Agricultural Marketing Service
Animal and Plant Health Inspection Service
Food and Nutrition Service
Forest Service
Inspector General Office, Health and Human Services Department
International Trade Administration
National Institute of Standards and Technology
National Oceanic and Atmospheric Administration
Defense Logistics Agency
Presidential Documents
Centers for Disease Control and Prevention
Inspector General Office, Health and Human Services Department
Substance Abuse and Mental Health Services Administration
Fish and Wildlife Service
Land Management Bureau
Antitrust Division
Justice Programs Office
Employment and Training Administration
Office of the Special Counsel
Federal Aviation Administration
Federal Highway Administration
Surface Transportation Board
Internal Revenue Service
Consult the Reader Aids section at the end of this issue for phone numbers, online resources, finding aids, reminders, and notice of recently enacted public laws.
To subscribe to the Federal Register Table of Contents LISTSERV electronic mailing list, go to http://listserv.access.gpo.gov and select Online mailing list archives, FEDREGTOC-L, Join or leave the list (or change settings); then follow the instructions.
Animal and Plant Health Inspection Service, USDA.
Interim rule and request for comments.
We are amending the Mexican fruit fly regulations by adding a portion of San Diego County, CA, to the existing regulated area and restricting the interstate movement of regulated articles from that area. This action is necessary to prevent the spread of the Mexican fruit fly into noninfested areas of the United States.
This interim rule was effective March 4, 2003. We will consider all comments that we receive on or before May 9, 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. 02-129-3, 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. 02-129-3. 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
Mr. Stephen A. Knight, Senior Staff Officer, PPQ, APHIS, 4700 River Road Unit 134, Riverdale, MD 20737-1236; (301) 734-8247.
The Mexican fruit fly (
The Mexican fruit fly regulations, contained in 7 CFR 301.64 through 301.64-10 (referred to below as the regulations), were established to prevent the spread of the Mexican fruit fly to noninfested areas of the United States. The regulations impose restrictions on the interstate movement of regulated articles from the regulated areas.
In an interim rule effective on January 15, 2003, and published in the
Section 301.64-3 provides that the Deputy Administrator for Plant Protection and Quarantine, Animal and Plant Health Inspection Service (APHIS), shall list as a regulated area each quarantined State, or each portion of a quarantined State, in which the Mexican fruit fly has been found by an inspector, in which the Deputy Administrator has reason to believe the Mexican fruit fly is present, or that the Deputy Administrator considers necessary to regulate because of its proximity to the Mexican fruit fly or its inseparability for quarantine enforcement purposes from localities in which the Mexican fruit fly occurs.
Less than an entire quarantined State is designated as a regulated area only if the Deputy Administrator determines that the State has adopted and is enforcing a quarantine or regulation that imposes restrictions on the intrastate movement of the regulated articles that are substantially the same as those that are imposed with respect to the interstate movement of the articles and the designation of less than the entire State as a regulated area will otherwise be adequate to prevent the artificial interstate spread of the Mexican fruit fly.
Recent trapping surveys by inspectors of California State and county agencies and by APHIS inspectors reveal that an additional portion of San Diego County, CA, is infested with the Mexican fruit fly.
Accordingly, to prevent the spread of the Mexican fruit fly to noninfested areas of the United States, we are amending the regulations in § 301.64-3 by adding that portion of San Diego County, CA, to the existing regulated area for the Mexican fruit fly. The addition is described in detail in the rule portion of this document. The Deputy Administrator has determined that it is not necessary to designate the entire State of California as a regulated area.
As noted previously, the regulations in § 301.64-3 refer to the listing of regulated areas within quarantined States. Quarantined States are listed in § 301.64(a). When we published an interim rule quarantining a portion of Los Angeles County, CA, because of Mexican fruit fly (
This rulemaking is necessary on an emergency basis to prevent the Mexican fruit fly from spreading to noninfested areas of the United States. Under these
We will consider comments we receive during the comment period for this interim rule (see
This rule has been reviewed under Executive Order 12866. For this action, the Office of Management and Budget has waived its review under Executive Order 12866.
This rule amends the Mexican fruit fly regulations by designating an additional portion of San Diego County, CA, as a regulated area and restricting the interstate movement of regulated articles from that area. This action is necessary to prevent the spread of the Mexican fruit fly into noninfested areas of the United States.
This emergency situation makes timely compliance with section 604 of the Regulatory Flexibility Act (5 U.S.C. 601
This program/activity is listed in the Catalog of Federal Domestic Assistance under No. 10.025 and is subject to Executive Order 12372, which requires intergovernmental consultation with State and local officials. (
This rule has been reviewed under Executive Order 12988, Civil Justice Reform. This rule: (1) Preempts all State and local laws and regulations that are inconsistent with this rule; (2) has no retroactive effect; and (3) does not require administrative proceedings before parties may file suit in court challenging this rule.
An environmental assessment and finding of no significant impact have been prepared for this interim rule. The site-specific environmental assessment provides a basis for the conclusion that the implementation of integrated pest management to eradicate the Mexican fruit fly will not have a significant impact on human health and the natural environment. Based on the finding of no significant impact, the Administrator of the Animal and Plant Health Inspection Service has determined that an environmental impact statement need not be prepared.
The environmental assessment and finding of no significant impact were prepared in accordance with: (1) The National Environmental Policy Act of 1969 (NEPA), as amended (42 U.S.C. 4321
Copies of the environmental assessment and finding of no significant impact are available for public inspection in our reading room (information on the location and hours of the reading room is provided under the heading
This interim rule contains no information collection or recordkeeping requirements under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Agricultural commodities, Plant diseases and pests, Quarantine, Reporting and recordkeeping requirements, Transportation.
7 U.S.C. 7711, 7712, 7714, 7731, 7735, 7751, 7752, 7753, 7754, and 7760; 7 CFR 2.22, 2.80, and 371.3.
Section 301.75-15 also issued under Sec. 204, Title II, Pub. L. 106-113, 113 Stat. 1501A-293; sections 301.75-15 and 301.75-16 also issued under Sec. 203, Title II, Pub. L. 106-224, 114 Stat. 400 (7 U.S.C. 1421 note).
(c) * * *
Internal Revenue Service (IRS), Treasury.
Final regulations and removal of temporary regulations.
This document contains final regulations relating to the disallowance of deductions and credits for nonresident alien individuals and foreign corporations (collectively, foreign taxpayers) that fail to file a timely U.S. income tax return. The regulations affect foreign taxpayers that fail to file a return by the appropriate deadlines.
Nina E. Chowdhry, (202) 622-3880 (not a toll-free number).
This document contains amendments to 26 CFR part 1. On January 29, 2002, final and temporary regulations (TD 8981) relating to the disallowance of deductions and credits for foreign taxpayers that fail to file a timely U.S. income tax return under sections 874 and 882 of the Internal Revenue Code (Code) were published in the
It has been determined that this Treasury decision is not a significant regulatory action as defined in Executive Order 12866. Therefore, a regulatory assessment is not required. It has also been determined that section 553(b) of the Administrative Procedure Act (5 U.S.C. chapter 5) does not apply to these regulations and, because the regulations do not impose a collection of information requirement on small entities, the Regulatory Flexibility Act (5 U.S.C. chapter 6) does not apply. Therefore, a Regulatory Flexibility Analysis is not required. Pursuant to section 7805(f) of the Code, the notice of proposed rulemaking preceding these regulations was submitted to the Chief Counsel for Advocacy of the Small Business Administration for comment on its impact on small businesses.
The principal author of these regulations is Nina Chowdhry of the Office of Associate Chief Counsel (International). However, other personnel from the IRS and Treasury Department participated in their development.
Income taxes, Reporting and recordkeeping requirements.
26 U.S.C. 7805 * * *
Section 1.874-1 also issued under 26 U.S.C. 874. * * *
Section 1.882-4 also issued under 26 U.S.C. 882(c). * * *
(b) * * *
(2)
(i) Whether the individual voluntarily identifies himself or herself to the Internal Revenue Service as having failed to file a U.S. income tax return before the Internal Revenue Service discovers the failure to file;
(ii) Whether the individual did not become aware of his or her ability to file a protective return (as described in paragraph (b)(6) of this section) by the deadline for filing the protective return;
(iii) Whether the individual had not previously filed a U.S. income tax return;
(iv) Whether the individual failed to file a U.S. income tax return because, after exercising reasonable diligence (taking into account his or her relevant experience and level of sophistication), the individual was unaware of the necessity for filing the return;
(v) Whether the individual failed to file a U.S. income tax return because of intervening events beyond the individual's control; and
(vi) Whether other mitigating or exacerbating factors existed.
(3)
In Year 1, A became a limited partner with a passive investment in a U.S. limited partnership that was engaged in a U.S. trade or business. During Year 1 through Year 4, A incurred losses with respect to A's U.S. partnership interest. A's foreign tax advisor incorrectly concluded that because A was a limited partner and had only losses from A's partnership interest, A was not required to file a U.S. income tax return. A was aware neither of A's obligation to file a U.S. income tax return for those years nor of A's ability to file a protective return for those years. A had never filed a U.S. income tax return before. In Year 5, A began realizing a profit rather than a loss with respect to the partnership interest and, for this reason, engaged a U.S. tax advisor to handle A's responsibility to file U.S. income tax returns. In preparing A's U.S. income tax return for Year 5, A's U.S. tax advisor discovered that returns were not filed for Year 1 through Year 4. Therefore, with respect to those years for which applicable filing deadlines in paragraph (b)(1) of this section were not met, A would be barred by paragraph (a) of this section from claiming any deductions that otherwise would have given rise to net operating losses on returns for these years, and that would have been available as loss carryforwards in subsequent years. At A's direction, A's U.S. tax advisor promptly contacted the appropriate examining personnel and cooperated with the Internal Revenue Service in determining A's income tax liability, for example, by preparing and filing the appropriate income tax returns for Year 1 through Year 4 and by making A's books and records available to an Internal Revenue Service examiner. A has met the standard described in paragraph (b)(2) of this section for waiver of any applicable filing deadlines in paragraph (b)(1) of this section.
Same facts as in Example 1, except that while A's U.S. tax advisor contacted the appropriate examining personnel and filed the appropriate income tax returns for Year 1 through Year 4, A refused all requests by the Internal Revenue Service to provide supporting information (for example, books and records) with respect to those returns. Because A did not cooperate in determining A's U.S. tax liability for the taxable years for which an income tax return was not timely filed, A is not granted a waiver as described in paragraph (b)(2) of this section of any applicable filing deadlines in paragraph (b)(1) of this section.
Same facts as in Example 1, except that in Year 1 through Year 4, A also consulted a U.S. tax advisor, who advised A that it was uncertain whether U.S. income tax returns were necessary for those years and that A could protect A's right subsequently to claim the loss carryforwards by filing protective returns under paragraph (b)(6) of this section. A did not file U.S. income tax returns or protective returns for those years. A did not present evidence that intervening events beyond A's control prevented A from filing an income tax return, and there were no other mitigating factors. A has not met the standard described in paragraph (b)(2) of this section for waiver of any applicable filing deadlines in paragraph (b)(1) of this section.
In Year 1, A, a computer programmer, opened an office in the United States to market and sell a software program that A had developed outside the United States. A had minimal business or tax experience internationally, and no such experience in the United States. Through A's personal efforts, U.S. sales of the software produced income effectively connected with a U.S. trade or business. A, however, did not file U.S. income tax returns for Year 1 or Year 2. A was aware neither of A's obligation to file a U.S. income tax return for those years, nor of A's ability to file a protective return for those years. A had never filed a U.S. income tax return before. In November of Year 3, A engaged U.S. counsel in connection with licensing software to an unrelated U.S. company. U.S. counsel reviewed A's U.S. activities and advised A that A should have filed U.S. income tax returns for Year 1 and Year 2. A immediately engaged a U.S. tax advisor who, at A's direction, promptly contacted the appropriate examining personnel and cooperated with the Internal Revenue Service in determining A's income tax liability, for example, by preparing and filing the appropriate income tax returns for Year 1 and Year 2 and by making A's books and records available to an Internal Revenue Service examiner. A has met the standard described in paragraph (b)(2) of this section for waiver of any applicable filing deadlines in paragraph (b)(1) of this section.
In Year 1, A, a computer programmer, opened an office in the United States to market and sell a software program that A had developed outside the United States. Through A's personal efforts, U.S. sales of the software produced income effectively connected with a U.S. trade or business. A had extensive experience conducting similar business activities in other countries, including making the appropriate tax filings. A, however, was aware neither of A's obligation to file a U.S. income tax return for those years, nor of A's ability to file a protective return for those years. A had never filed a U.S. income tax return before. Despite A's extensive experience conducting similar business activities in other countries, A made no effort to seek advice in connection with A's U.S. tax obligations. A failed to file either U.S. income tax returns or protective returns for Year 1 and Year 2. In November of Year 3, an Internal Revenue Service examiner asked A for an explanation of A's failure to file U.S. income tax returns. A immediately engaged a U.S. tax advisor, and cooperated with the Internal Revenue Service in determining A's income tax liability, for example, by preparing and filing the appropriate income tax returns for Year 1 and Year 2 and by making A's books and records available to the examiner. A did not present evidence that intervening events beyond A's control prevented A from filing a return, and there were no other mitigating factors. A has not met the standard described in paragraph (b)(2) of this section for waiver of any applicable filing deadlines in paragraph (b)(1) of this section.
A began a U.S. trade or business in Year 1 as a sole proprietorship. A's tax advisor filed the appropriate U.S. income tax returns for Year 1 through Year 6, reporting income effectively connected with A's U.S. trade or business. In Year 7, A replaced this tax advisor with a tax advisor unfamiliar with U.S. tax law. A did not file a U.S. income tax return for any year from Year 7 through Year 10, although A had effectively connected income for those years. A was aware of A's ability to file a protective return for those years. In Year 11, an Internal Revenue Service examiner contacted A and asked for an explanation of A's failure to file income tax returns after Year 6. A immediately engaged a U.S. tax advisor and cooperated with the Internal Revenue Service in determining A's income tax liability, for example, by preparing and filing the appropriate income tax returns for Year 7 through Year 10 and by making A's books and records available to the examiner. A did not present evidence that intervening events beyond A's control prevented A from filing a return, and there were no other mitigating factors. A has not met the standard described in paragraph (b)(2) of this section for waiver of any applicable filing deadlines in paragraph (b)(1) of this section.
(4)
(a) * * *
(3) * * *
(ii) The filing deadlines set forth in paragraph (a)(3)(i) of this section may be waived if the foreign corporation establishes to the satisfaction of the Commissioner or his or her delegate that the corporation, based on the facts and circumstances, acted reasonably and in good faith in failing to file a U.S. income tax return (including a protective return (as described in paragraph (a)(3)(vi) of this section)). For this purpose, a foreign corporation shall not be considered to have acted reasonably and in good faith
(A) Whether the corporation voluntarily identifies itself to the Internal Revenue Service as having failed to file a U.S. income tax return before the Internal Revenue Service discovers the failure to file;
(B) Whether the corporation did not become aware of its ability to file a protective return (as described in paragraph (a)(3)(vi) of this section) by the deadline for filing a protective return;
(C) Whether the corporation had not previously filed a U.S. income tax return;
(D) Whether the corporation failed to file a U.S. income tax return because, after exercising reasonable diligence (taking into account its relevant experience and level of sophistication), the corporation was unaware of the necessity for filing the return;
(E) Whether the corporation failed to file a U.S. income tax return because of intervening events beyond its control; and
(F) Whether other mitigating or exacerbating factors existed.
(iii) The following examples illustrate the provisions of this section. In all examples, FC is a foreign corporation and uses the calendar year as its taxable year. The examples are as follows:
In Year 1, FC became a limited partner with a passive investment in a U.S. limited partnership that was engaged in a U.S. trade or business. During Year 1 through Year 4, FC incurred losses with respect to its U.S. partnership interest. FC's foreign tax director incorrectly concluded that because it was a limited partner and had only losses from its partnership interest, FC was not required to file a U.S. income tax return. FC's management was aware neither of FC's obligation to file a U.S. income tax return for those years, nor of its ability to file a protective return for those years. FC had never filed a U.S. income tax return before. In Year 5, FC began realizing a profit rather than a loss with respect to its partnership interest and, for this reason, engaged a U.S. tax advisor to handle its responsibility to file U.S. income tax returns. In preparing FC's income tax return for Year 5, FC's U.S. tax advisor discovered that returns were not filed for Year 1 through Year 4. Therefore, with respect to those years for which applicable filing deadlines in paragraph (a)(3)(i) of this section were not met, FC would be barred by paragraph (a)(2) of this section from claiming any deductions that otherwise would have given rise to net operating losses on returns for those years, and that would have been available as loss carryforwards in subsequent years. At FC's direction, its U.S. tax advisor promptly contacted the appropriate examining personnel and cooperated with the Internal Revenue Service in determining FC's income tax liability, for example, by preparing and filing the appropriate income tax returns for Year 1 through Year 4 and by making FC's books and records available to an Internal Revenue Service examiner. FC has met the standard described in paragraph (a)(3)(ii) of this section for waiver of any applicable filing deadlines in paragraph (a)(3)(i) of this section.
Same facts as in
Same facts as in
In Year 1, FC, a technology company, opened an office in the United States to market and sell a software program that FC had developed outside the United States. FC had minimal business or tax experience internationally, and no such experience in the United States. Through FC's direct efforts, U.S. sales of the software produced income effectively connected with a U.S. trade or business. FC, however, did not file U.S. income tax returns for Year 1 or Year 2. FC's management was aware neither of FC's obligation to file a U.S. income tax return for those years, nor of its ability to file a protective return for those years. FC had never filed a U.S. income tax return before. In January of Year 4, FC engaged U.S. counsel in connection with licensing software to an unrelated U.S. company. U.S. counsel reviewed FC's U.S. activities and advised FC that it should have filed U.S. income tax returns for Year 1 and Year 2. FC immediately engaged a U.S. tax advisor who, at FC's direction, promptly contacted the appropriate examining personnel and cooperated with the Internal Revenue Service in determining FC's income tax liability, for example, by preparing and filing the appropriate income tax returns for Year 1 and Year 2 and by making FC's books and records available to an Internal Revenue Service examiner. FC has met the standard described in paragraph (a)(3)(ii) of this section for waiver of any applicable filing deadlines in paragraph (a)(3)(i) of this section.
In Year 1, FC, a technology company, opened an office in the United States to market and sell a software program that FC had developed outside the United States. Through FC's direct efforts, U.S. sales of the software produced income effectively connected with a U.S. trade or business. FC had extensive experience conducting similar business activities in other countries, including making the appropriate tax filings. However, FC's management was aware neither of FC's obligation to file a U.S. income tax return for those years, nor of its ability to file a protective return for those years. FC had never filed a U.S. income tax return before. Despite FC's extensive experience conducting similar business activities in other countries, it made no effort to seek advice in connection with its U.S. tax obligations. FC failed to file either U.S. income tax returns or protective returns for Year 1 and Year 2. In January of Year 4, an Internal Revenue Service examiner asked FC for an explanation of FC's failure to file U.S. income tax returns. FC immediately engaged a U.S. tax advisor, and cooperated with the Internal Revenue Service in determining FC's income tax liability, for example, by preparing and filing the appropriate income tax returns for Year 1 and Year 2 and by making FC's books and records available to the examiner. FC did not present evidence that intervening events beyond its control prevented it from filing a return, and there were no other mitigating factors. FC has not met the standard described in paragraph (a)(3)(ii) of this section for waiver of any applicable filing deadlines in paragraph (a)(3)(i) of this section.
FC began a U.S. trade or business in Year 1. FC's tax advisor filed the appropriate U.S. income tax returns for Year 1 through Year 6, reporting income effectively connected with FC's U.S. trade or business. In Year 7, FC replaced its tax advisor with a tax advisor unfamiliar with U.S. tax law. FC did not file a U.S. income tax return for any year from Year 7 through Year 10, although it had effectively connected income for those years. FC's management was aware of FC's ability to file a protective return for those years. In Year 11, an Internal Revenue Service examiner contacted FC and asked its chief financial
(iv) Paragraphs (a)(3)(ii) and (iii) of this section are applicable to open years for which a request for a waiver is filed on or after January 29, 2002.
Environmental Protection Agency (EPA).
Final rule.
This final action revises the applicable implementation plans concerning the PSD program mandated by part C of title I of the Clean Air Act (CAA or Act). These revisions incorporate newly promulgated paragraphs of the Federal PSD rule into the federal implementation plan portion of a State's implementation plan where the State does not have an approved PSD State Implementation Plan (SIP) in place. Specifically, the revisions incorporate new applicability provisions in the Federal PSD rules for baseline emissions determination, actual-to-projected-actual methodology, plantwide applicability limitations (PAL's), clean units, and pollution control projects (PCP's). The changes are intended to ensure comprehensive and consistent implementation of the Federal PSD program by State, local, and tribal agencies where EPA has determined that they have the responsibility to implement the Federal PSD program.
This final rule is effective on March 3, 2003.
Ms. Lynn Hutchinson, Information Transfer and Program Integration Division (C339-03), U.S. EPA Office of Air Quality Planning and Standards, Research Triangle Park, North Carolina 27711, telephone number (919) 541-5795, facsimile number (919) 541-5509, electronic mail email) address: hutchinson.lynn@epa.gov.
Entities potentially affected by this final action include sources in all industry groups. The majority of sources potentially affected are expected to be in the following groups.
The EPA has established an official public docket for this action under Docket No. A-90-37. 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 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 EPA Docket Center, EPA West, Room B-102, 1301 Constitution Avenue, NW, Washington, DC 20460. The Docket Center 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 Docket is (202) 566-1742. A reasonable fee may be charged for copying docket materials.
Electronic Access. You may access this
Under section 307(b) of the CAA, judicial review of the final rule is available only by filing a petition for review in the United States Court of Appeals for the District of Columbia Circuit May 9, 2003. Under section 307(d)(7)(B) of the CAA, only an objection to the rule that was raised with reasonable specificity during the period for public comment can be raised during judicial review. Moreover, under section 307(b)(2) of the CAA, the requirements established by today's final action may not be challenged separately in any civil or criminal proceeding we bring to enforce these requirements.
The information presented in this preamble is organized as follows:
The 1970 Clean Air Act at section 110 required States to submit plans to provide for the implementation and maintenance of the national ambient air quality standards (NAAQS). While the 1970 CAA established requirements for protecting the NAAQS through SIP's, it did not address prevention of significant deterioration of air quality. On May 31, 1972 (37 FR 10842), the Administrator published initial approvals and disapprovals of SIP's submitted pursuant to section 110 of the CAA. On November 9, 1972 (37 FR 23836), all SIP's were disapproved insofar as they failed to provide for significant deterioration of air quality. This action was taken in response to a preliminary injunction issued by the District Court for the District of Columbia, which also required the Administrator to promulgate regulations as to any State plan that either permits the significant deterioration of air quality in any portion of any State, or fails to take the measures necessary to prevent significant deterioration.
On July 16, 1973 (38 FR 18986), we
On June 19, 1978 (43 FR 26388), we amended our PSD regulations to implement the new requirements of the Clean Air Act Amendments of 1977 (Pub. L. 95-95). These regulations built on the previous ones, but provided a more comprehensive program pursuant to part C (sections 160-165) of title I, which was added in the 1977 CAA Amendments. The 1977 CAA Amendments also added the statutory requirement that the PSD program be implemented through SIP's submitted pursuant to CAA section 110. Our final rules in 1978 also amended § 52.21 to incorporate all of the new requirements of CAA sections 160-165 into the Federal PSD program. This final rule contained the same language concerning plan disapprovals that is contained in § 52.21(a)(1) as promulgated on December 31, 2002.
Section 52.21(a)
The 1978 final rule also incorporated section 52.21 by reference into the SIP's for 54 programs (50 States, Puerto Rico, Virgin Islands, American Samoa, and Guam) as follows:
(a) The requirements of sections 160 through 165 of the Clean Air Act are not met, since the plan does not include approvable procedures for preventing the significant deterioration of air quality.
(b) The provisions of section 52.21 (b) through (v) are hereby incorporated and made part of the applicable State plan for the State of ____ (see 43 FR 26410).
On August 7, 1980 (43 FR 52676), we amended our PSD regulations in response to the decision by the U.S. Court of Appeals for the D.C. Circuit in
We proposed revisions to the nonattainment new source review (NSR) and PSD rules in a notice published in the
Today, we are taking final action on one of the aspects of the 1996 proposal that was not included in our December 31 final regulations and which is necessary to ensure implementation of those final rules. Specifically, we are finalizing our proposal that PSD applicability changes would also be included in the part 52 regulations governing Federal permitting programs in those jurisdictions that lack a SIP-approved PSD program. In our 1996 proposal (61 FR 38252), we listed five proposed changes to NSR applicability: (1) Clean units, (2) baseline emissions, (3) PCP's, (4) PAL's, and (5) the actual-to-future-actual test (renamed as the actual-to-projected-actual test). In that proposal, we specifically noted that we were proposing these changes for the part 52 Federal PSD program as well.
The EPA also proposes to include these applicability approaches in the part 52 regulations governing Federal permitting programs (61 FR 38253).
As of December 31, 2002, a number of State and local agencies did not have approved PSD programs in their SIPs. Instead, as described above, EPA promulgated the Federal PSD program in those jurisdictions through regulatory provisions in 40 CFR part 52, subparts C through DDD. In most of those jurisdictions, the State or local agency administers the federal PSD program pursuant to a delegation of authority under § 52.21 (u). When finalizing the new applicability provisions that we proposed in 1996, however, the relevant parts of § 52.21 were extended from § 52.21(b) through (w) to § 52.21(a)(2) and (b) through (bb). Therefore, today's final regulations incorporate by reference the new § 52.21(a)(2) and (b) through (bb) into the applicable implementation plan for those jurisdictions that currently do not have approved PSD programs. With this final action, we are not approving or disapproving the PSD programs for any State, local, or Tribal agencies. Instead, we are updating the FIP's, using the same language that we have used at each major revision to the PSD rules, to reflect the fact that all of the relevant provisions of the new § 52.21 now apply.
No tribal government currently has an approved tribal implementation plan (TIP) under the CAA to implement the PSD program. The Federal Government is currently the PSD reviewing authority in Indian Country. Pursuant to § 52.21(a)(1), the provisions of § 52.21 are applicable to all lands owned by the Federal Government and Indian Reservations located in each State. Therefore, we are incorporating the Federal PSD Program contained in § 52.21 by reference into implementation plans where the requirements of CAA 160-165 are not met for federally designated Indian lands. By this final action, we are not changing the authority for implementing and enforcing the Federal PSD permitting program for any sources located in Indian Country. This incorporation by reference only applies to those sections of subparts B through DDD of part 52 that currently incorporate the Federal PSD program for Indian lands.
Today's final regulations are effective on March 3, 2003. This is consistent with the March 3, 2003 effective date for the changes to the Federal PSD program in § 52.21 that were promulgated on December 31, 2002. (See 67 FR 80240.)
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 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.
(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.
Pursuant to the terms of Executive Order 12866, it has been determined that this rule is not a significant regulatory action and therefore it was not submitted to OMB for review.
The information collection requirements for the revisions to the major NSR rules at §§ 51.165, 51.166, and 52.21 (67 FR 80243) will be contained in two different information collection requests (ICR's).
The OMB has approved the information collection requirements under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501
In addition to the existing ICR, the information collection requirements in the final rules on December 31, 2002 (67 FR 80243), have been submitted for approval to OMB under the requirements of the Paperwork Reduction Act, 44 U.S.C. 3501
The information that ICR No. 2074.01 covers is required for the submittal of complete permit applications for the construction or modification of all major new stationary sources of pollutants in attainment and nonattainment areas, as well as for applicable minor stationary sources of pollutants. This information collection is necessary for the proper performance of EPA's functions, has practical utility, and is not unnecessarily duplicative of information we otherwise can reasonably access. We have reduced, to the extent practicable and appropriate, the burden on persons providing the information to or for EPA.
According to ICR No. 2074.01, as a result of the rule changes on December 31, 2002, the total 3-year burden change of the revised collection is estimated at about 219,741 hours at a total cost of $7.7 million. The annual burden change to industry is about 64,287 hours at a cost of $2.2 million. The annual burden change to reviewing agencies is about 8,960 hours at a cost of $331,520. The total annual respondent change is 73,247 hours for a total respondent change in cost of $2.6 million. These cost changes are based upon 62 PSD and 123 NSR nonutility sources (185 total); and 85 PSD and 169 NSR (254 total) sources, including utilities. For the number of respondent reviewing authorities, the analysis uses the 112 reviewing authorities count used by other permitting ICR's for the one-time tasks (for example, SIP revisions) and the appropriate source count for individual permit-related items (for example, attending pre-application meetings with the source). There is only one Federal source listed in the ICR.
Based on the burden assessed in ICR No. 2074.01, we estimate there is no burden for today's final rule. The result of today's final rules is to incorporate provisions that were promulgated on December 31, 2002 (67 FR 80186) into the SIP's and no additional burden on reviewing authorities or regulated entities is incurred as a result of today's final rules.
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 purpose of responding to the information collection; adjust existing ways to comply with any previously applicable instructions and requirements; train personnel to respond to a collection of information; search existing 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. We will continue to present OMB control numbers in a consolidated table format to be codified in 40 CFR part 9 of the Agency's regulations, and in each CFR volume containing EPA regulations. The table lists the section numbers with reporting and recordkeeping requirements, and the current OMB control numbers. This listing of the OMB control numbers and their subsequent codification in the CFR satisfy the requirements of the Paperwork Reduction Act (44 U.S.C. 3501
The EPA has determined that it is not necessary to prepare a regulatory flexibility analysis in connection with this final rule. The EPA has also determined that this rule will not have a significant economic impact on a substantial number of small entities. For purposes of assessing the impacts of today's rule on small entities, small entity is defined as: (1) Any small business employing fewer than 500 employees; (2) a small governmental jurisdiction that is a government of a city, county, town, school district, or special district with a population of less than 50,000; or (3) a small organization that is any not-for-profit enterprise that 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, we have concluded that this action will not have a significant economic impact on a substantial number of small entities. In determining whether a rule has a significant economic impact on a substantial number of small entities, the impact of concern is any significant adverse economic impact on small entities, since the primary purpose of the regulatory flexibility analyses is to identify and address regulatory alternatives “which minimize any significant economic impact of the proposed rule on small entities” (5 U.S.C. 603 and 604). Thus, an agency may conclude that a rule will not have a significant economic impact on a substantial number of small entities if the rule relieves regulatory burden, or otherwise has a positive economic effect, on all of the small entities subject to the rule.
A Regulatory Flexibility Act Screening Analysis, developed as part of a 1994 draft Regulatory Impact Analysis (RIA) and incorporated into the September 1995 ICR renewal analysis, showed that the changes to the NSR program due to the 1990 CAA Amendments would not have an adverse impact on small entities. This analysis encompassed the entire universe of applicable major sources that were likely to also be small businesses (approximately 50 “small business” major sources). Because the administrative burden of the NSR program is the primary source of the NSR program's regulatory costs, the analysis estimated a negligible “cost to sales” (regulatory cost divided by the business category mean revenue) ratio for this source group. Currently, and as reported in the current ICR, there is no economic basis for a different conclusion.
We believe these rule changes will reduce the regulatory burden associated with the major NSR program for all sources, including all small businesses, by improving the operational flexibility of owners and operators, improving the clarity of requirements, and providing alternatives that sources may take advantage of to further improve their operational flexibility. As a result, the program changes provided in the final rule are not expected to result in any
We have therefore concluded that today's final rule will relieve regulatory burden for all small entities.
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Pub. L. 104-4, establishes requirements for Federal agencies to assess the effects of their regulatory actions on State, local, and tribal governments and the private sector. Under section 202 of the UMRA, EPA generally must prepare a written statement, including a cost-benefit analysis, for proposed and final rules with “Federal mandates” that may result in expenditures to State, local, and tribal governments, in the aggregate, or to the private sector, of $100 million or more in any 1 year. Before promulgating an EPA rule for which a written statement is needed, section 205 of the UMRA generally requires EPA to identify and consider a reasonable number of regulatory alternatives and adopt the least costly, most cost effective or least burdensome alternative that achieves the objectives of the rule. The provisions of section 205 do not apply when they are inconsistent with applicable law. Moreover, section 205 allows EPA to adopt an alternative other than the least costly, most cost effective or least burdensome alternative if the Administrator publishes with the final rule an explanation as to why that alternative was not adopted. Before EPA establishes any regulatory requirements that may significantly or uniquely affect small governments, including tribal governments, it must have developed under section 203 of the UMRA a small government agency plan.
The plan must provide for notifying potentially affected small governments, enabling officials of affected small governments to have meaningful and timely input in the development of EPA regulatory proposals with significant Federal intergovernmental mandates, and informing, educating, and advising small governments on compliance with the regulatory requirements.
We have determined that this rule does not contain a Federal mandate that may result in expenditures of $100 million or more for State, local, and tribal governments, in the aggregate, or the private sector in any 1 year. There is no burden for State, local, and tribal agencies in order for this rule to be included in the SIP, as this final action directly incorporates the changes into the SIP. Moreover, these revisions will ultimately provide greater operational flexibility to sources permitted by the States, which will in turn reduce the overall burden of the program on State and local authorities by reducing the number of required permit modifications. In addition, we believe the rule changes will actually reduce the regulatory burden associated with the major NSR program by improving the operational flexibility of owners and operators, improving the clarity of requirements, and providing alternatives that sources may take advantage of to further improve their operational flexibility. Thus, today's rule is not subject to the requirements of sections 202 and 205 of the UMRA.
For the same reasons stated above, we have determined that this rule contains no regulatory requirements that might significantly or uniquely affect small governments. Thus, today's rule 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. We do not expect this final rule to result in expenditures by the States. Today's final rules only apply in States that have been delegated the authority to implement the Federal PSD rules. Therefore, reviewing authorities will not incur a burden to revise their SIP's. Moreover, these revisions provide greater operational flexibility to sources permitted by the States, which will in turn reduce the overall burden of the program on State and local authorities by reducing the number of required permit modifications. Thus, Executive Order 13132 does not apply to this rule. Nevertheless, in the spirit of Executive Order 13132, and consistent with EPA policy to promote communications between EPA and State and local governments, we specifically solicited comment on the proposed rule from State and local officials.
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.” We believe that this final rule does not have tribal implications as specified in Executive Order 13175. Thus, Executive Order 13175 does not apply to this rule.
The EPA began considering potential revisions to the NSR rules in the early 1990's and proposed changes in 1996. The purpose of today's final rule is to add greater flexibility to the existing major NSR regulations. These changes will benefit both reviewing authorities and the regulated community by providing increased certainty as to when the requirements apply, and by providing alternative ways to comply with the requirements. Taken as a whole, today's final rule should result in no added burden or compliance costs and should not substantially change the level of environmental performance achieved under the previous rules.
No tribal government currently has an approved tribal implementation plan (TIP) under the CAA to implement the NSR program. The Federal government is currently the NSR reviewing authority in Indian country, thus tribal governments should not experience added burden, nor should their laws be affected with respect to implementation of this rule. Additionally, although major stationary sources affected by today's final rule could be located in or near Indian country and/or be owned or operated by tribal governments, such sources would not incur additional costs or compliance burdens as a result of this rule. Instead, the only effect on such sources should be the benefit of the added certainty and flexibility provided by the rule.
We recognize the importance of including tribal consultation as part of the rulemaking process. Although we did not include specific consultation with tribal officials as part of our outreach process on this final rule, which was developed largely prior to issuance of Executive Order 13175 and which does not have tribal implications under Executive Order 13175, we will continue to consult with tribes on future rulemakings to assess and address tribal
Executive Order 13045, entitled “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), applies to any rule that: (1) Is determined to be “economically significant” as defined under Executive Order 12866; and (2) concerns an environmental health or safety risk that EPA has reason to believe may have a disproportionate effect on children. If the regulatory action meets both criteria, the Agency must evaluate the environmental health or safety effects of the planned rule on children, and explain why the planned regulation is preferable to other potentially effective and reasonably feasible alternatives considered by the Agency.
This final rule is not subject to the Executive Order because it is not economically significant as defined in Executive Order 12866, and because the Agency does not have reason to believe the environmental health or safety risks addressed by this action present a disproportionate risk to children because we believe that this package as a whole will result in equal or better environmental protection than currently provided by the existing regulations, and do so in a more streamlined and effective manner.
This rule is not a “significant energy action” as defined in Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001) because it is not likely to have a significant adverse effect on the supply, distribution, or use of energy. Today's rule improves the ability of sources to undertake pollution prevention or energy efficiency projects, switch to less polluting fuels or raw materials, maintain the reliability of production facilities, and effectively utilize and improve existing capacity. The rule also includes a number of provisions to streamline administrative and permitting processes so that facilities can quickly accommodate changes in supply and demand. The regulations provide several alternatives that are specifically designed to reduce administrative burden for sources that use pollution prevention or energy efficient projects.
Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA), Pub. L. 104-113, 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 (for example, materials specifications, test methods, sampling procedures, and business practices) that are developed or adopted by voluntary consensus standards bodies. The NTTAA directs EPA to provide Congress, through OMB, explanations when the Agency decides not to use available and applicable voluntary consensus standards.
This action does not involve technical standards. This final rule does not create new requirements but, rather, revises an existing permitting program by providing a series of program options that affected facilities may choose to adopt. These options will reduce the regulatory burden associated with the major NSR program by improving the operational flexibility of owners and operators, improving the clarity of requirements, and providing alternatives that sources may take advantage of to further improve their operational flexibility. Therefore, EPA did not consider the use of any voluntary consensus standards.
The Congressional Review Act, 5 U.S.C. 801
Environmental protection, Administrative practices and procedures, Air pollution control, Best available control technology, Baseline emissions, Carbon monoxide, Clean units, Federal implementation Plans, Hydrocarbons, Intergovernmental relations, Lowest achievable emission rate, Lead, Major modifications, Nitrogen oxides, Ozone, Particular matter, Plantwide applicability limitations, Pollution control projects, State implementation plans, Sulfur oxides.
42 U.S.C. 7401,
(b) The requirements of sections 160 through 165 of the Clean Air Act are not met for Indian reservations since the plan does not include approvable procedures for preventing the significant deterioration of air quality on Indian reservations and, therefore, the provisions of § 52.21(a)(2) and (b) through (bb) are hereby incorporated and made part of the applicable reservation in the State of Alaska.
(b) Regulation for preventing significant deterioration of air quality. The provisions of § 52.21(a)(2) and (b) through (bb) are hereby incorporated and made a part of the applicable State plan for the State of Arizona for that portion applicable to the Pima County Health Department and the Maricopa County Department of Health Services and sources locating on Indian lands.
(b) The requirements of sections 160 through 165 of the Clean Air Act are not met for federally designated Indian lands. Therefore, the provisions of § 52.21(a)(2) and (b) through (bb) are hereby incorporated by reference and made a part of the applicable implementation plan and are applicable to sources located on land under the control of Indian governing bodies.
(a) * * *
(3) The provisions of § 52.21(a)(2) and (b) through (bb) are hereby incorporated and made a part of the applicable State plan for the State of California.
(b) * * *
(1) The PSD rules for Sacramento County Air Pollution Control District are approved under Part C, Subpart 1, of the Clean Air Act. However, EPA is retaining authority to apply § 52.21 in certain cases. The provisions of § 52.21(a)(2) and (b) through (bb) are therefore incorporated and made a part of the State plan for California for the Sacramento County Air Pollution Control District for:
(2) The PSD rules for North Coast Unified Air Quality Management District are approved under Part C, Subpart 1, of the Clean Air Act. However, EPA is retaining authority to apply § 52.21 in certain cases. The provisions of § 52.21(a)(2) and (b) through (bb) are therefore incorporated and made a part of the State plan for California for the North Coast Unified Air Quality Management District for:
(3) The PSD rules for Mendocino County Air Pollution Control District are approved under Part C, Subpart 1, of the Clean Air Act. However, EPA is retaining authority to apply § 52.21 in certain cases. The provisions of § 52.21(a)(2) and (b) through (bb) are therefore incorporated and made a part of the State plan for California for the Mendocino County Air Pollution Control District for:
(4) The PSD rules for Northern Sonoma County Air Pollution Control District are approved under Part C, Subpart 1, of the Clean Air Act. However, EPA is retaining authority to apply § 52.21 in certain cases. The provisions of § 52.21(a)(2) and (b) through (bb) are therefore incorporated and made a part of the State plan for California for the Northern Sonoma County Air Pollution Control District for:
(b) Regulations for preventing significant deterioration of air quality. The provisions of § 52.21(a)(2) and (b) through (bb) are hereby incorporated and made a part of the applicable State plan for the State of Colorado for the sources identified in paragraph (a) of this section as not meeting the requirements of sections 160-165 of the Clean Air Act.
(b) The increments for nitrogen dioxide and related requirements promulgated on October 17, 1988 (53 FR 40671), and amended on December 31, 2002 (67 FR 80186) to 40 CFR 52.21(a)(2) and (b) through (bb) are hereby incorporated and made part of the applicable State implementation plan for the State of Connecticut.
(b) Regulations for preventing significant deterioration of air quality. The provisions of § 52.21(a)(2) and (b) through (bb) are hereby incorporated and made a part of the applicable State plan for the District of Columbia.
(d) The requirements of sections 160 through 165 of the Clean Air Act are not met since the Florida plan, as submitted, does not apply to certain sources. Therefore, the provisions of § 52.21(a)(2) and (b) through (bb) are hereby incorporated by reference and made a part of the Florida plan for:
(b) Regulations for preventing significant deterioration of air quality. The provisions of § 52.21(a)(2) and (b) through (bb) are hereby incorporated and made a part of the applicable State plan for the State of Hawaii.
(b) The requirements of sections 160 through 165 of the Clean Air Act are not met for Indian reservations since the plan does not include approvable procedures for preventing significant deterioration of air quality on Indian reservations. Therefore, the provisions of § 52.21(a)(2) and (b) through (bb) are hereby incorporated and made part of the applicable plan for Indian reservations in the State of Idaho.
(c) The requirements of section 165 of the Clean Air Act are not met for sources subject to prevention of significant deterioration requirements prior to August 22, 1986, the effective date of EPA's approval of the rules cited in paragraph (a) of this section. Therefore, the provisions of § 52.21(a)(2), (b), (c), (d), and (h) through (bb) are hereby incorporated and made part of the applicable plan for sources subject to § 52.21 prior to August 22, 1986.
(b)
(b)
(b) Regulations for preventing significant deterioration of air quality. The provisions of § 52.21(a)(2) and (b) through (bb) are hereby incorporated and made a part of the applicable State plan for the State of Iowa for sources wishing to locate on Indian lands; sources constructed under permits issued by EPA; and certain sources as identified in Iowa's April 22, 1987, letter.
(b) The requirements of sections 160 through 165 of the Clean Air Act are not met for federally designated Indian lands since the plan (specifically LAC: 33:III:509.A.1) excludes all federally recognized Indian lands from the provisions of this regulation. Therefore, the provisions of § 52.21(a)(2) and (b) through (bb) are hereby incorporated by reference and made a part of the applicable implementation plan, and are applicable to sources located on land under the control of Indian governing bodies.
(b) Regulation for preventing significant deterioration of air quality. The provisions of § 52.21(a)(2) and (b) through (bb) are hereby incorporated and made a part of the applicable State plan for the State of Massachusetts.
(b) Regulations for preventing significant deterioration of air quality. The provisions of § 52.21(a)(2) and (b) through (bb) are hereby incorporated and made a part of the applicable State plan for the State of Michigan.
(b) Regulations for preventing significant deterioration of air quality. The provisions of § 52.21(a)(2) and (b) through (bb) are hereby incorporated and made a part of the applicable State plan for the State of Minnesota.
(b) Regulation for preventing significant deterioration of air quality. The provisions of § 52.21(a)(2) and (b) through (bb) are hereby incorporated by reference and made a part of the Montana State implementation plan and are applicable to proposed major stationary sources or major modifications to be located on Indian Reservations.
The requirements of sections 160 through 165 of the Clean Air Act are met except as noted below. The EPA is retaining § 52.21(a)(2) and (b) through (bb) as part of the Nebraska SIP for the following types of sources:
(b) Regulation for preventing significant deterioration of air quality. The provisions of § 52.21(a)(2) and (b) through (bb) are incorporated and made a part of the applicable State plan for the State of Nevada except for that portion applicable to the Clark County Health District.
(b) Regulations for preventing significant deterioration of air quality. The provisions of § 52.21(a)(2) and (b) through (bb) are hereby incorporated and made a part of the applicable State plan for the State of New Jersey.
(b) The requirements of sections 160 through 165 of the Clean Air Act are not met for federally designated Indian lands. Therefore, the provisions of § 52.21 (a)(2) and (b) through (bb) are hereby incorporated by reference and made a part of the applicable implementation plan, and are applicable to sources located on land under the control of Indian governing bodies.
(b)
(b) Regulation for preventing of significant deterioration of air quality. The provisions of § 52.21(a)(2) and (b) through (bb) are hereby incorporated by reference and made a part of the North Dakota State implementation plan and are applicable to proposed major stationary sources or major modifications to be located on Indian Reservations.
(a) Regulation for preventing significant deterioration of air quality. The Oklahoma plan, as submitted, does not apply to certain sources in the State. Therefore the provisions of § 52.21(a)(2) and (b) through (bb) are hereby incorporated by reference, made part of the Oklahoma State implementation plan and are applicable to the following major stationary sources or major modifications:
(c) The requirements of sections 160 through 165 of the Clean Air Act are not met for Indian reservations since the plan does not include approvable procedures for preventing the significant deterioration of air quality on Indian reservations and, therefore, the provisions of § 52.21(a)(2) and (b) through (bb) are hereby incorporated and made part of the applicable plan for Indian reservations in the State of Oregon.
(b) Regulations for preventing significant deterioration of air quality. The provisions of § 52.21(a)(2) and (b) through (bb) are hereby incorporated and made a part of the applicable State plan for the State of South Dakota.
(b) The requirements of § 52.21(a)(2) and (b) through (bb) are hereby incorporated by reference and made part of the applicable SIP for the State of Tennessee for the following purposes:
(c) The requirements of section 160 through 165 of the Clean Air Act are not met for federally designated Indian lands. Therefore, the provisions of § 52.21(a)(2) and (b) through (bb) are hereby adopted and made a part of the applicable implementation plan and are applicable to sources located on land under the control of Indian governing bodies.
(d) The requirements of section 160 through 165 of the Clean Air Act are not met for new major sources or major modifications to existing stationary sources for which applicability determinations would be affected by dockside emissions of vessels. Therefore, the provisions of § 52.21(a)(2) and (b) through (bb) are hereby adopted and made a part of the applicable implementation plan and are applicable to such sources.
(b)
(b) Regulations for preventing significant deterioration of air quality. The provisions of § 52.21(a)(2) and (b) through (bb) are hereby incorporated and made a part of the applicable State plan for the State of Washington.
(e) Regulations for the prevention of the significant deterioration of air quality. The provisions of § 52.21(a)(2) and (b) through (bb) are hereby incorporated and made a part of the applicable State plan for the State of Wisconsin for sources wishing to locate in Indian country; and sources constructed under permits issued by EPA.
(b) Regulation for preventing significant deterioration of air quality. The Wyoming plan, as submitted does not apply to certain sources in the State. Therefore, the provisions of § 52.21(a)(2) and (b) through (bb) are hereby incorporated by reference and made a part of the State implementation plan
(b) Regulations for preventing significant deterioration of air quality. The provisions of § 52.21(a)(2) and (b) through (bb) are hereby incorporated and made a part of the applicable State plan for the State of Guam.
(b) Regulations for preventing significant deterioration of air quality. The provisions of § 52.21(a)(2) and (b) through (bb) are hereby incorporated and made a part of the applicable State plan for the State of Puerto Rico.
(b) Regulations for preventing significant deterioration of air quality. The provisions of § 52.21(a)(2) and (b) through (bb) are hereby incorporated and made a part of the applicable State plan for the Virgin Islands.
(b) Regulations for preventing significant deterioration of air quality. The provisions of § 52.21(a)(2) and (b) through (bb) are hereby incorporated and made a part of the applicable State plan for American Samoa.
Environmental Protection Agency (EPA).
Final rule.
Today's action postpones until March 10, 2005, the requirement to obtain National Pollutant Discharge Elimination System (NPDES) storm water permit for oil and gas construction activity that disturbs one to five acres of land. On December 8, 1999 (64 FR 68722), the U.S. Environmental Protection Agency (EPA) published a final rule expanding the then-existing NPDES permitting program to require permit coverage by March 10, 2003 for, among other things, construction sites that disturb one to five acres. As part of that rulemaking, EPA assumed that few, if any, oil and gas exploration, production, processing, or treatment operations or transmission facilities would be affected by the rule. Since rule promulgation, EPA has become aware that close to 30,000 oil and gas sites per year may be affected by the December 8, 1999, storm water regulations.
The two-year postponement of the deadline from March 10, 2003, to March 10, 2005, will allow time for EPA to analyze and better evaluate: the impact of the permit requirements on the oil and gas industry; the appropriate best management practices for preventing contamination of storm water runoff resulting from construction associated with oil and gas exploration, production, processing, or treatment operations or transmission facilities; and the scope and effect of 33 U.S.C. 1342 (l)(2) and other storm water provisions of the Clean Water Act.
This final regulation is effective on March 10, 2003. For the purposes of judicial review, this final rule is promulgated as of March 10, 2003 as provided in 40 CFR 23.2.
The administrative record is available for inspection and copying at the Water Docket, located at the EPA Docket Center in the basement of the EPA West Building, Room B-102, at 1301 Constitution Ave., NW., Washington, DC.
Wendy Bell, Office of Wastewater Management, Office of Water, Environmental Protection Agency, at (202) 564-0746 or e-mail:
Entities Potentially Regulated by This Action Include:
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 this action. Other types of entities not listed in the table could also be regulated. To determine whether your facility or company is regulated by this action, you should carefully examine the applicability criteria in 40 CFR 122.26(b)(15). If you have questions regarding the applicability of this action to a particular entity, consult the person listed in the preceding
1.
2.
An electronic version of the public docket is available through EPA's electronic public docket and comment system, EPA Dockets. You may use EPA Dockets at
Because this rule provides temporary relief from permitting requirements for certain dischargers, this rule is not subject to the general requirement for a thirty-day waiting period after publication before a final rule takes effect. 5 U.S.C. 553(d)(1). Moreover, pursuant to 5 U.S.C. 553(d)(3), EPA has good cause to make this rule effective immediately. The March 10, 2003, deadline this action extends is less than thirty days after the publication of this rule. Making this action effective as soon as it's published will help reduce any confusion by those affected by the rule regarding the necessity for obtaining permit coverage. EPA is aware of no reason why those directly affected by this rule would need, or want, a waiting period before this action becomes effective. Therefore, a thirty-day waiting period is unnecessary and would be contrary to the public interest.
On December 30, 2002, EPA proposed a two-year postponement of the permit requirement for oil and gas construction activity disturbing one to five acres from March 10, 2003, to March 10, 2005, in order to allow time for EPA to analyze and better evaluate (1) The impact of the permit requirements on the oil and gas industry, (2) the appropriate best management practices for preventing contamination of storm water runoff resulting from construction associated with oil and gas exploration, production, processing, or treatment operations or transmission facilities, and (3) the scope and effect of 33 U.S.C. 1342 (l)(2) and other storm water provisions of the Clean Water Act. In that proposal, EPA explained the background of the NPDES construction permit requirements, and why EPA believes it is appropriate to provide a two-year postponement of permit requirements for construction of oil and gas exploration and production facilities disturbing one to five acres. When describing construction activity that disturbs “one to five acres,” or in discussing “small” construction activity in this preamble, EPA is referring to activities covered by 40 CFR 122.26(b)(15).
EPA received numerous comments on both the proposal to postpone permit requirements for small oil and gas construction and the proposed construction general permit (CGP). The proposed CGP is available in the official public docket referenced in the Notice of Availability for Comment for the Proposed CGP at 67 FR 78116 (December 20, 2002). Comments on specific aspects of the CGP will be addressed in the fact sheet that will accompany the final permit. EPA's responses to all the comments received on the proposed rule are available in the Response to Comment document that is part of the docket for this final rule. EPA's responses to many of the principal issues raised on the proposed rule are discussed below.
A number of commenters opposed the two-year postponement, asserting that there is no reason to treat construction at oil and gas sites differently than other types of construction. EPA agrees that sediment from all sources is a concern but believes that the oil and gas industry has raised significant questions about the differences between the nature of construction at oil and gas sites and other types of construction. One such difference is the very short time window in which construction at oil and gas sites usually occurs. Most of the studies that EPA relied on to show the need for regulating small construction activity looked at residential or commercial construction. It is important for EPA to determine whether construction at oil and gas sites is sufficiently different from these other types of construction to warrant different regulatory treatment. EPA has decided to postpone permitting requirements for small construction at oil and gas sites for two years so that there is adequate time for all the affected parties to provide information and help us determine how to best ensure that such construction does not cause sediment and erosion problems and that these sites are not subject to inappropriate requirements. Also, as reflected in the proposal, EPA plans to use this time to assess the scope of 33 U.S.C. 1342(l)(2) and other storm water provisions of the Clean Water Act with regard to storm water discharges caused by this industry.
EPA received conflicting comments on the environmental impact of oil and gas activity. Some commenters claimed that there was no evidence of negative environmental impacts associated with oil and gas activities. Other commenters asserted that oil and gas projects frequently involved logging, grading, and road building, and that these activities were conducted without erosion and sediment controls and were therefore the source of large amounts of sediment deposition. As discussed above, EPA believes the two-year postponement will provide time to evaluate these opposing assertions.
Several commenters asserted that their State currently requires erosion and sediment (E&S) controls and for oil and gas operators therefore an NPDES permit is unnecessary. Other commenters indicated that oil and gas construction activity in their area occurred without any E&S controls. EPA is aware that some States have good E&S programs in place, and that other States do not. During the two-year postponement, EPA will evaluate State E&S controls related to oil and gas construction activity in comparison to requirements that would be imposed through an NPDES permit.
A number of commenters asserted that EPA did not perform an economic analysis on the Phase II rule's effect on oil and gas, the national economy, and small businesses. EPA published an
Commenters also stated that EPA did not do the proper evaluation of energy-related production activities in accordance with Executive Order 13211. Executive Order 13211 was issued on May 22, 2001 which was well after promulgation of the Phase II rule. However, in the spirit of this Executive Order, during the two year postponement, EPA will analyze the question of whether the imposition of storm water permitting requirements on construction of oil and gas facilities of one to five acres would result in a significant energy impact.
Commenters asked that EPA clarify how the “common plan of development” applies at oil and gas sites, so they would know the extent of applicability of the two-year permit postponement. Where construction activity is part of a larger common plan of development or sale that will disturb five acres or more, the two year postponement provided for in this final rule does not apply. The primary concern raised by commenters was that when a field is first developed, the producer does not know when, where, and how many wells will be drilled.
EPA acknowledged this broader issue of what constitutes a “common plan” in the “Frequently Asked Questions” section of the proposed fact sheet for the proposed CGP. EPA stated that “If you have a long range master plan of development where some portions of the master plan are a conceptual rather than a specific plan of future development and the future construction activities would, if they occur at all, happen over an extended time period, you may consider the ‘conceptional’ phases of development to be separate ‘common plans’ provided the ‘conceptual phase’ has not been funded and periods of construction for the physically interconnected phases will not overlap.”
Many commenters reiterated their belief that Congress intended CWA 402(l)(2) to exempt all types of activities, including construction, associated with oil and gas exploration, production, processing, treatment, or transmission. EPA recognizes that this issue is, and has been, of concern to many in the oil and gas industry.
Differences between construction disturbing five or more acres (“large” construction.
Several commenters believe that the two-year postponement should apply to large construction as well as smaller sites. Large construction has been regulated as an industrial activity under CWA section 402(p)(2) since the promulgation of the Phase I storm water rule. EPA did not propose to take any action with respect to large construction activity and did not seek comment on this issue. The Agency declines to respond to these comments, as they are outside the scope of the action proposed.
EPA received many questions about our definition of “transmission facilities.” EPA has looked at the information submitted by the oil and gas industry to help understand what types of pipelines should be considered “transmission facilities.” For the purposes of today's action, the term “oil and gas exploration, production, processing, and treatment operations or transmission facilities” includes gathering lines, flowlines, feeder lines, and transmission lines. The construction of water lines, electrical utilities lines, etc. as part of the oil and gas exploration, production, processing, treatment, and transmission of oil and gas are also included. Transmission lines are typically major pipelines (
One commenter requested that EPA clarify in its final rule that its definition of transmission be consistent with terms used by the U.S. Department of Transportation (DOT) at 49 CFR part 192 (Transportation of Natural and Other Gas by Pipeline: Minimum Federal Safety Standards). Commenters also asked about other types of pipelines (i.e., distribution lines). Distribution lines are those pipelines that deliver natural gas to homes, businesses, etc. and operate at relatively low pressures. EPA does not consider distribution lines to be transmission lines, and as such, these lines are not included in the terms described in today's rule as potentially eligible for the two year postponement. While EPA is not codifying DOT definitions, the Agency does consider the DOT's definitions to be consistent with EPA's interpretation of “transmission” in this rulemaking.
In today's action, EPA is postponing until March 10, 2005, the permit authorization deadline for National Pollutant Discharge Elimination System (NPDES) storm water permits for oil and gas construction activity that disturbs one to five acres of land and sites disturbing less than one acre that are part of a larger common plan of development or sale that disturbs one to five acres. Since January 2002, EPA has become aware that close to 30,000 oil and gas sites may be affected by the Phase II storm water regulations. In the spirit of Executive Order 13211, which directs EPA to consider the impact of its actions on energy-related production activities, the Agency believes it is important to review this new information in light of the Phase II rule to determine the impact on the oil and gas industry. During the two-year postponement of this deadline, EPA plans to gather information about the area of land disturbed during construction of oil and gas exploration and production facilities.
In evaluating the impact of this action, the Agency will work with States, industry, and other entities to gather and evaluate data on the development and use of appropriate best management practices for the oil and gas industry. As part of today's action, EPA is seeking additional information on size, location and other site characteristics to better evaluate compliance costs, as well as technical and cost data to evaluate best management practices appropriate to controlling storm water runoff from oil and gas starts. EPA will also evaluate the applicability of the exemption at 33 U.S.C. 1342(l)(2) to construction activity at oil and gas exploration, production, processing, or treatment operations or transmission facilities. EPA will use the additional data and analyses produced during the two-year period to determine the appropriate NPDES requirements, if any, for small construction of oil and gas exploration and production facilities.
Under Executive Order 12866, (58 FR 51735 (October 4, 1993)) the Agency must determine whether the regulatory action is “significant” and therefore subject to OMB review and the requirements of the Executive Order. The Order defines “significant regulatory action” as one that is likely to result in a rule that may:
(1) Have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector 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 Paperwork Reduction Act, 44 U.S.C. 3501
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), 5 U.S.C. 601
For purposes of assessing the impacts of today's final rule on small entities, small entity is defined as: (1) A small business based on SBA size standards; (2) a small governmental jurisdiction that is a government of a city, county, town, school district or special district with a population of less than 50,000; and (3) a small organization that is any not-for-profit enterprise which is independently owned and operated and is not dominant in its field.
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. It merely postpones the permit authorization deadline for oil and gas construction activities that disturb one to five acres.
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Pub. L. 104-4, establishes requirements for Federal agencies to assess the effects of their regulatory actions on State, local, and tribal governments and the private sector. Under section 202 of the UMRA, EPA generally must prepare a written statement, including a cost-benefit analysis, for proposed and final rules with “Federal mandates” that may result in expenditures to State, local, and tribal governments, in the aggregate, or to the private sector, of $100 million or more in any one year. Before promulgating an EPA rule for which a written statement is needed, section 205 of the UMRA generally requires EPA to identify and consider a reasonable number of regulatory alternatives and adopt the least costly, most cost-effective or least burdensome alternative that achieves the objectives of the rule. The provisions of section 205 do not apply when they are inconsistent with applicable law. Moreover, section 205 allows EPA to adopt an alternative other than the least costly, most cost-effective or least burdensome alternative if the Administrator publishes with the final rule an explanation why that alternative was not adopted.
Before EPA establishes any regulatory requirements that may significantly or uniquely affect small governments, including tribal governments, it must have developed under section 203 of the UMRA a small government agency plan. The plan must provide for notifying potentially affected small governments, enabling officials of affected small governments to have meaningful and timely input in the development of EPA regulatory proposals with significant Federal intergovernmental mandates, and informing, educating, and advising small governments on compliance with the regulatory requirements.
EPA has determined that this rule does not contain a Federal mandate that may result in expenditures of $100 million or more for State, local, and tribal governments, in the aggregate, or the private sector in any one year. This rule does not impose any costs. It merely postpones the permit authorization deadline for oil and gas construction activities that disturb one to five acres. Thus, today's final rule is not subject to the requirements of sections 202 and 205 of the UMRA. For the same reason, EPA has determined that this rule contains no regulatory requirements that might significantly or uniquely affect small governments. Thus, today's final rule is not subject to
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 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. It merely postpones the permit authorization deadline for oil and gas construction activities that disturb one to five acres. 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 Indian tribes, or on the distribution of power and responsibilities between the Federal government and Indian tribes.”
This 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. It merely postpones the permit authorization deadline for oil and gas construction activities that disturb one to five acres. Thus, Executive Order 13175 does not apply to this rule.
Executive Order 13045: “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997) applies to any rule that: (1) Is determined to be “economically significant” as defined under Executive Order 12866, and (2) concerns an environmental health or safety risk that EPA has reason to believe may have a disproportionate effect on children. If the regulatory action meets both criteria, the Agency must evaluate the environmental health or safety effects of the planned rule on children, and explain why the planned regulation is preferable to other potentially effective and reasonably feasible alternatives considered by the Agency. This regulation is not subject to Executive Order 13045 because it is not economically significant as defined under E.O. 12866.
This rule is not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355 (May 22, 2001)) because it is not a significant regulatory action under Executive Order 12866. The only effect of this rule is to delay the permit authorization requirement for affected small oil and gas operations by two years. As noted above, EPA will use the two-year delay to analyze the broader question of whether the imposition of storm water permitting requirements on construction of oil and gas facilities disturbing one to five acres would result in a significant energy impact, and will factor the results of this analysis into its final determination regarding appropriate requirements for such facilities.
As noted in the proposed rule, section 12(d) of the National Technology Transfer and Advancement Act of 1995 (“NTTAA”), Pub L. No. 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 does not involve technical standards. Therefore, EPA did not consider the use of any voluntary consensus standards.
The Congressional Review Act, 5 U.S.C. 801
This action is not a “major rule” as defined by 5 U.S.C. 804(2). This rule will be effective March 10, 2003.
Environmental protection, Administrative practice and procedure, Confidential business information, Hazardous substances, Reporting and recordkeeping requirements, Water pollution control.
The Clean Water Act, 33 U.S.C. 1251
(e) * * *
(8) For any storm water discharge associated with small construction activity identified in paragraph (b)(15)(i) of this section, see § 122.21(c)(1). Discharges from these sources, other than discharges associated with small construction activity at oil and gas exploration, production, processing, and treatment operations or transmission facilities, require permit authorization by March 10, 2003, unless designated for coverage before then. Discharges associated with small construction activity at such oil and gas sites require permit authorization by March 10, 2005.
Environmental Protection Agency (EPA).
Final rule.
This regulation establishes a tolerance for residues of the fungicide aluminum tris (O-ethylphosphonate) (fosetyl-Al) in or on onion, green. The Interregional Research Project #4 (IR-4), Center for Minor Crop Management, Rutgers, The State University of New Jersey, 681 U. S. Highway #1 South, North Brunswick, NJ 08902-3390 requested this tolerance under the Federal Food, Drug, and Cosmetic Act (FFDCA), as amended by the Food Quality Protection Act of 1996 (FQPA).
This regulation is effective March 10, 2003. Objections and requests for hearings, identified by docket ID number OPP-2002-0348, must be received on or before May 9, 2003.
Written objections and hearing requests may be submitted electronically, by mail, or through hand delivery/courier. Follow the detailed instructions as provided in Unit VI. of the
Sidney Jackson, Registration Division (7505C), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave., NW.,Washington, DC 20460-0001; telephone number: (703) 305-7610; e-mail address:
You may be potentially affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. The North American Industrial Classification System (NAICS) codes have been provided to assist you and others in determining whether this action might apply to certain entities. Potentially affected entities may include, but are not limited to:
• Crop production (NAIC code 111)
• Animal production (NAIC code 112)
• Food manufacturing (NAIC code 311)
• Pesticide manufacturing (NAIC code 32532)
This listing is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be affected by this action. Other types of entities not listed in this unit could also be affected. To determine whether you or your business may be affected by this action, you should carefully examine the applicability provisions in OPP-2002-0348. If you have any questions regarding the applicability of this action to a particular entity, consult the person listed under
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An electronic version of the public docket is available through EPA's electronic public docket and comment system, EPA Dockets. You may use EPA Dockets at
In the
The petition requested that 40 CFR 180.415 be amended by establishing a tolerance for residues of the fungicide fosetyl-Al, aluminum tris (O-ethylphosphonate), in or on onion, green at 10 parts per million (ppm). There were no comments received in response to the notice of filing.
Section 408(b)(2)(A)(i) of the FFDCA allows EPA to establish a tolerance (the legal limit for a pesticide chemical residue in or on a food) only if EPA determines that the tolerance is “safe.” Section 408(b)(2)(A)(ii) of the FFDCA defines “safe” to mean that “there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue, including all anticipated dietary exposures and all other exposures for which there is reliable information.” This includes exposure through drinking water and in residential settings, but does not include occupational exposure. Section 408(b)(2)(C) of the FFDCA requires EPA to give special consideration to exposure of infants and children to the pesticide chemical residue in establishing a tolerance and to “ensure that there is a reasonable certainty that no harm will result to infants and children from aggregate exposure to the pesticide chemical residue....”
EPA performs a number of analyses to determine the risks from aggregate exposure to pesticide residues. For further discussion of the regulatory requirements of section 408 of the FFDCA and a complete description of the risk assessment process, see the final rule on Bifenthrin Pesticide Tolerances (62 FR 62961, November 26, 1997) (FRL-5754-7).
Consistent with section 408(b)(2)(D) of the FFDCA, EPA has reviewed the available scientific data and other relevant information in support of this action. EPA has sufficient data to assess the hazards of and to make a determination on aggregate exposure, consistent with section 408(b)(2) of the FFDCA, for a tolerance for residues of fosetyl-Al on onion, green at 10 ppm. EPA's assessment of exposures and risks associated with establishing the tolerance follows.
EPA has evaluated the available toxicity data on fosetyl-Al and considered their validity, completeness, and reliability as well as the relationship of the results of the studies to human risk. EPA has also considered available information concerning the variability of the sensitivities of major identifiable subgroups of consumers, including infants and children. The nature of the toxic effects caused by fosetyl-Al are discussed in the
The dose at which the NOAEL from the toxicology study identified as appropriate for use in risk assessment is used to estimate the toxicological level of concern (LOC). However, the lowest dose at which adverse effects of concern are identified (the LOAEL) is sometimes used for risk assessment if no NOAEL was achieved in the toxicology study selected. An uncertainty factor (UF) is applied to reflect uncertainties inherent in the extrapolation from laboratory animal data to humans and in the variations in sensitivity among members of the human population as well as other unknowns. An UF of 100 is routinely used, 10X to account for interspecies differences and 10X for intraspecies differences.
For dietary risk assessment (other than cancer) the Agency uses the UF to calculate an acute or chronic reference dose (acute RfD or chronic RfD) where the RfD is equal to the NOAEL divided by the appropriate UF (RfD = NOAEL/UF). Where an additional safety factors (SF) is retained due to concerns unique to the FQPA, this additional factor is applied to the RfD by dividing the RfD by such additional factor. The acute or chronic Population Adjusted Dose (aPAD or cPAD) is a modification of the RfD to accommodate this type of FQPA SF.
For non-dietary risk assessments (other than cancer) the UF is used to determine the LOC. For example, when 100 is the appropriate UF (10X to account for interspecies differences and 10X for intraspecies differences) the LOC is 100. To estimate risk, a ratio of the NOAEL to exposures (margin of exposure (MOE) = NOAEL/exposure) is calculated and compared to the LOC.
The linear default risk methodology (Q*) is the primary method currently used by the Agency to quantify carcinogenic risk. The Q* approach assumes that any amount of exposure will lead to some degree of cancer risk. A Q* is calculated and used to estimate risk which represents a probability of occurrence of additional cancer cases (e.g., risk is expressed as 1 x 10
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iii.
2.
Based on screening models, FQPA Index Reservoir Screening Tool (FIRST) and Screening Concentrations in Ground Water (SCI-GROW), the estimated environmental concentrations (EECs) of fosetyl-Al for acute exposures are estimated to be 0.0086 parts per billion (ppb) for surface water and 0.006 ppb for ground water. The EECs for chronic exposures are estimated to be 0.00003 ppb for surface water and 0.006 ppb for ground water.
3.
For a detailed discussion of fosetyl-Al risk assessment, see Unit III. C. 3. of the final rule on fosetyl-Al tolerances published in the
4.
EPA does not have, at this time, available data to determine whether fosetyl-Al has a common mechanism of toxicity with other substances or how to include this pesticide in a cumulative risk assessment. Unlike other pesticides for which EPA has followed a cumulative risk approach based on a common mechanism of toxicity, fosetyl-Al does not appear to produce a toxic metabolite produced by other substances. For the purposes of this tolerance action, therefore, EPA has not assumed that fosetyl-Al has a common mechanism of toxicity with other substances. For information regarding EPA's efforts to determine which chemicals have a common mechanism of toxicity and to evaluate the cumulative effects of such chemicals, see the final rule for Bifenthrin Pesticide Tolerances (62 FR 62961, November 26, 1997).
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To estimate total aggregate exposure to a pesticide from food, drinking water, and residential uses, the Agency calculates drinking water level of concerns (DWLOC) which are used as a point of comparison against the model estimates of a pesticide's concentration in water (EECs). DWLOC values are not regulatory standards for drinking water. DWLOCs are theoretical upper limits on a pesticide's concentration in drinking water in light of total aggregate exposure to a pesticide in food and residential uses. In calculating a DWLOC, the Agency determines how much of the acceptable exposure (i.e., the PAD) is available for exposure through drinking water [e.g., allowable chronic water exposure (mg/kg/day) = cPAD - (average food + residential exposure)]. This allowable exposure through drinking water is used to calculate a DWLOC.
A DWLOC will vary depending on the toxic endpoint, drinking water consumption, and body weights. Default body weights and consumption values as used by EPA are used to calculate DWLOCs: 2 liter (L)/70 kg (adult male), 2L/60 kg (adult female), and 1L/10 kg (child). Default body weights and drinking water consumption values vary on an individual basis. This variation will be taken into account in more refined screening-level and quantitative drinking water exposure assessments. Different populations will have different DWLOCs. Generally, a DWLOC is calculated for each type of risk assessment used: Acute, short-term, intermediate-term, chronic, and cancer.
When EECs for surface water and ground water are less than the calculated DWLOCs, EPA concludes with reasonable certainty that exposures to the pesticide in drinking water (when considered along with other sources of exposure for which EPA has reliable data) would not result in unacceptable levels of aggregate human health risk at this time. Because EPA considers the aggregate risk resulting from multiple exposure pathways associated with a pesticide's uses, levels of comparison in drinking water may vary as those uses change. If new uses are added in the future, EPA will reassess the potential impacts of residues of the pesticide in drinking water as a part of the aggregate risk assessment process.
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Using the exposure assumptions described in this unit for chronic exposure, EPA has concluded that exposure to fosetyl-Al from food will utilize 4% of the cPAD for the U.S.
3.
The short-term aggregate risk assessment estimates risks likely to result from 1 to 30 day exposure to fosetyl-Al residues from food, drinking water, and residential pesticide uses. High-end estimates of residential exposure are used in the short-term assessment, while average values are used for food and drinking water exposure (i.e. chronic exposures).
A short-term risk assessment is required for adults because there is a residential handler inhalation exposure scenario. In addition, a short-term risk assessment is required for infants and children because there is a residential post-application oral exposure scenario. As no short- or intermediate-term dermal endpoint was established, there is no dermal component to these aggregate risk assessments.
Fosetyl-Al is currently registered for use that could result in short-term residential exposure and the Agency has determined that it is appropriate to aggregate chronic food and water and short-term exposures for fosetyl-Al.
Using the exposure assumptions described in this unit for short-term exposures, EPA has concluded that food and residential exposures aggregated result in aggregate MOEs of 3,300 for adults, 570 for children ages 1-6 years old, and 650 for all infants
4.
An intermediate-term risk assessment was not performed since adult residential handler scenarios are not expected to occur for longer than a short-term timeframe (more than 30 days of continuous exposure) and intermediate-term exposure is not likely to occur for infants and children (residential post-application oral exposure scenario) because fosetyl-Al has a very short half-life (less than 3 hours in aerobic soil).
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An adequate analytical method is available for enforcement of the proposed tolerances in/on onion, green. The method is Method I in PAM II, which uses diazomethane as the
There is no established or proposed maximum residue limit (MRL) or tolerance for fosetyl-Al in or on onion, green for Canada, Mexico, or Codex.
Therefore, the tolerance is established for residues of fosetyl-Al, aluminum tris (O-ethylphosphonate), in or on onion, green at 10 ppm.
Under section 408(g) of the FFDCA, as amended by the FQPA, any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. The EPA procedural regulations which govern the submission of objections and requests for hearings appear in 40 CFR part 178. Although the procedures in those regulations require some modification to reflect the amendments made to the FFDCA by the FQPA, EPA will continue to use those procedures, with appropriate adjustments, until the necessary modifications can be made. The new section 408(g) of the FFDCA provides essentially the same process for persons to “object” to a regulation for an exemption from the requirement of a tolerance issued by EPA under new section 408(d) of FFDCA, as was provided in the old sections 408 and 409 of the FFDCA. However, the period for filing objections is now 60 days, rather than 30 days.
You must file your objection or request a hearing on this regulation in accordance with the instructions provided in this unit and in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number OPP-2002-0348 in the subject line on the first page of your submission. All requests must be in writing, and must be mailed or delivered to the Hearing Clerk on or before May 9, 2003.
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Mail your written request to: Office of the Hearing Clerk (1900C), Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001. You may also deliver your request to the Office of the Hearing Clerk in Rm.104, Crystal Mall #2, 1921 Jefferson Davis Hwy., Arlington, VA. The Office of the Hearing Clerk is open from 8 a.m. to 4 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Office of the Hearing Clerk is (703) 603-0061.
2.
EPA is authorized to waive any fee requirement “when in the judgement of the Administrator such a waiver or refund is equitable and not contrary to the purpose of this subsection.” For additional information regarding the waiver of these fees, you may contact James Tompkins by phone at (703) 305-5697, by e-mail at
If you would like to request a waiver of the tolerance objection fees, you must mail your request for such a waiver to: James Hollins, Information Resources and Services Division (7502C), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001.
3.
A request for a hearing will be granted if the Administrator determines that the material submitted shows the following: There is a genuine and substantial issue of fact; there is a reasonable possibility that available evidence identified by the requestor would, if established resolve one or more of such issues in favor of the requestor, taking into account uncontested claims or facts to the contrary; and resolution of the factual issues(s) in the manner sought by the requestor would be adequate to justify the action requested (40 CFR 178.32).
This final rule establishes a tolerance under section 408(d) of the FFDCA in response to a petition submitted to the Agency. The Office of Management and Budget (OMB) has exempted these types of actions from review under Executive Order 12866, entitled
The Congressional Review Act, 5 U.S.C. 801
Environmental protection, Administrative practice and procedure, Agricultural commodities, Pesticides and pests, Reporting and recordkeeping requirements.
21 U.S.C. 321(q), 346(a) and 371.
(a) * * *
Federal Communications Commission.
Final rule.
This document dismisses a petition for rule making filed at the request of Maurice Salsa (“Salsa”) proposing the allotment of FM Channel 290A at Atoka, Oklahoma, as that community's second local FM transmission service (RM-10264).
Effective April 4, 2003. A filing window for Channel 290A at Haileyville, Oklahoma, will not be opened at this time. Instead, the issue of opening the allotment for auction will be addressed by the Commission in a subsequent Order.
Federal Communications Commission, 445 12th Street, SW., Washington, DC 20554.
Nancy Joyner, Media Bureau, (202) 418-2180.
This is a synopsis of the Commission's Report and Order, MM Docket No. 01-254, adopted February 12, 2003, and released February 18, 2003. The full text of this Commission decision is available for inspection and copying during normal business hours in the FCC's Reference Information Center (Room CY-A257), 445 Twelfth Street, SW., Washington, DC. The complete text of this decision may also be purchased from the Commission's copy contractor, Qualtex International, Portals II, 445 12th Street, SW., Room CY-B402, Washington, DC 20554, telephone (202) 863-2893.
Radio, Radio broadcasting.
47 U.S.C. 154, 303, 334, and 336.
Animal and Plant Health Inspection Service, USDA.
Request for comments.
The Animal and Plant Health Inspection Service is providing information to the public on technical aspects of its biotechnology regulatory program as it relates to permit conditions for field testing plants that have been genetically engineered. The Agency is also seeking public comment on ways to improve specific aspects of its program. The specific topics on which we are seeking comment include permit confinement measures, procedures to verify compliance, and ways to enhance the transparency of the permitting system.
We will consider all comments that we receive on or before May 9, 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. 03-031-1, 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. 03-031-1. 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
Rebecca Bech, Acting Director, Regulatory Policy Division, Biotechnology Regulatory Services, APHIS, 4700 River Road Unit 133, Riverdale, MD 20737-1236; (301) 734-7324.
The Coordinated Framework for Regulation of Biotechnology, issued by the Office of Science and Technology Policy in 1986 (51 FR 23302), describes the authorities the Federal Government uses to ensure that the development, testing, and use of the products of biotechnology occur in a manner that is safe for plant and animal health, human health, and the environment. The statutes include those administered by the Animal and Plant Health Inspection Service (APHIS), the Food and Drug Administration (FDA), and the Environmental Protection Agency.
Under the Plant Protection Act (7 U.S.C. 7701-7772), the Secretary of Agriculture may prohibit or restrict the importation, entry, or movement in interstate commerce of any plant, plant product, biological control organism, noxious weed, article, or means of conveyance, if the Secretary determines that the prohibition or restriction is necessary to prevent the introduction or the dissemination of a plant pest into the United States. The Secretary's authority under the Plant Protection Act has been delegated to the Administrator of APHIS.
Under that authority, APHIS administers regulations in 7 CFR part 340, “Introduction of Organisms and Products Altered or Produced Through Genetic Engineering Which Are Plant Pests or Which There Is Reason to Believe Are Plant Pests.” Part 340 (referred to below as the regulations) governs the introduction (importation, interstate movement, or release into the environment) of any organism or product altered or produced through genetic engineering that is a plant pest or that there is reason to believe is a plant pest, or any product which contains such an organism, or any organism that is unclassified and/or whose classification is unknown. The regulations refer to such organisms as “regulated articles.”
With certain limited exceptions, the importation or interstate movement of any regulated article is prohibited unless that movement is authorized by a permit issued by APHIS. Similarly, the release into the environment of any regulated article is likewise prohibited unless the release is authorized by a permit or, for specific classes of regulated articles, the Administrator has been notified of the release in accordance with § 340.3 of the regulations, which provides for the use, under certain circumstances, of a streamlined permitting procedure called notification.
Field test permits include detailed descriptions of the conditions under which the permit is issued. These conditions address movement of the regulated articles to the field test site, conduct of the field test, and then any movement of the regulated articles to facilities where the compounds of interest are extracted. Section 340.8 of the regulations provides specific container requirements for the movement of regulated articles. Other conditions are designed to confine the regulated articles to the test site during the test and ensure that they do not persist in the environment beyond the conclusion of the field test. APHIS will continue to require, on a case-by-case basis, that applicants submit additional protocols for review and approval when such protocols are deemed to be pertinent to the applicant's compliance with the regulations. Permit conditions also cover the period after harvest when the test site is monitored for any volunteer plants (plants originating from seeds of the crop planted the previous season). APHIS officers inspect field test sites, audit records, and review field data reports to verify compliance.
The APHIS Biotechnology Permitting Program is a flexible system that allows the Agency to tailor permit conditions to address new information, technical innovations, and experience gained from compliance monitoring, as well as feedback from the public. This flexibility enables the Agency to address new advances in science that affect current and future uses of the technology with genetically engineered plants.
In the past, most field testing has been done with plants engineered to achieve agronomic improvements, such as resistance to diseases and pests or tolerance to specific herbicides. Recently, however, a small number of field tests have been authorized for plants engineered to produce compounds that are intended for pharmaceutical uses. APHIS authorized over 1,000 field tests during 2002, of which fewer than 20 were for field tests of plants engineered to produce pharmaceutical compounds. In 2002, approximately 130 acres of pharmaceutical producing plants were planted in experimental field tests at 34 sites. Most of these test sites were less than 5 acres. It is anticipated, however, that the number of requests for permits for field tests, and the scale of production, will increase significantly over the next few years.
Very few permits have been issued to date for plants in which the modification was made for the expressed intent of producing an industrial compound. However, as with plants engineered to produce pharmaceutical compounds, we anticipate an increase in requests for field tests of these types of plants. “Industrial” plants include those genetically engineered plants that are not intended for use as food or feed, but rather are intended to produce compounds that will be extracted for industrial uses. The range of potential uses of such substances includes, for example, applications in detergent manufacturing, paper production, mineral recovery, or in purely experimental research.
APHIS is modifying its permit conditions and administrative procedures from those APHIS used in 2002. An example of a complete permit, with all conditions, can be viewed on the Internet at
A. APHIS will increase the size of the perimeter fallow zone (not in production) around the field test site from 25 to 50 feet. This measure is designed to ensure that test plants are not inadvertently commingled with plants to be used for food or feed. APHIS currently prohibits the use of the field test site and its perimeter fallow zone to be used to produce food or feed crops during the tests. APHIS is increasing the size of the perimeter fallow zone around the test site to allow farm machinery to move around the site and yet still prevent physical mixing of the regulated plants with surrounding plants that may be used for food or feed.
B. APHIS will restrict the production of food and feed crops at the field test site and perimeter fallow zone in the following season in cases where there is a potential for volunteer plants to be inadvertently harvested with the following crop.
C. APHIS will require that planters and harvesters be dedicated to use in the permitted test site(s) for the duration of the tests. In addition, while tractors and tillage attachments, such as disks, plows, harrows, and subsoilers, do not have to be dedicated, they must be cleaned in accordance with protocols approved by APHIS (
D. APHIS will require the use of dedicated facilities for the storage of equipment and regulated articles for the duration of the field test. Facilities must be cleaned according to APHIS-approved protocols prior to general use of the facilities.
E. APHIS will require cleaning procedures to be submitted and approved to minimize the risk of seed movement by field operations or equipment (movement of seed on tires of tractors, etc.) from the authorized test site.
F. APHIS will require procedures to be submitted and approved for seed cleaning and drying in order to confine the plant material and minimize the risk of seed loss or spillage.
G. APHIS will require the permittee to implement an approved training program to ensure that personnel are prepared to successfully implement and comply with permit conditions.
A. APHIS will require that there will be no corn grown within 1 mile (5,280 feet) of the field test site throughout the duration of any field test which involves open-pollinated corn. This establishes a physical isolation distance that is eightfold greater than the isolation distance required for the production of foundation seed (660 feet). When pollen flow is controlled by placing bags around the corn tassels, there will be no other corn within 2,640 feet of the field test site, and the pharmaceutical corn must be planted no less than 28 days before or 28 days after any corn growing in a zone extending from 2,640 to 5,280 feet from the field test site, ensuring there is no overlap in anthesis.
B. With the establishment of isolation distances of 1 mile for open-pollinated corn and one-half mile for controlled pollination corn field tests, APHIS will not allow the use of border rows to reduce these isolation distances. APHIS believes that other methods are available and do not pose the difficulties inherent in using border rows. For example, by eliminating the use of border rows/buffer strips, there will be a reduction in the amount of plant material that must be disposed of after the field test is terminated (border rows are handled the same as the regulated article, as their proximity to the plots make them possible pollen recipients). This should reduce the possibility of inadvertent mixing of regulated articles with nonregulated plant material.
In order to ensure compliance with the regulations, as well as all permit conditions, APHIS will increase the number of field site inspections during the upcoming growing season to correspond with critical times relevant to the confinement measures. Examples might include inspection at the pre-planting stage to evaluate the site location; at the planting stage to verify site coordinates and adequate cleaning of planting equipment; at midseason to verify reproduction isolation protocols and distances; at harvest to verify cleaning of equipment and appropriate storage; at post-harvest to verify cleanup at the field site; and for the following growing season, inspections will be timed to ensure that regulated articles
The permittee must, as always, maintain records of activities related to meeting the permitting conditions. APHIS will increase the auditing of the permittee's records to verify that required permit conditions were accomplished. APHIS will continue to require permittees to regularly inspect sites and maintain accurate records that will be available for APHIS auditing. The permittee will be required to record all efforts undertaken to meet the confinement protocols and other permit conditions. Some of this information will be related to agronomic information (
Transparency of the regulatory system and information about its effectiveness are essential ingredients for informed dialogue with the public. APHIS believes that effective communication and dialogue with interested parties and the public are necessary to enable continued refinement of its regulatory system and help instill confidence in the safety of field testing.
APHIS recognizes the need to provide relevant and timely information to the public on all aspects of the regulations, including information on APHIS authorizations for field testing. APHIS is responding to the increased public interest in the types of genetically engineered plants that are being developed for potential use in medical, veterinary, food processing, and other applications in addition to the more traditional uses in plant variety development for growers.
For example, APHIS provides information on its website on field tests the Agency has authorized and also those pending authorization. In light of increased public interest in the types of confinement standards APHIS uses for field tests of plants engineered to produce pharmaceutical compounds, the Agency posted a letter to potential permit applicants regarding such standards on its website (
In addition, FDA, in collaboration with APHIS's Biotechnology Regulatory Services and Center for Veterinary Biologics, recently published draft guidance for scientific questions and information to be considered during development of a protein pharmaceutical in a genetically engineered crop (
This
1. As explained above, APHIS is taking steps to increase transparency of its regulatory approach to plants engineered to produce pharmaceutical and industrial compounds. APHIS seeks comment on additional measures that the Agency can take or employ to increase transparency and to enhance the flow of information to interested parties and the public.
2. APHIS seeks comment on alternative procedures, and the scientific data or technical rationale on which they are based, for ensuring adequate confinement for field tests.
3. APHIS seeks comment on appropriate training standards, the use of third party auditors, standard-setting organizations, or other quality control mechanisms to monitor and ensure compliance. In addition, commenters are asked to provide information on other measures or approaches that APHIS might use to verify compliance.
We welcome all comments on the scope and approach of the actions outlined above and encourage the submission of ideas on any associated topics or other suggestions. APHIS will consider all comments and recommendations in developing additional guidance.
In accordance with section 3507(j) of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
We plan to request continuation of that approval for 3 years. Please send written comments on the 3-year approval request to the following addresses: (1) Office of Information and Regulatory Affairs, OMB, Attention: Desk Officer for APHIS, Washington, DC 20503; and (2) Docket No. 03-031-1, Regulatory Analysis and Development, PPD, APHIS, Station 3C71, 4700 River Road Unit 118, Riverdale, MD 20737-1238. Please state that your comments refer to Docket No. 03-031-1 and send your comments within 60 days of publication of this notice.
The changes in permit conditions described in this notice will result in additional recordkeeping and reporting.
We are soliciting comments from the public (as well as affected agencies) concerning our information collection and recordkeeping requirements. These comments will help us:
(1) Evaluate whether the proposed information collection is necessary for the proper performance of our agency's functions, including whether the information will have practical utility;
(2) Evaluate the accuracy of our estimate of the burden of the proposed information collection, including the validity of the methodology and assumptions used;
(3) Enhance the quality, utility, and clarity of the information to be collected; and
(4) Minimize the burden of the information collection on those who are to respond (such as through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology;
Copies of this information collection can be obtained from Mrs. Celeste Sickles, APHIS' Information Collection Coordinator, at (301) 734-7477.
7 U.S.C. 166, 1622n, 7756, and 7761-7772; 31 U.S.C. 9701; 7 CFR 2.22, 2.80, and 371.3.
Agricultural Marketing Service, USDA.
Proposed rule.
This rule would increase the assessment rate established for the California Olive Committee (committee) for the 2003 and subsequent fiscal years from $10.09 to $13.89 per ton of olives handled. The committee locally administers the marketing order regulating the handling of olives grown in California. Authorization to assess olive handlers enables the committee to incur expenses that are reasonable and necessary to administer the program. The fiscal year began January 1 and ends December 31. The assessment rate would remain in effect indefinitely unless modified, suspended, or terminated.
Comments must be received by April 9, 2003.
Interested persons are invited to submit written comments concerning this rule. Comments must be sent to the Docket Clerk, Marketing Order Administration Branch, Fruit and Vegetable Programs, AMS, USDA, 1400 Independence Avenue SW., STOP 0237, Washington, DC 20250-0237; Fax: (202) 720-8938, or E-mail:
Toni Sasselli, Program Assistant, California Marketing Field Office, Marketing Order Administration Branch, Fruit and Vegetable Programs, AMS, USDA, 2202 Monterey Street, Suite 102B, Fresno, California 93721; telephone: (559) 487-5901, Fax: (559) 487-5906; or George Kelhart, Technical Advisor, Marketing Order Administration Branch, Fruit and Vegetable Programs, AMS, USDA, 1400 Independence Avenue SW., STOP 0237, Washington, DC 20250-0237; telephone: (202) 720-2491, Fax: (202) 720-8938.
Small businesses may request information on complying with this regulation by contacting Jay Guerber, Marketing Order Administration Branch, Fruit and Vegetable Programs, AMS, USDA, 1400 Independence Avenue SW., STOP 0237, Washington, DC 20250-0237; telephone (202) 720-2491, Fax: (202) 720-8938, or E-mail:
This rule is issued under Marketing Agreement No. 148 and Order No. 932, both as amended (7 CFR part 932), regulating the handling of olives grown in California, hereinafter referred to as the “order.” The order is effective under the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-674), hereinafter referred to as the “Act.”
The Department of Agriculture (USDA) is issuing this rule in conformance with Executive Order 12866.
This rule has been reviewed under Executive Order 12988, Civil Justice Reform. Under the marketing order now in effect, California olive handlers are subject to assessments. Funds to administer the order are derived from such assessments. It is intended that the assessment rate as proposed herein would be applicable to all assessable olives beginning on January 1, 2003, and continue until amended, suspended, or terminated. This rule will not preempt any State or local laws, regulations, or policies, unless they present an irreconcilable conflict with this rule.
The Act 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 file with USDA 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 law and request a modification of the order or to be exempted therefrom. Such handler is afforded the opportunity for a hearing on the petition. After the hearing USDA 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 his or her principal place of business, has jurisdiction to review USDA's ruling on the petition, provided an action is filed not later than 20 days after the date of the entry of the ruling.
This rule would increase the assessment rate established for the committee for the 2003 and subsequent fiscal years from $10.09 per ton to $13.89 per ton of olives.
The California olive marketing order provides authority for the committee, with the approval of USDA, to formulate an annual budget of expenses and collect assessments from handlers to administer the program. The members of the committee are producers and handlers of California olives. They are familiar with the committee's needs and with the costs for goods and services in their local area and are thus in a position to formulate an appropriate budget and assessment rate. The assessment rate is formulated and discussed in a public meeting. Thus, all directly affected persons have an opportunity to participate and provide input.
For the 2002 and subsequent fiscal years, the committee recommended, and USDA approved, an assessment rate that would continue in effect from fiscal year to fiscal year unless modified, suspended, or terminated by USDA upon recommendation and information submitted by the committee or other information available to USDA.
The committee met on December 11, 2002, and unanimously recommended fiscal year 2003 expenditures of $1,230,590 and an assessment rate of $13.89 per ton of olives. In comparison, last year's budgeted expenditures were $1,428,585. The assessment rate of $13.89 is $3.80 higher than the $10.09 rate currently in effect.
Expenditures recommended by the committee for the 2003 fiscal year include $633,500 for marketing development, $347,090 for administration, and $250,000 for research. Budgeted expenses for these items in 2002 were $811,935 for marketing development, $339,650 for administration, and $250,000 for research.
The assessment rate recommended by the committee was derived by considering anticipated expenses, actual olive tonnage received by handlers, and additional pertinent factors. The California Agricultural Statistics Service (CASS) reported olive receipts for the 2002-03 crop year at 89,006 tons, which compares to 123,439 for the 2001-02 crop year. The reduction in the crop size for the 2002-03 crop year, due in large part to the alternate-bearing
The assessable tonnage for the 2003 fiscal year is expected to be less than the receipts of 89,006 tons reported by CASS, because some olives may be diverted by handlers to uses that are exempt from marketing order requirements. The quantity of olives that is expected to be diverted cannot be published in this document. The olive industry consists of only three handlers, two of which are much larger than the third, and the confidentially of this handler information must be maintained to protect the proprietary business positions of each of the handlers.
The proposed assessment rate would continue in effect indefinitely unless modified, suspended, or terminated by USDA upon recommendation and information submitted by the Committee or other available information.
Although this assessment rate would be in effect for an indefinite period, the committee would continue to meet prior to or during each fiscal year to recommend a budget of expenses and consider recommendations for modification of the assessment rate. The dates and times of committee meetings are available from the committee or USDA. Committee meetings are open to the public and interested persons may express their views at these meetings. USDA would evaluate committee recommendations and other available information to determine whether modification of the assessment rate is needed. Further rulemaking would be undertaken as necessary. The committee's 2003 budget and those for subsequent fiscal years would be reviewed and, as appropriate, approved by USDA.
Pursuant to requirements set forth in the Regulatory Flexibility Act (RFA), the Agricultural Marketing Service (AMS) has considered the economic impact of this rule on small entities. Accordingly, AMS has prepared this initial regulatory flexibility analysis.
The purpose of the RFA is to fit regulatory actions to the scale of business subject to such actions in order that small businesses will not be unduly or disproportionately burdened. Marketing orders issued pursuant to the Act, and the rules issued thereunder, are unique in that they are brought about through group action of essentially small entities acting on their own behalf. Thus, both statutes have small entity orientation and compatibility.
There are approximately 1,200 producers of olives in the production area and 3 handlers subject to regulation under the marketing order. Small agricultural producers are defined by the Small Business Administration (13 CFR 121.601) as those having annual receipts less than $750,000, and small agricultural service firms are defined as those whose annual receipts are less than $5,000,000.
Based upon information from the committee, the majority of olive producers may be classified as small entities. One of the handlers may be classified as a small entity, but the majority of the handlers may be classified as large entities.
This rule would increase the assessment rate established for the committee and collected from handlers for the 2003 and subsequent fiscal years from $10.09 per ton to $13.89 per ton of olives. The committee unanimously recommended 2003 expenditures of $1,230,590 and an assessment rate of $13.89 per ton. The proposed assessment rate of $13.89 per ton is $3.80 per ton higher than the 2002 rate. The quantity of olive receipts for the 2002-03 crop year was reported by CASS to be 89,006 tons, but the actual assessable tonnage for the 2003 fiscal year is expected to be lower. This is because some of the receipts are expected to be diverted by handlers to exempt outlets on which assessments are not paid. The amount of assessable tonnage cannot be reported in this document. The amount of the exempt tonnage must be kept confidential so the business position of each of the three olive handlers is not revealed. The $13.89 per ton assessment rate should be adequate to meet this year's expenses when combined with funds from the authorized reserve and interest income. Funds in the reserve will be kept within the maximum permitted by the order of about one fiscal period's expenses (§ 932.40).
Expenditures recommended by the committee for the 2003 fiscal year include $633,500 for marketing development, $347,090 for administration, and $250,000 for research. Budgeted expenses for these items in 2002 were $811,935 for marketing development, $339,650 for administration, and $250,000 for research.
Last year's olive receipts totaled 123,439 tons compared to this year's tonnage of 89,006. Although the committee decreased 2003 expenses, the significant decrease in olive production makes the higher assessment rate necessary.
The research expenditures will fund studies to develop chemical and scientific defenses to counteract a threat from the olive fruit fly in the California production area. Market development expenditures are lower because the committee's marketing program for 2003 is limited to consumer and nutritionist activities. The committee reviewed and unanimously recommended 2003 expenditures of $1,230,590, which reflects decreases in the research, market development, and administrative budgets.
Prior to arriving at this budget, the committee considered information from various sources, such as the committee's Executive Subcommittee and the Market Development Subcommittee. Alternate spending levels were discussed by these groups, based upon the relative value of various research and marketing projects to the olive industry and the anticipated olive production. The assessment rate of $13.89 per ton of assessable olives was derived by considering anticipated expenses, the volume of assessable olives, and additional pertinent factors.
A review of historical and preliminary information pertaining to the upcoming fiscal year indicates that the grower price for the 2002-03 crop year is estimated to be approximately $672 per ton for canning fruit and $306 per ton for limited-use size fruit. Approximately 85 percent of a ton of olives are canning fruit sizes and 10 percent are limited-use sizes, leaving the balance as unusable cull fruit. Total grower revenue on 89,006 tons would then be $53,563,811 given the percentage of canning and limited-use sizes and current grower prices for those sizes. Therefore, if the assessment rate is increased from $10.09 to $13.89, the estimated assessment revenue is expected to be approximately 2.3 percent of grower revenue.
This action would increase the assessment obligation imposed on handlers. While assessments impose some additional costs on handlers, the costs are minimal and uniform on all handlers. Some of the additional costs may be passed on to producers. However, these costs are offset by the benefits derived by the operation of the marketing order. In addition, the committee's meeting was widely publicized throughout the California
This proposed rule would impose no additional reporting or recordkeeping requirements on California olive handlers. As with all Federal marketing order programs, reports and forms are periodically reviewed to reduce information requirements and duplication by industry and public sector agencies.
USDA has not identified any relevant Federal rules that duplicate, overlap, or conflict with this rule.
A small business guide on complying with fruit, vegetable, and specialty crop marketing agreements and orders may be viewed at:
A 30-day comment period is provided to allow interested persons to respond to this proposed rule. Thirty days is deemed appropriate because: (1) The 2003 fiscal year began on January 1, 2003, and the marketing order requires that the rate of assessment for each fiscal year apply to all assessable olives handled during such fiscal year; (2) the committee needs to have sufficient funds to pay its expenses which are incurred on a continuous basis; and (3) handlers are aware of this action which was unanimously recommended by the committee at a public meeting and is similar to other assessment rate actions issued in past years.
Marketing agreements, Olives, Reporting and recordkeeping requirements.
For the reasons set forth in the preamble, 7 CFR part 932 is proposed to be amended as follows:
1. The authority citation for 7 CFR part 932 continues to read as follows:
7 U.S.C. 601-674.
2. Section 932.230 is revised to read as follows:
On and after January 1, 2003, an assessment rate of $13.89 per ton is established for California olives.
Federal Aviation Administration, DOT.
Notice of proposed rulemaking (NPRM).
The Federal Aviation Administration (FAA) proposes to supersede an existing airworthiness directive (AD), applicable to Turbomeca Arriel 1 A, 1 A1, 1 A2, 1 B, 1 C, 1 C1, 1 C2, 1 D, and 1 D1 turboshaft engines. That AD currently requires repetitive checks for engine rubbing noise during gas generator rundown following engine shutdown, and for free rotation of the gas generator by rotating the compressor manually after the last flight of the day. In addition, the AD 95-11-01 requires installation of modification TU 202 or TU 197 as terminating action to the repetitive checks. This proposal would add additional engine models to the applicability section, would eliminate the installation of modification TU 197 as a terminating action to the repetitive checks, would require additional inspections for engines that have modification TU 197 installed, and would require the replacement of modifications TU 76 and TU 197 with modification TU 202, as a terminating action to the repetitive checks and inspections. This proposal is prompted by a report of an in-flight engine shutdown on an engine that had modification TU 197 installed, and the need to update the modification standard on certain engine models. The actions specified by the proposed AD are intended to prevent engine failure due to rubbing of the 2nd stage turbine disk on the 2nd stage turbine nozzle guide vanes, which could result in complete engine failure and damage to the helicopter.
Comments must be received by May 9, 2003.
Submit comments in triplicate to the Federal Aviation Administration (FAA), New England Region, Office of the Regional Counsel, Attention: Rules Docket No. 94-ANE-08-AD, 12 New England Executive Park, Burlington, MA 01803-5299. Comments may be inspected at this location, by appointment, between 8 a.m. and 4:30 p.m., Monday through Friday, except Federal holidays. Comments may also be sent via the Internet using the following address:
The service information referenced in the proposed rule may be obtained from 40220 Tarnos, France; telephone (33) 05 59 64 40 00, fax (33) 05 59 64 60 80. This information may be examined, by appointment, at the FAA, New England Region, Office of the Regional Counsel, 12 New England Executive Park, Burlington, MA.
Antonio Cancelliere, Aerospace Engineer, Engine Certification Office, FAA, Engine and Propeller Directorate, 12 New England Executive Park, Burlington, MA 01803-5299; telephone (781) 238-7751; fax (781) 238-7199.
Interested persons are invited to participate in the making of the proposed rule by submitting such written data, views, or arguments as they may desire. Communications should identify the Rules Docket number and be submitted in triplicate to the address specified above. All communications received on or before the closing date for comments, specified above, will be considered before taking action on the proposed rule. The proposals contained in this action may be changed in light of the comments received.
Comments are specifically invited on the overall regulatory, economic, environmental, and energy aspects of the proposed rule. All comments submitted will be available, both before and after the closing date for comments, in the Rules Docket for examination by interested persons. A report summarizing each FAA-public contact concerned with the substance of this proposal will be filed in the Rules Docket.
Commenters wishing the FAA to acknowledge receipt of their comments submitted in response to this action must submit a self-addressed, stamped
Any person may obtain a copy of this NPRM by submitting a request to the FAA, New England Region, Office of the Regional Counsel, Attention: Rules Docket No. 94-ANE-08-AD, 12 New England Executive Park, Burlington, MA 01803-5299.
On May 15, 1995, the FAA issued airworthiness directive (AD) 95-11-01, Amendment 39-9235 (60 FR 27023, May 22, 1995), applicable to Turbomeca Arriel 1 series turboshaft engines, to require repetitive checks for engine rubbing noise during gas generator rundown following engine shutdown, and for free rotation of the gas generator by rotating the compressor manually at a daily interval until installation of improved 2nd stage turbine nozzle guide vanes. That action was prompted by comments submitted by operators of the affected engines in response to a previous AD and the availability of improved design 2nd stage turbine nozzle guide vanes. That condition, if not corrected, could result in engine failure due to rubbing of the 2nd stage turbine disk on the 2nd stage turbine nozzle guide vanes, which could result in complete engine failure and damage to the helicopter.
The Direction Generale de L'Aviation Civile (DGAC), which is the airworthiness authority for France, notified the FAA that an unsafe condition may exist on Turbomeca Arriel 1 B, 1 C, 1 C1, 1 C2, 1 D, and 1 D1 turboshaft engines.
Since AD 95-11-01 was issued, the DGAC advises that it has received a report of an in-flight engine shutdown on an engine that had improved 2nd stage turbine nozzle guide vanes, modification TU 197, installed. In this particular event, a crack initiated in a machined slot located between the vanes on the inner ring. The crack propagated and resulted in separation of the inner ring. This failure mode is different than that experienced on engines that have premodification TU 197 2nd stage turbine nozzle guide vanes installed. Installation of modification TU 197 is identified as a terminating action to the repetitive checks for the current AD. As a result of this event, the proposed AD requires additional borescope inspections for engines that have modification TU 197 installed.
The DGAC has also determined that modification TU 76 should be replaced with modification TU 202 on Arriel 1 B, 1 D, and 1 D1 engines. The manufacturer has informed the FAA that modification TU 202 may have already been installed on all Arriel 1 B, 1 D, and 1 D1 engines installed on helicopters of U.S. registry. However, for completeness, the proposed AD requires the removal of modification TU 76 or TU 197 and replacement with modification TU 202 before further flight after the effective date of this AD, to cover any potential engines that may not have been modified already.
The proposed AD will also require replacement of the 2nd stage nozzle guide vanes, having modification TU 197, with modification TU 202 on all Arriel 1 A, 1 A1, 1 A2, 1 C, 1 C1, 1 C2, 1 E2, 1 K, 1 K1, 1 S, and 1 S1 engines at next engine shop visit after the effective date of the proposed AD, but no later than December 31, 2006. Installation of modification TU 202 constitutes terminating action to the repetitive checks and inspections.
The Arriel 1 E2, 1 K, 1 K1, 1 S, and 1 S1 engine models have also been added to the applicability section of the proposed AD since they are susceptible to the same problem.
Turbomeca has issued the following Arriel 1 service bulletins (SBs) and alert service bulletins (ASBs):
• SB No. 292 72 0181, Update 3, dated September 15, 1995, that describes procedures for checking for unusual noise during gas generator rundown on engine shutdown and after the last flight of the day.
• ASB No. A292 72 0212, Update 5, dated August 8, 2001, that describes procedures for post Module TU 197 initial and repetitive borescope inspections of the nozzle guide vanes for cracks.
• ASB No. A292 72 0150, Update 6, dated September 4, 2000, that describes procedures for replacing modifications TU 76 and TU 197 with modification TU 202.
The DGAC has classified ASB No. A292 72 0212, Update 5, dated August 8, 2001, as mandatory and issued AD DGAC 98-311 (A) R1, dated October 7, 1998, in order to assure the airworthiness of these Turbomeca engines in France.
Turbomeca SB No. 292 72 0181 allows 50 flight hours between checks for unusual noise during gas generator rundown on Arriel 1 A, 1 A1, and 1 A2 engines with modification TU 76; and 1 C, 1 C1, 1 C2, 1 K, 1 K1, and 1 S engines before modification to TU 197 or TU 202. This proposed AD would require that the checks be performed during engine shutdown after the last flight of the day or after a 5 second ventilation.
This engine model is manufactured in France and is type certificated for operation in the United States under the provisions of section 21.29 of the Federal Aviation Regulations (14 CFR 21.29) and the applicable bilateral airworthiness agreement. Pursuant to this bilateral airworthiness agreement, the DGAC has kept the FAA informed of the situation described above. The FAA has examined the findings of the DGAC, reviewed all available information, and determined that AD action is necessary for products of this type design that are certificated for operation in the United States.
Since an unsafe condition has been identified that is likely to exist or develop on other Turbomeca Arriel 1 A, 1 A1, 1 A2, 1 B, 1 C, 1 C1, 1 C2, 1 D, 1 D1, 1 E2, 1 K, 1 K1, 1 S, and 1 S1 turboshaft engines of the same type design that are installed on helicopters registered in U.S., the proposed AD would supersede AD 95-11-01 to:
• Add additional engine models to the applicability section, and
• Eliminate the installation of modification TU 197 as a terminating action to the repetitive checks, and
• Require additional inspections for engines that have modification TU 197 installed, and
• Require the replacement of modifications TU 76 and TU 197 with modification TU 202 on Arriel 1 B, 1 D, and 1 D1 engines before further flight, and
• Replacement of TU 197 with modification TU 202 as a terminating action to the repetitive checks and inspections.
There are approximately 487 engines of the affected design in the worldwide fleet. The FAA estimates that 47 engines installed on aircraft of U.S. registry would be affected by this proposed AD, that it would take approximately 4 work hours per engine to do the proposed inspections, including removal and installation of the gas generator module, and that the average labor rate is $60 per work hour. Required parts would cost approximately $18,600 per engine. Based on these figures, the cost per
This proposed rule does not have federalism implications, as defined in Executive Order 13132, because it would not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. Accordingly, the FAA has not consulted with state authorities prior to publication of this proposed rule.
For the reasons discussed above, I certify that this proposed regulation (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and (3) if promulgated, will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. A copy of the draft regulatory evaluation prepared for this action is contained in the Rules Docket. A copy of it may be obtained by contacting the Rules Docket at the location provided under the caption
Air transportation, Aircraft, Aviation safety, Safety.
Accordingly, pursuant to the authority delegated to me by the Administrator, the Federal Aviation Administration proposes to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) as follows:
1. The authority citation for part 39 continues to read as follows:
49 U.S.C. 106(g), 40113, 44701.
2. Section 39.13 is amended by removing Amendment 39-9235, (60 FR 27023, May 22, 1995), and by adding a new airworthiness directive:
This airworthiness directive (AD) applies to each engine identified in the preceding applicability provision, regardless of whether it has been modified, altered, or repaired in the area subject to the requirements of this AD. For engines that have been modified, altered, or repaired so that the performance of the requirements of this AD is affected, the owner/operator must request approval for an alternative method of compliance in accordance with paragraph (k) of this AD. The request should include an assessment of the effect of the modification, alteration, or repair on the unsafe condition addressed by this AD; and, if the unsafe condition has not been eliminated, the request should include specific proposed actions to address it.
To prevent engine failure due to rubbing of the 2nd stage turbine disk on the 2nd stage nozzle guide vanes, which could result in complete engine failure and damage to the helicopter, do the following:
(a) For Turbomeca Arriel 1 A, 1 A1, 1 A2, 1 B, 1 C, 1 C1, 1 C2, 1 D, 1 D1, 1 E2, 1 K, 1 K1, 1 S, and 1 S1 turboshaft engines that have incorporated modification TU 202, no further action is required.
(b) For Turbomeca Arriel turboshaft engines Models 1 B, 1 D, or 1 D1 that have modification TU 76 or TU 197 installed, before further flight after the effective date of this AD, replace modification TU 76 or TU 197 with modification TU 202 in accordance with 2.B.(1) through 2.C.(2) of Arriel 1 Alert Service Bulletin (ASB) No. A292 72 0150, Update 6, dated September 4, 2000.
(c) For Arriel 1 A, 1 A1, 1 A2, 1 C, 1 C1, 1 C2, 1 E2, 1 K, 1 K1, 1 S, and 1 S1 engines with modification TU 197 installed, perform the following daily checks:
(1) After the last flight of the day or after a ventilation (maximum of 5 seconds), immediately after engine stopping, listen for unusual engine rubbing noise during the gas generator rundown, and
(2) During the check after the last flight of the day, when the T4 temperature is below 150°C (302°F), perform a ventilation (5 seconds maximum) during gas generator rundown or check for free rotation of the gas generator and unusual noise by turning the compressor by hand.
(3) If any rubbing noise is heard and the source of the noise cannot be identified, replace module M03.
(d) For Arriel 1 A, 1 A1, 1 A2, 1 C, 1 C1, 1 C2, 1 E2, 1 K, 1 K1, 1 S, and 1 S1 engines with modification TU 197 installed, do the following:
(1) Perform initial borescope inspections for cracks of the second stage nozzle guide vanes (NGV2) in accordance with 2.B.(a) through 2.B.(c)(
(2) If the 2nd stage nozzle guide vanes do not meet the acceptance criteria specified in 2.B.(c)(
(e) Thereafter, for Arriel 1 A, 1 A1, 1 A2, 1 C, 1 C1, 1 C2, 1 E2, 1 K, 1 K1, 1 S, and 1 S1 engines with modification TU 197 installed, do the following:
(1) Perform the first repetitive borescope inspection for cracks of the NGV2 in accordance with 2.B.(a) through 2.(c)(
(2) If the 2nd stage nozzle guide vanes do not meet the acceptance criteria specified in 2.B.(c)(
(f) Thereafter, for Arriel 1 A, 1 A1, 1 A2, 1 C, 1 C1, 1 C2, 1 E2, 1 K, 1 K1, 1 S, and 1 S1 engines with modification TU 197 installed, do the following:
(1) Repeat the borescope inspection of the NGV2 in accordance with 2.B.(a) through 2.B.(c)(
(2) If the 2nd stage nozzle guide vanes do not meet the acceptance criteria specified in 2.B.(c)(
(g) For 1 A, 1 A1, 1 A2, 1 C, 1 C1, 1 C2, 1 E2, 1K, 1 K1, 1 S, and 1 S1 engines that have modification TU 197 installed, install the improved 2nd stage nozzle guide vanes, modification TU 202 at next shop visit after the effective date of this AD, but not later than December 31, 2006, in accordance with 2.B. through 2.C. of Arriel 1 ASB No. A292 72 0150, Update No. 6, dated September 4, 2000.
(h) Installation of the improved 2nd stage nozzle guide vane, modification TU 202, constitutes terminating action to the checks and inspections required by paragraphs (c)(1), (c)(2), and (d)(1) through (d)(3) of this AD.
(i) The checks required by paragraph (c)(1) and (c)(2) of this AD may be performed by the pilot holding at least a private pilot certificate as an exception to the requirements of part 43 of the Federal Aviation Regulations (14 CFR part 43). The checks must be recorded in accordance with §§ 43.9 and 91.417(a)(2)(v) of the Federal Aviation Regulations (14 CFR 43.9 and 14 CFR 91.417(a)(2)(v)), and the records must be maintained as required by the applicable Federal Aviation Regulation.
(j) An alternative method of compliance or adjustment of the compliance time that provides an acceptable level of safety may be used if approved by the Manager, Engine Certification Office (ECO). Operators must submit their request through an appropriate FAA Principal Maintenance Inspector, who may add comments and then send it to the Manager, ECO.
Information concerning the existence of approved alternative methods of compliance with this airworthiness directive, if any, may be obtained from the ECO.
(k) Special flight permits may be issued in accordance with §§ 21.197 and 21.199 of the Federal Aviation Regulations (14 CFR 21.197 and 21.199) to operate the helicopter to a location where the requirements of this AD can be done.
The subject of this AD is addressed in DGAC airworthiness directive DGAC 98-311 (A) R1, dated October 7, 1998.
Bureau of Land Management, Interior.
Advance notice of proposed rulemaking for proposed amendments to the BLM's Grazing Administration Regulations and announcement of public meetings; correction.
The Bureau of Land Management (BLM) in this document corrects one internet address and removes reference to another internet address to which the public cannot get access that appear in the advance notice of proposed rulemaking regarding proposed amendments to BLM's Grazing Administration Regulations, published in the
Ted Hudson, 202-452-5042.
In proposed rule FR Doc. 03-4933, beginning on page 9964 in the issue of March 3, 2003, make the following corrections:
1. In the Addresses section, on page 9964 in the 3rd column, correct the internet address immediately following the subheading “Direct Internet response” to read:
2. In the Supplementary Information section, on page 9966, in the 2nd column, correct the final paragraph of the advance notice of proposed rulemaking by revising it to read:
“Additional information about BLM's Rangeland, Soils, Water, and Air Program is available at any State Office or field office of the Bureau of Land Management.”
Federal Communications Commission.
Proposed rule.
This document sets forth a proposal to amend the FM Table of Allotment of the Commission's rules. The Commission requests comment on a petition filed by Piedmont Communications, Inc. and Old Belt Broadcasting Corporation (together, “Joint Petitioners”) pursuant to section 1.420(i) of the Commission's rules. Joint Petitioners propose to change the community of allotment and the corresponding channel allotment for Channel 255A at Orange, Virginia, to Channel 255B1 at Midlothian, Virginia, and to modify the license of WJMA-FM accordingly. In order to facilitate those changes, Joint Petitioners further propose to substitute Channel 270A for Channel 255C3 at South Hill, Virginia, and to modify the WKSK-FM license to specify operation on Channel 270A. To accommodate this proposal, Joint Petitioners also request substitution of Channel 271C0 for Channel 271C at Reidsville, North Carolina. Channel 255B1 can be allotted to Midlothian in compliance with the Commission's minimum distance separation requirements with a site restriction of 12.7 km (7.9 miles) northwest of Midlothian. The coordinates for Channel 255B1 at Midlothian are 37-35-23 North Latitude and 77-44-49 West Longitude. Channel 270A can be allotted to South Hill in compliance with the Commission's minimum distance separation requirements with a site restriction of 12.4 km (7.7 miles) northwest of South Hill. The coordinates for Channel 270A at South Hill are 36-46-48 North Latitude and 78-15-04 West Longitude. Channel 271C0 can be allotted at Reidsville, North Carolina, at the current coordinates for Channel 271C. Because Midlothian is not listed in the United
Comments must be filed on or before April 11, 2003, and reply comments on or before April 28, 2003.
Federal Communications Commission, Washington, DC 20554. In addition to filing comments with the FCC, interested parties should serve counsel for the petitioner as follows: Mark J. Prak, Brooks Pierce McLendon, Post Office Box 1800, Raleigh, NC 27602; Peter Gutmann, Womble, Carlyle, Sandridge & Rice, PLLC, 1401 Eye Street, NW., Washington, DC 20005; Mark N. Lipp, J. Thomas Nolan, Shook, Hardy & Bacon, 600 Fourteenth Street, NW., Suite 800, Washington, DC 20005; and Brian M. Madden, Leventhal Senter & Lerman, PLLC, 2000 K Street, NW., Suite 600, Washington, DC 20006.
Deborah A. Dupont, Media Bureau (202) 418-7072.
This is a synopsis of the Commission's Notice of Proposed Rule Making, MB Docket No. 03-47; adopted February 12, 2003 and released February 18, 2003. 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 20554, telephone (202) 863-2893.
The 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 North Carolina, is amended by removing Channel 271C and by adding Channel 271C0 at Reidsville.
3. Section 73.202(b), the Table of FM Allotments under Virginia, is amended by removing Orange, Channel 255A, and by adding Midlothian, Channel 255B1.
4. Section 73.202(b), the Table of FM Allotments under Virginia, is amended by removing Channel 255C3 and by adding Channel 270A at South Hill.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Proposed rule; request for comments.
NMFS proposes specifications for the spiny dogfish fishery for the 2003 fishing year, which is May 1, 2003, through April 30, 2004. The implementing regulations for the Spiny Dogfish Fishery Management Plan (FMP) require NMFS to publish specifications for the upcoming fishing year and to provide an opportunity for public comment. The intent is to specify the commercial quota and other management measures, such as trip limits, to address overfishing of the spiny dogfish resource.
Public comments must be received (see
Written comments on the proposed specifications should be sent to Patricia A. Kurkul, Regional Administrator, Northeast Region, National Marine Fisheries Service, One Blackburn Drive, Gloucester, MA 01930-2298. Mark on the outside of the envelope, “Comments—2003 Spiny Dogfish Specifications.” Comments may also be sent via facsimile (fax) to (978) 281-9135. Comments will not be accepted if submitted via e-mail or the Internet.
Copies of supporting documents used by the Joint Spiny Dogfish Committee and the Spiny Dogfish Monitoring Committee; the Environmental Assessment, Regulatory Impact Review, Initial Regulatory Flexibility Analysis (EA/RIR/IRFA); and the Essential Fish Habitat Assessment (EFHA) are available from Daniel Furlong, Executive Director, Mid-Atlantic Fishery Management Council, Federal Building, Room 2115, 300 South Street, Dover, DE 19904. The EA, RIR, IRFA and EFHA are accessible via the Internet at
Eric Jay Dolin, Fishery Policy Analyst, (978)281-9259, fax (978)281-9135, e-mail
NMFS declared spiny dogfish overfished on April 3, 1998, and added this species to that year's list of overfished stocks in its
The regulations implementing the FMP at 50 CFR part 648, subpart L, outline the process for specifying annually the commercial quota and other management measures (e.g., minimum or maximum fish sizes, seasons, mesh size restrictions, trip limits, and other gear restrictions) for the spiny dogfish fishery to achieve the annual target F specified in the FMP. The target F for the 2003 fishing year is 0.03.
The Spiny Dogfish Monitoring Committee (Monitoring Committee), comprised of representatives from states, MAFMC staff, New England Fishery Management Council (NEFMC) staff, NMFS staff, and two non-voting, ex-officio industry representatives (one each from the Mid-Atlantic and Northeast regions), is required to review annually the best available information and to recommend a commercial quota and other management measures necessary to achieve the target F for the upcoming fishing year. The Councils' Joint Spiny Dogfish Committee (Joint Committee) then considers the Monitoring Committee's recommendations and any public comment in making its recommendation to the two Councils. Afterwards, the MAFMC and the NEFMC make their recommendations to NMFS. NMFS reviews those recommendations to ensure that they are consistent with the target F level, and publishes proposed measures for public comment.
The Monitoring Committee met on September 19, 2002, to review updated stock assessment information. Based on a 3-year average (2000-2002), F was estimated to range from 0.27 to 0.44, with the best estimate being F=0.3, which was far above the overfishing threshold level of F=0.11 specified in the FMP.
According to the most recent (through spring 2002), audited NEFSC spring trawl survey data, the current 3-year (2000-2002) moving average of adult female biomass is 72,600 mt versus 68,400 mt for the previous (1999-2001) value. This is approximately 36 percent of the recommended biomass rebuilding target (B
However, the stock of adult females remains low as the result of the fact that the fishery targeted larger (female) fish in the 1990s. The survey data indicate a decrease in the average size of female spiny dogfish in recent years. NMFS survey data also show a reduction in the biomass of spiny dogfish pups based on the decline in biomass of dogfish less than 36 cm. The survey indices for pups for the past 6 consecutive years (1997-2002) have continued to be the lowest in the 34-year time series, indicating recruitment failure.
The Monitoring Committee estimated the yield associated with an F=0.03 for 2003 to be 4.0 million lb (1.81 million kg), assuming the current stock size. The Monitoring Committee recommended a 4-million lb (1.81-million kg) commercial quota for spiny dogfish for the 2003-2004 fishing season, divided into the two semi-annual periods as specified in the FMP: 57.9 percent for quota period 1 (May-October), or 2,316,000 lb (1.05 million kg); and 42.1 percent for quota period 2 (November-April), or 1,684,000 lb (765,454 kg). The Monitoring Committee also recommended maintaining a trip limit of 600 lb (273 kg) for quota period 1 and 300 lb (137 kg) for quota period 2. (Vessels are prohibited from landing more than the specified amount in any one calendar day.)
The Spiny Dogfish Monitoring Committee concluded by consensus that discards are a major issue for stock rebuilding and that discard mortality may be overwhelming the FMP objective of rebuilding female spawning stock biomass. As a result of discarding in other fisheries, fishing mortality could be greater than the F that will allow stock rebuilding. The Committee was also concerned with recent increases in Canadian landings, which now exceed U.S. landings. When the FMP was being developed, Canadian landings were of minor importance. Given all these factors, the Monitoring Committee expressed concern that even the current restrictive rebuilding strategy may be too liberal to accomplish the rebuilding objectives of the FMP, even in the long term. The Councils have initiated development of Amendment 1 to the FMP, which will consider changes to the management regime for this fishery.
The Joint Spiny Dogfish Committee (Joint Committee) met on September 30, 2002, to consider the recommendations of the Monitoring Committee, and to make a recommendation to the Councils. The Joint Committee recommended that the Councils adopt a commercial quota of 8.8 million lb (4 million kg) for the 2003 fishing year. In addition, the Joint Committee recommended trip limits of 7,000 lb (3,182 kg) for quota period 1 and 5,000 lb (2,273 kg) for quota period 2.
The MAFMC and NEFMC voted on recommendations for year 5 (2003-2004) management measures at their respective meetings on October 2, 2002, and November 5, 2002. The MAFMC adopted the Monitoring Committee recommendations for a commercial quota of 4 million lb (1.81 million kg) and trip limits of 600 lb (273 kg) for quota period 1 and 300 lb (137 kg) for quota period 2. The NEFMC adopted the Joint Committee recommendation for an F consistent with a commercial quota of 8.8 million lb (4 million kg), and trip limits of 7,000 lb (3,182 kg) and 5,000 lb (2,273 kg) for quota periods 1 and 2, respectively.
NMFS reviewed both Councils' recommendations and concluded that the MAFMC recommendation would better ensure that the target F is not
This action is authorized by 50 CFR part 648 and has been determined to be not significant for purposes of Executive Order 12866.
An IRFA was prepared that describes the impact this proposed rule, if adopted, would have on small entities. A description of the action, why it is being considered, and the legal basis for this action are contained at the beginning of this section of the preamble and in the SUMMARY section of the preamble. This proposed rule does not duplicate, overlap, or conflict with other Federal rules. There are no new reporting or recordkeeping requirements contained in any of the alternatives considered for this action. There are no large entities (vessels) participating in this fishery, as defined in Section 601 of the Regulatory Flexibility Act; therefore, there are no economic impacts resulting from disproportionate sizes of vessels in the fishery. A summary of the analysis follows.
The small entities considered in the analysis include 280 vessels that have reported spiny dogfish landings to NMFS in 2001 (the most recent year for which there is vessel-specific data). In addition, there are vessels that are not subject to the Federal reporting requirements because they fish exclusively in state waters. It is not possible to identify these vessels because data from most of the states are not vessel-specific, but some number of these vessels are likely to be impacted. There is no reason to presume the impacts on these vessels would be substantially different from the impact on federally permitted vessels.
Furthermore, there are a large number of vessels that have been issued Federal spiny dogfish permits, but have not fished for spiny dogfish (a total of 2,825 vessels were issued the permit in 2001). It is presumed that these vessels are interested in the fishery but have chosen not to participate under the restrictive trip limits. If any of these vessels should choose to participate in the upcoming fishing year, they might experience revenue increases associated with landings of spiny dogfish, but those increases cannot be estimated because it is impossible to determine both the number of vessels that would participate and their fishing behavior (e.g., level of effort).
The IRFA considered three alternatives. The action recommended in this proposed rule includes a commercial quota of 4 million lb (1.81 million kg), and trip limits of 600 lb (273 kg) during quota period 1 and 300 lb (136 kg) during quota period 2. Alternative 2 includes a commercial quota of 8.8 million lb (4 million kg) and trip limits of 7,000 lb (3,182 kg) for quota period 1 and 5,000 lb (2,273 kg) for quota period 2. Alternative 3 evaluates the impact of having no management measures.
The potential changes in 2003 revenues under the 4-million lb (1.81-million kg) quota were evaluated relative to landings and revenues derived during 2001: 4.94 million lb (2.25 million kg) of landings, valued at $1,126,000. The analysis is based on the last full fishing year of landings data for 280 vessels. The reduction in gross revenues to the fishery as a whole was estimated to be about $214,259, or about $765 per vessel, compared to fishing year 2001. The information necessary to perform a profitability assessment was not available. Therefore, we have used changes in gross revenues in lieu of profitability.
The proposed trip limits of 600 lb (272 kg) in quota period 1, and 300 lb (136 kg) in quota period 2 represent a continuation of the trip limits established for fishing year 2001 and would have no new impact. The trip limit analysis projected that, on average, under a 600-lb (273-kg) trip limit for quota period 1, landings would exceed the semi-annual quota of 2,316,000 lb (1.05 million kg) on about September 5 (128 days into the quota period). During quota period 2, however, if a 300-lb (136-kg) possession limit was in effect, landings were projected not to exceed the semi-annual quota of 1,684,000 lb (763,849 kg). The analysis projected landings of only 615,000 lb (279,545 kg) during quota period 2. Thus, approximately 1,069,000 lb (485,909 kg) of allowable spiny dogfish landings were projected not to be landed. Although the commercial quota is 4 million lb (1.81 million kg), total projected landings would only reach 2.93 million lb (1.33 million kg). However, the analysis does not account for behavioral changes by vessel operators that could impact the amount of landings. Also, since vessels without Federal permits are not captured in the analysis, yet their landings count towards the quota, it is likely that additional landings will occur. In fact, during the 2002 fishing year, under identical trip limits and commercial quota, period 1 was open for 61 days under a 600-lb (272-kg) trip limit and period 2 was open for 20 days under a 300-lb (136-kg) trip limit. Higher trip limits established by some states in 2002 weakened the effectiveness of the trip limit measures.
Under Alternative 2, the quota would increase to 8.8 million lb (4 million kg). This represents an increase from landings in fishing year 2001 of 3.86 million lb (1.8 million kg), valued at $878,280. Assuming that the increase is shared among the 280 vessels that landed spiny dogfish in fishing year 2001, each vessel would experience revenue increases of $3,137. However, this quota is inconsistent with the target F required by the FMP.
Under Alternative 2, the trip limit model indicates that with trip limits of 7,000 lb (3,175 kg)and 5,000 lb (2,273 kg) during quota periods 1 and 2, respectively, the semi-annual quota of 5,095,200 lb (2.32 million kg) would be exceeded on average approximately 55 days into quota period 1 and the semi-annual quota of 3,704,800 lb (1.68 million kg) would be exceeded approximately 92 days into quota period 2. However, based on the 2002 fishery, it is likely that the allocations would be landed sooner. More vessels would find it profitable to land spiny dogfish under trip limits of 7,000 lb (3,175 kg) and 5,000 lb (2,273 kg) while the season was open.
Under Alternative 3, with no quota or management measures, landings are projected to be 25 million lb (11.36 million kg) in 2003-2004. This represents an increase from 2001 landings of 20.06 million lb (9.12 million kg). Increases in gross revenues to vessels would be about $4.57 million. Gross revenues for vessels engaged in the spiny dogfish fishery would be expected to increase, on average, by
According to 2001 landings information, the impact of the proposed specifications for the 2003 fishing year will be greatest in Massachusetts, which accounted for the largest share of the landings (79.2 percent), followed by New Hampshire (10.6 percent), Rhode Island (6.7 percent), and Virginia (1.8 percent). The top four ports that landed spiny dogfish in 2001 were Chatham, MA (64.8 percent); Gloucester, MA (6.2 percent); Plymouth, MA (4.8 percent); and Newport, RI (4.6 percent).
It has been determined that this proposed rule does not contain policies with federalism implications as that term is defined in Executive Order 13132.
This proposed rule does not contain or involve any information collection requirements that require the approval of the Office of Management and Budget pursuant to the Paperwork Reduction Act, 44 U.S.C. chapter 35.
Agricultural Marketing Service, USDA.
Notice and request for comments.
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35), this notice announces the Agricultural Marketing Services' (AMS) intention to request an extension for and revision to a currently approved information collection for the Regulations Governing the Inspection and Grading Services of Manufactured or Processed Dairy Products and for the Certification of Sanitary Design and Fabrication of Equipment Used in the Slaughter, Processing, and Packaging of Livestock and Poultry Products.
Comments received by May 9, 2003 will be considered.
Contact Susan M. Sausville, USDA/AMS/Dairy Programs, Dairy Standardization Branch, Room 2746-South Building, 1400 Independence Avenue, SW., Washington, DC 20250-0230; Tel: (202) 720-2643, Fax: (202) 720-2643 or via e-mail at
Comments are invited on: (1) Whether the proposed collection of the information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (2) the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on those who are to respond, including use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology. Comments should reference OMB No. 0581-0126 and the Dairy Inspection and Grading Program and be sent to the Office of the Deputy Administrator, USDA/AMS/ Dairy Programs, Room 2968-S, 1400 Independence Avenue SW., Washington, DC 20090-6456. Comments should reference the docket number and the date and page number of this issue of the
All comments on this notice will be summarized and included in the request for OMB approval and will become a matter of public record.
Agricultural Marketing Service, USDA.
Notice.
Notice is hereby given that the Department of Agriculture's (USDA) Agricultural Marketing Service (AMS) is accepting applications from State, regional, and national lamb producer, seedstock producer, feeder, and first handler organizations or associations that desire to be certified as eligible to nominate lamb producers, seedstock producers, lamb feeders, or first handlers of lamb or lamb products for appointment to the Lamb Promotion, Research, and Information Board (Board). Previously certified organizations do not need to reapply. To nominate a producer, seedstock producer, feeder, or first handler member to the Board, organizations must first be certified by USDA. Notice is also given that upcoming vacancies are anticipated and that during a period to be established by USDA, nominations will be accepted from eligible organizations.
Applications for certification must be received by close of business April 9, 2003.
Certification forms as well as information regarding the certification and nomination procedures may be requested from Kenneth R. Payne, Chief; Marketing Programs Branch, Room 2638-S; Livestock and Seed Program; AMS, USDA; STOP 0251; 1400 Independence Avenue, SW., Washington, DC 20250-0251 or obtained via the Internet at
Kenneth R. Payne, Chief, Marketing Programs Branch on (202) 720-1115, via facsimile on (202) 720-1125, or via e-mail at
The Commodity Promotion, Research, and Consumer Information Act of 1996 (Act) (7 U.S.C. 7411
The Order provides that USDA shall certify or otherwise determine the eligibility of any State, regional, or national lamb producer, seedstock producer, feeder, or first handler organizations or associations that meets the eligibility criteria established under the Order. Those organizations that meet the eligibility criteria specified under the Order will be certified as eligible to nominate members for appointment to the Board. Those organizations should ensure that the nominees represent the interests of producers, seedstock producers, feeders, and first handlers.
The Order provides that the members of the Board shall serve for terms of 3 years, except that appointments to the initially established Board shall be proportionately for 1-, 2-, and 3-year terms. No person may serve more than two consecutive 3-year terms. USDA will announce when nominations will be due from eligible organizations and when any subsequent nominations are due when a vacancy does or will exist. The following unit/regions have vacancies in the fall of 2003:
Any eligible producer, seedstock producer, feeder, or first handler organization that is not currently certified and is interested in being certified to nominate producers, seedstock producers, feeders, or first handlers for appointment to the Board, must complete and submit an official “Application for Certification of Organization,” form. That form must be received by close of business April 9, 2003.
Only those organizations that meet the criteria for certification of eligibility specified under § 1280.206(b) under the Order are eligible for certification. In certifying an organization, the following will be considered:
(1) The geographic territory covered by the active membership of the organization;
(2) The nature and size of the active membership of the organization, including the number of active producers, seedstock producers, feeders, or first handlers represented by the organization;
(3) Evidence of stability and permanency of the organization;
(4) Sources from which the operating funds of the organizations are derived;
(5) The functions of the organization; and
(6) The ability and willingness of the organization to further the purpose and objectives of the Act.
In addition, the primary consideration in determining the eligibility of an organization will be:
(1) The membership of the organization consists primarily of producers, seedstock producers, feeders, or first handlers who market or handle a substantial quantity of lamb or lamb products; and
(2) A primary purpose of the organization is in the production or marketing of lamb and lamb products.
All certified organizations will be notified in writing of the beginning and ending dates of the established nomination period and will be provided with required nomination forms.
The information collection requirements referenced in this notice has been approved by the Office of Management and Budget (OMB) under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C., Chapter 35) and have been assigned OMB No. 0581-0198, except Board nominees information form has been assigned OMB No. 0505-0001.
7 U.S.C. 7411-7425.
Animal and Plant Health Inspection Service, USDA.
Extension of approval of an 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 request an extension of approval of an information collection in support of regulations for the interstate movement of animals affected with Johne's disease.
We will consider all comments that we receive on or before May 9, 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. 03-023-1, 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. 03-023-1. 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 regarding regulations for the interstate movement of animals affected with Johne's disease, contact Dr. Michael Carter, Senior Staff Veterinarian, National Center for Animal Health Programs, Certification and Control Team, VS, APHIS, 4700 River Road Unit 46, Riverdale, MD 20737-1231; (301) 734-4914. For copies of more detailed information on the information collection, contact Mrs. Celeste Sickles, APHIS' Information Collection Coordinator, at (301) 734-7477.
Our regulations provide that cattle, sheep, goats, and other domestic animals that are positive to an official test for Johne's disease may generally be moved interstate only to a recognized slaughtering establishment or to an approved livestock facility for sale to such an establishment. The animals must bear an official eartag and be shipped with an owner-shipper statement.
We are asking the Office of Management and Budget (OMB) to approve our use of these information collection activities for an additional 3 years.
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.
Animal and Plant Health Inspection Service, USDA.
Reinstatement of approval of an 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 request a reinstatement of approval of an information collection in support of the Horse Protection Program.
We will consider all comments that we receive on or before May 9, 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. 03-024-1, 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. 03-024-1. 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 regarding the Horse Protection Act regulations, contact Dr. Jodie Kulpa-Eddy, Horse Protection Coordinator, Animal Care, APHIS, 4700 River Road Unit 84, Riverdale, MD 20737-1234; (301) 734-7833. For copies of more detailed information on the information collection, contact Mrs. Celeste Sickles, APHIS' Information Collection Coordinator, at (301) 734-7477.
In 1979, APHIS issued regulations in response to an amendment to the Act under which horse show managers may hire private individuals to conduct inspections, in order to limit their liability under the Act if sored horses are entered in their event. These individuals are referred to as designated qualified persons (DQPs). DQPs must be trained and licensed by USDA-certified and monitored programs that are run by horse industry organizations or associations (HIOs).
Enforcement of the Act and its regulations relies on horse inspections conducted by APHIS veterinarians and by DQPs. To ensure that enforcement by DQPs and USDA-certified DQP programs is effective, APHIS requires DQPs, HIOs, and horse show management to maintain or submit records related to these inspections, their DQP programs, and the horse events to APHIS.
No official government form is necessary for the reporting and recordkeeping required.
We are asking the Office of Management and Budget (OMB) to approve our use of these information collection activities.
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.
Animal and Plant Health Inspection Service, USDA.
Extension of approval of an 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 request an extension of approval of an information collection in support of the plant pest, noxious weed, and garbage regulations.
We will consider all comments that we receive on or before May 9, 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. 03-026-1, 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. 03-026-1. 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 regarding the plant pest, noxious weed, and garbage regulations, contact Ms. Deborah Knott, Chief, Permit Branch, PPQ, APHIS, 4700 River Road Unit 133, Riverdale, MD 20737; (301) 734-5055. For copies of more detailed information on the information collection, contact Mrs. Celeste Sickles, APHIS” Information Collection Coordinator, at (301) 734-7477.
The introduction and establishment of new plant and animal pests and diseases or noxious weeds in the United States could cause multimillion dollar losses to U.S. agriculture.
To prevent this from happening, we engage in a number of information collection activities under 7 CFR parts 330 and 360, and 9 CFR part 94, § 94.5, that are designed to allow us to determine whether shipments of regulated articles (such as certain plants and soil) present a possible risk of introducing plant pests or noxious weeds into the United States.
Our primary means of obtaining this vital information is by requiring individuals to apply to us for a permit to import regulated articles or to move these articles interstate. The permit application contains such information as the nature and amount of items to be imported or moved interstate, the country or locality of origin, the intended destination, and the intended port of entry in the United States.
Such data enable us to evaluate the risks associated with the proposed importation or interstate movement of plant pests, noxious weeds, and soil and to develop risk-mitigating conditions, if necessary, for the proposed importation or interstate movement.
We also require the owners or operators of certain garbage-handling facilities to apply to us for a permit so that they can be approved to process regulated garbage in such a way that it no longer poses a threat of disseminating plant pests or livestock and poultry diseases within the United States. We also employ compliance agreements in our programs to help ensure that garbage handlers and others use appropriate mitigation measures. These information gathering procedures enable us to detect and intercept shipments that pose a potential risk to U.S. agriculture.
We are asking the Office of Management and Budget (OMB) to approve our use of these information collection activities for an additional 3 years.
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 proposed collection of information is necessary for the proper performance of the functions of the Agency, including whether the information will have practical utility;
(2) Evaluate the accuracy of our estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
(3) Enhance the quality, utility, and clarity of the information to be collected; and
(4) Minimize the burden of the collection of information on those who are to respond, through use, as appropriate, of automated, electronic, mechanical, and other collection technologies; e.g., permitting electronic submission of responses.
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.
Animal and Plant Health Inspection Service, USDA.
Extension of approval of an 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 request an extension of approval of an information collection in support of regulations under which softwood (coniferous) packing materials used with goods exported from the United States may be certified as having been heat treated.
We will consider all comments that we receive on or before May 9, 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. 03-027-1, 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. 03-027-1. If you use e-mail, address your comment to
You may read any comments that we receive on this docket in our reading
APHIS documents published in the
For information regarding the regulations for softwood packing materials exported from the United States, contact Mr. David B. Lamb, Export Certification Specialist, Phytosanitary Issues Management, PPQ, APHIS, 4700 River Road Unit 140, Riverdale, MD 20737; (301) 734-3818. For copies of more detailed information on the information collection, contact Mrs. Celeste Sickles, APHIS' Information Collection Coordinator, at (301) 734-7477.
The export certification regulations contained in 7 CFR part 353 (referred to below as the regulations) set forth the procedures for obtaining certification for plants and plant products offered for export or reexport. It should be noted that export certification is not required by the regulations; rather, it is provided by the Plant Protection and Quarantine (PPQ) program of APHIS as a service to exporters.
Effective January 1, 2000, the Government of the People's Republic of China required goods from the United States to be accompanied by either a statement from the exporter that the shipment does not contain any softwood (conifer) packing materials, or by an APHIS-issued certificate certifying that the conifer packing materials in the shipment have been heat treated to a minimum core temperature of 56 °C for 30 minutes.
In response to this requirement, we developed a new certificate of heat treatment and procedures for issuing it to exporters who need to heat treat their packing materials in order to ship goods to China. This certificate, PPQ Form 553, is divided into two parts and serves as both a certification by the exporter that the required heat treatment was performed and USDA endorsement of industry compliance with the certification requirements.
We are asking the Office of Management and Budget (OMB) to approve our use of this information collection activity for an additional 3 years.
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.
Food and Nutrition Service, USDA.
Notice.
In accordance with the Paperwork Reduction Act of 1995, this notice invites the general public and other public agencies to comment on the proposed information collection of administrative cost information under the Emergency Food Assistance Program (TEFAP) for Form FNS-667. This proposal is an extension of a collection currently approved under OMB No. 0584-0385.
Written comments must be received on or before May 9, 2003.
Comments may be mailed or faxed to Rosalind Cleveland, Chief, Program Support Branch, Food Distribution Division, Food and Nutrition Service, U.S. Department of Agriculture, 3101 Park Center Drive, Alexandria, VA 22302. The fax number is 703-305-1410. Comments may also be emailed to:
Comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on those who are to respond, including use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology.
All written comments will be open for public inspection at the office of the Food and Nutrition Service during regular business hours (8:30 a.m. to 5
All responses to this notice will be summarized and included in the request for OMB approval. All comments will become a matter of public record.
Rosalind Cleveland at 703-305-2888.
Forest Service, USDA.
Notice of meeting.
The Siskiyou County Resource Advisory Committee will meet in Yreka, California, March 17, 2003. The meeting will include routine business and discussion, review, and recommendation of submitted project proposals.
The meeting will be held March 17, 2003 from 4 p.m. until 8 p.m.
The meeting will be held at the Yreka High School Library, Preece Way, Yreka, California.
Don Hall, RAC Coordinator, Klamath National Forest, (530) 841-4468 or electronically at
The meeting is open to the public. Public comment opportunity will be provided and individuals will have the opportunity to address the Committee at that time.
Notice is hereby given, pursuant to the provisions of the rules and regulations of the U.S. Commission on Civil Rights, that a meeting of the District of Columbia Advisory Committee to the Commission will convene at 9:30 a.m. to 12:30 p.m. on Tuesday, March 18, 2002, at the John A. Wilson Building, Room 201, 1350 Pennsylvania Avenue, NW., Washington, DC 20004. The Advisory Committee will hold a meeting to (1) receive an update on the InterSAC report, Civil Rights Concerns in the Metropolitan Washington, DC Area in the Aftermath of the September 11, 2001, Tragedies, and (2) resume planning for its next forums on police-community relations and the impact of relocation of federal agencies outside of the District of Columbia.
Persons desiring additional information, or planning a presentation to the Committee, should contact Marc Pentino of the Eastern Regional Office, 202-376-7533 (TDD 202-376-8116). Hearing-impaired persons who will attend the meeting and require the services of a sign language interpreter should contact the Regional Office at least 10 working days before the scheduled date of the meeting.
The meeting will be conducted pursuant to the provisions of the rules and regulations of the Commission.
Notice is hereby given, pursuant to the provisions of the rules and regulations of the U.S. Commission on Civil Rights, that a meeting of the Maine Advisory Committee to the Commission will convene at 1:30 p.m. and adjourn at 5:30 p.m. on Friday, March 28, 2003, at the Lancaster Lounge, Moulton Union, Bowdoin College, Brunswick, Maine 04011. The purpose of the meeting is to hold new member orientation, be briefed by invited guests on civil rights issues in Maine, and plan future activities.
Persons desiring additional information, or planning a presentation to the Committee, should contact Aonghas St. Hilaire of the Eastern Regional Office, 202-376-7533 (TDD 202-376-8116). Hearing-impaired persons who will attend the meeting and require the services of a sign language interpreter should contact the Regional Office at least 10 working days before the scheduled date of the meeting.
The meeting will be conducted pursuant to the provisions of the rules and regulations of the Commission.
Notice is hereby given, pursuant to the provisions of the rules and regulations of the U.S. Commission on Civil Rights, that a meeting of the New Hampshire Advisory Committee to the Commission will convene at 1 p.m. and adjourn at 5 p.m. on Monday, March 17, 2003, at the Southern New Hampshire University, 2500 North River Road, Manchester, New Hampshire 03106. The purpose of the meeting is to hold new member orientation, be briefed by invited guests on civil rights issues in New Hampshire, and plan future activities.
Persons desiring additional information, or planning a presentation to the Committee, should contact Aonghas St. Hilaire of the Eastern Regional Office, 202-376-7533 (TDD 202-376-8116). Hearing-impaired persons who will attend the meeting and require the services of a sign language interpreter should contact the Regional Office at least ten (10) working days before the scheduled date of the meeting.
The meeting will be conducted pursuant to the provisions of the rules and regulations of the Commission.
Notice is hereby given, pursuant to the provisions of the rules and regulations of the U.S. Commission on Civil Rights, that a conference call of the New York Advisory Committee to the Commission will begin at 2 p.m. and end at 3:30 p.m. on Wednesday, March 26, 2003. This conference call is available to the public through the following call-in number: 1-800-659-1203, access code: 15778611. Any interested member of the public may call this number and listen to the meeting. The purpose of the conference call is to plan a community forum on civil rights issues and post 9/11 law enforcement-community relations in New York.
To ensure that the Commission secures an appropriate number of lines, persons are asked to register by contacting Aonghas St. Hilaire of the Eastern Regional Office, 202-376-7533 (TDD 202-376-8116), by 4 p.m. on Tuesday, March 25, 2003.
The meeting will be conducted pursuant to the provisions of the rules and regulations of the Commission.
Import Administration, International Trade Administration, Department of Commerce.
Notice of preliminary results of antidumping duty administrative review, partial rescission of administrative review, and notice of intent to rescind administrative review.
In response to requests from interested parties, the Department of Commerce is conducting an administrative review of the antidumping duty order on ball bearings and parts thereof from Japan. The review covers six manufacturers/exporters and the period is May 1, 2001, through April 30, 2002.
We have preliminarily determined that sales have been made below normal value by various companies subject to this review. If these preliminary results are adopted in our final results of administrative review, we will instruct the Customs Service to assess antidumping duties on all appropriate entries.
We invite interested parties to comment on these preliminary results. Parties who submit comments in this proceeding are requested to submit with each argument (1) a statement of the issue and (2) a brief summary of the argument.
March 10, 2003.
Please contact the appropriate case analysts for the various respondent firms, as listed below, at Import Administration, International Trade Administration, U.S. Department of Commerce, Washington, DC 20230; telephone: (202) 482-4733; Thomas Schauer (Koyo), Lyn Johnson (NTN), David Dirstine (NPBS), Dmitry Vladimirov (Sapporo), Catherine Cartsos (Taisei Trading Company), Kristin Case (NSK), Mark Ross, or Richard Rimlinger.
On May 15, 1989, the Department published in the
On October 23, 2002, the Department rescinded the administrative review with respect to Asahi Seiko Co., Ltd., and Nachi-Fujikoshi Corporation with respect to ball bearings from Japan.
On August 9, 2002, we received a timely withdrawal of the request for review of Shinyei Kaisha from Japan. Because there were no other requests for review of this firm, we are rescinding the review with respect to this company in accordance with 19 CFR 351.213(d). The Department inadvertently neglected to include this firm in its October 23, 2002, notice.
We also initiated administrative reviews of Kitanihon Seiko, Co. Ltd., Sapporo Precision, Inc., and Sanbi Co., Ltd. In response to our questionnaires to these three entities, we received one consolidated response in which the companies explained their affiliations with one another. Given these affiliations, we have calculated a single weighted average margin for their sales in the United States and refer to them collectively as “Sapporo” throughout this notice.
We intend to rescind the administrative reviews we initiated of Jiro Okayama, Eisho Trading Co., Ltd., and Phoenix International Corporation (collectively “Japanese trading companies”) with respect to subject merchandise from Japan. These Japanese trading companies informed us that, although they are the resellers of Japanese-manufactured ball bearings, their suppliers knew at the time of sale that the merchandise was destined for exportation to the United States. If in fact the suppliers had knowledge that
Although another firm, Taisei Industries, Ltd. (Taisei), claimed that its suppliers “generally” have knowledge at the time of sale to Taisei that the ball bearings were destined for exportation to the United States, information on the record indicates that one of Taisei's suppliers did not know that the merchandise was being exported to the United States. Therefore, we have preliminarily included these sales in our administrative review of Taisei. We will seek further clarification concerning Taisei's sales to the United States and the knowledge of its suppliers concerning the ultimate disposition of the ball bearings prior to completing our final results of review.
On January 31, 2003, the Department extended the time limit for the preliminary results of this review to March 3, 2003.
The products covered by this review are ball bearings and parts thereof. These products include all antifriction bearings that employ balls as the rolling element. Imports of these products are classified under the following categories: antifriction balls, ball bearings with integral shafts, ball bearings (including radial ball bearings) and parts thereof, and housed or mounted ball bearing units and parts thereof.
Imports of these products are classified under the following
The size or precision grade of a bearing does not influence whether the bearing is covered by the order. For a listing of scope determinations which pertain to the order, see the Scope Determinations Memorandum (Scope Memorandum) from the Antifriction Bearings Team to Laurie Parkhill, dated April 1, 2002, and hereby adopted by this notice. The Scope Memorandum is on file in the Central Records Unit (CRU), Main Commerce Building, Room B-099, in the General Issues record (A-100-001) for the 01/02 review.
Although the HTSUS item numbers above are provided for convenience and customs purposes, the written description of the scope of this proceeding remains dispositive.
As provided in section 782(i) of the Act, we verified information provided by certain respondents using standard verification procedures, including on-site inspection of the manufacturers' facilities, the examination of relevant sales and financial records, and the selection of original documentation containing relevant information. Our verification results are outlined in the public versions of the verification reports, which are on file in the CRU, Room B-099.
For the price to the United States, we used export price or constructed export price (CEP) as defined in sections 772(a) and (b) of the Act, as appropriate. Due to the extremely large volume of transactions that occurred during the period of review and the resulting administrative burden involved in calculating individual margins for all of these transactions, we sampled CEP sales in accordance with section 777A of the Act. When a firm made more than 10,000 CEP sales transactions to the United States of subject merchandise, we reviewed CEP sales that occurred during sample weeks. We selected one week from each two-month period in the review period, for a total of six weeks, and analyzed each transaction made in those six weeks. The sample weeks are as follows: May 27-June 2, 2001; August 19-25, 2001; September 16-22, 2001; December 2-8, 2001; February 17-23, 2002; and March 24-30, 2002. We reviewed all export-price sales transactions made during the period of review.
We calculated export price and CEP based on the packed F.O.B., C.I.F., or delivered price to unaffiliated purchasers in, or for exportation to, the United States. We made deductions, as appropriate, for discounts and rebates. We also made deductions for any movement expenses in accordance with section 772(c)(2)(A) of the Act.
In accordance with section 772(d)(1) of the Act and the Statements of Administrative Action accompanying the Uruguay Round Agreements Act, H.R. Doc. 103-316, at 823-824 (1994), we calculated the CEP by deducting selling expenses associated with economic activities occurring in the United States, which includes commissions, direct selling expenses, indirect selling expenses, and U.S. repacking expenses. For NPBS, in accordance with section 772(d)(2) of the Act, we also deducted the cost of any further manufacture or assembly, except where we applied the special rule provided in section 772(e) of the Act.
With respect to subject merchandise to which value was added in the United States prior to sale to unaffiliated U.S. customers,
Section 772(e) of the Act provides that, when the subject merchandise is imported by an affiliated person and the value added in the United States by the affiliated person is likely to exceed substantially the value of the subject merchandise, we shall determine the CEP for such merchandise using the price of identical or other subject merchandise sold by the exporter or producer to an unaffiliated person if there is a sufficient quantity of sales to provide a reasonable basis for comparison and we determine that the use of such sales is appropriate. If there is not a sufficient quantity of such sales or if we determine that using the price of identical or other subject merchandise is not appropriate, we may use any other reasonable basis to determine the CEP.
To determine whether the value added is likely to exceed substantially the value of the subject merchandise, we
For NPBS, we determined that the special rule did not apply because the value added in the United States did not exceed substantially the value of the subject merchandise. Consequently, NPBS submitted a complete response to our further-manufacturing questionnaire, which included the costs of the further processing performed by its U.S. affiliate, and we analyzed all sales.
No other adjustments to export price or CEP were claimed or allowed.
Based on a comparison of the aggregate quantity of home-market and U.S. sales and absent any information that a particular market situation in the exporting country did not permit a proper comparison, we determined that the quantity of foreign like product sold by all respondents in the exporting country was sufficient to permit a proper comparison with the sales of the subject merchandise to the United States, pursuant to section 773(a) of the Act. Each company's quantity of sales in its home market was greater than five percent of its sales to the U.S. market. Therefore, in accordance with section 773(a)(1)(B)(i) of the Act, we based normal value on the prices at which the foreign like products were first sold for consumption in the exporting country.
Due to the extremely large number of transactions that occurred during the period of review and the resulting administrative burden involved in examining all of these transactions, we sampled sales to calculate normal value in accordance with section 777A of the Act. When a firm had more than 10,000 home-market sales transactions, we used sales in sample months that corresponded to the sample weeks that we selected for U.S. CEP sales, sales in the month prior to the period of review, and sales in the month following the period of review. The sample months were April, May, August, September, and December of 2001, and February, March, and June of 2002.
We used sales to affiliated customers only where we determined such sales were made at arm's-length prices,
Because we disregarded below-cost sales in accordance with section 773(b) of the Act in the last completed review with respect to ball bearings sold by Koyo, NPBS, NSK, and NTN (
In accordance with section 773(b)(3) of the Act, we calculated the COP based on the sum of the costs of materials and fabrication employed in producing the foreign like product, the selling, general, and administrative (SG&A) expenses, and all costs and expenses incidental to packing the merchandise. In our COP analysis, we used the home-market sales and COP information provided by each respondent in its questionnaire responses.
After calculating the COP, in accordance with section 773(b)(1) of the Act, we tested whether home-market sales of the foreign like product were made at prices below the COP within an extended period of time in substantial quantities and whether such prices permitted the recovery of all costs within a reasonable period of time. We compared model-specific COPs to the reported home-market prices less any applicable movement charges, discounts, and rebates.
Pursuant to section 773(b)(2)(c) of the Act, when less than 20 percent of a respondent's sales of a given product were at prices less than the COP, we did not disregard any below-cost sales of that product because the below-cost sales were not made in substantial quantities within an extended period of time. When 20 percent or more of a respondent's sales of a given product during the period of review were at prices less than the COP, we disregarded the below-cost sales because they were made in substantial quantities within an extended period of time pursuant to sections 773(b)(2)(B) and (C) of the Act and, based on comparisons of prices to weighted-average COPs for the period of review, we determined that these sales were at prices which would not permit recovery of all costs within a reasonable period of time in accordance with section 773(b)(2)(D) of the Act. Based on this test, we disregarded below-cost sales with respect to all of the above-mentioned companies.
We compared U.S. sales with sales of the foreign like product in the home market. We considered all non-identical products within a bearing family to be equally similar. As defined in our questionnaire, a bearing family consists of all ball bearings that are the same in the following physical characteristics: load direction, bearing design, number of rows of rolling elements, precision rating, dynamic load rating, outer diameter, inner diameter, and width.
Home-market prices were based on the packed, ex-factory, or delivered prices to affiliated or unaffiliated purchasers. When applicable, we made adjustments for differences in packing and for movement expenses in accordance with sections 773(a)(6)(A) and (B) of the Act. We also made adjustments for differences in cost attributable to differences in physical characteristics of the merchandise pursuant to section 773(a)(6)(C)(ii) of the Act and for differences in circumstances of sale in accordance with section 773(a)(6)(C)(iii) of the Act and 19 CFR 351.410. For comparisons to export price, we made circumstances-of-sale adjustments by deducting home-market direct selling expenses from and adding U.S. direct selling expenses to
In accordance with section 773(a)(1)(B)(i) of the Act, we based normal value, to the extent practicable, on sales at the same level of trade as the export price or CEP. If normal value was calculated at a different level of trade, we made an adjustment, if appropriate and if possible, in accordance with section 773(a)(7) of the Act.
In accordance with section 773(a)(4) of the Act, we used constructed value as the basis for normal value when there were no usable sales of the foreign like product in the comparison market. We calculated constructed value in accordance with section 773(e) of the Act. We included the cost of materials and fabrication, SG&A expenses, and profit in the calculation of constructed value. In accordance with section 773(e)(2)(A) of the Act, we based SG&A expenses and profit on the amounts incurred and realized by each respondent in connection with the production and sale of the foreign like product in the ordinary course of trade for consumption in the home market.
When appropriate, we made adjustments to constructed value in accordance with section 773(a)(8) of the Act and 19 CFR 351.410 for circumstances-of-sale differences and level-of-trade differences. For comparisons to export price, we made circumstances-of-sale adjustments by deducting home-market direct selling expenses from and adding U.S. direct selling expenses to normal value. For comparisons to CEP, we made circumstances-of-sale adjustments by deducting home-market direct selling expenses from normal value. We also made adjustments, when applicable, for home-market indirect selling expenses to offset U.S. commissions in export-price and CEP comparisons.
When possible, we calculated constructed value at the same level of trade as the export price or CEP. If constructed value was calculated at a different level of trade, we made an adjustment, if appropriate and if possible, in accordance with sections 773(a)(7) and (8) of the Act.
To the extent practicable, we determined normal value for sales at the same level of trade as the U.S. sales (either export price or CEP). When there were no sales at the same level of trade, we compared U.S. sales to home-market sales at a different level of trade. The normal-value level of trade is that of the starting-price sales in the home market. When normal value is based on constructed value, the level of trade is that of the sales from which we derived SG&A and profit.
To determine whether home-market sales are at a different level of trade than U.S. sales, we examined stages in the marketing process and selling functions along the chain of distribution between the producer and the unaffiliated customer. If the home-market sales were at a different level of trade from that of a U.S. sale and the difference affected price comparability, as manifested in a pattern of consistent price differences between the sales on which normal value is based and home-market sales at the level of trade of the export transaction, we made a level-of-trade adjustment under section 773(a)(7)(A) of the Act.
For a company-specific description of our level-of-trade analysis for these preliminary results,
As a result of our review, we preliminarily determine the following percentage weighted-average dumping margins on ball bearings from Japan for the period May 1, 2001, through April 30, 2002:
Pursuant to 19 CFR 351.310(c), any interested party may request a hearing within 21 days of the date of publication of this notice. If requested, a hearing will be held at the main Commerce Department building at a time and location to be determined.
Issues raised in a hearing will be limited to those raised in the respective case and rebuttal briefs. Pursuant to 19 CFR 351.309(c)(ii), interested parties may submit case briefs within 30 days of the date of publication of this notice. Furthermore, as discussed in 19 CFR 351.309(d), rebuttal briefs, which must be limited to issues raised in the case briefs, may be filed within 5 days after the time limit for filing the case brief. Parties who submit case or rebuttal briefs in this proceeding are requested to submit with each argument (1) a statement of the issue, and (2) a brief summary of the argument with an electronic version included.
We are also conducting administrative reviews of the orders on ball bearings from other countries.
The Department will publish the final results of this administrative review, including the results of its analysis of issues raised in any such written briefs. The Department will issue final results of this review within 120 days of publication of these preliminary results.
The Department shall determine, and the Customs Service shall assess, antidumping duties on all appropriate entries. In accordance with 19 CFR 351.212(b)(1), we have calculated, whenever possible, an exporter/importer (or customer)-specific assessment rate or value for subject merchandise.
With respect to export-price sales, for these preliminary results we divided the total dumping margins (calculated as the difference between normal value and export price) for each exporter's importer/customer by the total number of units the exporter sold to that importer/customer. We will direct the Customs Service to assess the resulting per-unit dollar amount against each unit of merchandise in each of that importer's/customer's entries during the review period.
For CEP sales (sampled and non-sampled), we divided the total dumping
To calculate the cash-deposit rate for each respondent (
In order to derive a single weighted-average margin for each respondent, we weight-averaged the export-price and CEP deposit rates (using the export price and CEP, respectively, as the weighting factors). To accomplish this when we sampled CEP sales, we first calculated the total dumping margins for all CEP sales during the review period by multiplying the sample CEP margins by the ratio of total days in the review period to days in the sample weeks. We then calculated a total net value for all CEP sales during the review period by multiplying the sample CEP total net value by the same ratio. Finally, we divided the combined total dumping margins for both export-price and CEP sales by the combined total value for both export-price and CEP sales to obtain the deposit rate.
Entries of parts incorporated into finished bearings before sales to an unaffiliated customer in the United States will receive the respondent's deposit rate applicable to the order.
Furthermore, the following deposit requirements will be effective upon publication of the notice of final results of administrative review for all shipments of ball bearings from Japan entered, or withdrawn from warehouse, for consumption on or after the date of publication, as provided by section 751(a)(1) of the Act: (1) The cash-deposit rates for the reviewed companies will be the rates established in the final results of review; (2) for previously reviewed or investigated companies not listed above, the cash-deposit rate will continue to be the company-specific rate published for the most recent period; (3) if the exporter is not a firm covered in this review, a prior review, or the less-than-fair-value investigation, but the manufacturer is, the cash-deposit rate will be the rate established for the most recent period for the manufacturer of the merchandise; and (4) the cash-deposit rate for all other manufacturers or exporters will continue to be 45.83 percent, the “All Others” rate made effective by the final results of review published on July 26, 1993.
These deposit requirements, when imposed, shall remain in effect until publication of the final results of the next administrative review.
This notice also serves as a preliminary reminder to importers of their responsibility under 19 CFR 351.402(f) to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during this review period. Failure to comply with this requirement could result in the Department's presumption that reimbursement of antidumping duties occurred and the subsequent assessment of doubled antidumping duties.
We are issuing and publishing this determination in accordance with sections 751(a)(1) and 777(i)(1) of the Act.
Import Administration, International Trade Administration, Department of Commerce.
Notice of preliminary results and partial rescission of antidumping duty administrative review.
March 10, 2003.
Helen Kramer at (202) 482-0405 (Snowdrop Trading, Pvt. Ltd.), Shireen Pasha at (202) 482-0193 (Echjay Forgings Ltd./Pushpaman Exports), or Dena Aliadinov at (202) 482-3362 (Viraj Forgings, Ltd.), Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Ave, NW., Washington, DC 20230.
The Department of Commerce (the Department) is conducting an administrative review of the antidumping duty order on certain forged stainless steel flanges from India (“SS flanges”) manufactured/exported by Echjay Forgings Pvt. Ltd. (“Echjay”) and Viraj Forgings Ltd. (“Viraj”), and exported by Snowdrop Trading Pvt. Ltd. (“Snowdrop”). The period of review (POR) covers the period February 1, 2001, through January 31, 2002. We have preliminarily determined, based in part on adverse facts available, that Echjay sold subject merchandise at less than normal value (“NV”) and that Viraj had a
On February 9, 1994, the Department published the antidumping duty order on SS flanges (59 FR 5994). On February 1, 2002, the Department published a notice of opportunity to request an administrative review for this order covering the period February 1, 2001, through January 31, 2002 (67 FR 4945). On February 28, 2002, Snowdrop and Metal Forgings Rings & Bearings Pvt. Ltd. (“MF”) requested review in accordance with 19 CFR 351.213(b)(2), and the petitioners requested review of Bhansali Ferromet Pvt. Ltd. (“Bhansali”), Echjay, Isibars Ltd., Panchmahal Steel Ltd. (“Panchmahal”), Patheja Forgings and Auto Parts, Ltd. (“Patheja”), and Viraj under 19 CFR 351.213(b)(1). The petitioners are the Coalition Against Indian Flanges (Ideal Forging Corporation and Maass Flange Corporation). They have not participated further in this review. The Department initiated these reviews on March 27, 2002 (see Initiation of Antidumping and Countervailing Duty Administrative Reviews and Requests for Revocations in Part, 67 FR 14696). The Department rescinded the review of Isibars on December 6, 2002, after
On May 8, 2002, Bhansali submitted a statement that it had no sales to the United States during the POR. On May 21, 2002, Panchmahal submitted a similar statement. On May 29, 2002, MF withdrew its request for review because it did not have any U.S. sales. Patheja did not respond to the questionnaire and the Department ascertained that this company is defunct. The Department conducted a query of U.S. Customs Service data on entries of SS flanges from India made during the POR, and confirmed that these companies made no entries during this period. Therefore, we preliminarily determine to rescind the review with respect to Bhansali, Panchmahal, MF and Patheja.
The products under review are certain forged stainless steel flanges, both finished and not finished, generally manufactured to specification ASTM A-182, and made in alloys such as 304, 304L, 316, and 316L. The scope includes five general types of flanges. They are weld-neck, used for butt-weld line connection; threaded, used for threaded line connections; slip-on and lap joint, used with stub-ends/butt-weld line connections; socket weld, used to fit pipe into a machined recession; and blind, used to seal off a line. The sizes of the flanges within the scope range generally from one to six inches; however, all sizes of the above-described merchandise are included in the scope. Specifically excluded from the scope of this order are cast stainless steel flanges. Cast stainless steel flanges generally are manufactured to specification ASTM A-351. The flanges subject to this order are currently classifiable under subheadings 7307.21.1000 and 7307.21.5000 of the Harmonized Tariff Schedule (HTS). Although the HTS subheadings are provided for convenience and customs purposes, the written description of the merchandise under review is dispositive of whether or not the merchandise is covered by the review.
The POR is February 1, 2001, through January 31, 2002.
As provided in section 782(i) of the Act, we verified sales information provided by Echjay from December 11 through December 13, 2002, and sales and cost information provided by Viraj from December 16 through December 18, 2002, using standard verification procedures, including an examination of relevant sales, cost, financial records, and selection of original documentation containing relevant information. Our verification results are outlined in the public versions of the verification reports and are on file in the Department's Central Records Unit located in Room B-099 of the main Department of Commerce Building, 14th Street and Constitution Avenue, NW., Washington, DC 20230.
Echjay's initial Sections B and C response of July 23, 2002, was deficient and/or unresponsive to many of the questions asked in the Department's questionnaire. There were no sales of subject merchandise in the home market during the POR, and Echjay reported sales to its three largest third country markets, Belgium, Germany and the United Kingdom (“U.K.”). Echjay claimed it had no direct or indirect selling expenses, and omitted the information requested for variable and total costs of manufacturing, stating that there are identical sales in the U.S. and U.K. markets. However, the Department found that there were identical matches for only one-fourth of the products sold in the United States. On August 12, 2002, we transmitted the Section D questionnaire to Echjay, with a deadline of August 26, 2002, for their response. On August 22, 2002, we received Echjay's request for a three-week extension of time. We granted a two-week extension until September 9, 2002. On September 5, 2002, we received a letter from Echjay in which it acknowledged that the merchandise sold in the U.K. market did not have identical matches for the entire range of the merchandise sold in the United States, but asked that the Department consider the prices in which the merchandise was sold in the U.K. as NV. Echjay asked for another extension of time until October 31, 2002, to respond to Section D. Echjay also explained that it would be computing the weighted average cost of production (“COP”) based on total tonnage produced during the year (instead of the product-specific production quantity, per the Section D instructions). On September 6, 2002, we granted an extension of time until September 18, 2002. We stated that inasmuch as certain U.S. sales will not have identical or similar matches, Echjay must report cost data for all reported products by control numbers (“CONNUMs”). We explained that when comparing similar products, the Department considers differences in variable costs associated with the physical characteristics of the products in its margin calculation. Further, we noted that the Department's preference is to use the third country market with the highest volume to determine NV, which in this case was Belgium. We explained that we need Echjay's response to Section D so that we can match products that are not identical by greatest similarity or CV. We warned that if Echjay did not respond to Section D, or if due to statutory time limits we have insufficient time to analyze a new submission, it might be necessary to resort to facts available. Finally, we instructed Echjay to prepare its response strictly in accordance with the instructions,
We sent Echjay a supplemental Section B and C questionnaire on September 10, 2002, with a due date of September 24, 2002. We received Echjay's Section D response by the extended due date, September 18, 2002. Question II.A.6 asks respondents to: “Identify those inputs, and other items * * * that your company receives from affiliated parties. For each item received from an affiliated party, provide the name of the affiliated party and state the nature of the affiliation. Finally, state whether the transfer price of the good or service reflects the market price of the item. * * * ” Footnote 2 instructs respondents to report the “cost” of affiliated purchases in accordance with the amounts as recorded in their normal accounting system. Question 7 on the same page asks respondents to list the major inputs purchased from affiliated parties that are used to produce the merchandise under consideration, and to complete a chart comparing purchases from affiliated and unaffiliated suppliers. In response, Echjay stated “We do not receive any input or any other item from any affiliated parties. * * * Hence, we are leaving the chart below and the subpoints blank.” Section D response, page 8 (September 18, 2002).
On November 1, 2002, the Department sent Echjay a second supplemental questionnaire with a due date of November 12, 2002, in which we asked
We received Echjay's response on November 21, 2002, in which it stated that it diverts some of its orders to PE, which then either purchases finished products, including SS flanges, or supplies Echjay with stainless steel billets procured from unaffiliated suppliers, which then produces the merchandise on a “labor charge basis.” Echjay explained that in its previous responses, it had already included sales made by PE, declaring:
In our previous responses, we have already included expenses made by Pushpaman Exports as far as Ocean Freight, Marine Insurance, Packing are concerned. As per the instructions of this questionnaire we are now providing the other costs incurred by Pushpaman Exports, in the appropriate fields.
On December 2, 2002, we sent Echjay the third supplemental questionnaire for sections B-D via email, facsimile and courier, asking Echjay to identify any other manufacturers of SS flanges sold by PE, and setting a deadline of December 5, 2002. As of the close of business on December 6, 2002, the last workday before the verification team's departure for India, the Department had not received Echjay's response. See Memorandum to the File from Shireen Pasha, Case Analyst, Third Supplemental Questionnaire for Sections B-D, December 6, 2002.
During verification, between December 11 and 13, 2002, we discovered that Echjay had failed to report the costs, transfer prices and market prices for billets supplied by PE, which are major inputs that constituted a substantial part of Echjay's direct material costs. Furthermore, Echjay's packing expenses could not be verified. In addition, worksheets Echjay prepared for verification to demonstrate how it calculated the product-specific variable and total costs revealed that it had again ignored the explicit instructions in the Section D questionnaire and supplemental requests for information, instead adopting a methodology of its own devising without consultation with the Department.
At verification, we found that Echjay had failed to provide product-specific costs by control number (“CONNUM”) to account for the cost differences associated with the physical characteristics of the products under review. A respondent's product-specific sales and cost data are the most basic and significant data needed in order for the Department to perform a dumping analysis and margin calculation. The specific physical characteristics identified at the beginning of each case, which make up a control number, are those physical characteristics determined to be the most significant in differentiating between products. These are the physical characteristics that define a unique product for sales comparison purposes. The level of detail within each physical characteristic reflects the importance the Department places on comparing the most similar products in a price-to-price comparison. In this review, the Department identified five characteristics for matching purposes: grade of stainless steel, type of flange, size, pressure rating, and finish. Echjay assigned the same costs to all products within a stainless steel grade, accounting only for cost differences due to the price and weight of the direct material input of stainless steel billets. Absent product-specific cost information, the Department lacks the necessary information to calculate a difference-in-merchandise (“DIFMER”) adjustment to account for differences in physical characteristics when comparing sales of similar merchandise. In addition, without this information, we cannot determine matches between U.S. and comparison market sales for price-to-price comparisons, nor can we determine accurate constructed values for use as normal value, as required.
When a respondent's normal accounting system does not differentiate among products nor provide product-specific costs to the level of detail required by the Department, our consistent practice is to have the respondent start with the costs established in their normal accounting system and then further allocate the costs to specific products based upon a reasonable method available to them.
Echjay's methodology allocated expenses in proportion to the weight of billets used to produce SS flanges instead of using the CONNUM-specific production quantity, as instructed, thereby failing to account for yield losses. Moreover, as the billet weight used to allocate costs did not include the billets supplied by PE, the costs of the products sold by PE in the Belgian market are understated, thereby distorting DIFMER calculations. Further, Echjay included in CV various expenses the Department normally treats as sale-specific circumstances of sale (“COS”) adjustments and movement expenses. Therefore, we cannot rely on the product-specific variable and total costs Echjay reported in its sales listings for U.S. and comparison market sales to calculate DIFMERs for the purpose of comparing similar products sold in the respective markets.
The Department uses its model matching methodology to determine which comparison market sales should be used to calculate NV for sales for which there are no identical matches. We reject comparisons if the difference in the variable costs of manufacture between the product sold in the comparison market and the product sold in the United States exceeds 20 percent of the total cost of the U.S. product. Without accurate costs, we cannot reliably determine which sales should be compared in the respective markets. Moreover, if some U.S. sales cannot be matched with comparison market sales, either because of insufficient similarity or because of lack of contemporaneousness, we must be able to calculate the CV of the products sold in the United States. Therefore, without accurate costs we cannot reliably calculate whether dumping margins exist.
Section 776(a)(2) of the Act provides that “if an interested party or any other person—(A) withholds information that has been requested by the administering authority; (B) fails to provide such information by the deadlines for the submission of the information or in the form and manner requested, subject to subsections (c)(1) and (e) of section 782; (C) significantly impedes a proceeding under this title; or (D) provides such information but the information cannot
Pursuant to section 776(a)(2), we find that in failing to report a substantial percentage of its direct material costs supplied by an affiliated party, Echjay withheld information requested by the Department. Further, Echjay failed to provide its cost of production data in the form and manner requested and failed to meet the deadlines for submission of information. Moreover, Echjay did not notify the Department prior to verification of any inability to report the cost data in the form and manner requested, nor did it propose an alternative acceptable methodology that would account for yield losses. Finally, the packing cost information Echjay provided could not be verified. Therefore, pursuant to section 776(a)(2)(A), (B), and (D), we preliminarily determine that the use of facts otherwise available (“FA”) is warranted in order to calculate a margin for Echjay.
Section 782(e) of the Act provides that the Department “shall not decline to consider information that is submitted by an interested party and is necessary to the determination but does not meet all the applicable requirements established by (the Department)” if the information is timely, can be verified, and is not so incomplete that it cannot be used, and if the interested party acted to the best of its ability in providing the information. Where all of these conditions are met, and if the Department can use the information without undue difficulties, the statute requires it to do so.
For these preliminary results, we have revised Echjay's reported CV data to conform to the Department's standard methodology, to the extent that information already on the record permits. Using cost data from Echjay's most recent fiscal year financial statements, we calculated direct labor costs, overhead costs, general and administrative expenses, and revised interest expenses per kilogram by dividing by the total weight of production of all products, subject and non-subject. However, despite repeated requests to do so, Echjay failed to report all of its direct material costs pursuant to the major input rule (19 CFR 351.407(b)). As a result, the Department was unable to verify the material costs which account for most of the total costs of production. In addition, although the Department asked Echjay several times to report its labor cost for packing, we found at verification that Echjay's explanations of the method it used to calculate packing costs were unsubstantiated and that neither the material cost nor the labor cost for packing could be verified. Therefore, pursuant to section 776(b) of the Act, we preliminarily determine that Echjay has failed to cooperate to the best of its ability.
Section 776(b) provides that, if the Department finds that an interested party “has failed to cooperate by not acting to the best of its ability to comply with a request for information,” the Department may use information that is adverse to the interests of the party as the facts otherwise available. Adverse inferences are appropriate “to ensure that the party does not obtain a more favorable result by failing to cooperate than if it had cooperated fully.”
Accordingly, we have preliminarily determined to make an adverse inference and apply the highest cost per kilogram Echjay reported in its Section D response for stainless steel material used to produce flanges to all of Echjay's direct material costs. In addition, we have preliminarily determined to add the highest reported packing expense for Belgian sales to CV for U.S. packing.
Snowdrop made one sale of rough flanges to the United States during the POR. As there were no sales in the home market, Snowdrop reported its sales to its three largest third country markets. The Department found no identical matches to the merchandise sold to the United States. It therefore determined that it would be necessary to use CV to calculate a margin. On October 21, 2002, the Department sent Section D questionnaires to the two producers of the flanges Snowdrop exported to the United States, Panchmahal and Paramount Forge (“Paramount”), with a request that they report CV for the merchandise they sold to Snowdrop and respond by November 7, 2002. Panchmahal notified the Department via email that it would not complete the questionnaire, as it had made the sale to Snowdrop in the belief that it was for the Indian market. On November 14, 2002, the Department sent a letter to Paramount asking them to inform us of their intentions. On November 18, 2002, Paramount asked the Department for an extension of time of unspecified duration. On the same day, we replied that we could extend the deadline only to November 22, 2002, which is a total of 32 days from our original request for information. Subsequent to this date, we received no further communication from Paramount. Panchmahal and Paramount, by not providing the Department with the necessary CV information to conduct a margin analysis, as described above, repeatedly failed to respond to the Department's request for information within the meaning of section 782(d)(1) of the Act.
Although Snowdrop provided the Department with some information, that information was too incomplete for the Department to conduct a margin analysis. Pursuant to sections 776(a)(1) and 776(a)(2)(A) of the Act, we have preliminarily determined to use the facts otherwise available in reaching the applicable determination. Further, because Panchmahal and Paramount, which, as producers of subject merchandise, are interested parties in this proceeding, did not act to the best of their abilities in withholding information and significantly impeded this review, we preliminarily find that it is appropriate to make adverse inferences pursuant to section 776(b) of the Act.
Section 776(c) provides that, when the Department relies on secondary information rather than on information obtained in the course of an investigation or review, the Department shall, to the extent practicable, corroborate that information from independent sources that are reasonably at its disposal. The SAA states that the independent sources may include published price lists, official import statistics and customs data, and information obtained from interested parties during the particular investigation or review.
To assess the reliability of the petition margin, in accordance with section 776(c) of the Act, to the extent practicable, we examined the key elements of the calculations of export price and normal value upon which the petitioners based their margins for the petition. The U.S. prices in the petition were based on quotes to U.S. customers, most of which were obtained through market research.
With respect to the relevance aspect of corroboration, however, the Department will consider information reasonably at its disposal as to whether there are circumstances that would render a margin not relevant. Where circumstances indicate that the selected margin is not appropriate as adverse facts available, the Department will disregard the margin and determine an appropriate margin.
We find that the 210 percent rate which we are using for these preliminary results does have probative value. We know that, during the POR, one of Snowdrop's suppliers was Panchmahal Steel Ltd. (Panchmahal), which currently has a 210 percent margin rate from the prior administrative review of this proceeding. Thus, this rate is relevant for Snowdrop because it was recently applied to Panchmahal in the prior administrative review, Panchmahal was a supplier to Snowdrop during the POR, and we are not aware of any circumstances that would render this rate inappropriate. Also, we note that four Indian manufacturers currently have a 210 percent margin under this order.
The implementing regulation for section 776 of the Act, codified at 19 CFR 351.308(d), states, “(t)he fact that corroboration may not be practicable in a given circumstance will not prevent the Secretary from applying an adverse inference as appropriate and using the secondary information in question.” Additionally, the SAA at 870 states specifically that, where “corroboration may not be practicable in a given circumstance,” the Department may nevertheless apply an adverse inference. The SAA at 869 emphasizes that the Department need not prove that the facts available are the best alternative information. Therefore, based on our efforts, described above, to corroborate information contained in the petition and in accordance with 776(c) of the Act, which discusses facts available and corroboration, we consider the margins in the petition to be corroborated to the extent practicable for purposes of this preliminary determination (
To determine whether sales of subject merchandise were made in the United States at less than fair value, we compared the export price (EP) or constructed export price (CEP) to the NV, as described in the “Export Price and Constructed Export Price” and “Normal Value” sections of this notice. In accordance with section 777A(d)(1)(A)(i) of the Act, we calculated EPs and CEPs and compared these prices to weighted-average normal values or CVs, as appropriate.
In accordance with section 772 of the Act, we calculated either an EP or a CEP, depending on the nature of each sale. Section 772(a) of the Act defines EP as the price at which the subject merchandise is first sold by the foreign exporter or producer before the date of importation to an unaffiliated purchaser in the United States, or to an unaffiliated purchaser for exportation to the United States. We have preliminarily determined that all of Echjay's U.S. sales during the POR were EP sales, and that direct sales made by Viraj to unaffiliated U.S. customers were EP sales.
Section 772(b) of the Act defines CEP as the price at which the subject merchandise is first sold in the United States before or after the date of importation, by or for the account of the producer or exporter of the merchandise, or by a seller affiliated with the producer or exporter, to an unaffiliated purchaser, as adjusted under sections 772(c) and (d) of the Act. We have preliminarily considered sales Viraj made through Viraj USA, Inc. (“VUI”) during the POR to be CEP sales.
We calculated EP and CEP, as appropriate, based on prices charged to the first unaffiliated customer in the United States. We used the date of invoice as the date of sale. We based EP on the packed CIF duty paid prices to the first unaffiliated purchasers in the United States. We made deductions for movement expenses in accordance with section 772(c)(2)(A) of the Act, including: foreign inland freight, foreign
For CEP sales, in accordance with section 772(d)(1) of the Act, we deducted from the starting price those selling expenses that were incurred in selling the subject merchandise in the United States, including direct selling expenses (
Section 772(c)(1)(B) of the Act provides that EP or CEP shall be increased by “the amount of any import duties imposed by the country of exportation which have been rebated, or which have not been collected, by reason of the exportation of the subject merchandise to the United States.” The Department determines that an adjustment to U.S. price for claimed duty drawback is appropriate when a company can demonstrate that there is (1) a sufficient link between the import duty and the rebate, and (2) sufficient imports of the imported material to account for the duty drawback received for the export of the manufactured product (the “two pronged test”).
We found at verification of Echjay that it had received Duty Entitlement Pass Book (“DEPB”) certificates from the Indian government, which it booked as “export incentives” in its Profit and Loss Statements, although it had imported no raw materials, and had sold all of these DEPB certificates on the secondary market. Echjay therefore fails both prongs of the duty drawback test, and we are preliminarily denying this adjustment.
At verification the Department found that Viraj used DEPB licenses received from the Indian government on the basis of the FOB value of its exports to offset the Indian customs duties otherwise payable on imported raw materials used in the production of SS flanges. Viraj reported these payments received from the Indian government in its profit and loss accounts as income under “Import Duty Drawback Credit Under Pass Book/DEPB Schemes.” Although in the previous segment of this proceeding, the Department granted a duty drawback adjustment, we note that each segment is independent of any other. In this review, at verification Viraj traced the total quantities of raw materials which it imported and used in the production of subject merchandise, and accounted for all customs duties amounts not paid but offset against DEPB Duty Entitlement Certificates. However, Viraj was unable to demonstrate the necessary link between the amount of import duties not paid on raw materials used to make subject merchandise and the duty drawback rebate given by the government of India, thus failing the second part of the two-pronged test. Indeed, a company official explained at verification that Viraj sold DEPB licenses in excess of import duties owed on the secondary market for these licenses. Since Viraj did not meet both prongs of the Department's two-pronged test for granting a duty drawback adjustment, we have not added duty drawback to Viraj's U.S. sales prices for the preliminary results.
In order to determine whether there is sufficient volume of sales in the comparison market to serve as a viable basis for calculating NV (
Since no information on the record indicates any comparison market sales to affiliates, we did not use an arm's-length test.
In the previous review of Viraj's sales, the Department found that certain home market sales failed the cost test. Accordingly, pursuant to section 773(b)(1) of the Act, we initiated an investigation to determine whether Viraj's sales of subject merchandise were made at prices below COP during the POR. We determined that only grade, type, size, pressure rating, and finish were required to define products for purposes of matching U.S. sales to home market sales. We converted costs from a per-piece basis to a per-kilogram basis. See the company-specific analysis memorandum for Viraj, dated February 28, 2003, (“Viraj Analysis Memo”) a public version of which is available in the Central Records Unit.
In accordance with section 773(b)(3) of the Act, we calculated COP for Viraj based on the sum of the costs of materials and fabrication employed in producing the foreign like product, plus selling, general, and administrative expenses (“SG&A”), net interest expenses (“INTEX”) and packing. See below under Comparison Market Price for a discussion of revisions the Department made to Viraj's reported INTEX.
After calculating COP, we tested whether home market sales of SS flanges were made at prices below COP within an extended period of time in substantial quantities and whether such prices permitted the recovery of all costs within a reasonable period of time. We compared model-specific COPs to the reported home market prices less movement charges.
Pursuant to section 773(b)(2)(C) of the Act, where less than 20 percent of a respondent's home market sales for a model are at prices less than the COP, we do not disregard any below-cost sales of that model because we determine that the below-cost sales were not made within an extended period of time in “substantial quantities.” Where 20 percent or more of a respondent's home market sales of a given model are at prices less than COP, we disregard the below-cost sales because they are (1) made within an extended period of time in substantial quantities in accordance with sections 773(b)(2)(B) and (C) of the Act, and (2) based on comparisons of prices to weighted-average COPs for the POR, were at prices which would not permit the recovery of all costs within a reasonable period of time in accordance with section 773(b)(2)(D) of the Act.
The results of our cost test for Viraj indicated that for certain comparison market models, less than 20 percent of
We compared Viraj's U.S. sales with contemporaneous sales of the foreign like product in the comparison market. We considered SS flanges identical based on grade, type, size, pressure rating and finish. We used a 20 percent DIFMER cost deviation cap as the maximum difference in cost allowable for similar merchandise, which we calculated as the absolute value of the difference between the U.S. and comparison market variable costs of manufacturing divided by the total cost of manufacturing of the U.S. product. In accordance with the Department's practice, where all contemporaneous matches to a U.S. sale observation resulted in DIFMER adjustments exceeding 20 percent of the COM of the U.S. product, we based NV on CV.
For those product comparisons for which there were sales at prices above the COP, we based NV on the home market prices to home market customers. We made adjustments, where appropriate, for physical differences in the merchandise in accordance with section 773(a)(6)(C)(ii) of the Act. In accordance with section 773(a)(6)(A) and (B), we deducted home market packing costs and added U.S. packing costs. Based on findings at verification, we corrected Viraj's reported packing expenses for finished flanges to include packaging materials. In addition, we made adjustments for differences in COS, as appropriate. Because we were unable to verify Viraj's interest rate for calculating home market credit expenses, we did not make an adjustment for this expense. See pages 13 and 14 of the Department's Viraj Verification Report, dated January 23, 2003. During verification, we reviewed Viraj's U.S. and home market sales with the largest sales volume and found that Viraj incurred sale-specific interest expenses as a result of discounting its U.S. sales receivables, and that these expenses were incorrectly included in INTEX instead of being reported as direct selling expenses. Hence, we calculated a weighted average percentage rate for these interest expenses based on the five U.S. sales we reviewed during verification. We divided this total by the sales revenue for these five sales and took the weighted average percent ratio and multiplied it by the gross unit price (GRSUPRU) for each U.S. sale. We then deducted this interest expense total from INTEX and included it as one of the direct selling expenses which were deducted from the starting price for CEP sales.
In accordance with section 773(a)(4) of the Act, we based NV on CV if we were unable to find a contemporaneous comparison market match for the U.S. sale. We calculated CV based on the cost of materials and fabrication employed in producing the subject merchandise, SG&A, INTEX and profit. In accordance with 773(e)(2)(A) of the Act, we based SG&A expenses and profit on the amounts Viraj incurred and realized in connection with the production and sale of the foreign like product in the ordinary course of trade for consumption in India. For selling expenses, we used the weighted-average home market selling expenses. Where appropriate, we made COS adjustments to CV in accordance with section 773(a)(8) of the Act and 19 CFR 351.410.
We based NV on CV for all U.S. sales because as noted above in the Facts Available section of this notice, we could not calculate reliable DIFMERs based on Echjay's cost data. In accordance with 773(e)(2)(B)(i) of the Act, we based SG&A expenses and profit on Echjay's financial statements. We made adjustments for differences in COS between the U.S. and Belgian markets, as appropriate, in accordance with section 773(a)(6)(C)(iii) of the Act and 19 CFR 351.410.
In accordance with section 773(a)(1)(B) of the Act, to the extent practicable, we determine NV based on sales in the comparison market at the same level of trade (LOT) as the EP or CEP transaction. The LOT in the comparison market is the LOT of the starting-price sales in the comparison market or, when NV is based on CV, the LOT of the sales from which we derive SG&A expenses and profit. With respect to U.S. price for EP transactions, the LOT is also that of the starting-price sale, which is usually from the exporter to the importer. For CEP, the LOT is that of the constructed sale from the exporter to the importer. To determine whether comparison market sales are at a different LOT from U.S. sales, we examined stages in the marketing process and selling functions along the chain of distribution between the producer and the unaffiliated customer. In analyzing Echjay's and Viraj's selling activities, we did not note any significant differences in functions provided in any of the markets. Based upon the record evidence, we have determined that for Viraj there is one LOT for all EP and CEP sales, the same LOT as for all comparison market sales. Accordingly, because we find the U.S. sales and comparison market sales to be at the same LOT for both respondents, no LOT adjustment under section 773(a)(7)(A) is warranted, nor did Echjay or Viraj request one.
As a result of our review, we preliminarily determine the weighted-average dumping margins for the period February 1, 2001, through January 31, 2002, to be as follows:
The Department shall determine, and the U.S. Customs Service shall assess, antidumping duties on all appropriate entries. In accordance with 19 CFR 351.212(b)(1), we will calculate assessment rates for the merchandise based on the ratio of the total amount of antidumping duties calculated for the examined sales made during the POR to the total quantity (in kilograms) of the sales used to calculate those duties. This rate will be assessed uniformly on all entries of merchandise of that manufacturer/exporter made during the POR. The Department will issue appropriate appraisement instructions directly to the Customs Service upon completion of the review.
Furthermore, the following deposit requirements will be effective upon completion of the final results of this administrative review for all shipments of flanges from India entered, or withdrawn from warehouse, for consumption on or after the publication date of the final results of this administrative review, as provided by section 751(a)(1) of the Act: (1) The cash deposit rates for the reviewed companies will be the rates established in the final results of administrative review; (2) for merchandise exported by manufacturers or exporters not covered in this review but covered in the original less-than-fair-value (LTFV) 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 a company-specific rate; (3) if the exporter is not a firm covered in this review, or the original investigation, but the manufacturer is, the cash deposit rate will be that established for the manufacturer of the merchandise in the final results of this review, or the LTFV investigation; and (4) if neither the exporter nor the manufacturer is a firm covered in this review or any previous reviews, the cash deposit rate will be 162.14 percent, the “all others” rate established in the LTFV investigation (59 FR 5994, February 9, 1994).
This notice also serves as a preliminary reminder to importers of their responsibility under 19 CFR 351.402(f) to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during this review period. Failure to comply with this requirement could result in the Secretary's presumption that reimbursement of antidumping duties occurred and the subsequent assessment of double antidumping duties.
We are issuing and publishing this notice in accordance with sections 751(a)(1) and 777(i)(1) of the Act.
Import Administration, International Trade Administration, Department of Commerce.
Notice of Amended Final Results of Antidumping Duty Administrative Review.
On January 30, 2003, the Department of Commerce published the final results of an administrative review of the antidumping duty order on fresh garlic from the People's Republic of China. The period of review is November 1, 2000, through October 31, 2001. The petitioners requested the correction of two ministerial errors with respect to the final results of review for Taian Fook Huat Tong Kee Pte. Ltd. Based on the correction of these two ministerial errors, we have concluded that this company's sale was
March 10, 2003.
Edythe Artman, Office of AD/CVD Enforcement 3, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW, Washington, DC 20230; telephone: (202) 482-3931.
On January 30, 2003, the Department of Commerce (the Department) published the final results of an administrative review of the antidumping duty order on fresh garlic from the People's Republic of China in the
On January 29, 2003, the petitioners, the Fresh Garlic Producers Association and its individual members, filed an allegation of two ministerial errors in the final results of review with respect to the respondent company Taian Fook Huat Tong Kee Pte. Ltd. (FHTK). FHTK did not file comments on the allegations.
In its January 29, 2003, submission, the petitioners alleged that the Department made two ministerial errors in its January 21, 2003, final results analysis memorandum (Final Results Analysis Memorandum) regarding the calculation of FHTK's margin. First, the petitioners asserted that the Department erred in the amount it listed as the quantity of subject merchandise sold by FHTK. Second, they asserted that the Department erred in its statement of FHTK's reported sales price by stating the price as a per-kilogram amount instead of as a per-pound amount. The petitioners claimed that, because of this error, the Department had improperly dismissed their argument concerning the
We have reviewed the record and agree that the quantity sold and the sales price were stated incorrectly in the Final Results Analysis Memorandum. By correcting the sales price, we find that the price was higher than the average export prices for Chinese garlic exported to the United States that we
In determining whether a transaction is
Because correction of the two ministerial errors in the Final Results Analysis Memorandum does not result in a change of the calculation of the final margin for FHTK, the weighted-average margin remains 0.00 percent for this company.
We are issuing and publishing this determination and notice in accordance with sections 751(h) and 777(i)(1) of the Act.
Import Administration, International Trade Administration, U.S. Department of Commerce.
The Department of Commerce (the Department) is conducting an administrative review for Groupstars Chemical Co., Ltd. (Shandong) (Groupstars) under the antidumping duty order on silicon metal from the People's Republic of China (PRC). The period of review (POR) is from June 1, 2001 through May 31, 2002.
Groupstars did not respond to the Department's antidumping questionnaire. Accordingly, we have applied adverse facts available (AFA) in determining Groupstars' margin. If these preliminary results are adopted in our final results, we will instruct the U.S. Customs Service to assess antidumping duties. Interested parties are invited to comment on these preliminary results. See the “Preliminary Results of Review” section of this notice.
March 10, 2003.
Christian Hughes or Matthew Renkey, AD/CVD Enforcement Group III, Office 7, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, N.W., Washington D.C. 20230; telephone (202) 482-0190 and (202)482-2312, respectively.
The Department published in the
On October 30, 2002, the Department received a letter from counsel for Groupstars informing us that they were withdrawing from representation of Groupstars because they were also unsuccessful in eliciting a response from the company regarding the substantive nature of this case.
The product covered by the order consists of silicon metal containing at least 96.00 but less than 99.99 percent of silicon by weight, and silicon metal with a higher aluminum content containing between 89 and 96 percent silicon by weight.
The merchandise is currently classifiable under item numbers 2804.69.10 and 2804.69.50 of the
We find that, in accordance with section 776 (a)(2) of the Tariff Act of 1930, as amended (the Act), the use of the facts otherwise available is warranted for Groupstars. Sections 776(a)(2)(A) and 776(a)(2)(B) of the Act provide for the use of facts available when an interested party withholds information that has been requested by the Department, or when an interested party fails to provide the information requested in a timely manner and in the form required. Groupstars failed to provide information explicitly requested by the Department; therefore, we must resort to the facts otherwise available. Because Groupstars did not respond to the Department's questionnaire, sections 782(d) and (e) of the Act, which reference deficient submissions and the use of certain information provided by respondent, are not applicable. In addition, section 782(c)(1), which also mentions notification by the interested party, does not apply because Groupstars did not indicate that it was unable to submit the information required by the Department.
Section 776(b) of the Act provides that, in selecting from among the facts available, the Department may use an inference that is adverse to the interests of the respondent, if it determines that a party has failed to cooperate to the best of its ability. In applying the facts otherwise available, the Department has determined that an adverse inference is warranted pursuant to section 776(b) of the Act because Groupstars failed to cooperate to the best of its ability.
The Department finds that, by not providing any response to the questionnaire issued by the Department, Groupstars has failed to cooperate to the best of its ability. Groupstars did not submit to the Department any information or reason for its failure to respond. This information was in the sole possession of the respondent, and could not be obtained otherwise. Thus, the Department is precluded from calculating a margin for Groupstars or determining its eligibility for a separate rate. Therefore, in selecting from the facts available, the Department determines that an adverse inference is warranted. Because Groupstars is not eligible for a separate rate, it is considered part of the PRC-wide entity. In accordance with sections 776(a)(2)(A) and (B), as well as section 776(b) of the Act, we are applying total AFA to the PRC-wide entity. Section 776(b)(4) of the Act permits the Department to use as AFA “any other information placed on the record.” Thus, in selecting an AFA rate, the Department's practice has been to assign respondents who fail to cooperate with Department's investigation the highest margin determined for any party in the less-than fair-value investigation or in any administrative review.
Section 776(c) of the Act provides that when the Department relies on the facts otherwise available and relies on “secondary information,” the Department shall, to the extent practicable, corroborate that information from independent sources reasonably at the Department's disposal. The
With respect to the relevance aspect of corroboration, the Department has considered information reasonably at its disposal to determine whether a margin continues to have relevance. Where circumstances indicate that the selected margin is not appropriate as AFA, the Department will disregard the margin and determine an appropriate margin. For example, in
Accordingly, we determine that the highest rate from any previous segment of this administrative proceeding (
We preliminarily determine that the following dumping margin exists:
The Department shall determine, and the Customs Service shall assess, antidumping duties on all appropriate entries. The Department will issue appropriate appraisement instructions directly to the Customs Service within 15 days of publication of the final results of review. For assessment purposes, for all PRC exporters, we will apply the rate listed above. Furthermore, the following deposit rates will be effective with respect to all shipments of silicon metal from the PRC entered, or withdrawn from warehouse, for consumption on or after the publication date of the final results of this review, as provided for by section
Pursuant to section 351.224(b) of the Department's regulations, the Department will disclose to parties to the proceeding any calculations performed in connection with these preliminary results within five days of the date of publication of this notice. Pursuant to section 351.309 of the Department's regulations, interested parties may submit written comments in response to these preliminary results. Case briefs should be submitted within 30 days after the date of publication of this notice, and rebuttal briefs, limited to arguments raised in case briefs, should be submitted no later than five days after the time limit for filing case briefs. Parties who submit arguments in this proceeding are requested to submit with the argument: (1) a statement of the issues, and (2) a brief summary of the argument. Case and rebuttal briefs must be served on interested parties in accordance with section 351.303(f) of the Department's regulations.
Also, pursuant to section 351.310 of the Department's regulations, within 30 days of the date of publication of this notice, interested parties may request a public hearing on arguments to be raised in the case and rebuttal briefs. Unless the Secretary specifies otherwise, the hearing, if requested, will be held two days after the date for submission of rebuttal briefs. Parties will be notified of the time and location. The Department will publish the final results of this administrative review, including the results of its analysis of issues raised in any case or rebuttal briefs, not later than 120 days after publication of these preliminary results, unless that deadline is extended.
This notice also serves as a preliminary reminder to importers of their responsibility under section 351.402(f) of the Department's regulations to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during this review period. Failure to comply with this requirement could result in the Secretary's presumption that reimbursement of antidumping duties occurred and the subsequent assessment of double antidumping duties.
This administrative review and this notice are published in accordance with sections 751(a)(1) and 777(i)(1) of the Act, and sections 351.213 and 351.221 of the Department's regulations.
Import Administration, International Trade Administration, Department of Commerce.
Notice of preliminary results of antidumping duty administrative review.
In response to a timely request from a manufacturer/exporter, the Department of Commerce is conducting an administrative review of the antidumping duty order on synthetic indigo from the People's Republic of China with respect to Liyang Skyblue Chemical Co., Ltd. The period of review is June 1, 2001, through May 31, 2002. As a result of this review, the Department of Commerce has preliminarily determined that sales have been made below normal value by the above-referenced company for the covered period. Interested parties are invited to comment on these preliminary results. If these preliminary results are adopted in our final results of administrative review, we will instruct the Customs Service to assess antidumping duties on all appropriate entries.
March 10, 2003.
David J. Goldberger or Margarita Panayi, Office 2, AD/CVD Enforcement Group I, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW., Washington, DC 20230; telephone: (202) 482-4136 or (202) 482-0049, respectively.
On June 19, 2000, the Department of Commerce (the Department) published in the
On July 25, 2002, the Department informed the parties of an opportunity to submit publicly available information (PAI) for consideration as surrogate values in these preliminary results. The petitioner, Buffalo Color Corporation, provided such data in November 2002.
The products subject to this order are the deep blue synthetic vat dye known as synthetic indigo and those of its derivatives designated commercially as “Vat Blue 1.” Included are Vat Blue 1 (synthetic indigo), Color Index No. 73000, and its derivatives, pre-reduced indigo or indigo white (Color Index No. 73001) and solubilized indigo (Color Index No. 73002). The subject merchandise may be sold in any form (
The period of review (POR) is June 1, 2001 through May 31, 2002.
In previous antidumping duty proceedings, the Department has treated the PRC as a non-market economy (NME) country. We have no evidence
To establish whether a company operating in an NME is sufficiently independent to be entitled to a separate rate, the Department analyzes each exporting entity under the test established in the
Evidence supporting, though not requiring, a finding of
The respondent has placed on the record a number of documents to demonstrate absence of
As in prior cases, we have analyzed these laws and have found them to establish sufficiently an absence of
As stated in previous cases, there is some evidence that certain enactments of the PRC central government have not been implemented uniformly among different sectors and/or jurisdictions in the PRC.
The Department typically considers four factors in evaluating whether a respondent is subject to
Liyang asserted the following: (1) It establishes its own export prices; (2) it negotiates contracts without guidance from any governmental entities or organizations; (3) it makes its own personnel decisions; and (4) it retains the proceeds of its export sales, uses profits according to its business needs, and has the authority to sell its assets and obtain loans. Furthermore, our analysis of Liyang's questionnaire responses reveals no other information indicating government control. This information supports a preliminary finding that there is an absence of
To determine whether sales of the subject merchandise by Liyang to the United States were made at prices below normal value, we compared the export price to the normal value, as described in the “Export Price” and “Normal Value” sections of this notice, below.
We used export price methodology in accordance with section 772(a) of the Act, because the subject merchandise was sold prior to importation by the exporter outside the United States directly to unaffiliated purchasers in the United States and constructed export price methodology was not otherwise indicated.
We calculated export price based on the packed, CIF price to the first unaffiliated purchaser in the United States. Where appropriate, we made deductions from the starting price (gross unit price) for foreign inland freight, foreign brokerage and handling, international freight, and marine insurance, in accordance with section 772(c) of the Act. Because these movement services were provided by NME service providers or paid for in an NME currency, we based these expenses on surrogate values from India. To value foreign inland trucking charges, we used a November 1999 average truck freight value based on price quotes from Indian trucking companies obtained in the less-than-fair-value (LTFV) investigation of Bulk Aspirin from the PRC. For rail freight costs, we used 1999-2000 rates published in the July 2001
In every case conducted by the Department involving the PRC, the PRC has been treated as an NME country. Neither party to this review has contested such treatment. Accordingly, we calculated normal value in accordance with section 773(c) of the Act, which applies to NME countries.
Section 773(c)(4) of the Act requires the Department to value the NME producer's factors of production, to the extent possible, in one or more market-economy countries that: (1) Are at a level of economic development comparable to that of the NME, and (2) are significant producers of comparable merchandise. The Department has determined that India, Pakistan, Indonesia, Sri Lanka, and the Philippines are countries comparable to the PRC in terms of overall economic development (
In accordance with section 773(c) of the Act, we calculated normal value based on the factors of production reported by Liyang's affiliated producer, Liyang Brothers Chemical Company, Ltd. To calculate normal value, the reported unit factor quantities for materials, energy and utilities were multiplied by publicly available Indian values, where possible, or, in the case of the auxiliary agent and the wetting agent, by the weighted-average purchase price of materials manufactured in a market-economy country and paid for in a market-economy currency, in accordance with 19 CFR 351.408.
The selection of the surrogate values applied for purposes of this determination was based on the quality, specificity, and contemporaneity of the data. As appropriate, we adjusted input prices to make them delivered prices. For those values not contemporaneous with the POR and quoted in a foreign currency, we adjusted for inflation using wholesale price indices published in the International Monetary Fund's
We valued raw materials used in the producer's production of the subject merchandise based on data derived from one or more of the following sources:
• The average Indian domestic unit price during the POR derived from the Indian publication
• The average unit import value derived from various editions of
• The average daily Indian price based on the Indian newspaper
For certain materials reportedly consumed in small to very small quantities, such as the dispersing, permeating, integration, and water stabilization agents, we were unable to identify appropriate surrogate values. Therefore, we have not included these factors in our preliminary results normal value calculation.
We have been unable to identify a surrogate value for the input phenylglycinonitrile, which Liyang consumes in one of two production methods used during the POR to produce the intermediate input potassium salt. Therefore, for purposes of the preliminary results, we are valuing all of Liyang's internal potassium salt production using the consumption factors and corresponding surrogate values applicable to the other production method, which does not involve the consumption of phenylglycinonitrile. We will reconsider this methodology for the final results if we obtain surrogate value information for phenylglycinonitrile.
Liyang reported that it resold 33% ferric hydroxide and a mixture of sodium hydroxide and potassium hydroxide as by-products from its synthetic indigo production. However, we did not make an offset deduction to the surrogate cost of production in the preliminary results because we were unable to identify appropriate surrogate values for these materials.
We valued labor based on a regression-based wage rate, in accordance with 19 CFR 351.408(c)(3).
To value electricity, we used the 2000-2001 “revised estimate” average rate for industrial consumption as published in the Government of India's Planning Commission report,
To value water, we relied on the publicly available tariff rates reported in the October 1997 publication
As we have no available information from an Indian producer of synthetic indigo, we based our calculation of FOH, SG&A expenses, and profit on data contained in the 2001-2002 annual reports of Daurala Organics Ltd., an Indian producer of various chemicals including phenylglycine, a chemical intermediate which may be produced during the manufacture of synthetic indigo, and Atul Limited (Atul), an Indian producer of dyes and dye intermediates, as well as bulk and intermediate chemicals, agrochemicals and pharmaceuticals. We have relied on the data from these two companies because a significant portion of each of their businesses is devoted to the manufacture of products similar to synthetic indigo or its intermediate inputs.
For the reported packing materials, we used April 2001-December 2001 average unit values derived from
In accordance with the decision in
As a result of this review, we preliminarily determine that the following margin applies to Liyang for the period June 1, 2001, through May 31, 2002:
Pursuant to 19 CFR 351.309, interested parties may submit written
In addition, pursuant to 19 CFR 351.310, within 30 days of the date of publication of this notice, interested parties may request a public hearing on arguments raised in the case and rebuttal briefs. Any hearing, if requested, will be held two days after the date for submission of rebuttal briefs. Interested parties who wish to request a hearing or to participate if one is requested must submit a written request to the Assistant Secretary for Import Administration, Room B-099, within 30 days of the date of publication of this notice, containing: (1) The party's name, address, and telephone number; (2) the number of participants; and (3) a list of issues to be discussed. Issues raised in the hearing will be limited to those raised in case and rebuttal briefs.
The Department will publish the final results of this administrative review with respect to subject merchandise exports by Liyang, including the results of its analysis of issues raised in any case or rebuttal briefs or at a hearing, not later than 120 days after the date of publication of these preliminary results.
The Department shall determine, and the Customs Service shall assess, antidumping duties on all appropriate entries. Pursuant to 19 CFR 351.212(b)(1), we will calculate importer-specific
Upon completion of this review, for entries from Liyang, we will require a cash deposit at the rate established in the final results as further described below.
The following deposit requirements will be effective upon publication of the final results of this administrative review for all shipments of synthetic indigo 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 Liyang will be the rate determined in the final results of review (except that if the rate is
This notice serves as a preliminary 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 double antidumping duties.
This administrative review and notice are in accordance with sections 751(a)(1) and 777(i)(1) of the Act, and 19 CFR 351.213.
Import Administration, International Trade Administration, Department of Commerce.
Notice of preliminary affirmative countervailing duty determinations
The Department of Commerce preliminarily determines that countervailable subsidies are being provided to producers or exporters of certain durum wheat and hard red spring wheat from Canada. For information on the estimated countervailing duty rates,
March 10, 2003.
Craig Matney, Audrey Twyman, Stephen Cho, or Geoffrey Craig, Office of Antidumping/Countervailing Duty Enforcement, Group 1, Import Administration, U.S. Department of Commerce, Room 3099, 14th Street and Constitution Avenue, NW., Washington, DC 20230; telephone (202) 482-1778, (202) 482-3534, (202) 482-3798 and (202) 482-5256, respectively.
The petitioners in these investigations are the North Dakota Wheat Commission (hard red spring wheat), United States Durum Growers Association (durum wheat), and the Durum Growers Trade Action Committee (durum wheat) (collectively, the “petitioners”).
Since the publication of the notice of initiation in the
On November 4, 2002, the Department of Commerce (“Department”) issued the countervailing duty (“CVD”) questionnaire to the Government of Canada (“GOC”). The questionnaire informed the GOC that it was responsible for forwarding the questionnaire to the appropriate provincial governments (
On November 18, 2002, the GOC submitted two scope exclusion requests. See “Scope Comments” section, below.
On December 3, 2002, the Department postponed the preliminary determinations of these investigations until March 3, 2003.
The Department received responses to its countervailing duty questionnaires from the GOC, GOA, GOS and CWB on January 13, 2003. On January 31, 2003, we issued supplemental questionnaires to the GOC, GOA, GOS and CWB. On February 6, 2003, we issued a second supplemental questionnaire to the GOC, GOA and GOS. Responses to these supplemental questionnaires were received between February 11 and February 14, 2003.
On December 23, 2002, the petitioners submitted a new subsidy allegation regarding the GOC's guarantee of the CWB's initial payment to producers. On February 11, 2003, we initiated on this alleged program.
On February 24, 2003, the petitioners submitted a letter requesting alignment of the final determinations in these investigations with the final determinations in the companion antidumping duty (“AD”) investigations.
The period for which we are measuring subsidies is August 1, 2001 to July 31, 2002, which coincides with the fiscal year of the CWB, the sole responding exporter.
For purposes of these investigations, the products covered are (1) durum wheat and (2) hard red spring wheat.
Imports covered by this investigation are all varieties of durum wheat from Canada. This includes, but is not limited to, a variety commonly referred to as Canada Western Amber Durum. The merchandise subject to this investigation is typically classified in the following Harmonized Tariff Schedule of the United States (“HTSUS”) subheadings: 1001.10.00.10, 1001.10.00.91, 1001.10.00.92, 1001.10.00.95, 1001.10.00.96, and 1001.10.00.99.
Imports covered by this investigation are all varieties of hard red spring wheat from Canada. This includes, but is not limited to, varieties commonly referred to as Canada Western Red Spring, Canada Western Extra Strong, and Canada Prairie Spring Red. The merchandise subject to this investigation is typically classified in the following HTSUS subheadings: 1001.90.10.00, 1001.90.20.05, 1001.90.20.11, 1001.90.20.12, 1001.90.20.13, 1001.90.20.14, 1001.90.20.16, 1001.90.20.19, 1001.90.20.21, 1001.90.20.22, 1001.90.20.23, 1001.90.20.24, 1001.90.20.26, 1001.90.20.29, 1001.90.20.35, and 1001.90.20.96.
Although the HTSUS subheadings provided for durum wheat and hard red spring wheat are for convenience and customs purposes, our written description of the scope of these proceedings is dispositive.
In the
On December 12, 2002, the petitioners submitted their rebuttal comments. On February 4, 2003, the GOC responded to those comments, and on February 11, 2003, the petitioners commented on the GOC's February 4, 2003 comments.
The Department preliminarily determines that the requested exclusions are not warranted. For further discussion,
Because Canada is a “Subsidies Agreement Country” within the meaning of section 701(b) of the Tariff Act of 1930, as amended (“the Act”), the International Trade Commission (“ITC”) is required to determine whether imports of the subject merchandise from Canada materially injure, or threaten material injury to, a U.S. industry. On November 25, 2002, the ITC transmitted to the Department its preliminary determinations finding that there is a reasonable indication that an industry in the United States is being materially injured by reason of imports from Canada of hard red spring wheat and durum wheat.
Pursuant to 19 CFR 351.524(b), non-recurring subsidies are allocated over a period corresponding to the average useful life (“AUL”) of the renewable physical assets used to produce the subject merchandise. 19 CFR 351.524(d)(2) creates a rebuttable presumption that the AUL will be taken from the U.S. Internal Revenue Service's 1977 Class Life Asset Depreciation Range System (the “IRS Tables”). For the wheat products industry, the IRS Tables prescribe an AUL of 10 years.
In order to rebut the presumption in favor of the IRS tables, the Department must find that the IRS tables do not reasonably reflect the company-specific
Neither the petitioners, CWB, GOC, GOA, or GOS have contested using the AUL reported for the wheat products industry in the IRS tables. Therefore, we preliminarily determine that any non-recurring benefits should be allocated over 10 years.
19 CFR 351.525(b)(6)(ii) states that the Department will attribute subsidies received by corporations with “cross-ownership” that produce the subject merchandise to the combined sales of those companies. Based on our review of the responses, we preliminarily find no “cross-ownership” between the CWB and any other parties, and we have attributed countervailable subsidies received by the CWB to the CWB's sales.
Pursuant to 19 CFR 351.505(a) and 19 CFR 351.524(d)(3)(i), the Department will use as a long-term loan benchmark and as a discount rate the actual cost of comparable long-term borrowing by the company, when available. 19 CFR 351.505(a)(2) defines a comparable commercial loan as one that, when compared to the government-provided loan in question, has similarities in the structure of the loan (
In 1999, the Red Coat Road and Rail Ltd. short line railway was approved for and received a long-term loan from the GOS under the Short Line Financial Assistance Program, described in the “Analysis of Programs” section, below. The petitioners have alleged that any railways receiving benefits under this program were entrusted and/or directed to provide a financial contribution to the CWB through this program. There is no information on the record as to whether the Red Coat Road and Rail Ltd. had comparable long-term borrowings of its own during 1999. Accordingly, we compared the effective interest rate on the loan received by the Red Coat and Rail Ltd. to the 1999 national average annual long-term interest rate, represented by the weighted average yield on long-term bonds.
The CWB had a large quantity of outstanding short-term borrowing during the POI, all of which was guaranteed by the GOC. The CWB borrowed using four different instrument types: (1) Commercial paper issued in the United States in U.S. dollars (“USCP program”); (2) notes issued in Canada in Canadian dollars (“WBN program”); (3) commercial paper issued in the euromarkets (
19 CFR 351.506(a) states that “{i}n the case of a loan guarantee, a benefit exists to the extent that the total amount a firm pays for the loan with the government-provided guarantee is less than the total amount the firm would pay for a comparable commercial loan that the firm could actually obtain on the market absent the government-provided guarantee,” and that the Department “will select a comparable commercial loan in accordance with section 351.505(a) {of the Department's regulations}.” 19 CFR 351.505(a)(3)(i) states that in selecting a benchmark loan, the Department “normally will rely on the actual experience of the firm in question in obtaining comparable commercial loans,” but 19 CFR 351.505(a)(3)(ii) explains that “if the firm did not take out any comparable commercial loans * * * {the Department} may use a national average interest rate for comparable commercial loans.” Because all of the CWB's borrowings are guaranteed by the GOC, no company-specific benchmark exists for “a comparable commercial loan that the firm could actually obtain on the market absent the government-provided guarantee.” Accordingly, we reviewed the information on the record to determine the appropriate national average interest rates, both for U.S. dollar and Canadian dollar borrowings.
The GOC and CWB argue that the U.S. and Canadian dollar prime rates are inappropriate benchmarks for the CWB's commercial paper
We do not believe that this response addresses the crucial question of what interest rate the CWB would pay on its borrowings in the absence of the GOC's guarantee. Based on our research, the interest rate the CWB would pay would depend on whether the CWB had access to the commercial paper market, which, in turn, would depend on the CWB's credit rating in the absence of the GOC guarantee. For example, according to Fabozzi and Modigliani, in
Based on the CWB's own statement, its credit rating would be less favorable in the absence of the GOC's guarantee. This is reflected in the CWB's 2000-2001 Annual Report, at 31, which states that “{a} borrowings of the {CWB} are unconditionally and irrevocably guaranteed by the Minister of Finance,
Indeed, it may be the case that the CWB's ability to borrow in the commercial paper market is due entirely to the GOC's guarantee. Sources show that companies with lower credit ratings can still have access to the commercial paper market, so long as their borrowings are supported or guaranteed by parties with higher credit ratings. Fabozzi and Modigliani, at 473-4, describe how companies with lower credit ratings have been able to issue commercial paper “by means of credit support from a firm with a high credit rating,” issuing so-called “credit supported commercial paper” or “letter of credit paper.” Clearly, the GOC's backing is an important feature of the GOC's borrowing. In reviewing the sample placement documents submitted by the CWB, all place great emphasis on the fact that underlying debt instruments are guaranteed by the GOC, in essence making these issues credit supported commercial paper-supported by the full faith and credit of the GOC.
While this evidence leads us to question whether the CWB would have access to the commercial paper market in the absence of the GOC's guarantee, we do not believe it is sufficient to support a preliminary determination that the CWB could not access that market. Instead, the evidence currently on the record supports the conclusion that the GOC's guarantee ensures that the CWB has the top credit rating. Thus, the issue is what rate the CWB would pay without the top credit rating it currently enjoys by virtue of the GOC's guarantee.
Based on our research, companies with the highest credit rating (
Fabozzi and Modigliani, at 474-5, indicate that there are two tiers of investment grade commercial paper. To be able to use the first tier, the borrower must have a credit rating of P-1/A-1, as described above. The second tier is available to issuers with P-2/A-2 credit ratings. Commercial paper is sold in this market at a greater discount (
A second alternative would be for the CWB to borrow from banks at the prime rate. According to Fabozzi and Modigliani, at 471-2, borrowing from a bank is an alternative to the commercial paper markets, albeit a higher cost alternative, and one that would be used by firms with lower credit ratings. Also, according to the U.S. Federal Reserve, the prime rate is “one of several base rates used by banks to price short-term business loans.”
In reviewing the record, we find no information that clearly indicates, based on a presumed credit rating of P-2/A-2 or below, whether the CWB would be able to borrow in the second-tier commercial paper market or whether it would be required to raise funds through banks. Accordingly, lacking such information for these preliminary determinations, we have calculated an average of the rates applicable to second-tier commercial paper and the prime rates in order to derive a benchmark rate. For purposes of the final determinations, we encourage parties to submit further information that would allow us to more accurately estimate the credit rating of the CWB in the absence of the GOC guarantee, and the benchmark rates that would be applicable to the CWB with such a credit rating.
19 CFR 351.505(a)(2)(iv) states that the Department “normally will use an annual average of the interest rates on comparable commercial loans.” However, if the Department “finds that interest rates fluctuated significantly during the period of investigation or review, the {Department} will use the most appropriate interest rate based on the circumstances presented.” A review of the interest rates on the underlying loans and the benchmarks selected indicate that there was a substantial and sustained decrease in interest rates over the POI. For example, the prime rate went from 5.95 percent in August 2001, to a low of 3.75 percent in February and March, and then to 4.4 percent in July 2002. A similar pattern exists on the CWB's actual loans. Accordingly, we have used monthly average benchmark interest rates in our benefit calculations.
Unless otherwise specified, these programs encompass both hard red spring wheat and durum wheat. Accordingly, the countervailable subsidy rate applies equally to both products.
Based upon our analysis of the petition and the responses to our questionnaires, we determine the following:
The GOC, GOA, and GOS purchased railway hopper cars (“hopper cars”) and provided them to the Canadian Pacific Railway (“CP”) and the Canadian National Railway (“CN”) (collectively referred to as the “railway companies”) for the transportation of grain, including subject merchandise. During the POI, the GOC, GOA, and GOS provided a total of 14,414 hopper cars to the railway companies for transporting grain. The provision of these railcars to the railway companies is governed by operating and alternate use agreements between the federal and provincial governments and the railway companies. The GOC provided 12,510 hopper cars and the GOA and GOS provided 951 and 953 hopper cars, respectively.
Under the operating agreement, the railway companies are permitted to use and operate the hopper cars as part of the railway companies' common railcar fleet, subject to certain specified alternate use restrictions. The railway companies, in turn, have to repair, maintain, and service the hopper cars and to transport Western Division grain included in Schedule II of the Canada Transportation Act (“Schedule II”). Hard red spring wheat and durum wheat are included in Schedule II. According to the Canada Transportation Act, Western Division means the part of Canada lying west of the meridian passing through the eastern boundary of the City of Thunder Bay, including the whole of the Province of Manitoba.
The agreements also permit alternate uses of the cars. Specifically, the railway companies may use the government hopper cars to transport any grain not listed in Schedule II or for transporting other commodities. Also, the railway companies may use the cars to move grain into eastern Canada, through eastern Canada into the United States, and southbound for export into the United States. For any of these alternate uses, the railway companies must pay a fixed rate per day, the “alternate use” fee.
In addition to the government-owned hopper cars provided to the railway companies by the federal and provincial governments, the GOC also provided 1,675 leased hopper cars to the CP through the CWB during the POI. Specifically, in March 1981, the GOC entered into a contribution agreement with the CWB directing the CWB to lease, on behalf of the GOC, hopper cars designed for the transportation of grain, including subject merchandise. The agreement also directs the CWB to provide the leased hopper cars to the railway companies for the transportation of Western Division grain. Pursuant to the terms of the contribution agreement, the CWB is obliged to make lease payments for the leased hopper cars in a timely manner and to invoice the GOC for costs that the CWB incurs. The GOC, in turn, fully reimburses the CWB for the lease costs.
Similar to the various operating agreements for the government-owned hopper cars, the operating agreement between the CWB and the CP provides the CP with the day-to-day operation and use of the hopper cars. The CP, in turn, has to repair, maintain, and service the hopper cars and to transport grain as listed in Schedule II. The CP is also required to pay alternate use fees for transporting grain not listed in Schedule II or for transporting other commodities, and for transporting grain to destination ports other than Vancouver, Prince Rupert, Churchill, Thunder Bay, and Armstrong, including the transportation of grain to the United States. Under the alternate use agreement, the CP is required to pay a fixed alternate use fee to the CWB. The CWB reduces the reimbursement amount it requests from the GOC by the amount of alternate use fees it collected.
According to the GOC, it acquired hopper cars “to cover the railways” inability to make the investment with their own resources.” The GOC also stated that the regulated railway rates in effect at the time “did not fully compensate the railways for all of their costs.” The GOA and GOS stated that they acquired their hopper cars because, at the time, the railway companies were not willing to invest in hopper cars because the regulated railway rates were not compensatory.
For these preliminary determinations, we are treating the railcars provided by the CWB to the CP as if they were provided directly by the government. This is because, with respect to these railcars, the CWB is acting as an agent of the GOC, leasing the cars on GOC's behalf and receiving full reimbursement of the lease fees. Therefore, for both the CWB- and government-provided railcars we have analyzed whether the railway companies have been entrusted or directed (within the meaning of section 771(5)(B)(iii) of the Act) to make a financial contribution (provision of services under section 771(5)(D)(iii) of the Act) by means of the provision of railway services to the CWB for less than adequate remuneration (within the meaning of section 771(5)(E)(iv) of the Act).
First, we preliminarily determine that the operating and alternate use agreements entered into between the governments (including the CWB) and railway companies, require the railway companies to transport Western Grain.
Second, we preliminarily determine that the provision of this rail service is a financial contribution within the meaning of section 771(5)(D)(iii) of the Act, that is, provision of services other than general infrastructure. Moreover, the services are being provided to a specific group, the CWB and other users of hopper car services, within the meaning of section 771(5A)(D)(iii)(I) of the Act.
Finally, we preliminarily determine that the CN and CP are providing these rail services for less than adequate remuneration within the meaning of section 771(5)(E)(iv) of the Act. Pursuant to the Canada Transportation Act, the railway companies determine the prices they charge for railway services by way of published tariffs, confidential contracts negotiated between the railway company and the shipper, or by a combination of the two. The CWB negotiates with the railway companies with respect to the published tariffs and other factors affecting freight rates.
In determining whether adequate remuneration has been paid, § 351.511(a)(2)(i) of the Department's regulations states that the Department will normally compare the prices in question to market-determined prices in the country where the service is being provided. There is no information on the record of these investigations about prices charged by other railways in Canada for hopper car service. Section 351.511(a)(2)(ii) directs that where no market-determined prices are available in the country where the service is being provided, the Department should look to world market prices as a measure of adequate remuneration, if such prices are available to the purchasers of the service. There is no information about world market prices for hopper car service, or the availability of such prices to Canadian hopper car users. Therefore, to determine whether the CN and CP have received adequate remuneration for their provision of hopper car services, we have examined whether their prices are consistent with market principles.
In 2000, a study was prepared for Transport Canada, the government agency that administers the GOC-owned hopper cars, by the Sparks Company Inc. (the “Sparks Study”). This study concluded that disposal of the government-owned hopper cars and termination of the provision of these hopper cars by the federal and provincial governments to the railway companies would have the effect of adding ownership costs for these cars to the railway companies' and/or shippers' costs. The Sparks Study estimated the ownership costs for these cars to be between C$2.00 and C$3.00 per ton of grain transported.
Based on the conclusions of the Sparks Study, we preliminarily determine that the rates charged by the CN and CP for hopper car service do not reflect the ownership costs of these cars and, consequently, the rates are not consistent with market principles. As a result, we preliminarily determine that the CN and CP are providing these railcar services for less than adequate remuneration.
To calculate the benefit to the CWB, we multiplied the total volume of grain the CWB shipped during the POI by the added ownership costs (modified as described below) to arrive at the total benefit the CWB received from the subsidy. As a starting point, we used the mid-point (
Finally, we divided the benefit received by the CWB in the POI by CWB's total sales during the POI. On this basis, we preliminarily determine the countervailable subsidy from the federal and provincial governments' provision of railway hopper cars to be 0.35 percent
The GOC, GOA and GOS have argued that the benefit from the governments' provision of railcars, if any, is tied to east/west shipments of grain because for other shipments, including shipments to the United States, the railway companies must pay commercially determined alternate use fees. We have not adopted this position in our preliminary determinations because we have focused our analysis on whether the railway companies receive adequate remuneration when they provide hopper car service. No information has been provided to show that the rates charged by the railway companies for service to particular destinations varies because they pay (or don't pay) an alternate use fee for the government-provided hopper cars.
Until 1998, the CWB was an agent Crown Corporation of Canada, and CWB borrowings were guaranteed by virtue of this agency relationship. At the end of 1998, the CWB lost its agency status, and the Canadian Wheat Board Act was amended to its current form, which requires the CWB to submit an annual borrowing plan to the Minister of Finance, and seek approval of terms and conditions of the proposed borrowing plans. Section 19(5) of the Canadian Wheat Board Act provides that borrowings under an approved borrowing plan are guaranteed by the GOC. All CWB borrowings must be consistent with the time, terms and conditions authorized pursuant to the borrowing plan and, accordingly, all CWB borrowings are guaranteed by the GOC.
During the POI, the CWB engaged in short-term borrowing by accessing the money markets in Canada, the United States, and the global money market. The CWB also had outstanding borrowings using Euro Medium Term Notes (“EMTNs”). The CWB has issued a variety of EMTNs in different currencies, having maturities ranging from 5 to 15 years. However, the CWB has swapped all of these EMTNs to U.S. dollars and floating rates of interest.
The CWB borrows to finance its initial payments to farmers, operating expenses, and credit sales to sovereign and private buyers (
We preliminarily determine that the GOC's guarantee of the CWB's borrowing is a countervailable subsidy. By providing this guarantee, the GOC has provided a financial contribution in the form of a potential direct transfer of funds, within the meaning of section 771(5)(D)(i) of the Act. This guarantee is limited to the CWB and, therefore, specific within the meaning of section 771(5A)(D)(iii)(I) of the Act. We calculated the benefit to the CWB by comparing the amounts that the CWB paid on its borrowings with what it would have paid absent the government guarantee.
The CWB has two types of credit grain sales programs which are guaranteed by GOC, the Credit Grain Sales Program (“CGSP”) and the Agri-Food Credit Facility (“ACF”). The CGSP was established in 1952, and allows the CWB to sell grain on credit to customers who can provide a sovereign guarantee of repayment. Repayment terms under the CGSP cannot exceed 36 months. As of the beginning of the POI, the CWB had approximately C$7.1 billion in outstanding credit under the CGSP. Approximately 84 percent of this total consisted of debt that had been rescheduled or subject to rescheduling pursuant to Paris Club agreements,
The CWB states that neither of these programs has been used to support sales to the United States, and that the United States is not on the GOC-approved list of countries to which export credits can be extended under the CGSP. In addition, the CWB states that all of its credit customers, with the exception of Iraq, are paying the CWB according to the terms of their most recent lending agreement (original or restructured), and that the net cash flows to the CWB on restructured debt are the same both before and after the rescheduling. However, the CWB and GOC have stated that the GOC made portions of the rescheduled payments for Poland, Ethiopia, Zambia, Egypt and Haiti.
The petitioners allege that this program provides a benefit to the CWB because the CWB is able to earn interest income (
However, although we have preliminarily found that the benefit alleged by petitioners under this program is already countervailable under the GOC guarantee of CWB borrowing program, we note that the GOC payments to the CWB may give rise to an additional or alternative benefit in the amount of these payments. We preliminarily determine that such payments would be export subsidies. 19 CFR 351.514(a) states that the Department will consider a subsidy to be an export subsidy if “eligibility for, approval of, or the amount of, a
We further preliminarily determine that any subsidies conferred as a result of these lending guarantees are tied to the markets that received the guarantees. Consequently, in accordance with 19 CFR 351.525(b)(5)(i), any benefits would be attributed to export sales to those markets. Because sales to the United States do not benefit from these guarantees, we find no countervailable subsidies on the subject merchandise under this program.
In August 2000, the GOC implemented an annual cap on the revenues (the “revenue cap”) that the CN and CP can earn from the transportation of certain Western Division grains. The grains subject to the revenue cap are set out in Schedule II and include the subject merchandise. The revenue cap only applies to grain movements on CN or CP lines from “a point on any line west of Thunder Bay or Armstrong, Ontario, to (a) Thunder Bay or Armstrong, Ontario, or (b) Churchill, Manitoba, or a port in British Columbia for export, but does not include the carriage of grain to a port in British Columbia for export to the United States for consumption in that country (the “capped routes”).” (
The revenue cap is calculated using a formula that takes into consideration the following: the railway's revenue for the movement of grain in the base year (crop year 2000-2001); the number of tons of grain moved in the base year and the actual year; the average length of haul in miles for the base year and actual year; and the volume-related composite price index. (
Under section 771(5)(B)(iii) of the Act, a subsidy exists when,
Further, we find that the revenue cap is limited to the transportation of Western Division grain and, therefore, specific within the meaning of section 771(5A)(D)(i) of the Act.
We preliminarily determine, however, that the CWB did not receive any benefits from the revenue cap within the meaning of section 771(5)(E)(iv) of the Act. This is because, as discussed below, there is no evidence that, as a result of the revenue cap, the railways are providing the rail services to the CWB for less than adequate remuneration. Accordingly, we preliminarily determine that the rail freight revenue cap is not a countervailable subsidy.
Our reasons for preliminarily determining that the revenue cap does not confer a benefit to the CWB are threefold. First, in the two crop years that the revenue cap has been in place, CN's and CP's earnings subject to the revenue cap have fallen significantly short of their respective revenue caps. In 2000/01 and 2001/02, respectively, CN earned C$3 million and C$13.5 million less than the cap, while CP earned C$2.6 million and C$8.7 million less. Second, the railways are allowed to increase or create fees for services that are not subject to the revenue cap. This allows the railways to increase revenue from Western grain movements, irrespective of the revenue cap. Examples of these exempted service fees are demurrage, storage, performance penalties, additional switching and staging. Lastly, on behalf of the GOC, the Canadian Transportation Agency (“CTA”) conducted a study to compare per ton revenue for capped and non-capped movements. In the study, the CTA used three methods to compare non-revenue cap to revenue cap movements. The CTA compared revenue per ton mile for (1) Eastern Canada non-cap movements versus Western Canada revenue cap movements, (2) Western Canada non-cap movements versus Western Canada revenue cap movements, and (3) Eastern Canada versus Western Canada movements which originate as a revenue cap movement, but continue east and become non-cap movements. This generated nine different comparisons, eight of which showed that the revenue cap did not affect the rates per ton mile that CP and CN charged for the transportation of grain.
The petitioners have asserted that the revenue cap conferred a benefit on the CWB based on two sources which state that the August 1, 2000 revenue cap would be set at a level leading to “an estimated 18 per cent reduction in grain freight rates from 2000-2001 levels,” and an “immediate 18 per cent reduction in railway revenues.” Petitioners acknowledge that the actual rail rates did not decrease by the full 18 percent. Even if they did, we preliminarily find that the 18 percent figure is not a useful measure of whether the revenue cap constituted a countervailable benefit. The pre-revenue cap freight rates were regulated by the GOC and, therefore, do not provide an accurate benchmark for adequate remuneration. Also, the comparison cited by the petitioners predates our POI. For these reasons, and in light of the CTA study, we do not believe the 18 percent reduction is a useful benchmark for determining whether the revenue cap conferred a benefit upon the CWB.
Effective August 2000, under the Canada Transportation Act, as amended, a railway company that discontinues a grain-dependent branch line must provide compensation to the municipality or district through whose territory the grain-dependent branch line passes in the amount of C$10,000 per mile for each mile of line within the municipality or district, for three years.
We preliminarily determine that the payment for discontinuance of a grain-dependent branch line (“GDBL payment”) does not constitute a countervailable subsidy. Under section 771(5)(B)(iii) of the Act, a subsidy exists when,
The GOC cites to the 1999 Branch Line Review that studied the economic costs to the grain handling and transportation system of discontinuing the operation of 22 branch lines totaling 698.9 miles and affecting the delivery of 1,367,560 tons of grain. The study examined several grain handling and transportation scenarios and, “[i]n each of the twenty-two cases substantial savings will result when the operation of all of these lines are discontinued and
The GOC also explains that the reason for grain-dependent branch lines' closures is the rationalization of grain elevators and the move to multi-car block loading, which is dependent on high volume, larger elevators. This has led to a closure of older, smaller capacity wooden elevators on branch lines as large capacity non-wooden elevators have been built on main lines to take advantage of multi-car discounts.
The petitioners argue that the payment is causing the railways to keep open grain-dependent branch lines that were slated for closure and cite to an article reporting that CN imposed a moratorium on grain-dependent branch lines' closures. However, the Department notes that CN closed two grain-dependent branch lines in Saskatchewan after the GDBL payments were initiated and before the moratorium was announced. This suggests that the GDBL payments were not the reason for CN issuing the moratorium. As further proof that the GDBL payments did not deter the railways from closing grain-dependent branch lines, the GOC has reported that 78.1 miles of grain-dependent branch lines were closed in crop year 1999/00; 33.8 miles were closed and 75.4 miles were transferred in crop year 2000/01; and 97 miles were closed in crop year 2001/02 (the POI). These statistics demonstrate that the railways continued to close grain-dependent branch lines after the GDBL payments went into effect. Further, the Quorum Corporation, the third party entity appointed by the GOC to monitor the Grain Handling and Transportation System, issued a report which states that “of the 384.3 route-miles of infrastructure abandoned in the 2000-01 crop year, 289.9 (or 75.4 percent) were grain dependent branch lines.” These closures were in the crop year just after the GDBL payments came into effect.
As the evidence supports the finding that the GDBL payments did not deter the railways from abandoning grain-dependent branch lines, we preliminarily find that the GOC is not directing and/or entrusting CP and CN to continue to provide rail service on grain-dependent branch lines that would normally be abandoned.
Under the Short Line Financial Assistance Program, short line operators are eligible to receive a percentage of the capital required to purchase rail lines slated for abandonment within Saskatchewan. Funding for the program was provided by the GOC, through the Canadian Agri-Infrastructure Program (CAIP), and the GOS. The program was in effect from July 2, 1996, to December 31, 2001, during which time only one application was presented and approved, all within 1999. For the one project, a 15-year loan from the GOS was disbursed on May 1, 1999 and a one-time non-repayable cash grant from the GOC was disbursed on July 20, 1999. (
We preliminarily determine that the 15-year loan from the GOS as part of the Short Line Financial Assistance Program is not a countervailable subsidy.
Consistent with section 771(5)(E)(ii) of the Act there is no benefit conferred by this loan, because the benchmark interest rate, the 1999 national average annual long-term interest rate represented by the weighted average yield on long-term industrial bonds, is lower than the interest rate charged on the underlying loan.
Both the CWB and the GOC further argue that since no subject merchandise was shipped to the United States on this short line, any benefit would be tied to non-U.S. sales. Because we found no benefit conferred by the GOS loan, the Department did not reach this question.
Based on the information provided in the responses, we preliminarily determine that no benefits were applied for or received under the following program during the POI:
For a general description of this program, please see the description under “Programs Preliminarily Determined to be Not Countervailable.”
For non-recurring subsidies, we apply the “0.5 percent expense test,” described in section 351.524(b)(2) of the Department's regulations, in which we compare the amount of subsidies approved under a given program in a particular year to sales (total or export, as appropriate) in that year. If the amount of subsidies is less than 0.5 percent of sales, the benefits are expensed in their entirety in the year of receipt rather than allocated over the AUL period. In the case of this GOC grant made under the Short Line Financial Assistance Program, the resulting percentage was significantly below 0.5 percent. Accordingly, any countervailable benefit from this grant would be completely expensed in 1999 and would not provide a benefit to the CWB during the POI.
The Canadian Wheat Board Act requires that the GOC cover any shortfall if the CWB's initial payment to producers (plus operating costs) exceeds the total pool receipts during the pool period. The petitioners maintain that this guarantee effectively provides an insurance policy against losses, for which the CWB does not pay. The petitioners state that payments under this guarantee have been made seven times during the history of the CWB, the last time for the 1990-91 marketing year. The petitioners argue that a commercial firm would need to buy insurance (in the form of a put option) to guarantee against losses in a similar fashion, and there would be an identifiable cost in all years for such insurance, not just those in which the CWB receipts fell short of the initial payments. The petitioners estimated the value of such put options using the Black-Scholes options valuation formula.
As described above, the Department initiated on this program on February 11, sent out its questionnaires on February 13, and received responses on February 25, 2003. The Department has not had the opportunity to analyze thoroughly the information received or issue any necessary supplemental questionnaires. Accordingly, we are not making preliminary determinations with regard to this program at this time. After we collect, review and analyze the necessary information, we will prepare an analysis memorandum addressing the countervailability of this program, and provide all parties an opportunity to comment on our analysis.
In accordance with section 782(i)(1) of the Act, we will verify the information submitted in these investigations prior to making our final determinations.
In accordance with section 703(d)(1)(A)(i) of the Act, we calculated an individual rate for each exporter/manufacturer of the subject merchandise. We preliminarily determine the total estimated net countervailable subsidy rates to be:
In accordance with sections 777A(e)(2)(B) and 705(c)(5)(A) of the Act, we have set the “all others” rate as CWB's rate because it is the only exporter/manufacturer investigated.
In accordance with section 703(d) of the Act, we are directing the Customs Service to suspend liquidation of all entries of certain durum wheat and hard red spring wheat from Canada which are entered, or withdrawn from warehouse, for consumption on or after the date of the publication of this notice in the
In accordance with section 703(f) of the Act, we will notify the ITC of our determinations. In addition, we are making available to the ITC all nonprivileged and nonproprietary information relating to these investigations. We will allow the ITC access to all privileged and business proprietary information in our files, provided the ITC confirms that it will not disclose such information, either publicly or under an administrative protective order, without the written consent of the Assistant Secretary for Import Administration.
In accordance with section 705(b)(2) of the Act, if our final determinations are affirmative, the ITC will make its final determinations within 45 days after the Department makes its final determinations.
Case briefs for these investigations must be submitted no later than one week after the issuance of the last verification report. Rebuttal briefs must be filed within five days after the deadline for submission of case briefs. A list of authorities relied upon, a table of contents, and an executive summary of issues should accompany any briefs submitted to the Department. Executive summaries should be limited to five pages total, including footnotes.
Section 774 of the Act provides that the Department will hold a public hearing to afford interested parties an opportunity to comment on arguments raised in case or rebuttal briefs, provided that such a hearing is requested by an interested party. If a request for a hearing is made in this investigation, the hearing will tentatively be held two days after the deadline for submission of the rebuttal briefs at the U.S. Department of Commerce, 14th Street and Constitution Avenue, NW., Washington, DC 20230. Parties should confirm by telephone the time, date, and place of the hearing 48 hours before the scheduled time.
Interested parties who wish to request a hearing, or to participate if one is requested, must submit a written request to the Assistant Secretary for Import Administration, U.S. Department of Commerce, Room 1870, within 30 days of the publication of this notice. Requests should contain: (1) The party's name, address, and telephone number; (2) the number of participants; and (3) a list of the issues to be discussed. Oral presentations will be limited to issues raised in the briefs.
These determinations are published pursuant to sections 703(f) and 777(i) of the Act.
National Institute of Standards and Technology, United States Department of Commerce.
Notice.
The Director of the National Institute of Standards and Technology (NIST), Technology Administration, United States Department of Commerce, announces the establishment of a National Construction Safety Team pursuant to the National Construction Safety Team Act. The Team was established to investigate the building failure at The Station nightclub in West Warwick, Rhode Island.
The Team was established on February 27, 2003.
Dr. James E. Hill, Deputy Director, Building and Fire Research Laboratory, National Institute of Standards and Technology, Mail Stop 8600, Gaithersburg, MD 20899-8600, telephone number (301) 975-5900. Members of the public are encouraged to submit to the Team non-privileged evidence that is relevant to the subject matter of the NIST investigation described in this notice. Such evidence may be submitted to the address contained in this section. Confidential information will only be accepted pursuant to an appropriate nondisclosure agreement.
Dr. James E. Hill, Deputy Director, Building and Fire Research Laboratory, National Institute of Standards and Technology, Mail Stop 8600, Gaithersburg, MD 20899-8600, telephone number (301) 975-5900.
15 U.S.C. 7301
The National Construction Safety Team Act (“Act”), Pub. L. 107-231, codified at 15 U.S.C. 7301
Pursuant to the Act, on February 27, 2003, the Director of the National Institute of Standards and Technology (NIST), Technology Administration, United States Department of Commerce, established a Team to investigate the building failure at The Station nightclub in Warwick, Rhode Island. The Team may include members who are Federal employees and members who are not Federal employees. Team members who are Federal employees are governed by the Federal conflict of interest laws. Team members who are not Federal employees will be Federal government contractors, and conflicts of interest related to their service on the Team will be governed by FAR Subpart 9.5, Organizational and Consultant Conflicts of Interest, which will be incorporated by reference into all such contracts.
On January 30, 2003, NIST published an interim final rule with a request for public comments, establishing 15 CFR part 270, National Construction Safety Teams. The interim final rule contains general provisions regarding implementation of the Act and establishes procedures for the collection and preservation of evidence obtained and the protection of information created as part of investigations conducted pursuant to the Act, including guiding the disclosure of information under section 7 of the Act (§§ 270.350, 270.351, and 270.352) and guiding the Teams in moving and preserving evidence (§ 270.330). The interim final rule became effective upon publication. The procedures contained in the interim final rule apply to the investigation announced in this notice.
Members of the public are encouraged to submit to the Team non-privileged evidence that is relevant to the subject matter of the NIST investigation described in this notice. Such evidence may be submitted to the address contained in the
68 FR 7776.
10:30 a.m., Wednesday, March 05, 2003.
The closed meeting to discuss Personnel Matters has been postponed until Monday, March 10, 2003 at 2 p.m.
Jean A. Webb, 202-418-5100.
Office of the Assistant Secretary of Defense for Public Affairs, DoD.
Notice.
In compliance with section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995, the Office of the Assistant Secretary of Defense for Public Affairs announces the proposed extension of a public information collection and seeks public comment on the provisions thereof. Comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden of the proposed information collection; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the information collection on respondents, including through the use of automated collection techniques or other forms of information technology.
Consideration will be given to all comments received by May 9, 2003.
Written comments and recommendations on the proposed information collection should be sent to The Office of the Assistant Secretary of Defense for Public Affairs, Attn: CR&PL (Mr. Michael Byers), 1400 Defense, The Pentagon, Washington, DC 20301-1400.
To request more information on this proposed information collection or to obtain a copy of the proposal and associated collection instruments, please write to the above address, or call the Directorate for Programs and Community Relations, at (703) 695-6108.
Respondents are individuals or representatives of Federal and non-Federal government agencies, community groups, non-profit organizations, and civic organizations requesting Armed Forces support for patriotic events conducted in the civilian domain. DD Forms 2535 and 2536 record the type of military support requested, event data, and sponsoring organization information. The completed forms provide the Armed Forces the minimum information necessary to determine whether an event is eligible for military participation and whether the desired support permissible and/or available. If the forms are not provided, the review process is greatly increased because the Armed Forces must make additional written and telephonic inquiries with the event sponsor. In addition, use of the forms reduces the event sponsor's preparation time because the forms provide a detailed outline of information required, eliminate the need for a detailed letter, and contain concise information necessary for determining appropriateness of military support. Use of the forms is essential to reduce preparation and processing time, increase productivity, and maximize responsiveness to the public.
Department of Defense.
Notice of establishment.
The Technology and Privacy Advisory Committee (TAPAC) is being established in consonance with public interest and in accordance with the provisions of Pub. L. 92-463, the “Federal Advisory Committee Act,” title 5 U.S.C., Appendix 2. The TAPAC will advise the Secretary of Defense concerning the legal and policy considerations implicated by the application of pattern queries/data correlation technology to counter-terrorism and counter-intelligence missions.
The Panel will consist of up to 14 members selected on the basis of their preeminence in the fields of constitutional law and public policy relating to communication and information management.
Lisa Davis, Office of the Under Secretary of Defense (Acquisition, Technology, and Logistics), on 703-697-0051.
Defense Intelligence Agency, Department of Defense.
Notice.
Pursuant to the provisions of Subsection (d) of Section 10 of Public Law 92-463, as amended by Section 5 of Public Law 94-409, notice is hereby given that a closed meeting of the DIA Advisory Board, Standing Committee on Emerging Chemical and Biological Technology Advisory Committee of Experts was scheduled as follows:
February 25 & 26, 2003 (9 a.m.-5 p.m.).
Washington, DC 20009.
Mr. Jack A. McNulty, Director, DIA Advisory Board, Standing Committee on Emerging Chemical and Biological Technology Advisory Committee of Experts, Washington, DC 20340-1328, (202) 231-3507.
The entire meeting was devoted to the discussion of classified information as defined in section 552b(c)(I), Title 5 of the U.S. Code, and therefore was closed to the public. The Board received briefings on and discussed several current critical intelligence issues and advised the Director, DIA, on related scientific and technical matters.
Director, Administration and Management, Department of Defense.
Notice of Advisory Committee meeting.
The Pentagon Memorial Design Competition Jury will meet in closed session on February 21, 2003. The purpose of the meeting is for the Jury to make its final concept recommendation.
The Jury was chartered on August 26, 2002, by the Department of Defense to review and evaluate the concepts submitted in response to the Baltimore District, Corps of Engineers announcement of the competition for a Pentagon Memorial to the victims of the September 11, 2001 terrorist attack on the Pentagon.
In accordance with the Federal Advisory Committee Act, Public Law No. 92-463, as amended [5 U.S.C., Appendix II 1982], discussion of matters as covered by 5 U.S.C. 552b(c)(4), (6), and (9)(B) (1988), will take place throughout the meeting, and that, accordingly, the meeting will be closed to the public.
Due to extraordinary legal issues encountered during the meeting planning phase, this notice is being published after the meeting was held.
Friday, February 21, 2003—9 a.m.-5 p.m.
National Building Museum, 401 F Street NW., Washington, DC 20001.
Marilyn Jajko, Program Manager, Real Estate and Facilities, Washington Headquarters Services, on 703-614-4893.
Defense Manpower Data Center, Defense Logistics Agency, DoD.
Notice of a computer matching program.
Subsection (e)(12) of the Privacy Act of 1974, as amended (5 U.S.C. 552a), requires agencies to publish advanced notice of any proposed or revised computer matching program by the matching agency for public comment. The DoD, as the matching agency under the Privacy Act, is hereby giving notice to the record subjects of a computer matching program between the Department of Veterans Affairs (VA) and DoD that their records are being matched by computer. The purpose is to identify and locate Federal personnel, employed, serving, or retired, who owe delinquent debts to the Federal Government under certain programs administered by VA.
This proposed action will become effective April 9, 2003, and matching may commence unless changes to the matching program are required due to public comments or by Congressional or by Office of Management and Budget objections. Any public comment must be received before the effective date.
Any interested party may submit written comments to the Director, Defense Privacy Office, 1941 Jefferson Davis Highway, Suite 920, Arlington, VA 22202-4502.
Mr. Vahan Moushegian, Jr. at (703) 607-2943.
Pursuant to subsection (o) of the Privacy Act of 1974, as amended, (5 U.S.C. 552a), the Defense Manpower Data Center (DMDC) and VA have concluded an agreement to conduct a computer matching program between the agencies. The purpose of the match is to exchange personal data
The parties to this agreement have determined that a computer matching program is the most efficient and effective manner to accomplish this task with the least amount of intrusion of personal privacy of the individuals concerned. It was therefore concluded and agreed upon that computer matching would be the best and least obtrusive manner and choice for accomplishing this requirement.
A copy of the computer matching agreement between VA and DoD is available upon request. Requests should be submitted to the address caption above or to the Debt Management Center, U.S. Department of Veterans Affairs, Bishop Henry Whipple Federal Building, 1 Federal Drive, Ft. Snelling, Minnesota 55111.
Set forth below is the notice of the establishment of a computer matching program required by paragraph 6.c. of the Office of Management and Budget Guidelines on computer matching published on June 19, 1989, at 54 FR 25818.
The matching agreement, as required by 5 U.S.C. 552a(r) of the Privacy Act, and an advance copy of this notice was submitted on February 12, 2003, to the House Committee on Government Reform, the Senate Committee on Governmental Affairs, and the Administrator of the Office of Information and Regulatory Affairs, Office of Management and Budget pursuant to paragraph 4d of Appendix I to OMB Circular No. A-130, “Federal Agency Responsibilities for Maintaining Records about Individuals”, dated February 8, 1996 (February 20, 1996, 61 FR 6427).
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VA will use personal data from the following Privacy Act record systems for the match: Accounts Receivable Records-VA, 88VA244, published in the
DoD will use personal data from the record system identified as S322.11 DMDC, entitled “Federal Creditor Agency Debt Collection Data Base,” last published in the
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The electronic file provided by VA will contain data elements of the debtor's name, SSN, internal account numbers and the total amount owed for each debtor on approximately 240,000 delinquent debtors.
The DMDC computer database file contains approximately 4.84 million records of active duty and retired military members, including the Reserve and Guard, and approximately 3.56 million records of active and retired non-postal Federal civilian employees.
DMDC will match the SSN on the VA file by computer against the DMDC database. Matching records, “hits” based on SSNs, will produce data elements of the individual's name, SSN, military service or employing agency, and current work or home address.
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Notice is hereby given that the Delaware River Basin Commission (“DRBC” or “Commission”) will hold an informal conference followed by a public hearing on Wednesday, March 19, 2003. The hearing will be part of the Commission's regular business meeting. Both the conference session and business meeting are open to the public and will be held at the Commission's offices at 25 State Police Drive, West Trenton, New Jersey.
The conference among the commissioners and staff will begin at 9:30 a.m. Topics of discussion include: the DRBC Water Resources Program for 2003; a progress report on development of the basinwide plan and new DRBC comprehensive plan; a discussion about the Delaware River Basin Conservation Reserve Enhancement Program; a proposal to extend Docket D-77-20 CP (Revision 5) (Amended) relating to New York City reservoir releases to protect tailwater fisheries; a proposal to amend the Commission's project review fees; a report on the coordinated EPA, state and DRBC approach to the staged PCB TMDL for the Delaware Estuary; and a discussion on proposed revision of the Commission's water quality standards for PCBs.
The subjects of the public hearing to be held during the 1 p.m. business meeting include, in addition to the dockets listed below, a resolution extending Docket D-77-20 CP (Revision 5) (Amended); a resolution amending Docket D-77-110 CP by the addition of a “Designated Unit” to Table A (Revised); a resolution adopting the 2003 Water Resources Program; and a resolution to approve the Commission's budgets for the fiscal year ending June 30, 2004.
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In addition to the public hearing items, the Commission will address the following at its 1 p.m. business meeting: Minutes of the January 29, 2003 business meeting; announcements; a report on Basin hydrologic conditions; a report by the executive director; a report by the Commission's general counsel; a resolution re-authorizing the Water Quality Advisory Committee; and a resolution authorizing the executive
Draft dockets and other items scheduled for public hearing on March 19, 2003 are posted on the Commission's Web site,
Persons wishing to testify at this hearing are requested to register in advance with the Commission Secretary at 609-883-9500 ext. 203. Individuals in need of an accommodation as provided for in the Americans With Disabilities Act who wish to attend the hearing should contact the Commission Secretary directly at 609-883-9500 ext. 203 or through the Telecommunications Relay Services (TRS) at 711, to discuss how the Commission may accommodate your needs.
Department of Energy (DOE), National Energy Technology Laboratory (NETL).
Notice of availability of a Financial Assistance Solicitation.
Notice is hereby given of the intent to issue Financial Assistance Solicitation No. DE-PS26-03NT41739-0 entitled “EE-IT Mining Industry of the Future: Exploration and Mining Technology”. The U.S. Department of Energy (DOE) Office of Industrial Technologies (OIT) is soliciting applications for cost-shared research and development of technologies which will reduce energy consumption, enhance economic competitiveness and reduce environmental impacts of the domestic mining industry. An efficient and productive mining industry requires constant progress in the processes and technologies used in exploration and mining. While the mining industry uses many of the latest technologies to locate and mine materials, further process and technological advances are needed to enable enhanced and more efficient resource identification, characterization and production. The objective of the targeted solicitation is to support the stated national interests by funding research and development projects that address key industry-identified technology needs described in the Exploration and Mining Technology (EMT) Roadmap (Sept. 2002) (
The solicitation will be available on the “Industry Interactive Procurement System” (IIPS) Web page located at
Donna J. Jaskolka, MS 921-107, U.S. Department of Energy, National Energy Technology Laboratory, PO Box 10940, Pittsburgh, PA 15236-0940, E-mail address:
The U.S. Congress looks to the Department of Energy (DOE) to work toward improving the energy efficiency of America's most energy-intensive industries with special interest in industrial processing. DOE, through it's Industrial Technologies Program (IT) supports industries in their efforts to increase energy efficiency, reduce waste and increase productivity. The goal of the IT Program is to accelerate the development and use of advanced, energy efficient, renewable and pollution prevention technologies that benefit industry, the environment and the U.S. energy security. At IT's core, is the Industries of the Future program that focuses on basic materials and processing industries, of which the Mining Industry is one such business sector.
The objective of the targeted solicitation is to support the stated national interests by funding research and development (R&D) projects that address technology needs described in the Exploration and Mining Technology (EMT) Roadmap (Sept. 2002) (
As stated above, the key industry-identified research areas as presented in the Roadmap and Analysis form the bases of this solicitation and are characterized in four interest areas as follows:
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Applications submitted in response to these four interest areas will only be funded if the proposed research and development addresses improving the energy efficiency of the mineral industry in the areas directly related to exploration and mining. Applications for literature reviews
This solicitation marks a transition in the EE-OIT Mining Program to emphasizing fewer, but larger, projects that can be expected to have impact industry-wide and offer maximum energy savings potential. Awards will be cost-shared, financial assistance cooperative agreements, with a mandatory requirement that the recipient provide a minimum cost share of fifty percent (50%) of the total project cost. It is anticipated that six to eight (6-8) projects will be selected for negotiation of an award. It is generally contemplated that DOE will cost-share between $1.5 to $2 million per award, or an amount not to exceed 50% of the total estimated cost of the effort. Approximately two million dollars ($2,000,000) in federal funds are expected to be available to fund the first twelve (12) months of performance for projects selected from this solicitation. Subject to the availability of funds, approximately $6 to $10 million is planned to fund the remaining years of the projects.
Any nonprofit or for-profit organization, university or other institution of higher education, or non-federal agency or entity is eligible to apply in response to the four interest areas encompassed by Program Solicitation DE-PS26-03NT41739-0. Applications including performance of a portion of the work by: (1) A Department of Energy (DOE) Management and Operating (M&O) contractor, (2) a Federally Funded Research and Development Center (FFRDC) funded by another Federal agency, or (3) another Federal agency are eligible for consideration, subject to the provisions to be set forth in Program Solicitation DE-PS26-03NT41739-0. (Applicants take note that the combined limit on participation by an M&O contractor, FFRDC or other Federal Agency for an individual project under this solicitation is a maximum of 20% of the total project cost.)
Additional eligibility requirements for applicants seeking financial assistance through this solicitation are the ability to: (1) Comply with the mandatory fifty percent (50%) cost share requirement; (2) satisfy the eligibility requirements of Section 2306 (Foreign Involvement) of the Energy Policy Act of 1992 (EPAct); and (3) formulate a multi-partner team that includes the involvement, at a minimum, of either (a) two (2) “mining companies” (a “mining company” is defined as a firm actively engaged in the extraction and/or processing of rock or mineral resources for the purpose of producing a salable product(s)”) or (b) two (2) companies, one of which must be a “mining” company and the other must be an equipment manufacturer/re-manufacturer or service provider to the mining industry, or mining technology developer or a mineral processing company if it's appropriate for facilitating the commercial process. Applications submitted directly by or on behalf of: (1) Another Federal agency, (2) an FFRDC sponsored by another Federal agency; or (3) a DOE M&O Contractor are ineligible for consideration under this solicitation. Applications submitted by an organization covered by the Simpson-Craig Amendment are also ineligible for consideration.
The solicitation is available for downloading from the IIPS Web page (
U.S. Department of Energy.
Notice.
The Department of Energy (DOE) Idaho Operations Office will hold public workshops to inform stakeholders of technology options being considered for treating sodium-bearing waste at the Idaho Nuclear Technology and Engineering Center (INTEC), location on the Idaho National Engineering and Environmental Laboratory (INEEL). DOE invites the public to comment on these options during a comment period, which starts on the date of this Notice. The workshops will provide an overview of the treatment options, allow for questions, and provide an opportunity for participants to identify issues and concerns.
These public meetings/workshops will also serve as Permit Pre-Application Meetings under the Resource Conservation and Recovery Act, as discussed in 40 CRR 124.31. Public notice of the Pre-Application meetings has been published in local newspapers and announced in other forms of public media. The public may submit comments, which DOE will forward to the state of Idaho, Department of Health and Welfare, as part of the Part B permit application process.
Public workshops, each preceded by an informal open house, will be held on the following dates and times:
Please submit all comments to Alan Jines, P.E., U.S. DOE-Idaho Operations Office, 850 Energy Drive, Idaho Falls, ID 83401.
Interested persons may obtain information by contacting: Alan Jines, (208) 526-7524; Fax: (208) 526-8789; E-mail:
In October 2002, DOE issued the
The State of Idaho was a cooperating agency in the preparation of this EIS. Although DOE and the State of Idaho identified different preferred alternatives for waste processing, the two parties agree the ultimate objective is to treat sodium-bearing waste and dispose of the treated waste outside of Idaho.
The Final EIS identified DOE's preferred alternative, which is to select appropriate technologies and construct facilities necessary to prepare sodium-bearing waste for shipment to the Waste Isolation Pilot Plant near Carlsbad, New Mexico. To implement its preferred alternative, DOE will continue proof of process and demonstration-scale testing of the four technologies that appear most likely to meet the performance criteria which include effectiveness, technical maturity, risk, cost, schedule, and safety. The four technologies are: (1) Calcination; (2) Steam Reforming; (3) Direct Evaporation and (4) Cesium Ion Exchange. Selection of another technology or option analyzed in the EIS is not precluded if these four technologies fail to meet performance criteria or if a new, more promising technology is identified.
DOE issued the Final EIS after extensive public involvement that included eight hearings in four states on the Draft EIS; a 90-day public comment period; and consideration of over 900 comments. DOE expects to announce its decisions in phases, with each phase of the EIS Record of Decision addressing specific activities. DOE expects to select a technology for the treatment of sodium bearing waste in an EIS Record of Decision scheduled for early 2004. DOE hereby invites the public to participate in evaluating the technologies being considered for the treatment of sodium-bearing waste.
Interested individuals may view the Final EIS on the Department of Energy—Idaho Operations office Web site at
Environmental Protection Agency (EPA).
Notice.
In compliance with the Paperwork Reduction Act (44 U.S.C. 3501
Comments must be submitted on or before May 9, 2003.
Follow the detailed instructions in
Julius Banks, Global Programs Division, U.S. EPA (6205J), 1200 Pennsylvania Avenue, NW., Washington, DC 20460; phone: (202) 564-9870; facsimile: (202) 566-2155; Email address:
EPA has established a public docket for this ICR under Docket ID number OAR-2003-0018, which is available for public viewing at the Office of Air and Radiation (OAR) 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 OAR Docket is (202) 566-1741. 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 60 days of this notice, and according to the following detailed instructions: Submit your comments to EPA online using EDOCKET (our preferred method), by email to
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. Although identified as an item in the official docket, information claimed as
The mandatory reporting and recordkeeping requirements are found at 40 CFR 82.166, and are used to judge the effectiveness of EPA regulations aimed at reducing emissions of ozone-depleting substances and meet the Unites States' obligation under the Montreal Protocol to reduce the use and emissions of ozone depleting substances (ODSs) to the lowest achievable level. The reporting and recordkeeping requirements affect persons who sell or distribute any class I or class II substance for use as a refrigerant; purchasers of any class I or class II refrigerants who employ certified technicians; EPA-approved refrigerant recovery equipment testing organizations; EPA-approved technician certification programs; EPA-certified refrigerant reclaimers; persons disposing (including metal scrap recyclers) of small appliances, motor vehicle air-conditioners (MVACs), and MVAC-like appliances; persons servicing appliances normally containing 50 or more pounds of refrigerant; owners/operators of appliances normally containing 50 or more pounds of refrigerant; and service technicians certified under 40 CFR 82.161.
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 EPA would like to solicit comments to:
(i) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(ii) Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
(iii) Enhance the quality, utility, and clarity of the information to be collected; and
(iv) Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated electronic, mechanical, or other technological collection techniques or other forms of information technology,
The annual burden is reported in this notice by annual respondent burden. This estimate 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. This ICR renewal does not include any burden for third-party or public disclosures that were not previously reviewed and approved by OMB.
The annual burden hours for this collection of information are estimated as follows: 16 hours for the two EPA-approved equipment testing organizations; 1,125 hours for an estimated 2,250 service establishments that will change ownership or enter the market; 12.5 hours for an estimated 25 disposal establishments that change ownership or enter the market; 10,000 hours for the maintenance of copies of signed statements by an estimated 500 disposal establishments; 40 hours for certification of an estimated 20 refrigerant reclaimers that change ownership or enter the market; 400 hours for reclaimer reporting from an estimated 70 respondents; 40,000 hours for an estimated 5,000 refrigerant wholesalers to maintain records of refrigerant sales transactions; 300 hours for an estimated 10 technician certification programs applying for first-time approval; 1,600 hours for 100 technician certification programs to maintain records; 96,000 hours for an estimated 330,000 technicians acquiring certification and maintaining certification cards; 268,500 hours for an estimated 2,003,850 owners of refrigeration and air-conditioning equipment to maintain records on refrigerant and equipment; and 990 hours for an estimated 210 owners of industrial process refrigeration equipment.
Environmental Protection Agency.
Notice of requests for applications.
This notice provides information on the availability of fiscal year 2003 investigator initiated grants program announcements, in which the areas of research interest, eligibility and submission requirements, evaluation
Receipt dates vary depending on the specific research areas within the solicitations.
In its Requests for Applications (RFA) the U.S. Environmental Protection Agency invites research applications in the following areas of special interest to its mission: (1) Epidemiologic Research on Health Effects of Long-Term Exposure to Ambient Particulate Matter and Other Air Pollutants, (2) Consequences of Global Change for Air Quality: Spatial Patterns in Air Pollution Emissions, (3) Microbial Risk in Drinking Water, (4) Environmental Statistics Research: Novel Analyses of Environmental Data, (5) Aggregate Exposure Assessment for Pesticides: Longitudinal Case Studies of Human Exposure-Related Behavior and (6) Valuation for Environmental Policy.
(1) Epidemiologic Research on Health Effects of Long-Term Exposure to Ambient Particulate Matter and Other Air Pollutants—
The complete program announcement can be accessed on the Internet at
Environmental Protection Agency (EPA).
Notice.
EPA expects to have approximately $5 million available in fiscal year 2003 grant/cooperative agreement funds under the Pollution Prevention (P2) grant program. Grants/cooperative agreements will be awarded under the authority of the Pollution Prevention Act (PPA) of 1990, subject to the availability of funds at the time of award. The Pollution Prevention Act of 1990 and 40 CFR part 35, subpart B authorize EPA to award grant funds to State, Tribes, and Intertribal Consortia programs that address the reduction or elimination of pollution across environmental media (air, land, and water) and to strengthen the efficiency and effectiveness of pollution prevention technical assistance programs in providing source reduction information to businesses. This notice describes the procedures and criteria for the award of these grants.
This action is directed to States (including state universities), Tribes and Intertribal Consortia. This notice may, however, be of interest to local governments, private universities, private nonprofit entities, private businesses, and individuals who are not eligible for this grant program. If you have any questions regarding the applicability of this action to a particular entity, contact the technical person listed in the
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An electronic version of the public docket is available through EPA's electronic public docket and comment system, EPA Dockets. You may use EPA Dockets at
More than $80 million has been awarded to over 100 State and Tribal organizations under EPA's multimedia P2 grant program, since its inception in 1989. During the past 13 years, P2 grant funds have established and enabled State and Tribal programs to implement a wide range of pollution prevention activities. P2 grants provide economic benefits to small businesses by funding pollution prevention technical assistance programs focused on helping the businesses develop more efficient production technologies and operate more cost effectively.
The goal of the P2 grant program is to assist businesses and industries in identifying better environmental strategies and solutions for reducing waste at the source. The majority of the P2 grants fund State-based projects in the areas of technical assistance and training, education and outreach, regulatory integration, data collection and research, demonstration projects, and recognition programs.
In November 1990, the Pollution Prevention Act of 1990 (Public Law 101-508) was enacted, establishing as national policy that pollution should be prevented or reduced at the source whenever feasible.
1. Section 6603 of the Pollution Prevention Act of 1990 defines source reduction as any practice that:
i. Reduces the amount of any hazardous substance, pollutant, or contaminant entering any waste stream or otherwise released into the environment (including fugitive emissions) prior to recycling, treatment, or disposal.
ii. Reduces the hazards to public health and the environment associated with the release of such substances, pollutants, or contaminants.
EPA further defines pollution prevention as the use of other practices that reduce or eliminate the creation of pollutants through increased efficiency in the use of raw materials, energy, water, or other resources, or protection of natural resources, or protection of natural resources by conservation.
2. Section 6605 of the Pollution Prevention Act of 1990 and 40 CFR part 35, subpart B authorizes EPA to make matching grants to promote the use of source reduction techniques by businesses. In evaluating grant applications, the Pollution Prevention Act of 1990 directs EPA to consider whether the proposed program will:
i. Make specific technical assistance available to businesses seeking information about source reduction opportunities, including funding for experts to provide onsite technical advice and to assist in the development of source reduction plans.
ii. Target assistance to businesses for which lack of information is an impediment to source reduction.
iii. Provide training in source reduction techniques.
EPA expects to have approximately $5 million in grant/cooperative agreement funds available for FY 2003-2004 pollution prevention activities. The Agency has delegated grant making authority to the EPA regional offices. EPA regional offices are responsible for the solicitation of interest and the screening of proposals. The Agency reserves the right to reject all initial proposals and make no awards.
In addition to the statutory criteria discussed in Unit II., all applicants must address all five of the national program criteria listed in Unit VI.B.2. EPA invites applicants to submit proposals that make the case for how their work will address P2 priorities on the national, Tribal, regional, and State level. Interested applicants should contact their EPA Regional Pollution Prevention Coordinator, listed in Unit X. for more information.
The
The number assigned to the P2 grant program in the Catalogue of Federal Domestic Assistance is 66.708 (formerly 66.900).
States, Tribes, and Intertribal Consortia recipients of P2 grants under section 6605 of the PPA must provide at least 50% of the total allowable project cost. For example, the Federal Government will provide half of the total allowable cost of the project, and the recipient will provide the other half. Recipients may meet the match requirements by allowable costs incurred by the grantee (often referred to as “in-kind goods or services”) or the value of third party in-kind contributions consistent with 40 CFR 31.24. If a Tribe or Intertribal Consortium is selected for award of a P2 grant and the Tribe includes the funds in a Performance Partnership Grant awarded under 40 CFR part 35, subpart B, the required Tribal match for the Pollution Prevention portion of the P2 grant will be reduced to 5% of the allowable Pollution Prevention project cost for the first 2 years of the P2 grant.
Eligible applicants for purposes of funding under this program include the 50 States, the District of Columbia, the U.S. Virgin Islands, the Commonwealth of Puerto Rico, any territory of or possession of the United States, any agency or instrumentality of a State including State universities, and Indian tribes that meet the requirement for treatment in a manner similar to a state at 40 CFR 35.663 and Intertribal Consortia that meet the requirements at 40 CFR 35.504. Local governments, private universities, private nonprofit, private businesses, and individuals are not eligible for funding. Eligible applicants are encouraged to establish partnerships with business and other environmental assistance providers to seamlessly deliver pollution prevention assistance. Successful applicants will be those that best meet the evaluation criteria in Unit VI.B.2. In many cases, this is likely to be accomplished through partnerships.
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EPA continues to seek more cooperation among State and Tribal pollution prevention programs and the other environmental and business assistance providers. These can include university-based technical assistance and cooperative extension programs, and other State-based assistance programs. Partnerships are also encouraged with regional and national programs such as the Pollution Prevention Resource Exchange (P2Rx) centers, National Institute of Standards and Technology (NIST) programs, Office of Enforcement and Compliance Assistance (OECA) Compliance Assistance Centers, EPA's Small Business Assistance Programs (SBAPs), etc.
By developing such partnerships, EPA would like to ensure that pollution prevention programs leverage this outside expertise. This partnership will also reduce the need for other environmental assistance providers to develop their own expertise, which would result in duplication of effort.
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The proposed work plan must meet the requirements for an approvable work plan at 40 CFR 35.107 or 35.507.
State applicants and recipients of P2 grants are subject to the requirements of 40 CFR parts 31 and 35, subpart A. Tribal and Intertribal Consortia applicants and recipients of P2 grants are subject to the requirements of 40 CFR parts 31 and 35, subpart B.
The work plans and reporting must be consistent with the requirements of 40 CFR 35.107, 35.115, 35.507, and 35.515.
The grantee, along with the Regional Project Officer, will develop a process for jointly evaluating and reporting progress and accomplishments under the work plan (see 40 CFR 35.115 and 35.515). A description of the evaluation process and a reporting schedule must be included in the work plan (see 40 CFR 35.107(b)(2)(iv) and 35.507(b)(2)(iv)).
The evaluation process must provide for:
1. A discussion of accomplishments as measured against work plan commitments.
2. A discussion of the cumulative effectiveness of the work performed under all work plan components.
3. A discussion of existing and potential problem areas.
4. Suggestions for improvement, including, where feasible, schedules for making improvements.
EPA's Pollution Prevention Division has created an optional progress report format to facilitate national reporting on status of P2 grant activities. A copy of the report format is included in the grant guidance located on the P2 Grant Program Web site (
Region I: (Connecticut, Maine, Massachusetts, New Hampshire, Rhode Island, Vermont) Rob Guillemin, 1 Congress St. (SPP), Boston, MA 02203; telephone number: (617) 918-1814 or (617) 918-1841; e-mail address:
Region II: (New Jersey, New York, Puerto Rico, Virgin Islands) Tristen Gillespie (SPMMB), 290 Broadway, 25th Floor, New York, NY 10007; telephone number: (212) 637-3753; e-mail address:
Region III: (Delaware, District of Columbia, Maryland, Pennsylvania, Virginia, West Virginia) Lorna Rosenberg (3E100), 1650 Arch St., Philadelphia PA 19103-2029; telephone number: (215) 814-5389; e-mail address:
Region IV: (Alabama, Florida, Georgia, Kentucky, Mississippi, North Carolina, South Carolina, Tennessee) Dan Ahern, Atlanta Federal Center, 61 Forsyth St., SW., Atlanta, GA 30303; telephone number: (404) 562-9028; e-mail address:
Region V: (Illinois, Indiana, Michigan, Minnesota, Ohio, Wisconsin) Phil Kaplan (DW-8J), 77 West Jackson Blvd., Chicago, IL 60604-3590; telephone number: (312) 353-4669; e-mail address:
Region VI: (Arkansas, Louisiana, New Mexico, Oklahoma, Texas) Eli Martinez (6EN-XP), 1445 Ross Ave., 12th Floor, Suite 1200, Dallas, TX 75202; telephone number: (214) 665-2119; e-mail address:
Region VII: (Iowa, Kansas, Missouri, Nebraska) Gary Bertram (ARTD/TSPP), 901 N 5th St., Kansas City, KS 66101; telephone number: (913) 551-7533; e-mail address:
Region VIII: (Colorado, Montana, North Dakota, South Dakota, Utah, Wyoming) Linda Walters (8P-P3T), 999 18th St., Suite 300, Denver, CO 80202-2405; telephone number: (303) 312-6385, e-mail address:
Region IX: (American Samoa, Arizona, California, Guam, Hawaii, Nevada) Leif Magnuson (WST-7), 75 Hawthorne Ave., San Francisco, CA 94105; telephone number: (415) 972-3286; e-mail address:
Region X: (Alaska, Idaho, Oregon, Washington) Carolyn Gangmark, 01-085, 1200 Sixth Ave., Seattle, WA 98101; telephone number: (206) 553-4072; e-mail address:
Grant solicitations such as this are considered rules for the purpose of the Congressional Review Act (CRA). The CRA, 5 U.S.C. 801
Environmental protection, Grants, Pollution prevention.
The Sub-Saharan Africa Advisory Committee was established by Public Law 105-121, November 26, 1997, to advise the Board of Directors on the development and implementation of policies and programs designed to support the expansion of the Bank's financial commitments in Sub-Saharan Africa under the loan, guarantee and insurance programs of the Bank. Further, the committee shall make recommendations on how the Bank can facilitate greater support by U.S. commercial banks for trade with Sub-Saharan Africa.
For further information, contact Teri Stumpf, Room 1215, 811 Vermont Avenue, NW., Washington, DC 20571, (202) 565-3502.
The meeting of the Board of Directors is scheduled to begin at 2 pm on Wednesday, March 12, 2003. The public hearing will take place immediately following the Board of Directors meeting.
Board Room, Second Floor, Federal Housing Finance Board, 1777 F Street, NW., Washington, DC 20006.
The entire meeting and the public hearing will be open to the public.
• Appointments to the Office of Finance. Part 985 of the Federal Housing Finance Board regulations requires the agency to appoint the members of the Office of Finance board of directors (12 CFR 985.7).
• Appointment of Federal Home Loan Bank Directors. Section 7 of the Federal Home Loan Bank Act (12 U.S.C. 1427) requires the Federal Housing Finance Board to appoint public interest directors to the boards of directors of the Federal Home Loan Banks.
• Financial Expertise Requirements for Certain Federal Home Loan Bank Appointed Directors. Consideration of a proposed rule to ensure that at least one appointive director serving on the board of directors of each Federal Home Loan Bank has financial expertise.
• Delegation of Authority to the Chairperson of the Board of Directors of the Federal Housing Finance Board. Consideration of a resolution setting forth the sense of the Board of Directors about the delegation to the Chairperson.
Business Objectives and Practices of Federal Home Loan Bank Unsecured Lending.
Mary H. Gottlieb, Paralegal Specialist, Office of General Counsel, by telephone at 202/408-2826 or by electronic mail at
By the Federal Housing Finance Board.
Public Buildings Service, GSA.
Notice of request for comments regarding an extension to an existing OMB clearance.
Under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35), the General Services Administration will be submitting to the Office of Management and Budget (OMB) a request to review and approve an extension of a currently approved information collection requirement regarding the Art in Architecture Program national artist registry form.
The Art in Architecture Program is the result of a policy decision made in January 1963 by GSA Administrator, Bernard L. Boudin, who had served on the Ad Hoc Committee on Federal Office Space in 1961-62.
The program has been modified over the years, most recently in 1996 when a renewed focus on commissioning works of art that are an integral part of the building's architecture and adjacent landscape was instituted. The program continues to commission works of art from living American artists. One half of one percent of the estimated construction cost of new or substantially renovated Federal buildings and U.S. courthouses is allocated for commissioning works of art.
Public comments are particularly invited on: Whether this collection of information is necessary and whether it will have practical utility; whether our estimate of the public burden of this collection of information is accurate, and based on valid assumptions and methodology; ways to enhance the quality, utility, and clarity of the information to be collected.
Submit comments on or before: May 9, 2003.
Susan Harrison, Public Buildings Service, Office of the Chief Architect, Art in Architecture, Room 3341, 1800 F Street, NW., Washington, DC 20405.
Submit comments regarding this burden estimate or any other aspect of this collection of information, including suggestions for reducing this burden to the Regulatory and Federal Assistance Publications Division, General Services Administration (MVA), Room 4035, 1800 F Street, NW., Washington, DC 20405.
The Art in Architecture Program actively seeks to commission works from the full spectrum of American artists, and strives to promote new media and inventive solutions for public art. The GSA Form 7437, Art in Architecture Program National Artist Registry will be used to collect information from artists across the country to participate and to be considered for commissions.
This program is authorized under section 301 and 317(C) of the Public Health Service Act, (42 U.S.C. 241 and 247b-4, as amended). The Catalog of Federal Domestic Assistance number is 93.184.
The Centers for Disease Control and Prevention (CDC) announces the availability of fiscal year (FY) 2003 research grant funds for intervention research directed to implementing health promotion programs for people with disabilities. This announcement is related to the “Healthy People 2010” focus area of Disability and Secondary Conditions.
The purpose of this program is to support research to develop, implement and measure the effectiveness of interventions that promote the health and wellness of people with disabilities and prevent secondary conditions. For the purpose of this announcement, disability is defined as a physical or cognitive limitation in a major life activity(ies). For the purpose of this announcement, health promotion will be defined as the process of enabling people to increase control over, and to improve their health.
Measurable outcomes of the program must be in alignment with the following performance goal of the National Center on Birth Defects and Developmental Disabilities: Monitor, characterize, and improve the health status of Americans with disabilities.
Applications may be submitted by public and private non-profit organizations and by governments and their agencies; that is, universities, colleges, technical schools, research institutions, hospitals, other public and private nonprofit organizations, community-based organizations, faith-based organizations, state and local governments or their bona fide agents, including the District of Columbia, the Commonwealth of Puerto Rico, the Virgin Islands, the Commonwealth of the Northern Mariana Islands, American Samoa, Guam, the Federated States of Micronesia, the Republic of the Marshall Islands, and the Republic of Palau, federally recognized Indian tribal governments, Indian tribes, or Indian tribal organizations.
Title 2 of the United States Code section 1611 states that an organization described in section 501(c)(4) of the Internal Revenue Code that engages in lobbying activities is not eligible to receive Federal funds constituting an award, grant or loan.
In addition to the above, one award will be made to an applicant whose intervention targets populations with limb loss or limb absence. This award
It is anticipated that awards will begin on or before September 1, 2003, for a 12-month budget period within a project period of up to three years. Funding estimates are subject to change. Continuation awards within an approved project period will be based on satisfactory progress as evidenced by required reports and the availability of funds.
Applicants may submit more than one application under the selections available for intervention research targeting populations of people with disabilities. However, given the limited funds available under this announcement, no applicant nor an applicant's parent organization will receive more than one award.
Each year, applicants should budget travel funds for two staff members to attend a three day workshop in Atlanta to review the collective performance of funded projects; and for two staff members to participate in a four day national conference/meeting of relevance to the project.
Given the availability of other Federal resources for that purpose, grant funds under this announcement cannot be used for intervention research directed at people with a “Diagnostic and Statistical Manual of Mental Disorders” (DSM IV) primary diagnosis of mental illness, although such impairments (
In conducting activities to achieve the purpose of this program, the grantee will be responsible for the following activities:
1. Confirm the basis for study participant selection and the mechanisms in place to access this group(s); finalize the location/sites of the study; and engage and impact the target population selected for interventions over the full course of the project.
2. Implement the proposed research methods including study instruments, questionnaires, protocols, and expected outcome measures; and address the expected applicability of research findings to the intended population.
3. Institute the work plan based on the major actions (measurable goals and objectives) required to conduct and complete the project with specific timelines and action steps for attaining all work plan and performance outcomes.
4. Undertake major activities as identified to be performed by key staff, sustain management oversight for all components of the project, and sustain a viable organizational structure to assure optimal performance.
5. Measure the effects of the proposed collaborations and outline the project's relationship to other programs underway or recently completed.
6. Account for the expected outcomes of the intervention and how the overall effectiveness of the project will be measured; including methods for detecting meaningful changes in outcomes of interest such as improved health, reductions in health disparities, and fewer or less severe secondary conditions among the targeted populations.
7. Catalog effective communication channels and announce best formats for disseminating results to specific and general audiences including; persons with disabilities, caregivers, disability service organizations, advocacy groups, public health organizations, governmental agencies, non-governmental organizations, researchers, and the general public.
Specific populations of people with disabilities targeted for health promotion interventions should be appropriately justified. Interventions may be targeted at the individual, group or system level. Applicants may focus on multiple and/or common functional categories such as people with mobility limitations, sensory, communication, or developmental disabilities. Applicants must focus on at least two or more underlying etiologies within the population of people with disabilities selected for intervention.
Applicants are encouraged to collaborate with existing programs that have experience conducting effective interventions in the areas of interest. In addition, applicants are strongly encouraged to include people with disabilities in all phases of research planning and implementation.
Applicants should pilot, implement, and evaluate innovative health promotion interventions that have the potential for application and/or replication in other settings (
The main body of the application narrative should not exceed 35 double-spaced pages. Please note that this maximum number of pages allowed exceeds the maximum number of pages (25 pages) indicated in the PHS 398 grant application form (Form CC, “Research Grant Table of Contents”.) The budget justification and biographical sketch sections do not count toward the maximum page limit. Pages must be numbered and printed on only one side of the page.
All material must be typewritten, with 10 characters per inch type (12-point font) on 8
Within the application narrative, present the rationale for the proposed research, and explain the public health and scientific importance of the study. In the context of previous studies, describe the contribution this research will make and how the conduct of this intervention research will achieve the stated purpose of this Announcement. In addition, address and defend the choice of the leading health indicator of interest and the proposed intervention, including a statement of the main purpose/goal of the intervention.
Use the information in the Program Requirements, Other Requirements, and Evaluation Criteria sections to develop the application content. Your application will be evaluated according to the criteria listed in those sections of this announcement, so it is important to follow them in laying out your program plan.
If you do not have access to the Internet, or if you have difficulty accessing the forms on-line, you may contact the CDC Procurement and Grants Office Technical Information Management Section (PGO-TIM) at: 770-488-2700. Application forms can be mailed to you.
Forms may not be submitted electronically.
Applications which do not meet the above criteria will not be eligible for competition and will be returned. Applicants will be notified of their failure to meet the submission requirements.
Applicants are required to provide measures that will demonstrate the effectiveness of the proposed intervention. Measures of effectiveness must relate to the performance goal stated in section “B. Purpose” of this announcement. Measures must also be objective and quantitative and must measure the intended outcome. These measures of effectiveness shall be submitted with the application and shall be an element of evaluation.
Applications will be reviewed by CDC staff for completeness and responsiveness as outlined under the previous heading, Program Requirements. Incomplete applications and applications that are non-responsive will be returned to the applicant without further consideration.
Applications which are complete and responsive will be subjected to a preliminary evaluation (triage) by a Special Emphasis Panel (SEP) to determine if the application is of sufficient technical and scientific merit to warrant further review by the SEP. Applications that are determined to be non-competitive will not be considered, and the SEP will promptly notify the investigator/program director and the official signing for the applicant organization. Applications then determined to be competitive will be evaluated by a dual review process.
Awards will be made based on priority scores assigned to applications by the SEP, programmatic priorities, needs as determined by a secondary review committee, and the availability of funds.
Each application will be evaluated individually against the following criteria. It is suggested that applications be organized to be compatible with the evaluation criteria, as that is the process by which the review committee will assess the quality of the applications.
All criteria (Background/Understanding of Need, Research Approach, Investigators/Collaborators/Management Plans, and Evaluation) are of equal importance, however an application does not need to be strong in all categories to be judged likely to have a major scientific impact.
Evaluation will be based on:
a. Identification of the problem and justification for the study, including the “Healthy People 2010” objective(s) to be addressed.
b. Review of the relevant literature and discussion of the research
c. Description of the theoretical framework underlying the intervention.
d. Description of the study goals, objectives and/or hypotheses.
e. Intended use and applicability of study findings
Evaluation will be based on:
a. The overall strength and feasibility of the research design.
b. Description and justification of the study population, including case definitions, number of participants, selection criteria, and methods for recruiting, enrolling, and sustaining participation.
c. Description of the consent process, including procedures for informing participants about the study and methods for obtaining consent.
d. A detailed description of the intervention.
e. Description of all study instruments, including survey questionnaires, and a discussion of their reliability and validity.
f. Data handling and analysis plans, including statistical methodology, data entry, storage, and disposition.
g. Plans for disseminating and reporting results to multiple target audiences.
a. A description of the major collaborators and their explicit contributions to project objectives.
b. A description of investigator(s) qualifications, roles, tasks, time commitments, and responsibilities.
c. A detailed work plan with specific time frames for implementation of the project. This includes the presentation of overarching goals for the full three year project period with a detailed work plan outlining monthly or quarterly objectives covering the first two budget years.
d. Evidence that people with disabilities will participate in all phases of the research.
Evaluation will be based on:
a. A description of how progress will be monitored and evaluated over the course of the intervention.
b. The extent to which project goals are attained and specific objectives accomplished.
c. A description of expected outcomes and the overall effectiveness of the intervention. This includes methods for detecting meaningful changes in outcomes of interest such as improved health, reductions in health disparities, and fewer or less severe secondary conditions among the targeted populations.
d. A description of the expected cost/benefit of the intervention.
This includes the comprehensiveness and adequacy of the applicant's proposed budget in relation to program operations, collaborations, and services; the degree of cost-sharing; and the extent to which the budget is reasonable, clearly justified, accurate, and consistent with the purposes of this announcement.
This includes the extent to which the application adequately addresses the requirements of title 45 CFR part 46 for the protection of human subjects. If the proposed project involves research on human participants, assurance and evidence must be provided that the project will be subject to initial and continuous reviews by an appropriate institutional review board. Does the applicant adequately address the requirements of 45 CFR part 46 for the protection of human subjects?
This includes: The proposed plan for the inclusion of racial ethnic minority populations and both sexes for appropriate representation; the proposed justification when representation is limited or absent; a statement as to whether the design of the study is adequate to measure differences when warranted; and a statement as to whether the plans for recruitment and outreach for study participants include the process of establishing partnerships with communities and recognition of mutual benefits.
Provide CDC with original plus two copies of:
1. Progress Report for a PHS Research Grant (form PHS-2590 found on the CDC Web site), no less than 90 days before the end of the budget period (date to be determined at time of award).
A. The progress report should represent the accomplishments of the project during the reporting period. You do not need to limit the progress report to two pages as specified in the standard PHS-2590 form instructions (page 2, item A).
B. The report should describe the work which has been accomplished to date, please describe accomplishments in terms of the specific aims/timetable.
C. List each specific aim separately and elaborate on the progress that has been made and where you are in terms of the time schedule.
D. Include a detailed budget with justification.
E. Include a copy of your most current IRB approval.
2. Financial status report, no more than 90 days after the end of the budget period.
3. Final financial and performance reports, no more than 90 days after the end of the project period.
Send all reports to the Grants Management Specialist identified in the “Where to Obtain Additional Information” section of this announcement.
The following additional requirements are applicable to this program. For a complete description of each, see the Attachment in the application kit.
Executive Order 12372 does not apply to this program.
For this and other announcements, the necessary applications and associated forms can be found on the CDC home page Internet address:
For general questions about this announcement, contact: Technical Information Management, CDC Procurement and Grants Office, 2920 Brandywine Road, Room 3000, Atlanta, Georgia 30341-4146. Telephone: (770) 488-2700.
For business management and budget assistance in the states, contact: Sheryl Heard, Grants Management Specialist, Procurement and Grants Office Centers for Disease Control and Prevention (CDC), 2920 Brandywine Road, Atlanta, Georgia 30341-4146. Telephone: (770)
For business management and budget assistance in the territories, contact: Charlotte Flitcraft, CDC Procurement and Grants Office, 2920 Brandywine Road, Atlanta, GA 30341-4146. Telephone: 770-488-2632. E-mail address:
For program technical assistance, contact: Joseph B. Smith, Senior Project Officer, National Center on Birth Defects and Developmental Disabilities, Disability and Health Team, Centers for Disease Control and Prevention (CDC), 1600 Clifton Road (Mailstop F-35). Atlanta, Georgia 30333. Telephone: (404) 498-3021. E-mail address:
This program is authorized under sections 301, 311 and 317(C) of the Public Health Service Act (42 U.S.C. 241, 243, and 247b-4), as amended. The Catalog of Federal Domestic Assistance number is 93.283.
The Centers for Disease Control and Prevention (CDC) announces the availability of fiscal year (FY) 2003 funds for a cooperative agreement program for developing, implementing, and improving state's birth defects surveillance data and utilizing the surveillance data by other public health programs. This program addresses the “Healthy People 2010” focus area of Maternal, Infant, and Child Health.
The purpose of the program is to support: (1) The development, implementation, expansion, and evaluation of state's population-based birth defects surveillance systems; (2) the development and implementation of population-based programs to prevent birth defects; (3) the development and implementation or expansion of activities to improve the access of children with birth defects to health services and early intervention programs; and (4) the evaluation of the effectiveness of the referral activities and the impact on the affected children and families.
Measurable outcomes of the program will be in alignment with one or more of the following performance goals for the National Center on Birth Defects and Developmental Disabilities:
• Improve the data on the prevalence of birth defects and developmental disabilities.
• Find causes and risk factors for birth defects and developmental disabilities in order to develop prevention strategies.
Assistance will be provided only to the health departments of States or their
Recipients funded under CDC Program Announcement 02011 (Cooperative Agreements for the Development and Improvement of Population-Based Birth Defect Surveillance Programs and the Integration of Surveillance Data with Public Health Programs) and Program Announcement 02081 (Centers for Birth Defects Research and Prevention) are not eligible.
The eligible States are: Arizona, Connecticut, Delaware, Florida, Georgia, Idaho, Illinois, Kansas, Louisiana, Maryland, Mississippi, Nebraska, Nevada, New Jersey, New York, North Dakota, Ohio, Oregon, Pennsylvania, Rhode Island, South Dakota, Tennessee, Vermont, Washington, Wisconsin, and Wyoming.
Applicants may apply under one of two categories:
Title 2 of the United States Code, section 1611 states that an organization described in section 501(c)(4) of the Internal Revenue Code that engages in lobbying activities is not eligible to receive Federal funds constituting an award, grant, or loan.
Approximately $1,900,000 is available in FY 2003 to fund approximately 2-4 awards in Category 1, and 6-10 awards in Category 2. It is expected that the awards will range from $50,000 to $250,000. The average award will be $100,000 for Category 1 States and $200,000 for Category 2 States. The awards will begin on or about September 1, 2003, and will be made for a 12-month budget period within a project period of up to five years. Funding estimates may change.
Continuation awards within an approved project period will be made on the basis of satisfactory progress as evidenced by required reports and the availability of funds.
Award recipients agree to use cooperative agreement funds for travel by project staff selected by CDC to participate in CDC-sponsored workshops, or other called meetings such as regional or annual meetings.
In conducting activities to achieve the purpose of this program, the recipient will be responsible for the activities under 1. Recipient activities for States with no birth defects surveillance systems; or 2. Recipient activities for States with ongoing surveillance systems; and CDC will be responsible for the activities under 3. CDC activities.
1. Recipient Activities for States with no birth defects surveillance systems:
a. Develop and begin implementation of a population-based surveillance system to ascertain cases and generate timely population-based data of major birth defects occurring in the State.
b. Analyze and disseminate the surveillance data generated by the
c. Develop and implement a plan to evaluate the surveillance methodology used.
d. Involve the appropriate partners within the State, including the State's organization receiving title V Federal funds, to develop a plan and begin implementation of a birth defects prevention program (
e. Develop a plan to evaluate your prevention activities.
f. Involve the appropriate partners within the State to develop a plan and begin implementation of activities to improve the access of children with birth defects to comprehensive, community-based, family-centered care (
g. Develop a plan to evaluate the identification of and/or timeliness of referral to services among eligible children or families.
2. Recipient Activities for States with ongoing surveillance systems:
a. Broaden methodologies and approaches which will improve and expand the capacity of the existing population-based surveillance system to ascertain cases and generate timely population-based data of major birth defects occurring in the State.
b. Analyze and disseminate the surveillance data generated by the system in a timely fashion including rates and trends of major birth defects (
c. Evaluate the surveillance methodology used.
d. Involve the appropriate additional partners within the State, including the State's organization receiving title V Federal funds, to expand birth defects prevention programs (
e. Evaluate the prevention progress.
f. Involve the appropriate partners within the State to expand activities to improve the access of children with birth defects to comprehensive, community-based, family-centered care (
g. Evaluate the progress on improving access to services (
h. Evaluate the effectiveness of the referral activities and the benefit/impact on the affected children and families.
3. CDC Activities:
a. Provide technical assistance such as presenting the need, benefits, and description of a birth defects surveillance, prevention, and intervention program, reviewing draft legislation, etc. to state agencies and interested parties.
b. Assist in designing, developing, and evaluating methodologies and approaches used for population-based birth defects surveillance. Discuss the advantages and disadvantages of different case ascertainment methods.
c. Assist in analyzing surveillance data related to birth defects.
d. Assist in designing, developing, and evaluating plans for prevention programs.
e. Assist in designing, developing, and evaluating plans to improve the access of children with birth defects to health services and intervention programs.
f. Provide a reference point for sharing regional and national data and information pertinent to the surveillance and prevention of birth defects.
The applicant should provide a detailed description of first-year activities and briefly describe future-year objectives and activities. The application must contain the following:
1.
2. A one-page, single-spaced, typed abstract in 12-point font must be submitted with the application. The heading should include the title of the grant program, project title, organization, name and address, project director and telephone number. The abstract should clearly state which option the applicant is applying for: Category 1 or Category 2. The abstract should briefly summarize the program for which funds are requested, the activities to be undertaken, and the applicant's organization structure. The abstract should precede the program narrative. A table of contents that provides page numbers for each of the following sections should be included. All pages must be numbered.
3.
a. Use of Surveillance Data for Prevention Activities.
b. Use of Surveillance Data for Improving Access to Health Services and Early Intervention Programs.
c. Impact on Population-Based Birth Defects Surveillance.
d. Organizational and Program Personnel Capability.
e. Understanding of the Public Health Impact of Birth Defects.
f. Human Subjects Review.
4.
Applications may not be submitted electronically.
Applications which do not meet the above criteria will not be eligible for competition and will be discarded. Applicants will be notified of their failure to meet the submission requirements.
Applicants are required to provide measures of effectiveness that will demonstrate the accomplishment of the various identified objectives of the cooperative agreement. Measures of effectiveness must relate to the performance goals as stated in section “B. Purpose” of this announcement. Measures must be objective and quantitative and must measure the intended outcome. These measures of effectiveness must be submitted with the application and will be an element of evaluation.
An independent review group appointed by CDC will evaluate each application against the applicant's response to either item 1. or 2. in the “Program Requirements” section.
1. Use of the surveillance data for prevention activities (30 points):
The extent to which the applicant describes the plans for using surveillance data to develop and implement or expand existing programs to prevent birth defects. The current and proposed activities evaluated in this element are specific for Category 1 and Category 2.
a. Evaluation criteria for Category 1 (States with no birth defects surveillance systems):
(1) Ability to work with appropriate partners in the State (
(2) Plan for using the surveillance data to develop prevention programs.
(3) Plan for sharing surveillance data (
(4) Letter from the State's organization receiving title V Federal funds that describe the data linkages and other collaborative activities with the applicant.
b. Evaluation criteria for Category 2 (States with ongoing birth defects surveillance systems):
(1) Ability to work with appropriate partners in the State (
(2) Use of surveillance data to expand prevention programs.
(3) Sharing the surveillance data (
(4) Evaluation of progress made in the prevention of birth defects.
(5) Letter from the State's organization receiving title V Federal funds that describe the data linkages and other collaborative activities with the applicant.
2. Use of surveillance data for improving access to health services and early intervention programs (30 points):
The extent to which the applicant describes the plans to develop and implement or expand existing activities to improve the access of children with birth defects to health services and early interventions. The current and proposed activities evaluated in this element are specific for Category 1 and Category 2.
a. Evaluation criteria for Category 1 (States with no birth defects surveillance systems):
(1) Identification of appropriate programs within the State for referral to health services (
(2) Plan for linking programs or developing other approaches to increase identification of children or families eligible for health services.
(3) Plan to evaluate the implementation process.
b. Evaluation criteria for Category 2 (States with ongoing birth defects surveillance systems):
(1) Ability to integrate programs within the State (
(2) Improve and expand approaches to increase identification of children or families eligible for health services.
(3) Plan for evaluating the effectiveness of the referral services and the outcomes of children and families who receive services.
3. Impact on population-based birth defects surveillance (20 points):
The extent to which the applicant describes the anticipated level of impact this cooperative agreement will have on birth defects surveillance activities in the State. The current and proposed activities evaluated in this element are specific for Category 1 and Category 2.
a. Evaluation criteria for Category 1 (States with no birth defects surveillance systems):
(1) Plans for developing population-based birth defects surveillance.
(2) Methods of case ascertainment.
(3) Timeliness of case ascertainment.
(4) Level of coverage of the population.
(5) Specific birth defects ascertained.
(6) Plans for analyzing and reporting surveillance data to appropriate State, local, and Federal health officials.
(7) Plans for evaluating the surveillance methodology and the quality of the surveillance data.
(8) The degree to which the applicant has met the CDC Policy requirements regarding the inclusion of women, ethnic, and racial groups in the proposed research. This includes:
(a) The proposed plan for the inclusion of both sexes and racial and
(b) The proposed justification when representation is limited or absent.
(c) A statement as to whether the design of the study is adequate to measure differences when warranted.
(d) A statement as to whether the plans for recruitment and outreach for study participants include the process of establishing partnerships with community(ies) and recognition of mutual benefits.
b. Evaluation criteria for Category 2 (States with ongoing birth defects surveillance systems):
(1) Ability to improve/expand population-based birth defects surveillance.
(2) Methods of case ascertainment.
(3) Timeliness of case ascertainment.
(4) Level of coverage of the population.
(5) Specific birth defects ascertained.
(6) Analyzing and reporting surveillance data to appropriate State, local, and Federal health officials.
(7) Evaluating the surveillance methodology and quality of the surveillance data.
(8) The degree to which the applicant has met the CDC Policy requirements regarding the inclusion of women, ethnic, and racial groups in the proposed research. This includes:
(a) The proposed plan for the inclusion of both sexes and racial and ethnic minority populations for appropriate representation.
(b) The proposed justification when representation is limited or absent.
(c) A statement as to whether the design of the study is adequate to measure differences when warranted.
(d) A statement as to whether the plans for recruitment and outreach for study participants include the process of establishing partnerships with community(ies) and recognition of mutual benefits.
4. Organizational and program personnel capability (15 points):
a. The extent to which the applicant has the experience, skills, and ability to develop and improve birth defects surveillance and use surveillance data to develop prevention programs and improve access to health services or early intervention programs.
b. The adequacy of the present staff and/or the capability to assemble competent staff to either implement or improve upon a birth defects surveillance system and develop programs for prevention or improving access to health services and early intervention programs. If it is necessary to hire staff to conduct program activities, provide plans for identifying and hiring qualified applicants on a timely basis. Also, provide plans for how work on program activities will be conducted prior to hiring necessary staff.
c. To the extent possible, the applicant shall identify all current and potential personnel who will work on this cooperative agreement including qualifications and specific experience as it relates to the requirements set forth in this announcement.
5. Applicant's understanding of the public health impact of birth defects (5 points):
The extent to which the applicant has a clear, concise understanding of the requirements, objectives, and purpose of the cooperative agreement. The extent to which the application reflects an understanding of the public health impact of birth defects in their State and the purpose and complexities of birth defects surveillance as it relates to their State.
6. Human Subjects Review (not scored):
Does the application adequately address the requirements of title 45 CFR part 46 for the protection of human subjects? (Not scored; however, an application can be disapproved if the research risks are sufficiently serious and protection against risks are so inadequate as to make the entire application unacceptable.)
7. Budget justification and adequacy of facilities (not scored):
The budget will be evaluated for the extent to which it is reasonable, clearly justified, and consistent with the intended use of the cooperative agreement funds. The applicant shall describe and indicate the availability of facilities and equipment necessary to carry out this project.
Provide CDC with original plus two copies of:
1. Interim progress report, no less than 90 days before the end of the budget period. The interim progress report will serve as your non-competing continuation application and must include the following elements:
a. Current Budget Period Activities Objectives.
b. Current Budget Period Financial Progress.
c. New Budget Period Proposed Activity Objectives.
d. Detailed Line-Item Budget and Justification.
e. Additional Requested Information.
2. Financial status report, no more than 90 days after the end of the budget period.
3. Final financial and performance reports, no more than 90 days after the end of the project period.
Send all reports to the Grants Management Specialist identified in the “Where to Obtain Additional Information” section of this announcement.
The following additional requirements are applicable to this program. For a complete description of each,
This and other CDC announcements, the necessary applications, and associated forms can be found on the CDC website, Internet address
For general questions about this announcement, contact: Technical Information Management, CDC Procurement and Grants Office, 2920 Brandywine Rd., Room 3000, Atlanta, GA 30341-4146. Telephone: 770-488-2700.
For business management and budget assistance, contact: Sheryl L. Heard, Grants Management Specialist, Procurement and Grants Office, Centers for Disease Control and Prevention, Announcement 03019, 2920 Brandywine Road, Atlanta, GA 30341-4146. Telephone: (770) 488-2723. E-mail address:
For business management and budget assistance in the territories, contact: Charlotte Flitcraft, Grants Management Officer, CDC Procurement and Grants Office, 2920 Brandywine Road, Atlanta, GA 30341-4146. Telephone: (770) 488-2632. E-mail address:
For program technical assistance, contact: Larry D. Edmonds, Project Officer, National Center on Birth Defects and Developmental Disabilities, Centers for Disease Control and Prevention, 4770 Buford Highway, NE., Atlanta, GA 30341-3724. Telephone: (770) 488-7171. E-mail address:
Office of Inspector General (OIG), HHS.
Notice; correction.
This document sets forth a correction to the OIG
March 10, 2003.
Joel Schaer, Office of Counsel to the Inspector General, (202) 619-0089.
In our publication of the OIG Special Fraud Alert on Telemarketing by Durable Medical Equipment Suppliers, an inadvertent error appeared on the heading for section II on page 10255 regarding the final issuance date of the Special Fraud Alert. The heading incorrectly indicated the issuance date as January 2003. The correct issuance date of this Special Fraud Alert should read as March 2003.
Substance Abuse and Mental Health Services Administration, HHS.
Notice of funding availability for Grants to Adopt/Expand Effective Adolescent Alcohol and Drug Abuse Treatment (Short Title: Effective Adolescent Treatment).
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 quantity of applications received. FY 2003 funds for the activity discussed in this announcement were appropriated by the Congress under Public Law No. 108-7 This program is authorized under Section 514 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.
Since SAMHSA/CSAT believes that only existing, experienced, and appropriately credentialed providers with demonstrated infrastructure and expertise will be able to provide required services quickly and effectively, all treatment providers participating in the proposed project must meet three criteria.
• All direct providers of substance abuse treatment services involved in the proposed project must have been providing treatment services for adolescents for a minimum of two years prior to the date of this application.
• If the applicant organization is not a direct provider of substance abuse treatment services, the applicant must document a commitment from one or more experienced, licensed, adolescent treatment providers to participate in the proposed project. A listing of all substance abuse treatment providers included in the proposed project must also be included.
• All direct providers of substance abuse services involved in the proposed project must be in compliance all applicable local, city, county and State requirements for licensing, accreditation, and certification, and must supply documentation of this. If licensure, accreditation, and/or certification are not required by the local, city, county, and State, this must also be documented.
Applications will be screened by SAMHSA prior to review. Applications that do not meet the following eligibility requirements will not be reviewed:
• Non-profit status.
• Licensure/Accreditation/Certification requirements.
• Two years of experience in providing treatment services for adolescents.
For questions on 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.
Office of the Assistant Secretary for Policy Development and Research, HUD.
Notice.
The proposed information collection requirement described below will be submitted to the Office of Management and Budget (OMB) for review, as required by the Paperwork Reduction Act. The Department is soliciting public comments on the subject proposal.
Interested persons are invited to submit comments regarding
Robert A. Knight, Department of Housing and Urban Development, 451 7th Street, SW., Washington, DC 20410; telephone (202) 708-1060, Ext. 5893 (this is not a toll-free number), (or via the Internet at
The Department will submit the proposed information collection to OMB for review, as required by the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35, as amended).
This Notice is soliciting comments from members of the public and affected agencies concerning the proposed collection of information to: (1) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (2) Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information; (3) Enhance the quality, utility, and clarity of the information to be collected; and (4) Minimize the burden of the collection of information on those who are to respond; including through the use of appropriate automated collection techniques or other forms of information technology,
This Notice also lists the following information:
Number of respondents: 3,000.
Estimate Responses per Respondent: 2.
Time per respondent: 30 minutes.
Total hours to respond: 3,000.
Title 42 U.S.C. 5424 note, Title 13 U.S.C. Section 8(b), and Title 12, U.S.C., Section 1701z-1.
Fish and Wildlife Service, Interior.
Notice.
This notice advises the public that the landowners and cooperators (Applicants) identified in the
We (the Service) announce the opening of a 30-day comment period and request comments from the public on the Applicants' enhancement of survival permit applications, the accompanying proposed Agreement, and the Environmental Assessment. The Environmental Assessment identifies and describes five alternatives. All comments we receive, including names and addresses, will become part of the administrative record and may be released to the public. For further information and instructions on reviewing and commenting on this application, see the
Written comments should be received on or before April 9, 2003.
You may obtain a copy of the information available by contacting the Service's Regional Safe Harbor Coordinator, U.S. Fish and Wildlife Service, 1875 Century Boulevard, Suite 200, Atlanta, Georgia 30345, or Field Supervisor, U.S. Fish and Wildlife Service, 1208-B Main St., Daphne, Alabama 36526. Alternatively, you may set up an appointment to view these documents at either location during normal business hours. Written data or comments should be submitted to the Atlanta, Georgia, Regional Office. Requests for the documentation must be in writing to be processed, and comments must be written to be considered.
Mr. Rick Gooch, (telephone: 404/679-7124; facsimile: 404/679-7081), or Mr. Darren LeBlanc, (telephone: 251/441-5859; facsimile: 251/441-6222).
The Applicants for the Chewacla Creek Safe Harbor Agreement including the following landowners and cooperators:
Under a Safe Harbor Agreement, participating property owners voluntarily undertake management activities on their property to enhance, restore, or maintain habitat benefitting species listed under the Endangered
We have worked with the Applicants to design and implement conservation measures intended to benefit the above-listed mussels in Chewacla Creek. Under the Agreement, the Applicants will undertake the following actions: (1) Repair of existing and new subsidence features within ten feet of Chewacla Creek within the enrolled property boundaries; (2) Restore a more natural flow to Chewacla Creek downstream of Lake Ogletree by pumping quarry water into Lake Ogletree with a minimum guaranteed flow release from the dam into Chewacla Creek; (3) Monitor stream flow, water quality, and bioassessment parameters.
The subsidence features in and immediately adjacent to the Chewacla Creek act to funnel water into the ground causing a portion of the creek to become intermittent (dewatered) during most of the year. The lack of constant stream flow in the dewatered section of Chewacla Creek, downstream of the Pretty Hole to Martin Marietta's outfall 2, has made that section of the creek habitat unavailable to the ovate clubshell, southern clubshell and fine-lined pocketbook. It has also physically and genetically isolated the population of fine-lined pocketbook mussel which occurs upstream of the dewatered section. The proposed conservation measures, repair of subsidence features located within and immediately adjacent to the creek and restoration of a consistent stream flow, would increase the quantity and quality of available habitat for the covered species. Without the proposed Agreement, it would not be possible for the Applicants to undertake the proposed conservation measures and receive regulatory assurances from the Endangered Species Act.
Consistent with the Safe Harbor Policy and implementing regulations, we propose to issue permits to the Applicants authorizing them to incidentally take these endangered and threatened species, which occur on the enrolled lands, as a result of lawful activities on enrolled lands, as long as baseline conditions are maintained and terms of the Agreement are implemented. Future activities of the Applicants could result in a return to the baseline condition of Chewacla Creek. However, the Applicants have stated that this is not anticipated, and, further, that the Applicants are not undertaking this Agreement for the purpose of obtaining such regulatory assurances.
We provide this notice pursuant to section 10(c) of the Endangered Species Act and pursuant to implementing regulations for the National Environmental Policy Act (40 CFR 1506.6). We will evaluate the proposed Agreement, associated documents, and comments submitted thereon to determine whether the requirements of section 10(a) of the Endangered Species Act and National Environmental Policy Act regulations have been met. If we determine that the requirements are met, we will issue an enhancement of survival permit under section 10(a)(1)(A) of the Endangered Species Act to the Applicants in accordance with the terms of the Agreement and specific terms and conditions of the authorizing permit. We will not make our final decision until after the end of the 30-day comment period and will fully consider all comments received during the comment period.
Bureau of Land Management, Interior.
Notice of intent to prepare an Environmental Impact Statement for the proposed Amendments of the Bureau of Land Management's grazing administration regulations and announcement of public meetings; correction.
The Bureau of Land Management (BLM) in this document corrects one internet address and removes reference to another internet address to which the public cannot get access that appear in the notice of intent to prepare an environmental impact statement for proposed amendments to BLM's Grazing Administration Regulations, published in the
Ted Hudson, 202-452-5042.
In notice FR Doc. 03-4934, beginning on page 10030 in the issue of March 3, 2003, make the following corrections:
1. In the Addresses section, on page 10031 in the 1st column, correct the internet address immediately following the subheading “Direct Internet response” to read:
2. In the Supplementary Information section, on page 10032, in the 1st column, correct the final paragraph of the notice by revising it to read:
“Additional information about BLM's Rangeland, Soils, Water, and Air Program is available at any State Office or field office of the Bureau of Land Management.”
Northern Field Office, Bureau of Land Management, Fairbanks, Alaska.
Notice of public meeting cancellation.
A joint public meeting of the National Petroleum Reserve-Alaska (NPR-A) Research and Monitoring Advisory Team and the NPR-A Subsistence Advisory Panel to be held in Barrow, Alaska, on March 18-19, 2003, has been cancelled.
The public meeting was to be held at the Iñupiat Heritage Center in Barrow, Alaska, on March 18-19, 2003.
Additional information concerning the NPR-A Research and Monitoring Advisory Team may be obtained from Herb Brownell, Arctic Team Manager, BLM Northern Field Office, 1150 University Avenue, Fairbanks, Alaska 99709-3844. Mr. Brownell may be reached at (907) 474-2333 or at 1-800-437-7021, x2333, or at
Bureau of Land Management, Interior.
Correction: In the correction notice issued in Volume 68 Number 39 beginning on page 9096 in the issue dated February 27, 2003, make the following correction: On page 9096, the heading, Notice of Realty Action; “Recreation and Public Purposes (R&PP) Act Classification;” should read as set forth above.
Notice is hereby given that, on February 6, 2003, pursuant to Section 6(a) of the National Cooperative Research and Production Act of 1993, 15 U.S.C. 4301
No other changes have been made in either the membership or planned activity of the group research project. Membership in this group research project remains open, and OCP-IP intends to file additional written notification disclosing all changes in membership.
On May 10, 2002, OCP-IP filed its original notification pursuant to Section 6(a) of the Act. The Department of Justice published a notice in the
The last notification was filed with the Department on July 8, 2002. A notice was published in the
Office of Justice Programs, Office of Juvenile Justice and Delinquency Prevention, Justice.
Notice of meeting.
The Office of Juvenile Justice and Delinquency Prevention is announcing the meeting of the Coalition for Juvenile Justice. The purpose of this meeting is to discuss and adopt recommendations from members regarding the committee's responsibility to advise the OJJDP Administrator, the President, and the Congress about state perspectives on the operation of the OJJDP and federal legislation pertaining to juvenile justice and delinquency prevention.
This meeting will be open to the public.
The meeting dates are:
1. Wednesday, April 2, 2003, from 8:30 a.m. until 5:30 p.m. (e.t.),
2. Thursday, April 3, 2003, from 8 a.m. until 5:30 p.m. (e.t.),
3. Friday, April 4, 2003, from 8 a.m. until 5 p.m. (e.t.),
4. Saturday, April 5, 2003, from 8 a.m. until 5 p.m. (e.t.),
5. Sunday, April 6, 2003, from 8 a.m. until 12 p.m. (e.t.).
All meetings will be held at the Wyndham Washington, 1400 M Street, NW., Washington, DC, 20005; telephone: 202-429-1700; fax: 202-728-0530.
For information about how to attend this meeting (or to submit written questions (optional), contact Freida Thomas, 810 7th Street, NW., Washington, DC 20531; Telephone: 202-307-5924 (This is not a toll-free number); Fax: 202-307-2819; E-mail:
The Coalition of Juvenile Justice, established pursuant to section 9 of the Federal Advisory Committee Act, 5 (U.S.C. App. II), is meeting to carry out its advisory functions under section 5601 of the Juvenile Justice and Delinquency Prevention Act of 1974, 42 U.S.C., as amended.
In accordance with Section 223 of the Trade Act of 1974, as amended, the Department of Labor herein presents summaries of determinations regarding eligibility to apply for trade adjustment
In order for an affirmative determination to be made and a certification of eligibility to apply for worker adjustment assistance to be issued, each of the group eligibility requirements of Section 222 of the Act must be met.
(1) That a significant number or proportion of the workers in the workers' firm, or an appropriate subdivision thereof, have become totally or partially separated, or are threatened to become totally or partially separated; and
(2) That sales or production, or both, of the firm or sub-division have decreased absolutely, and
(3) That increases of imports of articles like or directly competitive with articles produced by the firm or appropriate subdivision have contributed importantly to the separations, or threat thereof, and to the absolute decline in sales or production of such firm or subdivision.
In each of the following cases the investigation revealed that criterion (3) has not been met. A survey of customers indicated that increased imports did not contribute importantly to worker separations at the firm.
In the following case, the investigation revealed that the criteria for eligibility have not been met for the reasons specified.
The investigation revealed that criterion (a)(2)(A)(I.C.) (Increased imports) and (a)(2)(B)(II.B) (No shift in production of a foreign country) have not been met.
The workers firm does not produce an article as required for certification under Section 222 of the Trade Act of 1974.
The following certifications have been issued; the date following the company name and location of each determination references the impact date for all workers of such determination.
The following certifications have been issued. The requirements of (a)(2)(A) (increased imports) of Section 222 have been met.
The following certifications have been issued. The requirements of (a)(2)(B) (shift in production) of Section 222 have been met.
Also, pursuant to Title V of the North American Free Trade Agreement Implementation Act (Pub. L. 103-182) concerning transitional adjustment assistance hereinafter called (NAFTA-TAA) and in accordance with Section 250(a), Subchaper D, Chapter 2, Title II, of the Trade Act as amended, the Department of Labor presents summaries of determinations regarding eligibility to apply for NAFTA-TAA issued during the month of February 2003.
In order for an affirmative determination to be made and a certification of eligibility to apply for NAFTA-TAA the following group eligibility requirements of Section 250 of the Trade Act must be met:
(1) That a significant number or proportion of the workers in the workers' firm, or an appropriate subdivision thereof, (including workers in any agricultural firm or appropriate subdivision thereof) have become totally or partially separated from employment and either—
(2) That sales or production, or both, of such firm or subdivision have decreased absolutely,
(3) That imports from Mexico or Canada of articles like or directly competitive with articles produced by such firm or subdivision have increased, and that the increases imports contributed importantly to such workers' separations or threat of separation and to the decline in sales or production of such firm or subdivision; or
(4) That there has been a shift in production by such workers' firm or subdivision to Mexico or Canada of articles like or directly competitive with articles which are produced by the firm or subdivision.
In each of the following cases the investigation revealed that criteria (3) and (4) were not met. Imports from Canada or Mexico did not contribute importantly to workers' separations. There was no shift in production from
None.
I hereby certify that the aforementioned determinations were issued during the months of February 2003.
Copies of these determinations are available for inspection in Room C-5311, U.S. Department of Labor, 200 Constitution Avenue, NW., Washington, DC 20210 during normal business hours or will be mailed to persons who write to the above address.
In accordance with section 223 of the Trade Act of 1974, as amended, the Department of Labor herein presents summaries of determinations regarding eligibility to apply for trade adjustment assistance for workers (TA-W) issued during the period of February, 2003.
In order for an affirmative determination to be made and a certification of eligibility to apply for worker adjustment assistance to be issued, each of the group eligibility requirements of Section 222 of the Act must be met.
(1) That a significant number or proportion of the workers in the workers' firm, or an appropriate subdivision thereof, have become totally or partially separated, or are threatened to become totally or partially separated; and
(2) That sales or production, or both, of the firm or sub-division have decreased absolutely, and
(3) That increases of imports of articles like or directly competitive with articles produced by the firm or appropriate subdivision have contributed importantly to the separations, or threat thereof, and to the absolute decline in sales or production of such firm or subdivision.
In each of the following cases the investigation revealed that criterion (3) has not been met. A survey of customers indicated that increased imports did not contribute importantly to worker separations at the firm.
In the following case, the investigation revealed that the criteria for eligibility have not been met for the reasons specified.
The investigation revealed that criterion (a)(2)(A)(I.C.) (increased imports) has not been met.
The investigation revealed that criterion (a)(2)(A) (I.C) (increased imports) and (a)(2)(B) (II.C1) (has shifted production to a country not under the free trade agreement with the U.S.) have not been met.
The investigation revealed that criterion (a)(2)(A) (I.B) (sales or production, or both did not decline) and (a)(2)(A) (II.B) (no shift in production to a foreign country) have not been met.
The investigation revealed that criterion (a)(2)(A) (I.A.) (no employment declines) has not been met.
The investigation revealed that criterion (a)(2)(A) (I.C.) (Increased imports) and (a)(2)(B) (II.B) (No shift in production of a foreign country) have not been met.
The workers firm does not produce an article as required for certification under Section 222 of the Trade Act of 1974.
The investigation revealed that criteria (2) has not been met. The workers' firm (or subdivision) is not an upstream supplier or components for trade-affected companies.
The following certifications have been issued; the date following the company name and location of each determination references the impact date for all workers of such determination.
The following certifications have been issued. The requirements of (a)(2)(A) (increased imports) of Section 222 have been met.
The following certifications have been issued. The requirements of (a)(2)(B) (shift in production) of Section 222 have been met.
The following certification has been issued. The requirement of upstream supplier to trade certified primary firm has been met.
Also, pursuant to Title V of the North American Free Trade Agreement Implementation Act (Pub. L. 103-182) concerning transitional adjustment assistance hereinafter called (NAFTA-TAA) and in accordance with section 250(a), subchaper D, chapter 2, title II, of the Trade Act as amended, the Department of Labor presents summaries of determinations regarding eligibility to apply for NAFTA-TAA issued during the month of February 2003.
In order for an affirmative determination to be made and a certification of eligibility to apply for NAFTA-TAA the following group eligibility requirements of section 250 of the Trade Act must be met:
(1) That a significant number or proportion of the workers in the workers' firm, or an appropriate subdivision thereof, (including workers in any agricultural firm or appropriate subdivision thereof) have become totally or partially separated from employment and either—
(2) That sales or production, or both, of such firm or subdivision have decreased absolutely,
(3) That imports from Mexico or Canada of articles like or directly competitive with articles produced by such firm or subdivision have increased, and that the increased imports contributed importantly to such workers' separations or threat of separation and to the decline in sales or production of such firm or subdivision; or
(4) That there has been a shift in production by such workers' firm or subdivision to Mexico or Canada of articles like or directly competitive with articles which are produced by the firm or subdivision.
In each of the following cases the investigation revealed that criteria (3) and (4) were not met. Imports from Canada or Mexico did not contribute importantly to workers' separations. There was no shift in production from the subject firm to Canada or Mexico during the relevant period.
I hereby certify that the aforementioned determinations were issued during the months of February 2003. Copies of these determinations are available for inspection in Room C-5311, U.S. Department of Labor, 200 Constitution Avenue, NW., Washington, DC 20210 during normal business hours or will be mailed to persons who write to the above address.
Pursuant to section 221 of the Trade Act of 1974, as amended, an investigation was initiated on January 28, 2003 in response to a worker petition filed by a company official on behalf of workers at 20th Century Machine, Armada, Michigan.
The petitioner has requested that the petition be withdrawn. Consequently, the investigation has been terminated.
Pursuant to section 221 of the Trade Act of 1974, as amended, an investigation was initiated on January 15, 2003, in response to a worker petition filed by the State of Maryland on behalf of workers at Barrett Business Services, Inc., Easton, Maryland.
The petitioning group of workers is covered by an active certification originally issued on October 10, 2002, and amended on February 5, 2003 (TA-41,976), which remains in effect.
Consequently, further investigation in this case would serve no purpose, and the investigation has been terminated.
Pursuant to section 221 of the Trade Act of 1974, as amended, an investigation was initiated on January 6, 2003 in response to a worker petition filed by a local One-Stop Operator, U.S. Workforce Investment Board, on behalf of workers at Black & Decker, Power Tools Division, Easton, Maryland.
The petitioning group of workers is covered by an active certification issued on October 10, 2002, and amended on February 13, 2003, which remains in effect (TA-W-41,976). Consequently, further investigation in this case would serve no purpose, and the investigation has been terminated.
Pursuant to section 221 of the Trade Act of 1974, an investigation was initiated on December 9, 2002 in response to a petition filed on December 9, 2002 on behalf of workers at Cusolar Industries, Inc., Chesterfield, Michigan.
The Department has been unable to locate company officials of the subject firm or to obtain the information necessary to reach a determination on worker eligibility. Consequently, further investigation in this case would serve no purpose, and the investigation has been terminated.
Pursuant to section 221 of the Trade Act of 1974, an investigation was initiated on October 28, 2002 in response to a petition filed on behalf of workers at Eaton Corporation, Rochester Hills, Michigan.
The petitioners have requested that the petition be withdrawn. Consequently, further investigation in this case would serve no purpose, and the investigation has been terminated.
Pursuant to section 221 of the Trade Act of 1974, as amended, an investigation was initiated on February 11, 2003 in response to a worker petition filed by a company official on behalf of workers at Freedom Plastics, LLC, Sheffield, Illinois (TA-W-50,858) and Freedom Plastics, LLC, Joliet, Illinois (TA-W-50,858A).
The petitioning group of workers is covered by an earlier petition filed on February 10, 2003 (TA-W-50,871) that is the subject of an ongoing investigation for which a determination has not yet been issued. Further investigation in this case would duplicate efforts and serve no purpose; therefore the investigation under this petition has been terminated.
Pursuant to section 221 of the Trade Act of 1974, as amended, an investigation was initiated on December 4, 2002 in response to a worker petition filed by a company official and Bakery, Confectionery, Tobacco Workers & Grain Millers Union on behalf of workers at General Mills, Bakeries and Food Services, Hillsdale, Michigan.
The petitioners have requested that the petition be withdrawn. Consequently, the investigation has been terminated.
Pursuant to section 221 of the Trade Act of 1974, as amended, an investigation was initiated on January 6, 2003 in response to a worker petition filed by a company official on behalf of workers at Southern Georgia Cap Company, doing business as Georgia Headwear and Apparel, Waycross, Georgia.
The petitioner has requested that the petition be withdrawn. Consequently, further investigation would serve no useful purpose and the investigation has been terminated.
Pursuant to section 221 of the Trade Act of 1974, as amended, an investigation was initiated on January 7, 2003 in response to a petition filed by a company official on behalf of workers at Hamilton Sundstrand-Denver, Mechanical Operations Division, Denver, Colorado.
The petitioner has requested that the petition be withdrawn. Consequently, further investigation would serve no purpose and the investigation has been terminated.
Pursuant to section 221 of the Trade Act of 1974, as amended, an investigation was initiated on January 2, 2003 in response to a worker petition filed by a company official on behalf of workers at The Holmes Group, Rival Division, Flowood Plant, Jackson, Mississippi.
The petitioning group of workers is included in a petition investigation, TA-W-50,280, for which a determination has not yet been issued.
Consequently, further investigation would serve no purpose, and the investigation has been terminated.
Pursuant to section 221 of the Trade Act of 1974, an investigation was initiated on January 6, 2003, in response to a petition filed on behalf of workers at K&S Kulicke & Soffa, Austin, Texas.
This investigation revealed that the petitioner submitting the petition is not a duly authorized representative. The petition has therefore been deemed invalid. Consequently, the investigation has been terminated.
Pursuant to section 221 of the Trade Act of 1974, an investigation was initiated on January 28, 2003 in response to a worker petition filed by a company official on behalf of workers at Lustar Dyeing and Finishing, Ashville, North Carolina.
The petitioner has requested that the petition be withdrawn. Consequently, the investigation has been terminated.
Pursuant to section 221 of the Trade Act of 1974, an investigation was initiated on January 14, 2003, in response to a petition filed by a company official on behalf of workers at Maine Brand Manufacturing, Inc., Littleton, Maine.
The petitioner has requested that the petition be withdrawn. Consequently, further investigation in this case would serve no purpose and the investigation has been terminated.
Pursuant to section 221 of the Trade Act of 1974, as amended, an investigation was initiated on December 12, 2002 in response to a worker petition filed by a company official on behalf of workers at Mike Dent Enterprises, Burns, Oregon.
All workers were separated from the subject firm more than one year before the date of the petition. Section 223(b) of the Act specifies that no certification may apply to any worker whose last separation occurred more than one year before the date of the petition. Consequently, further investigation in this case would serve no purpose, and the investigation has been terminated.
Pursuant to section 221 of the Trade Act of 1974, as amended, an investigation was initiated on January 22, 2003 in response to a worker petition filed on behalf of workers at Nortel Networks, GSM E3 Department, Research Triangle Park, North Carolina.
The petitioning group of workers is covered by an earlier petition filed on January 7, 2003 (TA-W-50,507) that is the subject of an ongoing investigation for which a determination has not yet been issued. Further investigation in this case would duplicate efforts and serve no purpose; therefore, the investigation under this petition has been terminated.
Pursuant to section 221 of the Trade Act of 1974, as amended, an investigation was initiated on November 1, 2002 in response to a worker petition filed by a company official on behalf of workers at Partex Apparel Manufacturing, Inc., Medley, Florida.
The petitioner has requested that this petition be withdrawn. Consequently, further investigation would serve no purpose and the investigation has been terminated.
Pursuant to section 221 of the Trade Act of 1974, an investigation was initiated on January 16, 2003, in response to a petition filed by a company official on behalf of workers at Trade Wind Apparel, Inc., Commerce, Georgia.
The petitioner has requested that the petition be withdrawn. Consequently, further investigation in this case would serve no purpose and the investigation has been terminated.
Pursuant to section 221 of the Trade Act of 1974, an investigation was initiated on December 4, 2002 in response to a worker petition which was filed on behalf of workers at Wolverine Worldwide, Inc., Kirksville, Missouri.
An active certification covering the petitioning group of workers is already in effect (TA-W-37,937, as amended). Consequently, further investigation in this case would serve no purpose, and the investigation has been terminated.
Medicare Payment Advisory Commission.
Notice of meeting.
The Commission will hold its next public meeting on Thursday, March 20, 2003, and Friday, March 21, 2003, at the Ronald Reagan Building, International Trade Center, 1300 Pennsylvania Avenue, NW., Washington, DC. The meeting is tentatively scheduled to begin at 9 a.m. on March 20, and at 9 a.m. on March 21.
Topics for discussion include: Medicare payment for prescription drugs under part B; volume of physician services and related physician payment issues; hospital financial performance; incentives to improve quality; alternatives to administered pricing; geographic variation; workplan and analysis of supplemental coverage in state-level markets; long-term care hospital patient characteristics; examining differences between hospital-based and free-standing skilled nursing facilities; overview of the post-acute care episode database; dialysis quality and cost; and the supply of geriatricians.
Agendas will be e-mailed on March 13, 2003. The final agenda will be available on the Commission's Web site (
MedPAC's address is: 601 New Jersey Avenue, NW., Suite 9000, Washington, DC 20001. The telephone number is (202) 220-3700.
Diane Ellison, Office Manager, (202) 220-3700.
National Aeronautics and Space Administration (NASA).
Notice of meeting.
In accordance with the Federal Advisory Committee Act, Public Law 92-463, as amended, the National Aeronautics and Space Administration announces an open meeting of the NASA Advisory Council (NAC).
Wednesday, March 19, 2003, 8:30 a.m. to 2:45 p.m; and Thursday, March 20, 2003, 8:30 a.m. to 12:45 p.m.
John C. Stennis Space Center, NASA, Building 1005, Conference Room, Stennis Space Center, MS 39529-6000.
Ms. Kathy Dakon, Code IC, National Aeronautics and Space Administration, Washington, DC 20546-0001, 202/358-0732.
The meeting will be open to the public up to the seating capacity of the room. Proceedings of the NAC will be shown live via video feed in the overflow Room 107, Building 1100. The agenda for the meeting is as follows:
• Flight of Columbia.
• NASA Planning for Orbital Space Plane.
• NASA's Earth Science Program.
• NASA's Education Initiative.
• ISS communications strategy.
• Committee Reports.
• Discussion of Findings and Recommendations.
Attendees should report to Building 3101, South Reception Center, Stennis Space Center, where they will be asked to comply with NASA security requirements, including the presentation of a valid picture ID before receiving an access badge. Foreign nationals attending this meeting will be required to provide the following information: full name; gender; date/place of birth; citizenship; greencard/visa information (number, type, expiration date); passport information (number, country, expiration date); employer/affiliation information (name of institution, address, country, phone); title/position of visitor. To expedite admittance, attendees can provide identifying information in advance by contacting NASA Stennis Space Center Security Office via e-mail at
Inquiries concerning this matter should be directed to: Lester A. Heltzer, Acting Executive Secretary, Washington, DC 20570,
Nuclear Regulatory Commission (NRC).
Notice of the OMB review of information collection and solicitation of public comment.
The NRC has recently submitted to OMB for review the following proposal for the collection of information under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. chapter 35). The NRC hereby informs potential respondents that an agency may not conduct or sponsor, and that a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number.
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A copy of the final supporting statement may be viewed free of charge at the NRC Public Document Room, One White Flint North, 11555 Rockville Pike, Room O-1 F21, Rockville, MD 20852. OMB clearance requests are available at the NRC worldwide web site:
Comments and questions should be directed to the OMB reviewer listed below by April 9, 2003. Comments received after this date will be considered if it is practical to do so, but assurance of consideration cannot be given to comments received after this date.
Comments can also be submitted by telephone at (202) 395-3087.
The NRC Clearance Officer is Brenda Jo Shelton, (301) 415-7233.
For the Nuclear Regulatory Commission.
Nuclear Regulatory Commission (NRC).
Notice of the OMB review of information collection and solicitation of public comment.
The NRC has recently submitted to OMB for review the following proposal for the collection of information under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. chapter 35). The NRC hereby informs potential respondents that an agency may not conduct or sponsor, and that a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number.
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A completed NRC Form 7 must also be filed by any person in the U.S. wishing to use existing NRC general licenses for the export of incidental radioactive material before the export takes place (if the total amount of the shipment containing the incidental radioactive material exceeds 100 kilograms). The form is reviewed by the NRC to ensure that the Agency is informed before the fact of these kinds of shipments and to allow NRC to inform other interested parties, as appropriate, including import control authorities in interested foreign countries.
A copy of the final supporting statement may be viewed free of charge at the NRC Public Document Room, One White Flint North, 11555 Rockville Pike, Room O-1 F21, Rockville, MD 20852. OMB clearance requests are available at the NRC worldwide Web site:
Comments and questions should be directed to the OMB reviewer listed below by April 9, 2003. Comments received after this date will be considered if it is practical to do so, but assurance of consideration cannot be given to comments received after this date.
Comments can also be submitted by telephone at (202) 395-3087.
The NRC Clearance Officer is Brenda Jo. Shelton, 301-415-7233.
For the Nuclear Regulatory Commission.
The Tennessee Valley Authority (TVA, or the applicant) is the current holder of Construction Permit Nos. CPPR-122 and CPPR-123, issued by the Atomic Energy Commission on December 12, 1974, for construction of the Bellefonte Nuclear Plant, Units 1 and 2. These facilities are currently in deferral status as described in the U.S. Nuclear Regulatory Commission's (NRC's) Generic Letter 87-15 at the applicant's site in Jackson County, Alabama, on a peninsula at Tennessee River Mile 392 on the west shore of Guntersville Reservoir, about 6 miles east-northeast of Scottsboro, Alabama.
On July 11, 2001, TVA filed a request pursuant to 10 CFR 50.55(b) for extensions of the expiration dates for Construction Permit Nos. CPPR-122 AND CPPR-123. Construction activities at the Bellefonte site had been deferred in 1988 due, in part, to a lower-than-expected electrical load forecast within the TVA service area. At the present time, Bellefonte Unit 1 is about 88 percent complete and Bellefonte Unit 2 is about 58 percent complete. On March 23, 1993, TVA notified the NRC that it planned to resume completion activities 120 days from the date of their letter. However, as a result of the delay from the inactivity during the construction deferral and a need to conduct an Integrated Resource Planning process to consider the lowest cost options for providing an adequate supply of electricity to TVA's customers pursuant to the provisions of the Energy Policy Act of 1992, TVA was unable to complete the construction of the two units before the original expiration dates, July 1, 1994, for Unit 1 and July 1, 1996, for Unit 2. In response to a request from TVA dated April 19, 1994, the NRC extended the construction permit expiration dates for Bellefonte Units 1 and 2 to October 1, 2001, and October 1, 2004, respectively, in a letter dated June 27, 1994. That letter transmitted an Order signed by William T. Russell and a Safety Evaluation prepared by the NRC staff.
In the current July 11, 2001, TVA request for extending the Bellefonte construction permit expiration dates, TVA stated that the extension of the Bellefonte construction permits will help TVA to maintain a full scope of
The NRC notes that there is renewed interest in completing at least Bellefonte Unit 1, possibly with financial assistance from outside parties. Recent NRC inspections have also verified that TVA is appropriately maintaining the Bellefonte units in a condition for continuation of construction and ultimate licensing for operation.
The NRC staff has concluded that good cause has been shown for the delays, the extensions are sought for a reasonable period, and this action involves no significant hazards consideration. The basis for these conclusions is given in the staff's Safety Evaluation.
The NRC staff has prepared an Environmental Assessment and Finding of No Significant Impact, which was published in the
For further details with respect to the proposed action, see the licensee's letter dated July 11, 2001. Documents may be examined, and/or copied for a fee, at the NRC's Public Document Room (PDR), located at One White Flint North, Public File Area O1 F21, 11555 Rockville Pike (first floor), Rockville, Maryland. Publicly available records will be accessible electronically from the Agencywide Documents Access and Management System (ADAMS) Public Electronic Reading Room on the Internet at the NRC Web site,
It is hereby ordered that the latest construction completion date for Construction Permit No. CPPR-122 is extended to October 1, 2011, and the latest construction completion date for Construction Permit No. CPPR-123 is extended to October 1, 2014.
For the Nuclear Regulatory Commission.
Office of Personnel Management.
Notice.
In accordance with the Paperwork Reduction Act of 1995 (Pub. L. 104-13, May 22, 1995 and 5 CFR 1320), this notice announces that the Office of Personnel Management (OPM) has submitted to the Office of Management and Budget a request for reclearance of a revised information collection. RI 38-117, Rollover Election, is used to collect information from each payee affected by a change in the tax code (Pub. L. 107-16) so that OPM can make payment in accordance with the wishes of the payee. RI 38-118, Rollover Information, explains the election. RI 37-22, Special Tax Notice Regarding Rollovers, provides more detailed information.
Approximately 1,500 RI 38-117 forms will be completed annually. We estimate it takes approximately 30 minutes to complete the form. The annual burden is 750 hours.
For copies of this proposal, contact Mary Beth Smith-Toomey on (202) 606-8358, FAX (202) 418-3251 or E-mail to
Comments on this proposal should be received within 30 calendar days from the date of this publication.
Send or deliver comments to—
Ronald W. Melton, Chief, Operations Support Division, Retirement and Insurance Service, U.S. Office of Personnel Management, 1900 E Street, NW, Room 3349A, Washington, DC 20415-3450. and Stuart Shapiro, OPM Desk Officer, Office of Information & Regulatory Affairs, New Executive Office Building, NW., Room 10235, Washington, DC 20503.
For Information regarding administrative coordination— contact: Cyrus S. Benson, Team Leader, Desktop Publishing & Printing Team, Budget and Administrative Services Division, (202) 606-0623.
Office of Personnel Management.
Notice.
This gives notice of OPM decisions, granting authority to make appointments under Schedule C in the excepted service as required by 5 CFR 6.1 and 213.103.
Pam Shivery, Director, Washington Service Center, Employment Service (202) 606-1015.
Appearing in the listing below are the individual authorities established under Schedule C between between January 1, 2003 and January 31, 2003. Future notices will be published on the fourth Tuesday of each month, or as soon as possible thereafter. A consolidated listing of all authorities as of June 30 is published each year.
Confidential Policy Advisor to the Federal Co-Chairman. Effective January 16, 2003.
Special Assistant to the Chairman, Broadcasting Board of Governors. Effective January 21, 2003.
Special Assistant to the Chairman, Broadcasting Board of Governors. Effective January 23, 2003.
Special Assistant to the Commissioner. Effective January 17, 2003.
Special Assistant (Legal) to the Commissioner. Effective January 22, 2003.
Director of Constituent Affairs to the Deputy Chief of Staff. Effective January 3, 2003.
Director of Web Design to the Deputy Chief of Staff. Effective January 3, 2003.
Special Assistant for the Office of Homeland Security to the Secretary. Effective January 7, 2003.
Special Assistant to the Under Secretary for Resources, Education and Economics. Effective January 9, 2003.
Confidential Assistant to the White House Liaison. Effective January 31, 2003.
Confidential Assistant to the Director of Scheduling. Effective January 10, 2003.
Confidential Assistant to the Deputy Assistant Secretary for Transportation and Machinery. Effective January 16, 2003.
Confidential Assistant to the Under Secretary for Export Administration. Effective January 21, 2003.
Director, Office of Public Affairs to the Under Secretary for International Trade. Effective January 21, 2003.
Staff Assistant to the Deputy Secretary of Defense (Eurasia). Effective January 9, 2003.
Director of Assessments to the Deputy Under Secretary of Defense (International Technology). Effective January 13, 2003.
Special Assistant to the Deputy Under Secretary for Innovations and Improvement. Effective January 2, 2003.
Special Assistant to the Chief of Staff. Effective January 3, 2003.
Special Assistant to the Deputy Assistant Secretary for Innovation and Improvement. Effective January 3, 2003.
Confidential Assistant to the Deputy Under Secretary for Innovation and Improvement. Effective January 3, 2003.
Confidential Assistant to the Assistant Secretary for Elementary and Secondary Education. Effective January 15, 2003.
Confidential Assistant to the Assistant Secretary for Elementary and Secondary Education. Effective January 15, 2003.
Special Assistant to the Associate Deputy Under Secretary. Effective January 16, 2003.
Special Assistant to the Chief of Staff. Effective January 30, 2003.
Special Assistant to the Secretary of Defense. Effective January 7, 2003.
Trip Coordinator to the Director, Scheduling and Advance. Effective January 13, 2003.
Associate Deputy Assistant Secretary to the Deputy Assistant Secretary for Environment and Science. Effective January 22, 2003.
Special Assistant to the Assistant Secretary for Congressional and Intergovernmental Affairs. Effective January 24, 2003.
Senior Policy Advisor to the Assistant Secretary for International Affairs. Effective January 24, 2003.
Special Assistant to the Director of Economic Impact and Diversity. Effective January 27, 2003.
Special Assistant to the Assistant Secretary for Congressional and Intergovernmental Affairs. Effective January 28, 2003.
Executive Assistant to the Assistant Secretary for Fossil Energy. Effective January 28, 2003.
Policy Advisor to the Assistant Secretary for Fossil Energy. Effective January 28, 2003.
Senior Policy Advisor to the Director, Office of Civilian Radioactive Waste Management. Effective January 28, 2003.
Chief of Staff to the Assistant Secretary for Policy and International Affairs. Effective January 29, 2003.
Director of Communications to the Deputy Assistant Secretary for Public Affairs (Policy and Strategy). Effective January 3, 2003.
Secretary's Regional Representative, Philadelphia, PA to the Director of Intergovernmental Affairs. Effective January 15, 2003.
Deputy White House Liaison For Boards and Committees to the Chief of Staff. Effective January 27, 2003.
Travel Aide to the Chief of Staff. Effective January 24, 2003.
White House Liaison to the Chief of Staff. Effective January 24, 2003.
Executive Assistant to the Deputy Secretary. Effective January 24, 2003.
Speechwriter to the Assistant Secretary for Public Affairs. Effective January 24, 2003.
Executive Assistant to the Chief of Staff. Effective January 24, 2003.
Assistant Press Secretary to the Assistant Secretary for Public Affairs. Effective January 24, 2003.
Executive Secretariat to the Under Secretary for Border and Transportation Security. Effective January 24, 2003.
Special Assistant to the Under Secretary for Border and Transportation Security. Effective January 24, 2003.
Executive Assistant to the Inspector General. Effective January 29, 2003.
Receptionist to the Secretary of Homeland Security. Effective January 29, 2003.
Executive Assistant to the Secretary of Homeland Security. Effective January 29, 2003.
Scheduler to the Secretary of Homeland Security. Effective January 31, 2003.
Director of Executive Scheduling to the Assistant Secretary for Administration. Effective January 3, 2003.
Advance Coordinator to the Assistant Secretary for Administration. Effective January 7, 2003.
Staff Assistant to the Assistant Secretary for Congressional and Internal Relations. Effective January 9, 2003.
Staff Assistant to the Assistant Secretary for Congressional and Internal Relations. Effective January 9, 2003.
Special Assistant to the Assistant Secretary for Fair Housing and Equal Opportunity. Effective January 15, 2003.
Special Assistant to the Deputy Secretary. Effective January 21, 2003.
Special Assistant to the Assistant Secretary for Community Planning and Development. Effective January 28, 2003.
Staff Assistant to the Assistant Deputy Secretary for Field Policy and Management. Effective January 28, 2003.
Press Secretary to the Director, Office of Communications. Effective January 3, 2003.
Hispanic Media Outreach Coordinator to the Director, Office of Communications. Effective January 7, 2003.
Special Assistant to the Director of Scheduling and Advance. Effective January 15, 2003.
Principal Deputy Director and Press Secretary to the Director, Office of Public Affairs. Effective January 3, 2003.
Counsel to the Assistant Attorney General, Civil Rights Division. Effective January 21, 2003.
Counsel to the Assistant Attorney General to the General Attorney. Effective January 28, 2003.
Special Assistant to the Secretary of Labor. Effective January 13, 2003.
Staff Assistant to the Wage and Hour Administrator. Effective January 21, 2003.
Special Assistant to the Deputy Under Secretary for International Affairs, Bureau of International Labor Affairs. Effective January 23, 2003.
Chief of Staff to the Assistant Secretary for Policy. Effective January 23, 2003.
Special Assistant to the Secretary of Labor. Effective January 23, 2003.
Staff Assistant to the Assistant Secretary for Public Affairs. Effective January 27, 2003.
Chief Economist to the Assistant Secretary for Policy. Effective January 28, 2003.
Special Assistant to the Assistant Secretary for Mine Safety and Health. Effective January 29, 2003.
Senior Advisor to the Coordinator for International Information Programs. Effective January 2, 2003.
Legislative Management Officer to the Assistant Secretary for Legislative and Intergovernmental Affairs. Effective January 6, 2003.
Public Affairs Specialist to the Assistant Secretary for International Organizational Affairs. Effective January 8, 2003.
Correspondence Specialist to the Assistant Secretary for Legislative and Intergovernmental Affairs. Effective January 10, 2003.
Special Advisor to the Assistant Secretary for International Organizational Affairs. Effective January 10, 2003.
Legislative Management Officer to the Assistant Secretary for Legislative and Intergovernmental Affairs. Effective January 17, 2003.
Protocol Officer (Visits) to the Deputy Chief of Protocol. Effective January 24, 2003.
Special Assistant to the Director of Strategic Planning, Scheduling and Advance. Effective January 2, 2003.
Senior Advisor to the Assistant Secretary
Associate Assistant Administrator to the Associate Administrator for Research and Development. Effective January 24, 2003. Federal Communications Commission
Deputy Director, Office of Media Relations to the Chief of Staff. Effective January 29, 2003.
Policy Advisor to the Deputy Director, Federal Emergency Management Agency. Effective January 10, 2003.
Staff Assistant to the Chairman. Effective January 15, 2003. Federal Maritime Commission
Counsel to the Commissioner. Effective January 28, 2003.
Special Assistant to the Director. Effective January 7, 2003. Office of Personnel Management
Special Assistant to the Director, Office of Communications. Effective January 6, 2003.
Special Assistant to the Director. Effective anuary 7, 2003.
White House Liaison to the Chief of Staff. Effective January 27, 2003.
Program Specialist to the President for Overseas Private Investment Corporation. Effective January 15, 2003.
Special Assistant (Office Automation) to the Director, Presidential Commission on White House Fellowships. Effective January 9, 2003.
Education and Special Projects Director to the Director, President's Commission on White House Fellowships. Effective January 23, 2003.
Special Assistant to the Chief of Staff. Effective January 21, 2003.
Special Assistant to the Deputy Administrator. Effective January 23, 2003.
5 U.S.C. 3301 and 3302; E.O. 10577, 3 CFR 1954—1958 Comp., P.218
Notice is hereby given, pursuant to the provisions of the Government in the Sunshine Act, Pub. L. 94-409, that the Securities and Exchange Commission will hold the following meetings during the week of March 10, 2003: Closed Meetings will be held on Tuesday, March 11, 2003 at 10 a.m., and on Wednesday, March 12, 2003 at 2:30 p.m.
Commissioner Goldschmid, as duty officer, determined that no earlier notice thereof was possible.
Commissioners, Counsel to the Commissioners, the Secretary to the Commission, and recording secretaries will attend the Closed Meetings. Certain staff members who have an interest in the matters may also be present.
The General Counsel of the Commission, or his designee, has certified that, in his opinion, one or more of the exemptions set forth in 5 U.S.C. 552b(c)(3), (5), (7), (9)(B) and (10) and 17 CFR 200.402(a)(3), (5), (7), (9)(ii) and (10), permit consideration of the scheduled matters at the Closed Meetings.
The subject matter of the Closed Meeting scheduled for Tuesday, March 11, 2003 will be:
The subject matter of the Closed Meeting scheduled for Wednesday, March 12, 2003 will be:
At times, changes in Commission priorities require alterations in the scheduling of meeting items. For further information and to ascertain what, if any, matters have been added, deleted, or postponed, please contact:
The Office of the Secretary at (202) 942-7070.
Pursuant to section 19(b)(1) of the Securities Exchange Act of 1934
The Amex proposes to increase to 500 contracts the maximum permissible number of equity and index option contracts in an order executable through its automatic execution system, Auto-Ex.
The text of the proposed rule change is available at the Office of the Secretary, Amex and at the Commission.
In its filing with the Commission, the Amex included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in item IV below. The Amex has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
In 1985, the Exchange implemented the Auto-Ex system, which automatically executes public customer market and marketable limit orders in options at the best bid or offer displayed at the time the order is entered into the Amex Order File (“AOF”). There are, however, limitations on the number of option contracts that can be entered into or executed by these systems. AOF, which handles limit orders routed to the specialist's book as well as orders routed to Auto-Ex, allows for the entry of orders of up to 2500 option contracts.
The Exchange now proposes to increase to 500 contracts the maximum permissible number of equity and index option contracts in an order that can be executed through the Auto-Ex system. It is proposed that this increase to 500 contracts in permissible order size for Auto-Ex be implemented on a case-by-case basis for an individual option class or for all option classes when two floor governors or senior floor officials deem such an increase appropriate. Currently, the Amex posts applicable quote size parameters on its web page and represents that it will continue to do so. The Exchange represents that it has sufficient systems capacity necessary to accommodate implementation of the proposed increase.
The Exchange represents that the Commission, in its March 2002 Order permitting the Amex to expand the maximum Auto-Ex size to 250 contracts, was concerned at the time that an increase in the Auto-Ex order size could create greater risks for market participants. In particular, the Commission noted that a larger Auto-Ex size could subject market makers to greater financial risk due to the automatic execution of such orders at the quoted price. The Amex subsequently adopted a rule
The Exchange also believes that the increased Auto-Ex size of up to 250 contracts for all other options classes at the Exchange has similarly not created greater financial risks or other known system difficulties. The Exchange has set the Auto-Ex order size to the 250-contract maximum in a number of actively-traded option classes that, the Exchange believes, are the classes with the greatest liquidity and trading interest.
The Exchange's Auto-Ex system provides that all customer and broker-dealer market and marketable limit orders within the appropriate size parameters are executed at the prevailing best bid or offer, with both the specialist and registered options traders (“ROTs”) as the contra-party to
The Exchange believes that market participants desire, and will support, an increase in Auto-Ex eligible sizes of up to 500 contracts. The Exchange represents that, as of April 29, 2002, it has established an Auto-Ex size of 1,000 contracts for all QQQ options series. The Amex believes that the proposed increase in Auto-Ex eligible size for all other options is necessary in order for the Exchange to address market demands and for the purpose of competing effectively with other options exchanges that may not be so restricted.
The Amex notes that the Chicago Board Options Exchange, Inc. (“CBOE”) has received regulatory approval, with respect to option classes that disseminate quotations with size, to automatically execute orders in such options through its RAES system up to the disseminated size, which may be larger than 250 contracts.
The Exchange represents that Auto-Ex has been extremely successful in enhancing execution and operational efficiencies during emergency situations and during other, non-emergency situations for certain option classes. The Exchange believes that automatic executions of orders for up to 500 contracts will allow for the quick, efficient execution of public customer orders, as well as broker-dealer orders on a case-by-case basis consistent with the Exchange's recent ability to provide automatic executions of broker-dealer transactions.
The proposed rule change is consistent with section 6(b)
The Amex does not believe that the proposed rule change will impose any burden on competition.
No written comments were solicited or received with respect to the proposed rule change.
Within 35 days of the date of publication of this notice in the
(A) By order approve such proposed rule change, or
(B) Institute proceedings to determine whether the proposed rule change should be disapproved.
The Commission invites interested persons 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 Amex. All submissions should refer to File No. SR-Amex-2003-08 and should be submitted by March 31, 2003.
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 Amex proposes to modify its options fee schedule by adopting a per contract license fee in connection with specialist and registered options traders transactions in options on the iShares Goldman Sachs Corporate Bond Fund. The text of the proposed rule change is available at the Office of the Secretary, Amex 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 Amex has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
The Exchange has entered into numerous agreements with issuers and owners of indexes for the purpose of trading options on certain exchange-traded funds (“ETFs”). This requirement to pay an index license fee to third parties is a condition to the listing and trading of these ETF options. In many cases, the Exchange is required to pay a significant licensing fee to issuers or index owners that may not be reimbursed. In an effort to recoup the costs associated with index licenses, the Exchange has previously established a per contract licensing fee for specialists and registered options traders (“ROTs”) that is collected on every transaction in options on the Nasdaq-100 Index Tracking Stock (QQQ), the Nasdaq-100 Index (NDX), the Mini-NDX (MNX) and on the S&P 100 iShares (OEF).
The purpose of the proposed fee is for the Exchange to recoup its costs in connection with the index license fee for the trading of options on the iShares Goldman Sachs Corporate Bond Fund (the “Corporate Bond Fund”). The proposed licensing fee will be collected on every option transaction of the Corporate Bond Fund in which the specialist or ROT is a party. The Exchange proposes to charge $0.10 per contract side for options on the Corporate Bond Fund (LQD). Accordingly, the Exchange believes that requiring the payment of a per contract licensing fee by those specialists units and ROTs that are the primary beneficiaries of the Exchange's index license agreements is justified and consistent with the rules of the Exchange and the Act. In addition, passing the license fee (on a per contract basis) along to the specialist allocated to the Corporate Bond Fund option and the ROT trading such product is efficient and consistent with the intent of the Exchange to pass on its non-reimbursed costs to those market participants that are the primary beneficiaries.
The Amex notes that in recent years it has increased a number of member fees to better align Exchange fees with the actual cost of delivering services and reduce Exchange subsidies of the services.
The Exchange submits that the proposed license fee will provide additional revenue and recoup its costs associated with the trading of Corporate Bond Fund options. In addition, the Amex believes that this fee will help to allocate to those specialists and ROTs transacting in Corporate Bond Fund options, a fair share of the related costs of offering such options. Accordingly, the Exchange believes that the proposed fee is reasonable.
The Exchange believes the proposed rule change is consistent with section 6(b)
The Exchange does not believe that the proposed rule change will impose any burden on competition.
No written comments were solicited or received with respect to the proposed rule change.
The foregoing rule change, which establishes or changes a due, fee or other charge imposed by the Exchange, has become effective immediately pursuant to section 19(b)(3)(A) of the Act
Interested persons are invited to submit written data, views and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Persons making written submissions should file six copies thereof with the Secretary, Securities and Exchange Commission, 450 Fifth Street, NW., Washington, DC 20549-0609. Copies of the submission, all subsequent amendments, all written statements with respect to the proposed rule change that are filed with the Commission, and all written communications relating to the proposed rule change between the Commission and any person, other than those that may be withheld from the public in accordance with the provisions of 5 U.S.C. 552, will be available for inspection and copying in the Commission's Public Reference Room in Washington, DC. Copies of such filing will also be available for inspection and copying at the principal office of the Amex. All submissions should refer to File No. SR-Amex-
For the Commission, by the Division of Market Regulation, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
NASD proposes to extend the pilot program for the Trading Activity Fee (“TAF”) through April 1, 2003. The TAF pilot program is currently in effect, and is set to expire on March 1, 2003.
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, which proposed a new member regulatory pricing structuring, including a new TAF, to replace the existing trading fee contained in Section 8 of Schedule A to the NASD By-Laws.
On December 24, 2002, the NASD extended the TAF pilot program through March 1, 2003. With the instant rule filing, the NASD is further extending the TAF pilot program through April 1, 2003, to allow additional time for the NASD to respond to comments to the original filing, and to allow the Commission more time to review issues presented by the permanent TAF proposed rule change (SR-NASD-2002-148). The NASD asks the Commission to approve SR-NASD-2002-148 before the expiration of the TAF pilot program on April 1, 2003, to make the TAF pilot permanent.
The NASD believes that the proposed rule change is consistent with the provisions of Section 15A 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. Written comments, however, have been solicited on SR-NASD-2002-98, SR-NASD-2002-147, SR-NASD-2002-148, and SR-NASD-2002-182. The comments are not addressed herein, but are, as appropriate, discussed in connection with the respective rule filings.
Because the foregoing proposed rule change does not:
(i) Significantly affect the protection of investors or the public interest;
(ii) Impose any significant burden on competition; and
(iii) Become operative for 30 days from the date on which it was filed, or such shorter time as the Commission may designate, it has become effective pursuant to Section 19(b)(3)(A) of the Act
The NASD has requested that the Commission waive the five-day pre-filing notice requirement and the 30-day operative delay. The Commission believes waiving the five-day pre-filing notice requirement and the 30-day operative delay is consistent with the protection of investors and the public interest. Acceleration of the operative date will allow the pilot to operate without interruption through April 1, 2003. For these reasons, the Commission designates the proposal to be effective and operative upon filing with the Commission.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposal is consistent with the Act. Persons making written submissions should file six copies thereof with the Secretary, Securities and Exchange Commission, 450 Fifth Street, NW., Washington, DC 20549-0609. Copies of the submission, all subsequent amendments, all written statements with respect to the proposed rule change that are filed with the Commission, and all written communications relating to the proposed rule change between the Commission and any person, other than those that may be withheld from the public in accordance with the provisions of 5 U.S.C. 552, will be available for inspection and copying in the Commission's Public Reference Room. Copies of such filing will also be available for inspection and copying at the principal office of the NASD. All submissions should refer to file number SR-NASD-2003-26 and should be submitted by March 31, 2003.
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 establish a pricing schedule for the use of Nasdaq Trading Applications' (“NTA”) Tools Plus product by persons that are not NASD members. Nasdaq will implement this rule change 30 days after the date of this filing. Because Nasdaq proposes to charge non-members the same prices for Tools Plus as it currently charges to members under NASD Rule 7050(e)(2), there is no change in rule language.
In its filing with the Commission, Nasdaq included statements concerning the purpose of and basis for the proposed rule change and discussed 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 below in Sections A, B, and C, of the most significant aspects of such statements.
Nasdaq is proposing to establish a pricing schedule for the use of NTA's Tools Plus product by persons that are not NASD members. The proposed pricing schedule is identical to the one already established for NASD members by NASD Rule 7050(e)(2).
In SR-NASD-2002-177, Nasdaq established a fee of $350 per terminal per month for Tools Plus terminals with reduced functionality for use by correspondent firms or floor brokers to route orders to specified broker-dealers with whom they have an established relationship.
Unlike a full functionality Tools Plus terminal, the terminals would not contain functionality to accept order flow, to compile statistics on order execution, or to route orders to a wide range of market centers. This prior filing established prices for use of this product by NASD members, but did not cover non-members. Nasdaq believes, however, that the most likely customers for the floor broker terminal are regional securities exchanges, which may purchase such terminals for use by their members, rather than the floor brokers themselves. Accordingly, Nasdaq proposes to offer Tools Plus to non-members at the same prices at which it is offered to members.
Nasdaq believes that the proposed rule change is consistent with the provisions of Section 15A of the Act,
Nasdaq believes that the proposed rule change will not result in any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act.
Written comments were neither solicited nor received on the proposed rule change contained in this filing.
The foregoing 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 proposed rule change is consistent with the Act. Persons making written submissions should file six copies thereof with the Secretary, Securities and Exchange Commission, 450 Fifth Street, NW., Washington, DC 20549-0609. Copies of the submission, all subsequent amendments, all written statements with respect to the proposed rule change that are filed with the Commission, and all written communications relating to the proposed rule change between the Commission and any person, other than those that may be withheld from the public in accordance with the provisions of 5 U.S.C. 552, will be available for inspection and copying in the Commission's Public Reference Room. Copies of the filing will also be available for inspection and copying at the principal office of the NASD. All submissions should refer to file number SR-NASD-2003-21 and should be submitted by March 31, 2003.
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”),
As part of its rule modernization initiative, NASD is proposing to make technical changes to the NASD registration rules and to update these rules. Below is the text of the proposed rule change. New text is in
(a) All Principals Must Be Registered
All persons engaged or to be engaged in the investment banking or securities
(b) through (c) No change.
(1) Any person associated with a member as a Registered Representative whose duties are changed by the member so as to require registration in any principal classification shall be allowed a period of 90 calendar days following the change in his duties during which to pass the appropriate Qualification Examination for Principals. Upon elevation, the member shall submit to [the Association]
(2) No Change.
[(3) If an applicant does not take the examination within the ninety calendar day period or if the applicant fails the examination, a new principal elevation form and examination fee shall be required.]
(1) An [applicant for membership in the Association]
(2) through (3) No change.
(1) through (2) No Change.
(3) Except as provided in rule 1021(c), a person who was registered with [the Association]
(4) A person registered solely as a General Securities Principal shall not be qualified to function as a Limited Principal—Financial and Operations;
[(5) A person registered solely as a General Securities Principal shall not be qualified to function as a Registered Options Principal unless he is also qualified and registered as such pursuant to the provisions of paragraph (f).]
[(6) A person qualified solely as a General Securities Principal shall not be qualified to be registered as a Limited Principal—General Securities Sales Supervisor unless he is also qualified and registered as such pursuant to the provisions of paragraph (g)(1).]
(1) through (2) No change.
[(3) Except as provided in rule 1021(c), a person designated pursuant to the provisions of subparagraph (1) hereof shall not be required to take the Limited Principal—Financial and Operations Examination and shall be qualified for registration as a Limited Principal—Financial and Operations if:
(A) such person had been performing the functions of a Limited Principal—Financial and Operations as defined in subparagraph (2) hereof on or before September 1, 1972; or
(B) such person was registered with the Association as a Financial Principal.]
(4) Renumbered as (3).
(c) through (e) No change.
No change to rule language.
(1) No change.
(2) A person registered in this category solely on the basis of having passed the Qualification Examination for Limited Principal—General Securities Sales Supervisor shall NOT be qualified to:
(A) [be registered in any other category of principal registration]
(B) through (C) No change.
(3) No change.
No change to rule language.
All persons engaged or to be engaged in the investment banking or securities business of a member who are to function as representatives shall be registered as such with [the Association]
(b) through (c) no change.
(1) No change.
(2) Except as provided in rule 1031(c):
[(A) Any person who was registered with the Association as a Representative prior to September 1, 1974, shall be qualified to be registered with the Association as a General Securities Representative.]
[(B) A person who applied for registration as a Representative prior to September 1, 1974, and who became registered as a Representative prior to April 1, 1975, by virtue of having passed the Qualification Examination for Representatives (Test Series 1) shall be qualified to be registered as a General Securities Representative.]
[(C) A person who applied for registration as a Representative on or after September 1, 1974, or who registered as a Representative on or after April 1, 1975, by virtue of having passed the Qualification Examination for Registered Representatives (Test Series 1) shall be qualified to be registered only as a Limited Representative—Investment Company and Variable Contracts Products and as a Limited Representative—Direct Participation Programs as defined in paragraph (b) and (c) hereof.]
[(D) A person who was registered as a Registered Representative after September 1, 1974, by virtue of having passed the General Securities Representative Examination (Test Series 7) shall be qualified to be registered as a General Securities Representative.]
(E) Renumbered as (A)
[(F) A person who was registered as a Registered Representative for Sale of Variable Contracts Only shall be qualified to be registered as a Limited Representative—Investment Company and Variable Contracts Products.]
[(G)](
(H) through (I) renumbered as (C) through (D).
(3) No change.
(b) through (e) no change.
(1) No change.
(2) Before registration as a Limited Representative—Equity Trader as defined in subparagraph (1) hereof may become effective, an applicant must:
(A) No change.
(B) pass an appropriate Qualification Examination for Limited Representative—Equity Trader. [Any person who was performing any of the activities described in paragraph (f)(1) above on or prior to May 1, 1998, and who has filed an application to take this examination by August 31, 1998, must pass the examination by May 1, 2000. Any person who is eligible for this extended qualification period and who fails this examination during the 24 month time period commencing on May 1, 1998, and ending on May 1, 2000, must wait 30 days from the date of failure to take the examination again. Any person, other than a person who is eligible for the extended qualification period, who files an application to take this qualification examination after May 1, 1998, must pass this examination before conducting such activities as described in paragraph (f)(1) above. In no event may a person who is eligible for the extended qualification period function as an Equity Trader beyond the 24-month period without having successfully passed the appropriate qualification examination.]
(1) through (2) no change.
[(3) A person who has been performing the functions of a Limited Representative—Government Securities on or before April 1, 1996, may register as such without first meeting the requirement of subparagraph (1)(B) above unless:
(A) Such person is currently subject to a statutory disqualification as defined in section 3(a)(39) of the Act or
(B) During the past 10 years before the effective date of that requirement was the subject of a suspension or fine of $5,000 or more by the Association, the Securities and Exchange Commission, the Commodity Futures Trading Commission, state securities commission, foreign financial regulatory authority, or any other regulatory organization responsible for the investment banking or securities business.]
(h) No change.
(a) through (b) No Change.
(c) Examination results shall be reported to member firms [on a pass/fail basis only] and may be accompanied by an analysis of the candidate's performance on the examination. Passing scores assigned to each examination series shall be determined by the Board of Governors, or its designee.
(d) [An applicant cannot receive assistance while taking the examination. Each applicant shall certify to the Board of Governors that no assistance was given to or received by him during the examination.]
[(e)] Pursuant to the rule 9600 Series, [the Association]
(f) Renumbered as (e)
[The Association]
(a) No Change.
(b) Prior to the time the exemption provided for in paragraph (a) hereof may become effective, the member desiring to employ any such person must file with [the Association]
(1) through (2) no change.
(c) No change.
[All persons associated with a member not previously registered as a principal who are to function as government securities principals shall be registered as such with the Association.]
[Persons associated with a member who are:]
[(1) engaged in the management or supervision of the member's government securities business, including:]
[(A) underwriting, trading or sales of government securities;]
[(B) financial advisory or consultant services for issuers in connection with the issuance of government securities;]
[(C) research or investment advice, other than general economic information or advice, with respect to government securities in connection with the activities described in (A) and (B) above;]
[(D) activities other than those specifically mentioned that involve communication, directly or indirectly, with public investors in government securities in connection with the activities described in (A) and (B) above; or]
[(2) are responsible for supervision of:]
[(A) the processing and clearance activities with respect to government securities; or]
[(B) the maintenance of records involving any of the activities described in paragraph (a)(1) above;]
[are designated as principals.]
[A member shall promptly notify the Association of the assumption by an individual not previously registered with the member as a principal on the form designated by the Board of Governors accompanied by the applicable fees.]
Persons associated with a member whose functions are exclusively clerical or ministerial are not required to register with the Association.]
In its filing with the Commission, 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.
As part of the NASD's rule modernization initiative, NASD has identified certain registration rules that are antiquated and need to be updated to reflect changes in the regulatory landscape. Many of these registration rules impose requirements that no longer serve a valid investor protection goal. The proposed changes, which primarily are technical in nature, are intended to clarify and clean-up existing rules to reduce burdens on the industry caused by outdated registration requirements.
Rules 1021(a) and 1031(a) state that persons engaged in a member's investment banking or securities business who are functioning as principals or representatives must be registered with NASD in the appropriate registration category. These rules prohibit a member from registering a person as principal or representative where the member does not intend to employ the person in its investment banking or securities business. Rules 1021(a) and 1031(a) provide a narrow exception to this general prohibition by permitting a member to maintain the registration of a principal or representative who performs legal, compliance, internal audit, or similar responsibilities. NASD believes that principals or representatives who perform back-office operations,
Rule 1021(d)(3) suggests that an applicant who does not take the examination within 90 days or fails the examination can submit a new form and continue to function as a principal until qualified. This is inconsistent with rule 1021(d)(1), which states that in no event may a person function as a principal beyond the initial 90-day period. Therefore, NASD is proposing to delete rule 1021(d)(3).
Rule 1021(e) requires applicants for NASD membership to have at least two principals with respect to each aspect of the applicant's investment banking and securities business. NASD has interpreted rule 1021(e) to generally require all members, including new applicants, to have at least two principals with respect to each aspect of the member's investment banking and securities business. Therefore, NASD is proposing to amend rule 1021(e) to clarify that this requirement applies to existing members as well as new applicants.
Rule 1022(a)(3) states that a person who was registered with NASD as a principal or financial principal is not required to pass a qualification examination for general securities principal to be qualified as a principal. The term “financial principal” refers to an examination that is no longer administered and thus should be deleted from rule 1022(a)(3).
Rules 1022(a)(4), (5), and (6) provide that a person registered solely as a general securities principal is not automatically qualified to function in certain limited principal capacities. NASD is proposing to combine these rules to eliminate certain redundancies in the language. Further, NASD is proposing to clarify that a person registered solely as a general securities principal is not automatically qualified to function as a municipal securities principal or municipal fund securities limited principal.
Rule 1022(b)(3) provides an exception from the limited principal—financial and operations examination for those persons who were performing these functions before September 1, 1972, and those persons who were registered as a financial principal. NASD is proposing to delete rule 1022(b)(3) because the grandfather clause and the reference to “financial principal” relate to changes made in the 1970s.
For consistency with the other headings under rule 1022, NASD is proposing to amend the headings for rule 1022(f) and IM-1022-1 to state: “Limited Principal-Registered Options and Security Futures.”
Rule 1022(g)(2)(A) provides that a limited principal'general securities sales supervisor cannot be qualified to be registered in any other principal registration category. NASD believes that rule 1022(g)(2)(A) is inaccurate. Accordingly, NASD is proposing to replace the current language in rule 1022(g)(2)(A) to state that a person registered solely as a Limited Principal—General Securities Sales Supervisor shall not be qualified to function in a principal capacity with responsibility over any of the areas of business not described in that rule. This will clarify that such persons may be registered in other categories, if applicable.
Rules 1032(a)(2)(A)-(D) and 1032(a)(2)(F) relate to the transition from the Series 1 to the Series 7, which took place in the 1970's. NASD is proposing to delete rules 1032(a)(2)(A)-(D) and 1032(a)(2)(F) because these sections are no longer relevant to a vast majority of our members and NASD could provide waivers if necessary. Rule 1032(a)(2)(G) provides that persons registered and in good standing with the Securities and Futures Authority (“SFA”) and who have passed the Modified General Securities Representative Qualification Examination for United Kingdom Representatives are qualified to be registered as general securities representatives, with certain restrictions. Under the previous regulatory framework in the United Kingdom, certain persons engaged in the securities and derivatives business were required to register with the SFA before they could engage in such business. The Financial Services Authority (“FSA”) has consolidated the regulatory duties that were carried out by the previous regulatory bodies, including the SFA. The FSA is an independent non-governmental body with statutory powers under United Kingdom legislation to regulate the financial services industry in the United Kingdom. Under the FSA structure, persons that plan to perform specified functions, known as regulated activities or controlled functions, must be either authorized or approved by the FSA before they can carry out these functions. Therefore, NASD is proposing to revise the language in rule 1032(a)(2)(G) to reflect the FSA's new authorization and approval process.
Rule 1032(f)(2)(B) sets forth the grace periods for passing the equity trader examination. For instance, registered representatives who were eligible for the two-year grace period were given until October 1, 2000, to pass the examination. Because the grace period deadlines have passed, NASD is proposing to delete the periods specified under rule 1032(f)(2)(B).
Rule 1032(g)(3) provides a grandfathering provision for persons who were performing the functions of a government securities limited representative on or before April 1, 1996. NASD believes that it is no longer necessary to keep this section because most persons who were eligible for grandfathering have been processed and, if necessary, the staff may provide waivers to new applicants. Accordingly, NASD is proposing to eliminate rule 1032(g)(3) in its entirety.
Rule 1070(c) provides that qualification examination results will be reported to members on a pass/fail basis only. NASD is proposing to delete the phrase “on a pass/fail basis only” because NASD provides more than just pass/fail information to members.
Rule 1070(d) prohibits an applicant from receiving assistance while taking an examination. Rule 1080 requires that examinations be kept confidential. NASD is proposing to combine the language in rule 1070(d) and rule 1080 because these sections cover similar topics. Consequently, NASD is proposing to incorporate rule 1070(d) into rule 1080 and delete rule 1070(d).
Rule 1070(e) provides that experience in fields ancillary to investment banking or securities business will not in and of itself constitute sufficient grounds for waiving an examination. NASD is proposing to amend rule 1070(e) to clarify that although age or physical
Rule 1100(b) requires that members employing foreign associates file an “Application for Classification as a Foreign Associate.” NASD no longer uses this application. Thus, NASD is proposing to replace the terms “Application for Classification as a Foreign Associate” with the terms “Uniform Application for Securities Industry Registration or Transfer,” which is the current application.
Rule 1111 relates to the registration requirements for government securities principals. Because this rule relates to principal registration requirements, NASD is proposing to move this rule to the rule 1020 Series and renumber it as rule 1022(h). The heading for rule 1022(h) will be “Limited Principal—Government Securities.” Rule 1022(h) will not include a subsection on examination because there is no required examination for this registration category. Non-substantive changes also were made to this provision to clarify its application.
Both rules 1060(a)(1) and 1113 state that associated persons whose functions are solely and exclusively clerical or ministerial are exempt from registration. NASD is proposing to delete rule 1113 because it duplicates rule 1060(a)(1).
Finally, NASD is adopting a new corporate structure and is seeking the merger of NASD Regulation and NASD Dispute Resolution into NASD, with the merger becoming effective upon the Commission's authorization of the operation of Nasdaq other than as a facility of NASD. To underscore this new corporate structure and renewed regulatory focus, NASD generally does not refer to itself using its full corporate name, “the Association” or “the NASD.” Instead NASD uses “NASD” unless otherwise appropriate for corporate or regulatory reasons. Accordingly, NASD has replaced several references to “the Association” and “the NASD” in the text of the proposed rule change with “NASD.”
NASD believes that the proposed rule change is consistent with the provisions of section 15A(b)(6) of the Act,
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 been filed by NASD as a “non-controversial” rule change pursuant to section 19(b)(3)(A) of the Act
NASD has requested that the Commission waive the 30-day pre-operative waiting period, which would make the proposed rule operative immediately. The Commission believes that it is consistent with the protection of investors and the public interest to waive the 30-day pre-operative period in this case because the proposed rule change is highly technical in nature. For these reasons, the Commission waives the 30-day pre-operative period and designates that the proposal become operative immediately.
At any time within 60 days of the filing of the proposed rule change, the Commission may summarily abrogate such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act.
Interested persons are invited to submit written data, views and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Persons making written submissions should file six copies thereof with the Secretary, Securities and Exchange Commission, 450 Fifth Street, NW., Washington, DC 20549-0609. Copies of the submission, all subsequent amendments, all written statements with respect to the proposed rule change that are filed with the Commission, and all written communications relating to the proposed rule change between the Commission and any person, other than those that may be withheld from the public in accordance with the provisions of 5 U.S.C. 552, will be available for inspection and copying in the Commission's Public Reference Room. Copies of such filing will also be
For the Commission, by the Division of Market Regulation, pursuant to delegated authority.
On August 15, 2002, the National Association of Securities Dealers, Inc. (“NASD”) filed with the Securities and Exchange Commission (“SEC” or “Commission”) a proposed rule change pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
The Commission received five comment letters regarding the proposal.
The proposed rule change amends NASD Rule 3070 to require members to file promptly with NASD copies of certain criminal and civil complaints and arbitration claims against the member or a person associated with the member. The purpose of the rule proposal is to improve the quality and flow of information to NASD with respect to allegations of broker misconduct, so that NASD can enhance investor protection efforts by promptly taking appropriate regulatory action to address the specific alleged misconduct and to prevent similar or related misconduct in the future.
Specifically, the proposed rule change requires members to file with NASD copies of (1) any criminal complaints filed against the member or plea agreements entered into by the member that are covered by the rule; (2) any securities or commodities-related private civil complaints filed against the member; (3) any arbitration claim against the member (except those claims that have already been filed with NASD Dispute Resolution, in which case NASD obtains copies of such claims directly from NASD Dispute Resolution); and (4) any criminal complaint or plea agreement, private civil complaint or arbitration claim against an associated person that is reportable under question 14 on Form U-4, irrespective of any dollar threshold requirements that question imposes for notification (except those arbitration claims that have already been filed with NASD Dispute Resolution). To avoid duplicative filing, the rule proposal also provides that members need not separately produce the above-referenced documents if they have already been the subject of a request by NASD's Registration and Disclosure staff. These amendments are discussed in greater detail in the Commission's notice soliciting public comment on this proposal.
The Commission received five comment letters on the proposed rule change.
In its response to commenters, NASD focused only on comments made in connection with this proposal. The World Group, MetLife and A.G. Edwards Letters also addressed a change in NASD's policy regarding letters NASD issues when a determination is made to close an investigation without disciplinary action (referred to as “close-out letters”). While notice of the policy change with respect to close-out letters was contained in the same
NASD disagrees that the proposal would impose duplicative filing requirements on members or be unduly
NASD states that the rule proposal minimizes the burden on members, including duplicative filing requirements: it specifically carves out any arbitration claims that are originally filed in the NASD Dispute Resolution forum and those documents that have already been requested by NASD's Registration and Disclosure staff (provided such documents are produced to Registration and Disclosure within 30 days of the request). Moreover, the rule requires only the filing of those complaints and claims most likely to contain information relevant to NASD's regulatory mission, excluding, for example, private civil litigation complaints or arbitration claims that do not involve securities or commodities-related conduct.
World Group stated that the current reporting system appears to be an effective means for monitoring the misconduct or alleged misconduct of brokers and representatives. They noted that NASD has spent significant resources on the development of Integrated National Surveillance and Information Technology Enhancements (INSITE) to aid in more effective firm examinations. World Group stated that it might be more efficient to amend Rule 3070 to require the reporting of the additional information required by the proposal in the current reporting system. NASD responded that it believes that the current reporting system fails to capture important information that could improve its regulatory efficacy.
MetLife stated that the proposal required the reporting of information that is reportable through electronic filings on Forms U-4, U-5, BD and Rule 3070 reports with certain exclusions for certain events based on dollar amounts. They stated that the current system is already fractured, redundant and burdensome in that the same incident may have to be reported twice on different mediums such as a Form U-4, U-5 or BD amendment and a Rule 3070 filing. They suggested that NASD streamline the current reporting system by requiring member firms to report events to NASD only once through a new electronic medium. NASD responded that while MetLife's general proposal to develop a new system is worth long-term consideration, its feasibility is uncertain and, in any event, it does not now provide a viable alternative to the current proposal.
A.G. Edwards stated that most of the information required to be reported in the proposal is already required to be reported by members on the CRD. A.G. Edwards suggested that NASD assume the responsibility to report to the CRD any required information based on its review of the complaints and arbitration claims. They thought this would relieve members from the regulatory burden of reporting these actions to the CRD and would relieve some of the questions that they believe have arisen in regard to the reliability of that reporting. NASD responded that its does not believe such steps are necessary or appropriate. NASD explained that the rule proposal requires different information for different regulatory purposes from that reported to the CRD, and NASD believes it has reasonably minimized the burden on members under the proposal.
The SIA stated that the rule should be limited to copies of retail customer lawsuits and arbitrations that allege sales practice violations in accordance with current Form U-4 and U-5 reporting requirements and dollar thresholds. The SIA stated that such an approach would be more resource-efficient and would produce more targeted reviews of complaints by NASD. NASD noted in its response that the SIA seeks to exclude from the proposal complaints in “nearly all class actions; non-retail civil litigation, including product failure, and operational complaints, and small claims involving relatively small dollar amounts.”
The NASD Response Letter states the following in support of NASD's belief that the SIA proposal is too narrow in scope and could lead to confusion.
Second, limiting the proposal to complaints and claims alleging sales practice violations would undermine a significant purpose of the rule proposal, namely to detect securities or commodities-related patterns of conduct or emerging trends that might warrant regulatory action. The regulatory intent would be frustrated if members were permitted to parse the language of a potential filing to determine whether its substance technically comprised a sales practice violation. Furthermore, litigation and arbitrations that related to securities or commodities conduct, but do not amount to a sales practice violation, nevertheless may prove to correlate to other conduct injurious to the investors and markets. These determinations can only be reached if NASD has access to data that has not been filtered by application of nuance to a legal term of art.
Third, with respect to associated persons, NASD believes it is important to receive copies of complaints and claims reportable under question 14 on Form U-4, even when they fall below specified dollar thresholds, because those actions can highlight patterns of conduct or emerging trends that might warrant regulatory actions.
The Weintraub Letter was written in response to the SIA Letter with regard to the reporting of customer complaints. The SIA stated that the rule should be limited to copies of retail customer lawsuits and arbitrations that allege sales practice violations in accordance with current Form U-4 and U-5 reporting requirements. The Weintraub Letter stated that whether a customer-initiated arbitration is reportable on the Form U-4 or not has absolutely no connection to the seriousness of the underlying allegations, or the need for regulatory scrutiny.
After careful consideration, the Commission finds that the proposed rule change, as amended by Amendment No. 1, is consistent with the Act and the rules and regulations promulgated thereunder applicable to a registered securities association and, in particular, with the requirements of Section 15A(b)(6).
The Commission believes that the proposed rule change will enhance NASD's regulatory efforts and investor protection mission. The proposal should improve NASD's ability to detect and prevent fraudulent and manipulative conduct and enable it to develop regulatory responses to problem areas at the earliest possible time. The Commission further believes the regulatory benefits of the proposed rule change outweigh the additional burden on members to file with NASD copies of the specified documents, and that the proposal minimizes that burden in that the rule requires only the filing of those complaints and claims most likely to reveal information that should assist NASD's regulatory mission.
For the reasons discussed above, the Commission finds that the proposal is consistent with the Act and the rules and regulations thereunder.
For the Commission, by the Division of Market Regulation, pursuant to delegated authority.
Pursuant to section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
The NASD is proposing to clarify that the proposed rule change, which would require member firms to create and maintain business continuity plans and to provide the NASD with certain information to be used in the event of future significant business disruptions, also would require members' business continuity plans to be reasonably designed to enable members to continue their business in the event of a significant business disruption. Below is the text of the proposed rule change, as amended. The base rule text is that proposed in the Original Notice. Language added by Amendments Nos. 1, 2 and 3 is italicized; language deleted by the amendments is in brackets.
(a) Each member must create and maintain a written business continuity plan identifying procedures [to be followed in the event of]
(b)
(c) The [requirements of]
(1) Data back-up and recovery (hard copy and electronic);
(2) All mission critical systems;
(3) Financial and operational assessments;
(4) Alternate communications between customers and the member;
(5) Alternate communications between the member and its employees;
(6) Business constituent, bank, and counter-party impact;
(7) Regulatory reporting; and
(8) Communications with regulators.
(d)
[d]
(1) “Mission critical system” means any system that is necessary, depending on the nature of a member's business, to ensure prompt and accurate processing of securities transactions, including, but not limited to, order taking, order entry, execution, comparison, allocation, clearance and settlement of securities transactions, the maintenance of customer accounts, access to customer accounts and the delivery of funds and securities.
(2) “Financial and operational assessment” means a set of written procedures that allows a member to identify changes in its operational, financial, and credit risk exposures.
(a) Each member shall report to NASD, via such electronic or other means as NASD may require, prescribed emergency contact information for the member.
(b) Each member must
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.
The purpose of Amendment No. 3 is to clarify that the language of proposed NASD Rule 3510 is intended to require not only that members conduct a planning process to create a written business continuity plan, but also that the plan resulting from this process be
As described in detail in the Original Notice, following the tragic events of September 11, 2001, and after an extensive survey of the business continuity practices of members, the NASD proposed two new rules, Rules 3510 and 3520. Proposed NASD Rule 3510 would require members to create and maintain business continuity plans. In developing this rule, the NASD recognized the diversity in size, structure, operations, and business of its members. Each member's plan would be required, at a minimum, to address eight areas specified in the proposed rule change, which the NASD believes are essential to a broker-dealer's business continuity plan.
Proposed NASD Rule 3510 also would require members to update their business continuity plans based on any material change to the member's operations, structure, business, or location. In addition, members would be required to conduct an annual review of their plans to determine whether any modifications are needed in light of any changes to the member's operations, structure, business, or location. Finally, members would be required to designate a member of senior management to approve the plan and conduct the annual review.
The NASD's experience in the aftermath of September 11th also confirmed that the NASD needs a fully reliable means of contacting firms in the event of an emergency. Proposed NASD Rule 3520 would require members to file and keep current with the NASD certain key information that would be of particular importance during significant business disruptions, including:
• Emergency contact information for key staff;
• Identification of two designated contact persons;
• Location of books and records (including back-up locations);
• Clearance and settlement information;
• Identification of key banking relationships; and
• Alternative communication plans for investors.
The purpose of Amendment No. 3 is to address concerns that a literal reading of proposed NASD Rule 3510, as set forth in the Original Notice, could suggest that the rule would require members only to create, maintain, and periodically review a business continuity plan, but would not require that members' plans be effective in enabling members to continue their business in the event of a future significant business disruption. The NASD did not intend to propose a rule of such limited scope. In this regard, in its description of the purpose of the proposed rule change, the NASD stated that “[t]he purpose of the proposed rule change is to help to ensure that NASD members will be able to continue their business in the event of future significant business disruptions.” The NASD believes that members should be obligated to develop a business continuity plan that is reasonably designed, in light of particular characteristics of the firm, to allow the firm to recover as early as practicable in the event of a future significant business disruption.
Therefore, the NASD is proposing to amend proposed NASD Rules 3510(a) and 3510(c) to clarify that the rule is intended to require not only that members conduct a planning process to create a written business plan, but also that the plan resulting from this process be reasonably designed to enable the member to continue its business in the event of future significant business disruptions. The NASD notes that the amended rule language is consistent with NASD rules in other areas where reasonableness standards have been adopted because the diversity of the NASD's membership made specific standards impracticable.
The NASD believes that the proposed rule change, as amended, is consistent with the provisions of section 15A(b)(6) of the Act,
The NASD does not believe that the proposed rule change, as amended, would result in any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act.
Written comments were received in response to
Proposed NASD Rule 3510(c) would state that the “requirements of a business continuity plan are flexible and may be tailored to the size and needs of a member.” The rule would require that each plan must, at a minimum, address eight key categories.
These categories are: (1) Data back-up and recovery (hard copy and electronic); (2) all mission critical systems; (3) financial and operational assessments; (4) alternate communications between customers and the member; (5) alternate communications between the member and its employees; (6) business constituent, bank, and counter-party impact; (7) regulatory reporting; and (8) communications with regulators.
In the Original Notice, the NASD stated that “each member's business continuity plan will only be required to address the eight listed categories * * * to the extent applicable and necessary.” One commenter believed that NASD Rule 3510 should specifically state this interpretation directly in the rule text. In response, the NASD in Amendment No. 2 proposed to revise proposed Rule 3510(c) to include the following statement:
The NASD believes that this proposed language would ensure that members understand that, if any of the categories are not applicable, the member would still be required to document the rationale for not including such category in its business continuity plan. For example, if a member's books and records are kept at its clearing firm, the member's plan would be required to address this fact as well as the relationship with (including the identity of) the clearing firm.
Proposed NASD Rule 3510(b) would require that each member conduct an annual review of its business continuity plan to determine whether any modifications are necessary in light of changes to the member's operations, structure, business, or location. Some commenters believed that the yearly review requirement was inadequate. Although commenters cited different events that should trigger an update of a business continuity plan, most commenters who dissented believed that plans should be updated more frequently.
The NASD believes that, at a minimum, an annual review of the plan is necessary. In response to member and industry comment, the NASD in Amendment No. 1 revised the proposed rule language to expand upon this requirement and include the following language:
This added language emphasizes that members must promptly update their business continuity plans whenever there is a material change in a member's operations, structure, business, or location that affects the information set forth in the business continuity plan. This requirement would be in addition to the yearly review requirement.
One of the categories that members' business continuity plans would be required to address is “business constituent, bank, and counter-party impact.” Commenters sought clarification of this category. The NASD believes that, under this category, firms should have procedures that assess the impact that a significant business disruption has on business constituents (businesses with which a member firm has an on-going commercial relationship pertaining to the support of the member's operating activities), banks (lenders), and counter-parties (such as other broker-dealers or institutional customers). In addition, the NASD believes that members should provide for alternative actions or arrangements with respect to their contractual relationships with business constituents, banks, and counter-parties upon the occurrence of a material business disruption to either party.
One of the categories that members' business continuity plans must address is “books and records back-up and recovery (hard copy and electronic).” One commenter requested clarification of whether the rule would create a requirement that members have both hard copy and electronic books and records. While proposed NASD Rule 3510 refers to the types of books and records that a firm might maintain, it does not mandate that members keep book and records (and back-up books and records) in both hard copy and electronic formats. To determine what records (and in what format) firms must retain, members should refer to Commission and NASD rules and interpretative materials specifically addressing record retention requirements, such as Rule 17a-4 under the Act
In the Original Notice, the NASD stated that it believes that a subsidiary member firm may satisfy its obligations under the proposed rule by participating in a corporate-wide business continuity
One commenter believed that it would not be appropriate to subject non-member firms to these NASD requirements, nor would it be necessary. The NASD, however, believes that, if a member chooses to participate in a parent company's corporate-wide business continuity plan, the record-keeping of that plan and any supervision of the creation, execution, or updating of that plan must comply with NASD rules on record-keeping and supervision. Participating in a corporate-wide business continuity plan is merely an alternative and is intended to give firms greater flexibility in complying with the proposed rule.
The NASD is proposing to amend the text of proposed NASD Rule 3510 to include new subsection (d) to conform the NASD's proposed rule with the NYSE's proposed business continuity rule.
Proposed NASD Rule 3520 would require members to provide the NASD with emergency contact information and update any information upon the occurrence of a material change. One commenter suggested that the NASD take a proactive role in gathering emergency contact information. As stated in the Original Notice, the NASD believes that this duty should lie with the member firm because the member will be best able to identify when a material change has taken place. Nevertheless, the NASD in Amendment No. 1 proposed to revise proposed Rule 3520(b) to require members to promptly update any changes to their emergency contact information. In addition, the NASD is eliminating the semi-annual update requirement from the rule text. Rather, to be consistent with other contact information required by the NASD and periodic updates required by the NYSE, the NASD will issue future guidance on a periodic update requirement. The NASD also is amending proposed NASD Rule 3520(a) to include the phrase “[a]mong other things” to emphasize that the NASD is requiring other contact information in addition to designating two emergency contact persons.
Within 35 days of the date of publication of this notice in the
(A) by order approve such proposed rule change; or
(B) institute proceedings to determine whether the proposed rule change should be disapproved.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change, as amended, is consistent with the Act. Persons making written submissions should file six copies thereof with the Secretary, Securities and Exchange Commission, 450 Fifth Street, NW., Washington, DC 20549-0609. Copies of the submission, all subsequent amendments, all written statements with respect to the proposed rule change that are filed with the Commission, and all written communications relating to the proposed rule change between the Commission and any person, other than those that may be withheld from the public in accordance with the provisions of 5 U.S.C. 552, will be available for inspection and copying in the Commission's Public Reference Room. Copies of such filing will also be available for inspection and copying at the principal office of the NASD. All submissions should refer to File No. SR-NASD-2002-108 and should be submitted by March 31, 2003.
For the Commission, by the Division of Market Regulation, pursuant to delegated authority.
Pursuant to section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
NASD is proposing to adopt NASD Rule 2130 governing the expungement of customer dispute information from the Central Registration Depository (“CRD®” or “CRD system”) and various internal guidelines to be adopted by NASD regarding the handling of requests to expunge customer dispute information from the CRD System. Below is the text of the proposed rule change. Proposed rule language is in italics.
In its filing with the Commission, 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. NASD has prepared summaries, set forth in Sections A, B, and C below, of the most significant aspects of such statements.
The purpose of the proposed rule change is to establish procedures for expunging customer dispute information from the CRD system. The proposed rule will require all directives to expunge customer dispute information from the CRD system to be confirmed by or ordered by a court of competent jurisdiction. The proposed rule includes any such directives that may be in: (1) Judicial proceedings seeking expungement (including proceedings seeking expungement relief resulting from settlements in disputes between public customers and member firms or their associated persons in which the parties agree to expungement of customer dispute information as part of the settlement); (2) arbitration awards rendered in disputes between public customers and member firms or their associated persons in which the parties agree to expunge customer dispute information as part of the settlement and then present the settlement to the arbitration panel for inclusion in a stipulated award; and (3) arbitration awards issued after a decision on the merits.
The proposed rule also will require member firms and associated persons seeking expungement to name NASD as an additional party in any judicial proceeding seeking expungement relief or confirming an arbitration award containing expungement relief. Under the proposed rule, NASD will participate in such judicial proceedings and generally will oppose expunging dispute information in such judicial proceedings unless the arbitrators or the court have made specific findings that the subject matter of the claim or the information in the CRD system: (1) Is without factual basis (
The proposed rule will also permit member firms and associated persons to ask NASD to waive the requirement to name NASD as a party on the basis that the expungement order meets at least one of the standards for expungement articulated in the proposed rule. This will save members and NASD time and expense by enabling NASD to review the findings of the arbitrators or court and determine to waive participation in the judicial proceeding if NASD determines that the findings made by the arbitrators or the court meet at least one of the standards in the rule. If the expungement order fails to meet at least one of the standards in the rule, NASD will participate in the judicial proceeding and oppose the expungement.
Consistent with existing CRD policy, certain expungement directives will not be subject to the proposed rule. For example, NASD will continue to expunge certain information that is not customer dispute information, such as certain criminal information, pursuant to federal and state law. Also, NASD may execute, without a court order, an arbitration award rendered in a dispute between a member and a current or former associated person that contains an expungement directive in which the arbitration panel states that expungement relief is being granted based on the defamatory nature of the information.
The CRD system is an on-line registration and licensing system for the U.S. securities industry, state and Federal regulators, and self-regulatory organizations (“SROs”). The CRD system contains broker-dealer information filed on the Uniform Application for Broker-Dealer Registration (“Form BD”) and the Uniform Request for Withdrawal from Broker-Dealer Registration (“Form BDW”) and information on associated persons filed on the Uniform
NASD operates the CRD system pursuant to policies developed jointly with the North American Securities Administrators Association (“NASAA”). NASD works with the SEC, NASAA, other members of the regulatory community, and member firms to establish policies and procedures reasonably designed to ensure that information submitted to and maintained on the CRD system is accurate and complete. These procedures, among other things, cover expungement of information from the CRD system in narrowly defined circumstances. NASAA and some states have taken the position that information in the CRD system is a record of any state that uses the information to make a licensing decision, and that state laws generally do not permit information to be expunged once it has been filed on the CRD system, absent a court order that explicitly directs expungement.
Since the inception of the CRD system in 1981, NASD generally has honored court-ordered expungements and, until January 1999, NASD also honored arbitrator-ordered expungements that were contained in final awards. In January 1999, after consultation with NASAA, NASD imposed a moratorium on arbitrator-ordered expungements from the CRD system.
Since imposing the moratorium, NASD has been considering how to craft an approach to expungement that would allow NASD, in its capacity as an SRO and as operator of the CRD system, effectively to challenge expungement directives that might diminish or impair the integrity of the system and to ensure the maintenance of essential information for regulators and investors.
NASD is cognizant of the importance of ensuring that the expungement policy does not have an overly broad chilling effect on the settlement process or inappropriately interfere with the arbitration process or arbitrators' authority to award appropriate remedies. NASD and other regulators participating in the CRD system agree that expungement is extraordinary relief, and that courts granting expungement relief under the existing rules and procedures may not fully consider all of the competing interests referenced above. NASD believes that the additional safeguards and procedures proposed herein will allow fact finders and NASD to consider all competing interests before directing or granting expungement of customer dispute information from the CRD system.
NASD believes that the proposed rule change, as amended, is consistent with the provisions of section 15A(b)(6) of the Act,
NASD does not believe that the proposed rule change, as amended, would result in any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act.
In October 2001, NASD published Notice to Members 01-65 (“NtM 01-65” or “Notice”) requesting comment on the establishment of certain criteria that must be met, and procedures that must be followed, before NASD would expunge certain information from the CRD system pursuant to an expungement order. NtM 01-65 encouraged members, investors, registered representatives, and other interested persons to comment. NASD proposed in NtM 01-65 that the CRD system expunge customer dispute information only if certain criteria are met and certain protocols followed. Specifically, NASD requested comment on whether expungement of customer dispute information from the CRD system should generally be limited to cases where the expungement order is based on a finding by an arbitrator or a court that (1) The subject matter of a claim or information in the system involves a case of factual impossibility or “clear error”; (2) the claim is without legal merit; or (3) the information contained in the CRD system is determined to be defamatory in nature.
NASD also sought comment on (1) Specific procedures that would be required to be followed depending on whether the finding that is made results from a contested proceeding or from a settled matter; (2) the adoption of a rule amending the Code of Arbitration
Forty of the 579 responses to NtM 01-65 consisted solely of written comments. A significant percentage of the remaining 539 commenters identified themselves as registered representatives associated with NASD member firms, and these commenters overwhelmingly opposed the imposition of any additional substantive or procedural obligations before expungement of customer dispute information could be effected. Commenters responded to the four questions as follows:
Question 1 asked: “Should [NASD] adopt a rule that would require members to provide notice to [NASD] and make [NASD] a party to the proceeding before seeking a court order directing expungement or confirming an arbitration award that contains an expungement directive?” Forty commenters answered “yes,” 495 commenters answered “no,” and four commenters did not answer this question.
Question 2 asked: “Should [NASD] establish specific standards that must be met before it will execute orders directing it to expunge customer dispute information from the CRD system? Are the standards identified in the Notice (
Question 3 asked: “Should [NASD] execute arbitrators” directives to expunge customer dispute information from the CRD system if (1) arbitrators make specific findings in stipulated or consent awards; (2) arbitrators expressly include those findings in an award; and (3) a party confirms the award in a court of competent jurisdiction?” Eighty-eight commenters answered “yes,” 441 commenters answered “no,” and 10 commenters did not answer this question.
Question 4 asked: “Should [NASD] adopt a rule or Interpretive Material that would explicitly articulate [NASD's] authority to pursue disciplinary actions for violations of just and equitable principles of trade against a member or associated person who seeks to have information about an arbitration claim expunged after there has been an award rendered against that member by the arbitrators or seeks to expunge any arbitration award that does not contain an expungement order and a finding of at least one of the criteria described in the Notice?” Forty-eight commenters answered “yes,” 483 commenters answered “no,” and eight commenters did not answer this question.
Of the 40 commenters who responded by letter, 25 were NASD members or persons associated with NASD members.
Some of these commenters recommended new requirements in the arbitration process to handle expungement requests. For example, it was suggested that arbitrators be required to decide claims of defamation based on the law of the state in which the party claiming defamation maintains his/her/its principal office, or in accordance with the terms of an agreement between the parties. Another suggestion was to require claimants to attest that they are bringing the claim in good faith and to give arbitrators the authority to award sanctions against claimants who bring claims in bad faith or without a reasonable basis. Some commenters suggested that a party submitting a stipulated award containing a recommendation for expungement to a court for confirmation should attach an affidavit setting forth facts constituting “factual impossibility” and/or “clear error.”
Based on the comments to NtM 01-65, NASD is proposing to retain the core substantive requirements of the expungement program described in NtM 01-65, but is also proposing certain modifications to the program proposed in the Notice. NASD recognizes that any expungement program requires a balancing of competing interests. NASD believes that the proposed rule will: help to ensure that information submitted to and maintained on the CRD system is accurate and complete; give regulators the broad access to customer dispute information that they need to fulfill their regulatory responsibilities; give individuals in the brokerage community a fair process that protects their reputations and permits expungement from the CRD system when appropriate; and gives investors access to accurate information about brokers with whom they conduct, or may conduct, business.
NASD has incorporated the following modifications based on its review of the comments. NASD proposes to modify the three broad categories proposed in NtM 01-65: “without factual basis,” “without legal merit,” and “defamatory in nature.” The “without factual basis” standard would include, as identified in the Notice, the “factually impossible” and “clear error” standards. Of the three categories proposed, the “without legal merit” standard drew the most comments, ranging from claims that it is too narrow, too broad, or too vague. To address those comments, NASD proposes to change the “without legal merit” standard to a standard of “failure to state a claim upon which relief can be granted” or “frivolous.” NASD
NASD proposed in NtM 01-65 to limit expungement relief in stipulated awards to cases involving “factual impossibility” or “clear error” on the basis that persons in those circumstances should be able to avail themselves of the settlement opportunity outside of arbitration, and then request that an arbitrator issue an award that incorporates the stipulated settlement and includes expungement relief for certain named parties. In excluding the other two grounds for expungement from its initial proposal, NASD noted that it believed that it was unlikely that claimant or claimant's counsel would agree that the claim or information at issue was lacking in legal merit or was defamatory in nature. In response to comments, NASD proposes to modify the original proposal to allow expungement relief in stipulated awards (or on the basis of a settlement) based on all three grounds, with a uniform requirement that there be specific judicial or arbitral findings in all such cases. In connection with making the required arbitral findings in such cases, NASD will explore the use of telephonic versus in-person hearings, as well as the option of making a decision based on briefs and affidavits from the parties and relevant third parties.
In response to commenters' concerns about the burdens and costs in naming NASD as an additional party in any judicial proceeding seeking expungement relief or confirming an arbitration award containing expungement relief and serving NASD with the appropriate court papers, NASD proposes to retain these requirements, but it further proposes to permit parties to ask NASD to waive the requirement that it be made a party upon a showing that the expungement relief being requested is within the established standards. This will save members and NASD time and expense by enabling NASD to review the findings of the arbitrators or court and determine to waive participation in the judicial proceeding if the findings meet at least one of the standards in the rule. If the expungement order fails to meet at least one of the standards in the rule, NASD will participate in the judicial proceeding and oppose the expungement. NASD also proposes to retain discretion not to oppose expungement relief in exceptional cases where the basis for the expungement does not fall within one of the three standards. NASD would exercise such discretion only if it determines that the expungement is meritorious and would have no material adverse effect on investor protection, the integrity of the CRD system, or regulatory requirements.
After reviewing the comments, NASD also determined not to adopt a rule or Interpretive Material that would explicitly articulate NASD's authority to pursue disciplinary actions for violations of just and equitable principles of trade against a member or associated person who seeks to have information about an arbitration claim expunged after there has been an award rendered against that member by the arbitrators or seeks to expunge any arbitration award that does not contain an expungement order and a finding of at least one of the criteria described in the Notice. NASD believes that it currently has authority under Rule 2110 to bring a disciplinary action against NASD members and their associated persons who contravene the standards set forth in NASD's proposed rule and policies. NASD will revisit this issue in the future should it appear that such a rule is necessary.
Within 35 days of the date of publication of this notice in the
A. By order approve such proposed rule change, as amended, or
B. Institute proceedings to determine whether the proposed rule change, as amended, 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, as amended, that are filed with the Commission, and all written communications relating to the proposed rule change, as amended, 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 No. SR-NASD-2002-168 and should be submitted by March 31, 2003.
For the Commission, by the Division of Market Regulation, pursuant to delegated authority.
On February 25, 2003, the Options Clearing Corporation (“OCC”) submitted to the Securities and Exchange Commission (“Commission”), pursuant to Rule 9b-1 under the Securities Exchange Act of 1934 (“Act”),
The ODD currently contains general disclosures on the characteristics and risks of trading standardized options. The Commission has approved options exchange proposals to list and trade options on particular fund shares based on fixed-income securities.
The Commission has also approved an OCC rule proposal that gives the OCC the ability to fix settlement prices for OCC-cleared index options where appropriate in the case of market disruptions.
In addition, the Commission recently exempted standardized options issued by a registered clearing agency and traded on a registered national securities exchange or association from the provisions of the Securities Act of 1933,
Finally, the ODD would also be amended to update its front inside cover page so that it contains a current list of the U.S. exchanges that trade options issued by the OCC. Specifically, the list would be amended to delete reference to the New York Stock Exchange, Inc. (“NYSE”) (which no longer trades standardized options issued by the OCC) and its corporate address, and to add The International Securities Exchange, Inc. (“ISE”) (which currently trades standardized options issued by the OCC) and its corporate address.
The Commission has reviewed the proposed ODD Supplement and finds that it complies with Rule 9b-1 under the Act.
Finally, the Commission has reviewed the proposed changes that update the front inside cover page of the ODD. Specifically, the Commission finds that it accurately identifies the markets in which options are currently traded pursuant to Rule 9b-1(c)(4) under the Act.
Rule 9b-1 under the Act
It is therefore ordered, pursuant to Rule 9b-1 under the Act,
For the Commission, by the Division of Market Regulation, pursuant to delegated authority.
On January 31, 2003, the Pacific Exchange, Inc. (“PCX” or “Exchange”) submitted to the Securities and Exchange Commission (“Commission”) a proposed rule change pursuant to section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
For the Commission, by the Division of Market Regulation, pursuant to delegated authority.
On February 11, 2002, pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
The Commission believes that the proposed rule change will enhance efficiency because it will allow the PCX the flexibility to grant exemptive relief and to make
For the Commission, by the Division of Market Regulation, pursuant to delegated authority.
Kent County and the contiguous counties of Bristol, Newport, Providence and Washington in the State of Rhode Island; and New London and Windham Counties in the State of Connecticut constitute an economic injury disaster loan area as a result of a fire that occurred on February 20, 2003 in West Warwick, Rhode Island. Eligible small businesses and small agricultural cooperatives without credit available elsewhere may file applications for economic injury assistance as a result of this disaster until the close of business on
The interest rate for eligible small businesses and small agricultural cooperatives is 3.189 percent.
The numbers assigned for economic injury for this disaster are 9U3400 for Rhode Island; and 9U3500 for Connecticut.
The U.S. Small Business Administration Region 1 Advisory Council, located in the geographical area of Augusta, Maine will hold a public meeting at 10 a.m. April 8, 2003 at 68 Sewall Street, Room 510, Augusta, Maine to discuss such matters as may be presented by members, staff of the U.S. Small Business Administration, or others present.
Anyone wishing to make an oral presentation to the Board must contact Mary McAleney, District Director, U.S. Small Business Administration, 68 Sewall Street, Room 512, Augusta, Maine 04330, by e-mail or fax at
Social Security Administration (SSA).
Notice of teleconferences.
Wednesday, March 19, 2003 and Wednesday, March 26, 2003.
The agenda for the meetings will be posted on the Internet at
• Mail addressed to Ticket to Work and Work Incentives Advisory Panel Staff, Social Security Administration, 400 Virginia Avenue, SW., Suite 700, Washington, DC 20024;
• Telephone contact with Kristen Breland at (202) 358-6430;
• Fax at (202) 358-6440; or
• E-mail to
Office of Special Counsel.
Notice.
The U.S. Office of Special Counsel (OSC), in accordance with the Paperwork Reduction Act (PRA) of 1995 (44 U.S.C. chapter 35) and implementing regulations at 5 CFR Part 1320, plans to request approval from the Office of Management and Budget (OMB) for use of two previously approved information collections: (1) Form OSC-11, Complaint of Possible Prohibited Personnel Practice or Other Prohibited Activity; and (2) Form OSC-12, Disclosure of Information. Both forms to be submitted include minor technical edits previously approved by OMB; form OSC-11 (complaint form) also includes revisions to three consent statements in the form. These collections of information are described in OSC regulations at 5 CFR 1800.1 and 1800.2. The current OMB approval for these collections of information expires on August 31, 2003.
Current and former Federal employees, employee representatives, other Federal agencies, and the general public are invited to comment on these information collections. Comments are invited on: (a) whether the proposed collections of information are necessary for the proper performance of OSC's functions, including whether the information will have practical utility; (b) the accuracy of OSC's estimate of the burden of the proposed collections 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 should be received on or before May 9, 2003.
Kathryn Stackhouse, Legal Counsel and Policy Division, U.S. Office of Special Counsel, 1730 M Street, NW, Suite 300, Washington, DC 20036-4505.
Kathryn Stackhouse, Legal Counsel and Policy Division, at the address shown above; by telephone at (202) 653-8971; or by facsimile at (202) 653-5151. The collections of information to be submitted to OMB will be available for review on OSC's Web site (at
Comment is requested on the following two collections of information:
Department of State.
Notice.
Notice is hereby given of the following determinations: Pursuant to the authority vested in me by the Act of October 19, 1965 (79 Stat. 985; 22 U.S.C. 2459), Executive Order 12047 of March 27, 1978, the Foreign Affairs Reform and Restructuring Act of 1998 (112 Stat. 2681,
For further information, including a list of the exhibit objects, contact the Office of the Legal Adviser, U.S. Department of State, (telephone: 202/619-6982). The address is U.S. Department of State, SA-44, 301 4th Street, SW., Room 700, Washington, DC 20547-0001.
Federal Highway Administration (FHWA), DOT.
Notice of intent.
The FHWA is issuing this notice to advise the public that an environmental impact statement will be prepared for a proposed highway project in Nevada County, California.
Maiser Khaled, Chief, District Operations—North, Federal Highway Administration, California Division, 980 North Street, Suite 400, Sacramento, California 95814, Telephone: (916) 498-5020, or Jeffrey M. Loudon, Chief Environmental Management, M-1 Branch, California Department of Transportation, District 3, PO Box 911, Marysville, CA 95901-0911, (530) 741-4598.
The FHWA, in cooperation with the California Department of Transportation (Caltrans), will prepare an Environmental Impact Statement (EIS) for a proposed upgrade of State Route (SR) 49 in Nevada County, California. The proposed project would construct a four-lane conventional highway with a continuous median/left-turn lane, from Wolf/Combie Road (KP 3.5) to the end of the freeway south of McKnight Way near Grass Valley (KP 21.40). It is also proposed to review the continuation of the freeway section south to Crestview Drive (KP 20.8), a distance of approximately 0.6 km, because of the possible future construction of an interchange.
Improvements to the corridor are considered necessary to improve safety, provide for existing and projected traffic demand, and potentially reduce operational problems and accident rates. Alternatives under consideration include (1) taking no action, (2) constructing a four-lane facility that follows the existing alignment utilizing a 4.2 m median, (3) a range of alternatives including bicycle, mass transit, and Transportation Systems Management alternatives (
Letters describing the proposed action and soliciting comments will be sent to appropriate Federal, State and local agencies, and to private organizations and citizens who have previously expressed or are known to have interest in this proposal. In addition, a public workshop will be held, with public notice being given of the time and location. The draft EIS will be available for public and agency review and comment prior to the workshop. No formal scoping meeting is planned at this time.
To ensure that the full range of issues related to this proposed action are addressed and all significant issues are identified, comments and suggestions are invited from all interested parties. Comments or questions concerning this proposed action and the EIS should be directed to the FHWA at the address provided above.
Midwest Generation, LLC (Midwest), pursuant to a written trackage rights agreement entered into between Midwest and Union Pacific Railroad Company (UP), has agreed to grant local trackage rights to UP over Midwest's entire line of railroad, approximately 4,007 feet long in Will County, IL, extending from Midwest's power plant in Joliet, IL, to a connection with nearby track owned by UP.
The transaction was scheduled to be consummated on March 1, 2003. The earliest the transaction could have been consummated was February 28, 2003, the effective date of the exemption (7 days after the exemption was filed).
The purpose of the proposed trackage rights is to enable UP to deliver coal to Midwest's plant without interchanging its traffic to Illinois Central Railroad Company.
As a condition to this exemption, any employees affected by the trackage rights will be protected by the conditions imposed in
This notice is filed under 49 CFR 1180.2(d)(7). If it contains false or misleading information, the exemption is void
An original and 10 copies of all pleadings, referring to STB Finance Docket No. 34318, must be filed with the Surface Transportation Board, 1925 K Street, NW., Washington, DC 20423-0001. In addition, one copy of each pleading must be served on Robert T. Opal, 1416 Dodge Street, Room 830, Omaha, NE 68179.
Board decisions and notices are available on our Web site at
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 11000, 1750 Pennsylvania Avenue, NW., Washington, DC 20220.
Written comments should be received on or before April 9, 2003 to be assured of consideration.
In rule document 03-3876 beginning on page 8381 in the issue of Thursday, February 20, 2003, make the following corrections:
1. On page 8396, in the second column, the part head is corrected to read as follows:
2. On page 8397, in the third column, in §162.1102, paragraph (b) should read, “For the period on and after October 16, 2003”.
3. On page 8398, in the first column, in the same section, the heading for paragraph (b)(3) should read, “
4. On the same page, in the same column, in the same section, in paragraph (b)(4), in the fifth line, after “004010X096” add the following text “and Addenda to Health Care Claim: Institutional, Volumes 1 and 2, Version 4010, October 2002, Washington Publishing Company, 004010X096A1.”
5. On page 8398, in §162.1202, in the first column, paragraphs (b)(1) and (2) should read be removed.
Office of the Assistant Secretary for Housing—Federal Housing Commissioner, HUD.
Advance notice of proposed rulemaking.
This document requests comments on issues related to the development of a national manufactured housing installation program. By December 2005, HUD is required to establish and implement an installation program that includes installation standards; the training and licensing of manufactured home installers; and inspection of the installation of manufactured homes. HUD's program will be implemented in states that do not have their own qualifying installation program.
Interested persons are invited to submit comments regarding this advance notice of proposed rulemaking to the Rules Docket Clerk, Office of General Counsel, Room 10276, Department of Housing and Urban Development, 451 Seventh Street, SW., Washington, DC 20410-0500. Communications should refer to the above docket number and title. Facsimile (FAX) comments are not acceptable. A copy of each communication submitted will be available for public inspection and copying between 7:30 a.m. and 5:30 p.m. weekdays at the above address.
William W. Matchneer III, Administrator, Office of Manufactured Housing Programs, Room 9156, Department of Housing and Urban Development, 451 Seventh Street, SW., Washington, DC 20410; telephone (202) 708-6401 (this is not a toll-free number). Persons with hearing or speech impairments may access this number via TTY by calling the toll-free Federal Information Relay Service at 1-800-877-8339.
The National Manufactured Housing Construction and Safety Standards Act of 1974 (“the Act”) (42 U.S.C. 5401-5426) is intended to protect the quality, safety, durability, and affordability of manufactured homes. The Act was amended in December 2000 (title VI, Pub. L. 106-659, 114 Stat. 2997, approved December 27, 2000), in part to require the Secretary to establish and implement two new national manufactured housing programs, one for installation and one for dispute resolution.
This notice requests public input on what HUD should consider as it develops a proposed rule to establish the installation program. When the subsequent proposed rule is published, the public will also have an opportunity to comment on the elements of HUD's specific proposals. An advance notice of proposed rulemaking soliciting comments on the dispute resolution program is being published separately in today's
Section 605 of the Act (42 U.S.C. 5404) requires the Secretary to establish and implement a manufactured housing installation program by December 27, 2005. The components of the program must include: (1) Installation standards; (2) the training and licensing of manufactured home installers; and (3) inspection of the installation of manufactured homes. HUD's program will be implemented in any state that does not have its own installation program established by state law that includes these three components. Further, a state's installation standards must provide protection that equals or exceeds the protection provided by the standards adopted by HUD for its national program.
HUD's installation standards will be developed and established after it receives draft model standards proposed by the Manufactured Housing Consensus Committee (“the MHCC”). The MHCC is an advisory committee that was also established by the December 2000 amendments to the Act. After HUD receives the MHCC draft installation standards, HUD will publish for public comment proposed model installation standards. Because the MHCC will first address the content of draft installation standards, most of the questions in today's advance notice of proposed rulemaking focus on the other components of HUD's installation program. Comments received that relate to the development of installation standards will be shared with the MHCC as it works to develop draft installation standards for submittal to HUD.
Commenters are invited to comment on the specific topics suggested below, or on any other matter or concern relevant to the development of an installation program as described above. HUD requests that comments on the following issues reference the number of the issue described, and that other comments be separately identified in the commenter's response:
1. How should consumers be made aware of the existence of, and their rights under, the installation, licensing, training, and inspection program?
2. How will HUD obtain funding for its installation, licensing, training, and inspection program? Should HUD charge licensing, training, and inspection fees in order to support its installation program? If so, how should fees be determined? Who will be required to pay the fees?
3. In situations where one part of a state's program meets the Act's required criteria, but is deemed insufficient in another part (
4. How should state licensing, training, and inspection programs be funded? Should adequate funding be a criterion for HUD approval?
5. Should it be mandatory for states with approved installation programs to permit installations by HUD-licensed installers?
6. Should HUD consider an approach that both certifies installers and provides for accreditation of trainers?
7. Are there ways in which the licensing and training could be facilitated through electronic means?
8. What factors should the Secretary consider when determining whether to apply the new installation requirements to existing, as well as to new, home installations?
9. HUD preempts state and local manufactured home construction and safety standards. How should an installation standard be differentiated from a construction and safety standard, so that local, state, and federal enforcement personnel will understand the scope of their jurisdiction? (
10. Should all Alternative Construction (AC) approvals that affect installations be resubmitted to determine if AC approval is still necessary after new installation standards become effective? Should HUD expand the AC process to permit deviations from the new installation standards?
11. What should be the procedure or mechanism for determining that a state's installation standards provide protection that equals or exceeds the protection provided to residents of manufactured homes by the model installation standards adopted by HUD?
12. Section 605(c)(3)(A)(ii) of the Act (42 U.S.C. 5404(c)(3)(A)(ii)) also permits installation standards that provide protection that equals or exceeds the protection provided to residents of manufactured homes by the installation designs and instructions required to be provided by manufacturers, if HUD determines that such designs and instructions provide protection at least equivalent to the model installation standards adopted by HUD. In addition, section 605(a) of the Act (42 U.S.C. 5404(a)) provides that design approval primary inspection agencies (DAPIAs) will be required to approve all manufacturer designs and instructions, but only if they provide equal or greater protection than the protection provided by the model standards. What should be the procedure or mechanism for a determination by HUD that a manufacturer's installation designs and instructions for any home it produces meets the level of protection provided by the model standards?
13. What factors should HUD take into consideration when reviewing proprietary installation systems under the new installation standards?
14. As stated earlier, HUD's program will be implemented in each state that does not have its own qualified installation program. How should HUD determine whether a state licensing program is a bona fide program that meets the requirements of the Act?
15. How much experience installing manufactured homes should installers have before becoming eligible for installation licenses? Should HUD, as do many states, establish a minimum age for installers?
16. Some state programs allow unlicensed personnel working under licensed installers to perform installations, as long as the unlicensed personnel are working under the licensed installers' direct supervision. Other states require everyone who performs installation work to obtain a license. Should HUD require all individuals who perform installations to obtain a license or should HUD allow unlicensed individuals to perform installation work as long as they work under the direction of licensed installers?
17. Some states provide different levels of licensing. For example, Level One would allow licensees to level ground and place piers to support a manufactured home; Level Two would additionally permit licensees to make structural repairs, alterations, and modifications; Level Three holders would be allowed to perform the functions included in Levels One and Two plus service and repair natural gas piping and appliances, change and adjust orifices, and service and repair plumbing and electrical systems. Should HUD adopt a multilevel licensing system? Or should HUD develop one general license under which licensees may perform any or all of these functions?
18. For what amount of time should licenses be valid? Should all licenses expire on a specific day,
19. Should HUD grant temporary licenses to installers while they await licensing? If so, for how long should temporary licensing be valid? What restrictions should be placed on the scope of a temporary license?
20. How much insurance coverage should HUD require installers to maintain? What should that insurance cover?
21. Should HUD require licensees to be bonded, as well as insured? If so, what would be a reasonable amount of security?
22. Should HUD use contractors to perform licensing functions? If so, what qualifications in terms of background or experience should outside contractors have?
23. What should be the procedures and the grounds for revoking, suspending, or denying licenses?
24. Should HUD differentiate in the installation regulations between independent installers and manufacturers that perform their own installations?
25. As stated earlier, HUD's program will be implemented in each state that does not have its own qualified installation program. How should HUD determine whether a state training program is a bona fide program that meets the requirements of the Act?
26. In the event that HUD decides that installers may utilize unlicensed installers working under the licensed installers' supervision, should HUD require that the unlicensed workers receive training before being allowed to perform installations? If so, how much training should HUD require that they take?
27. What procedures should HUD establish for approving organizations that provide training or continuing education? Under what circumstances should HUD deny or withdraw approval of courses or their sponsors?
28. For what length of time should HUD's approval of courses and trainers be valid? What process should HUD implement for the renewal of course and trainer approval?
29. How many hours of training should HUD require in order for an individual or installation company to obtain a license? Should installers also take an examination as a condition of obtaining licenses? Should HUD require continuing education in order for installers to maintain or renew their licenses? If so, how many hours?
30. What would be the recommended content, duration, and organization of training and continuing education courses that contribute to the general competence of installers?
31. Should HUD use contractors to perform training functions? If so, what qualifications in terms of background or experience should contractors have?
32. Should HUD approve training programs sponsored by manufactured home manufacturers, retailers, installers, and other firms in the manufactured housing industry? If so, what process and criteria should HUD use in order to approve their programs?
33. Should the installation of every new and used manufactured home be inspected? If not, what process should HUD use in order to determine which installations should be inspected? What should be the scope of an inspection?
34. Who would be responsible for arranging for a required inspection of the installation? When and how would the purchaser be notified of the requirements for an inspection of the installation?
35. Can a purchaser waive the right to an inspection of the installation, given that the statute provides that “rights afforded manufactured home purchasers * * * may not be waived, and any provision of a contract or agreement * * * to the contrary shall be void”? (Section 622; 42 U.S.C. 5421.)
36. Who would be qualified to perform installation inspections? Are there any potential conflicts of interest or similar concerns that should disqualify any person or entity from performing installation inspections? If so, please explain.
37. What standards and qualifications should HUD require installation inspectors to meet? How many years of experience should they have in order to perform inspections?
38. What should be the result of a failure to pass the inspection of an installation? How should the consumer's interest in purchasing an acceptable home for timely placement on site be assured? Should retailers be required to disclose clearly any limits on their responsibility for proper installation? If so, how?
39. In the event that an installation has been improperly performed, should HUD require the original installer to perform the necessary corrective work? If so, within what amount of time should the corrections need to be completed? Within how many days of the correction work should the installation be reinspected?
40. How will HUD ensure that a home has been installed in accordance with the installation standards? Should self-certification and attachment of a certifying label by an installer be required? If so, should certification labels indicate whether the installation was performed in accordance with federal or state requirements?
41. Should there be increased performance reviews of an installer who has a history of installations that do not meet minimum requirements of the installation program?
42. Should a homeowner be allowed to install his or her own home? If so, what requirements should apply?
42 U.S.C. 3535(d), 5404, and 5424.
Office of the Assistant Secretary for Housing—Federal Housing Commissioner.
Advance notice of proposed rulemaking.
This document requests comments on issues related to the development of the manufactured housing dispute resolution program. Under the Manufactured Housing Improvement Act, HUD is required to establish a program for the timely resolution of disputes among manufacturers, retailers, and installers of manufactured homes regarding responsibility for defects in manufactured homes; and the issuance of appropriate orders for the correction or repair of defects in manufactured homes.
Interested persons are invited to submit comments regarding this advance notice of proposed rulemaking to the Rules Docket Clerk, Office of General Counsel, Room 10276, Department of Housing and Urban Development, 451 Seventh Street, SW., Washington, DC 20410-0500. Communications should refer to the above docket number and title. Facsimile comments are not accepted. A copy of each communication submitted will be available for public inspection and copying between 7:30 am and 5:30 pm weekdays at the above referenced address.
William W. Matchneer III, Administrator, Office of Manufactured Housing Programs, Room 9156, Department of Housing and Urban Development, 451 Seventh Street, SW., Washington, DC 20410; telephone (202) 708-6401 (this is not a toll-free number). Persons with hearing or speech impairments may access this number via TTY by calling the toll-free Federal Information Relay Service at 1-800-877-8339.
The National Manufactured Housing Construction and Safety Standards Act of 1974 (the Act) (42 U.S.C. 5401-5426) is intended to protect the quality, safety, durability, and affordability of manufactured homes. The Act was amended on December 27, 2000, by Public Law 106-569, in part to require the Secretary to establish and implement two new national manufactured housing programs, one for installation and one for dispute resolution.
This notice requests public input on what HUD should consider as it develops a proposed rule to establish the dispute resolution program. When the subsequent proposed rule is published, the public will also have an opportunity to comment on the elements of HUD's specific proposals. An advance notice of proposed rulemaking soliciting comments on the installation program is being published separately in today's
Section 623(c)(12) of the Act (42 U.S.C. 5422(c)(12)) provides for “a dispute resolution program for the timely resolution of disputes between manufacturers, retailers, and installers of manufactured homes regarding responsibility, and for the issuance of appropriate orders, for the correction or repair of defects in manufactured homes that are reported during the 1-year period beginning on the date of installation.” Any states submitting a state plan after December 26, 2005, must provide for such a dispute resolution program as part of the state plan. Additionally, section 623(g) of the Act (42 U.S.C. 5422 (g)) calls for HUD to implement, beginning in December 2005, a dispute resolution program that meets the above requirements in any state that does not establish a program that complies with the Act.
In preparation for designing its dispute resolution program, HUD has examined manufactured housing dispute resolution programs established in various states. HUD has also examined a wide variety of dispute resolution models. A brief description of a few of the models examined follows below:
1. Arbitration—An adjudicative process in which a decisionmaker or a panel of decisionmakers makes a ruling after hearing arguments. In this process, the parties are usually represented by attorneys.
2. Mediation—A process that uses a neutral, or mediator, to facilitate discussion between the disputing parties. The primary goal of mediation is to have the parties reach a mutually agreeable solution to their dispute. The mediator acts as a guide through the process and helps the parties focus on the issues, but has no final decisionmaking authority.
3. Mediation-Arbitration (Med-Arb)—A process that combines elements of mediation and arbitration. In this process, the parties attempt to reach resolution through mediation. However, if mediation fails, the parties must submit the remaining issues to arbitration.
4. Mediation-then-Arbitration (Med-then-Arb)—A process similar to Med-Arb, however, in this process a different neutral party is used during the mediation and arbitration phases.
5. Neutral Evaluation—A process that allows a neutral to assess the merits of a case and recommend settlement options.
6. Minitrial—A process designed for business disputes. In a minitrial, attorneys argue their clients' cases before a panel of business officials from the respective organizations involved in the disputes. The business officials must have settlement authority so that they can negotiate a settlement after the case presentations.
7. Negotiation—A process by which parties work out an agreement without any third party intervention.
There are a number of issues that arise in connection with the creation and implementation of the mandated federal and state dispute resolution programs. The purpose of this Advance Notice Proposed Rulemaking is to allow HUD to gather ideas concerning how the federal dispute resolution program should be structured and how HUD should approve the state programs for operation. Even though HUD requests comments and suggestions on all issues related to the establishment and creation of the federal and state dispute resolution programs, the following issues are of particular interest:
1. What process should be used to determine whether the proposed state programs meet the Act's requirements? Is proof of adequate funding of a state's program necessary for approval?
2. How will the state programs be funded? Is there a difference for funding purposes between a dispute resolution program that is a part of an approved state plan and a program that is not?
3. What type of oversight should HUD exercise over the state programs to ensure that the programs continue to meet statutory requirements? Should HUD conduct periodic reviews of the state programs to ensure that their programs still meet the Act's standards? If so, how often?
4. If HUD determines that state programs meet statutory requirements, how long should that determination be in effect? How should HUD provide notice that a state's program will be acceptable and HUD's program will not be used in the state?
5. What type of dispute resolution program should be instituted in order to achieve the Act's goal of protecting the quality, durability, safety, and affordability of manufactured homes? Should HUD model its program after one of the widely recognized dispute resolution programs
6. Should HUD's dispute resolution program be modeled after a preexisting state run dispute resolution program? If so, identify the state model that should be followed and indicate the reasons why. What changes would be needed to make the state program fully compliant with the purposes and requirements of the Act?
7. Should HUD incorporate an adversarial component (
8. Who should be permitted to lodge a complaint? Who are the parties eligible to participate in the dispute resolution process? How can a consumer initiate the dispute resolution process? Who should incur the costs associated with filing and addressing a complaint? How should the dispute resolution initiation process be structured? What type of information and documentation should the complainant provide in order to initiate an action?
9. Should HUD involve consumers in a process that involves manufacturers, retailers, and installers?
10. Should time limits be established for presenting evidence or reaching a decision or resolution? If so, how long?
11. Should the decisionmaker or any other authority be permitted to dismiss a complaint if it is deemed not credible, or frivolous? What criteria or filtering process should be established to eliminate complaints that lack merit?
12. Once a complaint has been reported, what process should be used if a complainant elects to withdraw the complaint? If the complainant withdraws the complaint, may the decisionmaker still issue a corrective order?
13. How will the parties be notified that a complaint has been reported (such as by registered letter, etc.)? How much advance notice will be given to the parties before they must appear before the decisionmaker? What kinds of information should HUD provide to the parties in a notice?
14. Should any persons, decisionmakers, or HUD be permitted to join together several complaints involving common issues?
15. Should the decisionmaker's corrective orders be final or should there be an appellate process? If there is an appellate process, how should it be structured?
16. If one party does not wish to participate in the resolution of a dispute through the program, should there be a default decision? If so, is there a need to provide protections against nuisance filings?
17. Should the decisionmaker be required to have knowledge of the manufactured housing industry? How much experience, if any, should the decisionmaker be required to have and what type? If the decisionmaker is required to have experience, how will this experience be measured? If no prior industry experience is necessary, should the decisionmaker be given training related to the industry? If yes, who should provide the training and how should it be funded?
18. Under what circumstances and how should a decisionmaker be removed from a case?
19. Who should be approved to serve as a decisionmaker? Should anyone be disqualified from serving as a decisionmarker based on conflicts of interest or other concerns? Should complaints and corrective orders be made public?
20. What kinds of evidence should be accepted during the dispute resolution process? Should the presentation of evidence be conducted via oral testimony or in writing? If evidence is presented in writing, should there still be an opportunity for oral testimony? If there is an oral hearing, how much time should each party be given to present its evidence? Should cross-examination be permitted if there is an oral hearing?
21. Should the decisionmaker be permitted to conduct outside investigations or be limited to the specific facts of the complaint? Should the decisionmaker be permitted to consider extraneous information, such as the past behaviors of the parties? Should the decisionmaker be permitted to conduct on-site visits?
22. Should the decisionmaker have the authority to compel testimony?
23. Should the contents of the hearing be recorded or transcribed? If so, who should be responsible for verifying the accuracy of the records or transcripts? Who should incur the cost of reporting and/or transcription? Where should the records from a proceeding be kept? If there is a record-retention requirement, how long should the records be maintained?
24. What types of events constitute the reporting of a defect within the 1-year period for initiating a dispute resolution process?
25. What will define the date of installation as prescribed by the Act? Should there be any limit on the kinds of defects subject to resolution through such procedure?
26. What should the decisionmaker do if she or he deems a situation is likely to cause imminent peril to the public health, safety, or welfare? Should the decisionmaker be permitted to issue an interim order to provide temporary relief pending a final decision? Should the decisionmaker be required to report the defect immediately to HUD?
27. How long will a party subject to an order have to take corrective measures? Should the decisionmaker have the authority to grant additional time to make corrections?
28. Who should determine whether the corrections are acceptable? If the decisionmaker has to conduct a final review to ensure that the corrections have been made, which party should incur the cost? Should the decisionmaker notify the parties after corrections have been found to be acceptable?
29. What should the penalty be if a party fails to comply with a corrective order?
30. What should be the scope of the corrective orders? Should a corrective order be limited to the affected home? Should parties be allowed to make corrections to a home involved in a
31. How should consumers be made aware of the existence of the federal and state programs (
32. Are consumers and other parties limited in the types of disputes that can be raised? If so, how are they limited?
33. Should contractors be used to assist HUD in carrying out its new responsibilities for dispute resolution under the Manufactured Housing Improvement Act?
42 U.S.C. 3535(d), 5422, and 5424.
(a) the persons listed in the Annex to this order; and
(b) any person determined by the Secretary of the Treasury, in consultation with the Secretary of State, to be owned or controlled by, or acting or purporting to act directly or indirectly for or on behalf of, any of the persons listed in the Annex to this order.
(b) Any transaction by a United States person or within the United States that evades or avoids, has the purpose of evading or avoiding, or attempts to violate any of the prohibitions set forth in this order is prohibited.
(c) Any conspiracy formed to violate the prohibitions set forth in this order is prohibited.
(a) The term “person” means an individual or entity;
(b) The term “entity” means a partnership, association, trust, joint venture, corporation, group, subgroup, or other organization; and
(c) The term “United States person” means any United States citizen, permanent resident alien, entity organized under the laws of the United
(b) This order shall be transmitted to the Congress and published in the