Agricultural Marketing Service
Agricultural Research Service
Commodity Credit Corporation
Foreign Agricultural Service
Engineers Corps
National Foundation on the Arts and the Humanities
Industry and Security Bureau
International Trade Administration
National Oceanic and Atmospheric Administration
Air Force Department
Army Department
Engineers Corps
Energy Information Administration
Presidential Documents
Centers for Disease Control and Prevention
Children and Families Administration
Food and Drug Administration
Substance Abuse and Mental Health Services Administration
Coast Guard
Federal Emergency Management Agency
Fish and Wildlife Service
Reclamation Bureau
Alcohol, Tobacco, Firearms, and Explosives Bureau
Employment and Training Administration
United States Sentencing Commission
Federal Aviation Administration
Federal Highway Administration
Federal Transit Administration
Maritime Administration
National Highway Traffic Safety Administration
Surface Transportation Board
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.
Agricultural Marketing Service, USDA.
Final rule.
This rule increases the assessment rate established for the Northwest Fresh Bartlett Pear Marketing Committee (Committee) for the 2003-2004 and subsequent fiscal periods from $0.025 to $0.335 per 44-pound standard box or container equivalent of fresh Bartlett pears handled. The Committee locally administers the marketing order, which regulates the handling of fresh Bartlett pears grown in the States of Oregon and Washington. Authorization to assess fresh Bartlett pear handlers enables the Committee to incur expenses that are reasonable and necessary to administer the program. The fiscal period began July 1 and ends June 30. The assessment rate will remain in effect indefinitely unless modified, suspended, or terminated.
October 22, 2003.
Susan M. Hiller, Northwest Marketing Field Office, Fruit and Vegetable Programs, AMS, USDA, 1220 SW., Third Avenue, Suite 385; telephone: (503) 326-2724, Fax: (503) 326-7440; 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. 147 and Order No. 931, both as amended (7 CFR part 931), regulating the handling of fresh Bartlett pears grown in the States of Oregon and Washington, 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, Oregon and Washington handlers are subject to assessments. Funds to administer the order are derived from such assessments. It is intended that the assessment rate as issued herein will be applicable to all assessable fresh Bartlett pears beginning on July 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 increases the assessment rate established for the Committee for the 2003-2004 and subsequent fiscal periods, from $0.025 to $0.335 per 44-pound standard box or container equivalent of fresh Bartlett pears grown in the States of Oregon and Washington.
The Oregon and Washington fresh Bartlett pear 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 growers and handlers of Oregon or Washington fresh Bartlett pears. 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 2001-2002 and subsequent fiscal periods, the Committee recommended, and USDA approved, an assessment rate that would continue in effect from fiscal period to fiscal period 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 May 29, 2003, and unanimously recommended 2003-2004 expenditures of $1,122,250 and an assessment rate of $0.335 per 44-pound standard box or container equivalent of fresh Bartlett pears. In comparison, last year's budgeted expenditures were $77,612. The assessment rate of $0.335 is $0.31 higher than the rate previously in effect. The Committee recommended an increased assessment rate to establish market research and development projects to assist, improve, or promote the marketing, distribution, and consumption of pears. These projects will be executed through an agreement with Pear Bureau Northwest, which also oversees market development and promotion, including paid advertising, projects for the Winter Pear Control Committee, under Marketing Order No. 927 regulating the handling of winter pears grown in Oregon and Washington. The Bartlett pear projects for 2003-2004
These market development projects were previously administered by the Oregon Bartlett Pear Commission and the Washington State Fruit Commission. However, following an eight-month series of industry meetings, both state commissions recommended that the federal committee administer future Bartlett pear market development projects. Thus, with industry consensus in support of the action, the Committee, on May 29, 2003, unanimously recommended that it establish and administer future market development projects for the Bartlett pear industry.
The net effect to the Northwest Bartlett pear industry in transferring the market development projects from the State commissions to the Committee is negligible as indicated in the table below.
The major expenditures recommended by the Committee for the 2003-2004 year include $78,934 for expenses shared with Pear Bureau Northwest and the Winter Pear Control Committee (salaries, employee benefits, office rent, and similar administration expenses), $38,316 for unshared committee expenses (meetings, assessment collection fees paid to the Washington State Fruit Commission, fees paid to four grower/shipper organizations for collating information used in generating crop and quality reports, and contingency reserves), and $1,005,000 for market research and development expenses. Budgeted expenses for these items in 2002-2003 were $63,712, $13,900, and $0, respectively.
The assessment rate recommended by the Committee was determined by reviewing the historical market development expenses of other organizations and past expenses for the Committee. Commodity shipments for the 2003-2004 season are estimated at 3,350,000 standard boxes, which should provide $1,122,250 in assessment income. Income derived from handler assessments, along with miscellaneous income and funds from the Committee's authorized reserve, should be adequate to cover budgeted expenses. Funds in the reserve (currently $16,997.14) will be kept within the maximum permitted by the order of approximately one fiscal year's operational expenses (§ 931.42).
The assessment rate established in this rule will 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 will be in effect for an indefinite period, the Committee will continue to meet prior to or during each fiscal period 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 will evaluate Committee recommendations and other available information to determine whether modification of the assessment rate is needed. Further rulemaking will be undertaken as necessary. The Committee's 2003-2004 budget and those for subsequent fiscal periods will 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 final 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 1,500 growers of fresh Bartlett pears in the production area and approximately 40 handlers subject to regulation under the marketing order. Small agricultural growers are defined by the Small Business Administration (13 CFR 121.201) as those having annual receipts of less than $750,000, and small agricultural service firms are defined as those whose annual receipts are less than $5,000,000.
According to the
This rule increases the assessment rate established for the Committee and collected from handlers for the 2003-2004 and subsequent fiscal periods from $0.025 to $0.335 per 44-pound standard box or container equivalent of fresh Bartlett pears. The Committee unanimously recommended 2003-2004 expenditures of $1,122,250 and an assessment rate of $0.335 per 44-pound standard box or container equivalent. The assessment rate is $0.31 higher than the rate previously in effect. The quantity of assessable fresh Bartlett pears for the 2003-2004 season is estimated at 3,350,000 standard boxes. Thus, the $0.335 rate should provide $1,122,250 in assessment income. Income derived from handler assessments, along with miscellaneous income and funds from the Committee's
The major expenditures recommended by the Committee for the 2003-2004 year include $78,934 for expenses shared with Pear Bureau Northwest and the Winter Pear Control Committee (salaries, employee benefits, office rent, and similar administration expenses), $38,316 for unshared committee expenses (meetings, assessment collection fees paid to the Washington State Fruit Commission, fees paid to four grower/handler organizations for collating information used in generating crop and quality reports, and contingency reserves), and $1,005,000 for market research and development expenses. Budgeted expenses for these items in 2002-2003 were $63,712, $13,900, and $0, respectively.
The increase in the assessment rate is necessary for the Committee to establish market research and development projects. These market development projects will be executed through an agreement with Pear Bureau Northwest, which also oversees the market development projects for the Winter Pear Control Committee, administering Marketing Order No. 927. The Bartlett pear projects for 2003-2004 include activities to enhance the consumption of pears in Latin America and South America, trade and consumer communications through website and newsletter releases, a domestic field staff program to distribute point of sale materials and conduct consumer samplings, and participation in food service and consumer shows to advance Bartletts as the first available USA pear variety. No paid advertising activities will be implemented.
These market development projects were previously administered by the Oregon Bartlett Pear Commission and the Washington State Fruit Commission. However, following an eight-month series of industry meetings, both state commissions recommended that the federal Committee administer future Bartlett pear market development projects. Thus, with industry consensus in support of the action, the Committee, on May 29, 2003, unanimously recommended that it establish and administer future market development projects for the Bartlett pear industry.
The net effect to the Northwest Bartlett pear industry in transferring the market development projects from the State commissions to the Committee is negligible as indicated in the table below.
A review of historical information and preliminary information pertaining to the upcoming season indicates that the grower price for the 2003-2004 season could range between $9.20 and $11.00 per standard box of fresh Bartlett pears. Therefore, the estimated assessment revenue for the 2003-2004 season as a percentage of total grower revenue could range between 3.6 and 3 percent.
This action increases 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 growers. 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 Oregon and Washington fresh Bartlett pear industry and all interested persons were invited to attend the meeting and participate in Committee deliberations on all issues discussed. Like all Committee meetings, the May 29, 2003, meeting was a public meeting and all entities, both large and small, were able to express views on this issue.
This rule imposes no additional reporting or recordkeeping requirements on either small or large Oregon or Washington fresh Bartlett pear 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 proposed rule concerning this action was published in the
A small business guide on complying with fruit, vegetable, and specialty crop marketing agreements and orders may be viewed at:
After consideration of all relevant material presented, including the information and recommendation submitted by the Committee and other available information, it is hereby found that this rule, as hereinafter set forth, will tend to effectuate the declared policy of the Act.
Pursuant to 5 U.S.C. 553, it also found and determined that good cause exists for not postponing the effective date of this rule until 30 days after publication in the
Marketing agreements, Pears, Reporting and recordkeeping requirements.
7 U.S.C. 601-674.
On and after July 1, 2003, an assessment rate of $0.335 per 44-pound standard box or container equivalent is established for fresh Bartlett pears grown in Oregon and Washington.
Federal Aviation Administration (FAA), DOT.
Final rule; request for comments
The FAA is adopting a new airworthiness directive (AD) for certain The Cessna Aircraft Company (Cessna) Model 525 airplanes. This AD requires you to disengage the pitch trim circuit breaker and AP servo circuit breaker and then tie strap each of them to prevent them from being engaged. This AD is the result of analysis that reveals the potential for a single-wire shorting to 28 volts or a failure of a relay in the electric pitch trim system such that the relay contacts remain closed. We are issuing this AD to correct this single-point failure in the electric pitch trim system, which will result in a runaway pitch trim condition where the pilot could not disconnect using the control wheel autopilot/trim disconnect switch. Failure of the electric trim system would result in a large pitch mistrim and would cause excessive control forces that the pilot could not overcome.
This AD becomes effective on October 22, 2003.
The Director of the Federal Register approved the incorporation by reference of certain publications listed in the regulation as of October 22, 2003.
We must receive any comments on this AD by December 15, 2003.
Use one of the following to submit comments on this AD:
•
•
•
You may get the service information identified in this AD from The Cessna Aircraft Company, Product Support, P.O. Box 7706, Wichita, Kansas 67277; telephone: (316) 517-6000; facsimile: (316) 517-8500.
You may view the AD docket at FAA, Central Region, Office of the Regional Counsel, Attention: Rules Docket No. 2003-CE-46-AD, 901 Locust, Room 506, Kansas City, Missouri 64106. Office hours are 8 a.m. to 4 p.m., Monday through Friday, except Federal holidays.
Dan Withers, Aerospace Engineer, FAA, Wichita Aircraft Certification Office, 1801 Airport Road, Room 100, Wichita, Kansas 67209, telephone: (316) 946-4196; facsimile: (316) 946-4107.
Although the final investigation by the National Transportation Safety Board (NTSB) is not complete, Cessna and FAA analysis reveals the potential for a single-wire shorting to 28 volts or a failure of a relay in the electric pitch trim system such that the relay contacts remain closed and also precludes disconnect of the pitch trim using the control wheel autopilot/trim disconnect switch.
Since the unsafe condition described previously is likely to exist or develop on other Cessna Model 525 airplanes of the same type design, this AD is being issued to correct a single-point failure in the pitch trim system, which could result in a runaway pitch trim condition where that the pilot could not disconnect using the control wheel autopilot/trim disconnect switch. Failure of the electric trim system would result in a large pitch mistrim and would cause excessive control forces that the pilot could not overcome.
In preparation of this rule, we contacted type clubs and aircraft operators to obtain technical information and information on operational and economic impacts. We did not receive any information through these contacts. If received, we would have included, in the rulemaking docket, a discussion of any information that may have influenced this action.
This would assure that the unsafe condition is addressed on both high-
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. 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.
We prepared a summary of the costs to comply with this AD and placed it in the AD Docket. You may get a copy of this summary by sending a request to us at the address listed under
Air transportation, Aircraft, Aviation safety, Safety.
49 U.S.C. 106(g), 40113, 44701.
(a) This AD becomes effective on October 22, 2003.
(b) None.
(c) This AD affects Model 525 airplanes, serial numbers 525-0001, 525-0002, and 525-0004 through 525-0159, that are certificated in any category.
(d) This AD is the result of analysis that reveals the potential for a single-wire shorting to 28 volts or a failure of a relay in the electric pitch trim system such that the relay contacts remain closed. We are issuing this AD to correct this single-point failure in the electric pitch trim system, which will result in a runaway pitch trim condition where the pilot could not disconnect using the control wheel autopilot/trim disconnect switch. Failure of the electric trim system would result in a large pitch mistrim and would cause excessive control forces that the pilot could not overcome.
(e) To address this problem, you must accomplish the following:
(f) You may request a different method of compliance or a different compliance time for this AD by following the procedures in 14 CFR 39.13. Send your request to the Manager, Wichita Aircraft Certification Office (ACO), FAA. For information on any already approved alternative methods of compliance, contact Dan Withers, Aerospace Engineer, FAA, Wichita ACO, 1801 Airport Road, Room 100, Wichita, Kansas 67209, telephone: (316) 946-4196; facsimile: (316) 946-4107.
(g) You may get copies of the document referenced in this AD from The Cessna Aircraft Company, Product Support, P.O. Box 7706, Wichita, Kansas 67277; telephone: (316) 517-6000; facsimile: (316) 517-8500. You may view this document at FAA, Central Region, Office of the Regional Counsel, 901 Locust, Room 506, Kansas City, Missouri 64106.
Federal Aviation Administration (FAA), DOT.
Final rule.
This amendment establishes, amends, suspends, or revokes Standard Instrument Approach Procedures (SIAPs) for operations at certain airports. These regulatory actions are needed because of changes occurring in the National Airspace System, such as the commissioning of new navigational facilities, addition of new obstacles, or changes in air traffic requirements. These changes are designed to provide safe and efficient use of the navigable airspace and to promote safe flight operations under instrument flight rules at the affected airports.
This rule is effective October 21, 2003. The compliance date for each SIAP is specified in the amendatory provisions.
The incorporation by reference of certain publications listed in the regulations is approved by the Director of the Federal Register as of October 21, 2003.
Availability of matter incorporated by reference in the amendment is as follows:
1. FAA Rules Docket, FAA Headquarters Building, 800 Independence Avenue, SW., Washington, DC 20591;
2. The FAA Regional Office of the region in which affected airport is located; or
3. The Flight Inspection Area Office which originated the SIAP.
4. The Office of the Federal Register, 800 North Capitol Street, NW., Suite 700, Washington, DC.
1. FAA Public Inquiry Center (APA-200), FAA Headquarters Building, 800 Independence Avenue, SW., Washington, DC 20591; or
2. The FAA Regional Office of the region in which the affected airport is located.
Donald P. Pate, Flight Procedure Standards Branch (AMCAFS-420), Flight Technologies and Programs Division, Flight Standards Service, Federal Aviation Administration, Mike Monroney Aeronautical Center, 6500 South MacArthur Blvd., Oklahoma City, OK 73169 (Mail Address: P.O. Box 25082, Oklahoma City, OK 73125), telephone: (405) 954-4164.
This amendment to part 97 of the Federal Aviation Regulations (14 CFR part 97) establishes, amends, suspends, or revokes Standard Instrument Approach Procedures (SIAPs). The complete regulatory description on each SIAP is contained in the appropriate FAA Form 8260 and the National Flight Data Center (FDC)/Permanent (P) Notices to Airmen (NOTAM) which are incorporated by reference in the amendment under 5 U.S.C. 552(a), 1 CFR part 51, and § 97.20 of the Federal Aviation's Regulations (FAR). Materials incorporated by reference are available for examination or purchase as stated above.
The large number of SIAPs, their complex nature, and the need for a special format make their verbatim publication in the
This amendment to part 97 of the Federal Aviation Regulations (14 CFR part 97) establishes, amends, suspends, or revokes SIAPs. For safety and timeliness of change considerations, this amendment incorporates only specific changes contained in the content of the following FDC/P NOTAMs for each SIAP. The SIAP information in some previously designated FDC/Temporary (FDC/T) NOTAMs is of such duration as to be permanent. With conversion to FDC/P NOTAMs, the respective FDC/T NOTAMs have been canceled.
The FDC/P NOTAMs for the SIAPs contained in this amendment are based on the criteria contained in the U.S. Standard for Terminal Instrument Procedures (TERPS). In developing these chart changes to SIAPs by FDC/P NOTAMs, the TERPS criteria were applied to only these specific conditions existing at the affected airports. All SIAP amendments in this rule have been previously issued by the FAA in a National Flight Data Center (FDC) Notice to Airmen (NOTAM) as an emergency action of immediate flight safety relating directly to published aeronautical charts. The circumstances which created the need for all these SIAP amendments requires making them effective in less than 30 days.
Further, the SIAPs contained in this amendment are based on the criteria contained in the TERPS. Because of the close and immediate relationship between these SIAPs and safety in air commerce, I find that notice and public procedure before adopting these SIAPs are impracticable and contrary to the public interest and, where applicable, that good cause exists for making these SIAPs effective in less than 30 days.
The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore—(1) Is not a
Air Traffic Control, Airports, Incorporation by reference, and Navigation (Air).
49 U.S.C. 106(g), 40103, 40106, 40113, 40114, 40120, 44502, 44514, 44701, 44719, 44721-44722.
By amending: § 97.23 VOR, VOR/DME, VOR or TACAN, and VOR/DME or TACAN; § 97.25 LOC, LOC/DME, LDA, LDA/DME, SDF, SDF/DME; § 97.27 NDB, NDB/DME; § 97.29 ILS, ILS/DME, ISMLS, MLS/DME, MLS/RNAV; § 97.31 RADAR SIAPs; § 97.33 RNAV SIAPs; and § 97.35 COPTER SIAPs, Identified as follows:
Federal Aviation Administration (FAA), DOT.
Final rule; correction.
This document makes a correction to the final rule published in the
This correction is effective on October 21, 2003.
Lt. Col. Tom Barrale, USAF, Department of Defense Air Mobility Command Liaison Officer to FAA Flight Standards Service, (202) 267-7088.
In the final rule FR Doc. 03-17459 published on July 10, 2003, (68 FR 41214), make the following corrections:
On page 41214, in column 3, in the heading section of the rule at the bottom of the page, beginning on line 4 of the heading, correct “Amendment Nos. 119-8, 121-286, and 135-83” to read “Amendment Nos. 119-8, 121-290, and 135-83.”
Federal Highway Administration (FHWA), DOT.
Final rule.
The FHWA amends its regulation for advance construction of Federal-aid projects by removing certain provisions that limit the approval of advance construction projects and that allow for the payment of bond interest cost. These provisions are no longer consistent with section 115 of title 23, United States Code (U.S.C.), due to technical amendments provided in the National Highway System Designation Act of 1995 (NHS Act) and the Transportation Equity Act for the 21st Century (TEA-21).
November 20, 2003.
Mr. Max Inman, Federal-aid Financial Management Division, (202) 366-2853, or Mr. Steve Rochlis, Office of the Chief Counsel, (202) 366-1395, Federal Highway Administration, 400 Seventh Street, SW., Washington, DC 20590. Office hours are from 7:45 a.m. to 4:15 p.m., e.t., Monday through Friday, except Federal holidays.
Internet users may access all comments received by the U.S. DOT Dockets, Room PL-401, by using the universal resource locator (URL):
An electronic copy of this document may be downloaded using a modem and suitable communications software from the Government Printing Office's Electronic Bulletin Board Service, (202) 512-1661. Internet users may reach the Office of the Federal Register's home page at
The FHWA published an interim final rule on part 630, subpart G on July 19, 1995, at 60 FR 36991. Interested persons were invited to submit comments to FHWA Docket No. 95-10. (The FHWA rearranged its docket system to accord with the electronic system adopted by the Department of Transportation in 1997. The FHWA Docket No. 95-10 was transferred and scanned as FHWA Docket No. 1997-2262.) On May 1, 2003 (68 FR 23239), the FHWA published a notice of proposed rulemaking (NPRM) proposing to remove certain provisions that limit the approval of advance construction projects and that allow for the payment of bond interest cost. Advance construction authority allows States to advance the construction of Federal-aid highway projects without obligating Federal funds apportioned or allocated to the States.
Section 115, title 23, U.S. Code, authorizes advance construction projects. After FHWA approval, States can initiate the construction of a Federal-aid highway project using State funds without obligating Federal funds. Later, the State can request that the project be converted to a regular Federal-aid project by obligating all or a portion of the Federal share, provided that Federal-aid funds and obligation authority are available. The Federal government is only committed to the State for the amount of Federal funds obligated.
Section 308 of the NHS Act (Pub. L. 104-59, 109 Stat. 568, November 28, 1995), which replaced section 115(d) of title 23, U.S.C., requires that advance construction projects be on the approved Statewide Transportation Improvement Program (STIP), instead of requiring that future year authorizations be in effect when the advance construction project is approved. The STIP is a financially constrained program that covers a period of at least three years. This change allows the States more flexibility in financing projects and developing financial plans, and provides an opportunity for States to begin construction earlier.
Pre-construction procedures are found at 23 CFR part 630. The limitations outlined in § 630.707 are no longer valid, and will be removed, due to the changes made to title 23, U.S.C., section 115(d) by the NHS Act.
Section 1226(a) of the TEA-21, Public Law 105-178, 112 Stat. 107 (1998), as amended by section 9003(a) of Public Law 105-206, 112 Stat. 838 (1998), revised 23 U.S.C. 115 by removing obsolete subsections relating to payment of bond interest on certain Interstate construction projects. Based on changes in the law relating to payment of bond interest on certain Interstate construction projects, the FHWA removes §§ 630.705(c) and (d), and 630.711.
We received one comment to the docket from a private individual. The comment welcomed changes in giving States more flexibility in financing projects and developing financial plans which will allow projects to begin construction earlier; and agreed that the FHWA should remove §§ 630.705(c) and (d), and 630.711. The comment also listed other benefits of the rule change including better use of taxpayers' dollars and stimulating the economy. While the FHWA agrees with the comment, the primary reason for the rule change is to conform to revisions in the authorizing statute.
Since no comments were received opposing the language proposed in the NPRM, the FHWA is adopting the revisions proposed in the NPRM as final without change.
The FHWA has considered the impact of this final action and has determined that it is not a significant rulemaking action within the meaning of Executive Order 12866 or significant within the meaning of Department of Transportation regulatory policies and procedures. It is anticipated that the economic impact of this rulemaking will be minimal; therefore, a full regulatory evaluation is not required. This action will not adversely affect, in a material way, any sector of the economy. In addition, this final rule will not interfere with any action taken or planned by another agency and would not materially alter the budgetary impact of any entitlements or grants. This action amends current regulations governing the advance construction of Federal-aid projects based on changes in law. It is not anticipated that this action will affect the Federal funding allocated to the States.
In compliance with the Regulatory Flexibility Act [5 U.S.C. 601-612], the FHWA has evaluated the effects of this action rule on small entities. The FHWA believes that this action will not have a significant economic impact on a substantial number of small entities. States are not included in the definition of small entity set forth in 5 U.S.C. 601. Therefore, the FHWA hereby certifies that this action will not have a significant economic impact on a substantial number of small entities.
This action has been analyzed in accordance with the principles and criteria contained in Executive Order 13132 dated August 4, 1999, and it has been determined that this final rule will not have a substantial direct effect or sufficient federalism implications on States that would limit the policymaking discretion of the States. Nothing in this final rule directly preempts any State law or regulation.
Catalog of Federal Domestic Assistance Program Number 20.205, Highway Planning and Construction. The regulations implementing Executive Order 12372 regarding intergovernmental consultation on Federal programs and activities apply to this program.
This final action will not impose a Federal mandate resulting in the expenditure by State, local, tribal governments, in the aggregate, or by the sector, of $100 million or more in any year. (2 U.S.C. 1531
This action will not affect a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interface with Constitutionally Protected Property Rights.
This action meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.
We have analyzed this final rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This action does not involve an economically significant rule and does not concern an environmental risk to health or safety that may disproportionately affect children.
This action does not contain a collection of information requirement for purposes of the Paperwork Reduction Act of 1995, 44 U.S.C. 3501
The FHWA has analyzed this action for the purpose of the National Environmental Policy Act of 1969 (42 U.S.C. 4321
The FHWA has analyzed this action under Executive Order 13175, and believes that the final rule will not have substantial direct effects on one or more Indian tribes; will not impose substantial direct compliance costs on Indian tribal governments; and will not preempt tribal law. Therefore, a tribal summary impact statement is not required.
We have analyzed this action under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a significant energy action under that order because it is not a significant regulatory action under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. Therefore, a Statement of Energy Effects under Executive Order 13211 is not required.
A regulation identification number (RIN) is assigned to each regulatory action listed in the Unified Agenda of Federal Regulations. The Regulatory Information Service Center publishes the Unified Agenda in April and October of each year. The RIN number contained in the heading of this document can be used to cross-reference this action with the Unified Agenda.
Bonds, Government contracts, Grant programs, transportation, Highways and roads, Reporting and recordkeeping requirements.
23 U.S.C. 106, 109, 115, 315, 320, and 402(a); 23 CFR 1.32; and 49 CFR 1.48(b).
Coast Guard, DHS.
Notice of temporary deviation from regulations.
The Commander, Eighth Coast Guard District, has issued a temporary deviation from the regulation governing the operation of the Grosse Tete Swing Span Highway Bridge across Lower Grand River (Alternate Route), mile 47.0, at Grosse Tete, Iberville Parish, LA. This deviation allows the bridge to remain closed to navigation at various times from November 3, 2003 through November 17, 2003. The deviation is necessary to perform rehabilitation and post-tensioning work on the drawbridge.
This deviation is effective from 9 a.m. on November 3, 2003 through 3 p.m. on November 17, 2003.
Materials referred to in this document are available for inspection or copying at the office of the Eighth Coast Guard District, Bridge Administration Branch, Hale Boggs Federal Building, room 1313, 501 Magazine Street, New Orleans, Louisiana 70130-3396 between 7 a.m. and 3 p.m., Monday through Friday, except Federal holidays. The telephone number is (504) 589-2965. The Bridge Administration Branch of the Eighth Coast Guard District maintains the public docket for this temporary deviation.
David Frank, Bridge Administration Branch, telephone (504) 589-2965.
The Louisiana Department of Transportation and Development has requested a temporary deviation in order to perform rehabilitation and post-tensioning work on the swing span bridge across Lower Grand River (Alternate Route) at mile 47.0 at Grosse Tete, Iberville Parish, Louisiana. This maintenance is essential for the continued safe operation of the bridge. This temporary deviation will allow the bridge to remain in the closed-to-navigation position from 9 a.m. until 3 p.m., Monday through Friday from November 3, 2003 until November 17, 2003. The bridge will open for the passage of vessels from noon until 12:30 p.m. during the closure period. If the work is accomplished in a shorter period of time, the bridge will be returned to normal operation in accordance with Title 33, Code of Federal Regulations, Section 117.478(b). Notice of return to normal operations prior to November 17, 2003 will be published by Broadcast Notice to Mariners.
The swing span bridge has a vertical clearance of 2.5 feet above mean high water, elevation 9.0 feet Mean Sea Level and 11.5 feet above mean low water, elevation 0.0 Mean Sea Level in the closed-to-navigation position. Navigation at the site of the bridge consists mainly of tows with barges and some recreational craft. There are no commercial fishermen that transit the waterway at the bridge site. Based on prior experience, as well as coordination with waterway users, it has been determined that this closure will not have a significant effect on these vessels. The bridge normally opens to pass navigation an average of 490 times per month. In accordance with 33 CFR 117.478(b), the draw of the LA 77 bridge, mile 47.0 (Alternate Route) at Grosse Tete, opens on signal; except that, from about August 15 to about June 5 (the school year), the draw need not be opened from 6 a.m. to 8 a.m. and from 2:30 p.m. to 4:30 p.m., Monday through Friday, except Federal holidays. The draw opens on signal at any time for an emergency aboard a
In accordance with 33 CFR 117.35(c), this work will be performed with all due speed in order to return the bridge to normal operation as soon as possible. This deviation from the operating regulations is authorized under 33 CFR 117.35.
Coast Guard, DHS.
Interim rule; reopen comment period.
The Coast Guard is re-opening the comment period for its interim rule published in April 2000, prior to publishing the final rule. The interim rule created a seven-knot speed limit zone that is currently in effect. This rule also re-designated the safety zone in Ketchikan Harbor as an anchorage to reflect its actual use as an anchorage for large passenger vessels. Due to the length in time since the comment period for the interim rule closed, the Coast Guard is providing an additional opportunity for public comment.
Comments and related material must reach the Coast Guard on or before December 22, 2003.
You may mail comments and related material to the USCG Marine Safety Office Juneau, 2760 Sherwood Lane, Suite 2A, Juneau, Alaska 99801. USCG Marine Safety Office Juneau maintains the public docket for this rulemaking. Comments and material received from the public, as well as documents indicated in this preamble as being available in the docket, will become part of this docket and will be available for inspection or copying at USCG Marine Safety Office Juneau between 8 a.m. and 8 p.m., Monday through Friday, except Federal holidays.
Lieutenant Tyrone Jones, Senior Investigating Officer, USCG Marine Safety Office Juneau, Alaska, telephone (907) 463-2470.
We encourage you to participate in this rulemaking by submitting comments and related material. If you do so, please include your name and address, identify the docket number for this rulemaking, [CGD17-99-002], indicate the specific section of this document to which each comment applies, and give the reason for each comment. Please submit all comments and related material in an unbound format, no larger than 8
We do not now plan to hold a public meeting. But you may submit a request for a meeting by writing to USCG Marine Safety Office Juneau at the address under
On March 25, 1999, the Coast Guard published a notice of proposed rulemaking (NPRM) entitled “Anchorage Ground; Safety Zone; Speed Limit; Tongass Narrows and Ketchikan, AK” in the
On April 7, 2000, the Coast Guard published a second interim rule entitled “Anchorage Ground; Safety Zone; Speed Limit; Tongass Narrows and Ketchikan, AK” in the
The Interim Rule published in 1999 extended the seven-knot speed limit on Tongass Narrows northward to Tongass Narrows Buoy 9 in order to address the needs of floatplane traffic. Non-commercial open skiffs were exempt from the seven-knot speed limit to allow them to transit crowded areas of Tongass Narrows more quickly, thereby relieving congestion.
The Interim Rule also re-designated a safety zone in Ketchikan Harbor as an anchorage. Vessels transiting the anchorage other than those engaged in anchoring evolutions are required to proceed through the anchorage by the most direct route without delay or sudden course changes. The re-designation of the area reflected its actual use as an anchorage for large passenger vessels. The slow or erratic operation of small vessels in the former safety zone made it very difficult for large vessels to safely maneuver to and from anchor. The requirement that transiting vessels proceed through the anchorage directly, without delay or sudden course changes, made the final approach, anchoring, and departure of large passenger vessels, safer for the vessels involved.
In April, 2000, a second Interim Rule was published addressing concerns from the public. The Coast Guard revised the exemption to the seven-knot speed limit to include all small vessels of 23 feet or less, registered length. This change allowed an increased number of small vessels that create little wake to transit crowded areas of Tongass Narrows more quickly, thereby relieving congestion.
The comment period for the interim rule published in April 2000 ended October 31, 2000. In order to give the public a chance to make additional comments, the Coast Guard is reopening the comment period for this interim rule, prior to publishing a final rule. All comments must reach the public docket at the address found in
Coast Guard, DHS.
Temporary final rule.
The Coast Guard is establishing a temporary 1000-yard security zone in the navigable waters off the Port of Anchorage, Alaska. This security zone temporarily closes all navigable waters extending out from the Port of Anchorage. This action is necessary to protect the Port of Anchorage, vessels moored at the Port, and its personnel against sabotage or subversive acts.
This temporary final rule is effective from 12:01 p.m. on September 23, 2003 until 12:01 p.m. on March 23, 2004.
Documents indicated in this preamble as being available in the docket are part of docket (COTP Western Alaska 03-001) and are available for inspection or copying at Coast Guard Marine Safety Office Anchorage, AK between 7:30 a.m. and 4 p.m., Monday through Friday, except Federal holidays.
Commander Robert Forgit, USCG Marine Safety Office Anchorage, at (907) 271-6700.
We did not publish a notice of proposed rulemaking (NPRM) for this regulation. Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing an NPRM, and that under 5 U.S.C. 553(d)(3), good cause exists for making this rule effective less than 30 days after publication in the
In light of a recent terrorist threat to the Port of Anchorage, the Coast Guard is establishing a security zone on the navigable waters off the Port of Anchorage to safeguard the Port, the vessels within the Port, and its personnel from sabotage or subversive acts and incidents of a similar nature. This security zone prohibits movement within or entry into the specified area.
This rule establishes a temporary 1000-yard security zone in the navigable waters of Knik Arm off the Port of Anchorage, Alaska. This security zone is designed to permit the safe loading and unloading of vessels moored at the Port and to protect its personnel from possible sabotage, subversive acts or incidents of a similar nature.
The Coast Guard is establishing a temporary 1000-yard security zone in the navigable waters of Knik Arm off the Port of Anchorage. Specifically, the zone includes the waters of Knik Arm that are within an area bounded by a line drawn from a point located at 61°15.14′ North, 149°52.78′ West, then west to a point located at 61°15.14′ North, 149°53.84′ West, then south to a point located at 61°14.39′ North, 149°53.64′ West, then east to a point located at 61°13.94′ North, 149°53.55′ West; thence along the shoreline back to the beginning point. All cargo vessels scheduled to moor at the Port of Anchorage and that have submitted the required Advance Notice of Arrival will be allowed to transit the zone. All tow vessels contracted, specifically Cook Inlet Tug and Barge, to assist the vessels into the Port of Anchorage, may transit the security zone when actually assisting a vessel. The limited size of the zone is designed to minimize the impact on other vessels transiting to facilities near the Port of Anchorage.
This rule is not a “significant regulatory action” under section 3(f) of Executive Order 12886, Regulatory Planning and Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order. It is not “significant” under the regulatory policies and procedures of the Department of Homeland Security (DHS). This finding is based on the limited size of the security zone which will have minimal, if any, impact on vessels transiting the waters of Knik Arm and to facilities near the Port of Anchorage.
Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered whether this rule would have a significant economic impact on a substantial number of small entities. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000.
The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities.
This rule will affect the following entities, some of which may be small entities: The owners or operators of vessels intending to transit in the vicinity of the Port of Anchorage.
This security zone will not have a significant economic impact on a substantial number of small entities for the following reasons. Marine traffic will still be able to transit through Knik Arm during the zone's activation. Additionally, vessels with cargo to load or unload at the Port of Anchorage will not be precluded from mooring at or getting underway from the Port. Tow vessels contracted to assist vessels will not be precluded from transiting the zone to assist vessels.
This rule calls for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).
A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on State or local governments and would either preempt State law or impose a substantial direct cost of compliance on them. We have analyzed this rule under that Order and have determined that it does not have implications for federalism.
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 or more in any one year. Though this rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.
This rule will not effect a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and
This rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.
We have analyzed this rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and does not create an environmental risk to health or risk to safety that may disproportionately affect children.
This rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.
We have analyzed this final rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a “significant energy action” under that order because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. It has not been designated by the Administrator of the Office of Information and Regulatory Affairs as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211.
We have analyzed this rule under Commandant Instruction M16475.lD, which guides the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have concluded that there are no factors in this case that would limit the use of a categorical exclusion under section 2.B.2 of the Instruction. Therefore, this rule is categorically excluded, under figure 2-1, paragraph (34)(g) of the Instruction, from further environmental documentation. Under figure 2-1, paragraph (34)(g), of the Instruction, an “Environmental Analysis Check List” and a “Categorical Exclusion Determination” are not required for this rule.
Harbors, Marine safety, Navigation (water), Reporting and Record keeping requirements, Security measures, Waterways.
33 U.S.C. 1226, 1231; 46 U.S.C. Chapter 701; 50 U.S.C. 191, 195; 33 CFR 1.05-1(g), 6.04-1, 6.04-6, and 160.5; Pub. L. 107-295, 116 Stat. 2064; Department of Homeland Security Delegation No. 0170.1.
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(i) Vessels scheduled to moor and offload or load cargo at the Port of Anchorage that have provided the Coast Guard with an Advance Notice of Arrival.
(ii) Tow vessels contracted, specifically Cook Inlet Tug and Barge, to assist vessels to the dock at the Port of Anchorage.
(2) All persons and vessels shall comply with the instructions of the Captain of the Port representative or the designated on-scene patrol personnel. These personnel are comprised of commissioned, warrant, and petty officers of the Coast Guard. Upon being hailed by a U. S. Coast Guard vessel by siren, radio, flashing light, or other means, the operator of a vessel shall proceed as directed.
Environmental Protection Agency (EPA).
Direct final rule.
On November 4, 2002, the State of Oregon submitted a PM-10 maintenance plan for Klamath Falls to EPA for approval and concurrently requested that EPA redesignate the Klamath Falls nonattainment area to attainment for the National Ambient Air Quality Standard (NAAQS) for particulate matter with an aerodynamic diameter of less than ten micrometers (PM-10). In this action, EPA is approving the maintenance plan and redesignating the Klamath Falls PM-10 nonattainment area to attainment.
This direct final rule will be effective December 22, 2003, unless EPA receives adverse comments by November 20, 2003. If relevant adverse comments are received, EPA will publish a timely withdrawal of the direct final rule in the
Comments may be submitted either by mail or electronically. Written comments should be mailed to Steven K. Body, Office of Air Quality, (OAQ-107), EPA Region 10, 1200 Sixth Avenue, Seattle, Washington 98101. Electronic comments should be sent either to
Copies of the documents relevant to this action are available for public
Steven K. Body, State and Tribal Programs Unit, Office of Air Quality, (OAQ-107), EPA Region 10, 1200 Sixth Avenue, Seattle, WA 98101, Telephone number: (206) 553-0782, or e-mail address:
Throughout this document, wherever “we,” “us,” or “our” is used, we mean the EPA. Please note that if EPA receives relevant adverse comment on an amendment, paragraph or section of this rule and if that provision may be severed from the remainder of the rule, EPA may adopt as final those provisions of the rule that are not the subject of a relevant adverse comment.
EPA is approving the Klamath Falls PM-10 Maintenance Plan and redesignating the Klamath Falls PM-10 nonattainment area to attainment. Klamath Falls is a city in south central Oregon with a population of approximately 40,000. In the late 1980's Klamath Falls recorded some of the highest PM-10 concentrations in the country.
On November 15, 1990, the Clean Air Act Amendments of 1990 were enacted (Pub. L. 101-549, 104 Stat. 2399, codified at 42 U.S.C. 7401-7671q). Under section 107(d)(1)(C) of the Clean Air Act (CAA), the Klamath Falls, Oregon, area was designated nonattainment for PM-10 by operation of law because the area had been designated a Group I planning area before November 15, 1990. Group I planning areas were identified on August 7, 1987. See 52 FR 29383. On October 31, 1990, EPA clarified the description of certain Group I planning areas, including the Klamath Falls area. See 55 FR 45799. These areas were called “initial PM-10 nonattainment areas.” On March 15, 1991, EPA announced these areas and classified them as moderate PM-10 nonattainment areas. See 56 FR 11101.
Nonattainment areas can be redesignated to attainment after the area has measured air quality data showing it has attained the NAAQS and when certain planning requirements are met. Section 107(d)(3)(E) of the CAA, and the General Preamble to Title I (57 FR 13498) provide the criteria for redesignation. These criteria are further clarified in a policy and guidance memorandum from John Calcagni, September 4, 1992,
(1) The Administrator determines that the area has attained the relevant national ambient air quality standard;
(2) the Administrator has fully approved the applicable implementation plan for the area under section 110(k) of the Act;
(3) the Administrator determines that the improvement in air quality is due to permanent and enforceable reductions in emissions resulting from implementation of the applicable implementation plan, applicable Federal air pollution control regulations, and other permanent and enforceable reductions;
(4) the Administrator has fully approved a maintenance plan for the area as meeting the requirements of CAA section 175A; and
(5) the State containing the area has meets all requirements applicable to the area under section 110 and part D of the CAA.
Before an area can be redesignated to attainment, all applicable State Implementation Plan (SIP) elements must be fully approved. The following is a summary of EPA's analysis and conclusion regarding the maintenance plan of Klamath Falls and the State's redesignation request. Additional detail regarding EPA's review and analysis may be found in the technical support document which is located in the public docket for this action.
The CAA requires States to follow certain procedural requirements for submitting SIP revisions to EPA. Section 110(a)(2) of the CAA requires that each SIP revision be adopted by the State after reasonable notice and public hearing. The State then submits the SIP revision to EPA.
The Oregon Department of Environmental Quality (ODEQ), which has regulatory authority for sources of air pollution in the Klamath Falls PM-10 nonattainment area, developed the PM-10 maintenance plan. On May 20, 2002, ODEQ notified the public of the public hearing on the plan in the
The State meets the requirements for reasonable notice and public hearing under section 110(a)(2) of the CAA.
Section 107(d)(3)(E)(i) of the CAA requires that the Administrator determine that the area has attained the applicable NAAQS. The primary 24-hour NAAQS for Particulate Matter with an aerodynamic diameter equal to or less than 10 micrometers (PM-10) is 150 micrograms per cubic meter (μg/m
Oregon's redesignation request for the Klamath Falls PM-10 area is based on valid ambient air quality data. Ambient air quality monitoring data for calendar years 1992 through 2002 show there have been no exceedances of the PM-10 standard since 1992. These data were collected and analyzed as required (
Section 107(d)(3)(E)(v) of the CAA requires that an area must meet all applicable requirements under section 110 and Part D of the CAA. EPA interprets this to mean the State must meet all requirements that applied to the area prior to, and at the time of, the submission of a complete redesignation request. Below is a summary of how Oregon meets these requirements.
On January 25, 1972, Oregon submitted the SIP to EPA. EPA approved the SIP on May 31, 1972.
Part D provides general requirements applicable to all areas designated nonattainment. The general requirements are followed by a series of subparts specific to each pollutant. All PM-10 nonattainment areas must meet the applicable general provisions of subpart 1 (section 172) as well as the specific PM-10 provisions in subpart 4, “Additional Provisions for Particulate Matter Nonattainment Areas.”
Section 172(c)(3) of the CAA requires a comprehensive, accurate, current inventory of actual emissions from all sources in the Klamath Falls PM-10 nonattainment area.
Oregon included in the proposed Klamath Falls maintenance plan an emission inventory for calendar year 1996. This year corresponds to the year used in calculating the design value (discussed below) which is at a level well below the standard. This inventory thus represents emissions that are at a level to protect the standard. The inventory is comprehensive, accurate and current and meets the requirements of section 172(c)(3) of the CAA.
The Clean Air Act Amendments of 1990 contained revisions to the new source review (NSR) program requirements for the construction and operation of new and modified major stationary sources located in nonattainment areas. The Act requires states to amend their SIPs to reflect these revisions, but does not require submittal of this element along with the other SIP elements. The Act established June 30, 1992 as the submittal date for the revised NSR programs.
In Klamath Falls, the requirements of the Part D NSR program will be replaced by the Prevention of Significant Deterioration (PSD) program and the maintenance area NSR program upon the effective date of redesignation. The Oregon Department of Environmental Quality rules for new source review that meet both attainment and nonattainment area requirements (provisions of OAR Chapter 340, Divisions 200, 202, 209, 212, 216, 222, 224, 225, and 268), that were in effect on October 8, 2002, were approved on January 22, 2003, (68 FR 2953) as meeting the requirements of title I, parts C and D of the Clean Air Act.
Portions of Divisions 222, 224, and 225 were revised as part of the Grants Pass PM-10 Maintenance Plan and the Klamath Falls Maintenance Plan development effort. These rule revisions were approved by EPA on January 22, 2003 (68 FR 2953).
Section 0040(3)(b) of Division 204, effective October 8, 2002, is approved in this action. This section is revised to add Klamath Falls to the PM-10 Maintenance Area list.
Once an area is redesignated, the state must continue to operate an appropriate air monitoring network in accord with 40 CFR part 58 to verify attainment status of the area.
The State of Oregon has operated a PM-10 monitor in the Klamath Falls area since 1987 at the Peterson School Site. In the proposed Klamath Falls maintenance plan, the State of Oregon commits to continued operation of the PM-10 monitoring station.
States containing initial moderate PM-10 nonattainment areas were required to submit, by November 15, 1991, a nonattainment area plan that implemented reasonably available control measures (RACM) by December 10, 1993, and demonstrate whether it was practicable to attain the PM-10 NAAQS by December 31, 1994. In order to qualify for redesignation, the SIP for the area must be fully approved under section 110(k) of the Act, and must satisfy all requirements that apply to the area. Oregon's CAA part D initial PM-10 plan for the Klamath Falls PM-10 nonattainment area was submitted on November 15, 1991. The State submitted additional information and provisions on September 20, 1995. EPA approved the Klamath Falls PM-10 attainment plan on April 14, 1997. See 62 FR 18047. Thus, the area has a fully approved nonattainment area SIP.
Section 107(d)(3)(E)(iii) of the CAA provides that for an area to be redesignated to attainment, the Administrator must determine that the improvement in air quality is due to permanent and enforceable reductions in emissions resulting from implementation of the applicable
The PM-10 emission reductions for the Klamath Falls area were achieved through a number of permanent and enforceable control measures including a mandatory woodstove certification program for all new stove sales, a mandatory woodstove and open burning ordinance, a ban on the sale and installation of uncertified woodstoves, and major source NSR. EPA approved these control measures as part of the part D SIP submittal on April 14, 1997. These control measures will continue into the maintenance period for the Klamath Falls area.
The State has demonstrated that the air quality improvements in the Klamath Falls area are the result of permanent enforceable emission reductions and are not the result of either economic trends or meteorology. EPA concludes that the modeling demonstration shows the area will meet the NAAQS even under the worst case meteorological conditions.
Section 107(d)(3)(E)(iv) of the CAA provides that for an area to be redesignated to attainment, the Administrator must have fully approved a maintenance plan for the area meeting the requirements of section 175A of the CAA. As described below, Oregon has complied with the core requirements necessary for an approved maintenance plan. Accordingly, today's action approves the maintenance plan for Klamath Falls, Oregon.
The plan must contain an attainment year emissions inventory to identify the level of emissions in the area which is sufficient to attain the PM-10 NAAQS. This inventory is to be consistent with EPA's most recent guidance on emissions inventories for nonattainment areas available at the time and should represent emissions during the time period associated with the monitoring data showing attainment. The Klamath Falls maintenance plan contains an accurate, current, and comprehensive emission inventory for calendar year 1996. This year is consistent with the design value which was calculated for 1996.
EPA policy contained in the September 4, 1992, Calcagni memo, requires that the maintenance plan contain the same level of air quality modeling to demonstrate maintenance that was used in the original attainment plan to demonstrate attainment. The Klamath Falls attainment plan approved by EPA on April 14, 1997, contained simple proportional modeling. This approach was acceptable because Klamath Falls is a simple air shed and residential wood combustion is a primary source of emissions contributing to the measured violations. EPA agreed with Oregon that simple proportional modeling of emissions from 1996 to the maintenance year of 2015 and the use of the 1996 design value would be an adequate approach for the maintenance demonstration. Oregon projected emissions for the Klamath Falls area to 2015 using appropriate growth factors for population and industrial growth. The increase in emissions from 1996 to 2015 was used to predict both worst case 24-hour PM-10 and annual PM-10 concentrations.
The 24-hour 1996 design value is 95.2 μg/m
Continued ambient monitoring of an area is required over the maintenance period. Section 4.56.4.5 of the Klamath Falls maintenance plan provides for adequate ambient monitoring to be continued in the area for the maintenance period.
Section 175A of the Act requires that a maintenance plan include contingency provisions, as necessary, to correct any violation of the NAAQS that occurs after redesignation. At a minimum, the contingency provisions must include a commitment that the State implement all measures contained in the nonattainment SIP prior to redesignation.
The Klamath Falls maintenance plan continues implementation of the control measures contained in the nonattainment area SIP, with the exception of the nonattainment area major new source review. Major new source review will continue through the PSD program. Thus, the State has met the minimum requirement.
In addition to the minimum requirements, the Klamath Falls maintenance plan contains a contingency plan that consists of two phases. Phase I is triggered if PM-10 concentrations equal or exceed 90% of the level of either the 24-hour or annual standards. Phase I would require a review of various residential and outdoor burning requirements and alternative burning practices. Phase 2 of the contingency plan would require the implementation of strategies identified in Phase I as well as nonattainment permitting requirements for all new or modified major sources.
Section 176(c)(2)(A) of the CAA requires regional transportation plans to be consistent with the motor vehicle emissions budget (MVEB) contained in the applicable air quality plans for the Klamath Falls area. Unless EPA receives adverse comments on the MVEB for Klamath Falls, the motor vehicle emissions budget is deemed adequate to maintain the PM-10 standards through the maintenance year of 2015. The Oregon Department of Transportation, and the U.S. Department of Transportation are required to use the MVEB in this maintenance plan for future transportation conformity determinations.
The MVEBs to protect for both the 24-hour and annual National Ambient Air Quality Standards for PM-10 are proposed for approval for Klamath Falls as follows:
Note that MVEBs for intervening years must be interpolated. In the case of Klamath Falls both the 24-hour and annual budgets must be satisfied in order to find that transportation plans conform. The TSD summarizes how the MVEBs meets the adequacy criteria
EPA is approving the Klamath Falls PM-10 maintenance plan and redesignating the Klamath Falls, Oregon PM-10 nonattainment area to attainment.
1. The Regional Office has established an official public rulemaking file available for inspection at the Regional Office, under Docket number OR-02-002. The official public file consists of the documents specifically referenced in this action, and other information related to this action. The official public rulemaking file is available for public viewing at the Office of Air Quality, (OAQ-107), EPA Region 10, 1200 Sixth Avenue, Seattle, WA 98101. EPA requests that, if at all possible, you contact the person listed in the
2. Copies of the State submission and EPA's technical support document are also available for public inspection during normal business hours, by appointment at the Oregon Department of Environmental Quality, 811 SW. Sixth Avenue, Portland, Oregon 97204-1390.
3. Electronic Access. You may access this
For public commenters, it is important to note that EPA's policy is that public comments, whether submitted electronically or on paper, will be made available for public viewing at the EPA Regional Office, as EPA receives them and without change, unless the comment contains copyrighted material, CBI, or other information whose 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 the official public rulemaking file. The entire printed comment, including the copyrighted material, will be available at the Regional Office for public inspection.
You may submit comments electronically, by mail, or through hand delivery/courier. To ensure proper receipt by EPA, identify the appropriate rulemaking identification number by including the text “Public comment on proposed rulemaking OR-02-002” in the subject line on the first page of your comment. Please ensure that your comments are submitted within the specified comment period. Comments received after the close of the comment period will be marked “late.” EPA is not required to consider these late comments.
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Do not submit information that you consider to be CBI electronically to EPA. You may claim information that you submit to EPA to be CBI by marking any part or all of that information as CBI (if you submit CBI on disk or CD-ROM, mark the outside of the disk or CD-ROM as CBI and then identify electronically within the disk or CD-ROM the specific information that is CBI). EPA will not disclose information so marked except in accordance with procedures set forth in 40 CFR part 2.
In addition to one complete version of the comment that includes any information claimed as CBI, a copy of the comment that does not contain the information claimed as CBI must be submitted for inclusion in the official public regional rulemaking file. If you submit the copy that does not contain CBI on disk or CD-ROM, mark the outside of the disk or CD-ROM clearly that it does not contain CBI. Information not marked as CBI will be included in the public file and available for public inspection without prior notice. If you have any questions about CBI or the procedures for claiming CBI, please consult the person identified in the
Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). This action merely approves State law as meeting Federal requirements and imposes no additional requirements beyond those imposed by State law. Accordingly, the Administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
This rule also does not have tribal implications because it will not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified by Executive Order 13175 (65 FR 67249, November 6, 2000). This action also does not have federalism implications because it does not have substantial direct effects on the States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of Government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). This action merely approves a state rule implementing a Federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. This rule also is not subject to Executive Order 13045 “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), because it is not economically significant.
In reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. In this context, in the absence of a prior existing requirement for the State to use voluntary consensus standards (VCS), EPA has no authority to disapprove a SIP submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a SIP submission, to use VCS in place of a SIP submission that otherwise satisfies the provisions of the Clean Air Act. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
The Congressional Review Act, 5 U.S.C. 801
Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by December 22, 2003. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)
Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Particulate matter, Reporting and recordkeeping requirements.
Air pollution control, National parks, Wilderness areas.
42 U.S.C. 7401
(c) * * *
(140) On November 4, 2002, the Oregon Department of Environmental Quality requested the redesignation of Klamath Falls to attainment for PM-10. The State's maintenance plan and the redesignation request meet the requirements of the Clean Air Act.
(i) Incorporation by reference.
(A) Oregon Administrative Rule 340-204-0040(3)(b) as effective October 8, 2002.
(a) Carbon Monoxide [Reserved]
(b) Lead. [Reserved]
(c) Nitrogen Dioxide. [Reserved]
(d) Ozone. [Reserved]
(e) Particulate Matter.
(1) EPA approves as a revision to the Oregon State Implementation Plan, the Klamath Falls PM-10 maintenance plan submitted to EPA on November 4, 2002.
(2) [Reserved]
(f) Sulfur Dioxide. [Reserved]
42 U.S.C. 7401
Federal Emergency Management Agency, Emergency Preparedness and Response Directorate, Department of Homeland Security.
Final rule.
This rule identifies communities, where the sale of flood insurance has been authorized under the National Flood Insurance Program (NFIP), that are suspended on the effective dates listed within this rule because of noncompliance with the floodplain management requirements of the program. If the Federal Emergency Management Agency (FEMA) receives documentation that the community has adopted the required floodplain management measures prior to the effective suspension date given in this rule, the suspension will be withdrawn by publication in the
The effective date of each community's suspension is the third date (“Susp.”) listed in the third column of the following tables.
If you wish to determine whether a particular community was suspended on the suspension date, contact the appropriate FEMA Regional Office or the NFIP servicing contractor.
Mike Grimm, Mitigation Division, 500 C Street, SW.; Room 412, Washington, DC 20472, (202) 646-2878.
The NFIP enables property owners to purchase flood insurance which is generally not otherwise available. In return, communities agree to adopt and administer local floodplain management aimed at protecting lives and new construction from future flooding. Section 1315 of the National Flood Insurance Act of 1968, as amended, 42 U.S.C. 4022, prohibits flood insurance coverage as authorized under the National Flood Insurance Program, 42 U.S.C. 4001
In addition, the Federal Emergency Management Agency has identified the special flood hazard areas in these communities by publishing a Flood Insurance Rate Map (FIRM). The date of the FIRM if one has been published, is indicated in the fourth column of the table. No direct Federal financial assistance (except assistance pursuant to the Robert T. Stafford Disaster Relief and Emergency Assistance Act not in connection with a flood) may legally be provided for construction or acquisition of buildings in the identified special flood hazard area of communities not participating in the NFIP and identified for more than a year, on the Federal Emergency Management Agency's initial flood insurance map of the community as having flood-prone areas (section 202(a) of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4106(a), as amended). This prohibition against certain types of Federal assistance becomes effective for the communities listed on the date shown in the last column. The Administrator finds that notice and public comment under 5 U.S.C. 553(b) are impracticable and unnecessary because communities listed in this final rule have been adequately notified.
Each community receives a 6-month, 90-day, and 30-day notification addressed to the Chief Executive Officer that the community will be suspended unless the required floodplain management measures are met prior to the effective suspension date. Since these notifications have been made, this final rule may take effect within less than 30 days.
Flood insurance, Floodplains.
42 U.S.C. 4001
Federal Communications Commission.
Final rule.
The Commission, on its own motion, editorially amends the Table of FM Allotments to specify the actual classes of channels allotted to various communities. The changes in channel classifications have been authorized in response to applications filed by licensees and permittees operating on these channels. This action is taken pursuant to Revision of Section 73.3573(a)(1) of the Commission's Rules Concerning the Lower Classification of an FM Allotment, 4 FCC Rcd 2413 (1989), and Amendment of the Commission's Rules to permit FM Channel and Class Modifications by Applications, 8 FCC Rcd 4735 (1993).
Effective October 21, 2003.
Kathleen Scheuerle, Media Bureau, (202) 418-2180.
This is a summary of the Commission's
Radio, Radio broadcasting.
47 U.S.C. 154, 303, 334, and 336.
Federal Communications Commission.
Final rule.
At the request of Jayson and Janice Fritz, this document substitutes Channel 289C3 for Channel 289C2 at Mason, Texas, reallots Channel 289C3 to Fredericksburg, Texas, and modifies the outstanding construction permit (File No. BPH-19960826MS) to specify operation on Channel 289C3 at Fredericksburg.
Effective November 17, 2003.
Robert Hayne, Mass Media Bureau (202) 418-2177.
This is a synopsis of the Commission's
Radio, Radio broadcasting.
47 U.S.C. 154, 303, 334 and 336.
Federal Communications Commission.
Final rule.
The Audio Division, at the request of Charles Crawford, allots Channel 232A at Cove, Arkansas, as the community's first local aural transmission service.
Effective November 17, 2003.
Federal Communications Commission, 445 Twelfth Street, SW., Washington, DC 20554.
Rolanda F. Smith, Media Bureau, (202) 418-2180.
This is a synopsis of the Commission's
Radio, Radio broadcasting.
47 U.S.C. 154, 303, 334 and 336.
Federal Communications Commission.
Final rule.
The Audio Division, at the request of Dana J. Puopolo, allots Channel 229A to Ridgecrest, California, as the community's fourth FM commercial service. See 68 FR 42663, July 18, 2003. Channel 229A can be allotted to Ridgecrest, in compliance with the Commission's minimum distance separation requirements at city reference coordinates. The reference coordinates for Channel 229A at Ridgecrest are 35-37-30 North Latitude and 117-40-12 West Longitude. A filing window for Channel 229A at Ridgecrest, California, will not be opened at this time. Instead, the issue of opening a filing window for this channel will be addressed by the Commission in a subsequent order.
Effective November 17, 2003.
Federal Communications Commission, 445 Twelfth Street, SW., Washington, DC 20554.
Rolanda F. Smith, Media Bureau, (202) 418-2180.
This is a synopsis of the Commission's
Radio, Radio broadcasting.
47 U.S.C. 154, 303, 334 and 336.
Federal Communications Commission.
Final rule.
The Audio Division, at the request of Charles Crawford, allots Channel 250C3 at Bangs, Texas, as the community's first local aural transmission service.
Effective November 17, 2003.
Federal Communications Commission, 445 Twelfth Street, SW., Washington, DC 20554.
Rolanda F. Smith, Media Bureau, (202) 418-2180.
This is a synopsis of the Commission's
Radio, Radio broadcasting.
47 U.S.C. 154, 303, 334 and 336.
Federal Aviation Administration, DOT.
Notice of proposed rulemaking (NPRM).
This document proposes to revise an existing airworthiness directive (AD), applicable to certain Bombardier Model CL-600-1A11 (CL-600), CL-600-2A12 (CL-601), and CL-600-2B16 (CL-601-3A, CL-601-3R, and CL-604) series airplanes, that currently requires repetitive inspections to find cracks of a certain bulkhead web of the fuselage at certain locations, and repair if necessary. The actions specified by that AD are intended to prevent cracking in the pressure bulkhead at frame station (FS) 409.00, which could result in uncontrolled depressurization of the airplane and/or reduced structural integrity of the fuselage. This action would provide an optional terminating modification for certain airplanes. This action is intended to address the identified unsafe condition.
Comments must be received by November 20, 2003.
Submit comments in triplicate to the Federal Aviation Administration (FAA), Transport Airplane Directorate, ANM-114, Attention: Rules Docket No. 2001-NM-267-AD, 1601 Lind Avenue, SW., Renton, Washington 98055-4056. Comments may be inspected at this location between 9 a.m. and 3 p.m., Monday through Friday, except Federal holidays. Comments may be submitted via fax to (425) 227-1232. Comments may also be sent via the Internet using the following address:
The service information referenced in the proposed rule may be obtained from Bombardier, Inc., Canadair, Aerospace Group, P.O. Box 6087, Station Centreville, Montreal, Quebec H3C 3G9, Canada. This information may be examined at the FAA, Transport Airplane Directorate, 1601 Lind Avenue, SW., Renton, Washington; or at the FAA, New York Aircraft Certification Office, 10 Fifth Street, Third Floor, Valley Stream, New York.
Serge Napoleon, Aerospace Engineer, Airframe and Propulsion Branch, ANE-171, FAA, New York Aircraft Certification Office, 10 Fifth Street, Third Floor, Valley Stream, New York; telephone (516) 256-7512; fax (516) 568-2716.
Interested persons are invited to participate in the making of the proposed rule by submitting such written data, views, or arguments as they may desire. Communications shall identify the Rules Docket number and be submitted in triplicate to the address specified above. All communications received on or before the closing date for comments, specified above, will be considered before taking action on the proposed rule. The proposals contained in this action may be changed in light of the comments received.
Submit comments using the following format:
• Organize comments issue-by-issue. For example, discuss a request to change the compliance time and a request to change the service bulletin reference as two separate issues.
• For each issue, state what specific change to the proposed AD is being requested.
• Include justification (
Comments are specifically invited on the overall regulatory, economic, environmental, and energy aspects of the proposed rule. All comments submitted will be available, both before and after the closing date for comments, in the Rules Docket for examination by interested persons. A report summarizing each FAA-public contact concerned with the substance of this proposal will be filed in the Rules Docket.
Commenters wishing the FAA to acknowledge receipt of their comments submitted in response to this action must submit a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket Number 2001-NM-267-AD.” The postcard will be date stamped and returned to the commenter.
Any person may obtain a copy of this NPRM by submitting a request to the FAA, Transport Airplane Directorate, ANM-114, Attention: Rules Docket No. 2001-NM-267-AD, 1601 Lind Avenue, SW., Renton, Washington 98055-4056.
On November 10, 1997, the FAA issued AD 97-24-02, amendment 39-10209 (62 FR 61436, November 18, 1997), applicable to certain Bombardier Model CL-600-1A11, -2A12, and -2B16 series airplanes, to require repetitive inspections to find cracks of a certain bulkhead web of the fuselage at certain locations, and repair if necessary. That action was prompted by mandatory continuing airworthiness information by a foreign civil airworthiness authority. The requirements of that AD are intended to detect and correct cracking in the pressure bulkhead at frame station (FS) 409.00, which could result in uncontrolled depressurization of the airplane and/or reduced structural integrity of the fuselage.
In the preamble to AD 97-24-02, we specified that we considered the requirements “interim action” and that the manufacturer was developing a modification to address the unsafe condition. That AD explained that we may consider further rulemaking if a modification is developed, approved, and available. The manufacturer now has developed such a modification, and we have determined that further rulemaking is indeed necessary; this
Bombardier has issued Service Bulletin 600-0680 (for Model CL-600-1A11 (CL-600) series airplanes), Service Bulletin 601-0503 (for Model CL-600-2A12 (CL-601) and CL-600-2B16 (CL-601-3A/-3R) series airplanes), and Service Bulletin 604-53-006 (for Model CL-600-2B16 (CL-604) series airplanes), all dated November 30, 1999. The service bulletins describe procedures for modification of the pressure bulkhead at FS 409.00. The modification includes an eddy current inspection for cracking of the bulkhead; reinforcement of the pressure bulkhead frame; and a pressure test, leak test, operational test, and functional test of all systems.
Transport Canada Civil Aviation (TCCA), which is the airworthiness authority for Canada, classified these service bulletins as mandatory and issued Canadian airworthiness directive CF-1997-16R2, dated May 31, 2001, in order to ensure the continued airworthiness of these airplanes in Canada.
These airplane models are manufactured in Canada and are type certificated for operation in the United States under the provisions of § 21.29 of the Federal Aviation Regulations (14 CFR 21.29) and the applicable bilateral airworthiness agreement. Pursuant to this bilateral airworthiness agreement, TCCA has kept the FAA informed of the situation described above. We have examined the findings of TCCA, reviewed all available information, and determined that AD action is necessary for products of this type design that are certificated for operation in the United States.
Since an unsafe condition has been identified that is likely to exist or develop on other airplanes of the same type design registered in the United States, the proposed AD would revise AD 97-24-02 to continue to require repetitive inspections to find cracks of a certain bulkhead web of the fuselage at certain locations, and repair if necessary. For certain airplanes, this proposed AD also would provide for an optional terminating modification for the repetitive inspections. Consistent with the findings of TCCA, the proposed AD would allow repetitive inspections to continue in lieu of the terminating action. In making this determination, we considered that long-term continued operational safety in this case will be adequately ensured by repetitive inspections to detect cracking before it represents a hazard to the airplane. The actions would be required to be accomplished in accordance with the service bulletins described previously, except as discussed below.
The Canadian airworthiness directive specifies reporting crack findings to the manufacturer; however, this proposed AD would not require such action.
The Accomplishment Instructions of the referenced service bulletins describe procedures for completing an Incorporation Notice. However, this proposed AD would not require such action.
In addition, although the service bulletins specify that operators may contact the manufacturer for disposition of certain repair conditions, this proposal would require operators to repair those conditions per a method approved by either the FAA or TCCA (or its delegated agent). In light of the type of repair that would be required to address the unsafe condition, and consistent with existing bilateral airworthiness agreements, we have determined that, for this proposed AD, a repair approved by either the FAA or TCCA would be acceptable for compliance with this proposed AD.
We have changed all references to a “detailed visual inspection” in the existing AD to a “detailed inspection” in this action.
There are approximately 237 airplanes of U.S. registry that would be affected by this proposed AD.
The inspections that are required by AD 97-24-02 take approximately 2 work hours per airplane to accomplish, at an average labor rate of $65 per work hour. Based on these figures, the cost impact of the currently required actions is estimated to be $130 per airplane, per inspection cycle.
The cost impact figure discussed above is based on assumptions that no operator has yet accomplished any of the proposed requirements of this AD action, and that no operator would accomplish those actions in the future if this AD were not adopted. The cost impact figures discussed in AD rulemaking actions represent only the time necessary to perform the specific actions actually required by the AD. These figures typically do not include incidental costs, such as the time required to gain access and close up, planning time, or time necessitated by other administrative actions.
The optional terminating modification, if done, would take between 125 and 300 work hours per airplane, depending on the airplane configuration, at an average labor rate of $65 per work hour. Required parts would be provided by the manufacturer at no cost to operators. Based on these figures, we estimate the cost of the modification to be between $8,125 and $19,500 per airplane.
The regulations proposed herein would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, it is determined that this proposal would not have federalism implications under Executive Order 13132.
For the reasons discussed above, I certify that this proposed regulation (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and (3) if promulgated, will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. A copy of the draft regulatory evaluation prepared for this action is contained in the Rules Docket. A copy of it may be obtained by contacting the Rules Docket at the location provided under the caption
Air transportation, Aircraft, Aviation safety, Safety.
Accordingly, pursuant to the authority delegated to me by the Administrator, the Federal Aviation Administration proposes to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) as follows:
1. The authority citation for part 39 continues to read as follows:
49 U.S.C. 106(g), 40113, 44701.
2. Section 39.13 is amended by removing amendment 39-10209 (62 FR 61436, November 18, 1997), and by adding a new airworthiness directive (AD), to read as follows:
(a) For Model CL-600-1A11 (CL-600) airplanes: Prior to the accumulation of 1,900 total landings, or within 100 landings after December 3, 1997 (the effective date of AD 97-24-02, amendment 39-10209), whichever occurs later, perform a detailed inspection to detect cracks at FS 409.00 of the bulkhead web (part number (P/N) 600-32014-71/-95/-105), in accordance with Canadair Challenger Service Bulletin 600-0679, dated September 12, 1997.
For the purposes of this AD, a detailed inspection is defined as: “An intensive visual examination of a specific structural area, system, installation, or assembly to detect damage, failure, or irregularity. Available lighting is normally supplemented with a direct source of good lighting at intensity deemed appropriate by the inspector. Inspection aids such as mirror, magnifying lenses, etc., may be used. Surface cleaning and elaborate access procedures may be required.”
(1) If no crack is detected, repeat the detailed inspection thereafter at intervals not to exceed 600 landings.
(2) If any crack is detected and if all three of the conditions specified in paragraphs (a)(2)(i), (a)(2)(ii), and (a)(2)(iii) of this AD are met, within 600 landings or 12 months after the crack is detected, whichever occurs first, repair the crack in accordance with a method approved by the Manager, New York Aircraft Certification Office (ACO), FAA. Until the repair is accomplished, repeat the detailed inspection at intervals not to exceed 100 landings.
(i) No more than one crack exists at each corner radius, as specified in the service bulletin; and
(ii) No crack extends under the angles having P/N 600-32014-13 and P/N 600-32014-15 on the aft side of the bulkhead web; and
(iii) No crack exists in angles having P/N 600-32014-13 and P/N 600-32014-15 on the aft side of the bulkhead web.
(3) If any crack other than that identified in paragraph (a)(2) of this AD is detected, prior to further flight, repair it in accordance with a method approved by the Manager, New York ACO.
(b) For Model CL-600-2A12 (CL-601), CL-600-2B16 (CL-601-3A/-3R), and CL-600-2B16 (CL-604) series airplanes: Prior to the accumulation of 1,100 total landings, or within 100 landings after December 3, 1997, whichever occurs later, perform a detailed inspection to detect cracks at FS 409.00 of the bulkhead web (P/N 600-32014-105/-137), in accordance with Canadair Challenger Service Bulletin 601-0501, dated September 12, 1997 (for Model CL-600-2A12 (CL-601) and CL-600-2B16 (CL-601-3A/-3R) series airplanes); or Canadair Challenger Service Bulletin 604-53-007, dated September 30, 1997 (for Model CL-600-2B16 (CL-604) series airplanes); as applicable.
(1) If no crack is detected, repeat the detailed inspection thereafter at intervals not to exceed 600 landings.
(2) If any crack is detected and if all three of the conditions specified in paragraphs (b)(2)(i), (b)(2)(ii), and (b)(2)(iii) of this AD are met, within 600 landings or 12 months after the crack is detected, whichever occurs first, repair the crack in accordance with a method approved by the Manager, New York ACO. Until the repair is accomplished, repeat the detailed inspection at intervals not to exceed 100 landings.
(i) No more than one crack exists at each corner radius, as specified in the service bulletin; and
(ii) No crack extends under the angles having P/N 600-32014-113 and P/N 600-32014-115 on the aft side of the bulkhead web; and
(iii) No crack exists in angles having P/N 600-32014-113 and P/N 600-32014-115 on the aft side of the bulkhead web.
(3) If any crack other than that identified in paragraph (b)(2) of this AD is detected, prior to further flight, repair it in accordance with a method approved by the Manager, New York ACO.
(c) For airplanes on which no crack has been found during accomplishment of any inspection required by AD 97-24-02; or on which the pressure bulkhead was not previously repaired: Modification of the pressure bulkhead at FS 409.00 (including inspection, installation of reinforcing material, and tests) by accomplishing all the actions specified in paragraphs 2.A. through 2.D. of the Accomplishment Instructions of Bombardier Service Bulletin 601-0503 (for Model CL-601 and CL-601-3A/-3R series airplanes), Service Bulletin 600-0680 (for Model CL-600 series airplanes), or Service Bulletin 604-53-006 (for Model CL-604 series airplanes); all dated November 30, 1999, per the applicable service bulletin, terminates the repetitive inspections required by this AD.
(d) If any crack is found during any inspection specified in paragraph (c) of this AD: Before further flight, repair in accordance with a method approved by the Manager, New York ACO; or Transport Canada Civil Aviation or its delegated agent.
(e) In accordance with 14 CFR 39.19, the Manager, New York ACO, is authorized to approve alternative methods of compliance for this AD.
The subject of this AD is addressed in Canadian airworthiness directive CF-1997-16R2, dated May 31, 2001.
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking.
This proposal would revise Class E airspace at Kalispell/Glacier Park International Airport, Kalispell, MT. Instrument Flight Rules (IFR) operations transitioning between Helena, MT, and Kalispell, MT, makes this proposal necessary. This additional airspace extending 1,200 feet or more above the surface of the earth is necessary to provide controlled airspace for the containment and safety of IFR flights transitioning between Helena, MT, and Kalispell/Glacier Park International Airport at Kalispell, MT.
Comments must be received on or before December 5, 2003.
Send comments on this proposal to the Docket Management System, U.S. Department of Transportation, Room Plaza 401, 400 Seventh Street, SW., Washington, DC 20590-0001. You must identify the docket number, FAA-2003-16214; Airspace Docket No. 03-ANM-11, at the beginning of your comments. You may also submit comments on the Internet at
An informal docket may also be examined during normal business hours at the Office of the Regional Air Traffic Division, Northwest Mountain Region, Federal Aviation Administration, Airspace Branch ANM-520, 1601 Lind Avenue, SW., Renton, WA 98055.
Interested parties are invited to participate in this proposed rulemaking by submitting such written data, views, or arguments, as they may desire. Comments that provide the factual basis supporting the views and suggestions presented are particularly helpful in developing reasoned regulatory decisions on the proposal. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy related aspects of the proposal. Communications should identify Docket No. FAA-2003-16214; Airspace Docket 02-ANM-11, and be submitted in triplicate to the address listed above. Commenters wishing the FAA to acknowledge receipt of their comments on this action must submit, with those comments, a self-addressed stamped postcard on which the following statement is made: “Comments to Airspace Docket No. FAA-2003-16214; Airspace Docket 02-ANM-11.” the postcard will be date/time stamped and returned to the commenter.
An electronic copy of this document may be downloaded through the Internet at
Additionally, any person may obtain a copy of this notice by submitting a request to the Federal Aviation Administration, 1601 Lind Avenue, SW., Renton, WA, 98055. Communications must identify both document numbers for this notice. Persons interested in being placed on a mailing list for future NPRMs should contact the FAA's Office of Rulemaking, (202) 267-9677, to request a copy of Advisory Circular No. 11-2A, Notice of Proposed Rulemaking Distribution System, which describes the application procedures.
This action amends Title 14 Code of Federal Regulations, part 71 (14 CFR part 71) by adding additional Class E airspace at Kalispell, MT. This additional airspace extending 1,200 feet or more above the surface of the earth is necessary to provide additional controlled airspace for the containment and safety of IFR flights transitioning between Helena, MT, and Kalispell/Glacieer Park International Airport Kalispell, MT.
Class E airspace areas are published in Paragraph 6005 of FAA Order 7400.9L, dated September 2, 2003, and effective September 16, 2003, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designations listed in this document would be published subsequently in this Order.
The FAA has determined that this proposed regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore, (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11013; February 26, 1979); and (3) does not warrant preparation of a Regulatory Evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this rule, when promulgated, will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Airspace, Incorporation by reference, Navigation (air).
Accordingly, pursuant to the authority delegated to me, the Federal Aviation Administration proposes to amend 14 CFR part 71 as follows:
1. The authority citation for 14 CFR part 71 continues to read as follows:
49 U.S.C. 106(g), 40103, 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959-1963 Comp., p. 389.
2. The incorporation by reference in 14 CFR 71.1 of the Federal Aviation Administration Order 7400.9L, Airspace Designations and Reporting Points, dated September 2, 2003, and effective September 16, 2003, is amended as follows:
That airspace extending upward from 700 feet above the surface within a 7-mile radius of Kalispell/Glacier Park International Airport, and within 4.8 miles each side of the 035° and 215° bearings from the Smith Lake NDB extending from the 7-mile radius to 10.5 miles southwest of the NDB; that airspace extending upward from 1,200 feet above the surface bounded by a line from lat. 47°30′00″ N., long. 112°37′30″ W.; to lat. 47°43′30″ N., long. lat. 112°37′30″ N., long. 48°07′30″ N., long. 113°30′00″ W to lat. 48°30′00″ N., long. 113°30′00″ W.; to lat. 48°30′00″ N., long. 116°03′35″ W to lat. 47°30′00″ N., long. 114°54′23″ W.; thence to point of origin; excluding Kalispell/Glacier Park International Airport Class D airspace, Class E2 airspace, and that airspace within Federal Airways airspace area.
Bureau of Industry and Security, Commerce.
Request for comments on foreign policy-based export controls.
The Bureau of Industry and Security (BIS) is reviewing the foreign policy-based export controls in the Export Administration Regulations to determine whether they should be modified, rescinded or extended. To
Comments must be received by November 21, 2003.
Written comments (three copies) should be sent to Sheila Quarterman, Regulatory Policy Division, Bureau of Industry and Security, Department of Commerce, P.O. Box 273, Washington, DC 20044. Alternatively, comments may be e-mailed to Sheila Quarterman at
Joan Roberts, Director, Foreign Policy Controls Division, Bureau of Industry and Security, Telephone: (202) 482-4252. Copies of the current Annual Foreign Policy Report to the Congress are available at
The current foreign policy-based export controls maintained by the Bureau of Industry and Security (BIS) are set forth in the Export Administration Regulations (EAR), parts 742 (CCL Based Controls), 744 (End-User and End-Use Based Controls) and 746 (Embargoes and Special Country Controls). These controls apply to a range of countries, items and activities including: high performance computers (§ 742.12); certain general purpose microprocessors for “military end-uses” and “military end-users” (§ 744.17); significant items (SI): hot section technology for the development, production, or overhaul of commercial aircraft engines, components, and systems (§ 742.14); encryption items (§ 742.15 and § 744.9); crime control and detection commodities (§ 742.7); specially designed implements of torture (§ 742.11); certain firearms included within the Inter-American Convention Against the Illicit Manufacturing of and Trafficking in Firearms, Ammunition, Explosives, and Other Related Materials (§ 742.17); regional stability commodities and equipment (§ 742.6); equipment and related technical data used in the design, development, production, or use of missiles (§ 742.5 and § 744.3); chemical precursors and biological agents, associated equipment, technical data, and software related to the production of chemical and biological agents (§ 742.2 and § 744.4) and various chemicals included in those controlled pursuant to the Chemical Weapons Convention (§ 742.18); activities of U.S. persons in transactions related to missile technology or chemical or biological weapons proliferation in named countries (§ 744.6); nuclear propulsion (§ 744.5); aircraft and vessels (§ 744.7); embargoed countries (part 746); countries designated as supporters of acts of international terrorism (§§ 742.8, 742.9, 742.10, 742.19, 746.2, 746.3, 746.4, and 746.7); specified items intended for Libyan aircraft (§ 744.8); certain entities in Russia (§ 744.10); and individual terrorists and terrorist organizations (§§ 744.12, 744.13 and § 744.14). Attention is also given in this context to the controls on nuclear-related commodities and technology (§§ 742.3 and 744.2), which are, in part, implemented under section 309(c) of the Nuclear Non Proliferation Act.
Under the provisions of section 6 of the Export Administration Act of 1979, as amended (EAA), export controls maintained for foreign policy purposes require annual extension. Section 6 of the EAA requires a report to Congress when foreign policy-based export controls are extended. The EAA expired on August 20, 2001. Executive Order 13222 of August 17, 2001 (3 CFR, 2001 Comp., p. 783 (2002)), which has been extended by successive Presidential Notices, the most recent being that of August 7, 2003 (68 FR 47833, August 11, 2003), continues the EAR and, to the extent permitted by law, the provisions of the EAA, in effect under the International Emergency Economic Powers Act (50 U.S.C. 1701-1706 (2000). The Department of Commerce, insofar as appropriate, is following the provisions of section 6 in reviewing foreign policy-based export controls, requesting public comments on such controls, and submitting a report to Congress.
In January 2003, the Secretary of Commerce, on the recommendation of the Secretary of State, extended for one year all foreign policy-based export controls then in effect.
To assure maximum public participation in the review process, comments are solicited on the extension or revision of the existing foreign policy-based export controls for another year. Among the criteria considered in determining whether to continue or revise U.S. foreign policy-based export controls are the following:
1. The likelihood that such controls will achieve the intended foreign policy purpose, in light of other factors, including the availability from other countries of the goods, software or technology proposed for such controls;
2. Whether the foreign policy purpose of such controls can be achieved through negotiations or other alternative means;
3. The compatibility of the controls with the foreign policy objectives of the United States and with overall United States policy toward the country subject to the controls;
4. Whether reaction of other countries to the extension of such controls by the United States is not likely to render the controls ineffective in achieving the intended foreign policy purpose or be counterproductive to United States foreign policy interests;
5. The comparative benefits to U.S. foreign policy objectives versus the effect of the controls on the export performance of the United States, the competitive position of the United States in the international economy, the international reputation of the United States as a supplier of goods and technology; and
6. The ability of the United States to enforce the controls effectively.
BIS is particularly interested in the experience of individual exporters in complying with the proliferation controls, with emphasis on economic impact and specific instances of business lost to foreign competitors. BIS is also interested in industry information relating to the following:
1. Information on the effect of foreign policy-based export controls on sales of U.S. products to third countries (
2. Information on controls maintained by U.S. trade partners. For example, to what extent do they have similar controls on goods and technology on a worldwide basis or to specific destinations?
3. Information on licensing policies or practices by our foreign trade partners which are similar to U.S. foreign policy-based export controls, including license review criteria, use of conditions, requirements for pre and post shipment verifications (preferably supported by examples of approvals, denials and foreign regulations).
4. Suggestions for revisions to foreign policy-based export controls that would (if there are any differences) bring them more into line with multilateral practice.
5. Comments or suggestions as to actions that would make multilateral controls more effective.
6. Information that illustrates the effect of foreign policy-based export controls on the trade or acquisitions by intended targets of the controls.
7. Data or other information as to the effect of foreign policy-based export controls on overall trade, either at the firm level or at the level of individual industrial sectors.
8. Suggestions as to how to measure the effect of foreign policy-based export controls on trade.
9. Information on the use of foreign policy-based export controls on targeted countries, entities, or individuals.
BIS is also interested in comments relating generally to the extension or revision of existing foreign policy-based export controls.
Parties submitting comments are asked to be as specific as possible. All comments received before the close of the comment period will be considered by BIS in reviewing the controls and developing the report to Congress.
All information relating to the notice will be a matter of public record and will be available for public inspection and copying. In the interest of accuracy and completeness, BIS requires written comments. Oral comments must be followed by written memoranda, which will also be a matter of public record and will be available for public review and copying.
Copies of the public record concerning these regulations may be requested from: Bureau of Industry and Security, Office of Administration, U.S. Department of Commerce, Room 6883, 1401 Constitution Avenue, NW., Washington, DC 20230; (202) 482-0637. This component does not maintain a separate public inspection facility. Requesters should first view BIS's Web site (which can be reached through
Postal Service.
Proposed rule.
This proposed rule would revise the
Submit comments on or before November 20, 2003.
Mail or deliver written comments to the Manager, Mailing Standards, U.S. Postal Service, 1735 N. Lynn Street, Room 3025, Arlington, VA 22209-6038. Copies of all written comments will be available for inspection and photocopying between 9 a.m. and 4 p.m., Monday through Friday, at the Postal Service Headquarters Library, 475 L'Enfant Plaza, SW., 11th Floor North, Washington, DC.
Joel Walker, Mailing Standards, United States Postal Service, (703) 292-3648.
The Postal Service is proposing this enhanced requirement because sender identification of all discount rate mailings would serve as a tool in identifying the senders of a large portion of the mailstream. It could also facilitate investigations into the origin of suspicious mail.
As background, two congressional committees urged the Postal Service to explore the concept of sender identification, including “the feasibility of using unique, traceable identifiers applied by the creator of the mail piece.” S. Rept. 107-212, p. 50; see also H. Rept. 107-575, p. 46. The President's Commission on the United States Postal Service recently recommended the use of sender identification for every piece of mail. “Embracing the Future,” Report of the President's Commission on the United States Postal Service (July 31, 2003) pp. 147-8. Requiring sender-identification for discount rate mail is an initial step on the road to intelligent mail.
It should be noted that the pieces in most discount rate mailings already bear some evidence of the identity of the sender. The sender's identity usually can be determined via the postage payment method used by the mailer, since all discount rate mailings must have postage paid using permit imprints, precanceled stamps, or meter postage.
Except for a company permit imprint format, mailers who pay postage using regular permit imprints must display an indicia on each mailpiece that shows the permit imprint number and the city and state where the permit is held. Mailpieces bearing a company permit imprint (which do not require the indicia to show the permit imprint number and the city and state of issue) must display the sender's domestic return address on each mailpiece as stated in current DMM A010.4.3. Mailers who pay postage on their discount rate mailings using precanceled stamps also are required to display the sender's domestic return address on each mailpiece. For discount rate mailings that bear meter postage, the meter imprint or indicia on each mailpiece must contain information that can be used to identify the name and address of the meter license holder.
In this proposed rule, the Postal Service seeks to enhance mail security by requiring that all discount mail be “sender identified.” Specifically, the Postal Service proposes revisions to the mailing standards in DMM E050, E110, E211, E610, and E710. The revision to DMM E050 would state that franked mail sent at discount rates would be considered sender-identified mail. The revisions to DMM E110, E211, E610, and E710 would require all discount rate mailings to meet a sender-identification requirement. Since many discount rate mailings already meet this requirement, the Postal Service proposal would have little impact on most discount rate mailers. However, it is likely that some discount rate mailers may need to change their current procedures to comply with the proposed sender-identification requirement. If the requirement is adopted, its effect would be slightly tighter requirements for identifying the sender of a discount rate mailing.
The proposed rule would further enhance existing requirements by specifically requiring that all discount rate mailings allow a reasonable means for identifying the sender of a mailpiece sent at a discount postage rate.
Under this proposal, sender-identified mail would include all mailpieces that are part of a First-Class Mail, Periodicals, Standard Mail, or Package Services mailing that is eligible for and claims any discounted postage rate. To be considered as sender-identified, each discount rate mailpiece would be required to meet one of the following requirements:
• Postage paid using a permit imprint or metered postage: If the permit imprint permit or meter license is not issued in the same name as that of the sender (
(a) Each mailpiece must display a domestic return address that is the actual address of the sender (
(b) The permit imprint holder or meter licensee must maintain adequate records that indicate the actual name and address of the sender (
• Postage paid using precanceled stamps: Each mailpiece must bear a domestic return address. If the return address is not the address of the precanceled stamp permit holder, the party located at the return address shown on the mailpiece must maintain adequate records that indicate the actual name and address of the sender (
Although exempt from the notice and comment requirements of the Administrative Procedure Act [5 U.S.C. of 553(b), (c)] regarding proposed rulemaking by 39 U.S.C. 410(a), the Postal Service invites public comment on the following proposed revisions to the
Postal Service.
1. The authority citation for 39 CFR part 111 continues to read as follows:
5 U.S.C. 552(a); 39 U.S.C. 101, 401, 403, 404, 414, 416, 3001-3011, 3201-3219, 3403-3406, 3621, 3626, 5001.
2. Amend the following sections of the
Placement of the written or printed facsimile signature or other markings specified in Exhibit 1.1 meets the sender-identified requirement for discount rate franked mailings made under E100, E600, and E700.
To be eligible for any First-Class Mail discount postage rates under E130 or E140, all mailpieces must identify the sender. Postage must be paid using a permit imprint, meter, or precanceled stamp. Sender-identified mail must meet the requirements in 4.2, 4.3, or 4.4.
If the permit imprint appearing on discount rate First-Class Mail pieces is not issued in the same name as that of the sender (
a. Each mailpiece must display a domestic return address that is the actual address of the sender (
b. The permit imprint holder must maintain adequate records that indicate the actual name and address of the sender (
Each mailpiece bearing precanceled stamps and sent at a First-Class Mail discount postage rate must bear a domestic return address. If the return address is not the address of the precanceled stamp permit holder the party located at the return address shown on the mailpiece must maintain adequate records that indicate the actual name and address of the sender (
To be eligible for any Periodicals discount postage rates under E217, E220, E230, E240, E250, E260, and E270, all mailpieces must identify the sender. A Periodicals publication that bears a properly prepared identification statement as required in E211 meets the sender-identified requirement.
To be eligible for claiming any Standard Mail discount postage rates under E620, E630, E640, E650, and E670, all mailpieces must identify the sender. Postage must be paid using a permit imprint, meter, or precanceled stamp. Sender-identified mail must meet the requirements in 5.2 or 5.3.
If the permit imprint or meter indicia appearing on discount rate Standard Mail pieces is not issued in the same name as that of the sender (
a. Each mailpiece must display a domestic return address that is the actual address of the sender (
b. The permit imprint holder or meter licensee must maintain adequate records that indicate the actual name and address of the sender (
Each mailpiece bearing precanceled stamps and sent at a Standard Mail discount rate must bear a domestic return address. If the return address is not the address of the precanceled stamp permit holder, the party located at the return address shown on the mailpiece must maintain adequate records that indicate the actual name and address of the sender (
To be eligible for any Package Services discount postage rates under E712, E713, E714, E751, E752, and E753, all mailpieces must identify the sender. Postage must be paid using a permit imprint, meter, or precanceled stamp. Sender-identified mail must meet the requirements in 4.2 or 4.3.
If the permit imprint or meter indicia appearing on discount postage rate Package Services mailpieces is not issued in the same name as that of the sender (
a. Each mailpiece must display a domestic return address that is the actual address of the sender (
b. The permit imprint holder or meter licensee must maintain adequate records that indicate the actual name and address of the sender (
Each mailpiece bearing precanceled stamps and sent at a Package Services discount postage rate must bear a domestic return address. If the return address is not the address of the precanceled stamp permit holder, the party located at the return address shown on the mailpiece must maintain adequate records that indicate the actual name and address of the sender (
We will publish an appropriate amendment to 39 CFR 111 to reflect these changes if the proposal is adopted.
Environmental Protection Agency (EPA).
Notice of meeting of Negotiated Rulemaking Committee on All Appropriate Inquiry.
The Environmental Protection Agency, as required by the Federal Advisory Committee Act (Pub. L. 92-463), is announcing the date and location of an upcoming meeting of the Negotiated Rulemaking Committee On All Appropriate Inquiry.
A meeting of the Negotiated Rulemaking Committee On All Appropriate Inquiry is scheduled for November 12 through November 14, 2003. The location for the meeting is provided below. Dates and locations of subsequent meetings will be announced in later notices.
The meeting will take place at the headquarters office of the National Association of Home Builders, 1201 15th Street, NW., Washington, DC 20005. The meeting is scheduled to begin at 8:30 a.m. and end at 4:30 p.m. on each day.
Persons needing further information should contact Patricia Overmeyer of EPA's Office of Brownfields Cleanup and Redevelopment, 1200 Pennsylvania Ave., NW., Mailcode 5105T, Washington, DC 20460, (202) 566-2774, or
Under the Small Business Liability Relief and Brownfields Revitalization Act, EPA is required to develop standards and practices for carrying out all appropriate inquiry. The Federal Advisory Committee meeting is for the purpose of negotiating the contents of a proposed regulation setting federal standards and practices for conducting all appropriate inquiry. At its meeting on November 12, 13, and 14, 2003, the Committee's agenda will include a continuation of substantive deliberations on the proposed rulemaking including discussions on recommendations for proposed regulatory language for addressing each of the criteria established by Congress in the Small Business Liability Relief and Brownfields Revitalization Act amendments to CERCLA (101)(35)(B)(iii).
All meetings of the Negotiated Rulemaking Committee are open to the public. There is no requirement for advance registration for members of the public who wish to attend or make comments at the meeting. Opportunity for the general public to address the Committee will be provided starting at 2:30 p.m. on each day.
Environmental Protection Agency (EPA).
Reopening of public comment period.
In this document, we are reopening the public comment period on the Proposed Rule to Implement the 8-Hour Ozone National Ambient Air Quality Standard (NAAQS or standard) that was published on June 2, 2003 (68 FR 32802) to solicit additional comment on alternative approaches for classifying ozone nonattainment areas, based on comments received during the comment period. The comment period on the proposed rule originally closed on August 1, 2003. Based on comments received on the proposed rule, we are reconsidering how to classify areas and are giving the public the opportunity to comment on two alternative strategies for classifying areas.
Comments must be received on or before November 5, 2003.
All comments should be submitted to Docket #OAR 2003-0079. When mailing documents, comments, or requests to the EPA Docket Center through the U.S. Postal Service, please use the following address: U.S. Environmental Protection Agency, EPA West (Air Docket), 1200 Pennsylvania Avenue, NW., Mail Code: 6102T, Washington, DC 20460. To mail comments or documents through a courier service, the mailing address is: EPA Docket Center (Air Docket), U.S. Environmental Protection Agency, 1301 Constitution Avenue, NW., Room: B108; Mail Code: 6102T, Washington, DC 20460. The normal business hours are 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding Federal holidays. Comments can be submitted to the address above, by fax (202) 566-1741, or by e-mail to
Mr. John Silvasi, Office of Air Quality Planning and Standards, U.S. Environmental Protection Agency, Mail Code C539-02, Research Triangle Park, NC 27711, phone number (919) 541-5666 or by e-mail at:
1. Docket. EPA has established an official public docket for this action under Docket ID Number OAR 2003-0079. The official public docket consists of the documents specifically referenced in this action, any public comments received, and other information related to this action. Although a part of the official docket, the public docket does not include Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. The official public docket is the collection of materials that is available for public viewing at the Air and Radiation 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 Public Reading Room is (202) 566-1744, and the telephone number for the Air and Radiation Docket is (202) 566-1742).
2. Electronic Access. You may access this
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
Certain types of information will not be placed in the EPA Dockets. Information claimed as CBI and other information whose disclosure is restricted by statute and which, therefore, is not included in the official public docket, will not be available for public viewing in EPA's electronic public docket. EPA's policy is that copyrighted material will not be placed in EPA's electronic public docket but will be available only in printed, paper form in the official public docket. Although not all docket materials may be available electronically, you may still access any of the publicly available docket materials through the docket facility identified in Unit I.A.1.
For public commenters, it is important to note that EPA's policy is that public comments, whether submitted electronically or in paper, will be made available for public viewing in EPA's electronic public docket as EPA receives them and without change, unless the comment contains copyrighted material, CBI, or other information whose 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 EPA's electronic public docket. The entire printed comment, including the copyrighted material, will be available in the public docket.
Public comments submitted on computer disks that are mailed or delivered to the docket will be transferred to EPA's electronic public docket. Public comments that are mailed or delivered to the Docket will be scanned and placed in EPA's electronic public docket. Where practical, physical objects will be photographed, and the photograph will be placed in EPA's electronic public docket along with a brief description written by the docket staff.
You may submit comments electronically, by mail, by facsimile, or through hand delivery/courier. To ensure proper receipt by EPA, identify the appropriate docket identification number in the subject line on the first page of your comment. Please ensure that your comments are submitted within the specified comment period. Comments received after the close of the comment period will be marked “late.” EPA is not required to consider these late comments.
1.
i. EPA Dockets. Your use of EPA's electronic public docket to submit comments to EPA electronically is EPA's preferred method for receiving comments. Go directly to EPA Dockets at
ii. E-mail. Comments may be sent by electronic mail (e-mail) to
iii. Disk or CD ROM. You may submit comments on a disk or CD ROM that you mail to the mailing address identified in Unit I.B.2 below. These electronic submissions will be accepted in WordPerfect or ASCII file format. Avoid the use of special characters and any form of encryption.
2. By Mail. Send your comments to: Air and Radiation Docket, U.S. Environmental Protection Agency, Mail Code: 6102T, 1200 Pennsylvania Ave., NW., Washington, DC, 20460, Attention Docket ID No. OAR 2003-0079.
3. By Hand Delivery or Courier. Deliver your comments to: Air and Radiation Docket, U.S. Environmental Protection Agency, 1301 Constitution Avenue, NW., Room: B102, Washington, DC 20004, Attention Docket ID No. OAR 2003-0079. Such deliveries are only accepted during the Docket's normal hours of operation as identified in Unit I.A.1.
4. By Facsimile. Fax your comments to: 202-566-1741, Attention Docket ID No. OAR 2003-0079.
You may find the following suggestions helpful for preparing your comments:
1. Explain your views as clearly as possible.
2. Describe any assumptions that you used.
3. Provide any technical information and/or data you used that support your views.
4. If you estimate potential burden or costs, explain how you arrived at your estimate.
5. Provide specific examples to illustrate your concerns.
6. Offer alternatives.
7. Make sure to submit your comments by the comment period deadline identified.
8. To ensure proper receipt by EPA, identify the appropriate docket identification number in the subject line on the first page of your response. It would also be helpful if you provided the name, date, and
On June 2, 2003 (68 FR 32802), we proposed options for implementing the 8-hour ozone NAAQS, including two different classification options. Classifications establish which requirements apply to individual nonattainment areas and the maximum timeframe for areas to attain. Option 1 would place all 8-hour ozone nonattainment areas into subpart 2 and would classify areas in accordance with table 1 in section 181 of the CAA as modified by EPA to reflect the 8-hour NAAQS. Option 2 would place areas that are designated nonattainment for the 8-hour ozone standard under subpart 1 or subpart 2 (of part D, title I) based on the area's 1-hour ozone design value. Areas placed under subpart 2 would be classified in accordance with table 1 in section 181 of the Clean Air Act (CAA) as modified by EPA to reflect the 8-hour NAAQS. (In general, subpart 1 contains less prescriptive requirements for air quality planning than does subpart 2.) We indicated a preference for classification option 2 because it would provide more flexibility to States and Tribes as they address their unique air quality problems.
We received many comments concerning the classification options we proposed. A number of commenters favored option 2, indicating that they believed it provided needed flexibility in implementing the standard. Other commenters favored option 1, indicating that they believed that the Supreme Court ruling established a preference for subpart 2 and, therefore, it was not appropriate to classify areas under subpart 1. Northeast States and some other States, as well as environmental organization commenters,
Several other commenters suggested new options or variants of option 2. There were two key concerns that seemed to be the basis for most of these comments. First, many commenters were concerned that under EPA's option 2, some areas classified under subpart 1 could have worse 8-hour air quality than areas classified under subpart 2.
In considering the comments on this issue, we identified several suggestions that we believe deserve further consideration as they may address some of the above-noted concerns.
API's suggested alternatives are as follows:
• Maintain a rebuttable presumption that an area's 1-hour classification would be retained under the 8-hour standard if the 1-hour classification was higher than the 8-hour classification.
• Translate the classification table using only one-half the percentage above the standard that each statutory classification threshold (or cutpoint) represents.
• Use a distribution of classifications that mirrors more closely the distribution of areas in the original 1991 classifications.
While each of these alternatives would result in more areas being placed in higher classifications, EPA believes that the second alternative would more likely result in classifications that better reflect an area's 8-hour ozone problem.
3.
The second alternative approach, Alternative B, would address the issues of equity between subpart 1 and subpart 2 areas with a structure that is closer to that of our June 2, 2003 proposal. In order to provide sufficient time for attainment, and similar to Alternative A above, we would reduce the range of design values that comprise a classification (
• Areas with 1-hour ozone design values of 0.121 ppm or greater would be covered under subpart 2 and would be classified with a revised classification table reflecting the 8-hour ozone NAAQS and starting at 0.085 ppm. The range for each classification would be determined by using 50 percent of the range in Table 1 of section 181.
• Areas meeting both of the following criteria would also be covered under subpart 2:
• All other areas with a 1-hour design value of less than 0.121 ppm would be covered under subpart 1.
This approach would significantly reduce the number of areas under subpart 1 that have an 8-hour design value greater than an area under subpart 2, but not to the extent of Alternative A above. In addition, it would place several areas in higher classifications, better reflecting the areas' air quality problems and the time the areas need to attain the 8-hour standard.
Table 1 below illustrates how a classification table (that would apply in place of Table 1 in section 181 of the CAA) could be structured for Alternatives A and B. Columns A through E appeared in the June 2, 2003 proposed rule. Column F presents 50 percent of the percentages of column D. Columns G and H present the classification thresholds that could apply for Alternatives A and B.
The June 2, 2003 proposed rule used hypothetical nonattainment areas for evaluation of different classification approaches. These were documented in the report cited in the June 2, 2003 notice
Table 2 below provides a comparison between our proposed option 2 (without the incentive feature) (row A) and Alternatives A and B (rows B and C respectively); row D provides for reference the distribution of the original set of classifications of 1-hour nonattainment areas in 1991. It should be noted that under either alternative approach, compared with our June 2, 2003 preferred approach, fewer areas would be covered under subpart 1.
In our June 2, 2003, proposal, classification Option 2 relied on the lowest 1-hour design value in the Clean Air Act's classification table to
If we change our classification scheme to have a narrower range for each classification, we may need to modify the provisions for the 5 percent “reclassification” feature of section 181(a)(4) to reflect that change. The apparent intent of Congress was to allow States to request a different classification if an area's design value was within 5 percent of a higher or lower classification threshold. That was based on the original threshold values, which were certain percentages above the level of the 1-hour standard. Our June 2, 2003 proposal would have retained the original percentages for the classification table based on 8-hour average design values. If we adopt a classification table based on lower percentages above the standard, the adjustment feature might have to be modified to keep the same relative “window” of adjustment. For instance, using 100 percent of the percentages between the 1-hour design value thresholds, we would use a 5 percent adjustment, but using only 50 percent of those percentages, we may want to use only a 2.5 percent adjustment, since the thresholds themselves are half as large.
As noted above, one option for addressing concerns that our proposed option 2 may not have provided classifications high enough to provide adequate time for some areas to attain the 8-hour standard was to use only half (50 percent) of the percentages above the 1-hour standard calculated for each of the classification thresholds. The commenters' rationale for the 50 percent adjustment was that the 8-hour standard is more stringent than the 1-hour standard and that past air quality trends information provided by the commenter for 11 metropolitan areas showed that, on average, 8-hour average ozone concentrations declined over the 1998-2002 period at about half the rate that 1-hour averages declined. Thus, we would expect attainment for areas with 8-hour values a certain percentage above the standard to take relatively more time to attain the 8-hour standard than areas with 1-hour values the same percentage above the 1-hour standard would take to attain the 1-hour standard. However, we could use another appropriate percentage that may be based on how soon areas are expected to attain the 8-hour standard based on measures that are currently in effect or are scheduled to go into effect. EPA is soliciting comments on other possible adjustments that may place areas in classifications that better reflect their 8-hour air quality problem and the time needed to attain.
42 U.S.C. 7408; 42 U.S.C. 7410; 42 U.S.C. 7501-7511f; 42 U.S.C. 7601(a)(1).
Environmental Protection Agency (EPA).
Proposed rule.
On November 4, 2002, the State of Oregon submitted a PM-10 maintenance plan for Klamath Falls to EPA for approval and concurrently requested that EPA redesignate the Klamath Falls nonattainment area to attainment for the National Ambient Air Quality Standard (NAAQS) for particulate matter with an aerodynamic diameter of less than ten micrometers (PM-10). In this action, EPA is proposing to approve the maintenance plan and to redesignate the Klamath Falls PM-10 nonattainment area to attainment.
Comments on this proposed rule must be received in writing by November 20, 2003.
Comments may be submitted either by mail or electronically. Written comments should be mailed to Steven K. Body, Office of Air Quality, (OAQ-107), EPA Region 10, 1200 Sixth Ave., Seattle Washington 98101. Electronic comments should be sent either to
Copies of the documents relevant to this action are available for public inspection between 8 a.m. and 4 p.m., Monday through Friday at the following office: United States Environmental Protection Agency, Region 10, Office of Air Quality, 1200 Sixth Ave., Seattle WA 98101.
Steven K. Body, Office of Air Quality, (OAQ-107), EPA Region 10, 1200 Sixth Ave., Seattle, WA 98101, (206) 553-0782, or
In the Final Rules section of this
For additional information see the direct final rule, of the same title, published in the rules section of this
Environmental Protection Agency (EPA).
Proposed rule.
Today's action consists of three distinct but related proposals briefly characterized here and discussed in detail below in the supplementary information section of this action. First, the EPA proposes to grant final authorization to the Commonwealth of Massachusetts for revisions to its hazardous waste program under the Resource Conservation and Recovery Act (RCRA). The revisions consist of updated State regulations covering hazardous waste definitions and miscellaneous provisions, provisions for the identification and listing of hazardous wastes, and standards for hazardous waste generators, which correspond to RCRA Consolidated Checklists C1, C2 and C3, respectively. These State regulations are being updated to address most Federal RCRA requirements listed in Checklists C1, C2 and C3 through at least July 1, 1990. These State regulations have been determined by the EPA to meet the requirements for authorization (including equivalency) as set forth in the EPA's current regulations.
Second, the State regulations submitted for authorization also include comprehensive regulations governing hazardous wastes being recycled on-site by generators. Although these State regulations differ in several respects
Third, the EPA is proposing to extend the expiration date of site-specific regulations previously adopted by the EPA under the eXcellence and Leadership program (Project XL) allowing alternative RCRA generator requirements to be followed for laboratories at certain universities in Massachusetts (and Vermont). The EPA is also proposing (as part of this same rulemaking) to then authorize the Massachusetts regulations which track these EPA regulations. The EPA already has authorized the Vermont regulations which track these EPA regulations and expects to extend the authorization of the Vermont regulations through a separate rulemaking.
Comments on the proposed rule must be received on or before November 20, 2003. Comments submitted electronically will be considered timely submitted if they are received by 11:59 p.m. (Eastern time) on the deadline date. Commenters may request a public hearing by November 4, 2003.
Written comments (including requests for hearings) should be mailed to Robin Biscaia, Hazardous Waste Unit, EPA Region I, One Congress St., Suite 1100 (CHW), Boston, MA 02114-2023, or e-mailed to:
Dockets containing copies of the Commonwealth of Massachusetts' revision application, the materials which the EPA used in evaluating the revision, and materials relating to the proposed State-specific and site-specific Federal regulation changes, have been established at the following two locations: (i) Massachusetts Department of Environmental Protection Library, One Winter Street—2nd Floor, Boston, MA 02108, business hours Monday through Friday 9 a.m. to 5 p.m., tel: (617) 292-5802; and (ii) EPA Region I Library, One Congress Street—11th Floor, Boston, MA 02114-2023, business hours Monday through Thursday 10 a.m.—3 p.m., tel: (617) 918-1990. Records in these dockets are available for inspection and copying during normal business hours.
Robin Biscaia, Hazardous Waste Unit, EPA Region I, One Congress St., Suite 1100 (CHW), Boston, MA 02114-2023, tel: (617) 918-1642, e-mail:
States with final authorization under section 3006(b) of RCRA, 42 U.S.C. 6926(b), have a continuing obligation to maintain a hazardous waste program that is equivalent to, consistent with, and no less stringent than the Federal hazardous waste program. As the Federal hazardous waste program changes, the States must revise their programs and apply for authorization of the revisions. Revisions to State hazardous waste programs may be necessary when Federal or State statutory or regulatory authority is modified or when certain other changes occur. Most commonly, States must revise their programs because of changes to EPA's regulations in 40 Code of Federal Regulations (CFR) parts 124, 260 through 266, 268, 270, 273 and 279.
The Commonwealth of Massachusetts initially received Final Authorization on January 24, 1985, effective February 7, 1985 (50 FR 3344), to implement its base hazardous waste management program. The authorized base program State regulations currently remain in effect and generally track Federal hazardous waste requirements through at least July 1, 1984. In addition, the EPA previously has authorized particular Massachusetts regulations which address several of the EPA requirements adopted after July 1, 1984. Specifically, on September 30, 1998, the EPA authorized Massachusetts to administer the Satellite Accumulation rule, effective November 30, 1998 (63 FR 52180). Also, on October 12, 1999, the EPA authorized Massachusetts to administer the Toxicity Characteristics rule (except with respect to Cathode Ray Tubes), and the Universal Waste rule, effective immediately (64 FR 55153). Finally, on November 15, 2000, the EPA granted interim authorization for Massachusetts to regulate Cathode Ray Tubes under the Toxicity Characteristics rule through January 1, 2003, effective immediately (65 FR 68915). This interim authorization subsequently was extended to run through January 1, 2006 (67 FR 66338, October 31, 2002).
The EPA is proposing to authorize Massachusetts regulations which will update the State's hazardous waste program. The proposed State regulations cover hazardous waste definitions and miscellaneous provisions, provisions for the identification and listing of hazardous wastes, and standards for hazardous waste generators, which correspond to RCRA Consolidated Checklists C1, C2 and C3, respectively. The State regulations are being updated to address most Federal RCRA requirements listed in Checklists C1, C2 and C3 through at least July 1, 1990. The EPA is proposing to authorize these changes. In addition to addressing requirements in Checklists C1, C2 and C3 not previously covered by authorized State regulations, the proposed State regulations make some changes to the previously authorized Satellite Accumulation, Universal Waste rule and Toxicity Characteristics rule regulations. The EPA also is proposing to authorize these changes. In addition, the proposed State regulations include some State initiated changes to previously authorized Base Program regulations (
The specific RCRA program revisions for which the EPA proposes to authorize the Commonwealth of Massachusetts are listed in the table below. The Federal requirements in the table are identified by their checklist numbers and rule descriptions. The following abbreviation is used in defining analogous state authority: CMR = Code of Massachusetts Regulations. The citations in the table are to the CMR provisions as recently proposed to be adopted/amended by the MADEP in Massachusetts Register No. 983 (September 26, 2003). The EPA expects to authorize these provisions through a final Federal rule once they are adopted in final form by the MADEP through a final State rule, if the final State regulations are the same as the proposed State regulations. If the final State regulations are different from the proposed State regulations, the EPA expects to authorize them (without an additional round of public comment) if but only if the final regulations continue to meet standard authorization requirements and are a logical outgrowth of the proposed regulations.
Following review of the proposed Massachusetts regulations, the EPA has determined that they are equivalent to, no less stringent than and consistent with the Federal program. The reasons for these determinations are set forth in the Administrative Docket, which is available for public review. Many of the proposed State regulations track Federal requirements virtually identically. Others differ from the Federal regulations in particular details, but have been determined by the EPA to be equivalent to the Federal regulations in providing the same (or greater) overall level of environmental protection with respect to each Federal requirement. The resolution of various issues relating to the proposed State regulations is recorded in an EPA Memorandum dated February 14, 2003 entitled “Comments on Proposed Massachusetts RCRA Regulations” and an EPA Memorandum dated March 31, 2003 entitled “Resolution of Issues Regarding Proposed Massachusetts RCRA Regulations.”
Future updates of the State's regulations will need to address requirements covered by Checklists C1 through C3 adopted after July 1, 1990 and requirements covered by Checklists C4 through C10 adopted since July 1, 1984. The EPA has not reviewed and is not currently proposing to authorize changes the State may have made to Base Program regulations relating to Checklists C4—C10. (Note, Checklists C4 through C10 address EPA provisions found in 40 CFR parts 263, 264, 265, 266, 268, 270, 124 and 279). Also not covered in the current proposed authorization are some rules issued by the EPA before July 1, 1990 which apply in part to generators, namely the 1986 Radioactive Mixed Waste rule/interpretation, the various rules relating to Land Disposal Restrictions (“LDRs”), and the 1990 Organics Air Emissions rule (“AA” and “BB” rule). Also not covered in the current proposed authorization are sector-specific rules that the MADEP has adopted for printers, photo processors and dry cleaners under its Environmental Results Program (“ERP”). Although many sources in these sectors are subject to RCRA requirements, the MADEP has advised the EPA that the ERP regulations have not made any changes to the hazardous waste management requirements applicable to these sectors, and has not submitted the ERP regulations for authorization at this time. Also not covered in the current proposed authorization is the proposed State regulation at 310 CMR 30.104(3)(d) relating to research facilities. That proposed regulation relates to an exemption from full Treatment, Storage, Disposal Facility (“TSDF”) requirements found at 310 CMR 30.864. The EPA will review that research facility provision (and the related exemption) when the MADEP submits updated regulations for TSDFs (Consolidated Checklists C5, C6 and C9). Also not covered in the current proposed authorization is the proposed State definition of “municipal or industrial wastewater treatment facility permitted under M.G.L. c. 21, sec. 43” in 310 CMR 30.010. That proposed definition relates to an exemption from full TSDF requirements found at 310 CMR 30.801(4). The EPA will review this definition (and the related exemption) when the MADEP submits updated regulations for TSDFs.
The most significant differences between the proposed State rules and the Federal rules are summarized below. It should be noted that this summary does not describe every difference, or every detail regarding the differences that are described. Members of the regulated community are advised to read the complete regulations to ensure that they understand all of the requirements with which they will need to comply.
There are aspects of the Massachusetts program which are more stringent than the Federal program. All of these more stringent requirements are or will become part of the federally enforceable RCRA program when authorized by the EPA, and must be complied with in addition to the State requirements which track the minimum Federal requirements. These more stringent requirements include the following:
• Massachusetts does not follow the EPA interpretation allowing Large Quantity Generators and Small Quantity Generators to conduct treatment without permits in accumulation tanks and containers.
• Massachusetts imposes various requirements regarding storage of hazardous wastes by generators which are more stringent than Federal requirements. For example, Massachusetts requires that labels on tanks and containers include identification of the hazardous wastes and the type of hazards associated with the wastes, as well as tracking the Federal requirement that the labels include the words “hazardous waste.”
• In addition, Massachusetts specifies recordkeeping requirements to document compliance with requirements in some circumstances where the recordkeeping is not expressly required under the Federal regulations,
• Massachusetts imposes spill containment requirements for container areas (not just for tanks as in the Federal regulations), including a requirement that indoor containers be located on an impervious base and a requirement that outdoor containers have full secondary containment.
• Massachusetts requires security measures and posting of signs at hazardous waste storage areas, in addition to the labeling of individual tanks and containers as required by the Federal regulations.
• Massachusetts does not allow any storage of hazardous wastes in open tanks, whereas the Federal regulations allow such storage except when otherwise required by the 40 CFR parts 264 and 265, subpart CC hazardous air emission rules.
• Massachusetts specifies requirements for Very Small Quantity Generators (“VSQGs”) (Federal Conditionally Exempt Small Quantity Generators) which go beyond the Federal requirements for conditional exemption. For example, Massachusetts specifies safe storage practices for VSQGs whereas the Federal regulations regarding tank and container storage apply only to Large Quantity Generators (“LQGs”) and Small Quantity Generators (“SQGs”).
• In addition, Massachusetts prohibits VSQGs from generating or accumulating any acutely hazardous wastes, whereas the Federal regulations allow such generators to accumulate up to one kilogram of such wastes.
• Finally, VSQG hazardous wastes may be sent to municipal solid waste landfills under the Federal program but not under the Massachusetts program.
There also are aspects of the Massachusetts program which are broader in scope than the Federal program. The State requirements which are broader in scope are not considered to be part of the Federally enforceable RCRA program. However, they are fully enforceable under State law and must be complied with by sources within Massachusetts. These broader in scope requirements include the following:
• As further discussed in part II, below, Massachusetts designates and regulates as hazardous many recyclable materials not regulated as hazardous wastes under the Federal RCRA program, in addition to regulating those hazardous recyclable materials that are regulated as hazardous wastes in the Federal program.
• Massachusetts regulates both Centers and Events which collect household hazardous wastes and VSQG hazardous wastes. In contrast, household hazardous wastes are not regulated as hazardous wastes under the Federal program even when collected at centers and events. In addition, under the Federal regulations, VSQG hazardous wastes may be sent to facilities authorized by the State to manage such wastes, but there are no Federal regulations specifying the standards to be followed at facilities which are centers and events.
As noted in part I.C. above, there also are various Massachusetts regulations which differ from but have been determined to be equivalent to the Federal regulations. These State regulations which are different from but equivalent to the Federal regulations are or will become part of the Federally enforceable RCRA program when authorized by the EPA. These different but equivalent requirements include the following:
• The Massachusetts regulations regarding satellite storage allow more than one container in a satellite area (so long as there is only one container per waste stream) whereas the Federal regulations contemplate that there will be only one 55 gallon container in each satellite area. Unlike the Federal regulations, however, the State regulations impose requirements to ensure that multiple containers will be stored safely, including aisle spacing requirements, requirements for separation of containers with incompatible wastes and formal inspection requirements.
• The Massachusetts satellite storage regulations require containers to be moved from satellite areas to central storage areas within three days of a container being filled (whereas this three-day period begins to run under the Federal regulations only when more than 55 gallons has been accumulated in the satellite area), but the Massachusetts regulations also provide that the time allowed for storage in the central storage areas begins to run only when the container is moved to the central storage area or no later than three days after the container is filled. In contrast, under the Federal regulations, the time allowed for storage in central storage areas begins to run as soon as the container is required to be moved (
• The Massachusetts regulations specify that while hazardous wastes placed into satellite storage must be counted when determining a generator's rate of generation, they need not be counted when determining the amount of hazardous waste stored on site (for purposes of determining whether a generator is a LQG, SQG or VSQG). In contrast, under the Federal regulations, wastes in satellite storage are counted both when determining a generator's rate of generation and when determining the amount of hazardous waste stored on site.
• The Massachusetts regulations contain the same exemption from hazardous waste requirements for certain chromium wastes as is found in the Federal regulations at 40 CFR 261.4(b)(6). However, under the EPA regulation, a generator seeking to claim the exemption for other than specifically listed waste streams must petition the EPA and obtain a determination that its particular wastes are exempt. In contrast, Massachusetts is proposing to allow a generator to make this determination for itself provided that the generator documents compliance with the criteria listed in the State (and Federal) regulations. Of course, a generator is responsible for making the correct determination, and the EPA encourages generators who
• The Massachusetts regulations contain conditional exemptions for bulk scrap metal items as well as smaller particle scrap metal items being recycled, for whole used circuit boards as well as shredded circuit boards being recycled and for certain mixtures of water and unused gasoline being recycled. The Federal regulations similarly exempt these materials, but under sometimes different categories (
• Massachusetts allows VSQGs to conduct certain kinds of treatment on site without a permit. The exemption is limited to non-thermal treatment (typically neutralization) of wastes generated on site and is subject to a requirement that the treatment be conducted safely. The Massachusetts program operates somewhat similarly to the EPA interpretation allowing certain kinds of treatment in accumulation tanks and containers without permits, by LQGs and SQGs. However, Massachusetts allows treatment without permits only by VSQGs, whereas the EPA interpretation instead allows it by LQGs and SQGs. Also, the EPA interpretation allows treatment only within accumulation tanks and containers, whereas the Massachusetts regulation allows treatment in non-accumulation containers (
• The Massachusetts regulations require that secondary containment systems for outdoor above-ground tanks must have a capacity at least equal to 110% of the volume of the largest tank. This requirement is designed to take the place of the Federal requirement (in 40 CFR 265.193(e)) that such containment systems must have a capacity at least equal to 100% of the volume of the largest tank plus sufficient capacity to contain precipitation from a 25 year, 24 hour storm. The Massachusetts regulations generally track the Federal requirements regarding secondary containment requirements for underground tanks. The Massachusetts regulations are being amended to require secondary containment for indoor above-ground tanks with a capacity at least equal to 100% of the volume of the largest tank (the Federal standard).
• The Massachusetts regulations specify standards for when tanks will be considered “empty.” The EPA regulations specify such standards only for containers, while specifying that tanks must be decontaminated before being disposed or reused. It should be noted that the State's empty tank standard for non-acute wastes is more stringent than the State (and Federal) empty container standard,
The effect of the proposed authorization decision will be that entities in Massachusetts subject to RCRA will need to comply with the authorized State requirements instead of the Federal requirements, with respect to the matters covered by the authorized State requirements, in order to comply with RCRA. However, until the authorized Massachusetts program is brought fully up to date, there will continue to be a dual state/Federal RCRA program in Massachusetts. RCRA was amended by the Hazardous and Solid Waste Amendments (“HSWA”) in 1984. Section 3006(g) of RCRA, 42 U.S.C. 6906(g), provides that when the EPA promulgates new regulatory requirements pursuant to HSWA, the EPA shall directly carry out these requirements in states authorized to administer the underlying hazardous waste program, until the states are authorized to administer these new requirements. The EPA has established various new regulatory requirements pursuant to HSWA which have not yet been authorized to be administered by Massachusetts. There also are various self-implementing requirements directly established by the HSWA statutory amendments themselves. Regulated entities must comply with these HSWA requirements as set out in the Federal regulations and statute in addition to authorized State program requirements. The HSWA requirements that will continue to be administered by the EPA in Massachusetts include all of the Land Disposal Restriction (“LDR”) requirements set out in 40 CFR part 268 (including requirements adopted prior to July 1, 1990), the Corrective Action requirements referenced in 40 CFR 264.101, and the hazardous air emission standards set out in 40 CFR parts 264 and 265, subparts AA, BB and CC. A complete list of HSWA requirements is set out in 40 CFR 271.1, Tables 1 and 2.
With respect to TSDF permitting, Massachusetts will continue to issue permits for all the provisions for which it is authorized and will administer the permits it issues. The EPA will continue to administer any RCRA hazardous waste permits or portions of permits it has issued. The EPA also will continue to issue permits or portions of permits covering HSWA requirements for which Massachusetts is not authorized. In addition, the EPA will continue to implement the provisions of 40 CFR 264.1(f)(2) within Massachusetts. That provision specifies that TSDFs must comply with any standards promulgated by the EPA (HSWA or non-HSWA) after a State is authorized, until the State obtains authorization to issue permits covering such newly promulgated standards. The major effect of this provision in Massachusetts is that the EPA will remain responsible for issuing permits for Miscellaneous Units, since the EPA promulgated the Miscellaneous Unit standards in 40 CFR part 264, subpart X after the initial authorization of the Massachusetts base program, and since Massachusetts has not yet applied for and is not now being authorized to carry out these requirements.
Massachusetts is not authorized to carry out its hazardous waste program in Indian country within the State (land of the Wampanoag tribe). The proposed action will have no effect on Indian country. The EPA will continue to implement and administer the RCRA program in these lands.
The EPA is proposing to authorize but not codify the enumerated revisions to the Massachusetts program. Codification is the process of placing the State's statutes and regulations that comprise the State's authorized hazardous waste program into the Code of Federal Regulations. The EPA does this by referencing the authorized State rules in 40 CFR part 272. The EPA reserves the amendment of 40 CFR part 272, subpart W for the codification of the Massachusetts' program until a later date.
In 1986, the MADEP adopted regulations to comprehensively regulate hazardous recyclable materials, under provisions separate from those governing hazardous wastes planned to be disposed. These regulations are found in 310 CMR 30.200. In the Federal RCRA program, some hazardous recyclable materials are not considered to be hazardous wastes and thus are exempt from hazardous waste regulation (
Initially, the State's Class A regulations applied only to recyclable materials that are exempt from Federal regulation. Thus the State was not required to seek Federal authorization for these regulations. In 1995, however, the MADEP expanded the Class A category to include many recyclable materials that are recycled at the site of generation. Under the State regulations, these Class A recyclable materials must be recycled in a recycling system that is completely enclosed, but may be stored in tanks or containers prior to being recycled, without the entire storage to recycling process being completely enclosed. Thus the Class A regulations now apply to certain federally regulated hazardous wastes that are recycled on site by generators, namely those hazardous recyclable materials that are spent materials, listed sludges and listed byproducts, that are accumulated or stored on site before being recycled, and that are recycled through a process that does not meet all of the conditions for Federal exemption as a completely enclosed recycling process set out in 40 CFR 261.4(a)(8). In particular, the Class A regulations apply to Federally regulated recyclable materials currently being stored by about 136 generators with stand alone solvent stills/distillation units and to Federally regulated recyclable materials currently being stored by about 40 generators with stand alone silver recovery units.
The EPA is proposing to authorize the State's Class A regulations insofar as they apply to the storage of recyclable materials by generators with stand alone solvent stills/distillation units, generators with stand alone silver recovery units, and any other generators who may store Federally regulated recyclable materials subject to the Class A regulations in the future (
It should be noted that the State is in the process of revising its Class A regulations (as part of its current update), and it is the proposed revised Class A regulations which the EPA is proposing to authorize. The EPA expects to authorize the final State regulations, once they are adopted, if they are the same as the proposed State regulations. If the final State regulations are different from the proposed State regulations, the EPA expects to authorize them (without an additional round of public comment) if but only if the final regulations continue to meet the RCRA statutory requirements and are a logical outgrowth of the proposed regulations.
The proposed authorization does not cover the Class A regulations insofar as they apply to the Federally exempt recyclable materials referenced by 310 CMR 30.212(1) through (7), as the regulation of these recyclable materials is beyond the scope of the Federal RCRA program. The authorization also will not cover the Class A regulations insofar as they apply to waste oil and specification used fuel oil as referenced by 310 CMR 30.212(8)-(9), since the MADEP has not yet applied to be authorized for the Federal RCRA Used Oil program (established in 40 CFR part 279). Finally, the authorization will not cover the State's Class B and Class C regulations, since the MADEP has not yet applied to be authorized for these regulations (which generally relate to off-site non-generator recycling).
The EPA has reviewed the Massachusetts Class A regulations and determined that they do not meet particular requirements for State authorization set out in the current EPA regulations. However, the EPA also has determined that the Massachusetts Class A regulations meet the RCRA statutory test of protecting human health and the environment and are at least as environmentally protective overall as the Federal program. Thus the EPA is proposing to make a State-specific Federal regulation change to allow authorization of the Massachusetts Class A regulations.
In comparison with the EPA regulations applicable to storage of hazardous wastes by generators, the Class A regulations regarding storage of hazardous recyclable materials by generators differ with respect to various details. For example, under the Federal regulations, storage of hazardous wastes without TSDF permits by LQGs and SQGs generally is limited to 90 and 180 days, respectively. In contrast, the Class A regulations allow recyclable materials to be stored pending recycling so long as there is no “speculative accumulation.” This typically allows storage times without TSDF permits of a year or longer. The EPA regulations on State authorization specify that, “[s]tate law must require [TSDF] permits for owners and operators of all hazardous waste management facilities required to obtain permits under 40 CFR part 270 * * * ” 40 CFR 271.13(a). By allowing generator storage times without TSDF permits longer than the Federal regulations, the Class A regulations do not comply with this current EPA requirement for State authorization.
In addition, the Class A regulations impose requirements regarding storage of recyclable materials by generators which are quite different from the Federal regulations in 40 CFR part 262 regarding generator storage. In place of the Federal categories of LQG, SQG and CESQG (Massachusetts VSQG), the Class A regulations establish a dual status system. Generators are classified as LQGs or SQGs or VSQGs with respect to wastes to be shipped off-site based on the amount of such wastes to be shipped off-site. Generators are separately classified and regulated with respect to Class A recyclable materials based on the amounts of such materials (and are placed in either a merged LQG/SQG category or a VSQG category for that purpose). The resulting differences between the State and Federal regulations are fully described in a EPA memorandum dated July 8, 2002,
The EPA is committed to reexamining the extent of flexibility that should be employed when reviewing State RCRA programs. In connection with another part of Massachusetts' ECOS program proposal, the EPA is creating a Work Group of EPA and State personnel to examine authorization issues. Without waiting for the results of this effort, the EPA nevertheless has employed some flexibility consistent with its current regulations in reviewing the Massachusetts RCRA program update, as indicated by its proposed approval of some Massachusetts provisions which differ from Federal provisions, discussed in part I.D. above. However, the differences between the Massachusetts Class A regulations and the EPA generator storage regulations are greater than those discussed in part I.D., and a standard authorization of the Class A regulations is precluded under the current EPA State authorization regulations by, for example, the difference regarding when TSDF permits are required. Thus the EPA is not proposing to approve the Massachusetts Class A regulations as a standard authorization.
The EPA is persuaded that it should make a State-specific regulation change to its Federal regulations to enable the authorization of the Class A regulations. The Massachusetts program comprehensively regulates hazardous wastes that are recycled on site by generators, and has operated successfully for many years. The State regulations contain incentives that encourage recycling (
Thus the Massachusetts Class A regulations meet the RCRA statutory test of protecting human health and the environment, and constitute an acceptable alternative approach (to regulating hazardous recyclable materials) to the approach currently set forth in the Federal regulations. In addition, the EPA recently announced that it is planning to propose a change to its regulations to revise the Federal RCRA regulatory requirements with respect to recyclable materials that remain in use in a continuous industrial process. 49 FR 11251 (March 13, 2002). This is a part of the EPA's response to the court's decision in
The EPA does not believe that in light of the
The EPA is proposing to make the State-specific change to its Federal regulations pursuant to a proposal for flexibility submitted by the MADEP under the ECOS program. Under the Joint EPA/State Agreement to Pursue Regulatory Innovation, the EPA agreed to entertain State proposals for flexibility in an agreement entered into between the EPA and the Environmental Council of States.
The proposed change to the Federal regulations which will enable the EPA to grant the requested flexibility is set out at the end of this document. The EPA proposes to amend 40 CFR 262.10 to add a paragraph (k), which will specify that generators within Massachusetts may comply with the Class A regulations, when authorized, with respect to the recyclable materials and matters covered by the authorization, instead of complying with certain standard EPA regulations. The EPA proposes to have this new regulation take effect immediately upon its final promulgation. The EPA Administrator has delegated one-time authority to the Regional Administrator, EPA New England, to make this regulation change.
The proposed change to the Federal regulations will enable the EPA to authorize the Massachusetts regulations, since the Federal regulations will specify that the State regulations contain acceptable alternative standards
However, the change to the Federal regulations will not itself result in any change to the legal requirements applicable to generators in Massachusetts. Rather, generators will become subject to the proposed revised Class A requirements under State law when they are adopted in final form by the MADEP. These requirements will in turn become part of the Federally enforceable RCRA program when they are authorized by the EPA. For the sake of efficiency, the EPA is proposing to both make the Federal regulation change and to authorize the State regulations in the rulemaking proposed today. Thus in this particular case, the EPA expects that the State requirements will become authorized and federally enforceable at the same time as the Federal regulation change.
Under section 3006 of RCRA, the EPA may authorize a qualified State to administer and enforce a hazardous waste program within the State. (
After authorization, Federal rules written under RCRA provisions which predate the Hazardous and Solid Waste Amendments of 1984 (HSWA) no longer apply in the authorized state. Rather, the authorized State regulations apply in lieu of such Federal requirements. In addition, new Federal requirements imposed by such rules do not take effect in an authorized state until the state adopts the requirements.
In contrast, under section 3006(g) of RCRA, new requirements and prohibitions imposed by HSWA take effect in authorized states at the same time that they take effect in non-authorized states. The EPA is directed to carry out HSWA requirements and prohibitions in authorized states until the state is granted authorization to do so.
This proposed rule, if finalized, would be promulgated pursuant to non-HSWA authority. Thus as explained above, the alternative standards contemplated by the rule will take effect in Massachusetts only when adopted by Massachusetts and will become Federally enforceable only when authorized by the EPA. Once they take effect, however, they will apply in lieu of the EPA program with respect to the recyclable materials and matters covered by the authorization. For example, generators storing solvents for recycling in stand alone stills/distillation units will be able to store such solvents without permits for more than the 90 or 180 days set out in the Federal regulations, so long as they do not engage in “speculative accumulation.”
Of course, generators still will need to comply with any other applicable RCRA requirements in addition to the Class A requirements. For example, generators storing some wastes for recycling and other wastes for disposal will need to comply with the authorized State requirements regarding wastes being stored for disposal with respect to those other wastes. In addition, generators will need to comply with any applicable Federal requirements which are being directly implemented by the EPA within Massachusetts pursuant to HSWA,
In particular, the State has not yet been authorized for and the EPA is continuing to administer within Massachusetts the air emission standards for tanks and containers set out in 40 CFR part 265, subpart CC (“CC regulations”). These regulations are applicable to many large quantity generators storing solvents, among others. Following authorization of the Class A regulations, the EPA plans to administer and enforce these CC regulations within Massachusetts as follows. First, only generators which are classified as large quantity generators under the State regulations will be considered subject to the CC regulations. That is, the EPA will utilize the Massachusetts counting rules when administering the CC rule within Massachusetts. This will avoid generators needing to do two separate State and Federal status calculations. Second, however, any generators which are classified as large quantity generators under the State regulations with respect to any part of their site will be subject to the CC regulations throughout their sites. Large quantity generators storing solvents will need to comply with all applicable requirements imposed by the CC regulations, whether the solvents are being stored for disposal or recycling. That is, the EPA will not utilize the Massachusetts dual status concept when administering the CC rule within Massachusetts. The EPA expects that any generator which is a LQG will take the steps required under the CC rule to prevent hazardous air emissions, just as such generators are subject to all applicable Clean Air Act requirements whether they dispose of their wastes or recycle.
Unlike the proposed authorization of the Labs XL project regulations discussed in Part III below, the proposed authorization of the Massachusetts ECOS project regulations will continue indefinitely. The EPA believes this is justified based on the long successful operation of the Massachusetts Class A program,
If the EPA issues future final regulations changing the status of recyclable materials used in a continuous industrial process under Federal RCRA regulation, portions of the Massachusetts Class A program now proposed to be authorized could then become beyond the scope of Federal regulation. If and when any revised national regulations take effect, the EPA will then address, in connection with a later update of the Massachusetts RCRA program, the effect of the national regulations on the Massachusetts program.
Project XL—“eXcellence and Leadership” was announced in May 1995 as a part of the National Performance Review and the EPA's effort to reinvent environmental protection.
One of the projects that has been approved under Project XL is the New England Universities' Laboratories project. A Project XL proposal that the EPA exercise flexibility under RCRA was developed for the University of Massachusetts—Boston, Boston, MA, Boston College, Chestnut Hill, MA, and the University of Vermont, Burlington, VT (the “participating universities”). A Final Project Agreement approving the proposal was signed by the EPA, the participating universities, the MADEP and the Vermont Department of Environmental Conservation, on September 28, 1999. Pursuant to that agreement, the participating universities have been allowed to comply with Environmental Management Plans (EMPs) covering their laboratories in place of certain standard requirements for hazardous waste generators, during a trial period. In order to allow this experiment, the EPA adopted special regulations during 1999 which are set forth in 40 CFR 262.10(j) and 40 CFR 262.100-108.
Following the adoption of EPA's special Project XL regulations, both Massachusetts and Vermont adopted regulations setting alternative standards for laboratories at the participating universities. The Vermont regulations were authorized by the EPA and became part of the Federally enforceable Vermont RCRA program on October 26, 2000.
The New England Universities' Laboratories XL project was initially planned to run for four years (September 1999 through September 2003). Thus the EPA project regulations currently have an expiration date of September 30, 2003.
The EPA conducted a mid-term evaluation of the project between September 2001 and September 2002. As set out in the mid-term evaluation report, the project has shown great success in some important areas: developing EMPs, training staff, increasing awareness, shifting attitudes and behaviors, improving the range of activities that determine compliance and emergency preparedness, and demonstrating that the environmental management system approach to managing laboratory waste is gaining hold and making progress.
Taking account of both the progress that has been made and the remaining issues, the EPA (with the concurrence of the MADEP and VTDEC) believes that the appropriate course of action is to extend the project's expiration date by three years,
In addition, the EPA Office of Solid Waste currently is analyzing issues regarding the management of hazardous waste in laboratories, using a discussion group of EPA Headquarters and Regional personnel, which is expected to be followed by stakeholder meetings. This process may result in changes to the EPA requirements or the way the EPA interprets its requirements regarding laboratories. The proposed three-year extension of the New England Universities' Laboratories XL project will allow the three participating universities to continue to follow the alternative project requirements while the EPA considers whether to make changes in national policy. This will avoid those universities needing to terminate the project, prior to the EPA having a chance to consider whether standard RCRA requirements applicable to university laboratories should be changed. The continuation of the project also should provide information that is useful to the EPA as it analyzes the potential national impact of making changes regarding the management of hazardous waste in laboratories.
The proposed Federal regulation change will extend the expiration date in 40 CFR 262.108 from September 30, 2003 to September 30, 2006. The other special EPA regulations adopted to allow the implementation of the New England Universities' Laboratories XL project will stay the same. The proposed regulation change is set out at the end of this document. The EPA proposes to have this regulation change take effect immediately upon its promulgation. The EPA Administrator has delegated one-time authority to the Regional Administrator, EPA New England, to make this regulation change. Massachusetts and Vermont also are in the process of changing their State regulations to extend the expiration date of this XL project to September 30, 2006. The EPA and other signatories also are proposing to amend the Final Project Agreement for this XL project to extend the expiration date, with annual reporting obligations also being extended and all other provisions of the agreement remaining the same.
The proposed change to the Federal regulations will enable the EPA to authorize the Massachusetts and Vermont regulations governing the New England Universities' Laboratories XL project through September 30, 2006. In Vermont's case, the State regulations
The different effects of authorization regarding HSWA and non-HSWA rules was discussed above in part II.D. The proposed extension to the Federal XL project regulation would be promulgated pursuant to non-HSWA authority. Thus the extension will take effect in Massachusetts only when adopted by Massachusetts and will become Federally enforceable only when the State regulations containing the extension are authorized by the EPA.
The EPA has examined the cumulative effects of the proposed State authorization decisions discussed above, and the two proposals to make changes to the Federal regulations, and reached the conclusions set out below.
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 effect 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 entitlement, 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.
Because the annualized cost of these proposed actions will be significantly less than $100 million and because these proposed actions will not meet any of the other criteria specified in the Executive Order, it has been determined that this proposed rule is not a “significant regulatory action” under the terms of the Executive Order and is therefore not subject to OMB review.
Under the Paperwork Reduction Act, 44 U.S.C. 3501
The Regulatory Flexibility Act, 5 U.S.C. 601 et seq., generally requires an agency to prepare a regulatory flexibility analysis of any rule subject to notice and comment rulemaking under the Administrative Procedure Act or other statute, unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small organizations, and small governmental jurisdictions.
These actions authorize or enable the authorization of state requirements for the purpose of RCRA 3006 and impose no additional requirements beyond those imposed by state law. In addition, the two proposed Federal regulatory changes will increase regulatory flexibility, which should have a positive economic effect on small entities. In determining whether a rule has a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act, the impact of concern is any significant adverse economic impact, since the primary purpose of any regulatory flexibility analysis would be 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 certify 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. Accordingly, the EPA hereby certifies that this action will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public Law 104-4, establishes requirements for Federal agencies to assess the effects of their regulatory actions on State, local, and tribal governments and the private sector. Under section 202 of the UMRA, the 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 the 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 the 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. In addition, before the 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 about the regulatory requirements, enabling officials of affected small governments to have meaningful and timely input in
The EPA has determined that the section 202 and 205 requirements do not apply to this proposed action because the proposed rule does not contain a Federal mandate that may result in annual expenditures of $100 million or more for State, local, and/or tribal governments in the aggregate, or the private sector. Costs to State, local or tribal governments and the private sector already exist under the State program, and the proposed actions will not impose any additional obligations on regulated entities. In fact, the EPA's approval of State programs generally may reduce, not increase, compliance costs for the private sector, by reducing the need for companies to comply with Federal requirements in addition to State requirements. Further, as it applies to the State, this action does not impose a Federal intergovernmental mandate because UMRA does not cover duties arising from voluntary participation in a Federal program, such as Massachusett's voluntary decision to operate the RCRA program.
Because this action will authorize pre-existing requirements under state law and will not impose any additional enforceable duties beyond those required by state law, it also will not uniquely affect small governments, as described in section 203 of UMRA. Thus the requirements of section 203 that the EPA develop a small government agency plan will not apply to this rule.
Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999), requires the 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.”
The proposed actions will not have Federalism implications, as defined in the Executive Order, because they merely authorize (or enable the authorization of) state requirements as part of the State RCRA hazardous waste program, without altering the relationship or the distribution of power and responsibilities established by RCRA.
Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 6, 2000), requires the EPA to develop an accountable process to ensure “meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications.” “Policies that have tribal implications” is defined in the Executive Order to include regulations that have “substantial direct effects on one or more Indian tribes, on the relationship between the Federal government and the Indian tribes, or on the distribution of power and responsibilities between the Federal government and the Indian tribes.”
The proposed actions will not have tribal implications, as defined by the Executive Order, because they will have no direct effect on Indian lands. As noted in part I.E. above, Massachusetts is not authorized to administer the RCRA program in Indian country. Rather, the EPA directly administers the Federal RCRA program in Indian country within Massachusetts.
Executive Order 13045, “Protection of Children from Environmental Health Risks and Safety Risks,” 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 the EPA has reason to believe may have a disproportionate effect on children. If the regulatory action meets both criteria, the Agency must evaluate the environmental health or safety effects of the planned rule on children and explain why the planned regulation is preferable to other potentially effective and reasonably feasible alternatives considered by the Agency.
This rule is not subject to Executive Order 13045 because it is not an economically significant rule as defined by Executive Order 12866. In addition, it does not concern environmental health or safety risks that the EPA has reason to believe may have a disproportionate effect on children.
As discussed in parts II and III above, the EPA has determined that the regulatory flexibility to be allowed by the two proposed Federal regulatory changes will not create health and safety risks. In any event, the particular RCRA program elements affected do not pose any disproportionate risks to children. As discussed in part I above, the standard authorization portion of this rule simply authorizes Massachusetts regulations which are equivalent to previously established Federal RCRA requirements. Authorizing State regulations which equivalently protect the environment, in place of Federal regulations, does not create any disproportionate risks to children.
This proposed rule is not subject to Executive Order 13211 because that Executive Order applies only to rules that are “significant” under Executive Order 12866, and this rule is not a significant regulatory action under Executive Order 12866.
Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (“NTTAA”), Public Law 104-113, section 12(d) (15 U.S.C. 272 note) directs the 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 proposed rule does not involve technical standards covered by voluntary consensus standards. In addition, under RCRA section 3006(b), the EPA grants a State's application for authorization as long as the State meets the criteria required under RCRA. It would thus be inconsistent with applicable law for the EPA, when it reviews a State authorization application, to require the use of any particular voluntary consensus standard in place of another standard that satisfies the requirements of RCRA. Therefore, the EPA did not consider the use of any voluntary consensus standards in developing this rule.
Environmental protection, Hazardous waste, Reporting and recordkeeping requirements.
Environmental protection, Administrative practice and procedure, Confidential business information, Hazardous materials transportation, Hazardous waste, Indians-lands, Intergovernmental relations, Penalties, Reporting and recordkeeping requirements.
The proposed Federal regulation changes will be made under the authority of the Resource Conservation and Recovery Act (RCRA) sections 2002 and 3002, 42 U.S.C. 6912 and 6922. The proposed authorizations of the Massachusetts revisions will be made under the authority of RCRA sections 2002 and 3006, 42 U.S.C. 6912 and 6926.
For the reasons set forth in the preamble, chapter I of title 40 of the Code of Federal Regulations is proposed to be amended as follows:
1. The authority citation for part 262 continues to read as follows:
42 U.S.C. 6906, 6912, 6922-6925, 6937, and 6938.
2. Section 262.10 is amended by adding paragraph (k) to read as follows:
(k) Generators in the Commonwealth of Massachusetts may comply with the State regulations regarding Class A recyclable materials in 310 C.M.R. 30.200, when authorized by the EPA under 40 CFR part 271, with respect to those recyclable materials and matters covered by the authorization, instead of complying with the hazardous waste accumulation requirements of § 262.34, the reporting requirements of § 262.41, the storage facility operator requirements of 40 CFR parts 264 and 265 and the permitting requirements of 40 CFR part 270. Such generators must also comply with any other applicable requirements, including any applicable authorized State regulations governing hazardous wastes not being recycled and any applicable Federal requirements which are being directly implemented by the EPA within Massachusetts pursuant to the Hazardous and Solid Waste Amendments of 1984.
3. Section 262.108 is revised to read as follows:
This subpart will expire on September 30, 2006.
EPA proposes to grant Final authorization under part 271 to the Commonwealth of Massachusetts for revisions to its hazardous waste program under the Resource Conservation and Recovery Act.
Coast Guard, DHS.
Notice of proposed rulemaking; reopening of comment period.
The Coast Guard is reopening the comment period on the notice of proposed rulemaking for “Marine Casualties and Investigation; Chemical Testing Following Serious Marine Incidents” published in the
Comments must reach the docket on or before November 20, 2003.
You may submit comments identified by Coast Guard docket number USCG-2001-8773 to the Docket Management Facility at the U.S. Department of Transportation (DOT). To avoid duplication, please use only one of the following methods:
(1) Web Site:
(2) Federal eRulemaking Portal:
(3) Mail: Docket Management Facility, DOT, 400 Seventh Street SW., Washington, DC 20590-0001.
(4) Fax: (202) 493-2251.
(5) Delivery: Room PL-401 on the Plaza level of the Nassif Building, 400 Seventh Street SW., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The telephone number is (202) 366-9329.
For questions on the proposed rule, call Mr. Robert C. Schoening, Drug and Alcohol Program Manager, telephone (202) 267-0684; or e-mail him at
We encourage you to participate in this rulemaking by submitting comments and related materials. All comments received will be posted, without change, to
On February 28, 2003, the Coast Guard published a notice of proposed rulemaking (NPRM) in the
On August 28, 2003, the Coast Guard published a notice in the
The 1998 Coast Guard Authorization Act requires the Coast Guard to establish procedures ensuring alcohol testing is conducted within two hours of a serious marine casualty. The Coast Guard proposes to establish requirements for testing within the statutory time limits, to expand the existing requirements for commercial vessels to have alcohol testing devices on board, and to authorize the use of a wider variety of testing devices.
For further information, the public should review the NPRM published in the
In response to seven comments to the NPRM requesting a public meeting, the Coast Guard had scheduled a public meeting for September 19, 2003. As a result of Hurricane Isabel forcing the closure of all Federal Government offices in the Washington, DC, metropolitan area, the public meeting was not held. In its notice, the Coast Guard had asked those planning to speak at the meeting to register by September 17, 2003.
By the close of business on September 17, 2003, nine persons had registered to attend the public meeting, with seven requesting to speak. Of the seven persons who originally submitted comments requesting a meeting, only two had registered to attend and to make a presentation.
As a result of the limited number of participants who registered to attend the meeting, the Coast Guard has decided not to reschedule the meeting and is, instead, reopening the comment period for an additional 30 days from the date of this notice.
This additional 30-day comment period should be adequate time for those who had planned to attend the public meeting to submit further comments to the docket.
Federal Communications Commission.
Proposed rule.
The Audio Division requests comments on a petition filed by Vision Media Incorporated proposing the substitution of Channel 280C1 for Channel 280C3 at Arthur, North Dakota, and the modification of Station KVMI(FM)'s license accordingly. To accommodate the upgrade, we also proposed the substitution of Channel 277C for vacant Channel 280C at Hazelton, North Dakota. Channel 280C1 can be substituted at Arthur in compliance with the Commission's minimum distance separation requirements with a site restriction of 48.5 kilometers (30.1 miles) northwest at petitioner's requested site. The coordinates for Channel 280C1 at Arthur are 47-19-35 North Latitude and 97-46-15 West Longitude. Additionally, Channel 277C can be substituted at Hazelton with a site restriction of 51.6 kilometers (32.0 miles) west at petitioner's requested modified site. The coordinates for Channel 277C at Hazelton are 46-22-06 North Latitude and 100-55-49 West Longitude. Since both Arthur and Hazelton are located within 320 kilometers (200 miles) of the U.S-Canadian border, concurrence of the Canadian government has been requested. In accordance with Section 1.420(g)(3) of the Commission's Rules, we will not accept competing expressions of interest for the use of Channel 280C1 at Arthur, North Dakota.
Comments must be filed on or before November 24, 2003, reply comments on or before December 9, 2003.
Federal Communications Commission, Washington, DC 20554. In addition to filing comments with the FCC, interested parties should serve the petitioner, or its counsel or consultant, as follows: Michael W. Richards, Esq., Fletcher, Heald & Hildreth, P.L.C., 1700 North 17th Street, 11th Floor, Arlington, Virginia 22209.
Sharon P. McDonald, Media Bureau, (202) 418-2180.
This is a synopsis of the Commission's Notice of Proposed Rule Making, MB Docket No. 03-208, adopted October 1, 2003, and released October 3, 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 20054, telephone 202-863-2893, facsimile 202-863-2898, or via e-mail
Provisions of the Regulatory Flexibility Act of 1980 do not apply to this proceeding.
Members of the public should note that from the time a Notice of Proposed Rule Making is issued until the matter is no longer subject to Commission consideration or court review, all
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 Dakota, is amended by removing Channel 280A
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of public hearings.
The Western Pacific Fishery Management Council (Council) will convene public hearings on the Draft Environmental Impact Statement (DEIS) for the Bottomfish and Groundfish Fisheries of the Western Pacific Region (Bottomfish FMP). The DEIS presents an overall picture of the environmental effects of the existing fishery activities as conducted under the Bottomfish FMP. In addition, the DEIS analyzes the biological, economic, and social impacts that would result from alternative regulatory regimes conducted under the FMP.
The public hearings will be conducted between October 21, 2003 and November 23, 2003 (see
Written comments on the DEIS should be sent to Dr. Sam Pooley, Acting Regional Administrator, NMFS, Pacific Islands Regional Office, 1601 Kapiolani Blvd., Ste. 1110, Honolulu, HI 96814-4700 or via fax to (808)973-2941.
Kitty M. Simonds, Executive Director, WPFMC, at (808) 522-8220.
1. Kauai, HI—Monday, October 27, 2003, from 7-9 p.m. at Chiefess Kamakahelei Middle School, 4431 Nuhou St., Lihue, Kauai 96766;
2. Maui, HI—Tuesday, October 28, 2003, from 7-9 p.m. at the Maui Beach Hotel, 170 Kaahumanu Ave., Kahului, Maui 96732;
3. Hilo, HI—Wednesday, October 29, 2003, from 7-9 p.m. at the University of Hawaii-Hilo Campus Center, 200 W. Kawaili St., Hilo, HI 96720.
4. Hawaii, HI—Thursday, October 30, 2003, from 7-9 p.m. at King Kamehameha Hotel, 75-5660 Plalani Rd., Kona, HI 96740;
5. American Samoa—Thursday, November 6, 2003, from 7-9 p.m. at the Department of Marine Resources and Wildlife Conference Room, Pago Pago, American Samoa 96799;
6. Oahu, HI—Thursday, November 13, 2003, from 7-9 p.m. at the Fisherman's Wharf, 1009 Ala Moana Blvd., Honolulu, HI 96814;
7. Saipan, CNMI—Wednesday, November 19, 2003 from 7-9 p.m. at the Pedro P. Tenorio Multipurpose Building, Susupe, CNMI 96950;
8. Agana (Hagatna), Guam—November 20, 2003 from 7-9 p.m. at the Guam Fishermen's Cooperative, Perez Marina, Hagatna, Guam 96932.
These meetings are physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Kitty M. Simonds, Executive Director, WPFMC,(808) 522-8220 or (808)522-8226 (fax), at least 5 days prior to the meeting date.
16 U.S.C. 1801
Research, Education, and Economics, USDA.
Notice of meeting.
In accordance with the Federal Advisory Committee Act, 5 U.S.C. App. 2, the United States Department of Agriculture announces a meeting of the National Agricultural Research, Extension, Education, and Economics Advisory Board.
The National Agricultural Research, Extension, Education, and Economics Advisory Board will meet October 27-29, 2003.
The public may file written comments before or up to two weeks after the meeting with the contact person.
The meeting will take place at the Washington Court Hotel, 525 New Jersey Avenue, NW., Washington, DC 20001. Written comments from the public may be sent to the Contact Person identified in this notice at: The National Agricultural Research, Extension, Education, and Economics Advisory Board; Research, Education, and Economics Advisory Board Office, Room 344-A, Jamie L. Whitten Building, United States Department of Agriculture, STOP 2255, 1400 Independence Avenue, SW., Washington, DC 20250-2255.
Deborah Hanfman, Executive Director, National Agricultural Research, Extension, Education, and Economics Advisory Board; telephone: (202) 720-3684; fax: (202) 720-6199; or e-mail:
On Monday, October 27, 2003, an orientation session for new Board members will be held from 8:30 a.m. to 10:30 a.m., and at 10:45 a.m. the full Advisory Board will convene for a brief session ending at noon. At noon, Board members will depart for field tours at the Beltsville Human Nutrition Research Center (Agricultural Research Service) and the Expanded Food and Nutrition Education Program (Cooperative Service Research, Education, and Extension Service). Tours, which will be open to the public, are scheduled from 12:45 p.m. to approximately 5 p.m. On Tuesday, October 28, 2003, an Advisory Board meeting and focus session, entitled “Food and Nutrition in Obesity Prevention: Implications for Research and Education,” will begin at 8 a.m. and end at 5:30 p.m. An evening reception and program will be held from 6 p.m. to 7:30 p.m. On Wednesday, October 29, 2003, the focus session will reconvene at 8:30 a.m. and end at noon.
Research, Education, and Economics, USDA.
Notice of meeting.
In accordance with the Federal Advisory Committee Act, 5 U.S.C. App., the United States Department of Agriculture announces a meeting of the Research, Education, and Economics Task Force.
The Research, Education, and Economics Task Force will meet on October 27, 2003.
The public may file written comments before or up to two weeks after the meeting with the contact person.
On October 27, the meeting will take place at the Holiday Inn—Washington on the Hill, 415 New Jersey Ave., NW., Washington, DC 20001.
Written comments from the public may be sent to the Contact Person identified in this notice at: The Research, Education, and Economics Task Force; Office of the Under Secretary, Room 214-W, Jamie L. Whitten Building, United States Department of Agriculture, 1400 Independence Ave., SW., Washington, DC 20250.
Kathryn Boots, Executive Director, Research, Education, and Economics Task Force; telephone: (202) 690-0826; fax: (202) 690-2842; or email:
On Monday, October 27, 2003, the Research, Education, and Economics Task Force will hold a general meeting at The Holiday Inn—Washington on the Hill. The Task Force will continue its evaluation of the merits of establishing one or more National Institutes focused on disciplines important to the progress of food and Agricultural science. In the morning there will be welcoming remarks made by the Chairman of the Task Force, Dr. William Danforth, Chancellor Emeritus, Vice Chairman, Board of Trustees, Washington University in St. Louis, as well as the USDA Under Secretary for Research, Education, and Economics (REE), Dr. Joseph J. Jen. Welcoming remarks will be followed by a discussion about plans for subsequent Task Force meetings; an account of consultations made since the July 31 Task Force meeting; examination of the scope of the REE Task Force Report; characteristics of what an NIH—like institute for agriculture would include; structuring support for such an institute; and preparation for the next Task Force meeting. The Task Force Meeting will adjourn on Monday, October 27 around 4 p.m. This meeting is open to the public. Due to a delay, this notice could not be published at least 15 days prior to the meeting date. The meeting will be held as scheduled because of the significant sacrifice rescheduling would require of Task Force members who have adjusted their schedules to accommodate the proposed meeting date. Written comments for the public record will be welcomed before and up to two weeks following the Task Force meeting (by close of business Monday, November 10, 2003).
All statements will become part of the official record of the Research, Education, and Economics Task Force and will be kept on file for public review in the Office of the Under
Agricultural Research Service, USDA.
Notice of availability and intent.
Notice is hereby given that the green cotyledon spring pea variety designated “Stirling” is available for licensing and that the U.S. Department of Agriculture, Agricultural Research Service, intends to grant to the Washington State University Research Foundation of Pullman, Washington, an exclusive license to this variety.
Comments must be received within ninety (90) calendar days of the date of publication of this Notice in the
Send comments to: USDA, ARS, Office of Technology Transfer, 5601 Sunnyside Avenue, Room 4-1174, Beltsville, Maryland 20705-5131.
June Blalock of the Office of Technology Transfer at the Beltsville address given above; telephone: 301-504-5989.
The Federal Government's intellectual property rights to this invention are assigned to the United States of America, as represented by the Secretary of Agriculture. It is in the public interest to so license this invention as the Washington State University Research Foundation of Pullman, Washington, has submitted a complete and sufficient application for a license. The prospective exclusive license will be royalty-bearing and will comply with the terms and conditions of 35 U.S.C. 209 and 37 CFR 404.7. The prospective exclusive license may be granted unless, within ninety (90) days from the date of this published Notice, the Agricultural Research Service receives written evidence and argument which establishes that the grant of the license would not be consistent with the requirements of 35 U.S.C. 209 and 37 CFR 404.7.
Commodity Credit Corporation (CCC), USDA.
Notice and request for comments.
In accordance with the Paperwork Reduction Act of 1995 (PRA), the Commodity Credit Corporation is seeking approval from the Office of Management and Budget (OMB) to obtain freight rates to haul agricultural products for the Department of Agriculture.
This information collection will allow CCC to establish the lowest cost of movement, via Motor Carriers and Intermodal Marketing Companies (IMCs), to meet the transportation needs of CCC, for the transportation of commodities.
Comments on this notice must be received on or before December 22, 2003 to be assured consideration.
Comments concerning this notice should be addressed to Donna Ryles, Chief, Planning and Analysis Division, Kansas City Commodity Office, 6501 Beacon Drive, Kansas City, Missouri 64133-4676; telephone (816) 926-6509: e-mail:
Foreign Agricultural Service, USDA.
Notice.
The Administrator, Foreign Agricultural Service (FAS), today accepted a petition filed by the Georgia Shrimp Association, Darien, Georgia, for trade adjustment assistance. The group represents Georgia shrimpers of wild, ocean caught shrimp. The Administrator will determine within 40 days whether or not imports of shrimp contributed importantly to a decline in domestic producer prices of 20 percent or more during the marketing period beginning January 2002 and ending December 2002. If the determination is positive, all producers represented by the group will be eligible to apply to the Farm Service Agency for technical assistance at no cost and adjustment assistance payments.
Jean-Louis Pajot, Coordinator, Trade Adjustment Assistance for Farmers, FAS, USDA, (202) 720-2916, email:
Foreign Agricultural Service, USDA.
Notice
The Administrator, Foreign Agricultural Service (FAS), today accepted a petition filed by the Texas Shrimp Association, Arkansas Pass, Texas, for trade adjustment assistance. The group represents Texas shrimpers of gulf caught shrimp. The Administrator will determine within 40 days whether or not imports of shrimp contributed importantly to a decline in domestic producer prices of 20 percent or more during the marketing period beginning January 2002 and ending December 2002. If the determination is positive, all producers represented by the group will be eligible to apply to the Farm Service Agency for technical assistance at no cost and adjustment assistance payments.
Jean-Louis Pajot, Coordinator, Trade Adjustment Assistance for Farmers, FAS, USDA, (202) 720-2916, email:
Notice is hereby given, pursuant to the provisions of the rules and regulations of the U.S. Commission on Civil Rights, that a planning meeting of the Rhode Island Advisory Committee to the Commission will convene at 1 p.m. and adjourn at 4:30 pm on October 23, 2003, at the Tillinghast, Licht, Perkins, Smith & Cohen, LLP, 10 Weybosset Street—10th Floor, Providence, RI 02903. The purpose of the meeting is to prepare for the upcoming project, Present and Future of Racial Profiling in Rhode Island: Reviewing the Implementation of the Rhode Island Traffic Stops Act of 2000 and its Ramifications. The Committee will review and vote upon staff's draft project proposal and assign subcommittee members for various project tasks.
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 there 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 meeting of the South Dakota Advisory Committee to the Commission will convene at 1 p.m. and adjourn at 4 p.m. on Wednesday, November 5, 2003, at the Holiday Inn City Centre, 100 West 8th Street, Sioux Falls, South Dakota 57104. The purpose of the meeting is to discuss and formally vote on the proposed regional project “Confronting Discrimination in Reservation Border Town Communities.” There will also be a briefing by experts on the status of research in the Criminal Justice System and Native Americans, as well as the impacts of “No Child Left Behind” in South Dakota.
Persons desiring additional information, or planning a presentation to the Committee, should contact, John Dulles, Director of the Rocky Mountain Regional Office, (303) 866-1040 (TDD (303) 866-1049). 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 (5) 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 Wyoming Advisory Committee to the Commission will convene at 10 a.m. and adjourn at 1 p.m. on Saturday, October 25, 2003, at the Best Western Hitching Post Inn, 1700 W. Lincolnway, Cheyenne, Wyoming 82001. The purpose of this meeting is to conduct a planning of future activities including the consideration of regional project. The meeting will also provide an update on progress of current project on the
Persons desiring additional information, or planning a presentation to the Committee, should contact, John Dulles, Director of the Rocky Mountain Regional Office, 303-866-1040 (TDD 303-866-1049). 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 (5) 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.
The Department of Commerce has submitted to the Office of Management and Budget (OMB) for clearance the following proposal for collection of information under the emergency provisions of the Paperwork Reduction Act (44 U.S.C. Chapter 35).
Copies of the above information collection proposal can be obtained by calling or writing Diana Hynek, Departmental Paperwork Clearance Officer, (202) 482-0266, Department of Commerce, Room 6625, 14th and Constitution Avenue, NW., Washington, DC 20230 (or via the Internet at
Written comments and recommendations for the proposed information collection should be sent by November 20, 2003 to Jacqueline Zeiher, OMB Desk Officer,
Import Administration, International Trade Administration, Department of Commerce.
Notice of extension of time for rebuttal comments.
On September 9, 2003, the Department of Commerce published a notice requesting comments on the appropriateness of deducting section 201 duties and countervailing duties from gross unit price in order to determine the applicable export price or constructed export price used in antidumping duty calculations. Comments were received by October 9, 2003. The Department is now extending the time for rebuttal comments to November 7, 2003.
To be assured consideration, rebuttal comments must be received no later than November 7, 2003.
Submit comments to James J. Jochum, Assistant Secretary for Import Administration, U.S. Department of Commerce, Central Records Unit, Room 1870, Pennsylvania Avenue and 14th Street, NW, Washington, DC 20230; Attention: Section 201 Duties.
Becky Erkul, Office of Policy, Import Administration, International Trade Administration, U.S. Department of Commerce, at (202) 482-1277.
On September 9, 2003, the Department of Commerce published a notice requesting comments on the appropriateness of deducting section 201 duties and countervailing duties from gross unit price in order to determine the applicable export price or constructed export price used in antidumping duty calculations. See,
Parties wishing to submit rebuttal comments should file a signed original and six copies of each set of rebuttal comments. All comments will be available for public inspection and photocopying in the Import Administration's Central Records Unit, Room B-099, between the hours of 8:30 a.m. and 5 p.m. on business days. Each person submitting a rebuttal comment should include the commenter's name and address, and give reasons for any recommendations. In order to ensure timely and complete distribution of comments, the Department recommends the submission of rebuttal comments in electronic form to accompany the required paper copies. Comments filed in electronic form should be submitted on a DOS formatted 3.5” diskette, Iomega Zip disk, or Compact Disc (CD-R or CD-RW).
Comments received in electronic form will be made available to the public in Portable Document Format (PDF) on the Internet at the IA Web site at the following address: http://ia.ita.doc.gov/.
Any questions concerning file formatting, document conversion, access on the Internet, or other electronic filing issues should be addressed to Andrew Lee Beller, Import Administration Webmaster, at (202) 482-0866, email address webmaster_support@ita.doc.gov.
After reviewing all comments and rebuttal comments, the Department will determine if a public hearing is
Import Administration, International Trade Administration, Department of Commerce.
Notice of Final Results of Antidumping Duty Administrative Review.
On July 28, 2003, the Department of Commerce published the preliminary results of the administrative review of the antidumping duty order on anhydrous sodium metasilicate from France. The period of review is January 1, 2002, through December 31, 2002. This review covers imports of anhydrous sodium metasilicate from one producer/exporter, Rhodia HPCII. We provided interested parties with an opportunity to comment on the preliminary results of this review, but we received no comments.
Furthermore, the Department made no changes in its analysis following the publication of the preliminary results. Therefore, the final results of review are unchanged from those presented in the preliminary result of review.
October 21, 2003.
Susan Lehman or Richard Rimlinger, AD/CVD Enforcement Group I, Office 3, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, N.W., Washington, D.C. 20230; telephone: 202-482-0180 or 202-482-4477, respectively.
On July 28, 2003, the Department of Commerce (the Department) published in the Federal Register the preliminary results of its administrative review of the antidumping duty order on anhydrous sodium metasilicate (ASM) from France. See
Imports covered by the review are shipments of ASM, a crystallized silicate which is alkaline and readily soluble in water. Applications include waste paper de-inking, ore-flotation, bleach stabilization, clay processing, medium or heavy duty cleaning, and compounding into other detergent formulations. This merchandise is classified under
The period of review is from January 1, 2002, through December 31, 2002.
As discussed in detail in the
As a result of our determination that it is appropriate to apply adverse facts available to Rhodia, we determine that the weighted-average dumping margin of 60.00 percent exists for Rhodia for the period of January 1, 2002, through December 31, 2002. The Department will issue appropriate assessment instructions directly to Customs within 15 days of publication of these final results of review. We will direct the U.S. Bureau of Customs and Border Protection (Customs) to assess the assessment rate against the entered customs values for the subject merchandise on each entry during the review period.
The following deposit requirements will be effective upon publication of this notice of final results of administrative review for all shipments of the subject merchandise entered, or withdrawn from warehouse, for the consumption on or after publication, as provided by section 751(a)(1) of the Act: (1) the cash-deposit rate for Rhodia will be 60.00 percent; (2) for previously reviewed or investigated companies not listed above, the cash deposit will continue to be the company-specific rate published for the most recent period; (3) if the exporter is not a firm covered in this review, a prior review, or the original less-than-fair-value (LTFV) investigation, but the manufacturer is, the cash-deposit rate will be the rate established for the most recent period for the manufacturer of the merchandise; and (4) for all other producers and/or exporters of this merchandise, the cash-deposit rate shall be 60.00 percent, the “all others” rate established in the LTFV investigation (45 FR 77498, November 24, 1980).
These deposit requirements shall remain in effect until publication of the final results of the next administrative review.
This notice also serves as the only reminder to parties subject to the administrative protective order (APO) of their responsibility concerning the disposition of proprietary information disclosed under APO in accordance with 19 CFR 351.305(a)(3). Timely written notification of return/destruction of APO material or conversion to judicial protective order is hereby requested. Failure to comply with the regulation and the terms of an APO is a sanctionable violation.
Furthermore, pursuant to 19 CFR 351.402(f)(2), this notice serves as a final reminder to importers of their responsibility to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during this review period. Failure to comply with this requirement could result in the Secretary's presumption that reimbursement of antidumping duties occurred an the subsequent assessment of double antidumping duties.
We are issuing and publishing these results in accordance with sections 751(a)(1) and 771(i)(1) of the Act.
Import Administration, International Trade Administration, Department of Commerce (the Department) conducting an administrative review of the antidumping duty order on canned pineapple fruit (CPF) from Thailand for the period July 1, 2002, through June 30, 2003. We are now rescinding this review with respect to four companies for which the requests for an administrative review have been withdrawn.
October 21, 2003.
FOR FURTHER INFORMATION CONTACT: Marin Weaver or Charles Riggle,at (202) 482-2336 or (202) 482-0650, respectively; AD/CVD Enforcement, Office 5, Group II, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street & Constitution Avenue, NW, Washington, DC 20230.
On July 2, 2003, the Department published a notice of opportunity to request the eighth administrative review of this order.
On August 22, 2003, the Department published a notice of initiation of this antidumping duty administrative review, covering the period July 1, 2002, through June 30, 2003,
Pursuant to 19 CFR 351.213 (d)(1), the Department will rescind an administrative review, in whole or in part, if a party that requested a review withdraws the request within 90 days of the date of publication of the notice of initiation. Petitioners withdrew their requests for review within the 90 day time limit. Accordingly, the four companies for which the review will be rescinded are as follows: Thai Pineapple Canning Industry Corporation, The Prachuab Fruit Canning Company, Siam Fruit Canning (1988) Co., Ltd., and Malee Sampran Public Company Ltd.
Pursuant to Section 315.213(d)(1) of the Department's regulations, we are rescinding the administrative review with respect to each of the above-listed companies. The Department will issue appropriate assessment instructions to the U.S. Bureau of Customs and Border Protection within 15 days of publication of this notice.This notice is issued and published in accordance with section 751 of the Tariff Act of 1930, as amended, and 19 CFR 351.213(d)(4).
Import Administration, International Trade Administration, Department of Commerce.
Termination of the suspension agreement on certain cut-to-length carbon steel plate from the People's Republic of China (“China”) and notice of antidumping duty order.
On August 29, 2003, the Embassy of the People's Republic of China (“the Embassy”) submitted a letter informally to the Department of Commerce (“the Department”) announcing its intention to withdraw from the suspension agreement on Certain Cut-to-Length Carbon Steel Plate from the People's Republic of China (“the Agreement”). On September 4, 2003, the letter was put on the public and official record in the Central Records Unit (“CRU”) of the Department and interested parties were notified (
November 3, 2003.
Jean Kemp or Rachel Kreissl, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW., Washington, DC 20230; telephone: (202) 482-4037 or (202) 482-0409, respectively.
On October 24, 1997, the Department signed an agreement with the Government of the People's Republic of China (“GOC”) suspending the antidumping investigation on CTL plate from China (
Although notice of the opportunity to request an administrative review was issued in November 1998, November 1999, October 2000, October 2001, and October 2002, no review was ever requested by either petitioners or respondents (
On September 3, 2002, the Department initiated (
On August 18, 2003, the ITC determined that termination of the suspended investigation on CTL plate from China would be likely to lead to continuation or recurrence of material injury to an industry in the United States within a reasonably foreseeable time (
On August 29, 2003, referencing Article XII of the Agreement, the Embassy of China in Washington, DC, submitted a facsimile request informing the Department that “the Chinese side has decided to withdraw from the Suspension Agreement on Cut-to-length Carbon Steel Plate, which will expire on October 30, 2003” (
The merchandise covered by this agreement is Certain Cut-to-length Carbon Steel Plate from the People's Republic of China. Included in this description is hot-rolled iron and non-alloy steel universal mill plates (
Article XII of the Agreement states, in part:
“The Government of the People's Republic of China may terminate this Agreement at any time upon notice to the Department. Termination shall be effective 60 days after such notice is given to the Department. Upon termination at the request of MOFTEC,
As noted above, the underlying investigation in this proceeding was continued pursuant to section 734(g) of the Act following the acceptance of the Agreement. As a result of the continued investigation, the Department made a final determination of dumping, and the ITC found material injury. Section 734(i)(1)(A) of the Act stipulates that the Department shall:
Suspend liquidation under section 733(d)(2) of unliquidated entries of the merchandise made on the later of—
(i) the date which is 90 days before the date of publication of the notice of suspension of liquidation, or
(ii) the date on which the merchandise the sale or export to the United States of which was in violation of the agreement, or under an agreement which no longer meets the requirements of subsection (b) and (d) or (c) and (d), was first entered, or withdrawn from warehouse, for consumption. . . .
Furthermore, section 734(i)(1)(C) stipulates that the Department shall:
If the investigation was completed under subsection (g), issue an antidumping duty order under section 736(a) effective with respect to entries of merchandise liquidation of which was suspended.
Finally, section 734(i)(1)(E) stipulates that the Department shall:
Notify the petitioner, interested parties who are or were parties to the investigation, and the Commission of its actions under this paragraph.
The GOC's request for termination of the suspension agreement is effective November 3, 2003, which is the date the agreement will no longer meet the requirements of section 734(d) of the Act. Because the GOC is withdrawing its participation from the Agreement, the Department finds that suspension of the underlying investigation will no longer be in the public interest as of that date (
In accordance with section 736(a)(1) of the Act, the Department will direct BCBP to assess, beginning on November 3, 2003, antidumping duties equal to the amount by which the normal value of the merchandise exceeds the export price (or constructed export price) of the merchandise for all entries of CTL plate from China. These antidumping duties will be assessed on all unliquidated entries of CTL plate from China entered, or withdrawn from warehouse, for consumption on or after November 3, 2003.
We will instruct BCBP to require a cash deposit for each entry equal to the antidumping duty margins found in our amended final determination of January 12, 1998, as listed below. These suspension-of-liquidation instructions will remain in effect until further notice. The “China-Wide Rate” applies to all producers and exporters of subject CTL plate not specifically listed. The final weighted-average dumping margins are as follows:
This notice constitutes the antidumping duty order with respect to CTL plate from China. Interested parties may contact the Department's Central Records Unit, room B-099 of the main Commerce building, for copies of an updated list of antidumping duty orders currently in effect.
This notice is published in accordance with sections 734(i) and 777(i) of the Act. This order is published in accordance with section 736(a) of the Act.
Import Administration, International Trade Administration, Department of Commerce.
Notice of Amended Final Results of Antidumping Duty Administrative Review.
On September 16, 2003, the Department of Commerce published the final results of administrative review of the antidumping duty order on gray portland cement and clinker from Mexico. The review covers one manufacturer/exporter, CEMEX, S.A. de C.V., and its affiliate, GCC Cemento, S.A. de C.V. The period of review is August 1, 2001, through July 31, 2002.
As a result of our analysis of CEMEX's, GCCC's and the petitioner's comments, we are amending the final results of antidumping administrative review.
October 21, 2003.
Hermes Pinilla or Brian Ellman, Office of AD/CVD Enforcement 3, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, N.W., Washington, D.C. 20230; telephone: (202) 482-3477 or (202) 482-4852, respectively.
On September 16, 2003, the Department of Commerce (the Department) published in the
On September 17, 2003, CEMEX, GCCC, and the petitioner filed a timely allegation that the Department made ministerial errors in the
We have reviewed the calculations in the
Pursuant to section 751(h) of the Tariff Act of 1930, as amended (the Act), we have amended the
The Department shall determine, and Customs shall assess, antidumping duties on all appropriate entries. As amended by this determination and in accordance with 19 CFR 351.212(b), we have calculated an exporter/importer-specific assessment rate. For the sales in the United States through the respondents' affiliated U.S. parties, we divided the total dumping margin for the reviewed sales by the total entered value of those reviewed sales. We will direct Customs to assess the resulting percentage margin against the entered customs values for the subject merchandise on each of the entries during the review period (see 19 CFR 351.212(a)).
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.
Notice of Rescission of the Antidumping Duty Administrative Review.
On July 1, 2003, in response to a request made by Considar, an importer of the subject merchandise, the Department of Commerce (“Department”) published a notice of initiation of an antidumping duty administrative review of silicomanganese from Kazakhstan, for the period of review (“POR”) November 9, 2001 through April 30, 2003. Because Considar has withdrawn its request for review, and there were no other requests for review for this time period, the Department is rescinding this review in accordance with 19 CFR 351.213(d)(1).
October 21, 2003.
James C. Doyle, Enforcement Group III, Office 9, Import Administration, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue, N.W., Washington, D.C. 20230; telephone: 202-482-0159.
On February 28, 2003, Considar, an exporter of the subject merchandise, requested that the Department conduct an administrative review of its sales for the period November 9, 2001 through April 30, 2003. Considar was the only interested party to request a review for this time period. On July 1, 2003, the Department published a notice of initiation of the antidumping administrative review of silicomanganese from Kazakhstan, in accordance with 19 CFR 351.221(c)(1)(i).
Pursuant to the Department's regulations, the Department will rescind an administrative review “if a party that requested the review withdraws the request within 90 days of the date of publication of notice of initiation of the requested review.”
This notice serves as a reminder to parties subject to administrative protective order (“APO”) of their responsibility concerning the disposition of proprietary information disclosed under APO in accordance with 19 CFR 351.305(a)(3). Timely written notification of the return or destruction of APO materials or conversion to judicial protective order is hereby requested. Failure to comply with the regulations and terms of an APO is a sanctionable violation. This determination is issued in accordance with 19 CFR 351.213(d)(4) and section 777(i)(1) of the Tariff Act of 1930, as amended.
Import Administration, International Trade Administration, Department of Commerce.
Notice of postponement of preliminary determinations in antidumping duty investigations.
The Department of Commerce is postponing the preliminary determinations in the antidumping duty investigations of wax and wax/resin thermal transfer ribbons from France, Japan and the Republic of Korea from November 6, 2003 until no later than December 16, 2003. These postponements are made pursuant to section 733(c)(1)(A) of the Tariff Act of 1930, as amended.
October 21, 2003
Mark Hoadley (France) at (202) 482-3148, Cheryl Werner (Japan) at (202) 482-3208, or Fred Baker (Republic of Korea) at (202) 482-2924, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, N.W., Washington, D.C. 20230.
On June 27, 2003, the Department of Commerce (the Department) published a notice of initiation of these antidumping duty investigations covering the period from April 1, 2002 through March 31, 2003 (68 FR 38305). The notice of initiation stated that the Department would issue preliminary determinations no later than 140 days after the date of initiation.
Pursuant to section 733(b)(1)(A) of the Act, the Department shall make a preliminary determination in an investigation of an antidumping duty order within 140 days after the date on which the Department initiates the investigation. The Act further provides, however, that the Department may extend the 140-day period to 190 days if the petitioner makes a timely request for an extension. On October 3, 2003, the petitioner made timely requests pursuant to 19 CFR 351.205(e) for 40-day postponements, pursuant to section 733(c)(1)(A) of the Act, of the preliminary determinations in these investigations. Petitioner stated that postponements of the preliminary determinations are necessary due to the complexity of the issues involved in these cases, such as model matching/product characteristics, and also the timing of the respondents' submissions and supplemental questionnaire responses.
Under section 733(c)(1)(A) of the Act, if the petitioner makes a timely request for an extension of the period within which the preliminary determination must be made under subsection (b)(1), then the Department may postpone making the preliminary determination under subsection (b)(1) until not later than the 190th day after the date on which the administering authority initiates an investigation. Therefore, in accordance with petitioner's requests for postponements, the Department is postponing the preliminary determinations in these investigations for 40 days for the reasons stated in petitioner's requests. These preliminary determinations will now be due no later than December 16, 2003.
This notice is issued and published pursuant to section 733(c)(2) of the Act and 19 CFR 351.205(f).
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of extension of comment deadline.
Under the Marine Mammal Protection Act (MMPA), on October 9, 2003, NMFS published a notice of receipt of an application for the harassment of marine mammals incidental to conducting an oceanographic survey in the Northwest Atlantic Ocean near Bermuda. By this document, NMFS announces an extension of the comment deadline.
Comments and information must be received no later than November 10, 2003.
Comments should be addressed to the Chief, Marine Mammal Conservation Division, Office of Protected Resources, National Marine Fisheries Service, 1315 East-West Highway, Silver Spring, MD 20910-3226. A copy of the application may be obtained by writing to this address or by telephoning the contact listed here. Comments cannot be accepted if submitted via e-mail or the Internet.
Sarah C. Hagedorn, Office of Protected Resources, NMFS, (301) 713-2322, ext 117.
Section 101(a)(5)(A) of the MMPA (16 U.S.C. 1361
On October 9, 2003 (68 FR 58308), NMFS announced that it had received an application from the Lamont-Doherty Earth Observatory (LDEO) for an Incidental Harassment Authorization to take small numbers of marine mammals, by harassment, incidental to conducting an oceanographic survey in the Northwest Atlantic Ocean near Bermuda. Under the MMPA, NMFS requested comments on its proposal to issue an authorization to LDEO to incidentally take, by harassment, small numbers of several species of marine mammals for a limited period of time within the next year. By this document, NMFS extends the comment period on the application and its preliminary determination until November 10, 2003.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of receipt of application and proposed incidental take authorization; request for comments.
NMFS has received an application from the Lamont-Doherty Earth Observatory (LDEO), a part of Columbia University, for an Incidental Harassment Authorization (IHA) to take small numbers of marine mammals, by harassment, incidental to conducting oceanographic surveys in the Southeast Caribbean Sea and adjacent Atlantic Ocean. Under the Marine Mammal Protection Act (MMPA), NMFS is requesting comments on its proposal to issue an authorization to LDEO to incidentally take, by harassment, small numbers of several species of cetaceans and pinnipeds for a limited period of time within the next year.
Comments and information must be received no later than November 20, 2003.
Comments on the application should be addressed to the Acting Chief, Marine Mammal Conservation Division, Office of Protected Resources, National Marine Fisheries Service, 1315 East-West Highway, Silver Spring, MD 20910-3225, or by telephoning the contact listed here. A copy of the application containing a list of the references used in this document may be obtained by writing to this address or by telephoning the contact listed here. Comments cannot be accepted if submitted via e-mail or the Internet.
Kimberly Skrupky, Office of Protected Resources, NMFS, (301) 713-2322, ext 163.
Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361
Permission may be granted if NMFS finds that the taking will have a negligible impact on the species or stock(s) and will not have an unmitigable adverse impact on the availability of the species or stock(s) for subsistence uses and that the permissible methods of taking and requirements pertaining to the monitoring and reporting of such takings are set forth. NMFS has defined “negligible impact” in 50 CFR 216.103 as “...an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival.”
Section 101(a)(5)(D) of the MMPA established an expedited process by which citizens of the United States can apply for an authorization to incidentally take small numbers of marine mammals by harassment. Under section 3(18)(A), the MMPA defines “harassment” as:
any act of pursuit, torment, or annoyance which (i) has the potential to injure a marine mammal or marine mammal stock in the wild; or (ii) has the potential to disturb a marine mammal or marine mammal stock in the wild by causing disruption of behavioral patterns, including, but not limited to, migration, breathing, nursing, breeding, feeding, or sheltering.
The term “Level A harassment” means harassment described in subparagraph (A)(i). The term “Level B harassment” means harassment described in subparagraph (A)(ii).
Section 101(a)(5)(D) establishes a 45-day time limit for NMFS review of an application followed by a 30-day public notice and comment period on any proposed authorizations for the incidental harassment of marine mammals. Within 45 days of the close of the comment period, NMFS must either issue or deny issuance of the authorization.
On August 7, 2003, NMFS received an application from LDEO for the taking, by harassment, of several species of marine mammals incidental to conducting a seismic survey program. As presently scheduled, a seismic survey will be conducted in the Southeast Caribbean Sea and Adjacent Atlantic Ocean. The Southeast Caribbean Sea and Atlantic Ocean cruise will be off the coast of Venezuela in an area extending from 59° to 71° W and 10° to 15° N from January 11, 2004 to February 21, 2004. The operations will partly take place in the Exclusive Economic Zones (EEZ) of several nations in the Southeast Caribbean (including Venezuela, Aruba, Bonaire, Curacao, Trinidad, and Tobago) as well as in international waters.
The purpose of the project is to obtain information on island arc movements and geometry which can be used to better understand the history and mechanical processes by which island arcs accrete to continents, deeply buried rocks are exhumed, and folded belts and different types of sedimentary basins form along oblique collision zones. The interplay of the crust and subcrustal lithosphere during arc accretion and metamorphic belt exhumation and subduction polarity reverses will be examined. In addition, the flow patterns of the sublithospheric mantle beneath the plate boundary and northern South America as a whole and beneath the right lateral shear zone between them will be examined.
The seismic survey will involve two vessels which will conduct the seismic work. The source vessel, the
The procedures to be used for the seismic study will be similar to those used during previous seismic surveys by LDEO in the equatorial Pacific Ocean (Carbotte
The
In addition, the ocean floor will be mapped with an Atlas Hydrosweep DS-2 multibeam 15.5-kHz bathymetric sonar, and a 3.5-kHz sub-bottom profiler will also be operated along with the multibeam sonar. Both of these sound sources will be operated simultaneously with the airgun array. For more information regarding the Atlas Hydrosweep DS-2 multibeam bathymetric sonar, please refer to previous
During the airgun operations, the vessel will travel at 7.4-9.3 km/hr (4-5 knots), and seismic pulses will be emitted at intervals of 60-90 sec (OBS lines) and approximately 20 sec (MCS lines). The 20 sec spacing corresponds to a shot interval of about 50 m (164 ft). The 60-90 sec spacing along OBS lines is to minimize reverberation from previous shot noise during OBS data acquisition, and the exact spacing will depend on water depth. The 20-airgun array will include airguns ranging in chamber volume from 80 to 850 in3. These airguns will be spaced in an approximate rectangle of dimensions of 35 m (115 ft) across track by 9 m (30 ft) along track.
Along the selected lines, the OBSs will be positioned by the
When airgun operations with the 20-gun array commence after a period without airgun operations, the number of guns firing will be increased gradually (“ramped up,” also described as a “soft start”). Operations will begin with the smallest gun in the array (80 in
Along with the airgun operations, two additional acoustical data acquisition systems will be operated during most or all of the cruise. The ocean floor will be mapped with an Atlas Hydrosweep DS-2 multibeam 15.5-kHz bathymetric sonar, and a 3.5-kHz sub-bottom profiler will also be operated along with the multibeam sonar. These sound sources are commonly operated from the
The Atlas Hydrosweep is mounted on the hull of the
The sub-bottom profiler is normally operated to provide information about the sedimentary features and the bottom topography that is simultaneously being mapped by the Hydrosweep. The energy from the sub-bottom profiler is directed downward by a 3.5 kHz transducer mounted in the hull of the
Additional information on the airgun arrays, bathymetric sonars, and sub-bottom profiler specifications is contained in the application, which is available upon request (see
A detailed description of the Southeast Caribbean Sea and its associated marine mammals can be found in a number of documents referenced in the LDEO application as well as in the LDEO application itself, and is not repeated here. In the Southeast Caribbean Sea and adjacent Atlantic Ocean, 30 marine mammal species are known to occur within the proposed study areas. Six species are listed as endangered under the U.S. Endangered Species Act (ESA): sperm, humpback, sei, fin, and blue whales, as well as West Indian manatees. These species included in this application are the sperm whale (
The sound pressure fields for the 20-gun arrays has been modeled by LDEO, in relation to distance and direction from the airguns. Table 1 in the application (LDEO Caribbean 2003) shows the distances from the arrays where sound levels of ≥190, 180, 170, and 160 dB re 1 μPa (rms) are predicted to be received:
The rms (root-mean-squared) pressure is an average over the pulse duration. The rms level of a seismic pulse is typically about 10 dB less than its peak level (Greene 1997; McCauley
Previous applications from LDEO have described similar actions. Past
A multibeam bathymetric sonar (Atlas Hydrosweep DS-2, 15.5-kHz) will be operated from a source vessel at some times during the planned study. Sounds from the multibeam sonar are very short pulses, occurring for 1-10 msec once every 1 to 15 sec, depending on water depth. Most of the energy in the sound pulses emitted by this multibeam sonar is at high frequencies, centered at 15.5 kHz. The beam is narrow (2.67°) in fore-aft extent, and wide (140°) in the cross-track angles. A marine mammal at depth near the trackline would be in the main beam for only one or two of the five segments. Further information on mid-frequency sonar can be found in the application or in a previous
Sound levels have not been measured for the sub-bottom profiler used by the
All anticipated takes by harassment involve a temporary change in behavior. The mitigation measures to be applied will minimize the possibility of injurious takes. LDEO has calculated the “best estimates” for the numbers of animals that could be taken by level B harassment during the proposed seismic survey in the SE Caribbean Sea using data on marine mammal abundance from a previous survey region, as shown in the predicted RMS radii table.
These estimates are based on a consideration of the number of marine mammals that might be exposed to sound levels greater than 160 dB, which is currently used as the criterion for the onset of level B harassment, by operations with the 20-gun array planned to be used for the project. The anticipated radius of influence of the multibeam sonar is less than that for the airgun array. It is assumed that any marine mammals close enough to be affected by the multibeam sonar would already be affected by the airguns. Therefore, no additional allowance is included for animals that might be affected by the multibeam sonar.
Tables 4 and 5 in the application explain the corrected density estimates as well as the “best estimate” of the numbers of each species that would be exposed to seismic sounds greater than 160 dB.
According to the tables, the percentages of delphinidae that might be exposed to sound levels greater than 160 dB range from zero to 4.4 percent. Aside from the sperm whale, the physeterida and ziphiidae exposure percentages are zero. The percent of sperm whales that might be exposed is 0.4 percent. Except for the humpback and blue whales, the mysticetes and pinnipeds percent of exposure is zero. It is estimated that 1.7 percent of humpback whales and 1.0 percent of blue whales could be exposed to sound levels greater than 160 dB. The “best estimate” of the numbers of common, bottlenose, Atlantic spotted, and pantropical spotted dolphins that might be harassed (exposed to levels greater than 160 dB) are 1.9 percent, 4.4 percent, 2.6 percent, and 4.3 percent, respectively.
The 160 dB criterion is based on studies of baleen whales. Odontocete hearing at low frequencies is relatively insensitive and delphinids generally
Pinnipeds are not expected to be encountered in the SE Caribbean Sea and so the “best estimate” of the number that might be affected is zero. Although unlikely, a more conservative estimate of a maximum of five pinnipeds (most likely hooded seals) might be affected by a portion of the proposed survey in the SE Caribbean Sea. For further information regarding the estimated takes, refer to the LDEO Caribbean 2003 application.
Strong avoidance reactions by several species of mysticetes to seismic vessels have been observed at ranges up to 8 km (4.3 nm) and occasionally as far as 30 km (16.2 nm) from the source vessel. Some bowhead whales avoided waters within 30 km (16.2 nm) of the seismic operation. However, reactions at such long distances appear to be atypical of other species of mysticetes and, even for bowheads, may only apply during migration.
Odontocete reactions to seismic pulses, or at least those of dolphins, are expected to extend to lesser distances than are those of mysticetes. Odontocete low-frequency hearing is less sensitive than that of mysticetes, and dolphins are often seen from seismic vessels. There are documented instances of dolphins approaching active seismic vessels. However, dolphins as well as some other types of odontocetes sometimes show avoidance responses and/or other changes in behavior when near operating seismic vessels.
Taking account of the mitigation measures that are planned, effects on cetaceans are generally expected to be limited to avoidance of the area around the seismic operation and short-term changes in behavior, falling within the MMPA definition of “Level B harassment.” In the cases of mysticetes, these reactions are expected to involve small numbers of individual cetaceans. The “best estimate” is that 377 humpback whales or about 1.7 percent of the North and South Atlantic populations will be exposed to sound levels greater than or equal to 160 dB re 1 μPa (rms). Acevedo and Smultea (1995) provide evidence that the North and South Atlantic populations overlap in their wintering areas. Similarly, only 52 sperm whales or approximately 0.4 percent of the North Atlantic sperm whale population would receive seismic sounds greater than or equal to 160 dB during the proposed survey in the SE Caribbean Sea.
The numbers of odontocetes that may be harassed by the proposed activities are small relative to the population sizes. A maximum of 2475, 2222, 1369, 867, and 564 common, bottlenose, Atlantic spotted, rough toothed, and pantropical spotted dolphins, respectively (the most abundant delphinids in the proposed survey area) are expected to be exposed to seismic sounds greater than or equal to 160 dB. This represents 1.9 to 4.4 percent of the North Atlantic populations of these species based on population estimates for these species. However, these dolphin species surveys have not been conducted for most of their range in the North Atlantic Ocean and adjacent waters. The true percentages of the populations that might be exposed to seismic sounds greater than or equal to 160 dB are much less than 1.9-4.4 percent. The population sizes and the 1.9 to 4.4 percent are based on a small fraction of their range and their actual population sizes are actually much larger. The true percentages of the populations that might be exposed to seismic sounds greater than 160 dB are therefore much less than 1.9 to 4.4 percent. In light of all of these factors, the potential takings by Level B harassment are expected to have no more than a negligible impact on the affected species or stocks.
Mitigation measures such as controlled speed, course alteration, look-outs, non-pursuit, ramp-ups, and power-downs when marine mammals are seen within defined ranges (See Mitigation) should further reduce short-term reactions to disturbance, and minimize any effects on hearing sensitivity.
Pinnipeds are not expected to be encountered during the proposed seismic survey in the SE Caribbean Sea. However, a more conservative estimate of a maximum of 5 pinnipeds may be affected by a portion of the proposed survey in the SE Caribbean Sea if they were encountered. If pinnipeds were encountered, the proposed seismic survey would have, at most, a short-term effect on their behavior and negligible impacts on the affected populations. Responses of pinnipeds to acoustic disturbance are variable, but usually quite limited. Effects are expected to be limited to short-term and localized behavioral changes falling within the MMPA definition of “Level B harassment.”
Vessel-based observers will monitor marine mammals in the vicinity of the arrays. LDEO proposes to power-down the airguns if marine mammals are observed within the proposed safety radii, which will be verified prior to the southeast Caribbean cruise, using data from an acoustical measurement study in the Gulf of Mexico which took place May 27, 2003, through June 3, 2003. Also, LDEO proposes to use a ramp-up procedure when commencing operations using the 20-gun array. Ramp-up will begin with the smallest gun in the array (80 in
The directional nature of the 20-airgun array to be used in this project is an important mitigating factor, resulting in lower sound levels at any given horizontal distance than would be expected at that distance if the source were omnidirectional with the stated nominal source level. Because the actual seismic source is a distributed sound source (20 guns) rather than a single point source, the highest sound levels measurable at any location in the water will be less than the nominal source level.
The airguns comprising these arrays will be spread out horizontally, so that the energy from the arrays will be directed mostly downward. This directionality will result in reduced sound levels at any given horizontal distance than would be expected at that distance if the source were omnidirectional with the nominal source level.
Vessel-based observers will monitor marine mammals near the seismic source vessel during all daytime airgun operations and during any nighttime start-ups of the airguns. During daylight, vessel-based observers will watch for marine mammals near the seismic vessel during periods with shooting (including ramp-ups), and for 30 minutes prior to the planned start of airgun operations after an extended shut-down. Observers will not be on duty during ongoing seismic operations at night; bridge personnel will watch for marine mammals during this period and will call for the airguns to be powered-
Received sound levels have been modeled for the 20-gun arrays. Based on the modeling, estimates of the 190-, 180-, 170- and 160-dB re 1 μPa (rms) distances for these arrays have been provided in the application. Airgun operations will be powered-down (or shut-down) immediately when cetaceans or pinnipeds are seen within or about to enter the appropriate 180-dB (rms) or 190-dB (rms) safety radius, respectively. These 180- and 190-dB criteria are consistent with guidelines for onset of level A harassment of cetaceans and pinnipeds by NMFS (2000) and other guidance by NMFS.
The following mitigation measures, as well as marine mammal monitoring, will be adopted during the proposed Mid-Atlantic seismic surveys, provided that doing so will not compromise operational safety requirements: (1) Speed or course alteration; (2) power-down procedures; (3) shut-down procedures; and (4) ramp-up procedures.
Airgun operations will be suspended when marine mammals are observed within, or about to enter, designated safety zones, where there is a possibility of Level A harassment.
If a marine mammal is detected outside the appropriate safety radius and, based on its position and the relative motion, is likely to enter the safety radius, the vessel's speed and/or direct course will be changed in a manner that also minimizes the effect to the planned science objectives. The marine mammal activities and movements relative to the seismic vessel will be closely monitored to ensure that the marine mammal does not approach within the safety radius. If the mammal appears likely to enter the safety radius, further mitigative actions will be taken, i.e., either further course alterations or shutdown of the airguns.
If a marine mammal is detected outside the safety radius but is likely to enter the safety radius, and if the vessel's course and/or speed cannot be changed to avoid having the marine mammal enter the safety radius, the airguns will be powered-down before the mammal is within the safety radius. Likewise, if a mammal is already within the safety zone when first detected, the airguns will be powered-down immediately. For the power-down procedure for the 20-gun array, one 80 in
If a marine mammal is detected close to the airgun array during a power-down, modeled safety radii for a single gun will be maintained. If the 20-gun array is used, the single gun that will be firing is 80 in3. Since no calibrations have been done to confirm the modeled safety radii for this single gun, conservative (1.5 times the safety radius) radii will be used: 54 m (177 ft) for cetaceans, and 20 m (66 ft) for pinnipeds. If a marine mammal is seen within the appropriate safety radius of the array when the air guns have already been powered-down, airgun operations will be shut-down.
A “ramp-up” procedure will be followed when the airgun arrays begin operating after a specified duration without airgun operations. Under normal operational conditions (vessel speed 4 knots, or 7.4 km/hr), a ramp-up would be required after a power-down or shut-down period lasting about 8 minutes or longer if the Ewing was towing the 20-gun array. At 4 knots, the source vessel would travel 900 m (2953 ft) during an 8-minute period. If the towing speed is reduced to 3 knots or less, as sometimes required when maneuvering in shallow water, it is proposed that a ramp-up would be required after a “no shooting” period lasting 10 minutes or longer. At towing speeds not exceeding 3 knots, the source vessel would travel no more than 900 m (3117 ft) in 10 minutes. Based on the same calculation, a ramp-up procedure would be required after a 6 minute period if the speed of the source vessel was 5 knots.
Ramp-up will not occur if the safety radius has not been visible for at least 30 min prior to the start of operations in either daylight or nighttime. If the safety radius has not been visible for that 30 minute period (e.g., during darkness or fog), ramp-up will not commence unless one airgun has been maintained during the interruption of seismic activity.
LDEO proposes to conduct the following marine mammal monitoring of its 2003 SE Caribbean Sea seismic program.
At least two observers will be based aboard the vessel. At least one experienced marine mammal observer will be on duty aboard the seismic vessel, and observers will be appointed by LDEO with NMFS concurrence. Observers will be on duty in shifts of duration no longer than 4 hours. The second observer will also be on watch part of the time, including the 30-minute periods preceding startup of the airguns and during ramp-ups. Use of two simultaneous observers will increase the proportion of the marine mammals present near the source vessel that are detected. LDEO bridge personnel additional to the dedicated marine mammal observers will also assist in detecting marine mammals and implementing mitigation requirements whenever possible (they will be given instruction on how to do so), especially during operations at night when designated observers will not be on duty.
The observer(s) will watch for marine mammals from the highest practical vantage point on the vessel, which is either the bridge or the flying bridge. On the bridge of the
If ramp-up procedures must be performed at night, two observers will be on duty 30 minutes prior to the start of airgun operations and during the subsequent ramp-up procedures. Ramp-up procedures for the 20-gun array will not commence at night unless the seismic source has been maintained.
A report will be submitted to NMFS within 90 days after the end of the cruise. The end of the Caribbean cruise is predicted to occur on approximately 21 February 2004. The report will describe the operations that were conducted and the marine mammals that were detected. The report will be submitted to NMFS, providing full documentation of methods, results, and interpretation pertaining to all monitoring tasks. The 90-day report will summarize the dates and locations of seismic operations, marine mammal sightings (dates, times, locations, activities, associated seismic survey activities), and estimates of the amount and nature of potential take of marine mammals by harassment or in other ways.
Under section 7 of the ESA, NMFS has begun consultation on the proposed issuance of an IHA under section 101(a)(5)(D) of the MMPA for this activity. Consultation will be concluded prior to the issuance of an IHA. LDEO has initiated consultation with the U.S. Fish and Wildlife Service on West Indian Manatees.
The NSF has prepared an EA for the Southeast Caribbean surveys. NMFS is reviewing this EA and will either adopt it or prepare its own NEPA document before making a determination on the issuance of an IHA. A copy of the NSF EA for this activity is available upon request (see
NMFS has preliminarily determined that the impact of conducting the seismic survey in the Southeast Caribbean Sea and Adjacent Atlantic Ocean, off the coast of Venezuela, will result, at worst, in a temporary modification in behavior by certain species of marine mammals. This activity is expected to result in no more than a negligible impact on the affected species or stocks.
While the number of potential incidental harassment takes will depend on the distribution and abundance of marine mammals in the vicinity of the survey activity, the number of potential harassment takings is estimated to be small. In addition, no take by injury and/or death is anticipated, and the potential for temporary or permanent hearing impairment is low and will be avoided through the incorporation of the mitigation measures mentioned in this document. In addition, the proposed seismic program is not expected to interfere with any subsistence hunts, since operations in the whaling and sealing areas will be limited.
NMFS proposes to issue an IHA to LDEO for conducting a seismic surveys in the Southeast Caribbean Sea and Adjacent Atlantic Ocean, off the coast of Venezuela, provided the previously mentioned mitigation, monitoring, and reporting requirements are incorporated. NMFS has preliminarily determined that the proposed activity would result in the harassment of small numbers of marine mammals; would have no more than a negligible impact on the affected marine mammal stocks; and would not have an unmitigable adverse impact on the availability of species or stocks for subsistence uses.
NMFS requests interested persons to submit comments and information concerning this request (see
Office of the Under Secretary of Defense (Personnel an Readiness), DoD.
Notice.
In compliance with Section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995, the Office of the Under Secretary of Defense (Personnel and Readiness) announces the following proposed reinstatement 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 function of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of 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 December 22, 2003.
Written comments and recommendations on the proposed information collection should be sent to the Office of the Under Secretary of Defense (Personnel and Readiness) (Military Community and Family Policy/Educational Opportunities Directorate), ATTN: Mr. Otto Thomas, 4000 Defense Pentagon, Washington, DC 20301-4000).
To request more information on the proposed information collection or to obtain a copy of the proposed and associated collection instruments, please write to the above address or call at (703) 602-4949, ext. 160.
This information is needed to satisfy Public Law 101-510, the Defense Department's Fiscal Year 1991 Authorization Act, November 5, 1990, which directed the Secretary of Defense release to civilian employers, organizations and other appropriate entities, the names (and other pertinent information) of separating members of the Armed Forces, their spouses, and civilian employees who are seeking employment in the civilian sector. The collection is also required to satisfy Public Law 102-484, the Defense Department's Fiscal Year 1993 Authorization Act, October 23, 1992, which directed the Secretary of Defense to maintain a public and community service registry in which separating Service members would be encouraged to enter into employment in the public and community services arena. DD Form 2581, “Operation Transition Employer Registration,” and DD Form 2581-1, “Public and Community Service Organization Validation,” are used to support this effort.
Notice.
The Department of Defense has submitted to OMB for clearance, the following proposal for collection of information under the provisions of the Paperwork Reduction Act (44 U.S.C. Chapter 35).
Consideration will be given to all commenters received by November 20, 2003.
Notice.
The Department of Defense has submitted to OMB for clearance, the following proposal for collection of information under the provisions of the Paperwork Reduction Act (14 U.S.C. Chapter 35).
Consideration will be given to all comments received by November 20, 2003.
Department of Defense (DOD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA).
Notice of request for public comments regarding an extension to an existing OMB clearance (9000-0005).
Under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35), the Federal Acquisition Regulation (FAR) Secretariat will be submitting to the Office of Management and Budget (OMB) a request to review and approve an extension of a currently approved information collection requirement concerning architect-engineer and related services questionnaire for specific project (SF 255). The clearance currently expires October 31, 2003. However, a request was submitted to extend this clearance until January 2004.
Public comments are particularly invited on: Whether this collection of information is necessary for the proper performance of functions of the FAR, and whether it will have practical utility; whether our estimate of the public burden of this collection of information is accurate, and based on valid assumptions and methodology; ways to enhance the quality, utility, and clarity of the information to be collected; and ways in which we can minimize the burden of the collection of information on those who are to respond, through the use of appropriate technological collection techniques or other forms of information technology.
Submit comments on or before December 22, 2003.
Submit comments regarding this burden estimate or any other aspect of this collection of information, including suggestions for reducing this burden to the General Services Administration, FAR Secretariat (MVA), 1800 F Street, NW, Room 4035, Washington, DC 20405.
Cecelia Davis, Acquisition Policy Division, GSA (202) 219-0202.
Standard Form 255 is used by all Executive agencies to obtain information from architect-engineer (A-E) firms interested in a particular project. The information on the form is reviewed by a selection panel composed of professional people and assists the panel in selecting the most qualified A-E firm to perform the specific project. The form is designed to provide a uniform method for A-E firms to submit information on experience, personnel, capabilities of the A-E firm to perform, along with information on the consultants they expect to collaborate with on the specific project.
Department of Defense (DOD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA).
Notice of request for public comments regarding an extension to an existing OMB clearance (9000-0004).
Under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35), the Federal Acquisition Regulation (FAR) Secretariat will be submitting to the Office of Management and Budget (OMB) a request to review and approve an extension of a currently approved information collection requirement concerning architect-engineer and related services questionnaire (SF 254). The clearance currently expires on October 31, 2003. However, a request was submitted to extend this clearance until January 2004.
Public comments are particularly invited on: Whether this collection of information is necessary for the proper performance of functions of the FAR, and whether it will have practical utility; whether our estimate of the public burden of this collection of information is accurate, and based on valid assumptions and methodology; ways to enhance the quality, utility, and clarity of the information to be collected; and ways in which we can minimize the burden of the collection of information on those who are to respond, through the use of appropriate technological collection techniques or other forms of information technology.
Submit comments on or before December 22, 2003.
Submit comments regarding this burden estimate or any other aspect of this collection of information, including suggestions for reducing this burden to the General Services Administration, FAR Secretariat (MVA), 1800 F Street, NW., Room 4035, Washington, DC 20405.
Cecelia Davis, Acquisition Policy Division, GSA (202) 219-0202.
Standard Form 254 is used by all Executive agencies to obtain uniform information about a firm's experience in architect-engineering (A-E) projects. The form is submitted annually as required by 40 U.S.C. 541—544 by firms wishing to be considered for Government A-E contracts. The information obtained on this form is used to determine if a firm should be solicited for A-E projects.
Department of Defense.
Notice of advisory committee meetings.
The Defense Science Board will meet in closed session on February 4-5, 2004; May 12-13, 2004; and October 20-21, 2004, at the Pentagon, Arlington, Virginia.
The mission of the Defense Science Board is to advise the Secretary of Defense and the Under Secretary of Defense for Acquisition, Technology & Logistics on scientific and technical matters as they affect the perceived needs of the Department of Defense. At these meetings, the Defense Science Board will discuss interim findings and recommendations resulting from ongoing Task Force activities. The Board will also discuss plans for future consideration of scientific and technical aspects of specific strategies, tactics, and policies as they may affect the U.S. national defense posture and homeland security.
In accordance with Section 10(d) of the Federal Advisory Committee Act, Public Law 92-463, as amended (5 U.S.C. App. II), it has been determined that these Defense Science Board meetings concern matters listed in 5 U.S.C. 552b(c)(1) and that, accordingly, these meetings will be closed to the public.
Department of Defense.
Notice of advisory committee meeting.
The Defense Science Board Task Force on Technology Investment for the Defense Advanced Research Projects Agency (DARPA) on October 20-21, 2003, in Arlington, Virginia.
The mission of the Defense Science Board is to advise the Secretary of Defense and the Under Secretary of Defense for Acquisition, Technology & Logistics on scientific and technical matters as they affect the perceived needs of the Department of Defense. At this meeting, the Defense Science Board Task Force will conduct a one-time evaluation of DARPA's current technology portfolio to confirm that DARPA has advanced research projects based on sound, proven scientific and technological foundations, practices and methods that are of high value to the Department of Defense's operational missions.
In accordance with Section 10(d) of the Federal Advisory Committee Act, Public Law No. 92-463, as amended (5 U.S.C. App. II), it has been determined that this Defense Science Board Task Force meeting concerns matters listed in 5 U.S.C. 552b(c)(1) and that, accordingly, the meeting will be closed to the public.
Due to critical mission requirements and the short timeframe to accomplish this review, there is insufficient time to provide timely notice required by Section 10(a)(2) of the Federal Advisory Committee Act and Subsection 101-6.1015(b) of the GSA Final Rule on Federal Advisory Committee Management, 41 CFR Part 101-6, which further requires publication at least 15 calendar days prior to the meeting.
Department of the Air Force, DoD.
Notice.
In compliance with Section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995, the Office of Admissions announces the proposed reinstatement of a public information collection and seeks public comment on 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, unity, and clarity of the information to be collected; (d) ways to minimize the burden of the information collection on respondents, including the use of automated collection techniques or other forms of information technology.
Consideration will be given to all comments received by November 20, 2003.
Written comments and recommendation on the proposed information collection should be sent to United States Air Force Academy, Office of Admissions, 2304 Cadet Drive, Suite 236, USAFA, CO 80840.
To request more information on this proposed information collection or to obtain a copy of the proposed and associated collection instruments, please write to above address, or call the United States Air Force Academy, Office of Admissions, (719) 333-7291.
The information collected on this form is required by 10 U.S.C. 9346. The respondents are students who are applying for admission to the United States Air Force Academy. Each student's background and aptitude is reviewed to determine eligibility. If the information on this form is not collected, the individual cannot be
Department of the Army, DOD.
Notice.
In accordance with 37 CFR Part 404.6 and 404.7, announcement is made of the availability for licensing of inventions set forth in the following, related patent applications:
1.
2.
Foreign rights are also available. The United States Government, as represented by the Secretary of the Army, has rights in these inventions.
Commander, U.S. Army Medical Research and Materiel Command, ATTN: Command Judge Advocate, MCMR-JA, 504 Scott Street, Fort Detrick, Frederick, MD 21702-5012.
For patent issues, Ms. Elizabeth Arwine, Patent Attorney, (301) 619-7808. For licensing issues, Dr. Paul Mele, Office of Research & Technology Applications, (301) 619-6664, both at telefax (301) 619-5034.
Department of the Army, DoD.
Notice.
In accordance with 35 U.S.C. 209(e) and 37 CFR 404.7(a)(l)(i), announcement is made of the intent to grant an exclusive, royalty-bearing, revocable license for the U.S. Patents listed below to New England Ropes, Inc. with its principal place of business at 848 Airport road, Fall River, Massachusetts 02720.
File written objections by November 5, 2003.
Mr. Robert Rosenkrans at U.S. Army Soldier and Biological Chemical Command, Kansas Street, Natick, MA 01760, Phone; (508) 233-4928 or e-mail:
The exclusive licenses will be royalty bearing and will comply with the terms and conditions of 35 U.S.C. 209 and 37 CFR 404.7. The exclusive licenses may be granted, unless within fifteen (15) days from the date of this published notice, SBCCOM receives written evidence and argument to establish that the grant of the license would not be consistent with the requirements of 35 U.S.C. 209 and 37 CFR 404.7 the following Titles, Patent Numbers, and Issue dates are provided:
1.
2.
3.
4.
Department of the Army, U.S. Army Corps of Engineers, DOD.
Notice of intent.
In accordance with the National Environmental Policy Act (NEPA), the Baltimore District, U.S. Army Corps of Engineers (USACE), will conduct a General Reevaluation Report (GRR) and Draft Environmental Impact Statement (DEIS) to evaluate new sand borrow areas for the continued beach replenishment at Ocean City, Maryland, and potential modifications to the existing project to better protect Ocean City at areas of high erosion.
The Atlantic Coast of Maryland Shoreline Protection Project, Ocean City, Maryland, is designed to provide coastal flood and erosion protection to Ocean City. As part of the project design, periodic renourishment and maintenance of the beach are required to maintain the design level of protection. Every four years, approximately 800,000 cubic yards of sand are required to renourish and maintain the beaches. The original feasibility report identified borrow areas that will be consumed within the next eight years (two beach renourishment cycles) or less, assuming no extreme storm events. Estimates show that approximately 10-12 million cubic yards of sand are needed to maintain the four-year cycles for the remaining project life. The District proposes to analyze, evaluate, and select the best site(s) for additional borrow material.
In addition, the project has experienced three persistent areas of erosion, or hot spots, that have required significant amounts of sand renourishment since the project's inception. These areas, centered on 32nd Street, 81st Street, and 146th Street have been examined in the past, and several potential cost-effective solutions were identified. The second purpose of this reevaluation study and resulting GRR is to analyze, evaluate, and select the best alternative to reduce maintenance costs for two of the three areas. The area at 146th Street has been addressed by the Corps' Philadelphia District's Fenwick Island, Delaware, Interim Feasibility Study—Final Integrated Feasibility Report and Environmental Impact Statement.
The study will be conducted in compliance with Section 404 and Section 401 of the Clean Water Act, Section 7 of the Endangered Species Act, the Clean Air Act, the U.S. Fish and Wildlife Coordination Act, Section 106 of the National Historic Preservation Act, Prime and Unique Farmlands, the Magnuson-Stevens Fishery Conservation and Management Act, and National Pollutant Discharge Elimination System Act. All appropriate documentation (
Questions about the proposed action and DEIS can be addressed to Mr. Harold K. Clingerman, U.S. Army Corps of Engineers, ATTN: CENAB-PL-P, 10 South Howard Street, P.O. Box 1715, Baltimore, MD, 21203-1715, telephone 410-962-2650; e-mail address:
1. In September 1991 construction of the shoreline protection features of the project were essentially complete and the project was dedicated on October 30, 1991. The project consists of widening and raising the beach from 4th street to the Maryland-Delaware line (about 8.2 miles) and a 0.3 mile transition into Delaware, construction of a steel sheetpile bulkhead from 4th street to the north end of the boardwalk at 28th Street (about 1.5 miles), construction of a sand dune from the north end of the boardwalk to the Maryland-Delaware line (about 6.7 miles plus a 0.3 mile transition into Delaware), and project operation and maintenance (non-Federal cost). The long-term features of the project include monitoring and renourishment (cost shared 53%/47%) over an economic life of 50 years. Maintenance of the dune and berm above +6 feet NGVD is the financial responsibility of the non-Federal sponsor.
2. As part of the EIS process, recommendations of borrow areas and project modifications will be based on an evaluation of the probable impact of the proposed activity on the public interest. The decision will reflect the national concern for the protection and utilization of important resources. The benefit, which may reasonably be expected to accrue from the proposal, will be balanced against its reasonably foreseeable detriments. All factors that may be relevant to the proposal will be considered, among these are: Fish and wildlife resources; cultural resources; land use; water and air quality; hazardous, toxic, and radioactive substances; threatened and endangered species; regional geology; aesthetics; environmental justice; and the general needs and welfare of the public.
3. The DEIS for the GRR is expected for public release in late 2004.
Department of the Army, U.S. Army Corps of Engineers, DoD.
Notice of open meeting.
In accordance with 10(a)(2) of the Federal Advisory Committee Act (Pub. L. 92-463), announcement is made of the forthcoming meeting. The meeting is open to the public.
Mr. Norman Edwards, Headquarters, U.S. Army Corps of Engineers, Washington, DC 20314-1000; Ph: (202) 761-4559.
The Board advises the Chief of Engineers on environmental policy, identification and resolution of environmental issues and missions, and addressing challenges, problems and opportunities in an environmentally sustainable manner. The EAB will visit many locations on the Missouri River prior to the meeting to gain a better perspective of the issues of national significance associated with that river system. The public meeting, however, will focus on the generic issue of independent science review. The intent of this meeting is to present an opportunity for the Chief of Engineers to receive the views of his EAB. Time will be provided, however, for public comment. Each speaker will be limited to no more than three minutes in order to accommodate as many people as possible within the limited time available. If you wish to receive electronic notice of future meetings you may subscribe to a list server at:
Department of Education.
The Leader, Regulatory Information Management Group, Office of the Chief Information Officer invites comments on the submission for OMB review as required by the Paperwork Reduction Act of 1995.
Interested persons are invited to submit comments on or before November 20, 2003.
Written comments should be addressed to the Office of Information and Regulatory Affairs, Attention: Lauren Wittenberg, Desk Officer, Department of Education, Office of Management and Budget, 725 17th Street, NW., Room 10235, New Executive Office Building, Washington, DC 20503 or should be electronically mailed to the internet address
Section 3506 of the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35) requires that the Office of Management and Budget (OMB) provide interested Federal agencies and the public an early opportunity to comment on information collection requests. OMB may amend or waive the requirement for public consultation to the extent that public participation in the approval process would defeat the purpose of the information collection, violate State or Federal law, or substantially interfere with any agency's ability to perform its statutory obligations. The Leader, Regulatory Information Management Group, Office of the Chief Information Officer, publishes that notice containing proposed information collection requests prior to submission of these requests to OMB. Each proposed information collection, grouped by office, contains the following: (1) Type of review requested,
Responses: 55.
Burden Hours: 1,100.
Requests for copies of the submission for OMB review; comment request may be accessed from
Comments regarding burden and/or the collection activity requirements should be directed to Kathy Axt at her e-mail address
Department of Energy.
Notice of certification.
The Department of Energy (DOE) has completed remedial actions to decontaminate the Ventron site in Beverly, Massachusetts. This property formerly was found to contain quantities of radioactive material from activities conducted for the Manhattan Engineer District (MED) (and its successor the Atomic Energy Commission (AEC)) from 1942 to 1948. Based on the analysis of all data collected, DOE has concluded that the property is in compliance with DOE radiological decontamination criteria and standards and that no radiological restrictions on the use of the property are required.
The certification docket is available at the following locations:
Donald Mackenzie, Health Physicist, U.S. Department of Energy, Ohio Office, Office of Site Closure, EM-31/Cloverleaf Building, 1000 Independence Avenue, SW., Washington, DC 20585-2040, Phone: (301) 903-7426, Fax: (301) 903-2385.
The U.S. DOE, Oak Ridge Operations Office (OR), Office of Environmental Management, has conducted remedial action at the Ventron site in Beverly, Massachusetts, under the Formerly Utilized Sites Remedial Action Program (FUSRAP). The objective of the program is to identify and remediate, or otherwise control, sites where residual radioactive contamination remains from activities carried out under contract to the MED/AEC during the early years of the nation's atomic energy program.
In October 1997, the Energy and Water Appropriations Act, 1998 transferred responsibility for management of FUSRAP to the U.S. Army Corps of Engineers (US ACE). Completion of the certification process was delayed pending preparation of a Memorandum of Understanding (MOU) between DOE and U.S. ACE with regard to completed, remediated sites such as the Ventron property. The MOU between the U.S. DOE and the U.S. ACE regarding Program Administration and Execution of the FUSRAP was signed by the parties in March 1999. Funding to proceed with the completion of DOE closure documentation for several FUSRAP sites, including the Ventron site, was obtained from U.S. ACE in late 2000. The closure documentation for these sites will document the cleanup and inform the public of their successful decontamination of radioactive contamination.
From 1942 to 1948, the Metal Hydrides Corporation (predecessor to the Ventron Corporation) conducted natural uranium processing operations under contract to the MED and its successor, the AEC. The MED/AEC contract operations at the Ventron site involved conversion of uranium oxide to uranium metal powder using calcium hydride. In a process used later at the facility, uranium oxide was reacted with hydrogen fluoride to produce uranium tetrafluoride, which was mixed with magnesium and heated to produce uranium metal. Other operations at the site involved recovery of uranium from scrap and turnings resulting from operations at a fuel fabrication plant in Hanford, Washington. Uranium-238 was identified as the primary contaminant of concern associated with MED/AEC activities. Two of the original buildings, which housed foundry facilities, were demolished between 1948 and 1950 (after completion of AEC surveying and decommissioning), and two other buildings (Buildings B and F) were erected at these locations. The remaining original buildings (Buildings A and A-1) contained furnaces, leaching facilities, a mixing room, a drying room, and analytical laboratories. The Alfa Building was used in later non-MED-related thorium operations, reportedly involving purification of thorium compounds. The primary radioactive contaminant resulting from this work was thorium-232.
In 1965, Metal Hydrides Corporation became the Ventron Corporation, which was acquired by the Thiokol Corporation in late 1976. In 1980, Ventron became a division of Morton Thiokol, Incorporated (renamed Morton International in 1990). The site was designated for remedial action under FUSRAP in 1986.
Site characterization was performed in 1992 using the Streamlined Approach for Environmental Restoration method, an expedited approach developed by DOE to quickly and efficiently conduct remedial investigations/feasibility studies at DOE facilities. This approach indicated several areas of contamination.
Primary radioactive contaminants were uranium-238, thorium-232, and radium-226. Residual radioactive contamination (primarily uranium) was identified in soil and in fill, material beneath four buildings, and elevated surface contamination was found in Buildings A and A-1. A Memorandum of Agreement (MOA) signed by DOE and Morton International in 1996 provided that FUSRAP would decontaminate all buildings containing radioactivity above DOE Order 5400.5 guidelines in effect at the time (whether of government or non-government origin) and that Morton would demolish the buildings.
Before remedial action began, the site was surveyed to delineate boundaries of radioactive contamination, supplement existing characterization information, and obtain radiological and chemical data needed to classify the waste generated during cleanup. Waste profile information was necessary to establish acceptability of the various waste streams at the Envirocare of Utah low-
Radiological decontamination of the Ventron site by the DOE occurred in two phases: In September 1995, and from May 1996 to March 1997. Supplemental sampling of the site to verify the adequacy of radiological remediation was performed in July 1997.
In September 1995, the first phase of DOE remediation of site tidal flats (harbor) adjacent to the seawall began. During this first phase of remediation, a walkover was performed over the entire harbor down to the low-tide mark, and areas with elevated levels of radioactive materials were targeted for remediation. Elevated readings were found in three areas. Excavations were completed in the first two areas, and post-remedial action samples were collected. Excavation was halted in the third area because contamination in that area was too extensive to be removed by manual methods. During the second phase of the remedial action, this third area was remediated and post-remedial action samples were collected.
Pursuant to the MOA between DOE and Morton International, several onsite buildings were demolished and the crushed building rubble was sampled. Rubble meeting DOE guidelines contained in DOE Order 5400.5 was stockpiled and used as backfill along the seawall. Building slabs were surveyed and either decontaminated and left in place or removed and disposed of with other contaminated material.
Excavation of contaminated materials was the primary remedial action technique used at the Ventron site. Eleven discrete areas of the site were excavated and verified for compliance with radiological cleanup criteria. Excavations occurred beneath demolished buildings, in the northwest corner of the site, and in the harbor area.
Post-remedial action surveys conducted in 1996 and 1997 have demonstrated, and DOE has certified, that the subject property is in compliance with DOE radiological decontamination criteria and standards in effect at the conclusion of remedial action. These criteria and standards are established to protect members of the general public and occupants of the site and to ensure that reasonably foreseeable future use of the site will result in no radiological exposure above applicable guidelines. Accordingly, this property is released from the FUSRAP program. These findings are supported by the DOE's Certification Docket for the Remedial Action Performed at the Ventron site in Beverly, Massachusetts. DOE makes no representation regarding the condition of the site as a result of activities conducted subsequent to DOE's post-remedial action surveys.
The certification docket will be available for review between 9 a.m. and 4 p.m., Monday through Friday (except Federal holidays), in the DOE Public Reading Room located in Room 1E-190 of the Forrestal Building, 1000 Independence Avenue, SW., Washington, DC. Copies of the certification docket will also be available in the DOE Information Center, 475 Oak Ridge Turnpike, Oak Ridge, Tennessee, 37831, and the Beverly Public Library, 32 Essex Street, Beverly, Massachusetts, 01915.
The DOE, through the Office Director, Ohio Office (EM-31), Deputy Assistant Secretary for Office of Site Closure (EM-30), the Assistant Secretary for the Office Environmental Management (EM), has issued the following statement:
The DOE, Oak Ridge Operations Office (OR), Office of Environmental Management, Oak Ridge Reservation, Remediation Management Group, and the U.S. DOE Office of Environmental Management (EM), Office of Site Closure (EM-30), Ohio Office (EM-31), has reviewed and analyzed the radiological data obtained following remedial action at the Ventron site in Beverly, Massachusetts, (Deed Book 10091, Page 339, in the records of Essex County, Massachusetts). Based on the analysis of all data collected, including post-remedial action surveys, DOE certifies that any residual contamination remaining onsite at the time remedial actions were completed falls within DOE radiological decontamination criteria and standards for use of the property without radiological restrictions. This certification of compliance provides assurance that reasonably foreseeable future use of the site will result in no radiological exposure above DOE radiological criteria and standards for protecting members of the general public and occupants of the property.
Property owned by: Morton International, Incorporated, 123 North Wacker Drive, Chicago, Illinois, 60606.
Energy Information Administration (EIA), Department of Energy (DOE).
Agency information collection activities: Submission for OMB review; comment request.
The EIA has submitted the Petroleum Supply Reporting System surveys to the Office of Management and Budget (OMB) for review and a three-year extension under section 3507(h)(1) of the Paperwork Reduction Act of 1995 (Pub. L. 104-13) (44 U.S.C. 3501
Comments must be filed by November 20, 2003. If you anticipate that you will be submitting comments but find it difficult to do so within that period, you should contact the OMB Desk Officer for DOE listed below as soon as possible.
Send comments to Bill Nickerson, OMB Desk Officer for DOE, Office of Information and Regulatory Affairs, Office of Management and Budget. To ensure receipt of the comments by the due date, submission by FAX (202-395-7285) or e-mail (
Requests for additional information should be directed to Herbert Miller. To ensure receipt of the comments by the due date, submission by FAX (202-287-1705) or e-mail (
This section contains the following information about the energy information collection submitted to OMB for review: (1) The collection numbers and title; (2) the sponsor (
1. The Petroleum Supply Reporting System includes the following surveys:
2. Energy Information Administration.
3. OMB Number 1905-0165.
4. Revision.
5. Mandatory.
6. EIA's Petroleum Supply Reporting System collects information needed for determining the supply and disposition of crude oil, petroleum products, and natural gas liquids. The data are published by EIA and are used by public and private analysts. Respondents are operators of petroleum refineries, blending plants, bulk terminals, crude oil and product pipelines, natural gas plant facilities, tankers, barges, and oil importers.
7. Business or other for profit; Federal Government; and State, Local or Tribal Government.
8. 83,289 hours (2,590 respondents times 19.37 responses per year times 1.66 hours per response).
The Office of Oil and Gas has made minor modifications subsequent to those proposed in the FR notice for public comments. These additional changes are based upon comments received in response to the FR notice, along with changes in the industry.
These new changes are:
(1) EIA-819—delete the “isobutylene” category from the motor gasoline blending component production
(2) EIA-811—Add the category “unfinished oils” with the following subcategories:
a. Naphthas and Lighter
b. Kerosene and Light Gas Oils
c. Heavy Gas Oils
d. Residuum
(3) EIA-803 and EIA-813—Add a line for crude oil stocks at Cushing, Oklahoma
(4) EIA-811—Collect the volumes of ultra-low sulfur distillate fuel oil (15 ppm and under) downgraded at bulk terminals
Please refer to the supporting statement as well as the proposed forms and instructions for more information about the purpose, who must report, when to report, where to submit, the elements to be reported, detailed instructions, provisions for confidentiality, and uses (including possible nonstatistical uses) of the information. For instructions on obtaining materials, see the
Section 3507(h)(1) of the Paperwork Reduction Act of 1995 (Pub. L. 104-13)(44 U.S.C. 3501
Environmental Protection Agency (EPA).
Notice.
In compliance with the Paperwork Reduction Act (44 U.S.C. 3501
Additional comments may be submitted on or before November 20, 2003.
Submit your comments, referencing docket ID number OAR-2003-0070, to (1) EPA online using EDOCKET (our preferred method), by email to
Kristin Kenausis, Office of Atmospheric Programs, Global Programs Division, Environmental Protection Agency, Mail Code 6205J, 1200 Pennsylvania Ave., NW., Washington, DC 20460; telephone number: (202) 564-2289; fax number: (202) 565-2095; email address:
EPA has submitted the following ICR to OMB for review and approval according to the procedures prescribed in 5 CFR 1320.12. On May 21, 2003 (68
EPA has established a public docket for this ICR under Docket ID No. OAR-2003-0070, which is available for public viewing at the Air and Radiation Docket and Information Center 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 Air and Radiation Docket and Information Center is (202) 566-1742. An electronic version of the public docket is available through EPA Dockets (EDOCKET) at
Any comments related to this ICR should be submitted to EPA and OMB within 30 days of this notice. 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 CBI, or whose disclosure is otherwise restricted by statute, is not included in the official public docket, and will not be available for public viewing in EDOCKET. For further information about the electronic docket, see EPA's Federal Register notice describing the electronic docket at 67 FR 38102 (May 31, 2002), or go to
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 in 40 CFR are listed in 40 CFR part 9 and are identified on the form and/or instrument, if applicable.
Environmental Protection Agency (EPA).
Notice; correction.
The Environmental Protection Agency, Science Advisory Board (SAB) Staff Office, published a document in the
October 30, 2003. A public teleconference for the Health Effects Subcommittee (HES) will be held from 12 p.m. to 2 p.m. (Eastern Time).
Members of the public who wish to obtain the call-in number and access code to participate in the teleconference meeting may contact Ms. Sandra Friedman, EPA Science Advisory Board Staff Office, at telephone/voice mail: (202) 564-2526; or via e-mail at:
Environmental Protection Agency (EPA).
Notice.
The EPA announces an expert peer review panel meeting on the natural gas supply curves and associated assumptions developed for EPA by ICF Consulting, Inc. for use in EPA applications of ICF's Integrated Planning Model (IPM). In accordance with provisions in EPA's Peer Review Handbook (EPA 100-B-00-001), the meeting is being conducted by a third party EPA contractor, Perrin Quarles Associates, Inc. The meeting of the peer review panel is open to the public. The public may submit written comments for review by EPA up to two weeks after the date of the meeting, and EPA will consider those comments in conjunction with the input from the peer review panel. Time permitting, there may be a limited opportunity for oral comments from the public before the panel at the end of the first day's session. General information about the IPM, the natural gas supply curves and associated assumptions, and the use of IPM by EPA can be found at
The peer review will be held in two sessions. The first, on October 23, 2003, will begin at 9 a.m. and conclude no later than 6 p.m. (eastern time), and the second, on October 24, 2003, will begin at 9 a.m. and conclude no later than 2 p.m. (eastern time).
The peer review will be held at the Phoenix Park Hotel, 520 North Capitol St., NW., Washington, DC. Written comments can be sent by mail to Mr. Brian Menard, Perrin Quarles Associates, Inc., 675 Peter Jefferson Parkway, Suite 200, Charlottesville, VA 22911 or by email to
Any member of the public who wishes to address the peer review panel during the public input period at the end of the first day's session should contact Mr. Brian Menard, Perrin Quarles Associates, Inc., at telephone: (434) 979-3700, or via e-mail at:
Environmental Protection Agency.
Notice, request for public comments.
In accordance with section 311(b)(6)(C) of the Clean Water Act, (“CWA”), 33 U.S.C. 1321(b)(6)(C), notice is hereby given of a proposed Complaint, Consent Agreement and Final Order (“CCA/FO,” Region 9 Docket No. OPA 9-2003-0003), which resolves penalties for alleged violations of sections 311(b)(3) and 311(j) of the CWA. The respondent to the CCA/FO is Crimson Resource Management Corp. Through the proposed CCA/FO, Crimson Resource Management Corp. will pay $30,000 to the Oil Spill Liability Trust Fund as a penalty for alleged violations involving the discharge of oil into waters of the United States, and the failure to prepare and maintain a Spill Prevention, Control and Countermeasure plan. The penalty included in this CCA/FO was calculated in accordance with the Agency's guidance document, Civil Penalty Policy for Section 311(b)(3) and section 311(j) of the Clean Water Act, dated August 21, 1998. For forty (40) days following the date of publication of this Notice, the Agency will receive written comments relating to the proposed CCA/FO. Any person who comments on the proposed CCA/FO shall be given notice of any hearing held and a reasonable opportunity to be heard and to present evidence. If no hearing is held regarding comments received, any person commenting on this proposed CCA/FO may, within 40 days after the issuance of the final order, petition the Agency to set aside the CCA/FO, as provided by section 311(b)(6)(C)(iii) of the CWA, 33 U.S.C. 1321(b)(6)(C)(iii).
Comments must be submitted on or before December 1, 2003.
The proposed CCA/FO may be obtained from Laurie Williams, telephone (415) 972-3867. Comments regarding the proposed CCA/FO should be addressed to Danielle Carr (ORC-1) at 75 Hawthorne Street, San Francisco, California 94105, and should reference Crimson Resource Management Corp. and Region 9 Docket No. OPA 9-2003-0007.
Laurie Williams (ORC-3), Office of Regional Counsel, U.S. Environmental Protection Agency, Region 9, 75 Hawthorne Street, San Francisco, CA 94105, (415) 972-3867.
Environmental Protection Agency (EPA).
Notice.
EPA is providing notice of a proposed administrative penalty assessment for alleged violations of the
EPA is authorized under Section 309(g) of the Act, 33 U.S.C. 1319(g), to assess a civil penalty after providing the person subject to the penalty notice of the proposed penalty and the opportunity for a hearing, and after providing interested persons notice of the proposed penalty and a reasonable opportunity to comment on its issuance. Under section 309(g), any person who has violated Sections 301(a) or Section 308(a) of the Act, 33 U.S.C. 1311(a), 1318(a), including any person who has violated any permit condition or limitation, may be assessed a penalty in a “Class II” administrative penalty proceeding.
Class II proceedings under section 309(g) are conducted in accordance with the “Consolidated Rules of Practice Governing the Administrative Assessment of Civil Penalties, Issuance of Compliance or Corrective Action Orders, and the Revocation, Termination or Suspension of Permits” (“Part 22”), 40 CFR part 22. The procedures through which the public may submit written comment on a proposed Class II order or participate in a Class II proceeding, and the procedures by which a respondent may request a hearing, are set forth in part 22. The deadline for submitting public comment on a proposed Class II order is forty (40) days after publication of this notice.
On September 30, 2003, EPA filed with Danielle Carr, Regional Hearing Clerk, U.S. EPA, Region IX, 75 Hawthorne Street, San Francisco, California 94105, (415) 744-1391, the following Administrative Complaint:
Persons wishing to receive a copy of EPA's Consolidated Rules, review the Complaint or other documents filed in this proceeding, comment upon the proposed assessment, or otherwise participate in the proceeding should contact Danielle Carr, Regional Hearing Clerk, U.S. EPA, Region IX, 75 Hawthorne Street, San Francisco, California 94105, (415) 744-1391. The administrative record for this proceeding is located in the EPA Regional Office identified above, and the file will be open for public inspection during normal business hours. All information submitted by the Respondent is available as part of the administrative record, subject to provisions of law restricting public disclosure of confidential information. In order to provide opportunity for public comment, EPA will issue no final order assessing a penalty in these proceedings prior to forty (40) days after the date of publication of this notice.
Farm Credit Administration.
Notice of availability; request for comment.
This notice announces the availability of the Farm Credit Administration's (FCA or agency) Draft Strategic Plan for Fiscal Years 2004-2009. The Government Performance and Results Act of 1993 requires that Federal agencies update their strategic plans at least every 3 years and, in doing so, solicit the views and suggestions of those entities potentially affected by or interested in the plan. Therefore, the agency is interested in receiving comments on our draft strategic plan.
Comments must be submitted by November 20, 2003.
The draft strategic plan is available on the agency's Web site at
Jeff Walker, Executive Assistant, Office of the Chief Operating Officer, Farm Credit Administration, McLean, VA 22102-5090, (703) 883-4271; TTY (703) 883-4056.
The Farm Credit Administration (FCA or agency) is charged by Congress, as established in title V of the Farm Credit Act of 1971, as amended, with the mandate of overseeing the agricultural Government-sponsored enterprises (GSEs) serving rural America. These include the Farm Credit System (System) and the Federal Agricultural Mortgage Corporation. FCA also has statutory responsibility to examine the National Consumer Cooperative Bank, a non-System entity operating as a federally chartered, privately owned banking corporation.
The Government Performance and Results Act of 1993 (GPRA) requires that each Federal agency establish a strategic plan that covers a period of not less than 5 years. It also mandates that these plans be updated and revised at least every 3 years. In accordance with GPRA, FCA issued its first strategic plan in 1997. A revised plan was approved in 2000. Thus, the Draft Strategic Plan for Fiscal Years 2004-2009 represents the second update to the agency's original strategic plan completed under GPRA. The draft strategic plan describes our mission, our strategic goals, and strategies to achieve those goals over the next 5 years.
The Draft Strategic Plan for Fiscal Years 2004-2009 is the culmination of an extensive outreach effort. The FCA Board began its work on this plan in April 2003 by initiating a series of strategic planning sessions to seek input from farmers, the Farm Credit Council and other Farm Credit System representatives, academics and economists, the American Bankers Association, the Independent Community Bankers of America, former FCA Board chairmen and FCA senior management. Subsequent planning sessions held by the Board and the Office of the Chief Operating Officer over the next several months were used to establish specific direction for formulation of the current draft. Senior management provided input throughout the drafting phase.
Having formulated a draft strategic plan, at this point FCA wants to return our product to our external public for review. We anticipate posting the final strategic plan on the Internet in December 2003.
The Federal Communications Commissions, as part of its continuing effort to reduce paperwork burden invites the general public and other Federal agencies to take this opportunity to comment on the following information collection, as required by the Paperwork Reduction Act of 1995, Public Law 104-13. An agency may not conduct or sponsor a collection of information unless it displays a currently valid control number. No person shall be subject to any penalty for failing to comply with a collection of information subject to the Paperwork Reduction Act (PRA) that does not display a valid control number. Comments are requested concerning (a) whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; (b) the accuracy of the Commission's burden estimate; (c) ways to enhance the quality, utility, and clarity of the information collected; and (d) ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology.
Written comments should be submitted on or before November 20, 2003. If you anticipate that you will be submitting comments, but find it difficult to do so within the period of time allowed by this notice, you should advise the contact listed below as soon as possible.
Direct all comments to Les Smith, Federal Communications Commission, Room 1-A804, 445 12th Street, SW., Washington, DC 20554 or via the Internet to
For additional information or copies of the information collections contact Les Smith at (202) 418-0217 or via the Internet at
OMB Control Number: 3060-0110.
Federal Communications Commission.
Notice of meeting.
The Federal Communications Commission will hold a Localism Task Force hearing in Charlotte, North Carolina, on October 22, 2003, on localism in the broadcast industry. The purpose of the hearing is to gather information from a variety of sources, including consumers, industry, and civic organizations on broadcasters' service to their local communities.
The hearing will be held on Wednesday, October 22, 2003, from 5:30 p.m. to 8:45 p.m.
The hearing will be held at the Charlotte-Mecklenberg Government Meeting Chamber, located at 600 East Fourth Street, Charlotte, NC 28203.
Eric Bash, 202-418-1188.
The Federal Communications Commission (FCC) will hold a Localism Task Force hearing on the subject of localism, to be held on October 22, 2003, in Charlotte, North Carolina. Several FCC Commissioners will preside. The hearing is open to the public, and seating will be available on a first-come, first-served basis. The purpose of the hearing is to gather information from consumers, industry, civic organizations, and others on broadcasters' service to their local communities. The Charlotte hearing will begin with a number of invited guests and panelists making brief introductory remarks. The Commissioners will then have an opportunity to ask the panelists questions or comment on the subject of localism, and the public will be afforded an opportunity to register their views.
2. Open captioning will be provided for this event. Other reasonable accommodations for people with disabilities are available upon request. Please include a description of the accommodation needed, providing as much detail as you can, as well as contact information in case additional information is needed. Please make your request as early as possible. Last minute requests will be accepted, but may be impossible to fulfill. Please send a request by e-mail to
3. The hearing will be recorded, and the record will be available to the public. The public may also file comments or other documents with the Commission. Filing instructions are provided at
Federal Communications Commission.
Federal Communications Commission.
Notice of meeting.
In accordance with the Federal Advisory Committee Act, this notice advises interested persons of a meeting of the Media Security and Reliability Council (Council). The meeting will be held at the Federal Communications Commission in Washington, DC.
Tuesday, March 2, 2004 at 10 a.m. to 11:30 a.m.
Federal Communications Commission, 445 12th St., SW., Room TW-C305, Washington, DC.
Barbara Kreisman at 202-418-1600 or TTY 202-418-7172.
The Council was established by the Federal Communications Commission to bring together leaders of the broadcast and multichannel video programming distribution industries and experts from consumer, public safety and other organizations to explore and recommend measures that would enhance the security and reliability of media facilities and services.
The Council will receive final reports and recommendations from its working groups. The Council may also discuss such other matters as come before it at the meeting.
Members of the general public may attend the meeting. The Federal Communications Commission will attempt to accommodate as many people as possible. Admittance, however, will be limited to the seating available. The public may submit written comments before the meeting to Barbara Kreisman, the Commission's Designated Federal Officer for the Media Security and Reliability Council, by e-mail (
The notificants listed below have applied under the Change in Bank Control Act (12 U.S.C. 1817(j)) and § 225.41 of the Board’s Regulation Y (12 CFR 225.41) to acquire a bank or bank
The notices are available for immediate inspection at the Federal Reserve Bank indicated. The notices also will be available for inspection at the office of the Board of Governors. Interested persons may express their views in writing to the Reserve Bank indicated for that notice or to the offices of the Board of Governors. Comments must be received not later than November 5, 2003.
Board of Governors of the Federal Reserve System, October 16, 2003.
This notice corrects a notice (FR Doc. 03-25676) published on page 58683 of the issue for Friday, October 10, 2003.
Under the Federal Reserve Bank of Dallas heading, the entry for Tradition Bancshares, Inc., Houston, Texas, is revised to read as follows:
Comments on this application must be received by November 3, 2003.
Board of Governors of the Federal Reserve System, October 15, 2003.
The companies listed in this notice have applied to the Board for approval, pursuant to the Bank Holding Company Act of 1956 (12 U.S.C. 1841
The applications listed below, as well as other related filings required by the Board, are available for immediate inspection at the Federal Reserve Bank indicated. The application also will be available for inspection at the offices of the Board of Governors. Interested persons may express their views in writing on the standards enumerated in the BHC Act (12 U.S.C. 1842(c)). If the proposal also involves the acquisition of a nonbanking company, the review also includes whether the acquisition of the nonbanking company complies with the standards in section 4 of the BHC Act (12 U.S.C. 1843). Unless otherwise noted, nonbanking activities will be conducted throughout the United States. Additional information on all bank holding companies may be obtained from the National Information Center website at
Unless otherwise noted, comments regarding each of these applications must be received at the Reserve Bank indicated or the offices of the Board of Governors not later than November 14, 2003.
Board of Governors of the Federal Reserve System, October 15, 2003.
The companies listed in this notice have applied to the Board for approval, pursuant to the Bank Holding Company Act of 1956 (12 U.S.C. 1841
The applications listed below, as well as other related filings required by the Board, are available for immediate inspection at the Federal Reserve Bank indicated. The application also will be available for inspection at the offices of the Board of Governors. Interested persons may express their views in writing on the standards enumerated in the BHC Act (12 U.S.C. 1842(c)). If the proposal also involves the acquisition of a nonbanking company, the review also includes whether the acquisition of the nonbanking company complies with the standards in section 4 of the BHC Act (12 U.S.C. 1843). Unless otherwise noted, nonbanking activities will be conducted throughout the United States. Additional information on all bank holding companies may be obtained from the National Information Center website at www.ffiec.gov/nic/.
Unless otherwise noted, comments regarding each of these applications must be received at the Reserve Bank indicated or the offices of the Board of Governors not later than November 14, 2003.
Board of Governors of the Federal Reserve System, October 16, 2003.
Federal Trade Commission (FTC).
Notice.
The FTC has submitted to the Office of Management and Budget (OMB) for review under the Paperwork Reduction Act (PRA) information collection requirements contained in its Alternative Fuel Rule. The FTC is seeking public comments on the proposal to extend through November 30, 2006 the current PRA clearance for information collection requirements contained in the Rule. That clearance expires on November 30, 2003.
Comments must be filed by November 20, 2003.
Send written comments to Secretary, Federal Trade Commission, Room H-159, 600 Pennsylvania Avenue, NW., Washington, DC 20580, or by e-mail to
Requests for copies of the collection of information and supporting documentation should be addressed to Neil Blickman, Division of Enforcement, Bureau of Consumer Protection, Federal Trade Commission, 601 New Jersey Ave., NW., Room NJ-2245, Washington, DC 20580.
On August 6, 2003, the FTC sought comment on the information collection requirements associated with the Alternative Fuel Rule (“Rule”), 16 CFR Part 309 (Control Number: 3084-0094). See 68 FR 46640. No comments were received. Pursuant to the OMB regulations that implement the PRA (5 CFR Part 1320), the FTC is providing this second opportunity for public comment while seeking OMB approval to extend the existing paperwork clearance for the Rule.
Comments from members of the public are invited, and may be filed with the Commission in either paper or electronic form. A public comment filed in paper form should be mailed or delivered to the following address: Federal Trade Commission/Office of the Secretary, Room 159-H, 600 Pennsylvania Avenue, NW., Washington, DC 20580. If the comment contains any material for which confidential treatment is requested, it must be filed in paper (rather than electronic) form, and the first page of the document must be clearly labeled “Confidential.”
The Rule, which implements the Energy Policy Act of 1992, Public Law 102-486, requires disclosure of specific information on labels posted on fuel dispensers for non-liquid alternative fuels and on labels on Alternative Fueled Vehicles (AFVs). To ensure the accuracy of these disclosures, the Rule also requires that sellers maintain records substantiating produce-specific disclosures they include on these labels.
It is common practice for alternative fuel industry members to determine and monitor fuel ratings in the normal course of their business activities. This is because industry members must know and determine the fuel ratings of their products in order to monitor quality and to decide how to market them. “Burden” for PRA purposes is defined to exclude effort that would be expended regardless of any regulatory requirement. 5 CFR 1320.2(b)(2). Moreover, as originally anticipated when the Rule was promulgated in 1995, many of the information collection requirements and the originally-estimated hours were associated with one-time start up tasks of implementing standard systems and processes.
Other factors also limit the burden associated with the Rule. Certification may be a one-time event or require only infrequent revision. Disclosures on electric vehicle fuel dispensing systems may be useable for several years. (Label specifications were designed to produce labels to withstand the elements for several years.) Nonetheless, there is still some burden associated with posting labels. There also will be some minimal burden associated with new or revised certification of fuel ratings and recordkeeping. The burden on vehicle manufacturers is limited because only newly-manufactured vehicles will require label posting and manufacturers produce very few new models each year. Finally, there will be some burden, also minor, associated with recordkeeping requirements.
Thus, total burden for these industries combined is approximately 2,100 hours (1,050 + 1,041).
Labor costs are derived by applying appropriate hourly cost figures to the burden hours described above. According to Bureau of Labor Statistics staff, the average compensation for producers and distributors in the fuel industry is $18.98 per hour and $8.56 per hour for service station employees; the average compensation for workers in the vehicle industry is $27.80 per hour.
The maximum labor cost to the entire industry is approximately $28,939.80 per year for recordkeeping and producing and posting labels (1,041 total hours × $27.80/hour).
Thus, estimated total labor cost for both industries for all paperwork requirements is $47,000 ($18,366.00 + $28,939.80) per year, rounded to the nearest thousand.
Staff believes that there are no current start-up costs associated with the Rule, inasmuch as the Rule has been effective since 1995. Industry members, therefore, have in place the capital equipment and means necessary, especially to determine automotive fuel ratings and comply with the Rule. Industry members, however, incur the cost of procuring fuel dispenser and AFV labels to comply with the Rule. The estimated annual fuel labeling cost, based on estimates of 500 fuel dispensers (assumptions: an estimated 20% of 1,250 total retailers need to replace labels in any given year given an approximate five-year life of labels—i.e., 250 retailers—multiplied by an average of two dispensers per retailer) at thirty-eight cents for each label (per industry sources), is $190.00.
Here, too, staff believes that there are no current start-up costs associated with the Rule, for the same reasons as stated immediately above regarding the non-liquid alternative fuel industry. However, based on the labeling of an estimated 30,000 new and used AFVs each year at thirty-eight cents for each label (per industry sources), the annual AFV labeling cost is estimated to be $11,400.
Thus, estimated total annual non-labor cost burden associated with the Rule is $12,000 ($190.00 + $11,400.00), rounded to the nearest thousand.
Federal Trade Commission.
Delegation of authority.
The Commission has delegated authority to the Associate Director for International Consumer Protection to respond to disclosure and other requests from Ireland's Office of the Director of Consumer Affairs pursuant to a memorandum of understanding with the Commission.
October 2, 2003.
Pablo Zylberglait, Legal Advisor for International Consumer Protection, International Division of Consumer Protection, (202) 326-3260,
Notice is hereby given, pursuant to Reorganization Plan No. 4 of 1961, 26 FR 6191, that the Commission has delegated to the Associate Director for International Consumer Protection the authority to respond to disclosure and other requests from Ireland's Office of the Director of Consumer Affairs pursuant to a memorandum of understanding with the Commission about consumer protection information sharing and enforcement cooperation. This delegated authority does not apply to competition-related investigations. When exercising its authority under this delegation, staff may only disclose information regarding consumer protection investigations involving Ireland, and will require assurances of confidentiality from Ireland's Office of the Director of Consumer Affairs. Disclosures shall be made only to the extent consistent with current limitations on disclosure, including section 6(f) of the FTC Act, 15 U.S.C. 46(f), section 21 of the Act, 15 U.S.C. 57b-2, and Commission Rule 4.10(d), 16 CFR 4.10(d), and with the Commission's enforcement policies and other important interests. Where the subject matter of the information to be shared raises significant policy concerns, staff shall consult with the Commission before disclosing such information.
By direction of the Commission.
Pursuant to section 2 of Public Law 537, 80th Congress, approved May 19, 1948 (16 U.S.C. 667c), notice is hereby given that:
1. The General Services Administration transferred 15.29 acres of land and improvements, identified as Matagorda Island Lighthouse Reservation, Matagorda Island, TX to the U.S. Fish and Wildlife Service, Department of the Interior by transfer letter dated May 30, 2000.
2. The above property was conveyed for wildlife conservation in accordance with the provisions of section 1 of Public Law 80-537 (16 U.S.C. 667b), as amended by Public Law 92-432.
A notice announcing the availability of fiscal year (FY) 2004 funds for cooperative agreements for Programs to Improve the Health, Education, and Well-Being of Young People was published in the
On page 58109, Column 3, Section I. “Other Requirements”, section 3, Financial Status Report, delete “Within 90 days after the end of the entire two-year project period (by August 14, 2005) and replace with “Within 90 days after the end of the entire two-year project period (by August 14, 2006).
In addition, a summary of program announcement 04010, Programs to Improve the Health, Education, and Well-Being of Young People, was published in the
Annual Burden Estimates:
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is announcing the availability of a document entitled “Statement of Work for the Evaluation of First Cycle Review Performance.” FDA requests comment on the document, which describes a study to evaluate issues associated with FDA's conduct of first cycle reviews of new drug applications (NDAs), biological license applications (BLAs), and efficacy supplements. FDA intends to award a contract to an independent expert consultant that would include, among other tasks, the performance of such a study. The document, as currently written, will be included in the Request for Proposal (RFP) as a sample statement of work. However, prior to actually assigning the task under the contract, FDA intends to finalize the statement of work after considering all received comments.
Submit written comments on the document by November 20, 2003.
Submit written requests for single copies of the document to First Cycle Review, Office of Planning (HFP-10), Food and Drug Administration, 5600 Fishers Lane, Rockville, MD 20857. Send one self-addressed adhesive label to assist that office in processing your requests. Persons with access to the Internet may obtain the document at
Carolyn L. Staples, Office of Planning (HFP-10), Food and Drug Administration, 5600 Fishers Lane, Rockville, MD 20857, 301-827-5274.
FDA is announcing the availability of a document entitled “Statement of Work for the Evaluation of First Cycle Review Performance.” FDA requests comment on the document, which describes a study to evaluate issues associated with FDA's performance of first cycle reviews of NDAs, BLAs, and efficacy supplements.
On June 12, 2002, the President signed the Public Health Security and Bioterrorism Preparedness and Response Act of 2002, which includes the Prescription Drug User Fee Amendments of 2002 (PDUFA III). In conjunction with the passage of PDUFA III, FDA agreed to certain performance goals and procedures that were described in an enclosure to a June 4, 2002, letter from the Secretary of Health and Human Services, Tommy Thompson, to Congress entitled “PDUFA Reauthorization Performance Goals and Procedures” (PDUFA Goals and Procedures). One of the goals relates to FDA's performance of first cycle reviews of original NDAs, BLAs, and efficacy supplements (PDUFA Goals and Procedures, section 10). Specifically, FDA agreed to retain an independent expert consultant to undertake a study to evaluate issues associated with the agency's conduct of first cycle reviews. The study is intended to assess the following: (1) Current first cycle review performance and any changes that occur after FDA publishes guidance on Good Review Management Principles (GRMPs), (2) the first cycle review history of all NDAs for new molecular entities and all BLAs during PDUFA III, and (3) the effectiveness of FDA's staff training regarding GRMPs. FDA agreed to develop a statement of work for the study and to provide the public with an opportunity to review and comment on the statement of work before the study is implemented.
In accordance with one of the PDUFA goals, the document being made available for public comment today is the statement of work developed by FDA. FDA intends to award a contract that would include, among other tasks, the performance of the study. The document, as currently written, will be included in the RFP as a sample statement of work. However, the statement of work is not yet final. FDA will consider all comments received in finalizing the statement of work prior to assigning the task under the contract.
Interested persons may submit to the Division of Dockets Management (see
In compliance with Section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995 concerning opportunity for public comment on proposed collections of information, the Substance Abuse and Mental Health Services Administration will publish periodic summaries of proposed projects. To request more information on the proposed projects or to obtain a copy of the information collection plans, call the SAMHSA Reports Clearance Officer on (301) 443-7978.
Comments are invited on: (a) Whether the proposed collections of information are necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden of the proposed collection of information; (c) 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.
Data will be collected on 23 service systems, and approximately 5,281 children and families. Data collection for this evaluation will be conducted over a five-year period. The core of service system data will be collected every 18 months throughout the 5-year evaluation period, with a sustainability survey conducted in selected years. Service delivery and system variables of interest include the following: Maturity of system of care development, adherence to the system of care program model, and client service experience. The length of time that individual families will participate in the study ranges from 18 to 36 months depending on when they enter the evaluation.
Child and family outcomes of interest will be collected at intake and during subsequent follow-up sessions at six-month intervals. The outcome measures include the following: Child symptomatology and functioning, family functioning, material resources, and caregiver strain. In addition, an evidence-based treatment study will examine the relative impact of evidence-based treatments focused on substance use prevention within 2 systems of care. Time-limited studies addressing the cultural competence of services and the role of primary care providers in systems of care will be conducted at selected points during the evaluation period. Internet-based technology will be used for collecting data via Web-based surveys and for data entry and management. The average annual respondent burden is estimated below. The estimate reflects the average number of respondents in each respondent category, the average
Send comments to Nancy Pearce, SAMHSA Reports Clearance Officer, Room 16-105, Parklawn Building, 5600 Fishers Lane, Rockville, MD 20857. Written comments should be received within 60 days of this notice.
Coast Guard, DHS.
Request for comments.
In compliance with the Paperwork Reduction Act of 1995, the Coast Guard intends to seek the approval of OMB for the renewal of one Information Collection Request (ICR). The ICR concerns surveys of customers' satisfaction. Before submitting the ICR to OMB, the Coast Guard is inviting comments.
Comments must reach the Coast Guard on or before December 22, 2003.
To make sure that your comments and related material do not enter the docket [USCG 2003-16298] more than once, please submit them by only one of the following means:
(1) By mail to the Docket Management Facility, U.S. Department of Transportation (DOT), room PL-401, 400 Seventh Street SW., Washington, DC 20590-0001.
(2) By delivery to room PL-401 on the Plaza level of the Nassif Building, 400 Seventh Street SW., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The telephone number is 202-366-9329.
(3) By fax to the Facility at 202-493-2251.
(4) Electronically through the Web Site for the Docket Management System at
(5) Electronically through Federal eRule Portal:
The Facility maintains the public docket for this notice. Comments and material received from the public, as well as documents mentioned in this notice as being available in the docket, will become part of this docket and will be available for inspection or copying at room PL-401 on the Plaza level of the Nassif Building, 400 Seventh Street SW., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. You may also find this docket on the Internet at
Copies of the complete ICR are available through this docket on the Internet at
Barbara Davis, Office of Information Management, 202-267-2326, for questions on this document; or Andrea M. Jenkins, Program Manager, U.S. Department of Transportation, 202-366-0271, for questions on the docket.
We encourage you to participate in this request for comment by submitting comments and related materials. We will post all comments received, without change, to
The Coast Guard encourages interested persons to submit comments. Persons submitting comments should
Office of the Assistant Secretary for Public and Indian Housing, HUD.
Notice.
This notice advises public housing agencies (PHAs) and the public that HUD will extend the use of four elements that were part of the interim scoring processes for the Public Housing Assessment System (PHAS) Physical Condition Indicator. HUD adopted interim scoring processes for two of the four PHAS indicators “ Physical Condition and Financial Condition—by notice published in the
After consideration, the Department has determined not to implement the proposed rule for PHAS. The current PHAS is now fully operational and is providing complete and official assessment scores. Beginning with the fiscal year ending September 30, 2001, PHAs were scored under the four PHAS indicators, rather than issued an advisory score. Since that time, the Department has increased its PHAS-related quality assurance activities.
For further information contact the Office of Public and Indian Housing Real Estate Assessment Center (PIH-REAC), Attention: Wanda Funk, Department of Housing and Urban Development, 1280 Maryland Avenue, SW., Suite 800, Washington DC 20024; telephone the Technical Assistance Center at 1-888-245-4860 (this is a toll free number). Persons with hearing or speech impairments may access that number through TTY by calling the toll-free Federal Information Relay Service at (800) 877-8339.
On March 15, 2002 (67 FR 11844), HUD published a notice adopting PHAS interim scoring processes for PHAs with fiscal years ending September 30, 2001, December 31, 2001, March 31, 2002, June 30, 2002, and September 30, 2002. In that notice, HUD announced interim changes in the scoring methodology for two of the four PHAS assessment indicators: the Physical Condition Indicator and Financial Condition Indicator. Detailed information about the changes to the scoring processes was provided in notices published in the
At the time that the interim scoring processes were adopted on March 15, 2002, the Department advised that if an extension of the interim period were necessary, the Department would notify PHAs and the public by notice published in the
1. The Item Weights and Criticality Levels, Appendix 1 to the Physical Condition Scoring Notice of November 26, 2001, 66 FR 59090-59102;
2. The Dictionary of Deficiency Definitions, Appendix 2 to the Physical Condition Scoring Notice of November 26, 2001, 66 FR 59102-59124;
3. The sampling weights for buildings explained in the section entitled “16. Examples of Sampling Weights for Buildings” of the November 26, 2001 notice, 66 FR 59088; and
4. As stated in the November 26, 2001 notice, 66 FR 59081, the overall PHAS Indicator #1 score will continue to determine the frequency of inspections of a PHA's portfolio. For PHAs whose PHAS Indicator #1 score is 24 or higher based on the 30 point score, physical inspections will be conducted every two years (subject to any changes made in further revisions to the rule or scoring notices). For PHAs whose PHAS Indicator #1 score is less than 24 based on the 30 point score, physical inspections will be conducted annually.
With respect to all other elements of the November 26, 2001 interim scoring methodologies, the Department has determined that an extension of the interim period is not necessary, and by this notice is notifying PHAs and the public that PHAs having fiscal years ending on and after September 30, 2003, the PHAS scores will be issued for effect based on the scoring notices published in the
Itemized in the chart below are the applicable regulations and scoring process notices that, together with the four elements extended by this notice, govern the assessment and scoring of PHAs under the PHAS for PHAs with fiscal years ending September 30, 2003 and after.
Fish and Wildlife Service, Interior.
Notice of 90-day petition finding.
We, the U.S. Fish and Wildlife Service (Service), announce a 90-day finding for a petition to list the wolverine (Gulo gulo luscus) in the contiguous United States as threatened or endangered under the Endangered Species Act of 1973, as amended. We find the petition and additional information available in our files did not present substantial scientific or commercial information indicating that listing the wolverine in the contiguous United States may be warranted. We will not be initiating a further status review in response to this petition. We ask the public to submit to us any new information that becomes available concerning the status of or threats to this species. This information will help us monitor and encourage the conservation of this species.
The finding announced in this document was made on October 15, 2003. You may submit new information concerning this species for our consideration at any time.
Data, information, comments, or questions concerning this petition should be submitted to the Montana Ecological Services Field Office, U.S. Fish and Wildlife Service, 100 North Park Avenue, Suite 320, Helena, Montana 59601. The petition, finding, and supporting information are available for public inspection, by appointment, during normal business hours, at the above address. Submit new information, materials, comments, or questions concerning this species to the Service at the above address.
Lori Nordstrom, at the address given in the
Section 4(b)(3)(A) of the Endangered Species Act of 1973, as amended (Act) (16 U.S.C. 1531
On July 14, 2000, we received a petition dated July 11, 2000, submitted by the Biodiversity Legal Foundation, Predator Conservation Alliance, Defenders of Wildlife, Northwest Ecosystem Alliance, Friends of the Clearwater, and Superior Wilderness Action Network. The petition requests that we list the wolverine within the contiguous United States as a threatened or endangered species and designate critical habitat for the species.
On April 19, 1995, we published a notice of our finding that a previous petition submitted by the Predator Project (now named the Predator Conservation Alliance) and Biodiversity Legal Foundation to list the wolverine in the contiguous United States did not provide substantial information indicating that listing the wolverine in the contiguous United States may be warranted (60 FR 19567).
Since 1995, little new information on wolverine biology, distribution, habitat requirements, or possible threats has been published. The species is still considered one of the least understood medium carnivores. The only new research completed for the contiguous United States is that on wolverine ecology in Idaho (Copeland 1996; Magoun and Copeland 1998; Edelman and Copeland 1999), and a genetic study (Cegelski 2002). Banci (1994) is a compilation of existing wolverine information plus suggestions for research or management considerations. Additional research on wolverine ecology, current and historic
The wolverine has a holarctic distribution. The currently accepted taxonomy classifies wolverines worldwide as a single species,
The wolverine is the largest terrestrial member of the family
Wolverines are opportunistic feeders, consuming a variety of foods depending on availability. They primarily scavenge carrion, but also prey on small animals and birds and eat fruits, berries, and insects (Hornocker and Hash 1981; Wilson 1982; Hash 1987; Banci 1994). Wolverines have an excellent sense of smell, enabling them to find food beneath deep snow (Hornocker and Hash 1981).
Breeding generally occurs from late spring to early fall. Females undergo delayed implantation until the following winter to spring, when active gestation lasts from 30 to 40 days (Rausch and Pearson 1972). Litters are born between February and April, containing one to five kits, with two to three kits being the most common number (Hash 1987). Reproductive dens in Idaho were located in snow-covered boulder talus in subalpine cirque basins (Copeland 1996; Magoun and Copeland 1998).
Wolverines have large spatial requirements; the availability and distribution of food is likely the primary factor in determining wolverine movements and home range (Hornocker and Hash 1981; Banci 1994). Wolverines can travel long distances over rough terrain and deep snow, with adult males generally covering greater distances than females (Hornocker and Hash 1981; Banci 1994). Home ranges of wolverines are generally extremely large, but vary greatly depending on availability of food, gender, age, and differences in habitat. Home ranges of adult wolverines range from less than 100 square kilometers (km2) to over 900 km2 (38.5 square miles (mi2) to 348 mi2) (Banci 1994). Copeland (1996) found that annual home ranges of resident adult females in central Idaho averaged 384 km2 (148 mi2), while the annual home ranges of resident adult males averaged 1,522 km2 (588 mi2).
In North America, wolverines occur within a wide variety of habitats, primarily boreal forests, tundra, and western mountains throughout Alaska and Canada, with the southern portion of the wolverine range extending into the contiguous United States (Wilson 1982; Hash 1987; Banci 1994; Pasitschniak-Arts and Lariviere 1995). The specific range of the wolverine in the contiguous United States is not well understood, preventing us from accurately delineating the historic or current range using the information available to us at this time. The petitioners state that wolverine were trapped to near or complete extinction throughout its former range in the western states in the early 20th century. However, information from state and Federal wildife experts suggest the species has reoccupied its western range in recent years .
The current range in the contiguous United States is believed to include Idaho, Montana, Oregon, Washington, Wyoming, and possibly California (Banci 1994). Wolverines have recently been documented in Idaho (Copeland 1996), Montana (Inman
The wolverine naturally occurs in low densities (Hornocker and Hash 1981; Hash 1987; Banci 1994). Petitioners state that (1) wolverine range and numbers have decreased dramatically since Pre-Columbian times due to human activities and developments, and (2) wolverines currently number fewer than 1,000 animals across the lower 48 states.
However, Hornaker and Hash (1981) asserted stable populations on their study area in Montana, with high dispersal patterns maintaining the stability, rebounding from near extinction in Montana from 1920-1940 (Newby and Wright 1955).
Recent surveys in the west indicate that wolverines appear to be distributed in the montane regions of Idaho, Montana, Washington and Wyoming (Copeland 1996; Washington Department of Wildlife 1998; Inman
Despite the limitations of available wolverine data, the petitioners provided their own estimation of the size of the wolverine population for the contiguous United States. They arrived at their estimate apparently by creating their own measure of local wolverine densities and extrapolating across what they determined to be the current range of wolverine. Given the lack of data on wolverine population densities even at a local level, using such preliminary information to estimate population size is inappropriate.
Based on what we know about wolverines (
At this time, this lack of information prevents us from determining whether wolverines in the contiguous United States constitute a “distinct population segment” (DPS), which would make them eligible to be listed under the Act. Our Distinct Vertebrate Population Policy published in 1996 (61 FR 4722) specifies that we are to use two elements to assess whether a population segment under consideration for listing may be recognized as a DPS—(1) The population segment's discreteness from the remainder of the taxon to which it belongs; and (2) the significance of the population segment to the taxon to which it belongs. A taxon is the taxonomic group of animals to which the population belongs—in this case the subspecies
Under section 4(a) of the Act, we may list a species, subspecies, or DPS of vertebrate on the basis of any of five factors—(A) Destruction, modification, or curtailment of habitat or range; (B) overutilization for commercial, recreational, scientific, or educational purposes; (C) disease or predation; (D) inadequacy of existing regulatory mechanisms; and (E) other man-made or natural factors affecting its continued existence. The petition asserts that wolverines are subject to threats primarily under Factors A, B, and D. The Service used information provided by the petitioners and available in its files to address these factors as follows.
Under Factor A, the petition asserts wolverines have been impacted by the loss of roadless areas due to logging practices. However, Banci (1994) stated that “the impacts of logging and associated activities on wolverines and wolverine habitat can only be surmised.” Wolverines are generally associated with remote areas and require large expanses of land as refugia from human activities, especially during denning. Hornocker and Hash (1981) mentioned that wilderness or remote areas, with limited human activity, appear to be necessary for viable wolverine populations; however, they found no difference in wolverine densities between the wilderness and non-wilderness areas of the study, nor were there differences in their movement, habitat use, or behavior. The non-wilderness portion of the study area was mainly used by humans for logging and recreation (Hornocker and Hash 1981). Copeland (1996) also found wolverines in areas that were currently being logged.
The petitioners cite human disturbance of denning habitat, particularly snowmobile activity, as a threat to wolverines. New research indicates wolverines are sensitive to disturbance when they are denning. In two instances female wolverines moved their kits and abandoned their dens upon encountering researchers; the kits survived the move (Copeland 1996; Magoun and Copeland 1998). Copeland (1996) concluded that protection of natal denning habitat is important to the persistence of wolverine in Idaho. The petitioners provide general information that snowmobile activity is increasing and could expand into regions where wolverines occur, but there is a lack of information to determine the degree to which snowmobile activity may be increasing within wolverine denning habitat or what impact it may be having on wolverine populations.
The petitioners cite landscape fragmentation due to transportation corridors and associated developments as a threat to wolverines. The Service agrees that development is increasing throughout the contiguous United States; however, the level to which landscape fragmentation may be affecting wolverines and their ability to meet their habitat requirements is unknown because little is known about wolverine range and movement. Genetic differentiation among wolverine populations in Idaho, Montana, and Wyoming has been documented, suggesting some level of isolation among these populations possibly as a result of human-caused habitat fragmentation (Cegelski 2002). However, given the lack of understanding of wolverine habitat regarding factors affecting dispersal, all knowledge of possible causes of the genetic differences among these populations is speculative at this time.
Based on the foregoing discussion, we find that the petition does not present substantial information to indicate that habitat impacts threaten the continued existence of the wolverine in the contiguous United States.
Under Factor B, the petitioners cite trapping as a threat to wolverines in the contiguous United States. Over much of the wolverine distribution, trapping has been a primary factor in wolverine mortality (Banci 1994). Trapping is believed to have played a role in an apparent historic decline of wolverine in North America in the late 19th and early 20th centuries (Hash 1987). Today, within the contiguous United States, the only State where wolverine trapping is legal is Montana. Although this trapping season may be detrimental to local wolverine populations, it is not known whether trapping in Montana alone threatens the continued existence of the wolverine population in the contiguous United States. The petitioners also suggest incidental trapping and poisoning of wolverines as a threat, but provide no supporting information for this assertion.
Under Factor C, the petitioners mention predation by other large predators (
Under Factor D, the petition cites a lack of Federal protection as a threat to wolverines because a major part of the wolverine's range falls upon lands managed by the U.S. Forest Service (USFS). The USFS has designated wolverines as a “sensitive species” in Regions 1, 2, 4, and 6, and “proposed sensitive” in Region 5. The Bureau of Land Management has determined wolverine to be “sensetive.” Conservation efforts are planned for various Federal lands and the upcoming USFS report will help improve the scant information currently available.
It is not possible at this time to determine whether management actions threaten the continued existence of wolverines in the contiguous United States. The USFS is leading a cooperative effort with other Federal agencies, States, and Tribes to conduct research and studies for the development of a scientifically-based strategy for conserving wolverines (USFS, in litt. 2002). Initial work is focused on summarizing historic observation data in an effort to delineate historic and current range and habitat relationships. Ongoing research and surveys will examine wolverine ecology, population demographics, distribution, and habitat use with an emphasis on broad-scale movements and population connectivity.
Finally, under Factor E, the petitioners generally cite the wolverine's low reproductive rate, sensitivity during denning, and need for large areas of unfragmented range and habitat as factors making the wolverine vulnerable to extinction. These natural life history characteristics distinguish the wolverine from other medium-sized carnivores. However, reports and surveys of wolverine from Idaho, Montana, Wyoming, and Washington suggest some stability. It is important to collect more information on wolverine occurrence, distribution, and habitat requirements in addition to developing management measures to conserve the species.
In summary, we find that there is insufficient information in the petition or in our files on wolverine habitat requirements or range to determine
We anticipate that ongoing studies of wolverines and, in particular, a scientific assessment of wolverines in the contiguous United States being led by the USFS that should be available in 2004, will improve our understanding of this species in the contiguous United States.
We have reviewed the petition, information submitted by the petitioners, other pertinent literature, and information available in Service files. We find the petition does not present substantial information to indicate that petitioned action may be warranted. This finding is based on insufficient information to—(1) Determine whether the wolverine in the contiguous United States constitutes a DPS under the Act, (2) understand possible threats to the wolverine, or (3) determine whether or not the species is declining in the contiguous United States.
The authority for this action is the Endangered Species Act of 1973, as amended (16 U.S.C. 1531
Bureau of Reclamation, Interior.
Notice of intent to prepare an environmental impact statement/environmental impact report (EIS/EIR) and notice of scoping meeting.
Pursuant to the National Environmental Policy Act (NEPA) and the California Environmental Quality Act (CEQA), the Bureau of Reclamation (Reclamation) and the San Joaquin River Exchange Contractors Water Authority (Exchange Contractors) propose to prepare a joint EIS/EIR for a 10-year water transfer program. The program would consist of the transfer of up to 130,000 acre-feet of substitute water (maximum of 80,000 acre-feet of developed water and a maximum of 50,000 acre-feet from land fallowing) from the Exchange Contractors to other Central Valley Project (CVP) contractors, to Reclamation for delivery to the San Joaquin Valley wetland habitat areas (wildlife refuges), and/or to Reclamation and/or the Department of Water Resources (DWR) for use by the CALFED Environmental Water Account (EWA) as replacement water for CVP contractors. Reclamation would approve and/or execute short-term and/or long-term temporary water transfers or agreements
A public scoping meeting will be held on November 18, 2003 at 6 p.m. in Los Banos, California.
Written comments on the scope of the EIS/EIR should be mailed to Mr. Bob Eckart at the address below by November 25, 2003.
The public scoping meeting will be held at the San Joaquin Exchange Contractors Board Room, 541 H Street, Los Banos, CA 93635.
Written comments on the scope of the EIS/EIR should be sent to Bureau of Reclamation, Mid-Pacific Region, Division of Environmental Affairs, Attention: Mr. Bob Eckart, 2800 Cottage Way, Sacramento, California 95825.
Mr. Bob Eckart at the above address or by calling (916) 978-5051.
The objective of the proposed 10-year transfer program is the transfer of CVP water from the Exchange Contractors to:
• Other CVP contractors to meet demands of agriculture, municipal, and industrial uses,
• the Department of the Interior's Water Acquisition Program for delivery to the San Joaquin Valley Federal, state, and private wildlife refuges, and/or
• Reclamation or DWR for use by the CALFED EWA Program to benefit CVP operations by providing replacement water to CVP contractors.
The Exchange Contractor's proposed water transfer program would assist Reclamation in optimizing the use of limited existing water resources for agriculture, fish and wildlife resources, and municipal and industrial purposes. CVP water would be transferred to other CVP contractors to support the production of agricultural crops and livestock. Also, the Santa Clara Valley Water District is in need of short-term water supplies to support agriculture, municipal, and industrial uses in Santa Clara County. Reclamation's Water Acquisition Program needs additional water to provide the refuges with the increment between Level 2 and Level 4 water quantities for fish and wildlife habitat development. Reclamation or DWR may also need to acquire additional CVP water south of the Delta to replace water used for fish protection actions pursuant to CALFED's EWA Program (for the benefit of the CVP).
The water transfers would occur largely within the San Joaquin Valley of central California. The Exchange Contractors service area covers parts of Fresno, Madera, Merced, and Stanislaus counties. The agricultural water users that would benefit from the potential transfers are located in the counties of Stanislaus, San Joaquin, Merced, Madera, Fresno, San Benito, Santa Clara, Tulare, Kings, and Kern. The wetland habitat areas that may receive the water are located in Merced, Fresno, Kings, Tulare, and Kern counties. Water purchased for use by Reclamation or DWR for the EWA may be provided to CVP contractors in the West San Joaquin and San Felipe divisions to replace water bypassed at Tracy Pumping Plant pursuant to EWA fish protection actions.
Some of the resources potentially affected by transfers under the proposed 10-year transfer program include: surface water, groundwater, biological resources (vegetation, wildlife, and fisheries), land use (including agriculture), socioeconomics, Indian Trust Assets, and environmental justice.
It is Reclamation's practice to make comments, including names and home addresses of respondents, available for public review. Individual respondents may request that we withhold their home addresses from public disclosure, which we will honor to the extent allowable by law. There may also be
60-Day notice of information collection under review: Statement of process-marking of plastic explosives for the purpose of detection.
The Department of Justice (DOJ), Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF), has submitted the following information collection request to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995. The proposed information collection is published to obtain comments from the public and affected agencies. Comments are encouraged and will be accepted for “sixty days” until December 22, 2003. This process is conducted in accordance with 5 CFR 1320.10.
If you have comments especially on the estimated public burden or associated response time, suggestions, or need a copy of the proposed information collection instrument with instructions or additional information, please contact Gary Patterson, Public Safety Branch, 800 K Street NW., Suite 710, Washington, DC 20001.
Written comments and suggestions from the public and affected agencies concerning the proposed collection of information are encouraged. Your comments should address one or more of the following four points:
(1) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(2) Evaluate the accuracy of the agencies estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
(3) Enhance the quality, utility, and clarity of the information to be collected; and
(4) Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
Overview of this information collection:
(1)
(2)
(3)
(4)
(5)
(6)
If additional information is required contact: Ms. Brenda E. Dyer, Deputy Clearance Officer, Policy and Planning Staff, Justice Management Division, Department of Justice, Patrick Henry Building, Suite 1600, 601 D Street NW, Washington, DC 20530.
The Department of Labor (DOL) has submitted the following public information collection request (ICR) to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995 (Pub. L. 104-13, 44 U.S.C. chapter 35). A copy of this ICR, with applicable supporting documentation, may be obtained by calling the Department of Labor. To obtain documentation, contact Darrin King on 202-693-4129 (this is not a toll-free number) or e-mail:
Comments should be sent to Office of Information and Regulatory Affairs, Attn: OMB Desk Officer for the Employment Standards Administration (ESA), Office of Management and Budget, Room 10235, Washington, DC 20503 (202-395-7316/this is not a toll-free number), within 30 days from the date of this publication in the
The OMB is particularly interested in comments which:
• Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
• Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
• Enhance the quality, utility, and clarity of the information to be collected; and
• Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
Notice.
The Department of Labor, as part of its continuing effort to reduce paperwork and respondent burden, conducts a preclearance consultation program to provide the general public and Federal agencies with an opportunity to comment on proposed and/or continuing collections of information in accordance with the Paperwork Reduction Act of 1995 (PRA95) (44 U.S.C. 3506(c)(2)(A)). This program helps to ensure that requested data can be provided in the desired format, reporting burden (time and financial resources) is minimized, collection instruments are clearly understood, and the impact of collection requirements on respondents can be properly assessed. Currently, the Employment Standards Administration is soliciting comments concerning the proposed collection: Davis-Bacon and Related Act/Contract Work Hours and Safety Standards Act Reporting Requirements—Regulations, 29 CFR Part 5. A copy of the proposed information collection request can be obtained by contacting the office listed below in the addresses section of this notice.
Written comments must be submitted to the office listed in the addresses section below on or before December 22, 2003.
Ms. Hazel M. Bell, U.S. Department of Labor, 200 Constitution Ave., NW., Room S-3201, Washington, DC 20210, telephone (202) 693-0418, fax (202) 693-1451, e-mail
This regulation prescribes labor standards for federally financed and assisted construction contracts subject to the Davis-Bacon and Related Acts (DBRA), as well as labor standards for construction contracts subject to the Contract Work Hours and Safety Standards Act (CWHSSA). The Davis-Bacon Act provides that every contract subject to the Act must contain a provision (wage determination) stating the minimum wages and fringe benefits to be paid the various classes of laborers and mechanics employed on the contract. Any class of laborer or mechanic not listed in the wage determination which is to be employed under the contract shall be classified in conformance with the wage determination, and a report of the action shall be submitted through DOL for review and approval. Further, where a benefit plan is not of the conventional type described in the Act and/or common in the construction industry which is established under a customary fund or program, the regulation provides for contractors to request approval of unfunded fringe benefit plans. This information collection is currently approved for use through April 30, 2004.
The Department of Labor is particularly interested in comments which:
• Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
• Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
• Enhance the quality, utility and clarity of the information to be collected; and
• Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
The Department of Labor seeks approval for the extension of this information collection in order to ensure that federal contractors are in compliance with the Davis-Bacon and Related Acts (DBRA) as well as the Contract Work Hours and Safety Standards Act (CWHSSA).
Comments submitted in response to this notice will be summarized and/or included in the request for Office of Management and Budget approval of the information collection request; they will also become a matter of public record.
Pursuant to section 221 of the Trade Act of 1974, an investigation was initiated on September 2, 2003, in response to a worker petition which was filed by a company official on behalf of workers at Conso International Corporation, Union, South Carolina (TA-W-52,710).
There is a duplicate petition in process for the same worker group (TA-W-52,722). Consequently, further investigation in this case would serve no purpose, and the investigation has been terminated.
In accordance with Section 223 of the Trade Act of 1974 (19 U.S.C. 2273) the Department of Labor issued a Notice of Certification Regarding Eligibility to Apply for Worker Adjustment Assistance on January 15, 2003, applicable to workers of Emerson Tool Company, Paris, Tennessee. The notice was published in the
At the request of the company, the Department reviewed the certification for workers of the subject firm. The workers were engaged in the production of power tools.
The company reports that worker separations occurred at the Headquarters, St. Louis, Missouri location of the subject firm. Workers at the St. Louis, Missouri location provide administrative function services for the subject firm's production plant located in Paris, Tennessee.
Based on these findings, the Department is amending the certification to include workers of Emerson Tool Company, Headquarters, St. Louis, Missouri.
The intent of the Department's certification is to include all workers of Emerson Tool Company who were adversely affected by increased imports.
The amended notice applicable to TA-W-50,546 is hereby issued as follows:
All workers of Emerson Tool Company, Paris, Tennessee (TA-W-50.546) and Emerson Tool Company, Headquarters, St Louis, Missouri (TA-W-50,546A), who became totally or partially separated from employment on or after January 10, 2002, through January 15, 2005, are eligible to apply for adjustment assistance under Section 223 of the Trade Act of 1974.
This notice terminates the Certification Regarding Eligibility to Apply for Worker Adjustment Assistance issued by the Department on August 7, 2003, for all workers of Firestone Tube Company located in Russellville, Arkansas. The notice will soon be published in the
The Department, at the request of the State agency, reviewed the certification for workers of Firestone Tube Company, Russellville, Arkansas. Workers of the subject firm produce inner tubes.
The certification review shows that all workers of Firestone Tube Company, Russellville, Arkansas, are covered by an existing certification, TA-W-50,544, issued on July 30, 2003. All workers of the subject firm who became totally or partially separated from employment on or after January 7, 2002, through July 30, 2005, are eligible to apply for adjustment assistance.
Since the workers of Firestone Tube Company, Russellville, Arkansas, are covered by an existing certification, the continuation of this certification would serve no purpose and the certification has been terminated.
Pursuant to section 221 of the Trade Act of 1974, as amended, an investigation was initiated on August 21, 2003, in response to a petition filed by workers at Fisher Controls, a Division of Emerson Process Management, McKinney, Texas.
The petitioners have requested that the petition be withdrawn. Consequently, further investigation would serve no purpose, and the investigation has been terminated.
Pursuant to 29 CFR 90.18(C) an application for administrative reconsideration was filed with the Director of the Division of Trade Adjustment Assistance for workers at Fishing Vessel (F/V) Fawcett Point, State of Alaska Commercial Fisheries Entry Commission Permit #S04K595562L, Old Harbor, Alaska. The application contained no new substantial information which would bear importantly on the Department's determination. Therefore, dismissal of the application was issued.
Pursuant to section 221 of the Trade Act of 1974, as amended, an investigation was initiated on August 20, 2003, in response to a petition filed by a company official on behalf of workers at General Binding Corporation, Boonville, Mississippi.
The petitioner has requested that the petition be withdrawn. Consequently, further investigation would serve no purpose, and the investigation has been terminated.
In accordance with section 223 of the Trade Act of 1974 (19 U.S.C. 2273) the Department of Labor issued a Certification of Eligibility to Apply for Worker Adjustment Assistance on February 3, 2003, applicable to workers of Great Northern Paper Company, Inc., East Millinocket, Maine. The notice was published in the
At the request of the State agency, the Department reviewed the certification for workers of the subject firm. New information shows that worker separations have occurred involving employees of the East Millinocket, Maine facility of Great Northern Paper Company, Inc. operating at various locations in the following states: Illinois, Wisconsin, Connecticut, Ohio, New Jersey and Alabama. These employees provide sales and marketing support function services for the production of directory paper at the East Millinocket, Maine location of the subject firm.
Based on these findings, the Department is amending this certification to include employees of the East Millinocket, Maine location of Great Northern Paper Company, Inc. operating at various locations in the following states: Illinois, Wisconsin, Connecticut, Ohio, New Jersey and Alabama.
The intent of the Department's certification is to include all workers of Great Northern Paper Company, Inc. who were adversely affected by increased imports.
The amended notice applicable to TA-W-50,576 is hereby issued as follows:
All workers of Great Northern Paper Company, Inc., East Millinocket, Maine (TA-W-50,576), including employees of Great Northern Paper Company, Inc., East Millinocket, Maine operating at various locations in the following states: Illinois (TA-W-50,576A), Wisconsin (TA-W-50,576B), Connecticut (TA-W-50,576C), Ohio (TA-W-50,576D), New Jersey (TA-W-50,576E), and Alabama (TA-W-50,576F), who became totally or partially separated from employment on or after January 14, 2002, through February 3, 2005, are eligible to apply for adjustment assistance under Section 223 of the Trade Act of 1974.
In accordance with Section 223 of the Trade Act of 1974 (19 U.S.C. 2273) the Department of Labor issued a Certification of Eligibility to Apply for Worker Adjustment Assistance on August 19, 2002, applicable to workers of Telect, Liberty Lake, Washington. The notice was published in the
At the request of the State agency, the Department reviewed the certification for workers of the subject firm. New information shows that worker separations have occurred involving employees of the Liberty Lake, Washington facility of Telect located in Florida. These employees provided sales function services and customer services for the production of fiber optic patchcords and pigtails at the Liberty Lake, Washington location of the subject firm.
Based on these findings, the Department is amending this certification to include employees of the Liberty Lake, Washington facility of Telect located in Florida.
The intent of the Department's certification is to include all workers of Telect who were adversely affected by increased imports.
The amended notice applicable to TA-W-41,469 is hereby issued as follows:
Pursuant to section 221 of the Trade Act of 1974, an investigation was initiated on August 27, 2003 in response to a worker petition which was filed by UNITE! on behalf of workers at Zawick Manufacturing Company, Hellertown, Pennsylvania.
The petitioner has requested that the petition be withdrawn. Consequently, the investigation has been terminated.
The United States Court of International Trade (USCIT) granted the Secretary of Labor's motion for a voluntary remand for further investigation in
The Department's initial denial of NAFTA-Transitional Adjustment Assistance (NAFTA-6385) for the workers of Ameriphone, Inc., a wholly owned subsidiary of Plantronics, Inc., Garden Grove, California (hereafter “Ameriphone”), was issued on September 11, 2002 and published in the
On March 10, 2003, the Department issued a Notice of Negative Determination Regarding Application for Reconsideration for NAFTA-6385 and published in the
In the request for reconsideration, the petitioner alleged that the workers were engaged in the final phase of production (inspecting, testing and modifying products) as well as prototype design and production. In the reconsideration investigation, the Department found that the articulated functions constituted a negligible portion of the work performed at the subject facility and that the workers were, in fact, service providers.
On voluntary remand, the Department contacted the company and requested detailed information regarding the workers' functions at the subject facility. The newly obtained information revealed that workers at the subject facility were engaged in production. The new information also revealed that a significant portion of the production performed at the subject facility was shifted to Mexico impacting workers at the subject plant.
After careful review of the additional facts obtained on remand, I conclude that a shift of production to Mexico of products like or directly competitive with those produced at the subject firm contributed importantly to the declines in sales or production and to the total or partial separation of workers of Ameriphone, Inc., Garden Grove, California. In accordance with the provisions of the Act, I make the following certification:
All workers of Ameriphone, Inc., a wholly owned subsidiary of Plantronics, Inc., Garden Grove, California, who became totally or partially separated from employment on or after June 24, 2001 through two years of this certification, are eligible to apply for NAFTA-TAA under Section 250 of the Trade Act of 1974.
Marine Mammal Commission.
Notice of intent to charter the Advisory Committee on Anthropogenic Sound and Marine Mammals and request for comments and nominations.
The Omnibus Appropriations Act of 2003 (Pub. L. 108-7) directs the Marine Mammal Commission to organize a series of national and international meetings concerning the impacts of sound on marine mammals and how these impacts may be addressed. To help meet this directive, the Commission is considering the establishment of the Advisory Committee on Anthropogenic Sound and Marine Mammals under the Federal Advisory Committee Act (FACA; Pub. L. 92-463). Committee members would participate in a policy dialogue to review available information, identify research needs, and recommend management actions and strategies.
The Commission is seeking comments regarding:
(1) The need for and desirability of establishing an advisory committee pursuant to FACA;
(2) The issues any such Committee should consider; and
(3) The affected individuals, interest groups, or stakeholders who should be represented.
The Commission is also seeking recommendations for possible Committee members who meet the qualifications specified below.
Comments on this notice of intent and recommendations for Committee members must be submitted in writing before November 5, 2003. The Commission intends to appoint Committee members in December 2003 so that the first Committee meeting can be convened in late January or early February 2004.
Written comments and recommendations should be submitted to Erin Vos, Project Manager for Sound-Related Meetings and Actions, Marine Mammal Commission, 4340 East-West Hwy., Rm. 905, Bethesda, MD 20814, e-mail:
Erin Vos at the above address or e-mail, tel.: (301) 504-0087, or fax: (301) 504-0099; or visit the Commission Web site at
The Commission is considering the
• Entities whose activities introduce anthropogenic sounds into the marine environment, including the academic research community, industry (shipping, oil and gas exploration, etc.), and government agencies;
• Non-governmental organizations, including environmental groups;
• Scientists with pertinent expertise; and
• Government agencies that manage or otherwise affect marine mammals.
The Commission will seek a balanced representation among interested parties. Committee members will be expected to have a high level of interest or expertise concerning the impacts of sound on marine mammals and other components of the marine environment. Additional criteria considered when selecting Committee members may include:
• Ability to attend Committee meetings;
• Decision-making authority;
• Ability to represent a constituency and communicate effectively with constituents whose interests they represent;
• Experience in collaborative policy dialogue or negotiation; and
• Likelihood of being affected by the outcome.
National Archives and Records Administration (NARA).
Notice to add a new Privacy Act system of records and modify an existing system of records.
The National Archives and Records Administration (NARA) proposes to add a system of records notice to its existing inventory of systems subject to the Privacy Act of 1974 (5 U.S.C. 552a), as amended. In this notice, NARA publishes NARA 37—Order Online! (NARA Online Ordering System), for comment. NARA also proposes to expand coverage in one of its existing systems, NARA 25—Order Fulfillment and Accounting System Records (OFAS), to include transmittal data received from NARA Online! (NARA Online Ordering System). Last, an obsolete reference is deleted from Appendix B, which lists NARA's system managers.
The establishment of the new system NARA 37 and changes to the existing system NARA 25 will become effective without further notice on November 20, 2003, unless comments received on or before that date cause a contrary decision. If changes are made based on NARA's review of comments received, a new final notice will be published.
Send comments to the Privacy Act Officer, Office of General Counsel (NGC), Room 3110, National Archives and Records Administration, 8601 Adelphi Road, College Park, MD, 20740-6001. You may fax your comments to 301-837-0293. You may also comment via the Internet to
Ramona Branch Oliver, Privacy Act Officer, 301-837-2024 (voice) or 301-837-0293 (fax).
NARA last published a comprehensive set of Privacy Act system notices in the
NARA is proposing to add NARA 37—Order Online! (NARA Online Ordering System) to its existing inventory of systems subject to the Privacy Act of 1974 (5 U.S.C. 552a), as amended. NARA 37 covers persons who order NARA products (
The notice for each of the two systems of records states the following:
• Name and the location of the record system;
• Authority for and manner of its operation;
• Categories of individuals that it covers;
• Types of records that it contains;
• Sources of information in these records;
• Proposed “routine uses” of each system of records; and
• Business address of the NARA official who will inform interested persons of the procedures they must follow to gain access to and correct records pertaining to themselves.
Last, a reference to an obsolete NARA unit is deleted from Appendix B, which lists NARA's systems managers. Appendix A, which identifies routine uses of NARA's systems of records, remains unchanged.
One of the purposes of the Privacy Act, as stated in section 2(b)(4) of the Act, is to provide certain safeguards for an individual against an invasion of personal privacy by requiring Federal agencies to disseminate any record of identifiable personal information in a manner that assures that such action is for a necessary and lawful purpose, that information is current and accurate for its intended use, and that adequate safeguards are provided to prevent misuse of such information. NARA intends to follow these principles in transferring information to another agency or individual as a “routine use”, including assurance that the information is relevant for the purposes for which it is transferred.
Accordingly, we are publishing the proposed new system of records notice NARA 37 and the revised system of records notice NARA 25 as follows:
Order Online! (NARA Online Ordering System).
Order Online! is located in the data center at the National Archives and Records Administration in College Park, MD.
Individuals covered by this system include researchers who order reproductions of NARA archival materials at
Order Online records may include: user login data (
44 U.S.C. 2116(c), 2307 and 3504.
Records maintained in the system are used only for order entry, order validation, order processing, payment processing, and order fulfillment. The public may use the Order Online! system to complete and submit a reproduction order to NARA. Each night, Order Online! submissions are sent to NARA's Order Fulfillment and Accounting System (OFAS-NARA 25) via an automated XML (extensible markup language) interface that operates within NARA's secure internal network.
Order Online! maintains profile data (
The routine use statements A, E, and F, described in Appendix A apply to this system of records. Appendix A was published in the
Electronic records.
Information in the Order Online! records may be retrieved by the NARA customer using his or her user ID and password. Also, summary order data (order number, master number [OFAS order number]), status (
Access to the data center that houses the Order Online! system is restricted to approved systems administrators and, with the exception of a limited number of operations staff, is limited to normal business hours. Electronic records are accessible only on a “need to know basis” using controlled logins and passwords from terminals located in attended offices. Credit card information is compartmentalized so that it is available only to those NARA employees responsible for posting and billing credit card transactions. The National Archives at College Park has 24-hour security guards, controlled entrances, and electronic surveillance.
Order Online! records are temporary records and are destroyed in accordance with the disposition instructions in the NARA records schedule contained in FILES 203, the NARA Files Maintenance and Records Disposition Manual. Individuals may request a copy of the disposition instructions from the NARA Privacy Act Officer.
The system manager for Order Online! records is: Assistant Archivist for Records Services—Washington, DC (NW). The address for this location is listed in Appendix B following the NARA notices.
Individuals interested in inquiring about their records are to notify the NARA Privacy Act Officer at the address listed in Appendix B following the NARA notices.
Individuals who wish to gain access to their records are to submit their request in writing to the NARA Privacy Act Officer at the address listed in Appendix B.
NARA rules for contesting the contents and appealing initial determinations are found in 36 CFR part 1202.
Information in Order Online! records is obtained from NARA customers, employees or agents who are involved in the order process, and General Services Administration (GSA) employees who process refunds.
Order Fulfillment and Accounting System Records (OFAS).
OFAS records are maintained in organizational units in the following Washington, DC, area locations:
• Office of Records Services—Washington, DC;
• Office of Presidential Libraries;
• Office of the Federal Register;
• Office of Regional Records Services; and
• National Archives Trust Fund Division.
Individuals covered by this system include: researchers who order reproductions at Washington, DC, area and regional records services facilities or online at
OFAS records may include: Catalogue order forms; other ordering forms; correspondence; copies of checks, money orders, credit card citations, and other remittances; invoices; and order and accounting information in the electronic system. These records may contain some or all of the following information about an individual: Name, address, telephone number, record(s) or item(s) ordered, and credit card or purchase order information. OFAS records also include user profile data, reproduction order form data, transaction data, and credit card payment data transmitted from Order Online! (NARA Online Ordering System—NARA 37) via an automated XML (extensible markup language) interface that operates within NARA's secure internal network.
44 U.S.C. 2116(c) and 2307.
NARA maintains OFAS records on individuals to: receive, maintain control of, and process orders for reproductions of archival records and other fee items; bill customers for orders; maintain payment records for orders; process refunds; and provide individuals information on other NARA products.
Customer order information may be initially disclosed to a NARA agent, a
The routine use statements A, E, and F, described in Appendix A apply to this system of records. Appendix A was published in the
Paper and electronic records.
Information in OFAS records may be retrieved by the name of the individual and/or the OFAS transaction number. The invoice number or zip code may also retrieve information in electronic records.
During business hours, paper records are maintained in areas accessible only to authorized NARA personnel. Electronic records are accessible via passwords from terminals located in attended offices. Credit card information is compartmentalized so that it is available only to those NARA employees responsible for posting and billing credit card transactions. After hours, buildings have security guards and/or doors are secured and all entrances are monitored by electronic surveillance equipment.
OFAS records are temporary records and are destroyed in accordance with the disposition instructions in the NARA records schedule contained in FILES 203, the NARA Files Maintenance and Records Disposition Manual. Individuals may request a copy of the disposition instructions from the NARA Privacy Act Officer.
The system manager for OFAS records is: Assistant Archivist for Administrative Services (NA). The address for this location is listed in Appendix B following the NARA Notices.
Individuals interested in inquiring about their records are to notify the NARA Privacy Act Officer at the address listed in Appendix B following the NARA notices.
Individuals who wish to gain access to their records are to submit their request in writing to the NARA Privacy Act Officer at the address listed in Appendix B.
NARA rules for contesting the contents and appealing initial determinations are found in 36 CFR part 1202.
Information in OFAS records is obtained from customers, NARA employees or agents who are involved in the order process, and GSA employees who process refunds.
To inquire about your records or to gain access to your records, you should submit your request in writing to:
If the system manager is the Assistant Archivist for Record Services—Washington, DC (NW), the records are located at the following address:
If the system manager is the director of a Presidential library, the records are located at the appropriate Presidential library, staff or project:
If the system manager is the director of a regional records services facility, the records are located at the appropriate regional records services facility:
If the system manager is the Director of the National Historical Publications and Records Commission (NHPRC), the records are located at the following address:
If the system manager is the Director of the Policy and Communications Staff, the records are located at the following address:
If the system manager is the Assistant Archivist for Human Resources and Information Services, the records are located at the following address:
If the system manager is the Assistant Archivist for Administrative Services, the records are located at the following address:
If the system manager is the Director of the Federal Register, the records are located at the following address:
If the system manager is the Inspector General, the records are located at the following address:
If the system manager is the General Counsel, the records are located at the following address:
The National Endowment for the Humanities.
Notice of meetings.
Pursuant to the provisions of the Federal Advisory Committee Act (Pub. L. 92-463, as amended), notice is hereby given that the following meetings of the Humanities Panel will be held at the Old Post Office, 1100 Pennsylvania Avenue, NW., Washington, DC 20506.
Heather Gottry, Acting Advisory Committee Management Officer, National Endowment for the Humanities, Washington, DC 20506; telephone (202) 606-8322. Hearing-impaired individuals are advised that information on this matter may be obtained by contacting the Endowment's TDD terminal on (202) 606-8282.
The proposed meetings are for the purpose of panel review, discussion, evaluation and recommendation on applications for financial assistance under the National Foundation on the Arts and the Humanities Act of 1965, as amended, including discussion of information given in confidence to the agency by the grant applicants. Because the proposed meetings will consider information that is likely to disclose trade secrets and commercial or financial information obtained from a person and privileged or confidential and/or information of a personal nature the disclosure of which would constitute a clearly unwarranted invasion of personal privacy, pursuant to authority granted me by the Chairman's Delegation of Authority to Close Advisory Committee meetings, dated July 19, 1993, I have determined that these meetings will be closed to the public pursuant to subsections (c)(4), and (6) of section 552b of Title 5, United States Code.
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The U.S. Nuclear Regulatory Commission (the Commission) has granted the request of Entergy Operations, Inc., to withdraw its January 29, 2003, application for proposed amendment to Facility Operating License No. NPF-6 for Arkansas Nuclear One, Unit No. 2, located in Pope County, Arkansas.
The proposed amendment would have revised the Technical Specifications pertaining to the spent fuel pool loading restrictions by redefining the regions, inserting Metamic poison panels in a portion of the spent fuel pool, and increasing the minimum boron concentration.
The Commission had previously issued a Notice of Consideration of Issuance of Amendment published in the
For further details with respect to this action, see the application for amendment dated January 29, 2003, and the licensee's letter dated August 26, 2003, which withdrew the application for license amendment. Documents may be examined, and/or copied for a fee, at the NRC's Public Document Room (PDR), located at One White Flint North, 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 Systems (ADAMS) Public Electronic Reading Room on the Internet at the NRC Web site,
For the Nuclear Regulatory Commission.
Nuclear Regulatory Commission.
Weeks of October 20, 27, November 3, 10, 17, 24, 2003.
Commissioners' Conference Room, 11555 Rockville Pike, Rockville, Maryland.
Public and Closed.
This meeting will be Webcast live at the Web address:
There are no meetings scheduled for the Week of November 3, 2003.
There are no meetings scheduled for the Week of November 10, 2003.
There are no meetings scheduled for the Week of November 24, 2003.
* The schedule for Commission meetings is subject to change on short notice. To verify the status of meetings call (recording)—(301) 415-1292. Contact person for more information: David Louis Bamberoni (301) 415-1651.
By a vote of 3-0 on October 14, the Commission determined pursuant to U.S.C. 552b(e) and § 9.107(a) of the Commission's rules that “Affirmation of Pacific Gas & Electric Co. (Diablo Canyon Power Plant Independent Spent Fuel Storage Installation); petitions for review of LBP-02-23 and LBP-03-11” be held on October 15, and on less than one week's notice to the public.
The NRC Commission Meeting Schedule can be found on the Internet at:
This notice is distributed by mail to several hundred subscribers; if you no longer wish to receive it, or would like to be added to the distribution, please contact the Office of the Secretary, Washington, DC 20555 (301-415-1969). In addition, distribution of this meeting notice over the Internet system is available. If you are interested in receiving this Commission meeting schedule electronically, please send an electronic message to
The Nuclear Regulatory Commission (NRC) has issued a revision of a guide in its Regulatory Guide Series. This series has been developed to describe and make available to the public such information as methods acceptable to the NRC staff for implementing specific parts of the NRC's regulations, techniques used by the staff in its review of applications for permits and licenses, and data needed by the NRC staff in its review of applications for permits and licenses.
Revision 2 of Regulatory Guide 1.132, “Site Investigations for Foundations of Nuclear Power Plants,” describes field investigations for determining the geological, engineering, and hydrogeological characteristics of a prospective plant site. It also provides guidance to licensees and applicants on developing geologic information on stratigraphy, lithology, and structure of the site.
Comments and suggestions in connection with items for inclusion in guides currently being developed or improvements in all published guides are encouraged at any time. Written comments may be submitted to the Rules and Directives Branch, Division of Administrative Services, Office of Administration, U.S. Nuclear Regulatory Commission, Washington DC 20555. Questions on the content of this guide may be directed to Mr. Y. Li, (301) 415-4141; e-mail
Regulatory guides are available for inspection or downloading at the NRC's
For the Nuclear Regulatory Commission.
Thursday, October 30, 2003, 1:30 p.m. (open portion) 1:45 p.m. (closed portion).
Offices of the Corporation, Twelfth Floor Board Room, 1100 New York Avenue, NW., Washington, DC.
Meeting open to the Public from 1:30 p.m. to 1:45 p.m. Closed portion will commence at 1:45 p.m (approx.).
1. President's report.
2. Approval of July 17, 2003 minutes (open portion).
(Closed to the Public 1:45 p.m.)
1. Finance project—Global.
2. Finance project—Global.
3. Finance project in South Africa.
4. Insurance project in Brazil.
5. Insurance project in Azerbaijan, Georgia & Turkey.
6. Approval of July 17, 2003 minutes (closed portion).
7. Approval of October 15, 2003 minutes (closed portion).
8. Pending major projects.
9. Reports.
Information on the meeting may be obtained from Connie M. Downs at (202) 336-8438.
The Securities and Exchange Commission (“SEC” or “Commission”).
Notice of Application for an Order of Exemption under Section 6(c) of the Investment Company Act of 1940, as amended (“1940 Act”) from Sections 9(a), 13(a), 15(a), and 15(b) of the 1940 Act and Rules 6e-2(b)(15) and 6e-3(T)(b)(15) thereunder.
Applicants seek an order to permit shares of the Trust and shares of any other existing or future investment company that is designed to fund insurance products and for which CTB, or any of its affiliates, may serve as investment manager, investment adviser, subadviser, administrator, manager, principal underwriter or sponsor (the Trust and such other investment companies being hereinafter referred to, collectively, as “Insurance Trusts”), or permit shares of any current or future series of any Insurance Trust (“Insurance Fund”), to be sold to and held by: (1) Separate accounts funding variable annuity and variable life insurance contracts issued by both affiliated and unaffiliated life insurance companies; (2) qualified pension and retirement plans outside of the separate account context (“Qualified Plans” or “Plans”); and (3) any investment manager to an Insurance Trust (“Manager”) and affiliates thereof.
The application was filed on July 30, 2003, and amended and restated on October 14, 2003.
An order granting the application will be issued unless the Commission orders a hearing. Interested persons may request a hearing on the application by writing to the Secretary of the SEC and serving Applicants with a copy of the request, personally or by mail. Hearing requests must be received by the SEC by 5:30 p.m. on November 14, 2003 and should be accompanied by proof of service on the Applicants, in the form of an affidavit or, for lawyers, a certificate of service. Hearing requests should state the nature of writer's interest, the reason for the request, and the issues contested. Persons may request notification of the date of the hearing by writing to the SEC's Secretary.
Secretary, SEC, 450 Fifth Street, NW., Washington, DC 20549-0690. Applicants, c/o Paul M. Harmon, General Counsel and Secretary, COUNTRY Trust Bank, 1705 N. Towanda Avenue, P.O. Box 2020, Bloomington, Illinois 61702-2020.
Alison White, Senior Counsel, or Lorna MacLeod, Branch Chief, Office of Insurance Products, Division of Investment Management at (202) 942-0670.
The following is a summary of the application. The complete application is available for a fee from the SEC's Public Reference Branch, 450 Fifth Street, NW., Washington, DC 20549-0102 (202-942-8090).
1. The Trust is a Delaware business trust organized on August 13, 2000, and is registered as an open-end management investment company under the 1940 Act. The Trust consists of the following nine series: COUNTRY Growth Fund (“Growth Fund”), COUNTRY Balanced Fund (“Balanced Fund”), COUNTRY Tax Exempt Bond Fund (“Tax Exempt Bond Fund”), COUNTRY Short-Term Bond Fund (“Short-Term Bond Fund”) and COUNTRY Bond Fund (“Bond Fund”), COUNTRY VP Growth Fund (“VP Growth Fund”), COUNTRY VP Balanced Fund (“VP Balanced Fund”), COUNTRY VP Short-Term Bond Fund (“VP Short-Term Bond Fund”) and COUNTRY VP Bond Fund (“VP Bond Fund”). Additional series and classes of the Fund and additional Insurance Funds may be established in the future. Only the VP Growth Fund, VP Balanced Fund, VP Short-Term Bond Fund and VP Bond Fund constitute Insurance Funds for purposes of this Application.
2. CTB serves as the Trust's investment manager. CTB is registered as an investment adviser with the SEC under the Investment Advisers Act of 1940, as amended. Quasar Distributors, LLC (“Quasar”), a broker-dealer registered with the Commission and a member of the National Association of Securities Dealers, Inc., serves as the
3. The Insurance Trusts intend to offer shares of the Insurance Funds to (a) registered and unregistered separate accounts of affiliated and unaffiliated insurance companies in order to fund variable annuity contracts and variable life insurance contracts (collectively, “Separate Accounts”); (b) Qualified Plans; and (c) the Manager and its affiliates.
4. Insurance companies whose Separate Account(s) may now or in the future own shares of the Insurance Funds are referred to herein as “Participating Insurance Companies.” The Participating Insurance Companies will establish their own Separate Accounts and design their own contracts. Each Participating Insurance Company will have the legal obligation to satisfy all applicable requirements under both state and federal law. It is anticipated that Participating Insurance Companies will rely on Rules 6e-2 and 6e-3(T), although some Participating Insurance Companies, in connection with variable life insurance contracts, may rely on individual exemptive orders as well.
5. The Insurance Trusts intend to offer shares of the Insurance Funds directly to Qualified Plans outside of the separate account context. Qualified Plans may choose any of the Insurance Funds that are offered as the sole investment under the Plan or as one of several investments. Plan participants may or may not be given an investment choice depending on the terms of the Plan itself. Shares of any of the Insurance Funds sold to such Qualified Plans would be held or deemed to be held by the trustee(s) of said Plans. Certain Qualified Plans, including Section 403(b)(7) Plans and Section 408(a) Plans, may vest voting rights in Plan participants instead of Plan trustees. Exercise of voting rights by participants in any such Qualified Plans, as opposed to the trustees of such Plans, cannot be mandated by the Applicants. Each Plan must be administered in accordance with the terms of the Plan and as determined by its trustee or trustees.
6. Shares of each Insurance Fund also may be offered to the Manager and its affiliates, in reliance on regulations issued by the Treasury Department (Treas. Reg. 1.817-5) that established diversification requirements for variable annuity and variable life insurance contracts (“Treasury Regulations”). Treasury Regulation 1.817-5(f)(3)(ii) permits such sales as long as the return on shares held by the Manager or its affiliates is computed in the same manner as for shares held by the Separate Accounts, and the Manager and its affiliates do not intend to sell to the public shares of the Insurance Fund that they hold. An additional restriction is imposed by the Treasury Regulations on sales to the Manager and its affiliates who may hold shares only in connection with the creation or management of the Insurance Fund. Applicants anticipate that sales in reliance on these provisions of the Treasury Regulations generally will be made to Manager and its affiliates and generally for the purpose of providing necessary capital required by Section 14(a) of the 1940 Act.
1. Applicants request that the Commission issue an order pursuant to Section 6(c) of the 1940 Act granting exemptions from the provisions of Sections 9(a), 13(a), 15(a), and 15(b) of the 1940 Act and Rules 6e-2(b)(15) and 6e-3(T)(b)(15) thereunder (including any comparable provisions of a permanent rule that replaces Rule 6e-3(T)), to the extent necessary to permit shares of each Insurance Fund to be offered and sold to, and held by: (a) Separate Accounts funding variable annuity contracts and scheduled premium and flexible premium variable life insurance contracts issued by both affiliated and unaffiliated life insurance companies; (b) Qualified Plans; and (c) any Manager to an Insurance Trust and affiliates thereof.
2. Section 6(c) authorizes the Commission to exempt any person, security, or transaction or any class or classes of persons, securities, or transactions from any provision or provisions of the 1940 Act and/or of any rule thereunder if and to the extent that such exemption is necessary or appropriate in the public interest and consistent with the protection of investors and the purposes fairly intended by the policy and provisions of the 1940 Act.
3. In connection with the funding of scheduled premium variable life insurance contracts issued through a separate account organized as a unit investment trust (“Trust Account”), Rule 6e-2(b)(15) provides partial exemptions from Sections 9(a), 13(a), 15(a), and 15(b) of the 1940 Act. The exemptions granted to a separate account by Rule 6e-2(b)(15) are available only where each registered management investment company underlying the Trust Account (“underlying fund”) offers its shares “
4. In connection with the funding of flexible premium variable life insurance contracts issued through a Trust Account, Rule 6e-3(T)(b)(15) provides partial exemptions from Sections 9(a), 13(a), 15(a) and 15(b) of the 1940 Act to the extent that those sections have been deemed by the Commission to require “pass-through” voting with respect to an underlying fund's shares. The exemptions granted to a separate account by Rule 6e-3(T)(b)(15) are available only where all of the assets of the separate account consist of the
5. None of the relief provided for in Rules 6e-2(b)(15) and 6e-3(T)(b)(15) relates to Qualified Plans, the Manager and its affiliates, or to an underlying fund's ability to sell its shares to such purchasers. It is only because some of the Separate Accounts that may invest in the Insurance Trusts may themselves be investment companies that rely upon Rules 6e-2 and 6e-3(T) and wish to continue to rely upon the relief provided in those Rules, that the Applicants are applying for the requested relief. If and when a material irreconcilable conflict arises in the context of the Application between the Separate Accounts or between Separate Accounts on the one hand and Qualified Plans or the Manager and its affiliates on the other hand, the Participating Insurance Companies, Qualified Plans and the Manager and its affiliates must take whatever steps are necessary to remedy or eliminate the conflict, including eliminating the Insurance Funds as eligible investment options. Applicants have concluded that investment by the Manager and its affiliates or the inclusion of Qualified Plans as eligible shareholders should not increase the risk of material irreconcilable conflicts among shareholders. However, Applicants further assert that even if a material irreconcilable conflict involving the Qualified Plans arose, the Qualified Plans, unlike the Separate Accounts, can simply redeem their shares and make alternative investments. By contrast, insurance companies cannot simply redeem their separate accounts out of one fund and invest in another. Time consuming, complex transactions must be undertaken to accomplish such redemptions and transfers. Applicants thus argue that allowing the Manager and its affiliates or Qualified Plans to invest directly in the Insurance Trusts should not increase the opportunity for conflicts of interest.
6. Applicants assert that the Treasury Regulations made it possible for shares of an investment company to be held by a Qualified Plan or the investment company's investment manager or its affiliates without adversely affecting the ability of shares in the same investment company to also be held by separate accounts of insurance companies in connection with their variable life insurance contracts. Section 817(h) of the Internal Revenue Code of 1986 (“Code”) imposes certain diversification standards on the underlying assets of separate accounts funding variable annuity contracts and variable life contracts. In particular, the Code provides that such contracts shall not be treated as an annuity contract or life insurance contract for any period (and any subsequent period) for which the separate account investments are not, in accordance with regulations prescribed by the Treasury Department, adequately diversified. The Treasury Regulations provide that, in order to meet the diversification requirements, all of the beneficial interests in the investment company must be held by the segregated asset accounts of one or more insurance companies. However, the Treasury Regulations also contain certain exceptions to this requirement, one of which allows shares in an investment company to be held by the trustee of a qualified pension or retirement plan without adversely affecting the ability of shares in the same investment company to also be held by the separate accounts of insurance companies in connection with their variable annuity and variable life contracts (Treas. Reg. § 1.817-5(f)(3)(iii)).
7. Applicants also assert that the Treasury Regulations contain another exception that permits the investment manager of the investment company and certain companies related to the investment manager to hold shares of the investment company subject to certain conditions (Treas. Reg. § 1.817-5(f)(3)(ii)).
8. The promulgation of Rules 6e-2(b)(15) and 6e-3(T)(b)(15) preceded the issuance of the Treasury Regulations which made it possible for shares of an investment company to be held by a Qualified Plan or the investment company's investment manager or its affiliates without adversely affecting the ability of shares in the same investment company to also be held by the separate accounts of insurance companies in connection with their variable life insurance contracts. Thus, the sale of shares of the same investment company to separate accounts through which variable life insurance contracts are issued, to Qualified Plans, or to the investment company's investment manager and its affiliates (collectively, “eligible shareholders”) could not have been envisioned at the time of the adoption of Rules 6e-2(b)(15) and 6e-3(T)(b)(15), given the then-current tax law.
9. Paragraph (3) of Section 9(a) provides, among other things, that it is unlawful for any company to serve as investment adviser to or principal underwriter for any registered open-end investment company if an affiliated person of that company is subject to a disqualification enumerated in Sections 9(a)(1) or (a)(2). Rule 6e-2(b)(15)(i) and (ii) and Rule 6e-3(T)(b)(15)(i) and (ii) provide exemptions from Section 9(a) under certain circumstances, subject to the limitations discussed above on mixed and shared funding. These exemptions limit the application of the eligibility restrictions to affiliated individuals or companies that directly participate in the management of the underlying management investment company. The relief provided by Rules 6e-2(b)(15)(i) and 6e-3(T)(b)(15)(i) permits a person disqualified under Section 9(a) to serve as an officer, director, or employee of the life insurer, or any of its affiliates, so long as that person does not participate directly in the management or administration of the underlying fund. The relief provided by Rules 6e-2(b)(15)(ii) and 6e-3(T)(b)(15)(ii) permits the life insurer to serve as the underlying fund's investment manager or principal underwriter, provided that none of the insurer's personnel who are ineligible pursuant to Section 9(a) are participating in the management or administration of the Trust. The partial relief granted in Rules 6e-2(b)(15) and 6e-3(T)(b)(15) from the requirements of Section 9 limits, in effect, the amount of
10. Sections 13(a), 15(a), and 15(b) of the 1940 Act have been deemed by the Commission to require “pass-through” voting with respect to underlying fund shares held by a separate account. Rules 6e-2(b)(15)(iii) and 6e-3(T)(b)(15)(iii) under the 1940 Act provide partial exemptions from those sections to permit the insurance company to disregard the voting instructions of its contract owners in certain limited circumstances. Rules 6e-2(b)(15)(iii)(A) and 6e-3(T)(b)(15)(iii)(A)(
11. Rule 6e-2 recognizes that a variable life insurance contract is an insurance contract; it has important elements unique to insurance contracts; and it is subject to extensive state regulation of insurance. In adopting Rule 6e-2(b)(15)(iii), the Commission expressly recognized that state insurance regulators have authority, pursuant to state insurance laws or regulations, to disapprove or require changes in investment policies, investment advisers, or principal underwriters. The Commission also expressly recognized that state insurance regulators have authority to require an insurer to draw from its general account to cover costs imposed upon the insurer by a change approved by contract owners over the insurer's objection. The Commission therefore deemed such exemptions necessary “to assure the solvency of the life insurer and performance of its contractual obligations by enabling an insurance regulatory authority or the life insurer to act when certain proposals reasonably could be expected to increase the risks undertaken by the life insurer.” In this respect, flexible premium variable life insurance contracts are identical to scheduled premium variable life insurance contracts; therefore, Rule 6e-3(T)'s corresponding provisions presumably were adopted in recognition of the same factors. State insurance regulators have much the same authority with respect to variable annuity separate accounts as they have with respect to variable life insurance separate accounts. Insurers generally assume both mortality and expense risks under variable annuity contracts. Therefore, variable annuity contracts pose some of the same kinds of risks to insurers as variable life insurance contracts. The Commission staff has not addressed the general issue of state insurance regulators' authority in the context of variable annuity contracts, and has not developed a single comprehensive exemptive rule for variable annuity contracts.
12. The Insurance Trusts' sale of shares of Insurance Funds to Qualified Plans or the Manager and its affiliates will not have any impact on the relief requested herein in this regard. Shares of the Insurance Funds sold to Qualified Plans would be held by the trustees of such Plans. The exercise of voting rights by Qualified Plans, whether by the trustees, by participants, by beneficiaries, or by investment managers engaged by the Plans, does not present the type of issues respecting the disregard of voting rights that are presented by variable life separate accounts. With respect to the Qualified Plans, which are not registered as investment companies under the 1940 Act, there is no requirement to pass through voting rights to Plan participants. Similarly, the Manager and its affiliates are not subject to any pass-through voting requirements. Accordingly, unlike the case with insurance company separate accounts, the issue of the resolution of material irreconcilable conflicts with respect to voting is not present with Qualified Plans or the Manager and its affiliates.
13. Applicants assert that shared funding by unaffiliated insurance companies does not present any issues that do not already exist where a single insurance company is licensed to do business in several or all states. A particular state insurance regulatory body could require action that is inconsistent with the requirements of other states in which the insurance company offers its policies. The fact that different Participating Insurance Companies may be domiciled in different states does not create a significantly different or enlarged problem.
14. Applicants further assert that shared funding by unaffiliated
15. Applicants assert that the right under Rules 6e-2(b)(15) and 6e-3(T)(b)(15) of an insurance company to disregard contract owners' voting instructions does not raise any issues different from those raised by the authority of state insurance administrators over separate accounts. Under Rules 6e-2(b)(15) and 6e-3(T)(b)(15), an insurer can disregard contract owner voting instructions only with respect to certain specified items and under certain specified conditions. Affiliation does not eliminate the potential, if any exists, for divergent judgments as to the advisability or legality of a change in investment policies, principal underwriter, or investment adviser initiated by contract owners. The potential for disagreement is limited by the requirements in Rules 6e-2 and 6e-3(T) that the insurance company's disregard of voting instructions be reasonable and based on specific good faith determinations. However, a particular Participating Insurance Company's disregard of voting instructions, nevertheless, could conflict with the majority of contract owner voting instructions. The Participating Insurance Company's action could arguably be different than the determination of all or some of the other Participating Insurance Companies (including affiliated insurers) that the contract owners' voting instructions should prevail, and could either preclude a majority vote approving the change or could represent a minority view. If the Participating Insurance Company's judgment represents a minority position or would preclude a majority vote, the Participating Insurance Company may be required, at an Insurance Trust's election, to withdraw its separate account's investment in that Insurance Trust, and no charge or penalty would be imposed as a result of such withdrawal.
16. With respect to voting rights, it is possible to provide an equitable means of giving such voting rights to contract owners and to Qualified Plans and the Manager and its affiliates. The transfer agent(s) for the Insurance Funds will inform each shareholder, including each Separate Account, each Qualified Plan, and the Manager and its affiliates, of its share ownership, in an Insurance Fund. Each Participating Insurance Company will then solicit voting instructions in accordance with the “pass-through” voting requirement. Investment by Qualified Plans in any Insurance Fund will similarly present no conflict. The likelihood that voting instructions of insurance company contract owners will ever be disregarded or the possible withdrawal referred to immediately above is extremely remote and this possibility will be known, through prospectus disclosure, to any Qualified Plan choosing to invest in an Insurance Fund. Moreover, even if a material irreconcilable conflict involving Qualified Plans arises, the Qualified Plans may simply redeem their shares and make alternative investments. Votes cast by the Qualified Plans, of course, cannot be disregarded but must be counted and given effect.
17. Applicants assert that there is no reason why the investment policies of an Insurance Fund would or should be materially different from what they would or should be if such Insurance Fund funded only variable annuity contracts or variable life insurance policies, whether flexible premium or scheduled premium policies. Each type of insurance product is designed as a long-term investment program. Similarly, the investment strategy of Qualified Plans (
18. Furthermore, Applicants assert that no one investment strategy can be identified as appropriate to a particular insurance product. Each pool of variable annuity and variable life insurance contract owners is composed of individuals of diverse financial status, age, insurance and investment goals. An underlying fund supporting even one type of insurance product must accommodate these diverse factors in order to attract and retain purchasers. Permitting mixed and shared funding will provide economic justification for the growth of the Insurance Funds. In addition, permitting mixed and shared funding will facilitate the establishment of additional Insurance Funds serving diverse goals. The broader base of contract owners and shareholders can also be expected to provide economic justification for the creation of additional series of each Insurance Trust with a greater variety of investment objectives and policies.
19. Applicants note that Section 817(h) of the Code is the only section in the Code where separate accounts are discussed. Section 817(h) imposes certain diversification standards on the underlying assets of variable annuity contracts and variable life contracts held in the portfolios of management investment companies. Treasury Regulation 1.817-5, which established diversification requirements for such portfolios, specifically permits, in paragraph (f)(3), among other things, “qualified pension or retirement plans” and separate accounts to share the same underlying management investment company. Therefore, neither the Code nor the Treasury Regulations thereunder present any inherent conflicts of interest if Qualified Plans, Separate Accounts and the Manager and its affiliates all invest in the same underlying fund.
20. Applicants assert that the ability of the Insurance Trusts to sell the respective shares of their Insurance Funds directly to Qualified Plans or the Manager and its affiliates does not create a “senior security,” as such term is defined under Section 18(g) of the 1940 Act, with respect to any contract owner as opposed to a participant under a Qualified Plan or the Manager and its affiliates. As noted above, regardless of the rights and benefits of contract owners or Plan participants, the Separate Accounts, Qualified Plans and the Manager and its affiliates have rights only with respect to their respective shares of the Insurance Funds. They can only redeem such shares at net asset value. No shareholder of any of the Insurance Funds has any preference over any other shareholder with respect to distribution of assets or payment of dividends.
21. Applicants have considered whether there are any conflicts between the contract owners of separate accounts and the participants under Qualified Plans, the Manager or its affiliates with respect to the state insurance commissioners' veto powers (direct with respect to variable life and indirect with respect to variable annuities) over investment objectives. The basic premise of shareholder voting is that not all shareholders agree with a particular proposal. This does not mean that there are any inherent conflicts of interest between shareholders. The state insurance commissioners have been given the veto power in recognition of the fact that insurance companies cannot simply redeem their separate accounts out of one fund and invest in another. Time-consuming, complex transactions must be undertaken to accomplish such redemptions and transfers. On the other hand, the trustees of Qualified Plans can quickly make the decision to redeem and then implement the redemption of their Plans' shares from the Insurance Funds and reinvest in another funding vehicle without the same regulatory impediments, or, as is the case with most Qualified Plans, even hold cash pending suitable investment. Based on the foregoing, Applicants have concluded that, even if there should arise issues where the interests of contract owners and Qualified Plans are in conflict, these issues can be resolved almost immediately in that the trustees of the Qualified Plans can, on their own, redeem shares out of the Insurance Funds. The Manager and its affiliates can similarly redeem their shares out of the Insurance Funds and make alternative investments at any time.
22. Applicants considered whether there is a potential for future conflicts of interests between Separate Accounts and Qualified Plans created by future changes in the tax laws. Applicants do not see any greater potential for material irreconcilable conflicts arising between the interest of participants under Qualified Plans and contract owners of Separate Accounts from possible future changes in the federal tax laws than that which already exists between variable annuity contract owners and variable life insurance contract owners.
23. Applicants assert that permitting an Insurance Trust to sell shares of its Insurance Funds to the Manager and its affiliates in compliance with Treas. Reg. 1.817-5 will enhance Insurance Trust management without raising significant concerns regarding material irreconcilable conflicts. Applicants assert that, unlike the circumstances of many investment companies that serve as underlying investment media for variable insurance products, the Insurance Trusts may be deemed to lack an insurance company “promoter” for purposes of Rule 14a-2 under the Act. It is anticipated that many other Insurance Trusts may lack an insurance company promoter. Accordingly, Applicants assert that such Insurance Trusts will be subject to the requirements of Section 14(a) of the 1940 Act, which generally requires that an investment company have a net worth of $100,000 upon making a public offering of its shares.
24. Applicants assert that given the conditions of Treas. Reg. 1.817-5(i)(3) and the harmony of interest between an Insurance Fund, on the one hand, and its Manager(s) and its affiliates, on the other, little incentive for overreaching exists. Applicants assert that such investments should not implicate the concerns discussed above regarding the creation of material irreconcilable conflicts. Instead, Applicants assert that permitting investment by the Manager and its affiliates will permit the orderly and efficient creation and operation of an Insurance Fund, and reduce the expense and uncertainty of using outside parties at the early stages of Insurance Fund operations.
25. Applicants assert that various factors have limited the number of insurance companies that offer variable contracts. These factors include the costs of organizing and operating a funding medium, the lack of expertise with respect to investment management (principally with respect to stock and money market investments) and the lack of name recognition by the public of certain Participating Insurance Companies as investment experts. In particular, some smaller life insurance companies may not find it economically feasible, or within their investment or administrative expertise, to enter the variable contract business on their own. Use of the Insurance Funds as a common investment medium for variable contracts and Qualified Plans would help alleviate these concerns, because Participating Insurance Companies and Qualified Plans will benefit not only from the investment and administrative expertise of CTB, or any other investment manager to an Insurance Fund, but also from the cost efficiencies and investment flexibility afforded by a large pool of funds. Therefore, making the Insurance Funds available for mixed and shared funding and permitting the purchase of Insurance Fund shares by Qualified Plans may encourage more insurance companies to offer variable contracts, and this should result in increased competition with respect to both variable contract design and pricing, which can be expected to result in more product variation. Mixed and shared funding also may benefit variable contract owners by eliminating a significant portion of the costs of establishing and administering separate funds. Furthermore, granting the requested relief should result in an increased amount of assets available for investment by the Insurance Funds. This may benefit variable contract owners by promoting economies of scale, by reducing risk through greater diversification due to increased money in the Insurance Trusts, or by making the addition of new Insurance Funds more feasible.
26. Applicants submit that, regardless of the type of shareholder in any of the Insurance Funds, the investment advisers and subadvisers are or will be contractually obligated to manage each Insurance Fund solely and exclusively in accordance with that Insurance Fund's investment objectives and restrictions as well as with any guidelines established by the Board of Trustees of the Trust, or by the board of directors or trustees of any future Insurance Fund that is not a series of the Trust, as the case may be. With respect to each Insurance Fund, the investment advisers and subadvisers work with a pool of money and do not take into account the identity of the shareholders. Thus, any current or future Insurance Fund will be managed in the same manner as any other mutual fund.
1. A majority of the Board of Trustees or Board of Directors (“Board”) of each Insurance Trust shall consist of persons who are not “interested persons” of the Insurance Trust, as defined by Section 2(a)(19) of the 1940 Act and the rules thereunder and as modified by any applicable orders of the Commission, except that if this condition is not met by reason of the death, disqualification, or bona fide resignation of any trustee or director, then the operation of this condition shall be suspended: (a) For a period of 90 days if the vacancy or vacancies may be filled by the Board; (b) for a period of 150 days if a vote of shareholders is required to fill the vacancy or vacancies; or (c) for such longer period as the Commission may prescribe by order upon application.
2. Each Board will monitor the respective Insurance Trust for the existence of any material irreconcilable conflict among and between the interests of the contract owners of all Separate Accounts, and of the Plan participants, Qualified Plans, and the
3. Any Qualified Plan that executes a fund participation agreement upon becoming an owner of 10% or more of the assets of an Insurance Trust, any Participating Insurance Company, and the Manager and its affiliates (collectively, “Participants”) will report any potential or existing conflicts to the Board. Each of the Participants will be responsible for assisting the Board in carrying out the Board's responsibilities under these conditions by providing the Board with all information reasonably necessary for the Board to consider any issues raised. This includes, but is not limited to, an obligation by each Participating Insurance Company to inform the Board whenever contract owner voting instructions are disregarded and, if pass-through voting is applicable, an obligation by each Qualified Plan that is a Participant to inform the Board whenever it has determined to disregard Plan participant voting instructions. The responsibility to report such information and conflicts and to assist the Board will be a contractual obligation of all Participating Insurance Companies and Qualified Plans investing in an Insurance Trust under their agreements governing participation in the Insurance Trust, and such agreements shall provide that such responsibilities will be carried out with a view only to the interests of the contract owners or, if applicable, Plan participants.
4. If it is determined by a majority of the Board of an Insurance Trust, or a majority of its disinterested trustees or directors, that a material irreconcilable conflict exists, the relevant Participating Insurance Companies and Qualified Plans shall, at their expense or, at the discretion of a Manager to an Insurance Trust, at that Manager's expense, and to the extent reasonably practicable (as determined by a majority of the disinterested trustees or directors), take whatever steps are necessary to remedy or eliminate the material irreconcilable conflict, up to and including: (a) Withdrawing the assets allocable to some or all of the Separate Accounts from the relevant Insurance Trust or any series therein and reinvesting such assets in a different investment medium (including another Insurance Fund, if any); (b) in the case of Participating Insurance Companies, submitting the question of whether such segregation should be implemented to a vote of all affected contract owners and, as appropriate, segregating the assets of any appropriate group (
For the purposes of this Condition (4), a majority of the disinterested members of the Board shall determine whether or not any proposed action adequately remedies any material irreconcilable conflict, but in no event will the Insurance Trust or its Manager(s) be required to establish a new funding medium for any variable contract. No Participating Insurance Company shall be required by this Condition (4) to establish a new funding medium for any variable contract if an offer to do so has been declined by vote of a majority of contract owners materially adversely affected by the material irreconcilable conflict. No Qualified Plan shall be required by this Condition (4) to establish a new funding medium for such Qualified Plan if (a) a majority of Plan participants materially and adversely affected by the material irreconcilable conflict vote to decline such offer or (b) pursuant to governing Plan documents and applicable law, the Plan makes such decision without Plan participant vote.
5. The Board's determination of the existence of a material irreconcilable conflict and its implications shall be made known promptly in writing to all Participants.
6. Participating insurance companies will provide pass-through voting privileges to all variable contract owners whose contracts are funded through a registered separate account for so long as the Commission continues to interpret the 1940 Act as requiring pass-through voting privileges for variable contract owners. However, as to variable contracts issued by unregistered Separate Accounts, pass-through voting privileges will be extended to contract owners to the extent granted by the issuing insurance company. Accordingly, such Participating Insurance Companies will vote shares of each Insurance Fund held in their registered separate accounts in a manner consistent with voting instructions timely received from such contract owners. Each Participating Insurance Company will vote shares of each Insurance Fund held in its registered Separate Accounts for which no timely voting instructions are received, as well as shares held by any such registered Separate Account, in the same proportion as those shares for which voting instructions are received. Participating insurance companies shall be responsible for assuring that each of their Separate Accounts investing in an Insurance Trust calculates voting privileges in a manner consistent with all other Participating Insurance
7. An Insurance Trust will notify all Participating Insurance Companies and Qualified Plans that disclosure regarding potential risks of mixed and shared funding may be appropriate in prospectuses for any of the Separate Accounts and in Plan documents. Each Insurance Trust shall disclose in its prospectus that: (a) Shares of the Insurance Trust are offered to insurance company separate accounts which fund both variable annuity and variable life insurance contracts, and to Qualified Plans; (b) due to differences of tax treatment or other considerations, the interests of various contract owners participating in the Insurance Trust and the interests of Qualified Plans investing in the Insurance Trust might at some time be in conflict; and (c) the Board will monitor the Insurance Trust for any material conflicts and determine what action, if any, should be taken.
8. All reports received by the Board of potential or existing conflicts, and all Board action with regard to determining the existence of a conflict, notifying Participants of a conflict, and determining whether any proposed action adequately remedies a conflict, will be properly recorded in the minutes of the Board or other appropriate records, and such minutes or other records shall be made available to the Commission upon request.
9. If and to the extent Rule 6e-2 and Rule 6e-3(T) under the 1940 Act are amended, or Rule 6e-3 is adopted, to provide exemptive relief from any provision of the 1940 Act or the rules thereunder with respect to mixed or shared funding on terms and conditions materially different from any exemptions granted in the order requested in this Application, then each Insurance Trust and/or the Participating Insurance Companies, as appropriate, shall take such steps as may be necessary to comply with Rule 6e-2 and Rule 6e-3(T), as amended, and Rule 6e-3, as adopted, to the extent such rules are applicable.
10. Each Insurance Trust will comply with all provisions of the 1940 Act requiring voting by shareholders (which, for these purposes, shall be the persons having a voting interest in the shares of that Insurance Trust), and in particular each Insurance Trust will either provide for annual meetings (except insofar as the Commission may interpret Section 16 of the 1940 Act not to require such meetings) or comply with Section 16(c) of the 1940 Act (although the Trust is not one of the trusts described in Section 16(c) of the 1940 Act) as well as with Section 16(a) of the 1940 Act and, if and when applicable, Section 16(b) of the 1940 Act. Further, each Insurance Trust will act in accordance with the Commission's interpretation of the requirements of Section 16(a) of the 1940 Act with respect to periodic elections of directors (or trustees) and with whatever rules the Commission may promulgate with respect thereto.
11. As long as the Commission continues to interpret the 1940 Act as requiring pass-through voting privileges for variable contract owners, the Manager and its affiliates will vote its shares in the same proportion as all contract owners having voting rights with respect to the relevant Insurance Trust; provided, however, that the Manager and its affiliates shall vote their shares in such other manner as may be required by the Commission or its staff.
12. The Participants shall at least annually submit to the Board of an Insurance Trust such reports, materials or data as the Board may reasonably request so that it may fully carry out the obligations imposed upon it by the conditions contained in the Application and said reports, materials and data shall be submitted more frequently, if deemed appropriate, by the Board. The obligations of a Participant to provide these reports, materials and data to the Board of the Insurance Trust when it so reasonably requests, shall be a contractual obligation of all Participating Insurance Companies and Qualified Plans under their agreements governing participation in each Insurance Trust.
13. If a Qualified Plan should become an owner of 10% or more of the assets of an Insurance Fund, the Insurance Trust shall require such Plan to execute a participation agreement with such Insurance Trust which includes the conditions set forth herein to the extent applicable. A Qualified Plan will execute an application containing an acknowledgment of this condition upon such Plan's initial purchase of the shares of any Insurance Fund.
14. Any shares of an Insurance Fund purchased by the Manager or its affiliates will be automatically redeemed if and when the Manager's investment management agreement terminates, and to the extent required by the applicable Treasury Regulations. Neither the Manager nor its affiliates will sell such shares of the Insurance Fund to the public.
15. A Participating Insurance Company, or any affiliate, will maintain at its home office, available to the Commission: (a) A list of its officers, directors and employees who participate directly in the management or administration of the Insurance Trusts or any variable annuity or variable life insurance separate account, organized as a unit investment trust, that invests in the Insurance Trusts and/or (b) a list of its agents who, as registered representatives, offer and sell the variable annuity and variable life contracts funded through such a Separate Account. These individuals will continue to be subject to the automatic disqualification provisions of Section 9(a).
For the reasons and upon the facts summarized above, Applicants assert that the requested exemptions are appropriate in the public interest and consistent with the protection of investors and the purposes fairly intended by the policy and provisions of the 1940 Act.
For the Commission, by the Division of Investment Management, pursuant to delegated authority.
The Small Business Administration Region III Regulatory Fairness Board and the SBA Office of the National Ombudsman will hold a Public Roundtable on Thursday, October 30, 2003 at 8:30 a.m. at Annapolis City Council Chamber, City Hall, 2nd Floor, Duke of Gloucester Street, Annapolis, MD 21401, to provide small business owners and representatives of trade associations with an opportunity to share information concerning the federal regulatory enforcement and compliance environment.
Anyone wishing to attend or to make a presentation must contact Oliver J. Phillips in writing or by fax, in order to be put on the agenda. Oliver J. Phillips, Chief of Business Development, SBA Baltimore District Office, 10 S. Howard
For more information, see our Web site at
The Office of Citizen Exchanges of the Bureau of Educational and Cultural Affairs (the Bureau) invites applicants to submit proposals that encourage the growth of democratic institutions in Armenia, Azerbaijan, Belarus, Georgia, Kazakhstan, the Kyrgyz Republic, Moldova, Russia, Tajikistan, Ukraine, and Uzbekistan. For this competition, single country projects only are eligible for support. U.S.-based public and private non-profit organizations meeting the provisions described in Internal Revenue code section 26 U.S.C. 501(c)(3) may submit proposals that support international projects in the United States and overseas involving current or potential leaders.
This Request for Grant Proposals contains language in the “Shipment and Deadline for Proposals” section that is significantly different from that used in the past. Please pay special attention to procedural changes as outlined.
Interested applicants should read the complete
Interested organizations/institutions may contact the Office of Citizen Exchanges, Room 220, SA-44, U.S. Department of State, 301 4th Street, SW., Washington, DC 20547, Attention: Eurasia Professional Exchanges and Training Program, telephone number (202) 401-6884, fax number (202) 619-4350 to request a Solicitation Package. The Solicitation Package, which includes the Request for Grant Proposals (RFGP), the Proposal Submission Instructions (PSI) and the diversity statement, contains detailed award criteria, required application forms, specific budget instructions, and standard guidelines for proposal preparation.
For specific inquiries, please contact Bureau program officers by phone or e-mail: Kendra Davis (202) 619-5328 (
• A proven track record of working in the proposed issue area and country;
• Experienced staff with language facility and a commitment by the staff to monitor projects locally to ensure implementation;
• A clear, convincing plan showing how permanent results will be accomplished as a result of the activity funded by the grant; and
• A post-grant plan that includes activities that will take place after the Bureau-funded grant has concluded. (See Review Criterion #5 below for more information on post-grant activities.)
• A detailed assessment of project needs and feasibility. Proposals that include costs or time for a needs assessment may be deemed less competitive.
Applicants should identify the local organizations and individuals in the counterpart country with whom they are proposing to collaborate and describe in detail previous cooperative programming and/or contacts. Specific information about the counterpart organizations' activities and accomplishments should be included in the section under “Institutional Capacity” (See Review Criterion # 2 below). Proposals should contain letters of support tailored to the proposed project from foreign-country partner organizations. Applicants should clearly outline in the narrative the foreign partner's role and responsibilities in project management and implementation.
Proposal narratives must clearly demonstrate an organization's commitment to consult closely with the designated program officer at Bureau of Educational and Cultural Affairs, and with Public Affairs Sections at U.S. Embassies. Proposal narratives must confirm that all materials developed for the project will acknowledge Bureau funding for the program as well as a commitment to invite representatives of the Embassy and/or Consulate to participate in various program sessions/site visits. Please note that this will be a formal requirement in all final grant awards.
Bureau-supported exchanges may include internships; study tours; short-term, non-technical experiential learning; extended and intensive workshops; and seminars taking place in the United States or overseas. Examples of program activities include:
1. A U.S.-based program that includes: Orientation to program purposes and to U.S. society; study tour/site visits; professional internships/placements; interaction and dialogue; hands-on training; professional development; and action plan development. Proposals that include U.S.-based training will receive the highest priority.
2. Capacity-building/training-of-trainer (TOT) workshops to help participants to identify priorities, create work plans; strengthen professional and volunteer skills; share their experience with committed people within each country; and become active in a practical and valuable way.
3. Site visits by U.S. facilitators/experts to monitor projects in the region
Activities ineligible for support: The Office does not support proposals limited to conferences or seminars (
All grant proposals should clearly describe the type of persons that will participate in the program as well as the participant selection process. For programs that include U.S. internships, applicants should submit letters of support from host institutions. In the selection of foreign participants, the Bureau and U.S. Embassies retain the right to review all participant nominations and to accept or refuse participants recommended by grantee institutions. When American participants are selected, grantee institutions must provide their names and brief biographical data to the Office of Citizen Exchanges. Priority in two-way exchange proposals will be given to foreign participants who have not previously traveled to the United States.
Programs must comply with J-1 visa regulations. Please refer to “Adherence with J-1 Visa Regulations” below.
Organizations awarded grants will be required to maintain specific data on program participants and activities in an electronically accessible database format that can be shared with the Bureau as required. At a minimum, the data must include the following:
(1) Name, address, contact information and biographic sketch of all persons who travel internationally on funds provided by the grant or who benefit from the grant funding but do not travel.
(2) Itineraries of international and domestic travel, providing dates of travel and cities in which any exchange experiences take place.
The Office of Citizen Exchanges of the Bureau of Educational and Cultural Affairs is the official program sponsor of the exchange program covered by this RFGP, and an employee of the Bureau will be the “Responsible Officer” for the program under the terms of 22 CFR part 62, which covers the administration of the Exchange Visitor Program (J visa program). Under the terms of 22 CFR part 62, organizations receiving grants under this RFGP will be third parties “cooperating with or assisting the sponsor in the conduct of the sponsor's program.” The actions of grantee program organizations shall be “imputed to the sponsor in evaluating the sponsor's compliance with” 22 CFR part 62. Therefore, the Bureau expects that any organization receiving a grant under this competition will render all assistance necessary to enable the Bureau to fully comply with 22 CFR part 62
The Bureau of Educational and Cultural Affairs places great emphasis on the secure and proper administration of Exchange Visitor (J visa) Programs and adherence by grantee program organizations and program participants to all regulations governing the J visa program status. Therefore, proposals should explicitly state in writing that the applicant is prepared to assist the Bureau in meeting all requirements governing the administration of Exchange Visitor Programs as set forth in 22 CFR part 62. If your organization has experience as a designated Exchange Visitor Program Sponsor, the applicant should discuss its record of compliance with 22 CFR part 62
The Office of Citizen Exchanges will be responsible for issuing DS-2019 forms to participants in this program.
A copy of the complete regulations governing the administration of Exchange Visitor (J) programs is available at
In general, evaluation should occur throughout the project. The evaluation should incorporate an assessment of the program from a variety of perspectives. Specifically, project assessment efforts will focus on: (a) Determining if objectives are being met or have been met, (b) identifying any other related training needs, and (c) assessing if the project has effectively identified resources, advocates, and financial support for the sustainability of future projects. Informal evaluation through discussions and other sources of feedback will be carried out throughout the duration of the project. Formal evaluation must be conducted at the end of each component, should measure the impact of the activities and should obtain participants' feedback on the program content and administration. A detailed evaluation will be conducted at the conclusion of the project and a report will be submitted to the Department of State Bureau of Educational and Cultural Affairs. When possible, the evaluation should be conducted by an independent evaluator.
The Bureau welcomes proposals that respond directly to the themes and countries listed below. Given budgetary considerations, projects in countries and for themes other than those listed will not be eligible for consideration and will be ruled technically ineligible. The themes listed below are important to the Office of Citizen Exchanges, but no guarantee is made or implied that grants will be awarded in all categories.
For this competition, single country projects only are eligible for support. Multi-country projects are not eligible for this competition. In order to prevent duplication of effort, proposals should reflect an understanding of the work of international and USG agencies so that projects complement other exchange or assistance programs.
Two-way exchanges will be given the highest priority. Applicants should carefully review the following information in formulating proposals in Eurasian countries.
To be eligible for a grant award under this competition, the proposed professional training and exchange projects must address one of the following specific themes for single country projects:
Over the past decade, women's organizations in Armenia have emerged as a force for social change and democratic development. However, the low number of visible women leaders does not reflect the makeup of Armenian society. The Bureau is interested in proposals that will enhance women's participation in politics and promote their successful engagement in civil society by providing leadership training to aspiring women leaders, particularly those outside of Yerevan. Participants should include women who are politically active or who have leadership potential, including national and municipal officials. Programs would focus on developing management skills for organizational efficiency, building networks and coalitions, increasing visibility and effectiveness in the political sphere, and influencing decisions at all levels of government. Training should combine elements such as leadership fundamentals, the introduction or improvement of skills associated with campaign management, accountability to constituencies, voter outreach, networking, message development, working with the media, and fundraising. Proposals should emphasize government ethics issues and the importance of increasing public confidence in public institutions. Continuous communication, mentoring, and consultation between overseas participants and trainers/mentors should be described in detail and conducted throughout the life of the grant. Proposals must indicate a practical and sophisticated knowledge of the political and legislative environment in Armenia. Preference will be given to projects that do not exceed $150,000.
The contact for this topic is Michael George, (202) 619-5330,
Over the past decade, the number of women in leadership positions has increased in Azerbaijan. However, the low number of visible women leaders does not reflect the makeup of Azeri society. The Bureau is interested in proposals that will enhance women's participation in politics and promote their successful engagement in civil society by providing leadership training to aspiring women leaders, both inside and outside of Baku. Participants should include women who are politically active or who have leadership potential, including national and municipal officials. Programs would focus on developing management skills for organizational efficiency, building networks and coalitions particularly at the local and regional levels, increasing visibility and effectiveness in the political sphere, and influencing decisions at all levels of government. Training should combine elements such as leadership fundamentals, the introduction or improvement of skills associated with campaign management, accountability to constituencies, voter outreach, networking, message development, working with the media, and fundraising. Proposals should emphasize government ethics issues and the importance of increasing public confidence in public institutions. Continuous communication, mentoring, and consultation between overseas participants and trainers/mentors should be described in detail and conducted throughout the life of the grant. Proposals must indicate a practical and sophisticated knowledge of the political and legislative environment in Azerbaijan.
Preference will be given to projects that do not exceed $150,000.
The contact for this topic is Brent Beemer, (202) 401-6887,
ECA seeks proposals for programs that will provide training in Western-style journalism techniques and in effective business management for employees of independent media outlets in Belarus. Proposals must indicate a practical and sophisticated knowledge of the political and media environment in Belarus. Proposed activities should not duplicate the work done under recent or existing media training programs, but should complement those efforts. Proposals should include a U.S.-based training program for up to ten media professionals. (The Public Affairs Section in Minsk will select participants for this program; applicants should not propose participant recruitment or selection.) Participants may be reporters, editors, and/or media managers, and may be from broadcast and/or print media outlets. The U.S.-based component should begin with group orientation activities and meetings, followed by a hands-on internship component at an appropriate host U.S. media outlet. Applicants should identify those outlets willing to host Belarusian participants. Internships should be developed for small groups consisting of not more than three persons. In addition to the U.S.-based component, other training activities may take place in Poland or Ukraine. If proposed, activities in Poland or Ukraine should provide Belarusian participants the opportunity to meet with representatives of independent media outlets in those countries and to learn about their professional experiences and successes. Continuous activities, including mentoring and consultations between the Belarusian participants and their U.S.-based trainers/hosts and new colleagues in Ukraine or Poland, should be conducted throughout the life of the grant and described in detail.
For this program, ECA will assign State Department interpreters for the U.S.-based internship component. Therefore, applicants should budget funds in accordance with the guidelines provided in Point 3, “Interpreters,” under the section of this RFGP that identifies allowable program costs, including those associated with using State Department interpreters.
Preference will be given to funding requests that do not exceed $150,000.
The contact for this theme is Henry Scott, (202) 619-5327,
The Bureau welcomes proposals that will focus on promoting health awareness among Georgian youth. The target audience should be organizations and individuals that work with young people. Proposals should focus on creative initiatives that will promote greater awareness of health problems common to Georgians aged 12-25, specifically, drug and alcohol abuse, HIV/AIDS and venereal disease, and cigarette smoking, and that will promote positive behaviors in a way that resonates with, rather than alienates, Georgian youth. Proposals should provide practical, hands-on training to media, NGO, education, or government professionals on how to promote good health habits, overcome social attitudes that contribute to the prevalence of unhealthy behaviors, and manage grassroots mobilization and advocacy. Formal medical education and the provision of healthcare services or medication are outside the purview of
Preference will be given to projects that do not exceed $150,000.
The contact for this program is Michael George, (202) 619-5330,
ECA seeks proposals for programs that will provide training to media professionals from Kazakhstan on reporting on sensitive social issues. Proposals should include in-country and U.S.-based training activities for journalists and/or media outlet managers. Training should not duplicate the work done under recent or existing USG-sponsored programs, but should complement those efforts. Applicants should expect to work closely with the Public Affairs Sections of the U.S. Embassy to coordinate all activities, including participant selection. U.S-based activities should include an opening group orientation, lecture-style presentations from American trainers on targeted social issues, and interactive discussions with media professionals and experts on reporting on social issues in a civil society. Applicants should also propose meetings with advocacy groups and assistance organizations that work to address social issues. In-country activities may include workshops and seminars. These may be led by the participants themselves, or by U.S. trainers, or a combination of both. In addition to group training events, activities should take place throughout the grant period. Applicants should describe in detail these activities and how they will create and sustain long-term relationships between Kazakh participants and their U.S. colleagues. Such activities may include virtual mentoring and e-mail consultations between U.S.-based trainers/experts and participants.
Preference will be given to funding requests that do not exceed $150,000.
The contact for this theme is Kendra Davis, (202) 619-5328,
ECA welcomes proposals that will focus on promoting constructive dialogue and the prevention or reduction of stereotyping, violence and hatred, particularly among youth, in the Nookat region of Osh Oblast in Kyrgyzstan. Projects may be designed and implemented through educational institutions, NGOs or other partners. Projects should build a valued working relationship between U.S. and overseas professionals and should develop, test and result in training or outreach programs that will continue after grant support concludes. Proposals should focus on after-school programs for youth, community activities and facilitating dialogue—among parents, teachers, Muslim and other religious leaders, professionals, community activists—in order to promote better understanding of the issues that contribute to intolerance as well as strategies to address them. The program should include substantive meetings with NGOs, U.S. experts on religions, clerics, faith-based organizations, representatives of local government, and others. Programming should also introduce the evolution of U.S. laws designed to protect and promote tolerance. Travel in both directions, including a hands-on, U.S.-based program with a train the trainer component, should be proposed. Continuous communication, mentoring, and consultations between overseas participants and trainers/mentors, should be described in detail and conducted throughout the life of the grant.
Preference will be given to projects that do not exceed $150,000.
The contact for this topic is Brent Beemer, (202) 401-6887,
In order to address the problem of corruption, the Moldovan government created the Center for Fighting Economic Crime and Corruption in June 2002. High-level government officials, including the President, have made statements against corruption in Moldovan society and have promised action. However, citizens have low expectations for government service and are generally inclined to view embezzlement, conflicts of interest, and bribe-taking at all levels as the norm or as something to be tolerated. ECA is looking for proposals that will build upon the preliminary efforts of the Moldovan government to fight corruption. Proposals should work with the Center for Fighting Economic Crime and Corruption and help it to establish itself as a leader in the anti-corruption efforts in Moldova. In addition, program proposals should take into account the anti-corruption activities of Transparency International in Moldova in order to prevent duplication. Programs should engage the Center's officials in relevant ethics issues, including the role of public ethics in a democratic society and ethics responsibilities for government officials. The proposed programs should include innovative ways the Center could address corruption at various levels through oversight, laws, policies, procedures and programming. Proposals should also include programming that will help the Center to increase public confidence in the government's efforts to begin combating corruption. Travel in both directions, including a hands-on, U.S.-based program with a train-the-trainer component, should be proposed. Continuous communication, mentoring and consultations between the Center and trainers/mentors, should be described in detail and conducted throughout the life of the grant. Close coordination with the U.S. Embassy in Chisinau will be essential to this project.
Preference will be given to projects that do not exceed $150,000.
The contact for this topic is Brent Beemer, (202) 401-6887,
Proposals for this project should focus on intellectual property rights (IPR) in Russia, with a special concentration on copyright protection for films/videos, music recordings, and other artistic works subject to piracy. The sale of illegal copies of CDs, videos, and movies is common practice in Russia and is widely accepted by the public as routine. Government action has been insufficient and the Russian legal system has so far been unable to address the problem effectively. Applicants should propose a two-pronged approach that targets both the cultural community (artists, performers, producers and directors, among others) as well as judicial officials. Proposals should include programming that will encourage the participants to understand the nature of intellectual property rights and work collectively in fighting the piracy of their work in Russia. Trade associations, effective lobbying techniques, and legal approaches should be among topics that are covered. Programs should emphasize hands-on, practical activities, such as case studies and examples of court proceedings or litigation regarding copyright protection. Competitive proposals will also introduce participants to some new business models for artistic work that
Preference will be given to projects that do not exceed $150,000.
The contact for this topic is Henry Scott, (202) 619-5327,
In modern market economies, consumers and investors rely on a free press to alert them to opportunities, warn them of potential fraud, and inform them of the consequences of their purchases. In Russia, official pressure and sponsorship of news reports diminishes the media's value as a source of objective information. As a result, consumers and investors have difficulty making informed choices about contracts or other transactions, particularly in the absence of effective regulation. The Bureau is interested in proposals that would increase appreciation of a free, objective press among regional government officials in Russia. Proposals should target regional government leaders, either elected officials or civil servants or a combination of both, for participation in the program. Proposals should demonstrate the applicant's understanding of the importance that Russian regional governments place on economic development, and recruitment and training components should appeal to this priority.
Activities must include both a U.S.-based training program(s) and in-country activities. U.S.-based programs should include sessions to introduce participants to the role of the independent media in the U.S. and its relationship with the government. The U.S. program should include a combination of meetings, lectures, interactive sessions, visits to relevant institutions and organizations, and individual meetings. The Bureau encourages applicants to enlist experienced U.S. politicians in the stateside program who can emphasize the benefits of a free press to Russian officials in a credible manner. In-country activities may include workshops and seminars that complement the information and training presented to participants in the United States. Applicants must work closely with the Public Affairs Section in Moscow to coordinate all activities, including participant selection.
Preference will be given to projects that do not exceed $150,000.
The contact for this theme is Michael George, (202) 619-5330,
The Bureau is seeking proposals that will offer training to representatives of Tajikistan's Ministry of Foreign Affairs (MFA). Programs will offer training and assistance to the Tajik MFA to help create a professional Tajik foreign service that can effectively represent the country abroad.
Tajik diplomats, including deputy chiefs of mission and other senior, mid-level and junior officials, should be trained in the essentials of foreign policy formulation and the functions of an embassy. Training will be based on courses offered to U.S. diplomats and will incorporate such practical and substantive themes as: International politics (including international organizations and lending institutions); the structure and operation of an embassy; professional ethics; management skills; analytical reporting; negotiation skills; media relations and public diplomacy; trade promotion; communication with the host government (including need for local language training); management of VIP visits; and other relevant topics.
The program should include in-country training as well as training in the United States. Program activity may incorporate training-of-trainers, workshops, internships and site visits and should reflect a practical understanding of the current political, economic and social climate in Tajikistan. Training should balance formal presentations, discussions and group exercises and should be targeted at diplomats with a wide range of experience, including some who are new to the profession. The Tajik MFA will nominate participants. The U.S. Embassy in Dushanbe will make final participant selection. Applicants are required to work closely with the Public Affairs Section in Dushanbe during all program planning and implementation. Language issues must also be addressed throughout the proposal.
The total funding available for Diplomatic Training in Tajikistan is $250,000.
The contact for this theme is Kendra Davis, (202) 619-5328,
While the importance of the Internet in Ukraine as a source of news and information is growing, Internet-based media outlets there still face significant challenges in terms of their legal status as “legitimate” media outlets and their level of journalistic and management expertise. In order for Internet-based outlets in Ukraine to survive, they need to become viable businesses, as well as credible sources of news and information. The Bureau is seeking proposals for programs that would foster long-term relationships between U.S. Internet-based media outlets and independent, Internet-based media outlets in Ukraine. Within the framework of these partnerships, Ukrainian media professionals would learn how their U.S. partners deal with issues such as management of operations, ethical concerns, and how to operate under existing U.S. legislation governing Internet activities.
Applicants should propose a minimum of two partnerships to be developed. Each Ukrainian media outlet should be matched with an appropriate U.S. media outlet for partnership activities. The names of potential outlets, both in the U.S. and Ukraine, should be provided. Applicants should explain how partnerships will be structured and what activities they will include. Applicants should propose a combination of trips to the U.S. for Ukrainian participants, trips to Ukraine for U.S. participants, and on-going activities and virtual interaction throughout the grant period. While U.S. visits for Ukrainian participants should include consultations, workshops, and interactive meetings, they may also include hands-on internships and/or job shadowing experiences that will build professional expertise and strengthen links between the two partners. Under program activities, applicants should address the following topics: Use of the Internet as a news tool; Web design for Internet-based news services; business and management practices for Internet-based management; journalistic ethics; and licensing and legal issues for Internet-based news outlets. The proposal should identify the individuals who will be responsible for the
Preference will be given to projects that do not exceed $150,000.
The contact for this theme is Kendra Davis, (202) 619-5328,
Proposals should focus on promoting constructive dialogue and reduction of stereotyping, violence and hatred among diverse groups. Projects should focus on minority communities such as the Tatars in Crimea or the Roma in other parts of Ukraine. Projects may be designed and implemented through media outlets, educational institutions, NGOs or other partners. Projects should build a valued working relationship between U.S. and overseas professionals and should develop, test, and result in a training program that can continue after grant support concludes. Proposals should address specific inter-communal conflicts and facilitate dialogue among teachers, professionals, journalists, community activists and local government officials in order to promote better understanding among parties in conflict. Programming should also introduce the evolution of U.S. laws designed to protect minority rights and promote tolerance. Projects should design and conduct a public awareness campaign to help dispel stereotypes and foster acceptance of cultural differences. Travel in both directions, including a hands-on, U.S.-based program with a train the trainer component, should be proposed. Continuous communication, mentoring, and consultations between overseas participants and trainers/mentors should be described in detail and conducted throughout the life of the grant.
Preference will be given to projects that do not exceed $150,000.
The contact for this theme is Kendra Davis, (202) 619-5328,
ECA is interested in proposals that provide intensive, hands-on training to Uzbek national and government spokespersons as well as spokespersons from non-governmental entities. Proposals should focus on public affairs and public information as they are handled by government and non-governmental institutions. Program activities should cover such topics as how public affairs offices function in government; the importance of transparency in government; communicating openly with citizens and journalists; crisis communication; strategic planning; press office management; and the provision of accurate, timely information to the public.
Programs should consist of a Washington, DC, component, including meetings with the public affairs offices and spokespersons of federal agencies and departments, as well as shadowing experiences with state or local governments and non-governmental organizations. A train-the-trainers component should be included. In-country workshops should also be implemented, during which participants from the U.S. program will work as co-trainers and will reach out to a larger audience of governmental and non-governmental spokespersons from Uzbekistan. Media representatives may also participate in the in-country training program.
The Public Affairs Section (PAS) in Tashkent will be responsible for selecting participants through an open, merit-based process designed jointly by the grantee and PAS.
Preference will be given to projects that do not exceed $150,000.
The contact for this theme is Michael George, (202) 619-5330,
Requests for grant proposals for the following countries will be announced in separate competitions: Albania, Bosnia-Herzegovina, Bulgaria, Croatia, Czech Republic, Estonia, Hungary, Latvia, Lithuania, Macedonia, Poland, Romania, Serbia-Montenegro/Kosovo, Slovak Republic and Slovenia. Proposals involving Central and Eastern Europe WILL NOT be accepted under this competition, and if received, will be technically ineligible.
Proposals involving Western Europe will not be accepted under this competition, and if received, will be technically ineligible.
Grants awarded to eligible organizations with less than four years of experience in conducting international exchange programs will be limited to $60,000. Applicants must submit a comprehensive budget for the entire program and must provide a summary budget as well as breakdowns reflecting both administrative and program budgets in the proposal. Applicants may provide separate sub-budgets for each program component, phase, location, or activity to provide clarification. Please refer to the Proposal Submission Instructions (PSI) for complete budget guidelines and formatting instructions.
Since Bureau grant assistance constitutes only a portion of total project funding, proposals should list and provide evidence of other anticipated sources of financial and in-kind support. Applicants are strongly encouraged to provide cost sharing to the fullest extent possible. State Department Review Panels will consider cost sharing seriously when valuating all proposals.
The following are deemed allowable program costs:
1. Travel. International and domestic airfare (per the “Fly America Act”), ground transportation, and visas for U.S. participants. (J-1 visas for Bureau-supported participants from Eurasia to travel to the U.S. are issued at no charge.)
2. Per Diem. For U.S.-based programming, organizations should use the published Federal per diem rates for individual U.S. cities. For activities in Eurasia, the Bureau strongly encourages applicants to budget realistic costs that reflect the local economy. Domestic per diem rates may be accessed at:
3. Interpreters. For U.S.-based activities, applicants may hire their own locally-based interpreters or may ask the Bureau to assign U.S. Department of State interpreters. The Office of Citizen Exchanges strongly encourages applicants to use locally-hired interpreters. Typically, one interpreter is provided for every four visitors that require interpreting. When an applicant proposes to use State Department interpreters, the following expenses should be included in the budget: Published Federal per diem rates (both “lodging” and “M&IE”); “home-
4. Book and cultural allowance. Foreign participants are entitled to a one-time cultural allowance of $150 per person, plus a book allowance of $50. Interpreters should be reimbursed up to $150 for expenses when they escort participants to cultural events. U.S. program staff, trainers or participants are not eligible to receive these benefits.
5. Consultants. Consultants may be used to provide specialized expertise or to make presentations. Daily honoraria cannot exceed $250 per day. Subcontracting organizations may also be used, in which case the written agreement between the prospective grantee and subcontractor should be included in the proposal. Such subcontracts should detail the division of responsibilities and proposed costs. Subcontracts should be itemized in the budget.
6. Room rental. Room rental may not exceed $250 per day.
7. Materials development. Proposals may contain costs to purchase, develop and translate materials for participants. The Bureau strongly discourages the use of automatic translation software for the preparation of training materials or any information distributed to the group of participants or network of organizations. Costs for high-quality translation of materials should be anticipated and included in the budget. Grantee organizations should expect to submit a copy of all program materials to the Bureau.
8. Equipment. Proposals may include limited costs to purchase equipment for Eurasia-based programming such as computers, fax machines and copy machines. Costs for furniture are not allowed. Equipment costs must be kept to a minimum.
9. Working meal. Only one working meal may be provided during the program. Per capita costs may not exceed $5-8 for a lunch and $14-20 for a dinner, excluding room rental. The number of invited guests may not exceed participants by more than a factor of two-to-one. Interpreters must be included as participants.
10. Return travel allowance. A return travel allowance of $70 for each foreign participant may be included in the budget. The allowance may be used for incidental expenses incurred during international travel.
11. Health Insurance. Foreign participants will be covered under the terms of a Bureau-sponsored health insurance policy. The premium is paid by the Bureau directly to the insurance company. Applicants are permitted to include costs for travel insurance for U.S. participants in the budget.
12. Wire transfer fees. When necessary, applicants may include costs to transfer funds to partner organizations overseas.
Grantees are urged to research applicable taxes that may be imposed by host governments on these transfers.
13. In-country travel costs for visa processing purposes. Given the new requirements associated with obtaining J-1 visas for Bureau-supported participants, applicants should include costs for participant and/or in-country partner travel and shipping to U.S. embassies or consulates for visa processing purposes, such as interviews and delivery/pick up of DS-2019 forms.
14. Administrative Costs. Costs necessary for the effective administration of the program may include salaries for grantee organization employees, benefits, and other direct and indirect costs per detailed instructions in the Application Package. While there is no rigid ratio of administrative to program costs, priority will be given to proposals whose administrative costs are less than twenty-five (25) per cent of the total requested from the Bureau. Proposals should show strong administrative cost-sharing contributions from the applicant, the in-country partner and other sources.
An OMB policy directive published in the
The deadline for this competition is Friday, January 9, 2004. In light of recent events and heightened security measures, proposal submissions must be sent via a nationally recognized overnight delivery service (
Applicants must follow all instructions in the Solicitation Package. The original and ten copies (total of 11 copies, secured with binder clips) of the application should be sent to: U.S. Department of State, SA-44, Bureau of Educational and Cultural Affairs, Ref.: ECA/PE/C/EUR-04-33, Program Management, ECA/EX/PM, Room 534, 301 4th Street, SW., Washington, DC 20547.
Applicants must also submit the “Executive Summary” and “Proposal Narrative” sections of the proposal in text (.txt) format on a PC-formatted disk. The Bureau will provide these files electronically to the Public Affairs Sections at the U.S. embassies for their review.
Pursuant to the Bureau's authorizing legislation, programs must maintain a non-political character and should be balanced and representative of the diversity of American political, social, and cultural life. “Diversity” should be interpreted in the broadest sense and encompass differences including, but not limited to, ethnicity, race, gender, religion, geographic location, socio-economic status, and physical challenges. Applicants are strongly encouraged to adhere to the advancement of this principle both in program administration and in program content. Please refer to the review criteria under the ‘Support for Diversity' section for specific suggestions on incorporating diversity into the total proposal. Public Law 104-319 provides
Proposals will be deemed ineligible if they do not fully adhere to the guidelines stated herein and in the Solicitation Package. All eligible proposals will be reviewed by the program office, as well as the Public Affairs Sections overseas, where appropriate. Eligible proposals will be subject to compliance with Federal and Bureau regulations and guidelines and forwarded to Bureau grant panels for advisory review. Proposals may also be reviewed by the Office of the Legal Adviser or by other Department elements. Final funding decisions are at the discretion of the Department of State's Assistant Secretary for Educational and Cultural Affairs. Final technical authority for grants resides with the Bureau's Grants Officer.
Technically eligible applications will be competitively reviewed according to the criteria stated below. These criteria are not rank ordered and all carry equal weight in the proposal evaluation:
1. Program Planning and Ability to Achieve Program Objectives: Program objectives should be stated clearly and should reflect the applicant's expertise in the subject area and region. Objectives should respond to the priority topics in this announcement and should relate to the current conditions in the target countries. A detailed agenda and relevant work plan should explain how objectives will be achieved and should include a timetable for completion of major tasks. The substance of workshops, internships, seminars and/or consulting should be described in detail. Sample training schedules should be outlined. Responsibilities of in-country partners should be clearly described.
2. Institutional Capacity: The proposal should include (1) the U.S. institution's mission and date of establishment; (2) detailed information about the in-country partner institution's capacity and the history of the U.S. and in-country partnership; (3) an outline of prior awards—U.S. government and private support received for the target theme/region; and (4) descriptions of experienced staff members who will implement the program. Proposed personnel and institutional resources should be adequate and appropriate to achieve the program's goals. The proposal should reflect the institution's expertise in the subject area and knowledge of the conditions in the target country. Proposals should demonstrate an institutional record of successful exchange programs, including responsible fiscal management and full compliance with all reporting requirements for past Bureau grants as determined by Bureau Grant Staff. The Bureau will consider the past performance of prior recipients and the demonstrated potential of new applicants.
3. Cost Effectiveness and Cost Sharing: Overhead and administrative costs in the proposal budget, including salaries, honoraria and subcontracts for services, should be kept to a minimum. Priority will be given to proposals whose administrative costs are less than twenty-five (25) per cent of the total funds requested from the Bureau. Applicants are strongly encouraged to cost share a portion of overhead and administrative expenses. Cost-sharing, including contributions from the applicant, the in-country partner, and other sources should be included in the budget request. Proposal budgets that do not provide cost-sharing will be deemed not competitive in this category.
4. Support of Diversity: Proposals should demonstrate substantive support of the Bureau's policy on diversity. Achievable and relevant features should be cited in both program administration (selection of participants, program venues and program evaluation) and program content (orientation and wrap-up sessions, program meetings, resource materials and follow-up activities). Applicants should refer to the Bureau's Diversity, Freedom and Democracy Guidelines in the Proposal Submission Instructions (PSI).
5. Evaluation: Proposals should include a detailed plan to monitor and evaluate the program. A draft survey questionnaire plus a description of a methodology that will link outcomes to original project objectives should be provided. Successful applicants will be expected to submit intermediate reports after each project component concludes or on a quarterly basis, whichever is less frequent.
6. Post-Grant Activities: Applicants should provide a plan to conduct activities after the Bureau-funded project has concluded in order to ensure that Bureau-supported programs are not isolated events. Funds for all post-grant activities must be in the form of contributions from the applicant or sources outside of the Bureau. Costs for these activities should not appear in the proposal budget, but should be outlined in the narrative.
Overall grant making authority for this program is contained in the Mutual Educational and Cultural Exchange Act of 1961, Public Law 87-256, as amended, also known as the Fulbright-Hays Act. The purpose of the Act is “to enable the Government of the United States to increase mutual understanding between the people of the United States and the people of other countries * * * ; to strengthen the ties which unite us with other nations by demonstrating the educational and cultural interests, developments, and achievements of the people of the United States and other nations * * * and thus to assist in the development of friendly, sympathetic and peaceful relations between the United States and the other countries of the world.” It is anticipated that funding for this competition will be made available from FY-2003 FREEDOM Support Act resources carried over into FY-2004 for obligation and new FY-2004 resources, pending the availability of funds.
The terms and conditions published in this RFGP are binding and may not be modified by any Bureau representative. Explanatory information provided by the Bureau that contradicts published language will not be binding. Issuance of the RFGP does not constitute an award commitment on the part of the Government. The Bureau reserves the right to reduce, revise, or increase proposal budgets in accordance with the needs of the program and the availability of funds. Awards made will be subject to periodic reporting and evaluation requirements.
Final awards cannot be made until funds have been appropriated by Congress, allocated and committed through internal Bureau procedures.
The Office of Academic Exchange Programs of the Bureau of Educational and Cultural Affairs announces an open competition for the Internet Access and Training Program (IATP) in the Caucasus, Central Asia and Russia. Public and private non-profit organizations meeting the provisions described in Internal Revenue Code section 26 USC 501(c)(3) may submit proposals to oversee and carry out IATP operations, including the establishment of new IATP sites, the maintenance and enhancement of existing sites, the development of Internet outreach and educational projects, and engaging ECA alumni and other targeted groups in the IATP. All activities of the IATP will be undertaken in regular and consistent consultation with the Public Affairs Section (PAS) of the U.S. Embassy in each participating country. Applicants may submit proposals to implement the program in only one of the three regions, (Russia, Caucasus, Central Asia) or in two or all three regions.
The Internet Access and Training Program (IATP) was established in 1995 with funding from the FREEDOM Support Act (FSA) to multiply the U.S. Government's investment in exchanges by supporting and maintaining contact with the over 100,000 Eurasian alumni of U.S. Government-funded programs through a network of public Internet access sites in twelve countries of Eurasia. IATP centers extend the exchange experience and expand avenues of mutual understanding by continuing to engage alumni and other targeted groups in U.S. based programs and dialogues. In Eurasia, where Internet access and freedom of information is often restricted by economic and political factors, IATP public access Internet sites allow USG exchange alumni to maintain contact with their host institutions and colleagues in the United States and across their home region, as well as with U.S. government officials and U.S. exchange NGOs, while maintaining access to world wide information centers. They also serve as catalysts for alumni action by furthering the ability of alumni to introduce American values and practices into their home societies. The IATP centers train alumni in practical and meaningful uses of the Internet, including how to create a website, how to design distance learning courses, publish journals and use databases. Exchange alumni also design courses and lead training sessions at the centers to transfer their knowledge and skills to their home communities. IATP sites are most often located at public libraries and at universities that provide unrestricted access to USG exchange alumni and other key individuals, such as educators, NGO staff members and journalists.
The main components of this program for which grant funding is provided are:
1. Enhancement of existing IATP sites.
2. Maintenance of existing IATP sites.
3. Establishment of new IATP sites.
4. Outreach and educational activities at IATP sites.
5. Monitoring of IATP activities.
6. Evaluation of IATP activities, including the sustainability of open access to information and Internet training.
Subject to the availability of funds, it is anticipated that the grants will begin on or about May 1, 2004. The grant period should be fifteen to twenty-four months. Please refer to the Solicitation Package for further information.
All organizations applying under this competition must demonstrate in their proposal narrative a minimum of four years experience managing and conducting international exchange programs. Bureau grant guidelines require that organizations with less than four years of experience managing and conducting international exchange programs be limited to $60,000. Since the grant or grants under the competition will exceed the $60,000 ceiling, organizations with less than four years experience, per above, are not eligible to apply under this competition.
Applicants must submit a comprehensive budget for each program. ECA anticipates awarding $4,795,000 ($340,000 in Armenia, $420,000 in Azerbaijan, $345,000 in Georgia in the Caucasus; $380,000 in Kazakhstan, $345,000 in Kyrgyzstan, $445,000 in Tajikistan, $150,000 in Turkmenistan, $380,000 in Uzbekistan in Central Asia; $1,990,000 in Russia) to support the program and administrative costs required to implement this program. ECA encourages applicants to provide maximum levels of cost sharing and funding from private sources in support of its programs. There must be a summary budget as well as breakdowns reflecting both administrative and program budgets. Applicants may provide separate sub-budgets for each program component, phase, location, or activity to provide clarification. Please refer to the Solicitation Package for complete budget guidelines and formatting instructions.
All correspondence with ECA concerning this RFGP should reference the above title and number
The Office of Academic Exchanges, ECA/A/E/EUR, Room 246, SA-44, U.S. Department of State, 301 4th Street, SW., Washington, DC 20547, tel. (202) 205-0525, fax (202) 260-7985,
Please read the complete
An OMB policy directive published in the
The Solicitation Package may be downloaded from ECA's Web site at
Applicants must follow all instructions in the Solicitation Package. The original and eight (8) copies of the application should be sent to: U.S. Department of State, SA-44, Bureau of Educational and Cultural Affairs, Ref.:
Applicant must also submit the “Executive Summary” and “Proposal Narrative” section of the proposals in text (.txt) format on a PC-formatted disc. The Bureau will provide these files electronically to the Public Affairs Section at U.S. Embassies for their review.
Pursuant to ECA's authorizing legislation, programs must maintain a non-political character and should be balanced and representative of the diversity of American political, social, and cultural life. “Diversity” should be interpreted in the broadest sense and encompass differences including, but not limited to ethnicity, race, gender, religion, geographic location, socio-economic status, and physical challenges. Applicants are strongly encouraged to adhere to the advancement of this principle both in program administration and in program content. Please refer to the review criteria under the ‘Support for Diversity’ section for specific suggestions on incorporating diversity into the total proposal. Public Law 104-319 provides that “in carrying out programs of educational and cultural exchange in countries whose people do not fully enjoy freedom and democracy,” ECA “shall take appropriate steps to provide opportunities for participation in such programs to human rights and democracy leaders of such countries.” Public Law 106-113 requires that the governments of the countries described above do not have inappropriate influence in the selection process. Proposals should reflect advancement of these goals in their program contents, to the full extent deemed feasible.
For your information only:
The Bureau of Educational and Cultural Affairs is placing renewed emphasis on the secure and proper administration of Exchange Visitor (J visa) Programs and adherence by grantees and sponsors to all regulations governing the J visa. Therefore, proposals should demonstrate the applicant's capacity to meet all requirements governing the administration of Exchange Visitor Programs as set forth in 22 CFR part 6Z, including the oversight of Responsible Officers and Alternate Responsible Officers, screening and selection of program participants, provision of pre-arrival information and orientation to participants, monitoring of participants, proper maintenance and security of forms, record-keeping, reporting and other requirements. The Grantee will be responsible for issuing DS-2019 forms to participants in this program.
A copy of the complete regulations governing the administration of Exchange Visitor (J) programs is available at
ECA will acknowledge receipt of all proposals and will review them for technical eligibility. Proposals will be deemed ineligible if they do not fully adhere to the guidelines stated herein and in the Solicitation Package.
All eligible proposals will be reviewed by the program office, as well as by the Public Affairs Sections overseas, where appropriate. Eligible proposals will be subject to compliance with Federal and ECA regulations and guidelines and forwarded to Department of State grant panels for advisory review. Proposals may also be reviewed by the Office of the Legal Adviser or by other Department elements. Final funding decisions are at the discretion of the Department of State's Acting Assistant Secretary for Educational and Cultural Affairs. Final technical authority for assistance awards (grants or cooperative agreements) resides with ECA's Grants Officer.
Technically eligible applications will be competitively reviewed according to the criteria stated below. These criteria are not rank ordered and all carry equal weight in the proposal evaluation:
1.
2.
3.
4.
5.
6.
7.
Overall grant making authority for this program is contained in the Mutual Educational and Cultural Exchange Act of 1961, Public Law 87-256, as amended, also known as the Fulbright-Hays Act. The purpose of the Act is “to enable the Government of the United States to increase mutual understanding between the people of the United States and the people of other countries * * *; to strengthen the ties which unite us with other nations by demonstrating the educational and cultural interests, developments, and achievements of the people of the United States and other nations * * * and thus to assist in the development of friendly, sympathetic and peaceful relations between the United States and the other countries of the world.” The funding authority for the program above is provided in part through the FREEDOM Support Act of 1992.
The terms and conditions published in this RFGP are binding and may not be modified by any ECA representative. Explanatory information provided by ECA that contradicts published language will not be binding. Issuance of the RFGP does not constitute an award commitment on the part of the Government. ECA reserves the right to reduce, revise, or increase proposal budgets in accordance with the needs of the program and the availability of funds. Awards made will be subject to periodic reporting and evaluation requirements.
Final awards cannot be made until funds have been appropriated by Congress, allocated and committed through internal Bureau procedures.
Federal Aviation Administration, DOT.
Notice of intent of waiver with respect to land.
The Federal Aviation Administration (FAA) is considering a proposal to change a portion of the airport from aeronautical use to non-aeronautical use and to authorize the exchange of the airport property. The proposal consists of three parcels, Parcel 9 = 40.0 acres, Parcel 10 = 40.0 acres and Parcel 11 and 12 = 40.0 acres totaling approximately 120.0 acres. The land was originally purchased by the County with state/local funds in 1997/1998.
There are no impacts to the airport by allowing the airport to dispose of the property. The proposed land will be used to increase the Manistee River State Game Area by 44 acres or 58 percent. Approval does not constitute a commitment by the FAA to financially assist in the disposal of the subject airport property nor a determination of eligibility for grant-in-aid funding from the FAA. The disposition of proceeds from the disposal of the airport property will be in accordance FAA's Policy and Procedures Concerning the Use of Airport Revenue, published in the Federal Register on February 16, 1999.
In accordance with section 47107(h) of title 49, United States Code, this notice is required to be published in the Federal Register 30 days before modifying the land-use assurance that requires the property to be used for an aeronautical purpose.
Comments must be received on or before November 20, 2003.
Ms. Stephanie Swann, Program Manager, Federal Aviation Administration, Great Lakes Region, Detroit Airports District Office, DET ADO-613, Metro Airport Center, 11677 South Wayne Road, Suite 107, Romulus, Michigan 48174. Telephone Number: 734-229-2945/FAX Number: 734-229-2950. Documents reflecting this FAA action may be reviewed at this same location or at Manistee County/Blacker Airport, Manistee, Michigan.
Following is a legal description of the property located in the City of Manistee, County of Manistee, Michigan, and described as follows:
Federal Aviation Administration (FAA), DOT.
Notice of changes in public meeting.
This notice announces the cancellation of the Charting Group meeting associated with of the Federal Aviation Administration's Government/Industry Aeronautical Charting Forum (ACF). The Instrument Procedures Group will meet as originally planned.
The ACF is separated into two distinct groups. The Instrument Procedures Group will meet as planned October 20 and 21, 2003 from 9 a.m. to 4:30 p.m. The Chart Group meeting originally scheduled for October 22 and 23, 2003 from 9 a.m. to 4:30 p.m. is cancelled.
The meeting will be held at the FAA National Aeronautical Charting Office, AVN-500, 1325 East-West
For information relating to the Instrument Procedures Group, contact Thomas E. Schneider, Flight Procedures Standards Branch, AFS-420, 6500 South MacArthur Blvd., PO Box 25082, Oklahoma City, OK 73125; telephone (405) 954-5852; fax: (405) 954-2528. For information relating to the cancellation of the Charting Group meeting, contact Richard V. Powell, FAA, Air Traffic Airspace Management, ATA-100, 800 Independence Avenue, SW., Washington, DC 20591; telephone: (202) 267-8790, fax: (202) 293-4266.
Federal Highway Administration (FHWA) and Federal Transit Administration (FTA), U.S. Department of Transportation (DOT).
Notice of intent to prepare an Environmental Impact Statement.
The FHWA and FTA are issuing this notice to advise the public that an Environmental Impact Statement and a Section 4(f) Evaluation (EIS/4(f)) will be prepared for transportation improvements in the City and County of Denver, City and County of Broomfield, Adams County, Jefferson County, Boulder County, the City of Westminster, City of Broomfield, Town of Superior, City of Louisville, and the City of Boulder, Colorado. Improvements will be considered generally between Boulder and Downtown Denver along the US 36 highway alignment, the Burlington Northern and Santa Fe (BNSF) rail line, SH 157 in Boulder and the area around the northern entry of SH 119 northeast of Boulder. The relationships of concurrent projects such as the Northwest Corridor EIS, the North I-25 EIS, the US36/US287 Interchange Environmental Assessment and the Denver Union Station Intermodal Master Plan EIS will also be considered.
The purpose of this notice is to notify interested individuals, organizations, and business entities, affected Native American Tribes, and Federal, State, and local governmental agencies of the intent to prepare an EIS/4(f) and to invite participation in the study. Transportation improvements are needed to meet current and future travel demands and to upgrade the transportation facilities in the corridor consistent with current standards and procedures.
Written comments on the scope of alternatives and impacts to be considered must be submitted by December 5, 2003 to Marion McCleary, Project Administrator, at the address below.
Project Scoping will be accomplished through coordination with affected parties, stakeholders, organizations, Federal, State, and local agencies; agency Scoping meetings; and through community outreach and public meetings in the project corridor. Meetings will be conducted as follows:
Written comments on the scope of alternatives and impacts to be considered should be sent to: Marion McCleary, Project Administrator, US 36 Mobility Partnership, c/o URS Corporation, 1225 17th Street, Suite 200, Denver, CO 80202, 303-293-8080, Fax: 303-293-2110, E-mail:
• Shaun Cutting, Senior Operations Engineer, FHWA, Colorado Division, 555 Zang Street, Room 250, Lakewood, CO 80228, Telephone: (303) 969-6730 extension 369.
• Dave Beckhouse, Community Planner, FTA, 216 16th Street, Suite 650, Denver, CO, 80202, Telephone: (303) 844-4266.
• Jeff Wassenaar, Colorado Department of Transportation, Region 6, 3401 Quebec Street, Suite 800, Denver, CO, 80207, Telephone: (303) 370-2052 extension 219.
• Scott Weeks, Regional Transportation District, 1600 Blake Street, Denver, CO, 80202, Telephone: (303) 299-2221.
To ensure that a full range of issues related to the proposed action are addressed and all significant issues identified, comments and suggestions are invited from all interested parties. Comments or questions concerning this proposed action and the EIS/4(f) should be directed to Shaun Cutting or Dave Beckhouse at the addresses previously provided.
To be placed on the public mailing list to receive additional project information, contact Marion McCleary at the address previously provided.
The FHWA and FTA in cooperation with the Colorado Department of Transportation (CDOT) and the Regional Transportation District (RTD) will prepare an Environmental Impact Statement and Section 4(f) Evaluation (EIS/4(f)) for transportation improvements on the US 36 Corridor (the Corridor) between Boulder and the Interstate 25 (I-25)/US 36 Interchange and a transit connection between Denver Union Station and Boulder.
The EIS/4(f) will evaluate improvement alternatives and the No-Action alternative based on the Purpose and Need developed for the corridor. Alternatives will be developed through an extensive agency and community outreach process. A full range of potential alignments and corridors will be considered for both highway and transit alternatives. The US 36 Corridor EIS/4(f) evaluation will result in a decision about which transportation projects, if any, will be built to improve safety and address congestion in the Corridor.
The study area for the EIS/4(f) is generally along the alignments of US 36 from I-25 to Boulder, SH 157/Foothills Parkway from US 36 to SH 119, and along the BNSF Railroad line from downtown Denver to Boulder. The purpose of the proposed action is to decrease congestion, and improve safety, access, and mobility. Original construction of US 36 was initiated in 1951 and completed as a four-lane toll road. The cross section is still four lanes throughout most of the highway length today. During the same period, population and employment growth in
The alternatives evaluated in the Draft EIS (DEIS) will include, but not be limited to, the alternatives developed in the previously completed US 36 Major Investment Study (MIS), June 2001. These alternatives consisted of Regional Rail on the BNSF alignment (also called Commuter Rail), Bus Rapid Transit (BRT) within the US 36 highway, High Occupancy Vehicle Lanes (HOV) on US 36, Roadway Widening on US 36 and possibly cross streets, Bikeway, Travel Demand Management (TDM), and Intelligent Transportation System (ITS) improvements and transportation management elements in a roughly 25-mile-long corridor, parallel to and including US 36, between downtown Denver and Boulder. The EIS/4(f) will evaluate the use and effects of toll and other user fee methods of finance on the alternatives and the expected travel demand response from such options.
The EIS/4(f) will also evaluate the appropriate end of line and associated facilities and connections into Downtown Denver to Union Station and in Boulder. As part of the transit evaluations, station locations will be studied and identified as appropriate.
The EIS/4(f) will also fully evaluate the No-Action Alternative as a basis of comparison among all alternatives. Other alternatives may be added as a result of scoping and agency coordination efforts.
The EIS/4(f) will analyze social, economic, and environmental impacts of the various alternatives. Other major issues to be evaluated include air quality, noise, aesthetics, community cohesion impacts, and possible disruption of neighborhoods, businesses and commercial activities. The subjects and level of detail addressed in the EIS/4(f) will be consistent with the requirements of the joint FTA/FHWA environmental regulations (23 CFR part 771) and the Council on Environmental Quality regulations (40 CFR parts 1500-1508). Among other factors, the EIS/4(f) will evaluate the following:
• Transportation service including future corridor capacity
• Transit ridership and costs
• Traffic movements and changes and associated impacts to local facilities
• Community impacts such as land use, displacements, noise, neighborhood compatibility and aesthetics
• Resource impacts including impacts to historic and archeological resources, cultural resource impacts, natural resource impacts including air quality, wetlands, water quality and wildlife
The proposed impact assessment and evaluation will take into account both positive and negative impacts, direct and indirect impacts, short-term (during the construction period) and long term impacts, and site-specific as well as corridor wide impacts. Mitigation measures will be identified for any adverse environmental impacts that are identified.
Federal Highway Administration (FHWA), Alaska Department of Transportation and Public Facilities (ADOT&PF).
Notice of intent.
The FHWA is issuing this notice to advise the public than an environmental impact statement will be prepared for a second crossing of the Gastineau Channel in Juneau, Alaska. Scoping meetings for the Juneau Second Channel Crossing project will be held in Juneau, Alaska during November 2003.
Tim Haugh, Environment/Right-of-Way Programs Manager, Federal Highway Administration, P.O. Box 21648, Juneau, Alaska 99802, (907) 586-7430.
The FHWA, in cooperation with the Alaska Department of Transportation and Public Facilities (ADOT&PF) and the City and Borough of Juneau (CBJ), will prepare an EIS for a proposed second crossing of the Gastineau Channel in Juneau, Alaska. The proposed Juneau Second Channel Crossing project would involve a new crossing from mainland Juneau to Douglas Island. The project study area includes an approximate nine-mile segment of the Gastineau Channel, from the vicinity of Salmon Creek to the vicinity of the Mendenhall Peninsula/North Douglas Island. Alternatives would vary by location and would include different bridge types that are estimated to be from approximately 0.5 to 1.5 miles in length.
Alternatives have yet to be developed for the project. Any bridge crossing alternatives will meet the reasonable needs of navigation for the Gastineau Channel. The No-build alternative will remain a viable alternative throughout the EIS process. The Second Crossing is considered necessary to: meet the expressed planning intent of the CBJ to facilitate existing and planned development of the CBJ designated “New Growth Area” on West Douglas Island in accordance with the CBJ Comprehensive Plan; and to improve transportation network connectivity and access for emergency response.
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 the proposal. A series of agency and public meetings will be held in Juneau, Alaska throughout the EIS study process. In addition, a public hearing will be held. Public notice will be given of the time and place of the meetings and hearing. The draft EIS will be made available for public and agency review and comment prior to the public hearing. A formal agency scoping meeting and public scoping meetings are planned in Juneau, Alaska during November 2003.
To ensure that the full range of issues related to this proposed action are addressed and all significant issues identified, comments, and suggestions are invited from all interested parties. Comments or questions concerning this proposed action and the EIS should be directed to the FHWA at the address above.
Maritime Administration, Department of Transportation.
Invitation for public comments on a requested administrative waiver of the Coastwise Trade Laws for the vessel JUSTICE.
As authorized by Public Law 105-383 and Public Law 107-295, the Secretary of Transportation, as represented by the Maritime Administration (MARAD), is authorized to grant waivers of the U.S.-build requirement of the coastwise laws under certain circumstances. A request for such a waiver has been received by MARAD. The vessel, and a brief description of the proposed service, is listed below. The complete application is given in DOT docket 2003-16323 at
Submit comments on or before November 20, 2003.
Comments should refer to docket number MARAD-2003 16323. Written comments may be submitted by hand or by mail to the Docket Clerk, U.S. DOT Dockets, Room PL-401, Department of Transportation, 400 7th St., SW., Washington, DC 20590-0001. You may also send comments electronically via the Internet at
Michael Hokana, U.S. Department of Transportation, Maritime Administration, MAR-830 Room 7201, 400 Seventh Street, SW., Washington, DC 20590. Telephone 202-366-0760.
As described by the applicant the intended service of the vessel JUSTICE is:
By order of the Maritime Administrator.
Bridgestone/Firestone has advised the National Highway Traffic Safety Administration (NHTSA) that it determined that approximately 4,700 P235/75R15 Dayton Timberline A/T tires do not meet the labeling requirements mandated by Federal Motor Vehicle Safety Standard (FMVSS) No. 109, “New Pneumatic Tires.” Pursuant to 49 U.S.C. 30118(d) and 30120(h), Bridgestone/Firestone has petitioned for a determination that this noncompliance is inconsequential to motor vehicle safety.
Notice of receipt of the application was published, with a 30-day comment period, on October 7, 2002, in the
FMVSS No. 109, S4.3(b) and S4.3(c), require that each tire shall have permanently molded the maximum permissible inflation pressure and the maximum load rating of the tire, respectively. The Sao Paulo, Brazil plant produced noncompliant tires during weeks 40 through and including week 49 of the year 2001. The subject tires were mislabeled as “Extra Load.” The actual markings on the subject tires are:
The correct markings should be:
Bridgestone/Firestone believes that the noncompliance is inconsequential as it relates to motor vehicle safety for the following stated reasons: “First, the subject tires with the exception of the “Extra Load” marking meet all the requirements of 49 CFR Part (sic) 109. Second, the subject tires were tested by Bridgestone/Firestone and meet the requirements of high speed, endurance, strength, and bead unseat as defined in 49 CFR Part (sic) 109 for the “Extra Load” designation. Third, the subject tires as shipped from the manufacturing plant were identified by tire labels and article number as standard load. Thus, the potential for sale of these tires as “Extra Load” is very small.”
This mislabeling does not constitute a noncompliance with FMVSS No. 109. The standard has no requirement that a tire be labeled with the words “extra load” even when it is designed to accommodate a greater load than a standard tire of the same size. The correct maximum load rating and the correct maximum inflation pressure are properly molded on the tires. These two values, along with other tire information such as tire size, are used by consumers in selecting replacement tires.
In consideration of the foregoing, NHTSA has decided that the tires in question do not exhibit a noncompliance with an FMVSS. Therefore, Bridgestone/Firestone's petition for an inconsequentiality exemption is moot.
(49 U.S.C. 30118, 30120; delegations of authority at 49 CFR 1.50 and 501.8)
Nissan North America (Nissan) has determined that the side marker lamps in approximately 302,000 model year 2002 and 2003 Nissan Altima vehicles do not meet certain requirements of Federal Motor Vehicle Safety Standard (FMVSS) No. 108, “Lamps, Reflective Devices and Associated Equipment.
Pursuant to 49 U.S.C. 30118(d) and 30120(h), Nissan has petitioned for a determination that this noncompliance is inconsequential to motor vehicle safety and has filed an appropriate report pursuant to 49 CFR Part 573, “Defect and Noncompliance Reports.” A copy of this petition can be found in this docket.
This notice of receipt of an application is published under 49 U.S.C. 30118 and 30120 and does not represent any agency decision or other exercise of judgment concerning the merits of the application.
FMVSS 108 S5.1.1 specifies that each vehicle shall be equipped with certain lamps and reflective devices. Nissan stated that extensive testing demonstrates that the subject side marker lamps consistently meet the light intensity requirements at the required test points. However, Nissan determined that the front side marker lamps may not meet the requirement to sustain the light intensity when measured between two of the nine test points in a scan test. Nissan believes that the noncompliance of the side lamps does not affect its primary purpose, which is to be sufficiently visible to identify the front edge of the vehicle at night. Nissan stated that the reported noncompliance is inconsequential as it relates to motor vehicle safety.
Its petition may be read by visiting the above mentioned docket using the Docket Management System described below.
Interested persons are invited to submit written data, views, and arguments on the application described above. Comments must refer to the docket and notice number cited at the beginning of this notice and be submitted to: U.S. Department of Transportation, Docket Management, Room PL-401, 400 Seventh Street, SW., Washington, DC, 20590. It is requested, but not required, that two copies of the comments be provided. The Docket Section is open on weekdays from 10 a.m. to 5 p.m. Comments may be submitted electronically by logging onto the Docket Management System Web site at
All comments received before the close of business on the closing date indicated below will be considered. The application and supporting materials, and all comments received after the closing date, will also be filed and will be considered to the extent possible. When the application is granted or denied, the notice will be published in the
Burlington Shortline Railroad, Inc., d/b/a/ Burlington Junction Railway (BJRY), a Class III rail carrier, has filed a verified notice of exemption under 49 CFR 1150.41
Consummation of this transaction was expected to occur on or about October 4, 2003.
BJRY certifies that its projected annual revenues as a result of this transaction will not exceed $5 million and that the transaction will not result in the creation of a Class II or Class I rail carrier.
If the verified notice contains false or misleading information, the exemption is void
An original and 10 copies of all pleadings, referring to STB Finance Docket No. 34409, must be filed with the Surface Transportation Board, 1925 K Street, NW., Washington, DC 20423-0001. In addition, a copy of each pleading must be served on John D. Heffner, 1920 N Street, NW., Suite 800, Washington, DC 20036.
Board decisions and notices are available on our Web site at “
By the Board, David M. Konschnik, Director, Office of Proceedings.
Pursuant to a written trackage rights agreement dated September 22, 2003, Elgin, Joliet & Eastern Railway Company has agreed to grant certain non-exclusive trackage rights to The Burlington Northern and Santa Fe Railway Company (BNSF) between EJE milepost 1.6 at Joliet, IL, and EJE milepost 20.6 at Eola, IL, a distance of approximately 19 miles.
Although BNSF states that the transaction was scheduled to be consummated on October 7, 2003, the earliest the transaction could be consummated was October 8, 2003 (7 days after filing the notice).
The purpose of the trackage rights is to allow BNSF to operate more efficiently.
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. 34413, must be filed with the Surface Transportation Board, 1925 K Street, NW., Washington, DC 20423-0001. In addition, a copy of each pleading must be served on Michael E. Roper, The Burlington Northern and Santa Fe Railway Company, 2500 Lou Menk Drive, PO Box 961039, Fort Worth, TX 76161-0039.
Board decisions and notices are available on our Web site at “
By the Board, David M. Konschnik, Director, Office of Proceedings.
The Department of Veterans Affairs gives notice under the Public Law 92-463 (Federal Advisory Committee Act) that the subcommittees of the Medical Research Service Merit Review Committee will meet from 8 a.m. to 5 p.m. as indicated below:
The addresses of the hotels are:
Governor's House, 1615 Rhode Island Avenue, NW., Washington, DC.
Holiday Inn Central, 1501 Rhode Island Avenue, NW., Washington, DC.
Marriott Residence Inn (Thomas Circle), 1199 Vermont Avenue, NW., Washington, DC.
These subcommittee meetings are for the purpose of evaluating the scientific merit of research conducted in each specialty by Department of Veterans Affairs (VA) investigators working in VA Medical Centers and Clinics.
The subcommittee meetings will be open to the public for approximately one hour at the start of each meeting to discuss the general status of the program. The remaining portion of each subcommittee meeting will be closed to the public for the review, discussion, and evaluation of initial and renewal projects.
The closed portion of the meetings involves discussion, examination, reference to and oral review of site visits, staff and consultant critiques of research protocols and similar documents. During this portion of the subcommittee meetings, discussion and recommendations will deal with qualifications of personnel conducting the studies, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy, as well as research information, the premature disclosure of which could significantly frustrate implementation of proposed agency action regarding such research projects.
As provided by subsection 10(d) of Public Law 92-453, as amended, closing portions of these subcommittee meetings is in accordance with 5 U.S.C., 552b(c)(6) and (9)(B). Those who plan to attend or would like to obtain a copy of minutes of the subcommittee meetings and rosters of the members of the subcommittees should contact LeRoy G. Frey, Ph.D., Chief, Program Review Division, Medical Research Service (121F), Department of Veterans Affairs, Washington, DC, (202) 408-3630.
By Direction of the Secretary.
The Department of Veterans Affairs (VA) gives notice under Public Law 92-463 (Federal Advisory Committee Act) that a meeting of the Research and Development Cooperative Studies Evaluation Committee will be held at the Crystal Gateway Marriott Hotel, 1700 Jefferson Davis Highway, Arlington, VA 22202, on December 16 and 17, 2003. The sessions will be held on December 16 from 8 a.m. to 3:45 p.m. and December 17 from 7:30 a.m. to 2 p.m.
The Committee advises the Chief Research and Development Officer through the Director of the Cooperative Studies Program on the relevance and feasibility of the studies, the adequacy of the protocols, and the scientific validity and propriety of technical details, including protection of human subjects.
On December 16, the Committee will review the following studies submitted: Efficacy of GM-CSF to Reduce Incidence and Duration of Mucositis Associated with Concomitant Chemoradiation Therapy in Head and Neck Cancer Patients; Integrating Practice Guidelines for Smoking Cessation into Mental Health Care for Post-Traumatic Stress Disorder; Risperidone Treatment for Refractory Combat-Related Post-Traumatic Stress Disorder; and A Randomized, Multicenter, Double-Blind, Placebo-Controlled Trial of DL-Alpha-tocopherol for the Treatment of Functional Decline in Outpatients with Alzheimer's Disease on Donepezil. On December 17, the Committee will review the study submitted on S-Adenosylmethionine Improves Survival in Alcoholic Cirrhosis.
The meeting will be open to the public December 16 from 8 a.m. to 8:30 a.m. to discuss the general status of the program. Those who plan to attend should contact Mrs. Karen Hood, Staff Assistant, Department of Veterans Affairs, Washington, DC, at (202) 254-0276. The meeting will be closed December 16 from 8:30 a.m. to 3:45 p.m. and December 17 from 7:30 a.m. to 2 p.m. That portion of the meeting involves committee business that falls within the scope of provisions set forth in section 10(d) of Public Law 92-463, as amended by sections 5(c) of Public Law 94-409, and 5 U.S.C. 552b(c)(6). During the closed session of the meeting, discussions and recommendations will deal with qualifications of personnel conducting the studies, staff and consultant critiques of research proposals, and similar documents, and the medical records of patients who are study subjects, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
By Direction of the Secretary.
In proposed rule document 03-25978 beginning on page 53947 in the issue of Wednesday, October 15, 2003, make the following correction:
On page 59347, in the third column, in the
United States Sentencing Commission.
Notice of (1) amendments to the sentencing guidelines made pursuant to the directive in section 401(m) of the PROTECT Act, Public Law 108-21; and (2) conforming amendments to the congressional amendments to the guidelines made directly by the PROTECT Act and effective on May 30, 2003.
Section 401(m) of the PROTECT Act requires the Commission, “[n]ot later than 180 days after the enactment of [the] Act” (
Section 994(x) of title 28, United States Code, requires the Commission to comply with the notice and comment procedures set forth in 5 U.S.C. 553. Section 553 provides, however, a “good cause” exception to the general notice and comment requirements, including the requirement that notice of final agency action be published not later than 30 days before the effective date of that action, if the “agency for good cause finds (and incorporates the finding and a brief statement of reasons therefor in the rules issued) that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest.” 5 U.S.C. 553(b), (d)(3). The 180-day deadline noted in the previous paragraph with respect to promulgation of these amendments, the extensive nature of these amendments, and limited Commission resources made it impracticable to publish the amendments in the
The effective date for the amendments set forth in this notice is October 27, 2003.
Michael Courlander, Public Affairs Officer, 202-502-4590. The amendments set forth in this notice also may be accessed through the Commission's Web site at
The United States Sentencing Commission is an independent agency in the judicial branch of the United States Government. The Commission promulgates sentencing guidelines and policy statements for federal sentencing courts pursuant to 28 U.S.C. 994(a). The Commission also periodically reviews and revises previously promulgated guidelines pursuant to 28 U.S.C. 994(o) and generally submits guideline amendments to Congress pursuant to 28 U.S.C. 994(p) not later than the first day of May each year. Absent action of Congress to the contrary, submitted amendments become effective by operation of law on the date specified by the Commission (generally November 1 of the year in which the amendments are submitted to Congress).
28 U.S.C. 994(a), (o), and (p); USSC Rule of Practice and Procedure 4.1.
1. Amendment: Section 5K2.0 is amended to read as follows:
(a)
(1)
(A) in the case of offenses other than child crimes and sexual offenses, the court finds, pursuant to 18 U.S.C. 3553(b)(1), that there exists an aggravating or mitigating circumstance; or
(B) in the case of child crimes and sexual offenses, the court finds, pursuant to 18 U.S.C. 3553(b)(2)(A)(i), that there exists an aggravating circumstance, of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that, in order to advance the objectives set forth in 18 U.S.C. 3553(a)(2), should result in a sentence different from that described.
(2)
(A)
(B)
(3)
(4)
(b)
(1) Has been affirmatively and specifically identified as a permissible ground of downward departure in the sentencing guidelines or policy statements issued under section 994(a) of title 28, United States Code, taking account of any amendments to such sentencing guidelines or policy statements by act of Congress;
(2) Has not adequately been taken into consideration by the Sentencing Commission in formulating the guidelines; and
(3) Should result in a sentence different from that described.
The grounds enumerated in this Part K of Chapter Five are the sole grounds that have been affirmatively and specifically identified as a permissible ground of downward departure in these sentencing guidelines and policy statements. Thus, notwithstanding any other reference to authority to depart downward elsewhere in this Sentencing Manual, a ground of downward departure has not been affirmatively and specifically identified as a permissible ground of downward departure within the meaning of section 3553(b)(2) unless it is expressly enumerated in this Part K as a ground upon which a downward departure may be granted.
(c)
(1) Such offender characteristics or other circumstances, taken together, make the case an exceptional one; and
(2) Each such offender characteristic or other circumstance is—
(A) present to a substantial degree; and
(B) identified in the guidelines as a permissible ground for departure, even if such offender characteristic or other circumstance is not ordinarily relevant to a determination of whether a departure is warranted.
(d)
(1) Any circumstance specifically prohibited as a ground for departure in §§ 5H1.10 (Race, Sex, National Origin, Creed, Religion, and Socio-Economic Status), 5H1.12 (Lack of Guidance as a Youth and Similar Circumstances), the third and last sentences of 5H1.4 (Physical Condition, Including Drug or Alcohol Dependence or Abuse; Gambling Addiction), the last sentence of 5K2.12 (Coercion and Duress), and 5K2.19 (Post-Sentencing Rehabilitative Efforts).
(2) The defendant's acceptance of responsibility for the offense, which may be taken into account only under 3E1.1 (Acceptance of Responsibility).
(3) The defendant's aggravating or mitigating role in the offense, which may be taken into account only under § 3B1.1 (Aggravating Role) or § 3B1.2 (Mitigating Role), respectively.
(4) The defendant's decision, in and of itself, to plead guilty to the offense or to enter a plea agreement with respect to the offense (
(5) The defendant's fulfillment of restitution obligations only to the extent required by law including the guidelines (
(6) Any other circumstance specifically prohibited as a ground for departure in the guidelines.
(e)
1.
‘Circumstance' includes, as appropriate, an offender characteristic or any other offense factor.
‘Depart', ‘departure', ‘downward departure', and ‘upward departure' have the meaning given those terms in Application Note 1 of the Commentary to § 1B1.1 (Application Instructions).
2.
(A) Departures Covered by this Policy Statement.—This policy statement covers departures from the applicable guideline range based on offense characteristics or offender characteristics of a kind, or to a degree, not adequately taken into consideration in determining that range.
Subsection (a) of this policy statement applies to upward departures in all cases covered by the guidelines and to downward departures in all such cases except for downward departures in child crimes and sexual offenses.
Subsection (b) of this policy statement applies only to downward departures in child crimes and sexual offenses.
(B)
3.
(A)
(i)
(ii)
(B)
(i)
(ii)
(C)
In addition, as required by subsection (e), each circumstance forming the basis for a departure described in this subdivision shall be stated with specificity in the written judgment and commitment order.
4.
(A)
(B)
(i)
(ii)
5.
As acknowledged by Congress in the Sentencing Reform Act and by the Commission when the first set of guidelines was promulgated, ‘it is difficult to prescribe a single set of guidelines that encompasses the vast range of human conduct potentially relevant to a sentencing decision. (
As reaffirmed in the Prosecutorial Remedies and Other Tools to end the Exploitation of Children Act of 2003 (the PROTECT Act, Public Law 108-21), circumstances warranting departure should be rare. Departures were never intended to permit sentencing courts to substitute their policy judgments for those of Congress and the Sentencing Commission. Departure in such circumstances would produce unwarranted sentencing disparity, which the Sentencing Reform Act was designed to avoid.
In order for appellate courts to fulfill their statutory duties under 18 U.S.C. 3742 and for the Commission to fulfill its ongoing responsibility to refine the guidelines in light of information it receives on departures, it is essential that sentencing courts state with specificity the reasons for departure, as required by the PROTECT Act.
This policy statement, including its commentary, was substantially revised, effective October 27, 2003, in response to directives contained in the PROTECT Act, particularly the directive in section 401(m) of that Act to—
‘(1) Review the grounds of downward departure that are authorized by the sentencing guidelines, policy statements, and official commentary of the Sentencing Commission; and
(2) promulgate, pursuant to section 994 of title 28, United States Code—
(A) appropriate amendments to the sentencing guidelines, policy statements, and official commentary to ensure that the incidence of downward departures is substantially reduced;
(B) a policy statement authorizing a departure pursuant to an early disposition program; and
(C) any other conforming amendments to the sentencing guidelines, policy statements, and official commentary of the Sentencing Commission necessitated by the Act, including a revision of * * * section 5K2.0'.
The substantial revision of this policy statement in response to the PROTECT Act was intended to refine the standards applicable to departures while giving due regard for concepts, such as the ‘heartland', that have evolved in departure jurisprudence over time.
Section 401(b)(1) of the PROTECT Act directly amended this policy statement to add subsection (b), effective April 30, 2003.”.
The Introductory Commentary of Chapter 5, Part H, is amended to read as follows:
The following policy statements address the relevance of certain offender characteristics to the determination of whether a sentence should be outside the applicable guideline range and, in certain cases, to the determination of a sentence within the applicable guideline range. Under 28 U.S.C. 994(d), the Commission is directed to consider whether certain specific offender characteristics ‘have any relevance to the nature, extent, place of service, or other incidents of an appropriate sentence' and to take them into account only to the extent they are determined to be relevant by the Commission.
The Commission has determined that certain circumstances are not ordinarily relevant to the determination of whether a sentence should be outside the applicable guideline range. Unless expressly stated, this does not mean that the Commission views such circumstances as necessarily inappropriate to the determination of the sentence within the applicable guideline range or to the determination of various other incidents of an appropriate sentence (
In addition, 28 U.S.C. 994(e) requires the Commission to assure that its guidelines and policy statements reflect the general inappropriateness of considering the defendant's education, vocational skills, employment record, and family ties and responsibilities in determining whether a term of imprisonment should be imposed or the length of a term of imprisonment.”.
Section 5H1.4 is amended to read as follows:
Ҥ 5H1.4. Physical Condition, Including Drug or Alcohol Dependence or Abuse; Gambling Addiction (Policy Statement)
Physical condition or appearance, including physique, is not ordinarily relevant in determining whether a departure may be warranted. However, an extraordinary physical impairment may be a reason to depart downward;
Drug or alcohol dependence or abuse is not a reason for a downward departure. Substance abuse is highly correlated to an increased propensity to commit crime. Due to this increased risk, it is highly recommended that a defendant who is incarcerated also be sentenced to supervised release with a requirement that the defendant participate in an appropriate substance abuse program (see § 5D1.3(d)(4)). If participation in a substance abuse program is required, the length of supervised release should take into account the length of time necessary for
Similarly, where a defendant who is a substance abuser is sentenced to probation, it is strongly recommended that the conditions of probation contain a requirement that the defendant participate in an appropriate substance abuse program (see § 5B1.3(d)(4)).
Addiction to gambling is not a reason for a downward departure.”.
Section 5H1.6 is amended to read as follows:
“5H1.6. Family Ties and Responsibilities (Policy Statement)
Family ties and responsibilities are not ordinarily relevant in determining whether a departure may be warranted.
Family responsibilities that are complied with may be relevant to the determination of the amount of restitution or fine.
1.
(A)
(i) The seriousness of the offense.
(ii) The involvement in the offense, if any, of members of the defendant's family.
(iii) The danger, if any, to members of the defendant's family as a result of the offense.
(B)
(i) The defendant's service of a sentence within the applicable guideline range will cause a substantial, direct, and specific loss of essential caretaking, or essential financial support, to the defendant's family.
(ii) The loss of caretaking or financial support substantially exceeds the harm ordinarily incident to incarceration for a similarly situated defendant. For example, the fact that the defendant's family might incur some degree of financial hardship or suffer to some extent from the absence of a parent through incarceration is not in itself sufficient as a basis for departure because such hardship or suffering is of a sort ordinarily incident to incarceration.
(iii) The loss of caretaking or financial support is one for which no effective remedial or ameliorative programs reasonably are available, making the defendant's caretaking or financial support irreplaceable to the defendant's family.
(iv) The departure effectively will address the loss of caretaking or financial support.”.
Section 5H1.7 is amended to read as follows:
Ҥ 5H1.7. Role in the Offense (Policy Statement)
A defendant's role in the offense is relevant in determining the applicable guideline range (see Chapter Three, Part B (Role in the Offense)) but is not a basis for departing from that range (see subsection (d) of § 5K2.0 (Grounds for Departures)).”.
Section 5H1.8 is amended to read as follows:
Ҥ 5H1.8. Criminal History (Policy Statement)
A defendant's criminal history is relevant in determining the applicable criminal history category. See Chapter Four (Criminal History and Criminal Livelihood). For grounds of departure based on the defendant's criminal history, see § 4A1.3 (Departures Based on Inadequacy of Criminal History Category).”.
Section § 5K2.10 is amended to read as follows:
Ҥ 5K2.10. Victim's Conduct (Policy Statement)
If the victim's wrongful conduct contributed significantly to provoking the offense behavior, the court may reduce the sentence below the guideline range to reflect the nature and circumstances of the offense. In deciding whether a sentence reduction is warranted, and the extent of such reduction, the court should consider the following:
(1) The size and strength of the victim, or other relevant physical characteristics, in comparison with those of the defendant.
(2) The persistence of the victim's conduct and any efforts by the defendant to prevent confrontation.
(3) The danger reasonably perceived by the defendant, including the victim's reputation for violence.
(4) The danger actually presented to the defendant by the victim.
(5) Any other relevant conduct by the victim that substantially contributed to the danger presented.
(6) The proportionality and reasonableness of the defendant's response to the victim's provocation.
Victim misconduct ordinarily would not be sufficient to warrant application of this provision in the context of offenses under Chapter Two, Part A, Subpart 3 (Criminal Sexual Abuse). In addition, this provision usually would not be relevant in the context of non-violent offenses. There may, however, be unusual circumstances in which substantial victim misconduct would warrant a reduced penalty in the case of a non-violent offense. For example, an extended course of provocation and harassment might lead a defendant to steal or destroy property in retaliation.”.
Section 5K2.12 is amended to read as follows:
Ҥ 5K2.12. Coercion and Duress (Policy Statement)
If the defendant committed the offense because of serious coercion, blackmail or duress, under circumstances not amounting to a complete defense, the court may decrease the sentence below the applicable guideline range. The extent of the decrease ordinarily should depend on the reasonableness of the defendant's actions, on the proportionality of the defendant's actions to the seriousness of coercion, blackmail, or duress involved, and on the extent to which the conduct would have been less harmful under the circumstances as the defendant believed them to be. Ordinarily coercion will be sufficiently serious to warrant departure only when it involves a threat of physical injury, substantial damage to property or similar injury resulting from the unlawful action of a third party or from a natural emergency. Notwithstanding this policy statement, personal financial difficulties and economic pressures upon a trade or business do not warrant a downward departure.”.
Section 5K2.13 is amended to read as follows:
Ҥ 5K2.13. Diminished Capacity (Policy Statement)
A sentence below the applicable guideline range may be warranted if (1) the defendant committed the offense while suffering from a significantly reduced mental capacity; and (2) the significantly reduced mental capacity contributed substantially to the commission of the offense. Similarly, if a departure is warranted under this policy statement, the extent of the departure should reflect the extent to which the reduced mental capacity contributed to the commission of the offense.
However, the court may not depart below the applicable guideline range if (1) the significantly reduced mental capacity was caused by the voluntary use of drugs or other intoxicants; (2) the facts and circumstances of the
1.
Significantly reduced mental capacity' means the defendant, although convicted, has a significantly impaired ability to (A) understand the wrongfulness of the behavior comprising the offense or to exercise the power of reason; or (B) control behavior that the defendant knows is wrongful.
Section 5K2.20 is amended to read as follows:
Ҥ 5K2.20. Aberrant Behavior (Policy Statement)
(a)
(b)
(c)
(1) The offense involved serious bodily injury or death.
(2) The defendant discharged a firearm or otherwise used a firearm or a dangerous weapon.
(3) The instant offense of conviction is a serious drug trafficking offense.
(4) The defendant has either of the following: (A) more than one criminal history point, as determined under Chapter Four (Criminal History and Criminal Livelihood) before application of subsection (b) of 4A1.3 (Departures Based on Inadequacy of Criminal History Category); or (B) a prior federal or state felony conviction, or any other significant prior criminal behavior, regardless of whether the conviction or significant prior criminal behavior is countable under Chapter Four.
1.
‘Dangerous weapon,’ ‘firearm,’ ‘otherwise used,’ and serious bodily injury’ have the meaning given those terms in the Commentary to § 1B1.1 (Application Instructions).
‘Serious drug trafficking offense’ means any controlled substance offense under title 21, United States Code, other than simple possession under 21 U.S.C. 844, that provides for a mandatory minimum term of imprisonment of five years or greater, regardless of whether the defendant meets the criteria of 5C1.2 (Limitation on Applicability of Statutory Mandatory Minimum Sentences in Certain Cases).
2.
3.
Background: Section 401(b)(3) of Public Law 108-21 directly amended subsection (a) of this policy statement, effective April 30, 2003.”.
Section 4A1.3 is amended to read as follows:
Ҥ 4A1.3. Departures Based on Inadequacy of Criminal History Category (Policy Statement)
(a)
(1)
(2)
(A) Prior sentence(s) not used in computing the criminal history category (
(B) Prior sentence(s) of substantially more than one year imposed as a result of independent crimes committed on different occasions.
(C) Prior similar misconduct established by a civil adjudication or by a failure to comply with an administrative order.
(D) Whether the defendant was pending trial or sentencing on another charge at the time of the instant offense.
(E) Prior similar adult criminal conduct not resulting in a criminal conviction.
(3)
(4)
(A)
(B)
(b)
(1)
(2)
(A)
(B)
(3)
(A)
(B)
(c)
(1) In the case of an upward departure, the specific reasons why the applicable criminal history category substantially under-represents the seriousness of the defendant's criminal history or the likelihood that the defendant will commit other crimes.
(2) In the case of a downward departure, the specific reasons why the applicable criminal history category substantially over-represents the seriousness of the defendant's criminal history or the likelihood that the defendant will commit other crimes.
1.
2.
(A)
(i) A previous foreign sentence for a serious offense.
(ii) Receipt of a prior consolidated sentence of ten years for a series of serious assaults.
(iii) A similar instance of large scale fraudulent misconduct established by an adjudication in a Securities and Exchange Commission enforcement proceeding.
(iv) Commission of the instant offense while on bail or pretrial release for another serious offense.
(B)
3.
The Commentary to § 4A1.1 captioned “Background” is amended by striking “permits information about the significance or similarity of past conduct underlying prior convictions to be used as a basis for imposing a sentence outside the applicable guideline range.” and inserting “authorizes the court to depart from the otherwise applicable criminal history category in certain circumstances.”.
Section 5C1.2 is amended in subsection (a)(1) by inserting “before application of subsection (b) of 4A1.3 (Departures Based on Inadequacy of Criminal History Category)” after “guidelines”.
The Commentary to § 5C1.2 captioned “Application Notes” is amended in Note 1 by inserting “before application of subsection (b) of § 4A1.3 (Departures Based on Inadequacy of Criminal History Category)” after “Category)”.
Chapter 5, Part K, is amended by adding at the end the following:
• 3.
Upon motion of the Government, the court may depart downward not more than 4 levels pursuant to an early disposition program authorized by the Attorney General of the United States and the United States Attorney for the district in which the court resides.
Section 6B1.2 is amended in subsection (a) by striking “[Rule 11(e)(1)(A)]” and inserting “(Rule 11(c)(1)(A))”.
Section 6B1.2 is amended in subsection (b) by striking “[Rule 11(e)(1)(B)]” and inserting “(Rule 11(c)(1)(B))”; and by striking subdivision (2) and inserting the following:
“(2)(A) the recommended sentence departs from the applicable guideline range for justifiable reasons; and (B) those reasons are specifically set forth in writing in the statement of reasons or judgment and commitment order.”.
Section 6B1.2 is amended in subsection (c) by striking “[Rule 11(e)(1)(C)]” and inserting “(Rule 11(c)(1)(C))”; and by striking subdivision (2) and inserting the following:
“(2)(A) the agreed sentence departs from the applicable guideline range for justifiable reasons; and (B) those reasons are specifically set forth in writing in the statement of reasons or judgment and commitment order.”.
The Commentary to 6B1.2 is amended in the second paragraph by striking “. See generally Chapter 1, Part A, Subpart 4(b)(Departures).” and inserting “and those reasons are specifically set forth in writing in the statement of reasons or the judgment and commitment order. As set forth in subsection (d) of 5K2.0 (Grounds for Departure), however, the court may not depart below the applicable guideline range merely because of the defendant's decision to plead guilty to the offense or to enter a plea agreement with respect to the offense.”.
The heading of Chapter One is amended to read as follow:
Chapter One, Part A, is amended to read as follows:
1A1.1. Authority
The guidelines, policy statements, and commentary set forth in this Guidelines Manual, including amendments thereto, are promulgated by the United States Sentencing Commission pursuant to: (1) Section 994(a) of title 28, United States Code; and (2) with respect to guidelines, policy statements, and commentary promulgated or amended pursuant to specific congressional directive, pursuant to the authority contained in that directive in addition to the authority under section 994(a) of title 28, United States Code.
1. Historical Review of Original Introduction.—Part A of Chapter One originally was an introduction to the Guidelines Manual that explained a number of policy decisions made by the Commission when it promulgated the initial set of guidelines. This introduction was amended occasionally between 1987 and 2003. In 2003, as part of the Commission's implementation of the Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today Act of 2003 (the ‘PROTECT Act', Pub. L. 108-21), the original introduction was transferred to the Historical Note at the end of this guideline. The Commission encourages the review of this material for context and historical purposes.
The United States Sentencing Commission (‘Commission’) is an independent agency in the judicial branch composed of seven voting and two non-voting, ex officio members. Its principal purpose is to establish sentencing policies and practices for the federal criminal justice system that will assure the ends of justice by promulgating detailed guidelines prescribing the appropriate sentences for offenders convicted of federal crimes.
The guidelines and policy statements promulgated by the Commission are issued pursuant to Section 994(a) of Title 28, United States Code.
The Comprehensive Crime Control Act of 1984 foresees guidelines that will further the basic purposes of criminal punishment,
The statute contains many detailed instructions as to how this determination should be made, but the most important of them instructs the Commission to create categories of offense behavior and offender characteristics. An offense behavior category might consist, for example, of ‘bank robbery/committed with a gun/$2500 taken.' An offender characteristic category might be ‘offender with one prior conviction who was not sentenced to imprisonment.' The Commission is required to prescribe guideline ranges that specify an appropriate sentence for each class of convicted persons, to be determined by coordinating the offense behavior categories with the offender characteristic categories. The statute contemplates the guidelines will establish a range of sentences for every coordination of categories. Where the guidelines call for imprisonment, the range must be narrow: the maximum imprisonment cannot exceed the minimum by more than the greater of 25 percent or six months. 28 U.S.C. 994(b)(2).
The sentencing judge must select a sentence from within the guideline range. If, however, a particular case presents atypical features, the Act allows the judge to depart from the guidelines and sentence outside the range. In that case, the judge must specify reasons for departure. 18 U.S.C. 3553(b). If the court sentences within the guideline range, an appellate court may review the sentence to see if the guideline was correctly applied. If the judge departs from the guideline range, an appellate court may review the reasonableness of the departure. 18 U.S.C. 3742. The Act requires the offender to serve virtually all of any prison sentence imposed, for it abolishes parole and substantially restructures good behavior adjustments.
The law requires the Commission to send its initial guidelines to Congress by April 13, 1987, and under the present statute they take effect automatically on November 1, 1987. Public Law No. 98-473, 235, reprinted at 18 U.S.C. 3551. The Commission may submit guideline
The Commission, with the aid of its legal and research staff, considerable public testimony, and written commentary, has developed an initial set of guidelines which it now transmits to Congress. The Commission emphasizes, however, that it views the guideline-writing process as evolutionary. It expects, and the governing statute anticipates, that continuing research, experience, and analysis will result in modifications and revisions to the guidelines by submission of amendments to Congress. To this end, the Commission is established as a permanent agency to monitor sentencing practices in the federal courts throughout the nation.
To understand these guidelines and the rationale that underlies them, one must begin with the three objectives that Congress, in enacting the new sentencing law, sought to achieve. Its basic objective was to enhance the ability of the criminal justice system to reduce crime through an effective, fair sentencing system. To achieve this objective, Congress first sought honesty in sentencing. It sought to avoid the confusion and implicit deception that arises out of the present sentencing system which requires a judge to impose an indeterminate sentence that is automatically reduced in most cases by ‘good time’ credits. In addition, the parole commission is permitted to determine how much of the remainder of any prison sentence an offender actually will serve. This usually results in a substantial reduction in the effective length of the sentence imposed, with defendants often serving only about one-third of the sentence handed down by the court.
Second, Congress sought uniformity in sentencing by narrowing the wide disparity in sentences imposed by different federal courts for similar criminal conduct by similar offenders. Third, Congress sought proportionality in sentencing through a system that imposes appropriately different sentences for criminal conduct of different severity.
At the same time, a sentencing system tailored to fit every conceivable wrinkle of each case can become unworkable and seriously compromise the certainty of punishment and its deterrent effect. A bank robber with (or without) a gun, which the robber kept hidden (or brandished), might have frightened (or merely warned), injured seriously (or less seriously), tied up (or simply pushed) a guard, a teller or a customer, at night (or at noon), for a bad (or arguably less bad) motive, in an effort to obtain money for other crimes (or for other purposes), in the company of a few (or many) other robbers, for the first (or fourth) time that day, while sober (or under the influence of drugs or alcohol), and so forth.
The list of potentially relevant features of criminal behavior is long; the fact that they can occur in multiple combinations means that the list of possible permutations of factors is virtually endless. The appropriate relationships among these different factors are exceedingly difficult to establish, for they are often context specific. Sentencing courts do not treat the occurrence of a simple bruise identically in all cases, irrespective of whether that bruise occurred in the context of a bank robbery or in the context of a breach of peace. This is so, in part, because the risk that such a harm will occur differs depending on the underlying offense with which it is connected (and therefore may already be counted, to a different degree, in the punishment for the underlying offense); and also because, in part, the relationship between punishment and multiple harms is not simply additive. The relation varies, depending on how much other harm has occurred. (Thus, one cannot easily assign points for each kind of harm and simply add them up, irrespective of context and total amounts.)
The larger the number of subcategories, the greater the complexity that is created and the less workable the system. Moreover, the subcategories themselves, sometimes too broad and sometimes too narrow, will apply and interact in unforeseen ways to unforeseen situations, thus failing to cure the unfairness of a simple, broad category system. Finally, and perhaps most importantly, probation officers and courts, in applying a complex system of subcategories, would have to make a host of decisions about whether the underlying facts are sufficient to bring the case within a particular subcategory. The greater the number of decisions required and the greater their complexity, the greater the risk that different judges will apply the guidelines differently to situations that, in fact, are similar, thereby reintroducing the very disparity that the guidelines were designed to eliminate.
In view of the arguments, it is tempting to retreat to the simple, broad-category approach and to grant judges the discretion to select the proper point along a broad sentencing range. Obviously, however, granting such broad discretion risks correspondingly broad disparity in sentencing, for different courts may exercise their discretionary powers in different ways. That is to say, such an approach risks a return to the wide disparity that Congress established the Commission to limit.
In the end, there is no completely satisfying solution to this practical stalemate. The Commission has had to simply balance the comparative virtues and vices of broad, simple categorization and detailed, complex subcategorization, and within the constraints established by that balance, minimize the discretionary powers of the sentencing court. Any ultimate system will, to a degree, enjoy the benefits and suffer from the drawbacks of each approach.
A philosophical problem arose when the Commission attempted to reconcile the differing perceptions of the purposes of criminal punishment. Most observers of the criminal law agree that the ultimate aim of the law itself, and of punishment in particular, is the control of crime. Beyond this point, however, the consensus seems to break down. Some argue that appropriate punishment should be defined primarily on the basis of the moral principle of ‘just deserts.’ Under this principle, punishment should be scaled to the offender's culpability and the resulting harms. Thus, if a defendant is less culpable, the defendant deserves less punishment. Others argue that punishment should be imposed primarily on the basis of practical ‘crime
Adherents of these points of view have urged the Commission to choose between them, to accord one primacy over the other. Such a choice would be profoundly difficult. The relevant literature is vast, the arguments deep, and each point of view has much to be said in its favor. A clear-cut Commission decision in favor of one of these approaches would diminish the chance that the guidelines would find the widespread acceptance they need for effective implementation. As a practical matter, in most sentencing decisions both philosophies may prove consistent with the same result.
For now, the Commission has sought to solve both the practical and philosophical problems of developing a coherent sentencing system by taking an empirical approach that uses data estimating the existing sentencing system as a starting point. It has analyzed data drawn from 10,000 presentence investigations, crimes as distinguished in substantive criminal statutes, the United States Parole Commission's guidelines and resulting statistics, and data from other relevant sources, in order to determine which distinctions are important in present practice. After examination, the Commission has accepted, modified, or rationalized the more important of these distinctions.
This empirical approach has helped the Commission resolve its practical problem by defining a list of relevant distinctions that, although of considerable length, is short enough to create a manageable set of guidelines. Existing categories are relatively broad and omit many distinctions that some may believe important, yet they include most of the major distinctions that statutes and presentence data suggest make a significant difference in sentencing decisions. Important distinctions that are ignored in existing practice probably occur rarely. A sentencing judge may take this unusual case into account by departing from the guidelines.
The Commission's empirical approach has also helped resolve its philosophical dilemma. Those who adhere to a just deserts philosophy may concede that the lack of moral consensus might make it difficult to say exactly what punishment is deserved for a particular crime, specified in minute detail. Likewise, those who subscribe to a philosophy of crime control may acknowledge that the lack of sufficient, readily available data might make it difficult to say exactly what punishment will best prevent that crime. Both groups might therefore recognize the wisdom of looking to those distinctions that judges and legislators have, in fact, made over the course of time. These established distinctions are ones that the community believes, or has found over time, to be important from either a moral or crime-control perspective.
The Commission has not simply copied estimates of existing practice as revealed by the data (even though establishing offense values on this basis would help eliminate disparity, for the data represent averages). Rather, it has departed from the data at different points for various important reasons. Congressional statutes, for example, may suggest or require departure, as in the case of the new drug law that imposes increased and mandatory minimum sentences. In addition, the data may reveal inconsistencies in treatment, such as punishing economic crime less severely than other apparently equivalent behavior.
Despite these policy-oriented departures from present practice, the guidelines represent an approach that begins with, and builds upon, empirical data. The guidelines will not please those who wish the Commission to adopt a single philosophical theory and then work deductively to establish a simple and perfect set of categorizations and distinctions. The guidelines may prove acceptable, however, to those who seek more modest, incremental improvements in the status quo, who believe the best is often the enemy of the good, and who recognize that these initial guidelines are but the first step in an evolutionary process. After spending considerable time and resources exploring alternative approaches, the Commission has developed these guidelines as a practical effort toward the achievement of a more honest, uniform, equitable, and therefore effective, sentencing system.
The guideline-writing process has required the Commission to resolve a host of important policy questions, typically involving rather evenly balanced sets of competing considerations. As an aid to understanding the guidelines, this introduction will briefly discuss several of those issues. Commentary in the guidelines explains others.
(a)
One of the most important questions for the Commission to decide was whether to base sentences upon the actual conduct in which the defendant engaged regardless of the charges for which he was indicted or convicted (‘real offense' sentencing), or upon the conduct that constitutes the elements of the offense with which the defendant was charged and of which he was convicted (‘charge offense' sentencing). A bank robber, for example, might have used a gun, frightened bystanders, taken $50,000, injured a teller, refused to stop when ordered, and raced away damaging property during escape. A pure real offense system would sentence on the basis of all identifiable conduct. A pure charge offense system would overlook some of the harms that did not constitute statutory elements of the offenses of which the defendant was convicted.
The Commission initially sought to develop a real offense system. After all, the present sentencing system is, in a sense, a real offense system. The sentencing court (and the parole commission) take account of the conduct in which the defendant actually engaged, as determined in a presentence report, at the sentencing hearing, or before a parole commission hearing officer. The Commission's initial efforts in this direction, carried out in the spring and early summer of 1986, proved unproductive mostly for practical reasons. To make such a system work, even to formalize and rationalize the status quo, would have required the Commission to decide precisely which harms to take into account, how to add them up, and what kinds of procedures the courts should use to determine the presence or absence of disputed factual elements. The Commission found no practical way to combine and account for the large number of diverse harms arising in different circumstances; nor did it find a practical way to reconcile the need for a fair adjudicatory procedure with the need for a speedy sentencing process, given the potential existence of hosts of adjudicated real harm' facts in many typical cases. The effort proposed as a solution to these problems required the use of, for example, quadratic roots and other mathematical operations that the Commission considered too complex to be workable, and, in the Commission's view, risked return to wide disparity in practice.
The Commission therefore abandoned the effort to devise a ‘pure' real offense system and instead experimented with a ‘modified real offense system,' which it published for public comment in a September 1986 preliminary draft.
This version also foundered in several major respects on the rock of practicality. It was highly complex and its mechanical rules for adding harms (
The Commission, in its January 1987 Revised Draft and the present guidelines, has moved closer to a ‘charge offense' system. The system is not, however, pure; it has a number of real elements. For one thing, the hundreds of overlapping and duplicative statutory provisions that make up the federal criminal law have forced the Commission to write guidelines that are descriptive of generic conduct rather than tracking purely statutory language. For another, the guidelines, both through specific offense characteristics and adjustments, take account of a number of important, commonly occurring real offense elements such as role in the offense, the presence of a gun, or the amount of money actually taken.
Finally, it is important not to overstate the difference in practice between a real and a charge offense system. The federal criminal system, in practice, deals mostly with drug offenses, bank robberies and white collar crimes (such as fraud, embezzlement, and bribery). For the most part, the conduct that an indictment charges approximates the real and relevant conduct in which the offender actually engaged.
The Commission recognizes its system will not completely cure the problems of a real offense system. It may still be necessary, for example, for a court to determine some particular real facts that will make a difference to the sentence. Yet, the Commission believes that the instances of controversial facts will be far fewer; indeed, there will be few enough so that the court system will be able to devise fair procedures for their determination.
The Commission also recognizes that a charge offense system has drawbacks of its own. One of the most important is its potential to turn over to the prosecutor the power to determine the sentence by increasing or decreasing the number (or content) of the counts in an indictment. Of course, the defendant's actual conduct (that which the prosecutor can prove in court) imposes a natural limit upon the prosecutor's ability to increase a defendant's sentence. Moreover, the Commission has written its rules for the treatment of multicount convictions with an eye toward eliminating unfair treatment that might flow from count manipulation. For example, the guidelines treat a three-count indictment, each count of which charges sale of 100 grams of heroin, or theft of $10,000, the same as a single-count indictment charging sale of 300 grams of heroin or theft of $30,000. Further, a sentencing court may control any inappropriate manipulation of the indictment through use of its power to depart from the specific guideline sentence. Finally, the Commission will closely monitor problems arising out of count manipulation and will make appropriate adjustments should they become necessary.
(b)
The new sentencing statute permits a court to depart from a guideline-specified sentence only when it finds ‘an aggravating or mitigating circumstance * * * that was not adequately taken into consideration by the Sentencing Commission * * *'. 18 U.S.C. 3553(b). Thus, in principle, the Commission, by specifying that it had adequately considered a particular factor, could prevent a court from using it as grounds for departure. In this initial set of guidelines, however, the Commission does not so limit the courts' departure powers. The Commission intends the sentencing courts to treat each guideline as carving out a ‘heartland,' a set of typical cases embodying the conduct that each guideline describes. When a court finds an atypical case, one to which a particular guideline linguistically applies but where conduct significantly differs from the norm, the court may consider whether a departure is warranted. Section 5H1.10 (Race, Sex, National Origin, Creed, Religion, Socio-Economic Status), the third sentence of 5H1.4, and the last sentence of § 5K2.12, list a few factors that the court cannot take into account as grounds for departure. With those specific exceptions, however, the Commission does not intend to limit the kinds of factors (whether or not mentioned anywhere else in the guidelines) that could constitute grounds for departure in an unusual case.
The Commission has adopted this departure policy for two basic reasons. First is the difficulty of foreseeing and capturing a single set of guidelines that encompasses the vast range of human conduct potentially relevant to a sentencing decision. The Commission also recognizes that in the initial set of guidelines it need not do so. The Commission is a permanent body, empowered by law to write and rewrite guidelines, with progressive changes, over many years. By monitoring when courts depart from the guidelines and by analyzing their stated reasons for doing so, the Commission, over time, will be able to create more accurate guidelines that specify precisely where departures should and should not be permitted.
Second, the Commission believes that despite the courts' legal freedom to depart from the guidelines, they will not do so very often. This is because the guidelines, offense by offense, seek to take account of those factors that the Commission's sentencing data indicate make a significant difference in sentencing at the present time. Thus, for example, where the presence of actual physical injury currently makes an important difference in final sentences, as in the case of robbery, assault, or arson, the guidelines specifically instruct the judge to use this factor to augment the sentence. Where the guidelines do not specify an augmentation or diminution, this is generally because the sentencing data do not permit the Commission, at this time, to conclude that the factor is empirically important in relation to the particular offense. Of course, a factor (say physical injury) may nonetheless sometimes occur in connection with a crime (such as fraud) where it does not often occur. If, however, as the data indicate, such occurrences are rare, they are precisely the type of events that the court's departure powers were designed to cover — unusual cases outside the range of the more typical offenses for which the guidelines were designed. Of course, the Commission recognizes that even its collection and analysis of 10,000 presentence reports are an imperfect source of data sentencing estimates. Rather than rely heavily at this time upon impressionistic accounts, however, the Commission believes it wiser to wait and collect additional data from our continuing monitoring process that may demonstrate how the guidelines work in practice before further modification.
It is important to note that the guidelines refer to three different kinds of departure. The first kind, which will
The second kind involves instances in which the guidelines provide specific guidance for departure, by analogy or by other numerical or non-numerical suggestions. For example, the commentary to § 2G1.1 (Transportation for Prostitution), recommends a downward adjustment of eight levels where commercial purpose was not involved. The Commission intends such suggestions as policy guidance for the courts. The Commission expects that most departures will reflect the suggestions, and that the courts of appeals may prove more likely to find departures ‘unreasonable' where they fall outside suggested levels.
A third kind of departure will remain unguided. It may rest upon grounds referred to in Chapter 5, Part H, or on grounds not mentioned in the guidelines. While Chapter 5, Part H lists factors that the Commission believes may constitute grounds for departure, those suggested grounds are not exhaustive. The Commission recognizes that there may be other grounds for departure that are not mentioned; it also believes there may be cases in which a departure outside suggested levels is warranted. In its view, however, such cases will be highly unusual.
(c)
Nearly ninety percent of all federal criminal cases involve guilty pleas, and many of these cases involve some form of plea agreement. Some commentators on early Commission guideline drafts have urged the Commission not to attempt any major reforms of the agreement process, on the grounds that any set of guidelines that threatens to radically change present practice also threatens to make the federal system unmanageable. Others, starting with the same facts, have argued that guidelines which fail to control and limit plea agreements would leave untouched a ‘loophole' large enough to undo the good that sentencing guidelines may bring. Still other commentators make both sets of arguments.
The Commission has decided that these initial guidelines will not, in general, make significant changes in current plea agreement practices. The court will accept or reject any such agreements primarily in accordance with the rules set forth in Fed.R.Crim.P. 11(e). The Commission will collect data on the courts' plea practices and will analyze this information to determine when and why the courts accept or reject plea agreements. In light of this information and analysis, the Commission will seek to further regulate the plea agreement process as appropriate.
The Commission nonetheless expects the initial set of guidelines to have a positive, rationalizing impact upon plea agreements for two reasons. First, the guidelines create a clear, definite expectation in respect to the sentence that a court will impose if a trial takes place. Insofar as a prosecutor and defense attorney seek to agree about a likely sentence or range of sentences, they will no longer work in the dark. This fact alone should help to reduce irrationality in respect to actual sentencing outcomes. Second, the guidelines create a norm to which judges will likely refer when they decide whether, under Rule 11(e), to accept or to reject a plea agreement or recommendation. Since they will have before them the norm, the relevant factors (as disclosed in the plea agreement), and the reason for the agreement, they will find it easier than at present to determine whether there is sufficient reason to accept a plea agreement that departs from the norm.
The statute provides that the guidelines are to ‘reflect the general appropriateness of imposing a sentence other than imprisonment in cases in which the defendant is a first offender who has not been convicted of a crime of violence or an otherwise serious offense * * * 28 U.S.C. 994(j). Under present sentencing practice, courts sentence to probation an inappropriately high percentage of offenders guilty of certain economic crimes, such as theft, tax evasion, antitrust offenses, insider trading, fraud, and embezzlement, that in the Commission's view are ‘serious.' If the guidelines were to permit courts to impose probation instead of prison in many or all such cases, the present sentences would continue to be ineffective.
The Commission's solution to this problem has been to write guidelines that classify as ‘serious' (and therefore subject to mandatory prison sentences) many offenses for which probation is now frequently given. At the same time, the guidelines will permit the sentencing court to impose short prison terms in many such cases. The Commission's view is that the definite prospect of prison, though the term is short, will act as a significant deterrent to many of these crimes, particularly when compared with the status quo where probation, not prison, is the norm.
More specifically, the guidelines work as follows in respect to a first offender. For offense levels one through six, the sentencing court may elect to sentence the offender to probation (with or without confinement conditions) or to a prison term. For offense levels seven through ten, the court may substitute probation for a prison term, but the probation must include confinement conditions (community confinement or intermittent confinement). For offense levels eleven and twelve, the court must impose at least one half the minimum confinement sentence in the form of prison confinement, the remainder to be served on supervised release with a condition of community confinement. The Commission, of course, has not dealt with the single acts of aberrant behavior that still may justify probation at higher offense levels through departures.
(e)
The Commission, like other sentencing commissions, has found it particularly difficult to develop rules for sentencing defendants convicted of multiple violations of law, each of which makes up a separate count in an indictment. The reason it is difficult is that when a defendant engages in conduct that causes several harms, each additional harm, even if it increases the extent to which punishment is warranted, does not necessarily warrant a proportionate increase in punishment. A defendant who assaults others during a fight, for example, may warrant more punishment if he injures ten people than if he injures one, but his conduct does not necessarily warrant ten times the punishment. If it did, many of the
Several individual guidelines provide special instructions for increasing punishment when the conduct that is the subject of that count involves multiple occurrences or has caused several harms. The guidelines also provide general rules for aggravating punishment in light of multiple harms charged separately in separate counts. These rules may produce occasional anomalies, but normally they will permit an appropriate degree of aggravation of punishment when multiple offenses that are the subjects of separate counts take place.
These rules are set out in Chapter Three, Part D. They essentially provide: (1) When the conduct involves fungible items,
The rules have been written in order to minimize the possibility that an arbitrary casting of a single transaction into several counts will produce a longer sentence. In addition, the sentencing court will have adequate power to prevent such a result through departures where necessary to produce a mitigated sentence.
(f)
Regulatory statutes, though primarily civil in nature, sometimes contain criminal provisions in respect to particularly harmful activity. Such criminal provisions often describe not only substantive offenses, but also more technical, administratively-related offenses such as failure to keep accurate records or to provide requested information. These criminal statutes pose two problems. First, which criminal regulatory provisions should the Commission initially consider, and second, how should it treat technical or administratively-related criminal violations?
In respect to the first problem, the Commission found that it cannot comprehensively treat all regulatory violations in the initial set of guidelines. There are hundreds of such provisions scattered throughout the United States Code. To find all potential violations would involve examination of each individual federal regulation. Because of this practical difficulty, the Commission has sought to determine, with the assistance of the Department of Justice and several regulatory agencies, which criminal regulatory offenses are particularly important in light of the need for enforcement of the general regulatory scheme. The Commission has sought to treat these offenses in these initial guidelines. It will address the less common regulatory offenses in the future.
In respect to the second problem, the Commission has developed a system for treating technical recordkeeping and reporting offenses, dividing them into four categories.
First, in the simplest of cases, the offender may have failed to fill out a form intentionally, but without knowledge or intent that substantive harm would likely follow. He might fail, for example, to keep an accurate record of toxic substance transport, but that failure may not lead, nor be likely to lead, to the release or improper treatment of any toxic substance. Second, the same failure may be accompanied by a significant likelihood that substantive harm will occur; it may make a release of a toxic substance more likely. Third, the same failure may have led to substantive harm. Fourth, the failure may represent an effort to conceal a substantive harm that has occurred.
The structure of a typical guideline for a regulatory offense is as follows:
(1) The guideline provides a low base offense level (6) aimed at the first type of recordkeeping or reporting offense. It gives the court the legal authority to impose a punishment ranging from probation up to six months of imprisonment.
(2) Specific offense characteristics designed to reflect substantive offenses that do occur (in respect to some regulatory offenses), or that are likely to occur, increase the offense level.
(3) A specific offense characteristic also provides that a recordkeeping or reporting offense that conceals a substantive offense will be treated like the substantive offense.
The Commission views this structure as an initial effort. It may revise its approach in light of further experience and analysis of regulatory crimes.
(g)
In determining the appropriate sentencing ranges for each offense, the Commission began by estimating the average sentences now being served within each category. It also examined the sentence specified in congressional statutes, in the parole guidelines, and in other relevant, analogous sources. The Commission's forthcoming detailed report will contain a comparison between estimates of existing sentencing practices and sentences under the guidelines.
While the Commission has not considered itself bound by existing sentencing practice, it has not tried to develop an entirely new system of sentencing on the basis of theory alone. Guideline sentences in many instances will approximate existing practice, but adherence to the guidelines will help to eliminate wide disparity. For example, where a high percentage of persons now receive probation, a guideline may include one or more specific offense characteristics in an effort to distinguish those types of defendants who now receive probation from those who receive more severe sentences. In some instances, short sentences of incarceration for all offenders in a category have been substituted for a current sentencing practice of very wide variability in which some defendants receive probation while others receive several years in prison for the same offense. Moreover, inasmuch as those who currently plead guilty often receive lesser sentences, the guidelines also permit the court to impose lesser sentences on those defendants who accept responsibility and those who cooperate with the government.
The Commission has also examined its sentencing ranges in light of their likely impact upon prison population. Specific legislation, such as the new drug law and the career offender provisions of the sentencing law, require the Commission to promulgate rules that will lead to substantial prison population increases. These increases will occur irrespective of any guidelines. The guidelines themselves, insofar as they reflect policy decisions made by the Commission (rather than legislated mandatory minimum, or career offender, sentences), will lead to an increase in prison population that computer models, produced by the Commission and the Bureau of Prisons, estimate at approximately 10 percent, over a period of ten years.
(h)
The Commission has established a sentencing table. For technical and practical reasons it has 43 levels. Each row in the table contains levels that overlap with the levels in the preceding and succeeding rows. By overlapping the levels, the table should discourage unnecessary litigation. Both prosecutor and defendant will realize that the difference between one level and another will not necessarily make a difference in the sentence that the judge imposes. Thus, little purpose will be served in protracted litigation trying to determine, for example, whether
Similarly, many of the individual guidelines refer to tables that correlate amounts of money with offense levels. These tables often have many, rather than a few levels. Again, the reason is to minimize the likelihood of unnecessary litigation. If a money table were to make only a few distinctions, each distinction would become more important and litigation as to which category an offender fell within would become more likely. Where a table has many smaller monetary distinctions, it minimizes the likelihood of litigation, for the importance of the precise amount of money involved is considerably less.
The Commission emphasizes that its approach in this initial set of guidelines is one of caution. It has examined the many hundreds of criminal statutes in the United States Code. It has begun with those that are the basis for a significant number of prosecutions. It has sought to place them in a rational order. It has developed additional distinctions relevant to the application of these provisions, and it has applied sentencing ranges to each resulting category. In doing so, it has relied upon estimates of existing sentencing practices as revealed by its own statistical analyses, based on summary reports of some 40,000 convictions, a sample of 10,000 augmented presentence reports, the parole guidelines and policy judgments.
The Commission recognizes that some will criticize this approach as overly cautious, as representing too little a departure from existing practice. Yet, it will cure wide disparity. The Commission is a permanent body that can amend the guidelines each year. Although the data available to it, like all data, are imperfect, experience with these guidelines will lead to additional information and provide a firm empirical basis for revision.
Finally, the guidelines will apply to approximately 90 percent of all cases in the federal courts. Because of time constraints and the nonexistence of statistical information, some offenses that occur infrequently are not considered in this initial set of guidelines. They will, however, be addressed in the near future. Their exclusion from this initial submission does not reflect any judgment about their seriousness. The Commission has also deferred promulgation of guidelines pertaining to fines, probation and other sanctions for organizational defendants, with the exception of antitrust violations. The Commission also expects to address this area in the near future.'.
Amendment 67 amended Subpart 4(b) in the first sentence of the first paragraph by striking ‘* * * that was’ and inserting ‘of a kind, or to a degree,’; in the second sentence of the last paragraph by striking ‘Part H’ and inserting ‘Part K (Departures)’; and in the third sentence of the last paragraph by striking ‘Part H’ and inserting ‘Part K’.
Amendment 68 amended Subpart 4(b) in the first sentence of the fourth paragraph by striking ‘three’ and inserting ‘two’; in the fourth paragraph by striking the second through eighth sentences as follows:
‘The first kind, which will most frequently be used, is in effect an interpolation between two adjacent, numerically oriented guideline rules. A specific offense characteristic, for example, might require an increase of four levels for serious bodily injury but two levels for bodily injury. Rather than requiring a court to force middle instances into either the ‘serious’ or the ‘simple’ category, the guideline commentary suggests that the court may interpolate and select a midpoint increase of three levels. The Commission has decided to call such an interpolation a ‘departure’ in light of the legal views that a guideline providing for a range of increases in offense levels may violate the statute's 25 percent rule (though other have presented contrary legal arguments). Since interpolations are technically departures, the courts will have to provide reasons for their selection, and it will be subject to review for ‘reasonableness’ on appeal. The Commission believes, however, that a simple reference by the court to the ‘mid-category’ nature of the facts will typically provide sufficient reason. It does not foresee serious practical problems arising out of the application of the appeal provisions to this form of departure.’;
Amendment 307 amended Subparts 2 through 5 to read as follows:
The Sentencing Reform Act of 1984 (Title II of the Comprehensive Crime Control Act of 1984) provides for the development of guidelines that will further the basic purposes of criminal punishment: deterrence, incapacitation, just punishment, and rehabilitation. The Act delegates broad authority to the Commission to review and rationalize the federal sentencing process.
The Act contains detailed instructions as to how this determination should be made, the most important of which directs the Commission to create categories of offense behavior and offender characteristics. An offense behavior category might consist, for example, of ‘bank robbery/committed with a gun/$2500 taken.’ An offender characteristic category might be ‘offender with one prior conviction not resulting in imprisonment.’ The Commission is required to prescribe guideline ranges that specify an appropriate sentence for each class of convicted persons determined by coordinating the offense behavior categories with the offender characteristic categories. Where the guidelines call for imprisonment, the range must be narrow: The maximum of the range cannot exceed the minimum by more than the greater of 25 percent or six months. 28 U.S.C. 994(b)(2).
Pursuant to the Act, the sentencing court must select a sentence from within the guideline range. If, however, a particular case presents atypical features, the Act allows the court to depart from the guidelines and sentence outside the prescribed range. In that case, the court must specify reasons for departure. 18 U.S.C. 3553(b). If the court sentences within the guideline range, an appellate court may review the sentence to determine whether the guidelines were correctly applied. If the court departs from the guideline range, an appellate court may review the reasonableness of the departure. 18 U.S.C. 3742. The Act also abolishes parole, and substantially reduces and restructures good behavior adjustments.
The Commission's initial guidelines were submitted to Congress on April 13, 1987. After the prescribed period of Congressional review, the guidelines took effect on November 1, 1987, and apply to all offenses committed on or after that date. The Commission has the authority to submit guideline amendments each year to Congress between the beginning of a regular
The initial sentencing guidelines and policy statements were developed after extensive hearings, deliberation, and consideration of substantial public comment. The Commission emphasizes, however, that it views the guideline-writing process as evolutionary. It expects, and the governing statute anticipates, that continuing research, experience, and analysis will result in modifications and revisions to the guidelines through submission of amendments to Congress. To this end, the Commission is established as a permanent agency to monitor sentencing practices in the federal courts.
To understand the guidelines and their underlying rationale, it is important to focus on the three objectives that Congress sought to achieve in enacting the Sentencing Reform Act of 1984. The Act's basic objective was to enhance the ability of the criminal justice system to combat crime through an effective, fair sentencing system. To achieve this end, Congress first sought honesty in sentencing. It sought to avoid the confusion and implicit deception that arose out of the pre-guidelines sentencing system which required the court to impose an indeterminate sentence of imprisonment and empowered the parole commission to determine how much of the sentence an offender actually would serve in prison. This practice usually resulted in a substantial reduction in the effective length of the sentence imposed, with defendants often serving only about one-third of the sentence imposed by the court.
Second, Congress sought reasonable uniformity in sentencing by narrowing the wide disparity in sentences imposed for similar criminal offenses committed by similar offenders. Third, Congress sought proportionality in sentencing through a system that imposes appropriately different sentences for criminal conduct of differing severity.
A sentencing system tailored to fit every conceivable wrinkle of each case would quickly become unworkable and seriously compromise the certainty of punishment and its deterrent effect. For example: a bank robber with (or without) a gun, which the robber kept hidden (or brandished), might have frightened (or merely warned), injured seriously (or less seriously), tied up (or simply pushed) a guard, teller, or customer, at night (or at noon), in an effort to obtain money for other crimes (or for other purposes), in the company of a few (or many) other robbers, for the first (or fourth) time.
The list of potentially relevant features of criminal behavior is long; the fact that they can occur in multiple combinations means that the list of possible permutations of factors is virtually endless. The appropriate relationships among these different factors are exceedingly difficult to establish, for they are often context specific. Sentencing courts do not treat the occurrence of a simple bruise identically in all cases, irrespective of whether that bruise occurred in the context of a bank robbery or in the context of a breach of peace. This is so, in part, because the risk that such a harm will occur differs depending on the underlying offense with which it is connected; and also because, in part, the relationship between punishment and multiple harms is not simply additive. The relation varies depending on how much other harm has occurred. Thus, it would not be proper to assign points for each kind of harm and simply add them up, irrespective of context and total amounts.
The larger the number of subcategories of offense and offender characteristics included in the guidelines, the greater the complexity and the less workable the system. Moreover, complex combinations of offense and offender characteristics would apply and interact in unforeseen ways to unforeseen situations, thus failing to cure the unfairness of a simple, broad category system. Finally, and perhaps most importantly, probation officers and courts, in applying a complex system having numerous subcategories, would be required to make a host of decisions regarding whether the underlying facts were sufficient to bring the case within a particular subcategory. The greater the number of decisions required and the greater their complexity, the greater the risk that different courts would apply the guidelines differently to situations that, in fact, are similar, thereby reintroducing the very disparity that the guidelines were designed to reduce.
In view of the arguments, it would have been tempting to retreat to the simple, broad category approach and to grant courts the discretion to select the proper point along a broad sentencing range. Granting such broad discretion, however, would have risked correspondingly broad disparity in sentencing, for different courts may exercise their discretionary powers in different ways. Such an approach would have risked a return to the wide disparity that Congress established the Commission to reduce and would have been contrary to the Commission's mandate set forth in the Sentencing Reform Act of 1984.
In the end, there was no completely satisfying solution to this problem. The Commission had to balance the comparative virtues and vices of broad, simple categorization and detailed, complex subcategorization, and within the constraints established by that balance, minimize the discretionary powers of the sentencing court. Any system will, to a degree, enjoy the benefits and suffer from the drawbacks of each approach.
A philosophical problem arose when the Commission attempted to reconcile the differing perceptions of the purposes of criminal punishment. Most observers of the criminal law agree that the ultimate aim of the law itself, and of punishment in particular, is the control of crime. Beyond this point, however, the consensus seems to break down. Some argue that appropriate punishment should be defined primarily on the basis of the principle of ‘just desserts.’ Under this principle, punishment should be scaled to the offender's culpability and the resulting harms. Others argue that punishment should be imposed primarily on the basis of practical ‘crime control’ considerations. This theory calls for sentences that most effectively lessen the likelihood of future crime, either by deterring others or incapacitating the defendant.
Adherents of each of these points of view urged the Commission to choose between them and accord one primacy over the other. As a practical matter, however, this choice was unnecessary because in most sentencing decisions
In its initial set of guidelines, the Commission sought to solve both the practical and philosophical problems of developing a coherent sentencing system by taking an empirical approach that used as a starting point data estimating pre-guidelines sentencing practice. It analyzed data drawn from 10,000 presentence investigations, the differing elements of various crimes as distinguished in substantive criminal statutes, the United States Parole Commission's guidelines and statistics, and data from other relevant sources in order to determine which distinctions were important in pre-guidelines practice. After consideration, the Commission accepted, modified, or rationalized these distinctions.
This empirical approach helped the Commission resolve its practical problem by defining a list of relevant distinctions that, although of considerable length, was short enough to create a manageable set of guidelines. Existing categories are relatively broad and omit distinctions that some may believe important, yet they include most of the major distinctions that statutes and data suggest made a significant difference in sentencing decisions. Relevant distinctions not reflected in the guidelines probably will occur rarely and sentencing courts may take such unusual cases into account by departing from the guidelines.
The Commission's empirical approach also helped resolve its philosophical dilemma. Those who adhere to a just desserts philosophy may concede that the lack of consensus might make it difficult to say exactly what punishment is deserved for a particular crime. Likewise, those who subscribe to a philosophy of crime control may acknowledge that the lack of sufficient data might make it difficult to determine exactly the punishment that will best prevent that crime. Both groups might therefore recognize the wisdom of looking to those distinctions that judges and legislators have, in fact, made over the course of time. These established distinctions are ones that the community believes, or has found over time, to be important from either a just desserts or crime control perspective.
The Commission did not simply copy estimates of pre-guidelines practice as revealed by the data, even though establishing offense values on this basis would help eliminate disparity because the data represent averages. Rather, it departed from the data at different points for various important reasons. Congressional statutes, for example, suggested or required departure, as in the case of the Anti-Drug Abuse Act of 1986 that imposed increased and mandatory minimum sentences. In addition, the data revealed inconsistencies in treatment, such as punishing economic crime less severely than other apparently equivalent behavior.
Despite these policy-oriented departures from pre-guidelines practice, the guidelines represent an approach that begins with, and builds upon, empirical data. The guidelines will not please those who wish the Commission to adopt a single philosophical theory and then work deductively to establish a simple and perfect set of categorizations and distinctions. The guidelines may prove acceptable, however, to those who seek more modest, incremental improvements in the status quo, who believe the best is often the enemy of the good, and who recognize that these guidelines are, as the Act contemplates, but the first step in an evolutionary process. After spending considerable time and resources exploring alternative approaches, the Commission developed these guidelines as a practical effort toward the achievement of a more honest, uniform, equitable, proportional, and therefore effective sentencing system.
The guideline-drafting process required the Commission to resolve a host of important policy questions typically involving rather evenly balanced sets of competing considerations. As an aid to understanding the guidelines, this introduction briefly discusses several of those issues; commentary in the guidelines explains others.
(a)
One of the most important questions for the Commission to decide was whether to base sentences upon the actual conduct in which the defendant engaged regardless of the charges for which he was indicted or convicted (‘real offense' sentencing), or upon the conduct that constitutes the elements of the offense for which the defendant was charged and of which he was convicted (‘charge offense' sentencing). A bank robber, for example, might have used a gun, frightened bystanders, taken $50,000, injured a teller, refused to stop when ordered, and raced away damaging property during his escape. A pure real offense system would sentence on the basis of all identifiable conduct. A pure charge offense system would overlook some of the harms that did not constitute statutory elements of the offenses of which the defendant was convicted.
The Commission initially sought to develop a pure real offense system. After all, the pre-guidelines sentencing system was, in a sense, this type of system. The sentencing court and the parole commission took account of the conduct in which the defendant actually engaged, as determined in a presentence report, at the sentencing hearing, or before a parole commission hearing officer. The Commission's initial efforts in this direction, carried out in the spring and early summer of 1986, proved unproductive, mostly for practical reasons. To make such a system work, even to formalize and rationalize the status quo, would have required the Commission to decide precisely which harms to take into account, how to add them up, and what kinds of procedures the courts should use to determine the presence or absence of disputed factual elements. The Commission found no practical way to combine and account for the large number of diverse harms arising in different circumstances; nor did it find a practical way to reconcile the need for a fair adjudicatory procedure with the need for a speedy sentencing process given the potential existence of hosts of adjudicated ‘real harm' facts in many typical cases. The effort proposed as a solution to these problems required the use of, for example, quadratic roots and other mathematical operations that the Commission considered too complex to be workable. In the Commission's view, such a system risked return to wide disparity in sentencing practice.
In its initial set of guidelines submitted to Congress in April 1987, the Commission moved closer to a charge offense system. This system, however, does contain a significant number of real offense elements. For one thing, the hundreds of overlapping and duplicative statutory provisions that make up the federal criminal law forced the Commission to write guidelines that are descriptive of generic conduct rather than guidelines that track purely statutory language. For another, the guidelines take account of a number of important, commonly occurring real offense elements such as role in the offense, the presence of a gun, or the amount of money actually taken, through alternative base offense levels, specific offense characteristics, cross references, and adjustments.
The Commission recognized that a charge offense system has drawbacks of its own. One of the most important is the potential it affords prosecutors to
(b)
The sentencing statute permits a court to depart from a guideline-specified sentence only when it finds ‘an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that should result in a sentence different from that described.' 18 U.S.C. 3553(b). The Commission intends the sentencing courts to treat each guideline as carving out a ‘heartland,' a set of typical cases embodying the conduct that each guideline describes. When a court finds an atypical case, one to which a particular guideline linguistically applies but where conduct significantly differs from the norm, the court may consider whether a departure is warranted. Section 5H1.10 (Race, Sex, National Origin, Creed, Religion, and Socio-Economic Status), the third sentence of § 5H1.4 (Physical Condition, Including Drug or Alcohol Dependence or Abuse), and the last sentence of § 5K2.12 (Coercion and Duress) list several factors that the court cannot take into account as grounds for departure. With those specific exceptions, however, the Commission does not intend to limit the kinds of factors, whether or not mentioned anywhere else in the guidelines, that could constitute grounds for departure in an unusual case.
The Commission has adopted this departure policy for two reasons. First, it is difficult to prescribe a single set of guidelines that encompasses the vast range of human conduct potentially relevant to a sentencing decision. The Commission also recognizes that the initial set of guidelines need not do so. The Commission is a permanent body, empowered by law to write and rewrite guidelines, with progressive changes, over many years. By monitoring when courts depart from the guidelines and by analyzing their stated reasons for doing so and court decisions with references thereto, the Commission, over time, will be able to refine the guidelines to specify more precisely when departures should and should not be permitted.
Second, the Commission believes that despite the courts' legal freedom to depart from the guidelines, they will not do so very often. This is because the guidelines, offense by offense, seek to take account of those factors that the Commission's data indicate made a significant difference in pre-guidelines sentencing practice. Thus, for example, where the presence of physical injury made an important difference in pre-guidelines sentencing practice (as in the case of robbery or assault), the guidelines specifically include this factor to enhance the sentence. Where the guidelines do not specify an augmentation or diminution, this is generally because the sentencing data did not permit the Commission to conclude that the factor was empirically important in relation to the particular offense. Of course, an important factor (
It is important to note that the guidelines refer to two different kinds of departure. The first involves instances in which the guidelines provide specific guidance for departure by analogy or by other numerical or non-numerical suggestions. For example, the Commentary to § 2G1.1 (Transportation for the Purpose of Prostitution or Prohibited Sexual Conduct) recommends a downward departure of eight levels where a commercial purpose was not involved. The Commission intends such suggestions as policy guidance for the courts. The Commission expects that most departures will reflect the suggestions and that the courts of appeals may prove more likely to find departures ‘unreasonable' where they fall outside suggested levels.
A second type of departure will remain unguided. It may rest upon grounds referred to in Chapter Five, Part K (Departures) or on grounds not mentioned in the guidelines. While Chapter Five, Part K lists factors that the Commission believes may constitute grounds for departure, the list is not exhaustive. The Commission recognizes that there may be other grounds for departure that are not mentioned; it also believes there may be cases in which a departure outside suggested levels is warranted. In its view, however, such cases will be highly infrequent.
(c)
Nearly ninety percent of all federal criminal cases involve guilty pleas and many of these cases involve some form of plea agreement. Some commentators on early Commission guideline drafts urged the Commission not to attempt any major reforms of the plea agreement process on the grounds that any set of guidelines that threatened to change pre-guidelines practice radically also threatened to make the federal system unmanageable. Others argued that guidelines that failed to control and limit plea agreements would leave untouched a ‘loophole' large enough to undo the good that sentencing guidelines would bring.
The Commission decided not to make major changes in plea agreement practices in the initial guidelines, but rather to provide guidance by issuing general policy statements concerning the acceptance of plea agreements in Chapter Six, Part B (Plea Agreements). The rules set forth in Fed. R. Crim. P. 11(e) govern the acceptance or rejection of such agreements. The Commission will collect data on the courts' plea practices and will analyze this information to determine when and why the courts accept or reject plea agreements and whether plea agreement practices are undermining the intent of the Sentencing Reform Act. In light of this information and analysis, the Commission will seek to further regulate the plea agreement process as appropriate. Importantly, if the policy statements relating to plea agreements are followed, circumvention of the Sentencing Reform Act and the guidelines should not occur.
The Commission expects the guidelines to have a positive, rationalizing impact upon plea agreements for two reasons. First, the guidelines create a clear, definite expectation in respect to the sentence that a court will impose if a trial takes place. In the event a prosecutor and defense attorney explore the possibility of a negotiated plea, they will no longer work in the dark. This fact alone should help to reduce irrationality in respect to actual sentencing outcomes. Second, the guidelines create a norm to which courts will likely refer when they decide
(d)
The statute provides that the guidelines are to reflect the general appropriateness of imposing a sentence other than imprisonment in cases in which the defendant is a first offender who has not been convicted of a crime of violence or an otherwise serious offense * * *.' 28 U.S.C. 994(j). Under pre-guidelines sentencing practice, courts sentenced to probation an inappropriately high percentage of offenders guilty of certain economic crimes, such as theft, tax evasion, antitrust offenses, insider trading, fraud, and embezzlement, that in the Commission's view are ‘serious.’
The Commission's solution to this problem has been to write guidelines that classify as serious many offenses for which probation previously was frequently given and provide for at least a short period of imprisonment in such cases. The Commission concluded that the definite prospect of prison, even though the term may be short, will serve as a significant deterrent, particularly when compared with pre-guidelines practice where probation, not prison, was the norm.
More specifically, the guidelines work as follows in respect to a first offender. For offense levels one through six, the sentencing court may elect to sentence the offender to probation (with or without confinement conditions) or to a prison term. For offense levels seven through ten, the court may substitute probation for a prison term, but the probation must include confinement conditions (community confinement, intermittent confinement, or home detention). For offense levels eleven and twelve, the court must impose at least one-half the minimum confinement sentence in the form of prison confinement, the remainder to be served on supervised release with a condition of community confinement or home detention. The Commission, of course, has not dealt with the single acts of aberrant behavior that still may justify probation at higher offense levels through departures.
(e)
The Commission, like several state sentencing commissions, has found it particularly difficult to develop guidelines for sentencing defendants convicted of multiple violations of law, each of which makes up a separate count in an indictment. The difficulty is that when a defendant engages in conduct that causes several harms, each additional harm, even if it increases the extent to which punishment is warranted, does not necessarily warrant a proportionate increase in punishment. A defendant who assaults others during a fight, for example, may warrant more punishment if he injures ten people than if he injures one, but his conduct does not necessarily warrant ten times the punishment. If it did, many of the simplest offenses, for reasons that are often fortuitous, would lead to sentences of life imprisonment—sentences that neither just deserts nor crime control theories of punishment would justify.
Several individual guidelines provide special instructions for increasing punishment when the conduct that is the subject of that count involves multiple occurrences or has caused several harms. The guidelines also provide general rules for aggravating punishment in light of multiple harms charged separately in separate counts. These rules may produce occasional anomalies, but normally they will permit an appropriate degree of aggravation of punishment for multiple offenses that are the subjects of separate counts.
These rules are set out in Chapter Three, Part D (Multiple Counts). They essentially provide: (1) When the conduct involves fungible items (
(f)
Regulatory statutes, though primarily civil in nature, sometimes contain criminal provisions in respect to particularly harmful activity. Such criminal provisions often describe not only substantive offenses, but also more technical, administratively-related offenses such as failure to keep accurate records or to provide requested information. These statutes pose two problems: first, which criminal regulatory provisions should the Commission initially consider, and second, how should it treat technical or administratively-related criminal violations?
In respect to the first problem, the Commission found that it could not comprehensively treat all regulatory violations in the initial set of guidelines. There are hundreds of such provisions scattered throughout the United States Code. To find all potential violations would involve examination of each individual federal regulation. Because of this practical difficulty, the Commission sought to determine, with the assistance of the Department of Justice and several regulatory agencies, which criminal regulatory offenses were particularly important in light of the need for enforcement of the general regulatory scheme. The Commission addressed these offenses in the initial guidelines.
In respect to the second problem, the Commission has developed a system for treating technical recordkeeping and reporting offenses that divides them into four categories. First, in the simplest of cases, the offender may have failed to fill out a form intentionally, but without knowledge or intent that substantive harm would likely follow. He might fail, for example, to keep an accurate record of toxic substance transport, but that failure may not lead, nor be likely to lead, to the release or improper handling of any toxic substance. Second, the same failure may be accompanied by a significant likelihood that substantive harm will occur; it may make a release of a toxic substance more likely. Third, the same failure may have led to substantive harm. Fourth, the failure may represent an effort to conceal a substantive harm that has occurred.
The structure of a typical guideline for a regulatory offense provides a low base offense level (
(g)
In determining the appropriate sentencing ranges for each offense, the Commission estimated the average sentences served within each category under the pre-guidelines sentencing system. It also examined the sentences specified in federal statutes, in the parole guidelines, and in other relevant, analogous sources. The Commission's Supplementary Report on the Initial Sentencing Guidelines (1987) contains a comparison between estimates of pre-guidelines sentencing practice and sentences under the guidelines.
While the Commission has not considered itself bound by pre-
The Commission has also examined its sentencing ranges in light of their likely impact upon prison population. Specific legislation, such as the Anti-Drug Abuse Act of 1986 and the career offender provisions of the Sentencing Reform Act of 1984 (28 U.S.C. 994(h)), required the Commission to promulgate guidelines that will lead to substantial prison population increases. These increases will occur irrespective of the guidelines. The guidelines themselves, insofar as they reflect policy decisions made by the Commission (rather than legislated mandatory minimum or career offender sentences), are projected to lead to an increase in prison population that computer models, produced by the Commission and the Bureau of Prisons in 1987, estimated at approximately 10 percent over a period of ten years.
(h)
The Commission has established a sentencing table that for technical and practical reasons contains 43 levels. Each level in the table prescribes ranges that overlap with the ranges in the preceding and succeeding levels. By overlapping the ranges, the table should discourage unnecessary litigation. Both prosecution and defense will realize that the difference between one level and another will not necessarily make a difference in the sentence that the court imposes. Thus, little purpose will be served in protracted litigation trying to determine, for example, whether $10,000 or $11,000 was obtained as a result of a fraud. At the same time, the levels work to increase a sentence proportionately. A change of six levels roughly doubles the sentence irrespective of the level at which one starts. The guidelines, in keeping with the statutory requirement that the maximum of any range cannot exceed the minimum by more than the greater of 25 percent or six months (28 U.S.C. 994(b)(2)), permit courts to exercise the greatest permissible range of sentencing discretion. The table overlaps offense levels meaningfully, works proportionately, and at the same time preserves the maximum degree of allowable discretion for the court within each level.
Similarly, many of the individual guidelines refer to tables that correlate amounts of money with offense levels. These tables often have many rather than a few levels. Again, the reason is to minimize the likelihood of unnecessary litigation. If a money table were to make only a few distinctions, each distinction would become more important and litigation over which category an offender fell within would become more likely. Where a table has many small monetary distinctions, it minimizes the likelihood of litigation because the precise amount of money involved is of considerably less importance.
The Commission emphasizes that it drafted the initial guidelines with considerable caution. It examined the many hundreds of criminal statutes in the United States Code. It began with those that were the basis for a significant number of prosecutions and sought to place them in a rational order. It developed additional distinctions relevant to the application of these provisions and it applied sentencing ranges to each resulting category. In doing so, it relied upon pre-guidelines sentencing practice as revealed by its own statistical analyses based on summary reports of some 40,000 convictions, a sample of 10,000 augmented presentence reports, the parole guidelines, and policy judgments.
The Commission recognizes that some will criticize this approach as overly cautious, as representing too little a departure from pre-guidelines sentencing practice. Yet, it will cure wide disparity. The Commission is a permanent body that can amend the guidelines each year. Although the data available to it, like all data, are imperfect, experience with the guidelines will lead to additional information and provide a firm empirical basis for consideration of revisions.
Finally, the guidelines will apply to more than 90 percent of all felony and Class A misdemeanor cases in the federal courts. Because of time constraints and the nonexistence of statistical information, some offenses that occur infrequently are not considered in the guidelines. Their exclusion does not reflect any judgment regarding their seriousness and they will be addressed as the Commission refines the guidelines over time. '.
Amendment 466 amended Subpart 4(b) in the first paragraph by inserting Ԥ 5H1.12 (Lack of Guidance as a Youth and Similar Circumstances)' after Ԥ 5H1.10 (Race, Sex, National Origin, Creed, Religion, and Socio-Economic Status)'.
Amendment 534 amended Subpart 4(d) in the second sentence of the third paragraph by striking ‘six' and inserting ‘eight'; and in the third sentence of the third paragraph by striking “seven through” and inserting “nine and”.
Amendment 538 amended Subpart 4(b) in the fourth paragraph by striking the third sentence as follows:
Ԥ For example, the Commentary to Ԥ 2G1.1 (Transportation for the Purpose of Prostitution or Prohibited Sexual Conduct) recommends a downward departure of eight levels where a commercial purpose was not involved.'.
Amendment 602 amended Subpart 4(b) in the fifth sentence of the first paragraph by striking ‘and' before ‘the last'; and by inserting, and ‘§ 5K2.19 (Post-Sentencing Rehabilitative Efforts)' after ‘(Coercion and Duress)'.
Amendment 603 amended Subpart 4(d) by adding an asterisk at the end of the last paragraph after the period; and by adding at the end the following footnote:
*
The Commentary to 1B1.1 captioned “Application Notes” is amended by striking Note 1 in its entirety and inserting the following:
“1. The following are definitions of terms that are used frequently in the guidelines and are of general applicability (except to the extent expressly modified in respect to a particular guideline or policy statement):
(A) ‘Abducted' means that a victim was forced to accompany an offender to a different location. For example, a bank robber's forcing a bank teller from the bank into a getaway car would constitute an abduction.
(B) ‘Bodily injury' means any significant injury;
(C) ‘Brandished' with reference to a dangerous weapon (including a firearm) means that all or part of the weapon was displayed, or the presence of the weapon was otherwise made known to another person, in order to intimidate that person, regardless of whether the weapon was directly visible to that person. Accordingly, although the dangerous weapon does not have to be directly visible, the weapon must be present.
(D) ‘Dangerous weapon' means (i) an instrument capable of inflicting death or serious bodily injury; or (ii) an object that is not an instrument capable of inflicting death or serious bodily injury but (I) closely resembles such an instrument; or (II) the defendant used the object in a manner that created the impression that the object was such an instrument (
(E) ‘Departure' means (i) for purposes other than those specified in subdivision (ii), imposition of a sentence outside the applicable guideline range or of a sentence that is otherwise different from the guideline sentence; and (iii) for purposes of 4A1.3 (Departures Based on Inadequacy of Criminal History Category), assignment of a criminal history category other than the otherwise applicable criminal history category, in order to effect a sentence outside the applicable guideline range. ‘Depart' means grant a departure.
‘Downward departure' means departure that effects a sentence less than a sentence that could be imposed under the applicable guideline range or a sentence that is otherwise less than the guideline sentence. ‘Depart downward' means grant a downward departure.
‘Upward departure' means departure that effects a sentence greater than a sentence that could be imposed under the applicable guideline range or a sentence that is otherwise greater than the guideline sentence. ‘Depart upward' means grant an upward departure.
(F) ‘Destructive device' means any article described in 26 U.S.C. 5845(f) (including an explosive, incendiary, or poison gas—(i) bomb, (ii) grenade, (iii) rocket having a propellant charge of more than four ounces, (iv) missile having an explosive or incendiary charge of more than one-quarter ounce, (v) mine, or (vi) device similar to any of the devices described in the preceding clauses).
(G) ‘Firearm' means (i) any weapon (including a starter gun) which will or is designed to or may readily be converted to expel a projectile by the action of an explosive; (ii) the frame or receiver of any such weapon; (iii) any firearm muffler or silencer; or (iv) any destructive device. A weapon, commonly known as a ‘BB' or pellet gun, that uses air or carbon dioxide pressure to expel a projectile is a dangerous weapon but not a firearm.
(H) ‘Offense' means the offense of conviction and all relevant conduct under § 1B1.3 (Relevant Conduct) unless a different meaning is specified or is otherwise clear from the context. The term ‘instant' is used in connection with ‘offense,' ‘federal offense,' or ‘offense of conviction,' as the case may be, to distinguish the violation for which the defendant is being sentenced from a prior or subsequent offense, or from an offense before another court (
(I) ‘Otherwise used' with reference to a dangerous weapon (including a firearm) means that the conduct did not amount to the discharge of a firearm but was more than brandishing, displaying, or possessing a firearm or other dangerous weapon.
(J) ‘Permanent or life-threatening bodily injury' means injury involving a substantial risk of death; loss or substantial impairment of the function of a bodily member, organ, or mental faculty that is likely to be permanent; or an obvious disfigurement that is likely to be permanent. In the case of a kidnapping, for example, maltreatment to a life-threatening degree (
(K) ‘Physically restrained' means the forcible restraint of the victim such as by being tied, bound, or locked up.
(L) ‘Serious bodily injury' means injury involving extreme physical pain or the protracted impairment of a function of a bodily member, organ, or mental faculty; or requiring medical intervention such as surgery, hospitalization, or physical rehabilitation. In addition, ‘serious bodily injury' is deemed to have occurred if the offense involved conduct constituting criminal sexual abuse under 18 U.S.C. 2241 or 2242 or any similar offense under state law.”.
Section 2A4.1(a) is amended to read as follows:
“(a)
Section 2A4.1(b)(4) is amended by striking subdivision (C) in its entirety.
Section 2A4.1(b)(5) is amended to read as follows:
“(5) If the victim was sexually exploited, increase by 6 levels.”.
The Commentary to 2A4.1 captioned “Application Notes” is amended by striking Note 3 in its entirety; and by redesignating Notes 4 and 5 and Notes 3 and 4, respectively.
The Commission anticipates that this amendment will substantially reduce the incidence of downward departures by prohibiting several factors as grounds for departure, restricting the availability of certain departures, clarifying when certain departures are appropriate, and limiting the extent of departure permissible for certain offenders. The
The eight-part amendment makes modifications to § 5K2.0 (Grounds for Departure), § 5H1.4 (Physical Condition, Including Drug or Alcohol Dependence or Abuse; Gambling Addiction), § 5H1.6 (Family Ties and Responsibilities), § 5H1.7 (Role in the Offense), 5H1.8 (Criminal History), § 5K2.10 (Victim's Conduct), § 5K2.12 (Coercion and Duress), § 5K2.13 (Diminished Capacity), § 5K2.20 (Aberrant Behavior), § 4A1.3 (Departures Based on Inadequacy of Criminal History Category), and § 6B1.2 (Standards for Acceptance of Plea Agreements). The amendment also creates one new policy statement, § 5K3.1 (Early Disposition Programs), and one new guideline, § 1A1.1 (Authority), among other changes.
Part I of the amendment makes several significant modifications to § 5K2.0 (Grounds for Departure) to limit, and in certain circumstances, to prohibit downward departures. The amendment generally restructures § 5K2.0 to set forth more clearly the standards governing departures in order to facilitate and emphasize the analysis required of the court. The amendment does so by: (1) Integrating throughout the policy statement the statutory language of 18 U.S.C. 3553(b) and 3742(e), as amended by the PROTECT Act, which provide the statutory criteria for sentencing outside the guideline range; (2) adopting, when provided in the policy statement, a uniform qualitative description of the type of case in which a departure may be warranted, the “exceptional case”; (3) restating in the application notes and background commentary to § 5K2.0 longstanding commentary in the Guidelines Manual, which was reaffirmed by the PROTECT Act, that the frequency of departures under § 5K2.0 generally should be rare, and that certain types of departures under § 5K2.0 should be extremely rare; and (4) deleting certain language in the commentary taken from
Accordingly, § 5K2.0(a) sets forth the general governing principle that, in cases other than child crimes and sexual offenses, the sentencing court may depart if the court finds pursuant to 18 U.S.C. 3553(b)(1) that there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission that, in order to advance the objectives set forth in 18 U.S.C. 3553(a)(2), should result in a sentence different from a sentence within the applicable guideline range.
The amendment also prohibits several grounds for departure, in addition to the departure prohibitions in § 5K2.0 for child crimes and sexual offenses enacted by the PROTECT Act, and other prohibitions elsewhere in the Guidelines Manual. The amendment creates a new subsection, § 5K2.0(d), that clearly lists the forbidden departure grounds. These include several longstanding prohibitions, as well as a number of new prohibitions added by the amendment, specifically: (1) The defendant's acceptance of responsibility; (2) the defendant's aggravating or mitigating role in the offense; (3) the defendant's decision, in itself, to plead guilty to the offense or to enter into a plea agreement with respect to the offense; and (4) the defendant's fulfillment of restitution only to the extent required by law, including the guidelines. The Commission determined that these circumstances are never appropriate grounds for departure.
The amendment also revises § 5K2.0 to restrict the availability of departures based on multiple circumstances, often referred to as a “combination of factors.” The Commission determined that heightened criteria are appropriate for cases in which no single offender characteristic or other circumstance independently is sufficient to provide a basis for departure. Under § 5K2.0(c) a departure based on multiple circumstances can be based only on offender characteristics or other circumstances that are identified in the guidelines as permissible grounds for departure. Circumstances unmentioned in the guidelines, therefore, can no longer be used for a departure based on multiple circumstances pursuant to § 5K2.0(c). In addition, in order to support a departure based on a combination of circumstances, each offender characteristic or other circumstance must be present individually to a substantial degree and must make the case exceptional when considered together. Emphasizing the Commission's expectation as to the infrequency of such departures, the accompanying application note retains previously existing guidance and states that departures under § 5K2.0(c) based on a combination of not ordinarily relevant circumstances should occur extremely rarely.
In addition, the amendment clarifies when a departure may be based on a circumstance present to a degree not adequately taken into consideration. Section 5K2.0(a)(3) provides that a departure may be warranted in an exceptional case, even though the circumstance that forms the basis for the departure is taken into consideration, only if the court determines that such circumstance is present to a degree substantially different from that ordinarily involved in that kind of offense.
The amendment also modifies § 5K2.0 in two additional ways to underscore the need for courts to state with specificity their reasons for departure. First, § 5K2.0(e) provides that if the court departs, it shall state, pursuant to 18 U.S.C. 3553(c), as amended by the PROTECT Act, its specific reasons for departure in open court at the time of sentencing and, with limited exception in the case of statements received
Part II of the amendment limits several departure provisions in Chapter Five, Part H (Specific Offender Characteristics). First, the amendment adds a prohibition to § 5H1.4 (Physical Condition, Including Drug or Alcohol Dependence or Abuse; Gambling Addiction) against departures based on addiction to gambling and renames the policy statement accordingly. The Commission determined that addiction to gambling is never a relevant ground for departure.
Second, the amendment limits the availability of departures pursuant to § 5H1.6 (Family Ties and Responsibilities) by requiring the court to conduct certain more rigorous analyses. In determining whether a departure is warranted under this policy
In addition to considering those factors, the amendment further restricts family ties departures by adding an application note that establishes heightened criteria for departures based on loss of caretaking or financial support. In such cases, the court must find all of the following four circumstances: (1) That a sentence within the applicable guideline range will cause a substantial, direct, and specific loss of essential caretaking or essential financial support to the defendant's family; (2) that such loss exceeds the harm ordinarily incident to incarceration; (3) that there are no effective remedial or ameliorative programs reasonably available, making the defendant's caretaking or financial support irreplaceable to the defendant's family; and (4) that the departure effectively will address the loss of caretaking or financial support. The Commission determined that these heightened criteria are appropriate and necessary in order to distinguish hardship or suffering that is ordinarily incident to incarceration from that which is exceptional.
The amendment also eliminates community ties as a separate ground for departure and renames § 5H1.6 accordingly.
Third, the amendment makes conforming modifications to § 5H1.7 (Role in the Offense), reiterating that a defendant's role in the offense is not a basis for departure, and to § 5H1.8 (Criminal History), providing that the only grounds for departure based on the defendant's criminal history are set forth in § 4A1.3 (Departures Based on Inadequacy of Criminal History Category).
Part III of the amendment limits several departure provisions in Chapter Five, Part K (Departures). First, the amendment adds a factor to § 5K2.10 (Victim's Conduct) that the court should consider when determining whether a departure is warranted based on victim's conduct. The amendment provides that, in addition to five previously existing factors, the court should consider the proportionality and reasonableness of the defendant's response to the victim's provocation.
Second, the amendment adds a similar factor to § 5K2.12 (Coercion and Duress). The amendment provides that the extent of a departure based on coercion and duress ordinarily should depend on several considerations, including the proportionality of the defendant's actions to the seriousness of the coercion, blackmail, or duress involved.
Third, the amendment limits the availability of departures pursuant to § 5K2.13 (Diminished Capacity) by adding a causation element. The amendment provides that in order to receive a departure for diminished capacity, the significantly reduced mental capacity must have contributed substantially to the commission of the offense. The amendment similarly limits the extent of departure by stating that the extent of the departure should reflect the extent to which the reduced mental capacity contributed to the commission of the offense.
Fourth, the amendment significantly restructures § 5K2.20 (Aberrant Behavior) and further restricts the availability of departures based on aberrant behavior. The Commission promulgated § 5K2.20 effective November 1, 2000, in order to resolve a longstanding circuit conflict and more properly define when a departure based on aberrant behavior may be warranted.
The amendment provides greater emphasis to these strict requirements by moving them from an application note to the body of the policy statement. The amendment also gives the court greater guidance in applying these requirements with a new application note that clarifies that repetitious or significant, planned behavior does not meet the requirements for receiving a departure under § 5K2.20. A fraud scheme, for example, generally would be prohibited from receiving a departure pursuant to § 5K2.20 because such a scheme usually involves repetitive acts, rather than a single occurrence or single criminal transaction, as well as significant planning.
The amendment also further restricts the availability of departures based on aberrant behavior by adding several strict prohibitions to the list that has existed in § 5K2.20 since its initial promulgation. Prior to this amendment, § 5K2.20 prohibited the court from departing based on aberrant behavior if (1) The offense involved serious bodily injury or death; (2) the defendant discharged a firearm or otherwise used a firearm or a dangerous weapon; (3) the instant offense of conviction is a serious drug trafficking offense; (4) the defendant has more than one criminal history point, as determined under Chapter Four (Criminal History and Criminal Livelihood); or (5) the defendant has a prior federal, or state, felony conviction, regardless of whether the conviction is countable under Chapter Four.
The amendment gives greater prominence to those previously existing prohibitions and expands them in significant ways. The amendment eliminates defendants who have any significant prior criminal behavior from consideration for a departure pursuant to § 5K2.20, regardless of whether such behavior is countable under Chapter Four, and even if such behavior is not a state or federal felony. In addition, the amendment expands the class of drug trafficking defendants prohibited from consideration for a departure pursuant to § 5K2.20 by expanding the definition of “serious drug trafficking offense.” Specifically, the amendment expands the definition of “serious drug trafficking offense” in the accompanying application note to include any controlled substance offense under title 21, United States Code, other than simple possession under 21 U.S.C. 844, that provides a mandatory minimum term of imprisonment of five years or greater, regardless of whether the defendant meets the criteria of § 5C1.2 (Limitation on Applicability of Statutory Mandatory Minimum Sentences in Certain Cases). Prior to this amendment, only drug trafficking defendants who were subject to such mandatory minimum penalties and who did not meet the criteria set forth in § 5C1.2 were precluded categorically from consideration for a departure under § 5K2.20.
Part IV of the amendment substantially restructures § 4A1.3 (Departures Based on Inadequacy of Criminal History Category) to set forth more clearly the standards governing departures based on criminal history, to prohibit and limit the extent of departures based on criminal history for certain offenders with significant criminal history, and to require written specification of the basis for a criminal history departure.
Section 4A1.3(a) provides that an upward departure may be warranted if reliable information indicates that the defendant's criminal history category substantially under-represents the seriousness of the defendant's criminal history or the likelihood that the defendant will commit other crimes.
The amendment, however, adds several prohibitions and limitations to the availability of downward departures based on criminal history. It prohibits a downward departure based on § 4A1.3(b) if the defendant is an armed career criminal within the meaning of § 4B1.3 (Armed Career Criminal) or a repeat and dangerous sex offender against minors within the meaning of § 4B1.5 (Repeat and Dangerous Sex Offender Against Minors). The Commission determined that such offenders should never receive a criminal history-based downward departure.
Section 4A1.3(b) reiterates the longstanding prohibition against a departure below the lower limit of the applicable guideline range for Criminal History Category I.
Section 4A1.3(b) also contains certain limitations on the extent of departure available under this provision. Specifically, a downward departure pursuant to this section for a career offender within the meaning of § 4B1.1 (Career Offender) may not exceed one criminal history category.
In addition, the amendment provides that a defendant whose criminal history category is Category I after receipt of a downward departure under § 4A1.3(b) does not meet the criterion of subsection (a)(1) of § 5C1.2 if, before receipt of the departure, the defendant had more than one criminal history point under § 4A1.1 (Criminal History Category). Thus, a departure to Category I cannot qualify an otherwise ineligible defendant for relief from an applicable mandatory minimum sentence under § 5C1.2, which is consistent with case law.
The amendment adds a new subsection, § 4A1.3(c), that requires the court, in departing based on criminal history, to set forth in writing the specific reasons why the applicable criminal history category under-represents or over-represents the seriousness of the defendant's criminal history or the likelihood that the defendant will commit other crimes. This specificity requirement is consistent with the PROTECT Act and is intended to facilitate both the necessary statutory and guideline departure analysis, as well as to improve the Commission's ability to refine the criminal history guidelines in light of criminal history departure decisions.
The amendment also makes conforming modifications to § 4A1.1 and § 5C1.2.
Part V of the amendment implements the directive at section 401(m)(2)(B) of the PROTECT Act by adding a new policy statement at § 5K3.1 entitled Early Disposition Programs. The provision restates the language contained in the directive and provides that, upon motion of the Government, the court may depart downward not more than 4 levels pursuant to an early disposition program authorized by the Attorney General of the United States and the United States Attorney for the district in which the court resides. The Commission determined that implementing the directive in this manner is appropriate at this time, pending further study and monitoring of the implementation of early disposition programs.
Part VI of the amendment revises subsections (b) and (c) of § 6B1.2 (Standards for Acceptance of Plea Agreements) to require greater specificity in the sentencing documentation in a case involving a departure either recommended or agreed to in a Rule 11(c)(1)(B) or Rule 11(c)(1)(C) plea agreement. Specifically, if the court accepts such a plea agreement, and the recommended or agreed to sentence departs from the applicable guideline range for justifiable reasons, the amendment requires the court to set forth specifically those reasons in writing in the statement of reasons or judgment and commitment order. This specificity requirement is consistent with the PROTECT Act and is intended to facilitate the necessary statutory and guideline departure analysis, as well as to improve the Commission's ability to understand the underlying reasons for departures in cases involving plea agreements.
Part VII of the amendment creates a new guideline, 1A1.1 (Authority), that clearly sets forth the Commission's authority to promulgate guidelines, policy statements, and commentary and implements the Protect Act directive requiring conforming amendments to paragraph 4(b) of Part A of Chapter One. In addition, the amendment moves
Part VII of the amendment amends § 1B1.1 (Application Instructions) to provide uniform definitions of departure, upward departure, and downward departure.
The amendment also makes technical amendments to § 2A4.1 (Kidnapping, Abduction, Unlawful Restraint).
This amendment complements other significant policy initiatives affecting sentencing, including the statutory changes in sentencing law and guideline changes directly made by the PROTECT Act, and recent policies implemented by the Department of Justice. The Commission believes that these general policy changes, working together, will substantially reduce the incidence of downward departures. In addition to the significant modifications made by this amendment, the Commission has identified several aspects of the guidelines affecting departures that it intends to continue studying during the current amendment cycle and beyond, including aberrant behavior, criminal history, immigration, early disposition, or “fast track,” programs, and collateral consequences, among others.
Office of Public and Indian Housing, HUD.
Notice of funding availability (NOFA).
This NOFA announces the availability of $574 million for the HOPE VI Program. Of this amount, approximately $447.8 million in FY 2003 funds are available for the HOPE VI Revitalization Program and $40 million for the HOPE VI Demolition Program. The remaining funds will be made available for other purposes including Neighborhood Networks, technical assistance and Housing Choice Voucher Assistance.
The General Section of the HOPE VI NOFA contains information that applies to both the HOPE VI Revitalization and Demolition Programs. Detailed information on the specific guidance for each of these programs is included in separate sections of this NOFA. Unless otherwise noted, citations refer to the General Section.
(A) Purpose of the Program. In accordance with section 24(a) of the United States Housing Act of 1937 (1937 Act), the purpose of HOPE VI Revitalization grants is to assist public housing agencies (PHAs) to:
(1) Improve the living environment for public housing residents of severely distressed public housing projects through the demolition, rehabilitation, reconfiguration, or replacement of obsolete public housing projects (or portions thereof);
(2) Revitalize sites (including remaining public housing dwelling units) on which such public housing projects are located and contribute to the improvement of the surrounding neighborhood;
(3) Provide housing that will avoid or decrease the concentration of very low-income families; and
(4) Build sustainable communities.
(B) Available Funds. Approximately $447.8 million for HOPE VI Revitalization grants and $40 million for HOPE VI Demolition grants, in accordance with Section II below.
(C) Eligible Applicants. Public Housing Authorities that have severely distressed housing in their inventory and are otherwise in conformance with the threshold requirements provided in Section III of this NOFA. PHAs that only administer Housing Choice Voucher (Section 8, HCV) Programs and Tribal PHAs and Tribally-Designated Housing Entities are not eligible to apply.
(D) Application Deadline. Revitalization grant applications are due on January 19, 2004, as described in Section III(B) of this NOFA. Demolition grant applications are due on February 18, 2004, as described in Section III(B) of this NOFA.
(E) Authority. (1) The funding authority for HOPE VI Revitalization and Demolition grants under this HOPE VI NOFA is provided by the Consolidated Appropriations Resolution, 2003 (Pub. L. 108-7, approved on February 20, 2003) under the heading “Revitalization of Severely Distressed Public Housing (HOPE VI).”
(2) The program authority for the HOPE VI Program is section 24 of the U.S. Housing Act of 1937 (42 U.S.C. 1437v), as amended by section 215 of the Departments of Veterans Affairs and Housing and Urban Development, and Independent Agencies Appropriations Act of 2003 (Pub. L. 108-7, approved February 22, 2003).
(A) Revitalization Grants. Approximately $447.8 million of the FY 2003 HOPE VI appropriation has been allocated to fund HOPE VI Revitalization grants and will be awarded in accordance with this HOPE VI NOFA.
(B) Demolition Grants. Approximately $40 million of the FY 2003 HOPE VI appropriation has been allocated to fund HOPE VI Demolition grants and will be awarded in accordance with this HOPE VI NOFA.
(C) Neighborhood Networks. The FY 2003 appropriation for HOPE VI allocated $5 million for a Neighborhood Networks initiative for activities authorized in section 24(d)(1)(G) of the Act, which provides for the establishment and operation of computer centers in public housing for the purpose of enhancing the self-sufficiency, employability, and economic self-reliance of public housing residents by providing them with onsite computer access and training resources. The availability of these funds will be announced in a separate NOFA and, in accordance with the appropriation, they will be awarded to PHAs on a competitive basis. PHAs that receive HOPE VI Revitalization grant funds under this NOFA are required to establish Neighborhood Networks and may use funds awarded under this NOFA for this purpose.
(D) Technical Assistance. The FY 2003 appropriation for HOPE VI allocated $6.25 million to provide technical assistance and contract expertise in the HOPE VI program, to be provided directly or indirectly by grants, contracts, or cooperative agreements, including training and cost of necessary travel for participants in such training, by or to officials and employees of HUD and of PHAs, and to residents. The Office of Public Housing Investments will administer technical assistance funds.
(E) Housing Choice Voucher Assistance. The cost of Housing Choice Voucher (HCV) assistance that will be provided to FY 2003 HOPE VI Revitalization and Demolition grantees will come from the FY 2003 HOPE VI appropriation. Approximately $75 million will be allocated for such assistance. If this amount is more than the amount necessary, the remaining
(1) If you anticipate that you will need HCV assistance in order to carry out necessary relocation in conjunction with proposed revitalization during FY 2004, your application must include the number of vouchers you will need, both in total and in FY 2004, and a HCV application.
(2) If you will need HCV assistance in fiscal years beyond FY 2004 for revitalization or demolition that is being carried out in phases, or if you have unused Housing Choice Vouchers that are available to be used for HOPE VI-related relocation in FY 2003 but will need more for subsequent years, you must request additional vouchers only as needed during the appropriate fiscal years.
(3) HCV assistance cannot be awarded or used to relocate residents from units that are to be demolished until HUD has approved those units for demolition.
(4) If you have previously received HCV assistance to relocate residents from the targeted severely distressed units, you may still apply for a HOPE VI Revitalization grant to physically replace those same units, or a HOPE VI Demolition Grant to demolish the units without replacement.
(5) You may request HCV assistance for the relocation of families who intend to move back to the site upon completion of the demolition and revitalization of the severely distressed project. Such families are not required to move back to the site if they prefer to keep the HCV assistance after revitalization activities are completed.
(6) You may request HCV assistance for all units covered under a HOPE VI Revitalization or Demolition application to relocate residents from units that will not be replaced with hard units.
(7) Housing Choice Vouchers are available as replacement units for all units that will be demolished, sold, or otherwise disposed of at the severely distressed project(s), minus the number of HOPE VI-eligible replacement units otherwise to be provided under section 24(d)(1)(J) in connection with said project.
(8) In accordance with Section III(D)(8) of the Revitalization Section of this NOFA, to the extent that you need Housing Choice Vouchers for relocation purposes in connection with HOPE VI grant funds under this NOFA, in an amount that exceeds the number of units to be demolished, sold, or otherwise disposed of at the severely distressed project, you should apply for Housing Choice Vouchers in accordance with the separate funding notices to be issued by HUD.
(9) You must have a 97 percent lease-up rate or budget authority utilization rate for your current voucher program in order not to have your requested number of relocation/replacement vouchers reduced by HUD.
(F) HUD will not use any funds from this HOPE VI NOFA to fund any non-selected HOPE VI Revitalization or Demolition applications submitted in previous years. Only applications submitted under this FY 2003 HOPE VI NOFA will be considered for funding.
(1) The HOPE VI Revitalization application and the HOPE VI Demolition application are appended to this NOFA. Each provides explicit, specific instructions as to the format and contents of your HOPE VI application. Your application must conform to the requirements of this NOFA and follow the format described in the application. The applications are designed to guide you through the application process and ensure that your application addresses all of the requirements of this NOFA. Please note that if there is a discrepancy between information provided in the application and the information provided in the NOFA, the information in the NOFA prevails.
(2) The HOPE VI Revitalization application and the HOPE VI Demolition application will be available from the HOPE VI Web site at
(3) Signatures. Unless otherwise indicated, the Executive Director of the applicant PHA, or his or her designate, must sign each form or certification, whether part of an Attachment or a Standard Certification. Signatures need not be original in the copy version(s) of the applications.
(1) Revitalization Applications. Revitalization grant applications are due at HUD Headquarters on January 19, 2004.
(2) Demolition Applications. Demolition grant applications will only be accepted from January 5, 2004, through February 18, 2004. Applications received before January 5, 2004, will be returned to the applicant and will not be considered unless resubmitted on or after January 5, 2004, through February 18, 2004. Applications submitted outside of this timeframe will not be reviewed by HUD and will not be eligible for funding.
(3) These application deadlines are firm. Your application(s) must arrive at HUD by 5:15 p.m. on the due date. If you mail or give your application to an overnight carrier on the due date and it does not arrive by 5:15 p.m. on the due date, your application will not be considered. Submit your application early to avoid missing the deadline and being disqualified by unanticipated delays or other related problems.
(1) Revitalization Applications. Send the original and one copy of your completed application to Mr. Milan Ozdinec, Deputy Assistant Secretary for Public Housing Investments, Department of Housing and Urban Development, 451 Seventh Street, SW., Room 4130, Washington, DC 20410-5000. Please make sure that you note the room number. The correct room number is very important to ensure that your application is not misdirected.
(2) Demolition Applications. Send the original of your completed application to Mr. Milan Ozdinec, Deputy Assistant Secretary for Public Housing Investments, Department of Housing and Urban Development, 451 Seventh Street, SW., Room 4130, Washington, DC 20410-5000. Please make sure that you note the room number.
(3) Applications Sent by Overnight Delivery. It is strongly recommended that you send your application by an overnight carrier, at least two days before the application due date. You may use only DHL, Falcon Carrier, FedEx, United Parcel Service (UPS), or the U.S. Postal Service (USPS), as they are the only carriers accepted into the HUD building without an escort. Delivery by these services must be made during HUD's Headquarters business hours, between 8:45 a.m. and 5:15 p.m., eastern time, Monday to Friday. If these companies do not serve your area, you must submit your application via USPS.
(4) Hand Carried Applications. Due to new security measures, HUD will no longer accept hand-carried applications.
(5) You must send one copy of your application (Revitalization and/or Demolition) to your HUD Field Office. The application sent to Headquarters will be the one that must meet the deadline. If the HUD Field Office receives an application on time, but the application is not received on time at Headquarters, it will not be considered.
(6) HUD will not accept for review and evaluation any applications sent by facsimile (fax). Also, do not submit resumes or videos.
(1) Before the application due date, HUD staff will be available to provide you with general guidance and technical assistance. HUD staff, however, is not permitted to assist in preparing your application. If you have a question or need a clarification, you may call, fax, or write Mr. Milan Ozdinec, Deputy Assistant Secretary for Public Housing Investments, Department of Housing and Urban Development, 451 Seventh Street, SW., Room 4130, Washington, DC 20410-5000; telephone (202) 401-8812; fax (202) 401-2370 (these are not toll free numbers). Persons with hearing- or speech-impairments may access this telephone number via text telephone (TTY) by calling the toll-free Federal Information Relay Service at (800) 877-8339.
(2) Frequently asked questions, clarifications, any technical corrections to the NOFA, and all materials related to this NOFA will be posted to the HUD home page at
(A)
(a) That:
(i) Requires major redesign, reconstruction or redevelopment, or partial or total demolition, to correct serious deficiencies in the original design (including inappropriately high population density), deferred maintenance, physical deterioration or obsolescence of major systems, and other deficiencies in the physical plant of the project;
(ii) Is a significant contributing factor to the physical decline of, and disinvestment by public and private entities in, the surrounding neighborhood;
(iii) (A) Is occupied predominantly by families who are very low-income families with children, are unemployed, and dependent on various forms of public assistance; or (B) has high rates of vandalism and criminal activity (including drug-related criminal activity) in comparison to other housing in the area;
(iv) Cannot be revitalized through assistance under other programs, such as the Capital and Operating Funds Programs for public housing under the Act, or the programs under sections 9 and 14 of the 1937 Act (as in effect before the effective date under section 503(a) of the Quality Housing and Work Responsibility Act of 1998 (Pub. L. 105-276, approved October 21, 1998, referred to as the Public Housing Reform Act)), because of cost constraints and inadequacy of available amounts; and
(v) In the case of individual buildings, is in the Secretary's determination sufficiently separable from the remainder of the project of which the building is part to make use of the building feasible for purposes of section 24 of the 1937 Act; or
(b) That was a project described in Section IV(A)(1)(a) that has been legally vacated or demolished, but for which HUD has not yet provided replacement housing assistance (other than tenant-based assistance).
(A)
(2) As of the HOPE VI application due date, if you:
(a) Have been charged with a systemic violation of the Fair Housing Act alleging ongoing discrimination;
(b) Are a defendant in a Fair Housing Act lawsuit filed by the Department of Justice alleging an on-going pattern or practice of discrimination; or
(c) Have received a letter of non-compliance findings, identifying on-going or systemic noncompliance, under Title VI of the Civil Rights Act, section 504 of the Rehabilitation Act, or section 109 of the Housing and Community Development Act; and if the charge, lawsuit, or letter of findings has not been resolved to HUD's satisfaction before the application deadline stated in the NOFA, you may not apply for assistance under this NOFA. HUD will not rate and rank your application.
(3) HUD's decision regarding whether a charge, lawsuit, or a letter of findings has been satisfactorily resolved will be based upon whether appropriate actions have been taken to address allegations of on-going discrimination in the policies or practices involved in the charge, lawsuit, or letter of findings. Examples of actions that may be taken prior to the application deadline to resolve the charge, lawsuit, or letter of findings, include but are not limited to:
(a) A voluntary compliance agreement signed by all parties in response to the letter of findings;
(b) A HUD-approved conciliation agreement signed by all parties;
(c) A consent order or consent decree; or
(d) A judicial ruling or a HUD Administrative Law Judge's decision that exonerates the respondent of any allegations of discrimination.
(B)
(C)
(1) Title IX of the Education Amendments Act of 1972.
(2) The Americans with Disabilities Act of 1990 (42 U.S.C. 12101
(D)
(1) Placing disadvantaged firms on solicitation lists;
(2) Assuring that disadvantaged firms are solicited whenever they are potential sources;
(3) Dividing total requirements, when economically feasible, into smaller tasks or quantities to permit maximum participation by disadvantaged firms;
(4) Establishing delivery schedules, where the requirement permits, which encourage participation by disadvantaged firms;
(5) Using the services and assistance of the Small Business Administration and the Minority Business Development Agency of the Department of Commerce; and
(6) Requiring the prime contractor, if subcontracts are to be let, to take the affirmative steps listed in Sections (1) through (5) above.
(E) HOPE VI grantees must comply with section 3 of the Housing and Urban Development Act of 1968 (12 U.S.C. 1701u) (Economic Opportunities for Low- and Very Low-Income Persons in Connection with Assisted Projects) and its implementing regulations at 24 CFR part 135. Information about section 3 can be found at HUD's section 3 Web site at
(1)
(2)
(a)
(b)
(i) An assurance that there has been public disclosure of the conflict;
(ii) A description of how the public disclosure was made; and
(iii) An opinion of the Grantee's attorney that the interest for which the exception is sought does not violate state or local laws.
(c)
(i) Whether the exception would provide a significant cost benefit or an essential degree of expertise to the Revitalization Plan and/or Demolition Activities that would otherwise not be available;
(ii) Whether an opportunity was provided for open competitive bidding or negotiation;
(iii) Whether the person affected is a member of a group or class intended to be the beneficiaries of the Revitalization Plan and/or Demolition Plan and the exception will permit such person to receive generally the same interests or benefits as are being made available or provided to the group or class;
(iv) Whether the affected person has withdrawn from his or her functions or responsibilities, or the decision making process, with respect to the specific activity in question;
(v) Whether the interest or benefit was present before the affected person was in a position as described in Section (iii) above;
(vi) Whether undue hardship will result either to the Grantee or the person affected when weighed against the public interest served by avoiding the prohibited conflict; and
(vii) Any other relevant considerations.
(B)
(C)
(1) Administrative requirements applicable to PHAs are:
(a) 24 CFR part 85 (Administrative Requirements for Grants and Cooperative Agreements to State, Local, and Federally Recognized Indian Tribal Governments), as modified by 24 CFR 941 or successor part, subpart F, relating to the procurement of partners in mixed finance developments.
(b) OMB Circular A-87 (Cost Principles for State, Local, and Indian Tribal Governments);
(c) 24 CFR 85.26 (audit requirements).
(2) Administrative requirements applicable to non-profit organizations are:
(a) 24 CFR part 84 (Grants and Agreements with Institutions of Higher Education, Hospitals, and other Non-Profit Organizations);
(b) OMB Circular A-122 (Cost Principles for Non-Profit Organizations);
(c) 24 CFR 84.26 (audit requirements).
(3) Administrative requirements applicable to for profit organizations are:
(a) 24 CFR part 84 (Grants and Agreements with Institutions of Higher Education, Hospitals, and other Non-Profit Organizations);
(b) 48 CFR part 31 (contract cost principles and procedures);
(c) 24 CFR 84.26 (audit requirements).
(D)
(1) Labor Standards.
(a) Davis-Bacon wage rates apply to development of any public housing rental units or homeownership units developed with HOPE VI grant funds and to demolition followed by construction on the site. Davis-Bacon rates are “prevailing” minimum wage rates set by the Secretary of Labor that all laborers and mechanics employed in the development, including rehabilitation other than nonroutine maintenance of a public housing project must be paid, as set forth in a wage determination that must be obtained by the PHA prior to bidding on each construction contract. The wage determination and provisions requiring payment of these wage rates must be included in the construction contract.
(b) HUD-determined wage rates apply to:
(i) Operation (including nonroutine maintenance) of revitalized housing, and
(ii) Demolition followed only by filling in the site and establishing a lawn.
(2) Exclusions. Under section 12(b) of the 1937 Act, wage rate requirements do not apply to individuals who:
(a) Perform services for which they volunteered;
(b) Do not receive compensation for those services or are paid expenses, reasonable benefits, or a nominal fee for the services; and
(c) Are not otherwise employed in the work involved (24 CFR part 70).
(3) If other Federal programs are used in connection with your HOPE VI activities, labor standards requirements apply to the extent required by the other Federal programs on portions of the project that are not subject to Davis-Bacon rates under the 1937 Act.
(E)
(F)
(A)
(B) If you are selected for funding and an environmental review has not been conducted on the targeted site, the responsible entity, as defined in 24 CFR 58.2(a)(7), must assume the environmental review responsibilities for projects being funded by HOPE VI. If you object to the responsible entity conducting the environmental review, on the basis of performance, timing, or compatibility of objectives, HUD will review the facts and determine who will perform the environmental review. At any time, HUD may reject the use of a responsible entity to conduct the environmental review in a particular case on the basis of performance, timing, or compatibility of objectives, or in accordance with 24 CFR 58.77(d)(1). If a responsible entity objects to performing an environmental review, or if HUD determines that the responsible entity should not perform the environmental review, HUD may designate another responsible entity to conduct the review or may itself conduct the environmental review in accordance with the provisions of 24 CFR part 50. You must provide any documentation to the responsible entity (or HUD, where applicable) that is needed to perform the environmental review.
(C) If you are selected for funding, you must have a Phase I environmental site assessment completed in accordance with the American Society for Testing and Material (ASTM) Standards E 1527-900, as amended, for each affected site. A Phase I assessment is required whether the environmental review is completed under 24 CFR part 50 or 24 CFR part 58. The results of the Phase I assessment must be included in the documents that must be provided to the responsible entity (or HUD) for the environmental review. If the Phase I assessment recognizes environmental concerns or if the results are inconclusive, a Phase II environmental site assessment will be required.
(D) You may not undertake any actions with respect to the project that are choice-limiting or could have environmentally adverse effects, including demolishing, acquiring, rehabilitating, converting, leasing, repairing, or constructing property proposed to be assisted under this NOFA, and you may not commit or expend HUD or local funds for these activities, until HUD has approved a Request for Release of Funds following a responsible entity's environmental review under 24 CFR part 58, or until HUD has completed an environmental review and given approval for the action under 24 CFR part 50. In addition, you must carry out any mitigating/remedial measures required by the Responsible Entity (or HUD). If a remediation plan, where required, is not approved by HUD and a fully-funded contract with a qualified contractor licensed to perform the required type of remediation is not executed, HUD reserves the right to determine that the grant is in default.
(E) The costs of environmental reviews and hazard remediation are eligible costs under the HOPE VI Program.
(F) HUD's Environmental Web site is located at
(A) The Catalog of Federal Domestic Assistance (CFDA) Number for HOPE VI is 14.866. The CFDA is a government-wide compendium of Federal programs, projects, services, and activities that provide assistance or benefits to the public.
(B) Environmental Impact. A Finding of No Significant Impact with respect to the environment has been made in accordance with HUD regulations at 24 CFR part 50 that implement section 102(2)(C) of the National Environmental Policy Act of 1969 (42 U.S.C. 4332). The Finding of No Significant Impact is available for public inspection during regular business hours in the Office of the General Counsel, Regulations Division, Room 10276, Department of Housing and Urban Development, 451 Seventh Street, SW., Washington, DC 20410-0500.
(C) Federalism. Executive Order 13132 prohibits, to the extent practicable and permitted by law, an agency from promulgating policies that have federalism implications and either impose substantial direct compliance costs on State and local governments and are not required by statute, or preempt State law, unless the relevant requirements of section 6 of the Executive Order are met. This NOFA does not have federalism implications and does not impose substantial direct compliance costs on State and local governments or preempt State law within the meaning of the Executive Order.
(D) Intergovernmental Review of Federal Programs. Executive Order 12372 was issued to foster intergovernmental partnership and strengthen federalism by relying on State and local processes for the coordination and review of Federal financial assistance and direct Federal development. The Order allows each State to designate an entity to perform a State review function. The official listing of State Points of Contact (SPOC) for this review process can be found at:
(E) Prohibition Against Lobbying Activities. You are subject to the provisions of section 319 of the Department of Interior and Related Agencies Appropriation Act for Fiscal Year 1991, 31 U.S.C. 1352 (the Byrd Amendment), which prohibits recipients of Federal contracts, grants, or loans from using appropriated funds for lobbying the executive or legislative branches of the Federal Government in connection with a specific contract, grant, or loan. You are required to certify, using the certification found at Appendix A to 24 CFR part 87, that you will not, and have not, used appropriated funds for any prohibited lobbying activities. In addition, you must disclose, using Standard Form LLL, “Disclosure of Lobbying Activities” (SF LLL) any funds, other than federally appropriated funds, that will be or have been used to influence Federal employees, members of Congress, and congressional staff regarding specific grants or contracts. SF LLL is included in the HOPE VI Revitalization application and the Web sites listed in Section (III)(D)(2) of this NOFA. The Lobbying Disclosure Act of 1995 (Pub. L. 104-65), approved December 19, 1995, repealed section 112 of the HUD Reform Act, and requires all persons and entities who lobby covered executive or legislative branch officials to register with the Secretary of the Senate and the Clerk of the House of Representatives and file reports concerning their lobbying activities.
(F) Documentation and Public Access Requirements. Section 102 of the Department of Housing and Urban Development Reform Act of 1989 (42 U.S.C. 3545) (HUD Reform Act) and the regulations codified in 24 CFR part 4, subpart A, contain a number of provisions that are designed to ensure greater accountability and integrity in the provision of certain types of assistance administered by HUD. On January 14, 1992, HUD published a notice that also provides information on the implementation of section 102 (57 FR 1942). The documentation, public access, and disclosure requirements of section 102 apply to assistance awarded under this NOFA as follows:
(1) Documentation and public access requirements. HUD will ensure that documentation and other information regarding each application submitted pursuant to this NOFA are sufficient to indicate the basis upon which assistance was provided or denied. This material, including any letters of support, will be made available for public inspection for a 5-year period beginning not less than 30 days after the award of the assistance. Material will be made available in accordance with the Freedom of Information Act (5 U.S.C. 552) and HUD's implementing regulations in 24 CFR part 15.
(2) Disclosures. HUD will make available for public inspection all HOPE VI grant applications for five years beginning not less than 30 days following the grant award. Applications will be made available in accordance with the Freedom of Information Act (5 U.S.C. 552) and HUD's implementing regulations at 24 CFR part 5.
(3) Publication of Recipients of HUD Funding. HUD's regulations at 24 CFR 4.7 provide that HUD will publish a notice in the
(i) Assistance subject to section 102(a) of the HUD Reform Act, and/or
(ii) Assistance that is provided through grants or cooperative agreements on a discretionary (non-formula, non-demand) basis, but that is not provided on the basis of a competition.
(G) Section 103 of the HUD Reform Act. HUD's regulations implementing section 103 of the Department of Housing and Urban Development Reform Act of 1989 (42 U.S.C. 3537a), codified in 24 CFR part 4, subpart B, apply to this funding competition. The regulations continue to apply until the announcement of the selection of successful applicants. HUD employees involved in the review of applications and in the making of funding decisions are limited by the regulations from providing advance information to any person (other than an authorized employee of HUD) concerning funding decisions, or from otherwise giving any applicant an unfair competitive advantage. Persons who apply for assistance in this competition should confine their inquiries to the subject areas permitted under 24 CFR part 4. Applicants or HUD employees who have ethics related questions should contact the HUD Ethics Law Division at (202) 708-3815. (This is not a toll-free number.) HUD employees who have specific program questions should contact the appropriate field office counsel, or Headquarters counsel for the program to which the question pertains.
(H) Paperwork Reduction Act Statement. The information collection requirements contained in this NOFA have been approved by the Office of Management and Budget in accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520), and assigned OMB control number 2577-0208. An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection displays a valid control number.
(I) Delinquent Federal Debt. Consistent with the purpose and intent of 31 U.S.C. 3720B and 28 U.S.C. 3201(e), no award of Federal funds shall be made to an applicant who has an outstanding Federal debt until: (a) The delinquent account is paid in full; (b) a negotiated repayment schedule is established and at least one payment is received; or (c) other arrangements satisfactory to the Department of Housing and Urban Development are made prior to the deadline submission date.
(J) Pre-Award Accounting System Survey. HUD may arrange for a pre-award accounting system survey of the applicant's financial management system in cases where the recommended applicant has no prior Federal support, the applicant is considered a high risk based upon past performance or financial management findings. HUD will not make an award to any applicant who does not have a financial management system that meets Federal standards.
(K) False Statements. A false statement in an application is grounds for denial or termination of an award and possible punishment as provided in 18 U.S.C. 1001.
(L) Name Check Review Process. Applicants are subject to a name check review process. Name checks are intended to reveal matters that significantly reflect on the applicant's management and financial integrity, or if key individuals have been convicted or are presently facing criminal charges. If the name check reveals significant adverse findings that reflect on the business integrity or responsibility of the recipient and/or key individuals, HUD reserves the right to: (a) Deny funding or consider suspension/termination of an award immediately for cause; (b) require the removal of any key individual from association with management of and/or implementation of the award; and (c) make appropriate provisions or revisions with respect to the method of payment and/or financial reporting requirements.
(M) Executive Order 13202, Preservation of Open Competition and
(N) Procurement of Recovered Materials. State agencies and agencies of a political subdivision of a state, including PHAs, that are using assistance under this NOFA for procurement, and any person contracting with such agency with respect to work performed under an assisted contract, must comply with the requirements of section 6002 of the Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act. In accordance with section 6002, these agencies and persons must procure items designated in guidelines of the Environmental Protection Agency at 40 CFR part 247 that contain the highest percentage of recovered materials practicable, consistent with maintaining a satisfactory level of competition, where the purchase price of the item exceeds $10,000 or the quantity acquired in the preceding fiscal year exceeded $10,000; must procure solid waste management services in a manner that maximizes energy and resource recovery; and must have established an affirmative procurement program for procurement of recovered materials identified in the EPA guidelines.
(O) 31 U.S.C. 1552. In accordance with this statute, all FY 2003 HOPE VI funds must be expended by September 30, 2009. Any funds that are not expended by that date will be cancelled and recaptured by the Treasury, and thereafter will not be available for obligation or expenditure for any purpose.
The Revitalization Grants Section of the HOPE VI NOFA contains information that applies to the HOPE VI Revitalization Program. Unless otherwise noted, citations refer to the HOPE VI Revitalization Grants Section.
HOPE VI Revitalization grants may be used for activities to carry out revitalization programs for severely distressed public housing in accordance with section 24(d) of the U.S. Housing Act of 1937 Act (1937 Act). Revitalization activities approved by HUD must be conducted in accordance with the requirements of this NOFA.
(A) Relocation, including reasonable moving expenses, for residents displaced as a result of the revitalization of the project. See section IX of this NOFA for relocation requirements.
(B) Demolition of dwelling units and nondwelling facilities, in whole or in part.
(1) Demolition is not a required element of a HOPE VI Revitalization Plan.
(2) You may not carry out, nor permit others to carry out, the demolition of the Project or any portion of the Project until HUD approves, in writing, one of the following:
(a) Information in your HOPE VI Revitalization Application, along with Supplemental Submissions requested by HUD after the award of the grant and a Request for Release of Funds submitted in accordance with 24 CFR part 58. Section 24(g) of the 1937 Act provides that severely distressed public housing demolished pursuant to a Revitalization Plan is not required to be approved by a demolition application under section 18 of the 1937 Act or regulations at 24 CFR part 970. If you do not receive a HOPE VI Revitalization grant, the information in your application will not be used to process a request for demolition;
(b) A demolition application under section 18 of the 1937 Act. While a section 18 approval is not required by HOPE VI demolition, you will not have to wait for demolition approval through your Supplemental Submissions, as described in section (a) above; or
(c) A Section 202 Mandatory Conversion Plan, in compliance with regulations at 24 CFR part 971 and other applicable HUD requirements, if the project is subject to Mandatory Conversion (Section 202 of the Omnibus Consolidated Rescissions and Appropriations Act of 1996 Pub. L. 104-134, approved on April 26, 1996). A Mandatory Conversion Plan concerns the removal of a public housing project from a PHA's inventory.
(C) Disposition of a severely distressed public housing site, by sale or lease, in whole or in part, in accordance with section 18 of the 1937 Act and implementing regulations at 24 CFR part 970. A lease of one year or more that is not incident to the normal operation of a Project is considered to be a disposition that is subject to section 18 of the 1937 Act.
(D) Rehabilitation and physical improvement of public housing and/or community facilities primarily intended to facilitate the delivery of community and supportive services for residents of the Project and residents of off-site replacement housing, in accordance with 24 CFR 968.112(b), (d), (e), and (g)-(o) and 24 CFR 968.130 and 968.135(b) and (d) or successor regulations, as applicable.
(E) Development.
(1) For any standard (non-mixed finance) public housing development activity, (whether on-site reconstruction or off-site development), you must obtain HUD approval of a standard development proposal submitted under 24 CFR part 941 (or successor part).
(2) For mixed-finance housing development, you must obtain HUD approval of a Mixed Finance Proposal, submitted under 24 CFR part 941, subpart F (or successor part and subpart).
(3) For new construction of community facilities primarily intended to facilitate the delivery of community and supportive services for residents of the Project and residents of off-site replacement housing, you must comply with 24 CFR part 941 (or successor part). Information required for this activity must be included in either a Standard or Mixed Finance Development Proposal, as applicable.
(F) Homeownership Activities.
(1) For homeownership replacement units developed under a Revitalization Plan, you must obtain HUD approval of a homeownership proposal. The homeownership proposal must be consistent with the 80 percent of Area Median Income (AMI) limitations and any other applicable provisions under the 1937 Act. (HUD publishes AMI tables for each family size in each locality annually. The income limit tables can be found at
(a) Section 24(d)(1)(J) of the 1937 Act; or
(b) Section 32 of the 1937 Act (see 24 CFR 906). Additional information on this option may be found at:
(2) Assistance may include:
(a) Downpayment or closing cost assistance;
(b) Provision of second mortgages; and/or
(c) Construction or permanent financing for new construction, acquisition, or rehabilitation costs
(G) Acquisition.
(1) Rental Units. For acquisition of rental units in existing or new apartment buildings, single family subdivisions, etc., with or without rehabilitation, for use as public housing replacement units, you must submit a Development Proposal in accordance with CFR part 941.304 (conventional development) or 24 CFR 941.606 (mixed finance development).
(2) Land for Off-Site Replacement Units. For acquisition of land for public housing or homeownership development, you must comply with 24 CFR part 941 or successor part.
(3) Land for Economic Development-Related Activities.
(a) You may use HOPE VI grant funds to acquire land for economic development-related activities if those activities specifically promote the economic self-sufficiency of residents.
(b) With HUD approval, you may also use HOPE VI grant funds for limited infrastructure and site improvements associated with developing retail, commercial, or office facilities, such as rough grading and bringing utilities to (but not on) the site.
(c) You may not use HOPE VI grant funds to pay hard construction costs or to buy equipment for retail, commercial, or non-public housing office facilities.
(4) Acquisition Proposal. Before you may undertake acquisition activities with HOPE VI or other public housing funds, you must submit an acquisition proposal to HUD that meets the requirements of 24 CFR 941.303.
(H) Necessary management improvements, including transitional security activities.
(I) Reasonable costs for administration, planning, technical assistance, and fees and costs, as established by HUD guidance and policies regarding cost controls. These costs are limited to the costs of implementing the Revitalization Plan, as specifically approved by HUD, such as fees for architectural and engineering work, program management (if any), and reasonable legal fees. See Section III(C)(3) for soft development costs guidelines.
(J) Community and Supportive Services (CSS). The CSS Component of the HOPE VI Program encompasses all activities that are designed to promote upward mobility, self-sufficiency, and improved quality of life for the residents of the public housing project involved. The CSS Component is described in Section VIII of this NOFA.
(K) Leveraging other resources, including additional housing resources, supportive services, job creation, and other economic development uses on or near the project that will benefit future residents of the site.
(A) The following are summary descriptions of threshold requirements that must be met in order for a HOPE VI Revitalization application to be considered for funding. These threshold requirements are described in more detail at the citations identified below. If the application fails to meet any one of these thresholds, HUD will not rate or rank the application, in accordance with Section XIV(B)(5) of this NOFA.
(B) Unless specifically stated that an item is curable, the threshold items in this Section II(B) are not subject to Section XIV(B)(3) of this NOFA regarding the correction of deficiencies.
(1) The applicant must qualify as an eligible applicant, as defined in Section IV(A)(1) of this NOFA.
(2) HUD must receive the application by the deadline date and time, in accordance with Section III(B) of the General Section of this NOFA.
(3) Standard certifications must be submitted in accordance with Section XIII(A)(4) of this NOFA. Deficiencies for this item are curable, in accordance with Section XIV(B)(3) of this NOFA.
(4) The application must include a certification by a third party professional that the proposed costs meet the requirements of Section III(C) of this NOFA. Deficiencies for this item are curable, in accordance with Section XIV(B)(3) of this NOFA.
(5) In accordance with Section III(D)(1) of this NOFA, each applicant may submit only one HOPE VI Revitalization application.
(6) If an application proposes to revitalize more than one severely distressed public housing project, those projects must meet the requirements of Section III(D)(3) of this NOFA.
(7) If an application proposes to revitalize a severely distressed scattered site project, the project must meet the requirements of Section III(D)(4) of this NOFA.
(8) An application may not request HOPE VI Revitalization grant funds to revitalize units that were funded by an existing HOPE VI Revitalization grant, in accordance with Section III(D)(6) of this NOFA.
(9) If an application proposes to use HOPE VI Revitalization funds to develop market rate units or affordable units which do not qualify as replacement units in accordance with Section III(D)(7) of this NOFA, the entire application will be disqualified.
(10) If applicable, the application must meet the requirements of separability, as described in Section III(D)(11) of this NOFA.
(11) If an applicant has been designated as troubled, it must meet the requirements of Section IV(A)(1) of this NOFA.
(12) An applicant must have obligated at least 90 percent of its FY 1999-2001 Capital Funds in accordance with Section IV(A)(2) of this NOFA.
(13) An applicant which has one or more existing HOPE VI Revitalization grants will be disqualified if it has an open Inspector General (IG) or General Accounting Office (GAO) audit finding related to the HOPE VI or Capital Fund Programs as of the application due date, in accordance with Section IV(A)(3) of this NOFA.
(14) An applicant must provide a signed certification that it has either initiated competitive procurement procedures to select a developer by the application deadline date or that it will act as its own developer, in accordance with Section IV(A)(4) of this NOFA. Deficiencies for this item are curable, in accordance with Section XIV(B)(3) of this NOFA.
(15) An application must include a program schedule that, at a minimum, reflects the timeliness of construction requirements of Section XVI(C) of this NOFA, in accordance with Section IV(C).
(16) An application must include a signed certification that the applicant or its procured property manager will implement the operation and management principles and policies in accordance with Section IV(A)(5) of this NOFA. Deficiencies for this item are curable, in accordance with Section XIV(B)(3) of this NOFA.
(17) An application must include a certification signed by an engineer or architect that the targeted public housing project meets the definition of severe physical distress in accordance with Section V(A) of this NOFA. Deficiencies for this item are curable, in accordance with Section XIV(B)(3) of this NOFA.
(18) An application must include commitments of resources in an amount that meets the match requirements of Section VI(A) of this NOFA.
(19) An application must include a certification by the applicant that a resident training session and public meetings were held in accordance with Section VII(A) of this NOFA. Deficiencies for this item are curable, in accordance with Section XIV(B)(3) of this NOFA.
(20) An application must include a certification that the applicant has
(21) An applicant must be in compliance with Fair Housing and Civil Rights Laws, in accordance with Section V(A) of the General Section of this NOFA.
(22) An applicant must be in compliance with any desegregation or other court order related to Fair Housing, in accordance with Section V(B) of the General Section of this NOFA.
(23) If an application includes a proposal to develop off-site replacement housing, the application must include evidence of site control of the proposed off-site locations, in accordance with Section XI(B)(4) of this NOFA.
(24) If an application includes a proposal to develop market rate housing, it must include a preliminary market assessment letter, in accordance with Section XI(C) of this NOFA. Deficiencies for this item are curable, in accordance with Section XIV(B)(3) of this NOFA.
(25) If you are proposing to use off-site parcels of land for housing development or other uses that are currently zoned for a purpose different than the one proposed in your revitalization plan, your application must include a certification from the appropriate local official documenting that all required zoning approvals have been secured for such parcels, and/or the actual zoning approval document for the parcel(s), in accordance with Section XI(E) of this NOFA.
(26) An application must include a demonstration of the appropriateness of the proposal, in accordance with Section XII(A) of this NOFA.
(27) An application must include a certification that, if awarded funds under this NOFA, the Grantee will submit a copy of their Code of Conduct which will also describe the methods they will use to ensure that all officers, employees, and agents of their organization are aware of the Code of Conduct, in accordance with Section VI(B) of the General Section of this NOFA. This certification may be provided in the form of a letter.
(28) Consistent with the purpose and intent of 31 U.S.C. 3720B and 28 U.S.C. 3201(e), no award of Federal funds shall be made to an applicant who has an outstanding Federal debt in accordance with Section VIII(I) of the General Section of this NOFA. HUD will determine compliance with this threshold.
(29) An applicant must have a financial management system that meets Federal standards, in accordance with Section VIII(J) of the General Section of this NOFA. HUD will determine compliance with this threshold.
(30) Applicants are subject to a name check review process, in accordance with Section VIII(L) of the General Section of this NOFA. HUD will determine compliance with this threshold.
(1) The total amount you may request in your Revitalization application is limited to $20 million or the sum of the amounts in Section III(A)(2), whichever is lower.
(2) Total Development Cost (TDC). The “TDC Limit” refers to the maximum amount of HUD funding that HUD will approve for development of specific public housing units in a given location. The TDC limit applies only to the costs of development of public housing that are paid directly with HUD public housing funds; a PHA may exceed the TDC limit using non-public housing funds such as CDBG, HOME, low-income housing tax credit equity, etc. The HUD TDC Cost Tables are issued for each calendar year for the building type and bedroom distribution for the public housing replacement units. Use the TDC limits in effect at the time this HOPE VI NOFA is published when making your TDC calculations (24 CFR 941, final rule published in the
(a) The total cost of development, including relocation costs, is limited to the sum of:
(i) HUD's TDC limits up to 100 percent of HUD's published TDC limits for the costs of demolition and new construction, multiplied by the number of HOPE VI public housing replacement units; and/or
(ii) 90 percent of the TDC limits, multiplied by the number of public housing units after substantial rehabilitation and reconfiguration.
(b) The TDC limit for a project is made up of the following components:
(i) Housing Cost Cap (HCC): HUD's published limit on the use of public housing funds for the cost of constructing the public housing units, which includes unit hard costs, builder's overhead and profit, utilities from the street, finish landscaping, and a hard cost contingency. Estimates should take into consideration the Davis-Bacon wage rate requirements as described in Section VI(D) of the General Section of this NOFA.
(ii) Community Renewal (CR): The balance of funds remaining within the project's TDC limit after the housing construction costs described in (i) above are subtracted from the TDC limit. This is the amount of public housing funds available to pay for PHA administration, planning, infrastructure and other site improvements, community and economic development facilities, acquisition, relocation, demolition, and remediation of units to be replaced on site, and all other development costs.
(3) CSS. You may request an amount up to 15 percent of the total HOPE VI grant to pay the costs of CSS activities, as described in Section VIII(B) of this NOFA. These costs are in addition to (
(4) Demolition and Site Remediation Costs of Unreplaced On-site Units. You may request an amount necessary for demolition and site remediation costs of units that will not be replaced on-site. This cost is in addition to (
(5) Extraordinary Site Costs.
(a) You may request a reasonable amount to pay extraordinary site costs, which are construction costs related to unusual pre-existing site conditions that are incurred, or anticipated to be incurred. If such costs are significantly greater than those typically required for similar construction, are verified by an independent, certified engineer or architect, and are approved by HUD, they may be excluded from the TDC calculation Section (2) above. Extraordinary site costs may be incurred in the remediation and demolition of existing property, as well as in the development of new and rehabilitated units. Examples of such costs include, but are not limited to: abatement of extraordinary environmental site hazards; removal or replacement of extensive underground utility systems; extensive rock and/or soil removal and replacement; removal of hazardous underground tanks; work to address unusual site conditions such as slopes, terraces, water catchments, lakes,
(b) Extraordinary site costs must be justified and verified by a licensed engineer or architect who is not an employee of the housing authority or the city. The engineer or architect must provide his or her license number and State of registration. An Extraordinary Site Costs Certification is included in the HOPE VI application. If this certification is not included in the application after the cure period described in Section XIV(B)(3) of this NOFA, extraordinary site costs will not be allowed.
You may not use HOPE VI Revitalization Grant funds to pay for any revitalization activities carried out on or before the date of the letter announcing the award of the HOPE VI Grant.
(1) Your projected hard development costs must be realistic, developed through the use of technically competent methodologies, including cost estimating services, and comparable to industry standards for the kind of construction to be performed in the proposed geographic area.
(2) Your cost estimates must represent an economically viable preliminary plan for designing, planning, and carrying out your proposed activities in accordance with local costs of labor, materials, and services.
(3) Your projected soft costs must be reasonable and comparable to industry standards. Upon award, soft costs will be subject to HUD's “Safe Harbor” cost control standards. These safe harbors provide specific limitations on such costs as developer's fees (between 9 and 12 percent), PHA administration/consultant cost (no more than 3 to 6 percent of the total project budget), contractor's fee (6 percent), overhead (2 percent), and general conditions (6 percent). HUD's Cost Control and Safe Harbor Standards can be found on the Grant Administration page of the HOPE VI Web site at
(4)
(5) If you are eligible for funding, HUD will delete any unallowable items from your budget and may reduce your grant accordingly, except as provided in Section III(D)(7) of this NOFA. (D) Site and Unit Requirements.
(1)
(2)
(3)
(4)
(5) Number of Units. You may request funds for as few or as many units as you wish in your application. HUD will review requests to revitalize projects with small numbers of units on an equal basis with those with large numbers of units.
(6)
(7)
(8) Replacement Units. Under this HOPE VI NOFA, a HOPE VI Replacement unit shall be deemed to be any combination of public housing rental units, eligible homeownership units under section 24(d)(1)(J) of the 1937 Act, and Housing Choice Voucher assistance that does not exceed the number of units demolished and/or disposed of at the targeted severely distressed public housing project.
(9) Access to Services. For both on-site and any off-site units, your overall Revitalization Plan must result in increased access to municipal services, jobs, mentoring opportunities, transportation, and educational facilities;
(10) Universal Design. HUD encourages you to incorporate the principles of universal design in the construction or rehabilitation of housing, retail establishments, and community facilities, or when communicating with community residents at public meetings or events. Universal design is the design of products and environments to be usable by all people, to the greatest extent possible, without the need for adaptation or specialized design. The intent of universal design is to simplify life for everyone by making products, communications, and the built environment more usable by as many people as possible at little or no extra cost. Universal design benefits people of all ages and abilities. Examples include designing wider doorways, installing levers instead of doorknobs, and putting bathtub/shower grab bars in all units. Computers and telephones can also be set up in ways that enable as many residents as possible to use them. The Department has a publication that contains a number of ideas about how the principles of Universal Design can benefit persons with disabilities. To order a copy of
(11)
(a) Demonstrate to HUD's satisfaction that the severely distressed public housing is sufficiently separable from the remainder of the project of which the building is part to make use of the building feasible for revitalization, and
(b) Demonstrate that the site plan and building designs of the revitalized portion will provide defensible space for the occupants of the revitalized building(s) and that the properties that remain will not have a negative influence on the revitalized buildings(s), either physically or socially. Separations may include a road, berm, catch basin, or other recognized neighborhood distinction.
(1)
(a) Any PHA that is not designated as “troubled” pursuant to section 6(j)(2) of the 1937 Act;
(b) Any PHA for which a private housing management agent has been selected, or a receiver has been appointed, pursuant to section 6(j)(3) of the 1937 Act; and
(c) Any PHA that is designated as “troubled” pursuant to section 6(j)(2) of the 1937 Act and that:
(i) Is designated as troubled principally for reasons that will not affect its capacity to carry out a revitalization program;
(ii) Is making substantial progress toward eliminating the deficiencies of the agency that resulted in its troubled status; or
(iii) Is otherwise determined by HUD to be capable of carrying out a revitalization program.
(2)
(3)
(4)
(a) You have initiated RFQ competitive procurement procedures in accordance with 24 CFR 85.36 and 23 CFR 941.602(d) (as applicable), but have not entered into a contract with a developer for your first phase of construction by the application due date. A developer is an entity contracted to develop (and possibly operate) a mixed finance development that includes public housing units, pursuant to 24 CFR part 941 subpart F, and contingent on a satisfactory environmental review under 24 CFR part 58 or part 50, under the terms of a HUD-approved proposal. A developer most often has an ownership interest in the entity that is established to own and operate the replacement units (
(b) You will act as your own developer for the proposed project. If you change your plan and procure an outside developer after you are selected for funding, HUD reserves the right to rescind the grant.
(5)
(a) Authority. Any HOPE VI-funded activities at public housing projects are subject to statutory requirements applicable to public housing projects under the 1937 Act, other statutes, and the Annual Contributions Contract (ACC). Within such restrictions, HUD seeks innovative solutions to the long-standing problems of severely distressed public housing projects. You may request, for the revitalized project, a waiver of HUD regulations, subject to statutory limitations and a finding of good cause under 24 CFR 5.110 if the waiver will permit you to undertake measures that enhance the long-term viability of a project revitalized under this program. HUD will assess each request to determine whether good cause is established to grant the waiver.
(b) Requirements. HOPE VI Revitalization Grantees will be required to develop Management Agreements that describe their operation and management principles and policies for their public housing units. In your application, you must provide a certification that you will ensure that you and/or your procured property manager have complied (to the extent required) with the provisions of 24 CFR 966.3 in planning for the implementation of the operation and management principles and policies described below.
(i) Rewarding work and promoting family stability by promoting positive incentives such as income disregards and ceiling rents;
(ii) Instituting a system of local preferences adopted in response to local housing needs and priorities,
(iii) Encouraging self-sufficiency by including lease requirements that promote involvement in the resident association, performance of community service, participation in self-sufficiency activities, and transitioning from public housing;
(iv) Implementing site-based waiting lists for the redeveloped public housing and/or following project-based management principles;
(v) Instituting strict applicant screening requirements such as credit checks, references, home visits, and criminal records checks;
(vi) Strictly enforcing lease and eviction provisions;
(vii) Improving the safety and security of residents through the implementation
(A) Local law enforcement agencies;
(B) Your local United States Attorney;
(C) The Weed and Seed Program, if the targeted project is located in a designated Weed and Seed area. Operation Weed and Seed is a multi-agency strategy that “weeds out” violent crime, gang activity, drug use, and drug trafficking in targeted neighborhoods and then “seeds” the target area by restoring these neighborhoods through social and economic revitalization. Law enforcement activities constitute the “weed” portion of the program. Revitalization, which includes prevention, intervention, and treatment services as well as neighborhood restoration, constitutes the “seed” element. HUD has provided the Department of Justice with $10 million to fund Weed and Seed Strategies that fight crime and drugs in public, Indian, and federally assisted housing. For more information, see the Community and Safety and Conservation Web site at
(B) Rating Factor: Capacity—20 Points Total
The term “your Team” includes your HOPE VI Coordinator (an individual designated by the PHA who may be a staff member or contractor), PHA staff who will be involved in HOPE VI grant administration, and developer partners, program managers, property managers, subcontractors, consultants, attorneys, financial consultants, and other entities or individuals identified and/or proposed to carry out program activities.
(1)
(a) Capacity of Developer—6 Points.
(i) You will receive 6 Points if:
(A) Your Developer or other Team members have extensive, recent (within the last five years), and successful experience in planning, implementing, and managing physical development, financing, leveraging, and partnership activities that are comparable in character, scale, and complexity to your proposed revitalization activities;
(B) You propose development using low-income tax credits, and you, your Developer, or other Team members have relevant tax credit experience; and
(C) If homeownership, rent-to-own, cooperative ownership, or other major development components are proposed, you, your Developer, or other Team members have relevant, successful experience in development, sales, and/or conversion activities.
(ii) You will receive 4 Points if your Developer or other Team members have some but not extensive experience in the factors described above.
(iii) You will receive 0 Points if your Developer or other Team members do not have the experience described and the application does not demonstrate that it has the capacity to carry out your Revitalization Plan. You will also receive 0 Points if there is inadequate information in your application to rate this factor.
(b) Development Capacity of Applicant—6 Points.
(i) You will receive 6 Points if:
(A) You have identified potential gaps in your current staffing in relation to development activities, and you have plans to fill such gaps, internally or externally, in a timely manner in order to successfully implement your Revitalization Plan;
(B) You have demonstrated that physical development activities will proceed as promptly as possible following grant award, and you will be able to begin significant construction within 23 months of the award of the grant.
(C)
(D) Your management experience and previous experience with development activities demonstrates that you have experience in overseeing large scale development, whether it be in-house or implemented by a private entity. In your application, you will describe the dollar amount and timeframe for completion of the project(s); and
(E) As of the HOPE VI Revitalization application due date, you do not have any outstanding Comprehensive Grant, Comprehensive Improvement Assistance Program, or Capital Fund Program IG audit findings. If you have such a finding, you cannot receive 6 Points.
(ii) You will receive 4 Points if you have had experience in managing large scale development in accordance with the factors above, but your experience has not been extensive and/or your project(s) were not completed within the timeframe originally established for the project.
(iii) You will receive 1 Point if your application indicates that you have had little experience in managing large-scale development projects. Or, you will receive 1 Point if you have experience described in (i) or (ii) above, but have an outstanding audit finding related to the Comprehensive Grant program, Comprehensive Improvement Assistance Program, or Capital Fund Program.
(iv) You will receive 0 Points if you do not demonstrate any experience in managing development activities, or if there is inadequate information in your application to rate this factor.
(2)
(3) CSS Program Capacity—3 Points.
You can receive points for proper demonstration in your application of CSS Program capacity. See Section VIII(B) of this NOFA for detailed information on CSS activities.
(a) You will receive 2 Points if you demonstrate one of the following. If you fail to demonstrate one of the following, you will receive 0 points:
(i) If you propose to carry out your CSS Plan in-house and you have recent, successful experience in planning, implementing, and managing the types of CSS activities proposed in your application, or
(ii) If you propose that a member(s) of your Team will carry out your CSS Plan, that this procured Team member(s) has the qualifications and experience to plan, implement, manage, and coordinate the types of activities proposed, and/or that you have a plan for promptly hiring staff or procuring a Team member to do so.
(b) If you have an existing HOPE VI grant, you will receive 1 Point if you demonstrated that your proposed CSS Team will be adequate to implement a new program without weakening your existing Team. In doing so, you must describe how you plan to accommodate or expand capacity to support new or changing services. If you do not have an existing HOPE VI Revitalization grant, demonstrate how your current proposed CSS Team will be adequate to implement a new program without weakening your existing staffing structure. In doing so, you must describe how you plan to accommodate or expand capacity to support new or changing services.
(4) Property Management Capacity—4 Points.
(a) Property management activities may be the responsibility of the PHA or another member of the Team, which may include a separate entity that you have procured or will procure to carry out property management activities. In your application you will describe the number of units and the condition of the units currently managed by you or your property manager, your annual budget for those activities, and any awards or recognition that you or your property manager have received.
(b) Past Property Management Experience—3 Points.
(i) You will receive 3 Points if: You or your property manager currently has extensive knowledge and recent (within the last five years), successful experience in property management of the housing types included in your revitalization plan. This may include market rate rental housing, public housing, and/or other affordable housing, including rental units developed with low-income housing tax credit assistance. If your Revitalization Plan includes cooperatively-owned housing, rent-to-own units, or other types of managed housing, you must demonstrate recent, successful experience in the management of such housing by the relevant member(s) of your Team.
(ii) You will receive 1 Point if your application demonstrates that you or your property manager has some but not extensive experience of the kind required for your Revitalization Plan.
(iii) You will receive 0 Points if your application does not demonstrate that you or your property manager has the capacity to manage your proposed plan, or if there is inadequate information in your application to rate this factor.
(c) Property Management Plan—1 Point.
(i) You will receive 1 Point if your application provides a detailed description of the goals and plans of you or your property manager to administer the following elements:
(ii) You will receive 0 Points if there is insufficient information in your application to rate this factor.
(5) PHA Plan—1 Point.
(a) You will receive 1 Point if you demonstrate that you have incorporated the revitalization plan described in your application into your most recent PHA Plan (whether approved by HUD or pending approval). In order to qualify as “incorporated,” your PHA Plan must indicate the intent to pursue a HOPE VI Revitalization grant and the public housing development for which it is targeted.
(b) You will receive 0 Points if you have not incorporated the revitalization plan described in your application into your PHA Plan, or if there is insufficient information in your application to rate this factor.
(1) The targeted public housing project or building in a project must be severely distressed. In accordance with Section 24(j)(2) of the 1937 Act, the term “severely distressed public housing” means a public housing project (or building in a project):
(a) That:
(i) Requires major redesign, reconstruction or redevelopment, or partial or total demolition, to correct serious deficiencies in the original design (including inappropriately high population density), deferred maintenance, physical deterioration or obsolescence of major systems, and other deficiencies in the physical plan of the project;
(ii) Is a significant contributing factor to the physical decline of, and disinvestment by public and private entities in, the surrounding neighborhood;
(iii) (A) Is occupied predominantly by families who are very low-income families with children, are unemployed, and dependent on various forms of public assistance; or (B) has high rates of vandalism and criminal activity (including drug-related criminal activity) in comparison to other housing in the area;
(iv) Cannot be revitalized through assistance under other programs, such as the Capital and Operating Funds Programs for public housing under the Act, or the programs under sections 9 and 14 of the 1937 Act (as in effect before the effective date under section 503(a) of the Quality Housing and Work Responsibility Act of 1998 (Pub. L. 105-276, approved October 21, 1998, referred to as the Public Housing Reform Act), because of cost constraints and inadequacy of available amounts; and
(v) In the case of individual buildings, is sufficiently separable from the remainder of the project of which the building is part to make use of the building feasible for revitalization; or
(b) That was a project described in section V(A)(1)(a) that has been legally
(2) For the purposes of this threshold, Replacement Housing Factor funds will not be considered as “replacement housing assistance.”
(3) A severely distressed project that has been legally vacated or demolished (but for which HUD has not yet provided replacement housing assistance, other than tenant-based assistance) must have met the definition of physical distress as of the day the demolition application approval letter was dated by HUD.
(4) To meet the severe distress requirement, you must certify that the public housing project or building in a project targeted in your HOPE VI application meets the definition of severe distress provided in Section V(A)(1). You will make this certification by signing the HOPE VI Revitalization Grant Applicant Certifications. The certification form is included in the HOPE VI Application and is included as part of Appendix A to this HOPE VI NOFA.
(5) In order to certify to the severe physical distress described in Section V(A)(1)(a) of this NOFA, your application must include a certification that is signed by an engineer or architect licensed by a State licensing board. The license does not need to have been issued in the same State as the severely distressed project. The engineer or architect must include his or her license number and State of registration on the certification. The engineer or architect may not be an employee of the housing authority or the city.
HUD will evaluate the extent of the severe physical distress of the targeted public housing development. If the targeted units have already been demolished, HUD will evaluate your description of the extent of the severe physical distress of the site as of the day the demolition application was approved by HUD. You will receive Points for the following separate subfactors, as indicated.
(a) You will receive 2 Points if you demonstrate that there are major deficiencies in the project's infrastructure, roofs, electrical, plumbing, heating and cooling, mechanical systems, settlement, and/or other deficiencies in Housing Quality Standards.
(b) You will receive 2 Points if you demonstrate that there are poor soil conditions, inadequate drainage, deteriorated laterals and sewers, and/or inappropriate topography.
(c) You will receive 3 Points if you demonstrate that the project has at least 3 of the following major design deficiencies, including:
(i) Inappropriately high population density, room, and/or unit size and configurations;
(ii) Isolation;
(iii) Indefensible space;
(iv) Significant utility expenses caused by energy conservation deficiencies that may be documented by an energy audit; and/or
(v) Inaccessibility for persons with disabilities with regard to individual units, entrance ways, and/or common areas.
(d) You will receive 3 Points if you demonstrate that there are (or were, if the site is already demolished) levels of unmitigated lead-based paint, PCBs, mold, and/or asbestos that make the site or a portion of the site and its housing structures unsuitable for residential use.
HUD will evaluate the extent to which the severely distressed public housing project is a significant contributing factor to the physical decline of, and disinvestment by, public and private entities in the surrounding neighborhood. In making this determination, HUD will evaluate your description of your narrative, crime statistics, photographs or renderings, socio-economic data, trends in property values, evidence of property deterioration and abandonment, evidence of underutilization of surrounding properties, and indications of neighborhood disinvestment.
(a) You will receive 3 Points if your narrative adequately demonstrates that the project has a significant impact on the surrounding neighborhood, as documented by each item listed above.
(b) You will receive 2 Points if your narrative demonstrates that the project has a moderate impact on the neighborhood, and/or only some of the items listed above are adequately documented.
(c) You will receive 0 Points if your narrative does not demonstrate that the project has an impact on the surrounding neighborhood, or there is inadequate information in your application to rate this factor.
HUD will evaluate the extent to which you could undertake the proposed revitalization activities without a HOPE VI grant. Large amounts of available Capital Funds indicate that the revitalization could be carried out without a HOPE VI grant. HUD will use data from LOCCS available at the time of the grant application deadline date to determine the amount of unobligated FY 1999-2002 Capital Grant (including CIAP and CGP) funds currently available that could be used to carry out the proposed revitalization activities. Applicants must ensure that their obligation and expenditure information was updated in LOCCS prior to the application deadline. Replacement Housing Factor funds are not excluded from the calculation of Capital Fund obligation rates, pursuant to 24 CFR 905.10(i), as they are part of the Capital Fund Program formula allocation. Information provided in the application will not be considered, except in the case of some moving to work applicants, which are not required to enter obligations into LOCCS in accordance with their MTW agreements. Those PHAS must provide a certification of their obligation rate in their applications in order to receive any points for this rating factor.
(a) You will receive 8 Points if your unobligated Capital Funds balance is up to 20 percent of the amount of HOPE VI funds requested.
(b) You will receive 6 Points if your unobligated balance is 21-45 percent of the amount of HOPE VI funds requested.
(c) You will receive 4 Points if your unobligated balance is 46-70 percent of the amount of HOPE VI funds requested.
(d) You will receive 2 Points if your unobligated balance is 71 to 90 percent of the amount of HOPE VI funds requested.
(e) You will receive 0 Points if your unobligated balance is more than 90 percent of the amount of HOPE VI funds requested.
The applicant must demonstrate the need for affordable housing in the community. For purposes of this competition, the need for affordable housing in the community will be measured by Housing Choice Voucher program utilization rates and public housing occupancy rates, excluding the public housing site targeted for revitalization. This information must be demonstrated and documented in your application, as described below and
(a) You will receive 3 Points if :
(i) The utilization rate of your Housing Choice Voucher program is 97 percent or higher; and/or
(ii) The occupancy rate of your public housing inventory is 97 percent or higher.
(b) You will receive 2 Points if:
(i) The utilization rate of your Housing Choice Voucher program is between 95 and 96 percent; and/or
(ii) The occupancy rate of your public housing inventory is between 95 and 96 percent.
(c) You will receive 1 Point if:
(i) The utilization rate of your Housing Choice Voucher program is between 93 and 94 percent; and/or
(ii) The occupancy rate of your public housing inventory is between 93 and 94 percent.
(d) You will receive 0 Points if:
(i) The utilization rate of your Housing Choice Voucher program is less than 93 percent and/or
(ii) The occupancy rate of your public housing inventory is less than 93 percent.
(1) Overall Match. In accordance with section 24(c) of the 1937 Act, if you are selected for funding, you must supplement your HOPE VI Revitalization grant with funds from other sources greater than or equal to 5 percent of the HOPE VI funds provided.
(2) Additional Community and Supportive Services (CSS) Match. In addition to supplemental amounts provided as Overall Match in accordance with Section (1) above, if you are selected for funding and propose to use more than 5 percent of your HOPE VI grant for CSS activities (you may use up to 15 percent of your grant for such activities), you must provide supplemental funds from sources other than HOPE VI, for the amount over 5 percent of the grant that you will use for CSS activities.
(3) In accordance with section 24(c) of the Act, for purposes of calculating the amount of matching funds required by Sections (1) and (2), you may include amounts from other Federal sources, any state or local government sources, any private contributions, the value of donated material or building, the value of any lease on a building, the value of the time and services contributed by volunteers, and the value of any other in-kind services or administrative costs provided.
(4) Matching funds must be directly applicable to the revitalization of the site and the transformation of the lives of residents.
(5) Grantees must provide matching funds which, combined with HOPE VI funds, will enable them to carry out revitalization activities, including CSS activities. Applicants must show firm commitments in the amounts required for match in their applications in order to be funded. Grantees will be required to show evidence that matching resources were actually received and used for their intended purposes through quarterly reports as the project proceeds. Sources of matching funds may be substituted after grant award, as long as the dollar requirement is met.
(6) Grantees must pursue and enforce any commitment (including commitments for services) obtained from any public or private entity for any contribution or commitment to the project or surrounding area that was used for leverage in their HOPE VI applications.
(7)
Although related to match, leverage is strictly a rating factor. Leverage consists of firm commitments of funds and other resources. HUD will rate your application based on the amount of funds and other resources that will be leveraged by the HOPE VI grant as a percentage of the amount of HOPE VI funds requested.
In your application, you will enter basic information about each resource on the appropriate resource summary form: Name of the organization providing the resource, the dollar value of the resource, and its proposed use.
(1) For each resource you list, you
(2) Each commitment document must include the dollar value and time duration of the commitment (
(3) Endorsements or general letters of support from organizations or vendors alone will not count as resources and should not be included in the application or on a Resources Summary Form.
(4) Each resource may be used for only one category: Development, CSS, Anticipatory, or Collateral, as described below. Any resource listed in more than one category will be disqualified from all categories.
(5) For CSS purposes, include only funds that will be newly generated for HOPE VI activities. HUD will not count any funds that have been provided routinely, such as TANF payments or funds that support ongoing CSS-type activities. However, if an existing service provider significantly increases the level of services provided at the site, the increased amount of funds may be counted.
(6) Even though an in-kind CSS contribution may count as a resource, it may not be appropriate to include on the sources and uses attachment. Each source on the sources and uses attachment must be matched by a specific and appropriate use. For example, donations of staff time may
HUD seeks to fund mixed-finance developments that use HOPE VI funds to leverage the maximum amount of other physical development funds, particularly from private sources, that will result in revitalized public housing, other types of assisted and market rate housing, and private retail and economic development. Types of resources that may be counted include:
(1) Private mortgage-secured loans and other debt. Note the term maturity expected and sources of repayment of all loans.
(a) Where there is both a construction loan and a permanent take-out loan, you must provide documentation of both, but only the value of the permanent loan will be counted as leverage.
(b) For privately financed homeownership construction loans, acceptable documentation of construction loans will be considered as leverage. Documentation of permanent financing is not required.
(c) If you have obtained a construction loan but not a permanent loan, the value of the acceptably documented construction loan will be counted as leverage.
(2) Insured loans.
(3) Donations and contributions.
(4) Housing trust funds.
(5) Net sales proceeds from a homeownership project. Downpayments from homebuyers may not be counted.
(6) Funds committed to build private sector housing in direct connection with the HOPE VI Revitalization Plan.
(7) Tax Increment Funding (TIF).
(8) Tax Exempt Bonds. Describe the use and term.
(9) Other Federal Funds. Other Federal sources may also include funds provided by HUD, except-public housing funds, such as HOPE VI Revitalization funds, HOPE VI Demolition funds, Capital Fund Program funds, and proposals to use operating subsidy for debt service. Though these HUD public housing funds may not be counted for points under this NOFA, they can be used as part of your revitalization plan.
(10) Sale of Land. The value of land may be included as a development resource only if this value is a sales proceed. Absent a sales transaction, the value of land may not be counted.
(11) Donations of Land. Donations of land may be counted as a development resource, only if the donating entity owns the land to be donated. Donating entities may include a city, county, church, community organization,
(12) Low-Income Housing Tax Credits (LIHTC). Low-Income Tax Credits are authorized by section 42 of the IRS Code which allows investors to receive a credit against Federal tax owed in return for providing funds to developers to help build or renovate housing that will be rented only to lower-income households for a minimum period of years. There are two types of credits, both of which are available over a 10-year period: A 9 percent credit on construction/rehab costs, and a 4 percent credit on acquisition costs and all development costs financed partially with below-market Federal loans (
(a) If you propose to include LIHTC equity as a development resource for your first phase of development, your application must include a LIHTC reservation letter from your state or local Housing Finance Agency. This letter must constitute a firm commitment and can only be conditioned on the receipt of the HOPE VI grant.
(b) If you propose to include LIHTC equity as a development resource for phases of development other than your first phase, your application must include a reservation letter from your state or local Housing Finance Agency in order to have the tax credit amounts for future phases counted as development leveraging.
(c) Only LIHTC commitments that have been secured as of the application deadline will be considered for the scoring under section VI(H)(1).
You must actively enlist other stakeholders who are vested in and can provide significant financial assistance to your revitalization effort. Sources of resources that can be used for leveraging may include:
(1) Public, private, and non-profit entities, including LIHTC purchasers;
(2) State and local Housing Finance Agencies;
(3) Local governments;
(4) The city's housing and/or redevelopment agency or other comparable agency. HUD will consider this to be a separate entity with which you are partnering if your PHA is also a redevelopment agency or otherwise has citywide responsibilities.
(a) You are strongly urged to seek a pledge of Community Development Block Grant (CDBG) funds for improvements to public infrastructure such as streets, water mains, etc. related to the revitalization effort. CDBG funds are awarded by HUD by formula to units of general local government and to states, which may then award a grant or loan to a PHA, a partnership, a non-profit organization, or other entity for revitalization activities, including loans to a project's for-profit partnership. More information about the CDBG Program can be found at
(b) The city, county, or State may provide HOME funds to be used in conjunction with HOPE VI funds. The Home Investment Partnership Program provides housing funds that are distributed from HUD to units of general local governments and states. Funds may be used for new construction, rehabilitation, acquisition of standard housing, assistance to homebuyers, and tenant-based rental assistance. Current legislation allows HOME funds to be used in conjunction with HOPE VI funds, but they may not be used in conjunction with Public Housing Capital Funds under section 9(d) of the 1937 Act. Information about the HOME Program can be found at:
(5) Foundations.
(6) Government Sponsored Enterprises such as the Federal Home Loan Bank, Fannie Mae, and Freddie Mac.
(7) HUD and other Federal agencies.
(8) Financial institutions, banks, or insurers.
(9) Other private funders.
HUD seeks to fund mixed-finance developments that use HOPE VI funds to leverage the maximum amount of other resources to support CSS activities in order to ensure the successful transformation of the lives of residents and the sustainability of the revitalized public housing development. Leveraging scarce HOPE VI CSS funds with other funds and services is critical to the sustainability of CSS activities so that they will continue after the HOPE VI funds have been expended.
Commitments of funding or in-kind services related to the provision of CSS activities may be counted as CSS resources and towards the calculation of CSS leverage. Types of resources that
(a) Materials;
(b) A building;
(c) A lease on a building;
(d) Other infrastructure;
(e) Time and services contributed by volunteers;
(f) Staff salaries and benefits; and
(g) Supplies.
(h) See Section VIII(B) for other types of CSS resources.
Note that wages projected to be paid to residents through jobs, or projected benefits (
In order to achieve quantifiable self-sufficiency results, you must form partnerships with organizations that are skilled in the delivery of services to residents of public housing and that can provide commitments of resources to support those services. You must actively enlist as partners other stakeholders who are vested in and can provide commitments of funds and in-kind services for the CSS portion of your revitalization effort. See Section VIII(C) for a list of the kinds of organizations, agencies, and other providers that may be used as sources of CSS resources.
(1)
(a) You will receive 7 Points if the ratio of the amount of HOPE VI funds requested for physical development activities (not including CSS or administration) to the dollar value of documented, committed development resources from other sources is 1:3 or higher.
(b) You will receive 6 Points if the ratio is between 1:2.50 and 1:2.99.
(c) You will receive 5 Points if the ratio is between 1:2.0 and 1:2.49.
(d) You will receive 4 Points if the ratio is between 1:1.50 and 1:1.99.
(e) You will receive 3 Points if the ratio is between 1:1.0 and 1:1.49.
(f) You will receive 2 Points if the ratio is between 1:0.50 and 1:0.99.
(g) You will receive 1 Point if the ratio is between 1:0.25 to 1:0.49.
(h) You will receive 0 Points if the ratio is less than 1:0.25, or there is inadequate information in your application to rate this factor.
(2)
(b) You will receive 4 Points if the ratio is between 1:3.5 and 1:3.99.
(c) You will receive 3 Points if the ratio is between 1:3 and 1:3.49.
(d) You will receive 2 Points if the ratio is between 1:2.5 and 1:2.99.
(e) You will receive 1 Point if the ratio is between 1:2 and 1:2.49.
(f) You will receive 0 Points if the ratio is less than 1:2, or there is inadequate information in your application to rate this factor.
(3) Anticipatory Resources Leveraging—2 Points. Anticipatory Resources relate to activities that have taken place in the past and that were conducted in direct relation to a HOPE VI Revitalization grant. In many cases, PHAs, cities, or other entities may have carried out revitalization activities (including demolition) in previous years in anticipation of your receipt of a HOPE VI Revitalization grant. These expenditures, if documented, may be counted as leveraged anticipatory resources. They cannot duplicate any other type of resource and cannot be counted towards match.
(a) You will receive 2 Points if the ratio of the amount of HOPE VI funds requested for physical development activities (not including CSS or administration) to the amount of your documented anticipatory resources is 1:0.1 or higher.
(b) You will receive 0 Points if the ratio of the amount of HOPE VI funds requested for physical development activities (not including CSS or administration) to the amount of your documented anticipatory resources is less than 1:0.1.
(4)
(a) You will receive 2 Points if the ratio of the amount of HOPE VI funds requested for physical development activities (not including CSS or administration) to the amount of your documented collateral resources is 1:1.0 or higher.
(b) You will receive 0 Points if the ratio of the amount of HOPE VI funds requested for physical development activities (not including CSS or administration) to the amount of your documented collateral resources is less than 1:1.0.
(1) General. You are required to involve residents and the broader community in the planning, proposed implementation, and management of your Revitalization Plan. HUD will evaluate the nature, extent, and quality of the resident and community outreach and involvement you have achieved by the time your application is submitted, as well as your plans for continued and/or additional outreach and involvement.
(2) Resident Training Session. You must conduct at least one training session for residents of the severely distressed project on the HOPE VI development process. HUD does not prescribe the content of this meeting.
(3) Public Meetings.
(a) You must conduct at least three public meetings with residents and the broader community, in order to involve them in a meaningful way in the process of developing the Revitalization Plan and preparing the application.
(b) During the course of the three meetings, you must address the following issues listed below (
(i) The HOPE VI planning and implementation process;
(ii) The proposed physical plan, including site and unit design, and
(iii) The extent of proposed demolition;
(iv) Planned community and supportive service activities;
(v) Other proposed revitalization activities;
(vi) Relocation issues, including relocation planning, mobility counseling, and maintaining the HOPE VI community planning process during the demolition and reconstruction phases where temporary relocation is involved;
(vii) Reoccupancy plans and policies, including site-based waiting lists; and
(viii) Section 3 and employment opportunities to be created as a result of redevelopment activities.
(4) All training sessions and meetings must be held in facilities that are accessible to persons with disabilities, provide services such as day care, transportation, and sign language interpreters as appropriate, and as practical and applicable, be conducted in English and the language(s) most appropriate for the community.
(5) The training session and each of the public meetings must be held after the publication date of this NOFA in the
You will receive 1 Point for each of the following criteria met in your application, which are over and above the threshold requirements listed in Section (A) above.
(1) You demonstrate that you have communicated regularly and significantly with affected residents and members of the surrounding community about the development of your Revitalization Plan by giving residents and community members information about your actions regarding the Revitalization Plan and providing a forum where residents and community members can contribute recommendations and opinions with regard to the development and implementation of the Revitalization Plan.
(2) You describe your efforts, past and proposed, to make appropriate HUD communications about HOPE VI available (
(3) You describe your plans to provide affected residents with reasonable training on the general principles of development, technical assistance, and capacity building so that they may participate meaningfully in the development and implementation process.
(1) Your CSS Team and Partners.
(a) The term “CSS Team” refers to PHA staff members and/or any consultants who will have the responsibility to design, implement, and manage your CSS Program.
(b) The term “CSS Partners” refers to the agencies and organizations that you will work with to provide supportive services for residents. A Partner could be a local service organization such as a Boys or Girls Club that donates its building and staff to the program, or an agency such as the local TANF agency that works with you to ensure that their services are coordinated and comprehensive.
(2) Maximum CSS grant amount. Consistent with section 24(j)(3) of the 1937 Act, you may use an amount up to 15 percent of the total HOPE VI Grant to pay the costs of CSS activities. You may spend additional sums on CSS activities using donations, other HUD funds made available for that purpose, or other PHA funds. See Section VI(A) of this NOFA for CSS grant matching requirements.
(3) CSS Endowment Trust. Consistent with section 24(d)(2) of the Act, you may deposit up to 15 percent of your HOPE VI grant (the maximum amount of the award allowable for CSS activities) into an Endowment Trust to provide CSS activities. In order to establish an Endowment Trust, you must first execute with HUD a HOPE VI Endowment Trust Addendum to the Grant Agreement. When reviewing your request to set up an Endowment Trust, HUD will take into consideration your ability to pay for current CSS activities with HOPE VI or other funds and the projected long-term sustainability of the Endowment Trust to carry out those activities.
(4) Subgrant Agreements. You may enter into subgrant agreements with non-profit or State or local governments for the performance of CSS activities in accordance with your approved CSS work plan.
(5) Neighborhood Networks. All FY 2003 Revitalization grantees will be required to establish Neighborhood Networks Centers. This program provides residents with on-site access to computer and training resources. HUD will make technical assistance available to each PHA where needed. Grantees may use HOPE VI funds to establish Neighborhood Networks. In addition, $5 million will be made available for Neighborhood Networks in accordance with Section II(C) of the General Section of this NOFA. More information on the requirements of the Neighborhood Networks Center Program is available on the Neighborhood Networks Web site at
(6) CSS activities must be consistent with State and local welfare reform requirements and goals.
(7) The objectives of your CSS Program must be results-oriented, with quantifiable goals and outcomes that can be used to measure progress and make changes in activities as necessary.
(8) CSS activities must be of an appropriate scale, type, and variety to meet the needs of all residents (including adults, youth ages 16 to 21, and children) of the severely distressed project, including residents remaining on-site, residents who will relocate permanently to other PHA units or Housing Choice Voucher-assisted housing, residents who will relocate temporarily during the construction phase, and new residents of the revitalized units.
(9) Non-public housing residents may also participate in CSS activities, as long as the primary participants in the activities are residents as described in Section (8) above.
(10) Your CSS activities must be coordinated with the efforts of other service providers in your locality, including non-profit organizations, educational institutions, and State and local programs.
(11) CSS activities must be well integrated with the physical development process, both in terms of timing and the provision of facilities to house on-site service and educational activities.
(12) CSS programs and services must last for the life of the grant and must be carefully planned so that they will be sustainable after the HOPE VI grant period ends.
(13) If selected, the Grantee is responsible for tracking and providing CSS programs and services to residents currently living on the targeted public
(1) Educational activities that promote learning and serve as the foundation for young people from infancy through high school graduation, helping them to succeed in academia and the professional world. Such activities, which include after school programs, mentoring, and tutoring, must be created with strong partnerships with public and private educational institutions.
(2) Adult educational activities, including remedial education, literacy training, tutoring for completion of secondary or post-secondary education, assistance in the attainment of certificates of high school equivalency, and English as a Second Language courses, as needed.
(3) Readiness and retention activities, which frequently are key to securing private sector commitments to the provision of jobs.
(4) Employment training activities that include results-based job training, preparation, counseling, development, placement, and follow-up assistance after job placement.
(5) Programs that provide entry-level, registered apprenticeships in construction, construction-related, maintenance, or other related activities. A registered apprenticeship program is a program which has been registered with either a State Apprenticeship Agency recognized by the Department of Labor's (DOL) Office of Apprenticeship Training, Employer and Labor Services (OATELS) or, if there is no recognized State agency, by OATELS. See also DOL regulations at 29 CFR part 29.
(6) Life skills training on topics such as parenting, consumer education, and family budgeting.
(7) Creation and operation of credit unions to serve residents, including capitalization and technical assistance to foster new credit unions on-site and to encourage existing community credit unions to expand their coverage to include on-site coverage.
(8) Homeownership counseling that is scheduled to begin promptly after grant award so that, to the maximum extent possible, qualified residents will be ready to purchase new homeownership units when they are completed. The Family Self-Sufficiency Program can also be used to promote homeownership, providing assistance with escrow accounts and counseling.
(9) Coordinating with health care services providers or providing on-site space for a health clinic, doctors, a wellness center, dentists, etc. that will primarily serve the public housing residents. HOPE VI funds may not be used to provide direct medical care to residents.
(10) Substance/alcohol abuse treatment and counseling.
(11) Activities that address domestic violence treatment and prevention.
(12) Child care services that provide sufficient hours of operation to facilitate parental access to education and job opportunities, serve appropriate age groups, and stimulate children to learn.
(13) Transportation, as necessary, to enable all family members to participate in available CSS activities and/or to commute to their places of employment.
(14) Entrepreneurship training and mentoring, with the goal of establishing resident-owned businesses.
The following are the kinds of organizations and agencies that can provide you with in-kind, financial, and other types of resources necessary to carry out and sustain your CSS activities.
(1) Local Boards of Education, public libraries, local community colleges, institutions of higher learning, non-profit or for-profit educational institutions, and public/private mentoring programs that will lead to new or improved educational facilities and improved educational achievement of young people in the revitalized development, from birth through higher education.
(2) TANF agencies/welfare departments.
(3) Job development organizations that link private sector or non-profit employers with low-income prospective employees.
(4) Workforce Development Agencies.
(5) Organizations that provide residents with job readiness and retention training and support.
(6) Economic development agencies such as the Small Business Administration, which provide entrepreneurial training and small business development centers.
(7) National corporations, local businesses, and other large institutions such as hospitals that can commit to provide entry-level jobs. Employers may agree to train residents or commit to hire residents after they complete jobs preparedness or training programs that are provided by you, other partners, or the employer itself.
(8) Programs that integrate employment training, education, and counseling, and where creative partnerships with local boards of education, State charter schools, TANF, foundations, and private funding sources have been or could be established, such as:
(a) Youthbuild. HUD's Youthbuild Program provides grants to organizations that provide education and job training to young adults ages 16 to 24 who have dropped out of school. Participants spend half their time rehabilitating low-income housing and the other half in educational programs. Youthbuild provides a vehicle for achieving compliance with the objective of Section 3, as described in Section X(D)(2)(a) of this NOFA. More information on HUD's Youthbuild Program can be found at
(b) Step-Up, an apprenticeship-based employment and training program that provides career potential for low-income persons by enabling them to work on construction projects that have certain prevailing wage requirements. Step-Up encourages work by offering apprenticeships through which low-income participants earn wages while learning skills on the job, supplemented by classroom-related instruction. Step-Up can also contribute to a PHA's effort to meet the requirements of Section 3. More information can be found at
(9) Sources of capital such as foundations, banks, credit unions, and charitable, fraternal, and business organizations.
(10) Non-profit organizations such as the Girl Scouts and the Urban League, both of which have Memoranda of Agreement (MOA) with HUD. Copies of these MOAs can be found on the Community and Supportive Services page of the HOPE VI Web site at
(11) Civil rights and fair housing organizations.
(12) Local area agencies on aging.
(13) Local agencies and organizations serving persons with disabilities.
(14) Non-profit organizations such as grassroots faith-based and other community-based organizations. HUD encourages you to partner or subgrant with non-profit organizations, including grassroots faith-based and other community-based organizations, to provide CSS activities. Such organizations have a strong history of providing vital community services such as job training, childcare,
(a) HUD will consider an organization a “grassroots” organization if it is headquartered in the local community to which it provides services; and
(i) Has an annual social services budget of no more than $300,000. This cap includes only the portion of the organization's budget allocated to providing social services. It does not include other portions of the budget such as salaries and expenses; or
(ii) Has six or fewer full-time equivalent employees.
(b) Local affiliates of national organizations are not considered “grassroots.”
In your application you will describe your CSS plan, including any plans to implement a CSS Endowment Trust. Each of the following subfactors will be rated separately.
(1) You will receive 2 Points if you demonstrate that you will be able to provide case management within 30 days from the date of grant award execution so that residents who will be relocated have time to participate and benefit from CSS activities before leaving the site.
(2) You will receive 2 Points if you have proposed a high quality, results-oriented CSS program that is based on a comprehensive case management system and enables residents affected by the revitalization plan to access, at a minimum, basic elements of education, job training, and other services that will assist them in transforming their lives and becoming self-sufficient.
(3) You will receive 1 Point if you provide letters from a variety of experienced organizations and service providers that represent strong relationships and commitments to participate in your CSS activities and accomplish your CSS goals of the program.
(4) You will receive 1 Point if your CSS Program has been developed in response to a rigorous resident needs identification process and directly responds to the identified needs.
You must provide suitable, accessible, decent, safe, and sanitary housing for each family required to relocate as a result of revitalization activities under your Revitalization Plan. Any person (including individuals, partnerships, corporations or associations) who moves from real property or moves personal property from real property directly (1) because of a written notice to acquire real property in whole or in part, or (2) because of the acquisition of the real property, in whole or in part, for a HUD-assisted activity, is covered by Federal relocation statute and regulations. Specifically, this type of move is covered by the acquisition policies and procedures and the relocation requirements of the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970 (URA), and the implementing government-wide regulation at 49 CFR part 24, and CPD Notice 02-08, Guidance on the Applications of the URA and Real Property Acquisition Policies Act of 1970, as amended, in HOPE VI Projects. The relocation requirements of the URA and the government-wide regulations, as well as CPD Notice 02-08, cover any person who moves permanently from real property or moves personal property from real property directly because of acquisition, rehabilitation, or demolition for an activity undertaken with HUD assistance.
(1) The HOPE VI Relocation Plan is intended to ensure that PHAs adhere to the URA and that all residents who have been or will be temporarily or permanently relocated from the site are provided with CSS activities such as mobility counseling and direct assistance in locating housing.
(2) You are encouraged to involve HUD-approved housing counseling agencies, including faith-based, non-profit and/or other organizations, and/or individuals in the community to which relocatees choose to move, in order to ease the transition and minimize the impact on the neighborhood. HUD will view favorably innovative programs such as community mentors, support groups, and the like.
(3) If applicable, you are encouraged to work with surrounding jurisdictions to assure a smooth transition if residents choose to move from your jurisdiction to the surrounding area.
You must carry out relocation activities in compliance with a relocation plan that conforms to the following statutory and regulatory requirements, as applicable:
(1) Relocation or temporary relocation carried out as a result of rehabilitation under an approved Revitalization Plan is subject to the URA, the URA regulations at 24 CFR part 24, and regulations at 24 CFR 968.108 or successor part.
(2) Relocation carried out as a result of acquisition under an approved Revitalization Plan is subject to the URA and regulations at 24 CFR 941.207 or successor part.
(3) Relocation carried out as a result of disposition under an approved Revitalization Plan is subject to Section 18 of the 1937 Act, as amended.
(4) Relocation carried out as a result of demolition under an approved Revitalization plan is subject to the URA regulations at 24 CFR part 24.
Each applicant must complete a HOPE VI Relocation Plan. In your application, you must submit a certification that the HOPE VI Relocation Plan has been completed and that it conforms to the URA requirements as described in Section IX(C) above. If relocation was completed as of the application deadline (
(1) You will receive 5 Points if you provide a certification that all of the residents of the targeted severely distressed public housing project have been relocated and tracked as of the HOPE VI Revitalization application due date. All residents must have been tracked in order to receive these 5 points. If you qualify for these 5 Points,
(2) You will receive 4 Points if you:
(a) Provide a certification that all of the residents of the targeted severely distressed public housing project have been relocated but you were unable to track all residents, as of the HOPE VI Revitalization application due date. You must describe the efforts undertaken to track residents and reasons why all residents were not tracked; or
(b) Describe in your application:
(i) An effective plan to track residents who have been or will be relocated from the targeted project; and
(ii) A comprehensive plan that will provide mobility counseling and direct assistance in locating housing to residents who choose Housing Choice Voucher assistance that will help them to fully understand the full range of housing opportunities available to them in neighborhoods throughout the jurisdiction and to find housing in non-poverty areas. You must provide a list of available units to persons with disabilities as required under 24 CFR 8.28(a)(3).
(3) You will receive 2 Points if you meet only one of the factors described in Section (2)(b) above.
(4) You will receive 0 Points if your application does not meet either of the factors described in Section (2)(b) above, or if there is inadequate information in the application to rate this factor.
(1) Accessibility Requirements. HOPE VI developments are subject to the accessibility requirements contained in several Federal laws. All applicable laws must be read together and followed. PIH Notice 2002-1, available at
(2) Specific Fair Housing requirements are:
(a) The Fair Housing Act (42 U.S.C. 3601-19) and regulations at 24 CFR part 100.
(b) The prohibitions against discrimination on the basis of disability, including requirements that multifamily housing projects comply with the Uniform Federal Accessibility Standards, and that you make reasonable accommodations to individuals with disabilities under section 504 of the Rehabilitation Act of 1973 (29 U.S.C. 794) and regulations at 24 CFR part 8.
(c) Title II of the Americans with Disabilities Act (42 U.S.C 12101
(d) The Architectural Barriers Act of 1968 (42 U.S.C. 4151) and the regulations at 24 CFR part 40.
(1) Accessibility—2 Points.
(a) Over and above the accessibility requirements listed above, you will receive 2 Points if you describe a detailed plan to:
(i) Provide accessibility in homeownership units (
(ii) Provide one-bedroom accessible rental units for single individuals with disabilities;
(iii) Provide for accessibility modifications, where necessary, to Housing Choice Voucher-assisted units of residents who relocate from the targeted project to private or other public housing due to revitalization activities. The Department has determined that the costs of such modifications are eligible costs under the HOPE VI program;
(iv) Where playgrounds are planned, propose ways to make them accessible to children with disabilities, over and above statutory and regulatory requirements; and
(v) Where possible, design units with accessible front entrances.
(b) You will receive 1 Point if your application describes a detailed plan to implement some of the accessibility priorities stated above, explaining why and how you will implement the identified accessibility priorities. (c) You will receive 0 Points if you fail to provide a description that meets the specifications above, or if there is inadequate information in your application to rate this factor.
(2) Universal Design—2 Points.
(a) You will receive 2 Points if you specifically describe:
(i) A plan to meet the adaptability standards adopted by HUD at 24 CFR 8.3 that apply to those units not otherwise covered by the accessibility requirements. Adaptability is the ability of certain elements of a dwelling unit, such as kitchen counters, sinks, and grab bars, to be added to, raised, lowered, or otherwise altered, to accommodate the needs of persons with or without disabilities, or to accommodate the needs of persons with different types or degrees of disability. For example, the wiring for visible emergency alarms may be installed so that a unit can be made ready for occupancy by a hearing-impaired person (For information on adaptability, see
(ii) A plan to meet the visitability standards recommended by HUD that apply to units not otherwise covered by the accessibility requirements. Visitability standards allow a person with mobility impairments access into the home, but do not require that all features be made accessible. A visitable home also serves persons without disabilities, such as a mother pushing a stroller or a person delivering a large appliance. See
(i) At least one entrance at grade (no steps), approached by a sidewalk; and
(ii) The entrance door and all interior passage doors are at least 2 feet 10 inches wide, allowing 32 inches of clear passage space.
(b) You will receive 0 Points if your application does not adequately describe plans for (i) and (ii) as specified above, or if there is inadequate information in your application to rate this factor.
(1)
(2)
(3) Site and Neighborhood Standards for Replacement Housing. You must comply with the Fair Housing Act and Title VI of the Civil Rights Act of 1964, and regulations thereunder. In determining the location of any replacement housing, you must comply with either the site and neighborhood standards regulations at 24 CFR 941.202 (b-d) or with the standards outlined below.
(a) HOPE VI Goals Related to Site and Neighborhood Standards. You are expected to ensure that your revitalization plan will expand assisted housing opportunities in non-poor and non-minority neighborhoods and/or will accomplish substantial revitalization in the Project and its surrounding neighborhood. You are also expected to ensure that eligible households of all races and ethnic groups will have equal and meaningful access to the housing.
(b) Objectives in Selecting HUD-Assisted Sites. The fundamental goal of HUD's fair housing policy is to make full and free housing choice a reality. Housing choice requires that households of all races and ethnicity, or with disabilities, can freely decide the type of neighborhood where they wish to reside, that minority neighborhoods are no longer deprived of essential public and private resources, and that stable, racially-mixed neighborhoods are available as a meaningful choice for all. To make full and free housing choice a reality, sites for HUD-assisted housing investment should be selected so as to advance two complementary goals:
(i) Expand assisted housing opportunities in non-minority neighborhoods, opening up choices throughout the metropolitan area for all assisted households; and
(ii) Reinvest in minority neighborhoods, improving the quality and affordability of housing there to represent a real choice for assisted households.
(c) Compliance with Fair Housing Act and Title VI of the Civil Rights Act of 1964. You must comply with the Fair Housing Act and Title VI of the Civil Rights Act of 1964, and implementing regulations, in determining the location of any replacement housing.
(d) Grantee's Election of Requirements. You may, at your election, separately with regard to each site you propose, comply with the development regulations regarding Site and Neighborhood Standards (24 CFR 941.202 (b)-(d)), or with the Site and Neighborhood Standards contained in this Section.
(e) Replacement housing located on site or in the surrounding neighborhood. Replacement housing under HOPE VI that is located on the site of the existing project or in its surrounding neighborhood will not require independent approval under Site and Neighborhood Standards, since HUD will consider the scope and impact of the proposed revitalization to alleviate severely distressed conditions at the public housing project and its surrounding neighborhood in assessing the application to be funded under this NOFA.
(f) Off-Site Replacement Housing Located Outside of the Surrounding Neighborhood. Unless you demonstrate that there are already significant opportunities in the metropolitan area for assisted households to choose non-minority neighborhoods (or these opportunities are under development), HOPE VI replacement housing not covered by Section (e) above may not be located in an area of minority concentration (as defined in paragraph (g) below) without the prior approval of HUD. Such approval may be granted if you demonstrate to the satisfaction of HUD that:
(i) You have made determined and good faith efforts, and found it impossible with the resources available, to acquire an appropriate site(s) in an area not of minority concentration, or
(ii) The replacement housing, taking into consideration both the CSS activities or other revitalizing activities included in the Revitalization Plan, and any other revitalization activities in operation or firmly planned, will contribute to the stabilization or improvement of the neighborhood in which it is located, by addressing any serious deficits in services, safety, economic opportunity, educational opportunity, and housing stock.
(g) Area of Minority Concentration. The term “area of minority concentration” is any neighborhood in which:
(i) The percentage of households in a particular racial or ethnic minority group is at least 20 points higher than the percentage of that particular minority group for the housing market area;
(ii) The neighborhood's total percentage minority is at least 20 points higher than the total percentage of all minorities for the MSA as a whole; or.
(iii) In the case of a metropolitan area, the neighborhood's total percentage of minority persons exceeds 50 percent of its population.
(4) Affirmatively Furthering Fair Housing. Section 808(e)(5) of the Fair Housing Act requires HUD to affirmatively further fair housing. HUD requires the same of its grant recipients. If you are a successful applicant, you will have a duty to affirmatively further fair housing opportunities for classes protected under the Fair Housing Act. Protected classes are:
(a) Race;
(b) Color;
(c) National origin;
(d) Religion;
(e) Sex;
(f) Disability; and
(g) Familial status.
(1) Fair Housing—2 Points.
(a) You will receive 2 Points if your application specifically describes:
(i) Your efforts to attract families from all segments of the population on a non-discriminatory basis and with a broad spectrum of incomes to the revitalized site through intensive affirmative marketing efforts and how these efforts contribute to the deconcentration of low-income neighborhoods;
(ii) Your efforts to target your marketing and outreach activities to those persons and groups least likely to know about these housing opportunities, in order to promote housing choice and opportunity throughout your jurisdiction and contribute to the deconcentration of both minority and low-income neighborhoods. In your application, you must describe how your outreach and marketing efforts will reach out to persons of different races and ethnic groups, families with or without children, persons with disabilities and able-bodied persons, and the elderly; and
(iii) The specific steps you plan to take through your proposed activities to affirmatively further fair housing. These steps can include, but are not limited to:
(A) Addressing impediments to fair housing choice relating to your operations;
(B) Working with local jurisdictions to implement their initiatives to affirmatively further fair housing;
(C) Implementing, in accordance with Departmental guidance, relocation plans that result in increased housing choice and opportunity for residents affected by HOPE VI revitalization activities funded under this NOFA;
(D) Implementing admissions and occupancy policies that are nondiscriminatory and help reduce racial and national origin concentrations; and
(E) Initiating other steps to remedy discrimination in housing and promote fair housing rights and fair housing choice.
(b) You will receive 1 Point if you address all of the above issues only in a general way.
(c) You will receive 0 Points if you do not address all of the above issues, or if there is insufficient information to rate this factor.
(2) Economic Opportunities for Low- and Very Low-Income Persons (Section 3)—1 Point.
(a) HOPE VI grantees must comply with section 3 of the Housing and Urban Development Act of 1968 (12 U.S.C. 1701u) (Economic Opportunities for Low- and Very Low-Income Persons in Connection with assisted Projects) and its implementing regulations at 24 CFR part 135. Information about Section 3 can be found at HUD's section 3 Web site at
(b) You will receive 1 Point if you describe a feasible plan to implement Section 3 that not only meets the minimum requirements described in Section (a) above but also exceeds those requirements. Your plan must include your goals by age group, types of jobs and other opportunities to be provided, and plans for tracking and evaluation. Section 3 firms must be in place quickly so that residents are trained in time to take advantage of employment opportunities such as jobs and other contractual opportunities in the pre-development, demolition, and construction phases of the revitalization. Your section 3 plan must demonstrate that you will, to the greatest extent feasible, direct training, employment and other economic opportunities to:
(i) Low- and very low-income persons, particularly those who are recipients of government assistance for housing, and
(ii) Business concerns which provide economic opportunities to low- and very low-income persons.
(c) You will receive 0 Points if your plan to implement Section 3 does not meet the standards listed in Section (b) above, or if there is inadequate information in your application to rate this factor.
Your proposed unit mix must be designed to achieve a well functioning community on the revitalized site. While it is up to you to determine the unit mix that is appropriate for your site, it is essential that this unit mix include a sufficient amount of public housing rental units. Reducing concentration in this context does not necessarily mean reducing density of housing units; a well-functioning, mixed-income housing community may actually have a higher density of units, but with a unit mix appropriate for the site's market conditions. For purposes of this section, “public housing rental units” mean rental units under the ACC. Homeownership units and lease-purchase units would not be counted. Units sold under section 32 are not considered as public housing rental units for this section.
(1) You will receive 3 Points if your application describes a unit mix that is more than 35 percent or more public housing rental units.
(2) You will receive 2 Points if your application describes a unit mix that is between 25 and 34 percent public housing rental units.
(3) You will receive 1 Point if your application describes a unit mix that is between 15 and 24 percent public housing rental units.
(4) You will receive 0 Points if your application describes a unit mix that is 14 percent or less, or if there is inadequate information in your application to rate this factor.
(1) Although not required, you are encouraged to consider development of replacement housing in locations other than the original severely distressed site (
(2) Although it is acknowledged that off-site housing is not appropriate in some communities, if you do not propose to include off-site housing in your Revitalization Plan, you are not eligible to receive this Point.
(3) If you propose an off-site housing component in your application, you must be sure to include that component when you discuss other components (
(4)
(5)
If you include market rate housing in your Revitalization Plan, you must demonstrate that there is a demand for the housing units of the type, number, and size proposed in the location you have chosen. In your application you must provide a preliminary market assessment letter prepared by an independent, third party, credentialed market research firm, or professional that describes its assessment of the demand and associated pricing structure for the proposed residential units and any community facilities, economic development, and retail structures, based on the market and economic conditions of the project area. If, after the cure period, this letter is not included in your application, it will be ineligible for funding.
The Department has placed the highest priority on increasing homeownership opportunities for low- and moderate-income persons, persons with disabilities, the elderly, minorities, and families where English may be a
(1) Your application will receive 4 Points if you propose and describe a feasible, well-defined plan for homeownership. In your application, you will describe all of the following:
(a) The purpose of your homeownership program;
(b) The number of units planned and their location(s);
(c) A description and justification of the families that will be targeted for the program;
(d) The proposed source of your construction and permanent financing of the units; and
(e) A description of the homeownership counseling you will provide to prospective families, including such subjects as the homeownership process, housing in non-impacted areas, credit repair, budgeting, and home maintenance.
(2) You will receive 2 Points for this factor if you address in your description some but not all of the items listed under (1).
(3) You will receive 0 Points for this factor if you do not propose to include homeownership units in your Revitalization Plan, your proposed program is not feasible and/or well defined, or there is inadequate information in your application to rate this factor.
If you are proposing to use off-site parcels of land for housing development or other uses that are currently zoned for a purpose different than the one proposed in your revitalization plan, your application must include a certification from the appropriate local official documenting that all required zoning approvals have been secured for such parcels, and/or the actual zoning approval document for the parcel(s). For example, if you propose to develop housing on land that is currently zoned as parkland or industrial land, you must provide evidence in the application that the zoning change has been secured to permit housing development.
In accordance with section 24(e)(1) of the 1937 Act, each application must demonstrate the appropriateness of the proposal in the context of the local housing market relative to other alternatives. You must briefly discuss other possible alternatives to your proposal and explain why your plan is more appropriate. This is a statutory requirement and an application threshold. Any deficiencies in your narrative may not be corrected after the application is submitted. Examples of alternative proposals may include:
(1) Rebuilding or rehabilitating an existing project or units at an off-site location that is in an isolated, non-residential, or otherwise inappropriate area;
(2) Proposing a range of incomes, housing types (rental, homeownership, market rate, public housing, townhouse, detached house, etc.), or costs which cannot be supported by a market analysis; and/or
(3) Proposing to use the land in a manner that is contrary to the goals of your agency.
(1) Quality and Consistency of the Application—2 Points.
Your application may receive between 0 and 2 points for its demonstration of quality and consistency. The information and strategies described in your application must be well organized, coherent, and internally consistent. Numbers and statistics in your narratives must be consistent with the information provided in the attachments. Also, the physical and CSS aspects of the application must be compatible and coordinated with each other. Pay particular attention to the data provided for:
(a) You will receive 2 points if your application demonstrates a high level of quality and consistency;
(b) You will receive 1 point if your application demonstrates a moderate level of quality and consistency;
(c) You will receive 0 points if your application fails to demonstrate an acceptable level of quality and consistency;
(2)
(i) Appropriateness and suitability, in the context of the community, market conditions, and other revitalization options, in accordance with XII(A);
(ii) Marketability, in the context of local conditions;
(iii) Financial feasibility, as demonstrated in the financial structure(s) proposed in the application.
(b) You will receive 1 Point if your application only moderately demonstrates the criteria of (2)(a)(i)-(iii) above.
(c) You will receive 0 Points if your application does not demonstrate the criteria of (2)(a)(i)-(iii) above.
(3)
(i) Result in a revitalized site that will enhance the neighborhood in which the project is located;
(ii) Spur outside investment into the surrounding community;
(iii) Enhance economic opportunities for residents; and
(iv) Remove an impediment to continued redevelopment or start a community-wide revitalization process.
(b) You will receive 1 Point if your application demonstrates that your Revitalization Plan will have only a moderate effect on activities in the surrounding community, as described in (a)(i)-(iv) above.
(c) You will receive 0 Points if your application does not demonstrate that your Revitalization Plan will have an effect on the surrounding community, as described in (a)(i)-(iv) above, or if there is inadequate information in your application to rate this factor.
(4)
(a) You will receive 2 Points if the targeted severely distressed public housing project is completely vacant.
(b) You will receive 2 Points if the targeted severely distressed public housing site is cleared.
(c) You will receive 1 Point if a Master Development Agreement has been developed and is ready to submit to HUD.
(d) You will receive 1 Point if your preliminary site design is complete.
(e) You will receive 1 Point if you have held 5 or more public planning sessions leading to resident acceptance of the Plan.
(5)
HUD encourages you to select a design team that is committed to a process in which residents, including young people and seniors, the broader community, and other stakeholders participate in designing the new community.
Your proposed site plan, new units, and other buildings must be designed to be compatible with and enrich the surrounding neighborhood. Local architecture and design elements and amenities should be incorporated into the new or rehabilitated homes so that the revitalized sites and structures will blend into the broader community and appeal to the market segments for which they are intended. Housing, community facilities, and economic development space must be well integrated. You must select members of your Team who have the ability to meet these requirements.
(a) You will receive 3 Points if your proposed site plan, new dwelling units, and buildings demonstrate that:
(i) You have proposed a site plan that is compact, pedestrian-friendly, with an interconnected network of streets and public open space;
(ii) Your proposed housing, community facilities, and economic development facilities are thoroughly integrated into the community through the use of local architectural tradition, building scale, grouping of buildings, and design elements; and
(iii) Your plan proposes appropriate enhancements of the natural environment.
(b) You will receive 1 Point if your proposed site plan, new dwelling units, and buildings demonstrate design that adequately addresses the elements above.
(c) You will receive 0 Points if your proposed design is perfunctory or otherwise does not address the above elements. You will also receive 0 Points if there is inadequate information in the application to rate this factor.
(6)
(a) You will receive 3 Points if your application includes a letter(s) from an institution(s) of higher learning, foundations, or other organization that specializes in research and evaluation that provides a commitment to work with you to evaluate your program and describes its proposed approach to carry out the evaluation if your application is selected for funding. The letter must provide the extent of the commitment and involvement, the extent to which you and the local institution of higher learning will cooperate, and the proposed approach. The commitment letter must address all of the following areas for evaluation:
(i) The impact of your HOPE VI effort on the lives of the residents;
(ii) The nature and extent of economic development generated in the community;
(iii) The effect of the revitalization effort on the surrounding community, including spillover revitalization activities, property values, etc.; and
(iv) Your success at integrating the physical and CSS aspects of your strategy.
(b) You will receive 0 Points if your application does not include a commitment letter that conforms to the specifications in paragraph (b) above.
(1)
(b) Each HOPE VI Revitalization application must contain no more than 100 pages of narrative exhibits. Any pages after the first 100 pages of narrative exhibits will not be reviewed. Although submitting pages in excess of the page limitations will not disqualify an application, HUD will not consider the information on any excess pages, which may result in a lower score or failure of a threshold. Text submitted at the request of HUD to correct a technical deficiency will not be counted in the 100 page limit.
(2)
(b) Each HOPE VI Revitalization application must contain no more than 125 pages of attachments. Any pages after the first 125 pages of attachments will not be considered. Although submitting pages in excess of the page limit will not disqualify an application, HUD will not consider the information on any excess pages, which may result in a lower score or failure to meet a threshold.
(3)
(a) Additional pages submitted at the request of HUD in response to a technical deficiency.
(b) Attachments that provide documentation of commitments from resource providers or CSS providers.
(c) Attachments that provide documentation of site control and site acquisition in accordance with Section XI(B)(4) and (5).
(d) Narratives and Attachments, as relevant, required to be submitted only by existing HOPE VI Revitalization Grantees in accordance with Sections IV(A)(3) and IV(B)(2) of this NOFA (Capacity).
(e) Information required of MTW applicants only.
(4)
To speed the processing of your application, you are asked to follow these instructions when preparing your application:
(1) Double space your narrative pages. Single spaced pages will be counted as two pages.
(2) Use 8
(3) All margins should be 1 inch, but no smaller than
(4) Use at least an 11 Point font.
(5) Any pages marked with numbers and letters (
(6) If a Section is not applicable, omit it; do not insert a page marked n/a.
(7) Mark each Exhibit and Attachment with an appropriate tab. No material on the tab will be considered for review purposes, although pictures are allowed.
(8) No more than one page of text may be placed on one sheet of paper;
(9) Do not format your narrative in columns. Pages with text in columns will be counted as two pages.
(10) The applications (copy and original) should be packaged in a 3-ring binder.
Unless otherwise indicated, the Executive Director of the applicant PHA, or his or her designate, must sign each form or certification, whether part of an Attachment or a Standard Certification. Signatures need not be original in the copy.
(1) HUD's selection process is designed to ensure that HOPE VI Revitalization grants are awarded to eligible PHAs with the most meritorious applications.
(2) HUD will only rate HOPE VI Revitalization applications that have met the thresholds described in this HOPE VI NOFA.
(1) Application Screening. HUD will screen each application to determine if it meets the threshold criteria listed in Section II of this NOFA.
(2) HUD will consider the information you submit by the application due date. After the application due date, HUD may not, consistent with its regulations in 24 CFR part 4, subpart B, consider any unsolicited information that you or any third party may want to provide.
(3) In order not to unreasonably exclude applications from being rated and ranked, HUD may contact applicants to ensure proper completion of the application on a uniform basis for all applicants. After your application has been screened, HUD may contact you to clarify an item in your application or to give you an opportunity to correct a technical deficiency. HUD may not seek clarification of items or responses that would improve the substantive quality of your response to any rating factor. Examples of curable technical deficiencies include your failure to include a required certification or sign a document. If HUD identifies a technical deficiency, it will notify you by fax of the clarification or deficiency. You must submit information to cure the deficiency to HUD within 14 calendar days from the date of HUD notification. (If the due date falls on a Saturday, Sunday, or Federal holiday, your correction must be received by HUD on the following business day.) If the deficiency is not corrected within this time period, HUD will reject the application as incomplete and it will not be considered for funding.
(4) In order to evaluate Thresholds, HUD may also use internal information sources that will provide information regarding audit findings, the status of existing HOPE VI Revitalization grants obligation of Capital Funds, and other pertinent information. HUD will not consider external sources such as newspaper articles and letters to evaluate applications unless they are submitted in your application.
(5) Applications that do not meet every threshold will be deemed ineligible for funding and will not be rated.
(1) Rating.
(a) HUD will preliminarily rate each eligible application, SOLELY on the basis of the rating factors described in this HOPE VI NOFA.
(b) When rating applications, HUD reviewers will not use any information included in any HOPE VI application submitted in a prior year.
(c) HUD will assign a preliminary score for each rating factor and a preliminary total score for each eligible application.
(d) The maximum number of Points for each Revitalization application is 108.
(2) Ranking.
(a) After preliminary review, applications will be ranked in score order.
(b) Applications will be deemed “competitive” if they have a preliminary score of 85 or above.
(c) Applications that do not have a preliminary score of at least 85 will not receive a final score and will not be eligible for funding.
(1) A Final Review Panel made up of HUD staff will:
(a) Assess each competitive application, as defined in Section XIV(C) above;
(b) Assign the final score; and
(c) Recommend for selection the most highly-rated competitive applications, subject to the amount of available funding, in accordance with the allocation of funds described in Section II of the General Section of this NOFA.
(2) HUD reserves the right to make reductions in funding to delete ineligible items, with the exception of the prohibition to request funds for units that do not meet the requirements of replacement housing, in accordance with Section III(D)(8) of this NOFA.
(3) In accordance with the FY 2003 HOPE VI appropriation, HUD may not use HOPE VI funds to grant competitive advantage in awards to settle litigation or pay judgments.
If two or more applications have the same score and there are insufficient funds to select all of them, HUD will select for funding the application(s) with the highest score for Rating Factor XII, Overall Quality of the Plan. If a tie still remains, HUD will select for funding the application(s) with the highest score for Capacity, Rating Factor IV. HUD will select further tied applications with the highest score for Need, Rating Factor V.
If funds remain after all eligible HOPE VI Revitalization grant applications are funded and the amount remaining is inadequate to feasibly fund the next eligible Revitalization application, HUD reserves the right to:
(1) Reallocate unused funds to fund or supplement the next eligible HOPE VI Demolition grant application(s);
(2) Reallocate unused funds to the amount available for Housing Choice Voucher assistance, if necessary; and/or
(3) Carry over unused funds to the next fiscal year.
(A) Notification of Funding Decisions. The HUD Reform Act prohibits HUD from notifying you as to whether or not you have been selected to receive a Revitalization grant until it has announced all HOPE VI Revitalization grant recipients. If your Revitalization application has been found to be ineligible or if it did not receive enough Points to be funded, you will not be notified until the successful applicants have been notified. HUD will provide written notification to all HOPE VI applicants, whether or not they have been selected for funding.
(B) Applicant Debriefing. Each applicant will be provided a copy of the total score their application received, including the score received for each rating factor.
(C) Environmental Review. HUD notification that you have been selected to receive a HOPE VI grant constitutes only preliminary approval. Grant funds may not be released until the responsible entity completes an environmental review and you submit and obtain HUD approval of a request for release of funds and the responsible entity's environmental certification in accordance with Section XVII of this NOFA.
(D) Revitalization Grant Agreement. When you are selected to receive a Revitalization grant, HUD will send you a HOPE VI Revitalization Grant Agreement, which constitutes the contract between you and HUD to carry out and fund public housing revitalization activities. Both you and HUD will sign the cover sheet of the Grant Agreement. It is effective on the date of HUD's signature. The Grant Agreement differs from year to year. Past Revitalization Grant Agreements can be found on the HOPE VI Web site at
(E) HOPE VI Endowment Trust Addendum to the Grant Agreement. This document must be executed between the Grantee and HUD in order for the Grantee to use CSS funds in accordance with Section VIII(A)(3) of this NOFA.
(F) Revitalization Plan. After HUD conducts a post-award review of your application and makes a visit to the site, you will be required to submit components of your Revitalization Plan to HUD, as provided in the HOPE VI Revitalization Grant Agreement. These components include, but are not limited to:
(1) Supplemental Submissions, including a HOPE VI Program Budget;
(2) A Community and Supportive Services work plan, in accordance with guidance provided by HUD;
(3) A standard or mixed-finance development proposal, as applicable;
(4) A demolition and/or disposition application, as applicable; and
(5) A homeownership proposal, as applicable.
(A) General Section Requirements. See the General Section of this NOFA for other Grant Implementation and Additional Governmental Requirements that you must implement.
(B) Quarterly Report. If you are selected for funding, you must submit a Quarterly Report to HUD.
(1) HUD will provide training and technical assistance on the filing and submitting of Quarterly Reports.
(2) Filing of Quarterly Reports is mandatory for all Grantees, and failure to do so within the required time frame will result in suspension of grant funds until the report is filed and approved by HUD.
(3) Grantees will be held to the milestones that are reported on the Quarterly Report Administrative and Compliance Checkpoints Report, as approved by HUD.
(4) Grantees must also report obligations and expenditures in LOCCS, or its successor system, on a quarterly basis.
(C) Timeliness of Construction. Grantees must proceed within a reasonable time frame, as indicated below. In determining reasonableness of such time frame, HUD will take into consideration those delays caused by factors beyond your control. These timeframes must be reflected in the form of a program schedule, in accordance with the threshold requirement at Section IV(C).
(1) Grantees must submit Supplemental Submissions within 90 days from the date of HUD's written request.
(2) Grantees must submit CSS work plans within 90 days from the execution of the Grant Agreement.
(3) All other required components of the Revitalization Plan and any other submissions not mentioned above must be submitted in accordance with the Quarterly Report Administrative and Compliance Checkpoints Report, as approved by HUD.
(4) Grantees must start construction within 12 months from the date of HUD's approval of the Supplemental Submissions as requested by HUD after grant award. This time period may not exceed 18 months from the date the Grant Agreement is executed.
(5) Grantees must submit the development proposal for the first phase of construction within 12 months of grant award. The program schedule must indicate the date on which the development proposal for each phase of the revitalization plan will be submitted to HUD.
(6) The closing of the first phase must take place within 15 months of grant award.
(7) Grantees must complete construction within 48 months from the date of HUD's approval of your Supplemental Submissions. This time period for completion may not exceed 54 months from the date the Grant Agreement is executed.
(8) In accordance with section 24(i) of the 1937 Act, if a Grantee does not proceed within a reasonable time frame, as described in Sections (B)(1) through (7) above, HUD shall withdraw any unobligated grant amounts. HUD shall redistribute any withdrawn amounts to one or more other applicants eligible for HOPE VI assistance or to one or more other entities capable of proceeding expeditiously in the same locality in carrying out the Revitalization Plan of the original Grantee.
(9) 31 U.S.C. 1552. In accordance with this statute, all FY 2003 HOPE VI funds must be expended by September 30, 2009. Any funds that are not expended by that date will be cancelled and recaptured by the Treasury, and thereafter will not be available for obligation or expenditure for any purpose.
(D) Building Standards. (1) Building Codes. All activities that include construction, rehabilitation, lead-based paint removal, and related activities must meet or exceed local building codes. You are encouraged to read the policy statement and Final Report of the HUD Review of Model Building Codes that identifies the variances between the design and construction requirements of the Fair Housing Act and several model building codes. That report can be found on the HUD Web site at
(2) Deconstruction. HUD encourages you to design programs that incorporate sustainable construction and demolition practices, such as the dismantling or “deconstruction” of public housing units, recycling demolition debris, and reusing salvage materials in new construction. “A Guide to Deconstruction” can be found at
(3) PATH. HUD encourages you to use PATH technologies in the construction and delivery of replacement housing. PATH (Partnership for Advancing Technology in Housing) is a voluntary initiative that seeks to accelerate the creation and widespread use of
(a) PATH's goal is to achieve dramatic improvement in the quality of American housing by the year 2010. PATH encourages leaders from the home building, product manufacturing, insurance and financial industries, and representatives from federal agencies dealing with housing issues to work together to spur housing design and construction innovations. PATH will provide technical support in design and cost analysis of advanced technologies to be incorporated in project construction.
(b) Applicants are encouraged to employ PATH technologies to exceed prevailing national building practices by:
(i) Reducing costs;
(ii) Improving durability;
(iii) Increasing energy efficiency;
(iv) Improving disaster resistance; and
(v) Reducing environmental impact.
(c) More information, the list of technologies, latest PATH Newsletter, results from field demonstrations, and PATH projects can be found at
(4) Energy Efficiency.
(a) New construction must comply with the latest HUD-adopted Model Energy Code issued by the Council of American Building Officials.
(b) HUD encourages you to set higher standards for energy and water efficiency in HOPE VI new construction, which can achieve utility savings of 30 to 50 percent with minimal extra cost.
(c) You are encouraged to negotiate with your local utility company to obtain a lower rate. Utility rates and tax laws vary widely throughout the country. In some areas, PHAs are exempt or partially exempt from utility rate taxes. Some PHAs have paid unnecessarily high utility rates because they were billed at an incorrect rate classification.
(d) Local utility companies may be able to provide grant funds to assist in energy efficiency activities. States may also have programs that will assist in energy efficient building techniques.
(e) You must use new technologies that will conserve energy and decrease operating costs where cost effective. Examples of such technologies include:
(i) Geothermal heating and cooling;
(ii) Placement of buildings and size of eaves that take advantage of the directions of the sun throughout the year;
(iii) Photovoltaics (technologies that convert light into electrical power);
(iv) Extra insulation;
(v) Smart windows; and
(vi) Energy Star appliances.
(f) HUD's Energy Web site is located at
(E) Accessible Technology. The Rehabilitation Act Amendments of 1998 apply to all electronic information technology (EIT) used by a grantee for transmitting, receiving, using, or storing information to carry out the responsibilities of any federal grant awarded. It includes, but is not limited to, computers (hardware, software, word processing, e-mail, and web pages) facsimile machines, copiers, and telephones. When developing, procuring, maintaining or using EIT, grantees must ensure that the EIT allows:
(1) Employees with disabilities to have access to and use information and data that is comparable to the access and use of data by employees who do not have disabilities; and
(2) Members of the public with disabilities seeking information or service from a grantee must have access to and use of information and data that is comparable to the access and use of data by members of the public who do not have disabilities. If these standards impose an undue burden on a grantee, they may provide an alternative means to allow the individual to use the information and data. No grantee will be required to provide information services to a person with disabilities at any location other than the location at which the information services are generally provided.
(A) Environmental Review. (1) Environmental Review Requirements for the HOPE VI Program. Please see Section VII of the General Section of the NOFA for environmental review requirements for HOPE VI Grants.
(2) Additional Environmental Review Requirements for HOPE VI Revitalization Grants. (a) If the environmental review is completed before HUD approval of the HOPE VI Supplemental Submissions and you have submitted your Request for Release of Funds (RROF), the Supplemental Submissions approval letter shall state any conditions, modifications, prohibitions, etc. as a result of the environmental review, including the need for any further environmental review. You must carry out any mitigating/remedial measures required by HUD, or select an alternate eligible property, if permitted by HUD. If HUD does not approve the remediation plan and a fully funded contract with a qualified contractor licensed to perform the required type of remediation is not executed, HUD reserves the right to determine that the grant is in default.
(b) If the environmental review is not completed and/or you have not submitted the RROF before HUD approval of the Supplemental Submissions, the letter approving the Supplemental Submissions will instruct you to refrain from undertaking, obligating, or expending funds on physical activities or other choice-limiting actions, until HUD approves your RROF and the related certification of the responsible entity (or HUD has completed the environmental review). The Supplemental Submissions approval letter also will advise you that the approved Supplemental Submissions may be modified on the basis of the results of the environmental review.
(B) There must not be any environmental or public policy factors such as sewer moratoriums that would preclude development in the requested locality. Applicants will certify to this when signing the HOPE VI Revitalization Grant Application Certifications.
(C) Flood Insurance. In accordance with the Flood Disaster Protection Act of 1973 (42 U.S.C. 4001-4128), your application may not propose to provide financial assistance for acquisition or construction (including rehabilitation) of properties located in an area identified by the Federal Emergency Management Agency (FEMA) as having special flood hazards, unless:
(1) The community in which the area is situated is participating in the National Flood Insurance program (see 44 CFR parts 59 through 79), or less than one year has passed since FEMA notification regarding such hazards; and
(2) Where the community is participating in the National Flood Insurance Program, flood insurance is obtained as a condition of execution of a Grant Agreement and approval of any subsequent demolition or disposition application.
(D) Coastal Barrier Resources Act. In accordance with the Coastal Barrier Resources Act (16 U.S.C. 3501), your application may not target properties in the Coastal Barrier Resources System.
Acting on behalf of the Board of Commissioners of the Housing Authority listed below, as its Chairman, I approve the submission of the HOPE VI Revitalization application, of which this document is a part, and make the following certifications to and
1. The public housing project or building in a project targeted in this HOPE VI Revitalization grant application meets the definition of severe distress in accordance with section 24(j)(2) of the United States Housing Act of 1937 (“1937 Act”).
2. The PHA has not received assistance from the Federal government, State, or unit of local government, or any agency or instrumentality, for the specific activities for which funding is requested in the HOPE VI Revitalization application.
3. The PHA does not have any litigation pending which would preclude timely startup of activities.
4. The PHA is in full compliance with any desegregation or other court order related to Fair Housing (
5. The PHA has returned any excess advances received during development or modernization, or amounts determined by HUD to constitute excess financing based on a HUD-approved Actual Development Cost Certificate (ADCC) or Actual Modernization Cost Certificate (AMCC), or that HUD has approved a payback plan.
6. There are no environmental factors, such as sewer moratoriums, precluding development in the requested locality.
7. In accordance with the Flood Disaster Protection Act of 1973 (42 U.S.C. 4001-4128), the property targeted for acquisition or construction (including rehabilitation) is not located in an area identified by the Federal Emergency Management Agency (FEMA) as having special flood hazards, unless:
(a) The community in which the area is situated is participating in the National Flood Insurance program (see 44 CFR parts 59 through 79), or less than one year has passed since FEMA notification regarding such hazards; and
(b) Where the community is participating in the National Flood Insurance Program, flood insurance is obtained as a condition of execution of a Grant Agreement and approval of any subsequent demolition or disposition application.
8. The application does not target properties in the Coastal Barrier Resources System, in accordance with the Coastal Barrier Resources Act (16 U.S.C. 3501).
If selected for HOPE VI Revitalization funding:
9. The PHA will comply with all policies, procedures, and requirements prescribed by HUD for the HOPE VI Program, including the implementation of HOPE VI revitalization activities, in a timely, efficient, and economical manner.
10. The PHA will not receive assistance from the federal government, state, or unit of local government, or any agency or instrumentality, for the specific activities funded by the HOPE VI Revitalization grant. The PHA has established controls to ensure that any activity funded by the HOPE VI Revitalization grant is not also funded by any other HUD program, thereby preventing duplicate funding of any activity.
11. The PHA will not provide to any development more assistance under the HOPE VI Revitalization grant than is necessary to provide affordable housing after taking into account other governmental assistance provided.
12. The PHA will supplement the aggregate amount of the HOPE VI Revitalization grant with funds from sources other than HOPE VI in an amount not less than 5 percent of the amount of the HOPE VI grant.
13. In addition to supplemental amounts provided in accordance with Certification 12 above, if the PHA uses more than 5 percent of the HOPE VI grant for the community and supportive services component, it will provide supplemental funds from sources other than HOPE VI, dollar for dollar, for the amount over 5 percent of the grant used for the community and supportive services component.
14. Disposition activity under the grant will be conducted in accordance with section 18 of the 1937 Act.
15. The PHA will carry out acquisition of land, or acquisition of off-site units with or without rehabilitation to be used as public housing, in accordance with 24 CFR part 941, or successor part.
16. The PHA will carry out major rehabilitation and other physical improvements of housing and non-dwelling facilities in accordance with 24 CFR 968.11 2(b), (d), (e), and (g)-(o), 24 CFR 968.130, and 24 CFR 968.135(b) and (d) or successor part.
17. The PHA will carry out construction of public housing rental replacement housing, both on-site and off-site, and community facilities, in accordance with 24 CFR part 941 or successor part, including mixed-finance development in accordance with subpart F.
18. The PHA will carry out replacement homeownership activities in conformance with the requirements of section 24(d)(1)(J), which may include a homeownership proposal under section 32 of the 1937 Act, the income limitations, and other applicable homeownership requirements of the 1937 Act.
19. The PHA will administer and operate public housing rental units in accordance with all requirements applicable to public housing, including the 1937 Act, HUD's implementing regulations thereunder, the ACC, the Mixed-Finance ACC Amendment (if applicable), and all other applicable Federal statutory, Executive Order, and regulatory requirements as such requirements may be amended from time to time.
20. The PHA will comply with:
(a) The Fair Housing Act (42 U.S.C. 3601-19) and regulations at 24 CFR part 100;
(b) The prohibitions against discrimination on the basis of disability under section 504 of the Rehabilitation Act of 1973 (29 U.S.C. 794) and regulations at 24 CFR part 8);
(c) Title II of the Americans with Disabilities Act (42 U.S.C 12101
(d) The Architectural Barriers Act of 1968, as amended (42 U.S.C. 4151) and regulations at 24 CFR part 40).
(e) Title VI of the Civil Rights Act of 1964 (42 U.S.C. 2000d) and regulations at 24 CFR part 1.
(f) Executive Order 11063, issued November 20, 1962.
(g) The Age Discrimination Act of 1975 and the regulations at 24 CFR part 146.
21. The PHA will comply with regulations at 24 CFR 85.36(e) which require recipients of assistance (grantees and subgrantees) to take all necessary affirmative steps in contracting for purchase of goods or services to assure that small businesses, small disadvantaged businesses, minority firms, women's business enterprises, and labor surplus area firms are used when possible.
22. The PHA will comply with the requirements of section 3 of the Housing and Urban Development Act of 1968 (12 U.S.C. 1701u) (Employment Opportunities for Lower Income Persons in Connection with Assisted Projects) and its implementing regulation at 24 CFR part 135, including the reporting requirements of subpart E.
23. The PHA will comply with Davis-Bacon or HUD-determined prevailing wage rate requirements to the extent required under section 12 of the 1937 Act.
24. As applicable, the PHA will comply with the relocation assistance and real property acquisition requirements of the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970 and government-wide implementing regulations at 49 CFR part 24; relocation regulations at 24 CFR 968.108 or successor regulation (rehabilitation, temporary relocation); 24 CFR 941.207 or successor regulation (acquisition); section 18 of the 1937 Act as amended (disposition); and CPD Notice 02-08.
25. The PHA will comply with all HOPE VI requirements for reporting and providing access to records.
26. The PHA will comply with the Lead-Based Paint Poisoning Prevention Act (42 U.S.C. 4821,
27. The PHA will comply with the policies, guidelines, and requirements of OMB Circular A-87 (Cost Principles Applicable to Grants, Contracts, and Other Agreements with State and Local Governments).
28. The PHA will comply with 24 CFR part 85 (Administrative Requirements for Grants and Cooperative Agreements to State, Local and Federally Recognized Indian Tribal Governments), as modified by 24 CFR 941 or successor part, subpart F, relating to the procurement of partners in mixed finance developments.
29. The PHA will keep records in accordance with 24 CFR 85.20 that facilitate an effective audit to determine compliance with program requirements, and comply with the audit requirements of 24 CFR 85.26.
30. The PHA will start construction within 12 months from the date of HUD's approval of the Supplemental Submissions as requested by HUD after grant award. This time period may not exceed 18 months from the date the Grant Agreement is executed.
31. The PHA will submit the development proposal for the first phase of construction within 12 months of grant award.
32. The PHA will complete construction within 48 months from the date of HUD's approval of the Supplemental Submissions. This time period for completion may not exceed 54 months from the date the Grant Agreement is executed.
33. All activities that include construction, rehabilitation, lead-based paint removal, and related activities will meet or exceed local building codes. New construction will comply with the latest HUD-adopted Model Energy Code issued by the Council of American Building Officials.
The Demolition Grants Section of the HOPE VI NOFA contains information that applies to the HOPE VI Demolition Program. Unless otherwise noted, citations refer to the HOPE VI Demolition Grants Section.
(A) Each required element of a HOPE VI Demolition grant application is a threshold requirement. Your application will not be eligible for funding unless each requirement listed in this NOFA is included in your application. HUD will give you the opportunity to submit any missing information up to the application deadline date, as provided in Section III(B) of the General Section.
(A) Relocation for residents displaced as a result of the demolition of the project. This includes reasonable moving expenses as well as mobility counseling and other services to help displaced residents relocate. See Section V of this NOFA for relocation requirements.
(B) Demolition of dwelling units in buildings, in whole or in part, including the abatement of environmentally hazardous materials such as asbestos, in accordance with section 18 of the 1937 Act as amended.
(C) Demolition of nondwelling structures, if such demolition is directly related to the demolition of severely distressed dwelling units to be demolished with funds from the HOPE VI Demolition Grant.
(D) Restoration of the site to a “greenfield,” a clean site by removing all demolished materials, filling in the site, and establishing a lawn. No additional improvements, such as constructing new curbs and gutters, installing playground equipment, installing permanent fences, or planting gardens, may be paid for with HOPE VI Demolition grant funds.
(E) In the case of partial demolition of a site, minimal site restoration after demolition and subsequent site improvements to benefit the remaining portion of the project in order to provide project accessibility or to make the site more marketable.
(F) Reasonable costs for administration, planning, technical assistance, and fees and costs that are deemed to be incremental costs of carrying out the demolition as specifically approved by HUD.
(A)
(2) You may target units in only one public housing project (i.e., units that have the same project number) per application.
(3) You may submit more than one application targeting units in a single housing project.
(4) You may target as many or as few units per application as you wish, up to the overall 2,500 unit maximum.
(B)
(2)
(3)
(a) You may request reasonable amounts to pay for the demolition of significant nondwelling structures related to the demolition of dwelling units. These costs must be included as part of an application for funding of demolition of public housing units; you may not apply for them separately. Examples of such structures include community centers, heating plants, playgrounds, and management offices. These facilities must be under the Annual Contributions Contract.
(b) Such costs must be justified and verified by an engineer or architect licensed by his or her State licensing board who is not an employee of the housing authority or the city. The engineer or architect must provide his or her license number and State of registration. A Nondwelling Structures Cost Certification is included in the HOPE VI Demolition Grant Application.
(C) HUD recognizes that the HOPE VI grant may not cover the total costs of relocation, abatement, demolition, and site restoration in all cases and that you may have to provide additional funding from other sources.
(D) You may not use HOPE VI Demolition Grant funds to pay for any demolition or related activities carried out before the date of the letter announcing the award of the HOPE VI Demolition Grant.
(A)
(1)
(a) They are included in a HUD-approved Section 202 Mandatory Conversion Plan. The Section 202 Conversion Plan must be approved by HUD on or before the HOPE VI Demolition grant application due date;
(b)(i) They are included in a Section 202 Mandatory Conversion Plan that you have submitted to HUD on or before the HOPE VI Demolition grant application deadline date, or
(ii) They are, in HUD's sole determination under section 537(c) of QHWRA, subject to the removal requirements of 24 CFR part 971 and can be expected to be demolished in accordance with the time schedule required by Section VII(B) of this NOFA; or
(c) They are included in a HUD-approved application for demolition that was developed in accordance with section 18 of the 1937 Act, as amended (“section 18 demolition application”).
(B)
(1) Demonstrate to HUD's satisfaction that the severely distressed public housing is sufficiently separated from the remainder of the project of which the building is part to make demolition of the building feasible, and
(2) Demonstrate that the plan for the demolished portion will provide defensible space for the occupants of the remaining building(s). Separations may include a road, berm, catch basin, or other recognized neighborhood distinction.
(C)
(A)
(B)
(1) Relocation as a result of demolition approved by a section 18 demolition application is subject to section 18 of the 1937 Act.
(2) Relocation as a result of demolition approved as part of a Section 202 Mandatory Conversion Plan is subject to the URA.
(C)
(2) No relocation costs incurred before the award of the HOPE VI Grant may be reimbursed.
(A)
(1)
(2)
(a)
(b)
(i) Priority Group 2 applications:
a. Target units included in a Section 202 Mandatory Conversion Plan that you have submitted to HUD on or before the HOPE VI Demolition grant application deadline date, or
b. Target units that, in HUD's sole determination under section 537(c) of QHWRA, are subject to the removal requirements of 24 CFR part 971 and can be expected to be demolished in accordance with the time schedule required by Section VII(B) of this NOFA.
(ii) If you submit a HOPE VI Demolition grant application for units that are targeted in a Section 202 Mandatory Conversion Plan that was submitted under 24 CFR part 971 but not yet approved (Priority Group 2), and HUD subsequently approves the Conversion Plan before the HOPE VI Demolition grant application deadline date, you may revise your application and it will be reclassified as Priority Group 1. HUD will change the original Ordinal to the Ordinal corresponding to the date that the revision was received.
(iii) If you submit a Section 202 Mandatory Conversion Plan but HUD determines that the targeted project does not qualify for conversion under 24 CFR part 971, your HOPE VI Demolition grant application will not be eligible for funding. If you intend to submit a Priority 1 or 2 application, discuss the project with your Field Office to ensure that it qualifies under the standards of 24 CFR part 971.
(c)
(i) HUD must approve your section 18 demolition application on or before the HOPE VI Demolition grant application deadline. You are advised that in order to allow for sufficient time for a new section 18 demolition application to be processed, you should submit your section 18 demolition application to HUD's Special Applications Center (SAC) no later than November 10, 2003. If your section 18 demolition application does not meet the statutory requirements of section 18, including the requirement for HUD Field Office approval of the Interim or PHA Plan as required by 24 CFR part 903, HUD will not approve the section 18 demolition application and your HOPE VI Demolition grant application will not be eligible for funding.
(ii) If you have submitted a section 18 demolition application to the HUD Special Applications Center but it has not yet been approved by HUD when you submit your HOPE VI Demolition grant application, your HOPE VI application will not be considered complete and you will not receive a final Ordinal unless and until your section 18 demolition application is
(iii) If your section 18 demolition application is approved by HUD on February 17, 2004, or February 18, 2004, only, you are not required to submit your approval letter to HUD, and HUD will deem the approval letter to have been submitted in the application. In such a case, if your application is otherwise complete, your Ordinal will be the date that HUD approves your section 18 demolition application.
(iv) If HUD has previously approved your section 18 demolition application but HUD later rescinded the approval, your section 18 demolition application will not be considered approved by HUD, and your HOPE VI Demolition grant application will not be eligible for funding.
(B)
(C)
(2) If HUD determines that an application is not eligible (
(3) If HUD determines that an applicant is eligible but the application is incomplete, within approximately five business days of receipt of the application, HUD will contact the applicant in writing by fax (followed with a hard copy by mail) to request the missing information. Applicants whose applications HUD receives on the same date, and who have missing items, will be notified by HUD of their missing items on the same day to ensure that all applicants have the same number of days to provide the missing information.
This provision means that the nearer to the deadline date you submit your application, the less time you will have to correct any deficiencies, and if HUD receives your application on the deadline date and there is a deficiency, that application will not be eligible for funding. You are advised to submit your application as soon as possible, in the event that HUD identifies a deficiency that you need to correct.
(4) If HUD determines that the information you submit in response to a notification of deficiency is correct and completes the application, HUD will add to the application's Ordinal the number of business days between notification of the deficiency and curing of the deficiency.
(5) If HUD determines that the information submitted does not make the application complete, HUD will notify you of the remaining deficiency. You will have the opportunity to submit information in response to notifications of deficiency until the HOPE VI Demolition grant application due date.
(6) If you do not submit the requested information by the HOPE VI Demolition grant deadline date, your application will be ineligible for funding.
(7) If a deficiency is cured on the same day the deficiency letter is sent, the application will add one Ordinal.
(D)
(1) HUD will fund Priority Group 1 applications by Ordinal.
(2) If funds remain after HUD has funded all eligible Priority Group 1 applications, HUD will fund Priority Group 2 applications by Ordinal.
(3) If funds remain after HUD has funded all eligible Priority Group 2 applications, HUD will fund Priority Group 3 applications by Ordinal.
(4) At any stage, if there is more than one application with next Ordinal to be funded and there are insufficient funds to fund all of them, HUD will conduct a lottery among those applications to determine which application(s) will be funded.
(5) HUD reserves the right to partially fund the next eligible application if insufficient funds remain to fund the entire amount requested, and HUD determines that the funds available are adequate to carry out some significant demolition activities.
(6) If funds remain after all eligible HOPE VI Demolition grant applications have been funded or if the amount remaining is inadequate to feasibly fund the next eligible Demolition grant application, HUD reserves the right to:
(a) Reallocate unused funds to fund or supplement the next eligible HOPE VI Revitalization application(s), in rank order, or
(b) Carry over unused funds to the next fiscal year.
(E)
(A)
(B)
(1) You must begin the proposed demolition within six months of the date of Grant Agreement execution.
(2) You must complete the proposed demolition within two years of the date of Grant Agreement execution.
(3) In accordance with section 24(i) of the 1937 Act, if you do not proceed within a reasonable timeframe, in the determination of HUD, HUD shall withdraw any grant amounts that you have not obligated. HUD shall redistribute any withdrawn amounts to one or more other applicants eligible for HOPE VI assistance or to one or more other entities capable of proceeding expeditiously in the same locality in carrying out the activities of the original Grantee.