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Agricultural Marketing Service, USDA.
Final rule.
The U.S. Department of Agriculture (USDA) is adopting, as a final rule, without change, an interim final rule that amended the regulations to provide mandatory grading for kinds of tobacco approved by a majority of producers voting in the mandatory grading referenda and to reduce the fee for mandatory grading from $.01 per pound to $.009 per pound.
November 20, 2002.
John P. Duncan III, Deputy Administrator, Tobacco Programs, Agricultural Marketing Service (AMS), U.S. Department of Agriculture (USDA), STOP 0280, 1400 Independence Avenue, SW., Washington, DC 20250-0280; telephone number (202) 205-0567.
In accordance with section 759 of the Appropriations Act (Pub. L. 107-76; 7 U.S.C. 511s), USDA conducted referenda among producers of each kind of tobacco that is eligible for price support under the Agricultural Act of 1949 (7 U.S.C. 1421
A notice of referenda was published in the
A majority of producers voting in the referenda favored the mandatory grading of flue-cured tobacco, types 11, 12, 13, and 14; burley tobacco, type 31; Kentucky-Tennessee fire-cured tobacco, types 22 and 23; Virginia fire-cured tobacco, type 21; Virginia sun-cured tobacco, type 37; and dark air-cured tobacco, types 35 and 36.
Producers of cigar filler and binder tobacco, types 42, 43, 44, 53, 54, and 55 did not approve mandatory grading.
The Appropriations Act provided that, if a majority of the producers voting in the referenda favored the mandatory grading of that kind, USDA was directed to ensure that the kind of tobacco is graded at the time of sale for the 2002 and subsequent marketing years. The USDA was also directed to establish user fees for any such inspections. To the maximum extent practicable, these fees must be established, collected, and used in the same manner as user fees for the grading of tobacco sold at auction authorized under the Tobacco Inspection Act (7 U.S.C. 511
The USDA published in the
This rule amended 7 CFR part 29, subpart B, regulations, to provide for mandatory grading at places other than designated tobacco auction markets. The regulations prior to the effective date of the interim rule only required grading of tobacco that was sold at auction on designated markets as set forth in § 29.8001. The regulations were amended in this rule to include producer tobacco sold at locations (receiving stations) where tobacco is offered for marketing or shipment into commerce, other than at designated auction markets. Additionally, the regulations were amended, at subpart B, to reference the implementing authority contained in the Appropriations Act. The Tobacco Inspection Act will continue to be referenced for kinds of tobacco sold at auction on designated markets not required under the Appropriations Act.
In the past, producers sold almost all of their tobacco at auction on designated markets. Last year, most producer tobacco was sold under contract and was delivered to receiving stations operated by buying concerns. Some of this tobacco was graded under the permissive grading program.
This rule added a definition of “receiving station” as meaning “Points at which producer tobacco is offered for marketing (other than sale at auction on a designated market), including tobacco auction warehouses, packing houses, prizeries, or places where tobacco is handled or stored.” This definition is intended to be flexible enough to cover the circumstances in which producer tobacco may be marketed.
Also, the regulations were amended to provide for proper display of tobacco, adequate space to perform inspections at receiving stations and the issuance of
The user fee for mandatory inspection of tobacco was increased from $.0083 to $.0100 per pound in 2001 to cover the costs of performing grading services and to maintain an adequate reserve to cover program financial responsibilities. During the 2001 crop-year, the Department only graded 31 percent of the total amount of tobacco marketed. However, with the adoption of mandatory grading of all tobacco, except cigar types, approximately 98 percent of tobacco marketed will require federal grading for the 2002 and subsequent crop years.
As a result of resources being more efficiently utilized over a larger geographical area and the additional revenue generated, the fee is reduced from $.010 to $.009 per pound. The reduced fee was recommended by the National Advisory Committee for Tobacco Inspection Services at its meeting on April 16, 2002.
The AMS reviews its user fee programs annually to determine if fees are adequate. The most recent review determined that the previous fee schedule was more than adequate for the 2002 crop-year and would exceed the target level for the operating reserve balances.
Due to an estimated 69 percent increase in tobacco to be inspected for the 2002 crop-year, obligations are estimated at $10,152,000 and revenues are expected to be $8,503,000 for a loss of $1,649,000. An analysis of available data indicates that a fee of $.009 per pound would result in maintaining the operating reserve balance at $6,279,000 for the 2002 crop-year and $4,357,000 for the 2003 crop-year which is adequate to meet financial obligations.
This rule has been determined to be not significant for purposes of Executive Order 12866, and, therefore, has not been reviewed by the Office of Management and Budget.
This rule has been reviewed under Executive Order 12988, Civil Justice Reform. This action is not intended to have retroactive effect. The rule will not exempt any State or local laws, regulations, or policies, unless they present an irreconcilable conflict with this rule. There are no administrative procedures which must be exhausted prior to any judicial challenge to the provisions of this rule.
In conformance with the provisions of the Regulatory Flexibility Act (5 U.S.C. 601
The information collection requirements that appear in part 29 have been previously approved by the Office of Management and Budget under OMB Control No. 0581-0056.
Administrative practice and procedure, Advisory committees, Government publications, Imports, Pesticides and pests, Reporting and recordkeeping procedures, Tobacco.
For the reasons set forth in the preamble, 7 CFR part 29 is amended as follows:
Agricultural Marketing Service, USDA.
Final rule.
This rule revises the United States Standards for Grades of Apples. These standards are issued under the Agricultural Marketing Act of 1946. The rule will provide for the mixed varieties and change the color requirements for apples by reducing the number of apple varieties required to meet specific minimum color requirements. It also deletes the provision that apples be “carefully hand-picked.” The “U.S. No. 1 Early grade” and the “Unclassified” section will be deleted. Size specifications will be changed to allow Red Delicious and Golden Delicious varieties to meet either a minimum diameter or a minimum weight (currently these varieties must meet a minimum diameter designation). Changes will also be made to the application of tolerances for the purpose of allowing greater tolerances for defects in individual packages which contain 10 pounds or less, provided that the averages for the lot as a whole are met. The marking requirements will be changed by adding variety and grade to required markings on containers. The term “brown surface discoloration” will be added to the provisions which contain the requirements for the various grades of apples. The classification of “Bitter pit” and “Jonathan spot” will be clarified. The definition of “fairly tight” will be revised. Also, the U.S. Condition Standards for Export will be revised by removing the tolerance for slight scald
December 19, 2002.
David Priester, Standardization Section, Fresh Products Branch, Fruit and Vegetable Programs, Agricultural Marketing Service, U.S. Department of Agriculture, 1400 Independence Avenue, SW., Room 2065 South Building, STOP 0240, Washington, DC 20250; Fax (202) 720-8871.
The Office of Management and Budget has waived the review process required by Executive Order 12866 for this action. This rule has been reviewed under Executive Order 12988, Civil Justice Reform. This action is not intended to have retroactive effect. This rule will not preempt any state or local laws, regulations, or policies, unless they present an irreconcilable conflict with this rule. There are no administrative procedures which must be exhausted prior to any judicial challenge to the provisions of the rule.
The Agricultural Marketing Service (AMS) received a request to update and revise the United States Standards for Grades of Apples from the U.S. Apple Association (USAA). The USAA is a trade association representing over 500 individual apple business-related firms including growers, packers, shippers, processors, and industry suppliers. In addition, the USAA also represents approximately 9,000 apple growers throughout the U.S. through affiliation with state or regional apple associations. The Department and the USAA have been working closely together over the past eleven years to identify issues, defects, tolerances, and marketing practices related to apples for fresh market sale for the purpose of updating the United States Standards for Grades of Apples. This rule revising the United States Standards for Grades of Apples will benefit all aspects of the apple industry with regard to these areas and make the standards current with today's marketing trends and practices.
Pursuant to the requirements set forth in the Regulatory Flexibility Act (RFA), AMS has considered the economic impact of this action on small entities. The purpose of the RFA is to fit regulatory actions to the scale of businesses subject to such actions in order that small businesses will not be unduly or disproportionately burdened. Accordingly, AMS has prepared this final regulatory flexibility analysis.
This rule will revise the U.S. Standards for Grades of Apples that were issued under the Agricultural Marketing Act of 1946. This amendment of the standards will: Revise the basic requirement sections of each grade by providing for mixed varieties; delete the reference to “carefully hand-picked” revise the reference to “scald” by using the term “brown surface discoloration”; clarify the classification of “Bitter pit” and “Jonathan spot”; place the definitions for bruising in their appropriate places; delete the “U.S. No. 1 Early grade”; revise the color requirements section by redefining the requirements and requiring less varieties to meet these requirements; delete the “Unclassified” section; designate weight equivalents (in grams) for certain diameter sizes of Red Delicious and Golden Delicious varieties; revise the “application of tolerances” section in regard to consumer packages; and add variety and grade to the marking requirements section. Based on comments received, the definition of “fairly tight” will be revised.
The U.S. Standards for Grades of Apples and the U.S. Condition Standards for Export are both voluntary standards. There are no regulatory provisions that require the use of these standards with the exception of the Export Apple Act (7 U.S.C. 581
According to USDA's National Agricultural Statistics Service (NASS) report of the 1997 Census of Agriculture, there are approximately 18,500 apple farms in the United States. Further, NASS information indicates that, in 1998, these 18,500 farms produced over 11 billion pounds of apples. Approximately 55 percent of the 1998 crop was eaten as fresh fruit. In 1999, apple production was down to 10 billion pounds. The top five producing states were Washington, New York, Michigan, California, and Pennsylvania, respectively. These five states collectively produced over 83 percent of the total 1998 U.S. apple crop.
Small agricultural service firms, which include handlers, have been defined by the Small Business Administration (SBA) (13 CFR 121.201) as those having annual receipts of less than $5,000,000 and small agricultural producers are defined as those having annual receipts of less than $750,000. The apple industry is characterized by growers and handlers whose farming operations generally involve more than one type (such as fresh market utilization versus processed market utilization) and variety of apple, and whose income from farming operations is not exclusively dependent on one apple variety or even one commodity. Typical apple growers and shippers produce multiple varieties of fresh market apples within a single year. It is estimated that the majority of the producers do have overall gross annual receipts greater than $750,000. Additionally, there are approximately 5,100 apple handlers (
This rule will revise the U.S. Standards for Grades of Apples. These changes are intended to update the standards to maintain their usefulness in today's markets. For example, the color requirements that appear in the current standards are much the same as those that were published in 1923, even though many of the varieties marketed then are no longer marketed, or marketed in a significant volume. This action will make the standards more consistent and uniform with current marketing trends and commodity characteristics. Therefore, it should benefit handlers and growers regardless of their size. Further, the benefits of this rule are not expected to be disproportionately greater or smaller for small handlers or producers than for larger entities. Alternatives were considered for this action. One alternative would be to not issue the rule. However, the need for revision increases due to ever changing market characteristics, and the revisions represents approximately 10 years of research, surveys, and other input from all sectors of the apple industry and government. Further, since the purpose of these standards is to facilitate the marketing of agricultural commodities, not revising them by upgrading the
This action will not impose any additional reporting or recordkeeping requirements on either small or large apple producers, handlers, or importers. In addition, other than discussed above, the Department has not identified any Federal rules that duplicate, overlap, or conflict with this rule.
The proposed rule, United States Standards for Grades of Apples, was published in the
A total of six comments were received during the comment period. These included comments from industry associations representing growers, packers, shippers, processors, and State Departments of Agriculture.
One comment, received from an industry association, was in favor of the proposal in its entirety. This comment stated that it is expected that these changes will more accurately represent typical commercial practices and standards within the apple industry.
Two comments were received in favor of the proposal with the exception of the allowing for weight equivalents for diameter sizes of the Red Delicious and Golden Delicious varieties. One comment received from a State Department of Agriculture opposed this change. The reason given was that this change would burden inspection services in all states by requiring the purchase of multiple gram scales. State inspection services generally inspect other products which require the use of scales. AMS believes that although there may be a need to purchase additional scales, the cost of these scales would not be substantial enough to override the industry's request to allow for these equivalents. In another comment, an FVP staff member expressed the opinion that weight equivalents for diameter sizes would make it difficult to perform inspections. Additionally, the commenter expressed concern that by only allowing two varieties to use the weight equivalent for diameter sizes would be inequitable. AMS experience with performing inspection for products having weight equivalents for diameter sizes has not proven to increase the level of difficulty. In regard to the commentors concern of only allowing two varieties to use weight equivalents, these two varieties were specified due to their characteristic shape. Their shape can often be elongated rather than wide. The result is a product that actually has more edible flesh but is still unable to meet minimum diameter size requirements. AMS believes that the use of weight equivalents for diameter sizes should remain as stated in the proposal.
One comment was received from a company which stores, packs, and markets apples both domestically and for export; this company also represents growers. The comment was generally in agreement of the proposal. However, the comment addressed two issues. The first being the removal of the phrase “carefully handpicked.” The commenter felt that this phrase is useful in encouraging growers to be careful in the handling of apples. AMS proposed this deletion and its corresponding definition because it is difficult to determine if an apple has been “carefully handpicked.” Further, this requirement was not intended to prevent machine picked apples from making a U.S. grade. Therefore, AMS believes “carefully handpicked” and its corresponding definition should be deleted as proposed. The commenter also stated, in its opinion the term “surface scald” would be a better term than “brown surface discoloration.” As stated in the proposed rule, there are several defects that occur simply as brown surface discoloration. Surface scald cannot be differentiated from these defects by the naked eye. AMS believes it is more accurate to group these defects together as “brown surface discoloration” rather than “scald.”
One comment by a State Department of Agriculture recommended removing the word “surface” in the definition of damage by bitter pit. This commenter stated, “Often bitter pit cannot be detected unless the fruit is cut and examined internally.” The Department's Agricultural Handbook 376 states (with regard to bitter pit), “If observed at the earliest visible stage, the skin over the affected area appears as water-soaked.” Although bitter pit does affect the flesh of the apple it is not discernable until the skin is affected. Therefore, AMS believes the definition damage by bitter pit should remain as in the proposal. This commenter also noted an error in the proposed rule. The “Discussion of the Proposed Rule” section stated “section 51.300, U.S. Extra Fancy, section 51.301, U.S. Fancy, and section 51.303, U.S. Utility currently states that apples must be ‘of one variety.’ This would be changed to ‘* * * consists of apples of one variety (except when more than one variety is printed on the container)’ to allow for mixed variety lots.” However, in the actual wording of the standards section of the proposed rule, these sections state, “* * * consists of apples of similar varietal characteristics (except when the name of more than one variety is printed on the container).” These sections should be as stated in the “Discussion of the Proposed Rule” section and are corrected in this final rule.
A comment from a State Department of Agriculture stated, “I would urge USDA to consider exempting the “Euro” carton from the requirements of fairly well filled and fairly tight which will allow for new marketing trends to enhance marketing rather than impede progress.” Apples packed in tray or cell packed cartons are required to be at least fairly tight or fairly well filled in order to meet packing requirements in section 51.310. Fairly tight and fairly well filled are defined within these requirements as follows: “Fairly tight” means that apples are of the proper size for molds or cell compartments in which they are packed, and that molds or cells are filled in such a way that no more than slight movement of apples within molds or cells is possible. The top layer of apples, or any pad or space filler over the top layer of apples, shall be not more than
Agricultural commodities, Food grades and standards, Fruits, Nuts,
7 U.S.C. 1621—1627.
“U.S. Extra Fancy” consists of apples of one variety (except when more than one variety is printed on the container) which are mature but not overripe, clean, fairly well formed, free from decay, internal browning, internal breakdown, soft scald, scab, freezing injury, visible water core, and broken skins. The apples are also free from injury caused by bruises, brown surface discoloration, smooth net-like russeting, sunburn or sprayburn, limb rubs, hail, drought spots, scars, disease, insects, or other means. The apples are free from damage caused by bitter pit or Jonathan spot and by smooth solid, slightly rough or rough russeting, or stem or calyx cracks, as well as damage by invisible water core after January 31st of the year following the year of production except for the Fuji variety of apples. Invisible water core shall not be scored against the Fuji variety of apples under any circumstances. For the apple varieties listed in table I of § 51.305, each apple of this grade has the amount of color specified for the variety. (
“U.S. Fancy” consists of apples of one variety (except when more than one variety is printed on the container) which are mature but not overripe, clean, fairly well formed, and free from decay, internal browning, internal breakdown, soft scald, freezing injury, visible water core, and broken skins. The apples are also free from damage caused by bruises, brown surface discoloration, russeting, sunburn or sprayburn, limb rubs, hail, drought spots, scars, stem or calyx cracks, disease, insects, bitter pit, Jonathan spot, or damage by other means, or invisible water core after January 31st of the year following the year of production, except for the Fuji variety of apples. Invisible water core shall not be scored against the Fuji variety of apples under any circumstances. For the apple varieties listed in table I of § 51.305, each apple of this grade has the amount of color specified for the variety. (
“U.S. No. 1” consists of apples which meet the requirements of U.S. Fancy grade except for color, russeting, and invisible water core. In this grade, less color is required for all varieties listed in table I of § 51.305. Apples of this grade are free from excessive damage caused by russeting which means that apples meet the russeting requirements for U.S. Fancy as defined under the definitions of “damage by russeting,” except the aggregate area of an apple which may be covered by smooth net-like russeting shall not exceed 25 percent; and the aggregate area of an apple which may be covered by smooth solid russeting shall not exceed 10 percent:
(a)
(b) [Reserved]
“U.S. Utility” consists of apples of one variety (except when more than one variety is printed on the container) which are mature but not overripe, not seriously deformed and free from decay, internal browning, internal breakdown, soft scald, and freezing injury. The apples are also free from serious damage caused by dirt or other foreign matter, broken skins, bruises, brown surface discoloration, russeting, sunburn or sprayburn, limb rubs, hail, drought spots, scars, stem or calyx cracks, visible water core, bitter pit or Jonathan spot, disease, insects, or other means. (
(a) Combinations of the above grades may be used as follows:
(1) Combination U.S. Extra Fancy and U.S. Fancy;
(2) Combination U.S. Fancy and U.S. No. 1; and
(3) Combination U.S. No. 1 and U.S. Utility.
(b) Combinations other than these are not permitted in connection with the U.S. apple grades. When Combination grades are packed, at least 50 percent of the apples in any lot shall meet the requirements of the higher grade in the combination. (
In addition to the requirements specified for the grades set forth in §§ 51.300 to 51.304, apples of these grades shall have the percentage of color specified for the variety in table I appearing in this section. All apple varieties other than those appearing in table I shall have no color requirements pertaining to these grades. For the solid red varieties, the percentage stated refers to the area of the surface which must be covered with a good shade of solid red characteristic of the variety:
These color standards will be available for examination and purchasing information in the Fresh Products Branch, Fruit and Vegetable Programs, AMS, U.S. Department of Agriculture, South Building, Washington, DC 20250; in any field office of the Fresh Products Branch; or upon request of any authorized inspector of the Fresh Fruit and Vegetable Inspection Service.
In order to allow for variations incident to proper grading and handling in each of the grades in 51.300, 51.301, 51.302, 51.303, and 51.304 the following tolerances are provided as specified:
(a)
(2)
(b) When applying the foregoing tolerances to Combination grades, no part of any tolerance shall be allowed to reduce, for the lot as a whole, the 50 percent of apples of the higher grade required in the combination, but individual containers shall have not less than 40 percent of the higher grade.
(c)
The contents of individual packages in the lot, are subject to the following limitations:
(a) Packages which contain more than 10 pounds:
(1) Shall have not more than one and one-half times a specified tolerance of 10 percent or more and not more than double a tolerance of less than 10 percent, except that at least one apple which is seriously damaged by insects or affected by decay or internal breakdown may be permitted in any package.
(2) [Reserved]
(b) Packages which contain 10 pounds or less:
(1) No package may have more than 3 times the tolerance specified, except that at least three defective apples may be permitted in any package:
(2) [Reserved]
(a) When the numerical count is marked on the container, containers are packed to weigh ten pounds or less, or in any container where the minimum diameter of the smallest apple does not vary more than
(b) In all other cases except those listed in paragraph (a) of this section, they shall be calculated on the basis of weight.
Decay, scald, or any other deterioration which may have developed on apples after they have been in storage or transit shall be considered as affecting condition and not the grade.
(a) Apples tray packed or cell packed in cartons shall be arranged according to approved and recognized methods. Packs shall be at least fairly tight
(b) Closed cartons containing apples not tray or cell packed shall be fairly well filled or the pack shall be sufficiently tight to prevent any appreciable movement of the apples.
(c) Packs in wooden boxes or baskets shall be sufficiently tight to prevent any appreciable movement of apples within containers when the packages are closed. Each wrapped apple shall be completely enclosed by its individual wrapper.
(d) Apples on the shown face of any container shall be reasonably representative in size, color and quality of the contents.
(e) Tolerances: In order to allow for variations incident to proper packing, not more than 10 percent of the containers in any lot may fail to meet these requirements.
Variety (or varieties if more than one is packed in the container), grade, and the numerical count or minimum diameter of apples packed in a closed container shall be indicated on the container. For apple lots utilizing the combined diameter/weight designations for Red Delicious and Golden Delicious varieties, the minimum diameter and minimum weight of apples packed in a closed container shall be indicated on the container.
(a) When the numerical count is not shown, the minimum diameter or, in the case of Red Delicious or Golden Delicious lots where minimum diameter/weight designations have been chosen, the minimum diameter and weight as designated in table II, shall be plainly stamped, stenciled or otherwise marked on the container in terms of whole inches, or whole inches and not less than eighth inch fractions thereof in the following manner: “A” inches or “B” grams, where “A” corresponds to one of the diameter measurements in terms of inches listed in table II and “B” corresponds to the weight measurement in grams as indicated in table II. Both diameter and weight must be shown using the word “or” between the given measurements.
(b) The word “minimum,” or its abbreviation, when following a diameter size marking, means that the apples are of the size marked or larger. (
(a)
(b)
(c)
(d)
(a) Russeting in the stem cavity or calyx basin which cannot be seen when the apple is placed stem end or calyx end down on a flat surface shall not be considered in determining whether an apple is injured by russeting. Smooth net-like russeting outside of the stem cavity or calyx basin shall be considered as injury when an aggregate area of more than 10 percent of the surface is
(b) Sunburn or sprayburn, when the discolored area does not blend into the normal color of the fruit.
(c) Dark brown or black limb rubs which affect a total area of more than one-fourth inch in diameter, except that light brown limb rubs of a russet character shall be considered under the definition of injury by russeting.
(d) Hail marks, drought spots, other similar depressions or scars:
(1) When the skin is broken, whether healed or unhealed;
(2) When there is appreciable discoloration of the surface;
(3) When any surface indentation exceeds one-sixteenth inch in depth;
(4) When any surface indentation exceeds one-eighth inch in diameter; or
(5) When the aggregate affected area of such spots exceeds one-half inch in diameter.
(e) Bruises which are not slight and incident to proper handling and packing, and which are greater than:
(1)
(2)
(3) any combination of lesser bruises which detract from the appearance or edible quality of the apple to an extent greater than any one bruise described in paragraphs (1) or (2) of this section.
(f) Brown surface discoloration when caused by delayed sunburn, surface scald, or any other means and affects an area greater than
(g) Disease: (1) Cedar rust infection which affects a total area of more than three-sixteenths inch in diameter.
(2) Sooty blotch or fly speck which is thinly scattered over more than 5 percent of the surface, or dark, heavily concentrated spots which affect an area of more than one-fourth inch in diameter.
(3) Red skin spots which are thinly scattered over more than one-tenth of the surface, or dark, heavily concentrated spots which affect an area of more than one-fourth inch in diameter.
(h) Insects: (1) Any healed sting or healed stings which affect a total area of more than one-eighth inch in diameter including any encircling discolored rings.
(2) Worm holes.
“
(a) Russeting in the stem cavity or calyx basin which cannot be seen when the apple is placed stem end or calyx end down on a flat surface shall not be considered in determining whether an apple is damaged by russeting, except that excessively rough or bark-like russeting in the stem cavity or calyx basin shall be considered as damage when the appearance of the apple is materially affected. The following types and amounts of russeting outside of the stem cavity or calyx basin shall be considered as damage:
(1) Russeting which is excessively rough on Roxbury Russet and other similar varieties.
(2) Smooth net-like russeting, when an aggregate area of more than 15 percent of the surface is covered, and the color of the russeting shows no very pronounced contrast with the background color of the apple, or lesser amounts of more conspicuous net-like russeting when the appearance is affected to a greater extent than the amount permitted above.
(3) Smooth solid russeting, when an aggregate area of more than 5 percent of the surface is covered, and the pattern and color of the russeting shows no very pronounced contrast with the background color of the apple, or lesser amounts of more conspicuous solid russeting when the appearance is affected to a greater extent than the above amount permitted.
(4) Slightly rough russeting which covers an aggregate area of more than one-half inch in diameter.
(5) Rough russeting which covers an aggregate area of more than one-fourth inch in diameter.
(b) Sunburn or sprayburn which has caused blistering or cracking of the skin, or when the discolored area does not blend into the normal color of the fruit unless the injury can be classed as russeting.
(c) Limb rubs which affect a total area of more than one-half inch in diameter, except that light brown limb rubs of a russet character shall be considered under the definition of damage by russeting.
(d) Hail marks, drought spots, other similar depressions, or scars:
(1) When any unhealed mark is present;
(2) When any surface indentation exceeds one-eighth inch in depth;
(3) When the skin has not been broken and the aggregate affected area exceeds one-half inch in diameter; or
(4) When the skin has been broken and well healed, and the aggregate affected area exceeds one-fourth inch in diameter.
(e) Stem or calyx cracks which are not well healed, or well healed stem or calyx cracks which exceed an aggregate length of one-fourth inch.
(f) Invisible water core existing around the core and extending to water core in the vascular bundles, or surrounding the vascular bundles when the affected areas surrounding three or more vascular bundles meet or coalesce, or existing in more than a slight degree outside the circular area formed by the vascular bundles.
(g) Bruises which are not slight and incident to proper handling and packing, and which are greater than:
(1)
(2)
(3) any combination of lesser bruises which detract from the appearance or edible quality of the apple to an extent greater than any one bruise described in paragraphs (1) or (2) of this section.
(h) Brown surface discoloration when caused by delayed sunburn, surface scald, or any other means and affects an area greater than
(i) Disease: (1) Scab spots which affect a total area of more than one-fourth inch in diameter.
(2) Cedar rust infection which affects a total area of more than one-fourth inch in diameter.
(3) Sooty blotch or fly speck which is thinly scattered over more than one-tenth of the surface, or dark, heavily concentrated spots which affect an area of more than one-half inch in diameter.
(4) Red skin spots which are thinly scattered over more than one-tenth of the surface, or dark, heavily concentrated spots which affect an area of more than one-half inch in diameter.
(5) Bitter pit or Jonathan spot when one or more spots affects the surface of the apple.
(j) Insects: (1) Any healed sting or healed stings which affect a total area of
(2) Worm holes.
(a) The following types and amounts of russeting shall be considered as serious damage:
(1) Smooth solid russeting, when more than one-half of the surface in the aggregate is covered, including any russeting in the stem cavity or calyx basin, or slightly rough, or excessively rough or bark-like russeting, which detracts from the appearance of the fruit to a greater extent than the amount of smooth solid russeting permitted:
(2) [Reserved]
(b) Sunburn or sprayburn which seriously detracts from the appearance of the fruit.
(c) Limb rubs which affect more than one-tenth of the surface in the aggregate.
(d) Hail marks, drought spots, or scars, if they materially deform or disfigure the fruit, or if such defects affect more than one-tenth of the surface in the aggregate:
(e) Stem or calyx cracks which are not well healed, or well healed stem or calyx cracks which exceed an aggregate length of one-half inch.
(f) Visible water core which affects an area of more than one-half inch in diameter.
(g)
(2) Cedar rust infection which affects a total area of more than three-fourths inch in diameter.
(3) Sooty blotch or fly speck which affects more than one-third of the surface.
(4) Red skin spots which affect more than one-third of the surface.
(5) Bitter pit or Jonathan spot which is thinly scattered over more than one-tenth of the surface.
(h)
(2) Worm holes.
(i) Bruises which are not slight and incident to proper handling and packing, and which are greater than:
(1)
(2) 1
(3) any combination of lesser bruises which detract from the appearance or edible quality of the apple to an extent greater than any one bruise described in paragraph (i)(1) or (2) of this section.
(j) Brown surface discoloration when caused by delayed sunburn, surface scald, or any other means and affects an area greater than
When measuring for minimum size, “diameter” means the greatest dimension of the apple measured at right angles to a line from stem to blossom end. When measuring for maximum size, “diameter” means the smallest dimension of the apple determined by passing the apple through a round opening in any position.
(a) Not more than 5 percent of the apples in any lot shall be further advanced in maturity than firm ripe.
(b) Not more than 5 percent of the apples in any lot shall be damaged by storage scab.
(c) Not more than a total of 5 percent of the apples in any lot shall be affected by scald, internal breakdown, freezing injury, or decay; or damaged by bitter pit, Jonathan spot, water core
(1) Not more than a total of 2 percent shall be allowed for apples affected by decay and soft scald;
(2) Not more than 2 percent shall be allowed for apples affected by internal breakdown;
(d) Container packs shall comply with packing requirements specified in § 51.310 of the United States Standards for Grades of Apples.
(e) Any lot of apples shall be considered as meeting the U.S. Condition Standards for Export if the entire lot averages within the requirements specified:
Agricultural Marketing Service, USDA.
Interim final rule.
This order amends certain pooling provisions of the Pacific Northwest Federal milk order on an interim basis. This interim order implements amendments to the
January 1, 2003.
Gino M. Tosi, Marketing Specialist, Order Formulation and Enforcement Branch, USDA/AMS/Dairy Programs, Stop 0231-Room 2971, 1400 Independence Avenue, SW., Washington, DC 20250-0231, (202) 690-1366, e-mail address
This administrative rule is governed by the provisions of Sections 556 and 557 of Title 5 of the United States Code and, therefore, is excluded from the requirements of Executive Order 12866.
This interim rule has been reviewed under Executive Order 12988, Civil Justice Reform. This rule is not intended to have retroactive effect. This rule will not preempt any state or local laws, regulations, or policies, unless they present an irreconcilable conflict with the rule.
The Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-674), provides that administrative proceedings must be exhausted before parties may file suit in court. Under section 608c(15)(A) of the Act, any handler subject to an order may request modification or exemption from such order by filing with the Department a petition stating that the order, any provision of the order, or any obligation imposed in connection with the order is not in accordance with the law. A handler is afforded the opportunity for a hearing on the petition. After a hearing, the Department would rule on the petition. The Act provides that the District Court of the United States in any district in which the handler is an inhabitant, or has its principal place of business, has jurisdiction in equity to review the Department's ruling on the petition, provided a bill in equity is filed not later than 20 days after the date of the entry of the ruling.
In accordance with the Regulatory Flexibility Act (5 U.S.C. 601
The findings and determinations hereinafter set forth supplement those that were made when the Pacific Northwest order was first issued and when it was amended. The previous findings and determinations are hereby ratified and confirmed, except where they may conflict with those set forth herein.
The following findings are hereby made with respect to the Pacific Northwest order:
(a) Findings upon the basis of the hearing record. Pursuant to the provisions of the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-674), and the applicable rules of practice and procedure governing the formulation of marketing agreements and marketing orders (7 CFR part 900), a public hearing was held upon certain proposed amendments to the tentative marketing agreement and to the order regulating the handling of milk in the Pacific Northwest marketing area.
Upon the basis of the evidence introduced at such hearing and the record thereof it is found that:
(1) The Pacific Northwest order, as hereby amended on an interim basis, and all of the terms and conditions thereof, will tend to effectuate the declared policy of the Act;
(2) The parity prices of milk, as determined pursuant to section 2 of the Act, are not reasonable in view of the price of feeds, available supplies of feeds, and other economic conditions which affect market supply and demand for milk in the marketing area, and the minimum prices specified in the order, as hereby amended on an interim basis, are such prices as will reflect the aforesaid factors, insure a sufficient quantity of pure and wholesome milk, and be in the public interest; and
(3) The Pacific Northwest order, as hereby amended on an interim basis, regulates the handling of milk in the same manner as, and is applicable only to persons in the respective classes of industrial and commercial activity specified in, a marketing agreement upon which a hearing has been held.
(b) Additional Findings. It is necessary and in the public interest to make these interim amendments to the Pacific Northwest order effective January 1, 2003. Any delay beyond that date would tend to disrupt the orderly
The interim amendments to these orders are known to handlers. The final decision containing the proposed amendments to these orders was issued on August 30, 2002.
The changes that result from these interim amendments will not require extensive preparation or substantial alteration in the method of operation for handlers. In view of the foregoing, it is hereby found and determined that good cause exists for making these interim order amendments effective on January 1, 2003. It would be contrary to the public interest to delay the effective date of these amendments for 30 days after their publication in the
(c) Determinations. It is hereby determined that:
(1) The refusal or failure of handlers (excluding cooperative associations specified in sec. 8c(9) of the Act) of more than 50 percent of the milk, which is marketed within the specified marketing area, to sign a proposed marketing agreement, tends to prevent the effectuation of the declared policy of the Act;
(2) The issuance of this interim order amending the Pacific Northwest order is the only practical means pursuant to the declared policy of the Act of advancing the interests of producers as defined in the order as hereby amended;
(3) The issuance of the interim order amending the Pacific Northwest order is favored by at least two-thirds of the producers who were engaged in the production of milk for sale in the marketing area.
Milk marketing orders.
The authority citation for 7 CFR part 1124 reads as follows:
7 U.S.C. 601-674.
(d) A manufacturing plant located within the marketing area and operated by a cooperative association, or its wholly owned subsidiary, if, during the month, or the immediately preceding 12-month period ending with the current month, 20 percent or more of the producer milk of members of the association (and any producer milk of nonmembers and members of another cooperative association which may be marketed by the cooperative association) is physically received in the form of bulk fluid milk products (excluding concentrated milk transferred to a distributing plant for an agreed-upon use other that Class I) at plants specified in paragraph (a) or (b) of this section either directly from farms or by transfer from supply plants operated by the cooperative association, or its wholly owned subsidiary, and from plants of the cooperative association, or its wholly owned subsidiary, for which pool plant status has been requested under this paragraph subject to the following conditions:
(1) The plant does not qualify as a pool plant under paragraph (a), (b), or (c) of this section or under comparable provisions of another Federal order; and
(2) The plant is approved by a duly constituted regulatory agency for the handling of milk approved for fluid consumption in the marketing area.
(3) A request is filed in writing with the market administrator before the first day of the month for which it is to be effective. The request will remain in effect until a cancellation request is filed in writing with the market administrator before the first day of the month for which the cancellation is to be effective.
(f) A system of two or more plants identified in § 1124.7(d) operated by one or more cooperative handlers may qualify for pooling by meeting the above shipping requirements subject to the following additional requirements:
(1) The cooperative handler(s) establishing the system submits a written request to the market administrator on or before the first day of the month for which the system is to be effective requesting that such plants qualify as a system. Such request will contain a list of the plants participating in the system in the order, beginning with the last plant, in which the plants will be dropped from the system if the system fails to qualify. Each plant that qualifies as a pool plant within a system shall continue each month as a plant in the system until the handler(s) establishing the system submits a written request before the first day of the month to the market administrator that the plant be deleted from the system or that the system be discontinued. Any plant that has been so deleted from a system, or that has failed to qualify in any month, will not be part of any system. In the event of an ownership change or the business failure of a handler that is a participant in the system, the system may be reorganized to reflect such a change if a written request to file a new marketing agreement is submitted to the market administrator; and
(2) If a system fails to qualify under the requirement of this paragraph, the handler responsible for qualifying the system shall notify the market administrator of which plant or plants will be deleted from the system so that the remaining plants may be pooled as a system. If the handler fails to do so, the market administrator shall exclude one or more plants, beginning at the bottom of the list of plants in the system and continue up the list as necessary until the deliveries are sufficient to qualify the remaining plants in the system.
(g) The applicable shipping percentage of paragraphs (c) and (d) of this section may be increased or decreased by the market administrator if the market administrator finds that such adjustment is necessary to encourage needed shipments or to prevent uneconomic shipments. Before making such a finding, the market administrator shall investigate the need for adjustment either on the market administrator's own initiative or at the request of interested parties if the request is made in writing at least 15 days prior to the month for which the requested revision is desired to be effective. If the investigation shows that an adjustment of the shipping percentages might be appropriate, the market administrator shall issue a notice stating that an adjustment is being considered and invite data, views and arguments. Any decision to revise an applicable shipping percentage must be issued in writing at least one day before the effective date.
(e) * * *
(1) Milk of a dairy farmer shall not be eligible for diversion unless at least 3 days' production of such dairy farmer's production is physically received at a pool plant during the month.
(2) Of the quantity of producer milk received during the month (including diversions, but excluding the quantity of producer milk received from a handler described in § 1000.9(c)) the handler diverts to nonpool plants not more than 80 percent.
(5) Any milk diverted in excess of the limits prescribed in paragraph (e)(2) of this section shall not be producer milk. If the diverting handler or cooperative association fails to designate the dairy farmers' deliveries that are not to be producer milk, no milk diverted by the handler or cooperative association during the month to a nonpool plant shall be producer milk. In the event some of the milk of any producer is determined not to be producer milk pursuant to this paragraph, other milk delivered by such producer as producer milk during the month will not be subject to § 1124.12(b)(5).
(6) The delivery day requirement in paragraph (e)(1) of this section and the diversion percentage in paragraph (e)(2) of this section may be increased or decreased by the market administrator if the market administrator finds that such revision is necessary to assure the orderly marketing and efficient handling of milk in the marketing area. Before making such finding, the market administrator shall investigate the need for the revision either on the market administrator's own initiative or at the request of interested persons if the request is made in writing at least 15 days prior to the month for which the requested revision is desired to be effective. If the investigation shows that a revision might be appropriate, the market administrator shall issue a notice stating that the revision is being considered and inviting written data, views, and arguments. Any decision to revise the delivery day requirement or the diversion percentage must be issued in writing at least one day before the effective date.
Rural Housing Service, Rural Business-Cooperative Service, Rural Utilities Service, and Farm Service Agency, USDA.
Final rule.
This rule explains the procedures used by certain Rural Development Agencies and the Farm Service Agency, Farm Loan Programs to refer accounts to the Department of the Treasury for administrative offset (TOP) and cross-servicing as required by the Debt Collection Improvement Act (DCIA), and by the Treasury Department's rules regarding the Federal Claims Collection Standards concerning administrative offset, cross-servicing procedures, and Treasury Offset of Internal Revenue Service (IRS) tax refund payments.
December 19, 2002.
Barry G. Sykes, Chief, Program Reporting Branch, Program Management Division, Rural Development, USDA, Office of the Deputy Chief Financial Officer, P.O. Box 200011, FC-351, St. Louis, Missouri 63120-0011, Telephone (314) 539-2222.
This action is not subject to the provisions of Executive Order 12866 since it involves only internal Agency management. This action is not published for prior notice and comment under the Administrative Procedure Act since it involves only internal Agency management and publication for comment is unnecessary and contrary to the public interest.
The catalog of Federal Domestic Assistance programs impacted by this action are as follows:
This final rule has been reviewed under Executive Order 12988, Civil Justice Reform. In accordance with this Executive Order: (1) Unless otherwise specifically provided, all State and local laws and regulations that are in conflict with this rule will be preempted; (2) no retroactive effect will be given to this rule except as specifically prescribed in the rule; and (3) administrative proceedings of the National Appeals Division (7 CFR part 11) must be exhausted before litigation against the Department is instituted.
In accordance with the Paperwork Reduction Act (44 U.S.C. 3507), the information collection requirements contained in this regulation have been approved by the Office of Management and Budget (OMB) under the provisions of 44 U.S.C. chapter 35 and have been assigned OMB control number 0575-0119. This rule does not revise or impose any new information collection requirements from those approved by OMB.
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), establishes requirements for Federal agencies to assess the effects of their regulatory actions on State, local, and tribal governments and the private sector. Agencies generally must prepare a written statement, including a cost-benefit analysis, for proposed and final rules with “Federal mandates” that may
This rule contains no Federal mandates (under the regulatory provisions of title II of the UMRA) for State, local, and tribal governments or the private sector. Thus, the rule is not subject to the requirements of sections 202 and 205 of the UMRA.
This document has been reviewed in accordance with 7 CFR part 1940, subpart G, “Environmental Program.” The Agencies have determined that this action does not constitute a major Federal action significantly affecting the quality of human environment, and in accordance with the National Environmental Policy Act of 1969, Public Law 91-190, an Environmental Impact Statement is not required.
The policies contained in this rule do not have any substantial direct effect on 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. Nor does this rule impose substantial direct compliance costs on State and local governments. Therefore, consultation with the States is not required.
In compliance with the Regulatory Flexibility Act (5 U.S.C. 601-602), the undersigned have determined and certified by signature of this document that this rule will not have a significant economic impact on a substantial number of small entities. New provisions included in this rule will not impact a substantial number of small entities to a greater extent than large entities. Thus, large entities are subject to these rules to the same extent as small entities. Therefore, a regulatory flexibility analysis was not performed.
The final rule adopts the Department of Treasury (Treasury) Debt Collection procedures required by the Debt Collection Improvement Act (DCIA), Pub. L. 104-434, April 26, 1996, the Federal Claims Collection Standards concerning administrative offset at 31 CFR 901.3, cross-servicing procedures at 31 CFR part 285, subpart A and Treasury Offset of Internal Revenue Service (IRS) tax refund payments at 31 CFR 285.2. The Rural Business-Cooperative Service and the Rural Housing Service, Community Facilities program, both part of the Rural Development mission area, are adopting this rule to enable it to refer delinquent accounts to Treasury for administrative offset (TOP) and cross-servicing as required by the DCIA. A new section has been added explaining the Farm Service Agency (FSA), Farm Loan Programs (FLP) procedures for referring accounts to Treasury. Additional revisions have been made for readability and to make corrections to conform to Treasury regulations which have consolidated the IRS offset program with the Treasury Offset Program (TOP). Therefore, this rule revises the reference contained in the Rural Housing Service's regulations at 7 CFR 3550.210(a) to reference the correct authorities for conducting IRS offsets.
Rural Development is also revising its servicing and collections regulations to reflect that the Rural Housing Service, for its Single Family Housing and Multi-Family Housing programs and the Rural Utilities Service for its Water and Environmental program have developed their own servicing handbooks providing internal administrative guidance to agency personnel for their Treasury Offset and Cross-Servicing procedures. Farm Services Agency is amending its salary offset guidance to clarify when salary offset will begin and to clarify when notification will be sent to the borrower. There is no additional burden being imposed upon the public and no financial impact imposed on the Government or on the public as a result of this action.
Accounting, Accounting servicing, Credit, Loan programs—Agriculture, Low and moderate income housing loans—Servicing.
Direct single family housing loan and grants.
5 U.S.C. 301; 7 U.S.C. 1932 note; 7 U.S.C. 1989; 31 U.S.C. 3716; 42 U.S.C. 1480.
Federal debt collection statutes provide for the use of administrative, salary, and Internal Revenue Service (IRS) offsets by government agencies, including the Farm Service Agency (FSA), Rural Housing Service (RHS) for its community facility program, and Rural Business-Cooperative Service (RBS), herein referred to collectively as “United States Department of Agriculture (USDA) Agency,” to collect delinquent debts. Any money that is or may become payable from the United States to an individual or entity indebted to a USDA Agency may be subject to offset for the collection of a debt owed to a USDA Agency. In addition, money may be collected from the debtor's retirement payments for delinquent amounts owed to the USDA Agency if the debtor is an employee or retiree of a Federal agency, the U.S. Postal Service, the Postal Rate Commission, or a member of the U.S. Armed Forces or the Reserve. Amounts collected will be processed as regular payments and credited to the borrower's account. USDA Agencies will process requests by other Federal agencies for offset in accordance with § 1951.102 of this subpart. This subpart does not apply to direct single family housing loans, direct multi-family housing loans, and the Rural Utilities Service. Section 1951.136 of this subpart only applies to RHS for its community facility program and RBS for the offset of Federal payments. Nothing in this subpart affects the common law right of set off available to USDA Agencies.
(b) * * *
(1)
Salary offset may be used to collect debts arising from delinquent USDA Agency loans and other debts which
(d)
(1) After the Certifying Official determines that collection by salary offset is feasible, the debtor should be notified within 15 calendar days after the salary offset determination. This notice will notify the debtor of intended salary offset at least 30 days before the salary offset begins. For Farm Loan Programs direct loans, this notice will be sent after the borrower is over 90 days past due and immediately after sending notification of servicing rights in accordance with 7 CFR 1951.907 of this subpart. For Farm Loan Programs guaranteed debtors, this notice will be sent after a final loss claim has been paid. The salary offset determination notice will be delivered to the debtor by regular mail.
(a) The National Offices of the Rural Housing Service (RHS), Community Facilities (CF) and the Rural Business-Cooperative Service (RBS) will refer past due, legally enforceable debts which are over 180 days delinquent to the Secretary of the Treasury for collection by centralized administrative offset (TOP), Internal Revenue Service offset administered through TOP and Treasury's Cross-Servicing (Cross-Servicing) Program, which centralizes all Government debt collection actions. A borrower with a workout agreement in place, in bankruptcy or litigation, or meeting other exclusion criteria, may be excluded from TOP or Cross-Servicing.
(b) A 60 day due process notice will be sent to borrowers subject to TOP or Cross-Servicing. The borrower will be given 60 days to resolve any delinquency before the debt is reported to Treasury. The notice will include:
(1) The nature and amount of the debt, the intention of the Agency to collect the debt through TOP or Cross-Servicing, and an explanation of the debtor's rights;
(2) An opportunity to inspect and copy the records related to the debt from the Agency;
(3) An opportunity to review the matter within the Agency or the National Appeals Division, if there has not been a previous opportunity to appeal the offset; and
(4) An opportunity to enter into a written repayment agreement.
(c) In referring debt to the Department of Treasury the Agency will certify that:
(1) The debt is past due and legally enforceable in the amount submitted and the Agency will ensure that collections are properly credited to the debt;
(2) Except in the case of a judgment debt or as otherwise allowed by law, the debt is referred for offset within 10 years after the Agency's right of action accrues;
(3) The Agency has made reasonable efforts to obtain payment; and
(4) Payments that are prohibited by law from being offset are exempt from centralized administrative offset.
(a) The Farm Service Agency, Farm Loan Programs, will refer past due, legally enforceable debts which are over 180 days delinquent to the Secretary of the Treasury for collection by centralized administrative offset (TOP), Internal Revenue Service offset administered through TOP and Treasury's Cross-Servicing (Cross-Servicing) Program, which centralizes all Government debt collection actions. A borrower with a workout agreement in place, in bankruptcy or litigation, or meeting other exclusion criteria, may be excluded from TOP or Cross-Servicing. Guaranteed debtors will only be referred to TOP upon confirmation of payment on a final loss claim.
(b) A 60 day due process notice will be sent to borrowers subject to TOP or Cross-Servicing by the Director of Kansas City Finance Office. The borrower will be given 60 days to resolve any delinquency before the debt is reported to Treasury. The notice will include:
(1) The nature and amount of the debt, the intention of the Agency to collect the debt through TOP or Cross-Servicing, and an explanation of the debtor's rights;
(2) An opportunity to inspect and copy the records related to the debt, from the Agency;
(3) An opportunity to review the matter within the Agency; and
(4) An opportunity to enter into a written repayment agreement.
(c) In referring debt to the Department of Treasury the Agency will certify that:
(1) The debt is past due and legally enforceable in the amount submitted and the Agency will ensure that collections are properly credited to the debt;
(2) Except in the case of a judgment debt or as otherwise allowed by law, the debt is referred for offset within 10 years after the Agency's right of action accrues;
(3) The Agency has made reasonable efforts to obtain payment; and
(4) Payments that are prohibited by law from being offset are exempt from centralized administrative offset.
5 U.S.C. 301 and 42 U.S.C. 1480.
(a)
Internal Revenue Service (IRS), Treasury.
Amendments to Statement of Procedural Rules.
This document amends the Statement of Procedural Rules to reflect changes effected by the Electronic Freedom of Information Act Amendments of 1996 to update organizational titles and addresses, and to make certain changes in the IRS's procedures for processing Freedom of Information Act requests. The rules affect persons requesting records from the IRS.
Effective Date: December 19, 2002.
Michael B. Frosch, 202-622-4590 (not a toll-free number).
This document contains final rules amending the Statement of Procedural Rules (SPR) (26 CFR 601.701 and 26 CFR 601.702), issued under the authority contained in 5 U.S.C. 301 and 552. The SPR is being updated to reflect changes effected by the Electronic Freedom of Information Act Amendments of 1996 (EFOIA), Public Law 104-231, 110 Stat. 2422. Other amendments conform to procedures set forth in the Department of the Treasury's regulations on disclosure of records under the FOIA. 65 FR 40503 (June 30, 2000). Other amendments reflect procedures heretofore only available to the public in the Internal Revenue Manual, which is maintained in the IRS Freedom of Information Reading Room. The SPR is also updated to reflect changes in title or nomenclature and to reflect changes of addresses to be contacted for Freedom of Information requests in light of the IRS reorganization mandated by section 1001 of the Internal Revenue Service Restructuring and Reform Act of 1998 (RRA).
Section 601.701 is removed and reserved. Section 601.701 was simply a restatement of the statute as interpreted by the courts and does not need to be repeated in regulations.
The amendments are described in the order of the sections of the SPR being amended.
Paragraph (a)(1) is amended to reflect changes in nomenclature.
Paragraph (a)(2) is amended to reflect changes in nomenclature.
Paragraph (b)(1) is amended to incorporate changes required by the Electronic Freedom of Information Act Amendments of 1996 (EFOIA). Specifically, this provision implements the new statutory requirement that any records that an agency processes and discloses in response to a FOIA request that the agency determines to have become or are likely to become the subject of subsequent requests for substantially the same records be placed in public reading rooms so that they are readily available to potential FOIA requesters. This provision also implements the statutory mandate to enhance the availability of reading room records by requiring: (1) That reading room records created on or after November 1, 1996, be available to the public by electronic means,
Paragraph (b)(2) is amended to implement the EFOIA requirement that the extent of any deletion of information be indicated on the portion of the record which is made available or published, and where technically feasible, that the deletion be indicated at the place in the record where made.
Paragraph (b)(3) is amended to reflect a change in the room location of the Freedom of Information Reading Room at the National Office. As a consequence of RRA, the IRS no longer has regional offices, and, therefore, the regional reading rooms have been eliminated. Paragraph (b)(3)(iii) is revised to clarify that fees shall not be charged for copying materials in the Freedom of Information Reading Room. Paragraph (b)(3)(iv), pertaining to mailing reading room material to other IRS office locations for personal inspection or directly to the requester, is removed. Neither the FOIA nor Department of the Treasury regulations or policy requires the IRS to provide this assistance to persons unable or unwilling to use the Freedom of Information Reading Room. The IRS determined that the administrative cost of providing such assistance outweighed the marginal public benefit, especially since all required records are on the Internet.
Paragraph (c)(1) is amended to clarify IRS practice regarding the processing of valid FOIA requests within the statutory time period. It explicitly provides that invalid requests are not subject to the time constraints provided in paragraphs (c)(9) through (11). Newly designated paragraph (c)(1)(ii) reflects IRS practice that requests for the continuing production of records created after the date of receipt of the request shall not be honored.
Paragraph (c)(2), a new provision, covers electronic format records. It implements the EFOIA requirement that the agency provide a requested record in any form or format requested if the record is readily reproducible by the agency in that form or format. Furthermore, it directs the IRS to make reasonable efforts to search for records in electronic form or format.
Paragraph (c)(3), an amendment of former paragraph (c)(2) relating to requests for records not in control of the IRS, contains only minor revisions of word usage and cross references.
Paragraph (c)(4), an amendment of former paragraph (c)(3), concerning the form of a request, is revised to clarify the procedures for making requests when the requesters are uncertain as to which office they should submit their requests; and to clarify IRS practice when requesters have an outstanding FOIA fee balance when subsequent requests are received.
Paragraph (c)(5), an amendment of former paragraph (c)(4), dealing with reasonable description of records and identity and legal entitlement of the requester, is clarified to conform to section 6103(e)(1)(D) and the Conference and Practice requirements of 26 CFR 601.503 as to who may make a request on behalf of a corporation; to require the submission of the taxpayer identification number where the request seeks tax information to ensure the
Paragraph (c)(6), a new provision, implements the EFOIA requirement that agencies provide for expedited processing in cases where a requester demonstrates a compelling need. The provision defines compelling need; establishes the procedures for requesting expedited processing; sets a ten day time limit for determining whether a request for expedited processing will be granted; and sets a ten day time limit for deciding appeals of initial determinations to deny expedited processing.
Paragraph (c)(7), a revision of paragraph (c)(5) concerning the date of receipt of a request, is amended to eliminate the requirement that the disclosure office issue a separate letter advising of the statutory period for response, where the final determination letter will be sent before the expiration of the statutory period or where a voluntary or statutory extension of time letter is sent.
Paragraph (c)(8), a revision of paragraph (c)(6), is amended: (1) To eliminate language that the IRS is not required to tabulate or compile information for the purpose of creating a record (deemed confusing in light of EFOIA); and (2) to clarify that, as a general rule, only records in the possession and control of the IRS on the date of receipt of the FOIA request shall be considered in determining records responsive to the request.
Paragraph (c)(9), an amendment of paragraph (c)(7), is revised to reflect nomenclature changes; to clarify IRS official's discretion not to issue a statement of fees before issuance of the determination letter, but rather to disclose the records simultaneous with the issuance of the determination letter under this provision; to clarify that fees will be incurred for the photocopying of records being made available for inspection; and to establish that IRS denial letters should identify the date the request was received in the appropriate disclosure office and the number of pages at issue.
Paragraph (c)(10), an amendment of paragraph (c)(8) concerning administrative appeals, is amended to clarify that administrative appeals may be submitted from denials of fee waiver or reduction requests, as well as adverse fee category determinations, in addition to denials of records, and to reflect changes in nomenclature.
Paragraph (c)(11), an amendment of paragraph (c)(9) relating to the unusual circumstances where extensions of time may be granted and the aggregation of requests, is amended to provide that consultations with business submitters regarding requests for disclosure of their information in records, in conformance with new paragraph (g), is one type of unusual circumstance; and to clarify that searches in Federal Records Centers or other storage locations for IRS records stored in such facilities is another. New paragraph (c)(11)(ii) is added to permit aggregation of requests, as authorized in EFOIA.
Paragraph (c)(12), an amendment of paragraph (c)(10) on failure to comply, is amended in light of EFOIA to define the exceptional circumstances under which a court may retain jurisdiction and allow the IRS additional time to complete its processing of a FOIA request.
Paragraph (c)(13), an amendment of paragraph (c)(11) relating to judicial review, is revised to clarify that judicial review may be sought from actual or constructive denials of fee waiver or reduction requests, as well as adverse fee category determinations, in addition to denials of records; and to change the office to which service of process on the IRS is to be made, from General Legal Services (GLS) to the Associate Chief Counsel (Procedure and Administration) (PA).
Paragraph (c)(14), an amendment of paragraph (c)(12), contains no revisions. Former paragraph (c)(13) is removed.
Paragraph (d) is amended to clarify that, for those types of records described in paragraphs (d) (1) through (8), requests denominated as Freedom of Information Act requests shall be diverted to other procedures provided for by the Internal Revenue Code for their appropriate handling and fee schedules, which procedures are generally as, or more expeditious than, handling through FOIA.
Paragraph (d)(1) is amended to reflect that fees to be charged for requests for photocopies of tax returns and certain transcripts, made on IRS form 4506, “Request for Copy or Transcript of Tax Form” will be reasonable fees as determined by the Commissioner from time to time.
Paragraph (d)(2) is amended to reflect a change in citation form.
Paragraph (d)(3) is amended to reflect changes in the manner in which members of the public may obtain access to information relating to certain tax exempt organizations and certain trusts, consistent with section 6104.
Paragraph (d)(4) is amended to reflect changes in the manner in which members of the public may obtain access to applications of certain organizations for tax exemption, consistent with section 6104.
Paragraph (d)(5) is amended to reflect changes in which members of the public may obtain access to information relating to certain deferred compensation plans and accounts, consistent with section 6104.
Paragraph (d)(7) is amended to clarify that comments received in response to solicitations for public comments, prepublication comments, as well as comments received in response to notices of proposed rulemaking, are available for inspection upon written request as set forth in the regulations; and to reflect changes in nomenclature and mailing address.
Paragraph (d)(8) is amended to reflect that form 7249, “Offer Acceptance Report,” is the form which records accepted offers-in-compromise.
Paragraph (f)(1) is amended to reflect changes in nomenclature.
Paragraph (f)(2) is amended to remove redundant information and to clarify that administrative appeals shall be received within 35 days of the date of the initial denial letter.
Paragraph (f)(3) is amended to clarify that news media entities include computerized news services; to clarify that the category of educational institution requester does not include individuals wanting records for use in meeting individual academic research requirements; to confirm that the IRS shall determine the category of a requester based upon a review of the requester's submission and the IRS' own records; and to conform to Treasury regulations which permit only duplication fees to be charged to individual requesters seeking records about themselves maintained in agency systems of records.
Paragraph (f)(4) is reorganized and amended to reflect changes in nomenclature.
Paragraph (f)(5) is amended to clarify that fees for searches for non-computerized records are charged at the salary rate (basic pay plus 16 percent) of the employee making the search; to clarify that searches for computerized records are charged based upon the actual direct cost of the search, including computer search time, runs, and the operator's salary; to clarify that services or material requested under, but not required by, the Freedom of Information Act may be chargeable to the requester at the actual direct cost in the discretion of the appropriate agency official; to reflect that the actual costs of duplicating videotapes and audiotapes will be borne by the requester; to
Paragraph (f)(6) is amended to reflect changes in nomenclature.
Paragraph (f)(7) is amended to reflect changes in citation form.
Paragraph (f)(9) is amended to clarify that, in the event previous fees have not been paid in a timely fashion, or where estimated fees exceed $250, no processing of subsequently received requests will occur until such time as the requester remits all past due fees, as well as the fees estimated to be due as a result of the new request; and to clarify that the IRS reserves the right to require payment of fees after a request is processed and before any records are released to a requester.
Paragraph (f)(10) is amended to reflect changes in nomenclature.
Paragraph (g) has been amended to contain the revised business information procedures which were previously detailed in paragraph (h).
Paragraph (h) is amended to contain the revised list of responsible officials and their addresses previously contained in paragraph (g).
It has been determined that these rules are not major rules as defined in Executive Order 12291. Therefore, a Regulatory Impact Analysis is not required. It also has been determined that the Regulatory Flexibility Act (5 U.S.C. chapter 6) does not apply to these rules and therefore a Regulatory Flexibility Analysis is not required. The IRS has not published a notice of proposed rulemaking on these revisions, as allowed by 5 U.S.C. 553 when the agency determines, for good cause, that it is unnecessary to publish a proposed rule and obtain comments from interested persons. The IRS has determined that publication of a proposed rule is unnecessary inasmuch as these revisions (1) generally involve revisions consistent with the Department of the Treasury's title 31 revised FOIA regulations (65 FR 40503 (June 30, 2000)); (2) involve only nomenclature and address changes; (3) merely represent the publication of existing procedures already in place as set forth in the Internal Revenue Manual; or (4) merely reflect procedures accepted or required by the courts.
The principal author of these rules is Michael B. Frosch of the Office of the Associate Chief Counsel (Procedure & Administration), Disclosure & Privacy Law Division.
Administrative practice and procedure, Freedom of Information, Reporting and recordkeeping requirements, Taxes.
5 U.S.C. 301 and 552.
(a)
(A) Descriptions of its central and field organization and the established places at which, the persons from whom, and the methods whereby, the public may obtain information, make submittals or requests, or obtain decisions, from the IRS;
(B) Statement of the general course and method by which its functions are channeled and determined, including the nature and requirements of all formal and informal procedures which are available;
(C) Rules of procedure, descriptions of forms available or the places at which forms may be obtained, and instructions as to the scope and contents of all papers, reports, or examinations;
(D) Substantive rules of general applicability adopted as authorized by law, and statements of general policy or interpretations of general applicability formulated and adopted by the IRS; and
(E) Each amendment, revision, or repeal of matters referred to in paragraphs (a)(1)(i)(A) through (D) of this section.
(ii) Pursuant to the foregoing requirements, the Commissioner publishes in the
(2)
(ii) Effect of failure to publish. Except to the extent that a person has actual and timely notice of the terms of any matter referred to in paragraph (a)(1) of this section which is required to be published in the
(b)
(i) Subject to the application of the exemptions described in 5 U.S.C. 552(b) and the exclusions described in 5 U.S.C. 552(c), the IRS is required under 5 U.S.C. 552(a)(2) to make available for public inspection and copying or, in the alternative, to promptly publish and offer for sale the following information:
(A) Final opinions, including concurring and dissenting opinions, and orders, if such opinions and orders are made in the adjudication of cases;
(B) Those statements of policy and interpretations which have been adopted by the IRS but are not published in the
(C) Its administrative staff manuals and instructions to staff that affect a member of the public; and
(D) Copies of all records, regardless of form or format, which have been released to any person under 5 U.S.C. 552(a)(3) and which, because of the nature of their subject matter, the IRS determines have become or are likely to become the subject of subsequent requests for substantially the same records. The determination that records have become or may become the subject of subsequent requests shall be based on the following criteria:
(
(
(ii) The IRS is also required by 5 U.S.C. 552(a)(2) to maintain and make available for public inspection and copying current indexes identifying any matter described in paragraphs (b)(1)(i)(A) through (C) of this section which is issued, adopted, or promulgated after July 4, 1967, and which is required to be made available for public inspection or published. In addition, the IRS shall also promptly publish, quarterly or more frequently, and distribute (by sale or otherwise) copies of each index or supplements thereto unless it determines by order published in the
(iii) For records required to be made available for public inspection and copying pursuant to 5 U.S.C. 552(a)(2) and paragraphs (b)(1)(i)(A) through (D) of this section, which are created on or after November 1, 1996, the IRS shall make such records available on the Internet within one year after such records are created.
(iv) The IRS shall make the index referred to in paragraph (b)(1)(ii) of this section available on the Internet.
(2)
(3)
(ii)
(iii)
(c)
(ii) Requests for the continuing production of records created or for records created after the date of receipt of the request shall not be honored.
(iii) Specific requests under paragraph (a)(3) for material described in paragraph (a)(2)(A)through(C) and which is in the Freedom of Information Reading Room shall not be honored.
(2)
(ii) In responding to a request for records, the IRS shall make reasonable efforts to search for the records in electronic form or format, except where such efforts would significantly interfere with the operation of the agency's automated information system(s). For purposes of this paragraph (c), the term
(iii) Searches for records maintained in electronic form or format may require the application of codes, queries, or other minor forms of programming to retrieve the requested records.
(3)
(ii) Where the record requested was created by another agency or constituent unit of the Department of the Treasury and a copy thereof is in the possession of the IRS, the IRS official to whom the request is delivered shall refer the request to the agency or constituent unit which originated the record for direct reply to the requester. The requester shall be informed of such referral. This referral shall not be considered a denial of access within the meaning of these regulations. Where the record is determined to be exempt from disclosure under 5 U.S.C. 552, the referral need not be made, but the IRS shall inform the originating agency or constituent unit of its determination. Where notifying the requester of its referral may cause a harm to the originating agency or constituent unit which would enable the originating agency or constituent unit to withhold the record under 5 U.S.C. 552, then such referral need not be made. In both of these circumstances, the IRS official to whom the request is delivered shall process the request in accordance with the procedures set forth in this section.
(iii) When a request is received for a record created by the IRS (
(4)
(A) Be made in writing and signed by the individual making the request;
(B) State that it is made pursuant to the Freedom of Information Act, 5 U.S.C. 552, or regulations thereunder;
(C) Be addressed to and mailed to the office of the IRS official who is responsible for the control of the records requested (
(D) Reasonably describe the records in accordance with paragraph (c)(5)(i) of this section;
(E) In the case of a request for records the disclosure of which is limited by statute or regulations (as, for example, the Privacy Act of 1974 (5 U.S.C. 552a) or section 6103 and the regulations thereunder), establish the identity and the right of the person making the request to the disclosure of the records in accordance with paragraph (c)(5)(iii) of this section;
(F) Set forth the address where the person making the request desires to be notified of the determination as to whether the request shall be granted;
(G) State whether the requester wishes to inspect the records or desires to have a copy made and furnished without first inspecting them;
(H) State the firm agreement of the requester to pay the fees for search, duplication, and review ultimately determined in accordance with paragraph (f) of this section, or, in accordance with paragraph (c)(4)(ii) of this section, place an upper limit for
(I) Identify the category of the requester and, with the exception of “other requesters,” state how the records shall be used, as required by paragraph (f)(3) of this section.
(ii) As provided in paragraph (c)(4)(i)(H) of this section, rather than stating a firm agreement to pay the fee ultimately determined in accordance with paragraph (f) of this section or requesting that such fees be reduced or waived, the requester may place an upper limit on the amount the requester agrees to pay. If the requester chooses to place an upper limit and the estimated fee is deemed to be greater than the upper limit, or where the requester asks for an estimate of the fee to be charged, the requester shall be promptly advised of the estimate of the fee and asked to agree to pay such amount. Where the initial request includes a request for reduction or waiver of the fee, the IRS officials responsible for the control of the requested records (or their delegates) shall determine whether to grant the request for reduction or waiver in accordance with paragraph (f) of this section and notify the requester of their decisions and, if their decisions result in the requester being liable for all or part of the fee normally due, ask the requester to agree to pay the amount so determined. The requirements of this paragraph shall not be deemed met until the requester has explicitly agreed to pay the fee applicable to the request for records, if any, or has made payment in advance of the fee estimated to be due. If the requester has any outstanding balance of search, review, or duplication fees, the requirements of this paragraph shall not be deemed met until the requester has remitted the outstanding balance due.
(5)
(ii) The IRS shall make a reasonable effort to comply fully with all requests for access to records subject only to any applicable exemption set forth in 5 U.S.C. 552(b) or any exclusion described in 5 U.S.C. 552(c). In any situation in which it is determined that a request for voluminous records would unduly burden and interfere with the operations of the IRS, the person making the request shall be asked to be more specific and to narrow the request, or to agree on an orderly procedure for the production of the requested records, in order to satisfy the request without disproportionate adverse effect on IRS operations.
(iii)
(
(
(
(B) Additional proof of a person's identity shall be required before the requests shall be deemed to have met the requirement of paragraph (c)(4)(i)(E) of this section if it is determined that additional proof is necessary to protect against unauthorized disclosure of information in a particular case. Persons who have identified themselves to the satisfaction of IRS officials pursuant to this paragraph (c) shall be deemed to have established their right to access records pertaining to themselves. Persons requesting records on behalf of or pertaining to another person must provide adequate proof of the legal relationship under which they assert the right to access the requested records before the requirement of paragraph (c)(4)(i)(E) of this section shall be deemed met.
(C) In the case of an attorney-in-fact, or other person requesting records on behalf of or pertaining to other persons, the requester shall furnish a properly executed power of attorney, Privacy Act consent, or tax information authorization, as appropriate. In the case of a corporation, if the requester has the authority to legally bind the corporation under applicable state law, such as its corporate president or chief executive officer, then a written statement or tax information authorization certifying as to that person's authority to make a request on behalf of the corporation shall be sufficient. If the requester is any other officer or employee of the corporation, then such requester shall furnish a written statement certifying as to that person's authority to make a request on behalf of the corporation by any principal officer and attested to by the secretary or other officer (other than the requester) that the person making the request on behalf of the corporation is properly authorized to make such a request. If the requester is other than one of the above, then such person may furnish a resolution by the corporation's board of directors or other governing body which provides that the person making the request on behalf of the corporation is properly authorized to make such a request, or shall otherwise satisfy the requirements set forth in section 6103(e). A person requesting access to records of a partnership or a subchapter S Corporation shall provide a notarized statement, or a statement made under penalty of perjury in accordance with 28 U.S.C. 1746, that the requester was a member of the partnership or subchapter S corporation for a part of each of the years included in the request.
(6)
(A) Circumstances in which the lack of expedited treatment could reasonably be expected to pose an imminent threat to the life or physical safety of an individual;
(B) An urgency to inform the public concerning actual or alleged Federal government activity, if made by a person primarily engaged in disseminating information. A person primarily engaged in disseminating information, if not a full-time representative of the news media, as defined in paragraph (f)(3)(ii)(B) of this section, must establish that he or she is a person whose main professional activity or occupation is information dissemination, though it need not be his or her sole occupation. A person primarily engaged in disseminating information does not include individuals who are engaged only incidentally in the dissemination of information. The standard of urgency to inform requires that the records requested pertain to a matter of current exigency to the American public, beyond the public's right to know about government activity generally, and that delaying a response to a request for records would compromise a significant recognized interest to and throughout the American general public;
(C) The loss of substantial due process rights.
(ii) A requester who seeks expedited processing must submit a statement, certified to be true and correct to the best of his or her knowledge and belief, explaining in detail why there is a compelling need for expedited processing.
(iii) A request for expedited processing may be made at the time of the initial request for records or at any later time. For a prompt determination, requests for expedited processing must be submitted to the responsible official of the IRS who maintains the records requested except that a request for expedited processing under paragraph (c)(6)(i)(B) of this section shall be submitted directly to the Director, Communications Division, whose address is Office of Media Relations, CL:C:M, Internal Revenue Service, Room 7032, 1111 Constitution Avenue, NW., Washington, DC 20224.
(iv) Upon receipt by the responsible official in the IRS, a request for expedited processing shall be considered and a determination as to whether to grant or deny the request shall be made, and the requester notified, within ten days of the date of the request, provided that in no event shall the IRS have less than five days (excluding Saturdays, Sundays, and legal public holidays) from the date of the responsible official's receipt of the request for such processing. The determination to grant or deny a request for expedited processing shall be made solely on the information initially provided by the requester.
(v) An appeal of an initial determination to deny expedited processing must be made within ten days of the date of the initial determination to deny expedited processing, and must otherwise comply with the requirements of paragraph (c)(10) of this section. Both the envelope and the appeal itself shall be clearly marked, “Appeal for Expedited Processing.”
(vi) IRS action to deny or affirm denial of a request for expedited processing pursuant to this paragraph, and IRS failure to respond in a timely manner to such a request shall be subject to judicial review, except that judicial review shall be based on the record before the IRS at the time of the determination. A district court of the United States shall not have jurisdiction to review the IRS's denial of expedited processing of a request for records after the IRS has provided a complete response to the request.
(7)
(ii) The latest of such stamped dates shall be deemed for purposes of this section to be the date of receipt of the request, provided that the requirements of paragraphs (c)(4)(i)(A) through (I) of this section have been satisfied, and, where applicable—
(A) The requester has agreed in writing, by executing a separate contract or otherwise, to pay the fees for search, duplication, and review determined due in accordance with paragraph (f) of this section, or
(B) The fees have been waived in accordance with paragraph (f) of this section, or
(C) Payment in advance has been received from the requester.
(8)
(ii) In determining which records are responsive to a request, the IRS official responsible for the control of the records requested shall include only those records within the official's possession and control as of the date of the receipt of the request by the appropriate disclosure officer.
(9)
(A) The Associate Director, Personnel Security or delegate shall have the sole authority to make initial determinations with respect to requests for records under that office's control.
(B) The Director of the Office of Governmental Liaison and Disclosure or delegate shall have the sole authority to make initial determinations with respect to all other requests for records of the IRS maintained in the Headquarters and its National Office of the Chief Counsel. For all other records within the control of the IRS, the initial determination with respect to requests for records may be made either by the Director, Office of Governmental Liaison and Disclosure, or by the IRS officials responsible for the control of the records requested, or their delegates (see paragraph (h) of this section).
(ii)
(iii)
(iv)
(A) In denying a request for records, in whole or in part, the IRS shall include the date that the request was received in the appropriate disclosure office, and shall provide an estimate of the volume of the denied matter to the person making the request, unless providing such estimate would harm an interest protected by an exemption in 5 U.S.C. 552(b) or (c) pursuant to which the denial is made; and
(B) The amount of information deleted shall be indicated on the released portion of the record, unless including that indication would harm an interest protected by an exemption in 5 U.S.C. 552(b) under which the deletion is made. If technically feasible, the amount of the information deleted and the asserted exemption shall be indicated at the place in the record where such deletion is made.
(v)
(10)
(ii) The letter of appeal shall—(A) Be made in writing and signed by the requester;
(B) Be addressed to the Commissioner and mailed to IRS Appeals, 6377A Riverside Avenue, Suite 110, Riverside, California 92506-FOIA Appeal;
(C) Reasonably describe the records requested to which the appeal pertains in accordance with paragraph (c)(5)(i) of this section;
(D) Set forth the address where the appellant desires to be notified of the determination on appeal;
(E) Specify the date of the request, the office to which the request was submitted, and where possible, enclose a copy of the initial request and the initial determination being appealed; and
(F) Ask the Commissioner to grant the request for records, fee waiver, expedited processing, or favorable fee category, as applicable, or verify that an appropriate search was conducted and the responsive records were either produced or an appropriate exemption asserted. The person submitting the appeal may submit any argument in support of the appeal in the letter of appeal.
(iii) Appeals shall be stamped promptly with the date of their receipt in the Office of Appeals, and the later of this stamped date or the stamped date of a document submitted subsequently which supplements the original appeal so that the appeal satisfies the requirements set forth in paragraphs (c)(10)(ii)(A) through (F) of this section shall be deemed by the IRS to be the date of receipt of the appeal for all purposes of this section. The Commissioner or a delegate shall acknowledge receipt of the appeal and advise the requester of the date of receipt and the date a response is due in accordance with this paragraph. If an appeal fails to satisfy any of the requirements of paragraph (c)(10)(ii)(A) through (F) of this section, the person making the request shall be advised promptly in writing of the additional requirements to be met. Except for appeals of denials of expedited processing, the determination to affirm the initial denial (in whole or in part) or to grant the request for records shall be made and notification of the determination shall be mailed within twenty days (exclusive of Saturdays, Sundays, and legal public holidays) after the date of receipt of the appeal unless extended pursuant to paragraph (c)(11)(i) of this section. Appeals of initial determinations to deny expedited processing must be made within 10 calendar days of the determination to deny the expedited processing. If it is determined that the appeal from the initial denial is to be denied (in whole or in part), the requester shall be notified in writing of the denial, the reasons therefor, the name and title or position of the official responsible for the denial on appeal, and the provisions of 5 U.S.C. 552(a)(4) for judicial review of that determination.
(11)
(
(
(
(
(B) Any extension or extensions of time for unusual circumstances shall not cumulatively total more than ten days (exclusive of Saturday, Sunday and legal public holidays). If additional time is needed to process the request, the IRS shall notify the requester and provide the requester an opportunity to limit the scope of the request or arrange for an alternative time frame for processing the request or a modified request. The requester shall retain the right to define the desired scope of the request, as long as it meets the requirements contained in this section.
(ii)
(12)
(13)
(14)
(d)
(1)
(2)
(3)
(4)
(5)
(6)
(7)
(8)
(9)
(e)
(f)
(2)
(B) Whether the releasable records are likely to contribute to an understanding of the agency's operations or activities;
(C) Whether the releasable records are likely to contribute to the general public's understanding of the agency's operations or activities (
(D) The significance of the contribution to the general public's understanding of the agency's operations or activities (
(E) The existence and magnitude of the requester's commercial interest, as that term is used in paragraph (f)(3)(i)(A) of this section, being furthered by the releasable records; and
(F) Whether the magnitude of the requester's commercial interest is sufficiently large in comparison to the general public's interest.
(ii) Requesters asking for reduction or waiver of fees must state the reasons why they believe disclosure meets the standards set forth in paragraph (f)(2)(ii) of this section in a written request signed by the requester.
(iii) The indigence of the requester shall not be considered as a factor to determine if the requester is entitled to a reduction or waiver of fees.
(iv) Normally, no charge shall be made for providing records to federal, state, local, or foreign governments, or agencies or offices thereof, or international governmental organizations.
(v) The initial request for waiver or reduction of fees shall be addressed to the official of the IRS to whose office the request for disclosure is delivered pursuant to paragraph (c)(4)(i)(C) of this section. Appeals from denials of requests for waiver or reduction of fees shall be decided by the Commissioner's delegate in accordance with the criteria set forth in paragraph (f)(2)(ii) of this section. Appeals shall be received by the Commissioner's delegate within 35 days of the date of the letter of notification denying the initial request for waiver or reduction and shall be decided promptly.
(3)
(ii)
(B)
(C)
(D)
(E)
(iii)
(iv)
(B)
(C)
(4)
(ii) When the fees for processing requests are estimated by the IRS to exceed the upper limit agreed to by a requester, or when a requester has failed to state a limit and the costs are estimated to exceed $250, and the IRS has not then determined to waive or reduce the fees, a notice shall be sent to the requester. This notice shall—
(A) Inform the requester of the estimated costs;
(B) Extend an offer to the requester to confer with agency personnel in an attempt to reformulate the request in a manner which shall reduce the fees and still meet the needs of the requester;
(C) If the requester is not amenable to reformulation, which would reduce fees to under $250, then advance payment of the estimated fees shall be required; and
(D) Inform the requester that the time period, within which the IRS is obliged to make a determination on the request, shall not begin to run, pending a reformulation of the request or the receipt of advance payment from the requester, as appropriate.
(5)
(i)
(A)
(B)
(C)
(ii)
(B)
(iii)
(B) The actual direct cost of duplication for photographs, films, videotapes, audiotapes, compact disks, and other materials shall be charged.
(C) Records may be provided to a private contractor for copying and the requester shall be charged for the actual cost of duplication charged by the private contractor.
(D) When other duplication processes not specifically identified above are requested and provided pursuant to the Freedom of Information Act, their actual direct cost to the IRS shall be charged.
(E) Where the condition of the record does not enable the IRS to make legible copies, the IRS shall not attempt to reconstruct it. The official having jurisdiction over the record shall furnish the best copy that is available and advise the requester of this fact.
(iv)
(v)
(6)
(7)
(8)
(9)
(ii) When the IRS acts pursuant to paragraph (f)(9)(i) of this section, the administrative time limits prescribed in paragraphs (c)(9) and (10) of this section, plus permissible extensions of these time limits as prescribed in paragraph (c)(11)(i) of this section, shall begin only after the IRS official to whom the request is delivered has received the fees described above in paragraph (f)(9)(i) of this section.
(10)
(11)
(g)
(2)
(3)
(4)
(A) The business information was submitted to the IRS upon a commitment of confidentiality; or
(B) The business information was voluntarily submitted and it is of a kind that would customarily not be released to the public by the person from whom it was obtained; or
(C) The official has reason to believe that disclosure of the information may result in commercial or financial injury to the business submitter.
(ii) For business information submitted to the IRS on or after October 13, 1987, the IRS shall provide a business submitter with notice of a request whenever—
(A) The business submitter has designated the information as commercially or financially sensitive information; or
(B) The official has reason to believe that disclosure of the information may result in commercial or financial injury to the business submitter.
(iii) The business submitter's designation that the information is commercially or financially sensitive information should be supported by a statement or certification by an officer or authorized representative of the business providing specific justification that the information in question is, in fact, confidential commercial or financial information and has not been disclosed to the public.
(iv) Notice of a request for business information falling within paragraph (g)(4)(ii)(A) of this section shall be required for a period of not more than ten years after the date of submission unless the business submitter requests, and provides acceptable justification for, a specific notice period of greater duration.
(5)
(6)
(i) A statement of the reasons for which the business submitter's disclosure objections were not sustained;
(ii) A description of the business information to be disclosed; and
(iii) A specified disclosure date, which is ten days (excepting Saturdays, Sundays and legal public holidays) after the notice of the final decision to release the requested records has been mailed to the submitter. Except as otherwise prohibited by law, a copy of the disclosure notice shall be forwarded to the requester at the same time.
(7)
(ii)
(iii)
(A) The official having control over the records determines that the business information shall not be disclosed;
(B) The information lawfully has been published or otherwise made available to the public; or
(C) Disclosure of the information is required by law (other than 5 U.S.C. 552).
(8)
(9)
(ii) A copy of the FOIA request for information protected from disclosure under this paragraph shall be furnished to the contractor who submitted the proposal.
(h)
(1) For Personnel Background Investigation Records, the address of the responsible official is: Internal Revenue Service, Attn: Associate Director, Personnel Security, Room 4244, A:PS:PSO, 1111 Constitution Avenue, NW. Washington, DC 20224.
(2) For records of the Office of Chief Counsel other than those located in the Headquarters or Division Counsel immediate offices, records shall be deemed to be under the jurisdiction of the local area Disclosure Office. Requesters seeking records under this section should send their requests to the local area Disclosure Office address listed for the state where the requester resides or any activity associated with the records occurred (for states with multiple offices, the request should be sent to the nearest office):
Defense Logistics Agency, DoD.
Final rule.
This document removes information in title 32 of the Code of Federal Regulations concerning the DLA Standards of Conduct Program. Because the Department of Defense has promulgated rules prescribing standards of conduct applicable to all DoD entities, individual DoD Component rules are no longer required. Accordingly, the DLA Standards of Conduct rules may be removed.
November 19, 2002.
Defense Logistics Agency, Office of the General Counsel, ATTN: DG, 8725 John J. Kingman Road, STOP 2533, Fort Belvoir, VA 22060-6221.
Mr. Richard Saviet (703) 767-5023 or
DoD Directive 5500.7, Standards of Conduct, and DoD 5500.7-R, Joint Ethics Regulation, are available via the Internet at
Standards of Conduct
Environmental Protection Agency (EPA).
Direct final rule.
On February 19, 2002, June 16, 2002, and July 15, 2002 the Kentucky Natural Resources and Environmental Protection Cabinet (Cabinet) submitted revisions to the Jefferson County portion of the Kentucky State Implementation Plan (SIP). The Revisions pertain to definitions, portland cement kilns, abbreviations and acronyms, and solvent metal cleaning.
This direct final rule is effective January 21, 2003 without further notice, unless EPA receives adverse comment by December 19, 2002. If adverse comment is received, EPA will publish a timely withdrawal of the direct final rule in the
All comments should be addressed to: Scott Martin, Air Planning Branch, U.S. Environmental Protection Agency Region 4, 61 Forsyth Street, SW, Atlanta, Georgia 30303-8960.
Copies of the submittal are available at the following addresses for inspection during normal business hours:
Scott Martin, Regulatory Development Section, Air Planning Branch, Air, Pesticides and Toxics Management Division, Region 4, U.S. Environmental Protection Agency, 61 Forsyth Street, SW, Atlanta, Georgia 30303-8960. The telephone number is (404) 562-9036. Mr. Martin can also be reached via electronic mail at
The EPA is approving into the Jefferson County portion of the Kentucky SIP revisions which were submitted on February 19, 2002, June 6, 2002, and July 15, 2002.
Regulation 1.02 “Definitions” was revised to amend the current version to ensure consistency with with current definitions used by EPA and to remove definitions that are no longer used by Jefferson County.
Regulation 6.50 “NO
Regulation 1.03 “Abbreviations and Acronyms” is being amended to make technical corrections to the abbreviations and acronyms, add new
Regulation 1.19 “Administrative Hearings” is being added. This regulation is being added to establish an administrative hearing process for resolving alleged violations and providing an opportunity to be heard for persons who consider themselves aggrieved by actions on orders or permits.
Regulation 6.18 “Standards of Performance for Existing Solvent Metal Cleaning Equipment” is being revised. The main purpose of the action is to remove requirements that are no longer applicable. In early 2000, a requirement was added that specified that after March 1, 2000, no solvent with a vapor pressure greater than 1 mm Hg may be sold for or used in cold cleaners in Jefferson County. Because the cold cleaner material compliance date is now in the past, other requirements for solvents with haigher vapor pressures are no longer applicable, and therefore may be removed.
Another purpose of the action is to combine Regulation 7.18 “Standards of Preformance for New Solvent Metal Cleaning Equipment” with Regulation 6.18 because both regulations have identical requirements and differ only in the applicability to existing or newly affected facilities. By combining these regulations, Regulation 7.18 is no longer needed and is being repealed.
The EPA is approving the revisions to the Jefferson County portion of the Kentucky SIP. The EPA is publishing this rule without prior proposal because the Agency views this as a noncontroversial submittal and anticipates no adverse comments. However, in the proposed rules section of this
If the EPA receives such comments, then EPA will publish a document withdrawing the final rule and informing the public that the rule will not take effect. All public comments received will then be addressed in a subsequent final rule based on the proposed rule. The EPA will not institute a second comment period. Parties interested in commenting should do so at this time. If no such comments are received, the public is advised that this rule will be effective on January 21, 2003 and no further action will be taken on the proposed rule. Please note that if we receive adverse comment on an amendment, paragraph, or section of this rule and if that provision may be severed from the remainder of the rule, we may adopt as final those provisions of the rule that are not the subject of an adverse comment.
Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). This action merely approves state law as meeting Federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
This rule also does not have tribal implications because it will not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). This action also does not have Federalism implications because it does not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). This action merely approves a state rule implementing a Federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. This rule also is not subject to Executive Order 13045 “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), because it is not economically significant.
In reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. In this context, in the absence of a prior existing requirement for the State to use voluntary consensus standards (VCS), EPA has no authority to disapprove a SIP submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a SIP submission, to use VCS in place of a SIP submission that otherwise satisfies the provisions of the Clean Air Act. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
The Congressional Review Act, 5 U.S.C. 801
Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by January 21, 2003. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (
Environmental protection, Air pollution control, Intergovernmental relations, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements, Volatile organic compounds.
42 U.S.C. 7401
(c) * * *
Environmental Protection Agency (EPA).
Immediate final rule.
Georgia has applied to EPA for Final authorization of the changes to its hazardous waste program under the Resource Conservation and Recovery Act (RCRA). EPA has determined that these changes satisfy all requirements needed to qualify for Final authorization, and is authorizing the State's changes through this immediate final action. EPA is publishing this rule to authorize the changes without a prior proposal because we believe this action is not controversial and do not expect comments that oppose it. Unless we get written comments which oppose this authorization during the comment period, the decision to authorize Georgia's changes to their hazardous waste program will take effect. If we get comments that oppose this action, we will publish a document in the
This Final authorization will become effective on January 21, 2003 unless EPA receives adverse written comment by December 19, 2002. If EPA receives such comment, it will publish a timely withdrawal of this immediate final rule in the
Send written comments to Narindar Kumar, Chief, RCRA Programs Branch, Waste Management Division, U.S. Environmental Protection Agency, The Sam Nunn Atlanta Federal Center, 61 Forsyth Street, SW, Atlanta, Georgia 30303-8960; (404) 562-8440. We must receive your comments by December 19, 2002. You can view and copy Georgia's application from 8 a.m. to 4:30 p.m. at The Georgia Department of Natural Resources, Environmental Protection Division, 205 Butler Street, Suite 1154 East Tower, Atlanta, Georgia 30334-9000, and from 8:30 a.m. to 3:45 p.m., EPA Region 4, Library, The Sam Nunn Atlanta Federal Center, 61 Forsyth Street, SW, Atlanta, Georgia 30303-8960, Phone number (404) 562-8190, Kathy Piselli, Librarian.
Narindar Kumar, Chief, RCRA Programs Branch, Waste Management Division, U.S. Environmental Protection Agency. Phone: (404) 562-8440.
States which have received final authorization from EPA under RCRA section 3006(b), 42 U.S.C. 6926(b), must maintain a hazardous waste program that is equivalent to, consistent with, and no less stringent than the Federal program. As the Federal program changes, States must change their programs and ask EPA to authorize the changes. Changes to State programs may be necessary when Federal or State statutory or regulatory authority is modified or when certain other changes occur. Most commonly, States must change their programs because of changes to EPA's regulations in 40 Code of Federal Regulations (CFR) parts 124, 260 through 266, 268, 270, 273 and 279.
We conclude that Georgia's application to revise its authorized program meets all of the statutory and regulatory requirements established by RCRA. Therefore, we grant Georgia Final authorization to operate its hazardous waste program with the changes described in the authorization application. Georgia has responsibility for permitting Treatment, Storage, and Disposal Facilities (TSDFs) within its borders and for carrying out the aspects of the RCRA program described in its revised program application, subject to the limitations of the Hazardous and Solid Waste Amendments of 1984 (HSWA). New Federal requirements and prohibitions imposed by Federal regulations that EPA promulgates under the authority of HSWA take effect in authorized States before they are authorized for the requirements. Thus, EPA will implement those requirements and prohibitions in Georgia, including issuing permits, until the State is granted authorization to do so.
The effect of this decision is that a facility in Georgia subject to RCRA will now have to comply with the authorized State requirements instead of the equivalent Federal requirements in order to comply with RCRA. Georgia has enforcement responsibilities under its State hazardous waste program for violations of such program, but EPA retains its authority under RCRA sections 3007, 3008, 3013, and 7003, which include, among others, authority to:
• Do inspections, and require monitoring, tests, analyses or reports.
• Enforce RCRA requirements and suspend or revoke permits.
• Take enforcement actions regardless of whether the State has taken its own actions.
This action does not impose additional requirements on the regulated community because the regulations for which Georgia is being authorized by today's action are already effective, and are not changed by today's action.
EPA did not publish a proposal before today's rule because we view this as a routine program change and do not expect comments that oppose this approval. We are providing an opportunity for public comment now. In addition to this rule, in the proposed rules section of today's
If EPA receives comments that oppose this authorization, we will withdraw this rule by publishing a document in the
If we receive comments that oppose only the authorization of a particular change to the State hazardous waste program, we will withdraw that part of this rule but the authorization of the program changes that the comments do not oppose will become effective on the date specified above. The
Georgia initially received Final authorization on August 7, 1984, effective August 21, 1984 (49 FR 31417), to implement the RCRA hazardous waste management program. We granted authorization for changes to their program on July 7, 1986, effective September 18, 1986 (51 FR 24549), July 28, 1988, effective September 26, 1988 (53 FR 28383), July 24, 1990, effective September 24, 1990 (55 FR 30000), February 12, 1991, effective April 15, 1991 (56 FR 5656), May 11, 1992, effective July 10, 1992 (57 FR 20055), November 25, 1992, effective January 25, 1993 (57 FR 55466), February 26, 1993, effective April 27, 1993 (58 FR 11539), November 16, 1993, effective January 18, 1994 (58 FR 60388), April 26, 1994, effective June 27, 1994 (59 FR 21664), May 10, 1995, effective July 10, 1995 (60 FR 24790), August 30, 1995, effective October 30, 1995 (60 FR 45069), March 7, 1996, effective May 6, 1996 (61 FR 9108), September 18, 1998, effective November 17, 1998 (63 FR 49852), October 14, 1999, effective December 13, 1999 (64 FR 55629), and November 28, 2000, effective March 30, 2001 (66 FR 8090).
On June 25, 2002, Georgia submitted a final complete program revision application, seeking authorization of their changes in accordance with 40 CFR 271.21. Georgia's revision consists of provisions promulgated July 1, 1999 through June 30, 2000, otherwise known as RCRA Cluster X. We now make an immediate final decision, subject to receipt of written comments that oppose this action, that Georgia's hazardous waste program revision satisfies all of the requirements necessary to qualify for Final authorization. Therefore, we grant Georgia Final authorization for the following program changes:
There are no State requirements in this program revision considered to be more stringent or broader in scope than the Federal requirements.
Georgia will issue permits for all the provisions for which it is authorized and will administer the permits it issues. EPA will continue to administer any RCRA hazardous waste permits or portions of permits which we issued prior to the effective date of this authorization until they expire or are terminated. We will not issue any more new permits or new portions of permits for the provisions listed in the Table above after the effective date of this authorization. EPA will continue to implement and issue permits for HSWA
Codification is the process of placing the State's statutes and regulations that comprise the State's authorized hazardous waste program into the Code of Federal Regulations. We do this by referencing the authorized State rules in 40 CFR part 272. We reserve the amendment of 40 CFR part 272, subpart L for this authorization of Georgia's program until a later date.
The Office of Management and Budget has exempted this action from the requirements of Executive Order 12866 (58 FR 51735, October 4, 1993), and therefore this action is not subject to review by OMB. This action authorizes State requirements for the purpose of RCRA 3006 and imposes no additional requirements beyond those imposed by State law. Accordingly, I certify that this action will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
Under RCRA 3006(b), EPA grants a State's application for authorization as long as the State meets the criteria required by RCRA. It would thus be inconsistent with applicable law for EPA, when it reviews a State authorization application, to require the use of any particular voluntary consensus standard in place of another standard that otherwise satisfies the requirements of RCRA. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. As required by section 3 of Executive Order 12988 (61 FR 4729, February 7, 1996), in issuing this rule, EPA has taken the necessary steps to eliminate drafting errors and ambiguity, minimize potential litigation, and provide a clear legal standard for affected conduct. EPA has complied with Executive Order 12630 (53 FR 8859, March 15, 1988) by examining the takings implications of the rule in accordance with the “Attorney General's Supplemental Guidelines for the Evaluation of Risk and Avoidance of Unanticipated Takings” issued under the executive order. This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
The Congressional Review Act, 5 U.S.C. 801
Environmental protection, Administrative practice and procedure, Confidential business information, Hazardous waste, Hazardous waste transportation, Indian lands, Intergovernmental relations, Penalties, Reporting and recordkeeping requirements.
This action is issued under the authority of 42 U.S.C. 6912(a), 6926, 6974(b).
Federal Communications Commission.
Final rule.
The Commission, at the request of WYCQ, Inc., reallots Channel 275C1 from Shelbyville to LaVergne, Tennessee, as the community's first local aural transmission service, and modifies Station WBUZ(FM)'s license accordingly.
Effective December 9, 2002.
Federal Communications Commission, Washington, DC 20554.
Sharon P. McDonald, Media Bureau, (202) 418-2180.
This is a synopsis of the Commission's Report and Order, MM Docket No. 01-224, adopted October 16, 2002, and released October 25, 2002. The full text of this Commission decision is available for inspection and copying during normal business hours in the FCC Reference Information Center (Room CY-A257), 445 12th Street, SW., Washington, DC. The complete text of this decision may also be purchased from the Commission's copy contractor, Qualex International, Portals II, 445 12th Street, SW., Room CY-B402, Washington, DC 20054.
Provisions of the Regulatory Flexibility Act of 1980 do not apply to this proceeding. Members of the public should note that from the time a Notice of Proposed Rule Making is issued until the matter is no longer subject to Commission consideration or court review, all
For information regarding proper filing procedures for comments,
Radio, Radio broadcasting.
47 U.S.C. 54, 303, 334 and 336.
Federal Communications Commission.
Final rule, petition for reconsideration.
This document grants a petition for reconsideration filed by Media Equities Corporation, seeking reconsideration of the
Effective December 9, 2002.
Victoria M. McCauley, Media Bureau, (202) 418-2180.
This is a synopsis of the Commission's
Provisions of the Regulatory Flexibility Act of 1980 do not apply to this proceeding.
Members of the public should note that from the time a Notice of Proposed Rule Making is issued until the matter is no longer subject to Commission consideration or court review, all
Radio, Radio broadcasting.
47 U.S.C. 154, 303, 334 and 336.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Final rule.
NMFS issues this final rule to modify the regulations implementing Framework Adjustment 35 (Framework 35) to the Northeast Multispecies Fishery Management Plan (FMP). Framework 35 established an exempted small mesh whiting fishery in the Gulf of Maine (GOM), near Provincetown, MA. The fishery occurs from September 1 through November 20 each year and requires the use of raised footrope trawl gear. This final rule modifies the boundaries of the current exemption area through inclusion of an area east of Cape Cod and allows the fishery to continue in the newly added eastern portion of the exemption area through December 31 of each year.
Effective November 14, 2002.
Copies of Amendment 12 to the FMP, its regulatory impact review (RIR), the initial regulatory flexibility analysis contained within the RIR, and its final Supplemental Environmental Impact Statement, along with Framework 35, its RIR and Environmental Assessment (EA), and other supporting documents for both Amendment 12 and Framework 35, and the EA and RIR prepared for this final rule are available from Paul J. Howard, Executive Director, New England Fishery Management Council, 50 Water Street, Mill 2, Newburyport, MA 01950. These documents are also available online at
E. Martin Jaffe, Fishery Policy Analyst, NMFS, 978-281-9272.
The final rule implementing Framework 35 (65 FR 49942, August 16, 2000) established an exempted whiting raised footrope trawl fishery in an area in upper Cape
The Northeast (NE) multispecies regulations, at 50 CFR 648.80(a)(8)(i)(A), specify that, in order for any fishery to occur in the GOM/Georges Bank (GB) Regulated Mesh Area, it must be shown to have a bycatch of regulated multispecies that is less than 5 percent of the catch of all species. This regulation is intended to prevent the bycatch and discard of large amounts of regulated multispecies that could be caught in fisheries targeting other species. Small mesh bottom trawl fisheries are of particular concern because of the interactions of bottom fish, the limited selectivity of small mesh, and the high potential for regulated multispecies bycatch.
In May 2002, the Massachusetts Division of Marine Fisheries (MADMF) submitted a request to the Administrator, Northeast Region, NMFS (Regional Administrator) for an exempted fishery in the so-called “Area 3” east of Cape Cod and immediately adjacent to the present raised footrope trawl exempted fishery. Since 1997, the MADMF has tested the raised footrope trawl design in Area 3 east of Cape Cod from September 1 through December 31 each year. Section 648.80(a)(8)(i)(A) of the NE multispecies regulations provides for expansion of the existing exemption area boundaries, to include Area 3, if the Regional Administrator, after consultation with the New England Fishery Management Council (Council), determines that the percentage of regulated multispecies bycatch is, or can be reduced to, less than 5 percent, by weight, of total catch and that such exemption will not jeopardize fishing mortality objectives of the FMP.
The Regional Administrator consulted with the Council and, at its June 24-26, 2002, meeting, the Council voted to support the MADMF request to the Regional Administrator to grant exempted fishery status in Area 3 east of Cape Cod. The Council asked that NMFS base its decision on the results of MADMF-funded sea sampling, which demonstrated that regulated multispecies bycatch had been reduced to less than 5 percent, by weight, of the total catch.
In the last 2 years, the landings of whiting in the experimental area have been substantial and have exceeded 800,000 lb (362,874 kg) annually. Effort in 2001 increased by approximately 50 percent over 2000, with the number of participating vessels increasing from 10 to 15, and reported trips increased from 108 to 164. MADMF expended significant effort in documenting fishing performance in 2000 and 2001. There were 269 observed and unobserved trips in the experimental raised footrope trawl fishery in Area 3 during 2000 and 2001. According to the data submitted by MADMF, the overall percentage of regulated multispecies bycatch in the experimental fishery was 4 percent on seven observed trips, and 0.9 percent on 80 unobserved trips in 2000; and 1.7 percent on 18 observed trips, and 1.9 percent on 164 unobserved trips in 2001. The data indicate that the majority of the trips with regulated multispecies bycatch percentages higher than 5 percent resulted from either very low whiting catches, or apparently aborted trips (trips with total catch less than 500 lb (226.8 kg)), and not from significantly high levels of regulated multispecies bycatch. With a few exceptions, the amount of regulated multispecies bycatch on these trips was no greater than the trips that fell below 5 percent regulated multispecies bycatch.
The Regional Administrator has a reasonable basis to determine that a modification of the boundaries of the Raised Footrope Trawl Whiting Fishery Exemption Area, to include the adjacent area east of Cape Cod (Area 3), will not exceed the 5-percent bycatch allowance of regulated multispecies. In addition, while the current exempted fishery area is closed to exempted fishing on November 20 of each year in order to minimize expected cod bycatch (while still maximizing whiting catch), this rationale does not apply to Area 3 east of Cape Cod. While the landings data for Framework 35 justify closing the existing exempted fishery on November 20, the landings data for the newly added eastern portion of the Raised Footrope Trawl Whiting Fishery Exemption Area support the eastern portion remaining open through December 31.
The Assistant Administrator for Fisheries, NOAA (AA), finds there is good cause to waive prior notice and opportunity for comment under 5 U.S.C. 553(b)(B). The proposed exempted fishery is seasonal, intended to begin on September 1 and continue only through the end of the calendar year. Fishermen depend upon access to this fishery (for the past five years, they have been able to participate in the experimental exempted fishery), and this dependence has been increased as a result of recent changes to the NE multispecies regulations as a result of the
Immediate publication of this action as a final rule will provide the fishing industry with full access to the seasonal whiting fishery in as quick a timeframe as possible. Should implementation of this action be delayed, the fishing industry would be denied access to this alternative fishery for a significant part of the fishing season for whiting. Because this is a seasonal fishery, there is an urgency to conclude the rulemaking process and implement the exemption as soon as possible. Delays in implementation are contrary to the public interest and would have potentially significant adverse impacts on industry, who would be denied access to this fishery. Therefore, since this action relieves a burden to the fishing industry without compromise of the conservation objective, it would be contrary to the public interest to delay the implementation of this rule through prior notice and comment.
Moreover, it would be impracticable to provide prior public notice and comment. Consideration of this exempted fishery proceeded with the utmost diligence. The Regional Administrator (RA) could not act upon MADMF's application until consultation with the New England Fishery Management Council. Consultation occurred at the first opportunity at the end of June 2002. Following this meeting, the RA instructed her staff to begin analyzing the data submitted by Massachusetts in order to determine (1) whether the data supported the creation of an exempted fishery under 50 CFR § 648.80(a)(8)(i)(A); and (2) the type of National Environmental Policy Act document required to analyze the potential impacts on the human environment. The NMFS, Northeast Regional Office determined that in order to ensure adequate consideration of the environmental impacts of the exempted whiting fishery, the preparation of an Environmental Assessment was necessary.
Finally, the public has been given several opportunities to comment on the creation of this exempted fishery. Public meetings were held by the Council to discuss inclusion of Area 3 (which roughly encompasses the area defined in this rule) in the exempted fishery
In addition, prior to requesting that the existing exemption area be expanded, MADMF had requested, and been granted, experimental exempted fishery permits (EFP) for this expanded area in each of the previous 5 years. Each request for an EFP, which covered the same area and approximately the same number of fishing vessels as would be likely to participate in the exempted fishery, involved a prior notice to the public and solicitation for comments in the
The AA, under 5 U.S.C. 553(d)(3), finds good cause to waive the 30-day delay in the effectiveness of these measures, as this rule relieves a restriction. Because this fishery is set to close on November 20, 2002, additional fishing opportunities would be prohibited. In order to avoid an interruption in fishing activity in the expanded area, it is necessary to waive the 30-day delayed effectiveness period. This would allow the continued harvest of the whiting stock for the remainder of the calendar year without compromising the conservation objective.
This final rule has been determined to be not significant for purposes of Executive Order 12866.
Because prior notice and opportunity for public comment are not required for this final rule by 5 U.S.C. 553, or any other law, the analytical requirements of the Regulatory Flexibility Act, 5 U.S.C. 601
Fisheries, Fishing, Reporting and recordkeeping requirements.
1. The authority citation for part 648 continues to read as follows:
16 U.S.C. 1801
(a) * * *
(15)
(i) * * *
(F) Fishing may only occur from September 1 through November 20 of each fishing year, except that it may occur in the eastern portion only of the Raised Footrope Trawl Whiting Fishery Exemption Area from November 21 through December 31 of each fishing year.
Coast Guard, DOT.
Proposed rule; meeting and extension of comment period.
The Coast Guard will hold a public meeting to let members of the public present oral comments on proposed rules for planholders transporting or transferring petroleum oil. A proposed rule published on October 11, 2002, would require changes to the requirements for oil-spill removal equipment under vessel response plans and marine transportation-related facility response plans. These changes would increase the minimum available spill removal equipment required for tank vessels and facilities, add requirements for new response technologies, and clarify methods and procedures for responding to oil spills in coastal waters.
The Coast Guard will hold this public meeting on Wednesday, December 18, 2002, from 9:30 a.m. to 3:30 p.m., except that the meeting may close early if all business is finished. Other comments must reach the Docket Management Facility on or before April 8, 2003.
The Coast Guard will hold this public meeting in room 4618, Coast Guard Headquarters, 2100 Second Street SW., Washington, DC 20593-0001.
You may submit your comments directly to the Docket Management Facility. To make sure that your comments and related material are not entered more than once in the docket [USCG-2001-8661], please submit them by only one of the following means:
(1) By mail to the Facility, U.S. Department of Transportation, room PL-401, 400 Seventh Street SW., Washington, DC 20590-0001.
(2) By delivery to room PL-401 on the Plaza level of the Nassif Building, 400 Seventh Street SW., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The telephone number is 202-366-9329.
(3) By fax to the Facility at 202-493-2251.
(4) Electronically through the Web Site for the Docket Management System at
The Facility maintains the public docket for this notice. Comments, and related material as indicated in this notice, will become part of this docket and will be available for inspection or copying at room PL-401, on the Plaza level of the Nassif Building at the same address between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. You may also access this docket on the Internet at
For questions on this notice, call or e-mail Mr. Robert Pond, G-MOR, Coast Guard, at telephone 202-267-6603, or
The Coast Guard encourages you to submit comments and related material concerning the notice of proposed rulemaking (NPRM) on Vessel and Facility Response Plans for Oil published October 11, 2002 [67 FR 63331]. If you do so, please include your name and address, identify the docket number [USCG-2001-8661] and give the reasons for each comment. You may submit your comments and material by mail, delivery, fax, or electronic means to the Docket Management Facility at the address under
For information on facilities or services for individuals with disabilities or to seek special assistance at the meeting, contact Mr. Pond at the address or phone number under
In 1996, the Coast Guard published final tank vessel response plan regulations [61 FR 1052, January 12, 1996] and final MTR facilities response plan regulations [61 FR 7890, February 29, 1996]. These regulations contain minimum on-water oil removal equipment requirements that planholders transporting or transferring petroleum oil are required to meet in planning for an oil discharge. These regulations also state that the Coast Guard will periodically review the existing oil removal equipment requirements to determine if increases in mechanical recovery systems and additional requirements for new response technologies are practicable.
On October 11, 2002, we published a notice of proposed rulemaking in the
The Coast Guard encourages interested persons to attend the meeting and present oral comments during the meeting. The meeting is open to
Postal Service.
Proposed rule.
The Postal Service is proposing revisions to the
Also proposed is a change in the minimum weight for Presorted Bound Printed Matter flats claimed at the destination delivery unit (DDU) rate. The minimum weight for such pieces is proposed to change from “more than 1 pound” to “more than 20 ounces.”
Submit comments on or before December 19, 2002.
Mail or deliver written comments to the Manager, Mail Preparation and Standards, U.S. Postal Service, 1735 N. Lynn Street, Room 3025, Arlington, VA 22209-6038. Written comments may also be submitted via fax to 703-292-4058. Copies of all written comments will be available for inspection and photocopying between 9 a.m. and 4 p.m., Monday through Friday, at the Postal Service Headquarters Library, 475 L'Enfant Plaza SW, 11th Floor North, Washington, DC.
Jane Stefaniak at (703) 292-3548, Mail Preparation and Standards, United States Postal Service.
Through several past rulemakings (65 FR 52480, 66 FR 28659, and 66 FR 58944) the Postal Service has established mail preparation standards in
Bound Printed Matter Presorted rate flats (no barcode required) and Presorted rate flats that bear a ZIP+4 or delivery point barcode and claim the barcoded discount are usually processed by the Postal Service within the same operation. For this reason, allowing packages of flat-size barcoded and nonbarcoded pieces to be combined within the same container (
Under the proposed co-sacking standards for flat-size Bound Printed Matter, mailers would be required, beginning June 1, 2003, to co-sack (
The proposed standards for the optional co-packaging of Bound Printed Matter flats would include the following:
• All pieces would be required to weigh 20 ounces or less and meet the AFSM 100 criteria for automation-compatible flat-size mail in DMM M820.
• Presorted rate pieces qualifying for the barcoded discount would be required to be part of a Presorted rate mailing of at least 300 flat-size pieces and be prepared under DMM M820. Presorted rate pieces not claiming the barcoded discount would be required to be part of a mailing of at least 300 pieces prepared under DMM M722.
• Each piece in the Presorted rate mailing qualifying for the barcoded discount would be required to bear a correct and readable ZIP+4 or delivery point barcode (DPBC) under DMM C840. Each piece in the Presorted rate mailing would be required to bear a correct and readable 5-digit barcode under DMM C840.
• Presorted rate pieces qualifying for the barcoded discount would be required to be sorted together with the Presorted rate pieces, but only one physical package for each logical presort destination would be permitted to include pieces for both rate categories, unless presented using an approved manifest mailing system under DMM P910.
• Mailing that are co-packaged pieces would be required to be co-sacked under DMM M910.
The proposed standards for the co-sacking of Bound Printed Matter flats would include the following:
• Packages prepared as part of the Presorted rate mailing qualifying for the barcoded discount and packages prepared as part of the Presorted rate mailing not qualifying for the barcoded discount would be required to be co-sacked, effective June 1, 2003.
• Packages of flats qualifying for the barcoded discount that are co-sacked with packages of Presorted rate flats would be required to be part of the same mailing job.
• Both the Presorted rate mailing qualifying for the barcoded discount and the Presorted rate mailing not qualifying for the barcoded discount would be required to separately meet the applicable rate eligibility and volume requirements.
• Packages that are co-sacked under DMM M910 would not be required to be co-packaged.
Standardized documentation under DMM P012 would be required for mailings prepared under the proposed standards for co-packaging and co-sacking as follows:
• Documentation for a co-packaged mailing would be required to indicate by zone (when applicable) the number of Presorted rate pieces qualifying for the barcoded discount and the number of Presorted rate pieces not claiming the barcoded discount that are contained in each package.
• Documentation for a co-sacked mailing would be required to indicate by zone (when applicable) for each sack sortation level, the number of Presorted rate pieces qualifying for the barcode discount, and the number of Presorted rate pieces not claiming the barcoded discount that are contained in each sack.
If this proposal is adopted, mailers could begin using the co-packaging and co-sacking standards for Bound Printed Matter flats immediately. The standards for co-packaging would be optional. The Postal Service is proposing the mandatory use of the co-sacking preparation standards beginning on June 1, 2003. The delayed implementation date would ensure that mailers could meet all operational requirements for the co-sacking standards.
As part of this notice, an additional DMM revision is proposed that would change the minimum weight in DMM E752.4.2 for Presorted rate Bound Printed Matter flats claimed at the destination delivery unit (DDU) rates from “more than 1 pound” to “more than 20 ounces.” The corresponding text in DMM R700.2.5 would also be revised. Based on operational conditions and requirements, this proposed change would position the minimum weight for DDU rate Presorted Bound Printed Matter flats to begin after the point where the maximum weight of 20 ounces for AFSM 100 Bound Printed Matter flats ends. The maximum weight for AFSM 100 Bound Printed Matter flats was published in a previous
Although exempt from the notice and comment requirements of the Administrative Procedure Act [5 U.S.C. of 553(b), (c)] regarding proposed rulemaking by 39 U.S.C. 410(a), the Postal Service invites public comment on the following proposed revisions to the
Administrative Practice and Procedure, Postal Service.
1. The authority citation for 39 CFR part 111 continues to read as follows:
5 U.S.C. 552(a); 39 U.S.C. 101, 401, 403, 404, 414, 416, 3001-3011, 3201-3219, 3403-3406, 3621, 3626, 5001.
2. Amend the following sections of the
For purposes of preparing mail:
ad. Co-packaging is an alternate preparation method available under M950 for First-Class Mail, Periodicals, and Standard Mail that allows the combining of flat-size automation rate and Presorted rate pieces within the same package under the single minimum package size requirement. Co-packaging is also available for combining flat-size Bound Printed Matter Presorted pieces qualifying for the barcoded discount and Presorted rate pieces not qualifying for the barcoded discount within the same package. Pieces may not be combined in more than one physical package for each logical presort destination unless presented using an approved manifest mailing system under P910.
Mailings are defined as:
e. Package Services. Except for single-piece rate pieces not otherwise subject to a minimum mailing requirement that are presented under an approved manifest mailing system under P910, the types of Package Services listed below may not be part of the same mailing even if in the same processing category. See M910 and M950 for the advanced preparation options available for flat-size Bound Printed Matter.* * *
The following standards apply:
a. If the mailing job contains a carrier route mailing, a Presorted mailing qualifying for the barcoded discount, and a Presorted rate mailing, then it must be prepared using one of the following options:
(1) All three mailings in the mailing job must be prepared using the appropriate standards in M722, M723, and M820.
(2) The carrier route mailing must be prepared under E712 and M723, and the Presorted mailing qualifying for the barcoded discount and the Presorted rate mailing must be prepared under the co-sacking standards in M910.
b. If the mailing job contains a Presorted mailing qualifying for the barcoded discount and a Presorted rate mailing, then it must be prepared using one of the following options:
(1) Both mailings must be prepared using the appropriate preparation in M722 and M820.
(2) Both mailings must be prepared under the co-sacking standards in M910.
c. If the mailing job contains a carrier route mailing and a Presorted rate mailing, then it must be separately sacked under M722 and M723.
d. At the mailer's option, Presorted pieces qualifying for the barcoded discount may be co-packaged with Presorted rate pieces under M950.
The following standards apply:
d. Bound Printed Matter:
(1) If the mailing job contains a carrier route mailing, a Presorted mailing qualifying for the barcoded discount, and a Presorted rate mailing, then it must be prepared using one of the following options:
(a) All three mailings in the mailing job must be prepared using the appropriate preparation in M722, M723, and M820.
(b) The carrier route mailing must be prepared under E712 and M723, and the Presorted mailing qualifying for the barcoded discount and the Presorted rate mailing must be prepared under the co-sacking standards in M910.
(2) If the mailing job contains only a Presorted rate mailing qualifying for the barcoded discount and a Presorted rate mailing, then it must be prepared using one of the following options:
(a) Both mailings must be prepared using the appropriate preparation in M722 and M820.
(b) Both mailings must be prepared under the co-sacking standards in M910.
(3) If the mailing job contains only a carrier route mailing and a Presorted mailing qualifying for the barcoded discount, then it must be separately prepared under M723 and M820.
(4) At the mailer's option, Presorted pieces qualifying for the barcoded discount may be co-packaged with Presorted rate pieces under M950.
Preparation sequence, sack size, and labeling:
a. 5-digit (required); minimum 20 addressed pieces; labeling:
(1) Line 1: city, state, and 5-digit ZIP Code destination of packages, preceded for military mail by correct prefix under M031.
(2) Line 2: “PSVC FLTS 5D BC.”
b. 3-digit (required); minimum 20 addressed; labeling:
(1) Line 1: L002, Column A.
(2) Line 2: “PSVC FLTS 3D BC.”
c. SCF (required for each 3-digit ZIP Code served by the SCF of the origin (verification) office; optional for each 3-digit ZIP Code served by the SCF of an entry office other than the origin office); minimum 20 addressed pieces; labeling:
(1) Line 1: L005.
(2) Line 2: “PSVC FLTS SCF BC.”
d. ADC (required); minimum 20 addressed pieces (use L004 to determine ZIP Codes served by each ADC); labeling:
(1) Line 1: L004.
(2) Line 2: “PSVC FLTS ADC BC.”
e. Mixed ADC (required); no minimum; labeling:
(1) Line 1: L803. If entered by mailer at an ASF or BMC, L802.
(2) Line 2: “PSVC FLTS BC/NBC WKG.”
M910 describes the eligibility and preparation requirements for co-traying flat-size packages of automation rate and Presorted rate First-Class Mail. It also describes the eligibility and preparation requirements for co-sacking flat-size packages of nonletter-size automation rate and Presorted rate Periodicals, flat-size packages of automation rate and Presorted rate Standard Mail, and flat-size packages of Bound Printed Matter Presorted rate qualifying for the barcoded discount and Presorted rate (not qualifying for the barcoded discount).
Effective June 1, 2003, mailers must co-sack packages of flat-size pieces from a Presorted mailing qualifying for the barcoded discount with packages of flat-size pieces from a Presorted rate mailing under the following conditions:
a. The Presorted pieces qualifying for the barcoded discount and the Presorted rate pieces are part of the same mailing job and are reported on the same postage statement.
b. The Presorted pieces qualifying for the barcoded discount must meet the criteria for flat-size mail under C050 and C820. Pieces in the Presorted rate mailing must meet the criteria for flat-size mail under C050.
c. The Presorted mailing qualifying for the barcoded discount must meet the eligibility criteria in E712, except that the sacking and documentation criteria in 4.1 and 4.4 must be met rather than the sacking and documentation criteria in M820.
d. The Presorted rate mailing must meet the eligibility criteria in E712, except that the sacking and documentation criteria in 4.1 and 4.4 must be met rather than the sacking and documentation criteria in M722.
e. The rates for pieces in the Presorted mailing qualifying for the barcoded discount are applied based on the number of pieces in the package, the level of package to which they are sorted under M722, and when applicable, the zone. The rates for pieces in the Presorted rate mailing are based on the number of pieces in the package, the level of sack in which they are placed under E712, and when applicable, the zone.
f. The pieces must be marked according to M012.
g. The packages prepared from the Presorted mailing qualifying for the barcoded discount and the packages prepared from the Presorted rate mailing must be sorted into the same sacks as described in 4.4.
h. A complete, signed postage statement(s), using the correct Postal Service form or an approved facsimile, must accompany each mailing job prepared under these procedures. Standardized documentation under P012 must also be submitted with each co-sacked mailing job and must describe for each sack sortation level, the number of pieces qualifying for the barcode discount, and the number of pieces that qualify for each applicable Presorted rate. i. Barcoded sack labels under M032 must be used to label the sacks.
Except for mail prepared under the co-packaging option in 4.3, the Presorted mailing qualifying for the barcoded discount must be packaged and labeled under M820 and the Presorted rate mailing must be packaged and labeled under M722.
As an option to the basic packaging requirements in 4.2, a mailer may co-package flat-size Presorted pieces qualifying for the barcoded discount and flat-size Presorted rate pieces, subject to M950.
Packages of Presorted pieces qualifying for the barcoded discount and Presorted rate pieces prepared under 4.2 and 4.3 must be presorted together into sacks (co-sacked) using the following preparation sequence, sack size, and labeling:
a. 5-digit (required); minimum 20 addressed pieces; labeling:
(1) Line 1: city, state, and 5-digit ZIP Code destination of packages, preceded for military mail by correct prefix under M031.
(2) Line 2: “PSVC FLTS 5D BC/NBC.”
b. 3-digit (required); minimum 20 addressed pieces; labeling:
(1) Line 1: L002, Column A.
(2) Line 2: “PSVC FLTS 3D BC/NBC.”
c. SCF (required for each 3-digit ZIP Code served by the SCF of the origin (verification) office; optional for each 3-digit ZIP Code served by the SCF of an entry office other than the origin office); minimum 20 addressed; labeling:
(1) Line 1: L005.
(2) Line 2: “PSVC FLTS SCF BC/NBC.”
d. ADC (required); minimum 20 addressed (use L004 to determine ZIP Codes served by each ADC); labeling:
(1) Line 1: L004.
(2) Line 2: “PSVC FLTS ADC BC/NBC.”
e. Mixed ADC (required); no minimum; labeling:
(1) Line 1: L803. If entered by mailer at an ASF or BMC, L802.
(2) Line 2: “PSVC FLTS BC/NBC WKG.”
M950 describes the eligibility and preparation requirements for co-packaging flat-size automation rate and Presorted rate First-Class Mail, nonletter-size automation rate and Presorted rate Periodicals, flat-size automation rate and Presorted rate Standard Mail, and flat-size Presorted rate qualifying for the barcoded discount and Presorted rate (not qualifying for the barcoded discount) Bound Printed Matter.
Mailers may choose to co-package flat-size Presorted pieces qualifying for the barcoded discount and Presorted rate pieces as an option to the basic packaging requirements in M722 and M820, subject to the following conditions:
a. The pieces in the Presorted mailing qualifying for the barcoded discount and the pieces in the Presorted rate mailing must be part of the same mailing job and must be reported on the same postage statement.
b. The pieces in the mailing job must be flat-size and meet any other size and mailpiece design requirements applicable to the rate category for which they are prepared.
c. Mailings prepared in sacks must meet the basic standards in M910.
d. A minimum of 300 Presorted pieces qualifying for the barcoded discount and a minimum of 300 Presorted rate pieces are required. The total number of pieces qualifying for the barcoded discount and the total number of pieces qualifying for the Presorted rate must be used to meet the minimum volume requirements for packages and containers.
e. Presorted rate pieces must contain a 5-digit barcode and be co-packaged with Presorted pieces qualifying for the barcoded discount for the same presort destination. If this optional preparation method is used, all barcoded discount pieces and Presorted rate pieces in the same mailing job and reported on the same postage statement must be co-packaged.
f. All pieces must meet the AFSM 100 requirements described in C820.
g. Unless presented using an approved manifest mailing system under P910, mailers must sort Presorted pieces qualifying for the barcoded discount and Presorted rate pieces for each presort destination so that only one physical package for each logical presort destination includes both Presorted pieces qualifying for the barcoded
Package size, preparation sequence, and labeling:
a. 5-digit (required); minimum 10 addressed pieces or 10 pounds, maximum package weight 20 pounds; red Label D or optional endorsement line (OEL).
b. 3-digit (required); minimum 10 addressed pieces or 10 pounds, maximum package weight 20 pounds; green Label 3 or OEL.
c. ADC (required); minimum 10 addressed pieces or 10 pounds, maximum package weight 20 pounds; pink Label A or OEL.
d. Mixed ADC (required); no minimum, maximum package weight 20 pounds; tan Label MXD or OEL.
* * * Presorted flats weighing 20 ounces or less are not eligible for the DDU rate.
An appropriate amendment to 39 CFR 111 to reflect the changes will be published if the proposal is adopted.
Environmental Protection Agency (EPA).
Proposed rule.
On February 19, 2002, June 16, 2002, and July 15, 2002, the Kentucky Natural Resources and Environmental Protection Cabinet (Cabinet) submitted revisions to the Jefferson County portion of the Kentucky State Implementation Plan (SIP). The EPA is proposing to approve these revisions to the SIP. In the final rules section of this
Written comments must be received on or before December 19, 2002.
All comments should be addressed to: Scott Martin, Air Planning Branch, U.S. Environmental Protection Agency Region 4, 61 Forsyth Street, SW., Atlanta, Georgia 30303-8960.
Copies of the Commonwealth's submittal are available at the following addresses for inspection during normal business hours:
Scott Martin, Regulatory Development Section, Air Planning Branch, Air, Pesticides and Toxics Management Division, Region 4, U.S. Environmental Protection Agency, 61 Forsyth Street, SW., Atlanta, Georgia 30303-8960. The telephone number is (404) 562-9036. Mr. Martin can also be reached via electronic mail at
For additional information, see the direct final rule which is published in the rules section of this
Environmental Protection Agency (EPA).
Proposed rule amendments; reopening of public comment period.
The EPA is announcing the reopening of the public comment period on the proposed amendments to the national emission standards for hazardous air pollutants (NESHAP) for Chromium Emissions from Hard and Decorative Chromium Electroplating and Chromium Anodizing Tanks. We originally requested comments on the proposed rule amendments by August 5, 2002 (67 FR 38809, June 5, 2002). We are reopening the comment period and extending the deadline for written comments to January 21, 2003, because pertinent information related to the proposed rule amendments was not submitted to the docket and thus not available for inspection prior to August 1, 2002.
Commenters wishing to submit proprietary information for consideration must clearly distinguish such information from other comments and clearly label it as CBI. Send submissions containing such proprietary information directly to the following address, and not to the public docket, to ensure that proprietary information is not inadvertently placed in the docket: OAQPS Document Control Officer, C404-02, Attention: Mr. Phil Mulrine, U.S. EPA, Research Triangle Park, NC 27711. The EPA will disclose information identified as CBI only to the extent allowed by the procedures set forth in 40 CFR part 2. If no claim of confidentiality accompanies a submission when it is received by EPA, the information may be made available to the public without further notice to the commenter.
Mr. Phil Mulrine, Metals Group, Emission Standards Division, C439-02, U.S. EPA, Research Triangle Park, North Carolina 27711; telephone number (919) 541-5289; facsimile number (919) 541-5450; electronic mail address
Environmental protection, Administrative practice and procedure, Air pollution control, Hazardous substances, Intergovernmental relations, Recordkeeping and reporting requirements.
Environmental Protection Agency (EPA).
Proposed rule.
Georgia has applied to EPA for Final authorization of the changes to its hazardous waste program under the Resource Conservation and Recovery Act (RCRA). EPA proposes to grant final authorization to Georgia. In the “Rules and Regulations” section of this
Send your written comments by December 19, 2002.
Send written comments to Narindar Kumar, Chief, RCRA Programs Branch, Waste Management Division, U.S. Environmental Protection Agency, The Sam Nunn Atlanta Federal Center, 61 Forsyth Street, SW., Atlanta, Georgia 30303-8960; (404) 562-8440. You can examine copies of the materials submitted by Georgia during normal business hours at the following locations: EPA Region 4 Library, The Sam Nunn Atlanta Federal Center, 61 Forsyth Street, SW., Atlanta, Georgia 30303-8960, Phone number: (404) 562-8190, Kathy Piselli, Librarian; or The Georgia Department of Natural Resources Environmental Protection Division, 205 Butler Street, Suite 1154, East, Atlanta Georgia 30334-4910, Phone number: 404-656-7802.
Narindar Kumar, Chief, RCRA Programs Branch, Waste Management Division, U.S. Environmental Protection Agency, The Sam Nunn Atlanta Federal Center, 61 Forsyth Street, SW., Atlanta, Georgia 30303-8960; (404) 562-8440.
For additional information, please see the immediate final rule published in the “Rules and Regulations” section of this
Federal Communications Commission.
Proposed rule.
The Audio Division requests comments on a petition filed by JEM Broadcasting Company, Inc. proposing the allotment of Channel 245A at Jasper, Arkansas, as the community's first local aural transmission service. Channel 245A can be allotted to Jasper in compliance with the Commission's minimum distance separation requirements at city reference coordinates. The coordinates for Channel 245A at Jasper are 36-00-29 North Latitude and 93-11-11 West Longitude. The Audio Division also requests comments on a petition filed by Larry Jackson proposing the allotment of Channel 288C2 at Milford, Utah, as the community's first local aural transmission service. Channel 288C2 can be allotted to Milford in compliance with the Commission's minimum distance separation requirements at city reference coordinates. The coordinates for Channel 288C2 at Milford are 38-23-49 North Latitude and 113-00-36 West Longitude.
Comments must be filed on or before December 16, 2002, and reply comments on or before December 31, 2002.
Federal Communications Commission, 445 Twelfth Street, SW., Washington, DC 20554. In addition to filing comments with the FCC, interested parties should serve the petitioner, his counsel, or consultant, as
Rolanda F. Smith, Media Bureau, (202) 418-2180.
This is a synopsis of the Commission's Notice of Proposed Rule Making, MB Docket Nos. 02-330 and 02-331, adopted October 16, 2002, and released October 25, 2002. The full text of this Commission decision is available for inspection and copying during regular business hours at the FCC's Reference Information Center, Portals II, 445 Twelfth Street, SW., Room CY-A257, Washington, DC 20554. The complete text of this decision may also be purchased from the Commission's duplicating contractor, Qualex International, Portals II, 445 12th Street, SW., Room CY-B402, Washington, DC, 20554, telephone 202-863-2893, facsimile 202-863-2898, or via e-mail
Provisions of the Regulatory Flexibility Act of 1980 do not apply to this proceeding.
Members of the public should note that from the time a Notice of Proposed Rule Making is issued until the matter is no longer subject to Commission consideration or court review, all
For information regarding proper filing procedures for comments,
Radio, Radio broadcasting.
For the reasons discussed in the preamble, the Federal Communications Commission proposes to amend 47 CFR part 73 as follows:
1. The authority citation for part 73 continues to read as follows:
47 U.S.C. 154, 303, 334 and 336.
2. Section 73.202(b), the Table of FM Allotments under Arkansas, is amended by adding Jasper, Channel 245A.
3. Section 73.202(b), the Table of FM Allotments under Utah, is amended by adding Milford, Channel 288C2.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notification of petition finding and availability of a status review document.
NMFS announces a 12-month finding on a petition to list the southern population of bocaccio (
The finding announced in this document was made on November 14, 2002.
The bocaccio status review and accompanying stock assessment and rebuilding analysis are available electronically at the NMFS Web site at
Cathy Campbell, NMFS, Southwest Region, Protected Resources Division, (562) 980-4060 or David O'Brien, NMFS Office of Protected Resources, 301-713-1401.
On January 30, 2001, NMFS received a petition from the Natural Resources Defense Council, Center for Biological Diversity, and Center for Marine Conservation (now known as The Ocean Conservancy) to list the central/southern distinct population segment (DPS) of bocaccio (
In reviewing the petition, NMFS also reviewed stock assessments, fishery independent and dependent data and other reports prepared prior to and from the time that bocaccio and other Pacific rockfish species came under Federal management. On June 14, 2001, NMFS published its determination (66 FR 32304) that the petition presented substantial scientific and commercial information indicating that listing may be warranted, and announced the initiation of a formal status review as required by section 4(b)(3)(A) of the ESA. To ensure a comprehensive review, NMFS concurrently solicited additional information and comment from the public on historical abundance, current abundance, factors contributing to population declines, sources of mortality, habitat use, habitat condition, factors affecting habitat condition, and distinctness of the southern population. In addition, NMFS solicited information regarding the adequacy of bocaccio conservation efforts and on areas that may qualify for critical habitat for bocaccio.
In response to the 90-day petition finding, NMFS received one public comment. The comment focused on the inadequacy of existing regulatory measures and, in particular, the underestimate of discards of bocaccio and the authorization of continued overfishing.
NMFS Southwest Fisheries Science Center staff prepared a comprehensive status review for the southern stock of bocaccio. This document summarizes the results of the status review. Copies of the status review are available on the internet or upon request (see
Bocaccio is a common rockfish, belonging to the genus Sebastes. Bocaccio are found in coastal waters of the Pacific Ocean, ranging from Baja California, Mexico to Alaska. Adults have been found at depths of 40-1578 ft. (12-481 m), but are most abundant at 165-825 ft. (50-251 m). Adults are often found in association with rocky areas. Larvae and small juveniles are pelagic and are commonly found in the upper 300 ft. (91 m) of the water column.
Bocaccio generally copulate in the late summer to early fall, and females bear their young live in the winter months. Off California, some bocaccio produce multiple broods in one season (Moser 1967). Larvae and early juveniles are pelagic until early June, when they move toward the shore and settle to the bottom where they develop as juveniles. Juvenile bocaccio (age 3 to 6 months) sometimes form dense schools in the nearshore area and are often found under drifting kelp mats.
Juvenile bocaccio grow rapidly, but typically take five years to mature. Based on the oldest fish that have been seen, bocaccio may live up to 40 years. The mean generation time (the average time required for offspring to replace the parents) is 12 years.
Bocaccio eat a variety of fish. Bocaccio are prey to larger organisms, including marine mammals, and juvenile bocaccio can at times provide a significant component of seabird diets.
Bocaccio recruitment (the addition of young fish to a population) is highly variable. Successful reproduction, where production of offspring offsets natural loss of adults, has occurred in only 26 percent of years. No large recruitments have occurred since 1978. Because of this highly variable recruitment pattern, abundance naturally fluctuates greatly.
The ESA defines species as “any subspecies of fish or wildlife or plants and any distinct population segment of any species of vertebrate fish or wildlife that interbreeds when mature.” This definition allows for the recognition of distinct population segments at levels below taxonomically recognized species or subspecies. On February 7, 1996, the U.S. Fish and Wildlife (FWS) and NMFS adopted a joint policy to clarify their interpretation of the phrase “distinct population segment (DPS)” for the purposes of listing, delisting, and reclassifying species under the ESA (61 FR 4722). The joint policy identifies two criteria that must be met for a population segment to be considered a DPS under the ESA: (1) The discreteness of the population segment in relation to the remainder of the species (or subspecies) to which it belongs; and (2) the significance of the population segment to the species or subspecies to which it belongs.
According to the joint policy, a population segment of a vertebrate species may be considered discrete if it satisfies either one of the following conditions: (1) It is markedly separated from other populations of the same taxon as a consequence of physical, physiological, ecological, or behavioral factors; or (2) it is delimited by international governmental boundaries within which differences in control of exploitation, management of habitat, conservation status, or regulatory mechanisms exist that are significant in light of section 4(a)(1)(D) of the ESA.
Bocaccio are geographically separated into northern and southern populations divided by an area of scarcity off of Northern California and southern Oregon. Genetic analysis of the northern and southern populations indicates that there is a 90 percent probability that they are genetically distinct from each other. Thus, these segments can be considered discrete segments under the DPS policy.
The southern bocaccio segment extends into Mexican waters, where regulatory mechanisms differ from those in the United States. As a result, the Mexican portion of bocaccio's range could be considered discrete and, if also found to be “significant,” it could be a DPS. However, as stated below, the Mexican population of bocaccio is not considered significant and therefore not a separate DPS, but a component of the southern DPS.
The DPS policy identifies several factors that may be considered in determining the significance of a discrete population segment to the taxon to which it belongs. These considerations include, but are not limited to: (1) persistence of the discrete population segment in an ecological setting unusual or unique for the taxon; (2) evidence that loss of the DPS would result in a significant gap in the range of a taxon; (3) evidence that the DPS represents the only surviving natural occurrence of a taxon; or (4) evidence that the discrete population segment differs markedly from other populations of the species in its genetic characteristics.
As noted above, genetic analysis indicates that there is a 90-percent probability that the northern and southern population segments are genetically distinct. In addition, the loss of either population segment would result in a significant gap in the range of the taxon. As a result, both the northern and southern population segments would be considered significant under the DPS policy.
A rough estimate indicates that approximately 10 percent of total bocaccio abundance occurs in Mexican waters. Thus, despite the fact that regulatory mechanisms and bocaccio catches in Mexico could influence the conservation status of bocaccio in the United States, that influence is presumably small given the relative sizes of the stock segments. As a result, the portion of the southern bocaccio range in Mexican waters is not significant and is not considered a separate DPS, but a part of the southern population.
The northern and southern bocaccio population segments are both the discrete and significant as defined in the joint DPS policy. Thus, NMFS is recognizing a northern DPS and a southern DPS for bocaccio. This is consistent with the current NMFS and Council management of bocaccio, which recognize two separate West coast bocaccio populations. The remainder of this document will primarily address the southern stock as a DPS, since this was the subject of the petition.
The current abundance of the southern bocaccio stock is estimated to be 3000 metric tons (mt) or approximately 1.6 million fish (of age 1 and older).
Spawning potential or output, which is the number of spawn that the population is capable of producing, is used as a measure of abundance for bocaccio. This measure accounts for both numerical abundance and the effects of age structure and maturation, where older individuals are disproportionally more fecund. The current spawning output of the stock is 720 billion eggs, and the estimated spawning output in the absence of fishing is 19,849 billion eggs (coefficient of variation (CV) of 31 percent). Thus, the current spawning output is 3.6
The abundance of bocaccio naturally fluctuates greatly, due to rare, large recruitment events. Between 1951 and 1969, abundance fluctuated between 26 percent (in 1960-61) and 95 percent (1969) of the estimated average unfished level. Since 1969, there has been a gradual decline in abundance to its current level of 3.6 percent of estimated unfished abundance.
Bocaccio have been an important component of commercial and recreational catches off California for several decades. The estimated catch of bocaccio in 1950 was approximately 5000 mt. Landings of bocaccio in California gradually increased over the next 20 years, reaching a maximum annual harvest level of almost 12,000 mt in the mid-1970s.
In 1982, the Pacific Fishery Management Council (Council) completed its fishery management plan (FMP) for west coast groundfish, including bocaccio. The Council is one of eight regional fishery management councils established by the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) to prepare fishery management plans for U.S. fisheries in need of federal management. The Council's area of responsibility covers fisheries off California, Oregon, and Washington.
During the early 1980's, under the FMP, the allowable annual harvest of bocaccio was approximately 6,000 mt. After a 1990 bocaccio stock assessment showed a decline, NMFS established a harvest guideline of 1,100 mt for 1991-1992. During these two years, actual harvest exceeded the harvest guideline by 300-500 mt.
NMFS increased the allowable catch of bocaccio to 1,540 mt in 1992 and to 1,700 mt in 1995. Actual landings during the mid-1990's were significantly less than the allowable catch, however, with 864 mt and 599 mt harvested in 1995 and 1996 respectively. A 1996 stock assessment then indicated that bocaccio were in severe decline, which could account for the low harvests in 1995 and 1996.
Until the mid-1990s, NMFS believed that bocaccio were capable of withstanding an exploitation rate that was commonly applied in fisheries worldwide. This fishing rate of F(0.35; read as “F-35 percent”) reduces the expected average lifetime reproductive output of a fish to 35 percent of the output it would achieve under natural unfished conditions. Recognizing that rockfish stocks were continuing to decline at this exploitation level, NMFS recommended the more conservative rockfish harvest policy of F(0.40) in 1998 and adopted an allowable catch of 230 mt for 1998 and 1999.
In 1999, the bocaccio resource was formally declared overfished by the Secretary of Commerce, in accordance with the Magnuson-Stevens Act. Following this declaration, NMFS adopted a rebuilding policy based on the 1999 stock assessment and a rebuilding analysis (MacCall, 1999). The rebuilding analysis indicated that rebuilding of bocaccio would take 37 years if the annual harvest was limited to 100 mt. NMFS set the optimum yield (OY) at 100 mt for 2000-2002 and, in 2001, adopted a more conservative rockfish harvest policy of F(0.50). The actual levels of harvest in 2000 and 2001 exceeded the OY, with 233 mt taken in 2000 and 214 mt taken in 2001. In response to indications that the harvest levels for 2002 were nearing the OY level too early in the year, NMFS implemented additional fishery restrictions in July 2002 to minimize further 2002 catch of bocaccio.
A new 2002 stock assessment confirmed that the southern stock was in severe decline. The Council reviewed the accompanying rebuilding analysis at its September 2002 meeting and has proposed an even lower fishing rate which would allow a harvest of not more than 20 mt in 2003. Based on the rebuilding analysis, this harvest rate would provide an 80-percent probability that the stock would not decline in 100 years.
In establishing the harvest levels for 2002 and 2003, the Council incorporated new information available on the bycatch rates of bocaccio in the commercial trawl fishery. As a result of recent litigation, NMFS and the Council reviewed historic bycatch rates and discard assumptions and re-evaluated their approach to estimating discards in the trawl fishery. The result was a model developed by Hastie (Hastie, 2001) that estimates the co-occurrence rate of overfished groundfish species, including bocaccio, relative to the landings of key target groundfish species. Using this model, the Council was able to estimate the level of discards of bocaccio that can be expected for a given groundfish harvest in the trawl fishery. This model enables the Council to fully evaluate the impacts of management measures and protects against the adoption of management measures that may increase the level of bocaccio bycatch.
The ESA defines an endangered species as “any species which is in danger of extinction throughout all or a significant portion of its range.” A threatened species is defined as “any species which is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range.” Under section 4(a)(1) of the ESA, a species can be determined to be endangered or threatened due to one or more of the following factors: (1) The present or threatened destruction, modification, or curtailment of its habitat or range; (2) overutilization for commercial, recreational, scientific, or educational purposes; (3) disease or predation; (4) the inadequacy of existing regulatory mechanisms; or (5) other natural or manmade factors affecting its continued existence. Listing determinations are made solely on the best scientific and commercial data available, after conducting a review of the status of the species and taking into account efforts made by any state or nation to protect such species. These factors and their application to the southern stock of bocaccio are described below.
Adult bocaccio are primarily found in rocky habitat. This habitat has likely been degraded by large commercial trawling operations, but there is little information regarding the level of habitat loss. Since this type of trawling has now been excluded from primary bocaccio habitat, it is expected that the future threats to rocky bottom habitat are minimal.
Little information is available on the habitat requirements of juvenile bocaccio. While kelp and eelgrass are utilized by larvae and juvenile bocaccio, there is no information to indicate that this habitat is critical to the survival of bocaccio or that any reduction in kelp or eelgrass has had a significant impact on bocaccio.
Bocaccio have not been observed to have any significant reduction in their range.
Bocaccio have been overutilize for the last several decades. A combination of overutilization and poor recruitment have resulted in a severe decline of the southern bocaccio stock to 3.6 percent of their estimated pre-exploitation level.
Although historical overutilization has been the primary cause of bocaccio's decline, recent conservation measures have drastically reduced fishing effort in times and areas where bocaccio occur and are expected to allow the stock to recover. As a result, under new management measures, overutilization is not expected to place the bocaccio stock at risk of becoming endangered in the foreseeable future. See further discussion under “Conservation Factors” below.
Bocaccio are prey to larger organisms, including marine mammals, and juvenile bocaccio can at times provide a significant component of seabird diets. This predation is not considered significant and is not likely to threaten the survival of the stock. There are no known threats of disease for bocaccio.
Previous fishery management measures have been inadequate to protect bocaccio, and the southern stock of bocaccio has been heavily overutilized during the entire period of Council management. However the Council has taken strict measures over the past few years to promote bocaccio recovery, and NMFS believes that the Council's most recent proposed measures, adopted in September 2002, will ensure that the southern stock of bocaccio will not become endangered within the foreseeable future. See further discussion under “Conservation Factors” below.
Long-term ocean climate patterns appear to have a strong influence on the frequency of large recruitments of southern bocaccio. The protracted and extremely warm ocean conditions of the 1990s was associated with poor reproduction of most rockfish species, including bocaccio, and undoubtedly contributed to the decline in abundance. Although this relationship cannot yet be quantified, the cooler ocean since 1998 is similar to the cool conditions of the 1960s and early 70s, and may be associated with better bocaccio recruitment. Although the specific impacts are uncertain, it is probable that ocean-climate patterns will continue to affect the recruitment of bocaccio.
Juvenile bocaccio have been documented in the intake of power plants along the California coast. In fact, power plant intakes have provided useful indices of rockfish recruitment. However, the level of mortality of juvenile bocaccio from power plant intake is very low and is not expected to impact the survival of bocaccio.
Previous fishery management measures have been inadequate to protect bocaccio, and the southern stock of bocaccio has been heavily overutilized during the entire period of Federal management. However, NMFS has adopted increasingly more restrictive measures over the past few years to promote bocaccio recovery, and NMFS believes that the Council's most recent proposed measures, adopted in September 2002, will ensure that the southern stock of bocaccio will not become endangered within the foreseeable future.
In 1999, the bocaccio resource was formally declared overfished. The 1999 NMFS bocaccio stock assessment and rebuilding analysis indicated a rebuilding time of 37 years, based on a harvest rate of 100 mt per year. Based on this stock assessment, NMFS adopted a rebuilding policy in 2000 that set the catch at 100 mt for 2000-2002. This rebuilding policy was strongly influenced by the assumed strength of the 1999 yearclass, based on unusually high intake levels at certain power plants. The 100-mt harvest rate was a significant restriction from previous catch limits, which were as high as 1,700 mt in 1996. During the first 2 years of implementation of the 100 mt catch limit, the Council struggled to track catches on a real-time basis so it could recommend effective means to restrict the catch of bocaccio, which co-occur with many other species. This was not possible, however, and the catch limit of 100 mt was exceeded in both 2000 and 2001. In 2002, the Council closely monitored catch rates and recommended that NMFS implement mid-year closures and restrictions when the mid-year catch level indicated that the 100 mt limit was likely to be exceeded. As a result of NMFS mid-year actions in 2002, the bocaccio catch for 2002 will be near or below the 100 mt catch limit.
In June 2002, NMFS prepared a revised stock assessment that indicated that the 1999 stock assessment and accompanying rebuilding analysis were overly optimistic because the 1999 bocaccio yearclass was not as strong as initially estimated. This analysis showed that the stock continued to be in severe decline and indicated that more restrictive measures would be necessary to ensure both the survival and rebuilding of the southern stock of bocaccio. NMFS further refined this analysis and prepared a rebuilding analysis in August 2002, which modeled the probable outcomes for bocaccio at 25 and 100 years at varying levels of harvest. Based on this analysis, NMFS recommended to the Council that the annual harvest of bocaccio be reduced to as close to zero as possible, but not to exceed 20 mt.
At its September 2002 meeting, the Council considered the August rebuilding analysis and adopted a catch rate (catch/total biomass) which would allow a catch of up to 20 mt in 2003. Based on the rebuilding analysis, this catch rate would provide an 80 percent probability that the stock would not decline in 100 years. Under this rebuilding policy, allowable catch rates are very low. The catch rate for 2003 is 0.5 percent, compared with an average catch rate of 11 percent during the preceding 50 years. Under this rebuilding analysis, rebuilding is expected to take a median time of 170 years at this harvest level.
The Council recommended that NMFS implement several management measures for 2003 in order to limit the catch for 2003. The Council has proposed that all directed fishing for bocaccio be eliminated in 2003 and that the catch rate of 20 mt would be used to account for discards of bocaccio incidentally taken in fisheries for co-occurring species. The Council recommended new depth-based management measures that would prohibit bottom trawl, limited entry fixed gear, and open access fishing in the times and areas where bocaccio are expected to occur. In addition, the Council proposed that no retention of bocaccio be allowed in the commercial fisheries. In addition, recreational fisheries south of Cape Mendocino (40° 10′ N.) would be closed from January through June and open shoreward of 20 fathoms from July though December.
The State of California has worked closely with the Council in developing measures to reduce bocaccio bycatch. In fact, the depth-based restrictions recently adopted by the Council were originally developed by the state. The state has recently adopted several conservation measures to provide additional protection for bocaccio. The state implemented regulations in 2002 that prohibit the retention of bocaccio in the recreational fishery. For 2003, the recreational season for all rockfish was reduced to six months and a new groundfish bag limit was created which will reduce the overall take of rockfish, including bocaccio. The state recently adopted a regulation that will require
With this combination of Federal and state management measures, the Council estimates that the bycatch of bocaccio (meaning the total harvest of bocaccio) in 2003 will be 10.3 mt. The Council plans to closely monitor harvest throughout 2003 and would implement additional mid-year management measures if necessary to ensure that the 20-mt harvest level is not exceeded. In order to evaluate the harvest levels of bocaccio in 2003, the Council will consider the results of the trawl bycatch model, information from the NMFS Marine Recreational Fisheries Statistical Survey (MRFSS), and logbook and other data. Modifications being made in the MRFSS program are also expected to result in faster availability of higher quality data in recreational catches of bocaccio. In addition, in early 2003, the initial results from the NMFS Groundfish Observer Program will be available for NMFS and Council review. The observer program has monitored both the limited entry and open access components of the commercial groundfish fishery since August 2001. Preliminary results of the observer program will be available early in 2003 and will be used to further refine the Hastie bycatch model (Hastie 2001).
NMFS has prepared emergency regulations to implement the Federal management measures discussed above. These emergency regulations will be in effect by January 1, 2003, and will remain effective for 60 days. Concurrently, NMFS will be issuing a proposed rule to implement these measures for the remainder of 2003 and soliciting public comment on these measures.
The Council's current rebuilding policy is based on the 2000 rebuilding analysis which indicated that it will take 170 years to rebuild the bocaccio stock, with the recently adopted catch rate (which is 20 mt for 2003). According to the National Standard Guidelines (Guidelines), NMFS' regulations that implement the Magnuson-Stevens Act, the maximum length of time to rebuild an overfished species is the time to rebuild in the absence of fishing, plus one generation time. For bocaccio, the maximum time to rebuild is 106 years. Therefore, the Council must adopt a rebuilding plan that will have at least a 50-percent probability of rebuilding bocaccio within 106 years. Given the current abundance of bocaccio, and their natural tendency for rare, large recruitment events, analyses indicate that, even in the absence of fishing, the southern stock of bocaccio would not have a 50-percent probability of recovering within 106 years. Since the Guidelines do not address the unique situation in which rebuilding a species in the maximum time allowed is not possible, NMFS reviewed the Magnuson-Stevens Act and has determined that the Council's recommended level of bocaccio harvest (20 mt) meets its standards for rebuilding overfished stocks. Although the Council has not yet adopted a revised rebuilding plan for bocaccio, NMFS expects that the rebuilding plan will maintain the catch rate adopted for 2003, since this would be necessary in order to meet the rebuilding requirements under the MSA given bocaccio's current status.
After reviewing the best scientific and commercial information available and considering the expected effects of conservation measures, NMFS has determined that listing the southern DPS of bocaccio is not warranted at this time. While NMFS recognizes that the southern stock of bocaccio has severely declined over the past several decades, NMFS believes that the catch rate of 0.5 percent (20 mt in 2003) recently adopted by the Council will prevent bocaccio from becoming endangered within the foreseeable future. NMFS will retain bocaccio on the Candidate Species list and closely monitor the status of the bocaccio population and future Council measures. If necessary, NMFS will re-evaluate its decision regarding whether the southern stock of bocaccio warrants listing under the ESA, including evaluating whether emergency listing is warranted and whether an additional status review is necessary. Reasons for a re-evaluation include, but are not limited to: (1) if future Council decisions allow for increased exploitation rate; or (2) if future data or analysis indicate that conservation efforts are inadequate.
A list of references is available upon request (see
The authority for this section is the ESA of 1973, as amended (16 U.S.C. 1531
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of 90-day finding.
NMFS announces the receipt of a petition to revise critical habitat for the endangered western North Atlantic right whales,
Comments on this action must be postmarked or transmitted by facsimile by January 21, 2003. Comments transmitted via e-mail or the Internet will not be accepted.
Comments concerning this action may be submitted to Mary Colligan, Assistant Regional Administrator for Protected Resources, Protected Resources Division, NMFS, One Blackburn Drive, Gloucester, MA 01930.
Mary Colligan, Northeast Region, telephone 978-281-9116, fax 978-281-9394; Kathy Wang, Southeast Region, telephone 727-570-5312, fax 727-570-
On July 11, 2002, NMFS received a petition dated July 9, 2002, from The Ocean Conservancy requesting that NMFS revise and expand the current critical habitat designation for right whales. The petitioner requested that NMFS expand the existing Southeast critical habitat designation to the following coordinates: 31° 30′ N to 29 40′ N from the shoreline out to 30 nautical miles (55.6 km2); 29° 4′' N to 28 °00′ N from the shoreline out to 10 nautical miles (18.5 km
Section 4(b)(3)(D) of the Endangered Species Act (ESA), as amended (16 U.S.C. 1533(b)(3)(D)), requires that NMFS make a finding on whether a petition to revise a designation of critical habitat presents substantial scientific information to demonstrate that the petitioned action may be warranted. NMFS' ESA implementing regulations at 50 CFR 424.14 define “substantial information” as the amount of information that would lead a reasonable person to believe that the measure proposed in the petition may be warranted. In making this finding, NMFS must consider the information that is presented by the petitioner and any new unassessed information on habitat that was added to NMFS' file regarding the species after critical habitat was designated but before NMFS received the petition to revise it. To the maximum extent practicable, this finding is to be made within 90 days of the petition, and the finding is to be published promptly in the
Critical habitat is defined in section 3(5)(A) of the ESA as (i) the specific areas within the geographic area occupied by a species, at the time it is listed in accordance with the ESA, on which are found those physical or biological features (I) essential to the conservation of the species and (II) that may require special management considerations or protection and; (ii) specific areas outside the geographic area occupied by a species at the time it is listed, upon a determination that such areas are essential for the conservation of the species. Conservation is defined in section 3 of the ESA as “... the use of all methods and procedures which are necessary to bring any endangered species or threatened species to the point at which the measures provided pursuant to [the ESA] are no longer necessary.”
In determining what areas are critical habitat, NMFS must consider the physical and biological features that are essential to the conservation of the species and that may require special management considerations. Physical and biological features essential to the conservation of the species include, but are not limited to, space for individual and population growth and for normal behavior; food, water, air, light, minerals, or other nutritional or physiological requirements; cover or shelter; sites for breeding, reproduction, and rearing of offspring; and habitats that are protected from disturbance or are representative of the historical geographical and ecological distribution of a species.
Special management considerations or protections mean any methods or procedures useful in protecting the physical and biological features of the environment for the conservation of the listed species (50 CFR 424.02(j)).
Section 4(b)(2) of the ESA requires NMFS to take into consideration the economic impact, and any other relevant impact, of specifying any particular area as critical habitat. NMFS may exclude areas from critical habitat designation when the benefits of exclusion outweigh the benefits of including the areas within critical habitat, provided the exclusion will not result in extinction of the species.
The right whale was listed as endangered under the Endangered Species Conservation Act, the precursor to the ESA, on June 2, 1970 (35 FR 8495; codified at 50 CFR 17.11). NMFS was petitioned by the Right Whale Recovery Team to designate critical habitat for right whales on May 18, 1990. A document was published in the
In general, the petitioner stated that since the 1994 designation of right whale critical habitat, knowledge regarding distribution and mortality of the North Atlantic right whale has increased substantially, indicating that critical habitat boundaries need to be revised and expanded to provide proper protection for right whales.
Specifically, the petitioner stated that 10 years of new data regarding right whale distribution and causes of mortality along the east coast of the United States show that the current critical habitat designation is not sufficient to protect right whales from further anthropogenic mortality. The petitioner stated that the proposed critical habitat expansion contains several features essential to the conservation of the right whale in the western North Atlantic and proposed that these features require specific protection or management considerations to ensure the survival and recovery of the species. The petitioner stated that the areas proposed for expanded critical habitat experience high levels of human disturbance in the form of shipping activities, fisheries, military activities, dredging operations, increased pollution, and general habitat disturbance. The essential features associated with the proposed critical habitat cited by the petitioner include the following: space for individual and population growth and for normal behavior; food, water, air, light, minerals or other nutritional or physiological requirements; cover or shelter; sites for breeding, reproduction and rearing of offspring; and habitats that are protected from disturbance or are representative of the historical, geographical, and ecological distributions of species.
The petitioner acknowledged that some areas in the northeastern U.S. have already received special management attention in the form of fishing regulations, but maintains that essential right whale habitat along the eastern seaboard lacks protection from ship strikes. In addition, the petitioner noted that when several habitats, each satisfying the requirements for
NMFS has reviewed the petition and other available information. On the basis of that information, NMFS finds that the petition presents substantial scientific information indicating that the requested action may be warranted. Within 1 year of the receipt of the petition, NMFS will determine how it intends to proceed with the requested revision and promptly publish notice of such intention in the
16 U.S.C. 1531
Animal and Plant Health Inspection Service, USDA.
New information collection; comment request.
In accordance with the Paperwork Reduction Act of 1995, this notice announces the Animal and Plant Health Inspection Service's intention to initiate a new information collection activity in support of regulations requiring the certification of facilities for the treatment of fruits, vegetables, and other articles. The certification of treatment facilities is necessary to ensure that the facilities are capable of performing treatments required under our regulations to prevent the introduction or dissemination of plant pests and noxious weeds into or within the United States.
We will consider all comments that we receive on or before January 21, 2003.
You may submit comments by postal mail/commercial delivery or by e-mail. If you use postal mail/commercial delivery, please send four copies of your comment (an original and three copies) to: Docket No. 02-074-1, Regulatory Analysis and Development, PPD, APHIS, Station 3C71, 4700 River Road Unit 118, Riverdale, MD 20737-1238. Please state that your comment refers to Docket No. 02-074-1. If you use e-mail, address your comment to
You may read any comments that we receive on this docket in our reading room. The reading room is located in room 1141 of the USDA South Building, 14th Street and Independence Avenue SW., Washington, DC. Normal reading room hours are 8 a.m. to 4:30 p.m., Monday through Friday, except holidays. To be sure someone is there to help you, please call (202) 690-2817 before coming.
APHIS documents published in the
For information on the certification of treatment facilities, contact Mr. Jim Smith, Director, Port Operations, PPQ, APHIS, 4700 River Road Unit 60, MD 20737-1236; (301) 734-8295. For copies of more detailed information on the information collection, contact Mrs. Celeste Sickles, APHIS’ Information Collection Coordinator, at (301) 734-7477.
To carry out this mission, APHIS administers regulations intended, among other things, to prevent the introduction or dissemination of plant pests and noxious weeds into or within the United States. These regulations are contained in title 7, chapter III, of the Code of Federal Regulations (CFR).
Under the regulations, certain articles such as fruits, vegetables, and seeds must be treated to be eligible for entry into the United States or interstate movement within the United States. In some cases, treatments are performed in facilities in foreign countries; in other cases, treatments are performed aboard ship while the articles are in transit; and in still other cases, treatments are performed in facilities in the United States. All facilities that provide treatments required under our regulations, including refrigeration compartments on ships, must be certified by APHIS before they can provide those treatments.
Facilities wishing to be certified must supply APHIS with specifications, which may include plans, blueprints, drawings, or other information. Specific requirements for the certification of facilities are contained in the Plant Protection and Quarantine Treatment Manual, which is incorporated by reference at 7 CFR 300.1. We need this information to determine whether a facility can provide the treatments required for quarantine security.
We are asking the Office of Management and Budget (OMB) to approve our use of these information collection activities for certification of facilities for the treatment of fruits, vegetables, and other articles.
The purpose of this notice is to solicit comments from the public (as well as affected agencies) concerning our information collection. These comments will help us:
(1) Evaluate whether the collection of information is necessary for the proper performance of the functions of the Agency, including whether the information will have practical utility;
(2) Evaluate the accuracy of our estimate of the burden of the information collection, including the validity of the methodology and assumptions used;
(3) Enhance the quality, utility, and clarity of the information to be collected; and
(4) Minimize the burden of the information collection on those who are to respond, through use, as appropriate, of automated, electronic, mechanical, and other collection technologies,
All responses to this notice will be summarized and included in the request for OMB approval. All comments will also become a matter of public record.
Commodity Credit Corporation, USDA.
Notice of opportunity to request a public hearing.
The Commodity Credit Corporation (CCC) is issuing this notice to advise sugarcane processors and growers that they may request a public hearing as a result of an application made by a new sugarcane processor, the Arizona Sugar Factory, L.L.C., for a cane-sugar allocation for the 2003 crop year.
CCC will conduct a hearing if one is requested by December 4, 2002. CCC will publicly announce details of the hearing if one is requested.
Please send hearing requests to Thomas Bickerton, Farm Service Agency, United States Department of Agriculture (USDA), Stop 0516, 1400 Independence Ave, SW., Washington, DC 20250-0540. Phone: (202) 720-6733. Fax: (202) 690-1480. e-mail:
Thomas Bickerton at (202) 720-6733.
The Arizona Sugar Factory, L.L.C., a new entrant, is requesting a 2003-crop year allocation of 10,000 short tons, raw value, and wants its allocation to increase to 50,000 short tons, raw value, for the 2005 crop. The new processor will be located in California, a mainland State which does not currently have a cane allotment. Section 359d(b)(1)(E) of the Agricultural Adjustment Act of 1938, as amended, authorizes CCC to provide a sugarcane processor, who begins processing after May 13, 2002, with an allocation that provides a fair, efficient, and equitable distribution of the allocations from the allotment for the State in which the processor is located. CCC would have to allot California a share of the overall cane allotment in order to accommodate the new entrant's allocation. The new California allotment would be subtracted, on a pro rata basis, from the allotments otherwise provided to each mainland State.
Forest Service, USDA.
Notice and correction.
Deciding Officers in the Southern Region will publish notice of decisions subject to administrative appeal under 36 CFR part 217 in the legal notice section of the newspapers listed in the Supplementary Information section of this notice. As provided in 36 CFR part 217.5(d), the public shall be advised through
Use of these newspapers for purposes of publishing legal notice of decisions subject to appeal under 36 CFR part 217 and the use of the corrected newspaper listed under 36 CFR part 215 shall begin on or after the date of this publication.
Elaine Cloward, Acting Regional Appeals Coordinator, Southern Region, Planning, 1720 Peachtree Road, NW, Atlanta, Georgia 30309, Phone: 404-347-2788.
Deciding Officers in the Southern Region will give legal notice of decisions subject to appeal under 36 CFR part 217 in the following newspapers which are listed by Forest Service Administrative unit. Where more than one newspaper is listed for any unit, the first newspaper listed is the principal newspaper that will be utilized for publishing the legal notice of decisions. Additional newspapers listed for a particular unit are those newspapers the Deciding Officer expects to use for purposes of providing additional notice. The timeframe for appeal shall be based on the date of publication of the legal notice of the decision in the principal newspaper. The following newspapers will be used to provide notice.
Affecting National Forest System lands in more than one state of the 14 states of the Southern Region and the Commonwealth of Puerto Rico
Affecting National Forest System lands in only one state of the 14 states of the Southern Region and the Commonwealth of Puerto Rico or only one Ranger District will appear in the principal newspaper elected by the National Forest of that state or Ranger District.
The Responsible Official under 36 CFR part 215 gave annual notice in the
Correct:
Forest Service, USDA.
Notice of meeting.
The Yakutat Resource Advisory Committee will meet in Yakutat, Alaska. The purpose of the meeting is to initiate the Yakutat Resource Advisory Committee. The committee was formed to carry out the requirements of the Secure Rural Schools and Self-Determination Act of 2000. The agenda for this initial meeting includes a discussion of how the Yakutat Resource Advisory Committee will operate, how often they will meet and how they will solicit project proposals.
The meeting will be held December 2, 2002, from 6-9 p.m.
The meeting will be held at the Kwaan Conference Room, 712 Ocean Cape Drive, Yakutat, Alaska. Send written comments to Tricia O'Connor, c/o Forest Service, USDA, P.O. Box 327, Yakutat, AK 99689, (907) 784-3359 or electronically to
Tricia O'Connor, District Ranger and Designated Federal Official, Yakutat Ranger District, (907) 784-3359.
The meeting is open to the public. Council discussion is limited to Forest Service staff and Council members. However, persons who wish to bring resource projects or other Resource Advisory Committee matters to the attention of the Council may file written statements with the Council staff before or after the meeting. Public input sessions will be provided and individuals who made written requests by November 27, 2002 will have the opportunity to address the Council at those sessions.
Pursuant to its authority under the Foreign-Trade Zones Act of June 18, 1934, as amended (19 U.S.C. 81a-81u), the Foreign-Trade Zones Board (the Board) adopts the following Order:
The application to expand FTZ 191 is approved, subject to the Act and the Board's regulations, including section 400.28.
Attest:
Proposed collection; comment request.
The Department of Commerce, as part of its continuing effort to reduce paperwork and respondent burdens, invites the general public and other Federal agencies to take this opportunity to comment on the continuing information collections, as required by the Paperwork Reduction Act of 1995, Pub. L. 104-13 (44 U.S.C. 3506 (2) (A)).
Written comments must be submitted on or before January 21, 2003.
Direct all written comments to Diana Hynek, Departmental Paperwork Clearance Officer, Department of Commerce, Room 6625, 14th & Constitution Avenue, NW., Washington, DC 20230. Phone number: (202) 482-0266. e-mail:
Request for additional information or copies of the information collection instrument and instructions should be directed to: Joseph J. English, U.S. & Foreign Commercial Service, Export Promotion Services, Room 2110, 14th & Constitution Avenue, NW., Washington, DC 20230; Phone number: (202) 482-3334, and fax number: (202) 482-0115.
The ITA-4008P, AParticipation Agreement”, is the vehicle by which individual firms agree to participate in any of ITA's trade promotion program, and record their required participation fee to the U.S. Department of Commerce (DOC). Together with the relevant ITA-4008P-A, AConditions of Participation”, it forms a contract between the individual firm and the DOC. The ITA-4008P-1, ATrade Mission Application”, is used to solicit information from firms seeking to participate in DOC overseas trade missions covered by the Statement of Policy Governing Overseas Trade Missions of the Department of Commerce issued on March 3. 1997. Trade Mission participants are required to complete the Forms ITA-4008P, ITA-4008P-1, and ITA-4008P-A. Other DOC trade event (not trade mission) participants complete Forms ITA-4008P and ITA-4008P-A.
The forms are sent by request to potential U.S. firms.
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 costs) 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.
Import Administration, International Trade Administration, Department of Commerce.
Notice of Final Results of Changed Circumstances Antidumping Duty Administrative Review.
On October 1, 2002, the Department of Commerce published a notice of preliminary results of its changed circumstances review on certain circular welded non-alloy steel pipe from Korea (
November 19, 2002.
Scott Holland, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW, Washington, DC 20230; telephone (202) 482-1279.
Unless otherwise indicated, all citations to the Tariff Act of 1930, as amended (the “Act”), are references to the provisions effective January 1, 1995, the effective date of the amendments made to the Act by the Uruguay Round Agreements Act. In addition, unless otherwise indicated, all citations to the Department of Commerce's (“the Department”) regulations are to 19 CFR Part 351 (2002).
On October 1, 2002, the Department published its preliminary results in the
The merchandise subject to this review is circular welded non-alloy steel pipe and tube, of circular cross-section, not more than 406.4mm (16 inches) in outside diameter, regardless of wall thickness, surface finish (black, galvanized, or painted), or end finish (plain end, beveled end, threaded, or threaded and coupled). These pipes and tubes are generally known as standard pipes and tubes and are intended for the low-pressure conveyance of water, steam, natural gas, air, and other liquids and gases in plumbing and heating systems, air-conditioning units, automatic sprinkler systems, and other related uses. Standard pipe may also be used for light load-bearing applications, such as for fence tubing, and as structural pipe tubing used for framing and as support members for reconstruction or load-bearing purposes in the construction, shipbuilding, trucking, farm equipment, and other related industries. Unfinished conduit pipe is also included in this order.
All carbon-steel pipes and tubes within the physical description outlined above are included within the scope of this review except line pipe, oil country tubular goods, boiler tubing, mechanical tubing, pipe and tube hollows for redraws, finished scaffolding, and finished conduit. In accordance with the Department's
Imports of these products are currently classifiable under the following
Because we received no comments on the preliminary results, for the reasons stated in the
Therefore, Husteel will be assigned the same cash deposit rate with respect to the subject merchandise as the predecessor company, Shinho (i.e., 2.99 percent) (
This determination is issued and published in accordance with sections 751(b)(1) and 777(i)(1) of the Act and 19 CFR 351.221(c)(3).
Import Administration, International Trade Administration, Department of Commerce.
November 19, 2002.
Matthew Renkey or Scot Fullerton, Office of AD/CVD Enforcement VII, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW, Washington DC 20230; telephone: (202) 482-2312 or (202) 482-1386, respectively.
Unless otherwise indicated, all citations are to the Tariff Act of 1930, as amended (the Act). In addition, unless otherwise indicated, all citations to the Department's regulations are to 19 CFR part 351 (2002).
In accordance with 19 CFR § 351.214(b)(2), on March 29, 2002, the Department received the timely and properly filed request from Tianjin Tiancheng Pharmaceutical Co., Ltd. (TTPC), for a new shipper review of its exports of glycine. On May 17, 2002, the Department initiated a new shipper review of the antidumping duty order on glycine for the period of review of March 1, 2001 through February 28, 2002. (67 FR 36572)
Section 351.214(i)(1) of the Department's regulations requires the Department to issue preliminary results of a new shipper review within 180 days of the date of initiation. However, if the Secretary concludes that a new shipper review is extraordinarily complicated, the Secretary may extend the 180-day period to 300 days under section 351.214(i)(2) of the Department's regulations. Because of the complex nature of both TTPC's supplier relationships and its reported factors of production information, and the resultant need to gather additional information and conduct further analysis into these areas, we find this review to be extraordinarily complicated.
Accordingly, the Department is extending the time limit for the completion of the preliminary results to 300 days after the date of initiation, in accordance with section 751(a)(2)(B)(iv) of the Act and 351.214(i)(2) of the Department's regulations. The preliminary results will now be due on March 13, 2003. The final results will in turn be due 90 days after the date of issuance of the preliminary results, unless extended.
Import Administration, International Trade Administration, Department of Commerce.
Notice of Final Results of Antidumping Administrative Duty Review.
On July 10, 2002, the Department of Commerce published the preliminary results of the administrative review of the antidumping duty order on certain helical spring lock washers from the People's Republic of China. We gave interested parties an opportunity to comment. Based upon our analysis of the comments and information received, we have made changes to the margin calculations presented in the final results of the review. We find that helical spring lock washers from the People's Republic of China are not being sold in the United States below normal value by Hangzhou Spring Washer Company, Co. Ltd., also known as Zhejiang Wanxin Group Co., Ltd.
November 19, 2002.
Cynthia Thirumalai, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th and Constitution Avenue, N.W., Washington, D.C. 20230; telephone (202) 482-4087.
Unless otherwise indicated, all citations to the Tariff Act of 1930, as amended (“the Act”), are references to the provisions effective January 1, 1995, the effective date of the amendments made to the Act by the Uruguay Round Agreements Act. In addition, unless otherwise indicated, all citations to the Department of Commerce's (“the Department”) regulations are to 19 CFR Part 351 (2001).
On July 10, 2002, the Department published in the
The Department determined that the petitioner's case brief contained new factual information and, on August 22, 2002, the Department formally requested the new factual information submitted by petitioner in its case brief. Hangzhou was asked to comment on the new information and it did so September 3, 2002.
The Department has completed the antidumping duty administrative review in accordance with section 751 of the Act.
The products covered by this review are HSLWs of carbon steel, of carbon alloy steel, or of stainless steel, heat-treated or non-heat-treated, plated or non-plated, with ends that are off- line. HSLWs are designed to: (1) function as a spring to compensate for developed looseness between the component parts of a fastened assembly; (2) distribute the load over a larger area for screws or bolts; and, (3) provide a hardened bearing surface. The scope does not include internal or external tooth washers, nor does it include spring lock washers made of other metals, such as copper.
HSLWs subject to this review are currently classifiable under subheading 7318.21.0030 of the
The period of review (“POR”) is from October 1, 2000 through September 30, 2001.
We calculated export price and normal value based on the same methodology used in the
For labor, we used the regression-based wage rate for the PRC as revised in September 2002. See “Expected Wages of Selected NME Countries” located on the Internet at http://ia.ita.doc.gov/wages/00wages/00wages/htm.
In valuing the steel wire rod input, we have included certain movement charges that were omitted in the preliminary results.
All issues raised in the case and rebuttal briefs by parties to this proceeding are addressed in the November 7, 2002, Issues and Decision Memorandum (“Decision Memorandum”) which is hereby adopted by this notice. Attached to this notice as an appendix is a list of the issues which parties have raised and to which we have responded in the Decision Memorandum.
Parties can find a complete discussion of all issues raised in this review and the corresponding recommendations in this public memorandum which is on file in the Central Records Unit, Room B-099 of the Department. In addition, a complete version of the Decision Memorandum can be accessed directly on the Web at http://ia.ita.doc.gov/frn/summary/list.htm. The paper copy and electronic version of the
The weighted-average dumping margin for the period October 1, 2000 through September 30, 2001 is as follows:
In accordance with 19 CFR 351.212(b)(1), we have calculated importer- specific assessment rates for the merchandise subject to this review. To determine whether the duty assessment rates were
All other entries of the subject merchandise during the POR will be liquidated at the antidumping duty rate in place at the time of entry.
The Department will issue appropriate assessment instructions directly to the Customs Service within 15 days of publication of these final results of review.
Furthermore, the following deposit rates will be effective upon publication of these final results for all shipments of HSLWs from the PRC entered, or withdrawn from warehouse, for consumption on or after the publication date, as provided for by section 751(a)(1) of the Act: (1) for Hangzhou, which has had a separate rate in the investigation and all reviews, no deposit will be required because the company had a
This notice also serves as a final reminder to importers of their responsibility under 19 CFR 351.402(f) to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during this review period. Failure to comply with this requirement could result in the Secretary's presumption that reimbursement of antidumping duties occurred and the subsequent assessment of double antidumping duties.
This notice also serves as a reminder to parties subject to administrative protective order (APO) of their responsibility concerning the disposition of proprietary information disclosed under APO in accordance with 19 CFR 351.305(a)(3). Timely written notification of the return/destruction of APO materials or conversion to judicial protective order is hereby requested. Failure to comply with the regulations and the terms of an APO is a sanctionable violation.
This administrative review and notice are in accordance with sections 751(a)(1) and 777(i)(1) of the Act.
Import Administration, International Trade Administration, Department of Commerce.
Notice of final results of antidumping duty administrative review and determination to revoke order in part.
On August 6, 2002, the Department of Commerce published the preliminary results of the 2000-2001 administrative review of the antidumping duty order on sebacic acid from the People's Republic of China. This review covers three manufacturers/exporters of the subject merchandise to the United States. The products covered by this order are all grades of sebacic acid which include but are not limited to CP Grade, Purified Grade, and Nylon Grade. The period of review is July 1, 2000, through June 30, 2001.
We are revoking the antidumping duty order with respect to one manufacturer/exporter because this company has met the requirements under 19 CFR 351.222.
Based on our analysis of the comments received, we have made changes in the margin calculations. Therefore, the final results differ from the preliminary results. The final weighted-average dumping margins are listed below in the section entitled “Final Results of Review.”
November 19, 2002.
Michael Strollo or Patrick Connolly, AD/CVD Enforcement, Group I, Office 2, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW., Washington, DC 20230; telephone: (202) 482-0629 or (202) 482-1779, respectively.
Unless otherwise indicated, all citations to the Tariff Act of 1930, as amended (the Act), are references to the provisions effective January 1, 1995, the effective date of the amendments made to the Act by the Uruguay Round Agreements Act (URAA). In addition, unless otherwise indicated, all citations to the regulations of the Department of Commerce (the Department) regulations are to 19 CFR part 351 (2001).
On August 6, 2002, the Department published in the
We invited interested parties to comment on the preliminary results of review. The Department has conducted this administrative review in accordance with section 751 of the Act.
The products covered by this review are all grades of sebacic acid, a dicarboxylic acid with the formula (CH2)
Sebacic acid has numerous industrial uses, including the production of nylon 6/10 (a polymer used for paintbrush and toothbrush bristles and paper machine felts), plasticizers, esters, automotive coolants, polyamides, polyester castings and films, inks and adhesives, lubricants, and polyurethane castings and coatings.
Sebacic acid is currently classifiable under subheading 2917.13.00.30 of the
Two of the three respondents in this case, Guangdong Chemicals Import and Export Corporation (Guangdong) and Tianjin Chemicals Import and Export Corporation (Tianjin), have requested separate, company-specific antidumping duty rates. In the
With respect to the third respondent, Sinochem International Chemicals Corp. (Sinochem International), which did not respond to the Department's questionnaire, we determine that this company does not merit a separate rate. The Department assigns a single rate to companies in a non-market economy (NME), unless an exporter demonstrates an absence of government control. We determine that Sinochem International is subject to the country-wide rate for this review because it failed to demonstrate an absence of government control.
As explained in the preliminary results, the use of facts available is warranted in this case because Sinochem International, which is part of the PRC entity (
The Department may revoke, in whole or in part, an antidumping duty order upon completion of a review under section 751 of the Act. While Congress has not specified the procedures that the Department must follow in revoking an order, the Department has developed a procedure for revocation that is described in 19 CFR 351.222. This regulation requires, inter alia, that a company requesting revocation must submit the following: (1) A certification that the company has sold the subject merchandise at not less than normal value (NV) in the current review period and that the company will not sell subject merchandise at less than NV in the future; (2) a certification that the company sold commercial quantities of the subject merchandise to the United States in each of the three years forming the basis of the request; and (3) an agreement to immediate reinstatement of the order if the Department concludes that the company, subsequent to the revocation, sold subject merchandise at less than NV.
As noted in the
This revocation applies to all entries of subject merchandise that are produced by Hengshui and are exported by Tianjin, and are entered, or withdrawn from warehouse, for consumption on or after July 1, 2001. The Department will order the suspension of liquidation ended for all such entries and will instruct the Customs Service to release any cash deposits or bonds. The Department will further instruct the Customs Service to refund with interest any cash deposits on entries made after July 1, 2001.
All issues raised in the case brief by parties to this administrative review are addressed in the “Issues and Decision Memorandum” (Decision Memo) from Richard W. Moreland, Deputy Assistant Secretary, Import Administration, to Faryar Shirzad, Assistant Secretary for Import Administration, dated November 7, 2002, which is adopted by this notice. A list of the issues which parties have raised and to which we have responded, all of which are in the Decision Memo, is attached to this notice as an appendix. Parties can find a complete discussion of all issues raised in this review and the corresponding recommendations in this public memorandum, which is on file in the Central Records Unit, room B-099, of the main Commerce building.
In addition, a complete version of the Decision Memo can be accessed directly on the Web at
Based on our analysis of comments received, we have made certain changes in the margin calculations. These changes are discussed in the relevant sections of the Decision Memo.
Moreover, for these final results, we have revalued labor for both Guangdong and Tianjin based on the regression-based wage rate for 2000 in accordance with 19 CFR 351.408(c)(3). For purposes of the preliminary results, we used the 1999 data because more recent data was not yet available.
We determine that the following percentage weighted-average margin percentages exist for the period July 1, 2000, through June 30, 2001:
Because we have revoked the order with respect to Tianjin's exports of subject merchandise produced by Hengshui, we will order the Customs Service to terminate the suspension of liquidation for exports of such merchandise entered, or withdrawn from warehouse, for consumption on or after July 1, 2001, and to refund all cash deposits collected.
The Department will determine, and the Customs Service shall assess, antidumping duties on all appropriate entries. For assessment purposes, we do not have the information to calculate an estimated entered value. Accordingly, we have calculated importer-specific duty assessment rates for the subject merchandise by aggregating the dumping margins calculated for all U.S. sales and dividing this amount by the total quantity of those sales. To determine whether the duty assessment rates were
The following deposit requirements will be effective upon publication of this notice of final results of administrative review for all shipments of the subject merchandise from the PRC entered, or withdrawn from warehouse, for consumption on or after the publication date, as provided by section 751(a)(1) of the Act: (1) The cash deposit rate for the reviewed companies will be the rates shown above except that, for firms whose weighted-average margins are less than 0.5 percent and, therefore,
These requirements, when imposed, shall remain in effect until publication of the final results of the next administrative review.
This notice also serves as a final reminder to importers of their responsibility under 19 CFR 351.402(f) to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during this review period. Failure to comply with this requirement could result in the Secretary's presumption that reimbursement of antidumping duties occurred and the subsequent assessment of doubled antidumping duties.
This notice also serves as the only reminder to parties subject to administrative protective orders (APO) of their responsibility concerning the return or destruction of proprietary information disclosed under APO in accordance with 19 CFR 351.305 or conversion to judicial protective order is hereby requested. Failure to comply with the regulations and terms of an APO is a violation which is subject to sanction.
We are issuing and publishing this determination and notice in accordance with sections 751(a)(1) and 777(i) of the Act.
1. Universe of Sales.
2. Valuation of Activated Carbon.
3. Partial Revocation.
Import Administration, International Trade Administration, Department of Commerce.
Notice of Final Results of New Shipper Antidumping Duty Administrative Review.
On August 19, 2002, the Department of Commerce published the preliminary results of the new shipper administrative review of the antidumping duty order on stainless steel bar from India. We gave interested parties an opportunity to comment on the preliminary results. Based on an examination of our calculations, we have made a change for the final results. We find that the reviewed company made sales of stainless steel bar from India in the United States below normal value during the period of review, February 1 through July 31, 2001.
Cole Kyle, Office 1, AD/CVD Enforcement, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, N.W., Washington D.C. 20230; telephone (202) 482-1503.
Unless otherwise indicated, all citations to the statute are references to the provisions of the Tariff Act of 1930, as amended effective January 1, 1995, (“the Act”) by the Uruguay Round Agreements Act (“URAA”). In addition, unless otherwise indicated, all citations to the Department of Commerce's (“the Department”) regulations are to 19 CFR Part 351 (April 2001).
The manufacturer/exporter that requested this new shipper antidumping duty administrative review is Uday Engineering Works (“Uday”). The period of review (“POR”) is February 1 through July 31, 2001. Since the publication of the preliminary results of this review (
On September 10, 2002, we issued a supplemental questionnaire to Uday. Uday filed its response on September 23, 2002. Uday filed a case brief on October 2, 2002. Carpenter Technology Corp., Crucible Specialty Metals Division of Crucible Materials Corp., Electralloy Corp., Slater Steel Corp., Empire Specialty Steel, and the United Steelworkers of America (collectively, “the petitioners”) filed a rebuttal brief on October 16, 2002. On October 28, 2002, Uday submitted additional written argument. As this submission did not meet the definition of case or rebuttal briefs outlined in the Department's regulations, the Department did not consider this submission in making its decision (
Imports covered by this review are shipments of stainless steel bar (“SSB”). SSB means articles of stainless steel in straight lengths that have been either hot-rolled, forged, turned, cold-drawn, cold-rolled or otherwise cold-finished, or ground, having a uniform solid cross section along their whole length in the shape of circles, segments of circles, ovals, rectangles (including squares), triangles, hexagons, octagons, or other convex polygons. SSB includes cold-finished SSBs that are turned or ground in straight lengths, whether produced from hot-rolled bar or from straightened and cut rod or wire, and reinforcing bars that have indentations, ribs, grooves, or other deformations produced during the rolling process.
Except as specified above, the term does not include stainless steel semi-finished products, cut length flat-rolled products (
The SSB subject to these reviews is currently classifiable under subheadings 7222.11.00.05, 7222.11.00.50, 7222.19.00.05, 7222.19.00.50, 7222.20.00.05, 7222.20.00.45, 7222.20.00.75, and 7222.30.00.00 of the
All issues raised in the case and rebuttal briefs by parties to this new shipper administrative review are addressed in the “Issues and Decision Memorandum” from Susan Kuhbach, Acting Deputy Assistant Secretary, Import Administration, to Richard Moreland, Acting Assistant Secretary for Import Administration, dated November 12, 2002, (“
To determine whether sales of stainless steel bar from India to the United States were made at less than normal value, we compared export price to normal value. Our calculations followed the methodologies described in the preliminary results, except that we corrected a clerical error in the recalculation of Uday's imputed credit expense reported on its U.S. sale (
We determine that the following percentage margin exists for the period February 1 through July 31, 2001:
In accordance with 19 CFR 351.212(b)(1), we have calculated importer (or customer)-specific assessment rates for the merchandise subject to this review. To determine whether the duty assessment rates were
Pursuant to its published announcement, the Department will issue appropriate assessment instructions directly to the Customs Service within 15 days of publication of these final results of review (
The following antidumping duty deposits will be required on all shipments of stainless steel bar from India entered, or withdrawn from warehouse, for consumption, effective on or after the publication date of the final results of this new shipper antidumping duty administrative review, as provided by section 751(a)(1) of the Act: (1) the cash deposit rate for the reviewed company will be the rate indicated above; (2) for merchandise exported by manufacturers or exporters not covered in this review but covered in the original less-than-fair-value investigation or a previous review, the cash deposit will continue to be the most recent rate published in the final determination or final results for which the manufacturer or exporter received an individual rate; (3) if the exporter is not a firm covered in this review, the previous review, or the original investigation, but the manufacturer is, the cash deposit rate will be the rate established for the most recent period for the manufacturer of the merchandise; and (4) if neither the exporter nor the manufacturer is a firm covered in this or any previous reviews, the cash deposit rate will be 12.45 percent, the “all others” rate established in the less-than-fair-value investigation (
These cash deposit requirements, when imposed, shall remain in effect until publication of the final results of the next administrative review.
This notice serves as a final reminder to importers of their responsibility under 19 CFR 351.402(f)(2) to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during this review period. Failure to comply with this requirement could result in the Secretary's presumption that reimbursement of antidumping duties occurred and the subsequent assessment of doubled antidumping duties.
We are issuing and publishing this determination and notice in accordance with sections section 751(a)(1) and 777(i)(1) of the Act.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Receipt of an application to modify an existing-scientific research/enhancement permit (1112) and request for comment.
Notice is hereby given that NMFS has received an application for a permit modification from the Southwest Fisheries Science Center (SWFSC) in Santa Cruz, CA (1112). The modified permit would affect five Evolutionarily Significant Units (ESUs) of salmonids identified in Supplementary Information below. This document serves to notify the public of the availability of the permit modification application for review and comment before a final approval or disapproval is made by NMFS.
Written comments on the permit application must be received at the appropriate address or fax number (see
Written comments on the modification request should be sent to the appropriate office as indicated below. Comments may also be sent via fax to the number indicated for the request. Comments will not be accepted if submitted via e-mail or the Internet. The applications and related documents are available for review in the indicated office, by appointment: Daniel Logan, Protected Species Division, NMFS, 777 Sonoma Avenue, Room 325, Santa Rosa, CA 95404 6528 (ph: 707 575 6053, fax: 707 578 3435). Documents may also be reviewed by appointment in the Office of Protected Resources, F/PR3, NMFS, 1315 East-West Highway, Silver Spring, MD 20910 3226 (301 713 1401).
Daniel Logan at phone number 707-575-6053, or e-mail:
Issuance of permits and permit modifications, as required by the Endangered Species Act of 1973 (16 U.S.C. 1531 1543) (ESA), is based on a finding that such permits/modifications: (1) are applied for in good faith; (2) would not operate to the disadvantage of the listed species which are the subject of the permits; and (3) are consistent with the purposes and policies set forth in section 2 of the ESA. Authority to take listed species is subject to conditions set forth in the permits. Permits and modifications are issued in accordance with and are subject to the ESA and NMFS regulations governing listed fish and wildlife permits (50 CFR parts 222 226).
Those individuals requesting a hearing on an application listed in this notice should set out the specific reasons why a hearing on that application would be appropriate (see
This notice is relevant to the following five threatened salmonid ESUs: threatened California Coastal Chinook salmon (
SWFSC requests a modification to permit 1112 for takes of adult and juvenile ESA-listed Chinook salmon, coho salmon, and steelhead associated with studies monitoring the ecology of salmonids in streams, estuaries, and the coastal ocean of California. Presently, permit 1112 authorizes take of juvenile, endangered, Sacramento River winter-run Chinook salmon. This requested modification would add intentional takes of threatened California Coastal Chinook salmon, threatened Central California Coast coho salmon, threatened Central California Coast steelhead, threatened Northern California Coast steelhead, and threatened South-central California Coast steelhead to SWFSC's permit.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of public meeting.
The Pacific Fishery Management Council's (Council) Highly Migratory Species Plan Development Team (HMSPDT) will hold a work session, which is open to the public.
The HMSPDT will meet Tuesday, December 3, 2002 from 9 a.m. until 5 p.m.; and Wednesday, December 4, 2002 from 9 a.m. until business for the day is completed.
The work session will be held at the Hubbs-Sea World Research Institute, East Room, 2595 Ingraham Street, San Diego, CA 92109, telephone: (619) 226-3870.
Council address: Pacific Fishery Management Council, 7700 NE Ambassador Place, Suite 200, Portland, OR 97220-1384.
Mr. Dan Waldeck, Pacific Fishery Management Council, (503) 820-2280.
On October 29, 2002, the Council adopted the fishery management plan (FMP) for West Coast highly migratory species (HMS). The primary purpose of this HMSPDT work session is to incorporate Council guidance, perform editorial work, and prepare the FMP for submission to the U.S. Secretary of Commerce.
Although nonemergency issues not contained in the HMSPDT meeting agenda may come before the HMSPDT for discussion, those issues may not be the subject of formal HMSPDT action during this meeting. HMSPDT action will be restricted to those issues specifically listed in this document and any issues arising after publication of this document that require emergency action under section 305(c) of the Magnuson-Stevens Fishery Conservation and Management Act, provided the public has been notified of the HMSPDT's intent to take final action to address the emergency.
The meeting is physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Ms. Carolyn Porter at (503) 820-2280 at least 5 days prior to the meeting date.
National Oceanic and Atmospheric Administration (NOAA).
Notice of open workshop.
The U.S. Global Change Research Act of 1990 initiated the U.S. Global Change Research Program (USGCRP) that continues today as a major sponsor of global change research. In June 2001 President George W. Bush directed the USGCRP agencies to develop a focused Climate Change Research Initiative (CCRI) with the goal of accelerating the USGCRP research activities in the next 2 to 5 years to assist in the development of public policy and natural resource management tools related to climate change issues. The U.S. Climate Change Science Program (CCSP), incorporating the USGCRP and the CCRI, will hold a comprehensive workshop to receive participants' individual comments on a discussion draft version of its Strategic Plan for climate change and global change studies. When finalized, the draft strategic Plan reviewed during and after the Workshop will provide the principal guidance for the U.S. global change and climate change research programs during the next several years, subject to revisions as appropriate to respond to newly developed information and decision support tools.
The workshop will be held Tuesday, December 3, 2002, from 9:30 a.m.-5:30 p.m., Wednesday, December 4, 2002, from 8:30 am-5:30 p.m., and Thursday, December 5, 2002, from 8:30 a.m.-4 p.m.
The workshop will be held at the Marriott Wardman Park Hotel, 2660 Woodley Road, NW., in Washington, DC.
The meeting will be open to registered participants. The public may register at the Web site below or by sending a fax to 303-497-8633 with the following information: (1) Prefix: (Dr., Mr., Ms., other); (2) first name/given name; (3) middle initial; (4) last name/surname; (5) name as you want it printed on your name badge; (6) organization/institution; (7) department, division or program; (8) street address; (9) city; (10) state/province (if applicable); (11) ZIP or postal code; (12) country; (13) telephone number; (14) fax number; and (15) email address.
To assure the continued scientific credibility of the CCSP, the Workshop will provide a comprehensive review of the discussion draft of the Strategic Plan.
Ms. Sandy MacCracken, U.S. Climate Change Science Program, Suite 250, 1717 Pennsylvania Ave, NW., Washington, DC 20006. (Phone: 202-223-6262, Fax: 202-223-3065, e-mail:
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Issuance of permits and permit amendments.
Notice is hereby given that the following individuals/organizations have been issued a permit or permit amendment to take Steller sea lions (Eumetopias jubatus) for the purposes of scientific research: Dr. Glenn VanBlaricom, Washington Cooperative Fish and Wildlife Research Unit, School of Aquatic and Fishery Sciences, University of Washington, Seattle, WA 98195; Dr. Randall Davis, Department of Marine Biology, Texas A M University, Galveston, TX 77551; the Oregon Department of Fish and Wildlife (ODFW), Corvallis, Oregon 97330 (PI: Robin Brown); the Alaska SeaLife Center (ASLC), Seward, Alaska 99664 (PI: Don Calkins); the National Marine Mammal Laboratory (NMML), National Marine Fisheries Service, NOAA, Seattle, WA 98115-0070 (PI: Dr. Thomas Loughlin); the Alaska Department of Fish and Game (ADFG), Juneau, Alaska 99802-5526 (PI: Dr. Thomas Gelatt).
The permits, permit amendments, and related documents, are available for review upon written request, by downloading from the
All documents: Permits, Conservation and Education Division, Office of Protected Resources, NMFS, 1315 East-West Highway, Room 13705, Silver Spring, MD 20910, (301)713-2289, or the Division's Web Page at
For permit 782-1532 (NMML) and Files No. 1016-1651 (Univ. of Washington) and 434-1669 (ODFW): Northwest Region, NMFS, 7600 Sand Point Way NE, BIN C15700, Bldg. 1, Seattle, WA 98115-0700,(206)526-6150; and
For permits 782-1532 (NMML), 358-1564-02 (ADFG) and Files No. 1016-1651 (Univ. of Washington), 800-1664 (Davis), and 881-1668 (ASLC): Alaska Region, NMFS, PO Box 21668, Juneau, AK 99802-1668,(907)586-7221.
Dr. Tammy Adams or Ruth Johnson, (301)713-2289.
On June 27, 2002 , notice was published in the
Permit No. 358-1564-02, which expires on June 30, 2005, authorized the permit holder to take Steller sea lions of all ages and both sexes in Alaska and British Columbia by aerial/boat surveys, capturing, handling, flipper tagging, blood/biopsy sampling, hot-branding, collection of blood and tissue samples, attachment of scientific instruments, recaptures, and accidental mortality. The amended permit authorizes takes of additional sea lions by increased frequency of aerial surveys, and additional takes of individual sea lions by additional recaptures, increased blood and tissue sampling, tagging, administering Evans blue dye, and additional accidental mortality.
Permit No. 782-1532, which expires on December 31, 2004, authorizes the permit holder to take Steller sea lions of all ages and both sexes in Alaska, by aerial/boat surveys, capturing, handling, flipper tagging, blood/biopsy sampling, attachment of scientific instruments, and hot-branding. The amended permit increase the frequency of takes by aerial surveys; includes Southeast Alaska in monthly surveys; increases the number of animals to be incidentally harassed during scat collection; and allows additional procedures for animals already authorized for capture, including using gas anesthesia, branding of any animal captured, injecting Evan's blue dye and deuterated water, collecting additional blood and tissue samples, using bioelectric impedance analysis, and an increase in the number of accidental mortalities.
Permit No. 800-1664 authorizes takes of threatened and endangered juvenile and adult female Steller sea lions in Alaska by capture, anesthesia, hot-branding, tissue sampling (including blood, skin, and blubber), attachment of scientific instruments (video system/data logger and satellite transmitters), and accidental mortality.
Permit No. 1016-1641 authorizes takes of threatened and endangered Steller sea lions in the Aleutian Islands, Gulf of Alaska, and southeast Alaska by remote biopsy darting, incidental harassment, and accidental mortality, to collect blubber samples for analysis to assess prey selection. Some samples will be exported to Canada for analysis. Northern fur seals (Callorhinus ursinus) and harbor seals (Phoca vitulina richardsi) may be incidentally harassed during biopsy sampling.
Permit No. 434-1669 authorizes takes of threatened Steller sea lions in California, Washington, and Oregon by capture, hot-branding, flipper tagging, collection of blood and tissue samples from, attachment external scientific instruments to, harassment incidental to these activities and remote monitoring, and accidental mortality.
Permit No. 881-1668, issued to the Alaska SeaLife Center, authorizes takes of threatened and endangered Steller sea lions in Alaska by capture, hot-branding, flipper tagging, collection of blood and tissue samples from, attachment of external scientific instruments, accidental mortality, and harassment incidental to these activities and remote monitoring.
Permit No. 1010-1641 authorizes takes of Steller sea lions of all ages by harassment during aerial surveys and vessel-based behavioral observations in the western Gulf of Alaska, and scat collection at rookeries and haulouts along the Alaska Peninsula and Eastern Aleutian Islands.
Issuance of these permits and permit amendments, as required by the ESA, was based on a finding that the permits (1) were applied for in good faith, (2) will not operate to the disadvantage of the endangered species which is the subject of these permits, and (3) is consistent with the purposes and policies set forth in section 2 of the ESA.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Receipt of application for amendment.
Notice is hereby given that Texas A&M University, Department of Marine Biology, PO Box 1675, Galveston, Texas 77551 (Principal Investigator: Dr. Randall W. Davis) has requested an amendment to scientific research Permit No. 821-1588-01.
Written or telefaxed comments must be received on or before December 19, 2002.
The amendment request and related documents are available for review upon written request or by appointment in the following office(s):
Permits, Conservation and Education Division, Office of Protected Resources, NMFS, 1315 East-West Highway, Room 13705, Silver Spring, MD 20910; phone (301)713-2289; fax (301)713-0376;
Southeast Region, NMFS, 9721 Executive Center Drive North, St. Petersburg, FL 33702-2432; phone (727)570-5301; fax (727)570-5320; and
Southwest Region, NMFS, 501 West Ocean Blvd., Suite 4200, Long Beach, CA 90802-4213; phone (562)980-4001; fax (562)980-4018.
Written comments or requests for a public hearing on this request should be submitted to the Chief, Permits, Conservation and Education Division, F/PR1, Office of Protected Resources, NMFS, 1315 East-West Highway, Room 13705, Silver Spring, MD 20910. Those
Comments may also be submitted by facsimile at (301)713-0376, provided the facsimile is confirmed by hard copy submitted by mail and postmarked no later than the closing date of the comment period. Please note that comments will not be accepted by e-mail or other electronic media.
Amy Sloan or Carrie Hubard (301)713-2289.
The subject amendment to Permit No. 821-1588-01 is requested under the authority of the Marine Mammal Protection Act of 1972, as amended (16 U.S.C. 1361
Permit No. 821-1588-01 authorizes the permit holder to conduct research under three projects: (1) capture, tag, sample, release Weddell seals (
In compliance with the National Environmental Policy Act of 1969 (42 U.S.C. 4321
Concurrent with the publication of this notice in the
Committee for the Implementation of Textile Agreements (CITA).
Issuing a directive to the Commissioner of Customs adjusting limits.
November 19, 2002.
Ross Arnold, International Trade Specialist, Office of Textiles and Apparel, U.S. Department of Commerce, (202) 482-4212. For information on the quota status of these limits, refer to the Quota Status Reports posted on the bulletin boards of each Customs port, call (202) 927-5850, or refer to the U.S. Customs Web site at
Section 204 of the Agricultural Act of 1956, as amended (7 U.S.C. 1854); Executive Order 11651 of March 3, 1972, as amended.
The current limits for Categories 300/301 and 604 are being adjusted, variously, for swing and carryover.
A description of the textile and apparel categories in terms of HTS numbers is available in the CORRELATION: Textile and Apparel Categories with the Harmonized Tariff Schedule of the United States (see
Dear Commissioner: This directive amends, but does not cancel, the directive issued to you on November 27, 2001, by the Chairman, Committee for the Implementation of Textile Agreements. That directive concerns imports of certain cotton, wool and man-made fiber textiles and textile products and silk blend and other vegetable fiber apparel, produced or manufactured in Malaysia and exported during the twelve-month period which began on January 1, 2002 and extends through December 31, 2002.
Effective on November 19, 2002, you are directed to adjust the limits for the following categories, as provided for under the Uruguay Round Agreement on Textiles and Clothing:
The Committee for the Implementation of Textile Agreements has determined that these actions fall within the foreign affairs exception of the rulemaking provisions of 5 U.S.C. 553(a)(1).
Sincerely,
Department of Education.
Correction notice.
On September 11, 2002, the Department of Education published a 60-day public comment period notice in the
Lew Oleinick at his e-mail address
Department of Education.
The Leader, Regulatory Management Group, Office of the Chief Information Officer invites comments on the submission for OMB review as required by the Paperwork Reduction Act of 1995.
Interested persons are invited to submit comments on or before December 19, 2003.
Written comments should be addressed to the Office of Information and Regulatory Affairs, Attention: Karen Lee, Desk Officer, Department of Education, Office of Management and Budget, 725 17th Street, NW., Room 10235, New Executive Office Building, Washington, DC 20503 or should be electronically mailed to the internet address
Section 3506 of the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35) requires that the Office of Management and Budget (OMB) provide interested Federal agencies and the public an early opportunity to comment on information collection requests. OMB may amend or waive the requirement for public consultation to the extent that public participation in the approval process would defeat the purpose of the information collection, violate State or Federal law, or substantially interfere with any agency's ability to perform its statutory obligations. The Leader, Regulatory Management Group, Office of the Chief Information Officer, publishes that notice containing proposed information collection requests prior to submission of these requests to OMB. Each proposed information collection, grouped by office, contains the following: (1) Type of review requested,
Responses: 51.
Burden Hours: 612.
Requests for copies of the submission for OMB review; comment request may be accessed from
Comments regarding burden and/or the collection activity requirements should be directed to Kathy Axt at her e-mail address
Department of Education.
The Leader, Regulatory Management Group, Office of the Chief Information Officer invites comments on the submission for OMB review as required by the Paperwork Reduction Act of 1995.
Interested persons are invited to submit comments on or before December 19, 2002.
Written comments should be addressed to the Office of Information and Regulatory Affairs, Attention: Karen Lee, Desk Officer, Department of Education, Office of Management and Budget, 725 17th Street, NW., Room 10235, New Executive Office Building, Washington, DC 20503 or should be electronically mailed to the Internet address
Section 3506 of the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35) requires that the Office of Management and Budget (OMB) provide interested Federal agencies and the public an early opportunity to comment on information collection requests. OMB may amend or waive the requirement for public consultation to the extent that public participation in the approval process would defeat the purpose of the information collection, violate State or Federal law, or substantially interfere with any agency's ability to perform its statutory obligations. The Leader, Regulatory Management Group, Office of the Chief Information Officer, publishes that notice containing proposed information collection requests prior to submission of these requests to OMB. Each proposed information collection, grouped by office, contains the following: (1) Type of review requested,
Responses: 240.
Burden Hours: 19,200.
Requests for copies of the submission for OMB review; comment request may be accessed from
Comments regarding burden and/or the collection activity requirements should be directed to Kathy Axt at her e-mail address
Department of Education.
The Leader, Regulatory Management Group, Office of the Chief Information Officer invites comments on the submission for OMB review as required by the Paperwork Reduction Act of 1995.
Interested persons are invited to submit comments on or before December 19, 2002.
Written comments should be addressed to the Office of Information and Regulatory Affairs, Attention: Karen Lee, Desk Officer, Department of Education, Office of Management and Budget, 725 17th Street, NW., Room 10235, New Executive Office Building, Washington, DC 20503 or should be electronically mailed to the Internet address
Section 3506 of the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35) requires that the Office of Management and Budget (OMB) provide interested Federal agencies and the public an early opportunity to comment on information collection requests. OMB may amend or waive the requirement for public consultation to the extent that public participation in the approval process would defeat the purpose of the information collection, violate State or Federal law, or substantially interfere with any agency's ability to perform its statutory obligations. The Leader, Regulatory Management Group, Office of the Chief Information Officer, publishes that notice containing proposed information collection requests prior to submission of these requests to OMB. Each proposed information collection, grouped by office, contains the following: (1) Type of review requested,
Responses: 50.
Burden Hours: 4,000.
This information collection is being submitted under the Streamlined Clearance Process for Discretionary Grants Information Collections (1890-0001). Therefore, this 30-day public comment notice will be the only public comment notice published for this information collection.
Requests for copies of the submission for OMB review; comment request may be accessed from
Comments regarding burden and/or the collection activity requirements should be directed to Sheila Carey at her e-mail address
Department of Education.
The Leader, Regulatory Management Group, Office of the Chief Information Officer invites comments on the submission for OMB review as required by the Paperwork Reduction Act of 1995.
Interested persons are invited to submit comments on or before December 19, 2002.
Written comments should be addressed to the Office of Information and Regulatory Affairs, Attention: Karen Lee, Desk Officer, Department of Education, Office of Management and Budget, 725 17th Street, NW., Room 10235, New Executive Office Building, Washington, DC 20503 or should be electronically mailed to the Internet address
Section 3506 of the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35) requires that the Office of Management and Budget (OMB) provide interested Federal agencies and the public an early opportunity to comment on information collection requests. OMB may amend or waive the requirement for public consultation to the extent that public participation in the approval process would defeat the purpose of the information collection, violate State or Federal law, or substantially interfere with any agency's ability to perform its statutory obligations. The Leader, Regulatory Management Group, Office of the Chief Information Officer, publishes that notice containing proposed information collection requests prior to submission of these requests to OMB. Each proposed information collection, grouped by office, contains the following: (1) Type of review requested, e.g. new, revision, extension, existing or reinstatement; (2) Title; (3) Summary of the collection; (4) Description of the need for, and proposed use of, the information; (5) Respondents and frequency of collection; and (6) Reporting and/or Recordkeeping burden. OMB invites public comment.
State, Local, or Tribal Gov't, SEAs or LEAs.
Responses: 150.
Burden Hours: 12,000.
This information collection is being submitted under the Streamlined Clearance Process for Discretionary Grants Information Collections (1890-0001). Therefore, this 30-day public comment notice will be the only public comment notice published for this information collection.
Requests for copies of the submission for OMB review; comment request may be accessed from
Comments regarding burden and/or the collection activity requirements should be directed to Sheila Carey at her e-mail address
Department of Energy.
Notice of open meeting.
This notice announces a meeting of the Environmental Management Site-Specific Advisory Board (EM SSAB), Rocky Flats. The Federal Advisory Committee Act (Pub. L. 92-463, 86 Stat. 770) requires that public notice of these meeting be announced in the
Thursday, December 5, 2002; 6 p.m. to 9:30 p.m.
Double Tree Hotel, 8773 Yates Drive, Westminster, CO.
Ken Korkia, Board/Staff Coordinator, Rocky Flats Citizens Advisory Board, 9035 North Wadsworth Parkway, Suite 2250, Westminster, CO, 80021; telephone (303) 420-7855; fax (303) 420-7579.
On October 29, 2002, Gulf States Pipeline Corporation (Gulf States) filed an Offer of Settlement in the above-docketed proceeding. Included in its filing was a request to shorten the period for filing initial and reply comments in response to the Offer of Settlement. Gulf States states that there are no intervenors in this docket and the Commission Staff supports the Settlement. Consequently, we are shortening the date for filing initial comments to and including November 18, 2002. Reply comments should be filed on or before November 25, 2002.
On November 4, 2002, Jupiter Energy Corporation (Jupiter), 14141 Southwest Freeway, Sugar Land, Texas 77478, a wholly owned subsidiary of Union Oil Company of California (Unocal), filed an application in Docket No. CP03-11-000, pursuant to Section 7(b) of the Natural Gas Act (NGA), and part 157 of the regulations of the Federal Energy Regulatory Commission (Commission), for authorization to abandon all of Jupiter's certificated services, to rescind its certificates, and to declare Jupiter to be exempt from the Commission's jurisdiction, all as more fully set forth in the application which is on file with the Commission and open to public inspection. This filing is available for review at the Commission in the Public Reference Room or may be viewed on the Commission's website at
Jupiter states that it performs primarily a non-jurisdictional gathering function, and that it provides this service to only a single customer, Unocal, its parent corporation. Based upon the proposed abandonment and the rescinding of certificates, Jupiter states that it also requests the Commission to determine that Jupiter will no longer be a “natural gas company” subject to the Commission's jurisdiction under the NGA.
Jupiter states that it was the first offshore, natural gas pipeline facility constructed in the Gulf of Mexico. The facility was constructed around 1950 and was located approximately 10 miles offshore in about 40 feet of water in what is now designated as Vermillion Block No. 39 and it served the offshore production of Unocal's predecessor, The Pure Oil Company (Pure).
According to Jupiter, as originally configured, the Jupiter System consisted of two parallel pipelines: one approximately 8.5-mile pipeline with a diameter of 8 5/8 inches (the 8-inch Line) and one approximately 10.2-mile pipeline with a 10 3/4-inch diameter (the 10-inch Line). The 8-inch Line is connected to a platform in Vermillion Block No. 39 that was originally owned by Pure and now by Unocal (Platform 39A). The 10-inch Line was originally connected to both that platform and another nearby platform owned by Phillips Petroleum/Kerr McGee, which has been abandoned for at least a decade. The two Jupiter Lines connected at the shoreline with two parallel pipelines owned by Tennessee Gas Transmission Company (Tennessee).
Jupiter states that in February 2000, shortly after being acquired by Unocal, Jupiter constructed a sub sea interconnect at an existing intersection of Jupiter's 8-inch Line and a 24-inch lateral line of Transcontinental Gas Pipe Line Corporation (Transco) in Vermillion Block No. 22. The Transco interconnection is located approximately 3.2 miles downstream from Platform 39A. Jupiter constructed the interconnect and then abandoned in-place the remainder of its 8-inch Line downstream of the Transco interconnect pursuant to blanket authority granted in Docket No. CP99-536. Tennessee subsequently abandoned its shoreline interconnect with Jupiter's 8-inch Line.
According to Jupiter, the Jupiter pipelines transport unprocessed gas from Platform 39A to the nearest interstate pipelines: either approximately 3 miles on the 8-inch Line to the sub sea interconnect with Transco or approximately 10 miles on the 10-inch Line to the shoreline interconnect with Tennessee. The pipelines operate at pressures ranging from 750 to 950 psig. The gas transported to Tennessee's system on the Jupiter 10-inch Line reaches, after approximately 22 miles of transportation on Tennessee, a separation and dehydration facility that is owned by Jupiter (Jupiter Plant), which straddles the Tennessee line and separates out gas condensate. At the outlet of the Jupiter Plant, the gas is metered and continues on the Tennessee system.
Jupiter states that Unocal owns a series of gathering facilities attached to the wells located in Vermillion Block Nos. 23, 38 and 39 that feed into Platform 39A and then into Jupiter. Those gathering facilities consist of platforms and lease pipelines ranging in diameter from 4.5-inches to 8 and 5/8ths-inches. Jupiter states that it essentially functions as part of this Unocal gathering system and that Unocal expects to integrate the Jupiter gathering facilities into its own gathering operations following Commission approval of this application.
Jupiter also states that Unocal has been the only shipper on Jupiter since at least 1992. Unocal owns all of the gas transported on Jupiter and currently produces over 97.5% of that gas, purchasing the remaining small amounts prior to transportation on Jupiter. Unocal acquired Jupiter in 1997 and, since then, has actively sought other potential shippers for Jupiter without success and it is most unlikely that any other potential shipper will seek access to the Jupiter system.
Any questions regarding this application may be directed to Carol Westmoreland, Union Oil Company of California, Law Department, 14141 Southwest Freeway, Sugar Land, Texas 77478 at (281) 287-7492 or J. Patrick Nevins, Hogan & Hartson, L.L.P., 555 Thirteenth Street, NW., Washington, DC 20004 at (202) 637-6441.
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 December 4, 2002, file with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, a motion to intervene 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
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.
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.
Take notice that on November 7, 2002, Maritimes & Northeast Pipeline, L.L.C. (Maritimes) tendered for filing as part of its FERC Gas Tariff, First Revised Volume No. 1, Sub 1st First Revised Sheet No. 265, to become effective on November 1, 2001.
Maritimes proposes to comply with the Commission's November 4, 2002 order, in Docket No. RP02-4-002, by restoring the existing language to the last sentence of Section 11.6(c) of the General Terms and Conditions of its FERC Gas Tariff.
Maritimes states that copies of this filing were mailed to all affected customers of Maritimes 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 website at
Take notice that on July 31, 2002, the Commission issued an order in the above-indicated docket initiating a proceeding in Docket No. EL02-111-000 under section 206 of the Federal Power Act.
The refund effective date in Docket No. EL02-111-000 will be 60 days after publication of this notice in the
Take notice that on November 7, 2002, MIGC, Inc. (MIGC) tendered for filing as part of its FERC Gas Tariff, First Revised Volume No.1, the following tariff sheets, to become effective January 1, 2003:
MIGC asserts that the purpose of this filing is to clarify, consistent with Commission policy, the specific types of transportation discounts that may be granted by MIGC in a manner consistent with FERC-approved discounts on other pipelines. The revised tariff sheets modify the General Terms and Conditions (GTC) of MIGC's Tariff which are applicable to the various throughput Rate Schedules and add a reference to the provisions in the rate schedules. By including this additional language in the GTC, MIGC seeks to avoid the need for filing individual discount agreements on the grounds that they contain “material deviations” from the
• 61,099 (1998), Columbia Gas Transmission Corp., 92 FERC ] 61,080 (2000) and subsequent orders. The identification of the types of discounts to which MIGC and an individual shipper may agree will clarify MIGC's flexibility to provide the services required to meet competitive market conditions.
In addition to its ability to agree to a basic discount from the stated maximum rates, MIGC proposes to create a new Section 26 in the General Terms and Conditions of its Tariff entitled “Types of Discounting” which reflects the various kinds of discounts MIGC may give to meet competitive circumstances. For example, MIGC may provide a specified discounted rate: to
In all circumstances the discounted rate shall be between the maximum rate and minimum rate applicable to the service provided.
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 November 8, 2002, North Baja Pipeline, LLC (NBP), tendered for filing to be part of its FERC Gas Tariff, Original Volume No. 1, First Revised Sheet No. 124, with an effective date of December 8, 2002.
NBP states that the filing is being made to remove the five-year term matching cap provided for in the right of first refusal section of its Tariff. NBP indicates that this modification is consistent with the FERC's October 31, 2002 Order on Remand in Docket No. RM98-10-011.
NBP further states that a copy of this filing has been served on NBP's jurisdictional customers and interested state regulatory agencies.
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 November 8, 2002, PG&E Gas Transmission, Northwest Corporation (GTN), tendered for filing as part of its FERC Gas Tariff, Second Revised Volume No. 1-A, the tariff sheets attached to Appendix A to the filing, with an effective date of December 8, 2002.
GTN states that the filing is being filed to remove the five-year term matching cap provided for in the right of first refusal section of its Tariff. GTN also states, that this modification is consistent with the FERC's October 31, 2002 Order on Remand in Docket No. RM98-10-011.
GTN further states that a copy of this filing has been served on GTN's jurisdictional customers and interested state regulatory agencies.
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 November 4, 2002, South Carolina Electric & Gas Company submitted an application pursuant to section 204 of the Federal Power Act seeking authorization to issue promissory notes and other evidences of unsecured short-term indebtedness through December 31, 2003, in an amount not to exceed $350 million at any one time.
Any person desiring to be hear or to protest said filing should file a motion to intervene or protest with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 18 CFR 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
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, the tariff sheets listed on Appendix A to the filing, to become effective December 1, 2002.
Texas Eastern asserts that the purpose of this filing is to comply with the Stipulation and Agreement filed by Texas Eastern on December 17, 1991 in Docket Nos. RP88-67,
Texas Eastern states that such tariff sheets reflect an decrease in the PCB-Related Cost component of Texas Eastern's currently effective rates. For example, the decrease in the 100% load factor average cost of long-haul service under Rate Schedule FT-1 from Access Area Zone ELA to Market Zone 3 is $0.0001 per dekatherm.
Texas Eastern states that copies of the filing were mailed to all affected customers of Texas Eastern and interested state commissions. Copies of this filing have also been mailed to all parties on the service list in Docket Nos. RP88-67,
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 website at
Take notice that on November 7, 2002, Texas Gas Transmission Corporation (Texas Gas) tendered for filing as part of its FERC Gas Tariff, First Revised Volume No. 1, the following tariff sheets to become effective November 1, 2002:
Texas Gas states that the purpose of this filing is to reflect a negotiated rate agreement with Tennessee Valley Authority.
Texas Gas states that copies of the revised tariff sheets are being mailed to all parties on the service list, Texas Gas's jurisdictional customers and interested state commissions.
Any person desiring to be heard or to protest said filing should file a motion to intervene or a protest with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, in accordance with Sections 385.214 or 385.211 of the Commission's Rules and Regulations. All such motions or protests must be filed 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.
Take notice that on November 7, 2002, TransColorado Gas Transmission Company (TransColorado) tendered for filing as part of its FERC Gas Tariff, Original Volume No. 1, Fifty-Third Revised Sheet No. 21 and Twenty-Sixth Revised Sheet No. 22A to be effective November 7, 2002.
TransColorado states that the filing is being made in compliance with the Commission's letter order issued March 20, 1997, in Docket No. RP97-255-000.
The tendered tariff sheets propose to revise TransColorado's Tariff to reflect a new negotiated-rate contract with United Energy Trading, LLC.
TransColorado stated that a copy of this filing has been served upon all parties to this proceeding, TransColorado's customers, the Colorado Public Utilities Commission and the New Mexico Public Utilities Commission.
Any person desiring to protest said filing should file a protest with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, in accordance with Section 385.211 of the Commission's Rules and Regulations. All such protests must be filed in accordance with Section 154.210 of the Commission's Regulations. Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceedings. 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 following filings have been made with the Commission. The filings are listed in ascending order within each docket classification.
Take notice that on November 5, 2002, Harold E. Dittmer (Mr. Dittmer), and Hanover Power, LLC (HP) (collectively, the Applicants), filed with the Federal Energy Regulatory Commission (the Commission) an application pursuant to section 203 of the Federal Power Act seeking authorization for the transfer of certain jurisdictional facilities whereby Applicants request approval of the transfer of 49% of the upstream membership interests in Wellhead Power Panoche, LLC to HP.
Take notice that on November 5, 2002, Fresno Power Investors, L.P. (FPILP), Harold E. Dittmer (Mr. Dittmer), and Hanover Power (Gates), LLC (HPG) (collectively, the Applicants), filed with the Federal Energy Regulatory Commission (the Commission) an application pursuant to section 203 of the Federal Power Act seeking authorization for the transfer of certain jurisdictional facilities whereby Applicants request approval of the transfer of 92.5% of the upstream membership interests in Wellhead Power Gates, LLC to HPG.
Take notice that on November 5, 2002, Harbor Cogeneration Company (Harbor Cogeneration), ABB Equity Ventures Inc. (ABB Equity), and Black Hills Energy Capital, Inc. (BH Energy Capital) filed an application with the Federal Energy Regulatory Commission requesting authorization from the Commission for ABB Equity to transfer to BH Energy Capital its limited partnership interests in two investment funds that indirectly own interests in Harbor Cogeneration.
Take notice that on November 4, 2002, High Winds, LLC (the Applicant), filed with the Federal Energy Regulatory Commission (the Commission) an application for determination of exempt wholesale generator status pursuant to part 365 of the Commission's regulations.
Applicant states that it is a Delaware limited liability company engaged directly and exclusively in the business of owning and operating an up to 166 MW wind-powered generation facility located in Solano County, California. Electric energy produced by the facility will be sold at wholesale.
Take notice that on November 4, 2002, Mirant Las Vegas, LLC (Mirant Las Vegas) filed with the Federal Energy Regulatory Commission an application for determination of exempt wholesale generator status pursuant to part 365 of the Commission's regulations.
Mirant Las Vegas proposes to own a 575 MW net generating capability facility located near the city of Las Vegas, Nevada (Facility). The proposed Facility is expected to commence commercial operation in March, 2003. All output from the Facility will be sold
Take notice that on November 4, 2002, Choctaw Generation Limited Partnership filed with the Federal Energy Regulatory Commission a petition for declaratory order requesting that the Commission disclaim jurisdiction under the FPA with respect to the passive owner/lessor(s) that will assume ownership of its facility in connection with a sale-leaseback financing.
Take notice that on November 4, 2002, Westar Generating, Inc. (WGI) submitted for filing a refund report in compliance with the Commission's Order issued September 5, 2002 in the above-referenced docket.
WGI states that a copy of the filing has been served on Westar Energy, Inc. and the Kansas Corporation Commission.
Take notice that on November 4, 2002, Entergy Services, Inc., on behalf of Entergy Arkansas, Inc., Entergy Gulf States, Inc., Entergy Louisiana, Inc., Entergy Mississippi, Inc., and Entergy New Orleans, Inc., (collectively, the Entergy Operating Companies) tendered for filing a supplement to its compliance refund report filed on September 23, 2002, in accordance with the Commission's Order.
The supplemental refund report details the refunds for Conway Corporation, West Memphis Utilities, Farmers Electric Cooperative Corporation, Brazos Electric Power Cooperative, and the City of Prescott.
Take notice that, on November 5, 2002, BOC Energy Services, Inc. (BOC) filed corrected designations to supplement BOC's Petition For Acceptance of Initial Rate Schedule, Waiver, and Blanket Authority, filed with the Federal Energy Regulatory Commission on October 15, 2002.
BOC submits these corrected designations to: (1) Modify the format of BOC's FERC Electric Rate Schedule; and (2) supplement BOC's Rate Schedule to list the specific ancillary services BOC plans to provide and the areas in which BOC intends to provide these services.
Take notice that on November 4, 2002, Xcel Energy Services, Inc. (XES), on behalf of Public Service Company of Colorado (PSCo) submitted for filing with the Federal Energy Regulatory Commission (Commission) the Generation Interconnection Agreement between PSCo and Thermo Cogeneration Partnership, L.P.
PSCo requests the letter agreements be accepted for filing effective October 1, 2001, and requests waiver of the Commission's notice requirements in order for the Agreements to be accepted for filing on the date requested.
Take notice that on November 4, 2002 High Winds, LLC tendered for filing an application for authorization to sell energy and capacity at market-based rates pursuant to section 205 of the Federal Power Act.
Take notice that on November 5, 2002 PECO Energy Company (PECO) submitted for filing revised pages of an Interconnection Agreement dated January 12, 2001 by and between PECO and the Joint Owners of the Peach Bottom Atomic Power Station. Copies of this filing were served on the Joint Owners and PJM Interconnection, L.L.C.
Take notice that on November 5, 2002, Florida Power & Light Company (FPL) tendered for filing Amendment Number Six to the Network Service Agreement between FPL and the Florida Municipal Power Agency (NSA), and related agreements. Amendment Number Six adds the City of Lake Worth, Florida as a Network Member under the NSA. FPL also proposes to terminate the Non-Firm Transmission Service Agreement Between Florida Power & Light Company and the City of Lake Worth; the Short Term Firm Transmission Service Agreement Between Florida Power & Light Company and the City of Lake Worth; and the Rate Schedule designated for the Territorial Agreement and Contract for Interchange Service Between Florida Power & Light Company and Lake Worth Utilities Authority City of Lake Worth, Florida. FPL proposes an effective date for the agreements and terminations of October 1, 2002.
Take notice that on November 5, 2002, Entergy Services, Inc., on behalf of Entergy Louisiana, Inc. (Entergy Louisiana), tendered for filing six copies of a Notice of Termination of the Interconnection and Operating Agreement and Generator Imbalance Agreement between Entergy Louisiana and Duke Energy Ruston, LLC.
Take notice that Virginia Electric and Power Company (Dominion Virginia Power), on November 5, 2002, tendered for filing a revised service agreement providing for sales of capacity and energy to its affiliate, Dominion Retail, Inc., pursuant to Dominion Virginia Power's cost-based power sales tariff, FERC Electric Tariff No. 7. Dominion Virginia Power is making the revision to include, as part of the service agreement, the Master Power Purchase and Sale Agreement between the Company and Dominion Retail, which contains language that the Virginia State Corporation Commission (SCC) has ordered Dominion Virginia Power to include and file with the Federal Energy Regulatory Commission.
Copies of the filing were served upon the public utility's jurisdictional customers, and the Virginia State Corporation Commission
Take notice that on November 5, 2002, Mirant Las Vegas, LLC (Mirant Las Vegas) tendered for filing an application for an order accepting its FERC Electric Tariff No. 1, granting certain blanket approvals, including the authority to sell electricity at market-base rates, and waiving certain regulations of the Commission. Mirant Las Vegas requested expedited Commission consideration. Mirant Las Vegas requested that its Rate Schedule No. 1 become effective upon the earlier of the date the Commission authorizes market-based rate authority, or December 10, 2002. Mirant Las Vegas also filed its FERC Electric Tariff No. 1.
Take notice that on November 6, 2002, Boston Edison Company (Boston Edison) tendered for filing an executed Related Facilities Agreement between Boston Edison and Lake Road Generating Company, L.P. Boston Edison requests an effective date of the Agreement of January 5, 2003.
Boston Edison states that it has served a copy of the filing on Lake Road and the Massachusetts Department of Telecommunications and Energy.
Take notice that on October 7, 2002, Earth Resources, Inc. Filed with the Federal Energy Regulatory Commission (Commission) an application for certification of a facility as a qualifying Small Power Production facility pursuant to Section 292.207(b) of the Commission's regulations. No determination has been made that the submittal constitutes a complete filing.
The facility will be a 5.35 MW Waste Wood-fired Small Power Production Facility (Facility) and will be located in the Town of Carnesville, Franklin County, Georgia. The Facility will be interconnected with the Hart EMC transmission system.
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
The following filings have been made with the Commission. The filings are listed in ascending order within each docket classification.
Take notice that on November 6, 2002, Entergy Power Generation Corporation (EPGC), on behalf of itself and Entergy Asset Management, Inc. (EAM), Entergy Power Crete Corporation, Entergy Power Ventures, L.P. (EPV), Entergy Power Ventures Corp II (Ventures II), Entergy Power Warren Corporation I, and Warren Power, LLC (WP) tendered for filing an application requesting all necessary authorizations under Section 203 of the Federal Power Act to engage in a corporate reorganization. Under the terms of the proposed reorganization, interests in EPV, Crete Energy Venture, LLC, and WP, currently indirectly held by EPGC, would be transferred to EAM, a subsidiary of EPGC, in exchange for EAM stock. EPV owns a 70 percent interest in an approximately 550 megawatt (MW) generating facility under construction in Harrison County, Texas. Crete Energy Venture, LLC owns an approximately 320 MW generation facility located in Crete, Illinois. WP owns an approximately 300 MW generation facility located in Vicksburg, Mississippi.
Copies of this filing have been served on the Arkansas Public Service Commission, the Louisiana Public Service Commission, the City Council of New Orleans, the Mississippi Public Service Commission, and the Texas Public Utility Commission.
On November 7, 2002, American Ref-Fuel Company of Essex County tendered for filing information with respect to a change in facts relative to its status as an exempt wholesale generator and a demonstration that such change does not affect its status as an exempt wholesale generator pursuant to Section 32(a) of the Public Utility Holding Company Act of 1935, as amended, and Section 365.8 of the Commission?s Regulations.
Take notice that on November 7, 2002, Conectiv Pennsylvania Generation, Inc. (CPG) filed an Application for Determination of Exempt Wholesale Generator Status (Application) pursuant to Section 32(a)(1) of the Public Utility Holding Company Act of 1935 (PUHCA), all as more fully explained in the Application.
CPG either owns or has on order seven natural gas-fired combustion turbines that will be operated as components of three separate 500 MW combined cycle generating modules (the Eligible Facilities for the purposes of PUHCA and the Commission?s EWG regulations). While no specific site or sites have been selected for the location of the Eligible Facilities, it is anticipated that they will be interconnected to the transmission system operated by the PJM Interconnection, LLC via transmission voltage facilities. CPG has served this filing on the Maryland Public Service Commission, Delaware Public Service Commission, New Jersey Board of Public Utilities, Virginia State Corporation Commission, District of Columbia Public Service Commission and the Securities and Exchange Commission (SEC).
Take notice that on November 7, 2002, Minnesota Power tendered for filing an amendment to the Wholesale First Revised Rate Schedule, FERC No. 153 for Dahlberg Light & Power Company. The amendment includes the Commission?s Order No. 84 adder for Third-Party purchase and resale transactions and therefore are subject to FERC Order No. 84.
Take notice that on November 6, 2002 Reliant Energy Mid-Atlantic Power Holdings, LLC (REMPH) filed an amended notice of the cancellation of the FERC Electric Rate Schedule No. 1 for Sithe Warren LLC (the Warren Station). REMPH states that the cancellation results from the decommissioning of the units at the Warren Station and will be effective on September 30, 2002.
Take notice that on November 5, 2002, the Northwest Regional Transmission Association (NRTA) tendered for filing a Second Revised Sheet No. 53 (superseding both Original and First Revised Sheets No. 53) of the Governing Agreement of the Northwest Regional Transmission Association (NRTA). This filing revises NRTA?s filing of August 23, 2000 under Docket No. ER99-4508-001, by which NRTA submitted its entire Governing Agreement (including an index of customers) as Northwest Regional Transmission Organization First Revised Electric Rate Schedule FERC No.1 in compliance with Order No. 614, Docket No. RM99-12-000, 90 FERC 61,352, issued March 31, 2000.
NRTA is submitting the enclosed Second Revised Sheet No. 53 of its Governing Agreement because NRTA?s membership has changed. Specifically, Kootenai Electric Coop, Kaiser Aluminum & Chemical Corporation, Columbia Falls Aluminum Company and Tenaska Power Services Company have withdrawn from NRTA. Montana Power Company has become NorthWestern Energy and PECO Energy Power Team has become Exelon Corporation. Finally, the enclosed Second Revised Sheet No. 53 reflects the NRTA membership of B.C. Ministry of Energy, Oregon Department of Energy and Washington Utilities and Transportation Commission. NRTA?s index of customers is revised to reflect all of these matters.
Take notice that on November 5, 2002, Duke Energy Corporation filed revisions to the Appendices to a contract between Duke Energy Corporation and the Southeastern Power Administration.
Take notice that on November 5, 2002, Entergy Services, Inc., on behalf of Entergy Mississippi, Inc. (Entergy Mississippi), tendered for filing six copies of a Notice of Termination of the Interconnection and Operating Agreement and Generator Imbalance Agreement between Entergy Mississippi and MissChem Nitrogen, L.L.C.
Take notice that on November 7, 2002, American Ref-Fuel Company of Essex County (ARC Essex) tendered for filing an application for blanket authorizations, certain waivers, to reassign transmission rights, to resell firm transmission rights, and authorization to sell energy, capacity and ancillary services as market-based rates pursuant to section 205 of the Federal Power Act.
Take notice that on November 7, 2002, Basin Electric Power Cooperative, Inc. filed an amendment to its standards of conduct procedures in the above-captioned proceedings. Basin Electric requests that the Commission declare the open access tariff that it filed in the above-captioned proceedings is an acceptable reciprocity tariff under Order No. 888.
Copies of the filing were served upon Basin Electric's transmission customers.
Take notice that on October 31, 2002, Riverside Energy Center, LLC (Riverside) submitted an application pursuant to section 204 of the Federal Power Act seeking authorization to issue long-term debt securities in an amount not to exceed $300 million under a credit facility.
Riverside also requests a waiver of the Commission?s competitive bidding requirement under 18 CFR 34.2.
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 continuing efforts to solicit comments on a new hydroelectric licensing process, Federal Energy Regulatory Commission staff will host a one-day post-forum stakeholder meeting, and a two-day post-forum stakeholder drafting session.
The one-day post-forum meeting will be held in the Commission Meeting Room on December 10, 2002, and the two-day post-forum drafting session will be held on December 11 and 12, 2002, in conference room 3M-2, A & B, both at 888 First Street, NE., Washington, DC.
The post-forum meeting and drafting sessions are not intended to address issues pending in individually docketed hydropower cases before the Commission. Therefore, all participants are requested to address the agenda topics and avoid discussing the merits of individual proceedings.
The goal of the one-day post-forum meeting is for Commission staff to: (1) Summarize comments received at the public forums conducted throughout the country in October and November and; (2) discuss general issues associated with a rulemaking effort such as retention of the Traditional and/or the Alternative Licensing Processes. The goal of the two-day post-forum drafting session is to provide stakeholders with an opportunity to participate in drafting concepts and language for a new integrated licensing process. All interested persons are invited to attend these activities, however, persons wishing to participate in the two-day post-forum drafting session will need to pre-register.
In addition to full group discussions at the beginning and end of each of the post-forum drafting sessions, participants will be asked to take part in one of three drafting groups. These drafting groups include: (1) Early application development; (2) study plan development (including dispute resolution); and (3) post license application filing. Therefore, those persons wishing to participate in the two-day post-forum drafting session will need to pre-register by December 6, 2002, by registering on-line at
The Capitol Connection offers the opportunity for remote listening and viewing of the one-day post-forum meeting, which is available for a fee, live over the Internet, via C-Band Satellite. Persons interested in receiving the broadcast, or who need information on making arrangements should contact David Reininger or Julia Morelli at the Capitol Connection (703-993-3100) as soon as possible or visit the Capitol Connection website at
The one-day post-forum meeting will also be transcribed. Those interested in obtaining a copy of the transcript immediately for a fee should contact Ace-Federal Reporters, Inc. at 202-347-3700, or 1-800-336-6646. Two weeks after the post-forum meeting, the transcript will be available for free on the Commission's FERRIS system. Anyone without access to the Commission's web site or who have questions about the post-forum activities should contact Tim Welch at 202-502-8760, or e-mail
Environmental Protection Agency (EPA).
Notice.
In compliance with the Paperwork Reduction Act (44 U.S.C. 3501
Additional comments may be submitted on or before December 19, 2002.
Follow the detailed instructions in the
Sarah Fabirkiewicz, Office of Program Evaluation, 2460T, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460; telephone number: 202-566-2717; fax number: 202-566-0837; e-mail address:
EPA has submitted the following ICR to OMB for review and approval according to the procedures prescribed in 5 CFR 1320.12. EPA was granted a waiver from the 60 day public comment period for a proposed ICR.
EPA has established a public docket for this ICR under Docket ID No. OIG-2002-0001, which is available for public viewing at the Office of Environmental Information Docket in the EPA Docket Center (EPA/DC), EPA West, Room B102, 1301 Constitution Ave., NW., Washington, DC. The EPA Docket Center Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Reading Room is (202) 566-1744, and the telephone number for the Office of Environmental Information Docket is (202) 566-1752). An electronic version of the public docket is available through EPA Dockets (EDOCKET) at
Any comments related to this ICR should be submitted to EPA and OMB within 30 days of this notice, and according to the following detailed instructions: (1) Submit your comments to EPA online using EDOCKET (our preferred method), by e-mail to: oei.docket@epa.gov, or by mail to: EPA Docket Center, Environmental Protection Agency, Mailcode: 28221T, 1200 Pennsylvania Ave., NW., Washington, DC 20460, and (2) Mail your comments to OMB at: Office of Information and Regulatory Affairs, Office of Management and Budget (OMB), Attention: Desk Officer for EPA, 725 17th Street, NW., Washington, DC 20503.
EPA's policy is that public comments, whether submitted electronically or in paper, will be made available for public viewing in EDOCKET as EPA receives them and without change, unless the comment contains copyrighted material, CBI, or other information whose public disclosure is restricted by statute. When EPA identifies a comment containing copyrighted material, EPA will provide a reference to that material in the version of the comment that is placed in EDOCKET. The entire printed comment, including the copyrighted material, will be available in the public docket.
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number. The OMB control numbers for EPA's regulations are listed in 40 CFR part 9 and 48 CFR chapter 15, and are identified on the form and/or instrument, if applicable.
Environmental Protection Agency (EPA).
Notice of final order on petition to object to a state operating permit.
Pursuant to Clean Air Act section 505(b)(2) and 40 CFR 70.8(d), the EPA Administrator signed an order, dated October 9, 2002, denying a petition to object to a state operating permit issued by the Georgia Environmental Protection Division (EPD) to Monroe Power Company (Monroe Power) located in Monroe, Walton County, Georgia. This order constitutes final action on the petition submitted by the Georgia Center for Law in the Public Interest (GCLPI or Petitioner) on behalf of the Sierra Club. Pursuant to section 505(b)(2) of the Clean Air Act (the Act) any person may seek judicial review in the United States Court of Appeals for the appropriate circuit within 60 days of this notice under section 307 of the Act.
Copies of the final order, the petition, and all pertinent information relating thereto are on file at the following location: EPA Region 4, Air, Pesticides and Toxics Management Division, 61 Forsyth Street, SW., Atlanta, Georgia 30303-8960. The final order is also available electronically at the following address:
Art Hofmeister, Air Permits Section, EPA Region 4, at (404) 562-9115 or
The Act affords EPA a 45-day period to review and, as appropriate, object to operating permits proposed by state permitting authorities under title V of the Act, 42 U.S.C. 7661-7661f. Section 505(b)(2) of the Act and 40 CFR 70.8(d) authorize any person to petition the EPA Administrator to object to a title V operating permit within 60 days after the expiration of EPA's 45-day review period if EPA has not objected on its own initiative. Petitions must be based only on objections to the permit that were raised with reasonable specificity during the public comment period provided by the state, unless the petitioner demonstrates that it was impracticable to raise these issues during the comment period or the grounds for the issues arose after this period.
GCLPI submitted a petition on behalf of the Sierra Club to the Administrator on November 14, 2001, requesting that EPA object to a state title V operating permit issued by EPD to Monroe Power. The Petitioner maintains that the Monroe Power permit is inconsistent with the Act because of: (1) The inadequacy of the public participation process and related public notice; (2) the permit's apparent limitation of enforcement authority and credible evidence; (3) the inadequacy of the monitoring and reporting requirements; (4) the permit's exclusion of startups, shutdowns, and malfunctions; and (5) the incompleteness of permit itself.
On October 9, 2002, the Administrator issued an order denying this petition. The order explains the reasons behind EPA's conclusion that the Petitioner has failed to demonstrate that the Monroe Power permit is not in compliance with
Environmental Protection Agency (EPA).
Notice of final order on petition to object to a state operating permit.
Pursuant to Clean Air Act section 505(b)(2) and 40 CFR 70.8(d), the EPA Administrator signed an order, dated October 9, 2002, denying a petition to object to a state operating permit issued by the Georgia Environmental Protection Division (EPD) to King Finishing located in Dover, Screven County, Georgia. This order constitutes final action on the petition submitted by the Georgia Center for Law in the Public Interest (GCLPI or Petitioner) on behalf of the Sierra Club. Pursuant to section 505(b)(2) of the Clean Air Act (the Act) any person may seek judicial review in the United States Court of Appeals for the appropriate circuit within 60 days of this notice under section 307 of the Act.
Copies of the final order, the petition, and all pertinent information relating thereto are on file at the following location: EPA Region 4, Air, Pesticides and Toxics Management Division, 61 Forsyth Street, SW., Atlanta, Georgia 30303-8960. The final order is also available electronically at the following address:
Art Hofmeister, Air Permits Section, EPA Region 4, at (404) 562-9115 or
The Act affords EPA a 45-day period to review and, as appropriate, object to operating permits proposed by state permitting authorities under title V of the Act, 42 U.S.C. 7661-7661f. Section 505(b)(2) of the Act and 40 CFR 70.8(d) authorize any person to petition the EPA Administrator to object to a title V operating permit within 60 days after the expiration of EPA's 45-day review period if EPA has not objected on its own initiative. Petitions must be based only on objections to the permit that were raised with reasonable specificity during the public comment period provided by the state, unless the petitioner demonstrates that it was impracticable to raise these issues during the comment period or the grounds for the issues arose after this period.
GCLPI submitted a petition on behalf of the Sierra Club to the Administrator on October 9, 2001, requesting that EPA object to a state title V operating permit issued by EPD to King Finishing. The Petitioner maintains that the King Finishing permit is inconsistent with the Act because of: (1) The inadequacy of the public participation process and related public notice; (2) the permit's apparent limitation of enforcement authority and credible evidence; and (3) the inadequacy of the monitoring and reporting requirements.
On October 9, 2002, the Administrator issued an order denying this petition. The order explains the reasons behind EPA's conclusion that the Petitioner has failed to demonstrate that the King Finishing permit is not in compliance with the requirements of the Act on the grounds raised.
Environmental Protection Agency (EPA).
Notice of adequacy determination.
In this notice, EPA is notifying the public that we have found the motor vehicle emissions budget submitted in the State Implementation Plan Revision for Carbon Monoxide in the Spokane Serious Nonattainment Area, Spokane, Washington adequate for conformity purposes. On March 2, 1999, the D.C. Circuit Court ruled that submitted SIPs cannot be used for conformity determinations until EPA has affirmatively found them adequate. As a result of our finding, the Spokane Regional Transportation Council, Washington Department of Transportation, and the U.S. Department of Transportation are required to use the motor vehicle emissions budget in this submitted attainment plan for future transportation conformity determinations.
This finding is effective December 4, 2002.
The finding will be available at EPA's conformity Web site:
Today's notice is simply an announcement of a finding that we have already made. EPA Region 10 sent a letter to the Washington Department of Ecology on November 1, 2002, stating that the motor vehicle emissions budget in the State Implementation Plan Revision for Carbon Monoxide in the Spokane Serious Nonattainment Area, Spokane, Washington is adequate.
Transportation conformity is required by section 176(c) of the Clean Air Act. EPA's conformity rule requires that transportation plans, programs, and projects conform to state air quality implementation plans (SIPs) and establishes the criteria and procedures for determining whether or not they do. Conformity to a SIP means that transportation activities will not produce new air quality violations, worsen existing violations, or delay timely attainment of the national ambient air quality standards.
The criteria by which we determine whether a SIP's motor vehicle emission budget is adequate for conformity purposes are outlined in 40 CFR 93.118(e)(4). Please note that an adequacy review is separate from EPA's completeness review.
We have described our process for determining the adequacy of submitted SIP budgets in guidance (May 14, 1999 memo titled “Conformity Guidance on Implementation of March 2, 1999 Conformity Court Decision”). We followed this guidance in making our adequacy determination.
42 U.S.C. 7401-7671q.
Environmental Protection Agency (EPA).
Notice of meeting.
This notice announces the Ninth Meeting of the Mississippi River/Gulf of Mexico Watershed Nutrient Task Force. The purpose of this Task Force, consisting of Federal, State, and Tribal members, is to lead efforts to coordinate and support nutrient management and hypoxia-related activities in the Mississippi River and Gulf of Mexico watersheds. The major matter to be discussed at the meeting is implementation of the Action Plan for Reducing, Mitigating, and Controlling Hypoxia in the Northern Gulf of Mexico. The Action Plan was developed in fulfillment of a requirement of section 604(b) of the Harmful Algal Blooms and Hypoxia Research Control Act (Pub. L. 105-383—Coast Guard Authorization Act of 1998) to submit a scientific assessment of hypoxia and a plan for reducing, mitigating, and controlling hypoxia in the Gulf of Mexico. The Action Plan was submitted as a Report to Congress on January 18, 2001. Also, a summary will be provided of the Monitoring, Modeling, and Research subworkgroup meeting, held October 16-18, 2002 in St. Louis. The public will be afforded an opportunity to provide input to the Task Force during open discussion periods.
The one day meeting will be held from 9:30 a.m.-4:30 p.m., Tuesday, December 10, 2002 in Washington, DC.
Please see the Web site http://www.epa.gov/msbasin/new.htm for registration, specific meeting location, and hotel information. The meeting room accommodates approximately 125 people, therefore, registration is required. A registration form can be downloaded from the Web site.
Katie Flahive, U.S. EPA, Assessment and Watershed Protection Division (AWPD), Mail Code 4503T, 1200 Pennsylvania Avenue, NW., Washington, DC 20460; Phone (202)-566-1206; E-mail:
President's Critical Infrastructure Protection Board, Executive Office of the President, The White House.
Notice of request for ongoing public comment regarding the National Strategy to Secure Cyberspace for comment, notwithstanding the public comment deadline of September 18, 2002.
Pursuant to the President's charge in Executive Order 12321, the President's Critical Infrastructure Protection Board (the “Board”) has been engaged in development of the National Strategy to Secure Cyberspace. On September 18, 2002, the Board released to the public a draft of the Strategy “For Comment” (the “Strategy”). The Strategy was made available online at
Comments are invited on an ongoing basis.
Comments may be submitted electronically as provided at
Tommy Cabe 202-456-5420.
On October 16, 2001, the President created the Board by Executive Order 12321. The President noted that “[t]he information technology revolution has changed the way business is transacted, government operates, and national defense is conducted. Those three functions now depend on an interdependent network of critical information infrastructures.” In the Executive Order, the President directed the Board to “recommend policies and coordinate programs for protecting information systems for critical infrastructure,” and called for the Board to “coordinate outreach to and consultation with the private sector, * * * State and local governments, [and] communities and representatives from academia and other relevant elements of society.”
Pursuant to the President's charge, the Board has been engaged in development of the National Strategy to Secure Cyberspace. On September 18, 2002, the Board released to the public a draft Strategy “For Comment,” identifying 24 strategic goals and listing over 80 recommendations. The Strategy was made available online at
The Strategy was developed based on input from a broad spectrum of individuals and groups that represent the owners and operators of cyberspace, as well as from the key sectors that rely on cyberspace, including Federal departments and agencies, private companies, State and local governments, educational institutions, nongovernmental organizations, and the general public. Town hall meetings to facilitate discussion and stimulate input were held during the spring in Denver, Chicago, Portland Oregon, and Atlanta and this month in Philadelphia. In addition, a list of 53 key questions was compiled, published, and publicized to spark public debate and facilitate informed input. The Board has convened additional town hall meetings around the country in recent weeks to raise awareness about cybersecurity issues, and to solicit and receive the views and input of concerned citizens regarding the Strategy. Town hall meetings were held in Boston, MA (October 14), Pittsburgh, PA (October 24), and New York, NY (November 7), and will be held in Phoenix, AZ (November 14). For further information about specific town hall meetings, see
At the time of the release of the Strategy and in a subsequent
By this Notice, the Board solicits further comments and views from the public on the draft Strategy and the first and subsequent official releases of the Strategy, notwithstanding the November 18, 2002 deadline. The Board will consider all comments and, as appropriate, reflect those comments as appropriate into the initial or subsequent versions of the official Strategy. There is no guarantee, however, that comments submitted after the November 18, 2002 deadline will be considered for the current draft of the strategy. Comments not considered for this draft will be reflected in subsequent drafts.
The most efficient way to provide public comment is to do so online through the feedback link at
Those preferring to submit their comments by hard copy (preferably with an accompanying electronic version of the comment) should send them to: PCIPB/ Strategy Public Comment; The White House; Washington, DC 20502. The Board will consider all relevant comments in the further development of the Strategy. However, there are no plans to respond individually to each comment.
Federal Communications Commission.
Notice of meeting.
In accordance with the Federal Advisory Committee Act, this notice advises interested persons of a meeting of the Media Security and Reliability Council (Council). The meeting will be held at the Federal Communications Commission in Washington, DC.
Wednesday, May 28, 2003 at 10:00 a.m. to 11:30 a.m.
Federal Communications Commission, 445 12th St. SW Room TW-C305, Washington, DC.
Barbara Kreisman at 202-418-1600 or TTY 202-418-7172.
The Council was established by the Federal Communications Commission to bring together leaders of the broadcast and multichannel video programming distribution industries and experts from consumer, public safety and other organizations to explore and recommend measures that would enhance the security and reliability of media facilities and services.
The Council will receive mid-term reports and potential initial recommendations from its working groups. The Council may also discuss such other matters as come before it at the meeting. Members of the general public may attend the meeting. The Federal Communications Commission will attempt to accommodate as many people as possible. Admittance, however, will be limited to the seating available. The public may submit written comments before the meeting to Barbara Kreisman, the Commission's Designated Federal Officer for the Media Security and Reliability Council, by email (
Petition for Reconsideration has been filed in the Commission's rulemaking proceeding listed in this Public Notice and published pursuant to 47 CFR Section 1.429(e). The full text of this document is available for viewing and copying in Room CY-A257, 445 12th Street, SW., Washington, DC or may be purchased from the Commission's copy contractor, Qualex International (202) 863-2893. Oppositions to this petition must be filed by December 4, 2002 See section 1.4(b) (1) of the Commission's rules (47 CFR 1.4(b) (1)). Replies to an opposition must be filed within 10 days
Federal Deposit Insurance Corporation (FDIC).
Notice of information collection to be submitted to OMB for review and approval under the Paperwork Reduction Act of 1995.
In accordance with requirements of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
1.
The Interagency Biographical and Financial Report is submitted to the FDIC by each individual director or officer of a proposed or operating financial institution applying for federal deposit insurance as a state nonmember bank. The information is used by the FDIC to evaluate the general character of bank management as required by the Federal Deposit Insurance Act.
2.
Section 36 of the Federal Deposit Insurance Act imposes auditing and reporting requirements on insured depository institutions which have total assets of $500 million or more. An interagency policy statement extended those requirements on a voluntary basis to institutions with less than $500 million.
Information about this submission, including copies of the proposed collections of information, may be obtained by calling or writing the FDIC contact listed above.
Federal Emergency Management Agency (FEMA).
Notice.
This notice amends the notice of a major disaster declaration for the State of Louisiana, (FEMA-1435-DR), dated September 27, 2002, and related determinations.
November 4, 2002.
Magda Ruiz, Response and Recovery Directorate, Federal Emergency Management Agency, Washington, DC 20472, (202) 646-2705 or
The notice of a major disaster declaration for the State of Louisiana is hereby amended to include the following area among those areas determined to have been adversely affected by the catastrophe declared a major disaster by the President in his declaration of September 27, 2002:
Federal Emergency Management Agency (FEMA).
Notice.
This is a notice of the Presidential declaration of a major disaster for the State of Texas (FEMA-
November 5, 2002.
Magda Ruiz, Response and Recovery Directorate, Federal Emergency Management Agency, Washington, DC 20472, (202) 646-2705 or Magda.Ruiz@fema.gov.
Notice is hereby given that, in a letter dated November 5, 2002, the President declared a major disaster under the authority of the Robert T. Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C. 5121-5206 (the Stafford Act), as follows:
I have determined that the damage in certain areas of the State of Texas, resulting from severe storms, tornadoes, and flooding on October 24, 2002, and continuing, is of sufficient severity and magnitude to warrant a major disaster declaration under the Robert T. Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C. 5121-5206 (the Stafford Act). I, therefore, declare that such a major disaster exists in the State of Texas.
In order to provide Federal assistance, you are hereby authorized to allocate from funds available for these purposes, such amounts as you find necessary for Federal disaster assistance and administrative expenses.
You are authorized to provide Individual Assistance in the designated areas and any other forms of assistance under the Stafford Act you may deem appropriate. Direct Federal assistance is authorized. Consistent with the requirement that Federal assistance be supplemental, any Federal funds provided under the Stafford Act for Other Needs Assistance under Section 408 of the Stafford Act will be limited to 75 percent of the total eligible costs. If Public Assistance and Hazard Mitigation are later requested and warranted, Federal funds provided under each program will also be limited to 75 percent of the total eligible costs.
Further, you are authorized to make changes to this declaration to the extent allowable under the Stafford Act.
The time period prescribed for the implementation of section 310(a), Priority to Certain Applications for Public Facility and Public Housing Assistance, 42 U.S.C. 5153, shall be for a period not to exceed six months after the date of this declaration.
Notice is hereby given that pursuant to the authority vested in the Director of the Federal Emergency Management Agency under Executive Order 12148, I hereby appoint Sandra L. Coachman of the Federal Emergency Management Agency to act as the Federal Coordinating Officer for this declared disaster.
I do hereby determine the following area of the State of Texas to have been affected adversely by this declared major disaster:
Federal Emergency Management Agency (FEMA).
Notice.
This notice amends the notice of a major disaster declaration for the State of Texas, (FEMA-1439-DR), dated November 5, 2002, and related determinations.
November 8, 2002.
Magda Ruiz, Response and Recovery Directorate, Federal Emergency Management Agency, Washington, DC 20472, (202) 646-2705 or
The notice of a major disaster declaration for the State of Texas is hereby amended to include the following areas among those areas determined to have been adversely affected by the catastrophe declared a major disaster by the President in his declaration of November 5, 2002:
The notificants listed below have applied under the Change in Bank Control Act (12 U.S.C. 1817(j)) and § 225.41 of the Board’s Regulation Y (12 CFR 225.41) to acquire a bank or bank holding company. The factors that are considered in acting on the notices are set forth in paragraph 7 of the Act (12 U.S.C. 1817(j)(7)).
The notices are available for immediate inspection at the Federal Reserve Bank indicated. The notices also will be available for inspection at the office of the Board of Governors. Interested persons may express their views in writing to the Reserve Bank indicated for that notice or to the offices of the Board of Governors. Comments must be received not later than December 3, 2002.
Board of Governors of the Federal Reserve System, November 13, 2002.
The companies listed in this notice have applied to the Board for approval, pursuant to the Bank Holding Company Act of 1956 (12 U.S.C. 1841
The applications listed below, as well as other related filings required by the Board, are available for immediate inspection at the Federal Reserve Bank indicated. The application also will be available for inspection at the offices of the Board of Governors. Interested persons may express their views in writing on the standards enumerated in the BHC Act (12 U.S.C. 1842(c)). If the proposal also involves the acquisition of a nonbanking company, the review also includes whether the acquisition of the nonbanking company complies with the standards in section 4 of the BHC Act (12 U.S.C. 1843). Unless otherwise noted, nonbanking activities will be conducted throughout the United States. Additional information on all bank holding companies may be obtained from the National Information Center website at www.ffiec.gov/nic/.
Unless otherwise noted, comments regarding each of these applications must be received at the Reserve Bank indicated or the offices of the Board of Governors not later than December 13, 2002.
Board of Governors of the Federal Reserve System, November 13, 2002.
9 a.m. (EST) November 18, 2002.
4th Floor, Conference Room, 1250 H Street NW., Washington, DC
Parts will be open to the public and parts closed to the public.
1. Approval of the minutes of the October 21, 2002, Board member meeting.
2. Thrift Savings Plan activity report by the Executive Director.
3. Review of KPMG LLP audit reports:
U.S. Department of Treasury Operations relating to the Thrift Savings Plan Investments in the Government Securities Investment Fund
System Enhancement and Software Change Controls of the Thrift Savings Plan at the United States Department of Agriculture, National Finance Center
Administrative Review of the Thrift Savings Plan Legacy System Subsystems at the United States Department of Agriculture, National Finance Center
Pre-Implementation Review of the New Thrift Savings Plan Record Keeping System
Preliminary Report on the Thrift Savings Plan's Retention of the National Finance Center as Record Keeper
4. Semiannual review of status of audit recommendations.
5. Labor Department audit briefing.
6. Quarterly investment policy review.
7. Annual ethics briefing.
1. Discussion of litigation.
2. Discussion of personnel matter.
Thomas J. Trabucco, Director, Office of External Affairs, (202) 942-1640.
Section 30.13 of the Department of Health and Human Services' claims collection regulations (45 CFR part 30) provides that the Secretary shall charge an annual rate of interest as fixed by the Secretary of the Treasury after taking into consideration private consumer rates of interest prevailing on the date that HHS becomes entitled to recovery. The rate generally cannot be lower than the Department of Treasury's current value of funds rate or the applicable rate determined from the “Schedule of Certified Interest Rates with Range of Maturities.” This rate may be revised quarterly by the Secretary of the Treasury and shall be published quarterly by the Department of Health and Human Services in the
The Secretary of the Treasury has certified a rate of 11
In FR Document Number 02-28880 appearing on page 68874 in the issue for Wednesday, November 13, 2002, the meeting of the President's Advisory Commission on Asian Americans and Pacific islanders scheduled for Friday, November 22, 2002 from 10 a.m.-5 p.m. EST at the Key Bridge Marriott, 1401 Lee Highway, Arlington, VA 22209, has been cancelled.
The NEW program report provides information on the activities and accomplishments of grantees' NEW programs. The NEW program report and instructions specify the program data that NEW grantees report annually.
In compliance with the requirements of section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995, the Administration for Children and Families is soliciting public comment on the specific aspects of the information collection described above. Copes of the proposed collection of information can be obtained and comments may be forwarded by writing to the Administration for Children and Families, Office of Administration, Office of Information Services, 370 L'Enfant Promenade, SW., Washington, DC 20447, Attn: ACF Reports Clearance Officer. All requests should be identified by the title of the information collection.
The Department specifically requests comments on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden of the proposed collection of information; (c) the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection on respondents, including through the use of automated collection techniques or other forms of information technology. Consideration will be given to comments and suggestions submitted within 60 days of this publication.
In compliance with the requirements of section 3506(c)(21)(A) of the Paperwork Reduction Act of 1995, the Administration for Children and Families is soliciting public comment on the specific aspects of the information collection described above. Copies of the proposed collection of information can be obtained and comments may be forwarded by writing to the Administration for Children and Families, Office of Administration, Office of Information Services, 370 L'Enfant Promenade, SW., Washington, DC 20477, Attn: ACF Reports Clearance Officer. All requests should be
The Department specifically requests comments on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden of the proposed collection of information; (c) 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. Consideration will be given to comments and suggestions submitted within 60 days of this publication.
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is announcing that the proposed collection of information has been submitted to the Office of Management and Budget (OMB) for review and clearance under the Paperwork Reduction Act of 1995.
Submit written comments on the collection of information by December 19, 2002.
Submit written comments on the collection of information to the Office of Information and Regulatory Affairs, OMB, New Executive Office Bldg., 725 17th St. NW., rm. 10235, Washington, DC 20503, Attn: Stuart Shapiro, Desk Officer for FDA.
JonnaLynn P. Capezzuto, Office of Information Resources Management (HFA-250), Food and Drug Administration, 5600 Fishers Lane, Rockville, MD 20857, 301-827-4659.
In compliance with 44 U.S.C. 3507, FDA has submitted the following proposed collection of information to OMB for review and clearance.
Under section 510 of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 360), any person owning or operating an establishment that manufactures, prepares, propagates, compounds, or processes a drug or device must register with the Secretary of Health and Human Services, on or before December 31 of each year, his or her name, place of business and all such establishments, and submit, among other information, a listing of all drug or device products manufactured, prepared, propagated, compounded, or processed by him or her for commercial distribution. In part 607 (21 CFR part 607), FDA has issued regulations implementing these requirements for manufacturers of human and products. Section 607.20(a) requires certain establishments that engage in the manufacture of products to register and to submit a list of products in commercial distribution. Section 607.21 requires the establishments entering into the manufacturing of products to register within 5 days after beginning such operation and to submit a product listing at that time. In addition, establishments are required to register annually between November 15 and December 31 and update their product listing every June and December. Section 607.22 requires the use of Form FDA 2830 for registration and product listing. Section 607.25 indicates the information required for establishment registration and product listing. Section 607.26 requires certain changes to be submitted as an amendment to the establishment registration within 5 days of such changes. Section 607.30 requires establishments to update, as needed, their product listing information every June and at the annual registration. Section 607.31 requires that additional product listing information be provided upon FDA request. Section 607.40 requires foreign product establishments to register and submit the product listing information, the name and address of the establishment, and the name of the individual responsible for submitting product listing information. Among other uses, this information assists FDA in its inspections of facilities, and its collection is essential to the overall regulatory scheme designed to ensure the safety of the nation's supply. Form FDA 2830, Establishment Registration and Product Listing, is used to collect this information. The likely respondents are banks, collection facilities, and component manufacturing facilities. FDA estimates the burden of this collection of information based upon the database and past experience of the Center for Biologics Evaluation and Research, Division of Applications in regulatory establishment registration and product listing. Most banks are familiar with the regulations and registration requirements to fill out this form.
In the
The comment stated that we underestimated the hours per response regarding the initial registration and product listing update. The comment stated that it might take up to 2 hours to complete the initial registration and 0.5 hours to complete the product listing update. We decline to change the estimates based on our review of the activities associated with completing the form. Although it may take some establishments longer to complete the form, others may complete the form more quickly. Since the reporting burden includes an estimated average of the time to complete the various activities associated with the form, we believe that the current burden estimates accurately reflect the range of time to complete the form.
The comment also requested that the annual registration process be automated so that each facility could electronically submit the form, if they desire to do so, and also requested that we continue to send a hard copy of the form and instructions as a reminder to registrants to re-register. We are currently in the process of setting up a program for electronic registration. Use of the electronic system will be voluntary. We intend to continue sending a hard copy of the form and instructions for the foreseeable future.
Pursuant to section 10(a) of the Federal Advisory Committee Act, as amended (5 U.S.C. Appendix 2), notice is hereby given of a meeting of the Advisory Committee to the Director, National Cancer Institute.
The meeting will be open to the public, with attendance limited to space available. Individuals who plan to attend and need special assistance, such as sign language interpretation or other reasonable accommodations should notify the Contact Person listed below in advance of the meeting.
Information is also available on the Institute's/Center's home page;
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. Appendix 2), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C, as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
This notice is being published less than 15 days prior to the meeting due to the timing limitations imposed by the review and funding cycle.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. Appendix (2), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C. as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. Appendix 2), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. Appendix 2), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. Appendix 2), notice is hereby given of a meeting of the Board of Scientific Counselors, NICHD.
The meeting will be open to the public as indicated below, with attendance limited to space available. Individuals who plan to attend and need special assistance, such as sign language interpretation or other reasonable accommodations, should notify the Contact Person listed below in advance of the meeting.
The meeting will be closed to the public as indicated below in accordance with the provisions set forth in section 552b(c)(6), Title 5 U.S.C., as amended for the review, discussion, and evaluation of individual intramural programs and projects conducted by the National Institute of Child Health and Human Development, including consideration of personnel qualifications and performance, and the competence of individual investigators, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Information is also available on the Institute's/Center's home page: www.nichd.nih.gov/about/bsd/htm, where an agenda and any additional information for the meeting will be posted when available.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. Appendix 2), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
This notice is being published less than 15 days prior to the meeting due to the timing limitations imposed by the review and funding cycle.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. Appendix 2), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. Appendix 2), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. Appendix 2), notice is hereby given of a meeting of the Board of Scientific Counselors, NIAMS.
The meeting will be closed to the public as indicated below in accordance with the provisions set forth in section 552b(c)(6), Title 5 U.S.C., as amended for the review, discussion, and evaluation of individual intramural programs and projects conducted by the National Institute of Arthritis and Musculoskeletal and Skin Diseases, including consideration of personnel qualifications and performance, and the competence of individual investigators, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
This notice is being published less than 15 days prior to the meeting due to the timing limitations imposed by the intramural review cycle.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. Appendix 2), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
This notice is being published less than 15 days prior to the meeting due to the timing limitations imposed by the review and funding cycle.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. Appendix 2), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. Appendix 2), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. Appendix 2), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(a) of the Federal Advisory Committee Act, as amended (5 U.S.C. Appendix 2), notice is hereby given of a meeting of the AIDS Research Advisory Committee, NIAID.
The meeting will be open to the public, with attendance limited to space available. Individuals who plan to attend and need special assistance, such as sign language interpretation or other reasonable accommodations, should notify the Contact Person listed below in advance of the meeting.
In the interest of security, NIH has instituted stringent procedures for entrance into the building by non-government employees. Persons without a government I.D. will need to show a photo I.D. and sign-in at the security desk upon entering the building.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. Appendix 2), notice is hereby given of meetings of the National Advisory Allergy and Infectious Disease Council.
The meetings will be open to the public as indicated below, with attendance limited to space available. Individuals who plan to attend and need special assistance, such as sign language interpretation or other reasonable accommodations, should notify the Contact Person listed below in advance of the meeting.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Information is also available on the Institute's/Center's home page:
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. Appendix 2), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. Appendix 2), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. Appendix 2), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Notice is hereby given of a change in the meeting of the National Library of Medicine Special Emphasis Panel, November 18, 2002, 9 a.m. to November 19, 2002, 5 p.m., which was published in the
The meeting will be rescheduled to January 13-14, 2003, to allow for sufficient time for an optimal review process. The meeting is closed to the public.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. Appendix 2), notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
This notice is being published less than 15 days prior to the meeting due to the timing limitations imposed by the review and funding cycle.
This notice is being published less than 15 days prior to the meeting due to the timing limitations imposed by the review and funding cycle.
This notice is being published less than 15 days prior to the meeting due to the timing limitations imposed by the review and funding cycle.
This notice is being published less than 15 days prior to the meeting due to the timing limitations imposed by the review and funding cycles.
This notice is being published less than 15 days prior to the meeting due to the timing limitations imposed by the review and funding cycles.
Notice is hereby given of a change in the meeting of the Center for Scientific Review Special Emphasis Panel, November 12, 2002, 1:10 pm to November 12, 2002, 3:30 pm, which was published in the
The meeting will be held December 2, 2002, from 3 pm to 5 pm. The location remains the same. The meeting is closed to the public.
Substance Abuse and Mental Health Services Administration, HHS.
Notice of funding availability for grant program to provide substance abuse treatment and reentry services to sentenced juveniles and young offenders returning to the community from the criminal justice system (short title: Young Offender Reentry Program).
The Substance Abuse and Mental Health Services Administration (SAMHSA) Center for Substance Abuse Treatment(CSAT) announces the availability of FY 2003 funds for grants for the following activity. This notice is not a complete description of the activity; potential applicants
The actual amount available for the award may vary, depending on unanticipated program requirements and the number and quality of applications received. This program is being announced prior to the annual appropriation for FY 2003 for SAMHSA's programs. Applications are invited based on the assumption that sufficient funds will be appropriated for FY 2003 to permit funding of a reasonable number of applications being hereby solicited. This program is being announced in order to allow applicants sufficient time to plan and prepare applications. Solicitation of applications in advance of a final appropriation will also enable the award of appropriated grant funds in an expeditious manner and thus allow prompt implementation and evaluation of promising practices. All applicants are reminded, however, that we cannot guarantee sufficient funds will be appropriated to permit SAMHSA to fund any applications. This program is authorized under section 509 of the Public Health Service Act. SAMHSA's policies and procedures for peer review and Advisory Council review of grant and cooperative agreement applications were published in the
The PHS 5161-1 application form and the full text of the grant announcement are also available electronically via SAMHSA's World Wide Web home page:
When requesting an application kit, the applicant must specify the particular announcement number for which detailed information is desired. All information necessary to apply, including where to submit applications and application deadline instructions, are included in the application kit.
For questions regarding grants management issues, contact: Steve Hudak, Division of Grants Management, OPS/SAMHSA, Rockwall II, 6th floor, 5600 Fishers Lane, Rockville, MD 20857. (301) 443-9666. E-Mail:
Community-based nongovernmental service providers who are not transmitting their applications through the State must submit a PHSIS to the head(s) of the appropriate State and local health agencies in the area(s) to be affected not later than the pertinent receipt date for applications. This PHSIS consists of the following information:
a. A copy of the face page of the application (standard Form 424).
b. A summary of the project (PHSIS), not to exceed one page, which provides:
(1) A description of the population to be served.
(2) A summary of the services to be provided.
(3) A description of the coordination planned with the appropriate State or local health agencies.
State and local governments and Indian Tribal Authority applicants are not subject to the Public Health System Reporting Requirements. Application guidance materials will specify if a particular FY 2003 activity is subject to the Public Health System Reporting Requirements.
The due date for State review process recommendations is no later than 60 days after the specified deadline date for the receipt of applications. SAMHSA does not guarantee to accommodate or explain SPOC comments that are received after the 60-day cut-off.
Fish and Wildlife Service, Interior.
Notice; request for comments.
The U.S. Fish and Wildlife Service will submit the collection of information listed below to OMB for approval under the provisions of the Paperwork Reduction Act. A copy of the information collection requirement is included in this notice. If you wish to obtain copies of the proposed information collection requirement, related forms, and explanatory material, contact the Service Information
We accept comments until January 21, 2003.
Mail your comments on the requirement to Anissa Craghead, Information Collection Clearance Officer, U.S. Fish and Wildlife Service, ms 222-ARLSQ, 4401 N. Fairfax Drive, Arlington, VA 22203; or e-mail
To request a copy of the information collection request, explanatory information, and related forms, contact by phone at Anissa Craghead at(703) 358-2445, or electronically at Anissa_Craghead@fws.gov.
The Office of Management and Budget (OMB) regulations at 5 CFR 1320, which implement provisions of the Paperwork Reduction Act of 1995 (Pub. L. 104-13), require that interested members of the public and affected agencies have an opportunity to comment on information collection and recordkeeping activities (see CFR 1320.8(d)). The U.S. Fish and Wildlife Service (We) plan to submit a request to OMB to renew its approval of the collection of information for the Sandhill Crane Harvest Survey. We are requesting a 3-year term of approval for this information collection activity.
Federal agencies may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number. The OMB control number for this collection of information is 1018-0023.
Migratory Bird Treaty Act (16 U.S.C. 703-711) and Fish and Wildlife Act of 1956 (16 U.S.C. 742d) designate the Department of the Interior as the key agency responsible for the wise management of migratory bird populations frequenting the United States and for the setting of hunting regulations that allow appropriate harvests that are within the guidelines that will allow for those populations' well being. These responsibilities dictate the gathering of accurate data on various characteristics of migratory bird harvest. Knowledge attained by determining harvests and harvest rates of migratory game birds is used to regulate populations (by promulgating hunting regulations) and to encourage hunting opportunity, especially where crop depredations are chronic and/or lightly harvested populations occur. Based on information from harvest surveys, hunting regulations can be adjusted as needed to optimize harvests at levels that provide a maximum of hunting recreation while keeping populations at desired levels.
This information collection approval request seeks approval for us to continue conducting the Sandhill Crane Harvest Survey. This is an annual questionnaire survey of people who obtained a sandhill crane hunting permit. At the end of the hunting season, we randomly select a sample of permit holders and send those people a questionnaire that asks them to report the date, State, county, and number of birds harvested for each of their sandhill crane hunts. Their responses provide estimates of the temporal and geographic distribution of the harvest as well as the average harvest per hunter, which, combined with the total number of sandhill crane permits issued, enables the Service to estimate the total harvest of sandhill cranes.
The Sandhill Crane Harvest Survey enables us to annually estimate the magnitude of the harvest and the portion it constitutes of the total mid-continent sandhill crane population. Based on information from this survey, hunting regulations are adjusted as needed to optimize harvest at levels that provide a maximum of hunting recreation while keeping populations at desired levels.
We invite comments concerning this renewal on: (1) Whether the collection of information is necessary for the proper performance of our migratory bird management functions, including whether the information will have practical utility; (2) the accuracy of our estimate of the burden of the collection of information; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and, (4) ways to minimize the burden of the collection of information on respondents. The information collections in this program are part of a system of record covered by the Privacy Act (5 U.S.C 552(a)).
Fish and Wildlife Service, Interior.
Notice; extension of the due date.
We, the U.S. Fish and Wildlife Service (Service), announce a due-date extension for submission of project proposals for Federal assistance under the fiscal year 2002 Private Stewardship Grants Program (PSGP). Project proposals must now be submitted to the appropriate Service Regional Office by January 15, 2003.
Project proposals must be received by the appropriate Regional Office (
For additional information contact the Service's Regional Office that has the responsibility for the State or Territory in which the proposed project would occur. The contact information for each Regional Office is listed in Table 1 under
To submit a project proposal send your project proposals to the Service's Regional Office that has the responsibility for the State or Territory in which the proposed project would occur (see Table 1 under
The Program Contact in the appropriate Regional Office identified in Table 1 under
On October 1, 2002, we published in the
You must follow the instructions in the October 1, 2002,
This notice is published under the authority of the Department of the Interior and Related Agencies Appropriations Act, 2002, H.R. 2217/Public Law 107-63.
Bureau of Land Management (BLM), DOI.
Notice of availability.
Pursuant to Section 102(2)(C) of the National Environmental Policy Act of 1969, the Bureau of Land Management (BLM), Coos Bay District, directed the preparation of an EIS by Biological Information Specialists, Inc., a third party contractor, on the impacts of a proposed natural gas pipeline from near Roseburg in Douglas County, Oregon, to Coos Bay in Coos County, Oregon. BLM received a right-of-way application from the Coos County Board of Commissioners, under Section 501 of the Federal Land Policy and Management Act of October 21, 1976, (43 U.S.C. 1737) on May 17, 2000. The proposed pipeline will cross approximately 60 miles of public and private lands in Coos and Douglas Counties, Oregon. This notice initiates the public review process on the FEIS. The public is invited to review and comment on the range and adequacy of the alternatives and associated environmental effects.
The FEIS will be distributed and made available to the public approximately November 19, 2002, for a 30-day review period. Copies of the FEIS will be mailed to individuals, agencies, or companies who previously requested copies or who responded to the Bureau of Land Management on the Draft EIS. No decisions on the proposed action shall be made until at least 30 days after publication of a Notice of Availability by the Environmental Protection Agency (EPA).
Written comments should be sent to Bob Gunther, Project Coordinator, Coos Bay District, BLM, 1300 Airport Lane, North Bend, OR 97459. Documents pertinent to this proposal may be examined at the Coos Bay District Office in North Bend, Oregon and local libraries. The FEIS will also be available electronically at the BLM Coos Bay District Web site (
Bob Gunther, Project Coordinator, at address above or telephone (541-751-4295), fax: 541-751-4303, or e-mail comments to the attention of
The Coos County Board of Commissioners has applied for a right-of-way proposing to contract construction of a 12-inch natural gas transmission pipeline to be buried within the existing rights-of-ways of the Pacific Corp. (PP&L) and Bonneville Power Administration (BPA) electric transmission lines, and within the existing roadbed of the Coos Bay Wagon Road. The total length of the pipeline is approximately 60 miles, with approximately 3.0 miles located on lands administered by the BLM. The proposed pipeline would connect to the Williams Gas Pipeline at a meter facility southwest of Roseburg, in or near Section 33 Township 27 South, Range 6 West in Douglas County and would terminate at Ocean Boulevard in the city of Coos Bay (Section 27 Township 25 South, Range 13 West).
The natural gas transmission pipeline will deliver gas to distribution facilities built by Northwest Natural Gas in the communities of Coos Bay and North Bend. Smaller 6-inch or 4-inch laterals will be built off the mainline to serve the cities of Coquille, Myrtle Point, and perhaps Bandon at a later date. The location of the laterals has not been finalized, but they are anticipated to follow the location of existing powerline, State highway, or railroad rights-of-way. Locations of the distribution lines within the city limits are not known at this time, but are anticipated to be located within existing road rights-of-way.
The proposed pipeline will fall under the jurisdiction of U.S. Department of Transportation (DOT), as a natural gas transmission pipeline. It will be built and operated to all current specifications in 49 CFR Part 192 (Natural Gas Pipelines) and other relevant sections. The Oregon Public Utility Commission will administer DOT Pipeline Safety regulations for this pipeline.
The proposed pipeline will be designed with the appropriate design safety factors. The mainline is proposed as a welded steel pipeline with a Maximum Allowable Operating Pressure (MAOP) of 1,000 pounds per square inch (psi). The finished pipeline will be pressure tested to at least 150% of MAOP, to detect leakage or failure.
All construction will be done during daylight hours. Mainline construction will take about 6 months. Applicant plans to construct in the relatively dry summer months of April through October.
Pipeline construction will require a working space up to 60 feet wide. DOT requires a minimum of 30″ of cover in normal soils, 18″ in consolidated rock, 36″ under roads. The pipe will be installed to a target depth of 48″ to top of pipe. Some grading will be required to install the pipe, but shall be substantially restored to original grade before revegetation. All earth disturbance operations shall be subject to an erosion control plan to comply with U.S. Environmental Protection Agency (EPA) guidelines.
In sections along electrical transmission lines, the contractor shall be required to have and follow a plan to continuously ground the pipe, to protect workers from shock from induced currents.
Coos County plans to contract pipeline operations with an experienced pipeline operator. The County and its operator are required under DOT to formulate and use an Operations and Maintenance Plan specifically for this pipeline. The Operations and Maintenance Plan will include an Emergency Plan for specific procedures
Coos County plans to provide cathodic protection against corrosion, as required by DOT. Magnesium anodes will be placed at regular intervals along the pipeline, to sacrificially corrode and protect the coated steel pipe. This method normally mitigates most induced alternating current (AC). In sections near electrical transmission lines, supplemental anodes and other measures will be taken as necessary to minimize induced AC on the pipeline.
Long-term pipeline operation will require approximately 40 feet of space to be kept clear of larger brush and trees. Access roads to the BPA corridor will be restored as needed for pipeline construction and access for Operations and Maintenance.
After the initial pipeline construction period, there is no need to ever excavate any particular segment of pipe. Annual maintenance consists of checking depth of pipe in roadways, repairing any soil erosion, controlling brush, replacing line markers, painting and operating block valves, conducting leak surveys, and checking the effectiveness of the corrosion control system.
The Draft EIS was issued in December 2001. EPA published its Notice of Availability on January 25, 2002, with the formal public comment period closing on March 25, 2002. Thirty-nine comment letters were received. Comments have been analyzed, and appropriate changes have been made in the FEIS. Public comments have been summarized and printed in the FEIS along with BLM's responses.
A Notice of Availability for the Record of Decision on the project will be published at a later date.
Pursuant to § 102(2)(c) of the National Environmental Policy Act of 1969 (Pub. L. 91-190, as amended), the National Park Service, Department of the Interior, has prepared a final environmental impact statement assessing the potential impacts of the proposed General Management Plan (GMP) for Santa Monica Mountains National Recreation Area. This conservation planning and environmental impact analysis effort to date has identified and analyzed five alternatives (and appropriate mitigation strategies) for the management and use of the Santa Monica Mountains National Recreation Area over the next 15 to 20 years.
Copies of the Final EIS
If individuals responding to this notice request that their name and/or address be withheld from public disclosure, it will be honored to the extent allowable by law. Such requests must be stated prominently in the beginning of such responses. There may also be circumstances wherein the NPS will withhold a respondent's identity as allowable by law. As always: NPS will make available to public inspection all submissions from organizations or businesses and from persons identifying themselves as representatives or officials of organizations and business; and, anonymous comments may not be considered.
In accord with § 102(c) of the National Environmental Policy Act of 1969 (42 U.S.C. 4321,
All individuals, organizations, agencies, American Indian tribes, and other interested parties with information pertinent to preparation of the GMP are encouraged to contact the Superintendent, Minidoka Internment National Monument. To be considered, comments must be postmarked or transmitted no later than December 31, 2002.
All comments received will become part of the public record. If individuals submitting comments request that their name or/and address be withheld from public disclosure, it will be honored to the extent allowable by law. Such requests must be stated prominently in the beginning of the comments. There also may be circumstances wherein the NPS will withhold a respondent's identity as allowable by law. As always, NPS will make available to public inspection all submissions from organizations or businesses and from persons identifying themselves as representatives or officials of organizations and businesses; and, anonymous comments may not be considered.
Bureau of Reclamation, Interior.
Notice of data collection submission.
In compliance with the Paperwork Reduction Act (44 U.S.C. 3501 et seq.), this notice announces that the Information Collection Request (ICR) abstracted below has been forwarded to the Office of Management and Budget (OMB) for review and comment. The ICR describes the nature of the information collection and its expected cost and burden.
Comments must be submitted on or before December 19, 2002. OMB has up to 60 days to approve or disapprove this information collection, but may respond after 30 days; therefore, public comment should be submitted to OMB within 30 days in order to assure maximum consideration.
Comments on this information collection should be submitted to the Office of Information and Regulatory Affairs, Office of Management and Budget, Attention: Desk Officer for the Department of the Interior, 725 17th Street, NW., Washington DC 20503. A copy of your comments should also be directed to the Bureau of Reclamation, Attention Mr. Jeffrey Addiego, Boulder Canyon Operations Office, PO Box 61470, Boulder City, NV 89006-1470.
For further information or a copy of the proposed collection of information, contact Mr. Jeffrey Addiego, (702) 293-8525, or e-mail at
Comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of Reclamation, including whether the information shall have practical use; (b) the accuracy of Reclamation's estimated burden of the proposed collection of information; (c) ways to enhance the quality, use, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on those who are to respond, including through the use of automated collection techniques or other forms of information technology.
An Agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number. Reclamation will display a valid OMB control number on the forms.
A Federal Register notice with a 60-day comment period soliciting comments on this collection of
Our practice is to make comments, including names and home addresses of respondents, available for public review. Individual respondents may request that we withhold their home address from public disclosure, which we will honor to the extent allowable by law. There also may be circumstances in which we would withhold a respondent's identity from public disclosure, as allowable by law. If you wish us to withhold your name and/or address, you must state this prominently at the beginning of your comment. We will make all submissions from organizations or businesses, and from individuals identifying themselves as representatives or officials of organizations or businesses, available for public disclosure in their entirety.
Office of the Secretary of Labor.
Notice of meeting of the President's Council on the 21st Century Workforce and meeting of Committees.
Pursuant to Executive Order 13218, the Secretary of Labor will hold a meeting of the President's Council on the 21st Century Workforce, hereafter (The Council). This is the second meeting of The Council and its Committees on the Skills Gap, Changing Demographics, and Workplace Issues. The Council and Committees will provide information and advice to the President, through the Secretary of Labor and the Office of the 21st Century Workforce, on issues guided by Executive Order 13218.
The Council and the Committees will meet on November 21, 2002 from 8:30 a.m. to approximately 2 p.m. The location of the meeting will be the Secretary's Conference Room, U.S. Department of Labor, Francis Perkins Building, 200 Constitution Avenue, NW., Washington, DC 20210.
Shelley Hymes, Director, Office of the 21st Century Workforce, U.S. Department of Labor, Room S-2235, 200 Constitution Avenue, NW., Washington, DC 20210. The contact telephone number is (202) 693-6490.
The meeting is open to the public. The agenda for this meeting includes:
• Welcome and remarks by U.S. Secretary of Labor Elaine L. Chao
• Welcome and remarks by the Director of the Office of the 21st Century Workforce
• Briefing by Department of Labor (DOL) Officials;
• Committee meeting on the Skills Gap, Changing Demographics and Workplace Issues
An official record of the meeting will be available for public inspection in the Office of the 21st Century Workforce. All inquiries should be addressed to the Office of the 21st Century Workforce at the address and telephone number provided above.
Individuals needing special accommodations for the Council or Committee meeting should contact Shelley Hymes at 202-693-6490 before November 19, 2002.
Interested parties may submit written data, views or comments, preferably 20 copies, to Shelley Hymes at the address listed above. The Office of the 21st Century Workforce will forward submissions received prior to the meeting to the appropriate Council or Committees and will include each submission in the record of the meeting.
Due to unforeseen administrative delay, we are unable to provide the full 15 days of advanced notice of this meeting.
Legal Services Corporation.
Announcement of adoption of revised rulemaking protocol.
This notice sets forth the text of a revised rulemaking protocol adopted by the LSC Board of Directors which will govern LSC rulemaking activites.
This Rulemaking Protocol became effective upon its adoption at the LSC Board of Directors Meeting on November 9, 2002.
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);
The Legal Services Corporation is authorized by Congress to issue regulations as necessary to carry out its mission.
Throughout its history, LSC has conducted its rulemaking in compliance with the statutory requirements described above, but has not had a written statement of the Board of Directors (“Board”) setting forth the procedures to be followed in the course of LSC rulemaking activities. The Board determined that, while there is no legal requirement for LSC to have a written protocol related to rulemaking, having one would serve to advance LSC's policy of conducting its rulemaking activities in a spirit of cooperative dialog with our recipients and other interested parties. Accordingly, on September 18, 2000, at a meeting of its Board of Directors, the Legal Services Corporation adopted a new Rulemaking Protocol to govern its rulemaking activities.
At its September 2002 meeting, the Board discussed how the Rulemaking Protocol and how rulemaking has proceeded under the Protocol, citing concerns over cost of the Negotiated Rulemakings being undertaken while endorsing the collaborative rulemaking approach promoted by the Protocol. The Board requested that staff provide at the next meeting a report detailing experience with the Rulemaking Protocol, to date, and recommending changes, as necessary to improve the Protocol. The requested report, including proposed changes to the
It should be noted that, since this Protocol is a statement of LSC internal procedure and is not a “rule, regulation, guideline or instruction,” LSC is not required by law to publish this Protocol or seek public comment. LSC is choosing to publish this Protocol in the
This Rulemaking Protocol is intended to reflect the policy of LSC to conduct its rulemaking activities in a spirit of cooperative dialog with our recipients and other interested parties
1. Enhanced implementation of the will of Congress as expressed in the LSC Act, amendments thereto and other statutory enactments;
2. Increased public participation in the manner and method in which LSC promulgates rules;
3. The adoption of procedures that reflect the best practices in rulemaking as articulated in the Administrative Procedures Act, the Negotiated Rulemaking Act of 1990 and Executive Order 12866;
4. Implementation of LSC's strategic initiatives as set forth in Strategic Directions, 2000-2005 (adopted January 29, 2000);
5. Formalization of LSC's policies governing rulemaking and specifically reserving specific responsibilities and authorities unto the Board; and
6. Development of a rulemaking protocol that is efficient and effective.
The Board, through the Operations and Regulations Committee (“Committee”), provides direction on LSC regulatory policy and establishes priorities for LSC rulemaking activities. The Committee will look to staff to effectuate LSC rulemaking policies and priorities through this Protocol. Final authority over LSC rulemaking policies and actions rests with the Board.
The impetus for a rulemaking
In most instances,
Once the ROP is developed and approved by the LSC President, it will be submitted to the Committee. The Committee will have the opportunity to deliberate and determine whether to recommend to the Board that the Board initiate a rulemaking. If the Committee recommends that the Board initiate a rulemaking, the Committee deliberations will also provide an opportunity for the Committee to recommend policy direction on the scope and issues expected to be involved in the rulemaking. As noted above, the Board will make decisions regarding whether to undertake a rulemaking, the method to be used for the rulemaking, and any policy direction to be given to staff at the outset. The appropriate rulemaking process shall be selected on a case-by-case basis consistent with the objectives of this Protocol.
If the Board decides to undertake a rulemaking, notice that a rulemaking proceeding has begun will be posted on the LSC website, indicating the subject matter of the rulemaking and whether the rulemaking will be accomplished through Notice and Comment, including whether the Corporation anticipates holding a Rulemaking Workshop, or be Negotiated. In addition to website notice, notice by mail will also be given those who have previously requested such notice and are included in the Corporation's mailing list dedicated to that purpose.
In Notice and Comment Rulemaking, LSC develops rulemaking proposals and receives comment on them in writing and at certain publicly designated meetings of the Committee. As an adjunct to the Notice and Comment Process, LSC will, when appropriate, conduct Rulemaking Workshops. Rulemaking Workshops will enable LSC Board members and staff to meet with stakeholders prior to the development of a draft NPRM to discuss, but not negotiate, LSC rules and regulations. LSC believes the Notice and Comment process, including Rulemaking Workshops, will allow for an effective dialog between LSC and its recipients and other interested parties, in those instances in which Negotiated Rulemaking is not used.
When the Board has decided to initiate a rulemaking and to conduct a Rulemaking Workshop, OLA will work with the Board and staff to select a date for the Rulemaking Workshop and will invite participants from the interested stakeholder community. The Workshop will be a meeting at which the participants hold open discussions designed to elicit information about problems or concerns with the regulation (or certain aspects thereof) and provide an opportunity for sharing ideas regarding how to address those issues. The Workshop is not intended to develop detailed alternatives or to obtain consensus on regulatory proposals. Upon the conclusion of the Workshop, the Board shall provide LSC staff with policy guidance on the issues discussed to aid staff in the development of the Draft Notice of Proposed Rulemaking (“NPRM”).
OLA will have the primary responsibility for the drafting of the Draft NPRM, which includes both the proposed regulatory text and the proposed preamble, working with management, appropriate staff and the Office of Inspector General (“OIG”). The Draft NPRM will be shared with the OIG for review and comment. The Draft NPRM will be submitted to the President. The President may then approve the Draft NPRM for submission to the Committee for its consideration or return the Draft NPRM to OLA for revisions as necessary.
Once approved, the Draft NPRM will be set for consideration by the
At the Committee meeting, management will present the Draft NPRM with the assistance of OLA and opportunity for public comment will be provided. The Committee will then deliberate and shall decide whether to publish the NPRM, return it to staff for revisions, or recommend to the Board that the Board terminate the rulemaking.
Once the NPRM has been approved, OLA will make any necessary technical revisions to document before it is published in the
Copies of all comments received will be provided to the Committee and made available to other Board Members upon request. Copies of all comments will also be placed in a public docket available for inspection and copying in the FOIA Reading Room at the Corporation's offices. Copies of comments received in electronic format, along with an index of all comments received, will be placed into an electronic docket on the LSC website.
Upon the close of the comment period, OLA will draft a Final Rule (which consists of the regulatory text and preamble).
Once approved, the draft of the Final Rule will be set for consideration by the Committee at a public meeting. The draft of the Final Rule will be provided to the Committee and the Board sufficiently in advance of the meeting to permit appropriate consideration. In addition, a notice of the meeting announcing the placement of the Final Rule on the Committee agenda will be published in the
If the draft Final Rule is approved by the Committee for review by the Board, the Board will consider the draft Final Rule and vote to adopt it, to return it to the Committee for further action, or to terminate the rulemaking. At its discretion, the Board may request the participation of members of the public during its deliberations. Once the Final Rule is adopted by the Board, OLA will make any necessary technical revisions to it and submit the final version for approval for publication to the Board's designee (for example, the Board Chair or the Committee Chair). The Final Rule will then be published in the
In a Negotiated Rulemaking, a group comprised of LSC representatives and affected and/or interested parties will meet under the direction of a trained, neutral facilitator, (“Working Group”) with the intention of developing consensus-based positions leading to regulations. The key feature of Negotiated Rulemaking is its collaborative approach, which seeks consensus where possible and decisionmaking by LSC after full dialog with the regulated community and other interested parties. LSC intends to use negotiated rulemaking in instances in which LSC believes that the Notice and Comment process, including the use of Rulemaking Workshops, will not suffice and that the Negotiated Rulemaking process is necessary to properly address complex and/or controversial issues posed by the rulemaking.
The President, in consultation with the Committee Chair, will solicit suggestions for appointment to the Working Group from the regulated community, its clients, advocates, the organized bar and other interested parties. The President, working in consultation with the Committee, acting through its Chair, will make appointments of individuals and organizations to the Working Group, including the facilitator and the OLA representative. Working Groups will have no more than 15 members, representing the diversity of the legal services community and other interested parties. All groups or organizations asked to participate in a Working Group shall be responsible for selecting and designating their representatives. No members will be appointed to a Working Group after the Working Group had held its first meeting.
The Working Group shall meet as necessary to develop a draft NPRM. The members of the Working Group will, drawing upon their substantive expertise, discuss the subjects prompting the need for rulemaking and work toward developing a consensus on solutions to the problems identified. During this process, staff will provide detailed status reports to the Committee during Committee meetings, including briefings on the substance of tentative areas of consensus and disagreement in order to provide the Committee with an opportunity to provide additional policy guidance to LSC staff (and other Working Group members in attendance at the Committee meeting) at that time.
The OLA representative on the Working Group, with the assistance of a subgroup of the membership, shall draft the regulatory language consistent with achieved consensus. The Working Group will review the regulation to ensure it reflects any consensus reached, although the Corporation retains ultimate responsibility for crafting the regulatory language.
The consensus proposal of the group, once developed, must go through the formal rulemaking process as an NPRM. At this point the Notice and Comment process described above will be followed.
On occasion it may happen that no consensus can be reached by the Working Group on a regulatory proposal or some element thereof. In those instances, the President will report this to the Committee and seek direction from the Committee, acting through its Chair, on whether to continue the rulemaking using the Notice and
National Archives and Records Administration (NARA).
Notice.
NARA is giving public notice that the agency has submitted to OMB for approval the information collections described in this notice. The public is invited to comment on the proposed information collections pursuant to the Paperwork Reduction Act of 1995.
Written comments must be submitted to OMB at the address below on or before December 19, 2002 to be assured of consideration.
Comments should be sent to: Office of Information and Regulatory Affairs, Office of Management and Budget, Attn: Ms. Brooke Dickson, Desk Officer for NARA, Washington, DC 20503.
Requests for additional information or copies of the proposed information collections and supporting statements should be directed to Tamee Fechhelm at telephone number 301-837-1694 or fax number 301-837-3213.
Pursuant to the Paperwork Reduction Act of 1995 (Pub. L. 104-13), NARA invites the general public and other Federal agencies to comment on proposed information collections. NARA published a notice of proposed collection for these information collections on August 28, 2002 (67 FR 55277 through 55279). No comments were received. NARA has submitted the described information collections to OMB for approval.
In response to this notice, comments and suggestions should address one or more of the following points: (a) Whether the proposed information collections are necessary for the proper performance of the functions of NARA; (b) the accuracy of NARA's estimate of the burden of the proposed information collections; (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 the use of information technology. In this notice, NARA is soliciting comments concerning the following information collections:
1.
2.
3.
National Credit Union Administration (NCUA).
Request for comment.
The NCUA intends to submit the following information collections to the Office of Management and Budget (OMB) for review and clearance under the Paperwork Reduction Act of 1995 (Pub. L. 104-13, 44 U.S.C. Chapter 35). These information collections are published to obtain comments from the public.
Comments will be accepted until January 21, 2003.
Interested parties are invited to submit written comments to NCUA Clearance Officer or OMB Reviewer listed below:
Copies of the information collection requests, with applicable supporting documentation, may be obtained by calling the NCUA Clearance Officer, Neil McNamara, (703) 518-6447.
Proposal for the following collection of information:
National Credit Union Administration (NCUA).
Request for comment.
The NCUA intends to submit the following information collections to the Office of Management and Budget (OMB) for review and clearance under the Paperwork Reduction Act of 1995 (Pub. L. 104-13, 44 U.S.C. Chapter 35). These information collections are published to obtain comments from the public.
Comments will be accepted until January 21, 2003.
Interested parties are invited to submit written comments to NCUA Clearance Officer or OMB Reviewer listed below:
Copies of the information collection requests, with applicable supporting documentation, may be obtained by calling the NCUA Clearance Officer, Neil McNamara, (703) 518-6447.
Proposal for the following collection of information:
National Credit Union Administration (NCUA).
Request for comment.
The NCUA intends to submit the following information collection to the Office of Management and Budget (OMB) for review and clearance under the Paperwork Reduction Act of 1995 (Pub. L. 104-13, 44 U.S.C. Chapter 35). This information collection is published to obtain comments from the public.
Comments will be accepted until January 21, 2003.
Interested parties are invited to submit written comments to NCUA Clearance Officer or OMB Reviewer listed below:
Copies of the information collection requests, with applicable supporting documentation, may be obtained by calling the: NCUA Clearance Officer, Neil McNamara, (703) 518-6447.
It is also available on the following Web site:
Proposal for the following collection of information:
By the National Credit Union Administration Board on November 14, 2002.
National Credit Union Administration (NCUA).
Request for comment.
The NCUA intends to submit the following information collection to the Office of Management and Budget (OMB) for review and clearance under the Paperwork Reduction Act of 1995 (Pub. L. 104-13, 44 U.S.C. Chapter 35). This information collection is published to obtain comments from the public.
Comments will be accepted until January 21, 2003.
Interested parties are invited to submit written comments to NCUA Clearance Officer or OMB Reviewer listed below:
Copies of the information collection requests, with applicable supporting documentation, may be obtained by calling the: NCUA Clearance Officer, Neil McNamara, (703) 518-6447. It is also available on the following Web site:
Proposal for the following collection of information:
By the National Credit Union Administration Board on November 14, 2002.
National Credit Union Administration (NCUA).
Request for comment.
The NCUA is resubmitting the following information collection to the Office of Management and Budget (OMB) for review and clearance under the Paperwork Reduction Act of 1995 (Pub. L. 104-13, 44 U.S.C. Chapter 35). This information collection is published to obtain comments from the public.
Comments will be accepted until January 21, 2003.
Interested parties are invited to submit written comments to NCUA Clearance Officer or OMB Reviewer listed below:
Copies of the information collection requests, with applicable supporting documentation, may be obtained by calling the: NCUA Clearance Officer, Neil McNamara, (703) 518-6447. It is also available on the following Web site:
Proposal for the following collection of information:
By the National Credit Union Administration Board on November 14, 2002.
National Credit Union Administration (NCUA).
Request for comment.
The NCUA intends to submit the following information collection to the Office of Management and Budget (OMB) for review and clearance under the Paperwork Reduction Act of 1995 (Pub. L. 104-13, 44 U.S.C. Chapter 35). This information collection is published to obtain comments from the public.
Comments will be accepted until January 21, 2003.
Interested parties are invited to submit written comments to NCUA Clearance Officer or OMB Reviewer listed below:
Copies of the information collection requests, with applicable supporting documentation, may be obtained by calling the: NCUA Clearance Officer, Neil McNamara, (703) 518-6447.
It is also available on the following Web site:
Proposal for the following collection of information:
By the National Credit Union Administration Board on November 14, 2002.
National Credit Union Administration (NCUA).
Request for comment.
The NCUA is resubmitting the following information collection to the Office of Management and Budget (OMB) for review and clearance under the Paperwork Reduction Act of 1995 (Pub. L. 104-13, 44 U.S.C. Chapter 35). This information collection is published to obtain comments from the public.
Comments will be accepted until January 21, 2003.
Interested parties are invited to submit written comments to NCUA Clearance Officer or OMB Reviewer listed below:
Copies of the information collection requests, with applicable supporting documentation, may be obtained by calling the: NCUA Clearance Officer, Neil McNamara, (703) 518-6447. It is also available on the following Web site:
Proposal for the following collection of information:
The U.S. Nuclear Regulatory Commission (the Commission) has granted the request of Florida Power Corporation (the licensee) to withdraw its August 14, 2002, application for proposed amendment to Facility Operating License No. DPR-72 for Crystal River, Unit No. 2, located in Citrus County, Florida.
The proposed amendment would have revised the Technical Specifications pertaining to two inoperable control complex chillers.
The Commission had previously issued a Notice of Consideration of Issuance of Amendment published in the
For further details with respect to this action, see the application for amendment dated August 14, 2002, and the licensee's letter dated October 24, 2002, which withdrew the application for license amendment. Documents may be examined, and/or copied for a fee, at the NRC's Public Document Room (PDR), located at One White Flint North, 11555 Rockville Pike (first floor), Rockville, Maryland. Publicly available records will be accessible electronically from the Agencywide Documents Access and Management Systems (ADAMS) Public Electronic Reading Room on the internet at the NRC Web site,
For the Nuclear Regulatory Commission.
The meeting of the ACRS Subcommittee on Future Plant Designs scheduled to be held on November 21, 2002, Room T-2B1, 11545 Rockville Pike, Rockville, Maryland, has been canceled due to the unavailability of documents. Notice of this meeting was published in the
Dr. Medhat M. El-Zeftawy (telephone 301-415-6889) between 7:30 a.m. and 5 p.m. (EST) or by e-mail
Nuclear Regulatory Commission.
Weeks of November 18, 25, December 2, 9, 16, 23, 2002.
Commissioners' Conference Room, 11555 Rockville Pike, Rockville, Maryland.
Public and Closed.
This meeting will be webcast live at the Web address—
There are no meetings scheduled for the Week of December 9, 2002.
This meeting will be webcast live at the Web address—
There are no meetings scheduled for the Week of December 23, 2002.
* The schedule for Commission meetings is subject to change on short notice. To verify the status of meetings call (recording)—(301) 415-1292. Contact person for more information: R. Michelle Schroll (301) 415-1662.
The NRC Commission Meeting Schedule can be found on the Internet at:
This notice is distributed by mail to several hundred subscribers; if you no longer wish to receive it, or would like to be added to the distribution, please contact the Office of Secretary, Washington, DC 20555 (301-415-1969). In addition, distribution of this meeting notice over the Internet system is available. If you are interested in receiving this Commission meeting schedule electronically, please send an electronic message to
Office of Management and Budget, Executive Office of the President.
Proposed revision to Office of Management and Budget Circular No. A-76, “Performance of Commercial Activities.”
The Office of Management and Budget (OMB) proposes major revisions to Circular No. A-76 to improve the management of commercial activities that are needed to conduct the business of government. The revisions would expand the use of public-private competitions to all activities performed in-house and through commercial inter-service support agreements (ISSAs). The revisions would also incorporate principles of the Federal Acquisition Regulation (FAR) into the competitive sourcing process, including the ability to conduct an expanded best value cost-technical trade-off source selection process. In addition, the revisions would provide guidance for the development of inventories identifying the commercial and inherently governmental activities agencies perform, and prescribe limitations regarding the reimbursable services federal agencies may provide to state and local governments.
To accomplish these changes, OMB is proposing to revise and incorporate the following documents into the revised Circular A-76: the “Revised Supplemental Handbook to OMB Circular A-76” (March 1999); OMB Circular A-76 Transmittal Memoranda Nos. 1-24; Office of Federal Procurement Policy (OFPP) Policy Letter 92-1, “Inherently Governmental Functions”; and OMB Circular A-97, “Provision of Specialized or Technical Services to State and Local Units of Government by Federal Agencies Under Title III of the Intergovernmental Cooperation Act of 1968.” The Revised Supplemental Handbook to Circular A-76 (hereafter “Supplemental Handbook”), OFPP Policy Letter 92-1 and OMB Circular A-97 would be rescinded.
Interested parties should submit comments to OFPP, Office of Management and Budget, at the address shown below on or before December 19, 2002.
Due to potential delays in OMB's receipt and processing of mail, respondents are strongly encouraged to submit comments electronically to ensure timely receipt. We cannot guarantee that comments mailed will be received before the comment closing date. Electronic comments may be submitted to:
Mr. David C. Childs, Office of Federal Procurement Policy, NEOB Room 9013, Office of Management and Budget, 725 17th Street, NW., Washington, DC 20503 (tel: (202) 395-6104).
To lower costs for taxpayers and improve program performance to citizens, OMB has undertaken major revisions to the processes and practices in OMB Circular A-76 that govern how federal agencies determine whether commercial activities will be performed by public or private sources. The proposed revisions would:
• Significantly expand the use of public-private competition by (i) eliminating exceptions that have permitted federal agencies to provide services to one another on a sole-source basis under reimbursable fee-for-service agreements (
• Make processes simpler and easier to understand, including greater reliance on concepts and practices set forth in the FAR that are familiar to, and well tested by, the acquisition community;
• Improve the effectiveness of competitions by giving agencies greater flexibility to consider quality in source selections, including the use of cost-technical tradeoffs for information technology (IT) and certain other activities;
• Improve public trust in public-private competitions by avoiding any appearance of conflicts of interest;
• Increase visibility into the management of government by requiring agencies to develop lists of their commercial and inherently governmental activities and make them available to the public; and
• Strengthen accountability for achieving results by centralizing agency oversight for the management of commercial activities and increasing the focus on post-award administration of agreements with public providers to be more consistent with practices applied to contracts with private sector providers.
Federal agencies rely on a mix of public and private sector sources to perform a wide variety of recurring commercial activities that are needed to conduct the business of government. These activities range all the way from custodial services to data collection, computer services and research, testing, and maintenance of equipment used by our nation's war fighters. OMB Circular A-76 establishes the policies and procedures for identifying commercial activities and determining whether these activities should be provided through contract with commercial service providers, by in-house government personnel, or through reimbursable fee-for-service providers under ISSAs with other government agencies.
Before an agency shifts commercial work from one sector to another (
• Develop a performance work statement (PWS);
• Create a management plan to determine the government's “most efficient organization” (MEO);
• Establish an in-house government cost estimate for the in-house plan that is then certified by an independent reviewing official (IRO) for compliance with the PWS and costing policies set forth in the Circular;
• Issue a solicitation in accordance with the FAR seeking offers from private and public sector sources, except for the in-house source, whose cost estimate is submitted and evaluated independently;
• Identify the best offer submitted in response to the solicitation and compare it to the in-house estimate; and
• Make award to the lower cost alternative (which is subject to review under an administrative appeals process).
The Circular also recognizes a variety of circumstances in which agencies are
Since its original issuance in 1966, Circular A-76 has been revised three times—in 1967, 1979, and 1983. The Supplemental Handbook, first issued in 1979, has been revised three times—in 1983, 1996 and 1999. Despite the revisions, including the development of streamlined cost comparisons for activities with 65 or fewer FTEs, the policies and processes of Circular A-76 have not been widely applied. While the Department of Defense has undertaken some noteworthy efforts, most of the 850,000 FTEs that agencies have identified as performing commercial activities (nearly half of all federal employees) remain insulated from the dynamics of competition.
A variety of factors have limited the Circular's use and effectiveness:
OMB is committed to improving significantly the processes and practices federal agencies use to determine whether commercial activities will be performed by public or private sector sources. These decisions have a direct and substantial effect on the government's ability to deliver quality service to our citizens in a cost-effective, timely, and responsible manner. Therefore, OMB is proposing major revisions to Circular A-76 to: (1) Improve and expand the use of competition in public-private sourcing decisions, (2) better ensure fairness, integrity, and transparency in the decision-making process, and (3) strengthen accountability for achieving results.
In addition to making significant substantive changes, OMB is modifying the organization of the Circular to improve clarity and ease of use. The main body of the Circular (now a two-page document) lays out the basic
The key substantive changes in the proposed revision to Circular A-76 are as follows:
This Administration's general policy is to rely on competition to select the providers of commercial activities that agencies perform in carrying out their missions. The benefits of competition are well documented. The General Accounting Office (GAO) and the Center for Naval Analysis repeatedly have concluded that subjecting larger in-house operations to competition has consistently generated cost savings exceeding 30 percent. See, e.g., Future Years Defense Program: Funding Increase and Planned Savings in Fiscal Year 2000 Program Are at Risk, GAO/NSIAD-00-11 (November 1999); Evidence on Savings from DOD A-76 Competitions, Center for Naval Analysis, CRM 98-125 (November 1998); Long-Run Costs and Performance Effects of Competitive Sourcing, Center for Naval Analysis, CRM D0002765.A2 (February 2001).
The President has identified competitive sourcing—i.e., the process of opening the government's commercial activities to the discipline of competition—as one the five main initiatives of his Management Agenda for improving the performance of government. Changes set forth in the proposed revisions to Circular A-76 are designed to facilitate broader and more strategic use of competitive sourcing as a management tool for improving agency performance.
i. Presumption that an activity is commercial. The revised Circular will require agencies to presume that all activities are commercial in nature unless an activity is justified as inherently governmental. See § 4.b. of the Circular and ¶ D.1 of Attachment A. To reinforce this presumption, agencies will be required to submit annual inventories of their inherently governmental positions. See ¶ C.3. of Attachment A. The Circular offers a more concise definition of “inherently governmental” and rescinds the more complex description contained in OFPP Letter 92-1 to achieve greater consistency in the identification of inherently governmental positions. The responsibility to develop an inherently governmental activities inventory will be in addition to the general obligation for agencies to prepare comprehensive annual inventories of their commercial activities performed by Federal activities, a requirement derived from the Federal Activities Inventory Reform (FAIR) Act (Pub. L. 105-270; 31 U.S.C. 501 note). See ¶ C.1. of Attachment A. With limited exception, the list of inherently governmental activities will be made available for public review. These additional steps should help to improve the accuracy of inventories and cast greater transparency on the government's commercial activities overall.
ii. Elimination of anti-competitive agency-to-agency arrangements. The revised Circular will eliminate the “grandfather clause” that currently permits public reimbursable service providers working under commercial ISSAs in existence prior to March 1996 to perform work indefinitely without being subject to competition. Agencies relying on public reimbursable providers will be required to develop plans for competing these commercial ISSAs within five years. All commercial ISSAs that are not competed or directly converted within this timeframe will be terminated, unless specific approval is granted by OMB's Deputy Director for Management, based on a report submitted by the head of the customer agency demonstrating why competition is not yet feasible. See ¶ B.3.of Attachment D.
In addition, customer agencies will be required to periodically test the marketplace by recompeting requirements performed by public reimbursable providers, just as they would with private sector contractors. This will help to ensure that all sources, public and private, are appropriately incentivized to perform at their best. Generally, agencies will be required to recompete commercial ISSAs every five years. The exact performance period will be identified in the ISSA or in a letter of obligation when the work is performed in house directly by the agency employees. See ¶¶ C.2.a.(5). and C.5.a.(4). and b.(2). of Attachment B.
There will be limited exceptions to the recompetition requirement. For example, commercial ISSAs will not be subject to competition if the revenue generated to the public reimbursable service provider performing under the ISSA does not exceed $1 million on an annual basis. An exemption will also be provided for inherently governmental ISSAs that, among other things, establish contracts for inter-agency use
Finally, the revised Circular will incorporate long-standing limitations imposed on federal agencies regarding the reimbursable services they provide to state and local governments. See ¶ H of Attachment D. These requirements, which are based on section 302 of the Intergovernmental Cooperation Act of 1968 (31 U.S.C. 6505), are currently implemented in OMB Circular A-97. Circular A-97 states that federal agencies may provide only specialized or technical commercial services to a state or local government if, among other things: (1) The requesting state or local government entity demonstrates that it has sought but has been unable to identify a satisfactory private sector source, (2) the provision of such specialized and technical services shall not require additional resources, beyond those necessary to meet federal requirements, and (3) the service is currently provided by the agency for its own use and, if commercial in nature, has been competed in accordance with Circular A-76. By rescinding Circular A-97 and incorporating its requirements in Circular A-76, the key policies addressing the appropriate parameters of federal performance of commercial activities will be set forth in one document.
The revised Circular requires that agencies generally comply with the FAR in conducting competitions.
• Greater uniformity in the application of basic requirements to private and in-house providers. For instance, in-house offers (referred to in the proposed Circular as “agency tenders”) will be required to respond to a solicitation within the same timeframes required of private sector offerors or public reimbursable tenders or risk elimination from the competition.
• Ability to conduct cost-technical tradeoffs in certain circumstances, largely in accordance with FAR Part 15, including the ability to eliminate an agency tender from the competitive range (see further discussion below);
• Exchanges between public tenders and the government in accordance with the general principles set forth in the FAR for exchanges between the government and the private sector.
• Post award accountability for in-house performance similar to that expected of private sector contractors. Agencies relying on an in-house provider or a public reimbursable provider will be required to document changes to the solicitation, track actual costs, and terminate for failure to perform.
The revised Circular recognizes the talents and conditions under which the federal workforce operates and the importance of providing them with adequate training and technical support during the competition process to ensure they are able to comply with the requirements of the Circular and compete effectively. In this regard, the Circular requires that the agency tender official, the PWS team, and the MEO team be assisted by specific experts, including human resources, procurement, and management experts.
Cost comparisons have been the traditional focal point of Circular A-76. Reflective of the focus of the Circular for most of its history, the term connotes a cost-only sourcing decision. While cost will always be an important consideration in sourcing decisions, and often the most important consideration, agencies should also have the ability to take quality and innovation into account, especially where needs may require complex and inter-related services. For this reason, the term “cost comparison” has been dropped from the proposed Circular and replaced with the term competition.
The new focal point will be on “standard competitions,” or direct conversions when appropriate. Recognizing that agency needs cannot be met through a “one-size-fits all” approach, the Circular's guidance is broader and more accommodating than that which was developed over the years for the conduct of cost comparisons.
For example, when conducting a standard competition, agencies will have three options for considering non-cost factors. First, an agency may conduct a low price technically acceptable source selection where the performance decision is based on the low cost of offers that have been determined to be technically acceptable.
Finally, if non-cost factors are likely to play a more dominant role, agencies may conduct an “integrated evaluation process” with cost-technical tradeoffs similar to those authorized by FAR Part 15. Like the FAR Part 15 process, private sector offers, public reimbursable providers and in-house providers may submit higher performance standards than the solicitation. If the in-house offer is not among the most highly rated proposals, it could be eliminated from the competitive range, as would be envisioned by FAR 15.306(c). The source selection authority (SSA) would be required to document its rationale for any tradeoffs as required by FAR 15.406. Given the special considerations that must be taken into account with a public-private competition, the Circular recognizes that this integrated evaluation technique may not be appropriate for all needs and should be tested before wider application is authorized. For this reason, the Circular limits usage to (1) IT activities currently performed by federal employees, (2) contracted commercial activities, new requirements, or segregable expansions where an agency tender will be submitted, or (3) any other commercial activities where the agency's assistant secretary or equivalent level official with responsibility for implementing the Circular (
The revised Circular will establish new rules to separate the team that is formed to write the solicitation from that established to develop the agency tender. In addition, the agency MEO team, directly affected personnel (and their representatives) and any individual with detailed knowledge of the MEO or agency cost estimate in the agency tender will not be allowed to be members of the SSEB.
The ultimate success of Circular A-76 to deliver results for the taxpayer requires that appropriate mechanisms be in place to ensure selected public or private sources make good on their promises. To this end, the revised Circular will:
•
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Notice is hereby given that the Securities and Exchange Commission (“SEC or “Commission”) has issued an Order, pursuant to sections 17(d)
Section 19(g)(1) of the Act
Section 17(d)(1) of the Act was intended, in part, to eliminate unnecessary multiple examinations and regulatory duplication.
To implement section 17(d)(1), the Commission adopted two rules: Rule 17d-1
On its face, Rule 17d-1 deals only with an SRO's obligations to enforce broker-dealers' compliance with the financial responsibility requirements. Rule 17d-1 does not relieve an SRO from its obligation to examine a common member for compliance with its own rules and provisions of the federal securities laws governing matters other than financial responsibility, including sales practices, and trading activities and practices.
To address regulatory duplication in these other areas, on October 28, 1976, the Commission adopted Rule 17d-2 under the Act.
On October 11, 2002, the Commission published notice of the SRO participants' amended plan for allocating regulatory responsibilities pursuant to Rule 17d-2.
The Commission continues to believe that the proposed plan, as amended, is an achievement in cooperation among the SRO participants and will reduce unnecessary regulatory duplication by allocating to the designated SRO the responsibility for certain options-related sales practice matters that would otherwise be performed by multiple SROs. The plan promotes efficiency by reducing costs to firms that are members of more than one of the SRO participants. In addition, because the SRO participants coordinate their regulatory functions in accordance with the plan, the plan promotes, and will continue to promote, investor protection.
With respect to the DOEA's ability to contract with another SRO to perform the DOEA's regulatory responsibilities under the plan, the Commission has previously recognized that contractual regulatory agreements between SROs outside of the Rule 17d-2 context may be permissible in instances where it is consistent with the public interest.
This order gives effect to the amended plan submitted to the Commission that is contained in File No. S7-966. The SRO participants shall notify all members affected by the amended plan of their rights and obligations under the amended plan.
For the Commission, by the Division of Market Regulation, pursuant to delegated authority.
On April 30, 2002, the Chicago Board Options Exchange, Inc. (“CBOE” or “Exchange”) filed with the Securities and Exchange Commission (“SEC” or “Commission”), pursuant to section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The proposed rule change was published for comment in the
Currently, CBOE Rule 24A.4(a)(4)(i) provides a maximum term of five years for FLEX index options. The CBOE proposes to amend CBOE Rule 24A.4(a)(4)(i) to provide a maximum term of up to ten years for FLEX index options, provided that the FLEX Post Official determines that sufficient liquidity exists among FLEX index participating members to support a request for a quote for such options. To determine whether sufficient liquidity exists to support a request for a quote, the FLEX Post Official will ask FLEX index market makers and other FLEX index traders (including the Submitting Member) whether they are interested in making a two-sided market in the proposed series for the size requested.
The margin requirements for the proposed FLEX index options will be the same as the margin requirements that apply currently to existing FLEX index options and to other listed options.
According to the CBOE, the Exchange has received numerous requests from broker-dealers to extend the maturity of FLEX index options to ten years to permit their institutional customers that trade or issue securities with five-to ten-year terms to hedge their long-term risk. The CBOE states that the proposal will allow institutions to use long-term FLEX
The Commission finds that the proposed rule change is consistent with the requirements of the Act and the rules and regulations thereunder applicable to a national securities exchange and, in particular, with the requirements of section 6(b) of the Act
The Commission believes that extending the permissible maturity of FLEX index options to a maximum term of up to ten years will help to meet the long-term hedging requirements of institutional investors and other market participants.
The Commission notes that a series of the proposed FLEX index options may be issued only if a FLEX Post Official determines that there is sufficient liquidity among FLEX index participating members to support the request for a quote for such options. This requirement should help to prevent the proliferation of longer term FLEX index options series where there is no interest in trading such options. In addition, as with all exchange-traded options, the OCC will act as the counter-party guarantor, thereby ensuring that obligations will be met over the long term. In approving this proposal, the Commission notes that the extension to ten years is based, in part, on the nature of the FLEX market, which is geared toward institutional investors and high net worth individuals.
For the foregoing reasons, the Commission finds that the proposal is consistent with the requirements of the Act and rules and regulations thereunder.
For the Commission, by the Division of Market Regulation, pursuant to delegated authority.
On June 11, 2002, the Chicago Board Options Exchange, Incorporated (“CBOE” or “Exchange”) submitted to the Securities and Exchange Commission (“SEC” or “Commission”), pursuant to section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
The Exchange is adopting new Rule 8.85(a)(xi) which states that, with respect to a Designated Primary Market-Maker (“DPM”) trading station utilizing a proprietary autoquote system, such DPM is obligated to assure that the CBOE AutoQuote system is maintained as a back-up autoquote system at all times during market hours. While many DPMs utilize CBOE's AutoQuote system, some DPMs have opted to use non-CBOE proprietary automated quotation updating systems. CBOE has allowed members to employ proprietary autoquote systems provided such systems are approved by the Exchange's appropriate Floor Procedure Committee. The failure of a proprietary autoquote system could result in CBOE's inability to open for an entire group of listed
The Commission finds that the proposed rule change, as amended, is consistent with section 6 of the Act
The proposed rule change removes impediments to and perfects the mechanism of a free and open market because by requiring members of the Exchange to maintain CBOE's AutoQuote system as a back-up, the Exchange provides a mechanism for ensuring the smooth and uninterrupted operation of the Exchange in the event of a failure by a member's proprietary autoquote system. Without CBOE's AutoQuote system in place as a back-up, the Exchange might be unable to open trading for an entire group of listed option classes if a proprietary autoquote system fails. Requiring members to maintain CBOE's AutoQuote system as a back-up would avoid such disruptions, which in turn would benefit investors and the public interest.
The Commission also finds that adding Rule 8.85(a)(xi) to the list of violations included in the Exchange's Minor Rule Violation Plan (“Plan”) is consistent with requirements of Section 6(b)(6) of the Act
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 Exchange is proposing to amend Rule 720 (the “Obvious Error Rule”) as it pertains to transactions in options priced under $3.00. The text of the proposed rule change is set forth below. Proposed new language is
The Exchange shall either bust a transaction or adjust the execution price of a transaction that results from an Obvious Error as provided in this Rule.
(a) Definition of Obvious Error. For purposes of this Rule only, an Obvious Error will be deemed to have occurred when:
(1) if the Theoretical Price of the option is less than $3.00[,]
(2) if the Theoretical Price of the option is $3.00 or higher:
(i) during regular market conditions (including rotations), the execution price of a transaction is higher or lower than the Theoretical Price for the series by an amount equal to at least two (2) times the maximum bid/ask spread allowed for the option, so long as such amount is 50 cents or more; or
(ii) during fast market conditions (
In its filing with the Commission, the Exchange included statements concerning the purpose of the proposed rule change and discussed any comments it received on the proposed
On June 25, 2002, the Commission approved an amendment to the ISE Rule 720 (“June Amendment”),
The Exchange's experience since the June Amendment indicates that a difference of only $.25 is too low and may allow trades that are not obviously erroneous to qualify for obvious error treatment. In addition, the June Amendment did not provide for a larger difference between the execution price and the theoretical price during fast market conditions, as is the case for options price at and above $3.00. Accordingly, the Exchange proposes to increase the amount by which the execution price of an option priced under $3.00 must differ from the theoretical price from $.25 to $.35 in normal market conditions, and to provide that the difference must be at least $.50 in fast market conditions. This proposal will allow fewer executions to qualify as obvious errors, and therefore fewer situations where a trade may be busted or adjusted under ISE Rule 720.
The ISE developed Rule 720 to address the need to handle errors in a fully electronic market where orders and quotes are executed automatically before an obvious error may be discovered and corrected by ISE members. In formulating ISE Rule 720, the Exchange has weighed carefully the need to assure that one market participant is not permitted to receive a windfall at the expense of another market participant that made an obvious error, against the need to assure that market participants are not simply being given an opportunity to reconsider poor trading decisions. This proposed rule change reflects the Exchange's constant evaluation of the obvious error rule and its fairness to all market participants.
The Exchange believes that the proposal 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 Exchange Act.
The Exchange has neither solicited nor received comments on the proposed rule change.
The foregoing rule change has become effective pursuant to section 19(b)(3)(A) of the Act
The ISE has requested that the Commission waive the 30-day operative delay. The Commission believes waiving the 30-day operative delay is consistent with the protection of investors and the public interest. The Commission believes that it is reasonable for the ISE, based upon its experience in administering the Rule, to amend the Rule to state that the standard for determining the existence of an obvious error for options series trading at less than $3.00 be whether, in regular market conditions, the difference between the execution price and the theoretical price for the series is at least $.35, and whether, during fast market conditions, the difference between the execution price and the theoretical price for the series is at least $.50. The Commission notes that the proposal refines the June Amendment, which itself was noticed for public comment and received no comment. For these reasons, the Commission designates the proposal to be effective and operative as of the date of this order.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Persons making written submissions should file six copies thereof with the Secretary, Securities and Exchange Commission, 450 Fifth Street, NW., Washington, DC 20549-0609. Copies of the submission, all subsequent
For the Commission, by the Division of Market Regulation, pursuant to delegated authority.
On September 24, 2002, pursuant to section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
The Commission published the proposed rule change for comment in the
The MSRB filed with the Commission the proposed rule change relating to Rule G-14, on reports of sales or purchases, to increase transparency in the municipal securities market. The Board has a long-standing policy to increase price transparency in the municipal securities market, with the ultimate goal of disseminating comprehensive and contemporaneous pricing data. One product of the Board's Transaction Reporting Program is its Daily Transaction Report, which has been provided to subscribers each day since January 2000. The report is made available each morning by 7 am and includes details of transactions in municipal securities which were “frequently traded” the previous business day. From the beginning of the Transaction Reporting Program in 1994 through the spring of 2002, “frequently traded” securities were defined as those that were traded four or more times on a given business day. In May 2002, the Board defined “frequently traded” securities as those that were traded three or more times on a given day.
When transparency was initially being introduced into the municipal securities market, the Board was concerned that an observer unfamiliar with the market might mistake an isolated reported transaction or pair of transactions as providing a reliable indicator of “market price.” Because of this concern, the Board adopted the “frequently traded” threshold of four trades. At the same time, the Board has made a commitment to review the use of these reports as experience is obtained and eventually to move to transparency reporting on a more contemporaneous and comprehensive basis.
Since 1994, the Board has made ongoing efforts to increase price transparency in the municipal securities market in measured steps, culminating in comprehensive, real-time price transparency. The first price transparency report, begun in 1995, was a report, published the day after trading (“T+1”), that summarized inter-dealer trades in frequently traded municipal securities. In 1998, the Board added customer trades to the T+1 summary reports, and in January 2000 began, as well, to publish individual transaction data on frequently traded securities. The Board has also introduced “comprehensive” transaction reports for this market, which list all municipal securities transactions (regardless of frequency of trading), but which are available no less than one week after trade date.
At this time, the Board believes that the next appropriate step in this process is to change the threshold for determining that information about a municipal security is to be disseminated in the T+1 Daily Transaction Report. The proposed rule change would lower the threshold from three to two trades per day.
The proposed threshold would increase substantially the proportion of municipal securities market activity that is reported on the day after trading. On a typical day, there are approximately 26,000 transactions in about 10,000 issues, with a total par value traded of about $9.5 billion. The present Daily Transaction Report, with a threshold of three or more trades per day, includes an average of 14,400 trades in 2,600 different issues, with a total par value of about $5.2 billion. Under the proposed threshold, the report is expected to include an average of 19,760 trades in 5,600 issues, with a total par value of about $7.7 billion. This represents a 37 percent increase in the number of trades reported, a more-than-twofold increase in the number of issues reported, and a 48 percent increase in par value reported.
The enhanced Daily Transaction Report with the two-trade threshold will replace the current report and will be made available each day to subscribers via the Internet. Subscribers to the current Service receive the report free of charge, and their subscriptions will continue should the proposed Service be implemented. New subscriptions will be available free to parties who sign a subscription agreement. In addition,
The enhanced report will be available to subscribers as soon as practical after Commission approval of the proposed rule change. It is estimated that the period between approval and implementation will not exceed two weeks.
The Commission did not receive any comment letters addressing the Board's proposed rule change, but the Board had earlier received a comment letter from The Bond Market Association (“TBMA”).
Consistent with the Board's previous decisions,
The Commission must approve a proposed MSRB rule change if the Commission finds that the proposal is consistent with the requirements set forth under the Act and the rules and regulations thereunder, which govern the MSRB.
The MSRB does not believe that the proposed rule change will impose any burden on competition not necessary or appropriate in furtherance of the purposes of the Act in that it applies equally to all dealers in municipal securities.
After careful review, the Commission finds that the MSRB's proposed rule change relating to Rule G-14, on reports of sales or purchases, meets the requisite statutory standard. The Commission believes that this proposed rule change is consistent with the requirements of the Act, and the rules and regulations thereunder. In addition, the Commission finds that the proposed rule is consistent with the requirements of section 15B(b)(2)(C) of the Act, as set forth above.
It is therefore ordered, pursuant to section 19(b)(2) of the Exchange 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”),
Nasdaq proposes to amend NASD Rule 7010 to modify Nasdaq's transaction credit pilot program for exchange-listed securities. Nasdaq will implement the proposed rule change as soon as practicable following Commission approval. The text of the proposed rule change is below. Proposed additions are in italics; proposed deletions are in brackets.
7010. System Services
(a)-(b) No change.
(c)(1) No change.
For a pilot period, NASD members that trade securities listed on the NYSE (“
(d)-(r) No change.
In its filing with the Commission, Nasdaq included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. Nasdaq has prepared summaries, set forth in Sections A, B, and C below, of the most significant aspects of such statements.
Nasdaq's InterMarket is a quotation, communication, and execution system that allows NASD members to trade stocks listed on the New York Stock Exchange (“NYSE”) and the American Stock Exchange (“Amex”).
Nasdaq is proposing to modify the InterMarket Transaction Credit Pilot Program (the “Program”) that it began in 1999.
Under the Program, Nasdaq calculates two separate pools of revenue from which credits can be earned: One representing 40% of the gross revenues received from the CTA for providing trade reports in NYSE-listed securities executed in the InterMarket for dissemination by the CTA (“Tape A”), the other representing 40% of the gross revenue received from the CTA for reporting Amex trades (“Tape B”). Eligibility for transaction credits is based on concurrent quarterly trading activity.
Hitherto, trade reports of ITS and CAES transactions, which are reported to Nasdaq automatically, have been attributed to the sell side of the trade.
It should be noted that the NASD receives revenue from the CTA for ITS transactions in which an NASD member is the selling party, and under the Program as currently in effect, Nasdaq shares a portion of the revenue with members that are selling parties. By contrast, under the proposed rule change, Nasdaq would share 40% of the revenue it receives from the CTA with NASD members that provide liquidity in a transaction. As a result, in instances where an NASD member executes a sell order that it receives through the ITS, Nasdaq will provide a transaction credit to the NASD member even though NASD receives no revenue from the CTA with respect to the transaction. Similarly, in instances where an NASD member sends a sell order to an exchange through the ITS, Nasdaq would not provide a transaction credit to the NASD member even though NASD does receive revenue from the CTA with respect to the transaction. The total pool of revenue shared with NASD members (40% of Tape A revenue and 40% of Tape B revenue) will not change, however. Moreover, since there is no requirement that Nasdaq share any
Nasdaq believes that the proposed rule change is consistent with the Act, including section 15A(b)(5) of the Act,
Nasdaq does not believe that the proposed rule change will result in any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act, as amended.
Written comments were neither solicited nor received.
Within 35 days of the date of publication of this notice in the
A. By order approve such proposed rule change, or
B. Institute proceedings to determine whether the proposed rule change should be disapproved.
Interested persons are invited to submit written data, views and arguments concerning the foregoing, including whether the proposed rule change 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 NASD. All submissions should refer to file number SR-NASD-2002-115 and should be submitted by December 10, 2002.
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 NASD proposes to: (1) Amend Schedule A of the NASD By-Laws to
In the instant filing, the NASD is including the TAF rates (retroactively effective to October 1, 2002, but giving members until January 15, 2003 to remit such fees), correcting the heading of section 2, deleting footnotes containing TAF rates (because the rate information is now included in the body of the filing), inserting a reference to a recent
The text of the proposed rule change is below. Proposed new language is in italics; proposed deletions are in brackets.
(a) Recovery of cost of services. NASD shall, in accordance with this section, collect [M]
(b) Each member shall be assessed a Trading Activity Fee for the sale of covered securities.
(1) Covered Securities. For purposes of the rule, covered securities shall mean:
(i) All exchange registered securities wherever executed (other than bonds, debentures, and other evidence of indebtedness);
(ii) All other equity securities traded otherwise than on an exchange; and
(iii) All security futures wherever executed.
(2) Transactions exempt from the fee. The following shall be exempt from the Trading Activity Fee:
(i) Transactions in securities offered pursuant to an effective registration statement under the Securities Act of 1933 (except transactions in put or call options issued by the Options Clearing Corporation) or offered in accordance with an exemption from registration afforded by Section 3(a) or 3(b) thereof, or a rule thereunder;
(ii) Transactions by an issuer not involving any public offering within the meaning of Section 4(2) of the Securities Act of 1933;
(iii) The purchase or sale of securities pursuant to and in consummation of a tender or exchange offer;
(iv) The purchase or sale of securities upon the exercise of a warrant or right (except a put or call), or upon the conversion of a convertible security; and
(v) Transactions
(i) Each member shall pay to NASD a fee per share for each sale of a covered
(ii) Each member shall pay to NASD a fee per contract for each sale of an option.
(iii) Each member shall pay to NASD a fee for each round turn transaction (treated as including one purchase and one sale of a contract of sale for future delivery) of a security future.
*
(4) Reporting of Transactions. Members shall report to NASD the aggregate share, contract, and/or round turn volume of sales of covered securities in a manner as prescribed by NASD from time to time.
(b) [The] NASD shall assess each member a fee of:
[(3) $20.00 for each amended Form U-4 or Form U-5 filed by the member with the NASD;]
[(4)]
[(5)]
[(6)]
In its filing with the Commission, the NASD included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Association has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
On July 24, 2002, the NASD filed SR-NASD-2002-98 and SR-NASD-2002-99, which proposed a new member regulatory pricing structure.
On September 27, 2002, the NASD announced the initial TAF rates. The TAF rates were as follows:
• $0.0001 per share for each sale of a covered equity security
• $0.002 per contract for each sale of an option
• $0.08 per contract for each round turn transaction of a security future
On October 3, 2002, in response to members' comments, the NASD modified the TAF rates to incorporate a per trade maximum, retroactively effective to October 1, 2002. The revised TAF rates were modified as follows:
• For each sale of a covered equity security, each member shall pay to the NASD $0.0001 per share, with a maximum charge of $10 per trade.
• For each sale of an option, each member shall pay to the NASD $0.002 per contract.
• For each round turn transaction of a security future, each member shall pay to the NASD $0.08 per contract.
• Additionally, if the execution price for a covered equity security is less than the TAF rate ($0.0001) on a per share basis, then no fee will be assessed.
On October 18, 2002, the NASD filed two subsequent proposed rule changes that are directly related to SR-NASD-2002-98. The first is the instant filing (SR-NASD-2002-147), which establishes a sunset provision that terminates on December 31, 2002 the changes made to Schedule A to the NASD By-Laws in SR-NASD-2002-98, and makes corrections to language that was mistakenly referenced in SR-NASD-2002-98. The second proposed rule change is SR-NASD-2002-148, which contains substantially the same proposed rule language that was contained in SR-NASD-2002-98, but is submitted pursuant to section 19(b)(1) of the Act
On January 1, 2003, if the Commission has not approved SR-NASD-2002-148, the TAF as established in SR-NASD-2002-98 will terminate and will revert to section 8 of Schedule A of the By-Laws as amended, until such time that an approved alternative funding source is in place.
On October 30, 2002, based on further analysis of trading volumes and feedback from member firms, the NASD again adjusted the rate structure. The TAF was revised (retroactively effective to October 1, 2002, but allowing members until January 15, 2003 to remit such fees), as follows:
• The initial rate of $0.0001 for covered equity securities was reduced to $0.00005.
• The maximum charge on covered equity securities was reduced to $5.00.
• The initial rate of $0.08 for security futures was reduced to $0.04.
• The minimum exclusion was extended to cover options and futures, clarifying that if the execution price for a covered security is less than the TAF rate on a per share, per contract, or round turn transaction basis, then no fee will be assessed.
The NASD believes that the proposed rule change is consistent with the Act, including section 15A(b)(5) of the Act,
The NASD does not believe that the proposed rule change will result in any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act, as amended.
Written comments were neither solicited nor received.
The proposed rule change has become effective pursuant to section 19(b)(3)(A) of the Act
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposal is consistent with the Act. Persons making written submissions should file six copies thereof with the Secretary, Securities and Exchange Commission, 450 Fifth Street, NW., Washington, DC 20549-0609. Copies of the submission, all subsequent amendments, all written statements with respect to the proposed rule change that are filed with the Commission, and all written communications relating to the proposed rule change between the Commission and any person, other than those that may be withheld from the
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 NASD proposes to amend Schedule A to the NASD By-Laws to amend its member regulatory pricing structure. Under the structure this rule proposal is intended to change, three types of fees and assessments are used to fund the NASD's member regulatory activities: Regulatory Fee,
These fees assessed upon and paid by member firms are used by the NASD to fund NASD's member regulatory activities, including the supervision and regulation of members through examinations, processing of membership applications, financial monitoring, policy, rulemaking, interpretative, and enforcement activities. These amendments to this pricing structure are intended to serve the following purposes: (1) Simplify the NASD's fee structure; (2) ensure fairness in the NASD's fee structure by assessing higher fees to those member firms that require more NASD regulatory services; (3) assess a transaction-based fee in a manner that, unlike the Regulatory Fee, does not influence where members choose to execute trades; (4) reduce the cyclical nature of the current NASD fee structure; and (5) eliminate the NASD's reliance on funds generated from the Regulatory Fee on transactions executed through Nasdaq.
The NASD believes assessing Regulatory Fees only for Nasdaq transactions is no longer appropriate for three reasons. First, Nasdaq is separating from the NASD and registering as a national securities exchange. Second, the current fee structure is out of step with recent changes in the markets, such as the drastic growth in trading volumes, reductions in average trade size, decimalization, and trading no longer remaining exclusive to the listing exchange. Finally, the Regulatory Fee is only assessed against Nasdaq-listed and other transactions that are reported through the Automated Confirmation Transaction (ACT) system,
In the instant proposed rule change, the NASD is including the TAF rates (retroactively effective to October 1, 2002, but giving members until January 15, 2003 to remit fees for the preceding quarter), including a reference to
Below is the text of the proposed rule change. The text below shows amended rule language that would be necessary if SR-NASD-2002-98 were not in place.
Assessments and fees pursuant to the provisions of Article VI of the By-Laws of [the] NASD shall be determined on the following basis.
[(a) NASD fee on cleared transactions. Each member shall be assessed a transaction charge of $.0625 per 1,000 shares, with a minimum charge per side of $.025 and a maximum charge per side of $.46875 for each over-the-counter transaction with another member of the Association reportable through ACT in which the member acts either as an agent or a principal for the purchase and/or sale of equity securities.]
[(b) SEC transaction fee. Each member shall be assessed a SEC transaction fee. The amount shall be determined by the SEC in accordance with Section 31 of the Act.]
NASD may exempt other securities and transactions as it deems appropriate.
(a) Each member shall be assessed a fee of $75.00 for the registration of each branch office, as defined in the By-Laws. Each member shall be assessed an annual fee for each branch office in an amount equal to the lesser of (1) $75.00 per registered branch, or (2) the product of $75.00 and the number of registered representatives and registered principals associated with the member at the end of [the Association]
(b) [The] NASD shall assess each member a fee of:
(1) $85.00 for each initial Form U-4 filed by the member with [the] NASD for the registration of a representative or principal, except that the following discounts shall apply to the filing of Forms U-4 to transfer the registration of representatives or principals in connection with acquisition of all or a part of a member's business by another member:
(2) $40.00 for each initial Form U-5 filed by the member with [the] NASD for the termination of a registered representative or registered principal, plus a late filing fee of $80.00 if the member fails to file the initial Form U-5 within 30 days after the date of termination;
(3) through (5) No Change.
(c) through (k) No Change.
(l)(1) Unless a specific temporary extension of time has been granted, there shall be imposed upon each member required to file reports, as designated by this paragraph, a fee of $100 for each day that such report is not timely filed. The fee will be assessed for a period not to exceed 10 business days. Requests for such extension of time must be submitted to [the Association]
(2) through (3) No Change.
No Change to rule language.
(a) The assessment of a firm, which is not a member throughout [the Association]
(b) A member [which]
No Change to rule language.
(a) There shall be a fee imposed for the filing of initial documents relating to any offering filed with [the] NASD pursuant to the Corporate Financing Rule equal to $500 plus .01% of the proposed maximum aggregate offering price or other applicable value of all securities registered on an SEC registration statement or included on any other type of offering document (where not filed with the SEC), but shall not exceed $30,500. The amount of filing fee may be rounded to the nearest dollar.
(b) There shall be an additional fee imposed for the filing of any amendment or other change to the documents initially filed with [the] NASD pursuant to the Corporate Financing Rule equal to .01% of the net increase in the maximum aggregate offering price or other applicable value of all securities registered on an SEC registration statement, or any related Rule 462(b) registration statement, or reflected on any Rule 430A prospectus, or included on any other type of offering document. However, the aggregate of all filing fees paid in connection with an SEC registration statement or other type of offering document shall not exceed $30,500.
(a) No Change.
(b) The service charge for processing each initial extension of time request and for all subsequent extension of time requests (1) involving the same transaction under Regulation T and/or (2) involving an extension of time previously granted pursuant to Rule 15c3-3(n) shall be $2.00; provided, however, that the service charge shall be $1.00 for extension of time requests filed electronically by members using [the Association]
No Change to rule language.
No Change to rule language.
No Change to rule language.
(a) Any member firm seeking to employ or continuing to employ as an associated person any individual who is subject to a disqualification from association with a member as set forth in Article III, Section 4 of [the Association]
(b) Any member firm continuing to employ as an associated person any individual subject to disqualification from association with a member as set forth in Article III, Section 4 of [the Association]
There shall be a review charge for each and every item of advertisement, sales literature, and other such material, whether in printed, video or other form, filed with or submitted to [the Association]
Where a member requests expedited review of material submitted to the Advertising Regulation Department there shall be a review charge of $500.00 per item plus $25 for each page reviewed in excess of 10 pages. Expedited review shall be completed within three business days, not including the date the item is received by the Advertising Regulation Department, unless a shorter or longer period is agreed to by the Advertising Regulation Department. The Advertising Regulation Department may, in its sole discretion, refuse requests for expedited review.
In its filing with the Commission, the NASD included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The NASD has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
On July 24, 2002, the NASD filed SR-NASD-2002-98 and SR-NASD-2002-99, which proposed a new member
On September 27, 2002, the NASD announced the initial TAF rates. The TAF rates were as follows:
• $0.0001 per share for each sale of a covered equity security.
• $0.002 per contract for each sale of an option.
• $0.08 per contract for each round turn transaction of a security future.
On October 3, 2002, in response to members' comments, the NASD modified the TAF rates to incorporate a per trade maximum, retroactively effective to October 1, 2002. The revised TAF rates were modified as follows:
• For each sale of a covered equity security, each member shall pay to the NASD $0.0001 per share, with a maximum charge of $10 per trade.
• For each sale of an option, each member shall pay to the NASD $0.002 per contract.
• For each round turn transaction of a security future, each member shall pay to the NASD $0.08 per contract.
• Additionally, if the execution price for a covered equity security is less than the TAF rate $0.0001) on a per share basis, then no fee will be assessed.
On October 18, 2002, the NASD filed two subsequent proposed rule changes with the Commission that are directly related to SR-NASD-2002-98. The first proposed rule change was SR-NASD-2002-147, which was effective upon filing with the Commission. SR-NASD-2002-147 established a sunset provision that terminates on December 31, 2002 the changes made to Schedule A to the NASD By-Laws in SR-NASD-2002-98. In addition, language that was mistakenly referenced in SR-NASD-2002-98 was corrected in SR-NASD-2002-147.
The second proposed rule change is the instant filing, which contains substantially the same proposed rule language as proposed in SR-NASD-2002-98, but is filed pursuant to section 19(b)(1) of the Act
On January 1, 2003, if the Commission has not approved SR-NASD-2002-148, the TAF as established in SR-NASD-2002-98 will terminate and will revert to Section 8 of Schedule A of the By-Laws as amended, until such time that an approved alternative funding source is in place.
On October 30, 2002, based on further analysis of trading volumes and feedback from member firms, the NASD further adjusted the rate structure. The NASD revised the TAF (retroactively effective to October 1, 2002, but allowing members until January 15, 2003 to remit such fees), as follows:
• The initial rate of $0.0001 for covered equity securities was reduced to $0.00005.
• The maximum charge on covered equity securities was reduced to $5.00.
• The initial rate of $0.08 for security futures was reduced to $0.04.
• The minimum exclusion was extended to cover options and futures, clarifying that if the execution price for a covered security is less than the TAF rate on a per share, per contract, or round turn transaction basis, then no fee will be assessed.
The NASD believes that the proposed rule change is consistent with the Act, including section 15A(b)(5) of the Act,
The NASD does not believe that the proposed rule change will result in any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act, as amended.
Written comments were neither solicited nor received on the current proposal.
Within 35 days of the date of publication of this notice in the
A. By order approve such proposed rule change, or
B. Institute proceedings to determine whether the proposed rule change should be disapproved.
Interested persons are invited to submit written data, views and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Persons making written submissions should file six copies thereof with the Secretary, Securities and Exchange Commission, 450 Fifth Street, NW, Washington, DC 20549-0609. Copies of the submission, all subsequent amendments, all written statements with respect to the proposed rule change that are filed with the Commission, and all written communications relating to the proposed rule change between the Commission and any person, other than those that may be withheld from the public in accordance with the provisions of 5 U.S.C. 552, will be available for inspection and copying in the Commission's Public Reference Room. Copies of such filing will also be available for inspection and copying at the principal office of the NASD. All submissions should refer to file number SR-NASD-2002-148 and should be submitted by December 10, 2002.
For the Commission, by the Division of Market Regulation, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
The Exchange proposes to amend Section 804 of the NYSE Listed Company Manual and NYSE Rule 499 to make the procedures for appealing delisting determinations more efficient and effective, and to charge issuers a non-refundable appeal fee in the amount of $20,000. Below is the text of the proposed rule change. Proposed new language is
• If the Exchange staff should determine that a security be removed from the list, it will so notify the issuer in writing, describing the basis for such decision and the specific policy or criterion under which such action is to be taken. The Exchange will simultaneously (1) issue a press release disclosing the company's status and basis for the Exchange's determination and (2) begin daily dissemination of ticker and information notices identifying the security's status, and include similar information on the Exchange's web site.
• The notice to the issuer shall also inform the issuer of its right to a review of the determination by a Committee of the Board of Directors of the Exchange (comprised of a majority of public Directors), provided a written request for such a review is filed with the Secretary of the Exchange within ten business days after receiving the aforementioned notice.
• If the issuer does not request a review within the specified period, the Exchange shall suspend trading in the security and an application shall be submitted by the Exchange staff to the Securities and Exchange Commission to strike the security from listing and a copy of such application shall be furnished to the issuer in accordance with Section 12 of the Securities Exchange Act of 1934 and the rules promulgated thereunder.
• If a review is requested, the review will be [conducted by a Committee of the Board of Directors.]
• A request for review will ordinarily stay the suspension of the subject security pending the review, but the Exchange staff may immediately suspend from trading any security pending review should it determine that such immediate suspension is necessary or appropriate in the public interest, for the protection of investors, or to promote just and equitable principles of trade.
•
• The Committee, in its sole discretion upon written motion of either party or upon its own motion, may extend any of the time periods specified above.
• If the Committee decides that the security of the issuer should be removed from listing, the Exchange shall suspend trading in the security as soon as practicable and an application shall be submitted by the Exchange to the Securities and Exchange Commission to strike the security from listing and registration and a copy of such application shall be furnished to the issuer in accordance with Section 12 of the Securities Exchange Act of 1934 and the rules promulgated thereunder. If the Committee decides that the security should not be removed from listing, the issuer will receive from the Exchange a notice to that effect.
* * * Supplementary Material:
.70 Procedure for Delisting.
a. If the Exchange staff should determine that a security be removed from the list, it will so notify the issuer in writing, describing the basis for such decision and the specific policy or criterion under which such action is to be taken. The Exchange will simultaneously: (1) Issue a press release disclosing the company's status and basis for the Exchange' s determination and (2) begin appending a suffix to the security's ticker symbol identifying the security's status. The notice to the issuer shall also inform the issuer of its right to a review of the determination by a Committee of the Board of Directors of the Exchange (comprised of a majority of public Directors), provided a written request for such a review is filed with the Secretary of the Exchange within ten business days after receiving the aforementioned notice.
b. If the issuer does not request a review within the specified period, the Exchange shall suspend trading in the security and an application shall be submitted by the Exchange staff to the Securities and Exchange Commission to strike the security from listing and a copy of such application shall be furnished to the issuer in accordance with Section 12 of the Securities Exchange Act of 1934 and the rules promulgated thereunder.
c. If a review is requested, the review will be [conducted by a Committee of the Board of Directors.]
A request for review
d.
e. The Committee, in its sole discretion upon written motion of either party or upon its own motion, may extend any of the time periods specified above.
f. If the Committee decides that the security of the issuer should be removed from listing, the Exchange shall suspend trading in the security as soon as practicable and an application shall be submitted by the Exchange to the Securities and Exchange Commission to strike the security from listing and registration and a copy of such application shall be furnished to the issuer in accordance with section 12 of the Securities Exchange Act of 1934 and the rules promulgated thereunder. If the Committee decides that the security should not be removed from listing, the issuer will receive from the Exchange a notice to that effect.
In its filing with the Commission, the Exchange included statements concerning the purpose of, and basis for, the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in Sections A, B, and C below, of the most significant aspects of such statements.
Section 804 of the NYSE
Under the current procedures, both the issuer and the Exchange staff are required to file their appeal briefs at the same time. In contrast, the Exchange asserts that most court procedures call for the appellant to submit its brief first. This allows the respondent to focus on the arguments advanced by the appellant, rather than having to speculate on what issues the appellant will raise. The Exchange believes that having the appellant submit its brief first would more effectively utilize the resources of both the Committee and the Exchange staff. Accordingly, the Exchange proposes to amend the procedures to specify that the issuer will submit its written brief first, including any accompanying materials, with the Exchange permitted to respond. In addition, the Exchange proposes to clarify that the briefing schedule will be set to provide the Committee with adequate time to review the materials submitted to it in advance of the review date.
The Exchange's Office of the General Counsel, which oversees the appeals process on behalf of the Committee, will schedule reviews on the first review day that is at least 25 business days from the date an issuer files the request for review, unless the next subsequent Review Day must be selected to accommodate the Committee's schedule,
The Exchange also proposes to specify in its appeal procedures the scope of the Committee's review on appeal and the guidelines pursuant to which the Committee may decide to hear new issues or evidence not identified in an issuer's original request for review.
In addition, the Exchange proposes to institute a non-refundable appeal fee in the amount of $20,000. The Exchange has not previously considered it necessary to charge a separate fee to companies appealing an Exchange delisting decision. The Exchange believes that this historical approach, however, has to be considered in the context of the delisting and related appeal policies in effect at the time. According to the Exchange, changes in policies and procedures adopted or formalized in 1999 have resulted in a larger number of companies being delisted, compared to prior years.
The Exchange has elected to use outside counsel to represent the Exchange's Financial Compliance staff in these delisting appeals. During the 12 months ending December 31, 2001, the Exchange paid slightly in excess of $300,000 in legal fees to cover 11 delisting appeals completed during that time, giving an average out of pocket cost of slightly less than $30,000 for each appeal. This does not include the resources of the Exchange's own Financial Compliance and Office of the General Counsel personnel consumed in servicing these appeals. The Exchange considers it only fair and appropriate that the companies incurring these added out of pocket costs defray these costs by paying the proposed $20,000 appeal fee.
The Exchange does not believe that the appeal fee will deter companies from taking reasonable appeals. Most companies that do appeal Exchange staff determinations are represented in that appeal by their own outside counsel, suggesting that they are able to invest a significant sum in the prosecution of their appeal. While the proposed Exchange appeal fee is greater than the amount charged at other listing markets, the Exchange notes that its original and continuing annual listing fees are also higher than those at other markets, and that its listed company population in general represents larger capitalization companies than on the other markets. The Exchange also notes that, particularly in the case of companies that have been delisted after attempting to utilize the financial plan process outlined in Section 802 of the NYSE
The Exchange believes that the basis under the Act for this proposed rule change is the requirement under section 6(b)(5) that an exchange have rules that are designed to prevent fraudulent and manipulative acts and practices, to promote just and equitable principles of trade, to remove impediments to, and perfect the mechanism of a free and open market and, in general, to protect investors and the public interest.
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 Exchange Act.
The Exchange has neither solicited nor received written comments on the proposed rule change.
Within 35 days of the 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 such filing will also be available for inspection and copying at the principal office of the Exchange. All submissions should refer to File No. SR-NYSE-2001-46 and should be submitted by December 10, 2002.
For the Commission, by the Division of Market Regulation, pursuant to the delegated authority.
Pursuant to section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The Exchange hereby proposes to amend Rule 600 relating to arbitrations for a six-month pilot period. During this six-month pilot period, the amendment to Rule 600 will require industry parties in arbitration to waive application of the California arbitrator disclosure standards upon the request of customers that have waived the application. The amendment will also require industry parties in arbitration to waive application of the California arbitrator disclosure standards upon the request of associated persons. Below is the text of the proposed rule change, as well as the text of two forms relating to the waiver procedures that the Exchange proposes to distribute pursuant to the terms of the proposed rule change. Proposed new language is
•
•
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change.
The proposed rule change is intended to provide options to customers and associated persons in California whose claims in arbitration cannot proceed because of the state's adoption of a law, and the Ethics Standards for Neutral Arbitrators in Contractual Arbitration (“the California Standards”) promulgated thereunder, that purport to apply to arbitrations conducted pursuant to Exchange rules. The California Standards, were they to have effect, would conflict with the Exchange's arbitration rules.
The proposed amendment to Rule 600 responds to the purported imposition of California state law on arbitrations conducted under the auspices of the Exchange and pursuant to a set of nationally-applied rules approved by the Commission. On July 1, 2002, as a result of the purported application to Exchange arbitrations and arbitrators of the California Standards, the Exchange suspended the appointment of arbitrators for cases pending in California. The Exchange, along with NASD Dispute Resolution, Inc. (the “NASD”), is seeking a judgment in the United States District Court for the Northern District of California declaring that the California Standards are preempted by the Act and the Federal Arbitration Act. The SEC has sought leave to appear as a friend of the court (“amicus curiae”) in the litigation and has submitted a brief that argues that the California Standards are preempted by the Act and by the Federal Arbitration Act.
Shortly after filing the declaratory judgment action, the Exchange began to offer customers the option to have their cases heard outside of California. This proposed amendment enables the Exchange to offer customers in California the additional option of having their cases heard in California if they choose to waive application of the California Standards.
In disputes between a customer and a member, allied member, member organization, and/or associated person
Customers or associated persons who requested, between July 1, 2002 and the effective date of this proposed rule, that a hearing be held outside of California, but have not had arbitrators appointed, may choose to sign the waiver, which will void their previous request for a hearing outside of California. Customers or associated persons who elect, after the effective date of this proposed rule, to have a hearing held outside of California may not subsequently rescind that choice.
The Exchange will notify parties (and their representatives, if any) who currently are awaiting the appointment of arbitrators in California of the terms of this new rule upon its approval by the Commission, and will provide them with the waiver forms.
The Exchange believes that the proposed rule changes are consistent with the objectives of section 6(b)(5) of the Act,
The NYSE 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.
Interested persons are invited to submit written data, views and arguments concerning the foregoing, including whether the proposal is consistent with the Act. Persons making written submissions should file six copies thereof with the Secretary, Securities and Exchange Commission, 450 Fifth Street, NW., Washington, DC 20549-0609. Copies of the submission, all subsequent amendments, all written statements with respect to the proposed rule change that are filed with the Commission, and all written communications relating to the proposed rule change between the Commission and any person, other than those that may be withheld from the public in accordance with the provisions of 5 U.S.C. 552, will be available for inspection and copying in the Commission's Public Reference Room. Copies of such filing will also be available for inspection and copying at the principal office of NYSE. All submissions should refer to File No. NYSE-2002-56 and should be submitted by December 10, 2002.
After careful review, the Commission finds that the proposed rule change is consistent with the requirements of the Act and the rules and regulations thereunder applicable to a national securities exchange, and, in particular, the requirements of section 6 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, through PCXE, proposes to modify its market data revenue sharing program for Tape A securities traded on the Archipelago Exchange (“ArcaEx”), the equities trading facility of PCXE. The text of the proposed rule change is available at the PCX and at the Commission.
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item 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 PCX proposes to amend its fee schedule for services provided to ETP Holders
On May 28, 2002, the Exchange filed with the Commission a proposed rule change to implement, on a pilot basis through June 28, 2002, a mechanism for sharing market data revenue with Users on ArcaEx.
With the instant proposed rule change, the Exchange proposes to modify its Tape A market data revenue sharing program by increasing the level of the transaction credits paid to Users with respect to transactions in such securities from 40% to 50%. No other changes are proposed at this time.
Under the current market data revenue sharing program for Tape A securities, the Exchange shares 40% of its gross revenues derived from related market data fees with (i) any User that provides liquidity in a Tape A security by entering a resting limit order into the ArcaEx Book that is then executed against an incoming marketable order within the Display Order, Working Order, or Tracking Order processes; (ii) any Market Maker that executes against a Directed Order in a Tape A security within the Directed Order Process;
The Exchange believes the proposed rule change is consistent with section 6(b)
The Exchange also believes that the proposal is consistent with section 6(b)(4)
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.
Written comments on the proposed rule change were neither solicited nor received.
Within 35 days of the date of publication of this notice in the
A. By order approve such proposed rule change, or
B. Institute proceedings to determine whether the proposed rule change should be disapproved.
On July 2, 2002, the Commission issued an Order abrogating certain proposed rule changes relating to market data revenue sharing programs.
The Commission now solicits comment on the instant proposed rule change, and in general, on (1) market data fees; (2) the collection of market data fees; (3) the distribution of market data rebates; (4) the effect of market data revenue sharing programs on the accuracy of market data; and (5) the impact of market data revenue sharing programs on the regulatory functions of self-regulatory organizations.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposal is consistent with the Act. Persons making written submissions should file six copies thereof with the Secretary, Securities and Exchange Commission, 450 Fifth Street, NW., Washington, DC 20549-0609. Copies of the submission, all subsequent amendments, all written statements with respect to the proposed rule change that are filed with the Commission, and all written communications relating to the proposed rule change between the Commission and any person, other than those that may be withheld from the public in accordance with the provisions of 5 U.S.C. 552, will be available for inspection and copying in the Commission's Public Reference Room. Copies of such filing will also be available for inspection and copying at the principal office of the Exchange. All submissions should refer to file number SR-PCX-2002-62, and should be submitted by December 10, 2002.
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 is proposing to amend its Schedule of Fees and Charges with respect to the following fees for options: broker-dealer and market maker transaction charges, the continued listings fee, and the shortfall fee. The text of the proposed rule change is below. New text is italicized; deleted text is in brackets.
• Only applies to the top 120 options. Shortfall volume is the difference between 12% of the total national market share in an option issue for one month and the percentage executed by the LMM.
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 had 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 those statements.
The PCX is proposing to change its broker-dealer transaction charge, market maker transaction charges, continued listings fee, and shortfall fee effective with the October 2002 trading month.
The PCX currently imposes a fee of $0.19 per contract side on all transactions of broker-dealers. The PCX proposes to increase this fee to $0.21 per contract side, which would bring the transaction fee to the same level as the PCX Market Maker transaction charge.
The PCX currently imposes upon LMMs a continued listing fee for issues that have not generated at least $500 in monthly revenues to the PCX on a trailing three-month average basis.
The PCX also proposes to modify the continued listing fee in order to adjust the method of calculating the average monthly volume-based charges for recently transferred issues. Currently, LMM firms that are transferred issues from another LMM assume the continued listings fee from the transferring firm. To help foster demand for issues during a period of continuing consolidation among trading firms, the PCX proposes to modify the way the continued listings fee is applied to transferred issues. Under the PCX's proposal, an LMM would not be subject to the continued listings fee for an issue that it acquired by transfer for any portion of the month that it acquired the issue, assuming a mid-month transfer. The LLM firm would be subject to a fee based upon the activity of the first full month that it trades an issue. After the second full month of trading the issue, the transferee LMM would be subject to a continued listings fee based upon the trailing two-month activity level. In future months, the transferee LMM would be subject to the fee based on a three-month rolling average.
In June 2002, the PCX increased the LMM shortfall fee from 10% to 12% for the top 120 equity options traded nationally. Due to periodic spikes in national industry volume, the PCX proposes to cap the shortfall fee when equity industry volume reaches 2.9 million contracts per day or higher. As proposed, LMM firms would not be charged a shortfall fee on contracts in a top 120 issue that exceeds the calculated volume cap amount.
The PCX believe that the proposal is consistent with section 6(b)(4) of the Act
The PCX does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act.
The PCX neither solicited nor received written comments on the proposed rule change.
The foregoing rule change, as amended, has become effective pursuant to Section 19(b)(3)(A) of the Act
Interested persons are invited to submit written data, views and arguments concerning the foregoing, including whether the proposal is consistent with the Act. Persons making written submissions should file six copies thereof with the Secretary, Securities and Exchange Commission, 450 Fifth Street, NW, Washington, DC 20549-0609. Copies of the submission, all subsequent amendments, all written statements with respect to the proposed rule change that are filed with the Commission, and all written communications relating to the proposed rule change between the Commission and any person, other than those that may be withheld from the public in accordance with the provisions of 5 U.S.C. 552, will be available for inspection and copying in the Commission's Public Reference Room. Copies of such filing will also be available for inspection and copying at the principal office of the PCX. All submissions should refer to File No. SR-PCX-2002-65 and should be submitted by December 10, 2002.
For the Commission, by the Division of Market Regulation, pursuant to delegated authority.
Henry County and the contiguous counties of Barbour, Dale and Houston in the State of Alabama; and Clay, Early
The interest rates are:
The number assigned to this disaster for physical damage is 346011 for Alabama and 346111 for Georgia. The number assigned to this disaster for economic injury is 9S4900 for Alabama and 9S5000 for Georgia.
The Department of State invites applications from national organizations with interest and expertise in conducting research and training to serve as intermediaries administering national competitive programs concerning the countries of Central and East Europe and Eurasia. The grants will be awarded through an open, national competition among applicant organizations.
Authority for this Program for Research and Training on Eastern Europe and the Independent States of the Former Soviet Union is contained in the Soviet-Eastern European Research and Training Act of 1983 (22 U.S.C. 4501-4508, as amended).
The purpose of this application notice is to inform potential applicant organizations of fiscal and programmatic information and closing dates for transmittal of applications for awards in Fiscal Year 2003 under a program administered by the Department of State. The program seeks to build and sustain expertise among Americans willing to make a career commitment to the study of Central and East Europe and Eurasia.
Applications for an award must be sent by Express Mail, commercial courier (
Applications must be addressed to Kenneth E. Roberts, Executive Director, Advisory Committee for Studies of Eastern Europe and the Independent States of the Former Soviet Union, INR/RES, Room 2251, U.S. Department of State, 2201 C Street, NW., Washington, DC 20520-6510.
An applicant must show proof of mailing consisting of
(1) A legibly dated U.S. Postal Service postmark.
(2) A legible mail receipt with the date of mailing stamped by the U.S. Postal Service.
(3) A dated shipping label, invoice, or receipt from a commercial center.
(4) Any other proof of mailing acceptable to the Department of State.
If any application is sent through the U.S. Postal Service, the Department of State does not accept either of the following as proof of mailing: (1) A private metered postmark, or (2) a mail receipt that is not dated by the U.S. Postal Service.
An applicant should note that the U.S. Postal Service does not uniformly provide a dated postmark. Before relying on this method, an applicant should check with the local post office.
Late applications will not be considered and will be returned to the applicant.
An application that is hand delivered must be taken to Kenneth E. Roberts, Executive Director, Advisory Committee for Studies of Eastern Europe and the Independent States of the Former Soviet Union, INR/RES, Room 2251, 2201 C Street, NW., Washington, DC. Please use the entrance on 21st St., just north of the intersection with C St., and phone at (202) 736-4572 for pick up at the entrance.
The Advisory Committee staff will accept hand-delivered applications between 9 a.m. and 4 p.m. e.s.t. daily, except Saturdays, Sundays, and Federal holidays.
An application that is hand delivered will not be accepted after 4 p.m. on the closing date.
In the Soviet-Eastern European Research and Training Act of 1983, the Congress declared that independently verified factual knowledge about the countries of that area is “of utmost importance for the national security of the United States, for the furtherance of our national interests in the conduct of foreign relations, and for the prudent management of our domestic affairs.” Congress also declared that the development and maintenance of such knowledge and expertise “depends upon the national capability for advanced research by highly trained and experienced specialists, available for service in and out of Government.” The program provides financial support for advanced research, training and other related functions on the countries of the region. By strengthening and sustaining in the United States a cadre of experts on Central and East Europe and the NIS, the program contributes to the overall objectives of the FREEDOM Support and SEED Acts.
The full purpose of the Act and the eligibility requirements are set forth in Pub. L. 98-164, 97 Stat. 1047-50, as amended. The countries include Albania, Armenia, Azerbaijan, Belarus, Bosnia and Herzegovina, Bulgaria, Croatia, Czech Republic, Estonia, Former Yugoslav Republic of Macedonia, Georgia, Hungary, Kazakhstan, Kyrgyzstan, Latvia, Lithuania, Moldova, Poland, Romania, Russia, Serbia (including Kosovo and Montenegro), Slovakia, Slovenia, Tajikistan, Turkmenistan, Ukraine, and Uzbekistan.
The Act establishes an Advisory Committee to recommend grant policies and recipients. The Secretary or Deputy Secretary of State, after consultation with the Advisory Committee, approves policies and makes the final determination on awards.
Applications for funding under the Act are invited from U.S. organizations prepared to conduct competitive programs on Central and East Europe and Eurasia and related fields. Applying organizations or institutions should have the capability to conduct competitive award programs that are national in scope. Programs of this nature are those that make awards based upon an open, nationwide competition, incorporating peer group review mechanisms. Individual end-users of these funds—those to whom the applicant organizations or institutions propose to make awards—must be at the graduate or post-doctoral level, and must have demonstrated a likely career commitment to the study of Central and East Europe and/or Eurasia.
Applications sought in this competition among organizations or institutions are those that would contribute to the development of a stable, long-term, national program of unclassified, advanced research and training on the countries of Central and East Europe and/or Eurasia by proposing:
(1)
(2)
(3)
(4)
(5)
The Advisory Committee will not consider applications from individuals to further their own training or research, or from institutions or organizations whose proposals are not for competitive award programs that are national in scope as defined above. Support for specific activities will be guided by the following policies and priorities:
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The Advisory Committee gives priority to programs on Central Asia, the Caucasus, Ukraine and the Balkans, especially the former Yugoslavia, where gaps in knowledge exist. The Advisory Committee encourages research on Russia that focuses on regions and areas outside capital cities. Historical or cultural research that promotes understanding of current events in the region is acceptable if an explicit connection can be made to contemporary political and/or economic transitions. Research on such topics as musicology or mathematics generally is not appropriate for funding.
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In this competition, the Advisory Committee welcomes proposals that promote opportunities for individuals in disciplines with Eurasian and/or East European studies concentrations to serve on a temporary basis as policy or other experts in U.S. Embassies and/or with Non-Governmental Organizations (NGOs) in the region.
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Awards are contingent upon the availability of funds. Funding may be available at a level up to $5.0 million. The precise level of funding will not be known until legislative action is complete. In Fiscal Year 2002, the Congress appropriated to the program $5.0 million from the FREEDOM Support and Support for East European Democracies (SEED) Acts, which funded grants to 8 national organizations, with $3.4 million for activities on Eurasia and $1.6 million for those on Central and East Europe, including the Baltic states. The number of awards varies each year, depending on the level of funding and the quality of the applications submitted.
The Department legally cannot commit funds that may be appropriated in subsequent fiscal years. Thus multi-year projects cannot receive assured funding unless such funding is supplied out of a single year's appropriation. Grant agreements may permit the expenditure from a particular year's grant to be made up to three years after the grant's effective beginning date.
Applications must be prepared and submitted in 20 copies in Times New Roman font, 12 pitch in the following format: One-page, single-spaced Executive Summary; budget presentation with footnotes detailing line items; narrative description of proposed programs not to exceed 20 double-spaced pages; one-page, single-spaced
Because funds will be appropriated separately for Central and East Europe (including the Baltic states) and Eurasia programs, proposals must indicate how the requested funds will be distributed by region, country (to the extent possible), and activity. Subsequently, grant recipients must report expenditures by region, country, and activity.
Applicants should familiarize themselves with Department of State grant regulations contained in 22 CFR part 145, “Grants and Cooperative Agreements with Institutions of Higher Education, Hospitals, and Other Non-Profit Organizations”; 22 CFR part 137, “Department of State Government-wide Debarment and Suspension (Non-Procurement) and Government-wide Requirements for Drug-Free Workplace (Grants)”; OMB Circular A-110, “Uniform Administrative Requirements for Grants and Agreements with Institutions of Higher Education, Hospitals, and Other Non-Profit Organizations”; and OMB Circular A-133, “Audits of Institutions of Higher Learning and Other Non-Profit Institutions”; and indicate or provide the following information:
(1) Whether the organization falls under OMB Circular No. A-21, “Cost Principles for Educational Institutions,” or OMB Circular No. A-122, “Cost Principles for Nonprofit Organizations”;
(2) A detailed program budget indicating direct expenses with clearly identified administrative costs by program element and by region (Eurasia or Central and East Europe), indirect costs, and the total amount requested. The budget should indicate clearly the total amount requested as the sum of the amount requested for Eurasia activities plus the amount requested for Central and East Europe activities. The budget also should reflect administrative costs as a percentage of the total requested funding. NB: Indirect costs are limited to 10 percent of total direct program costs. Applicants requesting funds to supplement a program having other sources of support should submit a current budget for the total program and an estimated future budget for it, showing how specific lines in the budget would be affected by the allocation of requested grant funds. Other funding sources and amounts, when known, should be identified.
(3) The applicant's cost-sharing proposal, if applicable, containing appropriate details and cross references to the requested budget;
(4) The organization's most recent audit report (the most recent U.S. Government audit report, if available) and the name, address, and point of contact of the audit agency. N.B.: The threshold for grants that trigger an audit requirement has been raised from $25,000 to $300,000.
(5) An indication of the applicant's priorities if funding is being requested for more than one program or activity.
All payments will be made to grant recipients through the U.S. Government-run Payment Management System (PMS).
The Applicant must describe fully the proposed programs, including detailed information about plans for advertising and recruiting for programs, peer review and selection procedures and identification of anticipated selection committee participants, estimates of the types and amounts of anticipated awards, and benefits of these programs for the Central and East European and Eurasian fields.
Applicants who have received previous grants from this State Department program should provide detailed information on the end-user awards made, including, where applicable, names/affiliations of recipients, and amounts and types of awards. Applicants should specify both past and anticipated applicant to award ratios. A summary of an organization's past grants under this State Department program also should be included.
Proposals from national organizations involving language instruction programs should provide, for those programs supported in the past year, information on the criteria for evaluation, including levels of instruction, degrees of intensiveness, facilities, methods for measuring language proficiency (including pre- and post-testing), indications of progress achieved by title VIII-funded students, instructors' qualifications, and budget information showing estimated costs per student.
Applicants must include a description of affirmative action policies and practices and certifications of compliance with the provisions of: (1) The Drug-Free Workplace Act (Pub. L. 100-690), in accordance with appendix C of 22 CFR part 137, subpart F; and (2) section 319 of the Department of the Interior and Related Agencies Appropriations Act (Pub. L. 101-121), in accordance with appendix A of 22 CFR part 138, New Restrictions on Lobbying Activities.
The Advisory Committee for Studies of Eastern Europe and the Independent States of the Former Soviet Union will evaluate applications on the basis of the following criteria:
(1) Responsiveness to the substantive provisions set forth above in Program part II, Information (45 points);
(2) The professional qualifications of the applicant's key personnel and selection committees, and their experience conducting national competitive award programs of the type the applicant proposes on the countries of Central and East Europe and/or the Eurasia (35 points); and
(3) Budget presentation and cost effectiveness (20 points).
For further information, contact Kenneth E. Roberts, Executive Director, Advisory Committee for Studies of Eastern Europe and the Independent States of the Former Soviet Union, INR/RES, Room 2251, U.S. Department of State, 2201 C Street, NW., Washington, DC 20520-6510. Telephone: (202) 736-4572 or 736-4386, fax: (202) 736-4851 or (202) 736-4557.
Tennessee Valley Authority (Meeting No. 1542).
9 a.m. (CST), November 20, 2002, Mississippi State University, Hunter Henry Center, Barr Ave., Mississippi State, Mississippi.
Open.
Approval of minutes of meeting held on September 10, 2002.
1. Approval of an amendment to the Trust Agreement between the TVA Retirement System Board of Directors and Fidelity Management Trust Company to eliminate the annual participant recordkeeping fee.
2. Approval of amendments to the Rules and Regulations of the TVA Retirement System and to the Provisions of the TVA Savings and Deferral Retirement Plan to provide System credit for certain lump-sum payments made to TVA employees in lieu of base wage or salary increases for FY 2003, and to provide System compliance with qualified domestic relations orders.
3. Approval of the TVA contribution rate to the TVA Retirement System for Fiscal Year 2003.
4. Approval of the filing of condemnation cases to acquire tree removal rights affecting Tract Nos. EPH-61, 61A-CR, and easements and rights-of-way affecting Tract Nos. EPH-15, -48, -66, and -71, East Point-Hanceville Transmission Line, Cullman County, Alabama, and Tract Nos. SBFP-36, -38, -40A, -45 (86/189 interest, -55 (403/1176 interest), -63, -75, (
5. Approval of the filing of condemnation cases to acquire
6. Approval of the appointment of Bill Forsyth of Murphy, North Carolina, to be a member of the Regional Resource Stewardship Council.
7. Approval of the sale of permanent and temporary construction easements for a water intake and discharge for water treatment facilities for Southeast Tissue Company, LLC, affecting approximately 2.7 acres of land on Pickwick Reservoir in Colbert County, Alabama, Tract No. XPR-4641E.
8. Approval of a public auction sale of the former Singleton Laboratory site consisting of approximately 3.4 acres of Fort Loudoun Reservoir land in Blount County, Tennessee, Tract No. XFL-133.
9. Approval of negotiated pay adjustments for Fiscal Years 2003, 2004, and 2005, covering TVA Police employees represented by the Law Enforcement Employees Association.
10. Approval of negotiated pay adjustments for Fiscal Year 2003 for custodial employees represented by Local 544, Service Employees' International Union, AFL-CIO.
11. Approval of negotiated adjustments to the pay plan for engineer, scientist, and technician employees represented by the Engineering Association, Inc., for Fiscal Years 2003, 2004, and 2005.
12. Approval of a new classification and Market Pricing pay plan and pay adjustments for employees represented by the Office and Professional Employees International Union for Fiscal Year 2003.
13. Approval of a contract with Bechtel Power Corporation for engineering services for the Browns Ferry Nuclear Plant Unit 1 recovery effort.
14. Approval of a delegation of authority for the Executive Vice President, Transmission/Power Supply Group, to execute the Public Power Regional Transmission Grid Coordination Agreement.
15. Approval of revised Dispersed Power Production Guidelines for TVA and distributors of TVA power.
16. Approval of an extension of temporary authority to waive the Enhanced Growth Credit Program requirement that a facility must first be shut down for at least 12 months before becoming eligible for the program.
17. Approval of a revision of the formula used to calculate credits under the Low Density Credit Program.
18. Approval of a delegation of authority to the President and Chief Operating Officer, or a designee, to approve a Power Purchase Agreement for green power to be supplied from a wind-powered generation expansion project on Buffalo Mountain in support of TVA's Green Power Switch Program.
19. Approval for the Senior Vice President of Procurement, or a designee, to enter into individual contracts and incremental changes of up to $30 million each for Browns Ferry Nuclear Plant Unit 1 materials and services through Fiscal Year 2007, with the total dollar amount of contacts entered into in any fiscal year not to exceed &250 million.
20. Approval of a grant of a 30-year term public recreation easement, with conditional option for renewals, to the City of Florence, Alabama, affecting approximately 27 acres of land on Pickwick Reservoir in Lauderdale County, Alabama, Tract N. XTWDNC-1RE.
Please call TVA Media Relations at (865) 632-6000, Knoxville, Tennessee. Information is also available at TVA's Washington Office (202) 898-2999. People who plan to attend the meeting and have special needs should call (865) 632-6000. Anyone who wishes to comment on any of the agenda in writing may send their comments to: TVA Board of Directors, Board Agenda Comments, 400 West Summit Hill Drive, Knoxville, Tennessee 37902.
Office of the United States Trade Representative.
Notice.
In a notice published on October 26, 2001 (66 FR 54321) (Notice), the Trade Policy Staff Committee (TPSC) established procedures for interested persons to request the exclusion of particular products from any action the President might take under section 203 of the Trade Act of 1974, as amended, (19 U.S.C. 2253) (Trade Act) with regard to certain steel products. Presidential Proclamation 7529 of March 5, 2002, established such actions with regard to certain steel products (safeguard measures), but excluded some of the particular products identified in requests for exclusion made in response to the Notice. See 67 FR 10553 (March 7, 2002). Proclamation 7529 authorized the United States Trade Representative (USTR) in March of each year in which any of the safeguard measure remains in effect to further exclude particular products from the pertinent safeguard measure established by the proclamation. The USTR is modifying procedures established on April 18, 2002 (67 FR 19307) for further consideration of such exclusion requests.
The USTR and the Department of Commerce will hold a public information session to review the anniversary exclusion filing procedures on Thursday, November 21, 2002, at 4 p.m. in room 3407 of the Department of Commerce, 14th and Constitution Avenue, NW., Washington, DC. Information will available on the USTR website at
Please send inquiries regarding the exclusion process by e-mail simultaneously to:
On March 5, 2002, pursuant to section 203 of the Trade Act of 1974, as amended (the “Trade Act”) (19 U.S.C. 2253), the President issued Proclamation 7529 (67 FR 10553), which imposed tariffs and a tariff-rate quota on (a) certain flat steel, consisting of: Slabs, plate, hot-rolled steel, cold-rolled steel, and coated steel;
Within 120 days after the date of that proclamation, the USTR was authorized to further consider any request for exclusion from the section 201 measures of a particular product submitted in accordance with the procedures set out in 66 FR 54321, 54322-54323 (October 26, 2001) and, upon publication in the
Proclamation 7529 also delegated to the USTR the authority, in March of each year in which any safeguard measure established by this proclamation remains in effect, upon publication in the
To facilitate the consideration of new exclusion requests, USTR requests persons interested in obtaining an exclusion from the safeguard measures of a particular product to send an e-mail to
USTR, in conjunction with the U.S. Department of Commerce, has developed a series of questions designed to elicit information that clearly identifies the product under consideration, and provides detailed information on the requester's situation. These questions, presented in the form of a requester questionnaire, are available on the USTR website at
In addition to the instructions contained in the questionnaire, USTR has developed guidelines in response to frequently asked questions to assist a requester in preparing a response to the questionnaire. The Guidelines further elaborate upon the questionnaire and provide sample responses to selected questions within the questionnaire. The Guidelines will be available on the USTR website at
USTR and the Commerce Department will review each exclusion request for the minimum level of sufficiency necessary to initiate each exclusion request. In the case of a deficient exclusion request, USTR or Commerce will transmit by e-mail a notice to the submitting party that briefly summarizes the nature of the deficiency and/or requests supplemental information. By providing a deficiency notice, USTR and the Commerce Department will otherwise make no comment on the merits of an exclusion request. Exclusion requesters will have 10 days from the date of transmission of the deficiency notice to remedy and file a correction or submit requested supplemental information to its exclusion request.
Short descriptions of the particular products covered by complete questionnaire responses will be posted in groups on the USTR website, and the requester questionnaires will be made available to the public in the Commerce Department Central Records Unit. The timing and size of the posting of such groups will be determined and announced at a future date by USTR and will depend on the volume and nature of exclusion requests received by USTR.
USTR, in conjunction with the Commerce Department, has developed a series of questions designed to substantiate any objections. These questions, presented in the form of an objector questionnaire, will be available on the USTR website at
If a complete response to the requester questionnaire with regard to a particular product has not been received by December 3, 2002, USTR may disregard the exclusion request for that product. If a complete response to the objector questionnaire with regard to a particular product has not been received by the date that will be established by USTR, USTR will assume that the domestic industry does not object to the exclusion of that particular product.
USTR and the Commerce Department will make time available to meet with interested persons in the latter half of January 2003 to review the submissions related to exclusion requests. USTR will publish instructions on the USTR website in December for requesting meetings with the exclusion analysis team, and will notify the parties of the meeting schedule in the first half of January 2003. If the number of meetings requested exceeds the time available for such meetings, priority will be given to those meetings that discuss exclusion requests that, in the opinion of USTR and Commerce, require further inquiry.
Each exclusion request will be evaluated on a case-by-case basis. USTR will grant only those exclusions that do not undermine the objectives of the safeguard measures. In analyzing the requests, USTR will consider whether the product is currently being produced in the United States, whether substitution of the product is possible, whether qualification requirements affect the requester's ability to use domestic products, current inventory levels, whether the requested product is under development by a U.S. producer who will imminently be able to produce it in marketable quantities, and any other relevant factors.
Parties who wish to place an exclusion request on the record will be required to submit paper copies of each questionnaire response to the Department of Commerce Central Records Unit (B099) via Room 1870. Four paper copies of a public version of an exclusion request must be filed. Parties who wish to file business proprietary versions must submit four paper copies of the business proprietary version and two paper copies of the public version. In addition to paper copies, interested parties must also file an electronic version via e-mail in a WordPerfect or Microsoft Word format to
Any long description of the product subject to an exclusion request must include only publicly available information, in text form (no tables or graphs), with all units of measurement converted to metric equivalents. The description must be sufficient to differentiate the product from other products, and to allow for enforcement of the exclusion, if granted, by the U.S. Customs Service.
We strongly discourage the submission of business proprietary information. Any questionnaire response that contains business proprietary information must be accompanied by two paper copies of a public summary that do not contain business proprietary information and four paper copies that do contain business proprietary information.
This notice contains a collection of information provision subject to the Paperwork Reduction Act (PRA) that the Office of Management and Budget (OMB) has approved. Notwithstanding any other provision of law, no person is required to respond to nor shall a person be subject to a penalty for failure to comply with a collection of information subject to the requirements of the PRA unless that collection of information displays a currently valid OMB number. This notice's collection of information burden is only for those persons who wish voluntarily to request the exclusion of a product from the safeguard measures. It is expected that the collection of information burden will be no more than 20 hours. This collection of information contains no annual reporting or record keeping burden. OMB approved this collection of information under OMB control number 0350-0011. Please send comments regarding the collection of information burden or any other aspect of the information collection to USTR at the address above.
Office of the Secretary, Department of Transportation.
Extension of waiting period.
Delta Air Lines, Northwest Airlines, and Continental Airlines have submitted code-sharing and frequent-flyer program reciprocity agreements to the Department for review under 49 U.S.C. 41720. That statute requires such agreements between major U.S. passenger airlines to be submitted to the Department at least thirty days before the agreements' proposed effective date and authorizes the Department to extend the waiting period for these agreements at the end of the thirty-day period. The Department has determined to extend the waiting period for the Delta/Northwest/Continental code-share agreements for an additional thirty days, from November 21 to December 21, 2002.
Any supplemental comments must be submitted by December 4, 2002.
Comments must be filed with Randall Bennett, Director, Office of Aviation Analysis, Room 6401, U.S. Department of Transportation, 400 7th St. SW., Washington, DC 20590. Late filed comments will be considered to the extent possible. To facilitate consideration of comments, each commenter should file three copies of its comments.
Thomas Ray, Office of the General Counsel, 400 Seventh St. SW., Washington, DC 20590, (202) 366-4731.
Delta, Northwest, and Continental submitted code-sharing and frequent-flyer program reciprocity agreements to us for review under 49 U.S.C. 41720 on August 23. That statute requires such agreements between major U.S. airlines to be submitted to us more than thirty days before their planned implementation, and it authorizes us to extend the waiting period by up to 150 days for code-sharing agreements and by up to sixty days for other types of agreements. We have already extended the waiting period for these agreements twice by thirty days. 67 FR 59328 (September 20, 2002); 67 FR 64960 (October 22, 2002). We have determined to extend the waiting period for the code-share agreement for an additional thirty days to give us time to consider the supplemental comments being submitted by other parties interested in the agreement. While we cannot extend the waiting period for the frequent flyer reciprocity agreement again, we are continuing to examine the competitive issues raised by the frequent flyer reciprocity agreement, and we request that parties address those issues in their comments as well.
We have been informally reviewing the agreements submitted by Delta, Continental, and Northwest and discussing the competitive issues with the Justice Department. Our review of the agreements is focusing on whether they may reduce competition. To bar the parties from implementing the agreements, we would need to determine that they were unlawful under 49 U.S.C. 41712 as an unfair method of competition, that is, that the agreements violate the antitrust laws or antitrust principles.
To assist us in our review, we have given interested parties the opportunity to submit comments on the agreements, initially on the basis of redacted copies of the agreements and more recently on the basis of unredacted copies, subject to restrictions designed to ensure that the confidential business information in the agreements does not become public. We made the unredacted copies of the agreements available to the parties on November 12 after giving Delta, Continental, and Northwest some advance notice of our decision to make the copies available. 67 FR 69297 (November 15, 2002).
Any supplemental comments must be submitted no later than December 4. That deadline will give the parties adequate time to submit any additional analysis based on their review of the unredacted material. We will then consider all of the comments and the information provided by Delta, Continental, and Northwest and further consult with the Justice Department. We hope to make a final decision by December 21 on whether more formal action should be taken on the agreements.
The following Agreements were filed with the Department of Transportation under the provisions of 49 U.S.C. 412 and 414. Answers may be filed within 21 days after the filing of the application.
PTC EUR 0481 dated October 25, 2002,
TC2 Within Europe Expedited Resolutions 002ap, 074my r1-r2,
PTC2 EUR 0482 dated October 25, 2002,
TC2 Within Europe Expedited Resolutions r3-r8,
PTC2 EUR 0483 dated October 25, 2002,
TC2 Within Europe Expedited Resolutions 002ar, 004a r9-r10,
Intended effective date: December 1, 2002, December 15, 2002, January 1, 2003.
The following Applications for Certificates of Public Convenience and Necessity and Foreign Air Carrier Permits were filed under subpart B (formerly subpart Q) of the Department of Transportation's Procedural Regulations (See 14 CFR 301.201 et. seq.). The due date for Answers, Conforming Applications, or Motions to Modify Scope are set forth below for each application. Following the Answer period DOT may process the application by expedited procedures. Such procedures may consist of the adoption of a show-cause order, a tentative order, or in appropriate cases a final order without further proceedings.
The Department issued a notice on August 8, 2002, providing guidance for airlines and the traveling public regarding the obligation of airlines under section 145 of the Aviation and Transportation Security Act (“Act”) to transport passengers of airlines that have ceased operations due to insolvency or bankruptcy. (Pub. L. 107-71, 115 Stat. 645 (November 19, 2001)) That notice, which was issued after Vanguard Airlines' July 2002 cessation of service, was intended to provide immediate guidance in response to numerous complaints from ticketed passengers and inquiries from airlines. On November 6, 2002, National Airlines ceased operations. The purpose of this notice is to remind carriers that the provisions of section 145 also apply to National Airlines' cessation of service.
As guidance to the industry, the Department's August 8 notice mentioned several factors that we would look to in determining whether airlines were complying with section 145.
After the issuance of our August 8 notice, several carriers informally sought additional clarification, specifically regarding recovery of the costs of accommodating passengers under section 145. In our August 8 notice, we stated that we did not foresee that such costs would exceed $25.00.
Several carriers have informally raised concerns that the $25.00 cost estimate was too low. In each such instance, Department staff has advised those carriers that, to the extent they experienced and could document reasonable direct costs in excess of the $25.00 estimated amount, they should be entitled to recover such costs under the statute. Department staff has specifically requested each airline that had expressed concern to provide evidence demonstrating that its reasonable direct costs exceeded the estimated $25.00 amount. No airline has provided any documentation in
With respect to National Airlines, the Department has not received any written comments or other evidence from any airline demonstrating that $25.00 would be insufficient to cover additional direct costs to transport persons holding tickets on a space-available basis. However, we have received reports that in some instances airlines have charged far in excess of $25.00 for transportation. Because we wish to ensure that airlines have had the opportunity to demonstrate that costs in excess of $25.00 each way are reasonable, the Department has not yet taken any action with respect to any airline in connection with section 145 involving either Vanguard Airlines' or National Airlines' cessations of operations. To obtain further information on this issue from the traveling public and the airlines, we request that any airline or person who believes that the Department's estimate of $25.00 is either insufficient, or is more than necessary to cover the direct costs of accommodating ticketed passengers on a space available basis, contact the Department's Office of Aviation Enforcement and Proceedings, at the address below, within seven days of the date of this notice and provide written comments and evidence of costs in support of their position.
Questions regarding this notice may be addressed in writing to Dayton Lehman, Deputy Assistant General Counsel, Office of Aviation Enforcement and Proceedings, 400 7th St., SW., Washington, DC 20590, or he may be contacted by telephone at (202) 366-9342.
An electronic version of this document is available on the World Wide Web at
Coast Guard, DOT.
Request for comments.
In compliance with the Paperwork Reduction Act of 1995, the Coast Guard intends to seek the approval of OMB for the renewal of six Information Collection Requests (ICRs). The ICRs comprise (1) National Response Resource Inventory; (2) Facilities Transferring Oil or Hazardous Materials in Bulk—Letter of Intent and Operations Manual; (3) Records on Oil and Hazardous Material Pollution Prevention and Safety: Equivalents, Alternatives, and Exemptions; (4) Requirements for the Use of Liquefied Petroleum Gas and Compressed Natural Gas as Cooking Fuel on Passenger Vessels; (5) Periodic Gauging and Engineering Analyses for Certain Tank Vessels Over 30 Years Old; and (6) Mandatory Ship Reporting System for the Northeast and Southeast Coasts of the United States. Before submitting the ICRs to OMB, the Coast Guard is inviting comments on them as described below.
Comments must reach the Coast Guard on or before January 21, 2003.
To make sure that your comments and related material do not enter the docket (USCG 2002-13767) more than once, please submit them by only one of the following means:
(1) By mail to the Docket Management Facility, U.S. Department of Transportation (DOT), Room PL-401, 400 Seventh Street SW., Washington, DC 20590-0001. Caution: Because of recent delays in the delivery of mail, your comments may reach the Facility more quickly if you choose one of the other means described below.
(2) By delivery to room PL-401 on the Plaza level of the Nassif Building, 400 Seventh Street SW., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The telephone number is 202-366-9329.
(3) By fax to the Facility at 202-493-2251.
(4) Electronically through the Web Site for the Docket Management System at
The Facility maintains the public docket for this notice. Comments and material received from the public, as well as documents mentioned in this notice as being available in the docket, will become part of this docket and will be available for inspection or copying at room PL-401 on the Plaza level of the Nassif Building, 400 Seventh Street SW., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. You may also find this docket on the Internet at
Copies of the complete ICR are available through this docket on the Internet at
Barbara Davis, Office of Information Management, 202-267-2326, for questions on these documents; or Dorothy Beard, Chief, Documentary Services Division, U.S. DOT, 202-366-5149, for questions on the docket.
The Coast Guard encourages interested persons to submit comments. Persons submitting comments should include their names and addresses, identify this document by docket number (USCG 2002-13767), and give the reasons for the comments. Please submit all comments and attachments in an unbound format no larger than 8
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Coast Guard, DOT.
Request for comments.
In compliance with the Paperwork Reduction Act of 1995, the Coast Guard intends to seek the approval of OMB for the renewal of five Information Collection Requests (ICRs). The ICRs comprise (1) Approval of Plans and Records for Marine Engineering Systems—46 CFR Subchapter F; (2) Ships Carrying Bulk Hazardous Liquids; (3) Report of Discharge of Oil or Hazardous Substance; (4) Records Relating to Citizenship of Personnel on Units Engaged in Activities on Outer Continental Shelf (OCS); and (5) Barges Carrying Bulk Hazardous Materials. Before submitting the ICRs to OMB, the Coast Guard is inviting comments on them as described below.
Comments must reach the Coast Guard on or before January 21, 2003.
To make sure that your comments and related material do not enter the docket (USCG 2002-13766) more than once, please submit them by only one of the following means:
(1) By mail to the Docket Management Facility, U.S. Department of Transportation (DOT), Room PL-401, 400 Seventh Street SW., Washington, DC 20590-0001. Caution: Because of recent delays in the delivery of mail, your comments may reach the Facility more quickly if you choose one of the other means described below.
(2) By delivery to Room PL-401 on the Plaza level of the Nassif Building, 400 Seventh Street SW., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The telephone number is 202-366-9329.
(3) By fax to the Facility at 202-493-2251.
(4) Electronically through the Web Site for the Docket Management System at
The Facility maintains the public docket for this notice. Comments and material received from the public, as well as documents mentioned in this notice as being available in the docket, will become part of this docket and will be available for inspection or copying at
Copies of the complete ICR are available through this docket on the Internet at
Barbara Davis, Office of Information Management, 202-267-2326, for questions on these documents; or Dorothy Beard, Chief, Documentary Services Division, U.S. DOT, 202-366-5149, for questions on the docket.
The Coast Guard encourages interested persons to submit comments. Persons submitting comments should include their names and addresses, identify this document by docket number (USCG 2002-13766), and give the reasons for the comments. Please submit all comments and attachments in an unbound format no larger than 8
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National Highway Traffic Safety Administration (NHTSA), DOT.
Meeting Announcement.
This notice announces the Tenth Quarterly Meeting of members of the Crash Injury Research and Engineering Network. CIREN is a collaborative effort to conduct research on crashes and injuries at ten Level 1 Trauma Centers linked by a computer network. Researchers can review data and share expertise, which could lead to a better understanding of crash injury mechanisms and the design of safer vehicles.
The meeting is scheduled from 9 a.m. to 5 p.m. on Thursday, December 5, 2002.
The meeting will be held at the Department of Transportation Headquarters, (Nassif Building), 400 Seventh Street, SW, Washington, DC 20590.
The CIREN System has been established and crash cases have been entered into the database by each Center. CIREN cases may be viewed from the NHTSA/CIREN Web site at:
NHTSA plans to continue holding quarterly meetings on a regular basis to disseminate CIREN information to interested parties. This is the tenth such meeting. The ten CIREN Centers will be presenting papers on the research specialty for their particular center regarding crash injury mechanisms. The next meeting is tentatively scheduled for April 3, 2003.
Should it be necessary to cancel the meeting due to inclement weather or to any other emergencies, a decision to cancel will be made as soon as possible and posted immediately on NHTSA's Web site
Catherine McCullough, Office of Advanced Safety Research, 400 Seventh Street, SW, Room 6220, Washington, DC 20590, telephone: (202) 366-4734.
National Highway Traffic Safety Administration (NHTSA), DOT.
Notice of decision by NHTSA that nonconforming 2001 Mercedes Benz Gelaendewagen 5-door long wheel base multipurpose passenger vehicles (MPVs) are eligible for importation.
This notice announces the decision by NHTSA that 2001 Mercedes Benz Gelaendewagen 5-door long wheel base MPVs not originally manufactured to comply with all applicable Federal motor vehicle safety standards are eligible for importation into the United States because they have safety features that comply with, or are capable of being altered to comply with, all applicable Federal motor vehicle safety standards.
This decision is effective as of the date of its publication in the
Luke Loy, Office of Vehicle Safety Compliance, NHTSA (202-366-5308).
Under 49 U.S.C. 30141(a)(1)(A), a motor vehicle that was not originally manufactured to conform to all applicable Federal motor vehicle safety standards (“FMVSS”) shall be refused admission into the United States unless NHTSA has decided that the motor vehicle is substantially similar to a motor vehicle originally manufactured for importation into and sale in the United States, certified under 49 U.S.C. 30115, and of the same model year as the model of the motor vehicle to be compared, and is capable of being readily altered to conform to all applicable FMVSS.
Where there is no substantially similar U.S.-certified motor vehicle, 49 U.S.C. 30141(a)(1)(B) permits a nonconforming motor vehicle to be admitted into the United States if its safety features comply with, or are capable of being altered to comply with, all applicable FMVSS based on destructive test data or such other evidence as NHTSA decides to be adequate.
Petitions for eligibility decisions may be submitted by either manufacturers or importers who have registered with NHTSA pursuant to 49 CFR part 592. As specified in 49 CFR 593.7, NHTSA publishes notice in the
J.K. Technologies, LLC, of Baltimore, MD, (“J.K.”) (Registered Importer 90-006) petitioned NHTSA to decide whether 2001 Mercedes Benz Gelaendewagen MPVs are eligible for importation into the United States. NHTSA published notice of the petition on August 1, 2001 (66 FR 39823) to afford an opportunity for public comment. The reader is referred to that notice for a thorough description of the petition.
One comment was received in response to the notice of the petition, from the Original Automobile Manufacturers' Association of Concord, New Hampshire. This comment was signed by a James Linder, who identified himself as President of the organization. The comment questioned the adequacy of the documentation submitted by J.K. to demonstrate that the 2001 Mercedes Benz Gelaendewagen MPV complies with, or is capable of being altered to comply with, a number of FMVSSs. The comment recommended that the NHTSA engineer responsible for each of the standards cited (Standard Nos. 103, 104, 105, 108, 113, 114, 118, 124, 201, 202, 204, 206, 207, 208, 209, 210, 212, 214, 216, 219, 301, and 302, as well as the Federal Bumper Standard found in 49 CFR Part 581) review the data submitted by J.K. to determine whether it is sufficient to certify the compliance of the 2001 Mercedes Benz Gelaendewagen MPV with the standard. After receiving this comment, NHTSA learned that the names of both the organization that purportedly submitted it, and the individual who signed it, are fictitious. In light of this circumstance, as well as the fact that the comment essentially offers little more than suggestions to guide the agency in its review of the petition, we have concluded that it does not merit further discussion in this document. We do note, however, that in processing import eligibility petitions, the agency does obtain, when necessary, input of the kind the comment
After initially reviewing the petition, the agency informed J.K., by letter dated December 7, 2001, that it had submitted insufficient test data to demonstrate that the 2001 Mercedes Benz Gelaendewagen MPV complies with, or is capable of being altered to comply with, Standard Nos. 105 Hydraulic Brake Systems, 208 Occupant Crash Protection, 214 Side Impact Protection, and 301 Fuel System Integrity. The letter asked J.K. how it intended to bring the vehicle into compliance with these standards.
In lieu of responding to this request, J.K. asked the agency, by letter dated January 24, 2002, to disregard and destroy the data submitted in support of its original petition, and to process the petition instead under 49 U.S.C. 30141(a)(1)(A), on the basis that there is a U.S.-certified version of the vehicle. J.K. identified that vehicle as the 2002 Gelaendewagen Type 463 MPV (identified in the letter as the “G500 model”) that Mercedes-Benz had begun to import into the United States. The letter asserted that this was an appropriate comparative vehicle because the vehicle that was the subject of the petition was actually produced after some of the vehicles that Mercedes had been importing with a 2002 model year designation.
The agency next received an inquiry concerning the status of the petition from an individual who identified himself as a client of J.K.'s. The individual stated that he had contracted with J.K. for the importation of a 3-door short wheel base convertible version of the 2001 Mercedes Benz Gelaendewagen. The agency subsequently learned from Mercedes Benz North America that the only model year 2002 Gelaendewagen being offered for sale in the United States is the 5-door long wheel base version of the vehicle. Based on this information, the agency asked J.K. to clarify which versions of the vehicle were covered by its petition, and to modify the petition if J.K. intended it to cover both long wheel base and short wheel base versions. J.K. responded, by letter dated April 15, 2002, that it intended the petition to cover all versions of the 2001 Mercedes Benz Gelaendewagen.
The agency then informed J.K., by letter dated May 15, 2002, that due to the 18-inch wheelbase difference and weight difference between the short wheel base and long wheel base versions of the vehicle, as well as the body difference with regard to the convertible model, the compliance of the 5-door long wheel base version with Standard Nos. 201, 204, 208, 210, 214, 216, and 301 does not necessarily demonstrate compliance of the 3-door short wheel base and convertible versions with those standards. The agency accordingly asked J.K. to supply it with additional information substantiating that the 3-door short wheel base and convertible models of the vehicle comply with those standards if J.K. wished the agency to construe the petition as applying to all three models. J.K. responded by letter dated August 12, 2002, requesting the agency to process the petition as applicable to the 5-door long wheel base version of the 2001 Gelaendewagen alone. J.K. stated that it would later submit separate petitions covering the other versions of the vehicle.
Since there was no substantially similar U.S.-certified version of the 2001 Mercedes Benz Gelaendewagen, 49 U.S.C. 30141(a)(1)(B) provides the only basis for the agency to decide that the vehicle is eligible for importation. As previously noted, that section permits a nonconforming motor vehicle to be admitted into the United States if its safety features comply with, or are capable of being altered to comply with, all applicable FMVSS based on destructive test or such other evidence as NHTSA decides to be adequate. In this instance, the fact that there is a U.S.-certified counterpart for the 5-door long wheel base version of the 2002 model Mercedes Benz Gelaendewagen has led the agency to conclude that the non-U.S. certified 5-door long wheel base model built in 2001 has safety features that comply with, or are capable of being altered to comply with, all applicable FMVSS. In light of this circumstance, the agency has decided to grant import eligibility to that model.
The importer of a vehicle admissible under any final decision must indicate on the form HS-7 accompanying entry the appropriate vehicle eligibility number indicating that the vehicle is eligible for entry. VCP-21 is the vehicle eligibility number assigned to vehicles admissible under this notice of final decision.
Accordingly, on the basis of the foregoing, NHTSA hereby decides that 2001 Mercedes Benz Gelaendewagen 5-door long wheel base multipurpose passenger vehicles that were not originally manufactured to comply with all applicable Federal motor vehicle safety standards are eligible for importation into the United States because they have safety features that comply with, or are capable of being altered to comply with, all applicable Federal motor vehicle safety standards.
49 U.S.C. 30141(a)(1)(B) and (b)(1); 49 CFR 593.8; delegations of authority at 49 CFR 1.50 and 501.8.
Pursuant to a written trackage rights and joint ownership agreement dated April 5, 2002, The Burlington Northern and Santa Fe Railway Company (BNSF) has agreed to grant limited overhead trackage rights to Union Pacific Railroad Company (UP) between BNSF milepost 3.3x near Argo, WA, and BNSF milepost 9.5x near Black River, WA, a distance of 6.2 miles, and UP has agreed to grant limited overhead trackage rights to BNSF between UP milepost 176.4 near Rhodes, WA, and UP milepost 173.1 near Black River, WA, a distance of 3.3 miles.
The parties state that consummation of the transaction was scheduled to occur immediately upon the November 6, 2002 effective date of the exemption (7 days after the exemption was filed) and that operations under the exemption were scheduled to begin on or after November 7, 2002.
The purpose of the trackage rights is to allow the phase-in of commuter rail enhancements to accommodate the Central Puget Sound Regional Transit Authority's commuter operations between Seattle and Tacoma, WA.
As a condition to this exemption, any employees affected by the trackage rights will be protected by the conditions imposed in
This notice is filed under 49 CFR 1180.2(d)(7). If the notice contains false or misleading information, the exemption is void
An original and 10 copies of all pleadings, referring to STB Finance Docket No. 34275, must be filed with the Surface Transportation Board, 1925 K Street, NW., Washington, DC 20423-0001. In addition, a copy of each pleading must be served on Sarah W. Bailiff, The Burlington Northern and Santa Fe Railway Company, 2500 Lou Menk Drive, P.O. Box 961039, Fort Worth, TX 76161-0039, and Robert T. Opal, Union Pacific Railroad Company, 1416 Dodge Street, Omaha, NE 68179.
Board decisions and notices are available on our Web site at
Decided: November 12, 2002.
By the Board, David M. Konschnik, Director, Office of Proceedings.
The Department of Treasury has submitted the following public information collection requirement(s) to OMB for review and clearance under the Paperwork Reduction Act of 1995, Public Law 104-13. Copies of the submission(s) may be obtained by calling the Treasury Bureau Clearance Officer listed. Comments regarding this information collection should be addressed to the OMB reviewer listed and to the Treasury Department Clearance Officer, Department of the Treasury, Room 2110, 1425 New York Avenue, NW, Washington, DC 20220.
Written comments should be received on or before December 19, 2002, to be assured of consideration.
The Department of Treasury has submitted the following public information collection requirement(s) to OMB for review and clearance under the Paperwork Reduction Act of 1995, Public Law 104-13. Copies of the submission(s) may be obtained by calling the Treasury Bureau Clearance Officer listed. Comments regarding this information collection should be addressed to the OMB reviewer listed and to the Treasury Department Clearance Officer, Department of the Treasury, Room 11000, 1750 Pennsylvania Avenue, NW., Washington, DC 20220.
Written comments should be received on or before December 19, 2002, to be assured of consideration.
Bureau of Public Debt, Treasury.
Notice and request for comments.
The Department of the Treasury, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995, Public Law 104-13 (44 U.S.C. 3506(c)(2)(A). Currently the Bureau of the Public Debt within the Department of the Treasury is soliciting comments concerning the electronic process for selling/issuing, servicing, and making payments on or redeeming U.S. Treasury securities.
Written comments should be received on or before January 17, 2003, to be assured of consideration.
Direct all written comments to Bureau of the Public Debt, Vicki S. Thorpe, 200 Third Street, Parkersburg, WV 26106-1328, or e-mail to
Requests for additional information should be directed to Vicki S. Thorpe, Bureau of the Public Debt, 200 Third Street, Parkersburg, WV 26106-1328, (304) 480-6553.
The Department of Veterans Affairs (VA), in accordance with Public Law 92-463 (Federal Advisory Committee Act), gives notice that a meeting of the Advisory Committee on Homeless Veterans will be held from Thursday, December 12, 2002 through Friday, December 13, 2002, at the VA Service Center, 2nd Floor—VOA Meeting Room, 1492 West Flagler Street, Miami, FL 33135. A public meeting will convene Thursday and Friday at 8:30 a.m. and end at 4 p.m. daily. There will be a town hall forum on Thursday from 4 p.m. to 6 p.m. at St. John Bosco Church, 1301 West Flager Street, Miami, FL 33135. The meeting and town hall forum are open to the public. Members of the public must sign up at the town hall meeting in order to speak at the town hall forum. The purpose of the Committee is to advise the Secretary of Veterans Affairs with an on-going assessment of the effectiveness of the policies, organizational structures, and services of the Department in assisting homeless veterans. The Committee shall assemble and review information relating to the needs of homeless veterans and provide on-going advice on the most appropriate means of providing assistance to homeless veterans. The Committee will make recommendations to the Secretary regarding such activities.
On December 12, the Committee will receive information about efforts to coordinate services and increase veteran access to homeless services from VA and other health and benefits programs and review new initiatives to assist veterans. A town hall forum will be held to hear comments and concerns from current and formerly homeless veterans, service providers, faith-based organizations and tribal governments. On December 13, the Committee will continue reviews of presentations and discuss future actions for the Committee including formulation of Committee recommendations.
Those wishing to attend the meeting should contact Mr. Pete Dougherty, Department of Veterans Affairs, at (202) 273-5764. No time will be allocated for receiving oral presentations from the public, except during the town hall forum. However, the Committee will accept written comments from interested parties on issues affecting homeless veterans. Such comments should be referred to the Committee at the following address: Advisory Committee on Homeless Veterans, Homeless Veterans Programs Office (075D), U.S. Department of Veterans Affairs, 810 Vermont Avenue, NW., Washington, DC 20420.
By Direction of the Secretary.
In notice document 02-28741 appearing on page 68842 in the issue of Wednesday, November 13, 2002, make the following correction:
On page 68842, in the second column, in the
In notice document 02-27939 beginning on page 67176 in the issue of Monday, November 4, 2002 make the following correction:
On page 67176, in the third column, the docket number was removed, the heading is corrected to read as set forth above.
In notice document 02-28289 beginning on page 67860 in the issue of Thursday, November 7, 2002, make the following correction:
On page 67860, in the third column, under the
In rule document 02-26370 beginning on page 64792 in the issue of Tuesday, October 22, 2002, make the following corrections:
1. On page 64794, in § 39.13, in the table, in the second column, in the first entry, in the third and fourth lines, “June 23, 2002” should read “June 23, 2000”.
2. On the same page, in the same section, in the same table, in the same column, in the same entry, in the fourth and fifth lines, “200-09-13” should read, “2000-09-13”.
Federal Energy Regulatory Commission, DOE.
Notice of proposed rulemaking.
The Federal Energy Regulatory Commission (Commission) proposes to revise its regulations to update the accounting and reporting requirements for liabilities for asset retirement obligations under its Uniform Systems of Accounts for public utilities, licensees, natural gas companies, and oil pipeline companies.
The Commission proposes to establish uniform accounting and financial reporting for the recognition and measurement of liabilities arising from retirement and decommissioning obligations of tangible long-lived assets and the related capitalized costs. The Commission also proposes to add new income statement accounts to the Uniform Systems of Accounts to record the accretion of the liability and the depreciation of the related capitalized costs. The Commission proposes to add or revise as necessary the definitions, general and plant instructions, and balance sheet and income statement accounts contained in the Uniform Systems of Accounts. Additionally, the Commission proposes to revise its rate filing requirements to incorporate the above mentioned changes.
Finally, the Commission proposes to revise the following Annual Reports: FERC Form No. 1, Annual Report of Major Public Utilities, Licensees and Others (Form 1); FERC Form No. 1-F, Annual Report of Nonmajor Public Utilities and Licensees (Form 1-F); FERC Form No. 2, Annual Report of Major Natural Gas Companies (Form 2); FERC Form No. 2-A, Annual Report of Nonmajor Natural Gas Companies (Form 2-A); and Form No. 6, Annual Report of Oil Pipeline Companies (Form 6) to include the new accounts and revised schedules proposed by this rulemaking.
An important objective of the proposed rule is to provide sound and uniform accounting and financial reporting for the above types of transactions and events. The new instructions and accounts will result in improved, consistent and complete accounting and reporting of liabilities for obligations associated with the retirement of tangible long-lived assets and the related asset retirement costs capitalized. The additions of new accounts and changes to the FERC Forms noted above will add visibility, completeness and consistency of the accounting and reporting of liabilities for asset retirement obligations and the related asset retirement costs capitalized.
Comments on the proposed rulemaking are due on or before January 3, 2003.
File written comments with the Office of the Secretary, Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426. Comments should reference Docket No. RM02-7-000. Comments may be filed electronically or by paper (an original and 14 copies, with an accompanying computer diskette in the prescribed format requested).
1. In this Notice of Proposed Rulemaking (NOPR), the Federal Energy Regulatory Commission (Commission) proposes to revise its Uniform Systems of Accounts
2. The purpose of the NOPR is to improve the usefulness of financial information provided to the Commission and other users of the FERC Forms by establishing uniform accounting and reporting requirements for legal obligations associated with the retirement of tangible long-lived assets. The Commission proposes to add or revise as necessary the definitions, general and plant instructions, and balance sheet and income statement accounts contained in the Uniform Systems of Accounts to incorporate the proposed changes for the accounting for asset retirement obligations. The Commission is of the view that such requirements are needed because these types of transactions and events are not clearly or consistently reported. This NOPR is part of the Commission's ongoing effort to address emerging accounting developments within the context of the Uniform Systems of Accounts.
3. The proposed accounting for asset retirement obligations is consistent with the accounting and reporting requirements that jurisdictional entities will use in their general purpose financial statements provided to shareholders and the Securities Exchange Commission (
4. An asset retirement obligation is a liability resulting from a legal obligation to retire or decommission a plant asset. The types of work activities typically include removing or dismantling the asset. For example, public utilities have a legal liability to decommission nuclear plants under certain Nuclear Regulatory Commission (NRC) regulations. The activities would include the dismantlement and removal of the reactor vessel and the related contaminated facilities. Natural gas pipeline companies may have legal liabilities to remove compressor stations and related piping under state regulations, local ordinances or agreements entered into with the landowners. Offshore pipelines may have legal obligations that arise under federal and state site clearance requirements to remove the offshore platforms, wells, pilings and other appurtenances resulting from the retirement of such facilities. However, certain assets may not have legal obligations if no law, statute, ordinance, or contract exists to remove or dismantle the facilities.
5. Business entities have accounted for legal obligations in various ways. Some business entities recognize these asset retirement obligations gradually over the life of the asset as part of depreciation expense while others have not recognized any liability for the legal obligations for the asset to be retired. Under the proposed accounting all entities must record the present value of the legal obligation at the time it is incurred.
6. To illustrate, the owner of a nuclear plant estimates that the cost to decommission the facilities as required by law is $400,000 ten years from today. Under the current practice the owner records $40,000 ($400,000/10 years) of additional depreciation expense each year for the cost of removing the plant. This simplified example ignores interest earnings, etc. on amounts placed in an external fund.
7. The new accounting standard requires that the owner record a liability for the present value of the $400,000. Assuming a $100,000 present value, the owner initially records a liability of $100,0000 and capitalizes a corresponding amount as part of the asset costs. The liability recorded will increase or grow over time (time value of money) until the actual retirement activity commences and the liability is settled (paid). Both approaches recognize the same total expenses of $400,000 over the asset's useful life. Under the new accounting standard, the total expenses are made up of $100,000 in depreciation on the capitalized asset costs plus $300,000 for the time value of money, while under the current practice the decommissioning liability is recognized on a pro rata basis over the life of the plant as depreciation expense of $400,000.
8. In summary, the new accounting standard requires the present value of the liability to be recorded for all assets. Additionally, the entity capitalizes this amount as part of the cost of the plant and depreciates it over the useful life of the related asset.
9. Finally, a gain or loss may be recognized for any difference between the estimated liability and the actual amount paid to settle the asset retirement obligation. In the example above, if the owner paid a contractor $380,000 to remove the plant and thereby settle the obligation, a gain of $20,000 will be recognized for the difference between the $400,000 liability recorded on its books and the $380,000 paid to the contractor for the work performed.
10. The Commission also proposes to revise its rate filing requirements to accommodate the above mentioned changes. In that regard, we specifically note that the proposed accounting will not affect jurisdictional entities' ability to recover costs arising from asset retirement obligations in rates. However, public utilities, licensees, natural gas and oil pipeline companies with formula rate tariffs must seek approval with the Commission prior to implementing the accounting changes, if doing so would affect tariff billings.
11. Finally, the Commission proposes to revise the following Annual Reports: FERC Form No. 1, Annual Report of Major Public Utilities, Licensees and Others (Form 1); FERC Form No. 1-F, Annual Report of Nonmajor Public Utilities and Licensees (Form 1-F); FERC Form No. 2, Annual Report of Major Natural Gas Companies (Form 2); FERC Form No. 2-A, Annual Report of Nonmajor Natural Gas Companies (Form 2-A); and FERC Form No. 6, Annual Report of Oil Pipeline Companies (Form 6) to include the new accounts and the revised schedules proposed in this rulemaking.
12. The recognition and measurement of legal liabilities associated with the retirement and decommissioning of long-lived assets by various entities, including Commission jurisdictional entities, has been inconsistent over the years. The usefulness of consistently recognizing and measuring asset retirement obligations in the financial statements resulted in the Financial Accounting Standards Board (FASB) issuing a new accounting pronouncement affecting the manner in which legal obligations are measured and reported in the financial statements applicable to entities in general.
13. An entity essentially recognizes a liability for the fair value of an asset retirement obligation at the time the asset is constructed, acquired, or when a change in the law creates a legal obligation to perform the retirement activities. Upon initial recognition of that liability, an entity also increases the cost of the related asset that gives rise to the legal obligation by the same amount.
14. Business entities are required to apply the standards for accounting for asset retirement obligations to all existing assets as if the accounting requirements had always been in existence for such assets, as well as those under construction that have associated legal obligations for their disposal or retirement.
15. The accounting standards for asset retirement obligations rely on the general standards of accounting for the effects of regulation for regulated entities in accordance with FASB Statement No. 71,
16. The Commission considers it desirable for its accounting requirements and those used by jurisdictional entities for general purpose financial reporting to be consistent. Currently, some jurisdictional entities do not recognize asset retirement obligations in the Uniform Systems of Accounts while other jurisdictional entities only recognize the amounts included in the rate setting process as a component of accumulated depreciation. The Commission is of the view that the accounting for asset retirement obligations to be an improvement in financial accounting and reporting practices. The Commission notes that the proposed rule will improve consistency in accounting and reporting of legal obligations to retire tangible long-lived assets which under current accounting practices are accounted and reported in an inconsistent manner. The Commission also notes that the proposed rule will provide the Commission's stakeholders with more transparent financial statement disclosure of the costs related to the legal obligation in the FERC Annual Reports. The proposed rule is consistent with the enhanced disclosure initiatives announced by the Security Exchange Commission to ensure more important transparent and comprehensive accounting and reporting information will be provided by business entities to their stakeholders.
17. In an effort to eliminate the inconsistencies in accounting practices by jurisdictional entities for asset retirement obligations, the Commission proposes to provide in the Uniform Systems of Accounts accounting requirements for the recognition and measurement of liabilities for obligations associated with the retirement and decommissioning of tangible long-lived assets. The Commission considers that the proposed rule for asset retirement obligations will provide consistent accounting and reporting requirements for the recognition and measurement of liabilities for legal obligations associated with the retirement of long-lived assets and the capitalization of the related asset retirement costs. The proposed rule, if adopted, will initially result in a minimal increase in burden as a result of standardizing the accounting and reporting for asset retirement obligations for regulatory purposes. The proposed rule will eliminate the need by jurisdictional entities to maintain duplicate sets of books.
18. Finally, on May 7, 2002, Commission staff held an informal technical conference to discuss the financial accounting, reporting and ratemaking implications related to obligations associated with the retirement of tangible long-lived assets.
19. The Commission's existing Uniform Systems of Accounts and Annual Report Forms for public utilities, licensees, and natural gas companies do not contain adequate instructions and accounts to provide for the recording of liabilities for asset retirement obligations and the associated asset retirement costs. Therefore, the following changes are proposed to our existing accounting and reporting regulations to provide transparent accounting and reporting to this Commission and other users of the FERC Forms 1, 1-F, 2 and 2-A any legal liabilities related to the future retirement or decommissioning of utility and nonutility plant.
20. The Commission proposes to create a new noncurrent liability account entitled account 230, Asset
21. Under the new accounting requirements, when an entity records a liability for an asset retirement obligation, it concurrently capitalizes that amount as part of the asset's cost. Effectively, the fair value of the obligation becomes part of the overall cost of the asset, similar to other amounts that are capitalized as part of the asset's construction or acquisition cost to separately identify these in the electric and gas utility plant records. The Commission proposes to create the following new primary plant accounts for each plant functions within account 101, Electric plant in service (Major only), for public utilities and licensees in part 101 of the Commission's regulations, and account 101, Gas plant in service, for natural gas companies in part 201 of the Commission's regulation, to record separately these amounts across the life of the asset.
22. For account 101, Electric plant in service (Major only), the new proposed primary plant accounts are shown in the following table:
23. For account 101, Gas plant in service, the new proposed primary plant accounts are shown in the following table below:
24. The Commission proposes that the amounts in the above primary plant accounts be depreciated over the life of the electric and gas utility plant giving rise to the asset retirement obligations. In order to separately identify the depreciation expense recorded on capitalized asset retirement costs related to electric and gas utility plant, the Commission proposes to create a new depreciation expense account entitled account 403.1, Depreciation expense for asset retirement costs, in parts 101 and 201 of the Commission's regulations to record these amounts on the income statement.
25. In addition to the above mentioned new accounts, the Commission also proposes to create a new General Instruction 25, Accounting for asset retirement obligations, for public utilities and licensees in part 101 and a new General Instruction 24, Accounting for asset retirement obligations, for natural gas companies in part 201 of the Commission's regulations to provide additional direction for the accounting for the recognition of asset retirement costs and related obligations. These proposed General Instructions provide for the capitalization of the asset retirement costs in electric and gas utility plant and nonutility plant accounts as appropriate. It also provides for the liability to be recorded in the new proposed noncurrent liability account 230, Asset retirement obligations, in parts 101 and 201 of the Commission's regulations.
26. Under proposed General Instruction 25 in part 101 and General Instruction 24 in part 201 of the Commission's regulations, the Commission proposes that the accretion of the liability be debited to the new proposed account 411.10, Accretion expense, for electric and gas utility plant, and the existing account 413, Expenses of electric plant leased to others, and account 413, Expenses of gas plant leased to others, for utility plant
27. Finally, when an asset retirement obligation is settled by a jurisdictional entity, a gain or loss can result from the difference between the estimated amount of the asset retirement obligation liability included in proposed account 230, Asset retirement obligations, and the actual amount paid to settle the obligation. For example, an entity may settle its asset retirement obligation by either using its internal workforce or paying a third party to perform the work to retire the electric or gas utility plant. If the amount of the liability included in account 230, Asset retirement obligations, is greater or less than the actual amount paid to settle the obligation, a gain or loss will be incurred. The Commission proposes to record gains or losses resulting from the settlement of asset retirement obligations for electric and gas utility plant in account 411.6, Gains from disposition of utility plant, and the account 411.7, Losses from disposition of utility plant, respectively.
28. The Commission proposes that any gains or losses relating to the settlement of asset retirement obligations for nonutility plant must be recorded directly in account 421, Miscellaneous nonoperating income, and account 426.5, Other deductions, respectively. The Commission proposes to revise the text of accounts 421 and 426.5 in parts 101 and 201 of the Commission's regulations to record gains in account 421 and losses in account 426.5 resulting from the settlement of asset retirement obligations related to nonutility property.
29. Finally, the Commission proposes that jurisdictional entities keep subsidiary records and supporting documentation for each asset retirement obligation in order to be able to furnish accurately and expeditiously the full details of the identity and nature of the legal obligation, the year incurred, the identity of the plant giving rise to the obligation, the full particulars relating of each component and supporting computations related to the measurement of the asset retirement obligation.
30. The Commission also proposes to revise the following additional existing definitions and general instructions, and revise the text of certain balance sheet and income statement accounts to the Uniform Systems of Accounts in parts 101 and 201 of the Commission's regulations to incorporate the accounting for asset retirement obligations as discussed above.
31. Under the Uniform Systems of Accounts in parts 101 and 201 of the Commission's regulations, jurisdictional entities record cost of removal related to the disposition and retirement of long-lived assets as a component of depreciation expense. The definition of cost of removal as presently contained in the Uniform Systems of Accounts includes the costs of demolishing, dismantling, tearing down or otherwise removing the electric or gas plant.
32. Under the Uniform Systems of Accounts in parts 101 and 201 for public utilities, licensees, and natural gas companies, there are no provisions under General Instruction 20, Accounting for leases, for the recognition of a liability for an asset retirement obligation and the related asset retirement costs that are not recognized as part of the liability related to minimum lease payments for a capital lease. The Commission proposes to add a new instruction to General Instruction 20, Accounting for leases, that provides when an entity incurs an asset retirement obligation through assumption of a capital lease, the entity must recognize the liability in account 230, Asset retirement obligations, and record the related asset retirement costs in account 101.1, Property under capital leases, account 120.6, Nuclear fuel under capital leases, or account 121, Nonutility property, as appropriate.
33. For public utilities, licensees, and natural gas companies, there are no specific provisions under the Uniform Systems of Accounts to allow for the capitalization of asset retirement costs related to legal obligations that were incurred during the construction of tangible long-lived assets. The Commission proposes to revise Electric and Gas Plant Instructions 3, Components of construction cost, in parts 101 and 201 of the Commission's regulations by adding asset retirement costs to the item list as a new construction cost component that is capitalized if incurred during the construction phase of a long-lived asset that gives rise to a legal obligation. However, since there will be no immediate cash expenditure during the construction phase for this cost, the Commission proposes to exclude this cost from the construction work in progress base for calculating the allowance for funds used during construction (AFUDC).
34. The Commission proposes to revise the instructions to account 121, Nonutility property, contained in parts 101 and 201 of the Commission's regulations to require the asset retirement costs associated with the nonutility plant to be recorded in account 121. The Commission also proposes that the depreciation expense on the asset retirement costs included in account 121 must be recorded in account 421, Miscellaneous nonoperating income, in parts 101 and 201 of the Commission's regulations.
35. The Commission proposes to add a new instruction to account 411.6, Gains from disposition of utility plant, and account 411.7, Losses from disposition of utility plant, to record
36. The Commission proposes that at the adoption of the final rule, jurisdictional entities must apply the proposed requirements of the rule to all existing long-lived assets at January 1, 2003, with legal obligations associated with the future retirement or disposal of those assets.
37. The Commission proposes at the initial date of the adoption of the accounting for asset retirement obligations rule, jurisdictional entities recognize a transition adjustment for a liability for any existing asset retirement obligation adjusted for the cumulative accretion on the liability and capitalize the associated asset retirement costs and the related accumulated depreciation on the capitalized costs. The Commission proposes that jurisdictional entities measure the transitional adjustment for the asset retirement cost and related liability for the retirement obligations for existing long-lived asset as of the date that the retirement obligation was incurred and would have been recognized through January 1, 2003. The transitional adjustment recognized for the existing long-lived asset represents the cumulative accretion of the liability and the accumulated depreciation on the related capitalized asset retirement cost from the date the obligation would have been incurred through January 1, 2003.
38. The Commission proposes that when the amount of any previously recognized asset retirement obligation recorded in account 108 and account 110 for major and non-major public utilities and licensees, respectively, and account 108 for natural gas companies is greater than the amount recognized under the proposed rule, the excess must be credited to account 254, Other regulatory liabilities. However, when the amount of any previously recognized asset retirement obligation in account 108 and account 110 for major and non-major public utilities and licensees, respectively, and account 108 for natural gas companies is less than the amount recognized under the proposed rule, the Commission proposes that the difference must be charged to income in account 435, Extraordinary deductions, and the related income taxes recorded in account 409.3, Income taxes, extraordinary items, and reported as a cumulative effect of a change in accounting principle.
39. For public utilities, licensees and natural gas companies, the instructions to account 108 and account 110 for major and non-major public utilities and licensees, respectively, in part 101 of the Commission's regulations
40. The Commission proposes that jurisdictional entities must charge the cumulative accretion expense on the liability for existing legal obligations to account 435, Extraordinary deductions, and the related income taxes in account 409.3, Income taxes, extraordinary items, under parts 101 and 201 of the Commission's regulations and report such amounts in net income as a cumulative effect of a change in accounting principle.
41. In summary, the Commission proposes at the date of adoption of the final rule, jurisdictional entities must record the liability for asset retirement obligation associated with those long-lived asset existing at January 1, 2003, in the new proposed account 230, Asset retirement obligations. The jurisdictional entities must capitalize the related asset retirement costs in the proposed primary plant accounts within the plant functions applicable to the utility plant that gives rise to the obligations. The Commission also proposes that jurisdictional entities must record any cumulative transition adjustments associated with the asset retirement obligations for existing long lived assets at the date of the adoption of the final rule in the appropriate accounts in the manner as prescribed above.
42. The Commission's proposed rule will require public utilities, licensees or natural gas companies for accounting purposes to recognize asset retirement obligations. The Commission is not requiring jurisdictional entities with stated rate tariffs to make any tariff filings with the Commission due to this rulemaking at this time. However, public utilities, licensees and natural gas companies with formula rate tariffs must not include any cost components related to asset retirement obligations in their formula rate billing determinations for automatic recovery prior to obtaining Commission approval.
43. The Commission proposes that to the extent, if any, a particular asset retirement cost should be allowed recovery through jurisdictional rates, it shall be addressed on a case by case basis in the individual rate change proposals filed by public utilities, licensees, and natural gas companies. Although the proposed accounting rules require the recording of an asset retirement cost, the Commission recognizes that no actual cash expenditures are made or required until
44. Therefore, it would be inappropriate for public utilities, licensees, and natural gas companies to include these asset retirement costs in rate base and collect a rate of return allowance and related income taxes on these amounts in jurisdictional rates. To ensure that all rate base amounts related to these assets can be identified and excluded from the rate base calculation in a rate change filing, the Commission is proposing to add new §§ 35.18 and 154.315 to its rate change filing requirements. These new regulations require that public utilities, licensees, and natural gas companies which have recorded an asset retirement obligation on their books in accordance with this proposed rule must, as part of any initial rate filing or general rate change filing, provide a schedule identifying all cost components related to the asset retirement obligation that are included in the book balances of all accounts reflected in the cost of service computation supporting the proposed rates. In addition, the proposed regulations require that all rate base items related to asset retirement obligations be removed from the rate base computation through an adjustment. If the public utility, licensee or natural gas company is seeking recovery of an asset retirement obligation in rates, it must also provide a detailed study supporting the amounts proposed to be collected in rates. If the public utility, licensee or natural gas company is not seeking recovery of the asset retirement obligation in rates, then it must remove all cost components related to asset retirement obligations from its cost of service.
45. The Commission is aware that a number of natural gas companies are currently collecting an allowance in jurisdictional rates to cover the future cost of retiring and removing facilities. This allowance is referred to as a negative salvage allowance. The Commission believes that these negative salvage allowances do not necessarily reflect the existence of a legal asset retirement obligation. Therefore, the Commission will require that negative salvage allowances that are not established due to an asset retirement obligation be identified for rate making purposes separately from asset retirement obligation allowances. The current rate change filing requirements for natural gas companies at § 154.312(d), Statement D, requires that any authorized negative salvage must be maintained in a separate subaccount of account 108, Accumulated provision for depreciation of gas utility plant. The Commission proposes to amend this section to ensure that this subaccount must not include any amounts related to asset retirement obligations.
46. Similar to the accounting changes for public utilities, licensees and natural gas companies, the Commission proposes to provide accounting requirements for asset retirement obligations in the Uniform Systems of Accounts for oil pipeline companies in part 352 of the Commission's regulations. Therefore, the following changes are proposed to the Commission's existing accounting regulations to provide transparent accounting and reporting of these amounts to this Commission and other users of the FERC Form 6.
47. The Commission proposes to create a new noncurrent liability account entitled account 67, Asset retirement obligations, in part 352 of the Commission's regulations to record legal liabilities related to the future decommissioning or retirement of carrier and noncarrier property. The Commission also proposes to create a new income statement account entitled account 591, Accretion expense, to record the increase in the liability due to the passage of time.
48. Under the new accounting requirements, when an oil pipeline records a liability for its asset retirement obligation, it concurrently capitalizes that amount in the carrier property accounts. In order to separately identify this cost in the carrier property records, the Commission proposes to create new carrier primary property accounts within existing account 30, Carrier property, for oil pipelines in part 352 of the Commission's regulations to separately identify these amounts throughout the life of the asset. The new proposed carrier primary property accounts are shown on the following table below:
49. The Commission proposes the amounts in the above carrier primary property accounts be depreciated over the life of the carrier property that gives rise to the asset retirement obligations. In order to identify the depreciation expense recorded on capitalized asset retirement costs, the Commission proposes to create a new depreciation expense account entitled account 541, Depreciation expense for asset retirement costs, to separately record these amounts on the income statement.
50. The Commission also proposes to create a new General Instruction 1-19, Accounting for asset retirement obligations, to provide the accounting for the recognition of asset retirement costs and obligations, in part 352 of the Commission's regulations. The new proposed General Instruction 1-19 will provide for the liability to be recorded in the new proposed noncurrent liability account entitled account 67, Asset retirement obligations, and the capitalization of the asset retirement costs in carrier and noncarrier property accounts.
51. Under proposed General Instruction 1-19, the Commission proposes to provide for recording the accretion of the liability for carrier property in the new proposed account 591, Accretion expense, and for noncarrier property in the existing account 620, Income (net) for noncarrier property.
52. Under proposed General Instruction 1-19, the Commission proposes that gains or losses resulting from the difference between the amount of the liability for the asset retirement obligation in account 67, Asset
53. The Commission also proposes in General Instruction 1-19 that oil pipeline companies maintain for purposes of analyses subsidiary records and supporting documentation for each asset retirement obligation to be able to furnish accurately and expeditiously the full details of the nature of the legal obligations and full particulars of the components and computations relating to the recognition and measurement of the asset retirement obligation.
54. The Commission also proposes to revise certain existing definitions, certain existing general instructions, and the text of certain balance sheet accounts in the Uniform Systems of Accounts for oil pipeline companies in part 352 of the Commission's regulations to incorporate the accounting for asset retirement obligations.
55. Under the Uniform Systems of Accounts under part 352 of the Commission's regulations, certain oil pipelines record cost of removal related to the disposition and retirement of long-lived assets as a component of depreciation expense. The Uniform Systems of Accounts definition of cost of removal as presently written includes the cost of demolishing, dismantling, tearing down or otherwise removing the property.
56. Under the Uniform Systems of Accounts in part 352 of the Commission's regulations for oil pipelines, there are no specific provisions to allow for the capitalization of an asset retirement cost related to a legal obligation that was incurred during the construction of tangible long-lived assets. The Commission proposes to revise the instructions for carrier property accounts, Instruction 3-3, Cost of property constructed, to add a new item for asset retirement costs incurred during the construction that will constitute a component of construction costs. The Commission proposes to exclude this cost from the construction work in progress base for calculating interest during construction because there will be no immediate cash expenditure during the construction phase for this cost.
57. The Commission proposes to include the asset retirement costs associated with noncarrier property that gives rise to the obligation in account 34, Noncarrier property, in part 352 of the Commission's regulations. The Commission also proposes that depreciation expense related to the capitalized retirement costs included in account 34, Noncarrier property, must be recorded in account 620, Income (net) from noncarrier property.
58. As discussed above under the new proposed General Instruction 1-19, the Commission proposes to add a new account 592, Gains or losses on asset retirement obligations, in part 352 of the Commission's regulations to include gains and losses resulting from the settlement of asset retirement obligations for carrier property.
59. The Commission proposes that at the adoption of the final rule, oil pipeline companies recognize the liability for existing asset retirement obligation and recognize the cumulative accretion of the liability, associated asset retirement costs and the related accumulated depreciation for the capitalized costs. The transition adjustment for the cumulative effect of the accretion of the liability and the accumulated depreciation on the related capitalized asset retirement costs is measured from the date the obligation would have been incurred and recognized through January 1, 2003, the initial date of adoption of the final rule.
60. The Uniform Systems of Accounts for oil pipeline companies in part 352 of the Commission's regulations provides that any change in accounting principle must be referred to this Commission for approval.
61. The Commission proposes that the difference of any amount previously recognized for the asset retirement obligation recorded in account 31, Accrued depreciation—carrier property, and the amount recognized under the proposed rule, must be charged to account 697. The Commission also proposes that oil pipeline companies must charge the cumulative accretion expense on the liability for existing legal obligations to account 697 as a cumulative effect of a change in accounting principle.
62. In summary, the Commission proposes that oil pipeline companies must record the liabilities associated with asset retirement obligations for those existing assets that would be incurred at the initial date of adoption of the final rule in the new proposed account 67, Asset retirement obligations, and capitalize the related asset retirement costs in the new proposed primary carrier property accounts within the carrier property class related to the carrier property that gives rise to the legal obligations. The Commission proposes that oil pipeline companies must include the cumulative accretion of the liability for the legal obligations in account 67, Asset retirement obligations, from the date incurred through the initial date of adoption of the final rule by charging account 697. The Commission also proposes that oil pipeline companies
63. The Commission's proposed rule will require oil pipeline companies to recognize for accounting purposes asset retirement obligations. The Commission is not requiring oil pipeline companies with stated rate tariffs to make any tariff filings with the Commission due to this rulemaking at this time. However, oil pipeline companies with formula rate tariffs must not include any cost components related to asset retirement obligations in their formula rate tariffs for automatic recovery in their billing determinations prior to obtaining Commission approval.
64. For the same reasons discussed above for public utilities, licensees and natural gas companies, the Commission proposes that to the extent, if any, a particular asset retirement cost should be allowed recovery through oil pipeline companies rates, it shall be addressed on a case by case basis in the individual rate change proposals filed by oil pipeline companies. The Commission proposes to add a new § 346.3 to cost-of-service filing requirements for oil pipelines. These new regulations require that oil pipelines who have recorded an asset retirement obligation on their books in accordance with this proposed rule must, as part of any initial rate filing or general rate change filing, provide a schedule identifying all cost components related to the asset retirement obligation that are included in the book balances of all accounts reflected in the cost of service computation supporting the proposed rates. In addition, the proposed regulations require that all rate base items related to asset retirement obligations be removed from the rate base computation through an adjustment. Oil pipeline companies seeking recovery of an asset retirement obligation in rates must also provide a detailed study supporting the amounts proposed to be collected in rates. If the oil pipeline is not seeking recovery of the asset retirement obligation in rates, then it must remove all asset retirement obligation related cost components from its cost of service.
65. The Commission is aware that a number of oil pipelines are currently collecting an allowance in jurisdictional rates to cover the future cost of retiring and removing facilities referred to as a dismantling, removal and restoration (DR&R) allowance. The Commission believes that these DR&R allowances do not necessarily reflect the existence of a legal obligation for the retirement of long-lived assets. Therefore, the Commission will require that DR&R allowances that are not established due to an asset retirement obligation be identified for rate making purposes separately from asset retirement obligation allowances.
66. The Commission proposes the rule for accounting and reporting purposes be effective January 1, 2003, for public utilities, licensees, natural gas companies and oil pipeline companies. This is the date jurisdictional entities that file FERC Forms 1, 1-F, 2, 2-A and 6, will record the transitional adjustment to recognize asset retirement obligations in their books and records.
67. The proposed changes, if adopted, will require revising the existing schedules in the FERC Forms 1, 1-F, 2, 2-A, and 6 filed with the Commission. A table summarizing the changes to the various schedules is shown in Appendix A. As a result of the Commission proposed accounting changes referred to above for public utilities, licensees, natural gas and oil pipeline companies, the Commission proposes to report in the Forms 1, 1-F, 2, 2-A and 6 the new noncurrent liability account for asset retirement obligations in the comparative balance sheet schedules, the new depreciation expense accounts and new accretion expense accounts in the income statement schedules.
68. The Commission also proposes to report in the Forms 1, 1-F, 2, 2-A and 6 the new primary plant accounts for asset retirement costs for each function for electric and gas utility plant and oil pipeline carrier property. The Commission proposes to report in the Forms 1, 1-F, 2, 2-A and 6 the depreciation expense related to the asset retirement costs separately in the accumulated provision for depreciation schedules for electric and gas utility plant and the accrued depreciation schedules for carrier property. In addition, the Commission proposes for public utilities and licensees to change the plant statistical schedules to include the asset retirement costs related to electric utility plant.
69. The Commission is proposing to revise the reporting requirements in the Forms 1, 1-F, 2, 2-A and 6 financial reports consistent with the changes in the proposed rule to promote consistent reporting practices for asset retirement obligations to the Commission by jurisdictional entities. The Commission believes that asset retirement obligations must be identified and reported in the Forms 1, 1-F, 2, 2-A and 6 separately in the financial statements and supporting schedules because of the long-term nature of the obligations to retire long-lived assets. Furthermore, the Commission believes separate reporting of the accounts for asset retirement obligations on the balance sheet, income statement and certain other schedules in the Forms 1, 1-F, 2, 2-A and 6 provides more transparent reporting of the asset retirement obligations to meet the Commission's information needs.
70. The reporting would include certain disclosure for asset retirement obligations in the “Notes to Financial Statements” in the FERC Forms 1, 1-F, 2, 2-A and 6.
71. The Commission proposes that jurisdictional entities that report a liability for asset retirement obligations must disclose the following: (1) A general description of the asset retirement obligations and the associated long-lived assets; (2) the fair value of assets that legally are restricted for purposes of settling the asset retirement obligations; (3) a reconciliation of the beginning and ending aggregate carrying amount of asset retirement obligations showing separately the changes attributable to (i)
72. The Commission proposes jurisdictional entities must report on a separate line in the Statement of Cash Flows in FERC Forms 1, 1-F, 2, 2-A and 6 under the “Operating Activities” classification any cash payments made to settle asset retirement obligations.
73. The Commission concludes that the above reporting requirements would not be a significant reporting burden since the information would be captured in jurisdictional entities accounting systems for internal and external reporting as needed.
74. The Regulatory Flexibility Act (RFA) requires agencies to prepare certain statements, descriptions, and analyses of proposed rules that will have a significant economic impact on a substantial number of small entities.
75. The Commission does not believe that this proposed rule would have such an impact on small entities. Most filing companies regulated by the Commission do not fall within the RFA's definition of a small entity.
76. However, if the reporting requirements represent an undue burden on small businesses, the entity affected may seek a waiver of the disclosure requirements from the Commission.
77. Commission regulations require that an environmental assessment or an environmental impact statement be prepared for any Commission action that may have a significant adverse effect on the human environment.
78. The following collections of information contained in this proposed rule have been submitted to the Office of Management and Budget (OMB) for review under section 3707(d) of the Paperwork Reduction Act of 1995.
79. Comments are solicited on the need for this information, whether the information will have practical utility, the accuracy of the provided burden estimates, ways to enhance the quality, utility, and clarity of the information to be collected, and any suggested methods for minimizing respondents' burden, including the use of automated information techniques. The following burden estimates are for complying with this proposed rule as follows:
80. In addition, the Commission will address changes to tariffs on a case by case basis, it has not provided estimates for the number of entities that will make filings under FERC-516, FERC-545 or FERC-550.
81. Total Annual Hours for Collection (reporting + recordkeeping, if appropriate) = 6,635 hours. The total hours associated with this proposed rule is equal to 6,635 hours. It should be noted that burden if the proposed rule if adopted, applies only for jurisdictional entities to comply with the Commission's Uniform Systems of Accounts, Annual Reports, and Rate Schedule Filings. Jurisdictional entities must maintain much of this information in order to implement the accounting for asset retirement obligations for reporting under generally accepted accounting principles. The proposed rule will eliminate the need by jurisdictional entities to maintain duplicate sets of books.
82.
83. Annualized Costs (Operations & Maintenance)—If adopted, costs for performing the proposed schedules will be rolled into the total costs for completing the Commission's annual financial reports.
84. Total Annualized costs—$373,350.
85. OMB's regulations require it to approve certain information collection requirements imposed by agency rule. The Commission is submitting notification of this proposed rule to OMB.
86.
87.
88.
89. The applicant will not be penalized for failure to respond to these collections of information unless the collection of information displays a valid OMB control number or the Commission has provided justification as to why the control number should not be displayed.
90.
91.
92.
93.
94. These requirements conform to the Commission's plan for efficient information collection, communication, and management within the electric, natural gas and oil pipeline industries. The Commission has assured itself, by means of internal review, that there is specific, objective support for the burden estimates associated with the information requirements.
95. Interested persons may obtain information on the reporting requirements by contacting the following: Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426 [
96. For submitting comments concerning the collection of information(s) and the associated burden estimate(s), please send your comments to the contact listed above and to the Office of Management and Budget, Office of Information and Regulatory Affairs, Washington, DC 20503, [
97. The Commission invites interested persons to submit written comments on the matters and issues proposed in this notice to be adopted, including any related matters or alternative proposals that commenters may wish to discuss. Comments are due within 45 days from publication in the
98. Documents filed electronically via the Internet can be prepared in a variety of formats, including WordPerfect, MS Word, Portable Document Format, Real Text Format, or ASCII format, as listed on the Commission's Web site at
99. For paper filings, the original and 14 copies of such comments should be submitted to the Office of the Secretary, Federal Energy Regulatory Commission, 888 First Street, NE., Washington DC 20426.
100. All comments will be placed in the Commission's public files and will be available for inspection in the
101. In addition to publishing the full text of this document in the
102. From FERC's Home Page on the Internet, this information is available in the Federal Energy Regulatory Records Information System (FERRIS). The full text of this document is available on FERRIS in PDF and WordPerfect format for viewing, printing, and/or downloading. To access this document in FERRIS, type the docket number of this document, excluding the last three digits in the docket number field. User assistance is available for FERRIS and the FERC's Web site during normal business hours from our 103.Help Line at (202) 502-8222 (e-mail to
Electric power rates, Electric utilities, Electricity, Reporting and recordkeeping requirements.
Electric power, Electric utilities, Reporting and recordkeeping requirements, Uniform System of Accounts.
Alaska Natural gas, Natural gas companies, Pipelines, Rate schedules and tariffs, Reporting and recordkeeping requirements.
Natural gas, Reporting and recordkeeping requirements, Uniform System of Accounts.
Pipelines, Reporting and recordkeeping requirements.
Pipelines, Reporting and recordkeeping requirements, Uniform System of Accounts.
By direction of the Commission.
In consideration of the foregoing, the Commission proposes to amend parts 35, 101, 154, 201, 346 and 352, chapter I, title 18, Code of Federal Regulations, as follows.
1. The authority citation for part 35 continues to read as follows:
16 U.S.C. 791a-825r, 2601-2645; 31 U.S.C. 9701; 42 U.S.C. 7101-7352.
2. Section 35.18 is added to read as follows:
(a) A public utility that files a rate schedule under § 35.12 or § 35.13 and has recorded an asset retirement obligation on its books must provide a schedule, as part of the supporting work papers, identifying all cost components related to the asset retirement obligations that are included in the book balances of all accounts reflected in the cost of service computation supporting the proposed rates. However, all cost components related to asset retirement obligations that would impact the calculation of rate base, such as electric plant and related accumulated depreciation and accumulated deferred income taxes, may not be reflected in rates and must be removed from the rate base calculation through a single adjustment.
(b) A public utility seeking to recover nonrate base costs related to asset retirement costs in rates must provide, with its filing under § 35.12 or § 35.13, a detailed study supporting the amounts proposed to be collected in rates.
(c) A public utility who has recorded asset retirement obligations on its books but is not seeking recovery of the asset retirement costs in rates, must remove all asset retirement obligations related cost components from the cost of service supporting its proposed rates.
3. The authority citation for part 101 continues to read as follows:
16 U.S.C. 791a-825r, 2601-2645; 31 U.S.C. 9701; 42 U.S.C. 7101-7352, 7651-7651o.
4. In Definitions, Definition 10 is revised to read as follows:
10.
5. In General Instructions, Instruction 20, paragraphs C. and D. are redesignated as paragraphs D. and E. and new paragraph C. is added; and a new Instruction 25 is added to read as follows:
20.
C. The utility, as a lessee, shall recognize an asset retirement obligation (See General Instruction 25) arising from the plant under a capital lease unless the obligation is recorded as an asset and liability under a capital lease. The utility shall record the asset retirement cost by debiting account 101.1, Property under capital leases, or account 120.6, Nuclear fuel under capital leases, or account 121, Nonutility property, as appropriate, and crediting the liability for the asset retirement obligation in account 230, Asset retirement obligations. Asset retirement costs recorded in account 101.1, account 120.6, or account 121 shall be amortized by charging rent expense (See Operating Expense Instruction 3), or account 518, Nuclear fuel expense (Major only), or account 421, Miscellaneous nonoperating income, as appropriate, and crediting a separate subaccount of the account in which the asset retirement costs are recorded. Charges for the periodic accretion of the liability in account 230, Asset retirement obligations, shall be recorded by a charge to account 411.10, Accretion expense, for electric utility plant, and account 421, Miscellaneous nonoperating income, for nonutility plant and a credit to account 230, Asset retirement obligations.
25.
A. An
B. The utility shall initially record a liability for an asset retirement obligation in account 230, Asset retirement obligations, and charge the associated asset retirement costs to electric utility plant (including accounts 101.1 and 120.6), and nonutility plant, as appropriate, related to the plant that gives rise to the legal obligation. The asset retirement cost shall be depreciated over the useful life of the related asset that gives rise to the obligations. For periods subsequent to the initial recording of the asset retirement obligation, a utility shall recognize the period to period changes of the asset retirement obligation that result from the passage of time due to the accretion of the liability and any subsequent measurement changes to the initial liability for the legal obligation recorded in account 230, Asset retirement obligations, as follows:
(1) The utility shall record the accretion of the liability by debiting account 411.10, Accretion expense, for electric utility plant, account 413, Expenses of electric plant leased to others, for electric plant leased to others, and account 421, Miscellaneous nonoperating income, for nonutility plant and crediting account 230, Asset retirement obligations; and
(2) The utility shall recognize any subsequent measurement changes of the liability initially recorded in account 230, Asset retirement obligations, for each specific asset retirement obligation as an adjustment of that liability in account 230 with the corresponding adjustment to electric utility plant, electric plant leased to others, and nonutility plant, as appropriate. The utility shall on a timely basis monitor any measurement changes of the asset retirement obligations.
C. Gains or losses resulting from the settlement of asset retirement obligations associated with utility plant resulting from the difference between the amount of the liability for the asset retirement obligation included in account 230, Asset retirement obligations, and the actual amount paid to settle the obligation shall be accounted for as follows:
(1) Gains shall be credited to account 411.6, Gains from disposition of utility plant, and;
(2) Losses shall be charged to account 411.7, Losses from disposition of utility plant.
D. Gains or losses on the settlement of asset retirement obligations associated with nonutility plant resulting from the difference between the amount of the liability for the asset retirement obligation in account 230, Asset retirement obligations, and the amount paid to settle the obligation, shall be accounted for as follows:
(1) Gains shall be credited to account 421, Miscellaneous nonoperating income, and;
(2) Losses shall be charged to account 426.5, Other deductions.
E. Separate subsidiary records shall be maintained for each asset retirement obligation showing the initial liability and associated asset retirement cost, any incremental amounts of the liability incurred in subsequent reporting periods for additional layers of the original liability and related asset retirement cost, the accretion of the liability, the subsequent measurement changes to the asset retirement obligation, the depreciation and amortization of the asset retirement costs and related accumulated depreciation, and the settlement date and actual amount paid to settle the obligation. For purposes of analyses a utility shall maintain supporting documentation so as to be able to furnish accurately and expeditiously with respect to each asset retirement obligation the full details of the identity and nature of the legal obligation, the year incurred, the identity of the plant giving rise to the obligation, the full particulars relating of each component and supporting computations related to the measurement of the asset retirement obligation.
6. In Electric Plant Instructions, paragraph 3.A.(17)(a) the (W) element is revised; and a new paragraph 3.A.(21) is added to read as follows:
3.
A. * * *
(17) * * *
(a) * * *
(W) = Average balance in construction work in progress plus nuclear fuel in process of refinement, conversion, enrichment and fabrication, less asset retirement costs (See General Instruction 25) related to plant under construction.
(21)
7. Balance Sheet Accounts is amended as follows:
(a) Account 101.1 is amended by adding a sentence to the end of paragraph C.;
(b) Account 103 paragraph C. is revised;
(c) Account 108 paragraph A.(2) through A.(7) are redesignated as paragraphs A.(3) through A.(8) and a new paragraph A.(2) is added;
(d) Account 110 paragraph A.(2) through A.(4) are redesignated as paragraphs A.(3) through A.(5) and a new paragraph A.(2) is added;
(e) Account 121, paragraph A. is amended by adding a sentence to the end of the paragraph; and
(f) Account 230 is added.
101.1 Property under capital leases.
C. * * * Records shall also be maintained for plant under a lease, to identify the asset retirement obligation and cost originally recognized for each lease and the periodic charges and credits made to the asset retirement obligations and asset retirement costs.
103 Experimental electric plant unclassified (Major only).
C. The depreciation on plant in this account shall be charged to account 403, Depreciation expense, and account 403.1, Depreciation expense for asset retirement costs, as appropriate, and credited to account 108, Accumulated provision for depreciation of electric utility plant (Major only). The amounts herein shall be depreciated over a period which corresponds to the estimated useful life of the relevant project considering the characteristics involved. However, when projects are transferred to account 101, Electric plant in service, a new depreciation rate based on the remaining service life and
A. * * *
(2) Amounts charged to account 403.1, Depreciation expense for asset retirement costs, for current depreciation expense related to asset retirement costs in electric plant in service in a separate subaccount.
A. * * *
(2) Amounts charged to account 403.1, Depreciation expense for asset retirement costs, in electric utility plant in service in a separate subaccount.
A. * * * This account shall also include, where applicable, amounts recorded for asset retirement costs associated with nonutility plant.
A. This account shall include the amount of liabilities for the recognition of asset retirement obligations related to electric utility plant and nonutility plant that gives rise to the obligations. This account shall be credited for the amount of the liabilities for asset retirement obligations with amounts charged to the appropriate electric utility plant accounts or nonutility plant account to record the related asset retirement costs.
B. The utility shall charge the accretion expense to account 411.10, Accretion expense, for electric utility plant, account 413, Expenses of electric plant leased to others, for electric plant leased to others, or account 421, Miscellaneous nonoperating income, for nonutility plant, as appropriate, and credit account 230, Asset retirement obligations.
C. This account shall be debited with amounts paid to settle the asset retirement obligations recorded herein.
D. The utility shall clear from this account any gains or losses resulting from the settlement of asset retirement obligations in accordance with the instructions prescribed in General Instruction 25.
8. In Electric Plant Accounts, new primary plant accounts, 317, 326, 337, 347, 359.1, 374, and 399.1 are added to read as follows:
This account shall include asset retirement costs on plant included in the steam production function.
This account shall include asset retirement costs on plant included in the nuclear production function.
This account shall include asset retirement costs on plant included in the hydraulic production function.
This account shall include asset retirement costs on plant included in the other production function.
This account shall include asset retirement costs on plant included in the transmission plant function.
This account shall include asset retirement costs on plant included in the distribution plant function.
This account shall include asset retirement costs on plant included in the general plant function.
9. Amend Income Accounts as follows:
a. Account 403.1 is added,
b. Accounts 411.6 and 411.7 are amended by designating the current paragraph as A., and adding a new paragraph B.,
c. Account 411.10 is added,
d. In account 421, paragraphs 4. through 6. are added, and
e. In account 426.5 paragraph 6 is added.
The additions read as follows:
This account shall include the depreciation expense for asset retirement costs included in electric utility plant in service.
411.6
A. * * *
B. The utility shall record in this account gains resulting from the settlement of asset retirement obligations related to utility plant in accordance with the accounting prescribed in General Instruction 25.
411.7
A. * * *
B. The utility shall record in this account losses resulting from the settlement of asset retirement obligations related to utility plant in accordance with the accounting prescribed in General Instruction 25.
411.10
This account shall be charged for accretion expense on the liabilities associated with asset retirement obligations included in account 230, Asset retirement obligations, related to electric utility plant.
421
4. This account shall include the accretion expense on the liability for an asset retirement obligation included in account 230, Asset retirement obligations, related to nonutility plant.
5. This account shall include the depreciation expense for asset retirement costs related to nonutility plant.
6. The utility shall record in this account gains resulting from the settlement of asset retirement obligations related to nonutility plant in accordance with the accounting prescribed in General Instruction 25.
426.5
6. The utility shall record in this account losses resulting from the settlement of asset retirement obligations related to nonutility plant in accordance with the accounting prescribed in General Instruction 25.
10. The authority citation for part 154 continues to read as follows:
15 U.S.C. 717-717w; 31 U.S.C. 9701; 42 U.S.C. 7102-7352.
11. In § 154.312 paragraph (d), introductory text, is amended by removing the sentence “Any authorized negative salvage must be maintained in a separate subaccount of account 108,”
(d) * * * Any authorized negative salvage must be maintained in a separate subaccount of account 108, and shall not include any amounts related to asset retirement obligations.* * *
12. Section 154.315 is added to read as follows:
(a) A natural gas company that files a tariff change under this part and has recorded an asset retirement obligation on its books must provide a schedule, as part of the supporting workpapers, identifying all cost components related to the asset retirement obligations that are included in the book balances of all accounts reflected in the cost of service computation supporting the proposed rates. However, all cost components related to asset retirement obligations that would impact the calculation of rate base, such as gas plant and related accumulated depreciation and accumulated deferred income taxes, may not be reflected in rates and must be removed from the rate base calculation through a single adjustment.
(b) A natural gas company seeking to recover nonrate base costs related to asset retirement obligations in rates must provide, with its filing under § 154.312 or § 154.313, a detailed study supporting the amounts proposed to be collected in rates.
(c) A natural gas company who has recorded asset retirement obligations on its books but is not seeking recovery of the asset retirement costs in rates, must remove all asset retirement obligations related cost components from the cost of service supporting its proposed rates.
13. The authority citation for part 201 continues to read as follows:
15 U.S.C. 717-717w, 3301-3432; 42 U.S.C. 7101-7352, 7651-7651o.
14. In Definitions, Definition 10 is revised to read as follows:
10.
15. In General Instructions, Instruction 20 paragraphs C. and D. are redesignated as paragraphs D. and E. and a new paragraph C. is added; and a new Instruction 24 is added to read as follows:
20.
C. The utility, as a lessee, shall recognize an asset retirement obligation (
24.
A.
B. The utility shall initially record a liability for an asset retirement obligation in account 230, Asset retirement obligations, and charge the associated asset retirement costs to gas utility plant and nonutility plant, as appropriate, related to the plant that gives rise to the legal obligation. The asset retirement cost shall be depreciated over the useful life of the related asset that gives rise to the obligations. For periods subsequent to the initial recording of the asset retirement obligation, a utility shall recognize the period to period changes of the asset retirement obligation that result from the passage of time due to the accretion of the liability and any subsequent measurement changes to the initial liability for the legal obligation recorded in account 230, Asset retirement obligations, as follows:
(1) The utility shall record the accretion of the liability by debiting account 411.10, Accretion expense, for gas utility plant, account 413, Expenses of gas plant leased to others, for gas plants leased to others, and account 421, Miscellaneous nonoperating income, for nonutility plant and crediting account 230, Asset retirement obligations; and
(2) The utility shall recognize any subsequent measurement changes of the liability initially recorded in account 230, Asset retirement obligations, for each specific asset retirement obligation as an adjustment of that liability in account 230 with the corresponding adjustment to gas utility plant, gas plant leased to others, and nonutility plant, as appropriate. The utility shall on a timely basis monitor any measurement changes of the asset retirement obligations.
C. Gains or losses resulting from the settlement of asset retirement obligations associated with utility plant resulting from the difference between the amount of the liability for the asset retirement obligation included in account 230, Asset retirement obligations, and the actual amount paid to settle the obligation shall be accounted for as follows:
(1) Gains shall be credited to account 411.6, Gains from disposition of utility plant, and;
(2) Losses shall be charged to account 411.7, Losses from disposition of utility plant.
D. Gains or losses on the settlement of the asset retirement obligations associated with nonutility plant resulting from the difference between the amount of the liability for the asset retirement obligation in account 230, Asset retirement obligations, and the
(1) Gains shall be credited to account 421, Miscellaneous nonoperating income, and;
(2) Losses shall be charged to account 426.5, Other deductions.
E. Separate subsidiary records shall be maintained for each asset retirement obligation showing the initial liability and associated asset retirement cost, any incremental amounts of the liability incurred in subsequent reporting periods for additional layers of the original liability and related asset retirement cost, the accretion of the liability, the subsequent measurement changes to the asset retirement obligation, the depreciation and amortization of the asset retirement costs and related accumulated depreciation, and the settlement date and actual amount paid to settle the obligation. For purposes of analyses a utility shall maintain supporting documentation so as to be able to furnish accurately and expeditiously with respect to each asset retirement obligation the full details of the identity and nature of the legal obligation, the year incurred, the identity of the plant giving rise to the obligation, the full particulars relating of each component and supporting computations related to the measurement of the asset retirement obligation.
16. In Gas Plant Instructions, paragraph 3.A.(17)(a) the (W) element is revised; and new paragraph 3.A.(23) is added to read as follows:
3.
A. * * *
(17) * * *
(a) * * *
(W) = Average balance in construction work in progress less asset retirement costs (See General Instruction 24) related to plant under construction.
(23) “Asset retirement costs.” The costs recognized as a result of asset retirement obligations incurred during the construction and testing of utility plant shall constitute a component of construction costs.
17. Balance Sheet Accounts are amended as follows:
(a) Account 101.1, is amended by adding a sentence to the end of paragraph C.;
(b) Account 103, paragraph C. is revised;
(c) Account 108, paragraphs A.(2) through A.(7) are redesignated as paragraphs A.(3) through A.(8) and a new paragraph A.(2) is added;
(d) Account 121, paragraph A. is amended by adding a sentence to the end of the paragraph; and
(f) Account 230 is added.
The additions and revisions read as follows:
C. * * * Records shall also be maintained for plant under a lease, to identify the asset retirement obligation and cost originally recognized for each lease and the periodic charges and credits made to the asset retirement obligations and asset retirement costs.
C. The depreciation on plant in this account shall be charged to account 403, Depreciation expense, and account 403.1, Depreciation expense for asset retirement costs, as appropriate, and credited to account 108, Accumulated provision for depreciation of gas utility plant. The amounts herein shall be depreciated over a period which corresponds to the estimated useful life of the relevant project considering the characteristics involved. However, when projects are transferred to account 101, Gas plant in service, a new depreciation rate based on the remaining service life and undepreciated amounts, will be established.
A. * * *
(2) Amounts charged to account 403.1, Depreciation expense for asset retirement costs, for current depreciation expense related to asset retirement costs in gas plant in service in a separate subaccount.
A. * * * This account shall also include, where applicable, amounts recorded for asset retirement costs associated with nonutility plant.
A. This account shall include the amount of liabilities for the recognition of asset retirement obligations related to gas utility plant and nonutility plant that gives rise to the obligations. This account shall be credited for the amount of the liabilities for asset retirement obligations with amounts charged to the appropriate gas utility plant accounts or nonutility plant accounts to record the related asset retirement costs.
B. This account shall also include the period to period changes for the accretion of the liabilities in account 230, Asset retirement obligations. The utility shall charge the accretion expense to account 411.10, Accretion expense, for gas utility plant, account 413, Expenses of gas plant leased to others, for gas plant leased to others, or account 421, Miscellaneous nonoperating income, for nonutility plant, as appropriate, and credit account 230, Asset retirement obligations.
C. This account shall be debited with amounts paid to settle the asset retirement obligations recorded herein.
D. The utility shall clear from this account any gains or losses resulting from the settlement of asset retirement obligations in accordance with the instructions prescribed in General Instruction 24.
18. In Gas Plant Accounts, new primary plant accounts, 321, 339, 348, 358, 363.6, 364.9, 372, 388, and 399.1 are added to read as follows:
This account shall include asset retirement costs on plant included in the manufactured gas production plant function.
This account shall include asset retirement costs on plant included in the natural gas production and gathering plant function.
This account shall include asset retirement costs on plant included in the products extraction plant function.
This account shall include asset retirement costs on plant included in the underground storage plant function.
This account shall include asset retirement costs on plant included in the other storage plant function.
This account shall include asset retirement costs on plant included in the transmission plant function.
This account shall include asset retirement costs on plant included in the distribution plant function.
This account shall include asset retirement costs on plant included in the general plant function.
19. Income Accounts are amended as follows:
a. Account 403.1 is added,
b. Accounts 411.6 and 411.7 are amended by designating the current paragraph as A. and adding a new paragraph B.,
c. Account 411.10 is added,
d. In account 421, paragraphs 4. through 6. are added, and
e. In account 426.5 paragraph 6. is added.
The additions read as follows:
This account shall include the depreciation expense for asset retirement costs included in gas utility plant in service.
A. * * *
B. The utility shall record in this account gains resulting from the settlement of asset retirement obligations related to utility plant in accordance with the accounting prescribed in General Instruction 24.
A. * * *
B. The utility shall record in this account losses resulting from the settlement of asset retirement obligations related to utility plant in accordance with the accounting prescribed in General Instruction 24.
This account shall be charged for accretion expense on the liabilities associated with asset retirement obligations included in account 230, Asset retirement obligations, related to gas utility plant.
4. This account shall include the accretion expense on the liability for an asset retirement obligation included in account 230, Asset retirement obligations, related to nonutility plant.
5. This account shall include the depreciation expense for asset retirement costs related to nonutility plant.
6. The utility shall record in this account gains resulting from the settlement of asset retirement obligations related to nonutility plant in accordance with the accounting prescribed in General Instruction 24.
6. The utility shall record in this account losses resulting from the settlement of asset retirement obligations related to nonutility plant in accordance with the accounting prescribed in General Instruction 24.
20. The authority citation for part 346 continues to read as follows:
42 U.S.C. 7101-7352; 49 U.S.C. 60502; 49 App. U.S.C. 1-85.
21. Section 346.3 is added to read as follows:
(a) A carrier that files material in support of initial rates or change in rates under § 346.2 and has recorded asset retirement obligations on its books must provide a schedule, as part of the supporting workpapers, identifying all cost components related to the asset retirement obligations that are included in the book balances of all accounts reflected in the cost of service computation supporting the proposed rates. However, all cost components related to asset retirement obligations that would impact the calculation of rate base, such as carrier property and related accumulated depreciation and accumulated deferred income taxes, may not be reflected in rates and must be removed from the rate base calculation through a single adjustment.
(b) A carrier seeking to recover nonrate base costs related to asset retirement costs in rates must provide, with its filing under § 346.2 of this part, a detailed study supporting the amounts proposed to be collected in rates.
(c) A carrier who has recorded asset retirement obligations on its books but is not seeking recovery of the asset retirement costs in rates, must remove all asset retirement obligations related cost components from the cost of service supporting its proposed rates.
22. The authority citation for part 352 continues to read as follows:
49 U.S.C. 60502; 49 App. U.S.C. 1-85 (1988).
23. In List of Instructions and Accounts, under Definitions, Definition 12 is revised to read as follows:
12.
24. In General Instructions, paragraph 1-19 is added to read as follows:
1-19
(a) An
(b) The carrier shall initially record a liability for an asset retirement obligation in account 67, Asset retirement obligations, and charge the associated asset retirement costs to account 30, Carrier property, and account 34, Noncarrier property, as appropriate, related to the property that gives rise to the legal obligation. The asset retirement cost shall be depreciated over the useful life of the related asset that gives rise to the obligations. For periods subsequent to the initial recording of the asset
(1) The carrier shall record the accretion of the liability by debiting account 591, Accretion expense, for carrier property, account 620, Income (net) from noncarrier property, for noncarrier property and crediting account 67, Asset retirement obligations; and
(2) The carrier shall recognize any subsequent measurement changes of the liability initially recorded in account 67, Asset retirement obligations, for each specific asset retirement obligation as an adjustment of that liability in account 67 with the corresponding adjustment to carrier property and noncarrier property accounts, as appropriate. The utility shall on a timely basis monitor any measurement changes of the asset retirement obligations.
(c) Gains or losses resulting from the final settlement of asset retirement obligations for carrier plant resulting from the difference between the amount of the liability for the asset retirement obligation in account 67, Asset retirement obligation, and the actual amount to settle the obligation, shall be recorded in account 592, Gains or losses on asset retirement obligations.
(d) Gains or losses resulting from the final settlement of asset retirement obligations for noncarrier plant resulting from the difference between the amount of the liability for the asset retirement obligation in account 67, Asset retirement obligation, and the actual amount to settle the obligation, shall be recorded in account 620, Income (net) from noncarrier property.
(e) Separate subsidiary records shall be maintained for each asset retirement obligation showing the initial liability and associated asset retirement cost, any incremental amounts of the liability incurred in subsequent reporting periods for additional layers of the original liability and related asset retirement cost, the accretion of the liability, the subsequent measurement changes to the asset retirement obligation, the depreciation and amortization of the asset retirement costs and related accumulated depreciation, and the settlement date and actual amount paid to settle the obligation. For purposes of analyses a carrier shall maintain supporting documentation so as to be able to furnish accurately and expeditiously with respect to each asset retirement obligation the full details of the identity and nature of the legal obligation, the year incurred, the identity of the plant giving rise to the obligation, the full particulars relating of each component and supporting computations related to the measurement of the asset retirement obligation.
25. In Instructions for Carrier Property Accounts, Instruction 3-3, paragraph (11)(iii) and paragraph (13) are added to read as follows:
3-3
(11) * * *
(iii) Interest during construction shall not be recognized on the asset retirement costs incurred during the construction of carrier and noncarrier property.
(13) Asset retirement costs that are recognized as a result of asset retirement obligations incurred during the construction shall be included in the cost of construction costs.
26. In Balance Sheet Accounts, account 34 is amended by adding a sentence to the end of paragraph and account 67 is added to read as follows:
34 * * * This account shall also include, amounts recorded for asset retirement costs associated with noncarrier property.
A. This account shall include liabilities arising from the recognition of asset retirement obligations. The carrier shall credit account 67, Asset retirement obligations, for the liabilities for asset retirement obligations and charge the appropriate carrier property accounts or noncarrier property accounts to record the related asset retirement costs.
B. This account shall also include the period to period changes for the accretion of the liabilities in account 67, Asset retirement obligations. The carrier shall charge the accretion expense to account 591, Accretion expense, for carrier property, and account 620, Income (net) from noncarrier property, for noncarrier property, as appropriate, and credit account 67, Asset retirement obligations.
C. This account shall be debited with amounts paid to settle the asset retirement obligations recorded herein.
D. The utility shall clear from this account any gains or losses resulting from the settlement of asset retirement obligations in accordance with the instructions prescribed in General Instruction 1-19.
27. In Carrier Property Accounts, accounts 117, 167, 186.1 are added to read as follows:
This account shall include asset retirement costs on plant included in carrier property.
28. In Operating Expenses, accounts 541, 591 and 592 are added to read as follows:
This account shall include charges for the depreciation of asset retirement costs related to transportation property.
This account shall be charged for accretion expense on the liabilities associated with asset retirement obligations included in account 67, Asset retirement obligations. The carrier shall record in this account the settlement amounts for asset retirement obligations related to carrier property in accordance with the accounting prescribed in General Instruction 1-19.
The carrier shall record in this account gains or losses resulting from the settlement amounts for asset retirement obligations related to carrier property plant. (See General Instruction 1-19).
Appendix A will not be published in the Code of Federal Regulations.
Agricultural Marketing Service, USDA.
Proposed rule.
This tentative decision adopts, on an interim final and emergency basis, provisions that amend certain features of the pooling standards of the Central Federal milk order. Specifically, this tentative decision adopts amendments to the
Comments are due on or before January 21, 2003.
Comments (6 copies) should be filed with the Hearing Clerk, United States Department of Agriculture, Room 1083—Stop 9200, 1400 Independence Avenue, SW., Washington, DC 20250-9200.
Gino M. Tosi, Marketing Specialist, USDA/AMS/Dairy Programs, Order Formulation and Enforcement Branch, Room 2968, 1400 Independence Avenue, SW., STOP 0231, Washington, DC 20250-0231, (202) 690-1366, e-mail address:
This administrative action is governed by the provisions of sections 556 and 557 of Title 5 of the United States Code and, therefore, is excluded from the requirements of Executive Order 12866.
These amendments to the rules proposed herein have been reviewed under Executive Order 12988, Civil Justice Reform. They are not intended to have a retroactive effect. If adopted, the amendments would not preempt any state or local laws, regulations, or policies, unless they present an irreconcilable conflict with this rule.
The Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-674), provides that administrative proceedings must be exhausted before parties may file suit in court. Under section 608c(15)(A) of the Act, any handler subject to an order may request modification or exemption from such order by filing a petition stating that the order, any provision of the order, or any obligation imposed in connection with the order is not in accordance with the law. A handler is afforded the opportunity for a hearing on the petition. After a hearing, the Department would rule on the petition. The Act provides that the district court of the United States in any district in which the handler is an inhabitant, or has its principal place of business, has jurisdiction in equity to review the Department's ruling on the petition, provided a bill in equity is filed not later than 20 days after the date of the entry of the ruling.
In accordance with the Regulatory Flexibility Act (5 U.S.C. 601
Approximately 9,695 of the 10,108 dairy producers (farmers), or 95.9 percent, whose milk was pooled under the Central Federal milk order at the time of the hearing, November 2001, would meet the definition of small businesses. On the processing side, approximately 10 of the 56 milk plants associated with the Central milk order during November 2001 would qualify as “small businesses,” constituting about 17.9 percent of the total.
Based on these criteria, more than 95 percent of the producers would be considered as small businesses. The adoption of the proposed pooling standards serves to revise established criteria that determine those producers, producer milk, and plants that have a reasonable association with, and are consistently serving the fluid needs of, the Central milk marketing area and are not associated with other marketwide pools concerning the same milk. Criteria for pooling are established on the basis of performance levels that are considered adequate to meet the Class I fluid needs and, by doing so, determine those that are eligible to share in the revenue that arises from the classified pricing of milk. Criteria for pooling are established without regard to the size of any dairy industry organization or entity. The criteria established are applied in an identical fashion to both large and small businesses and do not have any different economic impact on small entities as opposed to large entities. Therefore, the proposed amendments will not have a significant economic impact on a substantial number of small entities.
A review of reporting requirements was completed under the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35). It was determined that these proposed amendments would have no impact on reporting, recordkeeping, or other compliance requirements because they would remain identical to the current requirements. No new forms are proposed and no additional reporting requirements would be necessary.
This notice does not require additional information collection that requires clearance by the Office of Management and Budget (OMB) beyond currently approved information collection. The primary sources of data
Interested parties are invited to submit comments on the probable regulatory and informational impact of this proposed rule on small entities. Also, parties may suggest modifications of this proposal for the purpose of tailoring their applicability to small businesses.
Notice is hereby given of the filing with the Hearing Clerk of this tentative final decision with respect to proposed amendments to the tentative marketing agreement and the order regulating the handling of milk in the Central marketing area. This notice is issued pursuant to the provisions of the Agricultural Marketing Agreement Act and the applicable rules of practice and procedure governing the formulation of marketing agreements and marketing orders (7 CFR part 900).
Interested parties may file written exceptions to this decision with the Hearing Clerk, U.S. Department of Agriculture, Room 1083—Stop 9200, 1400 Independence Avenue, SW., Washington, DC 20250-9200, by January 21, 2003. Six (6) copies of the exceptions should be filed. All written submissions made pursuant to this notice will be made available for public inspection at the office of the Hearing Clerk during regular business hours (7 CFR 1.27(b)).
The hearing notice specifically invited interested persons to present evidence concerning the probable regulatory and informational impact of the proposals on small businesses. While no evidence was received that specifically addressed these issues, some of the evidence encompassed entities of various sizes.
The proposed amendments set forth below are based on the record of a public hearing held at Kansas City, Missouri, on November 14-15, 2001, pursuant to a notice of hearing issued October 17, 2001, and published October 23, 2001 (66 FR 53551).
The material issues on the record of the hearing relate to:
1. Pooling Standards:
a. Supply plant pooling standards.
b. Cooperative supply plant performance standards.
c. Supply plant system standards.
d. Standards applicable for Producer milk.
e. Establishing pooling standards for “State units.”
2. Simultaneous pooling of milk on the order and on a State-operated milk order providing for marketwide pooling.
3. Rate of partial payments to producers.
4. Determining whether emergency marketing conditions exist that would warrant the omission of a recommended decision and the opportunity to file written exceptions.
The following findings and conclusions on the material issues are based on evidence presented at the hearing and the record thereof:
Several amendments to the pooling provisions of the Central order should be adopted immediately. Certain inadequacies of the supply plant pooling provisions are resulting in disorderly marketing conditions and the unwarranted erosion of the blend price received by those producers who are consistently providing milk to meet the fluid demands of the Central marketing area. Specifically, the following amendments for pool supply plants should be adopted immediately: (1) Lower the performance standards to 20 percent in each of the months of August through February and 15 percent in each of the months of March through July. Accordingly, automatic pool plant status during the 3-month period of May through July is thereby eliminated from the order; (2) Eliminate the volume of milk shipments made by supply plants to distributing plants regulated by another Federal milk marketing order as qualifying shipments in meeting the Central supply plant shipping standard; (3) Exclude from receipts the diversions made by a pool plant to a second pool plant from the calculation of the diversion limits established for pool plants; and (4) Provide a “net shipments” standard for supply plant deliveries to the order's distributing plants for the purpose of meeting the Central order's supply plant shipping standard. Expanding pool supply plant qualification to include milk shipments to any plant that is part of a distributing plant unit is not adopted.
The Central order currently provides a supply plant performance standard whereby 35 percent of the milk received directly from dairy farms and cooperative handlers must be transferred or diverted to distributing plants, including milk diverted by the plant operator, during each of the months of September through November and January. For all other months a 25 percent standard applies.
The Central marketing order currently provides automatic pool plant status during the 3-month period of May through July for supply plants provided they were pool plants during each of the immediately preceding months of August through April. The order does not currently include a performance standard which considers shipments to any plant that is part of a distributing plant unit as a qualifying shipment. The current order does not limit supply plant shipments to distributing plants on a “net shipments” basis.
In addition, handlers may currently qualify supply plants as pool plants located inside or outside the market area by diverting milk to a pool distributing plant regulated by the Central order. Supply plant transfers to distributing plants regulated by another Federal order currently are considered as qualifying shipments for the purpose of determining if the Central supply plant shipping standard has been met.
These amendments to the supply plant pooling standards were presented in testimony related to a proposal published in the hearing notice as Proposal 1. This proposal was offered by Dairy Farmers of America (DFA), Prairie Farms Cooperative (Prairie Farms), and Swiss Valley Farms (Swiss Valley). These organizations are cooperative associations that historically have pooled milk on the Central milk order or one of the nine orders consolidated to form the Central milk order. Hereinafter, this decision will refer to these proponents as “DFA,
Amendments to the supply plant pooling standards were offered, the proponents assert, because the pooling provisions of the order are not appropriately linking the ability to pool milk on the order with demonstrating consistent service in supplying the fluid needs of the market. DFA,
Proposal 1 as offered would no longer consider milk deliveries to distributing plants regulated by another Federal milk marketing order as qualifying shipments for determining if the supply plant performance standard for the Central Order had been met. Similarly, the proposal would not consider milk deliveries to distributing plants that are part of a distributing plant unit as qualifying shipments for determining if the supply plant performance standard had been met.
Proposal 1 also would limit a handler's ability to qualify supply plants located outside the Central Order marketing area as pool plants through direct deliveries of milk to pool distributing plants. The proposal also calls for establishing a “net shipments” provision. A net shipments standard would exclude from a supply plant's qualifying shipments any transfer or diversion of bulk fluid milk products made by a distributing plant receiving a qualifying shipment.
In support for Proposal 1, the DFA,
According to the DFA,
As evidence that milk is being inappropriately pooled on the order, the DFA,
The DFA,
The DFA,
A DFA,
Witnesses representing several distributing plant operators confirmed that they are experiencing problems obtaining an adequate supply of milk for fluid use, especially during the fall months. These fluid handlers supported the adoption of Proposal 1 because the link between milk pooled on the Central order needs to be tied to actual deliveries of milk to the order's pool distributing plants.
A witness from Anderson-Erickson (A-E), a distributing plant operator regulated by the Central order, testified that the order's pooling provisions need to be revised to better condition the receiving of the order's blend price to actual performance in supplying the market's Class I needs. Similarly, a witness representing Suiza Foods (Suiza), a company which owns and operates distributing plants regulated by the Central order, testified that the pooling of milk on the Central order needs to be directly tied to actual performance in serving the fluid market. The Suiza witness stressed that actual performance in serving the fluid market should be necessary because it is the fluid market that generates the additional dollars to the marketwide pool.
The Suiza witness testified that their costs and ability to obtain raw milk for Class I use are tied directly to the pooling provisions of Federal milk orders, including the Central milk order. The witness stressed that blend prices, especially relative blend prices, provide the incentives for producers to move milk to where it is needed. However, explained the witness, Suiza faces new challenges in the Central marketing area since its formation under milk order reform. Specifically, the witness noted difficulty in procuring milk at one of their plants because local dairy farmers are delivering their milk to plants regulated on the Southeast and Appalachian orders. According to the witness, the blend prices in those orders are higher than in the Central milk order and therefore attract milk to those markets.
The Suiza witness was of the opinion that milk order reform placed other Central order distributing plants at a similar competitive disadvantage in competing for a supply of milk. While noting that the purpose of this proceeding is to address pooling
A witness from Mid States Dairy, an organization that operates a distributing plant regulated by the Central order, testified that they were no longer able to source milk from their usual milksheds in southern Missouri and central Illinois. This witness stated that until recently, they had to rely on contracts with southern milk sources at premium prices to obtain a supply of milk because milk supplies were not available locally.
The DFA,
Using milk located within the marketing area to qualify milk for pooling at plants located far from the marketing area was described by the DFA,
The DFA,
The witness from DFA,
The witnesses from A-E concurred with the need for a “net shipments” provision, as did a witness from Foremost Farms, a fluid handler whose plants were regulated under the Central and Upper Midwest milk marketing orders. A witness from Suiza, testified that while they did not oppose a “net shipments” provision, they were of the view that milk actually delivered to a distributing plant was performing a service to the Class I needs of the market. To the extent that the same milk is subsequently pumped back out of the plant, indicated the witness, that decision is made by the receiving handler. Therefore, concluded the Suiza witness, such milk should be counted in determining if the supply plant performance standard is being met.
Briefs from both A-E and Dean Foods
A group of cooperative associations with members located primarily in the Upper Midwest milk marketing area opposed amendments included in Proposal 1 because it was their view that the amendments would limit their ability to pool milk on the Central order. The cooperative associations included: Associated Milk Producers, Inc. (AMPI); Foremost Farms USA (Foremost); Land O'Lakes (LOL); First District Association (FDA); Family Dairies USA; and Lakeshore Federated Dairy Cooperative (Lakeshore), comprised of Midwest Dairymen's Company, Manitowoc Milk Producers Cooperative, and Milwaukee Cooperative Milk Producers. Hereinafter this decision will collectively refer to this group of cooperative associations as the “Upper Midwest Cooperatives.”
Testimony by the Upper Midwest Cooperatives’ witnesses argued that the adoption of more restrictive pooling standards would force milk that currently is pooled on the Central order to be pooled instead with the Upper Midwest pool. According to the witnesses, this would result in lower blend prices to Upper Midwest producers because of the lower Class I use in that area. The witnesses also argued that adopting the amendments contained in Proposal 1 would establish the more stringent pooling provisions that were in effect prior to milk order reform. According to the witnesses, this would establish a barrier to pooling the milk of producers who had long been associated with the markets merged to form the Central order.
To illustrate their point that the amendments of Proposal 1 would limit their ability to pool milk on the Central order, an Upper Midwest Cooperatives' witness testified that under current pooling provisions, every pound of milk delivered to Central order pool distributing plants provides the ability to pool 15 additional pounds of milk. If the pooling provisions proposed are adopted, the witnesses indicated that only 3 additional pounds of milk could
The Foremost Farms witness, testifying on behalf of AMPI, LOL, Family Dairies, Midwest Dairymen, and First District Association, testified that if Proposals 1 and 5 (Proposal 5 is discussed in more detail later in this decision) were adopted, and if they were pooling the maximum amount of milk allowed in the pre-reform orders, approximately 400 million pounds of milk per month would no longer be pooled on the Central order. Instead, the witness testified, this milk would be pooled on the Upper Midwest order. The witness maintained that this would increase the blend price differences between the two orders.
According to the Foremost Farms witness, the blend price differences would have ranged between 32 cents per hundredweight (cwt) to as much as 91 cents per cwt for the one-year period of September 2000 through August 2001 if the pooling standards proposed had been in effect during that time. The witness emphasized this would have had an enormous adverse effect on the net income of Upper Midwest producers.
An Upper Midwest Cooperatives' witness from Family Dairies testified in opposition to pooling provision amendments that would limit the ability to pool milk on the Central Order and result in lower blend prices to producers located in the Upper Midwest. The witness stated that adoption of such proposals would result in creating more regional pricing problems and give selected handlers the ability to use the blend price as a procurement tool in areas outside the Central Order.
A witness for Lakeshore joined other Upper Midwest Cooperatives' witnesses by also stating their concern that the proposed pooling changes specifically in Proposals 1, 3, 5, and 7 (Proposals 3, 5 and 7 are discussed later in this decision) could force milk currently pooled on the Central order to instead be pooled on the Upper Midwest order. According to the witness, this would result in decreasing producer returns for those dairy farmers located in Northern Illinois and the surrounding area. Specifically, the Lakeshore witness explained that while a fluid milk plant at Rockford, Illinois, and a Dubuque, Iowa, distributing plant have the same federal order-dictated Class I price, the Rockford plant is disadvantaged because it has to pay a higher competitive value to attract Class I milk, adversely impacting their northern Illinois businesses.
A witness from LOL emphasized the necessity of basing pooling provisions on performance in serving the Class I needs of the market rather than the location of where milk originates. The witness was also of the opinion that the current order provisions provide adequate incentives to service Central order distributing plants. Stating that producers who share in the pool must be willing to serve the market, the LOL witness nevertheless stressed that the ability to pool milk on the Central order pool should not be restricted for the benefit of a select few. The LOL witness testified that milk no longer pooled on the Central order would instead be pooled on adjoining milk orders such as the Upper Midwest or Western marketing areas and characterized these areas as already carrying a disproportionate volume of reserve milk.
In response to concerns that Central order Class I handlers are having difficulty in obtaining a supply of milk, the LOL witness provided an analysis which suggested that tightening pooling provisions would not achieve what the proponents of Proposal 1 assert. The witness estimated that adopting the proposed pooling provisions would result in an increase of 35 cents per cwt in the Central Order blend price. According to the witness, such an increase would still leave the Central order blend price $1.48 per cwt below the blend price of the Southeast order thus weakening the argument that the higher blend prices in orders to the south and southeast would mitigate the problem of Central order distributing plants securing a supply of milk.
The LOL witness asserted that the combination of Proposals 1, 3, 5, and 7 would place unreasonable restrictions on milk produced outside the marketing area relative to milk produced inside the marketing area. The witness indicated that supply plants located outside the marketing area would be required to receive milk and transfer it to distributing plants, thereby causing uneconomic movements of milk, adding costs and degrading milk quality due to additional handling. Furthermore, barriers to trade would be created by adopting these proposals, indicated the witness.
Two of the Upper Midwest Cooperatives' witnesses introduced cost-of-production studies conducted by universities indicating that dairy farmers in northern Illinois and Wisconsin enjoy little financial return from their dairy operations. The Foremost Farms witness cited the Wisconsin study to indicate that in Wisconsin the marginal return of producing milk can be less than zero. According to the witnesses, the financial impact by limiting participation in the Central order pool through increased performance standards would be detrimental to Upper Midwest dairy farmers. In this regard, all of the Upper Midwest Cooperatives' witnesses stressed that their member producers are considered small businesses pursuant to the Regulatory Flexibility Act and that such status should be considered in determining appropriate performance standards for the Central order.
The witnesses for A-E and Suiza testified in opposition to considering supply plant shipments to distributing plant “units” as counted in determining pool-qualifying deliveries unless each plant of the “unit” could independently be a distributing plant under the terms of the order. The witness noted that relatively large non-Class I volumes of milk associated with a distributing plant unit could result in reducing the actual need for qualifying shipments made to distributing plants. In post-hearing briefs, Dean Foods indicated opposition to expanding qualifying shipments to any plant that is part of a distributing plant unit, noting that such performance standards would be inequitable and result in the creation of new disorderly marketing conditions.
The record of this proceeding strongly supports concluding that the various features of the Central milk marketing order's supply plant pooling standards are either inadequate or unnecessary. These deficiencies contained in the pooling standards for supply plants are causing much more milk to be pooled on the Central milk order than can reasonably be considered as properly associated with the Central marketing area. Such milk does not demonstrate reasonable levels of performance necessary to conclude that it provides a regular and reliable service in satisfying the Class I milk demands of the Central marketing area.
The pooling standards of all milk marketing orders, including the Central order, are intended to ensure that an adequate supply of milk is supplied to meet the Class I needs of the market and to provide the criteria for identifying those who are reasonably associated with the market as a condition for receiving the order's blend price. The pooling standards of the Central order are represented in the
Pooling standards that are performance-based provide the only viable method for determining those eligible to share in the marketwide pool. This is because it is the additional revenue from the Class I use of milk that adds additional income, and it is reasonable to expect that only those producers who consistently bear the costs of supplying the market's fluid needs should be the ones to share in the distribution of pool proceeds. Pool plant standards—specifically standards that provide for the pooling of milk through supply plants—also need to reflect the supply and demand conditions of the marketing area. This is important because producers whose milk is pooled receive the market's blend price.
Similarly, supply plant pooling standards should provide for those features and accommodations that reflect the needs of proprietary handlers and cooperatives in providing the market with milk and dairy products. When a pooling feature's use deviates from its intended purpose, and its use results in pooling milk that cannot reasonably be determined as serving the fluid needs of the market, it is appropriate to re-examine the need for continuing to provide that feature as a necessary component of the pooling standards of the order. Because one of the objectives of pooling standards is ensuring an adequate supply of fluid milk for the market, a feature which results in pooling milk on the order that does not provide such service should be considered as unnecessary for that marketing area.
Pooling standards are needed to identify the milk of those producers who are providing service in meeting the Class I needs of the market. If a pooling provision does not reasonably accomplish this end, the proceeds that accrue to the marketwide pool from fluid milk sales are not properly shared with the appropriate producers. The result is the unwarranted lowering of returns of those producers who actually incur the costs of servicing and supplying the fluid needs of the market.
The post-hearing brief received from the Upper Midwest Cooperatives continued to stress opposition to the amendments offered by Proposals 1 (and Proposals) 3, 5, and 7. They view that such changes to the Central milk marketing order are discriminatory and that the proposed amendments would foster inefficiencies in milk marketing. The brief re-iterated their view that the Department's policy has been to design plant and producer pooling provisions that provide a regulatory balance between the fluid needs of the market and transportation efficiency to meet those needs. In this regard, the brief stressed the opinion that orderly marketing is promoted by not requiring shipments to distributing plants when such shipments are not needed for fluid uses. Additionally, the brief asserts that the Department has long recognized that excluding milk from the pool is a greater threat to orderly marketing in surplus marketing areas than is the pooling of surplus milk supplies under rigid performance rules.
The Upper Midwest Cooperatives' brief added that marketwide pooling has been determined as a constitutional means for surplus Grade A milk to share in the additional revenue resulting from fluid sales. Additionally, the brief noted that the 43-day national hearing review and reform proceeding of 1990—and the Second Amplified Decision of 1996 of that proceeding—articulate the policy of the Department to allow milk to shift to different markets in response to blend price changes. The brief also cited case law to maintain that the statutory scheme for promoting orderly marketing is the sharing of proceeds among producers in the form of uniform, or blend, prices. The opinion expressed in the Upper Midwest brief cites that case law has concluded that producer blend prices cannot be thwarted by a discriminatory transportation burden imposed on distant producers by government mandate.
The record of this proceeding clearly supports a finding that certain features of pooling standards of the Central Order established under the Federal order reform process, especially as they relate to supply plants, are either inadequate or unnecessary. The Final Decision of milk order reform examined and discussed the various pooling standards and features of the pre-reform orders for their applicability in a new, larger consolidated milk order. The pooling standards and features adopted for the consolidated Central Order were designed to reflect and retain those standards and features of the pre-reform orders so as not to cause a significant change and indeed to provide for the continued pooling of milk that had been pooled by those market participants.
The record provides strong evidence to conclude that several features of the
This decision finds that the milk of some producers is benefitting from the blend price of the Central order while not demonstrating actual and consistent service in satisfying the Class I needs of the Central milk marketing area. This finding is attributed to faulty pooling standards. The pooling provisions provided in the Final Decision of milk order reform established pooling standards and pooling features that envisioned the needs of the market participants resulting from the consolidation of nine pre-reform milk marketing areas consolidated to form the current Central milk marketing area. The reform Final Decision, as it related to the Central marketing area, did not intend or envision that the pooling standards and pooling features adopted would result in the sharing of Class I revenues with those persons, or the milk of those persons, who would not be demonstrating a measure of service in providing the Class I needs of the Central marketing area.
The reform Final Decision examined and discussed various pooling standards and features of the pre-reform orders for applicability in a new, larger consolidated milk order. The pooling standards and features adopted for the Central order were intended to reflect and retain those standards and features of the pre-reform orders so as to not cause a significant change, and indeed to provide for the continued pooling of milk that had been pooled by those market participants. The pooling provisions of the Central order were based largely on the predecessor Iowa milk marketing order (then known as Order 79). The Iowa milk marketing order contained the more liberal pooling provisions of the nine orders consolidated to form the current Central order. The record of this proceeding reveals that the combination and features adopted for pool plants, especially as they apply to pool supply plants, are not reasonable or appropriate
The record of this proceeding reveals that two-thirds of the Central marketing area population (and corresponding demand for fluid milk) is located in the southern and western portions of the marketing area. However, the adoption of the current Central order pooling provisions did not anticipate that the adopted pooling standards would not adequately consider the impact on the northern Central marketing area resulting from the Arkansas and southern Missouri portions of the pre-reform Southwest Plains marketing area becoming part of the current Southeast marketing area. Milk produced in these regions had been regularly pooled on the Southeast milk order prior to the expansion of the Southeast order as part of milk order reform and is an integral part of the current Southeast marketing area milkshed. Changes in marketing conditions, as revealed in the record, have resulted from the existing pooling standards as an important factor in explaining why fluid handlers in the southern reaches of the Central order have had difficulties obtaining a supply of milk.
As previously indicated, pooling milk on the Central order without demonstrating actual performance in servicing the Class I needs of the market area is neither appropriate nor intended. The record indicates that the volume of milk pooled on the Central Order originating from sources far outside the marketing areas of the nine predecessor marketing areas increased by 186 percent when comparing, for example, the pre-reform month of December 1998 with the post-reform month of December 2000. Of the increase shown in this comparison, milk pooled on the order and originating within the marketing area increased by only 10 percent. Of the additional milk pooled on the Central order, the greatest increase is represented by milk priced at lower class prices. Additionally, testimony by Upper Midwest Cooperatives' witnesses clearly indicated that under the Central order's current pooling provisions, milk pooled on the Central order is not necessarily available to fill the Central market's fluid needs.
This decision agrees with the proponents and those entities who expressed support for adopting Proposal 1 that the order's pooling standards warrant changes. This decision finds, however, that the performance standards of Proposal 1 are unreasonably high when considering the complete context of the pooling provision modifications made in this decision. If adopted as proposed together with the other amendments adopted in this decision, milk that has had a long-established association in supplying those pre-reform marketing order areas consolidated to form the Central order may no longer be pooled on the Central order. Most of this milk originates from areas in the Upper Midwest marketing area. The performance standards sought in Proposal 1 may unintentionally compound the difficulties of Central order distributing plants in securing needed milk supplies that could be made available if not for unreasonably high performance standards. Accordingly, this decision adopts the following amendments to the pooling standards and features of the order:
1. Performance standards for supply plants are reduced to (1) 20 percent in each of the months of August through February and (2) 15 percent in each of the months of March through July. Lower supply plant shipping performance standards are established because of accompanying adjustments to the order's other pooling provisions and features. Lowering supply plant performance standards also addresses the concern by Upper Midwest Cooperatives that a “tightening” of the order's performance standards would erect an unreasonable barrier in supplying to, and to pooling milk on, the Central order. To the extent that the supply plant performance standards may warrant further refinement, the order already provides the means for initiating a change by providing authority for the Market Administrator to consider and make needed changes.
Given that performance standards are specified in every month, the need to continue with the automatic pool plant feature for supply plants during the 3-month period of May through July is rendered unnecessary and contrary to establishing such standards of performance in the first place. The adoption of year-round performance standards, adjusted seasonally, will better assure that a consistent and reliable supply of milk will be provided to the fluid market throughout the year.
August should be included for those months in which a higher performance standard is warranted. Including August in the higher performance months is supported by record evidence which reveals August as the beginning of seasonal increased demand due to the opening of schools occurring at the same time as a general overall decline in milk supplies.
2. This decision eliminates a handler's ability to qualify plants located outside the marketing area by cooperative handlers (as defined in § 1000.9(c)) or diversions from a pool plant of the Central order to another pool plant of the Central order. The record supports a finding that milk pooled in this manner does not actually demonstrate real service in meeting the Class I needs of the Central marketing area. Milk pooled in this manner was often referred to in record testimony as “pyramiding.” No reasonable basis can be found in the record evidence to conclude that milk pooled in this manner warrants receiving the Central order blend price. The record can only support concluding that milk pooled in this manner serves to lower the blend price paid to producers who actually do supply the market's Class I needs.
3. This decision finds that shipments of milk to distributing plants regulated by another Federal milk marketing order should not be considered in determining if a supply plant meets the specified performance standard for pooling. The performance standards adopted in this decision for the Central order are designed so that its distributing plants are adequately supplied with milk. Milk shipments to distributing plants regulated by another Federal order only serve the Class I needs of that other order. Pooling standards for the Central marketing area provide the criteria for determining the milk of those producers who are serving the Class I needs of the Central marketing area and who would thereby receive the Central order blend price. It is reasonable in light of this objective to conclude that serving the needs of another market is not providing a service to the Central marketing area. Accordingly, such milk should not be considered as a qualifying shipment for meeting the supply plant performance standards of the Central order.
4. This decision finds that the modification of Proposal 1 offered by DFA to limit pool qualifying deliveries to distributing plants on a “net shipments” basis is warranted. Milk deliveries to distributing plants will be limited to milk transferred or diverted and physically received by distributing pool plants, less any transfers or diversions of bulk fluid milk products from the distributing plant. Relying on net shipments for determining pool qualifying deliveries to distributing plants is applicable to both supply plant deliveries and milk moved to distributing plants directly from the farms of producers. Adoption of this feature will help ensure that milk not serving the market's Class I needs will not be counted towards meeting the specified performance standard.
Providing a net shipments feature for the Central order is reasonable and will likely not be burdensome despite opposition to its adoption. Even with the inappropriate pooling of milk on the order, lower supply plant performance standards adopted in this decision are at levels below the Central market's Class I use of milk. While distributing plants do have some transfers and diversions of milk resulting from variations in demand arising from changing fluid milk needs on weekend days and holidays, this decision finds it is doubtful that the magnitude of these transfers and diversions would be such that a supply plant would risk loss of pool plant status. Additionally, other changes to the order's pooling standards adopted in this decision (discussed below) should provide the necessary safeguards that would make it even more unlikely that a supply plant would lose its pool status. This decision finds that adoption of a net shipments feature in the pooling standards of the Central order also will aid in properly identifying the milk of those producers who actually supply milk to meet the Central marketing area's fluid needs.
A cooperative supply plant pooling provision, together with the feature of authorizing the market administrator to adjust the performance standards for cooperative supply plants, should be retained. It is unclear whether Proposals 2 and 4, seeking removal of the cooperative supply plant performance standard and the corresponding provision authorizing the market administrator to adjust those standards, should be adopted in this tentative decision. Based on this, the Department has not adopted these proposals in this tentative decision.
The Central marketing order provides for a cooperative association plant as a type of supply plant on the order provided the cooperative association's plant is located within the marketing area and that at least 35 percent of the milk which the cooperative association handles is shipped to a Central order distributing plant during any current month or in the immediately preceding 12-month period. In addition, the provision requires that the cooperative association plant not qualify as a distributing or supply plant under the Central order or any other Federal milk marketing order.
The DFA,
Elimination of the provision was supported in testimony by witnesses representing both A-E and Suiza Foods. Both witnesses stated that the provision is unnecessary and is not being used. In their post-hearing briefs, both A-E and Dean Foods reiterated that no plant is presently qualified under the cooperative supply plant definition.
Although there was no opposition testimony to the removal of the cooperative supply plant provision in the Central Order, this provision and the corresponding provision authorizing the market administrator to make needed adjustments should be retained pending further public comment. The testimony contained in the record does not contain sufficient reason for a finding to eliminate this standard other than it is a provision that is not used. The provision allows pool qualification for cooperative supply plants on either an average of the preceding 12-month's shipments or the current month's shipments and provides pooling flexibility for cooperatives. The cooperative supply plant definition contains features that are unique and intentional. While the proponents and supporters of Proposals 2 and 4 testified that the cooperative supply plant provision is not currently being used, testimony received did not address the apparently diminished importance of this pooling provision that was used in four of the nine pre-reform milk orders consolidated to form the Central order. The provision also is a pooling feature provided in most other Federal orders and, as with the Central order, is not currently being used in most of the other Federal orders containing this provision. Given the current record, removing this provision from the Central order may result in the unintended removal of a pooling provision intended for cooperative associations that may be needed at some future time. Accordingly, this decision does not adopt Proposals 2 and 4.
Proposal 3 of the hearing notice seeking to increase the performance standards for a system of supply plants—and modified at the hearing to limit supply plant system formation to single handler entities instead of currently allowing such systems to be formed by multiple handlers—is not adopted in this tentative decision. As previously discussed, the record contains evidence that distributing plants regulated by the Central milk order are having difficulty obtaining an adequate supply of milk for fluid use. While this proposal's aim is, in part, to address this problem, there nevertheless remains the potential for a supply plant system to pool milk supplies that may not demonstrate actual service to the fluid needs of the Central marketing area. The modification of the proposal seeking to limit supply plant system formation to a single handler entity has merit. However, taking into account the current record, it should not be adopted as a modification to the order's current system pooling provision in this tentative decision. It is noted that the hearing testimony often referred to supply plant systems as “supply plant units.” Nevertheless, it is clear that hearing participants intended to mean “supply plant systems” and accordingly, this tentative decision considered the testimony in the context intended.
The supply plant system provisions of the Central order currently provide that a system of supply plants may qualify for pooling if 2 or more plants operated by one or more handlers meet the applicable performance standards established for a supply plant. A supply plant system would qualify to pool all of its milk receipts, including diversions, by meeting a performance standard of 25 percent in each of the months of September through November and January and of 35 percent for all other months. The order currently limits the formation of a supply plant system to plants located within the marketing area.
Proposal No. 3, by DFA,
According to the DFA,
A witness from Associated Milk Producers, Inc. (AMPI), who also testified on behalf of the Upper Midwest Cooperatives, opposed adoption of Proposal 3. The witness explained that increased performance standards would simply cause a handler to discontinue pooling its plants as a system, thus forcing the handler to ship a lower percentage of milk receipts from each of the individual supply plants. The witness asserted that this alternative would increase transportation costs without providing additional milk to distributing plants.
An Upper Midwest Cooperatives' witness of AMPI also testified that a supply plant system operated by multiple handlers has the potential for one handler with substantially more sales to distributing plants than needed to meet the supply plant performance standard to pool the milk receipts of other handlers. According to the witness, this could reduce the total volume of milk shipments to distributing plants while technically meeting the order's performance standards. According to the witness, such a provision allows some handlers to entirely escape responsibility for supplying the fluid market and encourages handlers to pay other handlers to qualify their milk supplies for pooling. In light of these concerns, the witness offered a modification to Proposal 3 that limits supply plant system formation to single handler entities.
A witness testifying on behalf of Foremost, AMPI, LOL, Family Dairies, Midwest Dairymen, and First District Association supported the advantages supply plant systems offer as a means to promote more efficient movement of milk to distributing plants. However, given the higher performance standards called for by the proposal, the witness indicated opposition to Proposal 3. The witness was of the opinion that there is no justification for supply plant systems to be required to meet higher performance standards than individual supply plants. The witness did note that a higher performance standard for a supply plant system formed by multiple handlers may be appropriate.
Providing pooling flexibility by permitting more than a single supply plant to form into a single pooling system offers the potential to increase efficiencies by minimizing transportation costs that may not be obtainable when each supply plant of the handler would need to meet the performance standards separately for each plant. Additionally, providing for supply plant systems serves to accommodate the specialization of plant operations without otherwise encouraging such a plant to deliver milk to a distributing plant solely to retain pool status. Providing the opportunity to gain such efficiencies is intended by the supply plant system provision because it does not disrupt the flow of milk for Class I use from supply plants to distributing plants.
The record suggests that supply plant systems formed by multiple handler entities offer the potential to pool milk on the Central order without meeting intended performance standards. The modification to Proposal 3, which would limit the formation of a supply plant system to a single handler entity, may offer a warranted change in the current supply plant system provisions without changing the current performance standards. However, this tentative decision finds that the record does not provide sufficient evidence to tentatively adopt a change in the performance standards for supply plant systems or to limit the formation of supply plant systems.
Several changes to the pooling standards contained in the
The
Proposal No. 5, offered by DFA,
Proposal 5, offered by DFA,
The DFA,
The DFA,
A witness representing several fluid milk processing plants joined in expressing their support for adopting year-round diversion limits. They were of the opinion that this would enhance pooling the milk of only those who provide an adequate supply of milk for fluid uses.
Witnesses representing the Upper Midwest cooperatives testified in opposition to the adoption of Proposal 5 and to the proposal's modification to incorporate a net-shipments feature. In their opinion, these changes would unnecessarily limit the amount of milk that could be pooled on the Central order. The witnesses indicated that this would force surplus milk supplies to be pooled instead on the Upper Midwest order. As a result, they testified, the Upper Midwest pool would be diluted and result in a lower blend price for their producers in the Upper Midwest.
A witness for the First District Association testified that diversion limits are not always needed for every month. The witness maintained that having year-round diversion limits would reduce competition and result in lower milk prices for producers of the Central marketing area. The witness argued that diversion limits should be provided only for ensuring the orderly marketing of fluid milk but should not be used so as to constitute a barrier to pooling milk.
The Central milk order, as all other Federal milk marketing orders, provides and accommodates for diverting milk because it facilitates the orderly and efficient disposition of the market's milk not needed for fluid use without the loss of the benefits that arise from being pooled on the order. When producer milk is not needed by the market for Class I use, its movement to nonpool plants for manufacturing should be provided for without loss of producer milk status. Preventing or minimizing the inefficient movement of milk solely for pooling purposes also needs to be reasonably accommodated. However, it is just as necessary to safeguard against excessive milk supplies becoming associated with the market through the diversion process.
A diversion limit establishes the amount of producer milk that may be an integral milk supply of a pool plant. With regard to the pooling issues of the Central order, it is the lack of diversion limits to nonpool plants, in part, that significantly contributes to the pooling of much more milk on the order that does not provide service to the Class I market yet receives the Central order blend price. Such milk is not a legitimate part of the reserve supply of the plant.
Milk diverted to nonpool plants is milk not physically received at a pool plant. However, it is included as a part of the total producer milk receipts of the diverting plant. While diverted milk is not physically received at the diverting plant, it is nevertheless an integral part of the milk supply of that plant. If such milk is not part of the integral supply of the diverting plant, then that milk should not be associated with the diverting plant. Therefore, such milk should not be pooled.
The lack of diversion limits only provides a means for associating much more milk with the market without the burden of demonstrating actual service in meeting the Class I needs of the market. Associating more milk than is actually part of the legitimate reserve supply of the diverting plant unnecessarily reduces the potential blend price paid to dairy farmers. Without diversion limits, the order's ability to provide for effective performance standards and orderly marketing is weakened.
The lack of diversion limit standards applicable to pool plants opens the door for pooling much more milk on the market. While the potential size of the pool should be established by the order's pooling standards, the lack of diversion limits renders the potential size of the pool as undefined. With respect to the marketing conditions of the Central marketing area evidenced by the record, this decision finds that the lack of year-round diversion limits on producer milk has caused much more milk to be pooled on the order than can reasonably be considered part of the legitimate reserve supplies of the pool plants and does not provide any actual service in meeting the Central market's Class I needs.
The lack of standards applicable for diversions to nonpool plants for the months of May through August has resulted in the pooling of much more milk than can demonstrate any actual service in meeting the Class I needs of the Central marketing area. The diversion limit standards of Proposal 5 address this concern. However, the diversion limits adopted herein are higher than those proposed. Increasing the diversion limit standard is made possible because of other changes being adopted by this tentative decision. The changes adopted to the diversion limits standards in this tentative decision are set at a level to appropriately complement the adopted performance standards. Accordingly, this decision establishes a diversion limit for producer milk of 80 percent for each of the months of August through February and 85 percent for each of the months of March through July. In addition, it should be noted that the diversion limits may be adjusted by the Market Administrator.
As previously discussed, this decision has determined that only deliveries or diversions to pool distributing plants, and not deliveries to pool supply plants, should be allowed to qualify subsequent supply plant diversions for pooling on
A proposal, published in the hearing notice as Proposal 9, seeking to allow milk to be eligible for diversion to nonpool plants and for such milk to retain its association with the market for any months during which a handler failed to pool a dairy farmer's milk under any milk marketing order is not adopted. This decision finds that a dairy farmer's milk must be physically received at a pool plant of the Central order before it is eligible for diversion to nonpool plants. Additionally, this decision finds that if milk is not continuously pooled, that it again must be received at a pool plant before regaining pooling eligibility.
The Central order currently specifies that the milk of a new producer, or a producer who has broken association with the market, is not eligible for diversion until one day's production is physically received at a pool plant in the first month, and the dairy farmer continuously retained producer status in following months. The dairy farmer's milk is associated with the market if it is included in the pool each month, except as a result of a temporary loss of Grade A approval.
Proposal 9 would allow milk diverted to a nonpool plant before the producer's milk is actually delivered to a pool plant in the same month to be considered producer milk. Proposal 9 also included a provision to allow the milk of a dairy farmer to retain its association with the market for any months during which the handler failed to pool the producer's milk under any order.
Proposal 9 was offered by the Upper Midwest Cooperatives. A witness from AMPI, testifying on behalf of the Upper Midwest Cooperatives, explained that Proposal 9 is needed to assure that producers' milk can be pooled for the entire month as long as one day's production is physically received at a pool plant any day during the month. According to the witness, producers could miss several days of being able to pool milk on the Central order due to unexpected phenomena, such as weather, trucking problems, and scheduling conflicts.
According to the AMPI witness, Proposal 9 also would allow milk to return for pooling on the order in the month following the month in which it was not pooled due to a price inversion (when the blend price is less that the Class III or Class IV price). In this regard, the witness noted that the order currently provides for milk to be pooled at least one day each month before being eligible for diversion to nonpool plants regardless of whether it is economically sound to pool milk based on the blend price that would result for the month.
The touch base standard of an order establishes an initial association by the producer, and the milk of the producer, with the market. In this way, the touch base provision serves to maintain the integrity of the order's performance standards. The record does not contain sufficient evidence for setting conditions that negate the need to properly re-establish association with the market. Doing so is neither burdensome nor unreasonable considering that only one day's milk production of a dairy farmer needs to be delivered to a plant and pooled in order to maintain association with the market. The possible occurrence of a price inversion which may cause cooperatives to not pool milk for a given month to date is speculative and is an unlikely event because of milk order reform changes in how Class I prices are established. Class I prices are established on the basis of the higher of an advance Class III or Class IV price. In part, such change was made so as to minimize the possibility of price inversions. Accordingly, Proposal 9 is not adopted.
A proposal, published in the hearing notice as Proposal 7, seeks to establish pooling units organized and reported by State, specifying that in order to pool milk from those States located outside of the States and specified counties that comprise the Central marketing area, each State unit would need to meet the performance standards applicable for pool supply plants. This proposal is not adopted. The Central order does not currently provide for pooling milk located outside of the marketing area in this manner.
Proposal 7, offered by Dairy Farmers of America (DFA), would group and report milk in State units and specify performance standards for such State units as those applicable to pool supply plants. The milk that would be affected would be milk located outside the States of Colorado, Illinois, Iowa, Kansas, Missouri, Nebraska, Oklahoma, and South Dakota, the Minnesota counties of Fillmore, Houston, Lincoln, Mower, Murray, Nobles, Olmstead, Pipestone, Rock, and Winona, and the Wisconsin counties of Crawford, Grant, Green, Iowa, Lafayette, Richland and Vernon.
The DFA witness testified that milk is being pooled on the Central order that is located in areas so far from the marketing area that such milk cannot and does not service the Class I needs of the Central market. The witness argued that milk from such distant areas was never intended to be a source of milk or a part of the Central milk marketing area. According to the witness, large portions of the States of Minnesota and Wisconsin, characterized as a “distant” source of milk, had not historically been part of the supply area for the pre-reform marketing areas consolidated to form the Central milk marketing area. DFA argued that milk from these areas should be subject to the same performance standards as milk from other distant areas such as California or New Mexico.
According to the DFA witness, distant milk currently pooled on the Central order likely would not seek to be pooled on the order because the benefits of receiving a higher blend price for milk actually delivered to Central order pool plants would not offset the costs that would be incurred in transporting milk. In attempting to clarify what would be determined as being not distant, the DFA witness offered a method to distinguish between historical and distant milk supplies. Milk from counties associated with the Central market's pre-reform orders, which in 1998 had a daily supply volume in excess of one 50,000 pound load, would be included with milk considered to be local or in-area and not distant milk.
The principal problem confronting the Central order, as identified by the DFA witness, is that the distant milk receives the order's blend price without the burden of providing any regular and consistent service to the market beyond meeting a one-day touch-base standard. The witness argued that their proposal would set standards for milk from distant areas identical to local milk as a condition for receiving the order's blend price. Providing for this would not, according to the witness, discriminate, penalize, or establish any barriers to the pooling of milk on the Central order because the standards for local milk supplies and distant milk supplies are the same. Support was given in testimony for establishing State units by witnesses representing Prairie Farms and Suiza.
A number of hearing participants opposed the adoption of the State unit
The AMPI witness agreed with the Foremost witness's testimony and the witness representing the First District Association which asserted that adopting State unit pooling for distant milk would destroy the benefits of pooling milk on the Central order. They held this opinion because the differences between Class I use and blend prices between the Central and Upper Midwest orders would narrow.
In post-hearing briefs, the Upper Midwest Cooperatives continued to express opposition to DFA's Proposal 7 (and to Proposals 1, 3, and 5). They characterized their opposition as establishing barriers to pooling on the basis of where milk is located through government-mandated transportation costs. As indicated above on proposals affecting pool plants and producer milk, their brief cited case law to advance their contention that such amendments would not be legal.
The record does not support the adoption of performance standards for pooling milk on the order on the basis of its location, or as the proponent and supporters of Proposal 7 describe as State units. The marketing conditions of the Central order do not exhibit the need to require additional performance standards for milk located outside of the marketing area beyond those adopted in this tentative decision. Accordingly, all plants, regardless of location, may become eligible to have the milk of producers pooled on the Central order by meeting the performance standards specified for the various types of pool plants.
It is not important who provides the milk for Class I use or from where this milk originates. The order boundaries of the Central order were not intended to limit or define which producers, which milk of those producers, or which handlers could enjoy the benefits of being pooled on the Central order. What is important and fundamental to all Federal orders, including the Central order, is assuring an adequate supply of milk to meet the market's fluid needs, the proper identification of those producers who supply the market, and an equitable means of compensating those producers from the market's pool proceeds.
As discussed earlier on pooling standards for pool supply plant qualification, the provisions of the consolidated Federal milk orders were not intended to exclude any milk from being pooled on any order, as long as the fluid needs of a marketing area are being served by the milk. At the same time, reform of Federal milk orders did not adopt open pooling, but attempted to provide that each market pool would include the milk that actually is available for serving the fluid needs of the market. The determination of the boundaries of the Central marketing area was guided by the identification of the common characteristics of the predecessor orders that could be consolidated to form the marketing area and to promulgate a marketing order to provide for orderly marketing conditions. The consolidation of the pre-reform orders into the current Central order was not intended to determine those areas from which milk should, or should not, be obtained to serve the market. The adoption of revised pooling standards in this tentative decision should assure milk will be available for the Central market's fluid needs and therefore renders the proposed State unit provision unnecessary. Proposal 7 is not adopted.
A proposal, published in the hearing notice as Proposal 8, seeking to exclude the same milk from being simultaneously pooled on the Central order and any State-operated order which provides for marketwide pooling should be adopted immediately. The practice of pooling milk on a Federal order and simultaneously pooling the same milk on a State-operated order also has come to be referred to as “double dipping.” The Central order does not currently prohibit milk to be simultaneously pooled on the order and a State-operated order that provides for marketwide pooling. Proposal 8 was offered by A-E, Swiss Valley Dairy, AMPI, Family Dairies USA, FDA, Foremost, Milwaukee Cooperative Milk Producers, Manitowoc Milk Producers Cooperative, and Mid-West Dairymen's Company.
The AMPI witness, testifying on behalf of all the proponents of Proposal 8, stressed that a producer is prohibited from pooling the same milk on more than one Federal order. The witness maintained that the same restriction should be applicable between the Central order and any other regulatory authority that provides for marketwide pooling and the marketwide distribution of pooling revenue. According to the witness, this has been occurring with milk pooled under the California State-operated milk order program since March 2001, and continues.
The AMPI witness explained that the Central order pooling provisions allow a one-time minimal delivery of a single day's milk production of California producers to a Central order pool plant to qualify all subsequent milk production of California producers on the Central order by diversion. However, the witness stressed, all of the same California milk is pooled on the State's milk order program and receives the pricing benefits that the California state program offers its dairy farmers.
The AMPI witness testified that the volume of California milk pooled on the Central order has been increasing since March 2001 and is unnecessarily reducing milk prices paid to Central order producers. The witness presented calculations that indicated that the impact on the Central order blend price was an average reduction of about 2 cents per hundredweight, amounting to almost $2 million in the 7-month period of March through September 2001. The witness stated that due to the obvious injurious effect on Midwest dairy farmers, the Department should put an end to the practice of double dipping and to do so on an emergency basis.
A witness testifying on behalf of the proponents explained that the reason milk used in manufactured products is included in a marketwide pool is that such milk represents a reserve supply of milk that is available to serve fluid distributing plants when needed. Accordingly, the witness stressed that the same milk cannot be considered to be available as a supply for fluid distributing plants regulated under two different marketwide pools. The witness explained that Proposal 8 would not preclude the pooling of California milk, or milk from any other jurisdiction that has marketwide pooling on the Central order. However, the proposal would preclude the pooling of the same milk on the Central order when pooled under the other order, like the California State milk order that provides for marketwide pooling. In this regard, the witness stated that there is no doubt that California's milk order pooling plan
Several other proponent witnesses representing cooperative associations whose member milk is pooled under the Central order supported the adoption of the proposal to eliminate “double dipping” as did two distributing plant operators. Both of the fluid processor representatives argued that milk originating from outside of a 500-mile radius of any of the order's distributing plants is not realistically available to serve the Class I market on a regular basis.
The representative from Land O'Lakes was opposed to adopting Proposal 8. The witness asserted that, despite evidence to the contrary, California does not have a marketwide pool. The witness explained that producers are paid on the basis of a quota price for milk used in fluid and soft dairy product uses, while the basis for non-quota milk is manufacturing values. The returns to producers arising from quota uses of milk, stated the LOL witness, are not distributed marketwide.
The LOL witness proposed a modification to Proposal 8 that would eliminate “double dipping” only with respect to the “quota” portion of the milk associated with the Central order and allow simultaneous pooling of “overbase” California milk on both the California and Central orders. The witness expressed concern that elimination of the ability of the same milk to be pooled simultaneously under a Federal order and a State order with marketwide pooling would cause problems in dealing with milk supplies from other States—such as Pennsylvania and North Dakota—that are considering modifying provisions to include marketwide pooling.
For over 60 years, the Federal Government has operated the milk marketing order program. The law authorizing the use of milk marketing orders, the Agricultural Marketing Agreement Act of 1937 (AMAA), as amended, provides authority for milk marketing orders as an instrument which dairy farmers may voluntarily opt to use to achieve objectives consistent with the AMAA and that are in the public interest. An objective of the AMAA, as it relates to milk, was the stabilization of market conditions in the dairy industry. The declaration of the AMAA is specific: “the disruption of the orderly exchange of commodities in interstate commerce impairs the purchasing power of farmers and destroys the value of agricultural assets which support the national credit structure and that these conditions affect transactions in agricultural commodities with a national public interest, and burden and obstruct the normal channels of interstate commerce.”
The AMAA provides authority for employing several methods to achieve more stable marketing conditions. Among these is classified pricing, which entails pricing milk according to its use by charging processors differing milk prices on the basis of form and use. In addition, the AMAA provides for specifying when and how processors are to account for and make payments to dairy farmers. Plus, the AMAA requires that milk prices established by an order be uniform to all processors and that the price charged can be adjusted by, among other things, the location at which milk is delivered by producers (section 608(c)(5)).
As these features and constraints provided for in the AMAA were employed in establishing prices under Federal milk orders, some important market stabilization goals were achieved. The most often recognized goal was the near elimination of ruinous pricing practices of handlers competing with each other on the basis of the price they paid dairy farmers for milk and in price concessions made by dairy farmers. The need for processors to compete with each other on the price they paid for milk was significantly reduced because all processors are charged the same minimum amount for milk, and processors had assurance that their competitors were paying the same value-adjusted minimum price.
The AMAA also authorizes the establishment of uniform prices to producers as a method to achieve stable marketing conditions. Marketwide pooling has been adopted in all Federal orders because of its superior features of providing equity to both processors and producers, thereby helping to prevent disorderly marketing conditions. A marketwide pool, using the mechanism of a producer settlement fund to equalize on the use-value of milk pooled on an order, meets that objective of the AMAA of ensuring uniform prices to producers supplying a market.
The California State milk order program clearly has objectives similar to those of the AMAA. Exhibits presented at the hearing indicate that the California State order program has a long history in the development and evolution of a classified pricing plan and in providing equity in pricing to handlers and producers. Important as classified pricing has been in setting minimum prices, the issue of equitable returns to producers for milk could not be satisfied by only the use of a classified pricing plan. Some California plants had higher Class I fluid milk use than did others and some plants processed little or no fluid milk products. As with the Federal order system, producers who were fortunate enough to be located nearer Class I processors had been receiving a much larger return for their milk than producers shipping to plants with lower Class I use or to plants whose main business was the manufacturing of dairy products. Over time, disparate price differences grew between producers located in the same production area of the state which, in turn, led to disorderly marketing conditions and practices. These included producers who became increasingly willing to make price concessions with handlers by accepting lower prices and in paying higher charges for services such as hauling. Contracts between producers and handlers were the norm, but the contracts were not long-term (rarely more than a single month) and could not provide a stable marketing relationship from which the dairy farmers could plan their operations.
In 1967, the California State legislature passed and enacted the Gonsalves Milk Pooling Act. The law provided the authority for the California Agriculture Secretary to develop and implement a pooling plan, which was implemented in 1968. The California pooling plan provides for the operation of a State-wide pool for all milk that is produced in the State and delivered to California pool plants. It uses an equalization fund that equalizes prices among all handlers and sets minimum prices to be paid to all producers pooled on the State order. While the pooling plan details vary somewhat from pooling details under the Federal order program, the California pooling objectives are basically identical to those of the Federal program.
It is clear from this review of the Federal and the California State programs that the orderly marketing of milk is intended in both systems. Both plans provide a stable marketing relationship between handlers and dairy farmers and both serve the public interest. It would be incorrect to conclude that the Federal and California milk order programs have differing purposes when the means, mechanisms, and goals are so nearly identical. In fact, the Federal order program has precedent in recognizing that the California State milk order program has marketwide pooling. Under milk order provisions in effect prior to milk order reform, and under § 1000.76(c), a provision
Since the 1960's the Federal milk order program recognized the harm and disorder that resulted to both producers and handlers when the same milk of a producer was simultaneously pooled on more than one Federal order. When this occurs, producers do not receive uniform minimum prices, and handlers receive unfair competitive advantages. The need to prevent “double pooling” became critically important as distribution areas expanded and orders merged. The issue of California milk, already pooled under its State-operated program and able to simultaneously be pooled under a Federal order, has, essentially, the same undesirable outcomes that Federal orders once experienced and subsequently corrected. It is clear that the Central order should be amended to prevent the ability of milk to be pooled on more than one order when both orders employ marketwide pooling.
There are other State-operated milk order programs that provide for marketwide pooling. For example, New York operates a milk order program for the western region of that State. A key feature explaining why this State-operated program has operated for years alongside the Federal milk order program is the exclusion of milk from the State pool when the same milk is already pooled under a Federal order. Because of the impossibility of the same milk being pooled simultaneously, the Federal order program has had no reason to specifically address double dipping or double pooling issues, the disorderly marketing conditions that arise from such practice, or the primacy of one regulatory program over another. The other states with marketwide pooling similarly do not double-pool Federal order milk.
The record testimony and evidence show milk pooled on the Central order originating from places distant from the area. However, this decision acknowledges that with the advent of the economic incentives for California milk to be pooled on the Central order and, at the same time, enjoy the benefits of being pooled under California's State-operated milk order program, more milk has come to be pooled on the order that has no legitimate association with the integral milk supplies of the Central order pool plants. The association at present has been made possible only through what some market participants describe as a regulatory loophole.
California milk should only be eligible for pooling on the Central order when it is not pooled on the California State order and when it meets the Central's pooling standards. It is the ability of milk from California to “double dip” that is a source of disorderly marketing conditions and for much more milk being pooled on the Central order.
Proposal 8 offers a reasonable solution for adding a prohibition on allowing the same milk to draw pool funds from Federal and State marketwide pools simultaneously. It is consistent with the current prohibition against allowing the same milk to participate in two Federal order pools simultaneously. Adoption of Proposal 8 will not establish any barrier to the pooling of milk from any source that actually demonstrates performance in supplying the Central market's need for milk used in Class I.
A proposal that would change the rate of the partial payment to producers and cooperatives for milk delivered during the first 15 days of the month to the lowest class price for the prior month times 110 percent, published in the hearing notice as Proposal 6, is not adopted. Therefore, the partial payment rate will remain as currently provided for by the order—at the lowest class price for the prior month.
This proposal offered by DFA intends to improve producer cash flow by bringing the partial payment into a closer relationship to the final blend price and to have the partial payment more closely reflect the value of the milk delivered to handlers during the first 15 days of the month. According to the DFA
The DFA,
Data provided by the DFA,
The DFA,
Several individual dairy farmers also testified that their cash flow situations have deteriorated since the current partial payment rate provisions became effective. In this regard, all dairy farmers testified in support of increasing the rate of partial payment.
A representative of Leprino Foods, a national cheese-processing firm, testified that USDA should reject Proposal 6 since it does not appropriately address the issue it purports to remedy and since it violates the minimum pricing concepts for manufacturers, but not because there is lack of need for an amendment. The Leprino witness testified that the cause of the disparity between the partial and final payment rates is a combination of a failure to blend the pool's higher use values into the partial payment and the use of a price level from the previous month rather than the current month. This witness argued that rather than addressing these problems in the
The witness from Leprino concluded that the most appropriate approach to address the root cause of the disparity between the partial and final payment would be the implementation of a similar minimum payment in pooling structure for the partial payment that exists in the final payment. However, the witness did not propose its adoption because such a remedy would require significant administration in terms of plant reporting, report analysis, pool calculation, and movement of funds into and out of the pool in the current system of minimum payment at the lowest class price. This concept was not properly noticed, the witness argued, and a more comprehensive review of all provisions of the order that would be affected and the magnitude of the impact would be necessary.
The Department reconstructed noticed data that recreated the intended analysis presented by witnesses. The Department's reconstruction relied, in part, on the partial payment provisions of the pre-reform orders. The Department used the previous month's Class III price of the pre-reform orders as the lowest class price because the Class III price was used then to set the rate of partial payment. In this regard, comparing partial payment relationship outcomes using actual historical provisions provided for comparing pre- and post-reform partial payment relationships as to the total payment for milk in a month.
Even with the limited amount of data available since the implementation of order reform, the Department's comparison of pre- and post-reform partial payment relationships to total payments does appear to support the observations made by the DFA witness. However, this initial observation alone is not a sufficient basis for changing the rate of the partial payment. Some significant differences in certain key assumptions were made by the proponents of Proposal 6 from those assumptions used by the Department in comparing pre- and post-reform time periods.
Also of concern is the limitation inherent in comparing a 36-month period to one of only 21 months. The 36-month time period shows price trends rising and falling, while the 21-month time shows a period of generally an upward trend in prices. This may suggest that there has not yet been a sufficient period of elapsed time to infer the impact of downward trends in prices and the possible effect on the relationship between the partial and final payments to producers.
With regard to Leprino's concern about uniformity of partial payment rates between orders, the current milk orders have a variety of partial payment rates. Several orders use a partial payment rate based on a percentage of the previous month's blend price, and the Florida order, for example, provides for two partial payments. Additionally, the Western and Arizona-Las Vegas orders, both of which pool significant volumes of milk used in cheese, provide for partial payment rates of 120 and 130 percent, respectively, of the previous month's lowest class price.
There may be times when the partial payment rate exceeds the balance due for the month. In this regard, handler interests point to this outcome as requiring them to pay more for milk for part of the month than its actual total value for the month. It is appropriate to note that this exact outcome occurred several times during the pre-reform 36-month period used by DFA. This decision finds the concerns of handlers in this regard as unpersuasive.
Deductions authorized by producers are more often made in the final payments for milk. There could be times when the amount deducted from the final payment exceeds the amount of the final payment. If the deductions are high enough for this to happen, it would be reasonable to conclude that producers desiring to smooth their cash flow would opt to allow a larger portion of their deductions to be made with receipt of the partial payment, as the order allows.
The partial payment provision in Federal orders is a minimum requirement placed on handlers to pay producers for milk delivered. It is notable that cooperatives and handlers are not restricted to paying only one partial payment at the rate specified in the order; partial payments for milk can be made more often. Additionally, cooperatives and handlers are also at liberty to negotiate agreements for more frequent billings for milk and payments for milk above the minimum established by the order. As made evident by the record, more flexible partial payment options are available to both producers and handlers than relying solely on changing the minimum payment provisions.
As the Leprino witness noted, DFA's proposal does not incorporate or blend the higher-valued uses of milk in their analysis. In response to this observation, the Department compared the relationships between the partial and total payment using various percentages of the Central order's previous month's blend price. Interestingly, if the desired objective is to more closely approximate the partial payment rate using the 36-month period before order reform, the proponents' 105 percent rate of the previous month's lowest class price does seem to best accomplish this. Nevertheless, the same limitations and concerns mentioned above prevent a finding that the Central order's rate for partial payment should be increased.
This decision finds that the cash flow concerns of producers may be better served by the adoption of other proposals considered in this proceeding. Other amendments adopted in this decision affecting the pooling of milk in the Central order will likely reduce the erosion in the blend price received by Central producers. It is expected that higher blend prices will result from more accurately identifying those producers and the milk of those producers who actually serve the Class I needs of the market. Similarly, the relationship between the partial payment and the total price received by producers may change by the adoption of these pooling standard amendments. Accordingly, a finding that the rate of partial payment to producers by handlers should be increased is not supported by the evidence contained in the record of this proceeding.
Evidence presented at the hearing establishes that the pooling standards of the Central order are inadequate and result in the erosion of the blend price received by producers who are serving the Class I needs of the market and should be changed on an emergency basis. The unwarranted erosion of such producers' blend prices stems from improper performance standards as they relate to pool supply plants and the lack of limits for pool plant diversions to pool and nonpool plants. These shortcomings of the pooling provisions have allowed milk that does not provide a reasonable or consistent service to meeting the needs of the Class I market to be pooled on the Central order. Consequently, it is determined that emergency marketing conditions exist and the issuance of a recommended decision is therefore being omitted. The record clearly establishes a basis as noted above for amending the order on
Evidence presented at the hearing also establishes that California milk pooled simultaneously on the California State-operated order and the Central Federal order, a practice commonly referred to as double dipping, renders the Central Federal milk order unable to establish prices that are uniform to producers and to handlers and also has contributed to the unwarranted erosion of milk prices to Central producers.
In view of this situation, an interim final rule amending the order will be issued as soon as the procedures are completed to determine the approval of producers.
Briefs and proposed findings and conclusions were filed on behalf of certain interested parties. These briefs, proposed findings and conclusions, and the evidence in the record were considered in making the findings and conclusions set forth above. To the extent that the suggested findings and conclusions filed by interested parties are inconsistent with the findings and conclusions set forth herein, the requests to make such findings or reach such conclusions are denied for the reasons previously stated in this decision.
The findings and determinations hereinafter set forth supplement those that were made when the Central order was first issued and when it was amended. The previous findings and determinations are hereby ratified and confirmed, except where they may conflict with those set forth herein.
The following findings are hereby made with respect to the aforesaid marketing agreement and order:
(a) The interim marketing agreement and the order, as hereby proposed to be amended, and all of the terms and conditions thereof, will tend to effectuate the declared policy of the Act;
(b) The parity prices of milk as determined pursuant to section 2 of the Act are not reasonable in view of the price of feeds, available supplies of feeds, and other economic conditions which affect market supply and demand for milk in the marketing area, and the minimum prices specified in the interim marketing agreement and the order, as hereby proposed to be amended, are such prices as will reflect the aforesaid factors, insure a sufficient quantity of pure and wholesome milk, and be in the public interest; and
(c) The interim marketing agreement and the order, as hereby proposed to be amended, will regulate the handling of milk in the same manner as, and will be applicable only to persons in the respective classes of industrial and commercial activity specified in, a marketing agreement upon which a hearing has been held.
Annexed hereto and made a part hereof are two documents, an Interim Marketing Agreement regulating the handling of milk, and an Interim Order amending the order regulating the handling of milk in the Central marketing area, which have been decided upon as the detailed and appropriate means of effectuating the foregoing conclusions.
It is hereby ordered that this entire tentative decision and the interim order and the interim marketing agreement annexed hereto be published in the
The month of November 2001 is hereby determined to be the representative period for the purpose of ascertaining whether the issuance of the order, as amended and as hereby proposed to be amended, regulating the handling of milk in the Central marketing area is approved or favored by producers, as defined under the terms of the order as hereby proposed to be amended, who during such representative period were engaged in the production of milk for sale within the aforesaid marketing area.
The agent of the Department to conduct such referendum is hereby designated to be Donald R. Nicholson, Ph.D.
Milk marketing orders.
This interim order shall not become effective unless and until the requirements of § 900.14 of the rules of practice and procedure governing proceedings to formulate marketing agreements and marketing orders have been met.
The findings and determinations hereinafter set forth supplement those that were made when the order was first issued and when it was amended. The previous findings and determinations are hereby ratified and confirmed, except where they may conflict with those set forth herein.
(a)
Upon the basis of the evidence introduced at such hearing and the record thereof, it is found that:
(1) The said order as hereby amended, and all of the terms and conditions thereof, will tend to effectuate the declared policy of the Act;
(2) The parity prices of milk, as determined pursuant to section 2 of the Act, are not reasonable in view of the price of feeds, available supplies of feeds, and other economic conditions which affect market supply and demand for milk in the aforesaid marketing area. The minimum prices specified in the order as hereby amended are such prices as will reflect the aforesaid factors, insure a sufficient quantity of pure and wholesome milk, and be in the public interest; and
(3) The said order as hereby amended regulates the handling of milk in the same manner as, and is applicable only to persons in the respective classes of industrial or commercial activity specified in, a marketing agreement upon which a hearing has been held.
The authority citation for 7 CFR part 1032 continues to read as follows:
7 U.S.C. 601-674.
1. Section 1032.7 is amended by:
(a) Revising the introductory text of paragraph (c),
(b) Revising paragraph (c)(1),
(c) Revising paragraph (c)(2),
(d) Removing paragraph (c)(4) and redesignating paragraph (c)(5) as paragraph (c)(4); and
(e) Adding a new paragraph (c)(5).
The revisions read as follows:
(c) A supply plant from which the quantity of bulk fluid milk products shipped to (and physically unloaded into) plants described in paragraph (c)(1) of this section is not less than 20 percent during the months of August through February and 15 percent in all other months of the grade A milk received from dairy farmers (except dairy farmers described in § 1032.12(b)) and from handlers described in § 1000.9(c), including milk diverted pursuant to § 1032.13, subject to the following conditions:
(1) Qualifying shipments may be made to plants described in paragraphs (a) or (b) of this section;
(2) The operator of a pool plant located in the marketing area may include as qualifying shipments milk delivered directly from producer's farms pursuant to § 1000.9(c) or § 1032.13(c). Handlers may not use shipments pursuant to § 1000.9(c) or § 1032.13(c) to qualify plants located outside the marketing area;
(5) Shipments used in determining qualifying percentages shall be milk transferred or diverted to and physically received by pool distributing plants, less any transfers or diversions of bulk fluid milk products from such pool distributing plants.
2. Section 1032.13 is amended by:
(a) Revising paragraph (d)(2)
(b) Redesignating paragraphs (d)(3), (d)(4), and (d)(5), as (d)(4), (d)(5), and (d)(6), respectively.
(c) Adding a new paragraph (d)(3)
(d) Adding a new paragraph (e).
The revision and additions read as follows:
(d) * * *
(2) Of the quantity of producer milk received during the month (including diversions, but excluding the quantity of producer milk received from a handler described in § 1000.9(c)) the handler diverts to nonpool plants not more than 80 percent during the months of August through February, and not more than 85 percent during the months of March through July, provided that not less than 20 percent of such receipts in the months of August through February and 15 percent of the remaining months' receipts are delivered to plants described in § 1032.7(a) and (b);
(3) Receipts used in determining qualifying percentages shall be milk transferred to or diverted to or physically received by a plant described in § 1032.7(a), (b) or (e) less any transfer or diversion of bulk fluid milk products from such plants.
(e) Producer milk shall not include milk of a producer that is subject to inclusion and participation in a marketwide equalization pool under a milk classification and pricing program imposed under the authority of a State government maintaining marketwide pooling of returns.
The parties hereto, in order to effectuate the declared policy of the Act, and in accordance with the rules of practice and procedure effective thereunder (7 CFR Part 900), desire to enter into this marketing agreement and do hereby agree that the provisions referred to in paragraph I hereof as augmented by the provisions specified in paragraph II hereof, shall be and are the provisions of this marketing agreement as if set out in full herein.
I. The findings and determinations, order relative to handling, and the provisions of §§ 1032.1 to 1032.86, all inclusive, of the order regulating the handling of milk in the Central marketing area (7 CFR PART 1032) which is annexed hereto; and
II. The following provisions: Record of milk handled and authorization to correct typographical errors.
(a) Record of milk handled. The undersigned certifies that he/she handled during the month of _____ 2001, ___ hundredweight of milk covered by this marketing agreement.
(b) Authorization to correct typographical errors. The undersigned hereby authorizes the Deputy Administrator, or Acting Deputy Administrator, Dairy Programs, Agricultural Marketing Service, to correct any typographical errors which may have been made in this marketing agreement.
Effective date. This marketing agreement shall become effective upon the execution of a counterpart hereof by the Secretary in accordance with Section 900.14(a) of the aforesaid rules of practice and procedure.
In Witness Whereof, The contracting handlers, acting under the provisions of the Act, for the purposes and subject to the limitations herein contained and not otherwise, have hereunto set their respective hands and seals.
Federal Election Commission.
Final rules and transmittal of regulations to Congress.
The Federal Election Commission is issuing these final rules to implement amendments made by the Bipartisan Campaign Reform Act of 2002 (“BCRA”) to the contribution limitations and prohibitions of the Federal Election Campaign Act of 1971, as amended (“FECA” or “the Act”). These rules increase the limits on contributions made by individuals and political committees; index certain contribution limits for inflation; prohibit contributions by minors to candidates, authorized committees and committees of political parties and donations by minors to committees of political parties; and prohibit contributions, donations, expenditures, independent expenditures and disbursements by foreign nationals. These rules also revise the Commission's rules for designating contributions to particular elections and attributing contributions to particular donors. Further information is provided in the Supplementary Information that follows.
January 1, 2003.
Ms. Mai T. Dinh, Acting Assistant General Counsel, Mr. J. Duane Pugh, Acting Special Assistant General Counsel (redesignations and reattributions), or Attorneys Mr. Michael G. Marinelli (contribution limitations), Ms. Dawn M. Odrowski (contributions by minors) or Ms. Anne A. Weissenborn (foreign nationals), 999 E Street, NW., Washington, DC 20463, (202) 694-1650 or (800) 424-9530.
The Bipartisan Campaign Reform Act of 2002, Public Law 107-155, 116 Stat. 81 (Mar. 27, 2002), contains extensive and detailed amendments to the Federal Election Campaign Act of 1971, as amended, 2 U.S.C. 431
Section 402(c)(1) of BCRA establishes a general deadline of 270 days for the Commission to promulgate regulations to carry out BCRA. The President of the United States signed BCRA into law on March 27, 2002, so the 270-day deadline is December 22, 2002.
Because of the brief period before the deadline for promulgating these rules, the Commission received and considered public comments expeditiously. The Notice of Proposed Rulemaking (“NPRM”) on which these final rules are based was published in the
Under the Administrative Procedures Act, 5 U.S.C. 553(d), and the Congressional Review of Agency Rulemaking Act, 5 U.S.C. 801(a)(1), agencies must submit final rules to the Speaker of the House of Representatives and the President of the Senate and publish them in the
The final rules address five major topics: (1) Increased limits on contributions made by certain persons to candidates, by political party committees to Senate candidates, and by individuals in a 2-year period; (2) indexing of certain contributions limits for inflation; (3) prohibition on contributions, donations, expenditures, independent expenditures and disbursements by foreign nationals; (4) prohibition on contributions by minors to candidates, authorized committees, and committees of political parties and on donations by minors to committees of political parties; and (5) designating contributions to particular elections and attributing contributions to particular contributors.
Four of the five topics involve implementing specific provisions of BCRA. BCRA's amendments to 2 U.S.C. 441a(a) that increase contribution limits for individuals and political committees are implemented by amending 11 CFR 110.1, 110.2 and 110.5 and adding new § 110.17 on indexing the contributions limits for inflation. BCRA's amendments to 2 U.S.C. 441e to strengthen and expand the ban on campaign contributions and donations by foreign nationals is implemented by removing and reserving 11 CFR 110.4(a), the former regulation addressing foreign nationals, and adding new § 110.20. BCRA's ban on contributions by minors to Federal candidates and contributions and donations by minors to committees of political parties at 2 U.S.C. 441k is implemented by removing 11 CFR 110.1(i)(2), the former regulation addressing contributions by minors, and adding new § 110.19.
In light of BCRA's focus on contribution limits, the Commission has also decided to streamline its rules for redesignating contributions for a particular election and reattributing contributions to particular contributors. These changes are reflected in amendments to 11 CFR 110.1(b)(5) and 110.1(k)(3).
Recordkeeping requirements play a crucial role in ensuring compliance with FECA's and BCRA's contributions limitations, as noted in the NPRM. 64 FR at 54,372. Accordingly, the Commission sought comment on a variety of proposals to modify the recordkeeping requirements in 11 CFR 102.9. Two commenters were opposed to any change; one noted that electronic records should be sufficient, provided they are in readable form. Another commenter supported the Commission's proposal to require political committees to maintain photocopies or electronic copies of contributors' checks. The Commission has determined that requiring retention of photocopies or electronic copies of contributors' checks will facilitate audits that determine compliance with contribution limits. Therefore, 11 CFR 102.9(a) is amended to require political committee treasurers to maintain either a full-size photocopy or a digital image of each check or written instrument by which a contribution is made. If a political committee elects to retain digital images, it must be prepared to provide the Commission with the computer equipment and software needed to retrieve and read the digital images at no cost to the Commission. New 11 CFR 102.9(a)(4).
Additionally, the Commission is also amending the supporting evidence requirements for redesignations and reattributions in connection with other changes made to redesignations and reattributions, as explained below in the discussion of 11 CFR 110.1(l).
Paragraph (e)(1) of 11 CFR 102.9 is amended to clarify that its requirements apply to contributions designated in writing by the contributor pursuant to 11 CFR 110.1(b)(2)(i), contributions treated as such pursuant to 11 CFR 110.1(b)(2)(ii), contributions redesignated in writing by the contributor pursuant to new 11 CFR 110.1(b)(5)(ii)(A), or contributions designated by presumption pursuant to new 11 CFR 110.1(b)(5)(ii)(B). New paragraph (e)(2) makes the standard for acceptable accounting methods explicit by stating that the committee's records must demonstrate that, prior to the primary election, recorded cash on hand was at all times equal to or in excess of the sum of general election contributions received less the sum of general election disbursements made. Additionally, a technical change is made to recodify existing regulatory text as new paragraph (e)(3) in order to clarify that the requirement for candidates not in the general election to refund any contributions designated or treated as contributions for the general election applies to all candidates and authorized committees.
Section 110.1(a) sets out the scope of the regulations in 11 CFR 110.1. The final rules in this paragraph contain amended citations to the provisions concerning minors and foreign nationals. This final rule is substantially identical to the proposed rule, and the Commission did not receive any comments concerning paragraph (a).
The Act limits the amount that individuals and certain other persons may contribute to candidates and political committees, including political party committees with respect to Federal elections. 2 U.S.C. 441a(a)(1). The pre-BCRA provisions of the Act permitted persons to contribute up to $1,000 to Federal candidates per election and up to $20,000 per calendar year to political committees established and maintained by national political parties. For contributions made on or after January 1, 2003, BCRA amends 2 U.S.C. 441a(a)(1)(A) to increase the amount persons may contribute to Federal candidates to $2,000 per election. Section 110.1(b)(1), which contains the contribution limitation of 2 U.S.C. 441a(a)(1)(A), is therefore, being amended to incorporate the new increased $2,000 contribution limit. Paragraph (b)(1) in the final rules, with some minor revisions, is substantially identical to proposed paragraph (b)(1) in the NPRM. The Commission did not receive any comments on this provision.
FECA also permits certain persons to contribute up to $5,000 per year to any other political committees. 2 U.S.C. 441a(a)(1)(C). This contribution limit was left unchanged by BCRA. However, BCRA did revise 2 U.S.C. 441a(a)(1) by adding paragraph (D), which permits persons to make up to $10,000 in contributions to a political committee established and maintained by a State committee of a political party in a calendar year. This statutory provision was implemented by the addition of new paragraph (c)(5) to § 110.1.
BCRA mandates that the limit for contributions by individuals and other persons under 2 U.S.C. 441a(a)(1)(A) be increased every odd-numbered year by the percentage difference in the price index between the current year and the base year of 2001. 2 U.S.C. 441a(c)(1)(B). The mechanics of the indexing are set forth in 11 CFR 110.17, which is discussed below. However, in order to alert the reader that the contribution limits are adjusted every two years, § 110.1(b)(1)(i) contains a cross reference to section 110.17. Additionally, paragraph (b)(1)(ii) sets forth the 2-year time period in which the increased contribution limits are to be in effect. That 2-year period starts the day after the previous general election and ends on the day of the next regularly scheduled general election.
Because the contribution limits may change every two years, depending upon the consumer price index, paragraph (b)(1)(iii) states that the Commission will publish the new contribution limits in effect in the
The NPRM raised the issue of the effect of the increase on contribution limits due to the inflation adjustment on contributions made after an election that are used to satisfy the net debts outstanding of a candidate's authorized committees related to that previous election. The NPRM sought comment on the following hypothetical: If the contribution limit were to be increased from $2,000 to $2,100, effective November 3, 2004, and contributor X makes a $2,000 contribution to candidate Y in October of 2004, could contributor X make a $100 contribution after November 3, 2004 designated for that general election, provided that candidate Y's principal campaign committee still has net debts outstanding?
The Commission received several comments concerning this issue. All the commenters who addressed this, including the Congressional sponsors of BCRA, argued against permitting the increase in the contribution limits to apply to contributions made to pay off net debts outstanding from any election held prior to the increase in the contribution limits. Instead, these commenters proposed that any increased contribution limits should only apply to elections held after the date on which the indexing triggers a higher contribution limit. Several of these commenters noted the confusion that would ensue for both contributor and recipient committees if multiple contribution limits applied to the same election. The Commission agrees with this reasoning. In addition, it finds no evidence that Congress intended candidates in a deficit position after an election to have the benefit of accepting larger contributions than candidates who have no debts outstanding for that election. Consequently, the Commission is persuaded that the increase in the contribution limits should not be applied to previous elections. This interpretation will reduce the occurrence of multiple changes to the contribution limits for elections. The Commission also notes that the retroactive application of 2 U.S.C. 441a(c)(1)(C) specifically begins on the date after the previous general election, and can thus be construed to mean that the increase in the contribution limits does not apply to any previous election.
To make clear that the increase in contribution limits cannot be used to retire net debts outstanding from previous elections, the Commission is amending § 110.1(b)(3)(iii). This regulation sets forth the conditions under which candidates may accept contributions to retire net debts outstanding after the date of a previous primary or general election. The Commission is renumbering the two existing conditions as paragraphs (b)(3)(iii)(A) and (B) and is adding the
In the NPRM, the Commission stated that BCRA's renewed focus on contribution limits coincided with the Commission's consideration of updating and streamlining its rules for designating contributions for a particular election or attributing contributions to particular contributors.
One commenter applauded the Commission's consideration of the contribution redesignation regulations that it characterized as “confusing and burdensome both for committees and contributors.” In contrast, several commenters noted that BCRA neither requires nor anticipates a reexamination of the redesignation rules. BCRA's silence on these issues led one commenter to the conclusion that these issues would be more appropriately addressed in a separate rulemaking that does not arise from BCRA, while another found the Commission's reexamination well-timed, as an effort to simplify FECA compliance generally, which will improve the ability of political committees to comply with the new requirements of BCRA. In light of the new contribution limits and other statutory changes in BCRA, the Commission has concluded that this rulemaking provides an appropriate vehicle for simplifying the rules governing redesignation.
Because the Commission has decided to provide for an alternative method for redesignation of contributions, 11 CFR 110.1(b)(5)(ii) requires a technical amendment in order to incorporate the new provision within this section. Thus, this rulemaking redesignates former 110.1(b)(5)(ii)(A) and (B) as 110.1(b)(5)(ii)(A)(1) and (2), respectively. This rulemaking does not amend the regulatory language of these provisions.
Current 11 CFR 110.1(b)(5) sets forth the procedure for the redesignation of excessive contributions to candidates and authorized committees from any person, except multicandidate committees and those persons prohibited from making contributions.
As proposed in the NPRM, the Commission is amending these regulations to include a mechanism to simplify redesignation procedures for certain excessive primary contributions by using a presumption.
The Commission agrees with the commenter who noted the reasonableness of a presumption that a contributor of a large contribution to a primary election campaign would also support the general election campaign of the same candidate. That commenter reasoned that the primary and general elections occur in the same year and are two stages of one process to elect a candidate to a particular office. However, the Commission disagrees with another commenter who argued that written redesignations most often serve as barriers to contributor intent, which in the commenter's view is generally to support the candidate to the maximum extent possible. The Commission retains its rules on written redesignations in all other situations described in 11 CFR 110.1(b)(5)(i)(A) through (D). Only in the specific circumstance presented in new 11 CFR 110.1(b)(5)(ii)(B) will the presumption suffice to replace a written redesignation.
Thus, the Commission is revising § 110.1(b)(5)(ii)(B) to permit an authorized committee to redesignate excessive contributions to the general election if the following conditions are satisfied. First, the contribution must be made before the primary election. Second, the contribution must not have been designated in writing for another election. Third, the contribution would be excessive if treated as a contribution made for the primary election, and fourth, the redesignation does not cause the contributor to exceed any other contribution limit. These conditions are set forth in paragraphs (b)(5)(ii)(B)(
With respect to the redesignation of certain primary contributions, the NPRM included two alternatives, Alternatives 1-A and 1-B.
Alternative 1-A was designed to minimize the administrative burden on authorized committees when a contributor's intent could be reasonably inferred.
Alternative 1-B in the Commission's proposal would have required that the authorized committee inform the contributor that a portion of the contribution is being redesignated to the general election, and that the contributor may request a refund instead. As with Alternative 1-A, no confirmation from the contributor would have been required.
This alternative attracted the support of several commenters, as well. One commenter found that the presumption combined with notice to the contributor reasonably approximates contributor intent, with notice ensuring that any other contributor intent can be honored. Similarly, another argued Alternative 1-B strikes the appropriate balance between the administrative burden imposed on authorized committees and the need to honor contributor intent, noting that some primary election contributors might plan to support a different candidate in the general election. Another commenter supported the notice required under Alternative 1-B because it would provide an opportunity for the contributor to “opt-out” and receive a refund, instead of permitting the redesignation, and because it is more likely to prevent the contributor from inadvertently making an excessive contribution to the general election.
The Commission has determined that notifying contributors is necessary when authorized committees redesignate excessive contributions that were initially considered primary contributions by operation of 11 CFR 110.1(b)(2)(ii) to be general election contributions. The Commission has therefore adopted Alternative 1-B as proposed in the NPRM, with clarification to the notice procedure as described below.
The notice and refund procedure serves to confirm the presumption that a contributor of an excessive, undesignated contribution to the primary election would consent to a redesignation of the excessive portion of the contribution to the general election. The authorized committee may assume acquiescence on the part of the contributor if the contributor does not respond to the notification. However, if the contributor does not want the contribution to be redesignated, the notice provides a mechanism by which the contributor may object to the redesignation and request a refund or a reattribution under 11 CFR 110.1(k)(3)(ii). Additionally, the Commission notes that the trigger for a committee's use of the presumption—an undesignated excessive contribution—suggests the contributor may benefit from information about the contribution limits in FECA. Contributors need to know if a contribution was redesignated or reattributed so that they can avoid an inadvertent excessive contribution. Any authorized committee that seeks to retain a contribution that would otherwise constitute a violation of law can fairly be required to notify the contributor of the means by which it has remedied the violation of law. Thus, new paragraph (b)(5)(ii)(B)(
Authorized committees may notify contributors by paper mail, email, fax, or any other written method. The authorized committee must do so within sixty days of the treasurer's receipt of the contribution.
The Commission sought comment on whether to permit backward-looking presumptions, so that excessive general election contributions received after a primary election could be designated by an authorized committee to pay off primary debt.
The Commission has determined that the backward-looking presumption, in limited circumstances, should apply subject to the same conditions as the redesignation presumption in 11 CFR 110.1(b)(5)(ii)(B). The Commission notes that current 11 CFR 110.1(b)(3)(iv) permits a candidate in the general election to pay primary election debts and obligations with general election contributions. Thus, if a contributor designates in writing that a non-excessive contribution should be considered for the general election, the recipient committee may nonetheless use those funds to pay primary debts, pursuant to 11 CFR 110.1(b)(3)(iv). In this situation, it would be incongruous if a recipient committee had less flexibility with contributions that are
Consequently, the Commission has incorporated such a presumption in new 11 CFR 110.1(b)(5)(ii)(C). The presumption can be applied to an excessive contribution that is made after the primary election date, but before the general election and that was not designated in writing by the contributor. 11 CFR 110.1(b)(5)(ii)(C)(
The pre-BCRA provisions of the Act permitted persons to contribute up to $20,000 per calendar year to the political committees established and maintained by the national political parties. BCRA amends 2 U.S.C. 441a(a)(1)(B) to increase the amount that may be contributed by individuals and certain other persons to political committees established and maintained by national political parties to $25,000 per calendar year. Consequently, the Commission is amending 11 CFR 110.1(c)(1) to increase the amount that may be contributed by those covered by 2 U.S.C. 441a(a)(1)(B) to committees established and maintained by national political parties to $25,000 per year. No comments were received on this change. Paragraph (c)(2) of this section provides that these committees consist of the national committees, and the House and Senate campaign committees.
The Commission is adding new paragraphs (c)(1)(i), (ii) and (iii) to § 110.1. These paragraphs parallel new paragraphs (b)(1)(i), (ii) and (iii) discussed above. Paragraph (c)(1)(i) provides for application of the indexing provisions at 11 CFR 110.17 to the contribution limitation for contributions to national party committees. New paragraph (c)(1)(ii) establishes the two-year period in which the indexing is applied. New paragraph (c)(1)(iii) provides for the periodic publication by the Commission of the increased contribution limits. When proposed in the NPRM, the new paragraphs (c)(1)(i) and (c)(1)(iii) received no comments. These paragraphs are left substantially unchanged from the NPRM in the final rules. The comments relating to paragraph (c)(1)(ii) regarding the timing of the increase in the contribution limit due to the application of the indexing provisions are addressed below in the Explanation and Justification for new § 110.17.
As explained below in the Explanation and Justification for new 11 CFR 110.19, 2 U.S.C. 441k prohibits contributions made by minors to Federal candidates and contributions and donations to committees of political parties, but it does not prohibit contributions or donations to other types of political committees such as corporate and labor organization separate segregated funds and non-connected political committees (often referred to as “PACs”).
The proposed rules would have amended the pre-BCRA provision governing contributions by minors at former 11 CFR 110.1(i)(2) to reflect this point. The Commission has decided instead to move the pre-BCRA minors provision to new 11 CFR 110.19 so that all of the provisions regarding minors are addressed in one section of the regulations. Therefore, the final rules move the minors provision at former 11 CFR 110.1(i)(2) to new 11 CFR 110.19(d). As a result of this move, § 110.1(i) addresses only contributions by spouses, a provision that is unchanged. Therefore the final rules amend the title of paragraph (i) to “Contributions by Spouses” to reflect the remaining focus of this paragraph.
In connection with the proposed amendments to the redesignation rules, the NPRM also included a similar proposal to amend the reattribution rules. Current 11 CFR 110.1(k)(3) sets forth the procedures for the reattribution of excessive contributions to other joint contributors. Contributions from more than one person must include each contributor's signature, and each such contributor is attributed an equal share of the contribution unless other instructions are provided. 11 CFR 110.1(k)(1) and (2). A committee may ask a contributor who made an excessive contribution if a joint contribution was intended. 11 CFR 110.1(k)(3)(i). In order to reattribute a contribution in such a situation, a committee treasurer must offer the contributor a refund and must obtain within sixty days of the contribution a written reattribution signed by each of the contributors. 11 CFR 110.1(k)(3)(ii). (Unlike redesignation, which is limited to authorized committees because of the relationship of the contribution to particular elections pursuant to 2 U.S.C. 441a(a)(1)(A), the reattribution procedure is available to all political committees, any of which could receive joint contributions.) The commenters who supported the Commission's proposal to amend the redesignation rules also supported the proposal to amend the reattribution rules for the same reasons. Likewise, commenters who did not favor the Commission's proposal regarding redesignation also did not support amending the reattribution rules at this time.
The Commission proposed a presumption related to reattribution in the NPRM. When funds are contributed by a check or other written instrument with two or more names imprinted on the check, but with only one signature, the entire contribution is attributed to the individual whose signature appears on the check.
Three commenters opposed both Alternatives 2-A and 2-B. The three agreed that inferring a non-signer's intent to contribute in the absence of any indication from that individual is extremely unreliable and carries a greater risk of error than the redesignation presumption. One commenter observed that the non-signer might not support the same candidates and political committees that the signer supports. Even if he or she does support the same candidates, if the non-signer is unaware of the contribution, he or she may inadvertently make an excessive contribution to the same committee. Another of the three found Alternative 2-B unacceptable because the burden of “opting-out,” that is, choosing to request a refund instead of permitting the reattribution, would be on the contributor, whereas the commenter believed the burden should be on the recipient committee. A fourth commenter agreed with the presumption, arguing that contributors do not generally believe more than one signature would be required because usually only one person signs a particular check. This commenter also argued that any indication of intent to make a joint contribution should suffice, citing examples of accompanying correspondence, a donor card, or a notation on a check. Under such circumstances, this commenter would not require notification. In the absence of any indication of such an intent, this commenter supports the approach of Alternative 2-B, which would require the recipient committee to notify the contributors of the reattribution.
Because the Commission has decided to provide for an alternative method for reattribution of contributions, 11 CFR 110.1(k)(3)(ii) requires a technical amendment in order to incorporate the new provision within this section. Thus, this rulemaking redesignates former § 110.1(k)(3)(ii)(A) and (B) as § 110.1(k)(3)(ii)(A)(1) and (2), respectively. This rulemaking does not amend the regulatory language of these provisions.
The Commission has concluded that the changes required by BCRA provide an appropriate occasion to promulgate regulations that will provide authorized committees with additional means of reattributing certain contributions. Thus, it has adopted Alternative 2-B with two modifications. Under paragraph (k)(3)(ii)(B)(
The Commission has determined that notice to the contributors is essential to make any presumption in this situation reasonable. The political committee employing this presumption is required to notify all contributors and offer the signer contributor a refund under paragraph (k)(3)(ii)(B)(
As noted in the NPRM, the Commission and political committees have devoted significant resources to ensure compliance with the reattribution requirements. The Commission agrees with the commenter who noted that joint contributors often indicate their intention to jointly contribute in some fashion other than by both signing one personal check. However, the Commission also agrees that a presumption based only on an individual's name appearing on a check is not reliable standing alone. Consequently, the Commission is adopting the requirement that political committees notify all of the joint contributors to whom any portion of the contribution is reattributed. The committee may make the notice in any written form and must do so within sixty days of the treasurer's receipt of the contribution.
Current 11 CFR 110.2(b)(5) sets forth the procedure for redesignation of excessive contributions made by multicandidate committees. In the NPRM, the Commission asked commenters to address whether excessive contributions from multicandidate committees should be subject to any form of redesignation by presumption. Only one commenter supported any such application, while two opposed it. These two argued that a signed writing should be required from multicandidate committees because these committees are likely to be sufficiently familiar with the existing Commission requirements so that the higher standard of specificity required from them is not burdensome. The Commission agrees that the redesignation presumption is inappropriate for multicandidate committees, so no change has been made to 11 CFR 110.2.
The Commission also asked in the NPRM if presumptions that would permit authorized committees to redesignate contributions beyond the current election cycle to either earlier or subsequent cycles were appropriate.
The Commission asked in the NPRM if it should revise 11 CFR 102.9 to require that an authorized committee maintain a separate account for general election contributions accepted before the primary election occurs.
Although the Commission believes maintaining a separate account is the best way for an authorized committee to show its compliance with the prohibition on spending general election contributions in connection with a primary election, the Commission is reluctant to require that authorized committees maintain separate accounts when other means of accounting, which may be better suited to an organization, will suffice to prevent the use of general election contributions in connection with a primary election. Consequently, the Commission declines to amend 11 CFR 102.9 in this regard.
The Commission sought comment on whether it should eliminate the signature requirement for all redesignations and reattributions under 11 CFR 110.1 and 110.2, and instead permit authorization from the contributor by email or through oral communications with the contributor when the recipient committee creates and maintains a contemporaneous signed record of the conversation.
All of the commenters who addressed this issue thought an email should suffice, instead of a writing signed by the contributor. Some commenters were opposed to permitting committees to memorialize conversations to serve as documentation of redesignations or reattributions, as discussed above in connection with 11 CFR 110.1(l).
In adopting the new means of redesignation and reattribution in 11 CFR 110.1(b)(5)(ii)(B), 110.1(b)(5)(ii)(C), and 110.1(k)(3)(ii)(B), the Commission has concluded that no contributor response is required for the reattributions and redesignations pursuant to the new presumptions, so no contributor signature is required. However, the designation and attribution regulations require contributor signatures in other instances.
As noted in the NPRM, the adoption of the notification approach requires 11 CFR 110.1(l)(4) to be amended to specify the supporting evidence required to be retained under such an approach.
Some commenters supported the proposal that would have permitted committees to orally notify contributors and write a memorandum regarding the conversation to document it. Others opposed this aspect of the proposal as an inherently unreliable process that would provide too great an opportunity for fraud and abuse. The Commission agrees with the latter comments, so the final rules with regard to the redesignation and reattribution presumptions require the notice to be in writing, including by email.
One technical correction is included in 11 CFR 110.1(l)(5) as well. The citation to paragraph (l)(2) in the first sentence should be to paragraph (l)(1) instead.
Section 110.2 sets forth the dollar limits on contributions made by multicandidate committees, as generally established by 2 U.S.C. 441a(a)(2). BCRA substantially amended the contribution limit for certain types of multicandidate committees specified in 2 U.S.C. 441a(h), which is addressed in § 110.2. As a result, the Commission is amending the regulations to reflect the new limits set forth in more detail below.
Under pre-BCRA 2 U.S.C. 441a(h), the Republican and Democratic Senatorial campaign committees or the national committee of a political party or any combination of such committees were permitted to contribute up to $17,500 to a candidate for election or nomination for election to the U.S. Senate during the year of the election. BCRA amends this section of the Act to increase the amount that may be contributed by these committees to Senatorial candidates to $35,000 on or after January 1, 2003. Consequently, 11 CFR 110.2(e), which contains this contribution limit, is being amended to increase the limit to $35,000.
New paragraph (e)(1) sets forth the amended contribution limit. The Commission did not receive any comment on its proposal to amend paragraph (e)(1). New paragraph (e)(2) parallels the provisions in § 110.1(c)(1)(i), (ii) and (iii) and 110.1(b)(1)(i), (ii) and (iii). New paragraph (e)(2) provides for the application of the indexing provisions at 11 CFR 110.17 to this contribution limitation and establishes the two-year period in which the increased contribution limits are in effect. New paragraph (e)(2) also provides for the periodic publication by the Commission of the increased contribution limit. When first proposed in the NPRM, this paragraph received one comment supporting the intention to publish information regarding the adjusted contribution limit. The comments relating to paragraph (e)(2) that concern the timing of the increase in the contribution limit due to the application of the indexing provisions are addressed in the Explanation and Justification for new § 110.17, below.
Previously, 11 CFR 110.4(a) set forth regulations implementing the prohibitions on contributions and expenditures by foreign nationals codified at 2 U.S.C. 441e. In light of the amendments to 2 U.S.C. 441e contained in BCRA, § 110.4(a) is being removed and reserved, and new 11 CFR 110.20 is being created to implement BCRA's prohibition on contributions, donations, expenditures, independent expenditures, and disbursements by foreign nationals.
In addition, the section heading has been changed to cover the two topics addressed in this section: (1) Contributions made in the name of another and (2) cash contributions.
Aside from the limits on the dollar amounts that individuals may contribute to candidates and political committees, 2 U.S.C. 441a(a)(3) also contains aggregate limits on the amount that individuals may give within a specified period of time. These contribution limits are set forth in the Commission's regulations at 11 CFR 110.5. However, as with §§ 110.1 and 110.2 discussed above, BCRA substantially amended the FECA by restructuring the aggregate contribution limits. As a result, the Commission is amending the regulations in § 110.5 to reflect the new contribution limits in BCRA.
Section 110.5(a) sets forth the scope of the regulations in 11 CFR 110.5. The final rules in this paragraph contain amended citations to the provisions concerning minors and foreign nationals. This final rule is identical to the proposed rule, on which the Commission received no comments.
BCRA amends the provisions in FECA that establish the total amount of contributions that may be made by individuals within the prescribed time periods. Under former 2 U.S.C. 441a(a)(3), individuals were permitted to make no more than $25,000 in aggregate contributions per calendar year. This section was revised by BCRA to establish new bi-annual aggregate limits that permit individuals to make up to $95,000 in contributions, including up to $37,500 in contributions to candidates and their authorized committees, and up to $57,500 in contributions to any other political committees. 2 U.S.C. 441a(a)(3)(A) and (B). The $57,500 aggregate contribution limit contains a further restriction in that no more than $37,500 of this amount may be given to political committees that are not the political committees of national political parties. 2 U.S.C. 441a(a)(3)(B).
Current 11 CFR 110.5(b) is being amended to incorporate the increased bi-annual aggregate contribution limits, which are effective on January 1, 2003. New paragraph (b)(1)(i) contains the new bi-annual aggregate limit for contributions to candidates and their authorized committees. New paragraph (b)(1)(ii) contains the new bi-annual aggregate limit for contributions to other political committees. The Commission received no comments on the changes to paragraphs (b)(1)(i) and (ii) of this section.
Sections 441a(i)(1)(C) and 441a-1(a)(1)(B) of FECA contain an exception to the bi-annual contribution limits for individuals. Under these new provisions of BCRA, the individual contribution limits to candidates for the U.S. House of Representatives and U.S. Senate are increased during certain limited time periods if the candidate is opposing another candidate who makes expenditures from his or her personal funds above a certain threshold. Contributions made under these increased dollar limits do not apply to the individual contributor's bi-annual aggregate limits. 2 U.S.C. 441a(i)(1)(C) and 441a-1(a)(1)(B). Accordingly, new § 110.5(b)(2) reflects this exception, which will be addressed in greater detail in a separate rulemaking concerning the so-called “millionaires” amendment.” One commenter, while agreeing generally with proposed paragraph (b)(1)(iii), suggested that the language in the draft rule was not direct enough in making this point. The Commission agrees and thus, new paragraph (b)(2) states more precisely the circumstances under which the individual bi-annual limits on contributions do not apply to contributions coming under 2 U.S.C. 441a(i)(1)(C) or 441a-1(a)(1)(B).
Section 110.5(b)(3) provides for the increase, if necessary, in the bi-annual aggregate contribution limits by the percent difference in the price index, as described in 11 CFR 110.17. The issues relating to the relationship of the statutory time frame for aggregating contributions and the inflation adjustment time frame are discussed below regarding 11 CFR 110.17(b). New paragraph (b)(4) states the Commission's intention to publish information regarding the adjusted contribution limits in the
The final rules at 11 CFR 110.9, formerly entitled, “Miscellaneous provisions,” are being amended to address only violations of the contribution and expenditure limitations. Other provisions in 11 CFR 110.9 addressing fraudulent misrepresentations, the price index increase, and the voting age population are being or will be amended and moved in this rulemaking and other BCRA rulemaking projects.
The prohibition on contributions by minors is contained in 2 U.S.C. 441k and not in 2 U.S.C. 441a of the Act. Therefore, the Commission notes that in instances where a candidate, an authorized committee, or a committee of a political party knowingly accepts a contribution from a minor, it would be in violation of § 110.9 only if the contribution is made in the name of another, but not if the contribution was made with the minor's own funds.
Pre-BCRA 2 U.S.C. 441a(c) mandated yearly indexing to inflation of the expenditure limitations established by 2 U.S.C. 441a(b) (the limits on expenditures by candidates for nomination and election to the office of President of the United States who accept public funding) and 2 U.S.C. 441a(d) (the limits on expenditures by national party committees, State party committees, or their subordinate committees in connection with the general election campaign of candidates for Federal office). BCRA amends 2 U.S.C. 441a(c) to extend the inflation indexing to: (1) The limitations on contributions made by persons under 2 U.S.C. 441a(a)(1)(A) (contributions to candidates) and 441a(a)(1)(B) (contributions to national party committees); (2) the bi-annual aggregate contribution limits applicable to individuals now found at 2 U.S.C. 441a(a)(3); and (3) the limitation on contributions made to U.S. Senate candidates by certain political party committees at 2 U.S.C. 441a(h). 2 U.S.C. 441a(c)(1)(B). Under the statute, the adjustments for inflation for 2 U.S.C. 441a(a)(1)(A), 441a(a)(1)(B), 441a(a)(3) and 441a(h) are to be made only in odd-numbered years and such increases are to be in effect for the 2-year period beginning on the first day following the date of the general election in the preceding year and ending on the date of the next regularly scheduled general election. 2 U.S.C. 441a(c)(1)(C).
Former 11 CFR 110.9(c), which described the expenditure limits subject to inflation indexing, did not include any of the new inflation indexing discussed above. In order to address the price indexing for the new contributions and expenditures limitations in a comprehensive manner, the Commission is adding new § 110.17 to track the changes to 2 U.S.C. 441a(c).
New § 110.17(a) replaces and restates, with some minor rewording, former section 110.9(c) regarding the price index increases that apply to the political party committee and Presidential candidate spending limits established by 11 CFR 110.7 and 110.8. However, paragraph (a) contains one important change from former section 11 CFR 110.9(c). Section 110.9(c) had incorrectly stated that the expenditure limitations established by §§ 110.7 and 110.8 would be increased by the annual percent difference of the price index, as certified to the Commission by the Secretary of Labor. Section 441a(c) of the Act does not use an annual percent difference of the price index to calculate the increases. Instead, it requires the use of the percent difference between the price index for the 12 months preceding the beginning of the calendar year in which the change is made and the base period. For the party committee expenditures limitations and the Presidential candidate expenditures limitations, the base period is calendar year 1974, with each change remaining in effect for a calendar year. Consequently, paragraph (a) of new 11 CFR 110.17 correctly states the standard to be applied and deletes the term “annual” from the regulation. The Commission received no comment on this change.
As noted above, BCRA increased the number of contribution limitations now subject to price index increases. 2 U.S.C. 441a(c)(1)(B). New 11 CFR 110.17(b) tracks BCRA by providing that the following contribution limits will be indexed to inflation: 11 CFR 110.1(b)(1) (limits for persons contributing to candidates and authorized political committees); 11 CFR 110.1(c)(1) (limits for contributions made to national party committees); 11 CFR 110.2(e) (limits for contributions made by party committees to Senatorial candidates); and 11 CFR 110.5 (bi-annual aggregate contribution limits for individuals). New § 110.17(b)(1) specifies that these contribution limitations will be increased during odd-numbered years and that the increased limit would be in effect for a two-year period.
The NPRM raised the issue of the interaction between the statutory provision that indexes certain contribution limits, 2 U.S.C. 441a(c)(1)(C), and the various contribution limits themselves. Particular focus was centered on the retroactive effective date in the indexing provision as it relates to the two calendar year-based aggregate contribution limit of 2 U.S.C. 441a(a)(3).
In the NPRM, the Commission proposed at 11 CFR 110.5(b)(3) to interpret the statute in a way that required donors to aggregate contributions using the two-year period referenced in the effective date language of the indexing provision, rather than the 'January 1 of odd year through December 31 of even year' time frame of Section 441a(a)(3).
Several commenters, including the Congressional sponsors of BCRA, urged that the Commission not adopt the proposed approach and instead apply the calendar year approach set forth in the statutory provision setting out the contribution limit itself. The commenters noted that the inflation adjustment language was confusing and its effective date language stems largely from an intention to assure that the revised ‘per election’ limit on giving to candidates was revised after each general election. They urged, in essence, that the Commission simplify
The Commission has decided to adopt the approach suggested by the commenters. It would be somewhat confusing if the calendar year-based contribution limits were to be increased in the midst of the calendar year period involved. Accordingly, the Commission is adopting final rules that delete the language at proposed 11 CFR 110.5(b)(3), and is modifying the language at proposed 11 CFR 110.1(c)(1)(ii), 110.2(e)(2), and 110.5(b)(2) and 110.17(b)(1) to clarify that for the calendar year-based limits, the indexing changes will only affect the calendar year-based periods that follow. Please note that the indexing changes for the `per election' limit at 11 CFR 110.1(b)(1) will still take effect, pursuant to 11 CFR 110.1(b)(1)(ii), on the day after the general election and will only affect elections held after that general election.
New paragraph (b)(2) of 11 CFR 110.17 establishes that 2001 is the base year for the calculation of the price index difference. No comments were received regarding this paragraph. One commenter noted that while the contribution limits may be increased due to indexing to inflation, the exact amount of the increase may not be precisely known or formally published until after January of the odd-numbered year. The commenter urged that the Commission establish a “safe harbor” to deal with these circumstances. This commenter suggested allowing political committees to receive contributions in excess of previous contributions limits while granting a period of time after the publication of the new limits to refund “
The Commission believes that the creation and implementation of this approach would be problematic. Determining or defining what amounts should be treated as
A further change in 2 U.S.C. 441a(c) is the introduction of a rounding provision for all the amounts that are increased by the indexing to inflation in 2 U.S.C. 441a (including the Presidential expenditure limits at 2 U.S.C. 441a(b) and coordinated party spending limits at 2 U.S.C. 441a(d)). If the inflation—adjusted amount is not a multiple of $100, it is rounded to the nearest multiple of $100. 2 U.S.C. 441a(c)(1)(B)(iii). New section 110.17(c) implements the new rounding provision found at 2 U.S.C. 441a(c)(B)(iii). This final rule, which is identical to the proposed rule, did not draw any comments.
New § 110.17(d) tracks 2 U.S.C. 441a(c)(2)(A) by specifically defining the “price index” as the average over a calendar year of the Consumer Price Index (all items—United States city average) published by the Bureau of Labor Statistics. The Department of Labor computes the CPI using two population groups: All Urban Consumers (CPI-U) and Clerical Workers (CPI-W). The CPI-U represents approximately 87% of the total United States population while the CPI-W, a subset of the CPI-U, represents 32% of the total United States population.
New § 110.17(e) in the final rules states that the Commission will announce the amount of the adjusted expenditure and contribution limitations in the
The increased contribution limits of 2 U.S.C. 441a(a)(1)(A) and (B), 441a(a)(3), and 441a(h) apply to contributions made on or after January 1, 2003. However, under the interpretation outlined above, 2 U.S.C. 441a(c)(1)(C) requires that these same contribution limits be increased through indexing for inflation in odd-numbered years with the increase in effect starting with the day following the last general election in the previous year. This could imply that the initial contribution limits authorized by BCRA to take legal effect on January 1, 2003 should also be increased by the difference in the price index. Several comments, including one from the Congressional sponsors of BCRA, disagreed with this interpretation and instead urged that the first increase in the limits should occur in 2005 and take effect in November 3, 2004, which is the day after the general election.
One comment noted that it was legally impossible for the indexing provision to be given their full effect in 2003. According to the commenter, the new contribution limits are effective on or after January 1, 2003. For the indexing provisions to be given a full effect in 2003, any increase in the contribution limit would be retroactively applied, making the effective date November 6, 2002, rather than the statutorily mandated effective date of January 2, 2003. Even though the legislative history is otherwise silent on this point, this legal impossibility strongly implies that these provisions were intended to be applied first in 2005. After considering these
BCRA prohibits individuals who are 17 years old and younger (minors) from making contributions to Federal candidates and contributions and donations to committees of political parties.
The final rules at new 11 CFR 110.19 implement BCRA's prohibitions on contributions and donations by minors at 2 U.S.C. 441k. Because 2 U.S.C. 441k expressly prohibits only contributions by minors to candidates and contributions and donations by minors to committees of political parties, contributions by minors to other types of political committees, such as separate segregated funds and non-connected political committees, will continue to be governed by the provisions of the pre-BCRA regulations. These regulations are being moved from former 11 CFR 110.1(i)(2) to 11 CFR 110.19(d).
Paragraph (a) of 11 CFR 110.19 prohibits contributions by minors to Federal candidates. The paragraph specifies that the prohibition on contributions by minors to Federal candidates includes contributions to a candidate's principal campaign committee, to any other authorized committee of that candidate, and to any entity directly or indirectly established, financed, maintained or controlled by one or more Federal candidates.
The Commission sought comment on whether prohibiting contributions by minors to entities directly or indirectly established, financed, maintained or controlled by one or more Federal candidates is within the scope of 2 U.S.C. 441k. The only commenter to address this issue supported prohibiting minors' contributions to such entities, opining that the prohibition would further BCRA's purpose of ensuring that contribution limits are not evaded by a parent funneling money through a child. The Commission agrees.
The Commission also sought comment in the NPRM as to whether the regulations should make clear that the relevant time for determining whether a minor has made a prohibited contribution or donation is the age of the minor at the time he or she makes a contribution. No comments were received on this issue. The final rules do not include a separate provision addressing this point because reference in the rules to 11 CFR 110.1(b)(6), which addresses when a contribution is made, provides sufficient clarification.
New 11 CFR 110.19(b) implements BCRA's prohibition on contributions and donations by minors to “a committee of a political party.” The proposed rules at 11 CFR 110.19(b) interpreted this provision as a prohibition on contributions and donations to national, State, district, and local party committees. In light of BCRA's language prohibiting donations as well as contributions to political party committees, the Commission proposed to interpret 2 U.S.C. 441k to prohibit minors from making any donations whatsoever to State, district, and local party committees, including to their non-Federal accounts. In the alternative, the Commission sought comment on whether a narrower construction of BCRA's prohibition on donations to State, district, and local party committees was warranted. Specifically, the Commission sought comment on prohibiting donations by minors to the extent such amounts are used to conduct activities affecting Federal elections but to permit these donations if used for exclusively non-Federal purposes to the extent permitted by State law.
Two commenters addressed this issue. One commenter stated that BCRA's prohibition should not extend to minors' contributions to State, district, and local party committees because the purpose of the provision is to prevent parents from evading federal contribution limits by funneling contributions to their children. The commenter argued that aside from limits on Levin funds, which can be used to finance certain “Federal election activities” by State, district, and local parties, BCRA does not limit funds given to State, district, and local parties. The same commenter also rejected the narrower construction described in the NPRM that would prohibit minors' donations to State, district, and local party committees only to the extent that they were to finance activities affecting Federal elections. The commenter argued that concerns that minors' contributions might be used as Levin funds should be addressed in a rulemaking addressing those funds.
A second commenter stated that though contributions by minors to State, district, and local party committees do not risk circumvention of federal contribution limits “since there are no such limits,” the statutory language at 2 U.S.C. 441k does not limit the prohibition on contributions or donations by minors to federal accounts of State, district, and local party committees. Other commenters, including the Congressional sponsors of BCRA, did not directly address the issue of minors' donations to political party committees but noted that minors may continue to make donations directly to State and local candidates to the extent permitted under State law.
The final rule at 11 CFR 110.19(b)(1) follows the proposed rule by prohibiting contributions and donations by minors to national, State, district, and local committees of a political party. Further, the Commission believes that interpreting the prohibition on donations to encompass both non-Federal accounts and Federal accounts of political party committees is appropriate. Interpreting the phrase “committee of a political party” to encompass only national party committees would render the prohibition on “donations” meaningless because national party committees must no longer accept non-Federal funds under 2 U.S.C. 441i. Similarly, the prohibition on “donations” would have no meaning if the minor's prohibition encompassed only Federal accounts of party committees since funds accepted by Federal accounts, used for the purpose of influencing Federal elections, are considered to be “contributions” not “donations.” Thus, BCRA preempts State law to the extent that State law permits minors to make donations to State, district, and local party committees.
Prohibiting donations by minors to all committees of State, district, and local parties also has a Federal purpose because donations of non-Federal funds to State parties could otherwise be used, in part, to finance Federal election activities, as defined at 2 U.S.C. 431(20).
The Commission has decided not to include in the final rules the alternative suggested in the NPRM that would permit minors to make donations to non-Federal accounts of State, district, and local party committees if the recipient committee can show by establishing separate accounts or through a reasonable accounting method that the donation is used for exclusively non-Federal purposes. As discussed above, the statutory language is broad and does not distinguish between Federal and non-Federal accounts of party committees. Additionally, this approach would require State, district, and local party committees to track yet another type of donation or establish another account in addition to those it already tracks or maintains, thereby resulting in an additional administrative burden to those groups.
Accordingly, as interpreted by the final rules, BCRA preempts State law to the extent that State law permits individuals under 18 years of age to donate funds to State, district, and local party committees. This preemption may have little practical effect in some states. As pointed out in the NPRM, many states treat contributions by minors as contributions by their parent(s) or guardian(s).
Paragraph (b)(2) of the final rules is unchanged from the proposed rules. It prohibits contributions and donations by minors to entities directly or indirectly established, financed, maintained or controlled by a committee of a national, State, district or local political party. No comments were received on this provision.
As discussed above in the Explanation and Justification for paragraph (b)(1), the Commission interprets the prohibition on contributions and donations by minors to committees of political parties to include accounts of party committees and entities established, financed, maintained or controlled by these party committees, including their Federal and non-Federal accounts. Consequently, new paragraph (b)(3) of the final rules makes clear that the prohibition on contributions and donations by minors encompasses donations to any account of a committee or entity described in paragraphs (b)(1) and (b)(2) of this section.
BCRA provides that its prohibition on contributions and donations by minors to candidates and political parties does not apply with respect to runoff elections, recounts or election contests resulting from elections held prior to November 6, 2002.
Because 2 U.S.C. 441k specifically prohibits contributions by minors to candidates and political party committees and not to other types of unauthorized committees, proposed 11 CFR 110.19(c) contemplated that minors could continue to make unearmarked contributions to unauthorized political committees except political party committees, in accordance with the requirements of 11 CFR 110.1(i)(2), the prior rules governing contributions by minors. The Commission sought comment in the NPRM as to whether 2 U.S.C. 441k could be interpreted to also prohibit contributions by minors to other political committees such as separate segregated funds and non-connected political committees. None of the commenters addressed this issue.
The final rules adhere to the plain language of 2 U.S.C. 441k in permitting minors to continue to make contributions to these other political committees under the existing rules. Thus, the final rules at 11 CFR 110.19(c)(1) through (c)(3) restate the regulations governing contributions by minors, which are being moved from 11 CFR 110.1(i)(2) and amended to reflect that they now govern unearmarked contributions by minors to unauthorized political committees other than political party committees. Paragraph (c) provides that an individual under 18 years of age may make contributions in accordance with the contribution limits set out at 11 CFR 110.1 and 110.5, if all of the following conditions are satisfied: (1) The minor voluntarily and knowingly makes the decision to contribute; (2) the funds, goods or services contributed are owned or controlled exclusively by the minor; (3) the contribution is not made from the proceeds of a gift given to the minor to make a contribution or is not in any way controlled by an individual other than the minor; and (4) the contribution is not earmarked or otherwise directed to one or more Federal candidates or political committees or organizations described in §§ 110.19(a) and (b).
The reorganization of the final rule clarifies that the types of committees to which a minor may continue to contribute are political committees not described in §§ 110.19(a) and (b), provided that the contribution is not earmarked to a candidate, committee or organization described in §§ 110.19(a) and (b). The final rules also clarify that non-earmarked contributions to these other political committees will continue to be governed by the existing regulations governing contributions by minors. No comments were received on this provision.
Paragraph (d) of the final rules makes clear that minors are not prohibited from volunteering their services to Federal candidates, political party committees or other political committees, in accordance with legislative intent.
The final rule at 11 CFR 110.19(e) is similar to the language of the proposed rule in 11 CFR 110.19(e). It refers the reader to 11 CFR 300.2(c) for the definition of “directly or indirectly establish, maintain, finance, or control.” For the definition,
The Commission also sought comment in the NPRM as to whether minors who are emancipated under State law should be exempt from the prohibition. Under many State laws, a petition for a judicial declaration or order of emancipation requires consideration as to whether a minor manages his or her own financial affairs or is financially self-supporting. Emancipation also has the effect, in most cases, of conferring upon a minor the rights and responsibilities of an adult, and relieving a child of parental control, thereby diminishing the possibility that a parent would funnel contributions or donations through an emancipated minor child.
Five commenters addressed this issue. Four commenters, including the congressional sponsors of BCRA, expressed support for such an exemption. These commenters agreed that the risk of parental evasion of the contribution limits through an emancipated minor was either not present or diminished. The fifth commenter agreed that the risk of parental circumvention of contribution limits was less of a concern in the case of an emancipated minor. However, this commenter argued that the statutory language clearly prohibited contributions by minors based solely on age.
The Commission has decided not to include an exemption for emancipated minors in the final rules given the plain language of 2 U.S.C. 441k, which prohibits certain contributions and donations by minors on the basis of age alone and not on a minor's legal or financial independence from a parent.
As indicated by the title of section 303 of BCRA, “Strengthening Foreign Money Ban,” Congress amended 2 U.S.C. 441e to further delineate and expand the ban on contributions, donations, and other things of value by foreign nationals. BCRA expressly applies the ban to contributions and donations solicited, accepted, received, or made directly or indirectly in connection with State and local, as well as Federal office. 2 U.S.C. 441e(a)(1)(A) and (a)(2). Furthermore, the prohibition applies to: (1) Contributions and donations to committees of political parties; (2) donations to Presidential inaugural committees; (3) donations to party committee building funds; (4) disbursements for electioneering communications; (5) expenditures; and (6) independent expenditures. 2 U.S.C. 441e(a)(1)(B) and (C); 36 U.S.C. 510. Consequently, the Commission is amending 11 CFR part 110 to implement the revised statutory provision. The final rules remove and reserve 11 CFR 110.4(a), the former regulation that addressed foreign nationals. New § 110.20 implements BCRA's prohibition on contributions, donations, expenditures, independent expenditures, and disbursements by foreign nationals. This new section also implements the provision in 2 U.S.C. 441e(a)(2) that prohibits persons from knowingly soliciting, accepting, or receiving contributions and donations from foreign nationals, and adds prohibitions against the knowing provision of substantial assistance with foreign national contributions or donations, including, but not limited to, serving as a conduit or intermediary. “Foreign national” and “knowingly” are defined for purposes of this section.
New § 110.20(a) defines for purposes of this section several words or phrases that are either not defined in other sections of the Act or that are defined elsewhere so as to cover only Federal elections. Two of these, namely “disbursement” and “donation” were not defined in the proposed rules; however, comments were sought as to whether the final rules should include definitions of these terms.
Although the Commission did not receive any comments regarding a definition of “disbursement,” it believes additional guidance to be necessary in light of the use of “disbursement” in BCRA in the context of the foreign national prohibition, and its corresponding and repeated use in new § 110.20. Thus, the final rule at 11 CFR 110.20(a)(1) incorporate the definition of this term in new 11 CFR 300.2(d). One commenter urged the Commission to import the definition of “donation” in 11 CFR 300.2(e) into § 110.20(a). For the same reason that the Commission considers it necessary to provide guidance as to “disbursement” in § 110.20, it agrees that § 110.20(a) should also include a definition of “donation.” Consequently, paragraph (a)(2) incorporates the definition of “donation” at 11 CFR 300.2(e) into § 110.20.
Section 110.20(a)(3), which defines “foreign national,” generally follows the definition at former 11 CFR 110.4(a)(4). Section 110.20(a)(3)(i) incorporates “foreign principal” as defined in 22 U.S.C. 611(b) within the definition of “foreign national.” Paragraph (a)(3)(ii) includes non-citizens but excludes permanent residents of the United States as defined in 8 U.S.C. 1101(a)(20). Paragraph (a)(3)(iii) narrows the definition of “foreign national” by excluding both citizens of the United States and, in keeping with BCRA, United States nationals pursuant to 8 U.S.C. 1101(a)(22).
Both the former and the current foreign national prohibitions in 2 U.S.C. 441e are silent as to what degree of knowledge, if any, a person soliciting, accepting, or receiving a contribution or donation must have regarding the foreign national status of the contributor or donor to establish a violation of the statute. In contrast, some other prohibitions in FECA and BCRA expressly provide that knowledge is an element of the violation.
The Commission in recent years has addressed the issue of required knowledge in a number of enforcement matters arising under former 2 U.S.C.
The Commission considered, for example, whether actual knowledge at the time of a solicitation or receipt is a prerequisite for a violation, or whether the person has a duty of inquiry when circumstances would raise the suspicions of an objective observer. Another alternative with regard to the level of knowledge required would be to assume, given the silence in both FECA and BCRA on this question, that Congress intended this to be a strict liability statute. The fact that Congress has used “knowingly” in other provisions of FECA and BCRA, but did not include this standard with regard to the solicitation, acceptance, or receipt of foreign national contributions and donations, could be construed as intent not to require knowledge in this regard.
The U.S. Supreme Court has found that “ ‘the meaning of the statute must, in the first instance, be sought in the language in which the act is framed, and if that is plain, * * * the sole function of the courts is to enforce it according to its terms’.” Sutherland Statutory Construction 40:01,
The final rules at 11 CFR 110.20(a)(4), like the proposed rules, contain three standards of knowledge, any one of which would satisfy the knowledge requirements: (1) Actual knowledge; (2) reason to know; and (3) the equivalent of willful blindness. Additionally, both the proposed rules and the final rules in paragraph (a) contain a list of facts that would lead a reasonable person to conclude that, or inquire as to whether, a contribution or donation was made by a foreign national.
The NPRM sought comments as to whether the additions of a knowledge requirement and of specific standards of knowledge were appropriate and whether there were other potential facts that should be added to those proposed as circumstances that should trigger an inquiry. Further, comments were requested as to whether the regulation should expressly require that recipient candidates, political committees and other organizations actively seek information as to the citizenship of contributors and donors whenever one of the factors listed is at issue.
Several of the commenters opposed a strict liability standard, but supported the inclusion of explicit knowledge requirements in the rules. However, some commenters opposed as too high the standard in proposed paragraph (g)(4)(ii) that would find knowledge when a person was aware of facts that would lead a reasonable person to conclude that there is “a substantial probability” the source of certain funds is a foreign national; one of these commenters suggested that a “preponderance of the evidence” or “more likely than not”standard would be more appropriate. Divergent views were expressed as to the inclusion of a duty to inquire about the nationality of a donor, with one commenter urging reliance upon current 11 CFR 103.3 rather than upon the addition of an affirmative duty to inquire,
As is also discussed below with regard to new section 110.20(g) and (h), the final rules make knowledge an element of any violation of 2 U.S.C. 441e arising from the solicitation, acceptance, or receipt of foreign national contributions and donations, or that results from the substantial provision of assistance in the solicitation, making, acceptance, or receipt of such contributions and donations. The final rules at 11 CFR 110.20(a)(4) provide a definition of “knowingly,” whereby satisfaction of any one of three standards will establish knowledge for purposes of 11 CFR 110.20(g) and (h). Section 110.20(a)(5) contains a list of facts that would lead a reasonable person to conclude, or inquire as to whether, a contribution or donation was made by a foreign national, as discussed below.
In the final rules, the first standard of knowledge at paragraph (a)(4)(i) is that of actual knowledge of the source of funds solicited, accepted, or received. The second standard at paragraph (a)(4)(ii) requires awareness on the part of the person soliciting, accepting, or receiving a contribution or donation of certain facts that would lead a reasonable person to conclude that there is a substantial probability that the contribution or donation comes from a foreign source. Substantial probability means that there is a considerable likelihood that the donor is a foreign national.
The third standard of knowledge at paragraph (a)(4)(iii) is satisfied when the person soliciting, accepting, or receiving a contribution or donation is, or becomes aware of, facts that would lead a reasonable person to inquire as to whether the source of the funds solicited, accepted, or received is a foreign national. This third standard is in effect willful blindness, which is applicable to situations in which a known fact should have prompted a reasonable inquiry, but did not.
Each of the three paragraphs focus on the source of the funds at issue. The source of funds may or may not be the putative contributor or donor who provides a check or other negotiable instrument to a candidate or committee; rather, the source would be the person or persons who originated the contribution or donation, even if it passed through the hands or accounts of a U.S. citizen or permanent resident.
Paragraph (a)(5) sets forth categories of facts that are intended to be illustrative of the types of information that should lead a recipient to question the origin of a contribution or donation under paragraphs (a)(4)(ii) or (iii). These consist of: (i) The use of a foreign passport or passport number; (ii) the provision of a foreign address; (iii) the use of a check or other written instrument drawn on a foreign bank or a wire transfer from a foreign bank; or (iv) contributors or donors who reside abroad. Failure to conduct a reasonable inquiry in the face of any of these facts constitutes evidence of a knowing violation of the Act.
The NPRM sought comments as to whether the Commission should incorporate into the regulations at 11 CFR 110.20 the definition of “solicit” at 11 CFR 300.2(m), whether it should leave the term undefined, or whether it should give the term a more expansive or a narrower reading in this context. The term “to solicit” is defined in 11 CFR 300.2(m) as “to ask another person to make a contribution or donation, or transfer of funds, or to provide anything of value, including through a conduit or intermediary.” Prohibited and Excessive Contributions: Non-Federal Funds or Soft Money; Final Rule, 67 FR 49,064-49,122 (July 29, 2002).
Two of the comments received strongly urged the Commission not to incorporate the definition of “solicit” at 11 CFR 300.2(m), deeming it too narrow. One such commenter characterized the definition as “radically underinclusive” and inferred that it would allow “a broad range of solicitations to escape [regulation,]” and, if adopted in part 110, would allow candidates and officials to “suggest or request that foreign nationals make contributions to their campaigns.” In promulgating 11 CFR 300.2(m), however, the Commission was advised of the need for clear definitions to avoid ambiguity, vagueness and confusion as to what activities or conversations would constitute solicitations. 67 FR at 49,086-49,087 (July 29, 2002). By using the term “ask,” the Commission defined “solicit” to require some affirmative verbalization or writing, thereby providing members of Congress, candidates and committees with an understandable standard. It is the impressionistic or subjective aspects of the term “suggest” and “request” that the Commission rejected in the Title I rulemaking. The Commission also notes that while the terms “suggest” or “request” recommended by one commenter encompass a wide array of activity, it is not clear that they would cover more direct verbalizations or writings captured by terms such as “demand,” “instruct,” or “tell,” which the Commission believes are captured by the term “ask.”
The Commission is aware that the decision to define “solicit” as “ask” rather than as “request, suggest or recommend” (proposed by the Commission staff) was controversial. The Commission notes that “request” and “ask” are essentially synonymous. (See American Heritage College Dictionary, 34d Edition: “request” is defined as “1. To express a desire for; ask for. 2. To “ask” (a person) to do something;” “ask” is defined as “* * * 4. To make a request of or for.”) The Commission was unwilling to use the far more expansive term “suggest,” for concern that such a vague term could subject persons to investigation and prosecution based on highly subjective judgments about whether a particular remark or action constituted a “suggestion.” The definition of “solicit” is intended to include “a palpable communication intended to, and reasonably understood to, convey a request for some action * * *” The Democratic National Committee, the Democratic Senatorial Campaign Committee, and the Democratic Congressional Campaign Committee, Comments on Coordinated and Independent Expenditures, 3 (Oct. 11, 2002).
In addition, the basic canons of statutory construction argue strongly against using the phrase “request or suggestion” to define “solicit.” BCRA, and FECA prior to passage of BCRA, use the term “request or suggestion” in the definition of “independent expenditure” (See BCRA section 211, 2 U.S.C. 431(17)) and in the reciprocal definition of “coordination” (See BCRA section 213, 2 U.S.C. 441a(a)(7)(B)). “We find the contrasting language to be particularly telling. Where Congress includes particular language in one section of a statute but omits it in another * * * it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion.” (
The Commission believes that the need to craft clear and understandable definitions marking the boundary between permissible and impermissible solicitations by candidates, parties, or their agents in the realm of non-Federal funds, applies equally to the realm of foreign national funds. A single definition has the added benefit of reducing confusion among those who solicit campaign funds often, and from a variety of individuals. Accordingly, the term “solicit” in the final rules at 11 CFR part 110.20 has the same meaning as in 11 CFR 300.2(m).
The Commission in the NPRM also sought comment on whether it should create safe harbors within which political committees would be deemed to have satisfied their duty to investigate contributions or donations in order to confirm that they do not come from foreign sources. One commenter requested that the Commission expressly create such a safe harbor if “reasonable efforts” have been made to follow guidelines in the regulations.
Whether a person has the requisite knowledge under 11 CFR 110.20(a)(4) and whether a contributor or donor is a foreign national are often fact-intensive determinations. Given the wide range of factual situations that could arise, and the likelihood that some foreign donors or contributors will take steps to conceal the illegal nature of their actions, it is not possible in all circumstances to craft appropriate safe harbors to safeguard recipient committees who do not and cannot know of the illegality while at the same time holding accountable those who do or should know.
However, the Commission is adopting one narrowly tailored safe harbor. Under 11 CFR 103.3(b)(1), with respect to contributions that present “enuine questions” that they may come from a foreign source, political committee treasurers have an affirmative duty to investigate the contributions and use best efforts to determine the legality of the contribution. If, despite such due diligence, the treasurer is unable to determine the legality of the contribution within 30 days, the treasurer is required to refund the contribution to the contributor. Id. During the last several years, many political committees and other organizations, out of an abundance of caution, have adopted a policy of requesting and keeping on file copies of U.S. passport papers from all their contributors who reside outside the United States, or who list a foreign address, or who make a contribution through a foreign bank. The Commission believes such prudent practices are appropriate and satisfy a political committee's affirmative duty to investigate such questionable contributions. Accordingly, the Commission is creating a safe harbor at 11 CFR 110.20(a)(7) whereby any person shall be deemed to have conducted a reasonable inquiry under 11 CFR 110.20(a)(4)(iii) if he or she seeks and obtains copies of current and valid U.S. passport papers for U.S. citizens who are contributors or donors who (i) use a foreign passport or passport number for identification purposes, (ii) provide a foreign address, (iii) make a contribution or donation by means of a check or other written instrument drawn on a foreign bank or by a wire transfer from a foreign bank, or (iv) reside abroad.
Current 11 CFR 103.3(b)(2) provides the steps necessary for a treasurer who discovers that an illegal contribution has been deposited to fully remedy the situation; this provision applies “to contributions from foreign nationals * * * when there is no evidence of illegality on the face of the contributions themselves.” Explanation and Justification, 52 FR 760, 768-69 (Jan. 9, 1987). In light of 11 CFR 103.3(b)(2), the Commission has concluded that no additional safe harbor is necessary in this area.
BCRA amends 2 U.S.C. 441e by banning foreign national contributions and donations, or express or implied promises to make such contributions or donations, that are made “directly or indirectly.” Previously, 2 U.S.C. 441e(a) banned foreign national contributions made directly “or through any other person.” The legislative history of BCRA does not reveal whether Congress intended “indirectly” to have a broader meaning than “through any other person,” the language used in pre-BCRA 2 U.S.C. 441e(a).
The Commission solicited comments in the NPRM as to whether “indirectly” should be construed to have a broader meaning than “through any other person” and if so, whether the rules should explicitly reflect this interpretation by defining “indirectly.” Several of the commenters urged the Commission not to interpret “indirectly” as having a broader meaning, arguing that there is nothing in the legislative history to support such a reading, and that to do so would involve speculation as to Congressional intent.
The NPRM further solicited comments as to whether “indirectly” should be interpreted to cover U.S. subsidiaries of foreign corporations that make non-Federal donations with corporate funds or that have a separate segregated fund that makes Federal contributions. Specifically, the Commission sought comment on whether BCRA's new statutory language prohibits a foreign-controlled U.S. corporation, including a U.S. subsidiary of a foreign corporation, from making corporate donations, or from making Federal contributions from a separate segregated fund, or both.
Numerous comments were received addressing the involvement in elections of U.S. subsidiaries of foreign corporations, all of which strongly urged the Commission not to extend the prohibition on foreign national involvement to the activities of foreign-owned U.S. subsidiaries. The comment submitted by the BCRA sponsors stated that Congress in this legislation did not address “contributions by foreign-owned U.S. corporations, including U.S. subsidiaries of foreign corporations.” A number of the other commenters cited the absence, in BCRA and in its legislative history, of express Congressional intent to reach either donations by such corporate entities in state elections, where permitted by state law, or the involvement of their separate segregated funds in Federal elections. They stressed the significance of such silence given the series of Commission advisory opinions over more than two decades that have affirmed the participation of such subsidiaries in elections in the United States, either directly in states where state law permits, or through separate segregated funds with regard to Federal elections, so long as there is no involvement of foreign nationals in decisions regarding such participation and so long as foreign nationals are not solicited for the funds to be used.
A number of commenters argued that the use of “indirectly” in BCRA with regard to foreign national contributions and donations represented only a codification of the Commission's earlier use of this word in advisory opinions and regulations to prohibit the direct or indirect involvement of individual foreign nationals in decisions concerning either corporate donations at the State or local level or Federal contributions made by separate segregated funds. See Advisory Opinions 2000-17, 1995-15, 1992-16, 1990-08, and 1989-29, and 11 CFR 110.4(a)(3). A joint comment stressed that Congress had earlier addressed and rejected a ban on U.S. subsidiary participation, the House of Representatives in 1998 and the Senate earlier in 1992, and that this legislative history showed that the use of “indirectly” in BCRA addresses only foreign national involvement in corporate decision-making.
In response, Senator Breaux offered a substitute amendment that would have codified (1) the right of U.S. subsidiary employees to participate in elections through separate segregated funds and (2) the prohibition in the Commission's regulations against the participation of foreign nationals, “directly or indirectly,” in decision-making regarding contributions or expenditures made in connection with elections at all levels and in the administration of a political committee. The Senate voted to substitute the Breaux amendment. The commenters stressed the use of “indirectly” in the Breaux amendment and argued that its use in BCRA was for the same purpose;
In 1998, the House voted with no opposition for an amendment introduced by Representative Gillmor and Representative Tanner to assure the right of a U.S. subsidiary of a foreign owned or controlled corporation to maintain a separate segregated fund (“SSF”). An amendment proposed by Representative Kaptur to prohibit Federal contributions or expenditures by such SSFs was later modified to address only reporting by U.S. subsidiaries.
Several commenters questioned the constitutionality of prohibiting U.S. employees of foreign-owned subsidiaries from participation in U.S. elections. They argued that such a ban would discriminate against these employees on the basis of their employers' parent companies. One commenter noted that, by definition, U.S. subsidiaries are U.S. companies. Another asserted that a ban on U.S. subsidiary election-related activity would be counter to the globalization of financial activity; yet another argued that it would be counter to NAFTA and other treaties. One commenter noted possible negative effects upon U.S. trade associations if certain of their member corporations could not form separate segregated funds.
The Commission agrees with those who have argued that “indirectly” should not be deemed to cover U.S. subsidiaries of foreign corporations. This agreement is based upon the lack of evidence of Congressional intent to broaden the prohibition on foreign national involvement in U.S. elections to cover such entities, and upon the
The Commission has determined that the activities of U.S. subsidiaries of foreign corporations are governed by new § 110.20(i), which prohibits involvement of foreign nationals in the decision-making of separate segregated funds, and of corporations that plan to make donations in connection with State and local elections where they are permitted to do so. (See further discussion below.) Thus, the final rules do not define “indirectly” or contain additional rules pertaining to U.S. subsidiaries of foreign corporations.
In BCRA, Congress added the “donation” of funds by foreign nationals to the existing ban on contributions by foreign nationals. In 1999, 2000, and 2001 the Commission included in its legislative recommendations to Congress a proposal that 2 U.S.C. 441e be amended to clarify that the statutory prohibition on foreign national contributions extends to State and local elections. The Commission noted,
Congress chose to retain “contribution” and to add “donation” in BCRA as a prohibited activity. Congress also revised 2 U.S.C. 441e to delete references to “elections” and “candidates” for “any political office,” and substituted the broader phrase “Federal, State, or local election.” 2 U.S.C. 441e(a)(1)(A). Through this two-fold approach, Congress left no doubt as to its intention to prohibit foreign national support of candidates and their committees and political organizations and foreign national activities in connection with all Federal, State, and local elections.
The legislative history indicates that the revision to 2 U.S.C. 441e “prohibits foreign nationals from making any contribution to a committee of a political party or any contribution in connection with Federal, State or local elections, including any electioneering communications. This clarifies that the ban on contributions [by] foreign nationals applies to soft money donations.” Statement of Sen. Feingold, 148 Cong. Rec. S1991-1997 (daily ed. Mar. 18, 2002). The NPRM proposed a definition of “election,” based to some extent on the definition in 11 CFR 100.2, which drew no comments. This proposed definition is not included in the final rules. Instead, the wording of new 11 CFR 110.20 tracks the statutory language in BCRA.
As discussed above, the definition of “donation” in 11 CFR 300.2(e) applies to paragraph 110.20(b). Under this provision, both contributions and donations by foreign nationals are prohibited.
BCRA expressly extends the prohibition on foreign national contributions and donations to those made to committees of political parties. 2 U.S.C. 441e(a)(1)(B). The particular committees covered include the national party committees; the national congressional campaign committees; and all State, district, local, and subordinate committees, including the non-Federal accounts of State, district, and local party committees.
In light of BCRA's addition of “donation” to the statutory language, the proposed rules further extended the foreign national prohibition to organizations of political parties, whether or not they are political committees under the Act and 11 CFR 100.5. Because many party organization activities affect Federal, State, and local elections, this extension to all party organizations reinforces the prohibition at 2 U.S.C. 441e(a)(1)(A) on foreign national contributions and donations in connection with elections at all levels. Two commenters on the proposed rules agreed with this interpretation, and no commenters objected. Because of the interaction between 2 U.S.C. 441e(a)(1)(A) and (B), the final rule at 11 CFR 110.20(c) adopts this extension to all political party organizations.
BCRA prohibits foreign nationals from making any contribution or donation to national party committees, including donations for the purchase or construction of an office building.
Consistent with new 11 CFR 300.35(a), new 11 CFR 110.20(d) explicitly states that foreign nationals are prohibited from making contributions or donations directly or indirectly to committees or organizations of a political party for the construction or purchase of any office building. This final rule is identical to the language in proposed § 110.20(f). The only two commenters who addressed this topic agreed with this addition to the regulations.
BCRA prohibits a foreign national from making “an expenditure, independent expenditure, or disbursement for an electioneering communication.” 2 U.S.C. 441e(a)(1)(C). The Commission in the NPRM interpreted the prohibitions against an “expenditure” or an “independent expenditure” by a foreign national as being general in scope, and the phrase “for an electioneering communication” at 2 U.S.C. 441e(a)(1)(C) as modifying only “disbursement.” This interpretation is based upon the fact that BCRA expressly exempts from the definition of “electioneering communication” “a communication which constitutes an expenditure or an independent expenditure under this Act * * *.” 2 U.S.C. 434(f)(3)(B)(ii).
Section 431(9)(A)(1) of FECA defines “expenditure” as “any purchase, payment, * * * or anything of value made for the purpose of influencing any election for Federal office,” and 2 U.S.C. 431(17) defines “independent expenditure” as “an expenditure by a person expressly advocating the election or defeat of a clearly defined candidate which is made without cooperation or
BCRA does not contain an express prohibition against foreign national disbursements for activities other than electioneering communications. This omission left in question the status of disbursements by foreign nationals in connection with State and local elections that are by definition not “expenditures” or “independent expenditures” because they are not made in connection with Federal elections. The Commission's treatment of a similar issue in the past has, however, provided guidance on this question.
Previously, 2 U.S.C. 441e contained no express prohibition against expenditures by foreign nationals. Nevertheless, the Commission revised 11 CFR 110.4(a) in 1989 to state that foreign nationals were prohibited from making expenditures as well as contributions. The Explanation and Justification for that amendment stated: “The FECA generally prohibits expenditures when it prohibits contributions by a specific category [of] persons, thereby ensuring that the persons cannot accomplish indirectly what they are prohibited from doing directly.” 54 FR 4858 (Nov. 24, 1989). The Explanation and Justification continued: “Nothing in section 441e's legislative history suggests that Congress intended to deviate from the FECA's general pattern of treating contributions and expenditures in parallel fashion.”
As discussed above, BCRA added “donations” to the activities prohibited to foreign nationals, this being one way in which the reach of the statute is extended to State and local elections to which the term “contributions” does not apply. As was the case earlier with the FECA, there is nothing in BCRA that would indicate an intent on the part of Congress to treat disbursements for State or local elections any differently than it now treats expenditures for Federal elections, or any intent to not consider donations and disbursements to be parallel concepts. The addition of “disbursements” also serves to strengthen even more the ban on foreign money.
The proposed rule treated “donations” and “disbursements” in the same fashion as “contributions” and “expenditures” have been addressed in the past, by prohibiting at proposed paragraph (d) all disbursements for elections by foreign nationals, not just the disbursements made for electioneering communications that were explicitly prohibited at proposed 11 CFR 110.20(e). Three commenters affirmed the Commission's approach. No commenters were opposed.
Consequently, while the final rule at § 110.20(e) prohibits any disbursement for an electioneering communication by foreign nationals, the final rule at paragraph (f) prohibits all expenditures, independent expenditures, and disbursements by foreign nationals in connection with Federal, State and local elections for the reasons stated above.
BCRA prohibits any person from soliciting, accepting, or receiving from a foreign national a contribution or donation made in connection with a Federal, State, or local election, or made to a party committee. 2 U.S.C. 441e(a)(2). Proposed § 110.20(g)(1) sought to prohibit the knowing solicitation, acceptance or receipt of contributions or donations from foreign nationals. As noted above, the final rule at § 110.20(g) contains the same prohibition. The Commission's additions of a knowledge requirement and of knowledge standards with regard to the solicitation, acceptance or receipt of foreign national contributions and donations are discussed above in connection with 11 CFR 110.20(a)(4) and (5).
The foreign national prohibition at 2 U.S.C. 441e as amended by BCRA also raised issues concerning the liability of persons who knowingly assist foreign nationals in making contributions or donations. The proposed rules included a prohibition on the assisting of foreign national contributions and donations. Section 441e of the Act does not explicitly address those who assist others to violate its prohibition on foreign national contributions, donations, expenditures, independent expenditures, and disbursements. Recently, however, the Commission has addressed in the enforcement context a number of situations in which there arose questions about the liability of individuals who had provided substantial assistance to a foreign national or to a recipient committee with regard to a foreign national contribution or donation. These individuals had functioned as conduits or intermediaries for the funds involved.
The Commission has now concluded that, in light of Congressional intent in BCRA to strengthen the foreign money ban, nothing in amended 2 U.S.C. 441e should be construed to alter the Commission's pre-BCRA determinations in this respect. Additionally, the Commission has broad rulemaking authority in 2 U.S.C. 437d(a)(8) to make rules that are “necessary to carry out the provisions of the Act.”
For purposes of paragraphs (h)(1) and (2), “substantial assistance” means active involvement in the solicitation, making, receipt or acceptance of a foreign national contribution or donation with an intent to facilitate successful completion of the transaction.
The final rule at paragraph (h)(1) combines proposed paragraphs (h)(3) and (4) by prohibiting any person from knowingly providing substantial assistance in the solicitation, making, receipt, or acceptance of a contribution or donation from a foreign national. This provision covers, but is not limited to, those persons who act as conduits or intermediaries for foreign national contributions or donations and who thus would also violate the statutory prohibition against receiving contributions or donations from a foreign national. The final rule at paragraph (h)(2) extends the prohibition on knowingly providing substantial assistance to assisting foreign nationals in the making of expenditures, independent expenditures and disbursements in connection with Federal or non-Federal elections.
The three standards of knowledge set forth at § 110.20(a)(4) are applicable to anyone who provides the kinds of assistance prohibited by paragraph (h).
Section 110.20(i) retains the prohibition at former 11 CFR 110.4(a)(3) on participation by foreign nationals in decisions made by any person, including entities such as corporations, labor organizations or political committees, that are related to Federal and non-Federal elections. The only changes involve the addition of “political organization” to the listing of decision-making entities and of “donations” and “disbursements” to the list of transactions about which decisions are made; all of these additions are needed to address fully the prohibition on the funding of State and local elections. Foreign nationals are prohibited from taking part in decisions about contributions and donations to any Federal, State, or local candidates or to, or by, any political committees or political organizations, and in decisions about expenditures and disbursements made in support of, or in opposition to, such candidates, political committees or political organizations. Foreign nationals also are prohibited from involvement in the management of a political committee, including a separate segregated fund, a non-connected committee or the non-Federal accounts of these committees.
Numerous comments received regarding the proposed rules supported this provision as the appropriate way to prevent foreign nationals from engaging in election-related activities, particularly in the context of U.S. subsidiaries of foreign-owned corporations. No commenter opposed the proposed regulation.
In the NPRM the Commission proposed to include a BCRA-related rule prohibiting knowing acceptance by Presidential inaugural committees of donations from foreign nationals. Proposed 11 CFR 110.20(c), 67 FR at 54,379. The Commission had stated in the NPRM entitled “Disclaimers, Fraudulent Solicitations, Civil Penalties, and Personal Use of Campaign Funds,” that it would address rules pertaining to inaugural committees in a future rulemaking. 67 FR 55, 348 (Aug. 29, 2002). The Commission has determined that the rules concerning inaugural committees should be addressed in a comprehensive manner. Therefore, donations by foreign nationals to Presidential inaugural committees will also be part of this future rulemaking and are not included in these final rules.
The Commission certifies that the attached final rules do not have a significant economic impact on a substantial number of small entities. The entities affected by these rules are political committees, minors, foreign nationals and U.S. nationals. The basis of this certification is that the national, State, and local party committees of the two major political parties are not small entities under 5 U.S.C. 601 because they are not small businesses, small organizations, or small governmental jurisdictions.
Minors and many foreign nationals are individuals, and therefore, not small entities. Furthermore, the final rules, which are based on statutory language, clarify and describe in further detail the already existing ban on contributions by foreign nationals. Additionally, to the extent that there may be foreign nationals that may fall within the definition of “small entities,” their numbers are not substantial, particularly the number that would make a donation, expenditure, independent expenditure, or disbursement in connection with a Federal, State, or local election.
In addition, to the extent that the rules apply to any small entities, they are not unduly burdened by the increased contribution limitations, which give such small entities more latitude in the amount they contribute. Furthermore, the new rules for redesignating contributions for a particular election and reattributing contributions to particular donors provide political committees with flexibility and additional means to ensure compliance with FECA and BCRA, thereby reducing any economic costs they may have incurred under the previous rules.
Political committees and parties, Reporting and recordkeeping requirements.
Campaign funds, Political committees and parties.
2 U.S.C. 432, 433, 434(a)(11), 438(a)(8), 441d.
(a) * * *
(4) In addition to the account to be kept under paragraph (a)(1) of this section, for contributions in excess of $50, the treasurer of a political committee or an agent authorized by the treasurer shall maintain:
(i) A full-size photocopy of each check or written instrument; or
(ii) A digital image of each check or written instrument. The political committee or other person shall provide the computer equipment and software needed to retrieve and read the digital images, if necessary, at no cost to the Commission.
(e)(1) If the candidate, or his or her authorized committee(s), receives contributions that are designated for use in connection with the general election pursuant to 11 CFR 110.1(b) prior to the date of the primary election, such candidate or such committee(s) shall use an acceptable accounting method to distinguish between contributions received for the primary election and contributions received for the general election. Acceptable accounting methods include, but are not limited to:
(i) The designation of separate accounts for each election, caucus or convention; or
(ii) The establishment of separate books and records for each election.
(2) Regardless of the method used under paragraph (e)(1) of this section, an authorized committee's records must demonstrate that, prior to the primary election, recorded cash on hand was at all times equal to or in excess of the sum of general election contributions received less the sum of general election disbursements made.
(3) If a candidate is not a candidate in the general election, any contributions made for the general election shall be refunded to the contributors, redesignated in accordance with 11 CFR 110.1(b)(5) or 110.2(b)(5), or reattributed in accordance with 11 CFR 110.1(k)(3), as appropriate.
2 U.S.C. 431(8), 431(9), 432(c)(2), 437d, 438(a)(8), 441a, 441b, 441d, 441e, 441f, 441g, 441h and 441k.
(a)
(b) * * *
(1) No person shall make contributions to any candidate, his or her authorized political committees or agents with respect to any election for Federal office that, in the aggregate, exceed $2,000.
(i) The contribution limitation in the introductory text of paragraph (b)(1) of this section shall be increased by the percent difference in the price index in accordance with 11 CFR 110.17.
(ii) The increased contribution limitation shall be in effect for the 2-year period beginning on the first day following the date of the last general election in the year preceding the year in which the contribution limitation is increased and ending on the date of the next general election. For example, an increase in the contribution limitation made in January 2005 is effective from November 3, 2004 to November 7, 2006.
(iii) In every odd numbered year, the Commission will publish in the
(3) * * *
(iii) The amount of the net debts outstanding shall be adjusted as additional funds are received and expenditures are made. The candidate and his or her authorized political committee(s) may accept contributions made after the date of the election if:
(A) Such contributions are designated in writing by the contributor for that election;
(B) Such contributions do not exceed the adjusted amount of net debts outstanding on the date the contribution is received; and
(C) Such contributions do not exceed the contribution limitations in effect on the date of such election.
(5) * * *
(ii) (A) A contribution shall be considered to be redesignated for another election if—
(
(
(B) Notwithstanding paragraph (b)(5)(ii)(A) of this section or any other provision of this section, the treasurer of the recipient authorized political committee may treat all or part of the amount of the contribution that exceeds the contribution limits in paragraph (b)(1) of this section as made with respect to the general election, provided that:
(
(
(
(
(
(
(C) Notwithstanding paragraph (b)(5)(ii)(A) of this section or any other provision of this section, the treasurer of the recipient authorized political committee may treat all or part of the amount of the contribution that exceeds the contribution limits in paragraph (b)(1) of this section as made with respect to the primary election, provided that:
(
(
(
(
(
(
(
(c) * * *
(1) No person shall make contributions to the political committees established and maintained by a national political party in any calendar year that in the aggregate exceed $25,000.
(i) The contribution limitation in paragraph (c)(1) of this section shall be increased by the percent difference in the price index in accordance with 11 CFR 110.17.
(ii) The increased contribution limitation shall be in effect for the two calendar years starting on January 1 of the year in which the contribution limitation is increased.
(iii) In every odd-numbered year, the Commission will publish in the
(i)
(k) * * *
(3) * * *
(ii) (A) A contribution shall be considered to be reattributed to another contributor if—
(
(
(B)(
(
(
(l) * * *
(4)(i) If a political committee chooses to rely on a postmark as evidence of the date on which a contribution was made, the treasurer shall retain the envelope or a copy of the envelope containing the postmark and other identifying information; and
(ii) If a political committee chooses to rely on the redesignation presumption in 11 CFR 110.1(b)(5)(ii)(B) or (C) or the reattribution presumption in 11 CFR 110.1(k)(3)(ii)(B), the treasurer shall retain a full-size photocopy of the check or written instrument, of any signed writings that accompanied the contribution, and of the notices sent to the contributors as required by 11 CFR 110.1(b)(5)(ii)(B) and (k)(3)(ii)(B).
(5) If a political committee does not retain the written records concerning designation required under 11 CFR 110.1(l)(1), the contribution shall not be considered designated in writing for a particular election, and the provisions of 11 CFR 110.1(b)(2)(ii) or 11 CFR 110.2(b)(2)(ii) shall apply. If a political committee does not retain the written records concerning redesignation or reattribution required under 11 CFR 110.1(l)(2), (3), (4)(ii) or (6), including the contributor notices, the redesignation or reattribution shall not be effective, and the original designation or attribution shall control.
(e)
(1) Notwithstanding any other provision of the Act, or of these regulations, the Republican and Democratic Senatorial campaign committees, or the national committee of a political party, may make contributions of not more than a combined total of $35,000 to a candidate for nomination or election to the Senate during the calendar year of the election for which he or she is a candidate. Any contribution made by such committee to a Senatorial candidate under this paragraph in a year other than the calendar year in which the election is held shall be considered to be made during the calendar year in which the election is held.
(2) The contribution limitation in paragraph (e)(1) of this section shall be increased by the percent difference in the price index in accordance with 11 CFR 110.17. The increased contribution limitation shall be in effect for the two calendar years starting on January 1 of the year in which the contribution limitation is increased. In every odd-numbered year, the Commission will publish in the
(a) [Removed and reserved].
(a)
(b)
(1) In the two-year period beginning on January 1 of an odd-numbered year and ending on December 31 of the next even-numbered year, no individual shall make contributions aggregating more than $95,000, including no more than:
(i) $37,500 in the case of contributions to candidates and the authorized committees of candidates; and
(ii) $57,500 in the case of any other contributions, of which not more than $37,500 may be attributable to contributions to political committees that are not political committees of any national political parties.
(2) Contributions to candidates made under the increased contribution limitations under 11 CFR part 400,
(3) The contribution limitations in paragraph (b)(1) of this section shall be increased by the percent difference in the price index in accordance with 11 CFR 110.17. The increased contribution limitations shall be in effect for the two calendar years starting on January 1 of the year in which the contribution limitations are increased.
(4) In every odd-numbered year, the Commission will publish in the
(d)
(e)
No candidate or political committee shall knowingly accept any contribution or make any expenditure in violation of the provisions of 11 CFR part 110. No officer or employee of a political committee shall knowingly accept a contribution made for the benefit or use of a candidate, or make any expenditure on behalf of a candidate, in violation of any limitation imposed on contributions and expenditures under this part 110.
(a)
(1) Each expenditure limitation so increased shall be the expenditure limitation in effect for that calendar year.
(2) For purposes of this paragraph (a), the term base period means calendar year 1974.
(b)
(1) The increased contribution limitations shall be in effect as provided in 11 CFR 110.1(b)(1)(ii), 110.1(c)(1)(ii), 110.2(e)(2) and 110.5(b)(3).
(2) For purposes of this paragraph (b) the term
(c)
(d)
(e)
(a)
(1) A principal campaign committee designated pursuant to 11 CFR 101.1(a);
(2) Any other political committee authorized by a candidate under 11 CFR 101.1(b) and 102.13 to receive contributions or make expenditures on behalf of such candidate; or
(3) Any entity directly or indirectly established, financed, maintained or controlled by one or more Federal candidates.
(b)
(1) A national, State, district, or local committee of a political party, including a national congressional campaign committee;
(2) Any entity directly or indirectly established, financed, maintained or controlled by a national, State, district, or local committee of a political party, including a national congressional campaign committee; or
(3) Any account of a committee or entity described in paragraphs (b)(1) and (b)(2) of this section.
(c)
(1) The decision to contribute is made knowingly and voluntarily by that individual;
(2) The funds, goods, or services contributed are owned or controlled exclusively by that individual, such as income earned by that individual, the proceeds of a trust for which that individual is the beneficiary, or a savings account opened and maintained exclusively in that individual's name;
(3) The contribution is not made from the proceeds of a gift, the purpose of which was to provide funds to be contributed, or is not in any other way controlled by another individual; and
(4) The contribution is not earmarked or otherwise directed to one or more Federal candidates, authorized committees, political party committees, or other organizations covered by paragraph (a) or (b) of this section. See 11 CFR 110.6.
(d)
(e)
(a)
(1)
(2)
(3)
(i) A foreign principal, as defined in 22 U.S.C. 611(b); or
(ii) An individual who is not a citizen of the United States and who is not lawfully admitted for permanent residence, as defined in 8 U.S.C. 1101(a)(20); however,
(iii)
(4)
(i) Have actual knowledge that the source of the funds solicited, accepted or received is a foreign national;
(ii) Be aware of facts that would lead a reasonable person to conclude that there is a substantial probability that the source of the funds solicited, accepted or received is a foreign national; or
(iii) Be aware of facts that would lead a reasonable person to inquire whether the source of the funds solicited, accepted or received is a foreign national, but the person failed to conduct a reasonable inquiry.
(5) For purposes of paragraph (a)(4) of this section, pertinent facts include, but are not limited to:
(i) The contributor or donor uses a foreign passport or passport number for identification purposes;
(ii) The contributor or donor provides a foreign address;
(iii) The contributor or donor makes a contribution or donation by means of a check or other written instrument drawn on a foreign bank or by a wire transfer from a foreign bank; or
(iv) The contributor or donor resides abroad.
(6)
(7)
(b)
(c)
(1) A political committee of a political party, including a national party committee, a national congressional campaign committee, or a State, district, or local party committee, including a non-Federal account of a State, district, or local party committee, or
(2) An organization of a political party whether or not the organization is a political committee under 11 CFR 100.5.
(d)
(e)
(f)
(g)
(h)
(1) No person shall knowingly provide substantial assistance in the solicitation, making, acceptance, or receipt of a contribution or donation prohibited by paragraphs (b) through (d), and (g) of this section.
(2) No person shall knowingly provide substantial assistance in the making of an expenditure, independent expenditure, or disbursement prohibited by paragraphs (e) and (f) of this section.
(i)
Environmental Protection Agency (EPA).
Final rule.
In this final regulation, EPA ratifies approval of several test procedures for measuring the toxicity of effluents and receiving waters. The test procedures are commonly referred to as whole effluent toxicity or WET test methods. EPA also withdraws two WET test methods from the list of nationally-approved biological test procedures for the analysis of pollutants. This action also revises some of the WET test methods to improve performance and increase confidence in the reliability of the results. Today's action will satisfy settlement agreement obligations designed to resolve litigation over an earlier rulemaking that originally approved WET test methods.
This regulation is effective December 19, 2002. For judicial review purposes, this final rule is promulgated as of 1:00 p.m. Eastern Standard Time on December 3, 2002 in accordance with 40 CFR 23.7. The incorporation by reference of certain publications listed in this rule is approved by the Director of the Federal Register as of December 19, 2002.
Marion Kelly; Engineering and Analysis Division (4303T); Office of Science and Technology; Office of Water, U.S. Environmental Protection Agency; Ariel Rios Building; 1200 Pennsylvania Avenue, NW; Washington, DC 20460, or call (202) 566-1045, or E-mail at kelly.marion@epa.gov. For technical information regarding method changes in today's rule, contact Debra L. Denton, USEPA Region 9, c/o SWRCB, 1001 I Street, Sacramento, CA 95814, or call (916) 341-5520, or E-mail
A. Proposed WET Method Changes
1. Blocking by Known Parentage
2. pH Drift
3. Nominal Error Rates
4. Dilution Series
5. Dilution Waters
6. Pathogen Interference
7. EDTA in the
B. Additional Revisions to WET Test Methods
1. Variability Criteria
2. Minimum Number of Replicates
3. Test Requirements/Recommendations
4. Sample Collection and Holding Times
5. Reference Toxicant Testing
6. Sample Holding Temperature
7. Biomass
8. Total Residual Chlorine
9.
10. Additional Minor Corrections
C. Ratification and Withdrawal of Methods
EPA Regions, as well as States, Territories, and Tribes authorized to implement the National Pollutant Discharge Elimination System (NPDES) program, issue permits that comply with the technology-based and water quality-based requirements of the Clean Water Act. In doing so, NPDES permitting authorities make a number of discretionary choices associated with permit writing, including the selection of pollutants to be measured and, in many cases, limits for those pollutants in permits. If EPA has “approved” (
This table is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be regulated by this action. This table lists the types of entities that EPA is now aware could potentially be regulated by
EPA has established an official public docket for this action under Docket ID No. WET-X (Electronic Docket No. OW-2002-0024). The official public docket consists of the documents specifically referenced in this action, any public comments received, and other information related to this action. Although a part of the official docket, the public docket does not include Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. The official public docket is the collection of materials that is available for public viewing at the Office of Water (OW) Docket, in the EPA Docket Center (EPA/DC), EPA West, Room B-102, 1301 Constitution Avenue NW., Washington, DC. The EPA Docket Center Public Reading Room is open from 8:30 a.m. to 4:30 p.m. EST, Monday through Friday, excluding legal holidays. The telephone number for the Public Reading Room is (202) 566-1744, and the telephone number for the OW Docket is (202) 566-2426.
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EPA promulgates today's rule pursuant to the authority of sections 301, 304(h), 402, and 501(a) of the Clean Water Act (“CWA” or the “Act”), 33 U.S.C. 1311, 1314(h), 1342, 1361(a) (the “Act”). Section 101(a) of the Act sets forth the “goal of restoring and maintaining the chemical, physical, and biological integrity of the nation's waters” and prohibits “the discharge of toxic pollutants in toxic amounts.” Section 301 of the Act prohibits the discharge of any pollutant into navigable waters unless the discharge complies with a National Pollutant Discharge Elimination System (NPDES) permit, issued under section 402 of the Act. Section 304(h) of the Act requires the Administrator of the EPA to “promulgate guidelines establishing test procedures for the analysis of pollutants that shall include the factors which must be provided in any certification pursuant to section 401 of this Act or permit applications pursuant to section 402 of this Act.” Section 501(a) of the Act authorizes the Administrator to “prescribe such regulations as are necessary to carry out his function under this Act.” EPA publishes CWA analytical method regulations at 40 CFR part 136. The Administrator also has made these test procedures applicable to monitoring and reporting of NPDES permits (40 CFR part 122, §§ 122.21, 122.41, 122.44, and 123.25), and implementation of the pretreatment standards issued under section 307 of the Act (40 CFR part 403, §§ 403.10 and 403.12).
On October 16, 1995, EPA amended the “Guidelines Establishing Test Procedures for the Analysis of Pollutants,” 40 CFR part 136, to add a series of standardized toxicity test methods to the list of Agency approved methods for conducting required testing of aqueous samples under the CWA (60 FR 53529) (WET final rule). The WET final rule amended 40 CFR 136.3 (Tables IA and II) by adding acute toxicity methods and short-term methods for estimating chronic toxicity. These methods measure the toxicity of effluents and receiving waters to freshwater, marine, and estuarine organisms. Acute methods (USEPA, 1993) generally use death of some percentage of the test organisms during 24 to 96 hour exposure durations as the measured effect of an effluent or receiving water. The short-term methods for estimating chronic toxicity (USEPA, 1994a; USEPA, 1994b) use longer durations of exposure (up to nine days) to ascertain the adverse effects of an effluent or receiving water on survival, growth, and/or reproduction of the organisms. The methods listed at 40 CFR part 136 for measuring aquatic toxicity are referred to collectively as “WET test methods,” methods specific to measuring acute toxicity are referred to as “acute” test methods, and short-term methods for estimating chronic toxicity are referred to as “chronic” methods.
EPA standardized the test procedures for conducting the approved acute and chronic WET test methods in the following three method manuals, which were incorporated by reference in the WET final rule: Methods for Measuring the Acute Toxicity of Effluents and Receiving Water to Freshwater and Marine Organisms, Fourth Edition, August 1993, EPA/600/4-90/027F (acute method manual); Short-Term Methods for Estimating the Chronic Toxicity of Effluents and Receiving Water to Freshwater Organisms, Third Edition, July 1994, EPA/600/4-91/002 (freshwater chronic method manual); and Short-Term Methods for Estimating the Chronic Toxicity of Effluents and Receiving Water to Marine and Estuarine Organisms, Second Edition, July 1994, EPA/600/4-91/003 (marine chronic method manual). EPA explains in the Technical Support Document for Water Quality-Based Toxics Control (TSD) (USEPA, 1991) that these WET test methods, along with chemical controls and bioassessments, are a component of EPA's integrated strategy for water quality-based toxics control. The TSD recommends that WET tests using the most sensitive of at least three test species from different phyla be used for monitoring the toxicity of effluents.
Since the 1995 WET final rule, EPA has issued several rulemakings and guidance documents in fulfillment of settlement agreements to resolve judicial challenges to the WET final rule (see Settlement Agreement discussion in Section III.B). On February 2, 1999, EPA published technical corrections that incorporated into the WET final rule an errata document to correct minor errors and omissions, provide clarification, and establish consistency among the WET final rule and method manuals (64 FR 4975; February 2, 1999). On July 18, 2000, EPA announced the availability of a WET Variability Guidance Document (65 FR 44528; July 18, 2000). On July 28, 2000, EPA published the availability of a WET Method Guidance Document (65 FR 46457; July 28, 2000). On September 28, 2001, EPA proposed specific revisions to the WET test methods, and EPA proposed to ratify its previous
Following promulgation of the WET methods on October 16, 1995, several parties challenged the rulemaking (
On September 28, 2001, EPA proposed modifications to the WET test methods (66 FR 49794). The proposal included updates to the methods, minor corrections and clarifications, and specific technical changes in response to stakeholder concerns. Specifically, EPA proposed technical changes to (1) require “blocking” by known parentage in the Ceriodaphnia dubia Survival and Reproduction Test; (2) specify procedures to control pH drift that may occur during testing; (3) incorporate review procedures for the evaluation of concentration-response relationships; (4) clarify recommendations regarding nominal error rate assumptions; (5) clarify limitations in the generation of confidence intervals; (6) add guidance on dilution series selection; (7) clarify requirements regarding acceptable dilution waters; and (8) add procedures for determining and minimizing the adverse impact of pathogens in the Fathead Minnow Survival and Growth Test.
EPA also solicited comment on other modifications to improve the performance of the methods, including the incorporation of variability criteria and increases in the minimum number of test replicates. EPA proposed to incorporate WET method changes into new editions of each of the WET method manuals (USEPA, 1993; USEPA, 1994a; USEPA, 1994b) and to update Table IA at 40 CFR part 136 to cite the new method manual editions.
In the September 28, 2001 proposed rule, EPA also proposed to ratify 11 of the 12 WET methods evaluated in EPA's WET Interlaboratory Variability Study. EPA proposed to ratify the Ceriodaphnia dubia Acute Test; Fathead Minnow Acute Test; Sheepshead Minnow Acute Test; Inland Silverside Acute Test; Ceriodaphnia dubia Survival and Reproduction Test; Fathead Minnow Larval Survival and Growth Test; Selenastrum capricornutum Growth Test; Sheepshead Minnow Larval Survival and Growth Test; Inland Silverside Larval Survival and Growth Test; Mysidopsis bahia Survival, Growth, and Fecundity Test; and Champia parvula Reproduction Test. To support ratification of these methods, EPA presented the results of the WET Interlaboratory Variability Study (USEPA, 2001a; USEPA, 2001b), a national study of 12 WET methods involving 56 laboratories and over 700 samples. EPA proposed to withdraw Holmesimysis costata as an acceptable substitute species for use in the Mysidopsis bahia Acute Test method protocol. In its place, EPA proposed a new Holmesimysis costata Acute Test protocol.
EPA invited public comment for 60 days and later extended the comment period for an additional 45 days (66 FR 58693; November 23, 2001). EPA received 38 comment packages during the allotted comment period.
Today's action incorporates most of the method changes proposed on September 28, 2001 (66 FR 49794) with minor modifications to address public comments. For a summary of major changes from the proposed rule, including proposed actions not incorporated in today's rule, see Section V of this preamble. Method manual revisions promulgated in today's action include:
• Minor corrections and clarifications,
• Incorporation of updated method precision data,
• Requirement for “blocking” by known parentage in the Ceriodaphnia dubia Survival and Reproduction Test,
• Specification of procedures to control pH drift that may occur during testing,
• Review procedures for the evaluation of concentration-response relationships,
• Clarification of limitations in the generation of confidence intervals,
• Guidance on dilution series selection,
• Clarification of requirements regarding acceptable dilution waters,
• Procedures for determining and minimizing the adverse impact of pathogens in the Fathead Minnow Survival and Growth Test,
• Requirement for the use of ethylenediaminetetraacetic acid (EDTA) in the Selenastrum capricornutum Growth Test.
In addition to requesting comment on the specific modifications to WET test methods mentioned above, EPA solicited comment on any additional modifications that would improve the overall performance of the methods. Specifically, EPA solicited comment on application of variability criteria to test results, modification of test acceptability criteria, and increases in test replication requirements. In response to comments, today's final rule also incorporates the following additional modifications to WET test methods:
• Requirement to meet specific variability criteria when NPDES permits require sublethal WET testing endpoints expressed using hypothesis testing,
• Increases in the required minimum number of replicates for several tests,
• Clarification of required and recommended test conditions for the purposes of reviewing WET test data submitted under NPDES permits,
• Additional clarification of sample holding times,
• Clarification of requirements for reference toxicant testing and additional guidance on evaluating reference toxicant test results,
• Clarification of allowable sample holding temperatures,
• Clarification of biomass as the measured endpoint in survival and growth tests,
• Clarification of requirements for measuring total residual chlorine in WET samples,
• Modification of the test termination criteria for the Ceriodaphnia dubia Survival and Reproduction Test to exclude the counting of fourth brood neonates,
• Additional minor corrections identified by commenters.
Based on the WET Interlaboratory Variability Study, peer review comments, and comments on the proposed rule, EPA is ratifying ten methods evaluated in the WET
EPA's WET Interlaboratory Variability Study demonstrated that the methods ratified today generally have a high rate of successful completion, do not often produce false positive results, and exhibit precision comparable to chemical methods approved at 40 CFR part 136. Table 1 summarizes the performance characteristics for the ten WET test methods ratified today. In ratifying these WET test methods, EPA reaffirms the conclusion expressed in the 1995 WET final rule (60 FR 53529; October 16, 1995), that these methods, including the modifications in today's rule, are applicable for use in NPDES permits.
EPA is withdrawing the Holmesimysis costata Acute Test and the Champia parvula Reproduction Test methods from 40 CFR part 136. EPA was unable to obtain interlaboratory precision data for these methods in the WET Interlaboratory Variability Study due to laboratory unavailability. EPA was unable to contract with a minimum of six laboratories qualified and willing to conduct these test methods within the time frame of the Study. Due to this lack of interlaboratory precision data generated from the Study for these methods, several commenters recommended that these methods not be approved at 40 CFR part 136 for national use. In response, today's action removes the Holmesimysis costata Acute Test method (1995 version) and the Champia parvula Reproduction Test method from the list of test methods approved for nationwide use at 40 CFR part 136.
By withdrawing these methods from 40 CFR part 136 for nationwide use, EPA does not reject their use on more limited bases. Today's withdrawal simply reflects that the Agency has not validated these methods for national use. EPA continues to support the use of these methods for applications other than for the determination of compliance with NPDES permit limits, as well for limited, localized, or regional use where the methods have been validated by other entities. In addition, EPA continues to support the use of the Holmesimysis costata Acute Test to measure toxicity to marine organisms of the Pacific Ocean. Because test procedures for measuring toxicity to estuarine and marine organisms of the Pacific Ocean are not listed at 40 CFR part 136, permit writers may include (under 40 CFR 122.41(j)(4) and 122.44(i)(1)(iv)) requirements for the use of test procedures that are not approved at part 136, such as the Holmesimysis costata Acute Test and other West Coast WET methods (USEPA, 1995b) on a permit-by-permit basis.
Today's rule amends 40 CFR 136.3 by removing the Champia parvula Reproduction Test method (Method 1009.0) from Table IA, modifying the reference to acute “mysid” tests in Table IA to include only Mysidopsis bahia (and not Holmesimysis costata), adding method numbers to acute tests, revising the parameter measured in marine tests to refer to organisms “of the Atlantic Ocean and Gulf of Mexico,” and modifying footnotes and references to cite the updated versions of the method manuals.
On September 28, 2001, EPA proposed technical method changes to improve the performance and clarity of WET test methods and to address specific stakeholder concerns. These provisions were presented and discussed in section III of the proposed rule preamble (66 FR 49794) and detailed in the document titled, Proposed Changes to Whole Effluent Toxicity Method Manuals (USEPA, 2001e). In today's action, EPA is withdrawing or revising some of the proposed revisions based on comments received on the proposed rule. These revisions are discussed below. Other comments that EPA addressed but did not result in changes from the proposal are discussed in section VI.
EPA proposed specific method manual modifications that would require blocking by known parentage in the Ceriodaphnia dubia Survival and Reproduction Test method. Today, EPA is finalizing the proposed method changes with a minor modification to clarify that neonates from a single known parent may be used in the initiation of more than one test. This minor modification mitigates some commenters' concerns regarding the increased cost of blocking by known parentage. Blocking by known parentage requires the use of at least six neonates from each of at least ten separate parents. If more than six neonates from a given parent remain after allocating organisms to a test, those remaining neonates may be discarded, used as future culture organisms, or used in another test initiated on the same day (provided that the neonates meet age requirements).
During the conduct of static or static-renewal WET tests, the pH in test containers may fluctuate or drift from the initial pH value. EPA proposed specific procedures that may be used to control this pH drift in chronic WET tests. Today, EPA is revising the specified procedures in response to stakeholder comments. Some commenters requested that EPA clarify the pH that should be maintained in pH-controlled tests. Today's action clarifies that, when the test objective is to determine the toxicity of an effluent in the receiving water, the target pH to maintain in a pH-controlled test is the pH of the receiving water measured at the edge of any mixing zone authorized in a permit. When the test objective is to determine the absolute toxicity of the effluent, the target pH to maintain in a pH-controlled test is the pH of the sample upon completion of collection. The revisions also clarify that in pH-controlled tests, the pH should be maintained within ±0.2 pH units of the target pH in freshwater chronic tests and within ±0.3 pH units for marine/estuarine chronic tests. EPA also added guidance on interpreting the results of parallel testing.
The revisions also remove language from the proposed method manual changes that warned about effects from pH drift in the absence of pH-dependent toxicants. To address the concern that the daily cycle of pH drift and renewal caused artifactual toxicity by “shocking” test organisms, EPA proposed language in the method manuals that warned of such potential interference from pH drift even when pH-dependent toxicants were not present. EPA specifically requested that commenters provide “any data that show the value of proposed pH control measures in situations where ammonia or other pH-dependent toxicants are not present.” EPA did not receive such data. EPA believes that pH drift alone is not a test interference if pH is within the organism's tolerance range. The degree of pH drift typically observed in effluent samples should generally only interfere with test results if the sample contains a compound with toxicity that is pH dependent and at a concentration that is near the toxicity threshold. Because EPA did not receive data to suggest otherwise, EPA is removing any reference to pH drift interference in the absence of pH-dependent toxicants.
Many commenters recommended that EPA include the proposed pH control guidance for acute test methods as well as chronic methods because of the insufficiency of static renewal testing to control the pH drift and the impracticability and cost of flowthrough testing. In today's action, EPA has not provided additional techniques that involve modification of the sample to control pH drift in acute test methods, because EPA believes that the current acute methods provide adequate remedies for pH drift without modifying the sample. In acute tests, pH drift may be remedied by more frequent test renewals or use of flowthrough testing. While EPA agrees that flowthrough testing is more costly than static or static renewal testing, today's action does not impose any additional costs by requiring flowthrough testing. Today's action simply retains the options for pH control that are currently described in the acute method manual and does not add additional options.
Today's action does not incorporate the proposed method manual changes regarding nominal error rates. The method manuals maintain the original statement recommending a nominal error rate of 0.05. EPA proposed changes to its recommendation regarding nominal error rate assumptions, specifically, the change from 0.05 to 0.01 under specific circumstances. EPA proposed changes to its recommended error rate assumptions based on the settlement agreement, which identified the circumstances under which EPA would change its recommendations regarding nominal error rate reductions. These specified circumstances do not necessarily represent cases where the risk of false positive results increase, but rather situations for which the petitioners sought specific relief.
Commenters on the proposed rule commented that there was no scientific justification for reducing nominal error rate assumptions in only these circumstances and recommended reducing the nominal error rate in all circumstances. EPA agrees with the commenters that there is not a scientific justification for allowing reduced nominal error rates in these specific circumstances, but disagrees that nominal error rates should be reduced in all circumstances. Some commenters claimed that a reduced nominal error rate is needed to improve confidence in the test results. Reducing the nominal error rate, however, does not inherently improve confidence in test results. Because of the relationship between Type I and Type II statistical errors, reductions in nominal error rates improve confidence in results that identify toxicity, but reduce confidence in results that do not identify toxicity. This reduces the power of the test and the chance of identifying toxic discharges, thereby reducing environmental protection. In addition, the statistical test designs (
EPA is finalizing the proposed guidance on the selection of dilution series in WET testing. In addition to the proposed guidance, EPA has made minor modifications in response to comments to further clarify that no one particular dilution series is required. Specific dilution series used in the WET method manuals are provided as examples and recommendations, not requirements.
EPA is finalizing the proposed guidance on the selection of dilution waters in WET testing. In addition to the proposed guidance, EPA has made minor modifications in response to comments to further clarify that no single dilution water type is required for all tests. The method manuals now
In today's action, EPA finalizes the proposed guidance on controlling pathogen interference in the Fathead Minnow Larval Survival and Growth Test with several modifications to address commenter concerns. Some commenters were concerned that the proposed guidance allowed the use of pathogen control techniques such as UV, chlorination, filtration, and antibiotics only after the recommended modified test design (fewer fish per cup) failed to control pathogen interference. Today's revisions clarify that EPA recommends pathogen control techniques that do not modify the sample, such as the modified test design technique, over ones that do. Upon approval by the regulatory authority, however, analysts also may use various sample sterilization techniques that modify the sample to control pathogen interference, provided that parallel testing of altered and unaltered samples further confirms the presence of pathogen interference and demonstrates successful pathogen control.
The manuals also now provide further explanation regarding the purpose for and required extent of pathogen source determination. Commenters were concerned that EPA was requiring permittees to generate data that was irrelevant to correcting for pathogen test interference. This is not the case. Determining whether tests are adversely affected by pathogens in the effluent or pathogens in the receiving water used for test dilution is an important first step in selecting an appropriate pathogen control technique. If the source of interfering pathogens in the test is the receiving water used as the dilution water, then pathogen interference may be controlled by simply using an alternative dilution water. If the source of interfering pathogens in the test is the effluent, then pathogen control techniques are appropriate to control the interference. To further address the comments, EPA removed mention of pathogen source identification beyond determining whether the pathogen source was the effluent or dilution water. EPA also made several minor modifications in response to comments, including an acknowledgment that pathogen control techniques may not eliminate pathogens, but should minimize the adverse influence of pathogens so that test results are not confounded by mortality due to pathogens.
In the WET Interlaboratory Variability Study, EPA found that performance of the Selenastrum capricornutum Growth Test was much higher (lower interlaboratory variability and lower false positive rate) when the test was conducted with EDTA (ethylenediaminetetraacetic acid). Based on this finding, EPA proposed to recommend the use of EDTA in the Selenastrum capricornutum Growth Test. Several commenters expressed concern that EPA only recommended, rather than required, the use of EDTA. Commenters stated that this recommendation was not sufficient to ensure the acceptable performance of the method and encouraged EPA to require the use of EDTA. To address these comments, the Selenastrum capricornutum Growth Test now requires the addition of EDTA to nutrient stock solutions when conducting the Selenastrum capricornutum Growth Test and submitting data under NPDES permits. To address concerns that EDTA may interfere with (
Today's action incorporates mandatory variability criteria for five chronic test methods. EPA recommends the use of point estimation techniques over hypothesis testing approaches for calculating endpoints for effluent toxicity tests under the NPDES Permitting Program. However, to reduce the within-test variability and to increase statistical sensitivity when test endpoints are expressed using hypothesis testing rather than the preferred point estimation techniques, variability criteria must be applied as a test review step when NPDES permits require sublethal hypothesis testing endpoints (
In the proposed rule, EPA solicited comment on the required use of upper and lower PMSD bounds in the calculation of NOEC and LOEC values.
EPA received comments on this proposed approach that expressed concern that variability criteria were used only to adjust NOEC and LOEC values and not to invalidate tests. Commenters argued that the proposed approach does not control variability unless tests failing to meet the variability criteria are invalidated. In response to these comments, EPA has modified the application of variability criteria in today's action. Rather than implementing variability criteria as a component of endpoint calculation, today's method modifications implement variability criteria (upper and lower PMSD bounds) as a test review step that is required when NPDES permits require sublethal WET testing endpoints expressed using hypothesis testing for the five test methods previously listed. Reviewed tests that fail to meet the variability criteria and do not detect toxicity at the receiving water concentration are invalid and must be repeated on a newly collected sample.
EPA received comments both for and against implementation of variability criteria as test acceptability criteria. To balance these comments, the final rule implements the variability criteria as a required test review step when NPDES permits require sublethal WET testing endpoints expressed using hypothesis testing for the five test methods previously listed. As such, the variability criteria have the potential to invalidate highly variable tests. Invalidation, however, is contingent upon other data evaluation steps. For instance, tests that exceed the variability criteria are only invalidated when the test also fails to detect toxicity at the permitted receiving water concentration. The method manuals continue to restrict use of the term “test acceptability criteria” to biological measurements in test controls (
EPA received comments that recommended alternative measures for controlling within test variability, such as limits on the coefficient of variation (CV) for the control treatment. In developing variability criteria, EPA considered other measures of test precision, including the standard deviation and coefficients of variation for treatments and control, minimum significant difference (MSD), and the mean square for error from the analysis of variance of treatment effects. EPA considers the PMSD to be the measure that is most easily understood and that is most directly applied to determination of NOEC and LOEC values. The PMSD quantifies the smallest percentage difference between the control and a treatment (effluent dilution) that could be declared as statistically significant. It thus includes exactly that variability affecting determination of the NOEC and LOEC. The CV for the control or any one treatment, or selected treatments, represents only a portion of the variability affecting the NOEC and LOEC. Some State or Regional WET programs have requirements on the CV for the control and the treatment representing the receiving water concentration (RWC). Such requirements can provide finer control over the variability influencing a single comparison between the control and the RWC treatment. The PMSD upper bound provides control over the total within-test variability and is intended specifically for multi-concentration tests in which the NOEC or LOEC are determined by using hypothesis testing. Regulatory authorities may continue to use variability control strategies adopted within their jurisdiction, but when NPDES permits require sublethal WET testing endpoints expressed using hypothesis testing, the variability criteria required by today's action must be implemented as well. Requiring such variability criteria provides national consistency and control of WET test precision when hypothesis testing approaches are chosen. In today's action, EPA reiterates the recommendation of the method manuals and the TSD (USEPA, 1991) by stating that for the NPDES Permit Program, point estimation techniques are preferred over hypothesis testing approaches for calculating endpoints for effluent toxicity tests.
EPA received comments that the upper and lower bounds established for PMSD variability criteria were arbitrary or unrepresentative. EPA established the proposed variability criteria as performance-based standards set at the 10th and 90th percentiles of PMSD values from EPA's evaluation of national reference toxicant test data (USEPA, 2000c). In today's action, EPA has revised the variability criteria to reflect the 10th and 90th percentiles of PMSD values based on EPA's Interlaboratory Variability Study. The use of data from this study reflects not only tests performed on reference toxicants, but tests performed on effluents, receiving waters, and non-toxic “blank” samples as well. Data from this study also is representative of qualified laboratories that routinely conduct WET testing for permittees (see Section VI.C.2 of this preamble). In method development, EPA routinely uses such data from interlaboratory validation studies to set performance-based criteria.
In September 2001, EPA proposed variability criteria for four methods. Some commenters recommended that EPA expand the variability criteria to other test methods and other test endpoints. EPA did not propose variability criteria for the Selenastrum capricornutum Growth Test and the Sheepshead Minnow Larval Survival and Growth Test because these methods showed lower within-test variability in EPA's evaluation of national reference toxicant test data (USEPA, 2000c). EPA's WET Interlaboratory Variability Study confirmed that the Sheepshead Minnow Larval Survival and Growth Test was less variable than the methods for which EPA proposed variability criteria, however, the Selenastrum capricornutum Growth Test showed comparable within-test variability to methods for which EPA proposed variability criteria. For this reason, EPA is today requiring variability criteria for the Selenastrum capricornutum Growth Test in addition to the four methods for which variability criteria were proposed.
As previously stated in the method manuals (USEPA, 1993; USEPA, 1994a; USEPA, 1994b) and EPA's Technical Support Document (USEPA, 1991), EPA recommends the use of point estimation techniques over hypothesis testing approaches for calculating endpoints for effluent toxicity tests under the NPDES Permitting Program. EPA is instituting variability criteria to reduce within-test variability and to increase statistical sensitivity when test endpoints are expressed using hypothesis testing rather than the preferred point estimation techniques. For the five methods for which EPA is instituting variability criteria when test results are analyzed by hypothesis test methods, less than 90% of tests are able to detect
EPA is not requiring variability criteria for the Sheepshead Minnow Larval Survival and Growth Test, because the WET Interlaboratory Variability Study confirmed that this method is less variable than the five methods for which EPA is requiring variability criteria. In EPA's WET Interlaboratory Variability Study, all Sheepshead Minnow Larval Survival and Growth Tests were able to detect effects of 25% or less as statistically significant in hypothesis testing without instituting variability criteria. The 90th percentile PMSD for the Sheepshead Minnow Larval Survival and Growth Test was 17%, compared to 29%, 47%, 30%, 37%, and 28% for the five methods for which EPA is requiring variability criteria. For the chronic methods that were not evaluated in the WET Interlaboratory Variability Study, EPA does not have sufficient data to support the implementation of mandatory variability criteria at this time.
EPA is not requiring variability criteria for survival endpoints of acute methods because, in general, these methods are less variable than sublethal chronic test methods, and hypothesis testing approaches are able to achieve a level of statistical sensitivity similar to the preferred point estimation endpoint for acute methods and survival endpoints (
By requiring application of variability criteria today in five methods, EPA does not intend to discourage permitting authorities from applying variability criteria for other endpoints or methods, or from applying more stringent variability criteria for the five chronic methods subject to today's action. While EPA continues to recommend that permitting authorities apply variability criteria to additional methods as recommended in EPA guidance (USEPA, 2000c), today's rule does not require such variability criteria for additional methods or endpoints.
EPA solicited comment on increasing the minimum number of replicates in certain WET tests from three to four. Commenters were supportive of this proposed change and stated that this change was needed to support the use of non-parametric hypothesis tests as outlined in the method manuals. In today's action, EPA is increasing the minimum number of replicates as proposed.
Several commenters on the proposed rule expressed concern that WET methods do not adequately differentiate between mandatory test conditions (
In today's action, EPA has further clarified the requirements for sample collection and sample holding times. EPA made these modifications in response to comments requesting additional clarification and additional flexibility. In today's action, EPA has not modified the default maximum 36 hour sample holding time (up to 72 hours with regulatory authority approval), which must be met for first use of the sample, but EPA has provided additional clarification and additional flexibility for the use of samples for test renewals when the samples meet the initial sample holding times for first use. Sample holding times apply to “first use of the sample,” and samples may be used for renewal at 24, 48, and/or 72 hours after first use.
The method manuals also now provide additional flexibility when shipment of renewal samples is delayed during an ongoing test. If shipping problems (
Today's action clarifies the purpose and requirements of reference toxicant testing and the appropriate use of reference toxicant test results. Several commenters identified inconsistencies in the requirements for reference toxicant testing and recommended that EPA clarify the purpose of generating reference toxicant test data. In today's action, EPA clarifies that reference toxicant testing is used to (1) initially demonstrate acceptable laboratory performance, (2) assess the sensitivity and health of test organisms, and (3) document ongoing laboratory performance. EPA has made method manual modifications consistent with this stated purpose. Regardless of the source of test organisms (in-house cultures or purchased from external suppliers), the testing laboratory must perform at least one acceptable reference toxicant test per month for each type of toxicity test method conducted in that month. If a test
In today's action, EPA also clarifies the appropriate use of reference toxicant test results. Commenters recommended that EPA provide additional guidance on evaluating reference toxicant test results and using these results to validate toxicity tests on test samples of unknown toxicity. In response, EPA clarifies that reference toxicant test results should not be used as a
In response to comments that reference toxicant testing only compares variability within a laboratory, EPA added guidance for evaluating test precision among laboratories and for limiting excessive variability in reference toxicant testing. EPA has recommended that laboratories compare the calculated coefficient of variation, also referred to as the CV (
Several commenters recommended standardizing reference toxicants and acceptance ranges for reference toxicant test results. Other comments opposed mandatory reference toxicants and required acceptance ranges claiming that insufficient guidance and data are available for instituting such requirements and that such requirements would impose additional costs on laboratories. In today's action, EPA is not requiring the use of specific reference toxicants or setting required acceptance ranges for reference toxicant testing. EPA agrees that requiring specific reference toxicants and acceptance ranges would increase laboratory costs. Many laboratories would be forced to develop initial and ongoing documentation of laboratory performance (
Today's action clarifies the allowable sample holding temperatures for WET samples as 0°-6°C. EPA received comments that the Agency should establish acceptable ranges for the current sampling holding temperature of 4°C. EPA has defined the acceptable range as 0°-6°C based on current NELAC (National Environmental Laboratory Accreditation Conference) standards which state that, “for samples with a specified storage temperature of 4°C, storage at a temperature above the freezing point of water to 6°C shall be acceptable” (NELAC, 2001). EPA also clarifies that hand-delivered samples used on the day of collection do not need to be cooled to 0°-6°C prior to test initiation.
Today's action clarifies that the sublethal endpoint used in survival and growth tests is based on the number of initial organisms exposed. Comments expressed concern that by calculating the chronic endpoint based on the number of initial organisms (rather than surviving organisms), the growth endpoint was in error and biased. EPA disagrees. In the 1995 WET final rule, EPA changed the test endpoint from a growth endpoint that was based on the number of surviving organisms, to a combined growth and survival endpoint that is based on the number of initial organisms. This does not represent an error in the endpoint calculation, but rather a change in the endpoint itself. EPA made this change: (1) to provide consistency with other methods (
Today's action clarifies the requirements for measuring total residual chlorine in WET test samples. Several commenters stated that certain requirements for measuring total residual chlorine were unnecessary when the absence of the chemical has already been determined. In response to these comments, EPA has clarified that if total residual chlorine is not detected in effluent or dilution water at test initiation, it is unnecessary to measure total residual chlorine at test solution renewal or at test termination. If total residual chlorine is detected at test initiation, then measurement of total residual chlorine at test solution renewal and test termination would continue to be required. EPA also has clarified that the measurement of total residual chlorine is unnecessary in laboratory prepared synthetic dilution water.
Commenters also recommended that EPA remove the requirement for the analysis of total residual chlorine immediately following sample collection. EPA has maintained this requirement in today's action, because information on chlorine at the site and
Commenters recommended various modifications to the test termination criteria in the Ceriodaphnia dubia Survival and Reproduction Test. Some commenters recommended a strict seven-day test, and others recommended that the test last no longer than seven days. Other commenters recommended that the test be terminated when 80% of control females produce three broods, rather than the current criteria of 60%. Still other commenters recommended that fourth brood neonates not be counted. To evaluate the recommended approaches to terminating Ceriodaphnia dubia Survival and Reproduction Tests, EPA analyzed test data from the WET Interlaboratory Variability Study using each of the recommended test termination criteria. EPA compared the recommended criteria to the current criteria by calculating within-test variability and successful test completion rates under each of the test termination scenarios. While some of the recommended test termination criteria (such as termination when 80% of control females produce three broods or a maximum of seven days) slightly improved the within-test variability of the method (from a median PMSD of 23.2% to 19.9%), these criteria caused significant reductions in successful test completion (from 83% successful completion to 66%). Only the recommendation to exclude fourth brood neonates resulted in a decrease in within-test variability without an offsetting decrease in the rate of successful test completion. Based on these results, EPA is modifying the Ceriodaphnia dubia Survival and Reproduction Test to specify that neonates from fourth broods are excluded from the number of neonates counted in the test. With the exception of excluding fourth brood neonates, EPA is maintaining the current test termination criteria. These criteria state that the test is terminated when 60% or more of the surviving control females have produced their third brood, or at the end or eight days, whichever occurs first. These criteria may be met at six, seven, or eight days.
Some commenters identified additional errors in the WET method manuals or the proposed changes that EPA was not aware of at the time of proposal. In today's action, EPA has made these additional corrections and minor clarifications.
In the September 28, 2001 proposal, EPA proposed to ratify the following eleven test methods evaluated in the WET Interlaboratory Variability Study: Ceriodaphnia dubia Acute Test; Fathead Minnow Acute Test; Sheepshead Minnow Acute Test; Inland Silverside Acute Test; Ceriodaphnia dubia Survival and Reproduction Test; Fathead Minnow Larval Survival and Growth Test; Selenastrum capricornutum Growth Test; Sheepshead Minnow Larval Survival and Growth Test; Inland Silverside Larval Survival and Growth Test; Mysidopsis bahia Survival, Growth, and Fecundity Test; and Champia parvula Reproduction Test. EPA proposed to withdraw the Holmesimysis costata Acute Test and, in its place, proposed a revised version of the method. As explained previously, EPA is ratifying ten of these methods today based on the results of EPA's WET Interlaboratory Variability Study that demonstrate the adequacy, availability, and comparability of the methods (
Several commenters expressed concern that EPA did not properly validate WET test methods, specifically, the Champia parvula Reproduction Test and the Holmesimysis costata Acute Test. EPA was unable to obtain interlaboratory precision data for these methods in the WET Interlaboratory Variability Study. Because these WET methods are not used widely in NPDES permits, EPA was unable to contract with a minimum of six laboratories qualified and willing to conduct these test methods within the time frame of the Study. In the proposed rule, EPA supported these methods with intralaboratory precision data and limited interlaboratory precision data (two trials of the Holmesimysis costata Acute Test in two laboratories), but commenters questioned the sufficiency of such data for validating methods for nationwide use, as well as the necessity to approve such methods for nationwide use.
EPA has reviewed its proposal to ratify the Champia parvula Reproduction Test in light of comments received and has decided to withdraw the method from the list of nationally-approved test methods at 40 CFR part 136. At the current time, an insufficient number of laboratories nationwide have the capabilities to perform the method. As noted, EPA was thus unable to obtain a rigorous multi-laboratory performance data set to comprehensively evaluate this method. EPA had predicted that as the requirements for use of this organism in the NPDES permit program increased, the resulting increase in market demand would result in an increase in the number of laboratories capable of performing the test. However, the number of permits requiring the Champia parvula chronic test has remained low (DeGraeve
EPA also has reviewed its proposal of the Holmesimysis costata Acute Test in light of comments received. As proposed, EPA now withdraws Holmesimysis costata as an acceptable species for use in the Mysidopsis bahia Acute Test method. EPA does not, however, promulgate the proposed Holmesimysis costata Acute Test method as a nationally-approved method at 40 CFR part 136 at this time. Because the Holmesimysis costata Acute Test is used in only a small number of permits on the West Coast, EPA was unable to obtain sufficient interlaboratory data on this method during the time that the WET Interlaboratory Variability Study was conducted to support today's rulemaking. While today's action removes the Homesimysis costata Acute Test from the 40 CFR part 136 listing, EPA includes the proposed method in the method manual with an explanation
Three commenters, including the California State Water Resources Control Board, supported ratification of the Holmesimysis costata Acute Test method. The California State Water Resources Control Board added that ratification of this method was “particularly important, as it is the only method employing a marine species that is indigenous to the Pacific coast.” The California State Water Resources Control Board has been proactive in developing, testing, validating, and implementing WET test methods specific to West Coast species (USEPA, 1995b), and EPA does not intend to frustrate that effort by today's action. For this reason, EPA is specifying in Table IA of 40 CFR part 136 that the marine acute and marine chronic test methods ratified in today's rulemaking measure toxicity to estuarine and marine organisms “of the Atlantic Ocean and Gulf of Mexico.” By defining the parameter measured by promulgated marine methods as toxicity to organisms “of the Atlantic Ocean and Gulf of Mexico,” today's action does not displace West Coast methods that have been approved for use in States such as California. Because test procedures for measuring toxicity to estuarine and marine organisms of the Pacific Ocean are not listed at 40 CFR part 136, permit writers may include (under 40 CFR 122.41(j)(4) and 122.44(i)(1)(iv)) requirements for the use of test procedures that are not approved at part 136, such as West Coast WET methods (USEPA, 1995b) on a permit-by-permit basis. Furthermore, this rule does not preclude permit writers addressing marine or estuarine waters of the Pacific Ocean from requiring, on a permit-by-permit basis, any method designated as approved for “estuarine and marine organisms of the Atlantic Ocean and Gulf of Mexico,” where such method is suitable for the specific application.
EPA encouraged public participation in this rulemaking and requested comments on the proposed revision and ratification of WET methods. EPA also requested data supporting comments, if available. Thirty-eight stakeholders provided comments on the proposal. Stakeholders included eight laboratories, eight regulatory authorities, 11 industries/industry groups, nine publicly-owned treatment works (POTWs), and two environmental consulting companies.
This section summarizes major comments received on the proposed rule that were not previously addressed in Section V and provides a summary of EPA's responses. The complete comment summary and response document can be found in the public record for this final rule.
EPA received comments on each of the proposed method changes, and those comments that prompted modifications to the proposed method changes are discussed in pection V of this preamble. Other substantial comments on proposed method changes follow.
Several commenters expressed concern that proposed method modifications will increase test costs. Of the WET method modifications instituted in today's action, only four are additional mandatory changes that have the potential to increase test costs. These four modifications include: (1) The requirement for blocking by known parentage in the Ceriodaphnia dubia Survival and Reproduction Test; (2) the requirement to review test results for concentration-response relationships; (3) the incorporation of mandatory variability criteria for certain test methods when NPDES permits require sublethal WET testing endpoints expressed using hypothesis testing; and (4) the increase in the minimum number of replicates for the Fathead Minnow Larval Survival and Growth Test, Selenastrum capricornutum Growth Test, Sheepshead Minnow Larval Survival and Growth Test, Inland Silverside Larval Survival and Growth Test, and Sea Urchin Fertilization Test. EPA believes that the overall cost increases due to these changes will be minor and that the potential benefits of these modifications outweigh the incremental costs. EPA has estimated that the total cost of these modifications for all permittees will be less than five million dollars per year nationwide for all tests (Table 2 and USEPA, 2002). EPA believes that these costs also would be alleviated by a potential reduction in costs for retesting and additional investigations (
Today, EPA is finalizing proposed method modifications to require the review of concentration-response relationships for all multi-concentration tests. Under this requirement, the concentration-response relationship generated for each multi-concentration test must be reviewed to ensure that calculated test results are interpreted appropriately. In conjunction with this requirement, EPA has provided recommended guidance for concentration-response relationship review (USEPA, 2000a).
Several commenters expressed concern that the proposed method modifications require that the concentration-response relationship be reviewed but does not require that a concentration-response relationship be established before determining that toxicity is present. Commenters recommended that EPA require the establishment of a “valid” concentration-response relationship prior to determining toxicity. Though within the scope of the proposed rule, EPA does not consider such a requirement appropriate for several reasons. First, WET methods and the WET testing program rely on the measurement of specific test endpoints (NOECs, LC50s, IC25s) for determining toxicity, not on achievement of specified concentration-response patterns. Second, the concentration-response guidance is a component of test review that ensures that test endpoints, which are used to determine toxicity, are calculated and interpreted appropriately. Second, concentration-response relationships are empirical; and a single definition for a “valid” concentration-response relationship is not appropriate. A range of toxicants may produce an infinite range of different shaped responses. In addition, a single response pattern may be due to several different reasons, some indicating toxicity, and some not. For example, the presence of pathogens,
Fourth, the concentration-response relationship guidance has been shown to be very effective at reducing false positives. For instance, in the WET Interlaboratory Variability Study, the use of the concentration-response relationship guidance reduced false positive incidences from above 14% to below 5% for some methods (USEPA, 2001a).
EPA is finalizing the proposed method modifications that provide guidance when confidence intervals are not generated. This guidance clarifies that confidence intervals may not be generated by EPA software when test data do not meet specific assumptions required by the statistical methods, when point estimates are outside of the test concentration range, or when specific limitations imposed by the software are encountered. EPA also provides guidance for proceeding under each circumstance. Some commenters stressed the importance of obtaining confidence intervals in all circumstances and recommended that EPA use confidence intervals in assessing the reliability of results and determining compliance. EPA believes that the failure to generate confidence intervals should not adversely affect WET test result reporting because confidence intervals surrounding point estimates are not currently reported in the Permit Compliance System (the national database tracking compliance with NPDES permits) or used in compliance determinations. Compliance with permit requirements is based on the point estimate itself and not confidence intervals surrounding the estimate. This approach is no different in WET testing than in chemical testing, where compliance is also based on the analytical result itself. EPA demonstrated in the WET Interlaboratory Variability Study that the WET methods provide adequate precision and adequate protection from false positives. Therefore, EPA is not altering the compliance determination approach to include the use of confidence intervals.
In addition to receiving comment on proposed method modifications, EPA received comments recommending additional method modifications. Those recommendations that EPA incorporated in today's action and those comments that prompted additional modifications are discussed in section V of this preamble. Other substantial comments on additional method changes are discussed below.
EPA received comments that requested additional requirements be added to WET test methods, as well as comments that WET test methods are overly restrictive and would benefit from additional flexibility. As with all promulgated methods, EPA has attempted to balance these two opposing objectives. EPA has prescribed certain method elements when necessary to ensure the reliability of results, and allowed flexibility in other method elements so that the performance of analytical methods can be optimized. As noted in section V.B.3, EPA reevaluated the use of mandatory and discretionary terms in the WET test methods to ensure that the terms are included in the manuals as intended.
EPA received comments that WET test methods do not adequately distinguish between required and recommended procedures. In response, EPA modified the tables of test conditions and test acceptability criteria presented in the method manuals for each method, such that each item is identified as required or recommended. In addition, EPA added to each method manual a section on test review. This section provides direction on the review of sampling and handling procedures, test acceptability criteria, test conditions, statistical methods, concentration-response relationships, reference toxicant testing, and test variability.
EPA believes that these method modifications clarify the requirements for acceptable WET test results submitted under NPDES permits. However, EPA acknowledges that these method modifications will not solve all commenters concerns regarding inconsistencies in WET test review and acceptance. In the WET test methods, EPA established the minimum requirements for acceptable WET tests. In some cases, NPDES permits incorporate recommendations from the WET test method manuals as requirements in the permit (on a permit-by-permit basis). Authorized States retain the authority to establish more stringent requirements or to require additional procedures, test conditions, or QC elements. Thus, WET requirements ultimately reflected as NPDES permit requirements may continue to differ among States.
In the proposed rule, EPA solicited comments on increasing the test acceptability criteria for mean control reproduction in the Ceriodaphnia dubia Survival and Reproduction Test and mean control weight in the Fathead Minnow Larval Survival and Growth Test. EPA also requested that commenters submit supporting data. EPA received comments both in favor of and opposed to increasing test acceptability criteria for these methods, but these comments were not accompanied by supporting data. Because EPA does not currently possess and did not receive data indicating that such changes would improve the performance of the methods, EPA is not modifying the survival, growth and reproduction test acceptability criteria for these methods in today's action.
EPA also received comments recommending the Agency establish requirements for additional test acceptability criteria, such as limits on
Some commenters expressed concern that WET test methods do not contain adequate quality assurance/quality control (QA/QC) requirements. Each of the toxicity test method manuals contains separate, detailed, QA/QC guidelines, and each analytical method within these manuals discusses all aspects of the tests which are related to QA/QC. Section 4 of each method manual provides QA/QC requirements and guidance for facilities, equipment, and test chambers; test organisms; culturing and test dilution water; effluent and receiving water sampling and handling; test conditions; food quality; test acceptability criteria; calibration and standardization; replication and test sensitivity; demonstrating acceptable laboratory performance; documenting ongoing laboratory performance; and record keeping. The primary QA/QC requirements of WET test methods, as contained in section 4 of the method manuals, remain the requirements for acceptable biological performance (survival, reproduction, and growth) in test controls and the requirement for the routine analysis of reference toxicants. In today's action, however, EPA added additional QA/QC requirements including the required review of concentration-response relationships and mandatory variability criteria when NPDES permits require sublethal WET testing endpoints expressed using hypothesis testing. EPA believes that the QA/QC requirements of WET tests will adequately ensure that results are reliable and of known and acceptable quality.
Several commenters recommended that EPA approve and use alternative statistical methods (such as percent effect approaches and Generalized Linear Models). EPA has not included such alternative statistical methods in today's modifications to WET test methods. EPA believes that the statistical methods currently recommended in the WET methods are appropriate, and acknowledges that these recommended statistical methods are not the only appropriate techniques. The method manuals state that, “the statistical methods recommended in this manual are not the only possible methods of statistical analysis.” The recommended statistical methods described in the method manuals were selected because they are “(1) applicable to most of the different toxicity test data sets for which they are recommended, (2) powerful statistical tests, (3) hopefully “easily” understood by nonstatisticians, and (4) amenable to use without a computer, if necessary” (
Several commenters also expressed concern over bias introduced by the smoothing technique that is used in the recommended Inhibition Concentration Procedure (ICp). EPA has acknowledged in the method manuals and in method guidance (USEPA, 2000a) that the smoothing process may result in an upward adjustment in the control mean. EPA has provided guidance on concentration-response relationship review that corrects anomalous results that may arise from this smoothing procedure (USEPA, 2000a). This guidance warns that results from point estimation techniques should be interpreted carefully when the response pattern includes stimulation at low concentrations and no significant effect at higher concentrations. Under these conditions, the smoothing process could result in anomalous results, so EPA guidance recommends evaluating the ICp calculation without smoothing in these cases. If the percent effect at the receiving water concentration (RWC) is less than 25% when calculated without smoothing, and the response at the RWC is not statistically significantly different from the control response, then a calculated IC25 of less than the RWC should be noted as anomalous and the effluent determined to be non-toxic at the RWC.
Several commenters stated that EPA did not properly validate WET test methods because it did not evaluate essential performance characteristics. Commenters referenced EPA's Report to Congress on the Availability, Adequacy, and Comparability of Testing Procedures (USEPA, 1988) and stated that EPA failed to validate the following performance characteristics required by this report: accuracy, precision, dynamic range, detection limits, interferences, ruggedness (applicability), reporting, and representativeness/method comparability. EPA disagrees with this assertion and maintains that the WET test methods ratified in today's action were adequately validated according to all of the applicable criteria identified in the 1988 Report to Congress.
The list of performance characteristics cited by the commenters is provided in the 1988 Report to Congress within the context of chemical methods, and several of these characteristics are not applicable to biological test methods such as the WET methods that EPA is ratifying today. The 1988 Report to Congress specifically notes that not all such criteria apply to biological testing. The Report explains that the generation of scientifically accurate and valid biological measurements for environmental pollutants requires approximately the same criteria for assessing the adequacy of a method as previously described for chemical analyses, however, there are several differences which are important. Detection limits and dynamic range are specifically listed as characteristics that “are not usually appropriate concepts for all biological measurements unless instrumentation is required.” Because some performance characteristics listed in the 1988 Report to Congress for chemical methods are not applicable to biological test methods, EPA did not (and, in fact, could not) evaluate those inapplicable performance characteristics for WET test method validation.
In ratifying the previously approved WET test methods, EPA applied the availability, adequacy, and comparability criteria identified in the Report as relevant to biological measurements. The WET test methods ratified today are “available” because EPA has identified a sufficient number of laboratories that can conduct the test and culture the test organisms. The ratified WET test methods are “adequate” because the multi-laboratory tests (as well as aggregation of single laboratory tests) demonstrate high degrees of precision; the tests are reproducible. In addition, the manuals identify interferences and ways to control interference. Finally, the test acceptability criteria for control performance and requirements for reference toxicant testing provide sufficient standards to ensure data integrity, absent the “calibration” procedures available with non-living analytical instrumentation.
The Report specifically identified detection limits and dynamic range as performance characteristics that are usually not applicable to biological measurements, and the 1988 conclusions remain true today. In addition, accuracy is a performance characteristic that is not completely applicable to WET testing. Accuracy as a performance characteristic of a measurement system describes the closeness of measured results to a known result. Chemical methods generally measure some surrogate property (
Notwithstanding the previous explanation, one component of accuracy can be described for WET tests. The American Society for Testing and Materials (ASTM) defines accuracy as “a measure of the degree of conformity of a single test result generated by a specific procedure to the assumed or accepted true value and
The additional performance characteristics listed in the 1988 Report to Congress, namely precision, interferences, ruggedness (applicability), reporting, and representativeness, are applicable to biological test methods, and EPA evaluated and considered these characteristics in ratifying the WET test methods. To establish the precision of the methods, EPA conducted an Interlaboratory Variability Study for each of the WET methods ratified today. From the Study, EPA established single-laboratory and multi-laboratory precision estimates for multiple sample matrices for each method (USEPA, 2001a; USEPA, 2001b). EPA also conducted a study of within laboratory precision measured when testing reference toxicants (USEPA, 2000c). In today's action, EPA is modifying the WET method manuals to include this new and updated single-laboratory and multi-laboratory precision data for each method. Precision data from the WET Interlaboratory Variability Study confirmed that the WET test methods provided adequate precision (CVs ranged from 10.5 to 43.8%). The measured precision ranges for the ratified toxicity tests demonstrate the tests are comparable to (no more variable than) chemical analytical methods approved at 40 CFR part 136. Finally, the precision had improved since the time the methods were promulgated in 1995, thus confirming EPA's conclusions that precision would improve with time,
In addition to precision, EPA evaluated and considered the performance characteristic of interferences. Each WET test method contains a section describing possible test interferences. In today's action, EPA has expanded that section to address two additional interference concerns that were raised by stakeholders by including guidance for controlling test interference that could be due to pH drift in the test and interference caused by pathogens.
EPA also evaluated and considered the performance characteristic of ruggedness or applicability. The methods ratified today use materials that are widely available and organisms that can be easily cultured in the laboratory. By conducting a national interlaboratory study of these methods, EPA also confirmed that the methods are adaptable to a wide variety of laboratories and that the methods generate reproducible results in those laboratories. In the WET Interlaboratory Variability Study, EPA documented successful test completion rates of 63.6% to 100% for WET methods. EPA anticipates that method modifications instituted today will improve the successful test completion rate for methods at the bottom of this range, such as the Selenastrum capricornutum Growth Test. Today, EPA is requiring the use of EDTA in this test. As laboratories gain experience in performing the test with EDTA, EPA anticipates that successful test completion rates will improve. See section VI.C.4 of this preamble.
EPA also considered the aspect of result reporting in its development and validation of WET test methods. Each method manual contains a section devoted to test review and reporting. In today's action, EPA has supplemented this section by providing guidance on the review of sampling and handling, test acceptability criteria, test conditions, statistical methods, concentration-response relationships, reference toxicant testing, and test variability. In addition, EPA clarified the required and recommended test conditions when submitting data under NPDES permits.
EPA documented and considered the representativeness or comparability of WET methods. Prior to approving the WET test methods in the 1995 WET final rule, EPA conducted several studies that demonstrated the ability of WET tests to predict impacts of effluents on the biological integrity of receiving waters (USEPA, 1991). In a 1995 workshop of nationally recognized WET experts (the Society of Environmental Toxicology and Chemistry's Pellston Workshop), including those from academia, government, and the regulated community (
Several commenters expressed concern that EPA used data from the Interlaboratory Variability Study that was of poor quality and would have been discarded in a regulatory context. In conducting the WET Interlaboratory Variability Study, EPA's objective was to validate the WET methods as promulgated. EPA was not attempting to validate the diversity of testing requirements that may be implemented in various States. State regulatory authorities retain the discretion to enhance the requirements of a method for implementation in their State as well as to require procedures that EPA otherwise recommends. In the WET Interlaboratory Variability Study, EPA appropriately evaluated data according to the promulgated methods and ASTM guidance for measuring interlaboratory method precision. EPA accurately invalidated tests according to test acceptability criteria specified in each method. EPA acknowledges that the promulgated methods allow flexibility in the review of test conditions. The method manuals state that departures in specified test condition ranges do not necessarily invalidate test results. In today's action EPA modified the methods to better clarify this allowable flexibility. For the purposes of reviewing data submitted under NPDES permits, the manuals now clearly distinguish between requirements of the method and recommended test condition ranges.
Several commenters expressed concern that EPA did not use the results of reference toxicant tests from the WET Interlaboratory Variability Study to qualify or disqualify data. EPA agrees. EPA used reference toxicant tests in the manner in which they are described in the method manuals. Failure of reference toxicant tests do not necessarily invalidate a test. In today's action, EPA has incorporated method modifications to clarify reference toxicant testing requirements and the appropriate use of reference toxicant test data. EPA has clarified that reference toxicant test results should not be used as a de facto criterion for rejection of individual effluent or receiving water tests, but rather, reference toxicant testing is used for evaluating the health and sensitivity of organisms over time and for documenting initial and ongoing laboratory performance.
Several commenters expressed concern that too few data points were used to estimate method performance in the WET Interlaboratory Variability Study. In accordance with ASTM guidance on determining interlaboratory method precision, EPA set a data quality objective of a minimum of six complete and useable data sets for each WET test method evaluated in the Study. To meet this data quality objective, EPA endeavored to sponsor a minimum of nine laboratories per method. For all of the methods that EPA is ratifying today, seven or more laboratories participated in interlaboratory testing. For several individual sample matrices and test method combinations that were tested (blank sample analyzed using the Selenastrum capricornutum Growth Test, receiving water sample analyzed using the Selenastrum capricornutum Growth Test without EDTA, and the receiving water sample analyzed using the Inland Silverside Acute Test), fewer than six useable data sets were obtained. EPA did not, however, establish precision criteria in today's rule based on results from a single sample matrix. EPA tested four sample matrices (blank, reference toxicant, effluent, and receiving water) with each test method, and precision estimates were based on the combined results of reference toxicant, effluent and receiving water testing. Because multiple sample matrices were used to generate precision estimates, more than six useable data sets were used for each method. In fact, at least 17 data sets were used to establish precision estimates for each method.
Several commenters also expressed concern that the selection of laboratories for the WET Interlaboratory Variability Study was biased. EPA disagrees. EPA believes that the laboratories that participated in the WET Interlaboratory Variability Study were representative of the laboratory community that commonly conducts WET testing for permittees. From the outset, EPA and the regulated community wanted to ensure that participants in the Study were representative. Industry trade groups, such as AMSA (Association of Metropolitan Sewerage Agencies), surveyed their member permittees to identify the laboratories that provide their routine WET testing services. AMSA requested that members sponsor those laboratories' participation in the Study. Of the 55 participant laboratories involved in the Study, 44 (or 80%) were specifically recommended by AMSA with commitments from AMSA members to sponsor such laboratories' participation in the Study. Thirty-seven of these laboratories were ultimately sponsored by AMSA members to analyze samples using one or more methods. The remaining seven laboratories had commitments of sponsorship from AMSA members, but were ultimately sponsored by EPA in the Study because their bids were among the nine lowest. The high percentage (80%) of laboratories in the Study that were sponsored by permittees for participation demonstrates that the laboratories involved in the Study are representative of those that commonly conduct WET testing for permittees.
Several commenters expressed concern that a majority of laboratories did not detect toxicity in the reference toxicant sample type distributed for the Ceriodaphnia dubia Survival and Reproduction Test method. Prior to interlaboratory testing in the WET Interlaboratory Variability Study, referee laboratories conducted preliminary testing to determine the appropriate composition of samples to prepare for the Study. This preliminary testing was important for ensuring that test samples prepared for the Study produced results within the test concentration range. Despite these preliminary testing efforts, the spiking level selected for the reference toxicant sample type in the Ceriodaphnia dubia Survival and Reproduction Test method was insufficient to produce the targeted level of effect. The spiking concentration of KCl for this sample was selected to achieve an IC25 of approximately 50% sample based on preliminary testing, but the spiked sample missed this targeted effect level. The prepared sample was only slightly toxic and could not be detected as toxic in 67% of tests. Depending on the sensitivity of test organisms at individual laboratories, some laboratories identified the sample as toxic, while other laboratories did not. Similarly, marginally toxic effluents may exhibit intermittent toxicity in routine monitoring. In such cases, permittees and regulatory authorities should consult EPA guidance that addresses marginal and intermittent toxicity (USEPA, 1991; USEPA, 2000c; USEPA, 2001f).
The reference toxicant sample used in the Study also was prepared as an ampule that was reconstituted at each participant laboratory. This reconstitution process also likely produced minor variations (from laboratory to laboratory) in the final sample composition that influenced whether toxicity was detected. While the concentration of potassium ions was not measured in each final reconstituted
Several commenters also expressed concern over the way EPA handled outlier data points in the WET Interlaboratory Variability Study. EPA believes that outliers were treated according to standard practice and according to ASTM standards for measuring method precision. EPA identified outliers using ASTM's h and k statistics, and discarded outliers only when a probable cause for the outlier was identified. In all, only eight tests in the entire study of 698 tests were excluded based on outlier analysis.
Several commenters stated that the variability of the WET methods (measured in terms of CV) is too high for use in NPDES permits. Commenters also recommended that specific steps be taken to account for variability in the permit limit derivation and compliance determination process. EPA believes that the WET Interlaboratory Variability Study accurately estimated the precision of WET test methods, and that this precision is adequate for regulatory use of the WET methods. The precision measured for the WET test methods is comparable to that of chemical methods. While EPA agrees with commenters that WET test methods cannot be compared in all aspects to chemical methods, the comparison of interlaboratory precision values does demonstrate that WET test methods are no more variable than other methods approved at 40 CFR part 136 and used for regulatory compliance purposes.
In a recent peer-reviewed guidance document (USEPA, 2000c), EPA thoroughly evaluated the issue of WET test method variability and accounting for such variability in NPDES applications. The document concluded that “comparisons of WET method precision with method precision for analytes commonly limited in NPDES permits clearly demonstrate that the variability of the promulgated WET methods is within the range of variability experienced in other types of [required regulatory] analyses.” The analytical variability of WET test methods is accounted for appropriately in the development of permit limits derived according to EPA's Technical Support Document (TSD) (USEPA, 1991). The TSD approach accounts for both effluent variability and method variability. The TSD statistical approach to determination of reasonable potential and permit limit derivation considers combined effluent and analytical variability through the CV of measured effluent values. Because the determination of effluent variability is based on empirical measurements, the variability estimated for effluent measurements includes the variability of pollutant levels, sampling variability, and a smaller component owed to method variability.
EPA does not recommend additional approaches or factors to account for variability, because the TSD approach appropriately accounts for method variability in the permit derivation process. In the guidance document, EPA evaluated additional approaches to account for variability in the permit derivation process and concluded that such approaches would not ensure adequate protection of water quality. The TSD approach was designed to provide a reasonable degree of protection for water quality as well as from effluent and analytical variability. Alternative approaches would undermine these objectives.
Some commenters expressed specific concern that the Selenastrum capricornutum Growth Test method was too variable. EPA believes that the variability of the Selenastrum capricornutum Growth Test method, as measured in the WET Interlaboratory Variability Study (USEPA, 2001a) and variability guidance document (USEPA, 2000c), is acceptable for the intended regulatory use of the methods. EPA observed in the WET Interlaboratory Variability Study that the variability of the Selenastrum capricornutum Growth Test method was lower when the method was conducted with the addition of EDTA. In today's action, EPA is removing the option to conduct the test without the addition of EDTA when data is submitted under NPDES permits. EPA believes that this modification will improve the overall performance of the test method. False positive rates decreased from 33.3% to 0.00% and interlaboratory variability decreased from 58.5% to 34.3% when EDTA was added. EPA cautions, however, that the required addition of EDTA may make the Selenastrum capricornutum Growth Test less sensitive, thus less useful, for measuring the toxicity of some test samples, specifically, samples that contain toxic levels of metals.
Some commenters stated that EPA incorrectly calculated successful test completion rates in the WET Interlaboratory Variability Study by failing to invalidate tests that did not meet specific test condition ranges. As previously discussed (see section VI.C.2 of this preamble), EPA accurately invalidated tests according to the test acceptability criteria specific to each method, and successful test completion rates were based on meeting these criteria. EPA acknowledges that the promulgated methods allow flexibility in the review of test conditions. The method manuals state that departures in specified test condition ranges do not necessarily invalidate test results. In today's action EPA has modified the methods to better clarify this allowable flexibility. For the purposes of reviewing data submitted under NPDES permits, the manuals now clearly distinguish between requirements of the method and recommended test condition ranges.
Several commenters stated that the successful test completion rate measured for the Ceriodaphnia dubia Survival and Reproduction Test method was unacceptable and indicates a lack of ruggedness. EPA believes that the successful test completion rate observed for the Ceriodaphnia dubia Survival and Reproduction Test method in the WET Interlaboratory Variability Study was artificially suppressed by very poor performance in a small subset of laboratories. Only ten of the 34 participant laboratories performed invalid tests, but eight of these laboratories performed invalid tests on 50% or more of the samples tested. The low rate of successful test completion in these eight laboratories may have been influenced by the Study's strict testing schedule, which required that each test be conducted on a given day and that all tests be conducted within a 15-day time period. When invalid tests conducted in a given laboratory were likely due to marginal or poor health of the test organism cultures, then it was logical that the laboratory would fail a high percentage of tests during the Study because culture health was unlikely to fully recover within 15 days. EPA believes that measuring an individual laboratory's rate of successful test completion over a 15-day period may not be representative of that laboratory's overall successful test completion rate. For instance, several laboratories had successful test completion rates of 0% during the WET
Some commenters expressed concern that the successful test completion rate for the Selenastrum capricornutum Growth Test method was too low. In today's action, EPA is removing the option to conduct the test without the addition of EDTA. EPA believes that this modification will improve successful test completion rates for the method as laboratories consistently culture and test with EDTA. The successful test completion rate of 63.6% (when conducted with EDTA) was in part due to laboratory inexperience in using both the with and without-EDTA techniques. For example, two laboratories that cultured organisms without EDTA and generally conducted tests without EDTA showed poor successful test completion rates (failing eight of eight tests) when EDTA was used. These laboratories failed all eight tests conducted with EDTA and passed all but one test (seven of eight) without EDTA. Commenters point out that laboratories were prequalified for participation in the WET Interlaboratory Variability Study, but this prequalification required only experience with the method, not experience with both the with and without-EDTA procedures of the method. Some laboratories cultured organisms and typically conducted tests with EDTA, and other laboratories cultured organisms and typically conducted tests without EDTA.
Several comments stated that EPA underestimated the false positive rates measured in the WET Interlaboratory Variability Study and that the measured rates are unacceptably high for regulatory use. In the context of WET methods, the false positive rate is the rate at which tests conducted on non-toxic dilution waters indicate the presence of toxicity (
The WET Interlaboratory Variability Study conclusively demonstrated that the false positive rate of WET methods is at or below the level expected for the methods. While this rate is low (below 5%), false positives do occur. EPA accounts for this possibility in the compliance and enforcement guidance. EPA policy states that “EPA does not recommend that the initial response to a single exceedance of a WET limit, causing no known harm, be a formal enforcement action with a civil penalty” (USEPA, 1995a). EPA policy suggests additional testing is an appropriate initial response to a single WET limit exceedance.
Several commenters expressed concern that WET tests do not have method detection limits as contained in chemical methods to protect from reporting false positive results. As previously discussed (see section VI.C.1 of this preamble), method detection limit concepts are not applicable to WET test methods and have not been applied historically to toxicity testing methods developed by EPA or by voluntary consensus standards bodies.
EPA established the method detection limit (MDL) concept specifically for chemical methods, where results generally consist of a single measurement of the pollutant of interest by an analytical instrument. The MDL concept uses information about the variability of the measurement system to determine a response level at which the measurement can be reliably distinguished from background “noise,” thus providing protection from false positive results. In WET testing, the final result is not based on a single measurement, but is the product of a series of replicated measurements on a range of effluent concentrations. The additional measurements, controls, replication, and statistical approaches included in the WET test method “measurement system” ensure that measured responses can be reliably distinguished from background noise.
While results from chemical methods may rely on a single instrument measurement, each WET test is designed as an experiment. WET tests contain at least six treatments, each replicated from four to ten times. Measurements are made on each replicate of each treatment, so that results reflect average responses and the variability of those responses can be estimated. Each test also includes a control treatment, which is also replicated. This control treatment provides a measure of the background response and the “noise” or variability associated with that response.
The control response is then compared to the response in effluent treatments using statistical methods to test the hypothesis that treatments containing effluent are not significantly different from the control treatment. If this hypothesis is rejected (considering the measured background or control responses, the treatment responses, and the variability associated with those responses), then the effluent is considered toxic. Hypothesis testing techniques provide protection from false positive results by specifically setting the Type I error rate allowed in rejecting the null hypothesis. Point estimation techniques use regression analysis to determine the effluent concentration that produces a specified level of response (
Some commenters commented on issues specifically related to the implementation of WET permits, such as reasonable potential determinations, independent applicability of WET limits, discharge monitoring report certifications, and use of WET methods in NPDES permits. Many such comments are beyond the scope of this rulemaking. In the proposed rulemaking, EPA invited comments “only on the conduct of WET test methods and not on the implementation of WET control strategies through NPDES permits.” EPA recognizes that NPDES permittees have continuing
Under Executive Order 12866 (58 FR 51735; October 4, 1993), the Agency must determine whether the regulatory action is “significant” and therefore subject to Office of Management and Budget (OMB) review and the requirements of the Executive Order. The Executive Order defines “significant regulatory action” as one that is likely to result in a rule that may:
(1) Have an annual effect on the economy of $100 million or more, or adversely affect in a material way the economy, a sector 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.
It has been determined that this rule is not a “significant regulatory action” under the terms of Executive Order 12866 and is therefore not subject to OMB review.
This action does not impose an information collection burden under the provisions of the
Burden means the total time, effort, or financial resources expended by persons to generate, maintain, retain, or disclose or provide information to or for a Federal agency. This includes the time needed to review instructions; develop, acquire, install, and utilize technology and systems for the purposes of collecting, validating, and verifying information, processing and maintaining information, and disclosing and providing information; adjust the existing ways to comply with any previously applicable instructions and requirements; train personnel to be able to respond to a collection of information; search data sources; complete and review the collection of information; and transmit or otherwise disclose the information.
An Agency may not conduct or sponsor, and a person is not required to respond to a collection of information unless it displays a currently valid OMB control number. The OMB control numbers for EPA's regulations are listed in 40 CFR part 9 and 48 CFR chapter 15.
The Regulatory Flexibility Act (RFA) generally requires an agency to prepare a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements under the Administrative Procedure Act or any other statute unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small organizations, and small governmental jurisdictions.
For purposes of assessing the impacts of today's rule on small entities, small entity is defined as: (1) A small business as defined by the U.S. Small Business Administration definitions at 13 CFR 121.201; (2) a small governmental jurisdiction that is a government of a city, county, town, school district or special district with a population of less that 50,000; and (3) a small organization that is any not-for-profit enterprise which is independently owned and operated and is not dominant in its field.
After considering the economic impacts of today's final rule on small entities, I certify that this action will not have a significant economic impact on a substantial number of small entities. Today's rule revises and ratifies EPA WET test methods currently approved for use at 40 CFR part 136. Overall, the costs of these revisions are minimal. While some of the revisions may increase costs (
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public Law 104-4, establishes requirements for Federal agencies to assess the effects of their regulatory actions on State, Tribal, and local governments and the private sector. Under section 202 of the UMRA, EPA generally must prepare a written statement, including a cost-benefit analysis, for proposed and final rules with “Federal mandates” that may result in expenditures to State, Tribal, and local governments, in the aggregate, or to the private sector, of $100 million or more in any one year. Before promulgating an EPA rule for which a written statement is needed, section 205 of the UMRA generally requires EPA to identify and consider a reasonable number of regulatory alternatives and adopt the least costly, most cost-
Before EPA establishes any regulatory requirements that may significantly or uniquely affect small governments, including Tribal governments, it must have developed under section 203 of the UMRA a small government agency plan. The plan must provide for the notification of potentially affected small governments, enabling officials of affected small governments to have meaningful and timely input in the development of EPA regulatory proposals with significant Federal intergovernmental mandates, and informing, educating, and advising small governments on compliance with the regulatory requirements.
EPA has determined that today's rule does not contain a Federal mandate that may result in expenditures of $100 million or more for State, Tribal, and local governments, in the aggregate, or the private sector in any one year. This rule promulgates revisions to WET test methods that are currently approved for use in NPDES permits and certification of Federal licenses under the CWA. The revisions are minor and the cost to implement them is minimal. Thus, today's rule is not subject to sections 202 and 205 of the UMRA. For the same reasons, EPA has also determined that this rule contains no regulatory requirements that might significantly or uniquely affect small governments. Thus, today's rule also is not subject to the requirements of section 203 of the UMRA.
Executive Order 13132, entitled “Federalism” (64 FR 43255; August 10, 1999), requires EPA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” is defined in the Executive Order to include regulations that have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.”
This final rule does not have federalism implications. It will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132. Today's rule promulgates revisions to WET test methods that are currently approved for use in NPDES permits and certification of Federal licenses under the CWA. The revisions are minor and the cost to implement them is minimal. Thus, Executive Order 13132 does not apply to this rule.
Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249; November 9, 2000), requires EPA to develop an accountable process to ensure “meaningful and timely input by Tribal officials in the development of regulatory policies that have Tribal implications.” “Policies that have Tribal implications” is defined in the Executive Order to include regulations that have “substantial direct effects on one or more Indian Tribes, on the relationship between the Federal government and the Indian Tribes or on the distribution of power and responsibilities between the Federal government and Indian Tribes.”
This final rule does not have Tribal implications. It will not have substantial direct effects on Tribal governments, on the relationship between the Federal government and Indian Tribes, or on the distribution of power and responsibilities between the Federal government and Indian Tribes, as specified in Executive Order 13175. Today's rule promulgates revisions to WET test methods that are currently approved for use in NPDES permits and certification of Federal licenses under the CWA. The revisions are minor and the cost to implement them is minimal. Thus, Executive Order 13175 does not apply to this rule.
Executive Order 13045 (62 FR 19885; April 23, 1997) applies to any rule that: (1) is determined to be “economically significant” as defined under Executive Order 12866, and (2) concerns an environmental health or safety risk that EPA has reason to believe may have a disproportionate effect on children. If the regulatory action meets both criteria, the Agency must evaluate the environmental health or safety effects of the planned rule on children, and explain why the planned regulation is preferable to other potentially effective and reasonably feasible alternatives considered by the Agency. This rule is not subject to the Executive Order because it is neither “economically significant” as defined in Executive Order 12866, nor does it concern an environmental health or safety risk that EPA has reason to believe may have a disproportionate effect on children.
This rule is not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355; May 22, 2001) because it is not a significant regulatory action under Executive Order 12866.
Section 12(d) of the National Technology Transfer and Advancement Act of 1995, (“NTTAA”), Public Law 104-113, section 12(d) (15 U.S.C. 272 note), directs EPA to use voluntary consensus standards in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (
This rulemaking would revise existing EPA WET test methods. For the methods that EPA is revising, the Agency did not conduct a search to identify potentially applicable voluntary consensus standards, because the revisions EPA is promulgating today would merely incorporate more specificity and detail into currently approved EPA test methods. EPA did, however, consult available voluntary consensus standards, such as ASTM standards, for guidance in conducting the Interlaboratory Variability Study and in defining certain performance characteristics of the methods.
The Congressional Review Act, 5 U.S.C. 801
American Society for Testing and Materials. 1998. Standard Practice for Determination of Precision and Bias of Applicable Test Methods of Committee D-19 on Water. D 2777-98. American Society for Testing and Materials, Philadelphia, PA.
DeGraeve, G.M., G.J. Smith, W.H. Clement, D.O. McIntyre, and T. Forgette. 1998. WET Testing Program: Evaluation of Practices and Implementation. Project 94-HHE-1. Water Environment Research Foundation, Alexandria, VA.
National Environmental Laboratory Accreditation Conference, 2001. Quality Systems. National Environmental Laboratory Accreditation Conference.
U.S. Environmental Protection Agency. 1988. Availability, Adequacy, and Comparability of Testing Procedures for the Analysis of Pollutants Established Under Section 304(h) of the Federal Water Pollution Control Act; Report to Congress. EPA/600/9-87/030. U.S. Environmental Protection Agency, Environmental Monitoring Systems Laboratory, Cincinnati, OH.
U.S. Environmental Protection Agency. 1991. Technical Support Document for Water Quality-Based Toxics Control. EPA/505/2-90/001. U.S. Environmental Protection Agency, Office of Water Enforcement and Permits, and Office of Water Regulations and Standards, Washington, DC.
U.S. Environmental Protection Agency. 1993. Methods for Measuring the Acute Toxicity of Effluents and Receiving Waters to Freshwater and Marine Organisms, 4th ed. EPA/600/4-90/027F. U.S. Environmental Protection Agency, Environmental Monitoring Systems Laboratory, Cincinnati, OH.
U.S. Environmental Protection Agency. 1994a. Short-term Methods for Estimating the Chronic Toxicity of Effluents and Receiving Waters to Freshwater Organisms, 3rd ed. EPA/600/4-91/002. U.S. Environmental Protection Agency, Environmental Monitoring Systems Laboratory, Cincinnati, OH.
U.S. Environmental Protection Agency. 1994b. Short-term Methods for Estimating the Chronic Toxicity of Effluents and Receiving Waters to Marine and Estuarine Organisms, 2nd ed. EPA/600/4-91/003. U.S. Environmental Protection Agency, Environmental Monitoring Systems Laboratory, Cincinnati, OH.
U.S. Environmental Protection Agency. 1995a. National Policy Regarding Whole Effluent Toxicity Enforcement, July 6, 1995, memorandum from Brian Maas, U.S. Environmental Protection Agency, Office of Enforcement and Compliance Assurance, Washington DC.
U.S. Environmental Protection Agency. 1995b. Short-term Methods for Estimating the Chronic Toxicity of Effluents and Receiving Waters to West Coast Marine and Estuarine Organisms, 1st ed. EPA/600/R-95/136. U.S. Environmental Protection Agency, National Exposure Research Laboratory, Cincinnati, OH.
U.S. Environmental Protection Agency. 1995c. Whole effluent toxicity: guidelines establishing test procedures for the analysis of pollutants, final rule. 60 FR 53529-53563.
U.S. Environmental Protection Agency. 1999. Whole effluent toxicity: guidelines establishing test procedures for the analysis of pollutants, whole effluent toxicity tests; final rule, technical correction. 64 FR 4975-4991.
U.S. Environmental Protection Agency. 2000a. Method Guidance and Recommendations for Whole Effluent Toxicity (WET) Testing (40 CFR Part 136). EPA/821/B-00/004. U.S. Environmental Protection Agency, Office of Water, Washington, DC.
U.S. Environmental Protection Agency. 2000b. Notice of availability, “Understanding and accounting for method variability in WET applications under the NPDES program.” 65 FR 44528-44529.
U.S. Environmental Protection Agency. 2000c. Understanding and Accounting for Method Variability in Whole Effluent Toxicity Applications Under the National Pollutant Discharge Elimination System Program. EPA/833/R-00/003. U.S. Environmental Protection Agency, Office of Wastewater Management, Washington, DC.
U.S. Environmental Protection Agency. 2000d. Whole effluent toxicity test methods guidance; notice of availability. 65 FR 46457-46458.
U.S. Environmental Protection Agency. 2001a. Final Report: Interlaboratory Variability Study of EPA Short-term Chronic and Acute Whole Effluent Toxicity Test Methods, Vol. 1. EPA /821/B-01/004. U.S. Environmental Protection Agency, Office of Water, Washington, DC.
U.S. Environmental Protection Agency. 2001b. Final Report: Interlaboratory Variability Study of EPA Short-term Chronic and Acute Whole Effluent Toxicity Test Methods, Vol. 2: Appendix. EPA/821/B-01-005. U.S. Environmental Protection Agency, Office of Water, Washington, DC.
U.S. Environmental Protection Agency. 2001c. Guidelines establishing test procedures for the analysis of pollutants; whole effluent toxicity test methods; proposed rule. 66 FR 49794-49816.
U.S. Environmental Protection Agency. 2001d. Guidelines establishing test procedures for the analysis of pollutants; whole effluent toxicity test methods; extension of comment period. 66 FR 58693-58694.
U.S. Environmental Protection Agency. 2001e. Proposed Changes to Whole Effluent Toxicity Method Manuals. EPA/821/B-01/002. U.S. Environmental Protection Agency, Office of Water, Washington, DC.
U.S. Environmental Protection Agency. 2001f. Clarifications Regarding Toxicity Reduction and Identification Evaluations in the National Pollutant Discharge Elimination System Program. U.S. Environmental Protection Agency, Office of Water, Washington, DC.
U.S. Environmental Protection Agency. 2002. Cost Estimate for Required Method Modifications in EPA's WET Final Rule, October 16, 2002, memorandum from Marion Kelly, U.S. Environmental Protection Agency, Office of Water, Office of Science and Technology, Washington, DC.
Waller, T.W., L.P. Ammann, W.J. Birge, K.L. Dickson, P.B. Dorn, N.E. LeBlanc, D.I. Mount, B.R. Parkhurst, H.R. Preston, S.C. Schimmel, A. Spacie, and G.B. Thursby. 1996. Discussion synopsis, predicting instream effects from WET tests. Chapter 9 In: Whole Effluent Toxicity Testing: An Evaluation of Methods and Prediction of Receiving System Impacts. D.R. Grothe, K.L. Dickson, and D.K. Reed-Judkins, eds., SETAC Press, Pensacola, FL, pp. 271-286.
Environmental protection, Incorporation by reference, Reporting and recordkeeping requirements, Water pollution control.
Secs. 301, 304(h), 307, and 501(a), Pub. L. 95-217, 91 Stat. 1566,
(a) * * *
(b) * * *
(34) USEPA. October 2002. Methods for Measuring the Acute Toxicity of Effluents and Receiving Waters to Freshwater and Marine Organisms. Fifth Edition. U.S. Environmental Protection Agency, Office of Water, Washington, D.C. EPA 821-R-02-012. Available from: National Technical Information Service, 5285 Port Royal Road, Springfield, Virginia 22161, Publ. No. PB2002-108488. Table IA, Note 7.
(38) USEPA. October 2002. Short-Term Methods for Estimating the Chronic Toxicity of Effluents and Receiving Waters to Freshwater Organisms. Fourth Edition. U.S. Environmental Protection Agency, Office of Water, Washington, D.C. EPA 821-R-02-013. Available from: National Technical Information Service, 5285 Port Royal Road, Springfield, Virginia 22161, Publ. No. PB2002-108489. Table IA, Note 8.
(39) USEPA. October 2002. Short-Term Methods for Estimating the Chronic Toxicity of Effluents and Receiving Waters to Marine and Estuarine Organisms. Third Edition. U.S. Environmental Protection Agency, Office of Water, Washington, D.C. EPA 821-R-02-014. Available from: National Technical Information Service, 5285 Port Royal Road, Springfield, Virginia 22161, Publ. No. PB2002-108490. Table IA, Note 9.
(42) [RESERVED]
Securities and Exchange Commission
Final rule.
The Securities and Exchange Commission is adopting amendments to the registration form for insurance company separate accounts that are registered as unit investment trusts and that offer variable annuity contracts. The amendments revise the format of the fee table to require disclosure of the range of total expenses for all of the mutual funds offered through the separate account, rather than disclosure of the expenses of each fund. In addition, the Commission is amending the fee table of the registration form for variable life insurance policies to require disclosure of the range of total expenses of all of the mutual funds offered, consistent with the amendments to the fee table of the registration form for variable annuities.
1.
2.
Katy Mobedshahi, Senior Counsel, (202) 942-0721, Office of Disclosure Regulation, Division of Investment Management, Securities and Exchange Commission, 450 Fifth Street, NW, Washington, DC 20549-0506.
The Securities and Exchange Commission (“Commission”) is adopting amendments to Form N-4 [17 CFR 239.17b; 17 CFR 274.11c], the form used by separate accounts organized as unit investment trusts and offering variable annuity contracts to register under the Investment Company Act of 1940 [15 U.S.C. 80a-1
Form N-4 is the registration form used by insurance company separate accounts organized as unit investment trusts that offer variable annuity contracts to register under the Investment Company Act and to register their securities under the Securities Act. Form N-4 requires that a prospectus for a variable annuity contract include a fee table, similar to the fee table required by Form N-1A for mutual funds.
Today, the Commission is adopting amendments that will require that the fee table of Form N-4 disclose the range of expenses for the Portfolio Companies offered through the separate account, rather than the expenses of each Portfolio Company. As we stated in the release proposing these amendments (“Proposing Release”), we believe that the use of a range of Portfolio Company expenses is warranted in order to simplify fee tables for variable annuity contracts, which have grown longer and more complex.
We received four comment letters on the proposed amendments.
We continue to believe that our approach will assist investors in understanding the fees and charges that they will pay for a variable annuity contract. The amendments will streamline the fee table in the contract prospectus and make it more understandable, while at the same time investors will continue to have access to information about the fees and expenses of each Portfolio Company. We recently amended Form N-1A, the form used by mutual funds to register under the Investment Company Act and to offer their securities under the Securities Act, to require that every mutual fund that offers its shares as an investment option for a variable annuity contract include a fee table in its prospectus.
We note, further, that the amendments we are adopting to Form N-4 will permit registrants to continue to include disclosure of the fees and expenses for each Portfolio Company in the fee table of Form N-4, in addition to the required disclosure of the range of expenses for the Portfolio Companies. This approach will provide registrants with the flexibility to include this detailed information when they determine that it would be helpful, and not overwhelming, to investors.
We are, however, modifying our proposal to require disclosure of the range of total Portfolio Company expenses.
We are also amending Form N-6, the registration form for insurance company separate accounts that are registered as unit investment trusts and that offer variable life insurance policies, to require disclosure of the range of total expenses for all the Portfolio Companies, rather than line item disclosure of the range of each category of expenses.
We are adopting other amendments to the format and instructions for the fee table of Form N-4 substantially as proposed, with minor changes to address commenters' suggestions.
In response to a commenter's suggestion, we are modifying the Instructions to the expense example of Item 3(a) regarding conversion of annual contract fees to a percentage basis by providing that the total amount of the contract fees collected during the year should be divided by the total average net assets for the contract (which includes both general account and separate account assets), rather than only separate account assets, as we had proposed and as the instructions to Item
In addition, in response to a commenter's suggestion, we are revising the narrative that would be required to precede the expense example, to clarify that expenses reflected in the example include separate account fees and charges, as well as the maximum expenses charged by any of the Portfolio Companies.
The effective date of these amendments is December 23, 2002. All new registration statements, and post-effective amendments that are annual updates to effective registration statements, filed on Form N-4 or N-6 on or after January 1, 2003, must comply with these amendments. The final compliance date for filing amendments to effective registration statements to conform to these amendments is January 1, 2004. A registrant may, at its option, comply with the requirements of these amendments to Forms N-4 and N-6 at any time after the effective date.
As noted above, the Commission recently amended Form N-1A, the registration form for mutual funds, to require a Portfolio Company that offers its shares exclusively as investment options for variable annuity contracts and variable life insurance policies to include a fee table in its prospectus.
The Commission is sensitive to the costs and benefits imposed by its rules on affected persons and entities. In the Proposing Release, we requested comment and specific data regarding the costs and benefits of the proposed amendments, but received none.
Form N-4 is the registration form used by insurance company separate accounts organized as unit investment trusts that offer variable annuity contracts to register under the Investment Company Act and to register their securities under the Securities Act.
The amendments will also make other technical changes conforming the format and the instructions for the fee table of Form N-4 more closely to the fee tables in Forms N-6 and N-1A, and for purposes of consistency with the disclosure of the range of Portfolio Company expenses, as described in the Proposing Release. These changes will improve transparency of fee disclosure. These amendments, discussed in more detail in the Proposing Release, include the following:
• Revising the expense example in the fee table to require only an example based on the maximum expenses charged by any Portfolio Company.
• Making other modifications to the format of the example.
• Prescribing narrative explanations to precede each section of the fee table.
• Adding an instruction requiring disclosure of all recurring fees and charges other than Portfolio Company operating expenses.
We believe that the amendments adopted today to Form N-4 will benefit investors by making the variable annuity prospectus easier for investors to understand. As noted above, disclosure of a range of Portfolio Company expenses should make fee tables for variable annuity contracts, which have grown increasingly longer and more complex in recent years, shorter and more comprehensible. Investors will continue to have access to information about the fees and expenses of each Portfolio Company in the prospectus for the Portfolio Company. The amendments will also modify the expense example of the Form N-4 fee table, consistent with the use of the range of Portfolio Company expenses in the fee table.
The amendments will make technical changes to the format and instructions of the fee table of Form N-4, in order to improve transparency of the fees and
The amendments may also result in slightly reduced printing and mailing costs to registrants. Disclosure of the range of Portfolio Company expenses rather than the expenses of each Portfolio Company may shorten the typical variable annuity prospectus, because disclosure of these expenses sometimes comprises a full page, or more, of a variable annuity prospectus.
In addition, conforming the disclosure requirements for Portfolio Company expenses in variable annuity prospectuses to those in variable life prospectuses may simplify the process of preparing registration statements for some registrants, because frequently insurance companies that issue variable annuities also issue variable life insurance.
Finally, the conforming amendments we are adopting to the fee table of Form N-6 will reduce the potential for confusion to investors that may occur if the disclosure of the range of minimum and maximum expenses for each category of Portfolio Company operating expenses results in two columns that do not add up to the range of minimum and maximum total operating expenses. This change will streamline the Form N-6 fee table, while continuing to ensure that investors have access to fee information about the Portfolio Companies in which they invest.
Although the amendments to the fee table of Form N-4 are limited and many of them are technical in nature, they differ from the current requirements of the fee table of Form N-4, which have been in place since 1989. Therefore, variable annuity issuers may incur a one-time cost for training in order for their personnel, particularly lawyers and others who are responsible for supervising the preparation of filings on Form N-4, to review and analyze the disclosure requirements of the amendments to Form N-4. Because the amendments will make mostly minor changes to the current format of the Form N-4 fee table, and will not require the disclosure of information that the current fee table does not require, we estimate that this cost will be fairly small. We lack data necessary to make a more precise estimate of the cost resulting from the amendments, but we estimate that this cost will be approximately $500 for each insurance company that sponsors separate accounts that are registered on Form N-4 and issue variable annuity contracts that are actively being sold. Further, we estimate that there are 94 such insurance companies.
We do not expect that the amendments to Form N-4 will result in any net effect on the aggregate hour burden for completing and filing Form N-4. We expect that in preparing their fee tables for Form N-4, registrants will still need to collect information about the expenses for each Portfolio Company offered through the contract, in order to determine the minimum and maximum total operating expenses of the Portfolio Companies offered through the contract. We also expect that the other proposed amendments modifying the format and instructions of the Form N-4 fee table to conform more closely to the Form N-6 fee table will have no net effect on the burden hours for completing and filing Form N-4, because they will not require disclosure of any additional information by issuers.
Finally, we do not anticipate that the conforming changes we are making to the fee table of Form N-6 will result in any increased costs to issuers or investors. Issuers will be required to disclose only the range of total Portfolio Company operating expenses, rather than the range of each category of expenses as well as the range of total expenses. In addition, issuers have only recently begun using new Form N-6, or have not yet begun doing so. Therefore, any cost for training personnel to apply the amendment to the fee table of Form N-6 may be incorporated in the overall cost for training personnel in the disclosure requirements of Form N-6 as a whole.
Section 2(c) of the Investment Company Act, section 2(b) of the Securities Act, and section 3(f) of the Securities Exchange Act of 1934 require the Commission, when engaging in rulemaking that requires it to consider or determine whether an action is consistent with the public interest, to consider, in addition to the protection of investors, whether the action will promote efficiency, competition, and capital formation.
The amendments to Form N-4 and Form N-6 are expected to have minimal effects on efficiency and competition among issuers of variable insurance products. As adopted, the amendments will revise the fee table in the prospectus of Form N-4 to require registrants to disclose the range of expenses for all the Portfolio Companies offered through the separate account, rather than disclosing separately the
As explained in the Proposing Release, certain provisions of Form N-4 contain “collection of information” requirements within the meaning of the Paperwork Reduction Act of 1995 [44 U.S.C. 3501
We published a notice soliciting comments on the collection of information requirements of Form N-4 in the Proposing Release. The Commission did not receive any comments on the Paperwork Reduction Act portion of the Proposing Release.
Form N-4 (OMB Control No. 3235-0318) was adopted pursuant to section 8(a) of the Investment Company Act [15 U.S.C. 80a-8] and section 5 of the Securities Act [15 U.S.C. 77e].
The Commission proposed to amend Form N-4 to conform the disclosure of Portfolio Company expenses in the fee table to the format used in Form N-6, the registration form for insurance company separate accounts registered as unit investment trusts that offer variable life insurance policies. Under the proposed amendments, registrants on Form N-4 will be required to disclose only the range of the expenses for all of the Portfolio Companies in which the separate account invests. Variable annuity investors will continue to have access to complete information about the Portfolio Company fees and expenses because disclosure of the fees and expenses for each Portfolio Company will be included in its prospectus under the requirements of Form N-1A. The amendments will also make other technical changes in order to conform the format and instructions for the fee table of Form N-4 to its counterparts in Form N-6 and Form N-1A.
We do not expect that the amendments to Form N-4 will result in any net effect on the aggregate hour burden for completing and filing Form N-4, and therefore the amendments to Form N-4 will not impose any additional collection of information on registrants. We expect that in preparing their fee tables for Form N-4, registrants will still need to collect information about the total operating expenses for each Portfolio Company offered through the contract, in order to determine the minimum and maximum expenses of the Portfolio Companies. We also expect that the other amendments modifying the format of the Form N-4 fee table to conform more closely to the fee tables of Forms N-6 and N-1A will have no net effect on the burden hours for completing and filing Form N-4, because they will not require any additional information to be disclosed.
In addition, we expect that the conforming amendments we are adopting to Form N-6, the registration form for insurance company separate accounts that are registered as unit investment trusts and that offer variable life insurance policies, requiring disclosure of only the range of total expenses for all of the Portfolio Companies offered through the separate account rather than line item disclosure of the range of each category of expenses as well as the range of total expenses, will have no effect on the burden of completing Form N-6. Form N-6 already requires variable life insurance issuers to calculate the range of total expenses for each Portfolio Company offered through a variable life insurance policy, and therefore the amendments will not impose any additional costs on issuers.
Pursuant to Section 605(b) of the Regulatory Flexibility Act [5 U.S.C. 605(b)], the Chairman of the Commission has certified that the proposed amendments to Form N-4 would not, if adopted, have a significant economic impact on a substantial number of small entities. The initial certification was attached to the Proposing Release as Appendix A. We requested comments on the certification, but received none.
Pursuant to Section 605(b) of the Regulatory Flexibility Act [5 U.S.C. 605(b)], the Commission certifies that the amendments to Form N-6 adopted as part of this Adopting Release will not have a significant economic impact on a substantial number of small entities. The amendments will revise the fee table of Form N-6 to require only disclosure of the range of total expenses for all of the Portfolio Companies offered through a variable life insurance policy, rather than line item disclosure of the range of each category of expenses as well as the range of total expenses. The economic impact of the amendments will not be significant. Form N-6 already requires variable life insurance issuers to calculate the range of total expenses for each Portfolio Company offered through a variable life insurance policy, and therefore the amendments will not impose any additional costs on issuers.
The amendments to Form N-4 and Form N-6 are being adopted pursuant to sections 5, 7, 8, 10, and 19(a) of the Securities Act [15 U.S.C. 77e, 77g, 77h, 77j, and 77s(a)] and sections 8, 24, 30, and 38 of the Investment Company Act [15 U.S.C. 80a-8, 80a-24, 80a-29, and 80a-37].
Reporting and recordkeeping requirements, Securities.
Investment companies, Reporting and recordkeeping requirements, Securities.
15 U.S.C. 77f, 77g, 77h, 77j, 77s, 77z-2, 77sss, 78c, 78l, 78m, 78n, 78o(d), 78u-5, 78w(a), 78ll(d), 79e, 79f, 79g, 79j, 79l, 79m, 79n, 79q, 79t, 80a-8, 80a-24, 80a-26, 80a-29, 80a-30, and 80a-37, unless otherwise noted.
15 U.S.C. 77f, 77g, 77h, 77j, 77s, 78c(b), 78l, 78m, 78n, 78o(d), 80a-8, 80a-24, 80a-26, and 80a-29, unless otherwise noted.
Section 274.101 is also issued under secs. 3(a) and 302, Pub. L. 107-204, 116 Stat. 745.
3. Form N-4 (referenced in §§ 239.17b and 274.11c), Item 3(a), is amended by:
a. Revising Item 3(a);
b. Revising Instructions: General Instructions 1, 3, and 5;
c. Removing the heading “Portfolio Company Annual Expenses” preceding Instruction 15;
d. Removing Instructions 16 through 21;
e. Redesignating Instruction 15 as Instruction 16;
f. Adding new Instruction 15;
g. Adding the heading “Annual [Portfolio Company] Operating Expenses” to precede newly redesignated Instruction 16; and
h. Adding new Instructions 17 through 22.
The additions and revisions read as follows:
The text of Form N-4 does not and these amendments will not appear in the
(a) Include the following information, in plain English under rule 421(d) under the Securities Act [17 CFR 430.421(d)]:
The following tables describe the fees and expenses that you will pay when buying, owning, and surrendering the contract. The first table describes the fees and expenses that you will pay at the time that you buy the contract, surrender the contract, or transfer cash value between investment options. State premium taxes may also be deducted.
The next table describes the fees and expenses that you will pay periodically during the time that you own the contract, not including [portfolio company] fees and expenses.
The next item shows the minimum and maximum total operating expenses charged by the portfolio companies that you may pay periodically during the time that you own the contract. More detail concerning each [portfolio company's] fees and expenses is contained in the prospectus for each [portfolio company].
This Example is intended to help you compare the cost of investing in the contract with the cost of investing in other variable annuity contracts. These costs include contract owner transaction expenses, contract fees, separate account annual expenses, and [portfolio company] fees and expenses.
The Example assumes that you invest $10,000 in the contract for the time periods indicated. The Example also assumes that your investment has a 5% return each year and assumes the maximum fees and expenses of any of the [portfolio companies]. Although your actual costs may be higher or lower, based on these assumptions, your costs would be:
1. Include the narrative explanations in the order indicated. A Registrant may modify a narrative explanation if the explanation contains comparable information to that shown.
3. A Registrant may omit captions if the Registrant does not charge the fees or expenses covered by the captions. A Registrant may modify or add captions if the captions shown do not provide an accurate description of the Registrant's fees and expenses.
5. In the Contractowner Transaction Expenses, [Annual] Contract Fee, and Separate Account Annual Expenses tables, the Registrant must disclose the maximum guaranteed charge, unless a specific instruction directs otherwise. The Registrant may disclose the current charge, in addition to the maximum charge, if the disclosure of the current charge is no more prominent than, and does not obscure or impede understanding of, the disclosure of the maximum charge. In addition, the Registrant may include in a footnote to the table a tabular, narrative, or other presentation providing further detail regarding variations in the charge. For example, if deferred sales charges decline over time, the Registrant may
15. If the Registrant (or any other party pursuant to an agreement with the Registrant) imposes any other recurring charge other than annual portfolio company total operating expenses, add another caption describing it and list the (maximum) amount or basis on which the charge is deducted.
17. (a) If a Registrant has multiple sub-accounts, it should disclose the minimum and maximum “Total Annual [Portfolio Company] Operating Expenses” for any portfolio company. “Total Annual [Portfolio Company] Operating Expenses” include all expenses that are deducted from a portfolio company's assets. The amount of expenses deducted from a portfolio company's assets are the amounts shown as expenses in the portfolio company's statement of operations (including increases resulting from complying with paragraph 2(g) of rule 6-07 of Regulation S-X [17 CFR 210.6-07]).
(b) “Total Annual [Portfolio Company] Operating Expenses” do not include extraordinary expenses as determined under generally accepted accounting principles (
18. (a) Base the percentages of “Total Annual [Portfolio Company] Operating Expenses” on amounts incurred during the most recent fiscal year, but include in expenses amounts that would have been incurred absent expense reimbursement or fee waiver arrangements. If a portfolio company has a fiscal year different from that of the Registrant, base the expenses on those incurred during either the period that corresponds to the fiscal year of the Registrant, or the most recently completed fiscal year of the portfolio company. If the Registrant or a portfolio company has changed its fiscal year and, as a result, the most recent fiscal year is less than three months, use the fiscal year prior to the most recent fiscal year as the basis for determining “Total Annual [Portfolio Company] Operating Expenses.”
(b) If there have been any changes in “Total Annual [Portfolio Company] Operating Expenses” that would materially affect the information disclosed in the table:
(i) Restate the expense information using the current fees as if they had been in effect during the previous fiscal year; and
(ii) In a footnote to the table, disclose that the expense information in the table has been restated to reflect current fees.
(c) A change in “Total Annual [Portfolio Company] Operating Expenses” means either an increase or a decrease in expenses that occurred during the most recent fiscal year or that is expected to occur during the current fiscal year. A change in “Total Annual [Portfolio Company] Operating Expenses” does not include a decrease in operating expenses as a percentage of assets due to economies of scale or breakpoints in a fee arrangement resulting from an increase in a portfolio company's assets.
19. A Registrant may reflect minimum and maximum actual total [portfolio company] operating expenses that include expense reimbursement or fee waiver arrangements in a footnote to the table. If the Registrant provides this disclosure, also disclose the period for which the expense reimbursement or fee waiver arrangement is expected to continue, or whether it can be terminated at any time at the option of a portfolio company.
20. A Registrant may include additional tables showing annual operating expenses separately for each portfolio company immediately following the required table of “Total Annual [Portfolio Company] Operating Expenses.” The additional tables should be prepared in the format, and in accordance with the Instructions, prescribed in Item 3 of Form N-1A [17 CFR 239.15A; 17 CFR 274.11A] for disclosing “Annual Fund Operating Expenses.”
21. For purposes of the Example in the table:
(a) Assume that the percentage amounts listed under “Separate Account Annual Expenses” remain the same in each year of the 1-, 3-, 5-, and 10-year periods, except that an adjustment may be made to reflect reduced annual expenses resulting from completion of the amortization of initial organization expenses;
(b) Assume deduction of the maximum percentage amount of expenses shown under “Total Annual [Portfolio Company] Operating Expenses,” and that this amount remains the same in each year of the 1-, 3-, 5-, and 10-year periods, except that an adjustment may be made to reflect reduced annual expenses resulting from completion of the amortization of initial organization expenses. An additional example that assumes deduction of the minimum percentage amount of expenses shown under “Total Annual [Portfolio Company] Operating Expenses” may also be provided, immediately following the required expense example based on maximum portfolio company expenses. In lieu of providing the required example based on maximum portfolio company expenses, a Registrant may include separate expense examples based on the expenses of each portfolio company;
(c) Assume the maximum sales load that may be deducted from purchase payments is deducted;
(d) For any breakpoint in any fee, assume that the amount of the Registrant's (and the portfolio company's) assets remains constant as of the level at the end of the most recently completed fiscal year;
(e) Assume no exchanges or other transactions;
(f) Reflect any [annual] contract fee by dividing the total amount of [annual] contract fees collected during the year that are attributable to the contract offered by the prospectus by the total average net assets that are attributable to the contract offered by the prospectus. Add the resulting percentage to “Separate Account Annual Expenses,” and assume that it remains the same in each year of the 1-, 3-, 5-, and 10-year periods;
(g) Reflect any contingent deferred sales load by assuming a complete surrender on the last day of the year;
(h) Provide the information required in the third section of the Example only if a sales load or other fee is charged upon a complete surrender; and
(i) Include in the Example the information provided by the caption “If you annuitize at the end of the applicable time period” only if the Registrant charges fees upon annuitization that are different from those charged upon surrender.
22.
(a) Base the percentages in “Total Annual [Portfolio Company] Operating Expenses” on payments that will be made, but include in expenses amounts that will be incurred without reduction for expense reimbursement or fee waiver arrangements, estimating amounts of expenses that are not established pursuant to contract. Disclose in a footnote to the table that “Total Annual [Portfolio Company] Operating Expenses” are based, in part, on estimated amounts for the current fiscal year.
(b) A New Registrant may reflect in a footnote to the table expense reimbursement or fee waiver arrangements that are expected to reduce the minimum and/or maximum total [portfolio company] operating expenses shown in the table. If the New Registrant provides this disclosure, also disclose the period for which the expense reimbursement or fee waiver arrangement is expected to continue, or whether it can be terminated at any time at the option of a portfolio company.
(c) Complete only the 1- and 3-year period portions of the Example, and estimate any [annual] contract fees collected.
4. Form N-6 (referenced in § 239.17c and § 274.11d), Item 3 is amended by:
a. Revising the introductory text and fee tables; and
b. Revising Instructions 4 and 5.
The revisions read as follows:
The text of Form N-6 does not and these amendments will not appear in the
Include the following information, in plain English under rule 421(d) under the Securities Act [17 CFR 230.421(d)], after Item 2:
The following tables describe the fees and expenses that you will pay when buying, owning, and surrendering the Policy. The first table describes the fees and expenses that you will pay at the time that you buy the Policy, surrender the Policy, or transfer cash value between investment options.
The next table describes the fees and expenses that you will pay periodically during the time that you own the Policy, not including [Portfolio Company] fees and expenses.
The next item shows the minimum and maximum total operating expenses charged by the portfolio companies that you may pay periodically during the time that you own the contract. More detail concerning each [Portfolio Company's] fees and expenses is contained in the prospectus for each [Portfolio Company].
4.
(a) The Registrant may substitute the term used in the prospectus to refer to the Portfolio Companies for the bracketed portion of the caption provided.
(b) If a registrant has multiple sub-accounts, it should disclose the minimum and maximum “Total Annual [Portfolio Company] Operating Expenses” for any Portfolio Company. “Total Annual [Portfolio Company] Operating Expenses” include all expenses that are deducted from a Portfolio Company's assets. The amount of expenses deducted from a Portfolio Company's assets are the amounts shown as expenses in the Portfolio Company's statement of operations (including increases resulting from complying with paragraph 2(g) of rule 6-07 of Regulation S-X [17 CFR 210.6-07]).
(c) “Total Annual [Portfolio Company] Operating Expenses” do not include extraordinary expenses as determined under generally accepted accounting principles (
(d)(i) Base the percentages of “Total Annual [Portfolio Company] Operating Expenses” on amounts incurred during the most recent fiscal year, but include in expenses amounts that would have been incurred absent expense reimbursement or fee waiver arrangements. If a Portfolio Company has a fiscal year different from that of the Registrant, base the expenses on those incurred during either the period that corresponds to the fiscal year of the Registrant, or the most recently completed fiscal year of the Portfolio Company. If the Registrant or a Portfolio Company has changed its fiscal year and, as a result, the most recent fiscal year is less than three months, use the fiscal year prior to the most recent fiscal year as the basis for determining “Total Annual [Portfolio Company] Operating Expenses.”
(ii) If there have been any changes in “Total Annual [Portfolio Company] Operating Expenses” that would materially affect the information disclosed in the table:
(A) Restate the expense information using the current fees as if they had been in effect during the previous fiscal year; and
(B) In a footnote to the table, disclose that the expense information in the table has been restated to reflect current fees.
(iii) A change in “Total Annual [Portfolio Company] Operating Expenses” means either an increase or a decrease in expenses that occurred during the most recent fiscal year or that is expected to occur during the current fiscal year. A change in “Total Annual [Portfolio Company] Operating Expenses” does not include a decrease in operating expenses as a percentage of assets due to economies of scale or breakpoints in a fee arrangement resulting from an increase in a Portfolio Company's assets.
(e) A Registrant may reflect minimum and maximum actual total [Portfolio Company] operating expenses that include expense reimbursement or fee waiver arrangements in a footnote to the table. If the Registrant provides this disclosure, also disclose the period for which the expense reimbursement or fee waiver arrangement is expected to continue, or whether it can be terminated at any time at the option of a Portfolio Company.
(f) A Registrant may include additional tables showing annual operating expenses separately for each Portfolio Company immediately following the required table of “Total Annual [Portfolio Company] Operating Expenses.” The additional tables should be prepared in the format, and in accordance with the Instructions, prescribed in Item 3 of Form N-1A [17 CFR 239.15A; 17 CFR 274.11A] for disclosing “Annual Fund Operating Expenses.”
5.
(a) Base the percentages in “Total Annual [Portfolio Company] Operating Expenses” on payments that will be made, but include in expenses amounts that will be incurred without reduction for expense reimbursement or fee waiver arrangements, estimating amounts of expenses that are not established pursuant to contract. Disclose in a footnote to the table that “Total Annual [Portfolio Company] Operating Expenses” are based, in part, on estimated amounts for the current fiscal year.
(b) A New Registrant may reflect in a footnote to the table expense reimbursement or fee waiver arrangements that are expected to reduce the minimum and/or maximum total [Portfolio Company] operating expenses shown in the table. If the New Registrant provides this disclosure, also disclose the period for which the expense reimbursement or fee waiver arrangement is expected to continue, or whether it can be terminated at any time at the option of a Portfolio Company.
By the Commission.
(a)(i) The Attorney General may maintain custody, at any location he deems appropriate, of any undocumented aliens he has reason to believe are seeking to enter the United States and who are interdicted or intercepted in the Caribbean region. In this regard, the Attorney General shall provide and operate a facility, or facilities, to house and provide for the needs of any such aliens. Such a facility may be located at Guantanamo Bay Naval Base or any other appropriate location.
(ii) The Attorney General may conduct any screening of such aliens that he deems appropriate, including screening to determine whether such aliens should be returned to their country of origin or transit, or whether they are persons in need of protection who should not be returned without their consent. If the Attorney General institutes such screening, then until a determination is made, the Attorney General shall provide for the custody, care, safety, transportation, and other needs of the aliens. The Attorney General shall continue to provide for the custody, care, safety, transportation, and other needs of aliens who are determined not to be persons in need of protection until such time as they are returned to their country of origin or transit.
(b) The Secretary of State shall provide for the custody, care, safety, transportation, and other needs of undocumented aliens interdicted or intercepted in the Caribbean region whom the Attorney General has identified as persons in need of protection. The Secretary of State shall provide for and execute a process for resettling such persons in need of protection, as appropriate, in countries other than their country of origin, and shall also undertake such diplomatic efforts as may be necessary to address the problem of illegal migration of aliens in the Caribbean region and to facilitate the return of those aliens who are determined not to be persons in need of protection.
(c)(i) The Secretary of Defense shall make available to the Attorney General and the Secretary of State, for the housing and care of any undocumented aliens interdicted or intercepted in the Caribbean region and taken into their custody, any facilities at Guantanamo Bay Naval Base that are excess to current military needs and the provision of which does not interfere with the operation and security of the base. The Secretary of Defense shall be responsible for providing access to such facilities and perimeter security. The Attorney General and the Secretary of State, respectively, shall be responsible for reimbursement for necessary supporting utilities.
(ii) In the event of a mass migration in the Caribbean region, the Secretary of Defense shall provide support to the Attorney General and the Secretary
(a) Nothing in this order shall be construed to impair or otherwise affect the authorities and responsibilities set forth in Executive Order 12807 of May 24, 1992.
(b) Nothing in this order shall be construed to make reviewable in any judicial or administrative proceeding, or otherwise, any action, omission, or matter that otherwise would not be reviewable.
(c) This order is intended only to improve the management of the executive branch. This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or equity or otherwise against the United States, its departments, agencies, entities, instrumentalities, officers, employees, or any other person.
(d) Any agency assigned any duties by this order may use the provisions of the Economy Act, 31 U.S.C. 1535 and 1536, to carry out such duties, to the extent permitted by such Act.
(e) This order shall not be construed to require any procedure to determine whether a person is a refugee or otherwise in need of protection.