40,000 flight hours since date of manufacture, or within 18 months after the effective date of this AD, whichever is later: Do a check of the slant pressure panels of the wheel wells of the left and right MLG for water leakage (including pressurizing the airplane and checking the panels for leaks; depressurizing the airplane to repair leaks; and pressurizing the airplane again to verify that all leaks are repaired), per the Accomplishment Instructions of Boeing Alert Service Bulletin DC9-53A295, Revision 01, including Appendix A, dated February 28, 2002. If any leaks are found, before further flight, repair per the service bulletin. If no leaks are found, no further action is required by this AD.
(b) Accomplishment of the check for water leakage and repair of leaks found, before the effective date of this AD, per Boeing Alert Service Bulletin DC9-53A295, including Appendix A, dated May 8, 2001, is acceptable for compliance with paragraph (a) of this AD.
Although Boeing Alert Service Bulletins DC9-53A295, including Appendix A, dated May 8, 2001; and Revision 01, including Appendix A, dated February 28, 2002; recommend that operators report findings to the manufacturer after doing the initial leak check, this AD does not contain such a reporting requirement.
(c) An alternative method of compliance or adjustment of the compliance time that provides an acceptable level of safety may be used if approved by the Manager, Los Angeles Aircraft Certification Office (ACO), FAA. Operators shall submit their requests through an appropriate FAA Principal Maintenance Inspector, who may add comments and then send it to the Manager, Los Angeles ACO.
Information concerning the existence of approved alternative methods of compliance with this AD, if any, may be obtained from the Los Angeles ACO.
(d) Special flight permits may be issued in accordance with sections 21.197 and 21.199 of the Federal Aviation Regulations (14 CFR 21.197 and 21.199) to operate the airplane to a location where the requirements of this AD can be accomplished.
Internal Revenue Service (IRS), Treasury.
Notice of proposed rulemaking by cross-reference to temporary regulations and notice of public hearing.
In the rules and regulations section of this issue of the
Written or electronic comments must be received by February 18, 2003. Outlines of topics to be discussed at the public hearing scheduled for March 5, 2003, at 10 a.m., must be received by February 12, 2003.
Send submissions to: CC:ITA:RU (REG-143321-02), room 5226, Internal Revenue Service, POB 7604, Ben Franklin Station, Washington, DC 20044. Submissions may be hand delivered Monday through Friday between the hours of 8 a.m. and 5 p.m.
Concerning the proposed regulations, Nancy L. Rose (202) 622-4910; concerning submissions of comments, the hearing, and/or to be placed on the building access list to attend the hearing, Treena Garrett at (202) 622-7190 (not toll-free numbers).
The collection of information contained in this notice of proposed rulemaking has been submitted to the Office of Management and Budget for review in accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)). Comments on the collection of information should be sent to the Office of Management and Budget, Attn: Desk Officer for the Department of the Treasury, Office of Information and Regulatory Affairs, Washington, DC 20503, with copies to the Internal Revenue Service, Attn: IRS Reports Clearance Officer, W:CAR:MP:FP:S, Washington, DC 20224. Comments on the collection of information should be received by January 17, 2003. Comments are specifically requested concerning:
Temporary regulations in the rules and regulations section of this issue of the
As set forth in the preamble to the temporary regulations, public comments are specifically invited with regard to the potential for duplicate reporting under these proposed regulations and with regard to the burden of compliance with the reporting requirements under the proposed regulations.
The provisions of these regulations under section 6043 are proposed to be applicable for any acquisition of control and change in capital structure occurring after the date on which these regulations are published in the
It has been determined that this notice of proposed rulemaking is not a significant regulatory action as defined in Executive Order 12866. Therefore, a regulatory assessment is not required. It has also been determined that section 553(b) of the Administrative Procedure Act (5 U.S.C. chapter 5) does not apply to these regulations, and because the regulations do not impose a collection of information on small entities, the Regulatory Flexibility Act (5 U.S.C. chapter 6) does not apply. Pursuant to section 7805(f) of the Internal Revenue Code, this notice of proposed rulemaking will be submitted to the Chief Counsel for Advocacy of the Small Business Administration for comment on its impact on small businesses.
Before these proposed regulations are adopted as final regulations, consideration will be given to any electronic or written comments (a signed original and eight copies) that are submitted timely to the IRS. The IRS and Treasury Department request comments on the clarity of the proposed rules and how they can be made easier to understand. All comments will be available for public inspection and copying. A public hearing has been scheduled for March 5, 2003, beginning at 10 a.m. in room 4718, Internal Revenue Building, 1111 Constitution Avenue, NW., Washington, DC. Because of access restrictions, visitors will not be admitted beyond the immediate entrance area more than 30 minutes before the hearing starts. For information about having your name placed on the building access list to attend the hearing, see the
The rules of 26 CFR 601.601(a)(3) apply to the hearing. Persons who wish
The principal author of this notice of proposed rulemaking is Nancy L. Rose, Office of Associate Chief Counsel (Procedure and Administration).
Income taxes, Reporting and recordkeeping requirements.
Accordingly, 26 CFR part 1 is proposed to be amended as follows:
26 U.S.C. 7805 * * *
(The text of proposed § 1.6043-4 is the same as the text of § 1.6043-4T published elsewhere in this issue of the
(The text of proposed § 1.6045-3 is the same as the text of § 1.6045-3T published elsewhere in this issue of the
Legal Services Corporation (LSC).
Notice of Proposed Rulemaking.
This NPRM proposes several revisions to the LSC regulations implementing the Freedom of Information Act. The proposed revisions would add provisions detailing the submitter's rights process, provide LSC with express authority to defer action on pending and additional requests and appeals when a requester has an outstanding fee balance, and clarify the applicable fee waiver standards. LSC also proposes to revise the applicable fee structure to better reflect LSC's costs in complying with FOIA. Finally, the NPRM contains proposed technical changes to reflect current LSC nomenclature.
Comments on this NPRM are due on January 2, 2003.
Written comments may be submitted by mail, fax or email to Mattie C. Condray Senior Assistant General Counsel, Office of Legal Affairs, Legal Services Corporation, 750 First Street, NE., Washington, DC 20002-4250; (202) 336-8817 (phone); (202) 336-8952 (fax);
Mattie C. Condray, (202) 336-8817 (phone).
LSC is subject to the Freedom of Information Act (FOIA) by the terms of the Legal Services Corporation Act. 42 U.S.C. 2996d(g).
Pursuant to current LSC practice, if a request is received for the grant application records of a current or prospective recipient, LSC provides that applicant with an opportunity to request that some or all of the records requested be withheld from disclosure prior to LSC sending its response to the requester. This practice, which is consistent with current FOIA law, is not described or discussed in the regulations. The submitter's rights process affords important rights to grant applicants and also impacts requesters who have to wait until the submitter's rights process has been completed to obtain releasable records subject to this process. LSC believes that it is important, therefore, for this process to be explicitly set forth in Part 1602. Accordingly, LSC proposes to add a new section 1602.14, Submitter's rights process, which would formally incorporate the Corporation's current practice into the regulations.
At the outset, LSC notes that its submitter's rights process is based on the submitter's rights process outlined in Federal Executive Order No. 12,600 (June 23, 1987). E.O. 12,600 required Federal agencies to “establish procedures to notify submitters of records containing confidential information [information arguably subject to FOIA Exemption 4] * * * when those records are requested under the Freedom of Information Act * * * .” (Emphasis added) Although LSC is not a Federal agency, and, therefore, not subject to E.O. 12,600, LSC chose to develop a policy consistent with the Order. LSC believes that grant application records are the only records likely to contain “confidential information,” the release of which could cause competitive harm. Thus, the current submitter's rights process is only invoked in relation to requests for grant application information, but not other records submitted by recipients. LSC is, at this time, proposing to keep the process limited to requests for grant application materials, but specifically invites comment on whether there are other records submitted by recipients which would likely be subject to withholding under Exemption 4.
Under the proposed new section, when the Corporation receives a FOIA request seeking the release of a submitter's grant application(s), or portions thereof, the Corporation would provide prompt written notice of the request to the submitter in order to
Upon receipt of written objection to disclosure by a submitter, LSC would be required to consider the submitter's objections and specific grounds for withholding in deciding whether to release the disputed information. Whenever LSC decided to disclose information over the objection of the submitter, LSC would be required to give the submitter written notice that the Corporation was rejecting the submitter's withholding request (including an explanation of why the request was being rejected) and informing the submitter that the submitter shall have 5 business days from the date of the notice of proposed release to appeal that decision to the LSC President, whose decision would be final.
Under proposed paragraph (d), the submitter's rights process would not apply if (1) LSC determines, upon initial review, that the information requested is exempt from disclosure; (2) the information has been previously published or officially made available to the public; or (3) disclosure of the information is required by statute (other than FOIA) or LSC regulations.
In addition, LSC proposes to include provisions requiring that: (1) Whenever a requester files a lawsuit seeking to compel disclosure of a submitter's information, LSC would have to promptly notify the submitter; (2) whenever LSC provides a submitter with notice and opportunity to object to disclosure under this section, LSC would also notify the requester; and (3) whenever a submitter files a lawsuit seeking to prevent the disclosure of the submitter's information, LSC would notify the requester.
LSC also proposes to add a definition of the term “submitter” as that term would be used in this section. The definition proposed to be added at section 1602.2(k) would define “submitter” as any person or entity from whom the Corporation receives a grant application.
Many, if not most, agency FOIA regulations contain a provision permitting the agency to suspend continuing work on any pending requests and appeals from requesters who are 30 or more days in arrears on FOIA fees which they have been charged. Our regulations provide LSC with the authority to require anticipated fees for new requests be paid in advance for requesters with outstanding overdue bills, but do not expressly contain the authority to cease processing other existing requests, including appeals. Having this express authority would be helpful to the Corporation to avoid wasting resources on “nuisance” requesters who chronically have several requests and/or appeals pending before the Corporation at the same time, while being in arrears on properly assessed fees from prior requests to the Corporation. Accordingly, LSC proposes to add a new paragraph to section 1602.13, Fees, to provide for this authority. Specifically, the proposed new language would provide express authority to the Corporation to cease processing existing requests, including action on appeals, from a requester who is more than 30 days late in paying a properly assessed FOIA fee. This new language would appear as a new paragraph (j) and the current paragraphs (j), (k) and (l) would be redesignated as paragraphs (k), (l), and (m), respectively.
Requesters of records under FOIA are generally expected to pay reasonable fees related to the processing of FOIA requests. However, the statute also provides for waivers or reductions of fees when certain enumerated criteria are met. Section 1602.13(f) of the current regulation restates the basic fee waiver criteria as set forth in the statute. By way of contrast, the Department of Justice (DOJ) FOIA regulations on fee waiver criteria are more detailed, providing more guidance, based on long standing case law in this area, on the meaning of each of the factors to be considered in assessing fee waiver requests. LSC believes it would be helpful to both LSC and requesters for the LSC FOIA regulations to provide additional guidance in this area. By having a better understanding of the criteria, requesters can better prepare fee waiver requests and there will be less opportunity for disagreements and confusion as to when a fee waiver or reduction is appropriate. LSC is, accordingly, proposing to add language to each of the subparagraphs setting forth the factors upon which fee waiver determinations are made that provides a greater explanation of that factor.
Specifically, 1602.13(f)(1) of the current regulation lists the factors that the Corporation assesses in order to determine whether disclosure of information is in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the Corporation or Federal government. The first factor currently reads:
(i) The subject of the request: Whether the subject of the requested records concerns “the operations or activities of the Corporation or Federal government.”
LSC proposes to add a sentence to this subparagraph explaining that the subject of the requested records must concern identifiable operations or activities of the Corporation or the Federal government, with a connection that is direct and clear, not remote or attenuated.
The second factor currently reads:
(ii) The informative value of the information to be disclosed: Whether the disclosure is “likely to contribute” to an understanding of Corporation or Federal government operations or activities.
The third factor currently reads:
(iii) The contribution to an understanding of the subject by the public likely to result from disclosure: Whether disclosure of the requested records will contribute to “public understanding.”
The fourth factor currently reads:
(iv) The significance of the contribution to public understanding: Whether the disclosure is likely to contribute “significantly” to public understanding of Corporation or Federal government operations or activities.
Section 1602.13(f)(2) sets forth the factors used by LSC to determine whether disclosure of the information is not primarily in the commercial interest of the requester. The first factor currently reads:
(i) The existence and magnitude of a commercial interest: Whether the requester has a commercial interest that would be furthered by the requested disclosure.
The second factor reads:
(ii) The primary interest in disclosure: Whether the magnitude of the identified commercial interest is sufficiently large, in comparison with the public interest in disclosure, that disclosure is “primarily” in the commercial interest of the requester.
In each of these cases, the language proposed to be added is consistent with the current regulations and LSC practice, FOIA case law and government-wide FOIA practice. As noted above, LSC believes the additions will aid in public understanding of the meaning and application of the fee waiver criteria.
There are several instances throughout the regulation where the regulation makes reference to the “Office of the General Counsel.” The Office of the General Counsel was renamed the Office of Legal Affairs in 1999. LSC, therefore, proposes to substitute the name “Office of Legal Affairs” for “Office of the General Counsel” each time it appears in sections 1602.6 and 1602.8 of the regulations.
Section 1602.5, Public reading room, sets forth, among other things, the address of LSC's public reading room. The address listed, 750 First Street, NE., Washington, DC, 20002, is currently correct. However, LSC will be moving in June 2003 to new permanent headquarters. LSC proposes to add language to this section providing the address of the LSC public reading room in LSC's new home: 3333 K St., NW., Washington, DC 20007.
In accordance with FOIA, LSC charges fees for processing FOIA requests and providing copies of requested documents. LSC's schedule of applicable fees is set forth in section 1602.13(e). The current schedule of fees was adopted in 1998 and no longer accurately reflects LSC's costs in responding to FOIA requests. LSC, therefore, proposes to increase fees for search and review time and for copying.
LSC's fees for search and review time are based on LSC's pay schedule, which is divided into broad “pay bands.” In the four years since the regulation was last amended, LSC's pay bands have increased to keep up with inflation. The current midpoint of each band is now:
Band 1: $16.15
Band 2: $26.66
Band 3: $39.15
Band 4: $51.41
Band 5: $54.99
Under the current regulation, LSC charges $0.10 per page for standard paper photocopying. LSC's actual costs for photocopying are now closer to $0.15 per page. LSC proposes to increase copying costs to $0.13 per page so as to better reflect LSC's costs, while still providing a small discount to requesters. In addition, LSC proposes to substitute the term “Express mail” for “special delivery” where it appears in section 1602.13(e)(7) to reflect current terminology.
Freedom of information, Reporting and recordkeeping requirements.
For reasons set forth above, LSC proposes to amend 45 CFR part 1602 as follows:
1. The authority citation for part 1602 continues to read as follows:
42 U.S.C. 2996d(g); 5 U.S.C. 552.
2. Section 1602.2, would be amended by adding a new paragraph (k) to read as follows:
(k)
3. Paragraph (a) of § 1602.5 would be revised to read as follows:
(a) The Corporation will maintain a public reading room at its office at 750 First Street, NE., Washington, DC, 20002. After June 1, 2003, the Corporation's public reading room will be located at its office at 3333 K Street, NW., Washington, DC, 20007. This room will be supervised and will be open to the public during the regular business hours of the Corporation for inspecting and copying records described in paragraph (b) of this section.
4. Section 1602.6 would be amended by replacing the words “Office of the General Counsel” in the second sentence with the words “Office of Legal Affairs.”
5. Paragraph (b) of § 1602.8, would be amended by replacing the words “Office of the General Counsel” each of the three times that phrase appears in the paragraph with the words “Office of Legal Affairs.”
6. Section 1602.3 would be amended by:
a. Revising paragraphs (e) and (f);
b. Redesignating paragraphs (j) through (l) as paragraphs (k) through (m) respectively; and
c. Adding a new paragraph (j).
(e) The schedule for charges for services regarding the production or disclosure of the Corporation's records is as follows:
(1) Manual search for and review of records will be charged as follows:
(i) Band 1: $16.15
(ii) Band 2: $26.66
(iii) Band 3: $39.15
(iv) Band 4: $51.41
(v) Band 5: $54.59
(vi) Charges for search and review time less than a full hour will be billed by quarter-hour segments;
(2) Computer time: actual charges as incurred;
(3) Duplication by paper copy: 13 cents per page;
(4) Duplication by other methods: actual charges as incurred;
(5) Certification of true copies: $1.00 each;
(6) Packing and mailing records: no charge for regular mail;
(7) Express mail: actual charges as incurred.
(f)
(1) In order to determine whether disclosure of the information is in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the Corporation or Federal government, the Corporation shall consider the following four factors:
(i) The subject of the request: Whether the subject of the requested records concerns “the operations or activities of the Corporation or Federal government.” The subject of the requested records must concern identifiable operations or activities of the Corporation or Federal government, with a connection that is direct and clear, not remote or attenuated.
(ii) The informative value of the information to be disclosed: Whether the disclosure is “likely to contribute” to an understanding of Corporation or Federal government operations or activities. The requested records must be meaningfully informative about government operations or activities in order to be likely to contribute to an increased public understanding of those operations or activities. The disclosure of information that is already in the public domain, in either a duplicative or a substantially identical form, would not be likely to contribute to such understanding where nothing new would be added to the public's understanding.
(iii) The contribution to an understanding of the subject by the public likely to result from disclosure: Whether disclosure of the requested records will contribute to “public understanding.” The disclosure must contribute to a reasonably broad audience of persons interested in the subject, as opposed to the personal interest of the requester. A requester's expertise in the subject area and ability and intention to effectively convey information to the public shall be considered. It shall be presumed that a representative of the news media will satisfy this consideration.
(iv) The significance of the contribution to public understanding: Whether the disclosure is likely to contribute “significantly” to public understanding of Corporation or Federal government operations or activities. The public's understanding of the subject in question, as compared to the level of public understanding existing prior to the disclosure, must be enhanced by the disclosure to a significant extent.
(2) In order to determine whether disclosure of the information is not primarily in the commercial interest of the requester, the Corporation will consider the following two factors:
(i) The existence and magnitude of a commercial interest: Whether the requester has a commercial interest that would be furthered by the requested disclosure. LSC shall consider any commercial interest of the requester (with reference to the definition of “commercial use” in this part) or of any person on whose behalf the requester may be acting, that would be furthered by the requested disclosure.
(ii) The primary interest in disclosure: Whether the magnitude of the identified commercial interest is sufficiently large, in comparison with the public interest in disclosure, that disclosure is “primarily” in the commercial interest of the requester. A fee waiver or reduction is justified where the public interest is greater in magnitude than that of any identified commercial interest in disclosure. LSC ordinarily shall presume that where a news media requester has satisfied the public interest standard, the public interest will be the interest primarily served by disclosure to that requester. Disclosure to data brokers or others who merely compile and market government information for direct economic return shall not be presumed primarily to serve a public interest.
(3) Where LSC has determined that a fee waiver or reduction request is justified for only some of the records to be released, LSC shall grant the fee waiver or reduction for those records.
(4) Requests for fee waivers and reductions shall be made in writing and must address the factors listed in this paragraph as they apply to the request.
(j) When a requester has previously failed to pay a properly charged FOIA fee within 30 days of the date of billing, the Corporation may require the requester to pay the full amount due, plus any applicable interest, and to make an advance payment of the full amount of any anticipated fee before the Corporation begins to process a new request or continues to process a pending request (including appeals) from that requester.
7. A new 1602.14, would be added to read as follows:
(a) When the Corporation receives a FOIA request seeking the release of a submitter's grant application(s), or portions thereof, the Corporation shall provide prompt written notice of the request to the submitter in order to afford the submitter with an opportunity to object to the disclosure of the requested records (or any portion thereof). The notice shall reasonably describe the records requested and inform the submitter of the process required by paragraph (b) of this section.
(b) If a submitter who has received notice of a request for the submitter's records desires to object to the disclosure of the records (or any portion thereof), the submitter must identify the information for which disclosure is objected and provide LSC with a written detailed statement to that effect. The statement must be submitted to the FOIA Officer in the Office of Legal Affairs and must specify the grounds for withholding the information under FOIA or this part. In particular, the submitter must demonstrate why the information is commercial or financial information that is privileged or confidential. The submitter's statement
(c) Upon receipt of written objection to disclosure by a submitter, LSC shall consider the submitter's objections and specific grounds for withholding in deciding whether to release the disputed information. Whenever LSC decides to disclose information over the objection of the submitter, LSC shall give the submitter written notice which shall include:
(1) A description of the information to be released and a notice that LSC intends to release the information;
(2) A statement of the reason(s) why the submitter's request for withholding is being rejected; and
(3) Notice that the submitter shall have 5 business days from the date of the notice of proposed release to appeal that decision to the LSC President, whose decision shall be final.
(d) The requirements of this section shall not apply if:
(1) LSC determines upon initial review of the requested records they should not be disclosed;
(2) The information has been previously published or officially made available to the public; or
(3) Disclosure of the information is required by statute (other than FOIA) or LSC regulations.
(e) Whenever a requester files a lawsuit seeking to compel disclosure of a submitter's information, LSC shall promptly notify the submitter.
(f) Whenever LSC provides a submitter with notice and opportunity to oppose disclosure under this section, LSC shall notify the requester that the submitter's rights process under this section has been triggered. Whenever a submitter files a lawsuit seeking to prevent the disclosure of the submitter's information, LSC shall notify the requester.
National Marine Fisheries Service (NOAA Fisheries), National Oceanic and Atmospheric Administration, Commerce.
Notice of public hearing and scoping meeting.
The South Atlantic Fishery Management Council (Council) will hold a public hearing to address findings from the SAW/SARC (Stock Assessment Workshop/Stock Assessment Review Committee) process for the red porgy stock assessment. The hearing will include an overview of the recent Stock Assessment Workshop findings and the conclusions from the Stock Assessment Review Committee. In addition, the Council will conduct a public scoping meeting addressing issues affecting the spiny lobster fishery.
The red porgy public hearing and the public scoping meeting for spiny lobster will be held on Monday, December 2, 2002. See
The public hearing and scoping meeting will be held in New Bern, NC (see
Kim Iverson, Public Information Officer, South Atlantic Fishery Management Council, One Southpark Circle, Suite 306, Charleston, SC 29407-4699; telephone: 843-571-4366; fax: 843-769-4520; email address:
A 1999 stock assessment showed red porgy stocks to be overfished and emergency action was taken to restrict both the commercial and recreational fishery, including a one fish per person recreational bag limit, a 50-pound (22.7-kg) incidental catch limit for the commercial sector, and a closed commercial season from January through April. A subsequent stock assessment and review through the SAW/SARC process concluded that red porgy stocks remain overfished and the current management measures are warranted at this time. The Council is conducting the hearing in order to receive input from the public regarding these findings and obtain information regarding the effects of the current regulations. This information will be considered as the Council moves forward with the development of Amendment 13 to the Snapper Grouper Fishery Management Plan.
The scoping meeting will address issues affecting the spiny lobster fishery. These issues will include defining overfishing, possible federal regulation changes regarding the use of “shorts” or undersized lobsters used for bait by commercial harvesters, allowing the expansion of the commercial fishery north of Florida, and the distribution of tailing permits for spiny lobster.
The public hearing will be held at 6 p.m. with the public scoping meeting immediately following at the following location and date:
1.
These meetings are physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to the Council (see
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of receipt of a petition for rulemaking; request for comments.
NMFS announces receipt of, and requests public comment on, a petition from the North Carolina Division of Marine Fisheries (Petitioner)
Comments must be received no later than 5 p.m., Eastern Standard Time, on December 18, 2002.
Written comments on the petition should be sent to Brad McHale, Highly Migratory Species Management Division, National Marine Fisheries Service, One Blackburn Drive, Gloucester, MA 01930-2298. Mark on the outside of the envelope: “Comments on Petition for Rulemaking.” Comments may also be sent via a facsimile (fax) to (978) 281-9340. Comments will not be accepted if submitted via e-mail or the Internet. Copies of the letter constituting the petition are available upon request at the address mentioned above.
Brad McHale, Fishery Management Specialist, (978) 281-9260.
On October 16, 2002, the Petitioner submitted a request to NMFS to initiate rulemaking for a regulatory amendment to 50 CFR 635.27 that would allocate 23 percent of the General category BFT quota to a new December 1 through January 31 time-period subquota. In 2002, the initial General Category quota equaled 647 mt, thus 23 percent would equal 150 mt. The Petitioner states that the quota allocated to the late season General category fishery does not provide reasonable opportunity to harvest BFT when they appear off the South Atlantic coast. The Petitioner believes that there is inequity in the current General category BFT management scheme and that it is necessary to create a General category December through January subquota to ensure fair and equitable treatment to all General category permit holders. The Petitioner explains that the current allocation of General category quota disadvantages General category permit holders who wish to commercially pursue BFT in the South Atlantic, confounds the collection of fishery data, and confounds management for optimum yield.
The Petitioner notes that the proposed amendment could remedy the above inequities, address concerns over National Standard 4, benefit all U.S. BFT fishermen, and have significant economic benefits to South Atlantic fishing communities. The Petitioner also recognizes the proposed amendment could have some negative effects on participants who exploit available quota during earlier time-period subquotas. However, the Petitioner believes that the negative impacts could be mitigated if New England fishermen elect to pursue the BFT as they move south of the South Atlantic states.
The Petitioner acknowledges that operating under the National Standards set forth in the Magnuson-Stevens Fishery Conservation and Management Act is a NOAA priority and policy. To that end, the Petitioner believes that the proposed amendment addresses serious issues related to several National Standards. The Petitioner also believes that the proposed amendment is consistent with specific objectives contained in the Fishery Management Plan for Atlantic Tunas, Swordfish and Sharks (HMS FMP), including improved coordination of domestic conservation and management of the highly migratory species fisheries, considering the multi-species nature of these fisheries, overlapping regional and individual participation, international management concerns, and other relevant factors, as well as maintaining the fishing season and geographic range of the fishery within its historic context to improve scientific monitoring and enhance fishing opportunities. In addition, the Petitioner notes that the 2002 quota specifications and General category effort controls acknowledge that the BFT fishery has changed in recent years with higher catch rates in the fall/winter. According to Petitioner, the proposed amendment would allow more time to harvest the General category subquota and minimize the need to increase harvest limits to levels that could negatively affect prices to U.S. fishermen in international markets.
The request made by the Petitioner has been recently discussed in several public forums. During the development of the issue of opening a southern commercial handgear BFT fishery, the HMS Advisory Panel and public extensively discussed establishing a set-aside quota for a North Carolina General category fishery. However, the HMS AP did not reach consensus on whether or not to allow a new southern commercial fishery. At that time, NMFS maintained its position that allowing new gear types and large scale fisheries for BFT would not be consistent with rebuilding overfished stocks and preventing overfishing. In analyzing a variety of long-term effort controls in the BFT fishery, the HMS FMP concluded that the status quo management regime for the General category would assist attainment of optimum yield and address allocation issues by lengthening the season over time and space in a category with high participation and catch rates.
During the 2002 HMS AP meeting, representatives from North Carolina presented a proposal to allocate General category BFT quota during a time and/or in an area so that North Carolina fishermen would have local access to the commercial handgear fishery. The HMS AP again extensively discussed the issue but did not reach consensus.
During the comment period for the 2002 BFT Quota Specifications and General Category Effort controls, NMFS received numerous comments, stating that North Carolina should have its own winter General category set-aside quota. These comments also stated that the current General category allocation scheme discriminates between residents of different states and fails to provide equitable fishing opportunities across different geographical areas. Commenters also requested that there be a December through January time-period subquota established for southern states.
At that time, NMFS maintained the current quota allocation scheme and did not implement a specific set-aside quota for North Carolina. NMFS stated it would continue to assess the order of magnitude and scope of the fishing activities that would be associated with a North Carolina General category BFT fishery and would continue to work with the HMS AP to address potential solutions.
This document solicits comments from the public regarding the need to proceed with rulemaking to amend the current General category BFT quota allocation schedule and the provision that closes the General category BFT fishery on December 31 of each year. NMFS is specifically requesting that the public provide comments on the social, economic, and biological impacts this regulatory amendment would have on the General category BFT Fishery. NMFS will consider this information in determining whether to proceed with the development of amended regulations requested by the petition.
Forest Service, USDA.
Notice of meeting.
The Del Norte County Resource Advisory Committee (RAC) will meet on December 3, 2002 in Crescent City, California. The purpose of the meeting is to discuss the selection of Title II projects under Pub. L. 106-393, H.R. 2389, the Secure Rural Schools and Community Self-Determination Act of 2000, also called the “Payments to States” Act.
The meeting will be held at the Del Norte County Unified School District Board Room, 301 West Washington Boulevard, Crescent City, California.
Laura Chapman, Committee Coordinator, USDA, Six Rivers National Forest, 1330 Bayshore Way, Eureka, CA 95501. Phone: (707) 441-3549. E-mail:
Agenda items include presentations on Title II projects from project proponents, and a discussion of legacy Title II projects. The meeting is open to the public. Public input opportunity will be provided and individuals will have the opportunity to address the committee at that time.
DoC has submitted to the Office of Management and Budget (OMB) for clearance the following proposal for collection of information under provisions of the Paperwork Reduction Act (44 U.S.C. chapter 35).
Specific uses of the on-line Performance Database include:
MBDA requires this information to monitor, evaluate, and plan Agency programs which effectively enhance the development of the minority business sector.
Using information collected, MBDA produces
The purpose of this collection will be to establish a framework for assessing and evaluating projects' performance.
The Phoenix database constitutes the Minority Business Development Agency's (MBDA) listing of minority-owned businesses doing business in the United States. The Opportunity database contains public and private
The purpose for collecting this information is to enable entities with an interest in contracting with a minority firm to identify potential minority contractors according to various criteria. MBDA uses the Phoenix database in conjunction with the Opportunity database to refer listed minority companies contracts and other business opportunities via email and fax. The Opportunity database matches contract opportunities with eligible minority companies listed in the Phoenix database. Specific information on the Opportunity form, such as “key words” and NAICS codes, are compared with like information contained in the Phoenix database of minority companies. When a match is made, the eligible minority companies will be notified of any contract opportunity and the offeror of the opportunity will be notified of any eligible minority companies. These systems reside on Y2K (year 2000) compliant platforms connected to the service-provider network via the Internet.
Copies of the above information collection proposal can be obtained by calling or writing Diana Hynek , Departmental Paperwork Clearance Officer, (202) 482-3129, U.S. Department of Commerce, Electronic Government Division, Office of the Chief Information Officer, Room 6625, 14th and Constitution Avenue, NW., Washington, DC 20230.
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to Dave Rostker at OMB.
The Bureau of Industry and Security, United States Department of Commerce (“BIS”), has notified Oerlikon Schweisstechnik AG (also known in Switzerland as Oerlikon-Welding Ltd.) (“Oerlikon”), of its intention to initiate an administrative proceeding against it pursuant to Section 13(c) of the Export Administration Act of 1979, as amended (50 U.S.C. app. 2401-2420 (1994 & Supp. V 1999)) (“Act”),
BIS and Oerlikon having entered into a Settlement Agreement pursuant to Section 766.18(b) of the Regulations whereby they agreed to settle this matter in accordance with the terms and conditions set forth therein, and the terms of the Settlement Agreement having been approved by me;
First, that, for a period of one year from the date of this Order, Oerlikon Schweisstechnik AG (also known in Switzerland as Oerlikon-Welding Ltd.), Neumbrunnerstrasse 50, CH-8050 Zurich, Switzerland, shall be denied its U.S. export privileges as described herein (hereinafter the “denial period”). Oerlikon, and all of its successors, assigns, officers, representatives, agents, and employees, may not participate, directly or indirectly, in any way in any transaction involving any commodity, software, or technology (hereinafter collectively referred to as “item”) exported or to be exported from the United States that is subject to the Regulations, or in any other activity subject to the Regulations, including, but not limited to:
A. Applying for, obtaining, or using any license, License Exception, or export control document;
B. Carrying on negotiations concerning, or ordering, buying, receiving, using, selling, delivering, storing, disposing of, forwarding, transporting, financing, or otherwise servicing in any way, any transaction involving any item exported or to be exported from the United States that is subject to the EAR, or in any other activity subject to the EAR; or
C. Benefiting in any way from any transaction involving any item exported or to be exported from the United States that is subject to the EAR, or in any other activity subject to the EAR.
Second, that no person may, directly or indirectly, do any of the following:
A. Export or reexport to or on behalf of a person subject to this order any item subject to the EAR;
B. Take any action that facilitates the acquisition or attempted acquisition by a person subject to this order of the ownership, possession, or control of any item subject to the EAR that has been or will be exported from the United States, including financing or other support activities related to a transaction whereby a person subject to this order acquires or attempts to acquire such ownership, possession or control;
C. Take any action to acquire from or to facilitate the acquisition or attempted acquisition from a person subject to this order of any item subject to the EAR that has been exported from the United States;
D. Obtain from a person subject to this order in the United States any items subject to the EAR with knowledge or reason to know that the item will be, or is intended to be, exported from the United States; or
E. Engage in any transaction to service any item subject to the EAR that has
Third, that after notice and opportunity for comment as provided in section 766.23 of the EAR, any other person, firm, corporation, or business organization related to the denied person by affiliation, ownership, control, or position of responsibility in the conduct of trade or related services may also be made subject to the provisions of this order.
Fourth, that this order does not prohibit any export, reexport, or other transaction subject to the EAR where the only items involved that are subject to the EAR are the foreign-produced direct product of U.S.-orgin technology.
Fifth, that, as authorized by Section 766.18(c) of the Regulations, the final six months of the denial period set forth above shall be suspended for one year from the date of entry of this Order, and shall thereafter be waived, provided that, during the period of suspension, Oerlikon has not committed a violation of the Act or any regulation, order or license issued thereunder.
Sixth, that a civil penalty of $33,000 is assessed against Oerlikon which shall be paid to the U.S. Department of Commerce within thirty days from the date of entry of this Order. Payment shall be made in the manner specified in the attached instructions.
Seventh, that, pursuant to the Debt Collection Act of 1982, as amended (31 U.S.C. 3701-3720E (1993 and Supp. 2000)), the civil penalty owned under this Order accrues interest as more fully described in the attached Notice, and, if payment is not made by the due date specified herein, Oerlikon will be assessed, in addition to the full amount of the civil penalty and interest, a penalty charge and an administrative charge, as more fully described in the attached Notice.
Eighth, that the timely payment of the civil penalty set forth above is hereby made a condition to the granting, restoration, or continuing validity of any export license, license exception, permission, or privilege granted, or to be granted, to Oerlikon. Accordingly, if Oerlikon should fail to pay the civil penalty in a timely manner, the undersigned may enter an Order denying all of Oerlikon's export privileges for a period of one year from the date of entry of this Order.
Ninth, that the charging letter, the Settlement Agreement, and this Order shall be made available to the public.
Tenth, that a copy of this Order shall be delivered to the United States Coast Guard ALJ Docketing Center, 40 Gay Street, Baltimore, Maryland 21202-4022, notifying that office that case number 02-BXA-07 naming Oerlikon as a respondent is withdrawn from adjudication, as provided by Section 766.18(b) of the Regulations.
This Order, which constitutes the final agency action in this matter, is effective immediately.
The Regulations and Procedures Technical Advisory Committee will meet on December 3, 2002, 9 a.m., Room 3884, in the Herbert C. Hoover Building, 14th Street between Constitution and Pennsylvania Avenues, NW., Washington, DC. The Committee advises the Office of the Assistant Secretary for Export Administration on implementation of the Export Administration Regulations (EAR) and provides for continuing review to update the EAR as needed.
The meeting will be open to the public and a limited number of seats will be available. Reservations are not accepted. To the extent time permits, members of the public may present oral statements to the Committee. Written statements may be submitted at any time before or after the meeting. However, to facilitate distribution of public presentation materials to Committee members, the Committee suggests that presenters forward the public presentation materials, two weeks prior to the meeting date, to the following address: Ms. Lee Ann Carpenter, OSIES/EA/BIS, MS: 3876, U.S. Department of Commerce, 14th St. & Constitution Ave., NW., Washington, DC 20230.
For more information contact Lee Ann Carpenter on (202) 482-2583.
National Oceanic and Atmospheric Administration (NOAA).
Notice.
The Department of Commerce, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995, Public Law 104-13 (44 U.S.C. 3506 (c)(2)(A)).
Written comments must be submitted on or before January 17, 2003.
Direct all written comments to Diana Hynek, Departmental Paperwork Clearance Officer, Department of Commerce, Room 6625, 14th and Constitution Avenue NW, Washington DC 20230 (or via Internet at
Requests for additional information or copies of the information collection instrument and instructions should be directed to Chris Rilling, Highly Migratory Species Management Division (F/SF1), Office of Sustainable Fisheries, National Marine Fisheries Service, 1315
Under the proposed information requirement, vessels fishing for Atlantic highly migratory species (HMS) with pelagic longline gear on board would be required to install and operate a vessel monitoring system (VMS). On May 28, 1999, the National Marine Fisheries Service (NMFS) issued a regulation, 50 CFR 635.69(a), requiring all commercial pelagic longline vessels fishing for Atlantic HMS to install a NMFS-approved VMS.
The Bluewater Fisherman’s Association filed a lawsuit challenging the VMS requirement, and the U.S. District Court for the District of Columbia remanded the regulation to the Secretary of Commerce for further consideration. On August 29, 2001 NMFS submitted a reconsideration memorandum to the court analyzing alternatives to and reaffirming the need for fleetwide implementation of VMS in the Atlantic pelagic longline fishery. On October 15, 2002, the U.S. District Court for the District of Columbia issued a final order that denied plaintiff’s objections to the VMS regulation. Based on this ruling, NMFS is seeking to reinstate OMB approval for this information collection as required by the Paperwork Reduction Act.
If approved, automatic position reports would be submitted on an hourly basis whenever the vessel is at sea. The information would aid in the enforcement of fishery regulations and could allow for delayed offloading after a closure.
Vessel operators would also be required to follow an equipment installation checklist and submit it to NMFS. The checklist provides information on the hardware and communications service selected by each vessel. NMFS would use the returned checklists to ensure that position reports are received and to aid NMFS in troubleshooting problems.
Checklists would be submitted in paper form. Position reports would be automatically sent electronically by the vessel monitoring system units.
Comments are invited on: (a) whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency’s estimate of the burden (including hours and cost) of the proposed collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology.
Comments submitted in response to this notice will be summarized and/or included in the request for OMB approval of this information collection; they also will become a matter of public record.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notification of Advisory Panel meetings.
NMFS will hold joint meetings of the Atlantic Highly Migratory Species Advisory Panel (HMS AP) and the Atlantic Billfish Advisory Panel (Billfish AP), February 10 through 12, 2003, in Silver Spring, MD. The intent of these meetings is to consider alternatives for the conservation and management of highly migratory species.
The joint HMS-Billfish AP meetings will be held from 1 p.m. to 5 p.m. on Monday, February 10; from 8 a.m. to 5 p.m. on Tuesday, February 11; and from 8 a.m. to 5 p.m. on Wednesday, February 12, 2003.
The AP meetings will be held in the Holiday Inn, 8777 Georgia Ave. (Rt. 97), Silver Spring, MD 20910. Phone: 301-589-0800.
An agenda and materials related to the AP meeting will be available after January 2, 2003. Please contact Carol Douglas or Othel Freeman, Highly Migratory Species Management Division, 1315 East-West Highway, Silver Spring, MD 20910, 301-713-2347, for meeting logistics or materials.
Dr. Ronald G. Rinaldo, 301-713-2347.
The actions to be discussed by the APs are necessary to address requirements of the Magnuson-Stevens Fishery Conservation and Management Act and to implement recommendations of the International Commission for the Conservation of Atlantic Tunas as required by the Atlantic Tunas Convention Act, for the conservation and management of highly migratory species.
These meetings are physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Dr. Rinaldo (see
16 U.S.C. 961
National Marine Fisheries Service (N
Notice of public meeting.
The Joint Mid-Atlantic Fishery Management Council (MAFMC) and the Atlantic States Marine Fisheries Commission's (ASMFC) Summer Flounder, Scup, and Black Sea Bass Industry Advisors will hold a public meeting.
Wednesday, December 4, 2002, from 9 a.m. until 4 p.m.
The meeting will be held at the Renaissance Hotel Philadelphia Airport, 500 Stevens Drive, Philadelphia, PA, telephone 610-521-5900.
Daniel T. Furlong, Executive Director, MAFMC, telephone 302-674-2331, ext. 19. Vince O'Shea, Executive Director, ASMFC, telephone 202-289-6400, ext. 304.
The purpose of this meeting is to discuss the 2003 recreational management measures for summer flounder, scup, and black sea bass.
Although non-emergency issues not contained in this agenda may come before the Council for discussion, in accordance with the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act), those issues may not be the subject of formal Council action during these meetings. Action will be restricted to those issues specifically listed in this notice and any issue arising after publication of this notice that require emergency action under section 305(c) of the Magnuson-Stevens Act, provided the public has been notified of the Council's intent to take final action to address this emergency.
This meeting is physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Joanna Davis at the Mid-Atlantic Council Office at least 5 days prior to the meeting date.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce
Notice of a public meeting.
The New England Fishery Management Council (Council) is scheduling a public meeting of its Groundfish Oversight in December, 2002. Recommendations from the committee will be brought to the full Council for formal consideration and action, if appropriate.
The meeting will held on Monday, December 2, 2002, at 9:30 a.m.
The meeting will be held at the Holiday Inn, 31 Hampshire Street, Mansfield, MA 02048; telephone: (508) 339-2200.
Paul J. Howard, Executive Director, New England Fishery Management Council; (978) 465-0492.
The Groundfish Oversight Committee will meet to review the Draft Amendment 13 and accompanying Supplemental Environmental Impact Statement (SEIS) prior to its submission to NMFS. This document is being prepared for submission in December based on a court order in the case of Conservation Law Foundation et al. v. Secretary of Commerce. NMFS has petitioned the court to allow a delay in submitting the document, and the Council has sent a letter for the court asking for at least a one year delay. If a delay is granted by the court, further work will be completed before the Amendment is submitted.
Although non-emergency issues not contained in this agenda may come before this group for discussion, those issues may not be the subject of formal action during this meeting. Action will be restricted to those issues specifically listed in this notice and any issues arising after publication of this notice that require emergency action under section 305(c) of the Magnuson-Stevens Act, provided the public has been notified of the Council's intent to take final action to address the emergency.
This meeting is physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Paul J. Howard (see
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of public meetings.
The North Pacific Fishery Management Council (Council) and its advisory committees will hold public meetings December 2-9, 2002, in Anchorage, Alaska.
The meetings will be held on December 2, 2002 through December 9, 2002. See
The Anchorage Hilton Hotel, 500 W 3rd Avenue, Anchorage, Alaska 99501.
Council staff, Phone: 907-271-2809.
The Council's Advisory Panel (AP) will begin at 8 a.m., Monday, December 2, and continue through Friday, December 6, 2002. The Scientific and Statistical Committee (SSC) will begin at 8 a.m. on Monday, December 2, and continue through Wednesday, December 4, 2002. Other Committees to be held during the week: Joint Protocol/Council/Board of Fish, 6 p.m. on Tuesday, December 3 in the King Salmon Room. Ecosystem Panel (Council, SSC, AP) 1 p.m.-5 p.m. on Tuesday, December 3 in the Aspen/Spruce Room.
The Council will begin its plenary session at 8 a.m. on Wednesday, December 4, continuing through Tuesday December 9. All meetings are
1. Report:
(a) Executive Director's Report
(b) NMFS Management Report
(c) Alaska Department of Fish &Game (ADF&G) Management Report
(d) Coast Guard Report
(e) United States Fish & Wildlife Service Report
(f) National Academy of Science Steller Sea Lion report
(g) Vessel Monitoring System (VMS) National Committee report (if available)
2. Crab Rationalization: Receive Committee reports and determine preferred alternatives for completed trailing amendments. Discuss Environmental Impact Statement (EIS) progress and alternatives. Provide direction/alternatives on Pribilof blue king crab rebuilding plan.
3. Gulf of Alaska (G0A) Rationalization; Receive report from GOA Work Group, discuss alternatives for formal analysis, and provide direction to staff and work group.
4. Essential Fish Habitat (EFH): Receive Committee report and clarify mitigation alternatives for analysis.
5. American Fisheries Act Issues: Final action on Pacific cod sideboard issues (T). Review initial co-op reports and agreements (full reports in February).
6. Improved Retention/Improved Utilization (IR/IU): Receive Committee report and clarify mitigation alternatives for analysis.
7. Groundfish Issues: Final report from F40 review. Review NMFS discussion paper on Bering Sea and Aleutian Islands (BSAI) rockfish management. Review alternative for total allowable catch (TAC)-setting process amendment package. Review and approve BSAI and GOA Stock Assessment and Fishery Evaluation(SAFE) report and recommend final catch specifications and bycatch apportionments for 2003. Review discussion paper on Amendment 64 (BSI fixed gear Pacific cod allocations) and finalize alternatives for analysis.
8. Staff Tasking: Review tasking and committees and provide direction to staff.
9. Other Business: Approve AP and SSC appointments for 2003
(a) C-3 EFH
(b) Review Halibut log book data
(c) C-1 Rationalization (T)
(d) D-1(a) F40 Final Report
(e) D-1(b,c) BSAI Rockfish and TAC setting
(f) D-1(d,e) BSAI/GOA SAFE
(g) American Fisheries Act
Although non-emergency issues not contained in this agenda may come before the discussion, in accordance with the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act), those issues may not be the subject of formal Council action during these meetings. Action will be restricted to those issues specifically listed in this notice and any issue arising after publication of this notice that require emergency action under section 305(c) of the Magnuson-Stevens Act, provided the public has been notified of the Council's intent to take final action to address this emergency.
These meetings are physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Gail Bendixen at 907-271-2809 at least 7 working days prior to the meeting date.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of public meetings.
The South Atlantic Fishery Management Council (Council) will hold meetings of its Snapper Grouper Committee, Finance Committee, Highly Migratory Species Committee, Advisory Panel Selection Committee (closed session), Habitat Committee and Dolphin Wahoo Committee. A joint meeting will also be held between the Snapper Grouper Committee and the Snapper Grouper Advisory Panel. A public hearing will be held on the red porgy stock assessment and review. Additional public comment periods will be held to address lobster issues and the final Dolphin Wahoo Fishery Management Plan. There will also be a full Council Session.
The meetings will be held in December 2002. See SUPPLEMENTARY INFORMATION for specific dates and times.
The meetings will be held at the Sheraton Grand New Bern, 100 Middle Street, New Bern, NC 28560; telephone: (1-800) 326-3745 or (252) 638-8112.
Copies of documents are available from Kim Iverson, Public Information Officer, South Atlantic Fishery Management Council, One Southpark Circle, Suite 306, Charleston, SC 29407-4699.
Kim Iverson, Public Information Officer; telephone: 843-571-4366 or toll free at 866/SAFMC-10; fax: 843-769-4520; email: kim.iverson@safmc.net.
1.
The Snapper Grouper Committee will meet jointly with the Advisory Panel (AP) to receive updates on red porgy management including a presentation on the SAW/SARC (Stock Assessment Workshop/Stock Assessment Review Committee) findings and the status of the North Carolina observer work on red porgy bycatch. The Committee and AP will also receive updates on the snapper/grouper electronic logbook study and the economic data collection program using logbooks. Following the presentations, the Committee and AP will receive an overview of draft Amendment 13 to the Snapper Grouper Fishery Management Plan (FMP) and will provide input for the document.
2.
3.
The Snapper Grouper Committee will meet to receive an update on the SEDAR (Southeastern Data, Assessment and
4.
The Finance Committee will meet to review and approve the Calendar Year (CY) 2003 budget.
5.
The Highly Migratory Species Committee will meet to discuss bluefin tuna allocation issues and hear a report on the fall ICCAT (International Commission for the Conservation of Atlantic Tunas) Advisory Committee meeting and a summary of the ICCAT meeting.
6.
The Habitat Committee will meet to review Advisory Panel recommendations. The Committee will also address revisions of its Policy Statement.
7.
The Advisory Panel Selection Committee will meet in to review current applications for advisory panel positions and develop recommendations.
8.
The Dolphin Wahoo Committee will meet to develop recommendations on submission of the Dolphin Wahoo FMP for formal Secretarial review.
9.
From 4 p.m. 4:15 p.m., the Council will have a Call to Order, introductions and roll call, adoption of the agenda, and approval of the September 2002 meeting minutes.
From 4:15 p.m. 5 p.m., the Council will hear recommendations from the Dolphin Wahoo Committee and take action for final approval of the Dolphin Wahoo FMP for submission for formal Secretarial review. Beginning at 4:15 p.m., a public comment period will be held on the final Atlantic Dolphin Wahoo FMP.
From 5 p.m. 6 p.m., the Council will receive a legal briefing on litigation affecting the Council (CLOSED SESSION).
10.
From 8:30 a.m. 9 a.m., the Council will hear a report from the Snapper Grouper Committee and take into consideration recommendations regarding draft Amendment 13 to the Snapper Grouper FMP.
From 9 a.m. 9:15 a.m., the Council will receive a report from the Habitat Committee.
From 9:15 a.m. 9:30 a.m., the Council will hear recommendations from the Advisory Panel Selection Committee and appoint new advisory panel members.
From 9:30 a.m. 9:45 a.m., the Council will hear a report from the Highly Migratory Species Committee.
From 9:45 a.m. 10 a.m., The Council will hear a report from the Finance Committee and approve the CY 2003 budget.
From 10 a.m. until 10:15 a.m., the Council will develop recommendations to the Regional Administrator for NOAA Fisheries on Expempted Fisheries Permits for the North Carolina Aquariums and the South Carolina Aquarium.
From 10:15 a.m. until 10:45 a.m., the Council will receive a report on the Marine Fishery Stock Assessment Improvement Plan.
From 10:45 a.m. until 11 a.m., the Council will receive a status report on Amendment 6 to the Shrimp FMP.
From 11 a.m. until 11:30 a.m., the Council will hear NOAA Fisheries status reports on the Golden/Red Crab FMP management unit issue, Shrimp Amendment 5 implementation, the Sargassum FMP, the SEDAR Committee Process and implementation of the ACCSP (Atlantic Coast Cooperative Statistics Program) in the Southeast Region. NOAA Fisheries will also give status reports on landings for Atlantic king mackerel, Gulf king mackerel (eastern zone), Atlantic Spanish mackerel, snowy grouper & golden tilefish, wreckfish, greater amberjack and south Atlantic octocorals.
From 11:30 a.m. 12 noon, the Council will hear agency and liaison reports, discuss other business and upcoming meetings.
Documents regarding these issues are available from the Council office (see
Although non-emergency issues not contained in this agenda may come before this Council for discussion, those issues may not be the subjects of formal Council action during this meeting. Council action will be restricted to those issues specifically listed in this notice and any issues arising after publication of this notice that require emergency action under section 305 (c) of the Magnuson-Stevens Act, provided the public has been notified of the Council's intent to take final action to address the emergency.
These meetings are physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to the Council office (see
Commodity Futures Trading Commission.
11 a.m., Friday, December 6, 2002.
1155 21st NW., Washington, DC, 9th Floor Conference Room.
Closed.
Surveillance Matters.
Jean A. Webb, 202-418-5100.
Commodity Futures Trading Commission.
11 a.m., Friday, December 13, 2002.
1155 21st St., NW., Washington, DC, 9th Floor Conference Room.
Closed.
Surveillance Matters.
Jean A. Webb, 202-418-5100.
Commodity Futures Trading Commission.
11 a.m., Friday, December 20, 2002.
1155 21st St., NW., Washington, DC, 9th Floor Conference Room.
Closed.
Surveillance Matters.
Jean A. Webb, 202-418-5100.
Commodity Futures Trading Commission.
11 a.m., Friday, December 27, 2002.
1155 21st St., NW., Washington, DC, 9th Floor Conference Room.
Closed.
Surveillance Matters.
Jean A. Webb, 202-418-5100.
Commodity Futures Trading Commission.
10 a.m., Thursday, December 5, 2002.
1155 21st St., NW., Washington, DC, 9th Floor Conference Room.
Closed.
Adjudicatory Matters.
Jean A. Webb, 202-418-5100.
Notice.
The Department of Defense has submitted to OMB for clearance, the following proposal for collection of information under the provisions of the Paperwork Reduction Act (44 U.S.C. Chapter 35).
Consideration will be given to all comments received by December 18, 2002.
Written comments and recommendations on the proposed information collection should be sent to Ms. Zeiher at the Office of Management and Budget, Desk Officer for DoD, Room 10236, New Executive Office Building, Washington, DC 20503.
Written requests for copies of the information collection proposal should be sent to Mr. Cushing, WHS/DIOR, 1215 Jefferson Davis Highway, Suite 1204, Arlington, VA 22202-4302.
Department of Defense, Defense Policy Board Advisory Committee.
Notice.
The Defense Policy Board Advisory Committee will meet in closed session at the Pentagon on December 5-6, 2002, from 0900 to 1800.
The purpose of the meeting is to provide the Secretary of Defense, Deputy Secretary of Defense and Under Secretary of Defense for Policy with independent, informed advice on major matters of defense policy. The Board will hold classified discussions on national security matters.
In accordance with section 10(d) of the Federal Advisory Committee Act, Public Law No. 92-463, as amended [5 U.S.C. App II (1982)], it has been determined that this meeting concerns matters listed in 5 U.S.C. 552B (c)(1)(1982), and that accordingly this meeting will be closed to the public.
General Counsel of the Department of Defense.
Notice of availability.
Executive Order 12473, July 13, 1984, states that the Secretary of Defense shall cause the Manual for Courts-Martial to be reviewed annually and recommend to the President any appropriate amendments. Under the direction of the General Counsel of the Department of Defense, a Joint Service Committee on Military Justice (JSC) has been established to accomplish this review and make recommendations for amendments to the Manual. Department of Defense Directive 5500.17, “Role and Responsibilities of the Joint Service Committee (JSC) on Military Justice” provides for the organization, functions, and procedures applicable to the JSC and the annual review process. The Office of Management and Budget (OMB) has provided all government agencies guidelines for ensuring and maximizing the quality, objectivity, utility, and integrity of information disseminated to the public. OMB has directed the agencies to publish a notice in the
Consideration will be given to all comments received on or before January 17, 2003.
Submit comments to Robert E. Reed. ODGC (P&HP), Office of the General Counsel of the Department of Defense, 1600 Defense Pentagon, Room 3E999, Washington, DC 20301-1600.
Mr. Robert E. Reed, ODGC (P&HP), 703-695-1055,
U.S. Department of Energy.
Amendment to a Record of Decision.
The U.S. Department of Energy (DOE) has decided to revise its approach for managing approximately 0.97 metric tons (MT) of plutonium-bearing materials (containing about 0.18 MT of surplus plutonium) that are currently located at the Rocky Flats Environmental Technology Site (RFETS). The Department has decided to repackage and transport these materials for direct disposal as transuranic waste (TRUW) at the Waste Isolation Pilot Plant (WIPP) near Carlsbad, New Mexico instead of shipping them to the Savannah River Site (SRS) in South Carolina for storage pending possible disposition. These materials will be repackaged to meet the WIPP waste acceptance criteria (WAC) for TRUW and safeguards termination requirements. DOE has prepared a supplement analysis for this action pursuant to 10 CFR 1021.314, entitled
Copies of the SEIS-II, the WIPP SA, this Amended Record of Decision, and other documents referenced herein, can be obtained by contacting the Center for Environmental Management Information, P.O. Box 23769, Washington, DC 20026-3769, telephone 1-800-736-3282 (in Washington, DC: 202-863-5084).
For information concerning the management of plutonium-bearing materials currently stored at Rocky Flats, contact: Dr. W. Eric Huang, Program Manager, Rocky Flats Office (EM-33), Office of Site Closure, Environmental Management, U.S. Department of Energy, 19901 Germantown Road, Germantown, MD 20874, Telephone: 301-903-4630.
For information concerning DOE's National Environmental Policy Act (NEPA) process, contact: Ms. Carol Borgstrom, Director, Office of NEPA Policy and Compliance (EH-42), U.S. Department of Energy, 1000 Independence Avenue, SW., Washington, DC 20585, Telephone (202) 586-4600, or leave a message at 1-800-472-2756.
Historically, Rocky Flats has used a material identification system that segregated plutonium-bearing materials by process origin and/or to designate the subsequent process steps for plutonium recovery and recycle. The categorization is known as Item Description Codes (IDCs). In January 1993, these IDCs were grouped into two major categories, Product and Residue, in order to plan and manage the future disposition of the Site's plutonium-bearing materials. The characterization of plutonium-bearing materials as Product or Residue was based on the average plutonium concentration of each IDC, the relative ease or difficulty of recovery, and/or whether an IDC was traditionally considered Product or Residue. In general, the Product category was comprised of IDCs with average plutonium concentrations greater than 50 percent by weight. However, an IDC could be designated as residue material although some individual items within this IDC exceed 50 percent by weight. Similarly, an IDC could be designated as Product material although some individual items within this IDC are less than 50 percent by weight.
DOE has already decided to dispose of the Residue materials at WIPP as transuranic waste (TRUW).
• Originated from the same aqueous recovery processes and/or contain impurities similar to the Wet Residue category; or
• Originated from the same pyrochemical processes and/or contained impurities similar to the Salt Residue category; or
• Originated from the same process lines and/or contained impurities comparable to the Ash Residue category.
DOE has therefore concluded that by reason of their similarity to the materials already slated for disposal at WIPP, an additional approximately 0.97 MT of low assay oxides (containing about 0.18 MT of surplus plutonium) from the Product IDCs should be disposed of in the same fashion after being repackaged to meet the requirements for safeguards termination and the WIPP waste acceptance criteria (WAC).
DOE has prepared a supplement analysis for this proposed action, entitled
With respect to repackaging, the impacts of ordinary operations would be bounded by the analysis in the SEIS-II, even when adding the very small impacts from repackaging the proposed action material to those of repackaging the other Rocky Flats material currently slated for disposal at WIPP. This is due to the fact that the SEIS-II contemplated the repackaging of considerably more plutonium than the total amount of plutonium that will actually be repackaged at RFETS. The SEIS-II analyzed repackaging and sending to WIPP 17,000 cubic meters of TRUW, but DOE projects that no more than approximately 12,500 cubic meters will eventually be sent. With regard to the most severe accident scenario, an earthquake, the impacts would be greater than predicted in the SEIS-II because the proportion of plutonium in the containers being repackaged is larger than in the containers analyzed in the SEIS-II. But the difference is not significant because the impacts are still small, and because the earthquake scenario has a predicted frequency of less than once over 100,000 years.
The impacts from transporting and disposing of the proposed action materials are small and bounded by those predicted in the SEIS-II. With respect to transportation, the impacts are bounded by the analysis contained in the SEIS-II for two reasons. First, once the material has been repackaged for shipment, the shipments containing those packages will be in all applicable respects similar to the shipments analyzed in the SEIS-II. Second, the actual number of shipments from RFETS to WIPP will be fewer than the number of shipments analyzed in the SEIS-II, even when the shipments of the proposed action materials are included. The SEIS-II assumed that approximately 2,100 shipments would be sent from RFETS to WIPP, but DOE projects that no more than 1,700 shipments, including the 45 shipments for the proposed action, will be sent. With respect to disposal, once the material at issue has been repackaged, it will meet the WIPP waste acceptance criteria, the relevant consideration used in analyzing the impacts of disposing of the material analyzed in the SEIS II. Furthermore, the volume (and impacts) of material slated for disposal from all sites, including the proposed action material, will remain well below the total analyzed in the SEIS-II.
This proposed action will reduce the technical uncertainty associated with removing these materials from RFETS and thus will enhance DOE's ability to meet the RFETS site closure schedule. In order to send these materials to SRS as originally planned, they would need to be stabilized and repackaged to meet DOE-STD-3013 requirements. Because of their low density, it would be difficult to efficiently repackage these materials to meet these requirements. The 3013 containers are relatively small and were developed for high density plutonium metal and oxides. Also, these materials contain impurities which present a significant technical challenge to maintaining the moisture specifications of the DOE-STD-3013 requirements. Sending these materials to WIPP as TRUW eliminates this technical risk.
DOE has determined that repackaging and transporting approximately 0.97 MT of RFETS plutonium-bearing materials (containing about 0.18 MT of surplus plutonium) for direct disposal at the WIPP would not constitute a substantial change in actions previously analyzed. Furthermore, this proposed action would not constitute significant new circumstances or information relevant to environmental concerns and bearing on the previously analyzed action or its impacts. The potential impacts associated with the new action are encompassed within the activities and impacts analyzed under Action Alternative 1 of the SEIS-II. Therefore, DOE does not need to undertake additional NEPA analysis before issuing this amendment.
After consideration of the potential environmental impacts identified in the SEIS-II and the WIPP SA, DOE has decided to dispose of at WIPP approximately 0.97 MT of the plutonium-bearing materials (containing about 0.18 MT of surplus plutonium) currently located at RFETS. These materials would be repackaged to meet the WIPP WAC and safeguards termination requirements.
This Amended Record of Decision is effective upon being made public, in accordance with DOE's NEPA implementation regulations (10 CFR 1021.315).
Energy Information Administration (EIA), Department of Energy (DOE).
Agency Information Collection Activities: Submission for OMB Review; Comment Request.
The EIA has submitted the energy information collections listed at the end of this notice to the Office of Management and Budget (OMB) for review and a three-year extension under section 3507(h)(1) of the Paperwork Reduction Act of 1995 (Pub. L. 104-13) (44 U.S.C. 3501
Comments must be filed within 30 days of publication of this notice. If you anticipate that you will be submitting comments but find it difficult to do so within that period, you should contact the OMB Desk Officer for DOE listed below as soon as possible.
Send comments to Bryon Allen, OMB Desk Officer for DOE, Office of Information and Regulatory Affairs, Office of Management and Budget. To ensure receipt of the comments by the due date, submission by FAX (202-395-7285) or e-mail (
Requests for additional information should be directed to Herbert Miller, Statistics and Methods Group, (EI-70), Forrestal Building, U.S. Department of Energy, Washington, DC 20585-0670. Mr. Miller may be contacted by telephone at (202) 426-1103, Fax at (202) 426-1081, or e-mail at
This section contains the following information about the energy information collections submitted to OMB for review: (1) The collection numbers and title; (2) the sponsor (
1. Forms EIA-800-804, 807, 810-814, 816, 817, 819M, and 820, “Petroleum Supply Reporting System”.
2. Energy Information Administration.
3. OMB Number 1905-0165.
4. One-year extension.
5. Mandatory.
6. EIA's Petroleum Supply Reporting System collects information needed for determining the supply and disposition of crude oil, petroleum products, and natural gas liquids. The data are published by EIA and are used by public and private analysts. Respondents are operators of petroleum refineries, blending plants, bulk terminals, crude oil and product pipelines, natural gas plant facilities, tankers, barges, and oil importers.
With respect to its currently approved PSRS survey forms, EIA is proposing a few changes that would be implemented in surveys for the 2003 reporting period. When soliciting public comments, EIA proposed additional changes for the 2003 reporting period as well as changes that would have been implemented beginning in 2004. EIA received a large number of comments. EIA needs additional time to adequately consider the comments and to ensure that changes in the information collections fully address concerns raised by the public. For that reason, EIA has decided to propose only a few changes for the 2003 reporting period and to request approval for collecting information only for 2003. During 2003, EIA will again solicit comments on the PSRS surveys and request OMB approval before conducting any surveys for the 2004 report period.
An additional reason for delaying the majority of the proposed changes is EIA's development of a new processing system for EIA's PSRS surveys. Significant changes to the surveys in 2003 could have severe negative impacts on timely development of the new processing system which in turn would interfere with EIA's on-going weekly, monthly, and annual information products on the petroleum industry.
The only PSRS survey changes proposed for 2003 are:
• EIA-807, Propane Telephone Report—This survey is currently conducted on a monthly basis for six months and on a weekly basis for the remaining six months. EIA is proposing to conduct this survey on a weekly basis throughout the year and to add an element on non-fuel propylene stocks.
• EIA-816, Monthly Natural Gas Liquids Report—EIA will add four items to collect natural gas information (
7. Business or other for-profit; State, local or tribal government; Federal government.
8. 60,006 hours (2,240 respondents × 21.03 responses per year × 1.27 hours).
Section 3507(h)(1) of the Paperwork Reduction Act of 1995 (Pub. L. 104-13).
Federal Energy Regulatory Commission, DOE.
Notice.
In compliance with the requirements of section 3506(c)(2)(a) of the Paperwork Reduction Act of 1995, 44 U.S.C. 3506(c)(2)(A), the Federal Energy Regulatory Commission (Commission) is soliciting public comment on the specific aspects of the information collection described below.
Consideration on the collection of information is due by January 13, 2003.
Information on the proposed energy information collection can be obtained from and written comments may be submitted to the Federal Energy Regulatory Commission, Attn: Michael Miller, Office of the Chief Information Officer, CI-1, 888 First Street NE., Washington, DC 20426. Comments may be filed either in paper format or electronically. Those persons filing electronically do not need to make a paper filing. For paper filings, the original and 14 copies of such comments should be submitted to the Office of the Secretary, Federal Energy
All comments may be viewed, printed or downloaded remotely via the Internet through FERC's homepage using the “FERRIS” link. For assistance, contact FERC Online Support at
Michael Miller may be reached by telephone at (202) 502-8415, by fax at (202) 208-2425, and by e-mail at
The information collected under the requirements of FERC-583 “Annual Kilowatt Generating Report (Annual Charges)” (OMB No. 1902-0136) is used by the Commission to implement the statutory provisions of section 10(e) of the Federal Power Act (FPA), part I, 16 U.S.C. 803(e) which requires the Commission to collect annual charges from hydropower licensees for, among other things, the cost of administering part I of the FPA and for the use of United States dams. In addition, the Omnibus Budget Reconciliation Act of 1986 (OBRA) authorizes the Commission to “assess and collect fees and annual charges in any fiscal year in amounts equal to all of the costs incurred by the Commission in that fiscal year.” The information is collected annually and used to determine the amounts of the annual charges to be assessed licensees for reimbursable government administrative costs and for the use of government dams. The Commission implements these filing requirements in the Code of Federal Regulations (CFR) under 18 CFR part 11.
The reporting burden includes the total time, effort, or financial resources expended to generate, maintain, retain, disclose, or provide the information including: (1) Reviewing instructions; (2) developing, acquiring, installing, and utilizing technology and systems for the purposes of collecting, validating, verifying, processing, maintaining, disclosing and providing information; (3) adjusting the existing ways to comply with any previously applicable instructions and requirements; (4) training personnel to respond to a collection of information; (5) searching data sources; (6) completing and reviewing the collection of information; and (7) transmitting, or otherwise disclosing the information.
The estimate of cost for respondents is based upon salaries for professional and clerical support, as well as direct and indirect overhead costs. Direct costs include all costs directly attributable to providing this information, such as administrative costs and the cost for information technology. Indirect or overhead costs are costs incurred by an organization in support of its mission. These costs apply to activities which benefit the whole organization rather than any one particular function or activity.
Comments are invited on: (1) Whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information will have practical utility; (2) the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used; (3) ways to enhance the quality, utility and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on those who are to respond, including the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology
On September 6, 2002, the Commission issued a notice of the request for a temporary license amendment to deviate from reservoir drawdown schedules and refill requirements, filed August 29, 2002, by Alcoa Power Generating Inc., for the Yadkin Project No. 2197, located on the Yadkin/Pee Dee River in Montgomery, Stanley, Davidson, Rowan, and Davie Counties, North Carolina. The notice established October 7, 2002, as the deadline for filing motions to intervene in the proceeding.
On October 16, 2002, a motion to intervene was filed late by Mr. Jim L. Shuping. Granting the late motion to intervene will not unduly delay or disrupt the proceeding or prejudice other parties to it. Therefore, pursuant to Rule 214,
Take notice that on October 29, 2002, ANR Pipeline Company (ANR), tendered for filing as part of its FERC Gas Tariff, Second Revised Volume No. 1, Third Revised Sheet No. 148, with an effective date of December 1, 2002.
Any person desiring to be heard or to protest said filing should file a motion to intervene or a protest with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, in accordance with Sections 385.214 or 385.211 of the Commission's Rules and Regulations. All such motions or protests must be filed in accordance with Section 154.210 of the Commission's Regulations. Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceedings. Any person wishing to become a party must file a motion to intervene. This filing is available for review at the Commission in the Public Reference Room or may be viewed on the Commission's website at
The Federal Energy Regulatory Commission Staff is convening a technical conference regarding the Comprehensive Market Redesign 2002 of the California Independent System Operator Corporation (CAISO) to assess the progress of the Stakeholder Working Groups, and to facilitate continued discussions between the CAISO and stakeholders regarding the development of the remaining elements of the CAISO market redesign and to identify related implementation issues. The conference will be held on December 9, 2002 in a hearing room at the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC beginning at 9 am.
In preparation for this technical conference, the MD02 Stakeholder Working Groups should file by November 25, 2002, a Stipulation of Issues identifying which issues have been resolved and any issues that remain unresolved. For those issues that remain open, each party should prepare its own Statement of Position. The CAISO should file in the above captioned dockets by December 2, 2002, the presentation referenced in its October 29, 2002 Request for Technical Conference, including slides and accompanying narrative. The CAISO should include software development requirements as part of the presentation. The presentation should also be posted on the CAISO website. To make the most efficient use of the time allotted, all parties should be prepared to discuss the CAISO's posted presentation. The CAISO and its software vendors should be prepared to address technical requirements associated with implementation of revised market design elements.
For additional information concerning the conference, interested persons may contact Susan G. Pollonais at (202) 502-6011 or by electronic mail at
Take notice that on November 6, 2002, Cove Point LNG Limited Partnership (Cove Point) tendered for filing as part of its FERC Gas Tariff, Second Revised Volume No. 1, First Revised Tariff Sheet No. 103; First Revised Tariff Sheet No. 105; First Revised Tariff Sheet No. 115; First Revised Tariff Sheet No. 117; and Second Revised Tariff Sheet No. 153, with an effective date of December 4, 2002.
Cove Point states that the proposed revised sheets are submitted to comply with the Commission's (Order No. 587-O). Order No. 587-O requires Cove Point to adopt Version 1.5 of the North American Energy Standards Board's (NAESB) standards.
Cove Point states that copies its filing has been served upon all of Cove Point's customers and interested state commissions.
Any person desiring to be heard or to protest said filing should file a motion to intervene or a protest with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, in accordance with Sections 385.214 or 385.211 of the Commission's Rules and Regulations. All such motions or protests must be filed in accordance with Section 154.210 of the Commission's Regulations. Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceedings. Any person wishing to become a party must file a motion to intervene. This filing is available for review at the Commission in the Public Reference Room or may be viewed on the Commission's website at
Take notice that on October 31, 2002, Duke Energy Corporation (Duke), on behalf of Duke Electric Transmission (Duke ET), tendered for filing (i) a Generation Interconnection and Operating Agreement between Duke ET and South Carolina Public Service Authority (SCPSA), and (ii) an Amendment to the Restated Interchange Agreement between Duke Power Company and SCPSA dated February 10, 1992. Duke requests an effective date of January 1, 2003.
Any person desiring to intervene or to protest this filing should file with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214). Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Any person wishing to become a party must file a motion to intervene. All such motions or protests should be filed on or before the comment date, and, to the extent applicable, must be served on the applicant and on any other person designated on the official service list. This filing is available for review at the Commission or may be viewed on the Commission's web site at http://www.ferc.gov, using the “FERRIS” link. Enter the docket number excluding the last three digits in the docket number filed to access the document. For assistance, contact FERC Online Support at
Take notice that on November 5, 2002, Gulf South Pipeline Company, LP (Gulf South) tendered for filing as part of its FERC Gas Tariff, Sixth Revised Volume No. 1, the following tariff sheets, to become effective December 5, 2002.
Gulf South is proposing to revise its credit requirements to enable it to manage the risks inherent in today's marketplace. This proposal establishes clear creditworthy standards, shorter notice periods, and increased security requirements.
Copies of this filing have been served upon Gulf South's customers, state commissions and other interested parties.
Any person desiring to be heard or to protest said filing should file a motion to intervene or a protest with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, in accordance with Sections 385.214 or 385.211 of the Commission's Rules and Regulations. All such motions or protests must be filed in accordance with Section 154.210 of the Commission's Regulations. Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceedings. Any person wishing to become a party must file a motion to intervene. This filing is available for review at the Commission in the Public Reference Room or may be viewed on the Commission's website at
Take notice that on October 29, 2002, Regent Resources Ltd., (Regent), 1200, 603-7th Avenue SW., Calgary, Alberta Canada T2P 2T5, filed an application seeking Section 3 authorization and a Presidential Permit pursuant to Executive Order No. 10485, as amended by Executive Order No. 12038, to site, construct, operate and maintain facilities at the United States—Canada border (International Boundary) for the importation of natural gas into the United States from Alberta, Canada, all as more fully set forth in the application on file with the Commission and open to public inspection. This filing may be viewed on the Commission's Web site at
Specifically, Regent proposes to construct and operate a gas meter station at an existing wellsite and a 2300-foot, 4-inch O.D. pipeline (Regent
Regent states that the proposed construction will allow unprocessed gas from existing shut-in wells in the Alberta Province to be imported into the existing U.S. gathering and processing system, thereby providing increased Canadian resource development with accompanying local, state and provincial socio-economics benefits.
Any questions regarding the application should be directed to Shaun Hedges, Operations Manager, Regent Resources Ltd, at (406) 264-0018.
There are two ways to become involved in the Commission's review of this project. First, any person wishing to obtain legal status by becoming a party to the proceedings for this project should, on or before November 29, 2002, file with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, a motion to intervene or a protest in accordance with the requirements of the Commission's Rules of Practice and Procedure (18 CFR 385.214 or 385.211) and the Regulations under the NGA (18 CFR 157.10). A person obtaining party status will be placed on the service list maintained by the Secretary of the Commission and will receive copies of all documents filed by the applicant and by all other parties. A party must submit 14 copies of filings made with the Commission and must mail a copy to the applicant and to every other party in the proceeding. Only parties to the proceeding can ask for court review of Commission orders in the proceeding.
However, a person does not have to intervene in order to have comments considered. The second way to participate is by filing with the Secretary of the Commission, as soon as possible, an original and two copies of comments in support of or in opposition to this project. The Commission will consider these comments in determining the appropriate action to be taken, but the filing of a comment alone will not serve to make the filer a party to the proceeding. The Commission's rules require that persons filing comments in opposition to the project provide copies of their protests only to the party or parties directly involved in the protest.
Persons who wish to comment only on the environmental review of this project should submit an original and two copies of their comments to the Secretary of the Commission. Environmental commenters will be placed on the Commission's environmental mailing list, will receive copies of the environmental documents, and will be notified of meetings associated with the Commission's environmental review process. Environmental commenters will not be required to serve copies of filed documents on all other parties. However, the non-party commenters will not receive copies of all documents filed by other parties or issued by the Commission (except for the mailing of environmental documents issued by the Commission) and will not have the right to seek court review of the Commission's final order.
Comments, protests and interventions may be filed electronically via the Internet in lieu of paper. The Commission strongly encourages electronic filings.
If the Commission decides to set the application for a formal hearing before an Administrative Law Judge, the Commission will issue another notice describing that process. At the end of the Commission's review process, a final Commission order approving or denying a certificate will be issued.
On October 11, 2000, Reliant Energy Mid-Atlantic Power Holdings, LLC, licensee for the Piney Project No. 309, filed an application for a new or subsequent license pursuant to the Federal Power Act (FPA) and the Commission's regulations thereunder. Project No. 309 is located on the Clarion River in Clarion County, Pennsylvania.
The license for Project No. 309 was issued for a period ending October 12, 2002. Section 15(a)(1) of the FPA, 16 U.S.C. 808(a)(1), requires the Commission, at the expiration of a license term, to issue from year to year an annual license to the then licensee under the terms and conditions of the prior license until a new license is issued, or the project is otherwise disposed of as provided in Section 15 or any other applicable section of the FPA. If the project's prior license waived the applicability of Section 15 of the FPA, then, based on Section 9(b) of the Administrative Procedure Act, 5 U.S.C. 558(c), and as set forth at 18 CFR 16.21(a), if the licensee of such project has filed an application for a subsequent license, the licensee may continue to operate the project in accordance with the terms and conditions of the license after the minor or minor part license expires, until the Commission acts on its application. If the licensee of such a project has not filed an application for a subsequent license, then it may be required, pursuant to 18 CFR 16.21(b), to continue project operations until the Commission issues someone else a license for the project or otherwise orders disposition of the project.
If the project is subject to Section 15 of the FPA, notice is hereby given that an annual license for Project No. 309 is issued to Reliant Energy Mid-Atlantic Power Holdings, LLC for a period effective October 13, 2002, through October 12, 2003, or until the issuance of a new license for the project or other disposition under the FPA, whichever comes first. If issuance of a new license (or other disposition) does not take place on or before October 13, 2003, notice is hereby given that, pursuant to 18 CFR 16.18(c), an annual license under Section 15(a)(1) of the FPA is renewed automatically without further order or notice by the Commission, unless the Commission orders otherwise.
If the project is not subject to Section 15 of the FPA, notice is hereby given that Reliant Energy Mid-Atlantic Power Holdings, LLC is authorized to continue operation of the Piney Project No. 309 until such time as the Commission acts on its application for subsequent license.
Take notice that on October 31, 2002, Texas Eastern Transmission, LP (Texas Eastern) tendered for filing as part of its FERC Gas Tariff, Seventh Revised Volume No. 1, and First Revised Volume No. 2, revised tariff sheets as listed on Appendix A to the filing, to become effective December 1, 2002. In addition, Texas Eastern submitted its Annual Interruptible Revenue Reconciliation Report pursuant to its Amended Global Settlement.
Texas Eastern states that the revised tariff sheets and the Annual Interruptible Revenue Reconciliation Report contained in the filing are being filed (i) pursuant to Section 15.6, Applicable Shrinkage Adjustment (ASA), and Section 15.8, Periodic Reports, of the General Terms and Conditions of Texas Eastern's FERC Gas Tariff, Seventh Revised Volume No. 1, (ii) in compliance with the Stipulation and Agreement (Global Settlement) approved by the Commission in its order issued May 12, 1994 [67 FERC ¶ 61,170, reh'g denied, 68 FERC ¶ 61,062 (1994)], and (iii) in compliance with the Joint Stipulation and Agreement Amending Global Settlement (Amended Global Settlement) approved by the Commission in its order issued August 28, 1998 [84 FERC ¶ 61,200 (1998)].
Texas Eastern states that by this filing, it is reducing by approximately 25% the level of its ASA Usage Surcharge included in its rates, and reflecting minor changes in its ASA Percentages, which are designed to retain in-kind the projected quantities of gas required for the operation of Texas Eastern's system in providing service to its customers. These adjustments are effective for the twelve month period beginning December 1, 2002.
Texas Eastern states that copies of its filing have been mailed to all affected customers of Texas Eastern and interested state commissions, as well as to all parties to the Settlement in Docket No. RP85-177-119,
Any person desiring to be heard or to protest said filing should file a motion to intervene or a protest with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, in accordance with Sections 385.214 or 385.211 of the Commission's Rules and Regulations. All such motions or protests must be filed in accordance with Section 154.210 of the Commission's Regulations. Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceedings. Any person wishing to become a party must file a motion to intervene. This filing is available for review at the Commission in the Public Reference Room or may be viewed on the Commission's website at
Take notice that on October 30, 2002, Transcontinental Gas Pipe Line Corporation (Transco) tendered for filing, as part of its FERC Gas Tariff, Third Revised Volume No. 1, the revised tariff sheets listed on Appendix A to the filing.
Transco states that the purpose of this filing is to comply with the Commission's Order on Rehearing and Clarification issued on August 29, 2002 in the referenced proceeding.
Transco states that it will serve copies of the instant filing on its affected customers and interested State Commissions.
Any person desiring to protest said filing should file a protest with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, in accordance with Section 385.211 of the Commission's Rules and Regulations. All such protests must be filed in accordance with Section 154.210 of the Commission's Regulations. Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceedings. This filing is available for review at the Commission in the Public Reference Room or may be viewed on the Commission's Web site at
On October 31, 2000, Trinity Conservancy Inc., licensee for the Trinity Project No. 719, filed an application for a new or subsequent license pursuant to the Federal Power Act (FPA) and the Commission's regulations thereunder. Project No. 719 is located on Phelps and James Creeks in Chelan County, Washington.
The license for Project No. 719 was issued for a period ending November 1, 2002. Section 15(a)(1) of the FPA, 16 U.S.C. 808(a)(1), requires the Commission, at the expiration of a license term, to issue from year to year an annual license to the then licensee under the terms and conditions of the prior license until a new license is issued, or the project is otherwise disposed of as provided in Section 15 or any other applicable section of the FPA. If the project's prior license waived the applicability of Section 15 of the FPA, then, based on Section 9(b) of the
If the project is subject to Section 15 of the FPA, notice is hereby given that an annual license for Project No. 719 is issued to Trinity Conservancy Inc. for a period effective November 2, 2002, through November 1, 2003, or until the issuance of a new license for the project or other disposition under the FPA, whichever comes first. If issuance of a new license (or other disposition) does not take place on or before November 2, 2003, notice is hereby given that, pursuant to 18 CFR 16.18(c), an annual license under Section 15(a)(1) of the FPA is renewed automatically without further order or notice by the Commission, unless the Commission orders otherwise.
If the project is not subject to Section 15 of the FPA, notice is hereby given that Trinity Conservancy Inc. is authorized to continue operation of the Trinity Project No. 719 until such time as the Commission acts on its application for subsequent license.
The following filings have been made with the Commission. The filings are listed in ascending order within each docket classification.
Take notice that on October 30, 2002, the New York Independent System Operator, Inc. (NYISO) filed an analysis of its current method of addressing storm watch conditions and of alternative options for cost recovery.
The NYISO has served a copy of this filing on each party designated on the official service list in Docket Nos. ER97-1523-003, -004, -005, -006, -052, -061, OA97-470-004, -005, -006, ER97-4234-002, -003, -004 and EC99-31-001 in accordance with the requirements of Rule 2010 of the Commission's Rules of Practice and Procedure, 18 CFR 2010 (2002).
Take notice that on November 1, 2002, the Midwest Independent Transmission System Operator, Inc. (Midwest ISO) submitted a First Revised, Volume No. 1 Resulting Company Tariff in compliance with the Commission's Order issued on May 31, 2002 in Midwest Independent Transmission System Operator, Inc., Docket No. ER02-1420-000, 99 FERC ¶ 61,250 (2002). In addition, the Midwest ISO also submitted the Second Revised Resulting Company Agreement in compliance with the Commission's Order issued on October 11, 2002 in Midwest Independent Transmission System Operator, Inc., Docket No. ER02-1420-001, 101 FERC ¶ 61,044 (2002).
The Midwest ISO has requested waiver of the requirements set forth in 18 CFR 385.2010. The Midwest ISO has electronically served a copy of this filing upon all Midwest ISO Members, Member representatives of Transmission Owners and Non-Transmission Owners, the Midwest ISO Advisory Committee participants, Policy Subcommittee participants, as well as all state commissions within the region. In addition, the filing has been electronically posted on the Midwest ISO's Web site at
Take notice that on November 1, 2002, Williams Energy Marketing & Trading Company (Williams) tendered for filing pursuant to Section 205 of the Federal Power Act (FPA), 16 U.S.C. 824d, and part 35 of the Commission's Regulations, 18 CFR 35, revised pages to the Reliability Must-Run Service Agreements (RMR Agreements) between Williams and the California Independent System Operator Corporation (ISO) for certain RMR units located at the Alamitos and Huntington Beach Generating Stations.
The purpose of the filing is to update Williams' existing RMR Agreements to reflect an extension of the two existing RMR Agreements and certain annual updates to Schedules A, B, C D and J of the RMR Agreements. Copies of the filing were served upon the ISO and Southern California Edison Company.
Take notice that on November 1, 2002, the New England Power Pool (NEPOOL) Participants Committee submitted (1) the Eighty-Ninth Agreement Amending New England Power Pool Agreement, which changes how NEPOOL Votes are calculated at NEPOOL Technical Committees, and (2) the Ninetieth Agreement Amending New England Power Pool Agreement, which reduces the financial assurance requirement of a Non-Municipal Participant in certain circumstances under the Financial Assurance Policy for NEPOOL Members. A January 1, 2003 effective date was requested for each of these Agreements.
The NEPOOL Participants Committee states that copies of these materials were sent to the NEPOOL Participants, Non-Participant Transmission Customers and the New England state governors and regulatory commissions.
Take notice that on November 1, 2002, the New England Power Pool (NEPOOL) Participants Committee filed for acceptance materials to permit NEPOOL to expand its membership to include Citadel Energy Products LLC (Citadel), and to terminate the
The NEPOOL Participants Committee states that copies of these materials were sentthe New England state governors and regulatory commissions and the Participants in NEPOOL.
Take notice that on November 1, 2002, Sierra Pacific Power Company (Sierra) filed a revision to the General Transfer Agreement (GTA) between Sierra and Bonneville Power Administration (BPA).
Sierra states that the revision would increase the total monthly facilities charge from $130,755 to $133,289 to reflect a change in the percentage of initial capital investment used to calculate the Estimated O&M Charge. Sierra requests that the increased charge be made effective at 2400 hours on November 30, 2002.
Copies of this filing were served on the Public Utilities Commission of Nevada, the Public Utilities Commission of California, the Nevada Bureau of Consumer Protection and Bonneville Power Administration.
Take notice that on November 1, 2002 PacifiCorp, tendered for filing in accordance with 18 CFR 35 of the Commission's Rules and Regulations, Notice of Cancellation of Service Agreement No. 63 under PacifiCorp's FERC Electric Tariff, Volume No. 12 for service between Hinson Power Company and PacifiCorp.
Copies of this filing were supplied to Hinson Power Company, the Public Utility Commission of Oregon and the Washington Utilities and Transportation Commission.
Take notice that on November 1, 2002, the California Power Exchange Corporation (CalPX) tendered for filing an amendment to its Rate Schedule FERC No. 1. CalPX files this amendment pursuant to the Commission's August 8, 2002 order in Docket No. ER02-2234-000 (100 FERC ¶ 61,178), which required CalPX to make a new rate filing every six months to recover current expenses. The amendment therefore covers expenses projected for the period January 1 through June 30, 2003, and CalPX requests an effective date of January 1, 2003.
CalPX states that it has served copies of the filing on its participants, on the California ISO, and on the California Public Utilities Commission.
Take notice that on November 1, 2002, Concord Electric Company (CECo), Exeter & Hampton Electric Company (E&H), and Unitil Energy Systems, Inc. (UES), filed with the Federal Energy Regulatory Commission, pursuant to Section 205 of the Federal Power Act and 18 CFR 35.13, the amended Open Access Transmission Tariffs (OATT) of CECo and E&H. The Companies request an effective date of December 1, 2002, for the changes to the OATTs. The Companies also requested approval for the reclassification of transmission facilities as distribution facilities.
The Companies have requested a waiver of the Commission's regulations to permit the changes to become effective as of December 1, 2002.
Take notice that on November 1, 2002, Public Service Electric and Gas Company (PSE&G) submitted for filing a revised Interconnection Agreement, reflecting revisions to an existing Interconnection Agreement dated August 2000 between PSE&G and the Joint Owners of the Salem Generating Station and Switchyard. Copies of this filing were served on the Joint Owners and on PJM Interconnection, L.L.C.
Take notice, that on November 1, 2002, Southern California Edison Company (SCE) tendered for filing a revision to its Transmission Owner Tariff (TO Tariff), FERC Electric Tariff, Substitute First Revised Original Volume No. 6, to reflect a change to SCE's Reliability Services Rates, and revisions to certain Existing Transmission Contracts (ETC) to provide for the assessment of a charge for Reliability Services to SCE's ETC customers with loads in SCE's historic control area.
Copies of this filing were served upon the Public Utilities Commission of the State of California, the California Independent System Operator, the California Electricity Oversight Board, Pacific Gas and Electric Company, San Diego Gas & Electric Company, and the wholesale customers with loads in SCE's historic control area.
Take Notice that Public Service Company of New Hampshire, on November 1, 2002, tendered for filing a revised rate for delivery service provided to the New Hampton (New Hampshire) Village Precinct under its Interconnection and Delivery Service Agreement, Original Service Agreement No. 25 under FERC Electric Tariff, First Revised Volume No. 1. This revision represents a decrease from the current rate of $1.55 per Kva/month to $0.98 per Kva/month for all bills rendered on or after January 1, 2003.
Copies of this filing were served upon the Office of the Attorney General for the State of New Hampshire, and the Executive Director and Secretary of the New Hampshire Public Utilities Commission and the State of New Hampshire Office of Consumer Advocate.
Take Notice that Public Service Company of New Hampshire, on November 1, 2002, tendered for filing a revised rate for delivery service provided to the Town of Ashland (New Hampshire), Electric Light Department under its Interconnection and Delivery Service Agreement, FERC Original Service Agreement No. 24 under FERC Electric Tariff, First Revised Volume No.1. This revision represents a decrease from the current rate of $1.55 per Kva/month to $0.98 per Kva/month for all bills rendered on or after January 1, 2003.
Copies of this filing were served upon the Office of the Attorney General for the State of New Hampshire, and the Executive Director and Secretary of the New Hampshire Public Utilities Commission and the State of New Hampshire Office of Consumer Advocate.
Take Notice that Public Service Company of New Hampshire, on November 1, 2002, tendered for filing a revised rate for delivery service provide to the New Hampton (New Hampshire) Village Precinct under its Interconnection and Delivery Service Agreement, FERC Original Service Agreement No. 25. This revision represents a decrease from the current rate of $1.55 per Kva/month to $0.98 per Kva/month for all bills rendered on or after January 1, 2003.
Copies of this filing were served upon the Office of the Attorney General for the State of New Hampshire, and the Executive Director and Secretary of the New Hampshire Public Utilities Commission and the State of New Hampshire Office of Consumer Advocate.
Take notice that on November 1, 2002, Portland General Electric Company (PGE) filed with the Federal Energy Regulatory Commission a proposed revision to PGE's Energy Imbalance Service tariff sheets of its Open Access Transmission Tariff.
PGE requests that the Commission make the amended tariff sheets effective as of January 1, 2003.
Take notice that on November 1, 2002, ISO New England Inc. (ISO) made a filing under Section 205 of the Federal Power Act of revised tariff sheets for recovery of its administrative costs for 2003. The ISO requests that these sheets be allowed to go into effect on January 1, 2003.
Copies of the transmittal letter were served upon all Participants in the New England Power Pool (“NEPOOL”) and all non-Participant entities that are customers under the NEPOOL Open Access Transmission Tariff, as well as on the governors and utility regulatory agencies of the six New England States, and NECPUC. Participants were also served with the entire filing electronically. The entire filing is posted on the ISO's Web site
Take notice that on November 1, 2002, ISO New England Inc. (ISO) made a filing under Section 205 of the Federal Power Act of changes to its Capital Funding Tariff. The ISO requests that the changes to the Capital Funding Tariff be allowed to go into effect on January 1, 2003.
Copies of the transmittal letter were served upon all Participants in the New England Power Pool (“NEPOOL”), as well as on the governors and utility regulatory agencies of the six New England States, and NECPUC. Participants were also served with the entire filing electronically. The entire filing is posted on the ISO's Web site
Take notice that on November 1, 2002, Duke Energy Corporation (Duke) tendered for filing the Sixth Amendment to the Interconnection Agreement between Duke and North Carolina Municipal Power Agency Number 1. Duke requests an effective date of January 1, 2003 for the Sixth Amendment.
Take notice that on November 1, 2002, Commonwealth Edison Company (ComEd) submitted for filing four unexecuted Service Agreements entered into between ComEd and NRG Power Marketing Inc. under ComEd's Open Access Transmission Tariff (OATT). ComEd requests an effective date of January 1, 2003 for all of the Service Agreements. Copies of the filing were served upon NRG Power Marketing Inc. and the Illinois Commerce Commission.
Take notice that on November 1, 2002, the New York Independent System Operator, Inc. (NYISO) filed a revision to its Market Administration and Control Area Services Tariff (Services Tariff) to extend the effective date of the Emergency Demand Response Program.
The NYISO has served a copy of this filing to all parties that have executed Service Agreements under the NYISO's Open-Access Transmission Tariff or Services Tariff, the New York State Public Service Commission and to the electric utility regulatory agencies in New Jersey and Pennsylvania.
Take notice that Wisconsin Public Service Corporation (WPSC) and Upper Peninsula Power Company (UPPCO), on November 1, 2002, each tendered for filing a power purchase agreement (PPA) with each other, pursuant to Section 205 of the Federal Power Act (FPA). WPSC and UPPCO each requests that the Commission accept the PPA to become effective on January 1, 2003, sixty days after the date of this filing.
Copies of the filing were served upon the Public Service Commission of Wisconsin and the Michigan Public Service Commission.
Take notice that on November 1, 2002, Consumers Energy Company (Consumers) tendered for filing a service agreement for unbundled wholesale power service to Edison Sault Electric Company (Customer) pursuant to Consumers' Cost-Based Power Sales Tariff (Tariff No. 7) accepted for filing in Docket No. ER97-964-000. The service agreement has an effective date of January 1, 2003. The service agreement supercedes the Customer's current sales Rate Schedule (Consumers Rate Schedule FERC No. 85) but retains some terms from the Rate Schedule.
Copies of the filing have been served on the Michigan Public Service Commission and the Customer.
Any person desiring to intervene or to protest this filing should file with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214). Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Any person wishing to become a party must file a motion to intervene. All such motions or protests should be filed on or before the comment date, and, to the extent applicable, must be served on the applicant and on any other person designated on the official service list. This filing is available for review at the Commission or may be viewed on the Commission's Web site at
In accordance with the National Environmental Policy Act of 1969 and the Federal Energy Regulatory Commission (Commission or FERC) regulations contained in the Code of Federal Regulations (CFR) (18 CFR part 380 [FERC Order No. 486, 52 FR 47897]), the Office of Energy Projects staff (staff) reviewed the application for an original minor license for the Three Rivers Project, located on the St. Joseph River in the city of Three Rivers, St. Joseph County, Michigan, and has prepared an environmental assessment (EA) for the project. In this EA, the staff has analyzed the potential environmental effects of the existing project and concluded that licensing the project, with staff's recommended measures, would not constitute a major Federal action significantly affecting the quality of the human environment.
A copy of the EA is available for review at the Commission in the Public Reference Room, or it may be viewed on the Commission's Web site at
Any comments should be filed within 45 days from the date of this notice and should be addressed to Magalie R. Salas, Secretary, Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426. Please affix “Three Rivers Project No. 11797-000,” to all comments. For further information, please contact Sean Murphy at (202) 502-6145 or at
Comments may be filed electronically via the Internet in lieu of paper.
On October 23, 2002, the Commission staff mailed the Bear River Projects Draft Environmental Impact Statement (DEIS) to the Environmental Protection Agency, resource and land management agencies, and interested organizations and individuals.
The DEIS was noticed in the
A public meeting, which will be recorded by an official stenographer, is scheduled on Thursday, December 12, 2002, starting at 7:00 pm at the Caribou County Senior Center, 60 S. Main Street, Soda Springs, Idaho.
At this meeting, resource agency personnel and other interested persons will have the opportunity to provide oral and written comments and recommendations regarding the DEIS for the Commission's public record.
For further information, please contact Susan O'Brien at (202) 502-8449, or
Take notice that the following hydroelectric application has been filed with the Commission and is available for public inspection:
a.
b.
c.
d.
e.
f.
g.
h.
i.
All documents (original and eight copies) should be filed with: Magalie R. Salas, Secretary, Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426. Comments, protests, and interventions may be filed electronically via the Internet in lieu of paper;
The Commission's Rules of Practice and Procedure require all interveners filing documents with the Commission to serve a copy of that document on each person in the official service list for the project. Further, if an intervener files comments or documents with the Commission relating to the merits of an issue that may affect the responsibilities of a particular resource agency, they must also serve a copy of the document on that resource agency.
j.
k.
l. This filing is available for review at the Commission in the Public Reference Room or may be viewed on the Commission's Web site at
m. Competing Applications—Public notice of the filing of the initial preliminary permit application, which has already been given, established the due date for filing competing preliminary permit applications or notices of intent. Any competing preliminary permit or development application or notice of intent to file a competing preliminary permit or development application must be filed in response to and in compliance with the public notice of the initial preliminary permit application. No competing applications or notices of intent to file competing applications may be filed in response to this notice. A competing license application must conform with 18 CFR 4.30 (b) and 4.36.
n. Proposed Scope of Studies under Permit—A preliminary permit, if issued, does not authorize construction. The term of the proposed preliminary permit would be 36 months. The work proposed under the preliminary permit would include economic analysis, preparation of preliminary engineering plans, and a study of environmental impacts. Based on the results of these studies, the Applicant would decide whether to proceed with the preparation of a development application to construct and operate the project.
o. Comments, Protests, or Motions to Intervene—Anyone may submit comments, a protest, or a motion to intervene in accordance with the requirements of Rules of Practice and Procedure, 18 CFR 385.210, .211, .214. In determining the appropriate action to take, the Commission will consider all protests or other comments filed, but only those who file a motion to intervene in accordance with the Commission's Rules may become a party to the proceeding. Any comments, protests, or motions to intervene must be received on or before the specified comment date for the particular application.
p. Filing and Service of Responsive Documents—Any filings must bear in all capital letters the title “COMMENTS”, “PROTEST”, or “MOTION TO INTERVENE”, as applicable, and the Project Number of the particular application to which the filing refers. Any of the above-named documents must be filed by providing the original and the number of copies provided by the Commission's regulations to: The Secretary, Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426. An additional copy must be sent to Director, Division of Hydropower Compliance and Administration, Federal Energy Regulatory Commission, at the above-mentioned address. A copy of any motion to intervene must also be served upon each representative of the Applicant specified in the particular application.
q. Agency Comments—Federal, state, and local agencies are invited to file comments on the described application. A copy of the application may be obtained by agencies directly from the Applicant. If an agency does not file comments within the time specified for filing comments, it will be presumed to have no comments. One copy of an agency's comments must also be sent to the Applicant's representatives.
Take notice that the following hydroelectric application has been filed with the Commission and is available for public inspection.
a.
b.
c. Date filed: December 17, 2001.
d.
e.
f.
g. Filed Pursuant to: Federal Power Act, 16 U.S.C. 791 (a)—825(r).
h.
i.
j.
k. Deadline for filing motions to intervene and protests and requests for cooperating agency status: 60 days from the issuance date of this notice.
All documents (original and eight copies) should be filed with: Magalie R. Salas, Secretary, Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426.
The Commission's Rules of Practice require all intervenors filing documents with the Commission to serve a copy of that document on each person on the official service list for the project. Further, if an intervenor files comments or documents with the Commission relating to the merits of an issue that may affect the responsibilities of a particular resource agency, they must also serve a copy of the document on that resource agency.
Motions to intervene and protests and requests for cooperating agency status may be filed electronically via the Internet in lieu of paper. The Commission strongly encourages
l. This application has been accepted, but is not ready for environmental analysis at this time.
m. The existing Dam No. 4 Hydro Station Project consists of: (1) a 200-foot-long, 80-foot-wide headrace; (2) a stone and concrete powerhouse containing three generating units with a total installed capacity of 1,900 kilowatts; (3) a 350-foot-long, 90-foot-wide tailrace; (4) a substation; (5) a 4.5-mile-long, 34.5-kilovolt transmission line; and (6) appurtenant facilities. The applicant estimates that the total average annual generation would be 7,886 megawatthours. All generated power is sold to Allegheny Power for use in the existing electric grid system serving West Virginia and Maryland. The project dam and reservoir are owned by the United States and operated by the National Park Service.
n. A copy of the application is available for review at the Commission in the Public Reference Room or may be viewed on the Commission's website at
o. Anyone may submit a protest or a motion to intervene in accordance with the requirements of Rules of Practice and Procedure, 18 CFR 385.210, 385.211, and 385.214. In determining the appropriate action to take, the Commission will consider all protests filed, but only those who file a motion to intervene in accordance with the Commission's Rules may become a party to the proceeding. Any protests or motions to intervene must be received on or before the specified deadline date for the particular application.
All filings must (1) bear in all capital letters the title “PROTEST” or “MOTION TO INTERVENE;” (2) set forth in the heading the name of the applicant and the project number of the application to which the filing responds; (3) furnish the name, address, and telephone number of the person protesting or intervening; and (4) otherwise comply with the requirements of 18 CFR 385.2001 through 385.2005. Agencies may obtain copies of the application directly from the applicant. A copy of any protest or motion to intervene must be served upon each representative of the applicant specified in the particular application.
p. Procedural schedule and final amendments: The application will be processed according to the following Hydro Licensing Schedule. Revisions to the schedule will be made as appropriate.
Unless substantial comments are received in response to the EA, staff intends to prepare a single EA in this case. If substantial comments are received in response to the EA, a final EA will be prepared with the following modifications to the schedule.
Final amendments to the application must be filed with the Commission no later than 30 days from the issuance date of the notice of ready for environmental analysis.
Take notice that the following hydroelectric application has been filed with the Commission and is available for public inspection.
a.
b.
c. Date filed: December 17, 2001.
d.
e.
f.
g.
h.
i.
j.
All documents (original and eight copies) should be filed with: Magalie R. Salas, Secretary, Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426.
The Commission's Rules of Practice require all intervenors filing documents with the Commission to serve a copy of that document on each person on the official service list for the project. Further, if an intervenor files comments or documents with the Commission relating to the merits of an issue that may affect the responsibilities of a particular resource agency, they must also serve a copy of the document on that resource agency.
Motions to intervene and protests and requests for cooperating agency status may be filed electronically via the Internet in lieu of paper. The Commission strongly encourages electronic filings.
l. This application has been accepted, but is not ready for environmental analysis at this time.
m. The existing Dam No. 5 Hydro Station Project consists of: (1) a 100-foot-long, 80-foot-wide headrace; (2) a brick and concrete powerhouse containing two generating units with a total installed capacity of 1,210 kilowatts; (3) a 250-foot-long, 90-foot-wide tailrace; (4) a substation; and (5) appurtenant facilities. The applicant estimates that the total average annual generation would be 5,945 megawatthours. All generated power is sold to Allegheny Power for use in the existing electric grid system serving West Virginia and Maryland. The project dam and reservoir are owned by the United States and operated by the National Park Service.
n. A copy of the application is available for review at the Commission in the Public Reference Room or may be viewed on the Commission's website at
o. Anyone may submit a protest or a motion to intervene in accordance with the requirements of Rules of Practice and Procedure, 18 CFR 385.210, 385.211, and 385.214. In determining the appropriate action to take, the Commission will consider all protests filed, but only those who file a motion to intervene in accordance with the Commission's Rules may become a party to the proceeding. Any protests or motions to intervene must be received on or before the specified deadline date for the particular application.
All filings must (1) bear in all capital letters the title “PROTEST” or “MOTION TO INTERVENE;” (2) set forth in the heading the name of the applicant and the project number of the application to which the filing responds; (3) furnish the name, address, and telephone number of the person protesting or intervening; and (4) otherwise comply with the requirements of 18 CFR 385.2001 through 385.2005. Agencies may obtain copies of the application directly from the applicant. A copy of any protest or motion to intervene must be served upon each representative of the applicant specified in the particular application.
p.
Unless substantial comments are received in response to the EA, staff intends to prepare a single EA in this case. If substantial comments are received in response to the EA, a final EA will be prepared with the following modifications to the schedule.
Final amendments to the application must be filed with the Commission no later than 30 days from the issuance date of the notice of ready for environmental analysis.
Take notice that Big Rock Power Partners, permittee for the proposed Old Campbell Project, has requested that its preliminary permit be terminated. The permit was issued on February 12, 2002, and would have expired on January 31, 2005. The project would have been located on Old Campbell Creek in Humboldt County, California.
The permittee filed the request on September 24, 2002, and the preliminary permit for Project No. 12114 shall remain in effect through the thirtieth day after issuance of this notice unless that day is a Saturday, Sunday, or holiday as described in 18 CFR 385.2007, in which case the permit shall remain in effect through the first business day following that day. New applications involving this project site, to the extent provided for under 18 CFR part 4, may be filed on the next business day.
Take notice that Gene Arlin Shanks, permittee for the proposed Elfin Inian Project, has requested that its preliminary permit be terminated. The permit was issued on December 6, 2000, and would have expired on November 30, 2003. The project would have been located on Elfin Cove near the town of Elfin Cove, Alaska.
The permittee filed the request on August 20, 2002, and the preliminary permit for Project No. 11843 shall remain in effect through the thirtieth day after issuance of this notice unless that day is a Saturday, Sunday, or holiday as described in 18 CFR 385.2007, in which case the permit shall remain in effect through the first business day following that day. New applications involving this project site, to the extent provided for under 18 CFR part 4, may be filed on the next business day.
Environmental Protection Agency (EPA).
Notice of availability of grantee performance evaluation reports.
EPA's grant regulations (40 CFR 35.150) require the Agency to evaluate the performance of agencies which receive grants. EPA's regulations for regional consistency (40 CFR 56.7) require that the Agency notify the public of the availability of the reports of such evaluations. EPA performed end-of-year evaluations of seven state air pollution control programs (Alabama Department of Environmental Management; Florida Department of Environmental Protection; Georgia Department of Natural Resources; Kentucky Department for Environmental Protection; Mississippi Department of Environmental Quality; South Carolina Department of Health and Environmental Control; and Tennessee Department of Environment & Conservation) and 15 local programs (Jefferson County Department of Health, AL; City of Huntsville Department of Natural Resources, AL; Broward County Environmental Quality Control Board, FL; Jacksonville Air Quality Division, FL; Hillsborough County Environmental Protection Commission, FL; Dade County Environmental Resources
The reports may be examined at the EPA's Region 4 office, 61 Forsyth Street, SW., Atlanta, Georgia 30303, in the Air, Pesticides, and Toxics Management Division.
Marie Persinger (404) 562-9048, for information concerning the States of Alabama and Georgia and the Commonwealth of Kentucky; Gloria Knight, (404) 562-9064, for information concerning the States of Florida and Mississippi; or Rayna Brown for the States of North Carolina, South Carolina, and Tennessee. They may be contacted at the above Region 4 address.
Pursuant to the Federal Advisory Committee Act (FACA), Public Law 92-463, we now give notice that the National Environmental Justice Advisory Council (NEJAC), along with the various subcommittees, will meet on the dates and times described below. All times noted are eastern standard time. All meetings are open to the public. Due to limited space, seating at the NEJAC meeting will be on a first-come basis. Documents that are the subject of NEJAC reviews are normally available from the originating EPA office and are
The Charter for the NEJAC states that the advisory committee shall provide independent advice to the Administrator on areas that may include, among other things, “advice on EPA's progress, quality and adequacy in planning, developing and implementing environmental justice strategies, projects and programs” relating to environment justice. In order to provide such independent advice, the Agency requests that the NEJAC convene a focused, issue-oriented public meeting in Baltimore, MD. The meeting shall be used to receive comments on, discuss, and analyze issues related to water quality, fish consumption and environmental justice. The Agency, furthermore, requests that the NEJAC produce a comprehensive report on the differing views, interests, concerns, and perspectives expressed by the stakeholder participants on the focused policy issue, and provide advice and recommendations for the Agency's review and consideration. In order to fulfill this charge, the NEJAC is being asked to discuss and provide recommendations regarding the following broad public policy question: “How can EPA better promote innovation in the field of pollution prevention, waste minimization, and related areas to more effectively ensure clean, healthy and sustainable environment for all people, including low income, minority and tribal communities?”
Registration for the NEJAC meeting will begin on Monday, December 9, 2002, at 12 noon. The NEJAC will convene Monday, December 9, 2002, from 3 p.m. to 6 p.m. On Monday from 4 p.m. to 6 p.m. there will be Pollution Prevention Case Study Presentation. The NEJAC will reconvene on Tuesday, December 10, 2002, from 8:30 a.m. to 5 p.m. The meeting on Tuesday will be organized to create the best environment for a deliberative process. The meeting will be conducted in a round table fashion, except during the public comment session. A public comment period dedicated to the focused policy issue is scheduled for Tuesday evening, December 10, 2002, from 7 p.m. to 9 p.m. General environmental justice public comment issues will be heard on Tuesday evening, following the focus policy public comment issues. The following Subcommittees will meet on Wednesday, December 11, 2002, from 9 a.m. to 6 p.m.: Air and Water; Enforcement; Health and Research; Indigenous Peoples; International; and Waste and Facility Siting. The full NEJAC will reconvene Thursday, December 12, 2002, from 9 a.m. to 5 p.m. to wrap up all business requiring Executive Council action. All times shown are local time.
Any member of the public wishing additional information on the subcommittee meetings should contact the specific Designated Federal Official at the telephone number listed below.
Members of the public who wish to participate in the public comment period should pre-register by November 29, 2002. Members of the public are encouraged to provide comments relevant to the focus issue being deliberated by the NEJAC. Individuals or groups making oral presentations during the public comment period will be limited to a total time of five minutes. Only one representative from a community, organization, or group will be allowed to speak. Any number of written comments can be submitted for the record. The suggested format for individuals making public comment should be as follows:
Request to Make Public Comment Speaker's Template:
Pre-registration for all attendees is recommended. To receive a registration form, call the number listed below or visit the web site. Correspondence concerning registration should be sent to Ms. Victoria Robinson of Tetra Tech Environmental Management, Inc. at: 1881 Campus Commons, Suite 200, Reston, VA 20191, phone: 703/390-0641 or fax: 703/391-5876. Hearing-impaired individuals or non-English speaking attendees wishing to arrange for a sign language or foreign language interpreter, may make appropriate arrangements using these numbers also. In addition, NEJAC offers a toll-free Registration Hotline at 1-888/335-4299 or send an e-mail to
Environmental Protection Agency.
Notice of Proposed Settlement.
Under Section 122(g) of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), Voltex Batteries, Inc.
Written comment may be submitted to Ms. Brenita Richardson at the above address within 30 days of the date of publication.
Environmental Protection Agency.
Notice of proposed administrative order on consent.
The Environmental Protection Agency is proposing to enter into an administrative order on consent pursuant to Section 122(g) of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA), as amended, regarding the Prestige Chemical Company Superfund Site located in Senoia, Coweta County, Georgia, with the following parties: Brett, Inc.; Clayton Collision Center, Inc.; Heng's, Inc.; M & G Auto Enterprises, Inc.; Perdue's Paint and Body Shop, Inc.; Stone Mountain Body Shop, Inc.; Tony Infinger, Inc., and Wade Industries, Inc. The settlement is designed to resolve fully each settling
Written comments may be submitted to Ms. Batchelor within thirty (30) calendar days of the date of this publication.
Equal Employment Opportunity Commission (EEOC).
Notice.
Notice is hereby given of the appointment of members of the EEOC Performance Review Board.
Angelica E. Ibarguen, Director, Office of Human Resources, Equal Employment Opportunity Commission, 1801 L Street, NW., Washington, DC 20507, (202) 663-4306.
Pursuant to the requirements of section 4314(c)(1) through (5) of Title 5, U.S.C., notice is given that the following employees will serve as members of the EEOC Performance Review Board: Ms. Angelica E. Ibarguen, Director, Office of Human Resources (Chairperson); Mr. Chester V. Bailey, Director, Milwaukee District Office (Member); Ms. H. Joan Ehrlich, Acting Director, Office of Communications and Legislative Affairs (Member); Ms. Gwendolyn Young Reams, Associate General Counsel for Appellate Services (Member); Mr. Michael Dougherty, Director, State and Local Programs, Office of Field Programs (Member); and Ms. Sallie T. Hsieh, Director, Office of Information Technology (Alternate).
For the Commission.
The Renewable Energy Exports Advisory Committee was established by the Board of Directors at Ex-Im Bank to assist the Bank in meeting its objective of supporting U.S. exporters in renewable energy industries. In addition, the goal is to seek advice from the private sector about best practices when addressing renewable energy export.
For further information, contact Nichole Westin, Room 1237, 811 Vermont Ave., NW., Washington, DC 20571, (202) 565-3542.
The Sub-Saharan Africa Advisory Committee was established by P.L. 105-121, November 26, 1997, to advise the Board of Directors on the development and implementation of policies and programs designed to support the expansion of the Bank's financial commitments in Sub-Saharan Africa under the loan, guarantee and insurance programs of the Bank. Further, the committee shall make recommendations on how the Bank can facilitate greater support by U.S. commercial banks for trade with Sub-Saharan Africa.
For further information, contact Teri Stumpf, Room 1215, 811 Vermont Avenue, NW., Washington, DC 20571, (202) 565-3502.
Federal Communications Commission.
Notice.
In this document the Federal Communications Commission, (Commission), Wireless Telecommunications Bureau, seeks to verify ITFS, MDS, and MMDS legal matters pending in the Broadband Licensing System. The Commission is requesting that all ITFS, MDS and MMDS licensees, applicants, and other parties with pending legal pleadings review and verify the legal pleadings information in the released Appendix. Also, the Commission is requesting that ITFS, MDS, and MMDS licensees and applicants submit written requests for continued processing for all legal pleadings filed prior to March 25, 2002. Finally, at the Commission will close the review and verification period on December 17, 2002.
Comments are due on or before December 18, 2002 and reply comments are due on or before January 2, 2003.
Federal Communications Commission, 445 12th Street, SW., TW-A325, Washington, DC 20554.
John J. Schauble, Chief, Policy and Rules Branch, Kim Varner, Esq., Policy and Rules Branch, Public Safety and Private Wireless Division, or Stephen Svab, Esq., Policy and Rules Branch, Public Safety and Private Wireless Division at (202) 418-0680
This is a summary of the Commission's
On March 25, 2002, the Wireless Telecommunications Bureau (WTB) became responsible for the administration of the Instructional Television Fixed Service (ITFS), the Multipoint Distribution Service (MDS), and the Multichannel Multipoint Distribution Service (MMDS) (collectively, the Services). Prior to March 25, 2002, the Services were administered by the former Mass Media Bureau using the Broadband Licensing System (BLS) as the licensing database for the Services. As part of the transition process, WTB seeks to ensure that it has a complete and accurate list of all pending ITFS, MDS, and MMDS pending legal matters. In order to facilitate this process WTB is requesting that all ITFS, MDS and MMDS licensees, applicants and other parties with pending pleadings relating to those services review and verify the information contained in the attached appendix. In addition, in order to process efficiently all pending petitions, and other requests, WTB is requesting that applicants and petitioners re-affirm, in writing, that continued processing of certain petitions and other legal matters, as detailed below is desired.
It is very important that all ITFS, MDS, and MMDS licensees and applicants carefully review this public notice and the appendix hereto. Failure to follow the instructions in this public notice may result in the dismissal of pending applications and other matters.
WTB is attaching to the Public Notice an appendix concerning legal matters. The Appendix lists all pending ITFS/MDS/MMDS legal matters such as petitions to deny, petitions for reconsideration, petitions for reinstatement, applications for review, informal complaints, petition for declaration for forfeiture, informal requests for action and waiver requests. This list of the type of legal matters is not exhaustive, but rather is representative of the type of actions on file with WTB.
Within sixty days of the release of this public notice, petitioners with legal pleadings regarding the Services that are pending before the Commission (including those pending before its delegated authorities) are requested to verify and to act, where appropriate, by reviewing the attached Appendix for the following: (1) That its pending pleading(s) is/are listed in the Appendix, (2) for petitions with a filing date prior to March 25, 2002, that action on the pending pleading(s) is still requested, (3) identify those legal proceedings for which the Commission's files are incomplete, and (4) verify that all outstanding responsive pleadings in a specific matter have been filed.
If the pleading information listed in the Appendix is accurate, has a filing date after March 25, 2002, and there is no indication in the Appendix that pleadings are missing from the Commission's files, no further action is required. If a pending petition is not listed in the Appendix and processing is requested, the petitioner shall submit within sixty days of the release of this public notice two date-stamped copies of the omitted petition and all related pleadings to the Commission, as well as a copy to the opposing party(ies). If sent by United States Postal Service first-class mail, Express Mail, and Priority Mail, the pleadings should be sent to the following address: Office of the Secretary, Attention: MDS/ITFS Legal Matters, Federal Communications Commission, 445 12th Street SW., TW-325, Washington, DC 20554.
Hand-delivered or messenger-delivered documents for the Commission's Secretary are accepted only by the Commission's contractor, Vistronix, Inc., at 236 Massachusetts Avenue, NE., Suite 110, Washington, DC 20002. The filing hours at this location are 8 a.m. to 7 p.m. All hand deliveries must be held together with rubber bands or fasteners. Any envelopes must be disposed of before entering 236 Massachusetts Avenue, NE. Other messenger-delivered documents, including documents sent by overnight mail (other than United States Postal Service Express Mail and Priority Mail) should be addressed for delivery to 9300 East Hampton Drive, Capitol Heights, MD 20743. All filings must be addressed to the Commission's Secretary, Office of the Secretary, Federal Communications Commission.
In addition, for all pending legal matters with a filing date prior to March 25, 2002, the party that filed such pleading or request (or its successor-in-interest) must request within sixty days of the release date of this public notice, in writing, that we continue processing such legal matter. Such party(ies) shall file a letter indicating their continued interest in prosecuting the matter to the addresses indicated above in this subsection. Otherwise, the matter will be deemed dismissed with prejudice.
Also, the Appendix lists certain legal proceedings for which the Commission does not have complete files. With respect to those proceedings, both the petitioner and the respondent are required within sixty days of the release of this public notice to submit two date-stamped copies of all missing pleadings within their possession because the Commission's files in these cases are incomplete. Copies of pleadings should be filed to the addresses indicated previously in this paragraph.
Finally, if a responsive pleading to a legal matter remains outstanding, the respondent must file said pleading within sixty days from the date of this public notice. We are taking this action because we note that there are several pending motions for extension of time to file oppositions or replies to various pleadings. We believe the public interest would best be served by requiring the submission of all responsive pleadings in order to expedite the resolution of those pending matters. By this public notice, we hereby set sixty days from the release date of this public notice as the date for filing all responsive pleadings in cases involving ITFS/MDS/MMDS applications or licenses for which pending motions for extension of time have been filed. Such parties shall file the responsive pleading(s) to the addresses indicated above in this subsection. Absent highly unusual circumstances, no further extensions of time are contemplated.
At the end of the sixty-day review period, WTB will evaluate and update, where appropriate, all information received in response to this public notice. For any legal matters for which written affirmations requesting further processing have not been received, those legal matters will be dismissed with prejudice.
For all questions relating to this Public Notice, contact John J. Schauble, Chief, Policy and Rules Branch, Kim Varner, Esq., Policy and Rules Branch, Public Safety and Private Wireless Division, or Stephen Svab, Esq., Policy and Rules Branch, Public Safety and Private Wireless Division at (202) 418-0680.
The public reporting for this collection of information is estimated to average .50 hours per response, including the time for reviewing instructions, searching existing data sources, gathering and maintaining the required data, and completing and reviewing the collection of information. If you have any comments on this burden estimate, or how we can improve the collection and reduce the burden it causes you, please write to the Federal Communications Commission, AMD-PERM, Paperwork Reduction Project (3060-0893), Washington, DC 20554. We will also accept your comments regarding the Paperwork Reduction Act aspects of this collection via the Internet if you send them to
Remember—You are not required to respond to a collection of information sponsored by the Federal government, and the government may not conduct or sponsor this collection, unless it displays a currently valid OMB control number or if we fail to provide you with this notice. This collection has been assigned an OMB control number of 3060-0893.
The Foregoing Notice is Required by the Paperwork Reduction Act of 1995, Public Law 104-13, October 1, 1995, 44 U.S.C. 3507.
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 December 2, 2002.
Board of Governors of the Federal Reserve System, November 12, 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
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 December 12, 2002.
Board of Governors of the Federal Reserve System, November 12, 2002.
In accordance with section 10(a)(2) of the Federal Advisory Committee Act (Pub. L. 92-463), the Centers for Disease Control and Prevention (CDC) announces the following committee meeting.
Other agenda items include announcements/introductions; follow-up on actions recommended by the Board May 2002; consideration of future directions, goals, and recommendations.
Agenda items are subject to change as priorities dictate.
Written comments are welcome and should be received by the contact person listed below prior to the opening of the meeting.
The Director, Management Analysis and Services Office, has been delegated the authority to sign
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 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.
1.
2.
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
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) has determined the regulatory review period for GLEEVEC and is publishing this notice of that determination as required by law. FDA has made the determination because of the submission of an application to the Commissioner of Patents and Trademarks, Department of Commerce, for the extension of a patent that claims that human drug product.
Submit written comments and petitions to the Dockets Management Branch (HFA-305), Food and Drug Administration, 5630 Fishers Lane, rm. 1061, Rockville, MD 20852. Submit electronic comments to
Claudia V. Grillo, Office of Regulatory Policy (HFD-013), Food and Drug Administration, 5600 Fishers Lane, Rockville, MD 20857, 301-827-3460.
The Drug Price Competition and Patent Term Restoration Act of 1984 (Public Law 98-417) and the Generic Animal Drug and Patent Term Restoration Act (Public Law 100-670) generally provide that a patent may be extended for a period of up to 5 years so long as the patented item (human drug product, animal drug product, medical device, food additive, or color additive) was subject to regulatory review by FDA before the item was marketed. Under these acts, a product's regulatory review period forms the basis for determining the amount of extension an applicant may receive.
A regulatory review period consists of two periods of time: A testing phase and an approval phase. For human drug products, the testing phase begins when the exemption to permit the clinical investigations of the drug becomes effective and runs until the approval phase begins. The approval phase starts with the initial submission of an application to market the human drug product and continues until FDA grants permission to market the drug product. Although only a portion of a regulatory review period may count toward the actual amount of extension that the Commissioner of Patents and Trademarks may award (for example, half the testing phase must be subtracted, as well as any time that may have occurred before the patent was issued), FDA's determination of the length of a regulatory review period for a human drug product will include all of the testing phase and approval phase as specified in 35 U.S.C. 156(g)(1)(B).
FDA recently approved for marketing the human drug product GLEEVEC (imatinib mesylate). GLEEVEC is indicated for the treatment of patients with chronic myeloid leukemia (CML) in blast crisis, accelerated phase, or in chronic phase after failure of interferon-alpha therapy. Subsequent to this approval, the Patent and Trademark Office received a patent term restoration application for GLEEVEC (U.S. Patent No. 5,521,184) from Novartis Corp., and the Patent and Trademark Office requested FDA's assistance in determining this patent's eligibility for patent term restoration. In a letter dated February 14, 2002, FDA advised the Patent and Trademark Office that this human drug product had undergone a regulatory review period and that the approval of GLEEVEC represented the first permitted commercial marketing or use of the product. Shortly thereafter, the Patent and Trademark Office requested that FDA determine the product's regulatory review period.
FDA has determined that the applicable regulatory review period for GLEEVEC is 1,098 days. Of this time, 1,025 days occurred during the testing phase of the regulatory review period, while 73 days occurred during the approval phase. These periods of time were derived from the following dates:
1.
2.
3.
This determination of the regulatory review period establishes the maximum potential length of a patent extension. However, the U.S. Patent and Trademark Office applies several statutory limitations in its calculations of the actual period for patent extension. In its application for patent extension, this applicant seeks 599 days of patent term extension.
Anyone with knowledge that any of the dates as published is incorrect may submit to the Dockets Management Branch (see
Comments and petitions should be submitted to the Dockets Management Branch (see
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) has determined the regulatory review period for EVOXAC and is publishing this notice of that determination as required by law. FDA has made the determination because of the submission of an application to the Commissioner of
Submit written comments and petitions to the Dockets Management Branch (HFA-305), Food and Drug Administration, 5630 Fishers Lane, rm. 1061, Rockville, MD 20852. Submit electronic comments to
Claudia V. Grillo, Office of Regulatory Policy (HFD-013), Food and Drug Administration, 5600 Fishers Lane, Rockville, MD 20857, 301-827-3460.
The Drug Price Competition and Patent Term Restoration Act of 1984 (Public Law 98-417) and the Generic Animal Drug and Patent Term Restoration Act (Public Law 100-670) generally provide that a patent may be extended for a period of up to 5 years so long as the patented item (human drug product, animal drug product, medical device, food additive, or color additive) was subject to regulatory review by FDA before the item was marketed. Under these acts, a product's regulatory review period forms the basis for determining the amount of extension an applicant may receive.
A regulatory review period consists of two periods of time: A testing phase and an approval phase. For human drug products, the testing phase begins when the exemption to permit the clinical investigations of the drug becomes effective and runs until the approval phase begins. The approval phase starts with the initial submission of an application to market the human drug product and continues until FDA grants permission to market the drug product. Although only a portion of a regulatory review period may count toward the actual amount of extension that the Commissioner of Patents and Trademarks may award (for example, half the testing phase must be subtracted, as well as any time that may have occurred before the patent was issued), FDA's determination of the length of a regulatory review period for a human drug product will include all of the testing phase and approval phase as specified in 35 U.S.C. 156(g)(1)(B).
FDA recently approved for marketing the human drug product EVOXAC (Cevimeline HCI). EVOXAC is indicated for the treatment of symptoms of dry mouth in patients with Sjogren's Syndrome. Subsequent to this approval, the Patent and Trademark Office received a patent term restoration application for EVOXAC (U.S. Patent No. 4,855,290) from the State of Israel, Israel Institute for Biological Research, and the Patent and Trademark Office requested FDA's assistance in determining this patent's eligibility for patent term restoration. In a letter dated February 14, 2002, FDA advised the Patent and Trademark Office that this human drug product had undergone a regulatory review period and that the approval of EVOXAC represented the first permitted commercial marketing or use of the product. Shortly thereafter, the Patent and Trademark Office requested that FDA determine the product's regulatory review period.
FDA has determined that the applicable regulatory review period for EVOXAC is 1,733 days. Of this time, 1,230 days occurred during the testing phase of the regulatory review period, while 503 days occurred during the approval phase. These periods of time were derived from the following dates:
1.
2.
3.
This determination of the regulatory review period establishes the maximum potential length of a patent extension. However, the U.S. Patent and Trademark Office applies several statutory limitations in its calculations of the actual period for patent extension. In its application for patent extension, this applicant seeks 1,133 days of patent term extension.
Anyone with knowledge that any of the dates as published is incorrect may submit to the Dockets Management Branch (
Comments and petitions should be submitted to the Dockets Management Branch. Three copies of any information is to be submitted, except that individuals may submit one copy. Comments are to be identified with the docket number found in brackets in the heading of this document. Comments and petitions may be seen in the Dockets Management Branch between 9 a.m. and 4 p.m., Monday through Friday.
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is announcing an amendment to the notice of a meeting of the Peripheral and Central Nervous System Drugs Advisory Committee. This meeting was announced in the
Sandra Titus, Center for Drug Evaluation and Research (HFD-21), Food and Drug Administration, 5600 Fishers Lane (for express delivery, 5630 Fishers Lane, rm. 1093), Rockville, MD 20857, 301-827-7001, or FDA Advisory Committee Information Line, 1-800-741-8138 (301-443-0572 in the Washington, DC area), code 12543. Please call the Information Line for up-to-date information on this meeting.
In the
1. How is the surrogate imaging modality best validated?
2. If one uses an imaging modality to support a disease-modifying effect claim, how does one establish that such an effect occurs?
3. Has any surrogate imaging modality been validated at the present time?
4. Even if no surrogate imaging modality has currently been validated, is it appropriate to use one or more such modalities as primary or ancillary outcome measures of efficacy in phase 3 clinical trials?
Notice of this meeting is given under the Federal Advisory Committee Act (5 U.S.C. app. 2).
Office of Inspector General, HHS.
Notice of program exclusions.
During the month of October 2002, the HHS Office of Inspector General imposed exclusions in the cases set forth below. When an exclusions is imposed, no program payment is made to anyone for any items or services (other than an emergency item or service not provided in a hospital emergency room) furnished, ordered or prescribed by an excluded party under the Medicare, Medicaid, and all Federal Health Care programs. In addition, no program payment is made to any business or facility,
Office of the Assistant Secretary for Public and Indian Housing, HUD.
Notice.
The proposed information collection requirement described below will be submitted to the Office of Management and Budget (OMB) for review, as required by the Paperwork Reduction Act. The Department is soliciting public comments on the subject proposal.
Comments Due Date: January 17, 2003.
Interested persons are invited to submit comments regarding this proposal. Comments should refer to the proposal by name and/or OMB Control number and should be sent to: Mildred M. Hamman, Reports Liaison Officer, Public and Indian Housing, Department of Housing and Urban Development, 451 7th Street, SW., Room 4249, Washington, DC 20410-5000.
Mildred M. Hamman, (202) 708-0614, extension 4128. (This is not a toll-free number).
The Department will submit the proposed information collection to OMB for review, as required by the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35, as amended).
This Notice is soliciting comments from members of the public and affected agencies concerning the proposed collection of information to: (1) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (2) evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information; (3) enhance the quality, utility, and clarity of the information to be collected; and (4) minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated collection techniques or other forms of information technology;
Section 3506 of the Paperwork Reduction Act of 1995, 44 U.S.C. Chapter 35, as amended.
Office of the Chief Information Officer, HUD.
Notice
The proposed information collection requirement described below has been submitted to the Office of Management and Budget (OMB) for review, as required by the Paperwork Reduction Act. The Department is soliciting public comments on the subject proposal.
Interested persons are invited to submit comments regarding this proposal. Comments should refer to the proposal by name and/or OMB approval number (2502-0178) and should be sent to: Lauren Wittenberg, OMB Desk Officer, Office of Management and Budget, Room 10235, New Executive Office Building, Washington, DC 20503; Fax No. (202) 395-6974; E-mail
Wayne Eddins, Reports Management Officer, QDAM, Department of Housing and Urban Development, 451 Seventh Street, SW., Washington, DC 20410; e-mail
The Department has submitted the proposal for the collection of information, as described below, to OMB for review, as required by the Paperwork Reduction Act (44 U.S.C. Chapter 35). This Notice lists the following information: (1) The title of the information collection proposal; (2) the office of the agency to collect the information; (3) the OMB approval number, if applicable; (4) the description of the need for the information and its proposed use; (5) the agency form number, if applicable; (6) what members of the public will be affected by the proposal; (7) how frequently information submissions will be required; (8) an estimate of the total number of hours needed to prepare the information submission including number of respondents, frequency of response, an hours of response; (9) whether the proposal is new, an extension, reinstatement, or revision of an information collection requirement; and (10) the name and telephone number of an agency official familiar with the proposal and of the OMB Desk Officer for the Department.
This Notice also lists the following information:
Section 3507 of the Paperwork Reduction Act of 1995, 44 U.S.C. 35, as amended.
Office of the General Counsel, HUD.
Notice of Revocation of Delegation of Authority.
This notice advises the public that the Secretary, on May 22, 2002, revoked the delegation of authority of the President of the Government National Mortgage Association (Ginnie Mae), to execute legal instruments pertaining to Section 312 loans, and to redelegate the authority to execute such legal instruments.
Mary Kolesar, Office of Affordable Housing Programs, Department of Housing and Urban Development, 451 7th Street, SW., Washington, DC 20410, telephone number (202) 708-2470 (this is not a toll free number). This number may be accessed via TTY by calling the Federal Information Relay Service a 1-800-877-8339.
On May 28, 1997 (62 FR 28889), the Secretary delegated to the President, Ginnie Mae the authority to execute in the name of the Secretary certain written instruments relating to Section 312 Rehabilitation Loans, including but not limited to: Deeds of release, quit claim deeds and deeds of reconveyance; substitutions of trustees; compromises; write-offs; close outs; releases related to insurance policies; assignments or satisfactions of notes, mortgages, deeds of trust and other security instruments; and any other written instrument or document related to, or necessary for, servicing or collection of a Section 312 loan, including any such instrument related to Section 312 loan servicing-related property management and disposition functions that were not delegated to the Assistant Secretary for Housing. The May 28, 1997 delegation of authority also authorized the President of Ginnie Mae to redelegate this authority.
This notice advises the public that on May 22, 2002, the Secretary revoked the delegation of authority to the President, Ginnie Mae that was published on May 28, 1997 (62 FR 28889) and that
Office of the Secretary, HUD.
Notice of revocation of delegation of authority.
In this notice, the Secretary revokes the delegation of authority delegated to the President of the Government National Mortgage Association (Ginnie Mae), to execute legal instruments pertaining to Section 312 loans, and to redelegate the authority to execute such legal instruments.
May 22, 2002.
Mary Kolesar, Office of Affordable Housing Programs, Department of Housing and Urban Development, 451 7th Street, SW., Washington, DC 20410, telephone number (202) 708-2470 (this is not a toll free number). This number may be accessed via TTY by calling the Federal Information Relay Service at 1-800-877-8339.
On May 28, 1997 (62 FR 28889), the Secretary delegated to the President, Ginnie Mae the authority to execute in the name of the Secretary certain written instruments relating to Section 312 Rehabilitation Loans, including but not limited to: Deeds of release, quit claim deeds and deeds of reconveyance; substitutions of trustees; compromises; write-offs; close outs; releases related to insurance policies; assignments or satisfactions of notes, mortgages, deeds of trust and other security instruments; and any other 2 written instruments or documents related to, or necessary for, servicing or collection of a Section 312 loan, including any such instrument related to Section 312 loan servicing-related property management and disposition functions that were not delegated to the Assistant Secretary for Housing. The May 28, 1997 delegation of authority also authorized the President, Ginnie Mae, to redelegate this authority.
This notice published in today's
Today's
Section 312 of the Housing Act of 1964, 42 U.S.C. 1452b; 12 U.S.C. 1701g-5C; and section C, Delegation of Authority, 48 FR 49384, October 25, 1983; Section 7(d), Department of Housing and Urban Development Act, 42 U.S.C. 3535(d).
Bureau of Land Management, Interior.
Notice of meeting location and time for the Mojave Southern Great Basin Resource Advisory Council (Nevada).
In accordance with the Federal Land Policy and Management Act and the Federal Advisory Committee Act of 1972 (FACA), the U.S. Department of the Interior, Bureau of Land Management (BLM) Mojave Southern Great Basin Resource Advisory Council (RAC), Nevada, will be held as indicated below. Topics for discussion will include managers' reports of field office activities; an update on the Southern Nevada Public Land Management Act of 1998; and other topics the council may raise.
All meetings are open to the public. The public may present written and/or oral comments to the council. Individuals who need special assistance such as sign language interpretation or other reasonable accommodations should contact Phillip Guerrero at (702) 515-5046.
Phillip L. Guerrero, Public Affairs Officer, BLM Las Vegas Field Office, 4701 North Torrey Pines Drive, Las Vegas NV 89130-2301, or by phone at (702) 515-5046.
Bureau of Land Management.
Notice.
The plats of survey of the following described lands were officially filed in the Oregon State Office, Portland, Oregon, on August 15, 2002.
The plats of survey of the following described lands were officially filed in the Oregon State Office, Portland, Oregon, on September 26, 2002.
The plat of survey of the following described lands is scheduled to be officially filed in the Oregon State Office, Portland, Oregon, 30 calendar days from the date of this publication.
A copy of the plats may be obtained from the Oregon State Office, Bureau of Land Management, 333 SW. 1st Avenue, Portland, Oregon 97204, upon required payment. A person or party who wishes to protest against a survey must file with the State Director, Bureau of Land Management, Portland, Oregon, a notice that they wish to protest.
Bureau of Land Management, (333 SW. 1st Avenue) PO Box 2965, Portland, Oregon 97208.
Minerals Management Service (MMS), Interior.
Notice of extension of an information collection (1010-0072).
To comply with the Paperwork Reduction Act of 1995 (PRA), we are notifying the public that we have submitted to OMB an information collection request (ICR) to renew approval of the paperwork requirements in the regulations under 30 CFR part 280, “Prospecting for Minerals other than Oil, Gas, and Sulphur on the Outer Continental Shelf,” and related documents. This notice also provides the public a second opportunity to comment on the paperwork burden of these regulatory requirements.
Submit written comments by December 18, 2002.
You may submit comments directly to the Office of Information and Regulatory Affairs, OMB, Attention: Desk Officer for the Department of the Interior (1010-0072), 725 17th Street, NW., Washington, DC 20503. Mail or hand-carry a copy of your comments to the Department of the Interior; Minerals Management Service; Attention: Rules Processing Team; Mail Stop 4024; 381 Elden Street; Herndon, Virginia 20170-4817. If you wish to E-mail your comments to MMS, the address is:
Alexis London, Rules Processing Team, telephone (703) 787-1600. You may also contact Alexis London to obtain a copy, at no cost, of the regulations that require the subject collection of information.
Section 1340 states that “* * * any person authorized by the Secretary may conduct geological and geophysical explorations in the [O]uter Continental Shelf, which do not interfere with or endanger actual operations under any lease maintained or granted pursuant to this Act, and which are not unduly harmful to aquatic life in such area.” The section further requires that permits to conduct such activities may only be issued if it is determined that: the applicant is qualified; the activities are not polluting, hazardous, or unsafe; they do not interfere with other users of the area; and do not disturb a site, structure, or object of historical or archaeological significance.
Section 1352 further requires that certain costs be reimbursed to the parties submitting required G&G information and data. Under the Act, permittees are to be reimbursed for the costs of reproducing any G&G data required to be submitted. Permittees are to be reimbursed also for the reasonable cost of processing geophysical information required to be submitted when processing is in a form or manner required by the Director and is not used in the normal conduct of the business of the permittee.
Regulations implementing these responsibilities are under 30 CFR part 280. On July 17, 2002, MMS published final regulations (67 FR 46855) with an effective date of August 16, 2002. Responses are mandatory or required to obtain or retain a benefit. No questions of a “sensitive” nature are asked. The MMS protects information considered proprietary according to 30 CFR 280.70 and applicable sections of 30 CFR parts 250 and 252, and the Freedom of Information Act (5 U.S.C. 552) and its implementing regulations (43 CFR part 2).
MMS OCS Regions collect information required under part 280 to ensure there is no environmental degradation, personal harm or unsafe operations and conditions, damage to historical or archaeological sites, or interference with other uses; to analyze and evaluate preliminary or planned drilling activities; to monitor progress and activities in the OCS; to acquire G&G data and information collected under a Federal permit offshore; and to determine eligibility for reimbursement from the Government for certain costs. Respondents are required to submit form MMS-134 to provide the information necessary to evaluate their qualifications. The information is necessary for MMS to determine if the applicants for permits or filers of notices meet the qualifications specified by the Act. The MMS uses the information collected to understand the G&G characteristics of hard mineral-bearing physiographic regions of the OCS. It aids MMS in obtaining a proper balance among the potentials for environmental damage, the discovery of hard minerals, and adverse impacts on affected coastal States. Information from permittees is necessary to determine the propriety and amount of reimbursement.
To comply with the public consultation process, on August 6, 2002, we published a
If you wish to comment in response to this notice, you may send your comments to the offices listed under the
United States International Trade Commission.
Notice of Commission determination to conduct a full five-year review concerning the antidumping duty order on crawfish tail meat from China.
The Commission hereby gives notice that it will proceed with a full review pursuant to section 751(c)(5) of the Tariff Act of 1930 (19 U.S.C. 1675(c)(5)) to determine whether revocation of the antidumping duty order on crawfish tail meat from China would be likely to lead to continuation or recurrence of material injury within a reasonably foreseeable time. A schedule for the review will be established and announced at a later date. For further information concerning the conduct of this review and rules of general application, consult the Commission's Rules of Practice and Procedure, part 201, subparts A through E (19 CFR part 201), and part 207, subparts A, D, E, and F (19 CFR part 207).
November 4, 2002.
Mary Messer (202-205-3193), Office of Investigations, U.S. International Trade Commission, 500 E Street, SW., Washington, DC 20436. Hearing-impaired persons can obtain information on this matter by contacting the Commission's TDD terminal on 202-205-1810. Persons with mobility impairments who will need special assistance in gaining access to the Commission should contact the Office of the Secretary at 202-205-2000. General information concerning the Commission may also be obtained by accessing its Internet server (
On November 4, 2002, the Commission determined that it should proceed to a full review in the subject five-year review pursuant to section 751(c)(5) of the Act. The Commission found that both the domestic and respondent interested party group responses to its notice of institution (67 FR 50459, August 2, 2002) were adequate. A record of the Commissioners' votes, the Commission's statement on adequacy, and any individual Commissioner's statements will be available from the Office of the Secretary and at the Commission's web site.
This review is being conducted under authority of title VII of the Tariff Act of 1930; this notice is published pursuant to § 207.62 of the Commission's rules.
By order of the Commission.
On the basis of information developed in the subject investigation, the United States International Trade Commission determines, pursuant to section 421(b)(1) of the Trade Act of 1974,
Vice Chairman Jennifer A. Hillman and Commissioner Marcia E. Miller
Commissioner Stephen Koplan proposes that the President impose a quantitative restriction on pedestal actuators imported into the United States from China in the amount of 4,425 units in the first year; 4,514 units in the second year; and 4,604 units in the third year.
The Commissioners find that the respective actions that they propose are necessary to remedy the market disruption found to exist.
Following receipt of a petition filed on August 19, 2002 on behalf of Motion Systems Corporation, the Commission instituted investigation No. TA-421-1, Pedestal Actuators From China, under section 421 of the Trade Act of 1974 to determine whether pedestal actuators from China are being imported into the United States in such increased quantities or under such conditions as to cause or threaten to cause market disruption to the domestic producers of like or directly competitive products.
Notice of the institution of the Commission's investigation and of the scheduling of a public hearing to be held in connection therewith was given by posting a copy of the notice on the Commission's Web site (
The Commission transmitted its determination to the President and U.S. Trade Representative on October 18, 2002; it transmitted its remedy proposals to the President and U.S. Trade Representative on November 7, 2002. The views of the Commission are contained in USITC Publication 3557 (November 2002), entitled Pedestal Actuators from China: Investigation No. TA-421-1.
By order of the Commission.
Immigration and Naturalization Service, DOJ.
30-Day Notice of Information Collection Under Review: Inspection of Persons Applying for Admission; Transit Without Visa (TWOV) and International-to-International Agreements; Liquidated Damages.
The Department of Justice, Immigration and Naturalization Service (INS) has submitted the following information collection request to the Office of Management and Budget (OMB) for review and clearance in accordance with the Paperwork Reduction Act of 1995. The information collection was previously published in the
The purpose of this notice is to allow an additional 30 days for public comments. Comments are encouraged and will be accepted until December 18, 2002. This process is conducted in accordance with 5 CFR 1320.10.
Written comments and/or suggestions regarding the items contained in this notice, especially regarding the estimated public burden and associated response time, should be directed to the Office of Management and Budget, Office of Information and Regulatory Affairs, Attention: Department of Justice Desk Officer, Room 10235, Washington, DC 20530; 202-395-7316.
Written comments and suggestions from the public and affected agencies concerning the proposed collection of information should address one or more of the following four points:
(1) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(2) Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
(3) Enhance the quality, utility, and clarity of the information to be collected; and
(4) Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
Overview of this information collection:
(1)
(2)
(3)
(4)
(5)
(6)
If you have additional comments, suggestions, or need a copy of the proposed information collection instrument with instructions, or additional information, please contact Richard A. Sloan 202-514-3291, Director, Regulations and Forms Services Division, Immigration and Naturalization Service, U.S. Department of Justice, Room 4304, 425 I Street, NW., Washington, DC 20536. Additionally, comments and/or suggestions regarding the item(s) contained in this notice, especially regarding the estimated public burden and associated response time may also be directed to Mr. Richard A. Sloan.
If additional information is required contact: Mr. Robert B. Briggs, Clearance Officer, United States Department of Justice, Information Management and Security Staff, Justice Management Division, 601 D Street, NW., Patrick
Immigration and Naturalization Service, DOJ.
30-Day Notice of Information Collection Under Review: Application to Replace Alien Registration Card; Form I-90.
The Department of Justice, Immigration and Naturalization Service (INS) has submitted the following information collection request to the Office of Management and Budget (OMB) for review and clearance in accordance with the Paperwork Reduction Act of 1995. The information collection was previously published in the
The purpose of this notice is to allow an additional 30 days for public comments. Comments are encouraged and will be accepted until December 18, 2002. This process is conducted in accordance with 5 CFR 1320.10.
Written comments and/or suggestions regarding the items contained in this notice, especially regarding the estimated public burden and associated response time, should be directed to the Office of Management and Budget, Office of Information and Regulatory Affairs, Attention: Department of Justice Desk Officer, 725—17th Street, NW., Room 10235, Washington, DC 20530.
Written comments and suggestions from the public and affected agencies concerning the proposed collection of information should address one or more of the following four points:
(1) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(2) Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
(3) Enhance the quality, utility, and clarity of the information to be collected; and
(4) Minimize the burden of the collection of information on those who are to respond, including through the use of appropriated automated, electronic, mechanical, or other technological collection techniques of other forms of information technology,
Overview of this information collection:
(1)
(2)
(3)
(4)
(5)
(6)
If you have additional comments, suggestions, or need a copy of the proposed information collection instrument with instructions, or additional information, please contact Richard A. Sloan 202-514-3291, Director, Regulations and Forms Services Division, Immigration and Naturalization Service, U.S. Department of Justice, Room 4304, 425 I Street, NW., Washington, DC 20536.
Additionally, comments and/or suggestions regarding the item(s) contained in this notice, especially regarding the estimated public burden and associated response time may also be directed to Mr. Richard A. Sloan.
If additional information is required contact: Mr. Robert B. Briggs, Clearance Officer, United States Department of Justice, Information Management and Security Staff, Justice Management Division, 601 D Street, NW., Patrick Henry Building, Suite 1600, Washington, DC 20530.
60-day notice of information collection under review: New collection; 2002 Census of Publicly Funded Forensic Crime Laboratories.
The Department of Justice, Office of Justice Programs, Bureau of Justice Statistics, has submitted the following information collection request for review and clearance in accordance with the Paperwork Reduction Act of 1995. This proposed information collection is published to obtain comments from the public and affected agencies. Comments are encouraged and will be accepted for sixty days until January 17, 2003.
If you have additional comments, suggestions, or need a copy of the proposed information collection instrument with instructions or additional information, please contact Cynthia J. Schwimer, Comptroller, 202-307-0623, Office of Justice Programs, U.S. Department of Justice, 810 7th Street, NW., Washington, DC 20531.
Written comments and suggestions from the public and affected agencies concerning the proposed collection of information should address one or more of the following four points:
(1) Evaluate whether the proposed collection of information is necessary for the proper performance of the function of the agency, including whether the information will have practical utility;
(2) Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
(3) Enhance the quality, utility, and clarity of the information to be collected; and
(4) Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other
(1)
(2)
(3)
(4)
(5)
(6)
If additional information is required contact: Mrs. Brenda E. Dyer, Deputy Clearance Officer, United States Department of Justice, Information Management and Security Staff, Justice Management Division, Suite 1600, 601 D Street, NW., Washington, DC 20004.
The Fall meetings of committees of the Labor Research Advisory Council will be held on December 9, 10, and 11, 2002. All of the meetings will be held in the Conference Center, of the Postal Square Building (PSB), 2 Massachusetts Avenue, NE., Washington, DC.
The Labor Research Advisory Council and its committees advise the Bureau of Labor Statistics with respect to technical matters associated with the Bureau's programs. Membership consists of union research directors and staff members. The schedule and agenda of the meetings are as follows:
1. Review of the new Job Openings and Labor Turnover Survey (JOLTS) data.
2. Review of the new quarterly Covered Employment and Wages (CEW, or ES-202) data release.
3. Review of past and current approaches, and discussion of possible future approaches to benchmarking State and area labor force estimates to the Current Population Survey (CPS).
4. Review of the estimated impact of Census 2000 population weights and new race/ethnicity standards on CPS estimates.
5. Topics for next meeting.
1. 2001 Census of Fatal Occupational Injuries Briefing.
2. Hispanic Workers in the United States, an Analysis of Employment Distribution, Fatal Occupational Injuries, and Non-Fatal Occupational Injuries and Illnesses (Paper prepared for the National Academy of Sciences).
3. Follow-Back Surveys.
a. Respiratory chemical disease agents.
b. Workplace violence.
c. Truck Drivers.
4. Analysis of New Data on Hours at Work from 2002 Recordkeeping Change.
5. Internet data collection.
6. Other Survey of Occupational Injuries and Illnesses changes and updates
7. Upcoming publications
8. Budget update
9. Topics for next meeting
1. Contract expirations and work stoppages.
2. Discussion of paper on hours of work and paid time off.
3. Current data on Family and Medical Leave.
4. New data releases from the BLS compensation office.
5. New business.
6. Topics for next meeting.
1. Analysis of the behavior of the new, superlative Consumer Price Index (CPI) that the Bureau first released this past August.
2. Discussion of efforts to adjust prices of telecommunications equipment for quality change in the Producer Price Index.
1. Review of the assumptions underlying the aggregate economic projections
2. Revisions to major sector productivity series
3. Topics for next meeting
1. International Comparisons of Hours Worked.
2. Technical cooperation activities.
3. Topics for next meeting.
The meetings are open to the public. Persons planning to attend these meetings as observers may want to contact Wilhelmina Abner on 202-691-5970.
Pension and Welfare Benefits Administration, Labor.
Notice of proposed exemptions.
This document contains notices of pendency before the Department of Labor (the Department) of proposed exemptions from certain of the prohibited transaction restrictions of the Employee Retirement Income Security Act of 1974 (the Act) and/or the Internal Revenue Code of 1986 (the Code).
All interested persons are invited to submit written comments or requests for a hearing on the pending exemptions,
All written comments and requests for a hearing (at least three copies) should be sent to the Pension and Welfare Benefits Administration (PWBA), Office of Exemption Determinations, Room N-5649, U.S. Department of Labor, 200 Constitution Avenue, NW., Washington, DC 20210. Attention: Application No. ____, stated in each Notice of Proposed Exemption. Interested persons are also invited to submit comments and/or hearing requests to PWBA via e-mail or FAX. Any such comments or requests should be sent either by e-mail to:
Notice of the proposed exemptions will be provided to all interested persons in the manner agreed upon by the applicant and the Department within 15 days of the date of publication in the
The proposed exemptions were requested in applications filed pursuant to section 408(a) of the Act and/or section 4975(c)(2) of the Code, and in accordance with procedures set forth in 29 CFR part 2570, subpart B (55 FR 32836, 32847, August 10, 1990). Effective December 31, 1978, section 102 of Reorganization Plan No. 4 of 1978, 5 U.S.C. App. 1 (1996), transferred the authority of the Secretary of the Treasury to issue exemptions of the type requested to the Secretary of Labor. Therefore, these notices of proposed exemption are issued solely by the Department.
The applications contain representations with regard to the proposed exemptions which are summarized below. Interested persons are referred to the applications on file with the Department for a complete statement of the facts and representations.
If the proposed exemption is granted, the restrictions of section 406(a) and 406(b) of ERISA and the sanctions resulting from the application of section 4975 of the Code by reason of section 4975(c)(1)(A) through (F) of the Code shall not apply,
(A) The Plan pays no sales commissions, redemption fees, or other similar fees in connection with the Redemption (other than customary transfer charges paid to parties other than Northern and any affiliates of Northern (Northern Affiliates);
(B) The assets transferred to the Plan pursuant to the Redemptions consist entirely of cash and Transferable Securities. Notwithstanding the foregoing, Transferable Securities which are odd lot securities, fractional shares and accruals on such securities may be distributed in cash;
(C) With certain exceptions defined below, the Plan receives a pro rata portion of the securities of the Mutual Fund upon a Redemption that is equal in value to the number of Shares redeemed for such securities, as determined in a single valuation performed in the same manner and as of 3 p.m. Chicago time (local time for the closing of the exchanges) on the same day in accordance with Rule 2a-4 under the Investment Company Act of 1940, as amended (“1940 Act”) and the then-existing procedures established by the Board of Trustees of the Mutual Fund (using sources independent of Northern and Northern Affiliates);
(D) Northern or any affiliates thereof, does not receive any fees, including any fees payable pursuant to Rule 12b-1 under the 1940 Act in connection with any redemption of the Shares;
(E) Prior to a Redemption, Northern provides in writing to an independent fiduciary, as such term is defined in Section II (an Independent Fiduciary), a full and detailed written disclosure of information regarding the Redemption;
(F) Prior to a Redemption, the Independent Fiduciary provides written authorization for such Redemption to Northern, such authorization being terminable at any time prior to the date of Redemption without penalty to the Plan, and such termination being effectuated by 3 p.m. Chicago time following the date of receipt by Northern of written or electronic notice regarding such termination (unless circumstances beyond the control of Northern delay termination for no more than one additional business day);
(G) Before authorizing a Redemption, based on the disclosures provided by the Mutual Fund to the Independent Fiduciary, the Independent Fiduciary determines that the terms of the Redemption are fair to the participants of the Plan, and comparable to and no less favorable than terms obtainable at arms-length between unaffiliated parties, and that the Redemption is in the best interest of the Plan and its participants and beneficiaries;
(H) Not later than thirty (30) business days after the completion of a Redemption, the relevant Fund will provide to the Independent Fiduciary a written confirmation regarding such Redemption containing:
(i) The number of Shares held by the Plan immediately before the Redemption (and the related per Share net asset value and the total dollar value of the Shares held),
(ii) The identity (and related aggregate dollar value) of each security provided to the Plan pursuant to the Redemption, including each security valued in accordance with Rule 2a-4 under the Investment Company Act of 1940, as amended (“1940 Act”) and the then-existing procedures established by the Board of Trustees of the Mutual Fund (using sources independent of Northern and Northern Affiliates);
(iii) The current market price of each security received by the Plan pursuant to the Redemption, and
(iv) The identity of each pricing service or market-maker consulted in determining the value of such securities;
(I) The value of the securities received by the Plan for each redeemed Share equals the net asset value of such Share at the time of the transaction, and such value equals the value that would have been received by any other investor for shares of the same class of the Mutual Fund at that time;
(J) Subsequent to a Redemption, the Independent Fiduciary performs a post-transaction review which will include, among other things, testing a sampling of material aspects of the Redemption deemed in its judgment to be representative, including pricing;
(K) Each of the Plan's dealings with: the Mutual Funds, the investment advisors to the Mutual Funds (the Investment Advisers), the principal underwriter for the Mutual Funds, or any affiliated person thereof, are on a basis no less favorable to the Plan than dealings between the Mutual Funds and other shareholders holding shares of the same class as the Shares;
(L) Northern will maintain, or cause to be maintained, for a period of six years from the date of any covered transaction such records as are necessary to enable the persons described in paragraph (M) below to determine whether the conditions of this exemption have been met, except that (i) a prohibited transaction will not be considered to have occurred if, due to circumstances beyond the control of Northern, the records are lost or destroyed prior to the end of the six year period, (ii) no party in interest with respect to the Plan other than Northern shall be subject to the civil penalty that may be assessed under section 502(i) of the Act or to the taxes imposed by section 4975(a) and (b) of the Code if such records are not maintained or are not available for examination as required by paragraph (M) below;
(M)(1) Except as provided in subparagraph (2) of this paragraph (M), and notwithstanding any provisions of section 504(a)(2) and (b) of the Act, the records referred to in paragraph (L) above are unconditionally available at their customary locations for examination during normal business hours by (i) any duly authorized employee or representative of the Department of Labor, the Internal Revenue Service, or the Securities and Exchange Commission, (ii) any fiduciary of the Plan or any duly authorized representative of such fiduciary, (iii) any participant, beneficiary, or union employee covered by the Plan or duly authorized representative of such participant, beneficiary, or union employee, (iv) any employer whose employees are covered by Plan and any employee organization whose members are covered by such Plan.
(2) None of the persons described in paragraphs (M)(1)(ii), (iii) and (iv) shall be authorized to examine trade secrets of Northern or the Mutual Funds, or commercial or financial information which is privileged or confidential; and
(3) Should Northern or the Mutual Funds refuse to disclose information on the basis that such information is exempt from disclosure pursuant to paragraph (2) above, Northern shall, by the close of the thirtieth (30th) day following the request, provide a written notice advising that person of the reasons for the refusal and that the Department may request such information.
For purposes of this proposed exemption,
(A) The term “affiliate” means:
(1) Any person (including corporation or partnership) directly or indirectly through one or more intermediaries, controlling, controlled by, or under common control with the person;
(2) Any officer, director, employee, relative, or partner in any such person; and
(3) Any corporation or partnership of which such person is an officer, director, partner, or employee.
(B) The term “control” means the power to exercise a controlling influence over the management or policies of a person other than an individual.
(C) The term “net asset value” means the amount for purposes of pricing all purchases and sales calculated by dividing the value of all securities, determined by a method as set forth in the Mutual Fund's prospectus and statement of additional information, and other assets belonging to the Mutual Fund, less the liabilities charged to each such Mutual Fund, by the number of outstanding shares.
(D) The term “Independent Fiduciary” means a fiduciary who is: (i) Independent of and unrelated to Northern and its affiliates, and (ii) appointed to act on behalf of the Plan with respect to the in-kind transfer of assets from one or more Mutual Funds to or for the benefit of the Plan. For purposes of this exemption, a fiduciary will not be deemed to be independent of and unrelated to Northern if: (i) Such fiduciary directly or indirectly controls, is controlled by or is under common control with Northern, (ii) such fiduciary directly or indirectly receives any compensation or other consideration in connection with any transaction described in this exemption; except that an independent fiduciary may receive compensation from Northern in connection with the transactions contemplated herein if the amount or payment of such compensation is not contingent upon or in any way affected by the independent fiduciary's ultimate decision, and (iii) more than 2 percent (2%) of such fiduciary's gross income, for federal income tax purposes, in its prior tax year, will be paid by Northern and its affiliates in the fiduciary's current tax year.
(E) The term “Transferable Securities” shall mean securities (1) for which market quotations are readily available (as determined under in Rule 2a-4 of the 1940 Act) and (2) which are not: (i) Securities which, if distributed, would require registration under the 1933 Act: (ii) securities issued by entities in countries which (a) restrict or prohibit the holding of securities by non-nationals other than through qualified investment vehicles, such as the Mutual Funds, or (b) permit transfers of ownership of securities to be effected only by transactions conducted on a local stock exchange; (iii) certain portfolio positions (such as forward foreign currency contracts, futures and options contracts, swap transactions, certificates of deposit and repurchase agreements) that, although they may be liquid and marketable, involve the assumption of contractual obligations, require special trading facilities or can only be traded with the counter-party to the transaction to effect a change in beneficial ownership; (iv) cash equivalents (such as certificates of deposit, commercial paper and repurchase agreements) which are not readily distributable; (v) other assets which are not readily distributable (including receivables and prepaid expenses), net of all liabilities (including accounts payable); and (vi) securities subject to “stop transfer” instructions or similar contractual restrictions on transfer.
(F) The term “relative” means a “relative” as that term is defined in section 3(15) of ERISA (or a “member of the family” as that term is defined in section 4975(e)(6) of the Code), or a brother, sister, or a spouse of a brother or a sister.
1. Northern Trust Corporation (Holding Company) is a bank holding company headquartered in Chicago,
2. Northern is the trustee of the Trust. The Plan is a defined contribution profit sharing plan and includes a section 401(k) arrangement maintained by Northern for certain current and former employees of Northern and Northern Affiliates. As of December 31, 2001, the Plan had approximately 8,817 participants and $854,420,878 in assets.
3. The Plan's Investment Committee (the Committee) determined that the Plan would benefit from the investment of the Trust's assets in certain mutual fund portfolios organized within Northern Institutional Funds (NIF), which is a Delaware business trust and an open-end diversified investment company registered under the 1940 Act. Both NTI and NTGI act as investment advisors of mutual funds offered by NIF.
4. At the time, the Committee considered the Mutual Funds to be an appropriate vehicle for diversifying the Plan's assets. In addition, the Committee determined that investment in the Mutual Funds by the Plan would allow the Plan to continue to use certain in-house investment management services which otherwise might not have been available. As a result, the Committee decided to invest the Plan's assets in the Mutual Funds in accordance with Prohibited Transaction Exemption 77-3 (PTE 77-3, 42 FR 18734 (1977)).
5. One of the mutual funds in which the Plan is currently invested is the Northern Institutional Equity Index Portfolio (S&P 500 Index Portfolio). As of October 30, 2002 the Plan held approximately 18.75 percent of the shares of this Fund. The Committee now believes that the S&P 500 Fund under the Collective Trust is a more appropriate equity index option for the participants under the Plan than the S&P 500 Index Portfolio.
6. The Applicant represents that the Redemption, as proposed, is the appropriate means of effectuating this shift in investment strategy. In this regard, the Applicant represents that effecting a redemption of the Shares for cash, as provided for in PTE 77-3, followed by the reinvestment of such cash in securities similar to the securities underlying the redeemed Shares, would cause the Plan to incur certain costs, including potentially large brokerage expenses. As a result, the Committee represents that the proposed Redemption, being on an in-kind basis having no associated brokerage commission or other fees or expenses (other than customary transfer charges paid to parties other than Northern Affiliates), is a cost-effective means of implementing the investment strategy sought by Northern.
7. If this proposed exemption is granted, Northern anticipates the Redemption of certain Shares offered by the S&P 500 Index Portfolio in the near future. This Mutual Fund is advised by NTI. Northern represents that it is possible that the Plan fiduciaries may at a later date determine that it is in the best interest of the Plan and its participants and beneficiaries to redeem the Plan's interest in other Mutual Funds for which Northern, NTI, NTGI or an affiliate of Northern provides investment advisory services. Consequently, in the event that this proposed exemption is granted, and to the extent that all of the terms and conditions of the exemption, as granted, are met, the relief requested herein shall apply to any such future redemption.
8. The Applicant states that the proposed Redemption involves ministerial transactions to be performed in accordance with pre-established objective procedures. As a result, the Applicant represents that the proposed transactions do not permit the trustee or any affiliate of the trustee to use its influence or control to acquire particular securities from the Mutual Funds. In addition, the Applicant states that all Mutual Fund Shares are offered and sold exclusively through the use of prospectuses and materials provided pursuant to the requirements of the Securities Act of 1933 and the 1940 Act and the rules and regulations thereunder.
9. The Applicant states that, to the extent possible, the Plan will transfer Shares to a Mutual Fund in return for a proportionate share of the securities held by such Mutual Fund. According to the Applicant, the Plan will receive only cash and Transferable Securities pursuant to any Redemption. In this regard, each Transferable Security subject to a Redemption will be
10. The Applicant represents that the Board of Trustees of the Mutual Funds has adopted a procedure for the distribution of in-kind redemption requests in conformance with the no action letter issued by the staff of the Securities and Exchange Commission in Signature Financial Group Inc.
The Signature Financial Letter does not address the marketability of securities distributed in-kind. The range of securities distributed pursuant to this “safe harbor” may therefore be broader than the range of securities covered by SEC Rule 17a-7, 17 CFR 270.17a-7. In granting past exemptive relief with respect to in-kind transactions involving mutual funds, the Department has required that the securities being distributed in-kind fell within Rule 17a-7. One of the requirements of Rule 17a-7 is that the securities are those for which “market quotations are readily available.” SEC Rule 17a-7(a). The Department has determined, and the Applicant agrees, that exemptive relief in this case will also be limited to in-kind distribution of securities for which market quotations are readily available. The value of any other securities will be paid to the plan in cash. Under the exemption requested by the Applicant, the Plan will receive only securities for which market quotations are readily available (as determined pursuant to the Funds' procedures described above) or cash. The Applicant represents that, although the Signature Financial Letter does not necessarily require pro rata distributions, the procedures adopted by the Mutual Funds do require pro rata distributions for the transactions contemplated herein.
11. With the exception noted in footnote 9, the Applicant represents that, for purposes of the Redemption, the values of the Mutual Fund securities will be determined based on the current market price of such securities as of 3:00 p.m. Chicago time on the date of the Redemption request (the Valuation Date). The value of the securities in each Mutual Fund will be determined by using the then-existing valuation procedures established by the Board of Trustees for the Mutual Fund that will comply with Rule 2a-4 of the 1940 Act. In this regard, the Applicant represents that the “current market price” for exchange-traded securities held by the Mutual Funds are generally determined by using the closing prices of the security on its “primary exchange” for that trading day.
12. The Applicant represents that, not later than 30 business days after completion of a Redemption, the Mutual Funds will confirm in writing to the Independent Fiduciary the following: (i) The number of Mutual Fund shares held by the Plan immediately before the Redemption (and the related per Share net asset value and the aggregate dollar value of the shares held); (ii) the identity (and related aggregate dollar value) of each security provided to the Plan upon the Redemption as described above; (iii) the price of each such security for purposes of the Redemption: and (iv) the identity of each pricing service or market-maker consulted in determining the value of such securities. In accordance with the conditions of this proposed exemption, similar procedures will be implemented with respect to any future Redemption of Shares of the Mutual Funds by an employee benefit plan maintained by Northern for the benefit of certain of its employees or the employees of its affiliates.
13. Northern represents that Consulting Fiduciaries, Inc. (CFI), a registered investment adviser under the 1940 Act, has confirmed its independence from Northern and is qualified to serve as an independent fiduciary as that term is defined in Section II. CFI, in turn, represents that it understands and will accept the duties, responsibilities and liabilities in acting as a fiduciary under the Act for the Plan. CFI represents that, if it is appointed as the Independent Fiduciary, it will be responsible for: (i) Analyzing, from an investment perspective, the fairness and reasonableness of the methodology used with respect to the Redemption, (ii) giving its opinion as to the fairness and reasonableness of such methodology, as compared with a redemption for cash and subsequent reinvestment of such cash, based on such analysis. This determination and opinion is set forth in a written report dated April 1, 2002 (the “Report”). Specifically, in the Report, CFI concludes that:
(a) the Redemption would likely avoid certain transaction costs otherwise incurred in a cash redemption;
(b) The Shares and cash associated with the proposed Redemption will be calculated based on the Mutual Fund's respective statements of assets and liabilities, valued in accordance with the pricing procedures established by the Board of Trustees. In this regard, CFI has reviewed a sample spreadsheet developed by Northern to calculate the exact number of Shares and the residual cash to be transferred, and believes the information provided to be conceptually and mathematically correct;
(c) All securities held by the Mutual Funds, other than the non-Transferable Securities, are qualifying securities;
(d) The proposed transactions would be in compliance with the Plan's investment guidelines;
(e) The methodology used to conduct the Redemptions would be comparable to and no less favorable than a similar in-kind redemption reached at arms' length between unaffiliated parties. The Independent Fiduciary represents that, if this proposed exemption is granted and the Redemption is thereafter undertaken, it will be responsible for updating its findings and opinions to confirm whether such findings and opinions are applicable as of the anticipated date(s) of the Redemption. In this regard, CFI states that it will review the Redemption and confirm in writing whether such Redemption was effectuated consistent with the required criteria and procedures set forth in the Report. In carrying out this duty, CFI represents that, if the proposed exemption is granted and the Redemption occurs, it will conduct a post-exemption review, which will include: (i) Reviewing the Plan's current investment policy guidelines, (ii) reviewing the Plan's investment portfolio and the Mutual Fund's assets as of the most recent common date for which such data is available, (iii) estimating whether the Excluded Assets are consistent with the types of securities so defined, and whether the amount of these securities might be material, and (iv) ascertaining whether the policies, procedures and controls established for effectuating the transfers remain unchanged. Moreover, CFI represented that it will conduct a post-transfer review to provide an additional safeguard to the Plan. In this regard, CFI will evaluate and test whether the transfer was effectuated consistent with the required criteria and procedures and confirm this in writing. Consistent with this, CFI represents that if the exemption is granted and the redemption occurs, it will update the findings and opinions as set forth in the Report so as to confirm whether they still apply as of the expected date(s) of the transfer(s). CFI will provide its opinion that the proposed Redemption methodologies are fair to the Plan and reasonable in all material respects. In addition, CFI will state that the proposed Redemption is in the interest of the participants and beneficiaries of the Plan since the anticipated costs savings is likely to be material. CFI will conclude that if the exemption is granted, and all other essential facts and circumstances of the Redemption remain materially unchanged at the time Northern seeks to effectuate the Redemption, it will issue a favorable recommendation regarding the commencement of such effectuation.
14. In summary, it is represented that the proposed Redemption satisfies the statutory criteria for an exemption under section 408(a) of the Act for the following reasons:
(A) The Plan pays no sales commissions, redemption fees, or other similar fees in connection with the Redemption (other than customary transfer charges paid to parties other than Northern and Northern Affiliates);
(B) The assets transferred to the Plan pursuant to the Redemption consist entirely of cash and Transferable Securities. If the proposed transaction from one of the Mutual Funds does not consist entirely of Transferable Securities, the cash distributed would include an amount equal to the Plan's value of assets that are not Transferable Securities and the Plan's value of certain Transferable Securities permitted to be distributed in cash.
(C) With certain exceptions defined below, the Plan receives a pro rata portion of the securities of the Mutual Fund upon a Redemption that is equal in value to the number of Shares redeemed for such securities, as determined in a single valuation performed in the same manner and as of 3:00 p.m. Chicago time on the same day in accordance with the then-existing procedures established by the Board of Trustees of the Mutual Fund which will comply with Rule 2a-4 of the 1940 Act (using sources independent of Northern and Northern Affiliates);
(D) Northern, or any affiliate thereof, does not receive any fees, including any fees payable pursuant to Rule 12b-1 under the 1940 Act, in connection with any redemption of the Shares;
(E) Prior to a Redemption, Northern provides in writing to the Independent Fiduciary a full and detailed written disclosure of information regarding the Redemption;
(F) Prior to a Redemption, the Independent Fiduciary provides written authorization for such Redemption to Northern, such authorization being terminable at any time prior to the date of the Redemption without penalty to the Plan, and such termination being effectuated by the close of business following the date of receipt by Northern of written or electronic notice regarding such termination (unless circumstances beyond the control of Northern delay termination for no more than one additional business day);
(G) Before authorizing a Redemption, based on the disclosures provided by the Mutual Funds to the Independent Fiduciary, the Independent Fiduciary determines that the terms of the Redemption are fair to the participants of the Plan, and comparable to and no less favorable than terms obtainable at arm's length between unaffiliated parties, and that the Redemption is in the best interest of the Plan and its participants and beneficiaries;
(H) Not later than 30 business days after the completion of a Redemption, the relevant Fund will provide to the Independent Fiduciary a written confirmation regarding such Redemption containing:
(i) The number of Shares held by the Plan immediately before the Redemption (and the related per Share net asset value and the total dollar value of the Shares held),
(ii) The identity (and related aggregate dollar value) of each security provided to the Plan pursuant to the Redemption, including each security valued in accordance with the procedures established by the Board of Trustees for the Mutual Funds,
(iii) The current market price of each security received by the Plan pursuant to the Redemption, and
(iv) The identity of each pricing service or market-maker consulted in determining the value of such securities;
(I) The value of the securities received by the Plan for each redeemed Share equals the net asset value of such Share at the time of the transaction, and such value equals the value that would have been received by any other investor for shares of the same class of the Mutual Fund at that time;
(J) Subsequent to a Redemption, the Independent Fiduciary performs a post-transaction review which will include, among other things, a random sampling
(K) Each of the Plan's dealings with: The Mutual Funds, the Investment Advisers, the principal underwriter for the Mutual Funds, or any affiliated person thereof, is on a basis no less favorable to the Plan than dealings between the Mutual Funds and other shareholders holding shares of the same class as the Shares.
Ms. Andrea W. Selvaggio of the Department, telephone (202) 693-8540. (This is not a toll-free number.)
Based on the facts and representations set forth in the application, the Department is considering granting an exemption under the authority of section 408(a) of the Act (or ERISA) and in accordance with the procedures set forth in 29 CFR part 2570, subpart B (55 FR 32836, 32847, August 10, 1990). If the exemption is granted, the restrictions of section 406(a)(1)(A) and (D) of the Act shall not apply to the cash sale, by the Plan, of certain parcels of real estate (the Property) to the Detroit Teamsters Temple Association (DTTA), a party in interest with respect to the Plan and a lessee of a portion of such Property, provided that the following conditions are satisfied:
(a) DTTA pays the fair market value as determined by a qualified, independent appraiser on the date of the transaction.
(b) The sale transaction has been reviewed and approved by an Independent Fiduciary (the Independent Fiduciary), who was appointed by the United States District Court for the Eastern District of Michigan, Southern Division (the Court) for purposes of enforcing a settlement agreement dated January 21, 1998 (the Settlement Agreement).
(c) The sale is a one-time transaction for cash.
(d) The Plan pays no fees or commissions in connection with the sale.
1. The Plan (or the Applicant) is a multiemployer welfare plan established in 1949. It is maintained pursuant to collective bargaining agreements between the Michigan Teamsters Joint Council No. 43 (the Union) and the Motor Carriers Employers Association of Michigan and Michigan Cartagemen's Association (the Associations). The Plan is administered by a board consisting of six trustees (the Trustees), three of whom are appointed by the Union (the Union Trustees) and three of whom are appointed by the Associations (the Association Trustees).
The Plan provides health, disability and death benefits to approximately 17,590 employees of employers that contribute to the Plan, as well as the employees' estimated 30,000 beneficiaries. Most of the Plan's 17,590 participants are covered by collective bargaining agreements between their employers and a local union affiliated with the Union (the Local Union). As of March 31, 2001, the Plan had total assets of $259.9 million.
2. In the past, the Plan has been the subject of scrutiny by the Department. In this regard, after an investigation of the Plan in 1995, the Department concluded that the then-Trustees had violated their fiduciary duties to the Plan. Based on the investigation results, the Department filed an action against the Trustees and the Plan's executive director on February 29, 1996 in the United States District Court for the Eastern District of Michigan in
Several months later, in July 1996, a group of Plan participants sued the then-Trustees and others in
3. The Settlement Agreement provided for the appointment of an Independent Fiduciary who would serve for a term of four years from the date of the Settlement Agreement (
Mr. Marc Gertner, a partner with the firm of Shumaker, Loop and Kendrick, was appointed Independent Fiduciary under the Settlement Agreement. Mr. Gertner has practiced law in the multiemployer area since ERISA was enacted. He is also the editor of the
4. DTTA is a non-profit, “membership” corporation under Michigan law. DTTA has no stockholders, and its members are Local Unions affiliated with the Union. The Union lists DTTA as a subsidiary organization on its form “LM-2” filed with the Department. DTTA serves as the “landlord” for the Union, acquiring and renting property for use by the Union, the Local Unions and their members. DTTA is also an employer whose employees are covered by the Plan.
Robert Rayes, one of the Plan's Union Trustees, is the President of DTTA. The other Union Trustees, William Bernard and H.R. Hillard, are officers of the Local Unions affiliated with the Union.
5. Among the assets of the Plan are two parcels of unimproved, commercial land (Parcel A and Parcel B), located in Detroit, Michigan, and totaling approximately 2.05 acres. Parcel A is located at 2702-2744 Cochrane Street and consists of 24,800 square feet of land that is fully landscaped and fenced. Parcel B consists of 64,480 square feet of land located at 1538-1576 Spruce Street and 1535-1571 Perry Street. Approximately 39% of Parcel B is landscaped and fenced, while the remaining portion is an asphalt parking lot.
The Property is contiguous to other real estate owned by DTTA.
6. The Plan purchased the lots comprising the Property over a long period of time,
7. The Property is located in a section of Detroit where property values, according to Signature Associates (Signature), the Plan's real estate broker, are declining. There is abundant, vacant property and vacant or derelict buildings in the area, including Tiger Stadium. In this regard, the Casino, which opened in 2000, also is located in the general area and has purchased some vacant property for parking and other uses. Although the Casino has approached the Plan in the past about purchasing other real estate that the Plan owns on the east side of Trumbull Avenue, the Casino has not shown any interest in the Property or any other real estate on the west side of Trumbull Avenue.
8. In addition to the Property's declining value, the Applicant represents that the Plan continues to pay property taxes that are a drain on its assets, except for that portion of the Property covered by the lease with DTTA (which includes real estate taxes and other expenses associated with the leased portion). By selling the Property, the Applicant represents that the Plan will be able to convert this asset into cash and then invest the cash in a vehicle more appropriate to the Plan's investment needs. However, the Applicant states that selling the Property is a problem because, although Signature has actively marketed the Property since September 17, 2001 at an asking price of $175,000, only one potential buyer has made an inquiry and no offers have been made.
9. DTTA proposes to purchase the Property from the Plan for cash consideration, to be payable at closing. The purchase price for the Property will reflect the fair market value of such Property, as determined by a qualified, independent appraiser, on the date of the sale. The Plan will not be required to pay any real estate fees or commissions in connection with the transaction. In addition, Mr. Rayes has and will continue to recuse himself as President of DTTA from participating in any of the Plan's decisions concerning the Property to avoid violating the self-dealing and conflict of interest prohibitions under section 406(b)(1) and (b)(2) of the Act.
10. The Property has been appraised by Mr. Laurence G. Allen, a qualified, independent appraiser and President of Allen & Associates, a real estate valuation and consulting firm located in Birmingham, Michigan. Mr. Allen is a member of the American Institute of Real Estate Appraisers and is currently licensed in Michigan as a State Certified Real Estate Appraiser.
Initially, Mr. Allen performed an appraisal of the Property in fee simple on November 15, 2000 and issued a “restricted”
Based on the initial appraisal report, Mr. Allen placed the fair market value of Parcel A at $1.70 per square foot on November 15, 2000. He determined that Parcel A would be worth $42,160 as if vacant, and that the improvements were worth $4,112. Thus, Mr. Allen
Similarly, Mr. Allen determined that Parcel B had a fair market value of $1.70 per square foot on November 15, 2000. He concluded that Parcel B was worth $109,616 as if vacant, and calculated the value of the improvements at $19,397, for a total fair market value of $129,000. Therefore, Mr. Allen placed the total appraised value of the Property, including the improvements, at $175,000 as of November 15, 2000.
In an updated appraisal report dated March 4, 2002, Mr. Allen again utilized the Sales Comparison Approach to valuation in order to calculate the value of the Property in fee simple in an “as is” condition.
Mr. Allen determined that Parcel A had a fair market value of $1.62 per square foot, or $40,176 as if vacant. With the addition of site improvements (
With respect to Parcel B, Mr. Allen determined that the fair market value of this tract was $1.62 per square foot as of February 25, 2002. Mr. Allen concluded that Parcel B was worth $104,458 as if vacant, and calculated the value of the improvements (
Mr. Allen also concluded that the highest and best use of the Property is to provide parking for DTTA, an adjacent owner. In his analysis, Mr. Allen confirmed that the Property has special value to DTTA, and that the $161,000 appraised value takes into account a premium in the value of the Property to DTTA. Prior to the date of closing, Mr. Allen will again reevaluate the Property to determine whether or not there has been a change in the fair market value.
11. As stated above in Representation 2, the Settlement Agreement provided that Mr. Marc Gertner would continue to serve on behalf of the Plan as Independent Fiduciary until as late as January 21, 2002. However, Mr. Gertner concluded before that date that the terms of the Settlement Agreement had been implemented and that his involvement as Independent Fiduciary was no longer necessary. Accordingly, Mr. Gertner asked for and received the Court's permission to resign as Independent Fiduciary, effective October 31, 2001.
Mr. Gertner states that, prior to his resignation, he suggested to the Trustees that all unneeded, undeveloped real estate in the area of the Plan's office be listed for sale because he believed that it would be imprudent for an employee welfare plan to own land in the quantity held by the Plan. Although the Trustees authorized the sale of one parcel of real estate, Mr. Gertner states that his suggestion was met by resistance from some of the Trustees who felt that it was the wrong time to sell the remaining parcels of land comprising the Property, following the initial success of the nearby Motor City Casino (the Casino) and after the Mayor's announcement that he was working on a redevelopment plan for the general area, which included finding a developer and a new use for Tiger Stadium, as well as the rumored addition of motels and restaurants to the area. Mr. Gertner further indicates that, based on this information, he went along with the position of a majority of the Trustees to require that the Plan hold onto the Property because he did not believe it would be prudent or proper to miss out on a major upward surge in property values over the next year or two.
In the 18 months following the October 1999 decision to take the Property off the market, Mr. Gertner represents that messages were sent to the Casino stating that the Trustees were thinking of relisting the Property. In addition, Mr. Gertner indicates that he held discussions with real estate firms, lawyers, accountants and business people in the Greater Detroit area in order to determine what action to take with respect to the Property. After these discussions, Mr. Gertner determined that there was little hard, demonstrable evidence to support an expectation that the value of the Property would appreciate and, by the summer of 2001, he said he concluded that the proposed sale transaction would be in the Plan's best interests.
12. In a letter dated September 26, 2002 (the 2002 Letter), Mr. Gertner provided the Department with an updated and current opinion regarding the appropriateness of the proposed transaction. Mr. Gertner represents in the 2002 Letter that, at the August 28, 2002 meeting of the Trustees, he was redesignated as the Independent Fiduciary for the purpose of evaluating the proposed exemption transaction on behalf of the Plan. Aside from providing additional insight into fluctuating real estate values in the vicinity of the Property, as Independent Fiduciary, Mr. Gertner certifies in the 2002 Letter that it is prudent, proper and in the best interests of the Plan, its participants and their beneficiaries to effect the proposed sale of the Property as soon as possible to the highest responsible third-party offeror or, if none, to DTTA. Mr. Gertner states that he has based this conclusion on his review of the exemption application, as well as on Mr. Allen's independent appraisal of the Property. In addition, Mr. Gertner states that he held discussions with the Plan's Executive Director and the Plan's Counsel. Further, Mr. Gertner represents that he made inquiries of the listing realtor and the Detroit counsel who represented him and the Plan on real estate issues during his tenure as Independent Fiduciary. Based on this due diligence and after consideration of the matters at hand, Mr. Gertner explains that it remains his firm and unequivocal opinion that it is prudent, proper and in the best interests of the Plan participants and beneficiaries to proceed with the proposed sale transaction.
Moreover, Mr. Gertner states that the issue concerning undeveloped property, such as the Property, is how soon it can be sold and converted into investable cash at the highest obtainable price, but at all times in a prudent and proper, ERISA-compliant manner. He opines that following an apparent spurt in values, fanned by hopes of a city plan of revitalization and a rampant rumor-mill, values have trended downward, and that it appears from his due diligence, there is no reason to presume a change in this trend.
Mr. Gertner also asserts that since the Property produces minimal rental income, it is a net cash drain on the Plan due to taxes, insurance and maintenance. Because the Plan has no apparent nor imminent need or use for any of the Property, Mr. Gertner believes that the sale of such Property to a third party or to DTTA will convert a cash-draining asset into cash which can be invested by one or more of the Plan's investment managers in accordance with the Plan's investment objectives in order to produce income to provide benefits to the participants and their beneficiaries. Mr. Gertner notes that the Plan's corpus could always use additional funds and that now appears to be an opportune time for reinvestment.
13. The Applicant represents that the proposed transaction is administratively feasible since the sale will be completed at closing, and no ongoing involvement by the Department is required to safeguard the interests of the Plan's participants and beneficiaries. Furthermore, the Applicant states that the transaction is in the best interests of the Plan's participants and their beneficiaries because it will permit the Plan to convert an asset with a declining value and an annual out-of-pocket tax expense into cash proceeds that can be invested to provide a better return. The Applicant also states that this, in turn, will benefit the Plan's participants and beneficiaries by increasing the Plan's assets and enhancing the Plan's ability to provide benefits and improve benefits. Finally, the Applicant asserts that the transaction is protective of the rights of the participants and beneficiaries because the transaction will be for cash with no deferred payments, involves only a small percentage of the Plan's total assets, and has been reviewed by the Plan's Independent Fiduciary who has determined that such transaction is protective of the interests of the Plan's participants and beneficiaries.
14. In summary, it is represented that the proposed transaction will satisfy the statutory criteria for an exemption under section 408(a) of the Act because:
(a) DTTA will pay the most current appraised value as determined by a qualified, independent appraiser.
(b) The sale transaction has been reviewed and approved by an Independent Fiduciary who was appointed by the Court for purposes of enforcing the terms of the Settlement Agreement.
(c) The sale will be a one-time transaction for cash.
(d) The Plan will pay no fees or commissions in connection with the sale.
The Trustees will provide notice of the proposed exemption to all Plan participants as interested parties, by personal delivery or by first class mail within 10 days of the date of publication of the notice of proposed exemption in the
Ms. Anna M.N. Mpras of the Department, telephone (202) 693-8565. (This is not a toll-free number.)
The Department is considering granting an exemption under the authority of section 4975(c)(2) of the Code and in accordance with the procedures set forth in 29 CFR part 2570, subpart B (55 FR 32836, 32847, August 10, 1990). If the exemption is granted, the sanctions resulting from the application of section 4975 of the Code, by reason of section 4975(c)(1)(A) through (E) of the Code
1. The Plan is a defined contribution profit sharing plan sponsored by Ferdinand G. Mainolfi, Inc. (the Employer). The Employer is engaged in the practice of medicine in Baltimore, Maryland. Dr. Mainolfi is the sole shareholder of the Employer, the only participant in the Plan, and serves as the trustee of the Plan. The Plan had, as of August 31, 2001, total assets of approximately $940,992.
2. The Property which is the subject of this exemption is located in the northeastern quadrant of Carroll County Maryland, less than two miles from the center of Manchester, Maryland, approximately two miles south of the Pennsylvania State Line, and three miles from the Baltimore County line. The neighborhood consists of a diversity of housing styles ranging from larger homes on farms and very large lots to older more modest houses and cottages interspersed with active agricultural operations and forest.
The Property consists of two (2) parcels which border each other. The parcels are known respectively as the Mainolfi Farm (Parcel 1) and the Benjamin Lot (Parcel 2). The Plan acquired these parcels in two transactions with sellers unrelated to Dr. Mainolfi. It is represented that the Plan purchased the Property for long term investment.
It is represented that a sharecropper, who is unrelated to Dr. Mainolfi, has been farming the tillable land on the Property, retaining the income, and paying all related expenses, in exchange for being responsible for the care and maintenance of the Property. It is represented that the Property has never been used personally by Dr. Mainolfi or any other party in interest. Dr. Mainolfi represents that he has made periodic inspections of the Property in satisfaction of his responsibility as trustee.
The Plan acquired Parcel 1 on August 10, 1971, for a purchase price of $32,000 from Mr. and Mrs. William Ensor, Jr. The Plan financed the purchase with a mortgage obtained from the sellers. Parcel 1 is comprised of 37.48 acres of land traversed by a stream. There are open spaces and large, mature shade trees throughout the parcel. A residence and outbuildings are located on an elevated section on the western edge of Parcel 1. There is proximity to a lake with facilities for boating and swimming. Parcel 1 is bounded on the east by woods, on the west by several large tracts of farmland, on the north by a floodplain, and on the south by Parcel 2.
The Plan acquired Parcel 2 on May 9, 1974, for a purchase price of $29,000 from Mr. Donald Benjamin. It is represented that the Plan financed the purchase with a mortgage from Baltimore Federal Savings and Loan. Parcel 2, consisting of 9.3119 acres, is entirely wooded, and is traversed by two streams.
3. This exemption is requested to permit the Plan to sell the Property to Dr. Mainolfi for the appraised fair market value of the Property on the date of sale. Dr. Mainolfi, acting as trustee for the Plan, wishes to sell the Property, which is illiquid.
It is represented that the proposed transaction is feasible in that it involves a one-time sale of the Property for cash. In addition, the Plan will be able to sell the Property without incurring any
In the opinion of Dr. Mainolfi, the proposed transaction is protective of the participant and beneficiaries of the Plan in that the sale price would be based on the fair market value of the Property, as determined by an independent, qualified appraiser, as of the date of the sale.
4. An appraisal of the Property was prepared by Herbert A. Davis, GRI (Mr. Davis) and Donna D. Fried, SRA (Ms. Fried), of Appraisal Connection, Inc., in Baltimore, Maryland. It is represented that Mr. Davis and Ms. Fried are qualified to perform the appraisal of the Property. In this regard, Mr. Davis is a graduate of the Realtors Institute of Maryland and has attended courses offered by the American Institute of Real Estate Appraisers. Ms. Fried has, from 1991 to the present, been licensed by the State of Maryland as a certified residential real estate appraiser. Ms. Fried is a member of the National Association of Real Estate Appraisers, the Maryland Association of Appraisers, Inc., and the Appraisal Institute, SRA.
It is further represented that both appraisers are independent in that neither has a present or prospective interest in the Property, nor any personal interest or bias with respect to the participants in the proposed transaction. It is represented that neither the employment nor the compensation of the appraisers was conditioned upon the appraised value of the Property, nor were the appraisers required to report a predetermined value or base the appraisal on a requested minimum value for the Property.
After physically inspecting the Property, the appraisers concluded the Property is not currently suited to subdivision due to location, zoning, and expense considerations. Taking into account the sales of similar properties in the recent past and having made adjustment to the reported sale prices of these comparable properties, it was determined by the sales comparison method of appraisal that the fair market value of the Property was $400,000, as of February 5, 2002.
5. In summary, the applicant represents that the proposed transaction meets the statutory criteria for an exemption under section 4975(a) of the Code because:
(a) The sale of the Property will be a one-time transaction for cash;
(b) As a result of the sale, the Plan will receive the fair market value of the Property, as determined by an independent, qualified appraiser, as of the date of the sale;
(c) The Plan will pay no commissions, fees, or other expenses as a result of the transaction;
(d) The terms of the sale will be no less favorable to the Plan than those it would have received in similar circumstances when negotiated at arm's length with unrelated third parties;
(e) The Plan will be able to invest the proceeds from the sale of the Property in order to diversify the assets of the Plan; and
(f) The Plan will be able to dispose of the Property which is illiquid.
Because Dr. Mainolfi is the only participant in the Plan, it has been determined that there is no need to distribute the notice of proposed exemption to interested persons. Comments and requests for a hearing are due thirty (30) days after publication of this notice in the
Angelena C. Le Blanc of the Department, telephone (202) 693-8540 (This is not a toll-free number.)
The attention of interested persons is directed to the following:
(1) The fact that a transaction is the subject of an exemption under section 408(a) of the Act and/or section 4975(c)(2) of the Code does not relieve a fiduciary or other party in interest or disqualified person from certain other provisions of the Act and/or the Code, including any prohibited transaction provisions to which the exemption does not apply and the general fiduciary responsibility provisions of section 404 of the Act, which, among other things, require a fiduciary to discharge his duties respecting the plan solely in the interest of the participants and beneficiaries of the plan and in a prudent fashion in accordance with section 404(a)(1)(b) of the Act; nor does it affect the requirement of section 401(a) of the Code that the plan must operate for the exclusive benefit of the employees of the employer maintaining the plan and their beneficiaries;
(2) Before an exemption may be granted under section 408(a) of the Act and/or section 4975(c)(2) of the Code, the Department must find that the exemption is administratively feasible, in the interests of the plan and of its participants and beneficiaries, and protective of the rights of participants and beneficiaries of the plan;
(3) The proposed exemptions, if granted, will be supplemental to, and not in derogation of, any other provisions of the Act and/or the Code, including statutory or administrative exemptions and transitional rules. Furthermore, the fact that a transaction is subject to an administrative or statutory exemption is not dispositive of whether the transaction is in fact a prohibited transaction; and
(4) The proposed exemptions, if granted, will be subject to the express condition that the material facts and representations contained in each application are true and complete, and that each application accurately describes all material terms of the transaction which is the subject of the exemption.
Pension and Welfare Benefits Administration, Labor.
Grant of individual exemptions.
This document contains exemptions issued by the Department of Labor (the Department) from certain of the prohibited transaction restrictions of the Employee Retirement Income Security Act of 1974 (the Act) and/or the Internal Revenue Code of 1986 (the Code).
A notice was published in the
The notice of proposed exemption was issued and the exemption is being granted solely by the Department because, effective December 31, 1978, section 102 of Reorganization Plan No. 4 of 1978, 5 U.S.C. App. 1 (1996), transferred the authority of the Secretary of the Treasury to issue exemptions of the type proposed to the Secretary of Labor.
In accordance with section 408(a) of the Act and/or section 4975(c)(2) of the Code and the procedures set forth in 29 CFR part 2570, subpart B (55 FR 32836, 32847, August 10, 1990) and based upon the entire record, the Department makes the following findings:
(a) The exemption is administratively feasible;
(b) The exemption is in the interests of the plan and its participants and beneficiaries; and
(c) The exemption is protective of the rights of the participants and beneficiaries of the plan.
The restrictions of sections 406(a), 406(b)(1) and (b)(2) of the Act shall not apply effective May 22, 2000 to the past purchase of a certain parcel of unimproved real property (the Property) by the Trust Fund from the Twin City Union No. 512 of Bridge, Structural and Ornamental Workers, Inc. (the Building Corporation), a party in interest with respect to the Trust Fund. This exemption is conditioned upon the adherence to the material facts and representations described in the proposed exemption and upon the satisfaction of the following conditions:
(a) The purchase of the Property by the Trust Fund was a one-time transaction for cash;
(b) The Trust Fund paid no more than the lesser of: (i) $48,000; or (ii) the fair market value of the Property as determined at the time of the transaction;
(c) The fair market value of the Property was established by an independent, qualified, real estate appraiser that was unrelated to the Building Corporation or any other party in interest with respect to the Trust Fund;
(d) The Trust Fund did not pay any commissions or other expenses with respect to the transaction;
(e) Standard Valuations, Inc. (SVI), acting as an independent, qualified fiduciary for the Trust Fund, determined that the transaction was in the best interest of the Trust Fund and its participants and beneficiaries;
(f) SVI monitored various aspects of the purchase of the Property until closing, including the environmental reports concerning the Property, and took whatever action was necessary to protect the interests of the Trust Fund; and
(g) The purchase price paid by the Trust Fund for the Property represented no more than 25 percent of the Trust Fund's total assets at the time of the transaction.
For a more complete statement of the facts and representations supporting the Department's decision to grant this exemption, refer to the Notice of Proposed Exemption published on August 9, 2002 at 67 FR 51878.
Khalif Ford of the Department, telephone (202) 693-8540 (this is not a toll-free number).
The restrictions of sections 406(a) and 406(b) of the Act shall not apply to the (1) purchase, by a welfare plan (the Plan), whose hospital sponsor (the Hospital) is a member of CHCA, of third party insurance, through CHCA, the broker of record and a party in interest with respect to such Plan; and
(2) the receipt of an insurance sales commission by CHCA from the third party insurance company, in connection with the purchase of an insurance policy with the assets of the Plan.
This exemption is subject to the following conditions:
(a) The transactions are effected by CHCA in the ordinary course of its business.
(b) Each Plan pays no more than adequate consideration for an insurance policy that is brokered by CHCA.
(c) Prior to the execution of the transactions, CHCA provides each Hospital, which serves as the independent fiduciary of a Plan it sponsors, with the following written documentation:
(1) A statement setting forth the insurance sales commissions, expressed as a percentage of the gross annual premium payments that will be paid by the insurance company to CHCA with respect to the purchase of the insurance policy;
(2) A description of the charges, fees, discounts, penalties or adjustments which may be imposed under the insurance policy in connection with the purchase, holding, exchange, termination or sale of such policy; and
(3) A full description of CHCA's procedure for offsetting a Plan's allocable portion of insurance sales commissions that are received by CHCA and which are attributable to participant (
(d) Following the receipt of such information, the Hospital independent fiduciary acknowledges receipt of such information to CHCA, in writing, and approves the transactions on behalf of the respective Plan.
(e) On an annual basis, CHCA discloses all direct expenses it has incurred to independent Plan fiduciaries of its member Hospitals, including any Premium Adjustments that have been made.
(f) The transactions are on terms that are at least as favorable to a Plan as those available in arm's length transactions with an unrelated party.
(g) The combined total of all fees, insurance sales commissions and other consideration received by CHCA in connection with the purchase of insurance policies issued by a third party insurer or the provision of services to a Plan is not in excess of “reasonable compensation” within the contemplation of section 408(b)(2) and 408(c)(2) of the Act.
(h) There is no increased cost to a Plan nor any diminution in any benefit received by a Plan participant or beneficiary as a result of CHCA's receipt of insurance sales commissions.
(i) The Plan receives a Premium Adjustment based upon the excess of insurance sales commissions received that are attributable to Participant Paid Premiums over direct costs related to Participant Paid Premiums, if any, incurred by CHCA, in accordance with
(1) At the end of each calendar year, CHCA separates the total premiums paid between each Hospital and its respective Plan and the Participant Paid Premium portion of each total.
(2) CHCA calculates the commissions that are paid based on the Participant Paid Premiums.
(3) CHCA calculates the amount available for the patronage dividend by subtracting aggregate direct expenses incurred under its insurance program from the total commissions.
(4) CHCA calculates a breakdown of the commissions on a percentage basis based upon the ratio of Hospital paid premiums to Participant Paid Premiums.
(5) CHCA allocates the amounts available for the patronage dividend based upon the percentages determined above in subparagraph (i)(4).
(6) CHCA sends a check to the insurer with instructions to allocate such amount of Premium Adjustments attributable to commissions paid on Participant Paid Premiums on a per Hospital basis to be applied against a Plan participant's insurance rate schedule.
(7) CHCA requests written confirmation from the insurer that the Premium Adjustment has been made.
(j) CHCA establishes and maintains a system of internal and external accounting controls for the Premium Adjustment Procedure.
(k) CHCA retains an independent auditor to audit, on an annual basis, the Premium Adjustments made to the affected Plans.
(l) Within 90 days following the publication, in the
(m) CHCA maintains for a period of six years, in a manner that is accessible for audit and examination, the records necessary to enable the persons described in paragraph (n) to determine whether the conditions of this exemption have been met, except that—
(1) A prohibited transaction will not be considered to have occurred if, due to circumstances beyond the control of CHCA, such records are lost or destroyed prior to the end of such six year period; and
(2) No party in interest, other than CHCA, shall be subject to the civil penalty that may be assessed under section 502(i), or the taxes imposed by section 4975(a) and (b) of the Code, if the records are not maintained, or are not available for examination as required by paragraph (m).
(n)(1) Except as provided in subparagraph (n)(2) and notwithstanding anything to the contrary in sections 504(a)(2) and (b) of the Act, the records referred to in paragraph (m) are unconditionally available for examination during normal business hours by—
(A) Any duly authorized employees or representatives of the Department or the Internal Revenue Service;
(B) Any fiduciary of a Plan which has the authority to purchase an insurance policy by or on behalf of a Plan or any duly authorized employee or representative of such fiduciary; and
(C) Any participant or beneficiary of a Plan or any duly authorized employee or representative of such participant or beneficiary.
(2) None of the persons described above in subparagraph (n)(1)(B) or (C) shall be authorized to examine the trade secrets of CHCA or commercial or financial information which is privileged or confidential.
For a more complete statement of the facts and representations supporting the Department's decision to grant this proposed exemption, refer to the notice of proposed exemption published on August 9, 2002 at 67 FR 51880.
The Department received one written comment with respect to the proposed exemption and no requests for a public hearing. The written comment, which was submitted by CHCA, clarifies the operative language of the notice in the following areas:
1.
2.
CHCA requests that subparagraph (c)(3) of the proposal be modified by deleting the term “Plan assets” and substituting language to denote that the reference is meant to include employee contributions (
Therefore, CHCA suggests that subparagraph (c)(3) of the final exemption be revised to read as follows:
(c)(3) A full description of CHCA's procedure for offsetting a Plan's allocable portion of insurance sales commissions that are received by CHCA and which are attributable to participant (
3.
(i) The Plan receives a Premium Adjustment based upon the excess of insurance sales commissions received that are attributable to Participant Paid Premiums over direct costs related to Participant Paid Premiums, if any, incurred by CHCA, in accordance with the Premium Adjustment Procedure, the steps of which are as follows:
(1) At the end of each calendar year, CHCA separates the total premiums paid between each Hospital and its respective Plan and the
(2) CHCA calculates the commissions that are paid based on the Participant Paid Premiums.
(4) CHCA calculates a breakdown of the commissions on a percentage basis based upon the ratio of Hospital paid premiums to Participant Paid Premiums.
(6) CHCA sends a check to the insurer with instructions to allocate such amount of Premium Adjustments attributable to commissions paid on Participant Paid Premiums on a per Hospital basis to be applied against a Plan participant's insurance rate schedule.
The Department concurs with the aforementioned clarifications to the proposal that have been provided by CHCA and it has made the suggested changes to the operative language of the final exemption. The Department also notes the corresponding changes to the Summary of Facts and Representations of the proposed exemption. Accordingly, after giving full consideration to the entire record, including CHCA's written comment, the Department has decided to grant the exemption subject to the modifications and clarifications described above.
For further information regarding the comment and other matters discussed herein, interested persons are encouraged to obtain copies of the exemption application file (Exemption Application No. L-10939) the Department is maintaining in this case. The complete application file, as well as all supplemental submissions received by the Department, are made available for public inspection in the Public Disclosure Room of the Pension and Welfare Benefits Administration, Room N-1513, U.S. Department Labor, 200 Constitution Avenue, NW., Washington, DC 20210.
Ms. Jan D. Broady of the Department, telephone (202) 693-8556. (This is not a toll-free number.)
The attention of interested persons is directed to the following:
(1) The fact that a transaction is the subject of an exemption under section 408(a) of the Act and/or section 4975(c)(2) of the Code does not relieve a fiduciary or other party in interest or disqualified person from certain other provisions to which the exemption does not apply and the general fiduciary responsibility provisions of section 404 of the Act, which among other things require a fiduciary to discharge his duties respecting the plan solely in the interest of the participants and beneficiaries of the plan and in a prudent fashion in accordance with section 404(a)(1)(B) of the Act; nor does it affect the requirement of section 401(a) of the Code that the plan must operate for the exclusive benefit of the employees of the employer maintaining the plan and their beneficiaries;
(2) This exemption is supplemental to and not in derogation of, any other provisions of the Act and/or the Code, including statutory or administrative exemptions and transactional rules. Furthermore, the fact that a transaction is subject to an administrative or statutory exemption is not dispositive of whether the transaction is in fact a prohibited transaction; and
(3) The availability of this exemption is subject to the express condition that the material facts and representations contained in the application accurately describes all material terms of the transaction which is the subject of the exemption.
10 a.m., Thursday, November 21, 2002.
Board Room, 7th Floor, Room 7047, 1775 Duke Street, Alexandria, VA 22314-3428.
Open.
1. Request from a Federal Credit Union to Convert to a Community Charter.
2.
3.
4.
5.
6. NCUA's Annual Performance Plan for 2003.
7. NCUA's Operating Budget for 2003/2004.
8. NCUA's Operating Fee Scale for 2003.
11:15 a.m.
11:30 a.m., Thursday, November 21, 2002.
Board Room, 7th Floor, Room 7047, 1775 Duke Street, Alexandria, VA 22314-3428.
Closed.
1. Three (3) Insurance Appeals. Closed pursuant to Exemptions (6) and (7).
Becky Baker, Secretary of the Board, Telephone: 703-518-6304.
National Science Foundation.
Notice.
Under the paperwork Reduction Act of 1995, Pub. L. 104-13 (44 U.S.C. 3501
Written comments (see below for details) on this notice must be received by January 17, 2003 to be assured of consideration. Comments received after that date will be considered to the extent practicable. Send comments to the address below.
For further information or for a copy of the collection instruments and instructions contact Ms. Suzanne H. Plimpton, Reports Clearance Officer, via surface mail: National Science Foundation, ATTN: NSF Reports Clearance Officer, Suite 295, 4201 Wilson Boulevard, Arlington, VA 22230; telephone (703) 292-7556; e-mail
1.
The National Science Foundation Act of 1950, as subsequently amended, includes a statutory charge to “* * * provide a central clearinghouse for the collection, interpretation, and analysis of data on scientific and engineering resources, and to provide a source of information for policy formulation by other agencies of the Federal Government.” The NSCG is designed to comply with these mandates by providing information on the supply and utilization of the nation's scientists and engineers. Collected data will be used to produce estimates of the characteristics of these individuals. They will also provide necessary input into the SESTAT labor force data system, which produces national estimates of the size and characteristics of the country's science and engineering population. The Foundation uses this information to prepare congressionally mandated reports such as Women, Minorities and Persons with Disabilities in Science and Engineering and Science and Engineering Indicators. A public release file of collected data, designed to protect respondent confidentiality, will be made available to researchers on CD-ROM and on the World Wide Web.
The Bureau of the Census, as in the past, will conduct the study for NSF. Questionnaires will be mailed in October 2003 and nonrespondents to the mail questionnaire will be followed by computer-assisted interviewing. The survey will be collected in conformance with the Privacy Act of 1974 and the individual's response to the survey is voluntary. NSF will insure that all information collected will be kept strictly confidential and will be used only for research or statistical puposes, analyzing data, and preparing scientific reports and articles.
2.
3.
National Science Foundation.
Notice and request for comments.
The National Science Foundation (NSF) is announcing plans to request clearance of this collection. In accordance with the requirement of section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995 (Pub. L. 104-13), we are providing opportunity for public comment on this action. After obtaining and considering public comment, NSF will prepare the submission requesting that OMB approve clearance of this collection for no longer than 1 year.
Written comments on this notice must be received by January 17, 2003, to be assured of consideration. Comments received after that date will be considered to the extent practicable.
Contact Suzanne H. Plimpton, Reports Clearance Officer, National Science Foundation, 4201 Wilson Boulevard, Suite 295, Arlington, Virginia 22230; telephone 703-292-7556; or send e-mail to
These Programs provide a wide range of US undergraduate students with opportunities to conduct hands-on research under the mentorship of graduate students, postdoctoral fellows, and faculty in various types of higher education institutions, including small liberal arts colleges, minority-serving institutions, research universities, as well as non-profit institutions in which science or engineering research is conducted.
The purpose of the proposed evaluation is to examine the impact of undergraduate research experiences supported by NSF on the undergraduate student and faculty and other mentors who participate. Study questions include: Why do undergraduates choose to participate in research activities? What are the perceived advantages and disadvantages to faculty for mentoring undergraduates in research activities? What are the criteria for selecting students for research activities? What kinds of activities comprise undergraduate “research” experiences? How do undergraduate research experiences affect students' decisions about their academic and work future?
Pursuant to delegation by the Commission dated December 29, 1972, published in the
This Board is being established pursuant to the request of High Mountain Inspection Service, Inc., for a hearing regarding an order issued by the NRC staff, dated September 30, 2002, entitled “Order Imposing Civil Monetary Penalty” (67 FR 63,170 (Oct. 10, 2002)).
The Board is comprised of the following administrative judges:
All correspondence, documents and other materials shall be filed with the Panel Judges in accordance with 10 CFR 2.701.
Issued at Rockville, Maryland, this 12th day of November, 2002.
By letter dated October 18, 2002, Portland General Electric Company (PGE) submitted an application to the Nuclear Regulatory Commission (NRC or the Commission), in accordance with 10 CFR part 72, requesting the amendment of the Trojan Independent Spent Fuel Storage Installation (ISFSI) license (SNM-2509) and the Technical Specifications for the ISFSI located at Columbia County, Oregon. PGE is seeking Commission approval to amend the materials license and the ISFSI Technical Specifications to reflect a change in the Holtec International Multi-Purpose Canister (MPC) helium backfill pressure upper limit.
This application was docketed under 10 CFR part 72; the ISFSI Docket No. is 72-17 and will remain the same for this action. The amendment of an ISFSI license is subject to the Commission's approval.
The Commission may issue either a notice of hearing or a notice of proposed action and opportunity for hearing in accordance with 10 CFR 72.46(b)(1) or, if a determination is made that the amendment does not present a genuine issue as to whether public health and safety will be significantly affected, take immediate action on the amendment in accordance with 10 CFR 72.46(b)(2) and provide notice of the action taken and an opportunity for interested persons to request a hearing on whether the action should be rescinded or modified.
For further details with respect to this amendment, see the application dated October 18, 2002, which is available for public inspection at the Commission's Public Document Room, One White Flint North Building, 11555 Rockville Pike, Rockville, MD or from the publically available records component of NRC's Agencywide Documents Access and Management System (ADAMS). The NRC maintains ADAMS, which provides text and image files of NRC's public documents. These documents may be accessed through the NRC's Public Electronic Reading Room on the Internet at
For the Nuclear Regulatory Commission.
The ACRS Subcommittee on Planning and Procedures will hold a meeting on December 4, 2002, Room T-2B1, 11545 Rockville Pike, Rockville, Maryland.
The entire meeting will be open to public attendance, with the exception of a portion that may be closed pursuant to 5 U.S.C. 552b(c) (2) and (6) to discuss organizational and personnel matters that relate solely to internal personnel rules and practices of ACRS, and information the release of which would constitute a clearly unwarranted invasion of personal privacy.
The agenda for the subject meeting shall be as follows:
The Subcommittee will discuss proposed ACRS activities and related matters. The purpose of this meeting is to gather information, analyze relevant issues and facts, and formulate proposed positions and actions, as appropriate, for deliberation by the full Committee.
Oral statements may be presented by members of the public with the concurrence of the Subcommittee Chairman; written statements will be accepted and made available to the Committee. Persons desiring to make oral statements should notify the Designated Federal Official named below five days prior to the meeting, if possible, so that appropriate arrangements can be made. Electronic recordings will be permitted only during those portions of the meeting that are open to the public.
Further information regarding topics to be discussed, the scheduling of sessions open to the public, whether the meeting has been canceled or rescheduled, and the Chairman's ruling on requests for the opportunity to present oral statements and the time allotted therefor can be obtained by contacting the Designated Federal Official, Mr. Sam Duraiswamy (telephone: 301/415-7364) between 7:30 a.m. and 4:15 p.m. (EST). Persons planning to attend this meeting are urged to contact the above named individual at least two working days prior to the meeting to be advised of any potential changes in the proposed agenda.
The ACRS Subcommittee on Safety Research Program will hold a meeting on December 4, 2002, Room T-2B3, 11545 Rockville Pike, Rockville, Maryland.
The entire meeting will be open to public attendance.
The agenda for the subject meeting shall be as follows:
The Subcommittee will continue to discuss the ACRS 2003 report on the NRC-sponsored research programs. The purpose of this meeting is to gather information, analyze relevant issues and facts, and to formulate proposed positions and actions, as appropriate, for deliberation by the full Committee.
Oral statements may be presented by members of the public with the concurrence of the Subcommittee Chairman; written statements will be accepted and made available to the Committee. Persons desiring to make oral statements should notify the Designated Federal Official named below five days prior to the meeting, if possible, so that appropriate arrangements can be made. Electronic recordings will be permitted only during those portions of the meeting that are open to the public.
During the initial portion of the meeting, the Subcommittee, along with any of its consultants who may be present, may exchange preliminary views regarding matters to be considered during the balance of the meeting.
Further information regarding topics to be discussed, whether the meeting has been canceled or rescheduled, and the Chairman's ruling on requests for the opportunity to present oral statements and the time allotted therefor can be obtained by contacting the Designated Federal Official, Dr. Richard P. Savio (telephone 301/415-7363) between 7:30 a.m. and 4:15 p.m. (EST). Persons planning to attend this meeting are urged to contact the above named individual at least two working days prior to the meeting to be advised of any potential changes in the proposed agenda.
Notice is hereby given that the Director, Office of Nuclear Material Safety and Safeguards, U.S. Nuclear Regulatory Commission (NRC), has issued a Director's Decision with regard to a Petition dated November 5, 2001, filed by Mr. Jim Warren from NC WARN, hereinafter referred to as the “Petitioner.” The Petition was supplemented on February 12, 2002, with another letter on the same topic. The Petition concerns the rail transport of spent nuclear fuel by Carolina Power and Light Company (CP&L).
The Petitioner requested that NRC take immediate action to halt the rail shipments of spent nuclear fuel by CP&L due to the terrorist attacks on September 11, 2001, and the continuing threat of terrorism.
As the basis for the request, the Petitioner raised concerns stemming from recent terrorist attacks, and the fact the Petitioner believes the trains transporting the spent nuclear fuel are slow-moving targets. The Petitioner considers such transport to be potentially unsafe for the citizens in his state and especially for those along the transport route.
On January 16, 2002, the NRC Petition was reviewed by a Petition Review Board (PRB). During the review, the PRB decided not to grant the part of the Petition that requested immediate halting of the rail shipments of spent nuclear fuel. Additionally, the letter dated February 12, 2002, supplementing the initial position taken by Mr. Warren and further requesting that NRC halt the rail shipments of spent nuclear fuel, did not change the decision of the PRB.
The NRC sent a copy of the proposed Director's Decision to the Petitioner and to CP&L for comment on August 29, 2002. The Petitioner responded with comments on September 27, 2002, and
The Director of the Office of Nuclear Material Safety and Safeguards has determined that the requests to immediately halt rail shipments of spent nuclear fuel shipments by CP&L be denied. The reasons for this decision are explained in the Director's Decision pursuant to 10 CFR 2.206 [DD-02-05], the complete text of which is available for public inspection at the Commission's Public Document Room, located at One White Flint North, 11555 Rockville Pike (first floor), Rockville, Maryland, and via the NRC's Web site (
NRC staff has determined that the established system of existing regulations for spent nuclear fuel transport, coupled with the additional security measures from the recently issued transportation Orders, adequately protect the transportation of spent nuclear fuel. Thus, the Petition sent by Mr. Warren of NC WARN to halt CP&L rail shipments of spent nuclear fuel has been denied.
A copy of the Director's Decision will be filed with the Secretary of the Commission for the Commission's review in accordance with 10 CFR 2.206 of the Commission's regulations. As provided for by this regulation, the Director's Decision will constitute the final action of the Commission 25 days after the date of the Decision, unless the Commission, on its own motion, institutes a review of the Director's Decision in that time.
For the Nuclear Regulatory Commission.
(67 FR 68702, November 12, 2002).
Closed meeting.
450 Fifth Street, NW., Washington, DC.
Additional meetings.
The Securities and Exchange Commission held a closed meeting on Tuesday, November 12, 2002. The subject matter of that meeting was a regulatory matter bearing enforcement implications.
The Commission will hold an open meeting on Tuesday, November 19, 2002, at 2 p.m., in Room 1C30, the William O. Douglas Room.
Commissioner Glassman, as duty officer, determined that no earlier notice thereof was possible.
The Commission will also hold a closed meeting on Wednesday, November 20, 2002, at 10 a.m.
Commissioners, Counsel to the Commissioners, the Secretary to the Commission, and recording secretaries will attend the closed meetings. Certain staff members who have an interest in the matters may also be present.
The General Counsel of the Commission, or his designee, has certified that, in his opinion, one or more of the exemptions set forth in 5 U.S.C. 552b(c)(5), (7), (9)(A), (9)(B), and (10) and 17 CFR 200.402(a)(5), (7), 9(i), 9(ii) and (10), permit consideration of the scheduled matters at the closed meetings.
The subject matter of the open meeting scheduled for Tuesday, November 19, 2002, at 2 p.m., will be:
1. The Commission will consider whether to propose amendments to implement section 802 of the Sarbanes-Oxley Act of 2002. These proposed rules would specify the information that must be retained by auditors for a five-year period subsequent to the completion of an audit or review of a registrant's financial statements. In particular, the proposed rules would specify that auditors should retain workpapers and other documents that form the basis of the audit or review and memoranda, correspondence, communications, other documents, and records (including electronic records), which are created, sent or received in connection with the audit or review and contain conclusions, opinions, analyses, or financial data related to the audit or review.
2. The Commission will consider proposing amendments to its existing requirements regarding auditor independence to enhance the independence of accountants that audit and review financial statements and prepare attestation reports filed with the Commission. As directed by section 208(a) of the Sarbanes-Oxley Act of 2002, the Commission is considering proposing rules to:
• Revise its regulations related to the non-audit services that, if provided to an audit client, would impair an accounting firm's independence;
• Require that an issuer's audit committee pre-approve all audit and non-audit services provided to the issuer by the auditor of an issuer's financial statements;
• Prohibit partners on the audit engagement team from providing audit services to the issuer for more than five consecutive years;
• Prohibit an accounting firm from auditing an issuer's financial statements if certain members of management of that issuer had been members of the accounting firm's audit engagement team within the one-year period preceding the commencement of audit procedures;
• Require that the auditor of an issuer's financial statements report certain matters to the issuer's audit committee, including “critical” accounting policies used by the issuer; and
• Require disclosures to investors of information related to the audit and non-audit services provided by, and fees paid by the issuer to, the auditor of the issuer's financial statements.
In addition, under the proposed rules to be considered by the Commission, an accountant would not be independent from an audit client if any partner, principal or shareholder of the accounting firm who is a member of the engagement team received compensation based directly on any service provided or sold to that client other than audit, review and attest services.
3. The Commission will consider a recommendation to issue jointly, with the Department of the Treasury and the Board of Governors of the Federal Reserve System, a report to Congress on applying the anti-money laundering requirements of the Bank Secrecy Act to investment companies, as required by section 356(c) of the USA Patriot Act. The proposed report recommends regulations to apply the requirements of the Bank Secrecy Act to investment companies, including certain unregistered investment companies.
The subject matter of the closed meeting scheduled for Wednesday, November 20, 2002, at 10 a.m., will be:
At times, changes in Commission priorities require alterations in the scheduling of meeting items. For further information and to ascertain what, if
It appears to the Securities and Exchange Commission that there is a lack of current and accurate information concerning the securities of 800America.com, Inc. (“800America”), because of questions regarding: The accuracy of assertions by 800America, and by others, in press releases and/or in 800America's public filings, concerning, among other things, the earnings, revenues, expenses, and assets reported by 800America in its public filings since at least January 1, 2000; unregistered offerings being conducted by, among others, 800America's Chief Executive Officer; the criminal history of 800America's Chief Executive Officer; the identity of persons in control of the operations and management of 800America; and the criminal history of a person in control of the operations and management of 800America.
The Commission is of the opinion that the public interest and the protection of investors require a suspension of trading in the securities of the above-listed company.
Therefore, it is ordered, pursuant to section 12(k) of the Securities Exchange Act of 1934, that trading in the above-listed company is suspended for the period from 11:00 a.m. EST, on Wednesday, November 13, 2002 through 11:59 p.m. EST, on Tuesday, November 26, 2002.
By the Commission.
Pursuant to section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The Exchange is proposing to amend sections 101 and 1003 of the Amex Company Guide on a five-month pilot basis to include specific initial and continued listing standards applicable to closed-end funds.
Below is the text of the proposed rule change. Proposed new language is
(a)-(d)—No Change.
i.
ii.
iii.
Commentary .01—No Change.
(a)—No Change.
(b) Limited Distribution—Reduced Market Value—The Exchange will normally consider suspending dealings in, or removing from the list, a security when any one or more of the following conditions exist:
(i)-(iv)—No Change.
In its filing with the Commission, the Amex included statements concerning the purpose of and basis for the proposed rule change, as amended, and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in Sections A, B, and C below, of the most significant aspects of such statements.
The Exchange is proposing to incorporate initial and continued listing standards specifically applicable to closed-end management investment companies registered under the Investment Company Act of 1940 (“closed-end funds”) into the
In order to provide greater clarity to listing applicants and investors, the Exchange is proposing to incorporate revised closed-end fund listing standards into section 101 of the
In addition, the Exchange is proposing to permit the listing of a group of funds listed by a single “fund family” (
• The group has a total market value of publicly held shares or net assets of at least $75,000,000;
• The closed-end funds in the Group have an average market value of publicly held shares or net assets of at least $15,000,000; and
• Each closed-end fund in the group has a market value of publicly held shares or net assets of at least $10,000,000.
The Exchange represents that the group standards would be applicable to any fund that is part of a “fund family” even if the fund is not listed concurrently with other funds in the family, as long as at the time of listing the individual fund, the entire “fund family” is in compliance with the group standards.
The Exchange believes that the “fund family” standards will enable the Exchange to accommodate the needs of fund sponsors, which often prefer to offer, issue and list funds in groups. The Exchange believes that when a fund is part of a larger family, compliance with a $20 million market value of publicly held shares or net asset requirement is not necessary for the fund to be suitable for listing, since the size of the fund family indicates that there is sufficient investor interest in the sponsor's funds.
The Exchange is also proposing to amend section 1003 of the
The Exchange believes that the proposed rule change, as amended, is consistent with section 6(b) of the Act,
The Exchange does not believe that the proposed rule change, as amended, will impose any burden on competition.
The Exchange has neither solicited nor received any written comments with respect to the proposed rule change.
Within 35 days of the date of publication of this notice in the
(A) By order approve such proposed rule change, or
(B) Institute proceedings to determine whether the proposed rule change should be disapproved.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change, as amended, is consistent with the Act. Persons making written submissions should file six copies thereof with the Secretary, Securities and Exchange Commission, 450 Fifth Street, NW., Washington, DC 20549-0609. Copies of the submission, all subsequent amendments, all written statements with respect to the proposed rule change that are filed with the Commission, and all written communications relating to the proposed rule change between the Commission and any person, other than those that may be withheld from the public in accordance with the provisions of 5 U.S.C. 552, will be available for inspection and copying in the Commission's Public Reference Room. Copies of the filing will also be available for inspection and copying at the principal offices of the Amex. All submissions should refer to File No. SR-Amex-2002-55 and should be submitted by December 9, 2002.
The Commission finds that the proposed rule change, as amended, relating to the establishment of the pilot is consistent with the requirements of the Act and the rules and regulations thereunder applicable to a national securities exchange. Specifically, the Commission believes the proposal is consistent with the requirements under section 6(b)(5) of the Act
The Commission finds good cause for approving the pilot prior to the 30th day after publication in the
It is therefore ordered, pursuant to section 19(b)(2) of the Act,
For the Commission, by the Division of Market Regulation, pursuant to delegated authority.
Pursuant to section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
The PCX proposes to adopt new rules for the implementation of its new trading platform for options, PCX Plus. The PCX's proposal includes new rules on priority and allocations of orders, rule changes to permit options Market Makers to conduct their trading activities from locations away from the trading floor, and proposed system changes to accommodate new order handling procedures and automated trade processing.
The text of the proposed rule change is available at the Office of the Secretary, PCX, at the Commission, and on the Commission's website.
In its filing with the Commission, the PCX included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in item IV below. The PCX has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
The Exchange's new trading platform for options, PCX Plus, has been designed to enhance the PCX's current marketplace in several respects. The Exchange believes that this new hybrid model combines the best features of traditional floor-based markets and new electronic trading systems, while preserving a single marketplace with a single book. It allows PCX members to trade as Market Makers from locations away from the trading floor. It replaces the PCX's current priority rules with new ones that the Exchange believes would provide greater incentives for Market Makers to quote aggressively, with tighter markets and greater
The Exchange believes that the proposed new PCX Plus rules would foster aggressive quote competition and would reward market participants who improve PCX quotes with deep and liquid markets. Under the proposal, orders would be allocated to Market Makers on a “size
Under the proposal, member firms would be able to effect crossing transactions on the Exchange in two different ways—either manually on the trading floor or electronically through PCX Plus. The Exchange represents that these proposed rules are designed to assure that no one market participant receives a disproportionate share of a transaction in relation to other market participants who are bidding or offering at the same price. The Exchange represents that the proposed rules are also designed to assure that market participants who display significant trading interest “up front” are rewarded with participation in the trade.
The proposed new structure would involve four types of Market Makers on the Exchange:
(1) Lead Market Makers (“LMMs”) would continue to provide two-sided markets throughout the trading day, while conducting their trading activities on the trading floor of the Exchange;
(2) The Exchange would permit Remote Market Makers (“RMMs”) to enter quotes and effect trades from off-site locations. RMMs would be permitted to select their appointed issues;
(3) Floor Market Makers (“FMMs”), who are registered Market Makers with basic obligations on the Options Floor, would continue to trade as they do today and would supply independently generated Quotes with Size;
(4) The Exchange would permit members to act as Supplemental Market Makers (“SMMs”), who would be provided with tools that allow them to add liquidity at the same price that is then being disseminated by the LMM.
The Exchange believes that the aggregation of quotes from Market Makers on and off the trading floor would result in greater liquidity and narrower bid-ask spreads for all market participants. The Exchange also notes that the proposed changes to its rules are non-discriminatory in that they would permit all Market Makers to submit their quotations via their own proprietary auto-quoting devices if they choose to do so.
The Exchange believes that the proposed new PCX Plus rules are designed to assure fair trade allocation among market participants. LMMs would be eligible to receive up to 40% in guaranteed participation on trades occurring at their disseminated markets. Members would also be entitled to receive up to 40% trade participation if they maintain FIQ status. Although members may receive more than 40% participation by virtue of a pro rata allocation, no member would be eligible to receive more than 40% participation as a guarantee by rule. The proposal is also designed to assure that firms interacting with their customers' orders would receive no more than a 40% share of such orders before the orders are exposed to further competition. Finally, no member would be allocated option contracts in excess of their expressed trading interest.
The Exchange represents that PCX Plus has been designed so that available trading interest on the Exchange can be aggregated by price and size, both of which would be displayed promptly. Currently, only orders for the accounts of Public Customers are eligible to be represented in the PCX order book. Under the proposal, orders for all account types “ including Public Customer, Firm, Market Maker and Non-Member Market Maker—may be represented in the Consolidated Book, along with Quotes with Size of PCX Market Makers (which would be entered for handling as if they were orders). Public Customer orders displayed at the best price would continue to receive first priority on the Exchange.
Market and marketable limit orders routed electronically to PCX Plus would receive immediate executions against bids and offers in the Consolidated Book, unless a specified condition applies, in which case the order (or a portion of it) would be routed to a Floor Broker Hand Held Terminal for execution. The order execution rules and automated processes set forth in proposed PCX rule 6.76 are designed to place limitations on the internalization of order flow while providing added opportunities for competition. The Exchange believes that the proposed order execution rules and automated processes would enhance market efficiency and fairness by offering incentives to all market participants who provide liquidity on the Exchange.
The proposal also establishes new procedures for Market Makers' trading interest that interact electronically with orders in the Consolidated Book. In such situations, a Market Maker who initiates a transaction would be limited
While the proposal is intended to further automate options trading on the Exchange, the Exchange represents that the proposed new system would continue to facilitate open outcry trading as currently practiced today, particularly for large transactions and executions of complex orders and contingency orders. When an order is entered by phone or re-routed to a Hand Held Terminal for execution, a Floor Broker would represent it at the appropriate trading post and would afford priority first to Public Customer interest in the Consolidated Book, then to bids or offers in the trading crowd, and finally to any Firm or Market Maker interest in the Consolidated Book.
The Exchange proposes to phase in the use of PCX Plus in particular issues, while simultaneously phasing out the current Auto-Ex “wheel” functionality. During the phase-in period, the Exchange represents that it would have two sets of trading rules in operation, each applying to a different set of option issues traded on the Exchange.
The PCX believes that the proposed rule change would promote efficiency by reducing the costs associated with transactions on the Exchange, and would promote liquidity and competition on the Exchange by permitting Market Makers to independently make markets either on or off of the PCX's physical trading floor. By allowing PCX Market Makers to conduct their activities off the Options Floor, while retaining the availability of on-floor market making, the Exchange believes that the proposal would permit PCX Market Makers to choose the most efficient and cost-effective way to conduct their businesses. The Exchange believes that the proposal is also designed to assure that the Exchange would attract greater liquidity and improved pricing, thereby making the PCX a more competitive market for all investors.
The Exchange proposes to modify its general rules in PCX rule 4 as follows:
In connection with the implementation of PCX Plus, the Exchange proposes to adopt the following definitions:
PCX Market Makers would be one of the following types: LMM, RMM, SMM, or a FMM. Each type of Market Maker is defined in the following subsections:
(A) Manually, by public outcry; or
(B) Automatically, through an electronic interface device at the LMM's prevailing bid or offering price, with a size to be designated by the SMM.
(A) Manually, by public outcry; or
(B) Automatically through a proprietary auto quoting device.
(A) The financial resources available to the RMM;
(B) The RMM's experience, expertise and past performance in making markets, including the RMM's performance in other securities;
(C) The RMM's operational capability; and
(D) The maintenance and enhancement of competition among Market Makers in each security in which they are appointed.
(A) RMMs with a single seat may have up to eight option issues within their primary appointments.
(B) RMMs with two seats may have up to 18 option issues within their primary appointments.
(C) RMMs with three seats may have up to 30 option issues within their primary appointments.
(D) RMMs with four seats may have up to 44 option issues within their primary appointments.
(E) RMMs with five seats may have up to 60 option issues within their primary appointments.
(F) RMMs with six seats may have up to 78 option issues within their primary appointments.
(G) RMMs with seven seats may have up to 98 option issues within their primary appointment zones.
(H) RMMs with eight seats may have up to 120 option issues within their primary appointments.
The Options Floor Trading Committee would determine uniform limits on the number of issues applicable to RMMs with more than eight seats.
(A) Orders for Public Customers; and
(B) Orders and Quotes with Size for broker-dealers.
LMMs must enter their quotations through an electronic interface with the Exchange, but may also provide quotations by public outcry.
(A) Orders for Public Customers; and
(B) Orders and Quotes with Size for broker-dealers.
These obligations would apply to all of the RMM's appointed issues
If the OAC finds any failure by an RMM to meet minimum performance standards, the OAC would be permitted to take the following actions, after written notice and after opportunity for hearing pursuant to PCX rule 11: (i) Restriction of appointments to additional option issues in the RMM's primary appointment; (ii) suspension, termination, or restriction of an appointment in one or more option issues; or (iii) suspension, termination, or restriction of the RMM's registration in general.
Pursuant to the proposal, if an RMM's appointment in an option issue or issues has been terminated pursuant to this subsection (7) of this PCX rule, the RMM may not be re-appointed as an RMM in that option issue or issues for a period not to exceed six months.
P
The Exchange represents that, in PCX Plus, the Consolidated Book would be opened up to accept not only customer orders, but also broker-dealer orders, Market Maker orders and Market Maker Quotes with Size. All orders and Quotes with Size at the best price would be
The Exchange currently conducts Automated Opening Rotations (“AORs”) pursuant to PCX Rule 6.64(c). Under this PCX rule, only Public Customer orders are eligible to participate in AORs. If a broker-dealer order is eligible to trade at the opening, the applicable series is opened manually, pursuant to PCX rule 6.64(b). The Exchange now proposes to expand the account types of orders eligible for participation in an AOR to include orders for the accounts of broker-dealers and Quotes with Size.
(A) Series for which there are no market or marketable limit orders in PCX Plus.
(B) Series for which there are one or more manual orders being represented in the trading crowd that are likely to be executed during the opening rotation, as determined by an Order Book Official.
(C) Series for which one or more members of the trading crowd has reasonably requested that a manual opening rotation be conducted. Two Floor Officials may deny member requests for manual opening rotations in the absence of reasonable justification for doing so.
(D) Series in which the “imbalance threshold” has been exceeded. Prior to the opening, the Order Book Official, in conjunction with the LMM in the issue, would set for each option issue a number of contracts that constitutes an imbalance threshold,
The Exchange's priority rules for options trading are currently set forth in PCX rule 6.75. Proposed rule 6.75(h) has been renumbered from former rule 6.76 and does not apply to PCX Plus Executions. Once PCX Plus has been completely phased-in, the PCX intends to submit a filing to delete this provision, along with the remainder of rule 6.75, as it would no longer be necessary.
(A)
If there is more than one highest bid for a Public Customer account or more than one lowest offer for a Public Customer account, then such bids or offers, respectively, would be ranked based on time priority.
(B)
(C)
(D)
The Exchange believes that PCX Plus is designed to reward market participants for quoting at the best price with size. The Exchange further believes that PCX Plus encourages quote competition in the Exchange's marketplace at all times—not just upon the entry of an order into the PCX market. Accordingly, the Exchange proposes to adopt new PCX rule 6.76(a)(3), which directly rewards market participants for improving the PCX quote by allocating to them a significant portion of inbound orders.
(i) Once the available Public Customer interest in the Consolidated Book has been filled, an order or Quote with Size that has FIQ status would be entitled to trade against the greater of:
(a) 40% of the next inbound electronic order or orders to buy or sell the same series; or
(b) The total size to which the order or Quote with Size with FIQ status would receive pursuant to a size pro rata allocation.
The 40% allocation would be applied to the quantity remaining after all Public Customer orders have first been executed. In addition, an order or Quote with Size with FIQ status would not be allocated a number of contracts greater than the size of the bid or offer with FIQ status.
(ii) An order or Quote with Size would continue to maintain FIQ status until either:
(a) The entire commitment size has been filled by the execution of a single inbound order;
(b) A portion of the commitment size has been filled by the execution of a single inbound order and the number of contracts executed based on the
(c) A portion of the commitment size has been filled by the execution of multiple inbound orders and the aggregate number of contracts allocated as a result of such executions equals or exceeds 20 contracts (
The Exchange believes that another incentive for market participants to show their best prices and deepest markets at all times is the “size
Under this formula, a participant's size pro rata allocation would be calculated as follows: The size of the order to be allocated is divided by the aggregated quote size. That result is then multiplied by the participant's quote size and the resulting number is the size pro rata allocation.
For example, if there are 200 contracts to be allocated among three Market Makers quoting with the following sizes:
(i) The participant in the pool who has the largest fractional amount (based on the pro rata calculation) would receive the first contract, and each successive contract (if any) would be allocated to each subsequent participant who has the next largest fractional share.
(ii) If the last residual contracts are to be allocated between two or more participants having the same fractional amount, then the participant with the largest initial quote size in the
(iii) If the last residual contracts are to be allocated between two or more participants with the same fractional amount and initial quote size, then the participant with the first time priority in the
The PCX's POETS system currently executes incoming orders automatically in two ways. First, if an inbound order is a market or marketable limit order and there is an order in the PCX order book to trade at the same price, the two orders would execute against each other. Second, if there were no order with priority in the PCX order book at the appropriate price (or there is an insufficient number of contracts at that price), then the incoming order (or a portion of it) would execute against the accounts of Market Makers who are logged onto the Auto-Ex “wheel.”
(A) The size of the inbound order exceeds the Maximum Order Size established pursuant to rule 6.76; or
(B) The inbound order is for the account of a Firm or Non-Member Market Maker and more than 50% of the aggregate trading interest in the Consolidated Book at the execution price is for the account (or accounts) of Public Customers.
If the conditions specified in subsections (A) or (B) apply, the order
(A) If more than 40% of the size in the Consolidated Book is comprised of a single Firm or Non-Member Market Maker order at the price at which the inbound order would trade, and such Firm or Non-Member Market Maker order was entered less than one minute before the inbound order the inbound order would be processed as follows:
(i) The inbound order would first be matched against all available Public Customer interest in the Consolidated Book;
(ii) The inbound order, if not entirely filled, would then satisfy any available interest based on FIQ status and LMM guaranteed participation pursuant to proposed PCX rule 6.76(a);
(iii) The inbound order, if not entirely filled, would then match, on a size
(iv) The balance of the order, if any, would then be routed to a Floor Broker Hand Held Terminal.
(B) If the same conditions set forth in subsection (b)(2)(A) apply but the Firm or Non-Member Market Maker order was entered more than one minute before the inbound order, then:
(i) The inbound order would first be matched against all available Public Customer interest in the Consolidated Book;
(ii) The inbound order, if not entirely filled, would then satisfy any available interest based on FIQ status and LMM guaranteed participation pursuant to proposed PCX rule 6.76(a);
(iii) The inbound order, if not entirely filled, would then match, on a size
(iv) The inbound order, if not entirely filled, would then match, on a size
(v) The balance of the order, if any, would then be either:
(a) Routed to a Floor Broker Hand Held Terminal in the case where the order locks or crosses the national best bid or offer (“NBBO”); or
(b) Executed at the next available price level based on split-price execution.
If neither of the conditions specified in subsection (a) or (b) apply, and the order is no longer marketable, then such order would be represented in the Consolidated Book.
Currently, a Member on the Options Floor may trade against orders in the Consolidated Book by vocalizing a bid or offer and consummating a transaction with the Order Book Official.
(A) The initiating Quote with Size would immediately execute against the Consolidated Book if the percentage of the transaction involving Public Customer interest (as represented in the Consolidated Book) would comprise no more than 40% of the transaction (
(B) If the initiating Quote with Size would effect a transaction against the Consolidated Book and the percentage of the transaction involving Public Customer interest would comprise more than 40% of the transaction, then the initiating Quote with Size would be processed as follows:
(i) The Market Maker's initiating Quote with Size would receive an execution comprising the greater of:
(a) 40% of the Public Customer interest in the Consolidated Book at that price; or
(b) The total size to which the inbound initiating Quote with Size would receive pursuant to a size
(ii) The balance of the Consolidated Book at that price would be displayed for three seconds (via a System Alert Message—SAM) to all Crowd Participants.
(iii) The balance of the Public Customer interest in the Consolidated Book would then be allocated on size
(iv) After the Public Customer interest has been allocated, the initiating Quote with Size would match against all remaining interest in the Consolidated Book. If the initiating Quote with Size
(v) If the remaining Quotes with Size are executable at the next price level, they would be matched against the Consolidated Book on a size
The Exchange currently uses NBBO Step-Up functionality in designated option issues pursuant to PCX rule 6.87(i). PCX rule 6.87(i) permits members on the Auto-Ex system who are quoting at a price inferior to the NBBO, to step-up to the NBBO price in executing incoming orders. This proposal would modify this feature as set forth below. PCX rule 6.87(i) would continue to apply to orders in issues not designated for PCX Plus (during the phase-in period).
(i) Would be engaged or disengaged;
(ii) Would be set to execute inbound orders when the NBBO is crossed or locked; and
(iii) Would be set to execute inbound orders at prices that are one or more trading increments better than the LMM's best bid or offer.
Under proposed PCX rule 6.76(c), PCX Plus would permit the execution of a “Cross Order”, which is defined as two orders with instructions to match the identified buy-side with the identified sell-side at a specified price (“Cross Price”). The proposed rule establishes a crossing mechanism that automates the process that occurs on the Options Floor currently by which a Floor Broker may facilitate orders or cross two orders, regardless of size, via public outcry. The Exchange believes that this new mechanism, in conjunction with the order execution algorithm as described earlier, would foster competition and enhance market efficiency and fairness by offering incentives to all market participants that provide liquidity. The Exchange believes that the proposed crossing mechanism strikes a balance between allowing members to interact with their customer orders that they bring to the market, and providing Market Makers and other market participants with a fair opportunity and incentive to compete on an equal basis with such orders brought to the Exchange. The process in which a Cross Order is matched for execution is described below.
(A) “Cross Order” means two orders with instructions to match the identified buy-side with the identified sell-side at the Cross Price.
(B) “Facilitation Order” means an order as defined in PCX rule 6.47(b).
(C) “PCX Broker” means a Member, Member Organization or Associated Person who enters orders as agent for accounts other than for Market Makers.
(D) “Exposed Order” means the buy or sell side of a Cross Order that has been designated by a PCX Broker as the side to be exposed to the market and that is eligible for execution against all trading interest. Public Customer orders would always be deemed to be the Exposed Order in a Cross Order. In the case of a Cross Order involving a non-customer on both the buy side and sell side, the PCX Broker must designate one side of the Cross Order as the Exposed Order.
(E) “Shadow Order” means an order that is submitted by a PCX Broker to buy or sell a stated number of contracts at a specified price and that is to be executed in whole or in part against an Exposed Order. Any unexecuted portion of a Shadow Order would be canceled.
(A) A PCX Broker would be required to enter into PCX Plus the terms of each Cross Order to be executed electronically on the Exchange. The required terms include the terms of the order for a Public Customer or a broker-dealer and the proposed Facilitation Order (or two orders to be crossed neither one of which is a Facilitation Order (“non-facilitation cross”)), the proposed crossing price, the quantity of the order that the PCX Broker is willing to facilitate (in case of a facilitation cross), and an indication of which order is the Exposed Order. If the proposed Cross Price were outside the BBO at the time of order entry, PCX Plus would reject the Cross Order.
(B) After accepting the Cross Order, PCX Plus would execute the Cross Order in the following sequence.
(i) If the Cross Price is between the BBO:
(a) PCX Plus would immediately display the Exposed Order's price and quantity for 30 seconds. During the 30-second exposure period, there would be no indication that the order is part of an impending cross. PCX Plus places the Shadow Order on hold and such order is not visible except to the PCX Broker that entered the Cross Order.
(b) As long as the Exposed Order is the highest priority order at the best price, other Members and Member Organizations may trade against the Exposed Order during the exposure period. If at any time during the exposure period, the Exposed Order were entirely filled, PCX Plus would cancel the remaining quantity of the Shadow Order and send the PCX Broker a message that the crossing transaction has been completed.
(c) At the end of the exposure period, if the Exposed Order has not been entirely filled, but it is at the best price and has the highest priority, then PCX Plus would execute the remainder of the order against the Shadow Order. PCX Plus would then cancel the remainder of the Shadow Order and send the crossing firm a message that the crossing transaction has been completed.
(d) At the end of the exposure period, if the Exposed Order has quantity remaining and it is not the highest priority order at the market, then PCX Plus would automatically cancel the remainder of the Exposed Order and the Shadow Order and would send the PCX Broker a message that the crossing transaction has been completed.
(ii) If the Cross Price is at the BBO:
(a) The Exposed Order would be matched at the displayed price against all pre-existing trading interest in the Consolidated Book with priority in accordance with proposed rule 6.76(a).
(b) The remainder of the Exposed Order, if any, would be exposed at the limit price for 30 seconds. As long as the Exposed Order has the highest priority at the best price, other Members and Member Organization may trade against the Exposed Order during the 30-second exposure period. If at any time during the exposure period, the Exposed Order were entirely filled, PCX Plus would cancel the remaining quantity of the Shadow Order and send the PCX Broker a message that the crossing transaction has been completed.
(c) At the end of the exposure period, if the Exposed Order has not been entirely filled, but it is at the best price and has the highest priority, then PCX Plus would execute the remainder of the order against the Shadow Order. PCX Plus would then cancel the remainder of the Shadow Order and send the crossing firm a message that the crossing transaction has been completed.
(d) At the end of the exposure period, if the Exposed Order has quantity remaining and it is not the highest priority order at the market, then PCX Plus would automatically cancel the remainder of the Exposed Order and the Shadow Order and would send the PCX Broker a message that the crossing transaction has been completed.
In addition, PCX Brokers would not be permitted to execute as principal orders they represent as agent unless: (i) Agency orders are first exposed on the Exchange for at least 30 seconds; (ii) the PCX Broker utilizes the Crossing Mechanism pursuant to proposed PCX rule 6.76(c)(2); or (iii) the PCX Broker executes the orders pursuant to PCX rule 6.47.
The Exchange represents that, to effectively combine the benefits of open outcry trading with those of PCX Plus, it has defined specific priority rules for handling manual executions in the trading crowd.
(A) Public Customer orders in the Consolidated Book have first priority. Multiple customer orders at the same price are ranked based on time priority.
(B) Bids and offers of the members of the trading crowd have second priority. These bids and offers include those made by Market Makers and Floor Brokers (on behalf of customer and broker-dealer orders they are representing).
(C) Bids and Offers of broker-dealers (including Quotes with Size and orders of Market Makers) in the Consolidated Book have last priority. Multiple bids and offers of broker-dealers would be executed on a size pro rata basis pursuant to proposed PCX rule 6.76(a).
The Exchange's rules for cabinet trading are currently set forth in PCX rule 6.80. The Exchange proposes to retain this PCX rule (renumbered as proposed PCX rule 6.80(b)) and to apply it to issues not traded under PCX Plus during the phase-in period. During that time, proposed PCX rule 6.80(c) would govern cabinet trading applicable to all issues traded on PCX Plus.
(1) Cabinet trading under the following terms and conditions would be available in each series of option contracts open for trading on the Exchange.
(2) Trading shall be conducted in accordance with other Exchange Rules except as otherwise provided herein.
(3) Limit orders at a price of $1 per option contract must be placed on the Exchange in such form and manner as may be prescribed by the Exchange.
(4) Orders for cabinet trading may be placed for the accounts of Public Customers, Firms, and Market Makers, with priority based upon the sequence in which such orders are placed on the Exchange.
(5) Market Makers shall not be subject to the requirements of rule 6.37 for orders placed pursuant to this PCX Rule.
(6) Members submitting opening orders priced at $1 per option contract must comply with the order entry procedures and format requirements as may be prescribed by the Exchange. Opening orders priced at $1 per option contract may be placed on the Exchange for execution only to the extent that the order book in cabinet trades contains unexecuted contract closing orders with which the opening orders immediately may be matched.
The Exchange represents that proposed new PCX Rule 6.90, which describes the operational requirements of PCX Plus,
(1) Stylistic and minor conforming word changes made to reflect the new market structure; and
(2) The omission of rules relating to Eligible Orders, Order Entry Firm Registration, Market Maker Requirements and Eligibility, Market Maker Restrictions on Redirecting Auto-Ex Trades, Price Adjustments, the Auto-Ex Incentive Program, the Auto-Ex Book functions, and the Auto-Ex Between-the Quotes (current PCX rules 6.87(a), 6.87(c)(1), 6.87(e), 6.87(f), 6.87(g), 6.87(k), 6.87(l), and 6.87(m), respectively)
As stated earlier, during the phase-in period, the Exchange would designate option issues that are eligible for trading on PCX Plus. If an option issue has not been designated as eligible for execution on PCX Plus pursuant to this PCX rule, the provisions of PCX rule 6.87 would continue to apply.
The following provisions of PCX rule 6.87 are being incorporated into proposed PCX rule 6.90:
(1) The term “User” means any person or broker-dealer that obtains electronic access to PCX Plus through an Order Entry Firm.
(2) The term “Order Entry Firm” means a member organization of the Exchange that is able to route orders to the Exchange.
The Exchange proposes to amend PCX rule 10.13 to include violations of proposed PCX rule 6.37(g)(2) in the Minor Rule Plan. Proposed new PCX rule 6.37(g)(2) requires that each RMM provide continuous two-sided quotations in each issue in which they are appointed during 60% of all times during which the Exchange is open for options trading. This obligation would apply to all of the RMM's appointed issues collectively, rather than on an issue-by-issue basis. Compliance with this obligation would be determined on a per-calendar-quarter basis. The Exchange believes that the proposed fine schedule is consistent with the fines established for violations by a Market Maker involving the 75% primary appointment zone requirement and the 60% in-person trading requirement.
The Exchange believes that the proposed rule change, as amended, is consistent with section 6(b) of the Act,
The Exchange does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act.
No written comments were solicited or received with respect to the proposed rule change.
Within 35 days of the date of publication of this notice in the
(A) By order approve such proposed rule change, or
(A) Institute proceedings to determine whether the proposed rule change should be disapproved.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change, as amended, is consistent with the Act. 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 PCX. All submissions should refer to File No. SR-PCX-2002-36 and should be submitted by December 9, 2002.
For the Commission, by the Division of Market Regulation, pursuant to delegated authority.
Notice is hereby given that Zero Stage Capital SBIC VII, L.P. (“ZSCVII”), 101 Main Street, 17th Floor, Cambridge, Massachusetts 02142, a Federal Licensee under the Small Business Investment Act of 1958, as amended (“the Act”), in connection with the financing of a small concern, has sought an exemption under section 312 of the Act and section 107.730, Financings which Constitute Conflicts of Interest, of the Small Business Administration (“SBA”) rules and regulations (13 CFR 107.730 (2002)). ZSCVII proposes to provide equity financing to NetKey, Inc. (“NetKey”), 32 Park Drive East, Branford, Connecticut 06405. The financing is contemplated for product development, sales and marketing, and working capital.
The financing is brought within the purview of Section 107.730(a)(1) of the Regulations because Zero Stage Capital VI, L.P., an Associate of ZSCVII, currently owns greater than 10 percent of NetKey, and therefore NetKey is considered an Associate of ZSCVII as defined in Section 107.50 of the Regulations.
Notice is hereby given that any interested person may submit written comments on the transaction to the Associate Administrator for Investment, U.S. Small Business Administration, 409 Third Street, SW., Washington, DC 20416.
Notice is hereby given that Zero Stage Capital SBIC VII, L.P. (“ZSCVII”), 101 Main Street, 17th Floor, Cambridge, Massachusetts 02142, a Federal Licensee under the Small Business Investment Act of 1958, as amended (“the Act”), in connection with the financing of a small concern, has sought an exemption under section 312 of the Act and section 107.730, Financings which Constitute Conflicts of Interest, of the Small Business Administration (“SBA”) rules and regulations (13 CFR 107.730 (2002)). ZSCVII proposes to provide equity financing to First Service Networks, Inc. (“FSN”), 849 International Drive, Linthicum, Maryland 21090. The financing is contemplated for product development and working capital.
The financing is brought within the purview of Section 107.730(a)(1) of the Regulations because Zero Stage Capital VI, L.P., an Associate of ZSCVII, currently owns greater than 10 percent of FSN, and therefore FSN is considered an Associate of ZSCVII as defined in Section 107.50 of the Regulations.
Notice is hereby given that any interested person may submit written comments on the transaction to the Associate Administrator for Investment, U.S. Small Business Administration, 409 Third Street, SW., Washington, DC 20416.
In accordance with a notice received from the Federal Emergency Management Agency, dated November 8, 2002, the above numbered declaration is hereby amended to include Aransas, Hardin, Harris, Jefferson, Orange and San Patricio Counties in the State of Texas as disaster areas due to damages caused by severe storms, tornadoes, and flooding occurring on October 24, 2002, and continuing.
In addition, applications for economic injury loans from small businesses located in Bee, Brazoria, Calhoun, Chambers, Fort Bend, Galveston, Jasper, Liberty, Live Oak, Montgomery, Newton, Polk, Refugio, Tyler and Waller Counties in Texas; and Calcasieu and Cameron Parishes in Louisiana may be filed until the specified date at the previously designated location. All other counties contiguous to the above named primary county have been previously declared.
The economic injury number assigned to Louisiana is 9S5100.
All other information remains the same,
13 CFR 107.1150(a) sets forth the maximum amount of Leverage (as defined in 13 CFR 107.50) that a Small Business Investment Company may have outstanding at any time. The maximum Leverage amounts are
Accordingly, effective the date of publication of this Notice, and until further notice, the maximum Leverage amounts under 13 CFR 107.1150(a) are as stated in the following table:
Federal Highway Administration (FHWA), Department of Transportation.
Notice of intent.
The FHWA is issuing this notice to advise the public that an Environmental Impact Statement will be prepared for a proposed highway project that will traverse the southeastern section of the State of Alabama.
Mr. Joe D. Wilkerson, Division Administrator, Federal Highway Administration, 500 Eastern Boulevard, Suite 200, Montgomery, Alabama 36117-2018, Telephone (334) 223-7370.
The FHWA, in cooperation with the State of Alabama Department of Transportation, will prepare an Environmental Impact Statement (EIS) for Project JPP-1602(507). The proposal is to construct a multi-lane, limited-access roadway from the Alabama/Florida State line at US-231 to the City of Dothan and connecting to US-231 north of the City, a distance of approximately 40 miles.
Alternatives under consideration include: (1) Alternate route locations; and, (2) a no-action or no-build alternative.
The Alabama Department of Transportation and the Alabama Division Office of the Federal Highway Administration had begun the corridor study as an environmental assessment. Letter describing the proposed action and soliciting comments were sent to appropriate Federal, State, and local agencies, and to private organizations and citizens who previously expressed or were known to have interest in this proposal. A series of public meetings have been held. Based upon objections raised through this early coordination, the determination was made that an environmental impact statement is the appropriate level of documentation.
In addition to the early coordination already accomplished, additional meetings will be held as appropriate, and formal public hearings will be held. Public notice will be given of the time and place for the meetings and hearings. The Draft Environmental Impact Statement will be available for public and agency review and comment prior to the public hearings.
To ensure that the full range of issues related to this proposed action are addressed and all significant issues identified, comments and suggestions are invited from all interested parties. Comments or questions concerning this proposed action and the EIS should be directed to the FHWA at the address provided above.
Departmental Offices, Department of the Treasury.
Notice of reporting requirements.
By this Notice, the Department of the Treasury is informing the public that it has revised the mandatory data collections conducted through reporting on the Treasury International Capital (TIC) B-forms. The revisions are effective for all reports beginning with reporting periods ending February 28, 2003 and thereafter; until that time, the current mandatory TIC B-forms and instructions remain in force. The revisions include one new form, BQ-3, revised instructions, and five revised forms: BC/BC(SA), BL-1/BL-1(SA), BL-2/BL-2(SA), BQ-1, and BQ-2. This Notice constitutes legal notification to all United States persons, as defined below, who meet the reporting requirements set forth in this Notice that they must respond to, and comply with, these data collections. United States persons who meet the reporting requirements but who do not receive a set of the revised B-forms and instructions should contact the Federal Reserve Bank of New York, acting as fiscal agent for the Department of the Treasury, to obtain copies. Additional copies of the reporting forms and instructions may be printed from the Internet at:
Internal Revenue Service (IRS), Treasury.
Notice and request for comments.
The Department of the Treasury, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995, Pub. L. 104-13 (44 U.S.C. 3506(c)(2)(A)). Currently, the IRS is soliciting comments concerning an existing notice of proposed rulemaking, Credit for Increasing Research Activities (§ 41(f)).
Written comments should be received on or before January 17, 2003 to be assured of consideration.
Direct all written comments to Glenn P. Kirkland, Internal Revenue Service, room 6411, 1111 Constitution Avenue NW., Washington, DC 20224.
Requests for additional information or copies of regulations should be directed to Carol Savage, (202) 622-3945, or through the Internet (
The following paragraph applies to all of the collections of information covered by this notice:
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid OMB control number. Books or records relating to a collection of information must be retained as long as their contents may become material in the administration of any internal revenue law. Generally, tax returns and tax return information are confidential, as required by 26 U.S.C. 6103.
Internal Revenue Service (IRS), Treasury.
Notice and request for comments.
The Department of the Treasury, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995, Pub. L. 104-13 (44 U.S.C. 3506(c)(2)(A)). Currently, the IRS is soliciting comments concerning an existing final regulation, REG-113572-99 (TD 8933), Qualified Transportation Fringe Benefits (§ 1.132-9(b)).
Written comments should be received on or before January 17, 2003 to be assured of consideration.
Direct all written comments to Glenn P. Kirkland, Internal Revenue Service, room 6411, 1111 Constitution Avenue NW., Washington, DC 20224.
Requests for additional information or copies of regulations should be directed to Carol Savage, (202) 622-3945, or through the Internet (
The burden is reflected in the burden for Form W-2.
The following paragraph applies to all of the collections of information covered by this notice:
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid OMB control number. Books or records relating to a collection of information must be retained as long as their contents may become material in the administration of any internal revenue law. Generally, tax returns and tax return information are confidential, as required by 26 U.S.C. 6103.
Internal Revenue Service (IRS), Treasury.
Notice and request for comments.
The Department of the Treasury, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995, Pub. L. 104-13 (44 U.S.C. 3506(c)(2)(A)). Currently, the IRS is soliciting comments concerning an existing notice of proposed rulemaking, REG-105316-98, Credit for Increasing Research Activities; REG-105316-98; REG-161424-01; and final regulation, REG-107184-00 (TD 8992), Information Reporting for Qualified Tuition and Related Expenses; Magnetic Media Filing Requirements for Information Returns (§§ 1.6050S-1, and 1.6050S-3).
Written comments should be received on or before January 17, 2003 to be assured of consideration.
Direct all written comments to Glenn P. Kirkland, Internal Revenue Service, room 6411, 1111 Constitution Avenue NW., Washington, DC 20224.
Requests for additional information or copies of regulations should be directed to Carol Savage, (202) 622-3945, or through the Internet (
The burden is reflected in the burdens for Form 1098-T and Form 1098E.
The following paragraph applies to all of the collections of information covered by this notice:
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid OMB control number. Books or records relating to a collection of information must be retained as long as their contents may become material in the administration of any internal revenue law. Generally, tax returns and tax return information are confidential, as required by 26 U.S.C. 6103.
Internal Revenue Service (IRS), Treasury.
Notice and request for comments.
The Department of the Treasury, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995, Pub. L. 104-13 (44 U.S.C. 3506(c)(2)(A)). Currently, the IRS is soliciting comments concerning the Tip Rate Determination Agreement (Gaming Industry).
Written comments should be received on or before January 17, 2003 to be assured of consideration.
Direct all written comments to Glenn P. Kirkland, Internal Revenue Service, room 6411, 1111 Constitution Avenue NW., Washington, DC 20224.
Requests for additional information or copies of the Tip Rate determination Agreement (Gaming Industry) should be directed to Carol Savage, (202) 622-3945, or through the Internet (
The following paragraph applies to all of the collections of information covered by this notice:
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid OMB control number. Books or records relating to a collection of information must be retained as long as their contents may become material in the administration of any internal revenue law. Generally, tax returns and tax return information are confidential, as required by 26 U.S.C. 6103.
Notice is hereby given that on November 12, 2002, the Director, Supervision, Office of Thrift Supervision (“OTS”), or her designee, acting pursuant to delegated authority, approved the application of Sound Federal Savings and Loan Association, Mamaroneck, New York, to convert to the stock form of organization. Copies of the application are available for inspection by appointment (phone number: 202-906-5922 or e-mail:
By the Office of Thrift Supervision.
United States Institute of Peace.
Notice.
The Agency announces its Upcoming Spring 2003 Solicited Grant Competition. The solicited grant competition is restricted to projects that fit specific themes and topics identified in advance by the Institute of Peace.
The themes and topics for the Spring 2003 solicited competition are:
•
•
For more information and an application package: United States Institute of Peace, Grant Program, Solicited Grants, 1200 17th Street, NW., Suite 200, Washington, DC 20036-3011, (202) 429-3842 (phone), (202) 833-1018 (fax), (202) 457-1719 (TTY), E-mail:
Application material available on-line now at:
The Grant Program, phone (202) 429-3842.
United States Institute of Peace.
Notice.
The Agency announces its Upcoming Unsolicited Grant Program, which offers support for research, education and training, and the dissemination of information on international peace and conflict resolution. The unsolicited competition is open to any project that falls within the Institute's broad mandate of international conflict resolution.
For more information and an application package: United States Institute of Peace, Grant Program, 1200 17th Street, NW., Suite 200, Washington, DC 20036-3011. (202) 429-3842 (phone). (202) 833-1018 (fax). (202) 457-1719 (TTY). Email:
Application material available on-line now at
The Grant Program, phone (202) 429-3842. E-mail: grant_program@usip,org.
(1) In order to provide the preferential treatment provided for in section 213(b)(2)(A) of the CBERA (19 U.S.C. 2703(b)(2)(A)), as amended by section 3107(a) of the Trade Act of 2002, the HTS is modified as provided in Annex I to this proclamation.
(2) In order to provide for the preferential treatment provided for in section 112(b) of the AGOA (19 U.S.C. 3721(b)), as amended by section 3108(a) of the Trade Act of 2002, the HTS is modified as provided in Annex II to this proclamation.
(3) Any provisions of previous proclamations and Executive Orders that are inconsistent with this proclamation are superseded to the extent of such inconsistency.
(4) This proclamation is effective with respect to eligible articles entered, or withdrawn from warehouse for consumption, on or after August 6, 2002; except that section I of Annex I to this proclamation relating to the dyeing, printing, and finishing of fabrics shall be effective with respect to eligible articles entered, or withdrawn from warehouse for consumption, on or after September 1, 2002; and except that section II of Annex I and Annex II relating to increases in the amount of certain articles eligible for duty-free treatment shall be effective with respect to articles entered, or withdrawn
In proposed rule document 02-28820 beginning on page 68785 in the issue of Wednesday November 13, 2002, make the following correction:
On page 68785, in the third column, in the
In proposed rule document 02-28832 appearing on page 68785 in the issue of Wednesday, November 13, 2002, make the following correction:
On page 68785, in the first column, under the
In notice document 02-27729 beginning on page 66450 in the issue of Thursday, October 31, 2002 make the following correction:
On page 66451, in the first column, in the ninth line from the bottom, “$.50 ” should read “$4.50 ”.
National Highway Traffic Safety Administration (NHTSA), Department of Transportation.
Final rule.
In response to the Transportation Recall Enhancement, Accountability, and Documentation (TREAD) Act of 2000, this document establishes a new Federal Motor Vehicle Safety Standard to improve the information readily available to consumers about tires. The new information will assist consumers in identifying tires that may be the subject of a safety recall. It will also increase public awareness of the importance and methods of observing motor vehicle tire load limits and maintaining proper tire inflation levels for the safe operation of a motor vehicle. This rule applies to all new and retreaded tires for use on vehicles manufactured after 1975 with a gross vehicle weight rating of 10,000 pounds or less and to all new vehicles with a gross vehicle weight rating of 10,000 pounds or less, except for motorcycles and low speed vehicles.
This final rule is effective September 1, 2003. Voluntary compliance is permitted before that time. If you wish to submit a petition for reconsideration of this rule, your petition must be received by January 2, 2003.
Petitions for reconsideration should refer to the docket number and be submitted to: Administrator, Room 5220, National Highway Traffic Safety Administration, 400 Seventh Street, SW, Washington, DC 20590.
For technical and policy issues: Mr. Roger Kurrus, Office of Planning and Consumer Programs. Telephone: (202) 366-2750. Fax: (202) 493-2290. Mr. Joseph Scott, Office of Crash Avoidance Standards, Telephone: (202) 366-2720. Fax: (202) 366-4329.
For legal issues: Nancy Bell, Attorney Advisor, Office of the Chief Counsel, NCC-20. Telephone: (202) 366-2992. Fax: (202) 366-3820.
All of these persons may be reached at the following address: National Highway Traffic Safety Administration, 400 Seventh Street, SW, Washington, DC 20590.
In the Notice of Proposed Rulemaking (NPRM) (66 FR 65536, Docket No. NHTSA-01-11157) published on December 19, 2001, the agency proposed to establish a new standard that would revise the agency's existing tire labeling requirements, as well as its current regulations to improve tire information for light vehicles (vehicles other than motorcycles and low speed vehicles (LSVs) with a gross vehicle weight rating (GVWR) of 10,000 pounds or less) and light vehicle tires and its availability and understandability to consumers. The proposal was substantially based on NHTSA's activities undertaken in response to the Transportation Recall Enhancement, Accountability, and Documentation (TREAD) Act of 2000, including publication of an ANPRM, consideration of comments in response to the ANPRM, data gathering and analysis, and NHTSA sponsored focus groups. The highlights of the proposal were as follows:
(1)
(2)
(3)
(4)
(5)
Also, the agency proposed revising FMVSS No. 110,
The agency proposed compliance dates for tires according to the following schedule: all passenger car (“P-metric”) tires manufactured on or after September 1, 2003, and all light truck (“LT”) tires manufactured on or after September 1, 2004, would have had to meet the new requirements. Additionally, all light vehicles manufactured on or after September 1, 2003, would have had to comply with the final rule. The agency proposed that lead-time to be consistent with the lead-time proposed for the tire performance upgrade. The aforementioned proposals are summarized more fully in section IV. of this document.
The final rule establishes a single standard for light vehicle tires, FMVSS No. 139,
In response to the NPRM, NHTSA received comments from tire and vehicle manufacturers and associations, consumer advocacy groups, and the general public. After considering the public comments and other available information, the agency is modifying certain aspects of its proposal.
In particular, the agency is persuaded, for the reasons explained in section VII.C.1.d. of this document, that there are worker safety and costs issues associated with placement of the full TIN on both sidewalls of the tire. Additionally, there are technical difficulties associated with the reordering of the TIN. These amendments were proposed to aid consumers in determining whether their tires were subject to a recall. Instead, the agency is addressing the visibility of the TIN by requiring that the full TIN, as currently ordered, appear on the “intended outboard sidewall,” if there is one, and that either the full TIN or a partial TIN,
The major changes to the standard (or deviations from the proposal) are as follows:
(1) The agency is not reordering the contents of the TIN.
(2) The agency is requiring the full TIN on the “intended outboard sidewall” of the tire and either the full TIN or a partial TIN, containing all aspects of the TIN except for the date code, on the opposite sidewall.
(3) The agency is eliminating size and format requirements for the vehicle placard and label, except for those specifying certain headings, use of the tire icon, and a limited use of color.
(4) If the vehicle does not have a driver's side-B-pillar and the driver's door edge is too narrow or does not exist, the agency is requiring that the placard or placard and label be affixed to the inward facing surface of the vehicle next to the driver's seating position.
(5) For tires, the agency is providing additional time for compliance with the new requirements as follows: 40% of all covered tires between September 1, 2004, and August 31, 2005, 70% of all covered tires between September 1, 2005, and August 31, 2006, and 100% of all covered tires beginning on September 1, 2006.
NHTSA has decided to adopt the effective date of September 1, 2003, for vehicle labeling. The effective date reflects NHTSA's desire for expedited action on this issue. In view of the urgent need to alert the public to tire and loading information and because the labeling revisions to light vehicles constitute format changes, not performance or vehicle design changes, NHTSA finds that an effective date of September 1, 2003, is reasonable and is in the public interest. The extension of the effective date for tires and the phase-in reflect the reality that the tire manufacturers will need to rework, retool, and replace the tire molds currently utilized. NHTSA believes that this phase-in will permit tire manufacturers to continue to use existing molds while they acquire new ones that reflect the new tire information requirements. Also, by only requiring that 40% of tires comply with the requirements during the first stage of the phase-in, the agency is providing the industry and its mold shops with an achievable task of reworking molds that would not exceed their capacity for such work. By not requiring full
The agency estimates that one-time costs of up to $23.4 million will occur for the tire industry during the phase-in period. These costs will add up to $0.08 per tire during this period. The recurring annual costs are believed to be very minor.
Retread tires are a small part of the market for light vehicles. Because the cost to change the mold to add a second TIN or partial TIN is spread over a smaller market, the cost increase per retread tires will be higher by an unknown amount.
The agency estimates that vehicle costs will increase about $0.15 per vehicle, based on $0.04 per label and $0.11 for adding about 8 pages of information to the owner's manual. With approximately 17 million light vehicles and light trailers being sold annually, the vehicle costs will be about $2.6 million per year on a recurring annual basis.
Thus, total overall costs will be up to $26 million initially, with $2.6 million estimated to occur on a recurring annual basis.
NHTSA believes that this rule will be effective in increasing public awareness of tire safety, particularly, the understanding and maintenance of proper tire inflation and load limits. This rule will also enable consumers to identify the TIN and other tire information more easily for recalls and other notifications. The rule will standardize the location and content of important information relating to proper inflation and load limits and other tire safety concerns. By increasing consumer knowledge and awareness, this rule will lead to reduced tire failures and tire related crashes, and therefore fewer deaths and injuries.
The Transportation Recall Enhancement, Accountability, and Documentation (TREAD) Act of 2000, Pub. L. 106-414, requires the agency to address numerous matters through rulemaking. One of these matters, set forth in section 11 of the Act, is the improvement of the labeling of tires required by section 30123 of title 49, United States Code, to assist consumers in identifying tires that may be the subject of a recall. Section 11 provides that the agency must initiate a rulemaking proceeding for that purpose within 30 days after the enactment of the Act and must complete it not later than June 1, 2002.
Additionally, that section provides that the agency may take whatever additional action it deems appropriate to ensure that the public is aware of the importance of observing motor vehicle tire load limits and maintaining proper tire inflation levels for the safe operation of a motor vehicle. Section 11 states that such additional action may, for example, include a requirement that the manufacturer of motor vehicles provide the purchasers of the motor vehicles information on appropriate tire inflation levels and load limits if the agency determines that requiring such manufacturers to provide that information is the most appropriate way the information can be provided.
The Firestone tire recalls in 2000 highlighted the difficulty that consumers experience when attempting to determine whether a tire is subject to a recall if the tire is mounted so that the sidewall bearing the TIN and size designation faces inward,
The side of a tire bearing the TIN is often mounted so that it faces inward. In the case of whitewall tires, this occurs because the TIN is almost always molded on the blackwall (
When tires are mounted so that the TINs appear on the inward facing sidewalls, motorists have three inconvenient options for finding and recording the TINs. They must either: (1) Slide under the vehicle with a flashlight, pencil and paper and search the inside sidewalls for the TINs; (2) remove each tire, find and record the TIN, and then replace the tire; or (3) enlist the aid of a garage or service station that can perform option 1 or place the vehicle on a vehicle lift so that the TINs can be found and recorded.
As a result of the difficulty and inconvenience of checking the TINs, the percentage of people who respond to a tire recall campaign is reduced and motorists unknowingly continue to drive their vehicles with potentially unsafe tires.
As discussed in the NPRM, surveys indicate that consumers often do not realize that the recommended inflation pressure, which provides the cold tire inflation pressure for the maximum loaded vehicle weight based upon vehicle specification and operation as determined by the vehicle manufacturer, is labeled on the vehicle on a placard or the vehicle certification label by the vehicle manufacturer. Surveys also indicate that a significant number of vehicles are being operated with underinflated, overloaded and/or damaged tires and that the public needs to be reminded to inspect and properly maintain their tires.
The sidewalls of a tire used while significantly under-inflated flex more and the air temperature inside it increases, making the tire more prone to failure. In addition, a significantly under-inflated tire loses lateral traction, making handling and stopping more difficult. Under-inflated tires can contribute to various types of crashes in addition to those resulting from blow outs or tire failure, including crashes which result from: An increase in stopping distance; skidding and/or a loss of control of the vehicle in a curve or in a lane change maneuver; or hydroplaning on a wet surface.
Additionally, under-inflation contributes to tire overloading. Tire overloading describes a condition in which the vehicle is carrying more weight than the tire is rated to carry at a specified inflation pressure. For instance, for every 1-pound per square inch (psi) reduction in inflation pressure, a vehicle's tires suffer a 1.6% reduction in vehicle capacity weight (passenger plus cargo capacity). Overloading can result in handling or steering problems, brake failure, and tire failure.
As discussed in the NPRM, several crash files contain information on “general” tire related problems that precipitate crashes. The more recent of these files are The National Automotive Sampling System—Crashworthiness Data System (NASS-CDS) and the Fatality Analysis Reporting System (FARS). For instance, the NASS-CDS data demonstrate that about one half of one percent of all crashes are caused by these tire problems. The rate of blowout-caused crashes for light trucks (0.99 percent) is more than three times the
NHTSA's existing labeling requirements for new passenger car tires are set forth in Federal Motor Vehicle Safety Standard (FMVSS) No. 109,
NHTSA's labeling requirement for retreaded passenger car tires is set forth in FMVSS No. 117,
NHTSA's labeling requirements for new tires for vehicles other than passenger cars are set forth in FMVSS No. 119,
NHTSA's labeling requirements for new temporary spare non-pneumatic tires for passenger cars are set forth in FMVSS No. 129,
Section 574.5 of Title 49, CFR,
Specifically, § 574.5 requires each new tire manufacturer and each tire retreader to mold a TIN into or onto the sidewall of each tire produced, in the manner and location specified in the section and as depicted in Figures 1 and 2 of that section. The TIN is composed of four groups:
1. The first group represents the manufacturer's identification mark assigned to such manufacturer by this agency in accordance with § 574.6;
2. The second group represents the tire size for new tires; for retreaded tires, the second group represents the retread matrix in which the tire was processed or, if no matrix was used, a tire size code;
3. The third group may, at the option of the manufacturer, be used as a descriptive code for identifying significant characteristics of the tire. If the tire is produced for a brand name owner, the third grouping must identify such brand name owner; and
4. The fourth group identifies the week and year of manufacture. The first two figures identify the week, starting with “01” to represent the first full week of the calendar year; the second two figures represent the year. For example, “2198” represents the 21st week of 1998.
Labeling requirements are also contained in 49 CFR part 567,
Section 567.4 requires vehicle manufacturers to affix to each vehicle a label bearing, among other things, the Gross Vehicle Weight Rating (GVWR), which must not be less than the sum of the unloaded vehicle weight, rated cargo load, and 150 pounds times the vehicles rated seating capacity; and the Gross Axle Weight Rating (GAWR), which is the value specified by the manufacturer as the load carrying capacity of a single axle system.
Paragraph S4.3 of FMVSS No. 110 requires manufacturers to affix a placard to each passenger car's glove compartment door or an equally accessible location showing the vehicle's capacity weight, designated seating capacity, the manufacturer's recommended cold tire inflation pressure for maximum loaded vehicle weight, the manufacturer's recommended tire size designation, and,
FMVSS No. 120 requires that each vehicle show, on the label required by 567.4, or on a tire information label (S5.3.2(b)), the recommended tire size designation appropriate for the GAWR, the size and type designation of rims appropriate for those tires, and the recommended cold inflation pressure for those tires such that the sum of the load ratings of the tires on each axle (when the tires load carrying capacity at the specified pressure is reduced by dividing 1.10, in the case of a tire subject to FMVSS No. 109,
On December 1, 2000, this agency initiated rulemaking, as required by the TREAD Act, by publishing an Advance Notice of Proposed Rulemaking (ANPRM) (65 FR 75222, Docket No. NHTSA-00-8296), which announced our plans to (1) improve the labeling of tires, (2) assist consumers in identifying tires that may be the subject of a recall, and (3) ensure that the public is aware of the importance of observing motor vehicle tire load limits and maintaining proper tire inflation levels for the safe operation of a motor vehicle.
The ANPRM discussed NHTSA's existing tire information labeling and marking requirements, tire identification number requirements, and other labeling requirements such as those contained within its Consumer Information Regulations,
NHTSA solicited comments in areas such as general consumer knowledge and behavior, availability of information to consumers, TIN information, and other tire labeling information. The agency also asked many specific questions related to such matters such as TIN content, readability and location, worker safety and costs issues associated with labeling the TIN on both sidewalls of the tire, loading, plies and cord material, tread wear indicators, UTQGS, speed rating, run-flat and extended mobility tires, tire inflation pressure, and the dissemination of tire safety information.
On December 19, 2001, the agency published an NPRM proposing to establish a new standard that would revise the agency's existing tire labeling requirements, as well as revise its current regulations to improve tire information for light vehicles (vehicles other than motorcycles and low speed vehicles (LSVs) with a GVWR of 10,000 pounds or less) and light vehicle tires and its availability and understandability to consumers.
The NPRM's proposed amendments addressed the following aspects of tire and vehicle labeling: tire markings, the Tire Identification Number (TIN), vehicle placard content and format, placard location, and owner's manual information. The proposal would have extended all passenger car labeling requirements, including those requiring the labeling of combined occupant and cargo weight capacity and designated seating positions, to light trucks and multipurpose passenger vehicles (MPVs) with a GVWR or 10,000 pounds or less. The proposed revisions were based on consideration of comments in response to the ANPRM, data gathering and analysis, and NHTSA sponsored focus groups.
NHTSA proposed that the TIN, size designation, maximum permissible inflation pressure, and maximum load rating be placed on both sides of light vehicle tires. Requiring the TIN and size designation to be on both sides would have ensured that that information would be on the sidewall facing outward, regardless of how the tire is mounted. We also proposed requiring that the TIN appear on both sides of the tire because dual-side labeling was suggested during the congressional hearings concerning the Firestone recall. Also, based on responses to the ANPRM by the tire industry claiming a general “safety hazard” due to unspecified “changes in the manufacturing process,” and reasons provided in the NPRM, we were not then persuaded that there were significant worker safety concerns associated with this proposal. Requiring that the other items of information be on both sidewalls would have aided consumers in maintaining their tires and loading their vehicles.
NHTSA proposed two changes to the TIN. First, the agency proposed to require a re-ordering of information in the TIN so that the first six characters would have contained the information required for determining whether a particular tire is subject to a recall. The first two characters would have reflected the plant code, and the next four characters would have reflected the date code. Second, the agency proposed to require that each character be 6 mm (
The agency proposed four sets of revisions for the presentation of tire inflation pressure and load limit information on the vehicle placard currently required for passenger cars by S4.3 of § 571.110 and to be required for all light vehicles with a GVWR of 10,000 pounds or less.
First, the agency proposed that tire inflation pressure information would have been visually separated by a red colored border on the vehicle placard or, alternatively, been placed on a separate tire inflation pressure label. The vehicle placard would have contained only the information that would have been required in the proposed version of S4.3 (paragraphs (a)-(e)).
(b) Designated seating capacity (expressed in terms of total number of occupants and in terms of occupant for each seat location);
(c) Vehicle manufacturer's recommended cold tire inflation pressure;
(d) Tire size designation for the tire installed as original equipment on the vehicle by the vehicle manufacturer; and
(e) “SEE OWNER'S MANUAL FOR ADDITIONAL INFORMATION”.
Second, the agency also proposed that the tire inflation pressure label and vehicle placard would have had to meet the following three requirements: (1) The tire inflation pressure information on the placards would have been in color—red, yellow, and black on a white background, (2) contained a black and white tire symbol icon in the upper left corner of the placards, 13 millimeters (.51 inches) wide and 14 millimeters (.55 inches), and (3) the placard and label would have both include the phrases “Tire Information” and “See Owner's Manual For Additional Information” in yellow text on a black background.
Third, the agency proposed to replace the vehicle capacity weight statement on the vehicle placard with the following sentence: “[t]he combined weight of occupants and cargo should never exceed XXX pounds.” The “XXX” amount would equal the “vehicle capacity weight” of the vehicle as defined in FMVSS No. 110. The information was the same as that currently required to be placed on the vehicle placard by manufacturers. However, the agency believed that the statement “the combined weight of occupants and cargo should never exceed * * *” would have been easier for consumers to comprehend than a technical phrase such as “vehicle capacity weight.” “Vehicle capacity weight” is not intuitive to consumers and would have required a vehicle operator to look to the owner's manual or standard to understand which factors are included in the calculation of the sum/amount on the placard.
Fourth, the agency proposed to replace the vehicle's recommended tire size designation with the tire size designation for the tire installed as original equipment on the vehicle by the vehicle manufacturer. While in most instances these two numbers would have been identical, this minor revision would have insured that the consumer is provided with the correct tire inflation pressure information for the tire size actually installed on his vehicle as original equipment by the manufacturer.
We proposed these placard changes in response to survey and focus group data which indicated that consumers needed assistance in locating recommended tire pressures for their vehicle's tires and understanding load limits. The use of colors and a visual cue, such as a tire symbol icon, would have aided drivers in noticing and locating this imperative information. By expressing the vehicle's load limit in easily recognizable terms such as “passenger and cargo weight”, as opposed to “vehicle capacity weight” the proposed placard revisions would have also aided consumers in understanding and adhering to load limit guidelines.
The agency proposed that the placard or placard and label containing tire inflation pressure by tire size and other required information specified in S4.3 of FMVSS No. 110 would have been located on the driver's side B-pillar. If a vehicle did not have a B-pillar, then the placard or placard and label would have been placed on the edge of the driver's door. Currently, S4.3 of 571.110 specifies that the vehicle placard be affixed to the glove compartment door or an equally accessible location. A standardized location for tire information placards and labels would have contributed to consumer awareness of recommended tire inflation pressures and load limits.
The agency proposed that owner's manuals for light vehicles contain discussion of the following five subject areas: (1) Tire labeling, (2) recommended tire inflation pressure, (3) glossary of tire terminology, (4) tire care, and (5) vehicle load limits. A single, reliable source containing the proposed required information for the tires and tire safety information listed above would have aided consumers by providing to them, in one centralized location, the information that they needed to properly maintain their tires and adhere to recommended load limits.
Finally, the agency proposed revising FMVSS Nos. 110,
The agency proposed compliance dates for tires according to the following schedule: all P-metric tires manufactured on or after September 1, 2003, and all LT tires manufactured on or after September 1, 2004 would have had to meet the new requirements. Additionally, all light vehicles manufactured on or after September 1, 2003 would have had to comply with the final rule.
NHTSA believed that this proposal would have resulted in minimal costs for tire and manufacturers. NHTSA estimated that the added cost for labeling tires under this proposal would have equaled $0.01 per tire or less and a minimal cost for vehicle labeling (one-time costs to change production for the new vehicle placard and/or tire inflation pressure label, the application of the vehicle placard and/or tire inflation pressure label to all light vehicles, not only passenger cars, and the new owner's manual pages). NHTSA estimated that, adding the total tire and vehicle manufacturing costs together, the total annual costs would have equaled approximately $5.5 million.
NHTSA received over 30 comments on the December 2001 NPRM. The comments were submitted by: vehicle and tire manufacturers and associations, consumer advocacy organizations and individual members of the public. The comments are summarized below.
• Consumers Union (“CU”), General Motors North America (“GM”), DaimlerChrysler (“DC”), International Tire & Rubber Association (“ITRA”) and Tire Association of North America (“TANA”) support maintaining the maximum inflation pressure on the tire sidewalls to prevent overinflation, to provide a level of inflation that is not a durability concern. CU and DC also suggest adding additional wording to the sidewall to direct one to the vehicle placard or owner's manual to the recommended inflation pressure.
• Rubber Manufacturers Association (“RMA”), Japan Automobile Tyre Manufacturers Association, Inc. (“JATMA”), Ford Motor Company (“Ford”), and UN/ECE Group for Global Technical Regulations for Vehicle Tyres (“GRRF”) support removing the maximum inflation pressure from the sidewall. JATMA and Ford state that different inflation pressures indicated by tire and vehicle manufacturers would cause confusion. Ford recommends that the maximum inflation pressure information be replaced with “See Vehicle Placard for Recommended Tire Pressure.” RMA and GRRF believe that the revised vehicle placard and owner's manual information is a better way of communicating correct inflation pressure and removal would encourage users to seek out the correct inflation pressure.
• RMA states that the NHTSA proposal would require establishment of new maximum permissible inflation pressures for light truck tires that are higher than the current marked pressure and are the minimum pressures required for the maximum load rating, not maximum pressures that are increased for operation at specific service conditions (Tire and Rim Association 2001 Yearbook, page 2-04). Also, RMA states that the requirement to stamp “Maximum permissible inflation pressure” on the sidewall of all light truck tires would require the reworking of all existing light truck tire molds. RMA suggests that, for LT tires, “the terminology and definition of “maximum permissible inflation pressure” be replaced by “reference inflation pressure”. RMA recommends that NHTSA adopt the following definition of this term: “
• RMA, GRRF, JATMA, and European Tyre and Rim Technical Organisation (“ETRTO”) suggest that the maximum load rating is of no use to consumers and that it be replaced by a load index as the best way to present information to aid the consumer in choosing a suitable replacement tire for the vehicle. RMA says that the proposed maximum combined weight limit statement to be added to the vehicle placard would help consumers safely manage their vehicle/tire load capabilities.
• RMA, JATMA and ETRTO suggest that information about cord material and number of plies should not be required because they are of no safety benefit to consumers. RMA also says that elimination of these labeling requirements for light vehicle tires would simplify sidewall imagery and provide for better communication of essential information and that this information is not critical to the repair, retread or recycling of passenger car tires which are rarely retreaded today. RMA comments that type and number of plies may be useful for retreading purposes for LT tires and JATMA comments that this information is relevant for consumers purchasing rayon carcass tires.
• ITRA and TANA believe it is important to leave that information on both sidewalls of the tire for the retread, repair and recycling industries. They say that this information enables the retreader or repair technician to select the proper repair materials or procedures for retreading or repairing the tires. Also, if information regarding the number of plies and cord material is removed from the sidewall, technicians cannot determine if the tire has a steel cord sidewall. This information is critical when determining if the tire is a candidate for a zipper rupture and very important in normal handling by a tire technician.
• The Alliance of Automobile Manufacturers (“Alliance”) suggests that tire sidewall labeling for tire speed rating and load index be allowed.
• RMA and Volkswagen state that the agency should require the service description to become part of the tire size information to be placed on the tire sidewall for consumer reference when ordering replacement tires. RMA states that tires are universally labeled with the service description, as illustrated on the agency's proposed tire information placard and label, and that it is very easy for consumers to match the recommended service description on their original equipment tires with the service description on replacement tires. RMA also states that for individuals who might want to see the correlation of load index numbers to pounds and kilograms, simple charts could be included in owner's manuals or made available through tire dealerships and web sites.
• CU, Charles West, Ford, and CIMS agree with the agency that improved access to the TIN would enhance customers' ability to determine whether their tires are covered by a recall or customer satisfaction campaign. CIMS says that the only realistic way to determine if tires are recalled is to locate a dealer who is willing to inspect the tires by putting the vehicle on an overhead lift and rotating all four tires to read the TIN. According to CIMS, this process costs conservatively $100.00 per inspection and could cost consumers hundreds of millions of dollars.
• RMA, JATMA, ITRA, TANA, Rubber Association of Canada (“RAC”), and GRRF oppose the agency's mandating that the TIN be required on both sidewalls of a tire for the following reasons: (1) The current practice in the tire industry is to locate the TIN in the bottom half of the mold and the front portion of the press to enable workers to change the weekly date code with reasonable safety without having to climb into a 350 degree upper press. If the TIN were located in a mold in the upper press as well, then to change the date code in that mold, a manufacturer would require the physical removal of the mold from the press in order to comply with OSHA's lockout/tagout regulation, 29 CFR 1910.147. This process would cause up to eight hours of downtime per press/per week. (2) The initial costs to modify all 101,148 molds for the addition of the second DOT code would be $113.5 million. The ongoing cost of changing the DOT code in the top mold would be an estimated $224.1 million per year. Further, there is insufficient global mold shop capacity to accomplish such a modification in the specified time. (3) The addition of the second TIN is a matter of very occasional convenience, not directly affecting tire safety. There are no other auto products/parts on which a part/serial number must be placed on both sides or in more than one location. (4) Marking the TIN on one sidewall could be accompanied by a requirement to identify which way the tire is to be fitted on vehicles. (5) The TIN is only necessary once the user has established whether a particular manufacturer's tire and size designation are subject to recall.
• RMA suggests three alternatives to the agency's proposal. (1) Require a partial TIN (manufacturer's identification, tire size, and optional information, but not weekly date code) on the opposite sidewall from the regular TIN. (2) Require the TIN on only one side of the tire and also show the TIN for the original equipment tires in an appropriate section of the vehicle owner's manual by means of an adhesive label. (3) Require placement of the TIN on the intended outboard side of P-metric and LT tires as indicated by the tire manufacturers.
• Specialty Tires of America and Coker Tire (“Coker”) request that specialty tires,
• All commenters, except for CU, object to the rearrangement of the TIN.
• The Alliance, American Honda Motor Co., Inc. (“Honda”), RMA, ITRA, TANA, CIMS, ETRTO, RAC, and GRRF request that NHTSA maintain the current TIN groupings, format, and order for the following reasons: (1) A reordering of the TIN would confuse consumers and would require NHTSA to launch a new tire information
• Advocates for Highway & Auto Safety (“Advocates”) does not support the agency's proposal to require each character of the TIN to be 6 mm or
• CU, RMA, ITRA and TANA support the proposed TIN height of 6mm.
• GRRF also stated that the proposed TIN height is not consistent with the draft GTR proposed height requirements.
• ITRA and TANA commend NHTSA for its proposal and believe that all of these changes would help the consumer better understand their tire pressure requirements and load limits.
• RMA supports the proposed content, layout, and placement of placard, including both options. RMA also states that the agency should require a service description (load index and speed rating) as part of the tire size information shown on the vehicle placard and tire inflation pressure label because the information is important to consumers and provides the agency an opportunity for global harmonization of tire regulations.
• CU believes that tire pressure should be listed in “psi” first and “kpa” second. Additionally, CU states that the placard should (1) make clear that the combined weight of occupants and cargo or vehicle capacity weight does not include the vehicle's towing capacity and (2) should define “cold tire pressure.”
• The Alliance, Mitsubishi Motors Corporation (“MMC”), GM, Volkswagen, and Subaru of America, Inc. (“Subaru”) state that vehicle manufacturers should be allowed to provide tire information in addition to the required fields to accommodate different speed and loading conditions, sales practices, tire/rim optional equipment, and more than one set of recommended tire pressures. The Alliance states that it is common practice to exchange tires and wheels between vehicles in a dealership's inventory and distribution of labels with original tire sizes listed would be difficult to distribute so different tire sizes should be listed on the placard. Subaru suggests permitting an additional optional tire size label or notation on the placard to indicate to see the owner's manual for optional tire size tire information.
• MMC requests that additional manufacturer production information be acceptable at the bottom part of the placard.
• The Alliance suggests that manufacturers should be permitted to provide a multi-lingual label if space permits.
• The Alliance and GM suggest that the agency use the ISO approved symbol for “owner's manual” in place of the phrase “See Owner's Manual for Additional Information.” Volkswagen recommends that the tire icon not be required on the vehicle label that shows only seating capacity and vehicle capacity weight because of space limitations and because they believe this information is not tire related.
• Subaru suggests that the placard use the heading “original tire size” instead of just “tire size” and that the text is more legible with upper and lower case lettering and that abbreviations for pounds and kilograms be permitted.
• GRRF states that only the inflation pressure at the maximum loading condition is quoted and that consumers would be better informed by recommended pressures at both a normal loading condition,
• The Alliance supports the option to provide a single placard with all required information. It recommends that, based upon the limited space available for the location requirements, a manufacturer opting to provide tire pressure on a stand-alone label should be permitted to place the remaining information (seating capacity and loading) on the certification label. In support of this recommends, the Alliance says that the label already contains maximum loading capacity information for the vehicle and is required to be located in the driver's door area.
• MMC and GM request that NHTSA not regulate placard design, direction, and dimensions.
• ETRTO suggests that a font size equivalent to Times New Roman 20 be required in the format requirements for the placard since recommended tire inflation pressure information is vital for safety and would, it is hoped, be consulted monthly by consumers.
• The Alliance, GM, Honda suggest that the agency adopt the same location requirement that exists in Part 567.4(c) because flexibility is needed to accommodate vehicles that do not have a conventional B-pillar or do not have enough room on the B-pillar nor sufficient room on the driver's door edge or vehicles which are right-hand drive for postal and special use.
• The Alliance also suggests that the agency include a provision that permits the manufacturer to place the Part 567 certification label on the passenger side if both the required placard and certification label cannot be accommodated on the driver's side.
• Subaru agrees with the agency that the placard should be on the B-pillar, preferably on the driver's side, and suggests that this be specified in the regulatory text.
• GRRF supports the agency's proposed location of the placard and label on the vehicle and the location of the placard/label in relation to each other.
• The Alliance and GM oppose a multi-color requirement, arguing that it presents a significant cost burden, offers no apparent benefits, and is not a caution or warning label. They argue further that the addition of color would not aid the consumer in locating information on the placard/label or the placard/label itself.
• Volkswagen states that it would need to institute separate production and processing of the placard and tire information label because its vehicle information labels are printed on sheets of material with a uniform background color and black print.
• The Alliance and the National Truck Equipment Association (“NTEA”)
• CU supports the agency's proposals and rationale and suggests that it would be useful to consumers for manufacturers to provide recommended optional tire size designations in the manual.
• The Alliance urges the agency to develop tire and tire safety information with standardized language that is to be provided with a vehicle as a brochure or in an owner's manual.
• GM recommends that the agency not require actual recommended inflation pressures in the owner's manual.
• Honda comments that the glossary of tire terminology is unclear as to what terms are non-technical in S3 of Nos. 110 and 139 and suggests that NHTSA not require verbatim text in the owner's manual or that it improve the regulatory text to reflect manufacturers communications with consumers.
• Honda and the Alliance recommend that vehicle manufacturers provide an explanation of the TIN in the owner's manual to achieve improved owner understanding.
• Volkswagen suggests that owner's manual not be required to identify a specific tire size for the vehicle because owner's manuals are printed at the beginning of the production year and available tire sizes can change during the production cycle. Volkswagen also notes that manufacturers should not be restricted from adding additional information to the owner's manual.
• RMA supports the owner's manual requirements and, along with ITRA and TANA, support the requirement that the statements made in Figure 5 for “Steps for Determining Correct Load Limit” of the preamble appear verbatim in the owner's manual. RMA, however, along with GRRF, express concern with the statement suggesting that a pressure higher than the recommended pressure may be needed to support certain loads incorrectly indicates that tires can be loaded above their maximum capacity by increasing pressure and suggest the deletion of this statement.
• RMA recommends that the owner's manual contain instructions on the proper use of the spare tire and that it explain that correct tire inflation is vehicle specific and not contained on the sidewall. RMA also recommends that the owner's manual should define “tire service description” and provides a suggested definition.
• The Alliance suggests that NHTSA drop the proposal to amend the applicability of FMVSS No. 110 and 120 from this rulemaking and instead incorporate them into the NPRM to be published on tire performance requirements.
• RMA and RAC state that the agency, in applying FMVSS No. 110 to light vehicles other than passenger cars, should not relax the current standards for tire selection and that load service factor of 1.10, applicable to passenger car tires for use on light trucks, vans, SUVs, and trailers, contained in S5.1.2 of FMVSS No. 120 be maintained in the new rule.
• NTEA disagrees with NHTSA's estimate that there are only 4 small passenger car and light truck vehicle manufacturers in the U.S. It states that its members include close to 1,000 final stage manufacturers. NTEA also states that NHTSA's cost estimates for production and installation of the new placards and labels are not accurate for multi-stage produced vehicles and it estimates that the proposed placard would cost at least $0.25 in addition to scales and other equipment needed to determine the correct vehicle weight.
• GM states that the proposed placard/label would cost 20 cents more per label in addition to an acquisition cost of special color printers at $300,000.
• CU agrees with NHTSA's cost assessments of this rulemaking.
• The Alliance states that NHTSA has not accounted for the costs for computer programming code and software revisions necessary to implement changes to the TIN, including tracking dual formats, lost time, labor and resources due to errors and complexities associated with dual TIN orderings.
• RMA, GRRF, ITRA, TANA, and ETRTO believe that NHTSA substantially underestimated the costs to the tire industry. They say that these costs include loss of production, costs of modifications, and time and production costs to take molds out of production weekly to add second date code.
• RMA estimates the global cost to reorder the TIN on existing molds would be $83.9 million. The cost to add a second TIN to approximately 100,000 relevant molds (not including truck and motorcycle molds) is estimated at $113.5 million. GRRF estimates costs to U.S. tire industry at $100 million annually.
• ETRTO estimates that the costs of reworking up to 250,000 molds at $150 million and the total costs at $220 million, taking into account loss of production associated with adding a second TIN.
• ITRA and TANA note that the economic impact of this proposal, which they estimate would cost retreaders a minimum of $250 per mold, would be especially detrimental to retreaders as small business and would leave only the largest retreaders in business.
• The Alliance recommends that NHTSA establish a uniform September 1, 2004 effective date for all vehicle requirements to permit individual vehicle manufacturers to phase-in the labeling and owner's manual information changes on a practicable and cost effective timetable. The Alliance and other vehicle industry members note that the agency should allow optional early compliance.
• GM states that an appropriate phase-in schedule cannot be determined for the changes in applicability of FMVSS Nos. 110 and 120 until they have been given an opportunity to assess the impact of the tire performance NPRM.
• RMA, RAC, ITRA, TANA and GRRF suggest that a phase-in of more than five years would be necessary to implement the changes proposed in the NPRM because the mold life expectancy is up to five years and there is not enough mold shop capacity in the world to rework the existing molds to comply with the proposed labeling. GRRF specifically requests that the effective dates be revised to apply to new tire designs, but not to existing designs,
• The Alliance and GM state that providing such a definition would serve no safety need and would interfere with what is a competitive matter among manufacturers. Further, they state that the agency's efforts to specify load limits on the vehicle placard and discussing load limits in the owner's manual adequately address the safety aspects of vehicle loading and obviate any need for agency to define “reasonable amount of luggage.
• ERTRO suggests that the agency consider specifying “maximum luggage capacity” instead of a “reasonable amount of luggage” to avoid possibility of overloading.
• GRRF opposes the agency's deferring to vehicle manufacturers the responsibility for ensuring that a vehicle is equipped with tires which have a load capacity that are suitable for the declared maximum permissible mass of the vehicle or each axle of the vehicle.
• CU states that it supports NHTSA's decision to forego harmonizing or adopting foreign or international provisions because of the overriding need for providing safety information in a timely manner.
• The Alliance requests that NHTSA allow the inclusion of load indexes and speed ratings on tires.
• RMA states that the only labeling requirement in foreign standards to be including for consideration is the service description that is required by many governments around the world.
• GRRF asks NHTSA to reconsider the content of the draft harmonized regulation for tires. GRRF states that the draft is based on a global industry review of existing standards and regulations in many countries, including USA, most of Europe, Japan, China, Brazil, and Saudi Arabia and that it does not reflect the lowest common denominator in terms of performance requirements but instead seeks to move forward in the area of harmonization of tire markings in order to inform and aid the consumer.
• ETRTO suggests that complete harmonization of labeling requirements with those of ECE 30 and 54 are essential and that the safety aspects of these regulations are self-explaining since they supply a complete description of the performance characteristics of the tire and therefore allow all information necessary for an informed choice of replacement tires.
• The Alliance, GM, RMA, ITRA, TANA, GRRF and ETRTO oppose a prohibition on non-required information being placed on tires because of the global nature of the industry, because manufacturers use unique markings for marketing and production purposes, and because this action would possibly incur retaliation from other countries or constitute a technical barrier to trade.
On March 13 and April 11, 2002, NHTSA personnel visited the Bridgestone-Firestone (BFS) tire manufacturing plant in Aiken, SC. This plant is the newest and most technologically advanced BFS plant and is said to be representative of the future in tire manufacturing technology. NHTSA's visit included hearing an overview of plant operations and an explanation of the tire manufacturing process, and being taken on a plant tour. During the discussion and tour, the NHTSA personnel were shown and heard descriptions of all of the key steps in the manufacturing processes, as well as quality control and safety measures. Of particular interest to the NHTSA personnel was the process of changing the TIN in the tire molds.
The presses used by BFS at this plant are the segmented hydraulic vertical lift machines. Prior to this visit, NHTSA personnel had only witnessed clam-shell presses first-hand in operation at older tire plants. These segmented presses, along with the older clam-shell presses, are the most widely used in the industry. According to RMA, the segmented machines represent an increasing percentage of presses used in the U.S. and are today considered the industry standard. Additionally, the segmented machines are more versatile than other types of presses since they can be used for molding all tires, including the higher speed rated tires requiring nylon caps that the older types of presses, including the clam-shell, cannot accommodate.
The segmented machines seen by NHTSA during the tour have a lower press and an upper press. The lower press is fixed in place directly below the upper press that is raised and lowered on a hydraulic lift. The height of the upper press at the full open position is approximately 6-7 feet above from the ground. The presses are hydraulic so they must either be in the closed or open position, they cannot be positioned in between these two extremes.
BFS provided NHTSA with a demonstration of the changing of the TIN date code in the lower mold. Workers change the TIN date by quickly leaning over the lower press and, using a hand tool, replace the old plug and/or plate with a new plate or plug. The process is not automated, according to BFS, due to the fragility of the mold.
On this type of machine, it appeared to NHTSA that any changes to the upper molds would need to be done with the molds removed from the upper press because the heat and inaccessibility of the upper mold would make it too dangerous or simply impossible, to change upper mold TINs in the upper press. This is because changing the TIN in the upper molds while the machine is in use would entail the technician's standing on the lower press while placing his head and arms directly up into the upper press. This could not be done while the machine is in use because the molds heat to approximately 350 F degrees and operate under up to 185,000 pounds of pressure. Further, the molds weigh up to 5,000 pounds each. To remove the upper mold from the machine, the upper press must be placed in the lowered position and the mold must be lifted from above using a small forklift. According to BFS, the down time necessary to enable workers to replace the date code is estimated at 4 to 6 hours. This covers allowing the mold to cool, removing the mold from the press, replacing the mold in the press, and reheating the mold. In this particular plant, there are 153 presses. This large number would, in BFS's view, make the replacement of the full TIN on a weekly basis, to accommodate the weekly changing of date code, logistically impossible. According to BFS, molds are currently removed from the upper press approximately every 20 to 30 days for cleaning.
The final rule establishes a single standard for light vehicle tires, FMVSS No. 139,
The rule applies to all new and retreaded tires for passenger cars, multipurpose passenger vehicles, trucks, buses and trailers with a gross vehicle weight rating (GVWR) of 4,536 kg (10,000 pounds) or less, manufactured after 1975, and to all passenger cars, multipurpose passenger vehicles, trucks, buses and trailers with a gross vehicle weight rating (GVWR) of 4,536 kg (10,000 pounds) or less.
NHTSA has decided that the size designation, maximum permissible inflation pressure, and maximum load rating must be placed on both sides of light vehicle tires. The full TIN will be required on the “intended outboard side” of the tire and either the full TIN or a partial TIN, containing all aspects of the TIN except for the date code, will be required on the opposite side.” “Intended outboard sidewall” is defined in FMVSS No. 139 as the sidewall that contains a whitewall, bears white lettering, or bears manufacturer or model name molding that is higher or deeper than that on the other sidewall of the tire. If a tire does not have an intended outboard sidewall, the tire must be labeled with the full TIN on one sidewall and with either the full TIN or a partial TIN on the other sidewall. Requiring that a form of the TIN, whether the full or partial TIN, be on both sides will ensure that important consumer information will be on the outward facing sidewall, regardless of how the tire is mounted. Requiring that the other items of information be on both sidewalls will aid consumers in properly maintaining their tires and loading their vehicles.
NHTSA is making another change to the TIN. The rule requires that each character in the TIN be 6 mm (
The agency is making four sets of revisions to the presentation of tire inflation pressure and load limit information on the vehicle placard required for passenger cars by S4.3 of § 571.110 and to be required for all light vehicles with a GVWR of 10,000 pounds or less under this proposal.
First, the agency is requiring that tire inflation pressure information be visually separated by a red colored border from the other information on the existing vehicle placard or, alternatively, be placed on a separate tire inflation pressure label. The vehicle placard will contain only the information specified in the proposed version of S4.3 (paragraphs (a)-(e)).
(b) Designated seating capacity (expressed in terms of total number of occupants and in terms of occupant for each seat location);
(c) Vehicle manufacturer's recommended cold tire inflation pressure;
(d) Tire size designation for the tire installed as original equipment on the vehicle by the vehicle manufacturer; and
(e) “SEE OWNER'S MANUAL FOR ADDITIONAL INFORMATION''.
Second, the agency is requiring that the tire inflation pressure label and vehicle placard meet the following three requirements: (1) The tire inflation pressure information is in color—red, yellow, and black on a white background, (2) contain a black and white tire symbol icon in the upper left corner, 13 millimeters (.51 inches) wide and 14 millimeters (.55 inches) tall/high, and (3) include the phrases “Tire and Loading Information” and “Tire Information” and “See Owner's Manual For Additional Information” in yellow text on a black background.
Third, the agency is replacing the vehicle capacity weight statement on the vehicle placard with the following sentence: “[t]he combined weight of occupants and cargo should never exceed XXX kg or XXX pounds.” The “XXX” amount equals the “vehicle capacity weight” of the vehicle as defined in FMVSS No. 110. The information is the same as that currently required to be placed on the vehicle placard by manufacturers.
Fourth, the agency is replacing the vehicle's recommended tire size designation with the tire size designation for the tire installed as original equipment on the vehicle by the vehicle manufacturer. While in most instances these two numbers would be identical, this minor revision ensures that the consumer is provided with the correct tire inflation pressure information for the tire size actually installed on his vehicle as original equipment by the vehicle manufacturer. The original tire size designation and accompanying recommended inflation pressure will be indicated by the headings “original tire size” or “original size” on the placard or label
This rule requires that the placard or placard and label be located on the driver's side B-pillar. If a vehicle does not have a B-pillar, then the placard and label will be placed on the edge of the driver's door. If the vehicle does not have a driver's side B-pillar and the driver's side door edge is too narrow or does not exist, the placard or placard and label are required to be affixed to the inward facing surface of the vehicle next to the driver's seating position. Standardizing the location for tire information placards and labels will contribute to consumer awareness of recommended tire inflation pressures and load limits.
The agency is requiring that owner's manuals for light vehicles discuss the following five subject areas: (1) Tire labeling, (2) recommended tire inflation pressure, (3) glossary of tire terminology, (4) tire care, and (5) vehicle load limits. A single, reliable source containing the information listed above will aid consumers by providing the information that they need to properly maintain their tires and adhere to recommended load limits.
NHTSA believes that this rule will be effective in increasing public awareness of tire information and the understanding and maintenance of proper tire inflation and load limits. This rule will also enable consumers to more easily identify the TIN and other tire information for recalls and other notifications. The rule standardizes the location and content of important information relating to proper inflation and load limits and other tire safety concerns. These measures, by increasing consumer knowledge and awareness, will result in reduced tire failures and
In response to the comments, the agency is modifying aspects of its proposal. Most important, the agency was persuaded, for the reasons explained below, that there are technical difficulties and safety concerns associated with placement of the full TIN on both sidewalls of the tire and the reordering of the TIN which were proposed to aid consumers in determining whether their tires are subject to a recall. Instead the agency is addressing the readability of the TIN by requiring only that the full TIN, as currently ordered, appear on the “intended outboard sidewall,” and either the full TIN or a partial TIN, same as full TIN currently ordered without date code, appear on the opposite side of the tire. If a tire does not have an intended outboard sidewall, the tire must be labeled with the full TIN on one sidewall and with either the full TIN or a partial TIN on the other sidewall.
The major changes to the standard (or deviations from the proposal) are summarized below.
(1) The agency is not reordering the contents of the TIN.
(2) Except as noted above, the agency is requiring the full TIN on the “intended outboard sidewall” of the tire and either the full TIN or a partial TIN, containing all aspects of the TIN except for the date code, on the opposite sidewall.
(3) The agency is eliminating size and format requirements for the vehicle placard and label, except for those specifying use of the tire icon and a limited use of color.
(4) If the vehicle does not have a driver's side B-pillar and the driver's side door edge is too narrow or does not exist, the agency is requiring that the placard or placard and label to be affixed to the inward facing surface of the vehicle next to the driver's seating position.
(5) For tires, the agency is extending the lead time and instituting a phase-in compliance according to the following schedule: 40% of all covered tires between September 1, 2004 and August 31, 2005, 70% of all covered tires between September 1, 2005 and August 31, 2006, and 100% of all covered tires beginning on September 1, 2006.
(6) The agency is delineating requirements for placarding and labeling of multistage manufactured and altered vehicles.
a.
Several commenters to the docket suggested adding information to the tire to distinguish the maximum permissible inflation pressure from the recommended inflation pressure. The agency believes that adding additional language to the sidewall to clarify the distinction between maximum inflation pressure and recommended inflation pressure is not feasible. Sidewalls are becoming progressively smaller with the advent of low profile tires and requiring additional information in this already crowded space will cause clutter and greater consumer confusion. The agency anticipates that improvements in the tire placard, standardization of the placard location, and an expanded consumer information program will reduce the number of consumers who mistake the maximum inflation pressure for the recommended inflation pressure.
RMA commented that NHTSA's proposal would require establishment of new maximum permissible inflation pressures for LT tires that are higher than the current marked pressures because LT tires are now marked with a maximum load rating and corresponding inflation pressure per 571.119. NHTSA has considered these comments. While the agency agrees that the requirement might necessitate manufacturers' determining and labeling a new maximum permissible inflation pressure on LT tires, NHTSA has concluded that the establishment of maximum permissible inflation pressures for LT tires should not be more complicated than the process by which manufacturers currently label LT tires with inflation pressures that correspond with the maximum load of the tire.
Currently, LT tires are labeled with an inflation pressure that corresponds to the maximum load to be carried by the tire. These values are included in industry yearbooks, such as the “Tire and Rim Association” (“T&RA”) Year Book, but are considered minimum cold pressures for the maximum loads listed. The yearbooks provide guidelines for using higher inflation pressures, which are based on speed and loading conditions. Under certain conditions, the inflation pressure could be increased by as much as 10 psi (69 kPa), although the maximum load that can be carried by the tire under normal operating conditions would not increase.
Although the agency acknowledges that the inflation pressures corresponding to the maximum loads in publications such as the TRA Yearbook are not absolute maximum inflation pressure values, we believe that it is appropriate to label these pressures on the tire as the maximum permissible inflation pressure for the maximum load specified. This information would then correspond with the information labeled on passenger car tires and would ensure that the consumer is provided with an upper threshold failsafe value that would ensure safe operation of the vehicle in a maximum loading condition or in the absence of the consumer's using recommended inflation pressure information from the vehicle placard or owner's manual. The agency will allow manufacturers, at their discretion, to label maximum permissible inflation pressures above those listed, up to 10 psi higher, on their LT tires to accommodate design prerogatives and anticipated operational usages.
NHTSA believes that it is sufficient to require that this information appear on one sidewall. Requiring that ply, cord, and tube type information only be present on one sidewall would reduce the stringency required of tires currently subject to FMVSS No. 119 (which currently requires that light truck and MPV tires display the information on both sidewalls) and would result in cost savings to manufacturers that would offset some of the increased costs resulting from changes to the TIN and the labeling of LT tires. Further, there is no known advantage that would arise from requiring this information on both sides of the tire. Therefore, cord and material and number of plies labeling will be required to be labeled on only one sidewall of the tire.
The agency has decided to adopt a combination of two suggestions put forth by the tire industry. The agency has decided to require that the full TIN be labeled on the “intended outboard sidewall” of the tire and that either the full TIN or a partial TIN, without the date code, is to be labeled on the opposite sidewall. In this rulemaking, “intended outboard sidewall” is defined in FMVSS No. 139 as a tire sidewall that contains a whitewall, white lettering, or manufacturer or model name molding which is higher, deeper, or than on the other side of the tire. If a tire does not have an “intended outboard sidewall,” the manufacturer is required to mark the full TIN on any sidewall of the tire and either the full TIN or the partial TIN on the other sidewall. In consideration of the existence of tires that do not have an “intended outboard sidewall,” the agency may, in a future rulemaking, consider requiring tire manufacturers to indicate, through permanent or temporary labeling of those tires, that the side of the tire containing the full TIN is to be mounted facing outward.
After reviewing comments submitted to this rulemaking and after visiting the Firestone plant, the agency concludes that it now has a factual basis for concurring with the tire industry commenters that requiring a second full TIN be molded on tires presents both significant safety and cost concerns. Today, based on the advent of the seven day-a-week operation of tire manufacturing combined with the increasingly widespread use of the segmented press, the complexion of worker safety and costs issues is different than the one that existed in 1980 during our previous rulemaking on this issue.
The agency noted in the NPRM that responses to a special order in 1980 indicated that neither costs nor worker safety were major issues because presses were non-operational 1 or 2 days a week at which time the molds could be safety worked on and, even for presses that were operational seven days a week, workers could access the upper molds by placing insulated blankets over the bottom molds. When the NPRM was issued, the agency did not have any specific factual information from the tire industry that delineated its concerns regarding worker safety or explained why worker safety would currently be an issue, as compared to in 1980.
Based on tire industry and association responses to the NPRM, and the visit to the tire plant, it now appears that, since 1980, however, plant practices have changed such that virtually all plants and their presses operate 7 days a week. Because there is no “down time” for the presses workers must change the TIN in the hot press or remove the mold from the presses.
Additionally, there has been technological change in the types of presses used at the plants. In 1980, the industry standard was the clam-shell press. This press opens so that the upper press opens vertically at a hinge and can be accessed relatively easily by technicians. Today, the more technologically advanced type of press is the segmented press. This press is the most common type of press used by tire manufacturers today and it has become the industry standard. As discussed above, NHTSA witnessed first-hand the serious safety concerns presented for technicians who would be changing a TIN in a hot upper mold. Because of the danger to the worker, a significant amount of down time would be needed to change the date code of the TIN on the upper mold by removing, cooling, reinstalling, and reheating the mold.
The agency, after reviewing other options than requiring the full TIN on both sidewalls, including those suggested by RMA, has decided that a partial TIN on the “intended inboard sidewall” of the tire would address industry safety and cost concerns and, acting as a failsafe, aid consumers in determining whether their tires are subject to a recall. According to NHTSA's records of recent recalls, 80% of tires potentially subject to a “typical” recall could be eliminated from the recall based on the plant code and information other than the date code contained within the TIN. NHTSA notes that a partial TIN would not have been able to eliminate a large percentage of tires from the Firestone recall because several BSFS plants were involved in that recall. NHTSA is aware of the possibility that a partial TIN code may confuse consumers (“where are the rest of the numbers?”) or that the residual 20% of consumers whose tires may be subject to a recall based on the date code may decide to “take their chances” with regard to taking the car into a service station to locate the date code. NHTSA, however, believes that its increased efforts to educate consumers about tire information will help remedy these potential situations and in the unlikely event that consumers needed the date code to determine whether their tires were subject to the recall and could readily view the partial TIN only, it would be in the interest of consumers to have their tires checked by a service technician if the partial TIN code matched the recall information.
The agency stated in the NPRM that most tires are symmetrical or reversible, meaning that they can be mounted
As discussed above, the agency learned during its visit to Firestone and subsequent information gathering that changing the TIN number plates in the tire molds would not present insurmountable safety problems if workers did not have to change the date code in the upper mold of the press on a weekly basis. NHTSA believes that advances in tire manufacturing technology, such as removable stencil plates, will allow for a significant reduction in the costs and time associated with revising the molds to contain a partial TIN on molds that do not currently accommodate a TIN plate or plug. Further, the costs associated with changing molds to implement this requirement are not considered to be onerous because technicians will be able to change partial TIN labeling information on the molds outside of the tire press during the routine cleaning and reworking of the molds that occurs every 20-30 days.
The agency had based its proposal on the comments on the ANPRM and the results of the focus groups that showed consistent support for making the TIN more user-friendly and readable. To that end, the agency believed that proposed revisions to the sequence of information in the TIN would have made the TIN easier for consumers to read and understand for recall and other purposes.
The arguments of the tire industry commenters, however, have merit. The agency agrees that the suggested revisions to the TIN have no proven benefit to consumers and may, in fact, prove counterproductive to its efforts to improve consumer information. NHTSA has therefore decided not to reorder the TIN. Instead, it will work to make the TIN more understandable to consumers through its consumer education efforts.
The agency disagrees with Advocates' assertions and notes that Advocates did not provide data supporting their assertions or alternatives to the agency's proposal. The agency's proposal for a 6 mm uniform TIN height was based on previous rulemakings and comments to the ANPRM, which indicated that 4 mm was not a sufficient font size for the TIN, particularly for individuals with visual impairment. Comments on the ANPRM and NPRM and results from the focus groups concerning the readability of the TIN did not specify a particular font size and commenters, except for Advocates, did not disagree with the agency's suggestion that a uniform 6 mm TIN font height will make the TIN easier to read and would not impose a significant burden on tire manufacturers. Therefore, 6mm will be the minimum required font size and there will be no restriction that will prevent tire manufacturers from using a larger font size for the TIN characters.
As stated in the NPRM, NHTSA does not believe that these suggestions are feasible. As low-profile tires are developed and become more common, there is a consequential decrease in sidewall heights. The ever-decreasing space on tire sidewalls for displaying necessary and required information will become even more important in the future and will need to be reserved for essential information. NHTSA believes the decision to add the additional items, explanations, and warnings suggested by the commenters is better left to the discretion of the tire and vehicle manufacturers and are more effectively addressed through consumer information campaigns rather than through requirements for additional on-tire information.
NHTSA's proposal would have required labels to conform in content, format, size, and color to the proposed placard and label. Vehicle manufacturers agreed that NHTSA should specify the label content, however, they asked for more flexibility in the areas of format and size. Vehicle manufacturers also asked to be allowed to present the text not only in English, but also in other languages.
The purpose of the improved placard and label is to make them more noticeable and more explicit. NHTSA believes that arrangement and shape of the labels is irrelevant to these purposes, and therefore, is amending the regulatory language to allow such changes. NHTSA has also re-examined the placard and label and has decided to adopt the suggestion to specify only limited format requirements with minor modifications to the proposal based on comments. These modifications and the agency's rationale for its decisions regarding the placard and the label are discussed below. The following are examples of the vehicle placard and tire inflation pressure label:
The proposed placard and label contained a black and white tire symbol icon that was in the upper left hand corner of the placard and label and was 13 millimeters (.51 inches) wide and 14 millimeters (.55 inches) high. Vehicle manufacturer commenters did not state a general objection to the icon although Volkswagen commented that the icon should not be required on a placard if it only shows seating capacity and vehicle capacity weight.
Focus group participants strongly believed that a visual cue, such as a tire symbol icon, would aid drivers in identifying and locating tire information. NHTSA agrees with the participants' judgment that the icon will attract the driver's attention and will aid the driver in recognizing that the placard and label contain tire safety information. Because tire information contained on the placard and label is so critical to the safe operation of motor vehicles, NHTSA has decided to retain the tire icon requirement as specified in the proposal. NHTSA believes that consistency in graphics will prevent any confusion about the meaning of the placard and label.
With regard to Volkswagen's suggestion that the icon only appear on the label if that option is chosen, NHTSA believes the loading information remaining on the placard, which pertains to the load that can be carried at the recommended inflation pressure of the tires, is tire related and should be identified by the icon on the placard. Retaining the icon on the placard will assist participants in understanding the overall meaning/purpose of the placard even if the recommended inflation pressure is located on the label rather than on the placard. Therefore, the rule requires that the black and white tire icon symbol, as represented in Figures 1 and 2, appear on both the placard and label.
Several vehicle manufacturers opposed the use of color on the placard and label claiming high costs and lack of benefits, and that the placard and label are not caution or warning labels and therefore do not follow ANSI protocol. The agency, however, has decided to specify limited color requirements on both the placard and the label to highlight certain information. Yellow on a black background is required for the headings of the placard and label and for the phrase “see owner's manual for additional information.” On the vehicle placard, a red border must differentiate the tire inflation pressure information. Notwithstanding the border shown in Figures 1 and 2, manufacturers are not required to place a border around the entire placard and label.
In response to start-up and production costs for colored placards and labels asserted by certain vehicle manufacturers, the agency notes that vehicle manufacturers are already required to provide colored labels for air bag warnings and for rollover warnings for utility vehicles. Further cost issues regarding colorization of the labels will be addressed in the Costs section of this document.
With regard to the assertion that the agency's use of colors on the placard and label does not follow the American National Standards Institute (“ANSI”) protocol,
Survey data indicate that most individuals are unaware of the existence and/or location of the tire inflation pressure and load limit information placards. Surveys also confirm that maximum tire pressure is often confused with recommended inflation pressure. Surveys have not addressed load limit issues, but the results from NHTSA's focus groups and comments received in response to the ANPRM indicate that consumers are unaware that these limits exist, where they are located, and how to use them.
NHTSA's focus groups tested different versions of existing and proposed tire placards to help determine the most effective way of attracting the attention of consumers to this information and making it more understandable to them. In response to the testing, focus group participants overwhelmingly preferred color formats with contrasting colors,
NTHSA recognizes that ANSI's mission in developing and issuing its standard for communicating information about a comprehensive hierarchy of hazards differs somewhat from that of the agency's in designing an effective label to convey specific information and that their conclusions about the manner of communication may differ. Given that agency's labeling decisions are highly dependent on the facts regarding the specific information being addressed, the agency will make case by case determinations of the extent to which NHTSA should follow voluntary standards versus information from other sources. As it has in this rulemaking, NHTSA will rely on its own expertise and judgment in making its determinations under statutory provisions regarding vehicle safety standards.
Vehicle manufacturer commenters suggested that the label should include the International Organization for Standardization (“ISO”)
The agency has decided to adopt the statement “the combined weight of occupants and cargo should never exceed XXX kg or XXX pounds” to replace the phrase “vehicle capacity weight.” The “XXX” amount will equal the vehicle capacity weight of the vehicle as defined in FMVSS No. 110. Commenters stated that the new phrase will aid consumers recognizing what factors comprise the vehicle capacity weight and what significance that weight has for the operation of a vehicle. As discussed in the NPRM, the information is the same as that currently required to be placed on the vehicle placard by manufacturers.
Today's rule requires manufacturers to label the placard and label with the tire size designation for the tire installed as original equipment on the vehicle by the vehicle manufacturer. In response to a suggestion by Subaru, the placard or label will specify that the tire size designation and accompanying
As discussed in the NPRM, the agency considered adding a requirement for the vehicle manufacturer to label all recommended optional tire size designations on the vehicle placard and/or tire inflation pressure label. Additionally, some commenters, in response to the proposal, requested that the agency allow additional/optional tire sizes be listed on the placard and label.
The agency continues to believe that that allowing the addition of optional tire sizes, as well as other non-required information, to the placard and label is not appropriate, primarily because listing more than one tire size designation and the corresponding recommended inflation pressure or any additional information would require more information to be added to the already crowded vehicle placard. The agency believes that overcrowding the vehicle placard and/or tire inflation pressure label with information would discourage use of tire inflation pressure information on the placard and/or the label. Additionally, vehicle manufacturers may label this additional information on the certification label. Therefore, this rule will specify a prohibition about “other information” being added to the vehicle placard and label.
Manufacturers also asked to be allowed to present the label text not only in English, but also in other languages. NHTSA's current policy is to allow a required message to be stated in additional languages once the required English language message was provided. In a March 10, 1994 notice, NHTSA stated:
NHTSA interprets the labeling requirements * * * as requiring manufacturers to supply the information in English. Once this requirement is met, manufacturers may supply the same information in other languages, so long as it does not confuse consumers. As long as the non-English language label is a translation of the required information, NHTSA does not interpret it to be “other information.” (59 FR 11200, at 11201-202).
As stated above, the placard and label requirements will include a prohibition against “other information.” NHTSA will not consider translations of the required placard and label message to be “other information.” However, all the requirements for the English label message must be met, including the requirement, as discussed below, that the content must be “legible, visible, and prominent.”
The agency also concurs with this commenter's suggestion to allow abbreviations for measurements,
NHTSA, in viewing a uniform location of the placard and label as a preeminent concern, has re-examined the labels, and the proposed vehicle locations for the labels, and agrees that there would be issues at some locations about the sufficiency of the space for the placement of the labels of the proposed specifications. In response to comments from manufacturers that some unspecified vehicles do not contain B-pillars or door edges, NHTSA has added a second alternative requirement to the requirement that the vehicle placard and tire inflation pressure label be located on the driver's side B-pillar. As proposed in the NPRM, the rule requires that if a vehicle does not have a B-pillar, then the placard or placard and label would be placed on the edge of the driver's door. Also with this rule, if a vehicle does not have a driver's side B-pillar and the driver's side door edge is too narrow or does not exist, the placard or placard and label are required to be affixed to the inward facing surface of the vehicle next to the driver's seating position. The agency believes that this will allow manufacturers two alternatives if it is not possible to place the placard or placard and label on the B-pillar. Allowing manufacturers to place the placard or placard and label on the inward facing surface next to the driver accommodates vehicles that do not have a driver's side B-pillar or driver's side door edge or have a driver's side door edge that is too narrow and is similar to one of the alternative placement specifications for Certification Labels in § 567.8.
In response to manufacturer concerns that it will not be feasible to fit the placard or placard and label on the B-pillar or door edge, NTHSA is not specifying a particular size, dimension or shape for the label. Despite the absence of any current requirement about placard or label size, no commenter provided an example of a vehicle placard that the commenter regarded as too small.
With respect to the size of the text on the placard and label, NHTSA learned from focus groups that the public generally prefers larger fonts in label text because it is easier to read. This helps ensure the placard and label will effectively convey the message to the reader. NHTSA, in its proposal, considered mandating a minimum font size for the text, but has not done so for two reasons. First, it is hard to specify a single font size that would assure ease of reading with all possible typefaces. Second, NHTSA does not think it necessary to specify a regulatory requirement for font size to assure that manufacturers will make the message large enough to be easily read. Additionally, NHTSA has not required any particular font face, size, or case for the vehicle placard. Manufacturers who choose the option to use both the placard and label may wish to use the same font face, size, and case in both labels. Today's rule allows them the flexibility to do so. NHTSA has, therefore, decided not to specify either a particular font face or font size or case for the placard and label. As other label sizes (
This rule also recognizes that the tire inflation pressure label will be placed proximate to the vehicle placard. A standardized location for placard and label will contribute to consumer awareness of recommended tire inflation pressure and load limits by providing a consistent and predictable place for this information. Vehicle manufacturers provided a number of alternative locations for the placard and label citing difficulties in fitting the placard or label on the B-pillar or door edge. The agency, however, notes that it has provided manufacturers with great flexibility concerning the size, shape and dimension of the placard and label. This flexibility provides manufacturers great latitude to design the placard and
NHTSA notes that final stage manufacturers are already required to know, before certifying the vehicle, the GVWR, the unloaded vehicle weight, and the passenger weight for the vehicle. With this information, final-stage manufacturers should be able to calculate easily the vehicle capacity weight of the vehicle. NHTSA, however, agrees with commenters that the issues regarding the placarding responsibility for multi-stage manufactured and altered vehicles need to be addressed. The agency has decided that (1) incomplete and intermediate manufacturers need not affix a placard to an incomplete vehicle, (2) alterers must affix a new placard, containing accurate information for the altered vehicle, over the placard installed by the vehicle manufacturer, so as to obscure the original placard and (3) final stage manufacturers must label vehicles with vehicle capacity weight and seating designations “as finally manufactured,” utilizing information contained in the document (“IVD”) required by § 568.4 to be provided by incomplete and intermediate vehicle manufacturers and the information particular to their role in the manufacture of the vehicle.
All commenters concurred that the owner's manual, as a single, reliable source containing the proposed required information for the tires and tire safety information listed above would aid consumers in properly maintaining their tires and adhering to load limits.
Today's rule requires owner's manuals to include the following statements and information:
1. Tire labeling, including a description and explanation of—
(a) Each marking on the tire,
(b) Locating information that will aid consumers in identifying tires subject to a recall campaign, and
(c) The TIN;
2. Recommended tire inflation pressure, including a description and explanation of—
(a) Recommended cold tire inflation pressure,
(b) The vehicle placard and tire inflation pressure label required in Federal Motor Vehicle Safety Standard No. 110 and their location in the vehicle,
(c) The adverse safety consequences of underinflation (including tire failure), and
(d) Measuring and adjusting air pressure to achieve proper inflation;
3. Glossary of tire terminology, including “cold tire pressure,” “maximum inflation pressure,” and “recommended inflation pressure,” and all non-technical terms defined in S3 of FMVSS Nos. 110 & 139;
4. Tire care, including maintenance and safety practices; and
5. Vehicle load limits, including a description and explanation of—
(a) Locating and understanding load limit information, total load capacity, seating capacity, towing capacity, and cargo capacity,
(b) Calculating total and cargo load capacities with varying seating configurations including quantitative examples showing/illustrating how the vehicle's cargo and luggage capacity decreases as the combined number and/or size of occupants increases,
(c) Determining compatibility of tire and vehicle load capabilities,
(d) The adverse safety consequences of overloading on handling and stopping and on tires, and
(e) “Steps for Determining Correct Load Limit—
(1) Locate the statement “The combined weight of occupants and cargo should never exceed XXX kg or XXX pounds” on your vehicle's placard.
(2) Determine the combined weight of the driver and passengers that will be riding in your vehicle.
(3) Subtract the combined weight of the driver and passengers from XXX kilograms or XXX pounds.
(4) The resulting figure equals the available amount of cargo and luggage load capacity. For example, if the “XXX” amount equals 1400 lbs. and there will be five—150 lb passengers in your vehicle, the amount of available cargo and luggage load capacity is 650 lbs. (1400—750 (5 x 150) = 650 lbs.)
(5) Determine the combined weight of luggage and cargo being loaded on the vehicle. That weight may not safely exceed the available cargo and luggage load capacity calculated in Step 4.
(6) If your vehicle will be towing a trailer, load from your trailer will be transferred to your vehicle. Consult this manual to determine how this may reduce the available cargo and luggage load capacity of your vehicle.”
The agency believes that the general nature of the requirements about discussions of tire labeling, tire care, and load limit information will allow manufacturers to tailor language to their specific vehicles. At the same time, the requirements are specific enough to ensure that critical topics are included.
These statements and information are the same as those proposed in the NPRM with minor modification. NHTSA believes that the need for uniformity in 5(e) requires verbatim “Steps for Determining Correct Load Limit” in order to underscore that the message contained in determining the correct load limit is important for safe operation of vehicle. Number 7 in the list of steps has been deleted. RMA and GRRF expressed concern that this statement, which suggests that a pressure higher than the recommended pressure may be needed to support certain loads, incorrectly indicates that tires can be loaded above their maximum loading capacity as specified in FMVSS No. 110. The agency agrees with RMA and GRRF's concern and has deleted the statement.
Some vehicle manufacturers suggested that the agency more specifically delineate or define aspects of the information to be included in the owner's manual. The agency, however, believes that uniformity is not needed with respect to the discussion of tire safety issues other than “Steps for Determining Correct Load Limit.” The agency believes that manufacturers are in a better position to provide drivers with adequate explanations of tire labeling, recommended tire inflation pressure, a glossary of tire terminology, and tire care.
Section 11 of the TREAD Act requires the agency to issue a final rule on this tire labeling proposal by June 1, 2002. This rule establishes that its labeling revisions apply, except where noted, to new pneumatic tires for use on motor vehicles with a GVWR of 10,000 pounds or less, manufactured after 1975, except for motorcycles and LSVs, and for new motor vehicles with a GVWR of 10,000 pounds or less.
Given the increasing consumer preference for using light trucks for passenger purposes, the agency is requiring that the tire information requirements for passenger car tires also apply to LT tires (load C, D, E) used on light trucks. No commenters dissented with the agency's statement in the NPRM that LT tires are increasingly used in the same type of on-road service as P-metric tires on light vehicles or with the agency's statement that the use of these tires on passenger vehicles will continue to increase in the near future.
As proposed in the NPRM and in response to comments suggesting technical difficulties applying labeling revisions to motorcycle tires and specialty tires produced for antique vehicles, NHTSA is not requiring that FMVSS No. 139 apply to motorcycle tires and tires for vehicles produced before 1975. The agency is currently not aware of any consumer information concerns or problems associated with motorcycle tires or tires used on antique motor vehicles.
To maintain consistent labeling requirements for all tires for use on light vehicles, the labeling requirements are also applicable to retreaded pneumatic passenger car tires and new non-pneumatic tires for passenger cars. No comments were received on the applicability of this rule to these tires.
Most vehicle manufacturer commenters requested longer lead time, until September 1, 2004. NHTSA has decided to adopt the effective date of September 1, 2003 for vehicle labeling. The proposed effective date reflected NHTSA's desire for expedited action on this issue. In view of the immediate need to alert the public to tire and loading information and because the labeling revisions to light vehicles constitute format changes, not performance or vehicle design changes, NHTSA finds that an effective date of September 1, 2003 is reasonable and is in the public interest.
All tire manufacturers requested longer lead time, up to five years, to account for reworking molds and replacing current molds, which last up to five years, with new molds reflecting the new labeling requirements. The agency agrees that providing some level of compliance flexibility improves the chances that ways can be found to improve safety as well as reduce costs. Accordingly, we have structured a phase-in to facilitate those efforts. For tires, the agency has decided to extend the lead time and institute a phase-in compliance according to the following schedule: 40% of all applicable tires between September 1, 2004 and August 31, 2005, 70% of all applicable tires between September 1, 2005 and August 31, 2006, and 100% of all applicable tires beginning on September 1, 2006. This extension of the effective date for tires and the phase-in reflects the reality that the tire manufacturers will need to rework, retool, and replace the tire molds currently being utilized. NHTSA believes that this phase-in will permit tire manufacturers to continue to use existing molds while they acquire new ones that reflect the new tire information requirements. Also, by requiring that only 40% of tires comply with the requirements during the first stage of the phase-in, the agency is providing the industry and its mold shops with an achievable task of reworking a number of molds that would not exceed their capacity for such work. By not requiring full compliance until September 1, 2006, NHTSA is providing the tire industry with ample time to accomplish the task at hand.
Finally, to encourage the earliest possible application of the new tire information requirements, NHTSA is allowing manufacturers to institute the new requirements before the required dates.
Today's rule does not permit manufacturers to make changes to the labeling upon seeking and receiving special permission from the Administrator. NHTSA believes that it is important that people see the same message on all covered tires and vehicles and that this message appears, where specified, in a standardized format and location. The agency believes that inconsistency with regard to the content, format, and placement of the labeling mandated in this rule could cause confusion and undermine the effectiveness of the improved tire information.
The purpose of FMVSS Nos. 110 and 120 is to provide safe operational performance by ensuring that vehicles to which they apply are equipped with tires of adequate load rating and rims of appropriate size and type designation. FMVSS No. 110 currently applies to passenger cars and FMVSS No. 120 currently applies to vehicles other than passenger cars including motorcycles and trailers.
This rule specifies that the applicability of FMVSS Nos. 110 and 120 will correspond with the applicability of the new light vehicle tire. FMVSS No. 110 will include passenger cars and other light vehicles with a GVWR of 10,000 pounds or less. Therefore, most SUVs, vans, trailers, and pickup trucks will be required to comply with the same tire selection and rim requirements as passenger cars. FMVSS No. 120 will continue to apply to vehicles over 10,000 pounds GVWR and motorcycles.
With regard to the revised applicability of FMVSS No. 110 and 120, the Alliance suggested that NHTSA drop the proposal to amend the applicability from this docket and instead incorporate them into the NPRM to be published on tire performance requirements. RMA and RAC urged the agency in applying FMVSS No. 110 to light vehicles other than passenger cars it should not relax the current standards for tire selection and the load service factor of 1.10 contained in S5.1.2 of FMVSS No. 120. No commenters, however, objected to the revised applicability of FMVSS No. 110 and 120.
The agency empathizes with the Alliance's wanting to comment on the applicability of performance-oriented aspects in conjunction with the NPRM on tire performance requirements. NHTSA has incorporated a discussion regarding the revised applicability of FMVSS Nos. 110 and 120 and the ensuing performance-oriented issues, including the 1.10 service factor, into the NPRM on tire performance requirements, and has provided an opportunity to comment on these issues. NHTSA will make its final decision with regard to these performance aspects of the FMVSS No. 110 and 120 applicability in the tire performance upgrade final rule.
The proposal discussed that certain performance-oriented requirements of FMVSS No. 110 would have been retained, including S4.2.2, which establishes a linkage between the
Vehicle certification label requirements, contained in Part 567, will not be revised by this rule except to reference FMVSS No. 110, as well as FMVSS No. 120, in § 567.4 concerning tire rim combinations for light trucks and MPVs, and to require that the label contain the tire-rim combination installed as original equipment on the vehicle by the vehicle manufacturer.
Currently, our statute requires that a motor vehicle be equipped with tires that meet maximum load standards when the vehicle is loaded with a reasonable amount of luggage and the total number of passengers the vehicle is designed to carry.
The Alliance and GM opposed providing a definition for “reasonable amount of luggage” stating that it serves no safety need and would interfere with what they characterize as a “competitive matter among manufacturers.” ETRTO states that the agency should consider specifying “maximum luggage capacity” rather than a “reasonable amount of luggage” to avoid overloading. GRRF opposes the agency deferring to vehicle manufacturers the responsibility for ensuring that a vehicle is equipped with tires that have a load capacity suitable for the declared maximum permissible load of the vehicle or its axes.
NHTSA has decided, at this point, to rely upon its efforts in this rule and in its consumer education program to address the safety aspects of vehicle loading. In addition, consistent with their comments, the agency expects the industry to undertake educational efforts to inform the public properly with regard to particular vehicles. Whether or not these efforts will obviate the need for the agency to define “reasonable amount of luggage” may be evaluated by the agency at some future time.
NHTSA generally supports international harmonization in cases where such harmonization is consistent with its statutory mandate to ensure motor vehicle safety. Several vehicle industry and tire industry commenters suggested adding the service description to tires and vehicles as a labeling requirement, stating that this information aids consumers when purchasing replacement tires. The agency continues to believe the two labeling requirements contained in the service description, speed-category symbol and load index
All tire and vehicle industry commenters oppose a prohibition on non-required information being placed on tires. They argue that this action would generally conflict with harmonization efforts, would incur retaliation from other countries, would restrict manufacturers use of unique markings for marketing and production purposes, would restrict global marketing and therefore raise costs, and could constitute a technical barrier to trade. The agency agrees that such a prohibition would precipitate unintended consequences due to the global nature of the tire industry and give rise to greater costs for the industry and consumers. Therefore, with this rule, the agency will not prohibit non-required information on applicable tires.
For a fuller discussion of the benefits, see the agency's Final Regulatory Evaluation (FRE). A copy of the FRE has been placed in the docket.
NHTSA believes that this final rule will be effective in increasing public awareness of tire safety, particularly the understanding and maintenance of proper tire inflation and load limits. This final rule will also enable consumers to more easily locate and identify the TIN and other tire information for recalls and other notifications. The rule will standardize the location and content of important information relating to proper inflation and load limits and other tire safety concerns. These measures, by increasing consumer knowledge and awareness, will result in reduced tire failures and tire related crashes, and therefore fewer deaths and injuries.
The following is a summary of the costs associated with the final rule. For a more detailed analysis, see the agency's FRE.
The agency estimates that one-time costs of up to $23.4 million will occur for the tire industry during the phase-in period. These costs will add up to $0.08 per tire during this period. The recurring annual costs are believed to be very minor.
Estimates for retread manufacturers are projected sales figures provided from ITRA and incorporated cost estimates from RMA. Since retread
The agency estimates that vehicle costs will increase about $0.15 per vehicle, based on $0.04 per label and $0.11 for adding about 8 pages of information to the owner's manual. With approximately 17 million light vehicles and light trailers being sold annually, the vehicle costs are over $2.6 million per year on a recurring annual basis.
Thus, total overall costs are up to $26 million initially, with $2.6 million estimated to occur on a recurring annual basis.
The Agency discusses the effective date and the phase-in requirements for this rule in section VII.D. of this document.
Executive Order 12866, “Regulatory Planning and Review” (58 FR 51735, October 4, 1993), provides for making determinations whether a regulatory action is “significant” and therefore subject to Office of Management and Budget (OMB) review and to the requirements of the Executive Order. The Order defines a “significant regulatory action” as one that is likely to result in a rule that may:
(1) Have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, 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.
NHTSA has considered the impact of this rulemaking action under Executive Order 12866 and the Department of Transportation's regulatory policies and procedures. At the time of the NPRM, this rulemaking was regarded as nonsignificant. However, due to concerns raised during a Congressional hearing in late February 2002 regarding the agency's proposals to require the full TIN on both sides of each tire and to reorder the TIN, this rulemaking was reclassified as significant. Accordingly, the Office of Management and Budget reviewed the final rule under Executive Order 12866, “Regulatory Planning and Review.” (As noted above, the final rule does not adopt either of those proposals, thus eliminating the sources of those concerns.) The rule is likely to result in expenditure by tire and automobile manufacturers of $26 million initially, with $2.6 million estimated to occur on a recurring annual basis. NHTSA is placing in the public docket a Final Regulatory Evaluation (FRE) describing the costs and benefits of this rulemaking action. The costs and benefits are summarized earlier in this document.
The Regulatory Flexibility Act of 1980 (5 U.S.C. 601
The final rule affects motor vehicle manufacturers and tire manufacturers. The agency does not believe that any of the tire manufacturers are small businesses. However, there are about 1,000 retread manufacturers in the United States, of which about 750 deal with light vehicle tires that will in some small way be impacted by this rule. Most of these retreaders are small businesses. As discussed in Section IX. Costs, the agency estimates the cost burden imposed on retread manufacturers at approximately $600 per retread manufacturer if costs are similar to those for other tire manufacturers. Costs may be higher due to economies of scale but the agency believes that these impacts will not be economically significant. For instance, even if the costs to retread manufacturers were ten times higher than for the other manufacturers ($6,000), this figure would represent a minimal impact to retread manufacturers.
NHTSA estimates that there are only about four small passenger car and light truck vehicle manufacturers in the United States. These manufacturers serve a niche market. The agency believes that small manufacturers manufacture less than 0.1 percent of total U.S. passenger car and light truck production per year.
NHTSA has analyzed this final rule for the purposes of the National Environmental Policy Act. The agency has determined that implementation of this action does not have any significant impact on the quality of the human environment.
The agency has analyzed this rulemaking in accordance with the principles and criteria contained in Executive Order 13132 and has determined that it does not have sufficient federal implications to warrant consultation with State and local officials or the preparation of a federalism summary impact statement. The final rule will not have any substantial impact on the States, or on the current Federal-State relationship, or on the current distribution of power and responsibilities among the various local officials.
The Unfunded Mandates Reform Act of 1995 (Public Law 104-4) requires agencies to prepare a written assessment of the costs, benefits and other effects of proposed or final rules that include a Federal mandate likely to result in the expenditure by State, local or tribal governments, in the aggregate, or by the private sector, of more than $100 million annually (adjusted annually for inflation with base year of 1995). Adjusting this amount by the implicit gross domestic product price deflator for the year 2000 results in $109 million (106.99/98.11 = 1.09). The assessment may be included in conjunction with other assessments, as it is here.
This final rule will not result in expenditures by State, local, or tribal
This final rule does not have any retroactive effect. Under 49 U.S.C. 21403, whenever a Federal motor vehicle safety standard is in effect, a State may not adopt or maintain a safety standard applicable to the same aspect of performance which is not identical to the Federal standard, except to the extent that the state requirement imposes a higher level of performance and applies only to vehicles procured for the State's use. 49 U.S.C. 21461 sets forth a procedure for judicial review of final rules establishing, amending or revoking Federal motor vehicle safety standards. That section does not require submission of a petition for reconsideration or other administrative proceedings before parties may file suit in court.
This final rule contains the following “collections of information,” as that term is defined in 5 CFR part 1320
The agency estimates that there are about 8 such new tire manufacturers and 1000 retread manufacturers. The placard labeling respondents are manufacturers of MPVs covered by FMVSS 571.120. The agency estimates that there are 935 vehicle manufacturers affected by this collection.
Description of the Need for the Information and Proposed Use of the Information: The provisions of the final rule requiring manufacturers to provide certain information on both sidewalls of tires,
Executive Order 12866 requires each agency to write all rules in plain language. Application of the principles of plain language includes consideration of the following questions:
• Have we organized the material to suit the public's needs?
• Are the requirements in the rule clearly stated?
• Does the rule contain technical language or jargon that isn't clear?
• Would a different format (grouping and order of sections, use of headings, paragraphing) make the rule easier to understand?
• Would more (but shorter) sections be better?
• Could we improve clarity by adding tables, lists, or diagrams?
• What else could we do to make the rule easier to understand?
Imports, Certification, Consumer information, Motor vehicle safety, Motor vehicles, Rubber and rubber products, and Tires.
49 U.S.C. 322, 30111, 30115, 30117, 30166, 32502, 32504, 33101-33104, 33108, and 33109; delegation of authority at 49 CFR 1.50.
(h) * * *
(2) (For multipurpose passenger vehicles, trucks, buses, trailers, and motorcycles) The manufacturer may, at its option, list more than one GVWR-GAWR-tire-rim combination on the label as long as the listing contains the tire-rim combination installed as original equipment on the vehicle by the vehicle manufacturer and conforms in content and format to the requirements for the tire-rim-inflation information set forth in § 571.110, § 571.120, § 571.129 and § 571.139 of this chapter.
49 U.S.C. 322, 2011, 30115, 30166 and 30177; delegation of authority at 49 CFR 1.50.
S2.
S2
S4.3
(a) Vehicle capacity weight expressed as “The combined weight of occupants and cargo should never exceed XXX kilograms or XXX pounds”;
(b) Designated seated capacity (expressed in terms of total number of occupants and number of occupants for each seat location);
(c) Vehicle manufacturer's recommended cold tire inflation pressure, subject to the limitations of 4.3.4;
(d) Tire size designation, indicated by the headings “original tire size” or “original size,” for the tire installed as original equipment on the vehicle by the vehicle manufacturer;
(e) On the vehicle placard, “Tire and Loading Information” and, on the tire inflation pressure label, “Tire Information”;
(f) “See Owner's Manual for Additional Information”; and
(g) For a vehicle equipped with a non-pneumatic assembly, the tire identification code with which that assembly is labeled pursuant to the requirements of S4.3(a) of 571.129, New Non-Pneumatic Tires for Passenger Cars.
S4.3.1
S4.3.2
S4.3.3
GVWR: 2,441 kilograms (5381 pounds).
GAWR: Front—1,299 kilograms (2,864 pounds) with P265/70R16 tires, 16 × 8.0 rims at 240 kPa (36 psi) cold single.
GAWR: Rear—1,142 kilograms (2,864 pounds) with P265/70R16 tires, 16 × 8.00 rims, at 245 kPa (36 psi) cold single.
S4.3.4 No inflation pressure other than the maximum permissible inflation pressure may be shown on the placard and, if any, tire inflation pressure label unless—
(a) It is less than the maximum permissible inflation pressure;
(b) It is appropriate for the load limits as calculated in accordance with S4.2; and
(c) The tire load rating specified in a submission by an individual manufacturer, pursuant to S4.1.1(a) of § 571.139 or contained in one of the publications described in S4.1.1.(b) of § 571.139, for the tire size at that inflation pressure is not less than the vehicle maximum load and the vehicle normal load.
S7.2 * * *
(a) A statement indicating the information related to appropriate use for the non-pneumatic spare tire including at a minimum the information set forth in S6 (a) and (b) and either the information set forth in S4.3(g) or a statement that the information set forth in S4.3(g) is located on the vehicle placard and on the non-pneumatic tire;
S6.3
S7.
S7.1
S7.2
S7.3
S3.
S4. * * *
S4.3.
S7.
S7.1
S7.2
S7.3
S1.
S2.
S3.
(1) The sidewall that contains a whitewall, bears white lettering or bears manufacturer, brand, and/or model name molding that is higher or deeper than the same molding on the other sidewall of the tire, or
(2) The outward facing sidewall of an asymmetrical tire that has a particular side that must always face outward when mounted on a vehicle.
S4.
S4.1. Each manufacturer of tires must ensure that a listing of the rims that may be used with each tire that it produces is provided to the public in accordance with S4.1.1 and S4.1.2.
S4.1.1 Each rim listing for a tire must include dimensional specifications and a diagram of the rim and must be in one of the following forms:
(a) Listed by manufacturer name or brand name in a document furnished to dealers of the manufacturer's tires, to any person upon request, and in duplicate to: Docket Section, National Highway Traffic Safety Administration, 400 Seventh Street, SW., Washington, DC 20590; or
(b) Contained in publications, current at the date of manufacture of the tire or any later date, of at least one of the following organizations:
(1) The Tire and Rim Association.
(2) The European Tyre and Rim Technical Organization.
(3) Japan Automobile Tire Manufacturers' Association, Inc.
(4) Tyre & Rim Association of Australia.
(5) Associacao Latino Americana de Pneus e Aros (Brazil).
(6) South African Bureau of Standards.
S4.1.2 A listing compiled in accordance with paragraph (a) of S4.1.1 need not include dimensional specifications or a diagram of a rim whose dimensional specifications and diagram are contained in a listing published in accordance with paragraph (b) of S4.1.1.
S4.2. Information contained in a publication specified in S4.1.1(b) that lists general categories of tires and rims by size designation, type of construction, and/or intended use, is considered to be manufacturer's information required by S4.1 for the listed tires, unless the publication itself or specific information provided according to S4.1(a) indicates otherwise.
S5.
S5.5
(a) The symbol DOT, which constitutes a certification that the tire conforms to applicable Federal motor vehicle safety standards;
(b) The tire size designation as listed in the documents and publications specified in S4.1.1;
(c) The maximum permissible inflation pressure, subject to the limitations of S5.5.4 through S5.5.6;
(d) The maximum load rating;
(e) The generic name of each cord material used in the plies (both sidewall and tread area) of the tire;
(f) The actual number of plies in the sidewall, and the actual number of plies in the tread area, if different;
(g) The term “tubeless” or “tube type,” as applicable; and
(h) The word “radial,” if the tire is a radial ply tire.
S5.5.1 Each tire must be labeled with the tire identification number required by 49 CFR part 574 on the intended outboard sidewall of the tire. Either the tire identification number or a partial tire identification number, containing all characters in the tire identification number, except for the date code, must be labeled on the other sidewall of the tire. If a tire does not have an intended outboard sidewall, the tire must be labeled with the tire identification number required by 49 CFR part 574 on one sidewall and with either the tire identification number or a partial tire identification number, containing all characters in the tire identification number except for the date code, on the other sidewall.
S5.5.2 [Reserved]
S5.5.3 Each tire must be labeled with the name of the manufacturer, or brand name and number assigned to the manufacturer in the manner specified in 49 CFR part 574.
S5.5.4 If the maximum inflation pressure of a tire is 240, 280, 290, 300, 330, 340, 350 or 390 kPa, then:
(a) Each marking of that inflation pressure pursuant to S5.5(c) must be followed in parenthesis by the equivalent psi, rounded to the next higher whole number; and
(b) Each marking of the tire's maximum load rating pursuant to S5.5(d) in kilograms must be followed in parenthesis by the equivalent load rating in pounds, rounded to the nearest whole number.
S5.5.5 If the maximum inflation pressure of a tire is 420 kPa (60 psi), the tire must have permanently molded into or onto both sidewalls, in letters and numerals not less than
S5.5.6 For LT tires, the maximum permissible inflation pressure shown must be the inflation pressure that corresponds to the maximum load of the tire for the tire size as specified in one of the publications described in S4.1.1.(b) of § 571.139. At the manufacturer's option, the shown inflation pressure may be as much as 10 psi (69 kPa) greater than the inflation pressure corresponding to the specified maximum load.
S6.
S7.
S7.1
S7.2
S7.3
15 U.S.C. 1392, 1401, 1403, 1407, 1411-1420, 1421; delegation of authority at CFR 1.50.
(d)
12. The authority citation for part 575 continues to read as follows:
15 U.S.C. 322, 30111, 30115, 30117, and 30166; delegation of authority at CFR 1.50.
13. Section 575.6 is amended by adding paragraphs (a)(4) and (a)(5) to read as follows:
(a) * * *
(4) When a motor vehicle that has a GVWR of 10,000 pounds or less, except a motorcycle or low speed vehicle, and that is manufactured on or after September 1, 2003, is delivered to the first purchaser for purposes other than resale, the manufacturer shall provide to the purchaser, in writing in the English language and not less than 10 point type, a discussion of the items specified in paragraphs (a)(4) (i) through (v) of this section in the owner's manual, or, if there is no owner's manual, in a document.
(i) Tire labeling, including a description and explanation of each marking on the tires provided with the vehicle, and information about the location of the Tire Identification Number (TIN);
(ii) Recommended tire inflation pressure, including a description and explanation of:
(A) Recommended cold tire inflation pressure,
(B) The vehicle placard and tire inflation pressure label specified in Federal Motor Vehicle Safety Standard No. 110 and their location in the vehicle,
(C) Adverse safety consequences of underinflation (including tire failure), and
(D) Measuring and adjusting air pressure to achieve proper inflation;
(iii) Glossary of tire terminology, including “cold tire pressure,” “maximum inflation pressure,” and “recommended inflation pressure,” and all non-technical terms defined in S3 of FMVSS Nos. 110 & 139;
(iv) Tire care, including maintenance and safety practices;
(v) Vehicle load limits, including a description and explanation of:
(A) Locating and understanding load limit information, total load capacity, seating capacity, towing capacity, and cargo capacity,
(B) Calculating total and cargo load capacities with varying seating configurations including quantitative examples showing/illustrating how the vehicle's cargo and luggage capacity decreases as the combined number and size of occupants increases,
(C) Determining compatibility of tire and vehicle load capabilities,
(D) Adverse safety consequences of overloading on handling and stopping and on tires.
(5) When a motor vehicle that has a GVWR of 10,000 pounds or less, except a motorcycle or low speed vehicle, and that is manufactured on or after September 1, 2003, is delivered to the first purchaser for purposes other than resale, the manufacturer shall provide to the purchaser, in writing in the English language and not less than 10 point type, the following verbatim statement in the owner's manual, or, if there is no owner's manual, in a document:
Steps for Determining Correct Load Limit—
(
(
(
(
(
(
49 U.S.C. 322, 30111, 30115, 30117, and 30166; delegation of authority at 49 CFR 1.50.
This part establishes requirements for manufacturers of new pneumatic tires for motor vehicles with a gross vehicle weight rating of 10,000 pounds or less to submit reports, and maintain records related to the reports, concerning the number of such tires that meet the requirements of Standard No. 139,
The purpose of these reporting requirements in this part is to assist the National Highway Traffic Safety Administration in determining whether a manufacturer has complied with Standard No. 139 (49 CFR 571.139).
This part applies to manufacturers of tires for motor vehicles with a gross vehicle weight rating of 10,000 pounds or less.
(a) All terms defined in 49 U.S.C. 30102 are used in their statutory meaning.
(b) “Motor vehicle” and “gross vehicle weight rating” are used as defined in 49 CFR 571.3.
(c) “Production year” means the 12-month period between September 1 of one year and August 31 of the following year, inclusive.
Each manufacturer shall, upon request from the Office of Vehicle Safety Compliance, provide information identifying the tires (by make, model, brand and tire identification number) that have been certified as complying with Standard No. 139 (49 CFR 571.139). The manufacturer's designation of a tire as a certified tire is irrevocable.
(a)
(1) Identify the manufacturer;
(2) State the full name, title, and address of the official responsible for preparing the report;
(3) Identify the production year being reported on;
(4) Contain a statement regarding whether or not the manufacturer complied with Standard No. 139 (49 CFR 571.139) for the period covered by the report and the basis for that statement;
(5) Provide the information specified in paragraph (b) of this section;
(6) Be written in the English language; and
(7) Be submitted to: Administrator, National Highway Traffic Safety Administration, 400 Seventh Street, SW., Washington, DC 20590.
(b)
(2)
Each manufacturer must maintain records of the tire identification number for each tire for which information is reported under 49 CFR 590.6(b)(2) until December 31, 2007.
A manufacturer may petition for extension of time to submit a report under this part. A petition will be granted only if the petitioner shows good cause for the extension and if the extension is consistent with the public interest. The petition must be received not later than 15 days before expiration of the time stated in § 597.6(a). The filing of a petition does not automatically extend the time for filing a report. The petition must be submitted to: Administrator, National Highway Traffic Safety Administration, 400 Seventh Street, SW., Washington, DC 20590.
Office of Governmentwide Policy, General Services Administration (GSA).
Final rule.
The General Services Administration (GSA) is amending the Federal Travel Regulation (FTR) to improve the ability of the
This final rule is effective November 8, 2002, and applies to travel performed on or after that date.
The Regulatory Secretariat, Room 4035, GS Building, Washington, DC 20405, (202) 208-7312, for information pertaining to status or publication schedules. For clarification of content, contact Joddy P. Garner, Office of Governmentwide Policy, Travel Management Policy, at (202) 501-4857. Please cite FTR Amendment 110.
In the past, properties in high cost travel areas have been under no obligation to provide lodging to Federal travelers at the prescribed
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 is not required to be published in the
The Paperwork Reduction Act does not apply because the changes to the FTR do not impose recordkeeping or information collection requirements, or the collection of information from offerors, contractors, or members of the public that require the approval of the Office of Management and Budget under 44 U.S.C. 3501,
This final rule is also exempt from congressional review prescribed under 5 U.S.C. 801 since it relates solely to agency management and personnel.
Government employees, Travel and transportation expenses.
The revised pages containing the amendments to the table set forth above read as follows:
Office of the Assistant Secretary for Administration/Chief Information Officer, HUD.
Notice.
This notice announces HUD's final guidelines for ensuring and maximizing the quality, objectivity, utility, and integrity of information disseminated to the public by HUD (“Information Quality Guidelines”). The notice follows publication of a May 30, 2002,
Linda Ciancio, Office of Departmental Grants Management and Oversight, Office of Administration, Department of Housing and Urban Development, Room 3156, 451 Seventh Street, SW., Washington, DC 20410-0500; telephone: (202) 708-0667 (this is not a toll-free number). Hearing- or speech-impaired individuals may access this number via TTY by calling the toll-free Federal Information Relay Service at 800-877-8399.
Section 515 of the Treasury and General Government Appropriations Act for Fiscal Year 2001 (Pub. L. 106-554) directed the Office of Management and Budget (OMB) to issue government-wide guidelines that “provide policy and procedural guidance to federal agencies for ensuring and maximizing the quality, objectivity, utility, and integrity of information (including statistical information) disseminated by federal agencies.” Within one year after OMB issues its guidelines, agencies must issue their own guidelines that will describe internal mechanisms by which agencies will ensure that their information meets the standards of quality, objectivity, utility, and integrity. The mechanism also must allow affected persons to seek and obtain correction of information maintained and disseminated by the agency that does not comply with the guidelines.
OMB issued its final guidelines on September 28, 2001 (66 FR 49718), but requested additional comment on one component of the OMB guidelines.The OMB guidelines addressing additional public comment were published on January 3, 2002 (67 FR 369), and republished on February 22, 2002 (67 FR 6452). In accordance with the statute, agencies must issue their final guidelines by October 1, 2002. The agencies' draft guidelines need not be published in the
HUD announced the availability of its draft guidelines for review and comment on HUD's website through a
In response to the draft guidelines, HUD received five public comments. The comments received involved a number of different sections of the draft guidelines. Comments were received from: A public interest group, a legal services organization, a coalition of organizations representing health, safety, civil rights, and environmental concerns, a mortgage company, and an association of home builders. A more detailed discussion of these comments follows:
Several general comments were received urging HUD to use, or adhere more strictly to the statutory terms, language, and definitions contained in OMB's interagency guidelines, including the definition and treatment of the terms “quality” and “affected persons.” Various sections of the final guidelines were modified to address these comments.
Three comments were received generally urging HUD to avoid incorporating existing policies and procedures into new information quality requirements but rather to establish new, stand-alone policies and procedures to apply to the quality, objectivity, utility, and integrity of information HUD disseminates to the public. Another comment urged HUD to retain maximum flexibility in implementing OMB guidelines by incorporating the standards and procedures required by these guidelines into existing information resource management and administrative practices. In developing its final guidelines, HUD noted that OMB generally states in its guidelines to federal agencies that it designed its guidelines to be adaptable to a wide variety of government information dissemination activities, generic, and non-prescriptive, thus allowing agencies the flexibility to incorporate the requirements of the OMB guidelines into the agencies' own information resource management and administrative practices. HUD considered this when addressing the above comments by slight modifications that make it explicit that the Department's existing clearance and approval procedures for information disseminated to the public clearly address the requirements of section 515 and the OMB guidelines. Therefore, the guidelines do not replace existing HUD procedures but rather reaffirm HUD's existing procedures and the agency's adherence to them.
Four comments were received generally urging HUD to provide more detailed contact information for the designated official, to more clearly define the responsible parties and the procedures they will use to ensure quality, and to assign the General Counsel the responsibility for compliance with OMB's final guidelines. With the exception of the latter comment, numerous modifications were made throughout the guidelines to address these comments.
Three comments were received concerning adopting the guidelines as performance standards. In response to these comments, HUD revised the section of the guidelines titled “Purpose,” to state “HUD reviews the standards defined in these guidelines as performance measures and will seek to attain the standards as defined. In implementing these guidelines, HUD
Approximately fifteen comments were received from three respondents concerning the mechanism for requesting information dissemination corrections and the mechanism for processing information dissemination corrections requests. Seven of the comments received generally recommended that HUD's guidelines should provide more clarity and/or add more structure to the process by: (1) Designating an official through which complaints and responses to complaints could be submitted; (2) establishing a formal, independent board to review and act on appeals in an “ombudsman” capacity; (3) more clearly defining terms to ensure that affected persons consistently receive corrections in a timely manner; (4) defining an objective standard for HUD decision-makers to follow when determining the degree and manner in which the disseminated information will be corrected; (5) expressly stating that separate HUD offices and officials shall resolve initial decisions and disagreements on appeals for correcting information; (6) notifying the public or establishing a running public docket of correction requests and changes; and, (7) providing detailed descriptions about how correction requests will be reviewed, who will conduct the reviews, what standards will be used, and how such reviews will be supervised.
One respondent submitted the remaining eight comments on this topic and all eight comments strongly urged HUD to construct these mechanisms cautiously with adequate procedural safeguards to protect the agency from becoming mired down in minor data disputes, bad faith, frivolous, repetitive, or non-timely requests. Further, the respondent recommended limiting the mechanism to only what is required in the Data Quality Act so as to avoid any possibility of creating new rights under administrative law. The eight comments stated that HUD: (1) Should clearly state that the burden of proof lies squarely with the requestor to demonstrate both that they are an affected party and that the challenged information does not comply with OMB's guidelines; (2) limit the administrative mechanism to corrections of factual data and information, and explicitly state that administrative mechanisms will not consider interpretations of data and information, or requests for de-publishing; (3) should limit complaints to information that is not already subject to existing data quality programs and measures; (4) state that similar requests previously responded to may be rejected as frivolous or duplicative; (5) should establish a timeliness requirement for requests after which the agency has the option to reject a request; (6) should limit complaints for any data quality standard that presents a potential moving target (
In response to these 15 comments, the guidelines were modified under the section titled “Designated Official” to include specific language stating that HUD Assistant Secretaries are responsible for ensuring implementation of the guidelines within their respective areas of responsibility. The guidelines were further modified under the section titled “Process for Requesting Correction to Disseminated Information” by adding subsections titled “Submitting Requests,” “Rejecting Requests,” “Processing Requests,” and “Appealing Corrective Decisions.” These subsections set forth specific requirements for the information to be submitted in an information dissemination request, the criteria HUD will use for determining valid correction requests, the process HUD will follow for processing requests determined to be valid, the process for appealing corrective decisions, and the procedures HUD will use for processing requests appealing corrective decisions. Further, these subsections specifically designate the responsible HUD official(s) at each stage of the described process.
Four commenters submitted comments on the definition and standard for “dissemination.” One comment stated that the exemptions were too broad and encompassing to be consistent with the new Information Quality Guidelines and that the guidelines should explain what is meant by “statutorily mandated issuances.” Two other comments generally stated that Congress intended the Data Quality Act standards to apply to all public information despite OMB's exemption of some types and categories of information in its interagency guidelines. Other comments stated that HUD should: (1) Make every effort to clearly assert the limits of these guidelines and preserve the agency's flexibility to accomplish core mandates unfettered; (2) clearly state that the agency does not consider the guidelines judicially reviewable, and that they do not provide any new adjudicatory authority, and (3) clearly state that the guidelines apply to information disseminated from the agency itself and not when the agency is merely acting as a conduit of information. Two commenters stated some uncertainty concerning the applicability of the guidelines to staff working papers made available to the public, including working papers posted on the HUD website. These comments argued that such papers are subject to the guidelines if made available to the public, unless an explicit disclaimer is included in the papers.
In response to these comments and further direction received from OMB on its interagency guidelines, the guidelines were modified under the section titled “Definitions and Standards,” subsection titled “Dissemination” by: (1) Adding specificity to the exemptions listed; (2) adding two exemptions for (a) information presented to Congress as part of the legislative or oversight processes (
Several comments were received concerning “influential information.” One comment concerned the quality standards to be applied to information deemed “influential.” Another comment recommended that the guidelines set clear standards for “influential” information and explain how the requisite criteria for “transparency” and “reproducibility” would be achieved. Related to these comments were comments concerning the need for the guidelines to discuss how the agency will implement enhanced standards for influential information, including “transparency” and “reproducibility” or internal “robustness checks” if privacy, confidentiality, or proprietary concerns prevent disclosure of certain information, making transparency and reproducibility infeasible. Another comment suggested that the agency adopt procedures for identifying influential information. Finally, one comment urged HUD to avoid labeling information as “influential.”
Several areas of the guidelines were modified to address these comments. The “quality” definition and standard was enhanced by including transparency and reproducibility under the “objectivity” aspect of this standard. Peer review was more thoroughly defined to include ensuring that such reviews meet the general criteria recommended by OMB to the President's Management Council on September 20, 2001. A definition and standard was added for robustness checks for disseminated influential information when transparency and reproducibility are infeasible. A definition and standard was added for influential information setting forth specific guidelines for determining whether scientific, financial, or statistical information is influential within the meaning of OMB's guidelines, thus determining the level of scrutiny and pre-dissemination review afforded such information. Finally, the guidelines were modified to reflect that each HUD Assistant Secretary is responsible for determining what constitutes influential information, for developing and documenting specific review and approval procedures for information deemed influential, and to state that these responsibilities and authorities may not be delegated.
Two comments from different respondents were received concerning inclusion of the quality principles of the Safe Drinking Water Act (SDWA) for risk assessment information relating to human health, safety, or the environment. One comment suggested that HUD either adopt or adapt the quality principles of the SDWA as required by the OMB guidelines, while the other comment urged HUD to “adapt” the SDWA standards, further stating that OMB exceeded the congressional mandate and inappropriately asked agencies to either adopt or adapt the SDWA principles. These comments were addressed in the guidelines under the “reproducibility” definition and standard by stating that HUD will use the best available, peer-reviewed science and supporting studies conducted in accordance with sound and objective scientific practices, and data collected by the accepted methods or best available methods (if the reliability of the method and the nature of the decision justifies use of the data).
HUD's final Information Quality Guidelines are as follows—
These guidelines fulfill the requirements of Section 515 of the Treasury and General Government Appropriations Act for Fiscal Year 2001 (Public Law 106-554, H.R. 5658, hereafter referred to as section 515), requiring federal agencies to issue implementing guidelines for ensuring and maximizing the quality, objectivity, utility, and integrity of information they disseminate.
The Department of Housing and Urban Development is committed to ensuring and maximizing the quality, utility, objectivity, and integrity of all information it disseminates to the public. To accomplish this objective, HUD is issuing these guidelines that the Department will follow for reviewing and substantiating the quality of information before it is disseminated to the public. In addition, these guidelines establish an administrative correction procedure by which an affected person may seek and obtain the correction of any information disseminated by HUD that does not comply with these guidelines or the existing clearance and approval procedures the guidelines reference.
HUD views the standards defined in these guidelines and those of the Office of Management and Budget as performance measures and will strive to meet these standards. In implementing these guidelines, HUD acknowledges that ensuring the quality of information is a management objective as important as any other for the Department including the success of agency missions and observing budget and resource priorities and restraints. HUD will implement these guidelines so that they complement and support all other Departmental objectives.
The Department's existing clearance and approval procedures for information disseminated to the public clearly address the requirements of section 515 and the OMB guidelines. Therefore, these guidelines do not replace existing HUD procedures. Rather, these guidelines simply reaffirm HUD's existing clearance and approval procedures for easy reference, to help ensure adherence to them, and thus ensure quality information products. Where HUD's existing clearance and approval procedures do not meet the intent of section 515, new pre-dissemination clearance and approval procedures are described. These new procedures are identified as such.
Section 515 of the Treasury and General Government Appropriations Act for Fiscal Year 2001 (Public Law 106-554; 114 Stat. 2763).
Section 515 directs OMB to issue government-wide guidelines that “provide policy and procedural guidance to federal agencies for ensuring and maximizing the quality, objectivity, utility, and integrity of information (including statistical information) disseminated by federal agencies.” Agencies are required to issue their own implementing guidelines within one year after OMB issues its guidelines. For the convenience of the reader, OMB's final guidelines can be found on:
Section 515 also requires that agency guidelines include “administrative mechanisms allowing affected persons to seek and obtain correction of information maintained and disseminated by the agency.” OMB
• Useful to the intended users;
• Presented in an accurate, reliable, and unbiased manner as a matter of substance and presentation; and,
• Protected from unauthorized access or revision.
HUD's Assistant Secretary for Administration/Chief Information Officer serves as the agency official charged with overseeing HUD's compliance with OMB guidelines for the quality of information disseminated. HUD Assistant Secretaries, individuals of equivalent rank, or Assistant Secretary designates (hereinafter “HUD Assistant Secretaries”), are responsible for ensuring implementation of these guidelines within their respective areas of responsibility. With respect to Office of Inspector General (OIG) information, however, the Inspector General is ultimately responsible for ensuring OIG information is objective, useful, and has integrity, and for determining whether such information should be corrected.
As provided in OMB's guidelines, these guidelines apply only to information HUD disseminates on or after October 1, 2002, including the review of information to ensure quality before it is disseminated to the public. While previously released materials will continue to be used for decision-making and relied upon by the Department and the public as official, authoritative, government information, the materials are, in effect, constantly being re-disseminated and thus subject to these guidelines. Previously released information materials that do not meet these criteria are considered archived information and thus are not subject to these guidelines or to the request for correction process.
HUD will ensure that the information it disseminates to the public is objective (accurate, clear, complete, and unbiased), useful, and has integrity. Additional levels of quality standards may be adopted, as appropriate, for specific categories of disseminated information.
Any communication or representation of knowledge such as facts or data, conveyed in any form or medium, including textual, numerical, graphic, cartographic, narrative, or audiovisual, whether on paper, film, or electronic media, and whether disseminated via facsimile (fax), recording, machine-readable data, or website. This does not include hyperlinks provided to information originated by or in the custody of someone other than HUD. Information does not include opinion, unless that opinion is HUD's official point of view.
Affirmative distribution to the public initiated or sponsored by HUD acting as a publisher, rather than release of information in response to a request from the public. HUD “sponsors” distribution of information if HUD collects the information, causes another agency to collect the information, contracts or enters into a cooperative agreement with a person to collect the information, or requires a person to provide information to someone else. HUD also sponsors information if HUD causes someone else to obtain, solicit, or require disclosure of information by or for HUD to third parties or to the public.
The standards of these guidelines apply not only to information that HUD generates, but also to information that other parties provide to HUD, if the other parties seek to have the Department rely upon or disseminate this information or the Department decides to do so. For example, in commenting on a proposed rule, a trade association supplies a scientific or technical analysis in support of its position on what the final rule should say. In order for HUD to rely upon this information in a subsequent HUD dissemination of information (
Dissemination does NOT include the following types of information and hence this information is not subject to these guidelines:
• Release of information to government employees, agency contractors, or grantees, where such information is restricted or limited to these entities;
• Dissemination intended for intra- or interagency use or sharing of government information;
• Information released under the Freedom of Information Act (FOIA), the Privacy Act, the Federal Advisory Committee Act, or similar law;
• Dissemination limited to correspondence with individuals or persons (regardless of media, example electronic mail);
• Press releases and other information of an ephemeral nature, advising the public of an event or activity of a finite duration—regardless of medium;
• Archival records disseminated by federal agency libraries or similar federal data repositories (
• Library holdings;
• Public filings;
• Distributions intended to be limited to subpoenas or adjudicative processes and decisions;
• Information presented to Congress as part of the legislative or oversight processes (
• Statutorily mandated issuances (
• HUD's release of third party information, views, or opinions, that are clearly identified as information that is not produced or sponsored by HUD; and,
• Procedural, operational, policy, and internal manuals prepared for the management and operations of HUD that are not primarily intended for public dissemination.
These guidelines do not impose any additional requirements on HUD during adjudicative proceedings and do not provide parties to such adjudicative proceedings any additional rights of challenge or appeal.
Encompasses three main aspects of information—utility, objectivity, and integrity, as described below.
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Objective presentation means that information is presented within a proper context to ensure an accurate, clear, complete, and unbiased presentation. Objective substance means the information, data, the analytical process, and the resulting reports are accurate, reliable, and unbiased.
HUD aims to provide objective information but it is important to note that HUD must sometimes rely on outside data that it is unable to duplicate or control due to certain circumstances (
Scientific or statistical information should be presented with supporting data and models to allow intended users to assess the objectivity of the information sources without revealing trade secrets or violating confidentiality and privacy.
Disseminated analytical results that do, or may, have an important effect on development of governmental or private sector policies, or have important consequences for specific technologies, substances, products, or firms, must be capable of being substantially reproduced. This means that independent reanalysis of original or supporting data using the same methods would generate similar analytical results, within an acceptable range of error or imprecision.
In situations involving influential scientific, financial, or statistical information, where public access to data and methods will not occur due to other compelling interests, HUD Assistant Secretaries shall apply especially rigorous robustness checks to analytic results and document the checks that were undertaken.
Results already subjected to formal, independent peer review, before dissemination, are generally considered to be acceptably objective. Nonetheless, this presumption is rebuttable based on a persuasive showing by a petitioner in a particular instance. That is, the burden of proof is on the affected person petitioning HUD for a correction to disseminated information. If HUD uses a peer review, the review process used will meet the general criteria for competent and credible peer review recommended by OMB to the President's Management Council on September 20, 2001. Namely, that (a) peer reviewers be selected primarily on the basis of necessary technical expertise, (b) peer reviewers be expected to disclose to agencies prior technical/policy positions they may have taken on the issues at hand, (c) peer reviewers be expected to disclose to agencies their sources of personal and institutional funding (private or public sector), and (d) peer reviews be conducted in an open and rigorous manner.
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Refers to influential scientific, financial, or statistical information where public access to data and methods will not occur due to other compelling interests. In these situations, HUD Assistant Secretaries shall ensure that the data and methods used to develop the information product are reviewed for: (1) Appropriateness of the methodology; (2) soundness of the analysis and specific analytic methods; (3) soundness of hypotheses and assumptions; (4) statistical procedures; (5) sources of bias or other error, and (6) programmatic and policy implications.
The following discussion is intended as guidance to HUD Assistant Secretaries and other interested persons in determining whether scientific, financial, or statistical information is influential within the meaning of OMB's guidelines. This definition is important because it determines the level of scrutiny and pre-dissemination review afforded to information. It is important to emphasize that this term applies only to scientific, financial, or statistical information. The definition does not address other types of information, no matter how important the information may seem to be. It should also be noted that the definition applies to “information” itself, not to HUD decisions that the information may support. That is, even if a decision or action by HUD is itself very important, a particular piece of information supporting it may or may not be “influential.”
The OMB guidelines define “influential” information as information that the agency reasonably can determine “will have or does have a clear and substantial impact on important public policies or important private sector decisions.” The OMB guidelines assign to HUD the task of defining this term in ways appropriate to the agency and its various programs.
HUD emphasizes that, to be influential, information must have a clear and substantial impact. A clear and substantial impact, first of all, is one that has a high probability of occurring. If it is arguable that an impact will occur, or if it is a close judgment call, then the impact is probably not clear and substantial. The impact must be on “important” public policy or private sector decisions. Even if information has a clear and substantial impact, it is not influential if the impact is not on a public or private decision that is important to policy, economic, or other decisions.
Additionally, in determining if information has a clear and substantial impact, HUD will consider two factors—breadth and intensity—in determining whether information is influential.
Every decision that HUD makes based on disseminated information is important to someone. That does not mean that disseminated information used for each decision is influential, as the term is used in the guidelines.
In determining whether information is influential, HUD Assistant Secretaries shall consider whether information affects a broad range of parties. Information that affects a broad, rather than a narrow, range of parties (
HUD Assistant Secretaries shall also consider whether information has an intense impact or high cost. Information that has a low cost or modest impact on affected parties is less likely to be influential than information that can have a very costly or crucial impact. In considering whether information has a high-intensity impact, HUD Assistant Secretaries shall use the definition of “economic significance” provided in Executive Order (E.O.) 12866, Section 2.f.1, thus using the $100 million figure, as well as other criteria sited in the E.O. definition, to determine the degree of impact. HUD Assistant Secretaries may, however, find this level of intensity in information materials that fall below the benchmark figure.
In most cases, information that has an intense impact on a broad range of parties is regarded as influential. Information that affects a broad range of parties with a low-intensity impact, or information that affects a narrow range of parties with a high-intensity impact, may or may not be influential.
HUD Assistant Secretaries may designate certain classes of information as “influential” or not, in the context of their specific programs. Absent such designations, HUD Assistant Secretaries will determine whether information is influential on a case-by-case basis, using the principles articulated in these guidelines.
The “influential” designation is intended to be applied to information where clearly appropriate. HUD Assistant Secretaries should not designate information products or types of information as influential on a regular or routine basis. Nor should an “influential” label be placed on the title page or text of an information product.
The information is capable of being substantially reproduced, subject to an acceptable degree of imprecision. With respect to analytic results, “capable of being substantially reproduced” means that an independent analysis of the original and supporting data using identical methods would generate similar analytic results, subject to an acceptable degree of imprecision or error. For influential information regarding risks to human health, safety, and the environment, HUD will use the best available, peer-reviewed science and supporting studies conducted in accordance with sound and objective scientific practices, and data collected by the accepted methods or best available methods (if the reliability of the method and the nature of the decision justifies use of the data).
Any person or group who may benefit or be harmed by information disseminated by HUD. This includes persons who are seeking to address information about themselves as well as persons who use information. As defined by the Paperwork Reduction Act of 1995, affected persons include groups, organizations, and corporations.
HUD will review all information to be disseminated to the public for quality, objectivity, utility, and integrity before the information is disseminated to the public. These guidelines apply to information disseminated by HUD on or after October 1, 2002, regardless of when the agency first disseminated the information. Likewise, the agency's administrative mechanisms for correcting information shall apply to information the agency disseminates on or after October 1, 2002, regardless of when the agency first disseminated the information.
HUD will ensure that the quality of its disseminated information, and its pre-dissemination review process, can be substantiated through documentation or other means appropriate to the information.
These guidelines apply to HUD information dissemination products in all media and formats, including printed, electronic, and audio/visual. Information dissemination products include books, papers, CD-ROMs, electronic documents, or other documentary material disseminated to the public by HUD. The guidelines apply to information disseminated to the public by HUD from a web page, but they do not apply to hyperlinks from the HUD website to information that others disseminate. Nor do the guidelines apply to opinions if it is clear that what is being offered is someone's opinion, rather than fact or the agency's official views. For example, the guidelines do not apply to staff working papers that are preliminary in nature and do not represent the official views of the agency.
The Section 515 guidelines issued by OMB focus primarily on the dissemination of substantive information (
As stated in the “Policy” section of these guidelines, HUD's basic quality standard for information involves objectivity, utility, and integrity. Objectivity has two distinct elements—presentation and substance. First, the information must be presented in an accurate, clear, and unbiased manner. Second, as a matter of substance, the information must be accurate, reliable, and unbiased. To the extent possible, and consistent with confidentiality protections, HUD will identify the source of disseminated information so that the public can assess whether the information is objective. The utility of information refers to its usefulness to its intended users, including the public. Integrity refers to the security of information (
HUD Assistant Secretaries shall ensure that all information they disseminate to the public meets the basic quality standard. In that regard, they are responsible for ensuring that the pre-dissemination review and clearance process is performed and documented at a level appropriate for the type of information disseminated and in accordance with existing HUD clearance and approval policies and procedures. They will consider the costs and benefits of using a higher quality standard or a more extensive review process in deciding the appropriate level of quality for a given type of information, and the resulting appropriate level of review and documentation. Additionally, when developing information, HUD offices will treat information quality as integral to every step of information development, including creation, collection, maintenance, and dissemination. This will enable the agency to substantiate the quality of the information it has disseminated through documentation or other means appropriate to the information.
With respect to draft information collection packages to be used to generate information products subject to these guidelines, HUD Assistant Secretaries shall ensure that such draft information collection packages submitted for OMB approval result in the information being collected, maintained, and used in a manner that is consistent with these and OMB's guidelines.
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HUD Directives Handbook, 000.2 REV-2, issued April 18, 2001, entitled “HUD Directives System” outlines the requirements for issuing information that establishes program procedures or processing requirements, whether binding on HUD staff or HUD program participants. It is HUD's policy that HUD Directives must go through Departmental clearance, whether issued as handbooks, direct notices, mortgagee letters, or memoranda, and whether issued in paper or electronic format or posted on HUD's website. HUD Directives advise staff and/or program participants about how to carry out their respective responsibilities under HUD programs or advise potential program participants how to participate in HUD programs. Directives supplement statutes, regulations, and other
Furthermore, Chapter 7 of HUD Handbook 2400.1 (revision currently in Departmental clearance) establishes policy for the use of electronic mail (e-mail), limiting its use to (1) brief, informal communications (
Questions about whether particular issuances constitute a HUD Directive should be referred to the Office of Administration, which oversees the Departmental clearance of HUD Directives.
The Office of Administration is responsible for ensuring that the pre-dissemination review and clearance process outlined above, and in HUD Handbook 000.2 REV-2, is conducted in accordance with the standards contained in the Handbook and adequately documented.
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The policies and procedures outlined in the following paragraph are existing HUD policies and procedures and were designed to ensure the quality of information HUD disseminates to the public. To the extent they apply to disseminated information as defined previously in these guidelines, HUD will assure they meet the standards set forth in these and OMB guidelines. Changes to the Ginnie Mae mortgage-backed securities guide and the multiclass guides shall continue to be issued in accordance with its program procedures.
The Administrative Procedure Act and HUD's Regulations in 24 CFR part 10 require the Department to publish in the
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All such information is approved by and/or coordinated with the Headquarters' Office of Public Affairs. The “Public Affairs Protocol,” as well as the Office's procedures (both are available on HUD's intranet at the Public Affairs Web page) provides information regarding clearance of the above-mentioned issuances.
With respect to OIG Audit Reports, the OIG has standards and review procedures in place that assure that information disseminated to the public is reviewed for objectivity, utility, integrity, the use of sound statistical methods, and transparency of methods, sources, assumptions, and outcomes. In that regard, the OIG adheres to the Government Auditing Standards, issued by the Comptroller General of the United States (the Yellow Book), and the OIG Audit Operations Manual (IG Manual). The Yellow Book prescribes generally accepted government auditing standards, including auditee review and comment on draft findings and recommendations. The IG Manual establishes the policies and procedures to be followed by the OIG, including the supervisory review of audit working papers and reports and the independent referencing of all audit reports prior to issuance. Headquarters staff also reviews audit reports prior to issuance. Further, the OIG undergoes both management and peer reviews on a recurring basis.
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As previously noted, these guidelines apply to information disseminated to the public by HUD from a web page, but they do not apply to hyperlinks from the HUD website to information that others disseminate.
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HUD's existing web procedures dated April 30, 1998, and revised September 2, 2001, are available to the public at
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Meanwhile, it is HUD's policy that the Office of Public Affairs review and provide pre-dissemination approval of all website content of a political or policy nature. It is the responsibility of the appropriate Assistant Secretary or Regional Director to ensure that this review and approval occurs. Additionally, all working papers posted on HUD's public website are to carry a clear legend indicating that the “papers represent the opinions of the author only and are not the agency's official views.”
Text which establishes program procedures, processing requirements, new or revised policy, or binding and enforceable requirements will not be posted to the web without first being approved through the established clearance and approval processes (see “Disseminating Information that Establishes Program Procedures or Processing Requirements” and “Disseminating Information that Establishes New HUD Policy or Revises HUD Policy”). The procedures for removing web postings that are not properly approved will be included in HUD's formal web posting procedures. HUD Assistant Secretaries may request that the responsible posting office remove any Web site content that has not been approved through established clearance and approval processes.
Each Assistant Secretary and Regional Director is responsible for ensuring adherence to these policies. Each must submit written certification that the content of HUD's public website and kiosks for which his/her organization is responsible is both current and accurate. These certifications must be made to the Deputy Secretary on a quarterly basis.
The policies and procedures outlined in this section are existing HUD policies and procedures designed to ensure the quality of information HUD disseminates to the public. To the extent they apply to disseminated information as previously defined in these guidelines, HUD will assure they meet the standards set forth in these and OMB guidelines.
HUD's information integrity standards ensure that appropriate safeguards are in place to prevent unauthorized access or revision, thus helping to ensure that the information is not compromised through corruption or falsification. HUD's existing information integrity standards are set forth in the following issuances:
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The OMB guidelines for implementing Section 515 recognize that some government information may need to meet higher quality standards than the basic standard. The more important the information, the higher the quality standards to which it should be held. In particular, the OMB guidelines require “influential scientific, financial, or statistical information” to meet a high standard of quality. The OMB definition of “influential” is set forth in Section VII, Paragraph E of these guidelines.
HUD is committed to the standards stated in OMB's information quality guidelines, specifically with respect to applying especially rigorous robustness checks to analytic results and to document the checks that were undertaken. At this time, HUD is not prepared to identify the kinds of original and supporting data to be subject to the reproducibility standard. Nonetheless, HUD shall assure reproducibility for those kinds of original and supporting data according to commonly accepted scientific, financial, or statistical standards. Additionally, the standards of these and OMB guidelines apply not only to information that HUD generates, but also to information that other parties provide to HUD, if the other parties seek to have the Department rely upon or disseminate this information or the Department decides to do so.
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Any issuance of information that has not been subjected to the procedures identified in the previous paragraph, but which, in the view of the responsible HUD Assistant Secretary, requires a higher quality standard than outlined under the procedures for ensuring quality of information at the basic standard, must be cleared through Departmental clearance.
To facilitate review by affected persons, this section establishes administrative mechanisms allowing affected persons to seek and obtain, where appropriate, timely correction of information maintained and disseminated by HUD. These administrative mechanisms have been designed to be flexible, appropriate to the nature and timeliness of the disseminated information, and incorporated into HUD's existing information resources management and administrative practices.
An affected person (see Section VII, Paragraph G under “Definitions and Standards”) may request the timely correction of information disseminated by HUD. This includes persons who are seeking to address information about themselves as well as persons who use information.
In determining whether to respond to a complaint, the Department will consider whether the information or the request for correction is “stale.” If HUD did not disseminate this information recently (
The correction process is designed to address the genuine and valid needs of HUD and its constituents without disrupting agency operations. HUD, in making a determination of whether or not to correct information, may reject claims made in bad faith or without justification. HUD will explain decisions to deny or limit corrective actions in annual reports to OMB on complaints regarding agency compliance with these guidelines.
Documents and information disseminated, but not sponsored, by HUD are not covered by these guidelines. In disseminating such materials, HUD assumes no responsibility for their accuracy and is simply ensuring that the public has quicker and easier access to such materials.
Rulemakings and Other Public Comment Procedures—HUD will consider requests for correction of a study, analysis or other information prior to the final agency action or information product if: (1) HUD determines that its response would not unduly delay final issuance of the HUD action or information product, and (2) the complainant shows a reasonable likelihood of suffering actual harm from HUD's dissemination if HUD does not resolve the complaint prior to the final agency action or information product.
With respect to the correction of OIG information, as used below: “Office of the Assistant Secretary for Administration” shall be understood to mean the Office of Inspector General, U.S. Department of Housing and Urban Development, 451 Seventh Street, SW, Room 8256, Washington, DC 20410; the “Assistant Secretary of the office that originated the subject information,” the “responsible Assistant Secretary” and/or the “Assistant Secretary” shall be understood to mean the Assistant Inspector General for Audit; and the “Assistant Secretary for Administration” shall be understood to mean the Deputy Inspector General.
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a. A statement that a request for correction of information is submitted under HUD's Information Quality Guidelines;
b. The complainant's name, mailing address, e-mail address, telephone number, facsimile (fax) number, and organizational affiliation, if any. HUD will not respond to anonymous requests;
c. A clear identification of the information dissemination source (
d. A description of how the information in question affects the complainant or the affected person(s) for whom the correction request is being submitted (
e. A description of the specific information that the complainant wants the Department to correct. Where possible, the request should include such identifying characteristics as the name of the HUD office that originated the data, title, date, etc.;
f. A description of why the complainant believes the information in question is inconsistent with the Department's or OMB's information quality guidelines (
g. Specific recommendations for what corrections HUD should make to the information in question and reasons for believing that these recommended corrections would make the information consistent with the Department's information quality guidelines; and,
h. Documentary evidence believed to be relevant to the request (
Written requests sent via letter should be addressed to: U.S. Department of Housing and Urban Development, Assistant Secretary for Administration, Seventh Street, SW., Washington, DC 20410.
HUD currently is evaluating both new and existing e-mail response software to further facilitate implementing these final procedures for responding to information correction requests received via HUD's web mail system. HUD's internal operating procedures and associated responsibilities/authorities for appropriately responding to and tracking information correction requests will be included in HUD's formal web
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a. Did HUD (as opposed to some other person or organization) actually disseminate the information HUD is being asked to correct?
b. Is the complainant affected by the information in question or is the person(s) for whom the correction request is being submitted affected by the information in question?
c. Did HUD disseminate this information recently (
d. With respect to information in a final rule, final environmental impact statement, or other final document where there was an opportunity for public comment or participation, could interested persons have requested the correction of the information in question at the proposed stage and, if so, has the complainant shown a reasonable likelihood of an affected person suffering actual harm from HUD's dissemination if HUD does not resolve the complaint prior to the final agency action or information product?
e. Is the information in question exempt from these Guidelines?
f. Is the request frivolous or not germane to the substance of the information in question?
g. Has HUD responded previously to a request that is the same or substantively very similar?
If the responsible Assistant Secretary determines that the answer to Question a, b, c, or d is “no” or that the answer to Question e, f, or g is “yes,” then HUD will reject the request. If the request is rejected, the responsible Assistant Secretary will respond in writing within 60 calendar days of receiving the request. Written responses may be sent via letter, e-mail or facsimile (fax).
3.
The responsible Assistant Secretary will coordinate with HUD officials as appropriate to determine whether or not to correct information. HUD will correct information and disseminate the corrected information only to the degree and in the manner that the responsible Assistant Secretary, in consultation with HUD officials as he/she deems appropriate, concludes is appropriate for the nature and timeliness of the information involved. Each Assistant Secretary will maintain a record of all information dissemination correction requests and decisions for a period of at least five years. Each Assistant Secretary will aggregate the data for his/her area annually, and provide the aggregated data to the Assistant Secretary for Administration, who is responsible for preparing HUD's annual report to OMB regarding requests for correcting information (see “Submitting Annual Reports to OMB”). The report prepared by the Assistant Secretary should differentiate between requests for correction to website information and corrections requested to other information disseminated under the jurisdiction of the Assistant Secretary.
4.
Appeals for reconsideration must be in writing. The envelope and the reconsideration request both should be clearly marked “Information Correction Reconsideration Request” and addressed to: U.S. Department of Housing and Urban Development, Assistant Secretary for Administration, 451 Seventh Street, SW., Washington, DC 20410.
HUD will submit annual reports to the Director of OMB on the number and nature of complaints received concerning agency compliance with these guidelines beginning January 1, 2004. Reports, prepared by the Assistant Secretary for Administration, will contain complaint and correction information dealt with during each fiscal year and will be submitted no later than January 1 of the following year. The report is to contain both quantitative and qualitative information about the complaints received, the nature of the complaints, and the resolution of those complaints. The report is to include an explanation of agency decisions to deny or limit corrective action. HUD will develop a uniform process for tracking, collecting, and reporting on the disposition of information correction requests.
The first report will cover Fiscal Year 2003 and be submitted to OMB by January 1, 2004.
Department of Education.
Final regulations.
The Department of Education (Department) issues these final regulations to adjust the Department's civil monetary penalties (CMPs) for inflation. These are the first such adjustments made by the Department, and all of the increases are limited to 10 percent.
These regulations are effective November 18, 2002.
Kenneth C. Depew, Office of the General Counsel, U.S. Department of Education, 400 Maryland Avenue, SW., room 6E227, Washington, DC 20202-2241. Telephone: (202) 401-8300.
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The Federal Civil Penalties Adjustment Act of 1990 (Inflation Adjustment Act) (28 U.S.C. 2461 note), as amended by the Debt Collection Improvement Act of 1996 (DCIA) (31 U.S.C. 3701 note), provides for the regular evaluation of CMPs to ensure that they continue to maintain their deterrent value. As amended by the DCIA, the Inflation Adjustment Act requires that each agency issue regulations to adjust its CMPs beginning in 1996 and at least every 4 years thereafter. The first adjustment of any CMP is limited to 10 percent of the amount of the penalty.
A CMP is defined in the statute as any penalty, fine, or other sanction that is (1) for a specific monetary amount as provided by Federal law, or has a maximum amount provided for by Federal law; (2) assessed or enforced by an agency pursuant to Federal law; and (3) assessed or enforced pursuant to an administrative proceeding or a civil action in the Federal courts.
The formula for the amount of a CMP inflation adjustment is prescribed by law and is not subject to the exercise of discretion by the Secretary of the Department of Education (Secretary). The adjustment reflects the percentage increase in the Consumer Price Index for all urban consumers (CPI-U) published by the Department of Labor from June of the calendar year in which the amount was last set or adjusted pursuant to law, to June of the calendar year preceding the adjustment.
The Department did not adjust its CMPs for inflation in 1996 and since then has not adjusted the CMPs that were in effect in 1996. By statute the Department's first adjustment of a CMP may not exceed 10 percent of such a penalty, and, therefore, we are adjusting those CMPs by no more than 10 percent. The Department is precluded from making subsequent adjustments to these CMPs until 2004, and even then, the Department may adjust these CMPs only for percentage increases in the CPI-U after June 2002.
Two of the Department's CMPs were enacted as part of the Higher Education Amendments of 1998 (Pub. L. 105-244). These CMPs are 20 U.S.C. 1015(c)(5), which provides for a fine of up to $25,000 for failure by an institution of higher education (IHE) to provide information on the cost of higher education to the Commissioner of Education Statistics, and 20 U.S.C. 1027(f)(3), which provides for a fine of up to $25,000 for failure by an IHE to provide information to the State and the public regarding its teacher preparation programs. Although 4 years have passed since enactment of these penalties, not enough inflation has occurred to require an adjustment under the Inflation Adjustment Act.
Two additional points regarding the Department's adjustments are worth noting. First, the Department is using the following CPI-U figures: 109.5 for June 1986; 124.1 for June 1989; 163 for June 1998; and 178 for June 2001. And second, the increases to the Department's CMPs due to these inflation adjustments apply only to violations that occur after the effective date of the adjustments.
Under the Administrative Procedure Act (5 U.S.C. 553), the Department generally offers interested parties the opportunity to comment on proposed regulations. However, these regulations merely implement the statutory mandate to adjust CMPs for inflation. The regulations reflect administrative computations performed by the Department as prescribed by the statute and do not establish or affect substantive policy. Therefore, under 5 U.S.C. 553(b)(B), the Secretary has determined that public notice and comment are impracticable, unnecessary, and contrary to the public interest.
The Secretary certifies that these regulations will not have a significant economic impact on a substantial number of small entities. The formula for the amount of the inflation adjustments is prescribed by statute and is not subject to the exercise of discretion by the Secretary. These CMPs are infrequently imposed by the Secretary, and the regulations do not involve any special considerations that might affect the imposition of CMPs on small entities.
These regulations do not contain any information collection requirements.
Based on our own review, we have determined that these final regulations do not require transmission of information that any other agency or authority of the United States gathers or makes available.
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Administrative practice and procedure, Claims, Fraud, Penalties.
Administrative practice and procedure, Colleges and universities, Education, Loan programs-education, Student aid.
28 U.S.C. 2461 note and 31 U.S.C. 3701 note, unless otherwise noted.
The purpose of this part is to make inflation adjustments to the civil monetary penalties within the jurisdiction of the Department of Education. These penalties are subject to review and adjustment as necessary at least once every 4 years in accordance with the Federal Civil Penalties Inflation Adjustment Act of 1990, as amended.
The citations for the adjusted penalty provisions, a brief description of the penalty, and the adjusted maximum (and minimum, if applicable) penalty amounts are listed in Table I.
20 U.S.C. 1001, 1002, 1003, 1085, 1091, 1091b, 1092, 1094, 1099c, and 1099c-1, unless otherwise noted.
As adjusted in accordance with the Federal Civil Penalties Inflation Adjustment Act of 1990, as amended (28 U.S.C. 2461 note).