Animal and Plant Health Inspection Service
National Foundation on the Arts and the Humanities
Foreign-Trade Zones Board
International Trade Administration
National Oceanic and Atmospheric Administration
Air Force Department
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Centers for Disease Control and Prevention
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National Institutes of Health
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Special Trustee for American Indians Office
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Saint Lawrence Seaway Development Corporation
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Federal Aviation Administration (FAA), DOT.
Final special conditions; request for comments.
The FAA is issuing special conditions for the Hamilton Sundstrand model 54H60-77E constant speed propeller. This four-bladed propeller will have a dual acting digital electro-hydraulic propeller control system, which is a novel or unusual design feature. The applicable airworthiness regulations do not contain adequate or appropriate safety standards for this design feature. These special conditions contain the additional safety standards that the Administrator considers necessary to establish a level of safety equivalent to that established by the existing airworthiness standards.
The effective date of these special conditions is December 1, 2003. The FAA must receive comments on or before January 30, 2004.
Mail or deliver comments on these special conditions to: Federal Aviation Administration, Office of the Assistant Chief Counsel, Attention: Rules Docket NE125, 12 New England Executive Park, Burlington, Massachusetts, 01803-5299. You must identify the docket number NE125 at the beginning of your comments, and you should submit two copies of your comments. You may review the public docket containing comments to these special conditions in person at the Office of the Regional Counsel between 8 a.m. and 4:30 p.m., Monday through Friday, except Federal holidays.
Jay Turnberg, FAA, Engine and Propeller Standards Staff, Engine and Propeller Directorate, Aircraft Certification Service, ANE-110, 12 New England Executive Park, Burlington, Massachusetts, 01803-5229; telephone (781) 238-7116; fax (781) 238-7199; e-mail:
The FAA has determined that notice and opportunity for prior public comment hereon are impracticable because these procedures would significantly delay issuance of the approval design and thus delivery of the affected aircraft. In addition, the substance of these special conditions has previously been subject to the public comment process with no substantive comments received. The FAA therefore finds that good cause exists for making these special conditions effective on December 1, 2003.
The FAA has determined that good cause exists for making these special conditions effective December 1, 2003; however; the FAA invites interested parties to submit comments on the special conditions. You must identify the docket number NE125 at the beginning of your comments, and you should submit two copies of your comments. The FAA will consider all comments received by the closing date. The FAA may change these special conditions in light of the comments received. All comments submitted will be available in the Rules Docket for examination by interested persons, both before and after the closing date for comments. The docket will contain a report summarizing each substantive public contact with FAA personnel concerning this proposal. Commenters wishing the FAA to acknowledge receipt of their comments submitted in response to this notice must include a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket No. NE125.” The postcard will be dated-stamped and returned to the commenter.
On February 24, 2003, Hamilton Sundstrand applied for an amendment to Type Certificate No. P906 to include the new 54H60-77E propeller. The model 54H60-77E, which is a derivative of the model 54H currently approved under Type Certificate P906, uses a dual acting digital electro-hydraulic propeller control system (EPCS).
Digital electronic control introduces potential failures associated with electrical power, software commands, data, and environmental effects that can result in hazardous propeller effects. The applicable airworthiness regulations do not contain adequate or appropriate safety standards for these design features. These special conditions address the following airworthiness issues for the Hamilton Sundstrand 54H60-77E propeller:
These special conditions contain the additional safety standards necessary to establish a level of safety equivalent to that established by the existing airworthiness standards.
Under the provisions of 14 CFR 21.101, Hamilton Sundstrand must show that the 54H60-77E meets the applicable provisions of the regulations incorporated by reference in Type Certificate No. P906 or the applicable regulations in effect on the date of application for the change to the model 54H. The regulations incorporated by reference in the type certificate are commonly referred to as the “original type certification basis.” The regulations incorporated by reference in P906 are Civil Air Regulation (CAR) part 14, as amended in December 15, 1959.
In addition, if the regulations incorporated by reference do not provide adequate standards with respect to the change, the applicant must comply with certain regulations in effect on the date of application for the change. Hamilton Sundstrand has elected to show compliance with part 35, as amended through Amendment 7, dated December 28, 1995, for the 54H60-77E.
If the Administrator finds that the applicable airworthiness regulations (
As appropriate, special conditions, as defined in § 11.19, are issued in accordance with § 11.38 and become part of the type certification basis in accordance with 14 CFR 21.101(b)(2).
Special conditions are initially applicable to the model for which they are issued. Should the type certificate for that model be amended later to include any other model that incorporates the same novel or unusual design feature, or should any other model already included on the same type certificate be modified to incorporate the same novel or unusual design feature, the special conditions would also apply to the other model under the provisions of 14 CFR 21.101(a)(1).
The 54H60-77E will incorporate the following novel or unusual design features: dual acting digital electro-hydraulic propeller control system. Digital electronic control introduces potential failures associated with electrical power, software commands, data, and environmental effects that can result in hazardous propeller effects. The applicable airworthiness regulations do not contain adequate or appropriate safety standards for these design features. These special conditions address the following airworthiness issues for the Hamilton Sundstrand 54H60-77E propeller:
These special conditions contain the additional safety standards necessary to establish a level of safety equivalent to that established by the existing airworthiness standards.
The existing type certified Hamilton Sundstrand 54H model propeller as described in FAA Type Certification Data Sheet P906, amendment 7, uses a mechanical governor in the propeller control system. This mechanical control system senses propeller speed and adjusts the pitch by directing hydraulic oil to the propeller actuator to increase or decrease pitch to maintain the propeller at the correct RPM and to absorb the engine power.
The Hamilton Sundstrand EPCS replaces the current mechanical control system with a digital electronic governor in the propeller control. The digital electronic governor is designed to operate a hydro-mechanical interface to direct hydraulic oil to the propeller actuator to increase or decrease pitch. The digital electronic control logic commands speed governing, synchrophasing, and failure monitoring and provides beta scheduling. Digital electronic control introduces potential failures associated with electrical power, software commands, data, and environmental effects that can result in hazardous propeller effects.
The special conditions require the applicant to conduct a safety assessment of the propeller in conjunction with the requirements for evaluating the digital electro-hydraulic control system. A safety assessment is necessary due to the increased complexity of these propeller designs and related control systems. The ultimate objective of the safety assessment requirement is to ensure that the collective risk from all propeller failure conditions is acceptably low. The basis is the concept that an acceptable total propeller design risk is achievable by managing the individual risks to acceptable levels. This concept emphasizes reducing the risk of an event proportionally with the severity of the hazard it represents.
The special conditions are written at the propeller level for a typical aircraft. The typical aircraft may be the aircraft intended for installation of the propeller. It is advised that the propeller applicant have an understanding of the intended aircraft, not to show compliance with this requirement, but to design a propeller that will be acceptable for the intended aircraft. For example, a part 25 aircraft may require different failure effects and probability of failure than a part 23 aircraft. Showing compliance with the requirement without consideration of the intended aircraft may result in a propeller that cannot be installed on the intended aircraft.
Currently, part 35 does not adequately address propellers with combined mechanical, hydraulic, digital, and electronic control systems. Propeller mechanical control systems certified under the existing requirements incorporate a mechanical governor that senses propeller speed and adjusts the pitch to absorb the engine power to maintain the propeller at the selected rotational speed. Propellers with digital electronic control components perform the same basic function but use software, electronic circuitry, and electro-hydraulic actuators. The electronic control systems may also incorporate additional functions such as failure monitoring, synchrophasing, and beta scheduling. This addition of electronics to the control system may introduce new failure modes that can result in hazardous propeller effects.
As discussed above, these special conditions apply to the model 54H60-77E propeller. Should Hamilton Sundstrand apply at a later date for a change to the type certificate to include another model incorporating the same novel or unusual design feature, the special conditions would apply to that model as well under the provisions of 14 CFR § 21.101(a)(1).
This action affects only certain novel or unusual design features on one model of propellers. It is not a rule of general applicability, and it affects only the applicant who applied to the FAA for approval of these features on the propeller.
The substance of these special conditions has previously been subjected to the notice and comment period and has been derived without substantive change from those previously issued. The FAA has determined that prior public notice and comment are unnecessary and that good cause exists for adopting these special conditions immediately. Therefore, these special conditions are being made effective December 1, 2003. The FAA is, however, requesting comments to allow interested parties to submit views that may not have been submitted in response to the prior opportunity for comment described above.
Air transportation, Aircraft, Aviation safety, Safety.
The authority citation for these special conditions is as follows:
49 U.S.C. 106(g), 40113, 44701-44702, 44704.
Accordingly, pursuant to the authority delegated to me by the Administrator, the following special conditions are issued as part of the type certification basis for the Hamilton Sundstrand model 54H60-77E propeller.
In addition to the requirements of part 35, the following requirements apply to the propeller.
(a)
(1) Propeller. The propeller is defined by the components listed in the type design.
(2) Propeller system. The propeller system consists of the propeller plus all
(3) Hazardous propeller effects. The following are regarded as hazardous propeller effects:
(i) A significant overspeed of the propeller.
(ii) The development of excessive drag.
(iii) Thrust in the opposite direction to that commanded by the pilot.
(iv) A release of the propeller or any major portion of the propeller.
(v) A failure that results in excessive unbalance.
(vi) The unintended movement of the propeller blades below the established minimum in-flight low pitch position.
(4) Major propeller effects. The following are regarded as major propeller effects.
(i) An inability to feather.
(ii) An inability to command a change in propeller pitch.
(iii) A significant uncommanded change in pitch.
(iv) A significant uncontrollable torque or speed fluctuation.
(b)
(1)(i) Perform an analysis of the propeller system to assess the likely consequence of all failures that can reasonably be expected to occur. This analysis must consider the following:
(A) The propeller system in a typical installation. When the analysis depends on representative components, assumed interfaces, or assumed installed conditions, the analysis must state the assumptions.
(B) Consequential secondary failures and latent failures.
(C) Multiple failures referred to in paragraph (b)(4) of these special conditions or that result in hazardous propeller effects.
(ii) Summarize those failures that could result in major propeller effects or hazardous propeller effects, together with an estimate of the probability of occurrence of those effects.
(iii) Show that hazardous propeller effects are not predicted to occur at a rate in excess of that defined as extremely remote (probability of 10
(2) The Administrator may, if significant doubt exists, require testing to verify any assumption as to the effects of failures or likely combination of failures.
(3) If the primary failure of certain single elements (for example, blades) cannot be sensibly estimated in numerical terms, and if the failure of such elements is likely to result in hazardous propeller effects, then compliance may be shown by meeting the prescribed integrity requirements of part 35 and these special conditions. The safety analysis must state these instances.
(4) If reliance is placed on a system or device, such as safety devices, feathering and overspeed systems, instrumentation, early warning devices, maintenance checks, and similar equipment or procedures, to prevent a failure from progressing to hazardous propeller effects, the analysis must include the possibility of a safety system failure in combination with a basic propeller failure. If items of a safety system are outside the control of the propeller manufacturer, the safety analysis must state assumptions with respect to the reliability of these parts, and the installation and operation instructions required under § 35.3 must identify these assumptions.
(5) If the safety analysis depends on one or more of the following items, the analysis must state and appropriately substantiate those items.
(i) Performance of mandatory maintenance actions at stated intervals required for certification and other maintenance actions. This includes verifying the serviceability of items that could fail in a latent manner. These maintenance intervals must be published in the appropriate propeller manuals. Additionally, if errors in maintenance of the propeller system could lead to hazardous propeller effects, the appropriate procedures must be published in the appropriate propeller manuals.
(ii) Verification of the satisfactory functioning of safety or other devices at pre-flight or other stated periods. The details of this satisfactory functioning must be published in the appropriate propeller manuals.
(iii) The provisions of specific instrumentation not otherwise required.
(iv) A fatigue assessment.
(6) If applicable, the safety analysis must include the assessment of indicating equipment, manual and automatic controls, governors and propeller control systems, synchrophasers, synchronizers, and propeller thrust reversal systems.
(c)
(1) Design, construct, and validate the propeller control system to show that:
(i) The propeller control system, operating in normal and alternative operating modes and transition between operating modes, performs the intended functions throughout the declared operating conditions and flight envelope.
(ii) The propeller control system functionality is not adversely affected by the declared environmental conditions, including temperature, electromagnetic interference (EMI), high intensity radiated fields (HIRF) and lightning. Document the environmental limits to which the system has been satisfactorily validated in the appropriate propeller manuals.
(iii) A method is provided to indicate that an operating mode change has occurred if flight crew action is required. In such an event, provide operating instructions in the appropriate manuals.
(2) Design and construct the propeller control system so that, in addition to compliance with paragraph (b) of these special conditions, Safety analysis:
(i) A level of integrity consistent with the intended aircraft is achieved.
(ii) A single failure or malfunction of electrical or electronic components in the control system does not cause a hazardous propeller effect.
(iii) Failures or malfunctions directly affecting the propeller control system in a typical aircraft, such as structural failures of attachments to the control, fire, or overheat, do not lead to a hazardous propeller effect.
(iv) The loss of normal propeller pitch control does not cause a hazardous propeller effect under the intended operating conditions.
(v) The failure or corruption of data or signals shared across propellers does not cause a major or hazardous propeller effect.
(3) Design and implement electronic propeller control system imbedded software by a method approved by the Administrator that is consistent with the criticality of the performed functions and minimizes the existence of software errors.
(4) Design and construct the propeller control system so that the failure or corruption of aircraft-supplied does not result in hazardous propeller effects.
(5) Design and construct the propeller control system so that the loss, interruption, or abnormal characteristic
(6) Specify the propeller control system description, characteristics, and authority, in both normal operation and failure conditions, and the range of control of other controlled functions, in the appropriate propeller manuals.
Federal Aviation Administration, DOT.
Final rule.
This amendment revises an existing airworthiness directive (AD), applicable to various Boeing and McDonnell Douglas transport category airplanes, that currently requires revising the Airplane Flight Manual (AFM) to advise the flightcrew to don oxygen masks as a first and immediate step when the cabin altitude warning horn sounds. The actions specified by that AD are intended to prevent incapacitation of the flightcrew due to lack of oxygen, which could result in loss of control of the airplane. This amendment removes certain requirements for certain airplanes and revises the direction to the flightcrew to don oxygen masks as a first and immediate step when the cabin altitude warning occurs, rather than “when the cabin altitude warning horn sounds.” This action is intended to address the identified unsafe condition.
Effective December 22, 2003.
Information pertaining to this admendment may be examined at the Federal Aviation Administration (FAA), Transport Airplane Directorate, Rules Docket, 1601 Lind Avenue SW, Renton, Washington; or at the FAA, Los Angeles Aircraft Certification Office, 3960 Paramount Boulevard, Lakewood, California.
A proposal to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) by revising AD 2003-03-15, amendment 39-13039 (68 FR 4892, January 31, 2003), which is applicable to various Boeing and McDonnell Douglas transport category airplanes, was published in the
Interested persons have been afforded an opportunity to participate in the making of this amendment. Due consideration has been given to the comments received.
One commenter notes that the existing AD requires flightcrew action to don oxygen masks as a first and immediate step, “when the cabin altitude warning horn sounds,” and that the NPRM proposes to revise the wording to “when the cabin altitude warning occurs.” The commenter suggests that, since the NPRM addresses those airplanes that may not have a warning horn, it should exclude those airplanes that do not have warning horns.
The FAA does not agree with the commenter's request. For those airplanes that are equipped with warning horns, we are not changing the AFM revision required by AD 2003-13-15. While no further action is required by this revised AD for those airplanes, it is still necessary for this AD to apply to them to continue to require the appropriate AFM revision.
One commenter notes that Table 2 of the NPRM does not address McDonnell Douglas Model DC-8 series airplanes, as currently specified in AD 2003-03-15. The commenter assumes that the information for Model DC-8 series airplanes should also be included in Table 2 of the NPRM.
We agree with the commenter. Although those airplanes were included in the applicability of the NPRM, we inadvertently did not include Model DC-8 series airplanes in Table 2 of the NPRM. We have revised Table 2 of the AD to include those airplanes in this AD.
In Table 2 of paragraph (a) of the NPRM, we noted several instances where the word “mask” should have been plural. We have revised the AD to reflect the word “masks.”
After careful review of the available data, including the comments noted above, the FAA has determined that air safety and the public interest require the adoption of the rule with the changes previously described. The FAA has determined that these changes will neither increase the economic burden on any operator nor increase the scope of the AD.
After the NPRM was issued, we reviewed the figures we use to calculate the labor rate to do the required actions. To account for various inflationary costs in the airline industry, we find it appropriate to increase the labor rate used in these calculations from $60 per work hour to $65 per work hour. The economic impact information, below, has been revised to reflect this increase in the specified hourly labor rate.
There are approximately 6,956 airplanes (5,179 Boeing airplanes and 1,777 McDonnell Douglas airplanes) of the affected design in the worldwide fleet. The FAA estimates that 3,601 airplanes (2,392 Boeing airplanes and 1,209 McDonnell Douglas airplanes) of U.S. registry will be affected by this AD, that it will take approximately 1 work hour per airplane to accomplish the required actions, and that the average labor rate is $65 per work hour. Based on these figures, the cost impact of the AD on U.S. operators is estimated to be $234,065, or $65 per airplane.
The cost impact figure discussed above is based on assumptions that no operator has yet accomplished any of the 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 regulations adopted herein will 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 final rule does not have federalism implications under Executive Order 13132.
For the reasons discussed above, I certify that this action (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under 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. A final evaluation has been prepared for this action and it is contained in the Rules Docket. A copy of it may be obtained from the Rules Docket at the location provided under the caption
Air transportation, Aircraft, Aviation safety, Safety.
49 U.S.C. 106(g), 40113, 44701.
To prevent incapacitation of the flightcrew due to lack of oxygen, which could result in loss of control of the airplane, accomplish the following:
(a) Within 90 days after the effective date of this AD: For the applicable airplane models listed in the “For—” column of Table 2 of this AD, revise the procedures regarding donning oxygen masks in the event of rapid depressurization, as contained in the Emergency Procedures section of the FAA-approved Airplane Flight Manual (AFM), by replacing the text in the “Replace—” column of Table 2 of this AD with the information in the applicable figure referenced in the “With the Information In—” column of Table 2 of this AD. This may be accomplished by recording the AD number of this AD on the applicable figure and inserting it into the AFM. Table 2 and Figures 1 through 9 follow:
Insert the information in this figure into the “Emergency Procedures” section of the FAA-approved Airplane Flight Manual.
The rest of the steps under this heading in the AFM are unchanged.
Insert the information in this figure into the “Emergency Procedures” section of the FAA-approved Airplane Flight Manual.
The rest of the steps under this heading in the AFM are unchanged.
Insert the information in this figure into the “Emergency Procedures” section of the FAA-approved Airplane Flight Manual.
The rest of the steps under this heading in the AFM are unchanged.
Insert the information in this figure into the “Emergency Procedures” section of the FAA-approved Airplane Flight Manual.
The rest of the steps under this heading in the AFM are unchanged.
Insert the information in this figure into the “Emergency Procedures” section of the FAA-approved Airplane Flight Manual.
Manual Pressurization control forces may be high, apply forces as required.”
The rest of the steps under this heading in the AFM are unchanged.
Insert the information in this figure into the “Emergency Procedures” section of the FAA-approved Airplane Flight Manual.
Manual Pressurization control forces may be high, apply forces as required.”
The rest of the steps under this heading in the AFM are unchanged.
Insert the information in this figure into the “Emergency Procedures” section of the FAA-approved Airplane Flight Manual.
The rest of the steps under this heading in the AFM are unchanged.
Insert the information in this figure into the “Emergency Procedures” section of the FAA-approved Airplane Flight Manual.
The rest of the steps under this heading in the AFM are unchanged.
Insert the information in this figure into the “Emergency Procedures” section of the FAA-approved Airplane Flight Manual.
The rest of the steps under this heading in the AFM are unchanged.
(b) In accordance with 14 CFR 39.19, the Manager, Seattle Aircraft Certification Office (ACO), FAA, or the Manager, Los Angles ACO, FAA, is authorized to approve alternative methods of compliance (AMOCs) for this AD.
(c) This amendment becomes effective on December 22, 2003.
Department of Veterans Affairs.
Final rule.
This document amends the Department of Veterans Affairs' (VA) Board of Veterans' Appeals Rules of Practice to eliminate the requirement that an appellant must file a timely Substantive Appeal with respect to issues covered in a Supplemental Statement of the Case that were not in the original Statement of the Case. This change is required to conform the Rules of Practice to recent changes in VA's Appeals Regulations.
Steven L. Keller, Senior Deputy Vice Chairman, Board of Veterans' Appeals (01C), Department of Veterans Affairs, 810 Vermont Avenue, NW., Washington, DC 20420 (202) 565-5978.
The Board of Veterans' Appeals (Board) is an administrative body that decides appeals from denials by agencies of original jurisdiction (AOJs) of claims for veterans' benefits. The AOJ is typically one of VA's 57 regional offices administered by the Veterans Benefits Administration (VBA).
A claimant begins the appellate process by filing a Notice of Disagreement (NOD) with the AOJ. Following receipt of the NOD, the AOJ furnishes the appellant with a Statement of the Case (SOC). The SOC provides a
Recently, we amended 38 CFR 19.31, part of VA's Appeals Regulations relating to the SSOC. 67 FR 3099, 3104 (January 23, 2002). As amended, that rule provides that a SSOC will not be used to announce the AOJ's decision on an issue not previously addressed in a SOC or to respond to a notice of disagreement on a newly appealed issue that was not addressed in the SOC. The purpose of that change was to help eliminate confusion on the part of appellants as to whether they must respond to a SSOC.
We are amending Rule 302(c) (38 CFR 20.302(c)) and Rule 501(c) (38 CFR 20.501(c)) of the Board's Rules of Practice for the purpose of creating uniformity of practice and procedure and to ensure that there is no misunderstanding as to whether an appellant needs to respond to a SSOC. Currently, Rules 302(c) and 501(c) provide, in pertinent part, that an appellant need not respond to a SSOC to perfect an appeal unless the SSOC covers issues that were not included in the original SOC. Those Rules further provide that, if a SSOC covers issues that were not included in the original SOC, an appellant must file a Substantive Appeal with respect to those issues within 60 days in order to perfect an appeal with respect to the additional issues. The changes made to 38 CFR 19.31 render the foregoing requirements superfluous and create the risk of causing confusion to the appellant and VA adjudicators.
Accordingly, we are amending Rule 302(c) and Rule 501(c) to eliminate the language relating to responding to “new issues” in Supplemental Statements of the Case.
This final rule concerns agency organization, procedure or practice and, pursuant to 5 U.S.C. 553, is exempt from notice and comment requirements.
The Unfunded Mandates Reform Act requires, at 2 U.S.C. 1532, that agencies prepare an assessment of anticipated costs and benefits before developing any rule that may result in an expenditure by State, local, or tribal governments, in the aggregate, or by the private sector, of $100 million or more in any given year. This final rule will have no such effect on State, local, or tribal governments, or the private sector.
This final rule contains no provisions constituting a collection of information under the Paperwork Reduction Act (44 U.S.C. 3501-3521).
The Office of Management and Budget has reviewed this document under Executive Order 12866.
The Secretary hereby certifies that this final rule will not have a significant economic impact on a substantial number of small entities as they are defined in the Regulatory Flexibility Act, 5 U.S.C. 601-612. This rule will affect VA beneficiaries and will not affect small businesses. Therefore, pursuant to 5 U.S.C. 605(b), this final rule is exempt from the initial and final regulatory flexibility analyses requirement of sections 603 and 604.
Administrative practice and procedure, Authority delegations (Government agencies), Claims, Lawyers, Legal services, Veterans.
38 U.S.C. 501(a) and as noted in specific sections.
Environmental Protection Agency.
Direct final deletion of the Follansbee Superfund Site from the National Priorities List.
The Environmental Protection Agency (EPA) Region III, is publishing a direct final notice of deletion of the Follansbee, Superfund Site (Site), located north of the city of Follansbee, West Virginia, from the National Priorities List (NPL).
The NPL, promulgated pursuant to section 105 of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) of 1980, as amended, is appendix B of 40 CFR part 300, which is the National Oil and Hazardous Substances Pollution Contingency Plan (NCP). This direct final notice of deletion is being published by EPA with the concurrence of the State of West Virginia, through the West Virginia Department of Environmental Protection, because EPA has determined that all appropriate response actions under CERCLA have been completed and, therefore, further remedial action pursuant to CERCLA is not appropriate.
This direct final deletion will be effective January 16, 2004 unless EPA receives adverse comments by December 17, 2003. If adverse comments are received, EPA will publish a timely withdrawal of the direct final deletion in the
Comments may be mailed to: Anthony C. Iacobone, Remedial Project Manager (RPM) 3HS23,
Information Repositories: Comprehensive information about the Site is available for viewing and copying
Anthony C. Iacobone, Remedial Project Manager (RPM) 3HS23,
EPA Region III is publishing this direct final notice of deletion of the Follansbee Superfund Site from the NPL.
The EPA identifies sites that appear to present a significant risk to public health or the environment and maintains the NPL as the list of those sites. As described in § 300.425(e)(3) of the NCP, sites deleted from the NPL remain eligible for remedial actions if conditions at a deleted site warrant such action.
Because EPA considers this action to be noncontroversial and routine, EPA is taking it without prior publication of a notice of intent to delete. This action will be effective January 16, 2004 unless EPA receives adverse comments by December 17, 2003 on this document. If adverse comments are received within the 30-day public comment period on this document EPA will publish a timely withdrawal of this direct final notice of deletion before the effective date of the deletion and the deletion will not take effect. Alternatively, EPA will, as appropriate, prepare a response to comments and continue with the deletion process on the basis of the notice of intent to delete and the comments already received. There will be no additional opportunity to comment.
Section II of this document explains the criteria for deleting sites from the NPL. Section III discusses procedures that EPA is using for this action. Section IV discusses the Follansbee Superfund Site and demonstrates how it meets the deletion criteria. Section V discusses EPA's action to delete the Site from the NPL unless adverse comments are received during the public comment period.
Section 300.425(e) of the NCP provides that releases may be deleted from the NPL where no further response is appropriate. In making a determination to delete a Site from the NPL, EPA shall consider, in consultation with the State, whether any of the following criteria have been met:
Consistent with § 300.425(e) of the NCP, EPA proposes deletion of this Site because no further response action is appropriate under CERCLA, as laid out in EPA's policy entitled “The National Priorities List for Uncontrolled Hazardous Waste Sites; Deletion Policy for Resource Conservation and Recovery Act (“RCRA”) Facilities.” Published in the
Under this policy EPA has determined that the Site is eligible for deletion form the NPL.
The following procedures apply to deletion of the Site:
Deletion of a site from the NPL does not itself create, alter, or revoke any individual's rights or obligations. Deletion of a site from the NPL does not in any way alter EPA's right to take enforcement actions, as appropriate. The NPL is designed primarily for informational purposes and to assist EPA management. Section 300.425(e)(3) of the NCP states that the deletion of a site from the NPL does not preclude eligibility for future response actions should future conditions warrant such actions.
The following information provides EPA's rationale for deleting the Site from the NPL:
The Follansbee Site is located in the northern panhandle of West Virginia along the east bank of the Ohio River in Brooke County, just north of the city of Follansbee, West Virginia. The Site is roughly rectangular with the approximate dimensions of 3,000 feet in a northwest-southeast direction and 500 feet perpendicular to the river. The Site occupies 34 acres. The Site is bounded
The Site consists of process and storage facilities for the manufacture of coal tar by-products. Contamination at the Site is due to leaking tanks, spills, surface impoundments and poor operation practices. The Site is underlain by three geological formations (a Perched Zone, an Alluvial Aquifer and a Bedrock Aquifer), each of which is contaminated with polycyclic aromatic hydrocarbons (PAHs), volatile organic compounds (VOCs) such as benzene and toluene, and heavy metals. In addition, the Bedrock Aquifer is contaminated with as much as seven feet of a coal tar Dense Non-Aqueous Phase Liquid (DNAPL).
The Site is located in a heavily industrialized area within one mile of several population centers. There are an estimated 5,900 people living within a 3-mile radius of the Site. The City of Follansbee obtains potable water from a radial collector well and a surface water intake located approximately 1.5 miles downstream of the Site. Fifty private residential wells are within a 3-mile radius, and there are public wells located five miles downstream of the Site.
American Tar Products Company began operations at the Site in 1914. Since then, there have been many physical changes to the processing facilities, as well as changes in plant ownership. The Site, however, has always operated as a coal-tar processing plant. The northern portion of the property is highly contaminated with coal tar constituents which have migrated through the groundwater into the bedrock. The Site was proposed for inclusion on the NPL in December 1982 and was listed in September 1983.
As noted below, the Follansbee Site is currently being addressed by a series of RCRA Interim Measures under an existing enforceable order. The response under RCRA is progressing adequately as detailed below. Deletion of the Site from the NPL will not disrupt the possibility of any further CERCLA response action. As such, EPA intends to delete the listing of this Site from the NPL under CERCLA based on deferral to RCRA.
In October 1990, EPA and Beazer East (Beazer) the former owner/operator of the Follansbee Site, entered into a RCRA section 3008(h) Administrative Order on Consent (AOC), Docket No. RCRA-III-037CA, requiring Beazer East to conduct a RCRA Facility Investigation (RFI) and to prepare a Corrective Measures Study (CMS). A draft RFI report was submitted to EPA in May 1994 and subsequently found to be deficient by EPA. Beazer then developed a new work plan which enabled it to gather additional information to sufficiently supplement the 1994 RFI report. As a result, in June 2000 the final RFI report was approved subject to additional sediment sampling by Beazer. Beazer is currently operating two interim pump and treat systems to control contaminated groundwater migration.
The first system installed in 1983 by Beazer involves the operation of five groundwater recovery wells to provide hydraulic containment for portions of the shallow perched zone aquifer. The recovered groundwater is processed in an on-site wastewater treatment plant prior to being discharged to the Ohio River. The effect of this system has been to prevent releases into the neighboring Wheeling-Pittsburgh Steel Corporation coal pits as well as to mitigate historical plant seeps to the banks of the Ohio River. EPA has required that Beazer provide a demonstration of the effectiveness of this system. Beazer is presently completing additional field investigations to fulfill this objective.
The second system, initiated pursuant to the 1990 RCRA, Order began operation in April 1999. This system provides for the collection of DNAPL coal tar product from the bedrock wells on-site. To date, the DNAPL removal program has been successful. This system will remain in operation until it is no longerr technically feasible to remove DNAPL from this area of the Site.
Beazer has been conducting the RFI in a phased approach which resulted in the submission of a comprehensive RFI report in 1994. EPA provided technical comments on this report. Beazer responded to these comments by performing additional field work to better characterize the Site and to address certain identified data gaps. The work has included the installation of additional wells, performance of additional sampling and analysis, and evaluation of the existing shallow zone pump and treat system.
On June 26, 2000, EPA conditionally approved the RFI report subject to additional sediment sampling by Beazer. The river sediment sampling was completed in January 2001 and EPA received those results in August 2001. Actions taken as a result of this sampling will be at the discretion of the EPA Region III RCRA program. Additionally, Beazer will submit an interim measures program report regarding the performance of the DNAPL removal program and the performance of the shallow groundwater pump and treat system. Both interim measures are expected to be components of the final RCRA remedy at the Site.
Pursuant to the 1990 RCRA Consent Order and the1984 Consent Decree (
EPA completed construction activities at the Follansbee Site in accordance with
Human exposure to contaminated soils is being prevented due to the Site being largely paved and secured. Koppers Industries (Koppers), the current Site owner, developed and submitted a plan to EPA in February of 1998 to increase the extent of paved area at the Site. Koppers also provides a full time security staff which limits access to the property.
The area in the vicinity of the Site is serviced by municipal water supplies which obtain water from the Ohio River and from wells near the river. The nearest surface water intake and the municipal wells are located about 1.5 miles downstream from the Site. Three industrial wells are located within one mile of the Site but are not used for potable purposes. As supported by Site characterization data, there is no evidence that the Site contamination has impacted private or municipal water supplies due to the remoteness of the water supply wells and the surface water intakes as well as the substantial dilution effect of the Ohio River.
Operation and Maintenance of all systems at the Site will be performed by Beazer under the direction of EPA.
No five-year review is required since no remedy has been selected under CERCLA section 121. Future response actions at the Site are expected to be taken pursuant to RCRA authority.
Public participation activities have been satisfied as required in CERCLA section 113(k), 42 U.S.C. 9613(k), and CERCLA section 117, 42 U.S.C. 9617. Documents in the deletion docket which EPA relied on for recommendation of the deletion of the Site from the NPL are available to the public in the information repositories.
The EPA, with concurrence of the State of West Virginia, has determined that all appropriate responses under CERCLA have been completed, and that no further response actions under CERCLA are necessary and that the Site meets the criteria for deleting RCRA Sites from the NPL. (60 FR 14641 dated March 20, 1995).
Because EPA considers this action to be noncontroversial and routine, EPA is taking it without prior publication of a notice of intent to delete. This action will be effective January 16, 2004 unless EPA receives adverse comments by December 17, 2003 on this notice or the parallel notice of intent to delete published in the “Proposed Rules” section of today's
Environmental protection, Air pollution control, Chemicals, Hazardous waste, Hazardous substances, Intergovernmental relations, Penalties, Reporting and recordkeeping requirements, Superfund, Water pollution control, Water supply.
33 U.S.C. 1321(c)(2); 42 U.S.C. 9601-9657; E.O. 12777, 56 FR 54757, 3 CFR, 1991 Comp., p. 351; E.O. 12580, 52 FR 2923, 3 CFR, 1987 Comp., p. 193.
Federal Emergency Management Agency, Emergency Preparedness and Response Directorate, Department of Homeland Security.
Interim rule.
This interim rule lists communities where modification of the Base (1% annual-chance) Flood Elevations (BFEs) is appropriate because of new scientific or technical data. New flood insurance premium rates will be calculated from the modified BFEs for new buildings and their contents.
These modified BFEs are currently in effect on the dates listed in the table below and revise the Flood Insurance Rate Map(s) in effect prior to this determination for the listed communities.
From the date of the second publication of these changes in a newspaper of local circulation, any person has ninety (90) days in which to request through the community that the Mitigation Division Director of the Emergency Preparedness and Response Directorate reconsider the changes. The modified BFEs may be changed during the 90-day period.
The modified BFEs for each community are available for inspection at the office of the Chief Executive Officer of each community. The respective addresses are listed in the table below.
Doug Bellomo, P.E., Hazard Identification Section, Emergency Preparedness and Response Directorate, Federal Emergency Management Agency, 500 C Street, SW., Washington, DC 20472, (202) 646-2903.
The modified BFEs are not listed for each community in this interim rule. However, the address of the Chief Executive Officer of the community where the modified BFE determinations are available for inspection is provided.
Any request for reconsideration must be based on knowledge of changed conditions or new scientific or technical data.
The modifications are made pursuant to Section 201 of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4105, and are in accordance with the National Flood Insurance Act of 1968, 42 U.S.C. 4001
For rating purposes, the currently effective community number is shown and must be used for all new policies and renewals.
The modified BFEs are the basis for the floodplain management measures that the community is required to either adopt or to show evidence of being already in effect in order to qualify or to remain qualified for participation in the National Flood Insurance Program (NFIP).
These modified BFEs, together with the floodplain management criteria required by 44 CFR 60.3, are the minimum that are required. They should not be construed to mean that the community must change any existing ordinances that are more stringent in their floodplain management requirements. The community may at any time enact stricter requirements of its own, or pursuant to policies established by other Federal, State, or regional entities.
The changes in BFEs are in accordance with 44 CFR 65.4.
This rule is categorically excluded from the requirements of 44 CFR Part 10, Environmental Consideration. No environmental impact assessment has been prepared.
The Mitigation Division Director of the Emergency Preparedness and
This interim rule is not a significant regulatory action under the criteria of Section 3(f) of Executive Order 12866 of September 30, 1993, Regulatory Planning and Review, 58 FR 51735.
This rule involves no policies that have federalism implications under Executive Order 12612, Federalism, dated October 26, 1987.
This rule meets the applicable standards of Section 2(b)(2) of Executive Order 12778.
Flood insurance, Floodplains, Reporting and recordkeeping requirements.
42 U.S.C. 4001
Federal Emergency Management Agency, Emergency Preparedness and Response Directorate, Department of Homeland Security.
Final rule.
Modified Base (1% annual-chance) Flood Elevations (BFEs) are finalized for the communities listed below. These modified elevations will be used to calculate flood insurance premium rates for new buildings and their contents.
The effective dates for these modified BFEs are indicated on the table below and revise the Flood Insurance Rate Maps ((FIRMs) in effect for the listed communities prior to this date.
The modified BFEs for each community are available for inspection at the office of the Chief Executive Officer of each community. The respective addresses are listed in the table below.
Doug Bellomo, P.E., Hazard Identification Section, Emergency Preparedness and Response Directorate, Federal Emergency Management Agency, 500 C Street, SW., Washington, DC 20472, (202) 646-2903.
The Federal Emergency Management Agency makes the final determinations listed below for the modified BFEs for each community listed. These modified elevations have been published in newspapers of local circulation and ninety (90) days have elapsed since that publication. The Mitigation Division Director of the Emergency Preparedness and Response Directorate has resolved any appeals resulting from this notification.
The modified BFEs are not listed for each community in this notice. However, this rule includes the address of the Chief Executive Officer of the community where the modified BFE determinations are available for inspection.
The modifications are made pursuant to Section 206 of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4105, and are in accordance with the National Flood Insurance Act of 1968, 42 U.S.C. 4001
For rating purposes, the currently effective community number is shown and must be used for all new policies and renewals.
The modified BFEs are the basis for the floodplain management measures that the community is required to either adopt or to show evidence of being already in effect in order to qualify or to remain qualified for participation in the National Flood Insurance Program (NFIP).
These modified BFEs, together with the floodplain management criteria required by 44 CFR 60.3, are the minimum that are required. They should not be construed to mean that the community must change any existing ordinances that are more stringent in their floodplain management requirements. The community may at any time enact stricter requirements of its own, or pursuant to policies established by other Federal, State, or regional entities.
These modified BFEs are used to meet the floodplain management requirements of the NFIP and are also used to calculate the appropriate flood insurance premium rates for new buildings built after these elevations are made final, and for the contents in these buildings.
The changes in BFEs are in accordance with 44 CFR 65.4.
Flood insurance, Floodplains, Reporting and recordkeeping requirements.
42 U.S.C. 4001
Federal Emergency Management Agency, Emergency Preparedness and Response Directorate, Department of Homeland Security.
Final rule.
Base (1% annual-chance) Flood Elevations and modified Base Flood Elevations (BFEs) are made final for the communities listed below. The BFEs and modified BFEs are the basis for the floodplain management measures that each community is required either to adopt or to show evidence of being already in effect in order to qualify or remain qualified for participation in the National Flood Insurance Program (NFIP).
The date of issuance of the Flood Insurance Rate Map (FIRM) showing BFEs and modified BFEs for each community. This date may be obtained by contacting the office where the FIRM is available for inspection as indicated in the table below.
The final base flood elevations for each community are available for inspection at the office of the Chief Executive Officer of each community. The respective addresses are listed in the table below.
Doug Bellomo, P.E., Hazard Identification Section, Emergency Preparedness and Response Directorate, Federal Emergency Management Agency, 500 C Street, SW., Washington, DC 20472, (202) 646-2903.
The Federal Emergency Management Agency makes the final determinations listed below of BFEs and modified BFEs for each community listed. These modified elevations have been published in newspapers of local circulation and ninety (90) days have elapsed since that publication. The Mitigation Division Director of the Emergency Preparedness and Response Directorate has resolved any appeals resulting from this notification.
This final rule is issued in accordance with section 110 of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4105, and 44 CFR part 67.
The Federal Emergency Management Agency has developed criteria for floodplain management in floodprone areas in accordance with 44 CFR part 60.
Interested lessees and owners of real property are encouraged to review the proof Flood Insurance Study and FIRM available at the address cited below for each community.
The BFEs and modified BFEs are made final in the communities listed below. Elevations at selected locations in each community are shown.
Administrative practice and procedure, Flood insurance, Reporting and recordkeeping requirements.
42 U.S.C. 4001
Federal Emergency Management Agency, Emergency Preparedness and Response Directorate, Department of Homeland Security.
Final rule.
Base (1% annual-chance) Flood Elevations and modified Base Flood Elevations (BFEs) are made final for the communities listed below. The BFEs and modified BFEs are the basis for the floodplain management measures that each community is required either to adopt or to show evidence of being already in effect in order to qualify or remain qualified for participation in the National Flood Insurance Program (NFIP).
The date of issuance of the Flood Insurance Rate Map (FIRM) showing BFEs and modified BFEs for each community. This date may be obtained by contacting the office where the FIRM is available for inspection as indicated in the table below.
The final base flood elevations for each community are available for inspection at the office of the Chief Executive Officer of each community. The respective addresses are listed in the table below.
Doug Bellomo, P.E., Hazard Identification Section, Emergency Preparedness and Response Directorate, Federal Emergency Management Agency, 500 C Street, SW., Washington, DC 20472, (202) 646-2903.
The Federal Emergency Management Agency makes the final determinations listed below of BFEs and modified BFEs for each community listed. These modified elevations have been published in newspapers of local circulation and ninety (90) days have elapsed since that publication. The Mitigation Division Director of the Emergency Preparedness and Response Directorate has resolved any appeals resulting from this notification.
This final rule is issued in accordance with section 110 of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4105, and 44 CFR part 67.
The Federal Emergency Management Agency has developed criteria for floodplain management in floodprone areas in accordance with 44 CFR part 60.
Interested lessees and owners of real property are encouraged to review the proof Flood Insurance Study and FIRM available at the address cited below for each community.
The BFEs and modified BFEs are made final in the communities listed below. Elevations at selected locations in each community are shown.
Administrative practice and procedure, Flood insurance, Reporting and recordkeeping requirements.
42 U.S.C. 4001
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Closure.
NMFS closes the commercial fishery for king mackerel in the exclusive economic zone (EEZ) in the northern Florida west coast subzone. This closure is necessary to protect the Gulf king mackerel resource.
The closure is effective 12 noon local time, November 13, 2003, through June 30, 2004.
Mark Godcharles, telephone 727-570-5727, fax 727-570-5583, e-mail
The fishery for coastal migratory pelagic fish (king mackerel, Spanish mackerel, cero, cobia, little tunny, dolphin, and, in the Gulf of Mexico only, bluefish) is managed under the Fishery Management Plan for the Coastal Migratory Pelagic Resources of the Gulf of Mexico and South Atlantic (FMP). The FMP was prepared by the Gulf of Mexico and South Atlantic Fishery Management Councils (Councils) and is implemented under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) by regulations at 50 CFR part 622.
Based on the Councils' recommended total allowable catch and the allocation ratios in the FMP, on April 30, 2001 (66 FR 17368, March 30, 2001) NMFS implemented a commercial quota of 2.25 million lb (1.02 million kg) for the eastern zone (Florida) of the Gulf migratory group of king mackerel. That quota is further divided into separate quotas for the Florida east coast subzone and the northern and southern Florida west coast subzones. On April 27, 2000, NMFS implemented the final rule (65 FR 16336, March 28, 2000) that divided the Florida west coast subzone of the eastern zone into northern and southern subzones, and established their separate quotas. The quota implemented for the northern Florida west coast subzone is 168,750 lb (76,544 kg)(50 CFR 622.42(c)(1)(i)(A)(2)(ii)).
Under 50 CFR 622.43(a)(3), NMFS is required to close any segment of the king mackerel commercial fishery when its quota has been reached, or is projected to be reached, by filing a notification at the Office of the
The Florida west coast subzone is that part of the eastern zone south and west of 25°20.4′ N. lat. (a line directly east from the Miami-Dade County, FL boundary). The Florida west coast subzone is further divided into northern and southern subzones. The northern subzone is that part of the Florida west coast subzone that is between 26°19.8′ N. lat. (a line directly west from the Lee/Collier County, FL boundary) and 87deg;31′06” W. long. (a line directly south from the Alabama/Florida boundary).
NMFS previously determined that the commercial quota for king mackerel from the western zone of the Gulf of Mexico was reached and closed that segment of the fishery on September 24, 2003 (68 FR 55554, September 26, 2003). Thus, with this closure, all commercial fisheries for Gulf group king mackerel in the EEZ are closed from the U.S./Mexico border through the northern Florida west coast subzone through June 30, 2004.
Except for a person aboard a charter vessel or headboat, during the closure, no person aboard a vessel for which a commercial permit for king mackerel has been issued may fish for Gulf group king mackerel in the EEZ in the closed zones or subzones. A person aboard a vessel that has a valid charter vessel/headboat permit for coastal migratory pelagic fish may continue to retain king mackerel in or from the closed zones or subzones under the bag and possession limits set forth in 50 CFR 622.39(c)(1)(ii) and (c)(2), provided the vessel is operating as a charter vessel or headboat. A charter vessel or headboat that also has a commercial king mackerel permit is considered to be operating as a charter vessel or headboat when it carries a passenger who pays a fee or when there are more than three persons aboard, including operator and crew.
During the closure, king mackerel from the closed zones or subzones taken in the EEZ, including those harvested under the bag and possession limits, may not be purchased or sold. This prohibition does not apply to trade in king mackerel from the closed zones or subzones that were harvested, landed ashore, and sold prior to the closure and were held in cold storage by a dealer or processor.
This action responds to the best available information recently obtained from the fishery. The Assistant
For the aforementioned reasons, the AA also finds good cause to waive the 30 day delay in the effectiveness of this action under 5 U.S.C. 553(d)(3).
This action is taken under 50 CFR 622.43(a) and is exempt from review under Executive Order 12866.
16 U.S.C. 1801
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Closure of directed fishery for Management Area 1A.
NMFS announces that 95 percent of the Atlantic herring total allowable catch (TAC) allocated to Management Area 1A (Area 1A) for fishing year 2003 is projected to be harvested by November 19, 2003. Therefore, effective 0001 hours, November 19, 2003, federally permitted vessels may not fish for, catch, possess, transfer or land more than 2,000 lb (907.2 kg) of Atlantic herring harvested from Area 1A per trip or calendar day until January 1, 2004, when the 2004 TAC becomes available. Regulations governing the Atlantic herring fishery require publication of this notification to advise vessel and dealer permit holders that 95 percent of the Atlantic herring TAC allocated to Area 1A for the 2003 fishing year has been harvested, and no TAC is available for the directed fishery for Atlantic herring harvested from Area 1A.
Effective 0001 hrs local time, November 19, 2003, through 2400 hrs local time, December 31, 2003.
Don Frei, Fisheries Management Specialist, at (978) 281-9221.
Regulations governing the Atlantic herring fishery are found at 50 CFR part 648. The regulations require annual specification of optimum yield, domestic and foreign fishing, domestic and joint venture processing, and management area TACs. The 2003 TAC allocated to Area 1A for Period 2 (68 FR 6088, February 6, 2003 and corrected at 68 FR 16731, April 7, 2003) is 54,000 mt (119,049,621 lb).
The regulations at 50 CFR 648.202 require the Administrator, Northeast Region, NMFS (Regional Administrator) to monitor the Atlantic herring fishery in each of the four management areas designated in the Fishery Management Plan for the Atlantic Herring Fishery and, based upon dealer reports, state data, and other available information, to determine when the harvest of Atlantic herring is projected to reach 95 percent of the annual TAC allocated. When such a determination is made, NMFS is required to publish notification in the
The Regional Administrator has determined, based upon dealer reports and other available information, that 95 percent of the total Atlantic herring TAC allocated to Area 1A for the 2003 fishing year is projected to be harvested by November 19, 2003. Therefore, effective 0001 hrs local time, November 19, 2003, federally permitted vessels may not fish for, catch, possess, transfer or land more than 2,000 lb (907.2 kg) of Atlantic herring harvested from Area 1A per trip or calendar day through December 31, 2003. Vessels may transit an area that is limited to the 2,000-lb (907.2-kg) limit with more than 2,000 lb (907.2 kg) of herring on board, providing all fishing gear is stowed and not available for immediate use, as required by § 648.23(b). A vessel may land herring in an area that is limited to the 2,000-lb (907.2-kg) limit specified in § 648.202(a) with more than 2,000 lb (907.2 kg) of herring on board, providing such herring were caught in an area or areas not subject to the 2,000-lb (907.2-kg) limit and providing all fishing gear is stowed and not available for immediate use as required by § 648.23(b). Effective November 19, 2003, federally permitted dealers are also advised that they may not purchase Atlantic herring from federally permitted Atlantic herring vessels that harvest more than 2,000 lb (907.2 kg) of Atlantic herring from Area 1A through December 31, 2003, 2400 hrs local time.
This action is required by 50 CFR part 648 and is exempt from review under E.O. 12866.
16 U.S.C. 1801
Federal Aviation Administration, DOT.
Notice of proposed rulemaking (NPRM).
This document proposes the adoption of a new airworthiness directive (AD) that is applicable to certain Dornier Model 328-300 series airplanes. This proposal would require replacement of 3-switch and 4-switch overhead fire extinguisher control panels with new, improved panels. This action is necessary to prevent the inadvertent release of the fire switch pushbutton on the overhead fire extinguisher control panel with the switch guard closed, which could result in an uncommanded engine shutdown. This action is intended to address the identified unsafe condition.
Comments must be received by December 17, 2003.
Submit comments in triplicate to the Federal Aviation Administration (FAA), Transport Airplane Directorate, ANM-114, Attention: Rules Docket No. 2002 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 AvCraft Aerospace GmbH, P.O. Box 1103, D-82230 Wessling, Germany. This information may be examined at the FAA, Transport Airplane Directorate, 1601 Lind Avenue, SW., Renton, Washington.
Dan Rodina, Aerospace Engineer, International Branch, ANM-116, FAA, Transport Airplane Directorate, 1601 Lind Avenue, SW., Renton, Washington 98055-4056; telephone (425) 227-2125; fax (425) 227-1149.
Interested persons are invited to participate in the making of the proposed rule by submitting such written data, views, or arguments as they may desire. Communications shall identify the Rules Docket number and be submitted in triplicate to the address specified above. All communications received on or before the closing date for comments, specified above, will be considered before taking action on the proposed rule. The proposals contained in this action may be changed in light of the comments received.
Submit comments using the following format:
Comments are specifically invited on the overall regulatory, economic, environmental, and energy aspects of the proposed rule. All comments submitted will be available, both before and after the closing date for comments, in the Rules Docket for examination by interested persons. A report summarizing each FAA-public contact concerned with the substance of this proposal will be filed in the Rules Docket.
Commenters wishing the FAA to acknowledge receipt of their comments submitted in response to this action must submit a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket Number 2002-NM-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. 2002-NM-267-AD, 1601 Lind Avenue, SW., Renton, Washington 98055-4056.
The Luftfahrt-Bundesamt (LBA), which is the airworthiness authority for Germany, notified the FAA that an unsafe condition may exist on certain Dornier Model 328-300 series airplanes. The LBA advises that the airplane manufacturer identified a design problem with the switch guard for the fire switch pushbutton on the overhead fire extinguisher control panel. The procedure that uses the switch guard to reset the fire switch pushbutton does not force the pushbutton into the locked position, and the spring force of the pushbutton works against the switch guard. A slight lifting of the switch guard during flight, due to g-forces, could cause the switch guard to open and inadvertently release the pushbutton, and activate the engine shutdown function. Such conditions could result in an uncommanded engine shutdown.
Dornier has issued Service Bulletins SB-328J-26-156 and SB-328J-26-161, both dated February 26, 2002, which describe procedures for replacing the 3-switch and 4-switch overhead fire extinguisher control panels with new, improved control panels; and operational testing of the newly installed control panels. The procedures described in the two service bulletins are similar. The serial numbers listed in the effectivity of each service bulletin are different because SB-328J-26-161 addresses airplanes with a 3-switch panel and SB-328J-26-156 addresses airplanes with a 4-switch panel. Accomplishment of the actions specified in the service bulletins is intended to adequately address the identified unsafe condition. Dornier Service Bulletin SB-328J-26-156 refers
This airplane model is manufactured in Germany and is type certificated for operation in the United States under the provisions of section 21.29 of the Federal Aviation Regulations (14 CFR 21.29) and the applicable bilateral airworthiness agreement. Pursuant to this bilateral airworthiness agreement, the LBA has kept the FAA informed of the situation described above. The FAA has examined the findings of the LBA, reviewed all available information, and determined that AD action is necessary for products of this type design that are certificated for operation in the United States.
Since an unsafe condition has been identified that is likely to exist or develop on other airplanes of the same type design registered in the United States, the proposed AD would require accomplishment of the actions specified in the service bulletins described previously.
The FAA estimates that 19 airplanes of U.S. registry would be affected by this proposed AD, that it would take approximately 1 work hour per airplane to accomplish the proposed replacement of the overhead fire extinguisher control panel, and that the average labor rate is $65 per work hour. Required parts would be provided by the parts manufacturer at no cost to operators. Based on these figures, the cost impact of the proposed AD on U.S. operators is estimated to be $1,235, or $65 per airplane.
The cost impact figure discussed above is based on assumptions that no operator has yet accomplished any of the proposed requirements of this AD action, and that no operator would accomplish those actions in the future if this AD were not adopted. The cost impact figures discussed in AD rulemaking actions represent only the time necessary to perform the specific actions actually required by the AD. These figures typically do not include incidental costs, such as the time required to gain access and close up, planning time, or time necessitated by other administrative actions.
The regulations proposed herein would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, it is determined that this proposal would not have federalism implications under Executive Order 13132.
For the reasons discussed above, I certify that this proposed regulation (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and (3) if promulgated, will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. A copy of the draft regulatory evaluation prepared for this action is contained in the Rules Docket. A copy of it may be obtained by contacting the Rules Docket at the location provided under the caption
Air transportation, Aircraft, Aviation safety, Safety.
Accordingly, pursuant to the authority delegated to me by the Administrator, the Federal Aviation Administration proposes to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) as follows:
1. The authority citation for part 39 continues to read as follows:
49 U.S.C. 106(g), 40113, 44701.
2. Section 39.13 is amended by adding the following new airworthiness directive:
To prevent the inadvertent release of the fire switch pushbutton on the overhead fire extinguisher control panel with the switch guard closed, which could result in an uncommanded engine shutdown, accomplish the following:
(a) Within 16 months after the effective date of this AD: Replace the overhead fire extinguisher control panels with new, improved fire extinguisher control panels, by accomplishing all of the actions specified in Paragraphs 2.A, 2.B(1) through (4) inclusive, and 2.C, of the Accomplishment Instructions of Dornier Service Bulletin SB-328J-26-156 or SB-328J-26-161, both dated February 26, 2002; as applicable.
Dornier Service Bulletins SB-328J-26-156 and SB-328J-26-161 refer to Smiths Aerospace Service Bulletins 371-01 and 370-01, respectively, both dated February 20, 2002, as additional sources of service information for accomplishment of the required actions.
(b) As of the effective date of this AD, no person may install fire extinguisher control panels manufactured by Smiths Aerospace having part numbers 715740-1 or 715355-1 on any airplane.
(c) In accordance with 14 CFR 39.19, the Manager, International Branch, ANM-116, FAA, Transport Airplane Directorate, is authorized to approve alternative methods of compliance for this AD.
The subject of this AD is addressed in German airworthiness directives 2002-251, dated September 5, 2002; and 2002-335, dated October 17, 2002.
Federal Aviation Administration, DOT.
Notice of proposed rulemaking (NPRM).
This document proposes the adoption of a new airworthiness directive (AD) that is applicable to certain Airbus Model A319 and A320 series airplanes. This proposal would require a modification and replacement affecting the center and wing fuel tanks. All affected airplanes would require modification of the wiring of the fuel quantity indicating probes of the center and wing fuel tanks. Some affected airplanes would also require replacement of the high-level sensors of the additional center fuel tank with new, improved sensors. These actions are necessary to prevent overheating of the fuel probes due to a short circuit, and fuel leakage due to inadequate expansion of the area within the additional center fuel tank. Such conditions could result in fuel vapors or fuel contacting an ignition source and/or consequent fire/explosion in the center fuel tank. This action is intended to address the identified unsafe condition.
Comments must be received by December 17, 2003.
Submit comments in triplicate to the Federal Aviation Administration (FAA), Transport Airplane Directorate, ANM-114, Attention: Rules Docket No. 2002-NM-153-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 Airbus Industrie, 1 Rond Point Maurice Bellonte, 31707 Blagnac Cedex, France. This information may be examined at the FAA, Transport Airplane Directorate, 1601 Lind Avenue, SW., Renton, Washington.
Dan Rodina, Aerospace Engineer, International Branch, ANM-116, FAA, Transport Airplane Directorate, 1601 Lind Avenue, SW., Renton, Washington 98055-4056; telephone (425) 227-2125; fax (425) 227-1149.
Interested persons are invited to participate in the making of the proposed rule by submitting such written data, views, or arguments as they may desire. Communications shall identify the Rules Docket number and be submitted in triplicate to the address specified above. All communications received on or before the closing date for comments, specified above, will be considered before taking action on the proposed rule. The proposals contained in this action may be changed in light of the comments received.
Submit comments using the following format:
• Organize comments issue-by-issue. For example, discuss a request to change the compliance time and a request to change the service bulletin reference as two separate issues.
• For each issue, state what specific change to the proposed AD is being requested.
• Include justification (
Comments are specifically invited on the overall regulatory, economic, environmental, and energy aspects of the proposed rule. All comments submitted will be available, both before and after the closing date for comments, in the Rules Docket for examination by interested persons. A report summarizing each FAA-public contact concerned with the substance of this proposal will be filed in the Rules Docket.
Commenters wishing the FAA to acknowledge receipt of their comments submitted in response to this action must submit a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket Number 2002-NM-153-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. 2002-NM-153-AD, 1601 Lind Avenue, SW., Renton, Washington 98055-4056.
The Direction Générale de l'Aviation Civile (DGAC), which is the airworthiness authority for France, notified the FAA that an unsafe condition may exist on certain Airbus Model A319 and A320 series airplanes. The DGAC advises that investigations done by the manufacturer have revealed a potential risk of a 28-volt direct current short circuit, external to the fuel tank, of fuel quantity indicating (FQI) wiring installed in harnesses that contain wiring for other power systems. This short circuit could lead to overheating of the fuel probes and risk of an explosion. In addition, testing of the additional center fuel tank revealed that compliance with Joint Aviation Regulation 25.0989, which requires a 2% expansion of the center fuel tank, could not be attained due to sagging of the bladder. To correct this deficiency a new, improved high-level sensor has been developed that is longer and senses the fuel at a lower level, which reduces the fuel volume and allows for the 2% expansion. Overheating of the fuel probes due to a short circuit, and fuel leakage due to inadequate expansion of the area within the additional center fuel tank, could result in fuel vapors or fuel contacting an ignition source, and/or consequent fire/explosion in the center fuel tank.
Airbus has issued Service Bulletin A320-28-1087, Revision 02, dated June 10, 2003, which describes procedures for modification of the wiring of the FQI probes of the center and wing fuel tanks. The modification includes the following:
• Installation of fused adaptors for the FQI probes of the center tanks.
• Installation of fused plug connectors for the FQI probes of the wing tanks.
• Installation of fused adapters between the external wiring harness and the in-tank wiring of the connectors on the center fuel tank wall.
• Operational testing of the refuel/defuel system, a leak test, a test of the pressure switch of the fuel transfer pump, and an operational test of the individual motor of the transfer valve, and repair if necessary.
Airbus also has issued Service Bulletin A320-28-1086, Revision 01, dated October 23, 2002, applicable to certain Airbus Model A319-115 and -133 series airplanes. The service bulletin describes procedures for replacement of the existing high-level sensors with new, improved sensors. The replacement includes installation of new, improved sensors, bonding leads, and a placard. Procedures are provided for operational tests of the additional center fuel tanks following the installation, and repair if necessary.
The DGAC classified these service bulletins as mandatory and issued French airworthiness directive 2002-220(B) R1, dated October 15, 2003, to ensure the continued airworthiness of these airplanes in France.
These airplane models are manufactured in France and are type certificated for operation in the United States under the provisions of section 21.29 of the Federal Aviation Regulations (14 CFR 21.29) and the applicable bilateral airworthiness agreement. Pursuant to this bilateral airworthiness agreement, the DGAC has kept us informed of the situation described above. We have examined the findings of the DGAC, reviewed all available information, and determined that AD action is necessary for products of this type design that are certificated for operation in the United States.
Since an unsafe condition has been identified that is likely to exist or develop on other airplanes of the same type design registered in the United States, the proposed AD would require accomplishment of the actions specified in the applicable service bulletin described previously.
The FAA estimates that 468 airplanes of U.S. registry would be affected by this proposed AD.
It would take between 10 and 22 work hours per airplane to accomplish the proposed modification, at an average labor rate of $65 per work hour. Required parts would cost between $670 and $5750 per airplane. Based on these figures, the cost impact of the modification proposed by this AD is estimated to be between $617,760 and $3,360,240, or between $1,320 and $7,180 per airplane.
Should an operator be required to do the replacement of the high-level sensors, it would take about 80 work hours, at an average labor rate of $65 per work hour. Required parts would be free of charge. Based on these figures, the cost impact of the replacement proposed by this AD is estimated to be $5,200 per airplane.
The cost impact figures discussed above are 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 regulations proposed herein would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, it is determined that this proposal would not have federalism implications under Executive Order 13132.
For the reasons discussed above, I certify that this proposed regulation (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and (3) if promulgated, will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. A copy of the draft regulatory evaluation prepared for this action is contained in the Rules Docket. A copy of it may be obtained by contacting the Rules Docket at the location provided under the caption
Air transportation, Aircraft, Aviation safety, Safety.
Accordingly, pursuant to the authority delegated to me by the Administrator, the Federal Aviation Administration proposes to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) as follows:
1. The authority citation for part 39 continues to read as follows:
49 U.S.C. 106(g), 40113, 44701.
2. Section 39.13 is amended by adding the following new airworthiness directive:
To prevent overheating of the fuel probes due to a short circuit, and fuel leakage due to inadequate expansion of the area within the additional center fuel tank, which could result in fuel vapors or fuel contacting an ignition source and/or consequent fire/explosion in the center fuel tank, accomplish the following:
(a) Within 4,000 flight hours or 30 months after the effective date of this AD, whichever is first: Do the applicable actions specified in paragraphs (a)(1) and (a)(2) of this AD. Accomplishment of the modification before the effective date of this AD per Airbus Service Bulletin A320-28-1087, dated July 17, 2001; or Revision 01, dated March 3, 2003; or accomplishment of the replacement before the effective date of this AD per Airbus Service Bulletin A320-28-1086, dated November 30, 1999; as applicable; is considered acceptable for compliance with the corresponding action specified in paragraph (a)(1) or (a)(2) of this AD.
(1) For airplanes defined in Airbus Service Bulletin A320-28-1087, Revision 02, dated June 10, 2003: Modify the wiring of the fuel quantity indicating probes of the center and wing fuel tanks by doing all the actions specified in paragraphs 3.A. through 3.D. (including operational testing and any applicable repair) of the Accomplishment Instructions of the service bulletin. Do the actions per the service bulletin. Any applicable repair must be done before further flight.
(2) For airplanes defined in Airbus Service Bulletin A320-28-1086, Revision 01, dated October 23, 2002: Prior to or concurrent with accomplishment of paragraph (a)(1) of this AD, replace the high-level sensors of the additional center fuel tanks by doing all the actions specified in paragraphs 3.A through 3.D. (including operational testing and any applicable repair) of the Accomplishment Instructions of the service bulletin. Do the actions per the service bulletin. Any applicable repair must be done before further flight.
(b) In accordance with 14 CFR 39.19, the Manager, International Branch, ANM-116, FAA, Transport Airplane Directorate, is authorized to approve alternative methods of compliance for this AD.
The subject of this AD is addressed in French airworthiness directive 2002-220(B) R1, dated October 15, 2003.
Federal Aviation Administration, DOT.
Notice of proposed rulemaking (NPRM).
This document proposes the adoption of a new airworthiness directive (AD) that is applicable to certain Bombardier Model DHC-8-401 and -402 airplanes. This proposal would require modifying the wiring of the rudder trim switch, inspecting all wiring on the back of the aileron/rudder trim control panel for chafing, and replacing any chafed wiring with new wiring. This action is necessary to prevent a short circuit on the aileron/rudder trim control panel that could cause a runaway condition of the rudder trim actuator, which could result in reduced controllability of the airplane. This action is intended to address the identified unsafe condition.
Comments must be received by December 17, 2003.
Submit comments in triplicate to the Federal Aviation Administration (FAA), Transport Airplane Directorate, ANM-114, Attention: Rules Docket No. 2002-NM-120-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., Bombardier Regional Aircraft Division, 123 Garratt Boulevard, Downsview, Ontario M3K 1Y5, 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.
Douglas Wagner, Aerospace Engineer, Systems and Flight Test Branch, ANE-172, FAA, New York Aircraft Certification Office, 10 Fifth Street, Third Floor, Valley Stream, New York 11581; telephone (516) 256-7506; 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 2002-NM-120-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. 2002-NM-120-AD, 1601 Lind Avenue, SW., Renton, Washington 98055-4056.
Transport Canada Civil Aviation (TCCA), which is the airworthiness authority for Canada, notified the FAA that an unsafe condition may exist on certain Bombardier Model DHC-8-401 and -402 airplanes. TCCA advises that an incident of runaway of the rudder trim actuator occurred immediately following take-off. Investigation revealed a discrepancy in the wiring of the rudder trim control switch on the aileron/rudder trim control panel. This resulted in the rudder trim control switch being constantly enabled. In the event of a short-circuit of a wire, this condition, if not corrected, could result in a runaway condition of the rudder trim actuator and consequent reduced controllability of the airplane.
Bombardier has issued Alert Service Bulletin A84-27-13, Revision “B,” dated January 12, 2002. That service bulletin describes procedures for modifying the wiring of the rudder trim switch, and performing a one-time general visual inspection of all wiring on the back of the aileron/rudder trim control panel for chafing, and replacement of any chafed wiring with new wiring. Accomplishment of the actions specified in the service bulletin is intended to adequately address the identified unsafe condition. TCCA classified this service bulletin as mandatory and issued Canadian airworthiness directive CF-2002-15, dated February 20, 2002, to ensure the continued airworthiness of these airplanes in Canada.
This airplane model is manufactured in Canada and is type certificated for operation in the United States under the provisions of section 21.29 of the Federal Aviation Regulations (14 CFR 21.29) and the applicable bilateral airworthiness agreement. Pursuant to this bilateral airworthiness agreement, TCCA has kept the FAA informed of the situation described above. The FAA has examined the findings of TCCA, reviewed all available information, and determined that AD action is necessary for products of this type design that are certificated for operation in the United States.
Since an unsafe condition has been identified that is likely to exist or develop on other airplanes of the same type design registered in the United States, the proposed rule would require accomplishment of the actions specified in the service bulletin described previously.
The FAA estimates that 12 airplanes of U.S. registry would be affected by this proposed AD, that it would take approximately 1 work hour per airplane to accomplish the proposed actions, and that the average labor rate is $65 per
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 regulations proposed herein would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, it is determined that this proposal would not have federalism implications under Executive Order 13132.
For the reasons discussed above, I certify that this proposed regulation (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and (3) if promulgated, will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. A copy of the draft regulatory evaluation prepared for this action is contained in the Rules Docket. A copy of it may be obtained by contacting the Rules Docket at the location provided under the caption
Air transportation, Aircraft, Aviation safety, Safety.
Accordingly, pursuant to the authority delegated to me by the Administrator, the Federal Aviation Administration proposes to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) as follows:
1. The authority citation for part 39 continues to read as follows:
49 U.S.C. 106(g), 40113, 44701.
2. Section 39.13 is amended by adding the following new airworthiness directive:
To prevent a short circuit on the aileron/rudder trim control panel that could cause a runaway condition of the rudder trim actuator, which could result in reduced controllability of the airplane, accomplish the following:
(a) Within 90 days after the effective date of this AD, do the actions in paragraphs (a)(1) and (a)(2) of this AD, per the Accomplishment Instructions of Bombardier Alert Service Bulletin A84-27-13, Revision “B,” dated January 12, 2002.
(1) Modify the wiring of the rudder trim switch.
(2) Before further flight after accomplishing the modification required by paragraph (a)(1) of this AD: Perform a one-time general visual inspection of all wiring on the back of the aileron/rudder trim control panel for chafing. Before further flight, replace any chafed wiring with new wiring.
For the purposes of this AD, a general visual inspection is defined as: “A visual examination of an interior or exterior area, installation, or assembly to detect obvious damage, failure, or irregularity. This level of inspection is made from within touching distance unless otherwise specified. A mirror may be necessary to enhance visual access to all exposed surfaces in the inspection area. This level of inspection is made under normally available lighting conditions such as daylight, hangar lighting, flashlight, or droplight and may require removal or opening of access panels or doors. Stands, ladders, or platforms may be required to gain proximity to the area being checked.”
(b) Modifications and inspections accomplished before the effective date of this AD per Bombardier Alert Service Bulletin A84-27-13, Revision “A,” dated January 9, 2002, are acceptable for compliance with the corresponding actions required by paragraph (a) of this AD.
(c) As of the effective date of this AD, no person may install aileron/rudder trim control panel having part number 82410608-005 on any airplane, unless the control panel has been modified and inspected per the requirements of this AD.
(d) In accordance with 14 CFR 39.19, the Manager, New York Aircraft Certification Office (ACO), FAA, is authorized to approve alternative methods of compliance for this AD.
The subject of this AD is addressed in Canadian airworthiness directive CF-2002-15, dated February 20, 2002.
Federal Aviation Administration, DOT.
Notice of proposed rulemaking (NPRM).
This document proposes the adoption of a new airworthiness directive (AD) that is applicable to certain McDonnell Douglas Model DC-8-70 and -70F series airplanes. This proposal would require repetitive inspections for cracking of the lower cargo doorjamb corners, and corrective action if necessary. For certain airplanes, this proposal would provide for optional terminating action for certain repetitive inspections. For certain other airplanes, this proposal would require modification of the lower cargo doorjamb corners. This action is necessary to detect and correct cracking in the lower cargo doorjamb corners, which could result in rapid decompression of the fuselage and consequent reduced structural integrity of the airplane. This action is intended to address the identified unsafe condition.
Comments must be received by January 2, 2004.
Submit comments in triplicate to the Federal Aviation Administration (FAA), Transport Airplane Directorate, ANM-114, Attention: Rules Docket No. 2001-NM-133-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 Boeing Commercial Aircraft Group, Long Beach Division, 3855 Lakewood Boulevard, Long Beach, California 90846, Attention: Data and Service Management, Dept. C1-L5A (D800-0024). This information may be examined at the FAA, Transport Airplane Directorate, 1601 Lind Avenue, SW., Renton, Washington; or at the FAA, Los Angeles Aircraft Certification Office, 3960 Paramount Boulevard, Lakewood, California.
Jon Mowery, Aerospace Engineer, Airframe Branch, ANM-120L, FAA, Los Angeles Aircraft Certification Office, 3960 Paramount Boulevard, Lakewood, California 90712-4137; telephone (562) 627-5322; fax (562) 627-5210.
Interested persons are invited to participate in the making of the proposed rule by submitting such written data, views, or arguments as they may desire. Communications shall identify the Rules Docket number and be submitted in triplicate to the address specified above. All communications received on or before the closing date for comments, specified above, will be considered before taking action on the proposed rule. The proposals contained in this action may be changed in light of the comments received.
Submit comments using the following format:
• Organize comments issue-by-issue. For example, discuss a request to change the compliance time and a request to change the service bulletin reference as two separate issues.
• For each issue, state what specific change to the proposed AD is being requested.
• Include justification (
Comments are specifically invited on the overall regulatory, economic, environmental, and energy aspects of the proposed rule. All comments submitted will be available, both before and after the closing date for comments, in the Rules Docket for examination by interested persons. A report summarizing each FAA-public contact concerned with the substance of this proposal will be filed in the Rules Docket.
Commenters wishing the FAA to acknowledge receipt of their comments submitted in response to this action must submit a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket Number 2001-NM-133-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-133-AD, 1601 Lind Avenue, SW., Renton, Washington 98055-4056.
The FAA has received reports of fatigue cracks in the fuselage skin in the lower cargo doorjamb corners on McDonnell Douglas Model DC-8-70 and -70F series airplanes. These cracks were discovered during inspections conducted as part of the Supplemental Inspection Document (SID) program required by AD 93-01-15, amendment 39-8469 (58 FR 5576, January 22, 1993). The cracks were found in areas that extend beyond the inspection areas of AD 93-01-15. Investigation revealed that the cracking was caused by fatigue-related stress. Such fatigue cracking, if not corrected, could result in rapid decompression of the fuselage and consequent reduced structural integrity of the airplane.
We have reviewed and approved McDonnell Douglas Service Bulletin DC8-53-078, Revision 01, dated January 25, 2001, which describes procedures for various repetitive inspections for cracking of the lower cargo doorjamb corners, and corrective action if necessary. The service bulletin divides the effectivity into four groups of airplanes, based on the modification status of the lower cargo doorjamb corners. The service bulletin also describes procedures for certain airplanes for a modification of the lower cargo doorjamb corners, which, if accomplished, would eliminate the need for certain repetitive inspections. The manufacturer issued Revision 01 to revise the compliance schedules for certain inspections. Accomplishment of the actions specified in the service bulletin is intended to adequately address the identified unsafe condition.
We have identified Revision 01 of the service bulletin as an alternative method of compliance (AMOC) with the requirements of paragraphs (a), (b), and (c) of AD 93-01-15.
Since an unsafe condition has been identified that is likely to exist or develop on other products of this same type design, the proposed AD would require accomplishment of the actions specified in the service bulletin described previously, except as discussed below. The proposed AD would also require that operators send us a report of the results of each inspection.
Although the service bulletin specifies that the manufacturer may be contacted for disposition of certain repair conditions, this proposal would require that those repairs be done per an FAA-approved method, or per data meeting the type certification basis of the airplane approved by a Boeing Company Designated Engineering Representative whom we have authorized to make such findings.
There are about 264 airplanes of the affected design in the worldwide fleet. We estimate that 244 airplanes of U.S. registry would be affected by this proposed AD.
The proposed pre-modification inspections, if required, would take about 24 work hours per airplane, at an average labor rate of $65 per work hour. Based on these figures, the cost impact of these proposed actions is estimated to be $1,560 per airplane, per inspection cycle.
The modification, if accomplished, would take about 520 work hours per airplane, at an average labor rate of $65 per work hour. The parts would cost about $25,000. Based on these figures, the cost impact of this action is estimated to be $58,800 per airplane.
The proposed post-modification inspections would take about 40 work hours per airplane, at an average labor rate of $65 per work hour. Based on these figures, the cost impact of these proposed actions is estimated to be $634,400, or $2,600 per airplane, per inspection cycle.
The cost impact figures discussed above are based on assumptions that no operator has yet accomplished any of the proposed requirements of this AD action, and that no operator would accomplish those actions in the future if this proposed AD were not adopted. The cost impact figures discussed in AD rulemaking actions represent only the
The regulations proposed herein would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, it is determined that this proposal would not have federalism implications under Executive Order 13132.
For the reasons discussed above, I certify that this proposed regulation: (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and (3) if promulgated, will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. A copy of the draft regulatory evaluation prepared for this action is contained in the Rules Docket. A copy of it may be obtained by contacting the Rules Docket at the location provided under the caption
Air transportation, Aircraft, Aviation safety, Safety.
Accordingly, pursuant to the authority delegated to me by the Administrator, the Federal Aviation Administration proposes to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) as follows:
1. The authority citation for part 39 continues to read as follows:
49 U.S.C. 106(g), 40113, 44701.
2. Section 39.13 is amended by adding the following new airworthiness directive:
To detect and correct cracking in the lower cargo doorjamb corners, which could result in rapid decompression of the fuselage and consequent reduced structural integrity of the airplane, accomplish the following:
This AD is related to AD 93-01-15, amendment 39-8469, and will affect Principal Structural Elements (PSEs) 53.08.042 and 53.08.043 of the DC-8 Supplemental Inspection Document (SID), Report L26-011, Volume II, Revision 7, dated April 1993.
(a) For airplanes identified as Group 1 in McDonnell Douglas Service Bulletin DC8-53-078, Revision 01, dated January 25, 2001:
(1) Within 2,000 landings or 3 years after the effective date of this AD, whichever occurs first, perform applicable inspections for cracking of the lower cargo doorjamb corners, in accordance with the Accomplishment Instructions of the service bulletin.
(i) If no crack is detected during any inspection required by this paragraph: Repeat the inspections within the intervals specified in paragraph 1.E. of the service bulletin.
(ii) If any crack is detected during any inspection required by this paragraph: Repair before further flight in accordance with the Accomplishment Instructions of the service bulletin.
(2) Modification of the lower cargo doorjamb corners in accordance with the Accomplishment Instructions of the service bulletin terminates the repetitive inspection requirement of paragraph (a)(1)(i) of this AD.
(3) For airplanes repaired or modified in accordance with paragraph (a)(1)(ii) or (a)(2) of this AD: Within 17,000 landings after the repair or modification, perform an eddy current inspection for cracks of the doorjamb corners, in accordance with the Accomplishment Instructions of the service bulletin (Drawing SN08530001). Repeat the inspection at intervals not to exceed 4,400 landings.
(b) For airplanes identified as Group 2 in McDonnell Douglas Service Bulletin DC8-53-078, Revision 01, dated January 25, 2001:
(1) Within 2,000 landings or 3 years after the effective date of this AD, whichever occurs first, modify the lower cargo doorjamb corners in accordance with the Accomplishment Instructions of the service bulletin.
(2) Within 17,000 landings after the modification required by paragraph (b)(1) of this AD, perform applicable inspections for cracking of the doorjamb corners, in accordance with the Accomplishment Instructions of the service bulletin. Repeat the inspections at intervals not to exceed 4,400 landings.
(c) For airplanes identified as Group 3 and Group 4 in McDonnell Douglas Service Bulletin DC8-53-078, Revision 01, dated January 25, 2001: Within 17,000 landings following accomplishment of the modification specified in the service bulletin, perform applicable inspections for cracking of the lower cargo doorjamb corners, in accordance with the Accomplishment Instructions of the service bulletin. Repeat the inspections at intervals not to exceed 4,400 landings.
(d) If any cracking is detected during any inspection required by paragraph (a)(3), (b)(2), or (c) of this AD: Repair before further flight in accordance with a method approved by the Manager, Los Angeles Aircraft Certification Office (ACO), FAA; or per data meeting the type certification basis of the airplane approved by a Boeing Company Designated Engineering Representative (DER) who has been authorized by the Manager, Los Angeles ACO, to make such findings. For a repair method to be approved, the approval must specifically refer to this AD.
(e) Inspections done before the effective date of this AD in accordance with McDonnell Douglas Service Bulletin DC8-53-078, dated February 6, 1996, are acceptable for compliance with the applicable inspections required by this AD.
(f) Inspections and repairs specified in this AD of areas of PSEs 53.08.042 and 53.08.043 are acceptable for compliance with the applicable requirements of paragraphs (a), (b), and (c) of AD 93-01-15. The remaining areas of the affected PSEs must be inspected and repaired as applicable, in accordance with AD 93-01-15.
(g) At the applicable time specified in paragraph (g)(1) or (g)(2) of this AD: Submit a report of the findings (both positive and negative) of each inspection required by this AD to the Manager, Los Angeles ACO. Under the provisions of the Paperwork Reduction Act of 1980 (44 U.S.C. 3501
(1) For an inspection done after the effective date of this AD: Submit the report within 10 days after the inspection.
(2) For an inspection done before the effective date of this AD: Submit the report within 10 days after the effective date of this AD.
(h)(1) In accordance with 14 CFR 39.19, the Manager, Los Angeles ACO, FAA, is authorized to approve alternative methods of compliance (AMOCs) for this AD.
(2) An AMOC that provides an acceptable level of safety may be used for any repair required by this AD, if it is approved by a Boeing DER who has been authorized by the Manager, Los Angeles ACO, to make such findings.
Federal Aviation Administration, DOT.
Notice of proposed rulemaking (NPRM).
This document proposes the adoption of a new airworthiness directive (AD) that is applicable to certain Airbus Model A320-111, -211, -212, and -231 series airplanes. This proposal would require repetitive inspections for fatigue cracking around the fasteners attaching the pressure panel to the flexible bracket at frame 36, adjacent to the longitudinal beams on the left and right sides of the airplane; and repair as necessary. This proposal would also provide an optional terminating action for the repetitive inspections. This action is necessary to detect and correct fatigue cracking around the fasteners attaching the pressure panel to the flexible bracket at the frame 36 adjacent to the longitudinal beams, which could result in reduced structural integrity and possible rapid decompression of the airplane. This action is intended to address the identified unsafe condition.
Comments must be received by December 17, 2003.
Submit comments in triplicate to the Federal Aviation Administration (FAA), Transport Airplane Directorate, ANM-114, Attention: Rules Docket No. 2001-NM-107-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 Airbus Industrie, 1 Rond Point Maurice Bellonte, 31707 Blagnac Cedex, France. This information may be examined at the FAA, Transport Airplane Directorate, 1601 Lind Avenue, SW., Renton, Washington.
Tim Dulin, Aerospace Engineer, International Branch, ANM-116, FAA, Transport Airplane Directorate, 1601 Lind Avenue, SW., Renton, Washington 98055-4056; telephone (425) 227-2141; fax (425) 227-1149.
Interested persons are invited to participate in the making of the proposed rule by submitting such written data, views, or arguments as they may desire. Communications shall identify the Rules Docket number and be submitted in triplicate to the address specified above. All communications received on or before the closing date for comments, specified above, will be considered before taking action on the proposed rule. The proposals contained in this action may be changed in light of the comments received.
Submit comments using the following format:
• Organize comments issue-by-issue. For example, discuss a request to change the compliance time and a request to change the service bulletin reference as two separate issues.
• For each issue, state what specific change to the proposed AD is being requested.
• Include justification (
Comments are specifically invited on the overall regulatory, economic, environmental, and energy aspects of the proposed rule. All comments submitted will be available, both before and after the closing date for comments, in the Rules Docket for examination by interested persons. A report summarizing each FAA-public contact concerned with the substance of this proposal will be filed in the Rules Docket.
Commenters wishing the FAA to acknowledge receipt of their comments submitted in response to this action must submit a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket Number 2001-NM-107-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-107-AD, 1601 Lind Avenue, SW., Renton, Washington 98055-4056.
The Direction Générale de l'Aviation Civile (DGAC), which is the airworthiness authority for France, notified the FAA that an unsafe condition may exist on certain Airbus Model A320-111, -211, -212, and -231 series airplanes. The DGAC advises that during fatigue tests, cracking was detected around the fasteners attaching the pressure panel to the flexible bracket at frame 36, adjacent to the longitudinal beams on the left and right sides of the airplane. Investigation revealed that the damage was caused by high loads in this area. Such cracking, if not corrected, could result in reduced structural integrity and possible rapid decompression of the airplane.
Airbus has issued Service Bulletin A320-53-1030, Revision 01, dated May 21, 2002. This service bulletin describes procedures for repetitive inspections for fatigue cracking around the fasteners attaching the pressure panel to the flexible bracket at frame 36, adjacent to the longitudinal beams on the left and right sides of the airplane; and repair if necessary. This service bulletin permits flight with cracks of specific lengths.
Airbus Service Bulletin A320-53-1030, Revision 01, includes procedures for the following actions:
• Repetitive rotating probe inspections on airplanes with a center fuel tank, or repetitive detailed inspections on airplanes without a center fuel tank, for cracking of the fastener holes that attach the pressure panel to the flexible bracket at frame 36, adjacent to the longitudinal beams.
• For certain airplanes on which cracking of specific lengths is found, installation of the applicable repair/modification kit (including modification of the pressure panel and longitudinal beams by removing material, inspection of bolt holes for cracking, repair of cracked areas, cold expansion of the bolt holes, and installation of a doubler).
Airbus Service Bulletin A320-53-1029, Revision 01, includes procedures for modifying the pressure panels located at frame 36 (including drilling
Accomplishment of the actions specified in Airbus Service Bulletin A300-53-1030, Revision 01, is intended to adequately address the identified unsafe condition. The DGAC classified this service bulletin as mandatory and issued French airworthiness directive 2000-531-155(B), dated December 27, 2000, to ensure the continued airworthiness of these airplanes in France.
This airplane model is manufactured in France and is type certificated for operation in the United States under the provisions of section 21.29 of the Federal Aviation Regulations (14 CFR 21.29) and the applicable bilateral airworthiness agreement. Pursuant to this bilateral airworthiness agreement, the DGAC has kept the FAA informed of the situation described above. The FAA has examined the findings of the DGAC, reviewed all available information, and determined that AD action is necessary for products of this type design that are certificated for operation in the United States.
Since an unsafe condition has been identified that is likely to exist or develop on other airplanes of the same type design registered in the United States, the proposed AD would require accomplishment of the actions specified in Airbus Service Bulletin A300-53-1030, Revision 01, described previously, except as discussed below. This proposed AD also would provide for optional terminating action for the repetitive inspections.
Consistent with the findings of the DGAC, the proposed AD would allow repetitive inspections to continue in lieu of the terminating action, provided no cracking is found during any inspection. 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.
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 the DGAC (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 the DGAC would be acceptable for compliance with this proposed AD.
Unlike Airbus Service Bulletin A300-53-1030, Revision 01, this proposed AD would not permit further flight if any cracking is detected, regardless of crack length, around the fasteners that attach the pressure panel to the flexible bracket at frame 36, adjacent to the longitudinal beams on the left and right sides of the airplane. We have determined that, because of the safety implications and consequences associated with such cracking, any cracking must be repaired before further flight.
The FAA estimates that 24 airplanes of U.S. registry would be affected by this proposed AD.
For airplanes without a center fuel tank, it would take approximately 1 work hour per airplane to accomplish the proposed detailed inspection, at an average labor rate of $65 per work hour. Based on these figures, the cost impact of the proposed detailed inspection is estimated to be $65 per airplane, per inspection cycle.
For airplanes with a center fuel tank, it would take approximately 2 work hours per airplane to accomplish the proposed rotating probe inspection at an average labor rate of $65 per work hour. Based on these figures, the cost impact of the proposed inspection is estimated to $130 per airplane, per inspection cycle.
The cost impact figures discussed above are 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.
Should an operator elect to perform the optional terminating action, it would take approximately 12 work hours per airplane to accomplish the proposed cold work modification, at an average labor rate of $65 per work hour. The cost of required parts is $650. Based on these figures, the cost impact of the optional terminating action is estimated to be $1,430 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 adding the following new airworthiness directive:
To detect and correct fatigue cracking around the fasteners connecting the pressure panel to the flexible bracket at frame 36, adjacent to the longitudinal beams on the left and right sides of the airplane, which could result in reduced structural integrity and possible rapid decompression of the airplane, accomplish the following:
(a) Prior to the accumulation of 30,000 total flight cycles, do a rotating probe inspection on airplanes with a center fuel tank, or a detailed inspection on airplanes without a center fuel tank, to detect cracking around the fasteners that attach the pressure panel to the flexible bracket at frame 36, adjacent to the longitudinal beams on the left and right sides of the airplane, in accordance with the Accomplishment Instructions of Airbus Service Bulletin A320-53-1030, Revision 01, dated May 21, 2002.
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.”
(b) If no cracks are detected by the inspection required by paragraph (a) of this AD, repeat the applicable inspection thereafter at intervals not to exceed 6,000 flight cycles for airplanes without a center fuel tank, and at intervals not to exceed 18,000 flight cycles for airplanes with a center fuel tank.
(c) If any cracking is detected during any inspection required by paragraph (a) of this AD, before further flight, repair the affected structure by accomplishing all applicable actions in accordance with paragraphs 3.B. through 3.E. of the Accomplishment Instructions of Airbus Service Bulletin A320-53-1030, Revision 01, dated May 21, 2002. Repeat the applicable inspection thereafter at intervals not to exceed 6,000 flight cycles for airplanes without a center fuel tank, and at intervals not to exceed 18,000 flight cycles for airplanes with a center fuel tank. For any area where cracking is repaired, the repair constitutes terminating action for the repetitive inspection of that area.
Airbus Service Bulletin A320-53-1030 references Airbus Service Bulletin A320-53-1029, Revision 01, dated April 29, 2002, as an additional source of service information for certain repairs.
(d) If any service bulletin specifies to contact the manufacturer for appropriate action: Before further flight, repair in accordance with a method approved by the Manager, International Branch, ANM-116, FAA, Transport Airplane Directorate or the Direction Gale de l'Aviation Civile (or its delegated agent).
(e) Modification of the structure around the fasteners that attach the pressure panel to the flexible bracket at frame 36, adjacent to the longitudinal beams on the left and right sides of the airplane, by accomplishing all applicable actions in accordance with paragraphs 3.A. through 3.E of the Accomplishment Instructions of Airbus Service Bulletin A320-53-1029, Revision 01, dated April 29, 2002, constitutes terminating action for this AD.
(f) Accomplishment of the required actions before the effective date of this AD in accordance with Airbus Service Bulletin A320-53-1030, dated January 5, 2000; or Airbus Service Bulletin A320-53-1029, dated January 5, 2000; is considered acceptable for compliance with the applicable requirements of paragraphs (a), (b), and (c) of this AD.
(g) In accordance with 14 CFR 39.19, the Manager, International Branch, ANM-116, FAA, is authorized to approve alternative methods of compliance for this AD.
The subject of this AD is addressed in French airworthiness directive 2000-531-155(B), dated December 27, 2000.
Federal Aviation Administration (FAA), DOT.
Notice of public meetings.
This notice announces four fact-finding informal airspace meetings to solicit information from airspace users, and others, concerning a proposal to revise the Class B airspace at Los Angeles, CA. The purpose of these meetings is to provide interested parties an opportunity to present views, recommendations, and comments on the proposal. All comments received during these meetings will be considered prior to any revision or issuance of a notice of proposed rulemaking.
The informal airspace meetings will be held on Tuesday, January 20, 2004; Thursday, January 22, 2004; Tuesday, January 27, 2004; and Thursday, January 29, 2004; beginning at 7 p.m. Comments must be received on or before February 29, 2004.
(1) The meeting on Tuesday, January 20, 2004, will be held at the Embassy Suites Los Angeles South—Imperial Ballroom, 1440 E. Imperial Avenue, El Segundo, CA, 90245. Directions: Take the 405 Freeway to the 105 Freeway, go west to Freeway end. Then turn left at California Street. The hotel is on the left. (2) The meeting on Thursday, January 22, 2004, will be held at the James Monroe High School—Odens Hall/Multi Purpose Room, 9229 Haskell Avenue, North Hills, CA, 91343. Directions: Take the 405 Freeway to Nordhoff Street, turn left and go two blocks to Haskell Avenue. High school is on the right. (3) The meeting on Tuesday, January 27, 2004, will be held at the Riverside Marriot Hotel—Grand Ball Room, 3400 Market Street, Riverside, CA, 92501. Directions: Take 60 East, then take the exit for Market Street and turn right. The hotel is
Debra Trindle, Air Traffic Division, AWP-520, FAA, Western-Pacific Regional Office, telephone (310) 725-6611.
The following procedures will be used to facilitate the meeting:
(a) The meetings will be informal in nature and will be conducted by one or
(b) The meetings will be open to all persons on a space-available basis. There will be no admission fee or other charge to attend and participate.
(c) Any person wishing to make a presentation to the FAA panel will be asked to sign in and estimate the amount of time needed for such presentation. This will permit the panel to allocate an appropriate amount of time for each presenter.
(d) The meetings will not be adjourned until everyone on the list has had an opportunity to address the panel.
(e) Position papers or other handout material relating to the substance of these meetings will be accepted. Participants wishing to submit handout material should present
(f) These meetings will not be formally recorded. However, a summary of the comments made at the meeting will be filed in the docket.
• Opening Remarks and Discussion of Meeting Procedures.
• Briefing on Background of the Class B Proposal.
• Public Presentations and Comments.
• Closing Comments.
Notice of proposed rulemaking (NPRM).
This action proposes to establish new restricted areas (R-4601 A, B, C, and D) in the vicinity of Bearpaw, MT, as part of a Montana Air National Guard (MANG) training initiative. The MANG has requested the airspace be established to improve current air-to-ground training efficiency for the 120th Fighter Wing (120th FW).
Comments must be received on or before January 16, 2004.
Ken McElroy, Airspace and Rules Division, ATA-400, Office of Air Traffic Airspace Management, Federal Aviation Administration, 800 Independence Avenue, SW., Washington, DC 20591; telephone: (202) 267-8783.
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 both docket numbers (FAA Docket No. FAA-2003-15411, and Airspace Docket No. 02-ANM-15) and be submitted in triplicate to the Docket Management System, U.S. Department of Transportation, Room Plaza 401, 400 Seventh Street, SW., Washington, DC 20590-0001. You may also submit comments through the Internet at
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 FAA Docket No. FAA-2003-15411, and Airspace Docket No. 02-ANM-15.” The postcard will be date/time stamped and returned to the commenter. All communications received on or before the specified closing date for comments will be considered before taking action on the proposed rule. The proposal contained in this action may be changed in light of comments received.
All comments submitted will be available for examination in the public docket both before and after the closing date for comments. A report summarizing each substantive public contact with FAA personnel concerned with this rulemaking will be filed in the docket.
An electronic copy of this document may be downloaded through the Internet at
You may review the public docket containing the proposal, any comments received, and any final disposition in person in the Dockets Office (see address in “Comments Invited” section) between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. An informal docket may also be examined during normal business hours at the office of the Regional Air Traffic Division, Federal Aviation Administration, 1601 Lind Avenue, #14, SW., Renton, WA 98055.
Persons interested in being placed on a mailing list for future NPRM's should call the FAA's Office of Rulemaking, (202) 267-9677, for a copy of Advisory Circular No. 11-2A, Notice of Proposed Rulemaking Distribution System, which describes the application procedure.
Air National Guard units must be capable of responding to a variety of needs, wartime situations, and peacekeeping missions that were formerly assigned to the active duty Air Force. To respond to these situations rapidly and effectively, Air National Guard units must train to the same standards established for the active duty Air Force, including weapons delivery training at air-to-ground training ranges. The establishment of a training range in Montana would result in time and cost savings to the 120th FW. The 120th FW currently conducts most of its air-to-ground training at the Utah Test and Training Range. A “local” training range (within a distance of 150 nautical miles from Great Falls) would save at least 41 minutes of flying time for each mission while increasing the amount of time spent training on that mission by 38 minutes. By reducing distance traveled to conduct air-to-ground training the efficiency and effectiveness of training would be enhanced.
The FAA is proposing an amendment to 14 Code of Federal Regulations (CFR) part 73 (part 73) to establish R-4601 A, B, C, and D, in the vicinity Bearpaw, MT, as part of a MANG training initiative. The proposed training range would be located beneath Hays Military Operations Area (MOA) where the MANG, 120th FW currently conducts
Section 73.46 of part 73 of the Federal Aviation Regulations was republished in FAA Order 7400.8L dated October 7, 2003.
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. Therefore, this proposed regulation: (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 11034; 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.
This proposal will be subject to the appropriate environmental analysis in accordance with FAA Order 1050.1D, Policies and Procedures for Considering Environmental Impacts, prior to any FAA final regulatory action.
Airspace, Navigation (air).
In consideration of the foregoing, the Federal Aviation Administration proposes to amend 14 CFR part 73 as follows:
1. The authority citation for part 73 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. § 73.46 is amended as follows:
Boundaries. Beginning at (lat. 48°03′33″ N, long. 108°57′07″ W); (lat. 48°03′33″ N, long. 109°03′36″ W); (lat. 48°06′09″ N, long. 109°03′36″ W); (lat. 48°06′09″ N, long. 108°57′07″ W); to point of beginning.
Designated altitudes. Surface up to, but not including, 300 feet AGL.
Time of designation. Intermittent by NOTAM.
Controlling agency. FAA, Salt Lake City ARTCC.
Using agency. 120th FW, Montana Air National Guard, Great Falls International Airport, MT.
Boundaries. Beginning at (lat. 47°56′00″ N, long. 108°54′00″ W); (lat. 47°56′00″ N, long. 109°17′00″ W); (lat. 48°15′00″ N, long. 109°17′00″ W); (lat. 48°15′00″ N, long. 108°54′00″ W); to point of beginning.
Designated altitudes. 300 feet AGL up to, but not including, FL 180.
Time of designation. Intermittent by NOTAM.
Controlling agency. FAA, Salt Lake City ARTCC.
Using agency. 120th FW, Montana Air National Guard, Great Falls International Airport, MT.
Boundaries. Beginning at (lat. 47°56′00″ N, long. 108°54′00″ W); (lat. 47°56′00″ N, long. 109°17′00″ W); (lat. 48°15′00″ N, long. 109°17′00″ W); (lat. 48°15′00″ N, long. 108°54′00″ W); to point of beginning.
Designated altitudes. FL 180 to FL 270.
Time of designation. Intermittent by NOTAM.
Controlling agency. FAA, Salt Lake City ARTCC.
Using agency. 120th FW, Montana Air National Guard, Great Falls International Airport, MT.
Boundaries. Beginning at (lat. 47°56′00″ N, long. 108°54′00″ W); (lat. 47°56′00″ N, long. 109°17′00″ W); (lat. 48°15′00″ N, long. 109°17′00″ W); (lat. 48°15′00″ N, long. 108°54′00″ W); to point of beginning.
Designated altitudes. FL 270 to FL 310.
Time of designation. Intermittent by NOTAM.
Controlling agency. FAA, Salt Lake City ARTCC.
Using agency. 120th FW, Montana Air National Guard, Great Falls International Airport, MT.
Environmental Protection Agency (EPA).
Proposed rule and request for comment.
The EPA is proposing to grant a petition submitted by American Chrome & Chemicals L.P. (ACC) to exclude (or delist) certain dewatered sludge from the production of chrome oxide green pigments (K006) generated at its Corpus Christi, Texas facility from the lists of hazardous wastes.
The EPA used the Delisting Risk Assessment Software (DRAS) in the evaluation of the impact of the petitioned waste on human health and the environment.
The EPA bases its proposed decision to grant the petition on an evaluation of waste-specific information provided by the petitioner. This proposed decision, if finalized, would conditionally exclude the petitioned waste, the dewatered sludge, from the requirements of hazardous waste regulations under the Resource Conservation and Recovery Act (RCRA).
If finalized, the EPA would conclude that ACC's petitioned waste is nonhazardous with respect to the original listing criteria and will substantially reduce the likelihood of migration of constituents from this waste. The EPA would also conclude that their process minimizes short-term and long-term threats from the petitioned waste to human health and the environment.
The EPA will accept comments until January 2, 2004. The EPA will stamp comments received after the close of the comment period as “late.” These late comments may not be considered in formulating a final decision. Your requests for a hearing must reach the EPA by December 2, 2003. The request must contain the information prescribed in 40 CFR 260.20(d).
Please send three copies of your comments. You should send two copies to the Section Chief of the Corrective Action and Waste Minimization Section, Multimedia Planning and Permitting Division, (6PD-C), Environmental Protection Agency, 1445 Ross Avenue, Dallas, Texas 75202. You should send a third
You should address requests for a hearing to the Director, Carl Edlund, Multimedia Planning and Permitting Division (6PD), Environmental Protection Agency, 1445 Ross Avenue, Dallas, Texas 75202.
Michelle Peace (214) 665-7430.
The information in this section is organized as follows:
The EPA is proposing to grant ACC's petition to have its dewatered sludge (chromic oxide) excluded, or delisted, from the definition of a hazardous waste, subject to certain verification and monitoring conditions.
ACC's petition requests a delisting for a listed hazardous waste. ACC does not believe that the petitioned waste meets the criteria of K006 for which the EPA listed it. ACC also believes no additional constituents or factors could cause the waste to be hazardous. The EPA's review of this petition included consideration of the original listing criteria, and the additional factors required by the Hazardous and Solid Waste Amendments of 1984 (HSWA).
For the past 12 years, ACC's dewatered sludge (chromic oxide) has been transferred off-site for treatment/disposal at Texas Ecologists, Inc. a nondedicated, off-site, land-based hazardous waste unit in Robstown, Texas. The waste management method used for the wastewater sludge at Texas Ecologists, Inc. is landfilling. The most recent transfer of the petitioned waste to Texas Ecologists was October 17, 2000.
ACC originally proposed to dispose of the dewatered sludge in an on-site surface impoundment. However, because the DRAS model cannot accommodate ACC's site specific parameters for the surface impoundment scenario, accurate estimates of potential ground water risks could not be made. Therefore, ACC has determined that the delisted waste will be disposed of in a non-hazardous waste landfill. If the delisting exclusion is finalized, ACC will dispose of the petitioned waste, dewatered sludge, at a Subtitle D solid waste landfill.
RCRA section 3001(f) specifically requires the EPA to provide notice and an opportunity for comment before granting or denying a final exclusion. Thus, the EPA will not grant the exclusion until it addresses all timely public comments (including those at public hearings, if any) on this proposal.
RCRA section 3010(b)(1) at 42 USCA 6930(b)(1), allows rules to become effective in less than six months when the regulated community does not need the six-month period to come into compliance. That is the case here, because this rule, if finalized, would reduce the existing requirements for persons generating hazardous wastes.
The EPA believes that this exclusion should be effective immediately upon final publication because a six-month deadline is not necessary to achieve the purpose of section 3010(b), and a later effective date would impose unnecessary hardship and expense on this petitioner. These reasons also provide good cause for making this rule effective immediately, upon final publication, under the Administrative Procedure Act, 5 U.S.C. 553(d).
Because the EPA is issuing this exclusion under the Federal RCRA delisting program, only states subject to Federal RCRA delisting provisions would be affected. This would exclude
The EPA allows states to impose its own non-RCRA regulatory requirements that are more stringent than the EPA's, under section 3009 of RCRA, 42 U.S.C. 6929. These more stringent requirements may include a provision that prohibits a Federally issued exclusion from taking effect in the state. Because a dual system (that is, both Federal (RCRA) and state (non-RCRA) programs) may regulate a petitioner's waste, the EPA urges petitioners to contact the state regulatory authority to establish the status of their wastes under the state law.
The EPA has also authorized some states (for example, Louisiana, Georgia, Illinois) to administer a RCRA delisting program in place of the Federal program, that is, to make state delisting decisions. Therefore, this exclusion does not apply in those authorized states unless that state makes the rule part of its authorized program. If ACC transports the petitioned waste to or manages the waste in any state with delisting authorization, ACC must obtain delisting authorization from that state before it can manage the waste as nonhazardous in the state.
The EPA published an amended list of hazardous wastes from nonspecific and specific sources on January 16, 1981, as part of its final and interim final regulations implementing section 3001 of RCRA. The EPA has amended this list several times and published it in §§ 261.31 and 261.32.
The EPA lists these wastes as hazardous because: (1) they typically and frequently exhibit one or more of the characteristics of hazardous wastes identified in Subpart C of Part 261 (that is, ignitability, corrosivity, reactivity, and toxicity) or (2) they meet the criteria for listing contained in § 261.11(a)(2) or (a)(3).
Individual waste streams may vary, however, depending on raw materials, industrial processes, and other factors. Thus, while a waste described in these regulations generally is hazardous, a specific waste from an individual facility meeting the listing description may not be hazardous.
For this reason, §§ 260.20 and 260.22 provide an exclusion procedure, called delisting, which allows persons to prove that the EPA should not regulate a specific waste from a particular generating facility as a hazardous waste.
A delisting petition is a request from a facility to the EPA or an authorized state to exclude wastes from the list of hazardous wastes. The facility petitions the Agency because it does not consider the wastes hazardous under RCRA regulations.
In a delisting petition, the petitioner must show that wastes generated at a particular facility do not meet any of the criteria for which the waste was listed. The criteria for which the EPA lists a waste are in Part 261 and further explained in the background documents for the listed waste.
In addition, under § 260.22, a petitioner must prove that the waste does not exhibit any of the hazardous waste characteristics (that is, ignitability, reactivity, corrosivity, and toxicity) and present sufficient information for the EPA to decide whether factors other than those for which the waste was listed warrant retaining it as a hazardous waste. (
Besides considering the criteria in § 260.22(a) and Section 3001(f) of RCRA, 42 U.S.C. 6921(f), and in the background documents for the listed wastes, the EPA must consider any factors (including additional constituents) other than those for which we listed the waste if a reasonable basis exists that these additional factors could cause the waste to be hazardous.
The EPA must also consider as hazardous waste mixtures containing listed hazardous wastes and wastes derived from treating, storing, or disposing of listed hazardous waste.
On April 17, 2002, ACC petitioned the EPA to exclude from the list of hazardous waste contained in § 261.32, the dewatered sludge generated from its facility located in Corpus Christi, Texas. The waste, the EPA Hazardous Waste No. K006, falls under the classification of listed waste because of the “derived-from” rule in § 261.3. Specifically, in its petition, ACC requested that the EPA grant an exclusion for 1450 cubic yards per year of dewatered sludge resulting from its process of manufacturing chromic oxide. The resulting waste is listed, in accordance with the “derived-from” rule.
ACC's wastewater sludge contains approximately 11% solids. The petitioned waste is only the dewatered portion of the sludge, not the entire sludge (solids and wastewater) that is generated from the current wastewater treatment process. Currently, ACC discharges the wastewater sludge through Outfall 201, into an on-site storage tank. The discharge is permitted by Texas Commission on Environmental Quality (TCEQ) through a Texas Pollution Discharges Elimination System (TPDES) Permit No. 003490 (EPA NPDES Permit No. TX0004685).
The ACC facility is located in an industrial/commercial setting in the western portion of the City of Corpus Christi, Nueces County, Texas. ACC produces various grades of chromic oxide at their Corpus Christi, Texas facility. Chromic oxide is produced through the chemical reaction of sodium dichromate and ammonium sulfate. The produced chromic oxide is washed to create the desired purity of the final product. The sludge generated from this process is listed hazardous waste and identified as K006. The facility operates 24 hours per day, 7 days per week, 365 days per year with the exception of periodic planned shutdowns for routine maintenance.
To support its petition, ACC submitted:
(1) historical information on past waste generation and management practices;
(2) results of the total constituent list for 40 CFR part 264, appendix IX
(3) results of the constituent list for appendix IX on Toxicity Characteristic Leaching Procedure (TCLP) extract;
(4) results from total oil and grease analyses; and
(5) multiple pH testing of the petitioned waste.
The EPA believes that the descriptions of the ACC hazardous waste process and analytical characterization in conjunction with the proposed verification testing requirements (as discussed later in this document), provide a reasonable basis to grant ACC's petition for an exclusion of the petitioned waste. The EPA believes the data submitted in support of the petition show the dewatered sludge is non-hazardous. Analytical data for the petitioned waste samples were used in the Delisting Risk Assessment Software (DRAS). The EPA has reviewed the sampling procedures used by ACC and has determined they satisfy the EPA criteria for collecting representative samples of the variations in constituent concentrations in the dewatered wastewater sludge. The data submitted in support of the petition show that constituents in ACC's waste are presently below health-based levels used in the delisting decision-making. The EPA believes that ACC has successfully demonstrated that the petitioned waste is non-hazardous.
For this delisting determination, the EPA used such information gathered to identify plausible exposure routes (
The EPA believes that the EPACMTP fate and transport model represents a reasonable worst-case scenario for possible ground water contamination resulting from disposal of the petitioned waste in a landfill, and that a reasonable worst-case scenario is appropriate when evaluating whether a waste should be relieved of the protective management constraints of RCRA Subtitle C. The use of some reasonable worst-case scenarios results in conservative values for the compliance-point concentrations, and ensures that the waste, once removed from hazardous waste regulation, will not pose a significant threat to human health or the environment.
The DRAS also uses the maximum estimated waste volumes and the maximum reported total concentrations to predict possible risks associated with releases of waste constituents through surface pathways (
In most cases, because a delisted waste is no longer subject to hazardous waste control, the EPA is generally unable to predict, and does not presently control, how a petitioner will manage a waste after delisting. Therefore, the EPA currently believes that it is inappropriate to consider extensive site-specific factors when applying the fate and transport model. The EPA does control the type of unit where the waste is disposed. The waste must be disposed in the type of unit the fate and transport model evaluates.
The EPA also considers the applicability of ground water monitoring data during the evaluation of delisting petitions. In this case, ACC has never directly disposed of this material in an on-site solid waste landfill, so no representative data exists. Therefore, the EPA has determined that it would be unnecessary to request ground water monitoring data.
The EPA believes that the descriptions of ACC's hazardous waste process and analytical characterization provide a reasonable basis to conclude that the likelihood of migration of hazardous constituents from the petitioned waste will be substantially reduced so that short-term and long-term threats to human health and the environment are minimized.
The DRAS results which calculate the maximum allowable concentration of chemical constituents in the waste along with the data summary of the detected constituents are presented in Table I. Based on the comparison of the DRAS results and maximum TCLP concentrations, the petitioned waste should be delisted because no constituents of concern exceed the delisting concentrations.
The EPA concluded, after reviewing ACC's processes that no other hazardous constituents of concern, other than those for which ACC tested, are likely to be present or formed as reaction products or by products in ACC's waste. In addition, on the basis of explanations and analytical data provided by ACC, pursuant to § 260.22, the EPA concludes that the petitioned waste does not exhibit any of the characteristics of ignitability, corrosivity, or reactivity.
During the evaluation of ACC's petition, the EPA also considered the potential impact of ACC's petitioned waste via non-ground water routes (
The EPA also considered the potential impact of the petitioned waste via a surface water route. The EPA believes that containment structures at municipal solid waste landfills can effectively control surface water runoff, as the Subtitle D regulations (See 56 FR 50978, October 9, 1991) prohibit pollutant discharges into surface waters. Furthermore, the concentrations of any hazardous constituents dissolved in the runoff will tend to be lower than the levels in the TCLP leachate analyses reported in this action due to the acidic medium used for extraction in the TCLP. The EPA believes that, in general, leachate derived from the waste is unlikely to directly enter a surface water body without first traveling through the saturated subsurface where dilution and attenuation of hazardous constituents will also occur. Leachable concentrations provide a direct measure of solubility of a toxic constituent in water and are indicative of the fraction of the constituent that may be mobilized in surface water as well as ground water.
Based on the reasons discussed above, the EPA believes that the contamination of surface water through runoff from the waste disposal area is very unlikely. Nevertheless, the EPA evaluated the potential impacts on surface water if ACC's petitioned waste were released from a municipal solid waste landfill through runoff and erosion. See the RCRA public docket for this proposed rule for further information on the potential surface water impacts from runoff and erosion. The estimated levels of the hazardous constituents of concern in surface water would be well below health-based levels for human health, as well as below the EPA Chronic Water Quality Criteria for aquatic organisms (USEPA, OWRS, 1987). The EPA, therefore, concluded that the petitioned waste would not present potential hazard to human health and the environment via the surface water exposure pathway.
The descriptions of ACC's hazardous waste process and analytical characterization, with the proposed verification testing requirements (as discussed later in this notice), provide a reasonable basis for the EPA to grant the exclusion. The data submitted in support of the petition show that constituents in the waste are below the maximum allowable leachable concentrations (
The EPA has reviewed the sampling procedures used by ACC and has determined they satisfy the EPA criteria for collecting representative samples of variable constituent concentrations in the petitioned sludge. The data submitted in support of the petition show that constituents in ACC's petitioned waste are presently below the compliance point concentrations used in the delisting decision-making and would not pose a substantial hazard to the environment.
The EPA believes that ACC has successfully demonstrated that the petitioned waste is non-hazardous, and therefore, proposes to grant an exclusion to ACC, in Corpus Christi, Texas, for the dewatered sludge described in its petition. The EPA's decision to exclude this waste is based on descriptions of the treatment activities and characterization of the petitioned waste.
If we finalize the proposed rule, the Agency will no longer regulate the petitioned waste under parts 262 through 268 and the permitting standards of part 270.
The petitioner, ACC, must comply with the requirements in 40 CFR part 261, appendix IX, Table 2 as amended by this notice. The text below gives the rationale and details of those requirements.
This paragraph provides the levels of constituents for which ACC must test the leachate from the dewatered sludge, below which the waste would be considered nonhazardous.
The EPA selected the set of constituents specified in Paragraph (1)
The purpose of this paragraph is to ensure that any dewatered sludge which might contain hazardous levels of constituents are managed and disposed of in accordance with Subtitle C of RCRA. Holding the petitioned waste until characterization is complete will protect against improper handling of hazardous material. If the EPA determines that the data collected under this Paragraph do not support the data provided in the petition, the exclusion will not cover the petitioned waste. The exclusion is effective when we sign it, but the disposal cannot begin until the verification sampling is completed. The dewatered sludge must pass paint filter test as described in EPA SW-846, Method 9095 before it is allowed to be shipped off-site. ACC must maintain a record of the date and the actual volume of the dewatered sludge removed from the tank according to the requirements in Paragraph (5).
ACC shall conduct verification testing each time it is ready to evacuate the tank sludge for disposal. Four (4) representative composite samples for verification shall be collected from the dewatered sludge. ACC shall analyze the verification samples according to the constituent list specified in Paragraph (1) of 40 CFR part 261, appendix IX, Table 2. The results from each event should be submitted to EPA within 10 days of receiving the results.
If EPA determines that the data collected under this Paragraph do not support the data provided for the petition, the exclusion will not cover the generated wastes. The EPA will notify ACC of the decision in writing within two weeks of receiving this information.
Paragraph (4) would allow ACC the flexibility of modifying its processes (for example, changes in equipment or change in operating conditions) to improve its treatment process. ACC must prove the effectiveness of the modified process by testing and request approval from the EPA. ACC must manage wastes generated during the new process demonstration as hazardous waste until it receives a written approval from the EPA and the delisting levels specified in Paragraph (1) are satisfied.
If the proposed exclusion is made final, it will apply only to 1450 cubic yards of dewatered sludge, generated annually at the ACC's facility after successful verification testing.
ACC must manage waste volumes greater than 1450 cubic yards of petitioned waste as hazardous until the EPA grants a new exclusion.
When this new exclusion becomes final, ACC's management of the waste covered by this petition would be relieved from Subtitle C jurisdiction. ACC must ensure that it delivers the waste to an off-site storage, treatment, or disposal facility that has a state permit, license, or registration to manage municipal or industrial solid waste.
The EPA would require ACC to file a new delisting petition under any of the following circumstances:
(a) If it significantly alters the manufacturing process treatment system except as described in Paragraph (4)
(b) If it uses any new manufacturing or production process(es), or significantly changes from the current process(es) described in its petition; or
(c) If it makes any changes that could affect the composition or type of waste generated.
To provide appropriate documentation that ACC's facility is properly treating the waste, ACC must compile, summarize, and keep delisting records on-site for a minimum of five years. They must keep all analytical data obtained through Paragraph (3) including quality control information for five years. Paragraph (5) requires that ACC furnish these data when the EPA or the State of Texas request them for inspection.
The purpose of Paragraph (6) is to require ACC to disclose new or different information related to a condition at the facility or disposal of the waste if it is pertinent to the delisting. ACC must also use this procedure if the verification sampling testing fails to meet the delisting levels found in Paragraph 1. This provision will allow the EPA to reevaluate the exclusion if a source provides new or additional information to the Agency. The EPA will evaluate the information on which it based the decision to see if it is still correct, or if circumstances have changed so that the information is no longer correct or would cause the EPA to deny the petition if presented.
This provision expressly requires ACC to report differing site conditions or assumptions used in the petition in addition to failure to meet the verification testing conditions within 10 days of discovery. If the EPA discovers such information itself or from a third party, it can act on it as appropriate. The language being proposed is similar to those provisions found in RCRA regulations governing no-migration petitions at § 268.6.
The EPA believes that it has the authority under RCRA and the Administrative Procedures Act (APA), 5 U.S.C. 551 (1978)
The Agency believes a clear statement of its authority in delistings is merited in light of Agency experience.
In order to adequately track wastes that have been delisted, the EPA is requiring that ACC provide a one-time notification to any state regulatory agency through which or to which the delisted waste is being carried. ACC must provide this notification within 60 days of commencing this activity.
If ACC violates the terms and conditions established in the exclusion, the Agency will start procedures to withdraw the exclusion. Where there is an immediate threat to human health and the environment, the Agency will evaluate the need for enforcement activities on a case-by-case basis. The Agency expects ACC to conduct the appropriate waste analysis and comply with the criteria explained above in Paragraph (1) of this exclusion.
The EPA is requesting public comments on this proposed decision. Please send three copies of your comments. Send two copies to Section Chief, Corrective Action and Waste Minimization Section, Multimedia Planning and Permitting Division (6PD-C), Environmental Protection Agency (EPA), 1445 Ross Avenue, Dallas, Texas 75202. Send a third copy to Industrial Hazardous Waste Permits Division, Technical Evaluation Team, Texas Commission on Environmental Quality (TCEQ), P.O. Box 13087, Austin, Texas, 78711-3087. Identify your comments at the top with this regulatory docket number: “F-03-TXDEL-ACC.” You may submit your comments electronically to
You should submit requests for a hearing to Carl Edlund, Director, Multimedia Planning and Permitting Division (6PD), Environmental Protection Agency, 1445 Ross Avenue, Dallas, Texas 75202.
You may review the RCRA regulatory docket for this proposed rule at the Environmental Protection Agency Region 6, 1445 Ross Avenue, Dallas, Texas 75202. It is available for viewing in the EPA Freedom of Information Act Review Room from 9 a.m. to 4 p.m., Monday through Friday, excluding Federal holidays. Call (214) 665-6444 for appointments. The public may copy material from any regulatory docket at no cost for the first 100 pages, and at fifteen cents per page for additional copies.
Under Executive Order 12866, the EPA must conduct an “assessment of the potential costs and benefits” for all “significant” regulatory actions.
The proposal to grant an exclusion is not significant, since its effect, if promulgated, would be to reduce the overall costs and economic impact of the EPA's hazardous waste management regulations. This reduction would be achieved by excluding waste generated at a specific facility from the EPA's lists of hazardous wastes, thus enabling a facility to manage its waste as nonhazardous.
Because there is no additional impact from this proposed rule, this proposal would not be a significant regulation, and no cost/benefit assessment is required. The Office of Management and Budget (OMB) has also exempted this rule from the requirement for OMB review under section (6) of Executive Order 12866.
Under the Regulatory Flexibility Act, 5 U.S.C. 601-612, whenever an agency is required to publish a general notice of rulemaking for any proposed or final rule, it must prepare and make available for public comment a regulatory flexibility analysis which describes the impact of the rule on small entities (that is, small businesses, small organizations, and small governmental jurisdictions). No regulatory flexibility analysis is required, however, if the Administrator or delegated representative certifies that the rule will not have any impact on a small entities.
This rule, if promulgated, will not have an adverse economic impact on small entities since its effect would be to reduce the overall costs of the EPA's hazardous waste regulations and would be limited to one facility. Accordingly, I hereby certify that this proposed regulation, if promulgated, will not have a significant economic impact on a substantial number of small entities. This regulation, therefore, does not require a regulatory flexibility analysis.
Information collection and record-keeping requirements associated with this proposed rule have been approved by the Office of Management and Budget (OMB) under the provisions of the Paperwork Reduction Act of 1980 (Pub. L. 96-511, 44 U.S.C. 3501
Under section 202 of the Unfunded Mandates Reform Act of 1995 (UMRA), Pub. L. 104-4, which was signed into law on March 22, 1995, the EPA generally must prepare a written statement for rules with Federal mandates that may result in estimated costs to state, local, and tribal governments in the aggregate, or to the private sector, of $100 million or more in any one year.
When such a statement is required for the EPA rules, under section 205 of the UMRA EPA must identify and consider alternatives, including the least costly, most cost-effective, or least burdensome alternative that achieves the objectives of the rule. The EPA must select that alternative, unless the Administrator explains in the final rule why it was not selected or it is inconsistent with law.
Before the EPA establishes regulatory requirements that may significantly or uniquely affect small governments, including tribal governments, it must develop under section 203 of the UMRA a small government agency plan. The plan must provide for notifying potentially affected small governments, giving them meaningful and timely input in the development of the EPA regulatory proposals with significant Federal intergovernmental mandates, and informing, educating, and advising them on compliance with the regulatory requirements.
The UMRA generally defines a Federal mandate for regulatory purposes as one that imposes an enforceable duty upon state, local, or tribal governments or the private sector.
The EPA finds that this delisting decision is deregulatory in nature and does not impose any enforceable duty on any State, local, or tribal governments or the private sector. In addition, the proposed delisting decision does not establish any regulatory requirements for small governments and so does not require a small government agency plan under UMRA section 203.
The Executive Order 13045 is entitled “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997). This order applies to any rule that the EPA determines (1) is economically significant as defined under Executive Order 12866, and (2) the environmental health or safety risk addressed by the rule has 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 proposed rule is not subject to Executive Order 13045 because this is not an economically significant regulatory action as defined by Executive Order 12866.
Because this action does not involve any requirements that affect Indian tribes, the requirements of section 3(b) of Executive Order 13084 do not apply.
Under Executive Order 13084, the EPA may not issue a regulation that is not required by statute, that significantly affects or uniquely affects the communities of Indian tribal governments, and that imposes substantial direct compliance costs on
If the mandate is unfunded, the EPA must provide to the Office Management and Budget, in a separately identified section of the preamble to the rule, a description of the extent of the EPA's prior consultation with representatives of affected tribal governments, a summary of the nature of their concerns, and a statement supporting the need to issue the regulation.
In addition, Executive Order 13084 requires the EPA to develop an effective process permitting elected and other representatives of Indian tribal governments to have “meaningful and timely input” in the development of regulatory policies on matters that significantly or uniquely affect their communities of Indian tribal governments. This action does not involve or impose any requirements that affect Indian tribes. Accordingly, the requirements of section 3(b) of Executive Order 13084 do not apply to this rule.
Under section 12(d) if the National Technology Transfer and Advancement Act, the Agency is directed 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 rule does not establish any new technical standards and thus, the Agency has no need to consider the use of voluntary consensus standards in developing this final 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.”
Under section 6 of Executive Order 13132, the EPA may not issue a regulation that has federalism implications, that impose substantial direct compliance costs, and that is not required by statute, unless the Federal government provides the funds necessary to pay the direct compliance costs incurred by state and local governments, or the EPA consults with state and local officials early in the process of developing the proposed regulation. The EPA also may not issue a regulation that has federalism implications and that preempts state law unless the Agency consults with state and local officials early in the process of developing the proposed regulation.
This action does not have federalism implication. It will not have a substantial direct effect on states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132, because it affects only one facility.
Environmental protection, Hazardous waste, Recycling, Reporting and recordkeeping requirements.
Sec. 3001(f) RCRA, 42 U.S.C. 6921(f).
For the reasons set out in the preamble, 40 CFR part 261 is to be amended as follows:
1. The authority citation for part 261 continues to read as follows:
42 U.S.C. 6905, 6912(a), 6921, 6922, and 6938.
2. In Table 2 of Appendix IX of Part 261 add the following waste stream in alphabetical order by facility to read as follows:
Environmental Protection Agency.
Proposed notice of intent to delete the Follansbee Superfund Site from the National Priorities List.
The Environmental Protection Agency (EPA) Region III is issuing a notice of intent to delete the Follansbee Superfund Site (Site), Follansbee, WV, from the National Priorities List (NPL) and requests public comments on this notice of intent. The NPL, promulgated pursuant to section 105 of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) of 1980, as amended, is found at appendix B of 40 CFR part 300 of the National Oil and Hazardous Substances Pollution Contingency Plan (NCP). The EPA and the State of West Virginia, through the Department of Environmental Protection, have determined that all appropriate response actions under CERCLA have been completed. However, this deletion does not preclude future actions under Superfund.
In the “Rules and Regulations” section of today's
Comments concerning this Site must be received by December 17, 2003.
Written comments should be addressed to: David Polish, Community Involvement Coordinator, U.S. EPA 3HS43, 1650 Arch Street, Philadelphia, PA 19103-2029,
Repositories have been established to provide detailed information concerning this decision at the following locations: U.S. EPA Region III, Regional Center for Environmental Information (RCEI), 1650 Arch Street, Philadelphia, PA 19103-2029, (215) 814-5364, Monday through Friday 8 a.m. to 4:30 p.m. Follansbee City Library, 844 Main Street, Follansbee, WV 26037, (304) 527-0860, Monday through Thursday 11 a.m. to 7 p.m., Friday and Saturday 9 a.m. to 1 p.m.
Anthony C. Iacobone, Remedial Project Manager, U.S. EPA 3HS23, 1650 Arch Street, Philadelphia, PA 19103-2029,
For additional information, see the Direct Final Notice of Deletion which is located in the Rules section of this
Environmental protection, Air pollution control, Chemicals, Hazardous waste, Hazardous substances, Intergovernmental relations, Penalties, Reporting and recordkeeping requirements, Superfund, Water pollution control, Water supply.
33 U.S.C. 1321(c)(2); 42 U.S.C. 9601-9657; E.O. 12777, 56 FR 54757, 3 CFR, 1991 Comp., p. 351; E.O. 12580, 52 FR 2923; 3 CFR, 1987 Comp., p. 193.
Federal Emergency Management Agency (FEMA), Emergency Preparedness and Response Directorate, Department of Homeland Security.
Proposed rule.
Technical information or comments are requested on the proposed Base (1% annual chance) Flood Elevations (BFEs) and proposed BFE modifications for the communities listed below. The BFEs are the basis for the floodplain management measures that the community is required either to adopt or to show evidence of being already in effect in order to qualify or remain qualified for participation in the National Flood Insurance Program (NFIP).
The comment period is ninety (90) days following the second publication of this proposed rule in a newspaper of local circulation in each community.
The proposed BFEs for each community are available for inspection at the office of the Chief Executive Officer of each community. The respective addresses are listed in the table below.
Doug Bellomo, P.E., Hazard Identification Section, Emergency Preparedness and Response Directorate, FEMA, 500 C Street SW., Washington, DC 20472, (202) 646-2903.
FEMA proposes to make determinations of base flood elevations and modified base flood elevations for each community listed below, in accordance with section 110 of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4104, and 44 CFR 67.4(a).
These proposed base flood and modified BFEs, together with the floodplain management criteria required by 44 CFR 60.3, are the minimum that are required. They should not be construed to mean that the community must change any existing ordinances that are more stringent in their floodplain management requirements. The community may at any time enact stricter requirements of its own, or pursuant to policies established by other Federal, state or regional entities. These proposed elevations are used to meet the floodplain management requirements of the NFIP and are also used to calculate the appropriate flood insurance premium rates for new buildings built after these elevations are made final, and for the contents in these buildings.
Administrative practice and procedure, Flood insurance, Reporting and recordkeeping requirements.
Accordingly, 44 CFR part 67 is proposed to be amended as follows:
1. The authority citation for part 67 continues to read as follows:
42 U.S.C. 4001
2. The tables published under the authority of § 67.4 are proposed to be amended as follows:
Federal Emergency Management Agency, Emergency Preparedness and Response Directorate, Department of Homeland Security.
Proposed rule.
Technical information or comments are requested on the proposed Base (1% annual-chance) Flood Elevations (BFEs) and proposed BFE modifications for the communities listed below. The BFEs and modified BFEs are the basis for the floodplain management measures that the community is required either to adopt or to show evidence of being already in effect in order to qualify or remain qualified for participation in the National Flood Insurance Program (NFIP).
The comment period is ninety (90) days following the second publication of this proposed rule in a newspaper of local circulation in each community.
The proposed BFEs for each community are available for inspection at the office of the Chief Executive Officer of each community. The respective addresses are listed in the table below.
Doug Bellomo, P.E., Hazard Identification Section, Emergency Preparedness and Response Directorate, Federal Emergency Management Agency, 500 C Street, SW., Washington, DC 20472, (202) 646-2903.
The Federal Emergency Management Agency makes the final determinations listed below for the modified BFEs for each community listed. These modified elevations have been published in newspapers of local circulation and ninety (90) days have elapsed since that publication. The Mitigation Division Director of the Emergency Preparedness and Response Directorate has resolved any appeals resulting from this notification.
These proposed BFEs and modified BFEs, together with the floodplain management criteria required by 44 CFR 60.3, are the minimum that are required. They should not be construed to mean that the community must change any existing ordinances that are more stringent in their floodplain management requirements. The community may at any time enact stricter requirements of its own, or pursuant to policies established by other Federal, State, or regional entities. These proposed elevations are used to meet the floodplain management requirements of the NFIP and are also used to calculate the appropriate flood insurance premium rates for new buildings built after these elevations are made final, and for the contents in these buildings.
Administrative practice and procedure, Flood insurance, Reporting and recordkeeping requirements.
Accordingly, 44 CFR part 67 is proposed to be amended as follows:
1. The authority citation for part 67 continues to read as follows:
42 U.S.C. 4001
2. The tables published under the authority of § 67.4 are proposed to be amended as follows:
Federal Emergency Management Agency, Emergency Preparedness and Response Directorate, Department of Homeland Security.
Proposed rule.
Technical information or comments are requested on the proposed Base (1% annual-chance) Flood Elevations (BFEs) and proposed BFE modifications for the communities listed below. The BFEs and modified BFEs are the basis for the floodplain management measures that the community is required either to adopt or to show evidence of being already in effect in order to qualify or remain qualified for participation in the National Flood Insurance Program (NFIP).
The comment period is ninety (90) days following the second publication of this proposed rule in a newspaper of local circulation in each community.
The proposed BFEs for each community are available for inspection at the office of the Chief Executive Officer of each community. The respective addresses are listed in the table below.
Doug Bellomo, P.E., Hazard Identification Section, Emergency Preparedness and Response Directorate, Federal Emergency Management Agency, 500 C Street, SW., Washington, DC 20472, (202) 646-2903.
The Federal Emergency Management Agency makes the final determinations listed below for the modified BFEs for each community listed. These modified elevations have been published in newspapers of local circulation and ninety (90) days have elapsed since that publication. The Mitigation Division Director of the Emergency Preparedness and Response Directorate has resolved any appeals resulting from this notification.
These proposed BFEs and modified BFEs, together with the floodplain management criteria required by 44 CFR 60.3, are the minimum that are required. They should not be construed to mean that the community must change any existing ordinances that are more stringent in their floodplain management requirements. The community may at any time enact stricter requirements of its own, or pursuant to policies established by other Federal, State, or regional entities. These proposed elevations are used to meet the floodplain management requirements of the NFIP and are also used to calculate the appropriate flood insurance premium rates for new buildings built after these elevations are made final, and for the contents in these buildings.
Administrative practice and procedure, Flood insurance, Reporting and recordkeeping requirements.
Accordingly, 44 CFR part 67 is proposed to be amended as follows:
1. The authority citation for part 67 continues to read as follows:
42 U.S.C. 4001
2. The tables published under the authority of § 67.4 are proposed to be amended as follows:
National Aeronautics and Space Administration.
Proposed rule.
This proposed rule would amend the NASA FAR Supplement (NFS) by removing from the Code of Federal Regulations (CFR) those portions of the NFS containing information that consists of internal Agency administrative procedures and guidance that does not control the relationship between NASA and contractors or prospective contractors. This proposed rule is consistent with the guidance and policy in FAR Part 1 regarding what comprises the Federal Acquisition Regulations System and requires publication for public comment. The NFS document will continue to contain both information requiring codification in the CFR and internal Agency guidance in a single document that is available on the Internet. This proposed rule will reduce the administrative burden and time associated with maintaining the NFS by only publishing in the
Comments should be submitted on or before January 16, 2004, to be considered in formulation of the final rule.
Interested parties should submit written comments to Celeste Dalton, NASA, Office of Procurement, Contract Management Division (Code HK), Washington DC 20546 or via the Internet at
Celeste Dalton, NASA, Office of Procurement, Contract Management Division (Code HK); (202) 358 1645; e-mail:
Currently, the NASA FAR Supplement (NFS) contains information to implement or supplement the FAR. This information contains NASA's policies, procedures, contract clauses, solicitation provisions, and forms that govern the contracting process or otherwise control the relationship between NASA and contractors or prospective contractors. The NFS also contains information that consists of
This proposed rule will modify the existing practice by only publishing those regulations which may have a significant effect beyond the internal operating procedures of the Agency or have a significant cost or administrative impact on contractors or offerors.
The NFS will continue to integrate into a single document both regulations subject to public comments and internal Agency guidance and procedures that do not require public comment. Those portions of the NFS that require public comment will continue to be amended by publishing changes in the Federal Register. NFS regulations that require public comment are issued as Chapter 18 of Title 48, CFR. Changes to portions of the regulations contained in the CFR, along with changes to internal guidance and procedures, will be incorporated into the NASA-maintained Internet version of the NFS through Procurement Notices (PNs). The single official NASA-maintained version of the NFS will remain available on the Internet. NASA personnel must comply with all regulatory and internal guidance and procedures contained in the NFS.
This proposed rule will result in savings in terms of the number of rules subject to publication in the
This proposed rule is not expected to have a significant economic impact on a substantial number of small entities with the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601
The Paperwork Reduction Act does not apply because the changes do not impose recordkeeping or information collection requirements which require the approval of the Office of Management and Budget under 44 U.S.C. 3501,
Government procurement.
Accordingly, 48 CFR parts 1801, 1803 through 1809, 1811, and 1812 are proposed to be amended as follows:
1. The authority citation for 48 CFR parts 1801, 1803 through 1809, 1811, and 1812 continues to read as follows:
42 U.S.C. 2473(c)(1).
2. Revise section 1801.105-1 to read as follows:
(b)(i) The NFS is an integrated document that contains both acquisition regulations that require public comment and internal Agency guidance and procedures that do not require public comment. NASA personnel must comply with all regulatory and internal guidance and procedures contained in the NFS.
(ii) NFS regulations that require public comment are issued as chapter 18 of title 48, CFR.
(iii) The single official NASA-maintained version of the NFS is on the Internet
3. Amend part 1801 by removing subparts 1801.2, 1801.3, 1801.4, 1801.6, and 1801.7.
4. Amend part 1803 by removing sections 1803.101, 1803.101-1, 1803.101-2, 1803.104-4, and 1803.104-7; and subparts 1803.2, 1803.3, 1803.5, 1803.6, 1803.7, and 1803.8.
5. Amend part 1804 by removing section 1804.103, subparts 1804.2, 1804.5, 1804.6, 1804.8, 1804.9, 1804.70, 1804.71, 1804.72, and 1804.73.
6. Amend part 1805 by—
(a) Removing subparts 1805.1 and 1805.2;
(b) In section 1805.303, removing paragraphs (a)(i)(A), (a)(i)(B), (a)(ii), and (a)(iii);
(c) Removing sections 1805.303-70 and 1805.303-71; and
(d) Removing subparts 1805.4 and 1805.5.
7. Amend part 1806 by—
(a) In section 1806.202, removing paragraph (b); and
(b) Removing section 1806.202-70 and subparts 1806.3 and 1806.5.
8. Amend part 1807 by—
(a) Removing sections 1807.103, 1807.104, 1807.105, and 1807.170;
(b) Revising section 1807.107-70;
(c) Removing subparts 1807.2, 1807.3, 1807.5, 1807.70, and 1807.71;
(d) Revising section 1807.7200; and
(e) Removing sections 1807.7202, 1807.7203, 1807.7204, and 1807.7205.
Revised sections 1807.107-70 and 1807.7200 read as follows:
The FAR and NFS requirements for justification, review, and approval of bundling of contract requirements also apply to an order from a Federal Supply Schedule contract or other indefinite-delivery contract awarded by another agency if the requirements consolidated under the order meet the definition of “bundling” at FAR 2.101.
(a) As required by the Business Opportunity Development Reform Act of 1988, it is NASA policy to—
(1) Prepare an annual forecast and semiannual update of expected contract opportunities or classes of contract opportunities for each fiscal year;
(2) Include in the forecast contract opportunities that small business concerns, including those owned and controlled by socially and economically disadvantaged individuals, may be capable of performing; and
(3) Make available such forecasts to the public.
(b) The annual forecast and semiannual update are available on the NASA Acquisition Internet Service
9. Amend part 1808 by removing sections 1808.003, 1808.003-70, 1808.003-71, 1808.003-72, 1808.003-73, subparts 1808.1, 1808.4, 1808.6, 1808.7, section 1808.802, and subpart 1808.11.
10. Amend part 1809 by removing sections 1809.106, 1809.106-1, 1809.106-2, 1809.106-3, 1809.106-70, 1809.200, 1809.202, 1809.203, 1809.203-70, 1809.203-71, paragraphs (b)(i) and (b)(ii) in section 1809.206-1, 1809.404, 1809.405, 1809.405-1, 1809.405-2, 1809.406, 1809.406-3, 1809.407, 1809.407-3, 1809.408, 1809.470, 1809.470-1, 1809.470-2, 1809.470-3, 1809.500, 1809.503, and 1809.506.
11. Amend part 1811 by removing section 1811.002, subpart 1811.1, sections 1811.403, 1811.403-70, 1811.404, and subparts 1811.5 and 1811.6.
12. Amend part 1812 by removing subpart 1812.1, and sections 1812.302 and 1812.404.
Office of the Secretary, USDA.
Notice of revision of Privacy Act systems of records and proposed new routine uses.
Notice is hereby given that the United States Department of Agriculture (USDA) is proposing to change the USDA Privacy Act System of Records by re-designating a USDA Office of Outreach system of records as a USDA Farm Service Agency (FSA) system. The system is being added numerically, editorial and clarification amendments are noted, and new routine uses are being added to the system.
This notice will be adopted without further publication in the
Interested persons may submit written comments to Ronald W. Holling, Assistant to the Director, Office of Business and Program Integration, Farm Service Agency, STOP 0501, 1400 Independence Avenue, SW., Washington, DC 20250-0501, (202) 720-8530; e-mail
Ronald W. Holling, Assistant to the Director, Office of Business and Program Integration, Farm Service Agency, STOP 0501, 1400 Independence Avenue, SW., Washington, DC 20250-0501, (202) 720-8530; e-mail
This notice concerns a Privacy Act system of records currently maintained by the USDA Office of Outreach. Pursuant to the Privacy Act, 5 U.S.C. 552a, USDA hereby takes the following action: Transfer of responsibility for the Privacy Act System of records for the Minority Farm Register from USDA's Office of Outreach to FSA and addition of new routine uses.
The Register is a voluntary list of minority farm or ranch operators, landowners, tenants and others with farming or ranching interest. It is being created in an effort to address the decline of minority-owned farms. Minority farmers and their advocates called for the creation of a register at USDA Civil Rights Action Team public forums in early 1997 because of the decline in the amount of farm land owned by minorities, especially African-Americans. Register participants will receive USDA program information to help sustain or increase present ownership levels.
The Register will be used and administered by FSA's Office of Outreach to expand its Outreach and Assistance for Socially Disadvantaged Farmers and Ranchers Program. The Office of Outreach will use the Register to provide detailed individual information or summary information about all participants to Government agencies, minority-serving educational institutions, and community-based organizations engaged in farm land outreach and assistance efforts. The Register will enable those organizations to disseminate to minority farm owners and operators the most comprehensive information about FSA programs and services, including commodity programs, conservation programs, disaster assistance programs, farm loan programs, and price support programs. Minority farm operators who currently do not own any land are encouraged to participate so they may also receive information on targeted programs to include possible land ownership.
Most U.S. farm land is already defined by geographic location, by owner, and by operator in records maintained by FSA. For those people for whom FSA maintains current records, participation in the Register will only require signature of the Minority Farm Register permission form. If a minority farm land operator and/or owner whose information is not already on file wishes to be included on the Register, he or she will provide name, address, phone number, Social Security Number, farm location, race, ethnicity and gender on the Minority Farm Register permission form. Names and addresses will be the only required information. Providing Social Security Numbers, phone numbers, race, ethnicity and gender will be completely voluntary. The permission form will be issued in Spanish and English. Informational registration materials will be distributed to local, State and Federal community-based organizations, educational institutions and other groups serving minority clientele.
Pursuant to the Privacy Act, 5 U.S.C. 552a, USDA hereby takes the following action:
(1)
Voluntary Minority Farm Register File (Automated), USDA/FSA-15.
Deputy Administrator for Field Operations, Farm Service Agency, STOP 0501, 1400 Independence Avenue, SW., Washington, DC 20250-0501.
Minority farm land owners, operators and other producers who voluntarily request to be covered.
The system includes name, address, phone number, Social Security Number,
7 U.S.C. 7901
Records contained in this system may be disclosed as follows:
(1) Records in the system will be disclosed and distributed to community-based organizations, educational institutions and government agencies assisting minorities with land retention and acquisition to ensure that USDA programs available for assisting farmers are widely publicized and accessible to all.
(2) USDA will disclose information in the system to a court or adjudicative body in a proceeding when:
(a) The agency or any component thereof;
(b) Any employee of the agency in his or her official capacity;
(c) Any employee of the agency in his or her individual capacity where the agency has agreed to represent the employee; or
(d) The U.S. Government is a party to litigation or has an interest in such litigation and, by careful review, determines that the records are both relevant and necessary to the litigation and the use of such records is therefore deemed by the agency to be for a purpose compatible with the purpose for which the agency collected the records.
(3) When a record on its face, or in conjunction with other records, indicates a violation or potential violation of law, whether civil, criminal or regulatory in nature, and whether arising by general statute or particular program statute, or by regulation, rule, or order issued pursuant thereto, disclosure may be made to the appropriate agency, whether Federal, foreign, State, local, or tribal, or other public authority responsible for enforcing, investigating or prosecuting such violation or charged with enforcing or implementing the statute, or rule, regulation, or order issued pursuant thereto, if the information disclosed is relevant to any enforcement, regulatory, investigative or prospective responsibility of the receiving entity.
(4) USDA will disclose information in the system to a Member of Congress or to a Congressional staff member in response to an inquiry from the Congressional office made at the written request of the constituent about whom the record is maintained.
(5) Records from this system of records may be disclosed to the National Archives and Records Administration or to the General Services Administration for records management inspections conducted under 44 U.S.C. 2904 and 2906.
(6) USDA will disclose information in the system to agency contractors, grantees, experts, consultants or volunteers who have been engaged by the agency to assist in the performance of a service related to this system of records and who need to have access to the records in order to perform the activity. Recipients shall be required to comply with the requirements of the Privacy Act of 1974, as amended, pursuant to 5 U.S.C. 552a(m); and
(7) USDA will disclose to members of Congress the names and addresses of producers.
Records are maintained in file folders and Department computer systems at applicable location as set out above under the heading “System Location.”
Records are indexed by individual name, identification number, farm number, tax identification number, Social Security number and type of loan.
Records, both paper and electronic, are accessible only to authorized personnel and are maintained in offices that are locked during non-duty hours. Access to these records is limited to authorized FSA personnel and representatives. Records stored in computer files are protected by passwords and other electronic security systems.
The Minority Farm Register will be recreated at biennial intervals to update name and address information and to ensure the inclusion of any changes in farm land ownership recorded in FSA records. A letter will be sent to all Register participants. The letter will clarify that there is no need for action if name, address or farm land circumstances have not changed. The Farm Service Agency will maintain a master file of each generation of the Voluntary Minority Farm Register electronically. Program documents will be destroyed within 10 years after end of participation.
Deputy Administrator for Field Operations, Farm Service Agency, STOP 0501, 1400 Independence Avenue, SW., Washington, DC 20250-0501.
An individual may request information regarding this system of records, or information as to whether the system contains records pertaining to the individual, from the System Manager listed above.
An individual may obtain information about a record in the system that pertains to such individual by submitting a written request to the above listed System Manager. The envelope and letter should be marked “Privacy Act Request.” A request for information pertaining to an individual should contain: name, address, ZIP code, name of system of record (Minority Farm Register), year of records in question, and any other pertinent information to help identify the file.
Individuals desiring to contest or amend information maintained in the system should direct their request to the above listed System Manager, and should include the reason for contesting it and the proposed amendment to the information with supporting information to show how the record is inaccurate. A request for contesting records pertaining to an individual should contain: name, address, ZIP code, name of system of record (Minority Farm Register), year of records in question, and any other pertinent information to help identify the file.
Information in this system comes only from the individuals who voluntarily sign up for the Register and who are the subjects of the files.
None.
Animal and Plant Health Inspection Service, USDA.
Notice of public meeting.
We are advising the public that the Animal and Plant Health Inspection Service will hold a public meeting for the purpose of exchanging information on our Plant Protection and Quarantine (PPQ) programs with stakeholders that are affected by our programs. This notice provides additional information about the agenda for the meeting, which is now being finalized.
The meeting will be held December 9 and 10, 2003.
The meeting will be held at the Melrose Hotel, 2430 Pennsylvania Avenue NW., Washington, DC.
Ms. Paula Henstridge, Special Assistant to the Deputy Administrator, Plant Protection and Quarantine, Room 302-E Whitten Building, 14th Street and Independence Avenue SW., Washington, DC 20250; (202) 720-1737; e-mail
The Animal and Plant Health Inspection Service's Plant Protection and Quarantine (PPQ) unit protects and safeguards the Nation's plant resources through programs and activities to prevent the introduction and spread of plant pests and noxious weeds. On September 5, 2003, APHIS published a notice in the
We solicited comments for 30 days regarding suggestions for topics for discussion at the meeting. A total of five comments were received. Commenters raised issues concerning whether APHIS needs to establish a process for seeking comment from stakeholders prior to discussions with the North American Plant Protection Organization (NAPPO) or the International Plant Protection Convention (IPPC), and whether permit requirements for exotic and domestic microbial plant pathogens affect the cost and quality of research on important pathogens. Other commenters raised issues about the accessibility of operational work plans pertaining to imports; making details available about risk mitigation early on in the risk assessment process; expanding, via the stakeholder registry, notifications on proposed actions of international standard-setting bodies such as NAPPO and the IPPC; and the agency's plans with regard to the revision of the regulations for importing nursery stock. The agency believes that these topics are appropriate for discussion at one of the following five workshop sessions that are planned for December 10:
• Pest Risk Assessments—Models, Process, and Participation
• Import Permits and Export Certification—Service, Standardization, Security, and Automation
• Developing Strategic Approaches to Exports
• The Stakeholder Role in the Department of Homeland Security
• Integrating Federal, State, Tribal, and Industry Players/Partners in the Incident Command System
The agency is also planning a separate presentation with regard to strategies for revising the nursery stock regulations.
In addition to the workshops and presentation referenced above, the following topics are on the agenda for the meeting: An overview of the PPQ mission and structure as well as the year in review; governmental perspectives on the relationships between PPQ, State cooperators and Tribal governments; future priorities in plant quarantine programs; an industry perspective on needs and emerging pest threats; the view from Congress; the partnership with Department of Homeland Security and how the shared mission is being accomplished; how the harnessing of information, collection of data, and use of improved response models is transforming plant health; a budget update and outlook; the harmonization of regulatory approaches for the regulations for importing nursery stock and the regulations for importing fruits and vegetables; and an update on import and export issues.
We request that all persons wishing to attend the meeting preregister on the PPQ Web site,
The Melrose Hotel is setting aside a number of rooms at the conference rate. When reserving a room, please specify that you would like the USDA/APHIS rate. The telephone number for the hotel is (202) 955-6400 or toll free (800) 635-7673. The hotel's Web site is
An application has been submitted to the Foreign-Trade Zones (FTZ) Board (the Board) by the Yuma County Airport Authority, Inc., grantee of Foreign-Trade Zone 219, requesting authority to expand FTZ 219, Yuma, Arizona, to include an additional site within the San Luis Customs port of entry. The application was submitted pursuant to the provisions of the Foreign-Trade Zones Act, as amended (19 U.S.C. 81a-81u), and the regulations of the Board (15 CFR part 400). It was formally filed on November 3, 2003.
FTZ 219 was approved by the Board on April 2, 1997 (Board Order 874, 62 FR 17580, 4/10/97), and expanded on April 5, 2001 (Board Order 1161, 66 FR 19422, 4/16/01), and on February 7, 2003 (Board Order 1267, 68 FR 9047, 2/27/03). The zone project currently consists of two sites in Yuma:
The applicant is now requesting authority to expand the general-purpose zone to include an additional site (75 acres) in Yuma County:
In accordance with the Board's regulations, a member of the FTZ Staff has been designated examiner to investigate the application and report to the Board.
Public comment on the application is invited from interested parties. Submissions (original and 3 copies) shall be addressed to the Board's Executive Secretary at one of the following addresses:
1.
2.
The closing period for their receipt is January 16, 2004. Rebuttal comments in response to material submitted during the foregoing period may be submitted during the subsequent 15-day period (to February 2, 2004).
A copy of the application and accompanying exhibits will be available during this time for public inspection at the Office of the Foreign-Trade Zones Board's Executive Secretary at address Number 1 listed above, and at the Yuma Main Library, 350 South 3rd Avenue, Yuma, Arizona 85364.
An application has been submitted to the Foreign-Trade Zones Board (the Board) by the Chattanooga Chamber Foundation, grantee of FTZ 134, on behalf of Sofix Corporation (Sofix), requesting authority to manufacture black colorformer chemicals under FTZ procedures within FTZ 134—Site 2. The application was formally filed on November 4, 2003.
The Sofix facility (42,000 sq. ft. of production area and 17,500 sq. ft. of warehouse space) is located at 2800 Riverport Road, Chatanooga, Tennessee, within Site 2 of FTZ 134. The plant (32 employees) produces black colorformer chemicals, known generically as Spiro Phathalide Xanthene (HTSUS 2932.29.30, 7.2%). Foreign-sourced materials include ACME (HTSUS 2922.29.60, 7.2%) and benzoic acid (HTSUS 2922.50.35, 7.2%) and will account for some 50-60 percent of finished product value.
Zone procedures would exempt Sofix from Customs duty payments on foreign materials used in production for export. Some 60 percent of the plant's shipments are currently exported. On domestic shipments, the company would be able to defer duty on foreign-sourced inputs until formal Customs entry is made. Zone procedures would also exempt Sofix from Customs duty payments on foreign materials used in certain production resulting in scrap or waste (some 5 percent by weight). The application also indicates that Sofix may realize logistical/procedural benefits from subzone status. The application indicates that the savings from zone procedures will help improve the plant's international competitiveness.
In accordance with the Board's regulations, a member of the FTZ Staff has been designated examiner to investigate the application and report to the Board.
Public comment is invited from interested parties. Submissions (original and 3 copies) shall be addressed to the Board's Executive Secretary at one of the following addresses:
The closing period for their receipt is January 16, 2004. Rebuttal comments in response to material submitted during the foregoing period may be submitted during the subsequent 15-day period (to February 2, 2004).
A copy of the application and accompanying exhibits will be available for public inspection at the Office of the Foreign-Trade Zones Board's Executive Secretary at address Number 1 listed above, and at the U.S. Customs and Border Protection Office, Port of Chattanooga, 5959 Shallowford Road, Suite 429-0, Chattanooga, TN 37421.
Import Administration, International Trade Administration, U.S. Department of Commerce.
On July 9, 2003, the Department of Commerce (the Department) published the preliminary results of its administrative review of the antidumping duty order on certain hot-rolled carbon steel flat products from South Africa (68 FR 40903). The review covers shipments of this merchandise to the United States for the period May 3, 2001 through August 31, 2002, by Iscor Ltd. (Iscor), Saldanha Steel Ltd. (Saldanha) and Highveld Steel & Vanadium Corp. Ltd. (Highveld).
We gave interested parties an opportunity to comment on our preliminary results. We received a case brief from the United States Steel Corporation (USS), and Nucor Corporation (Nucor) filed a letter in support of the case brief of USS. Iscor and Saldanha (Iscor/Saldanha),
November 17, 2003.
Scot Fullerton or Elfi Blum, Office of Antidumping/Countervailing Duty Enforcement VII, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW., Washington, DC 20230; telephone (202) 482-1386 or (202) 482-0197, respectively.
On July 9, 2003, the Department published the preliminary results of its administrative review of the antidumping duty order on certain hot-rolled carbon steel flat products from South Africa.
For purposes of this review, the products covered are certain hot-rolled carbon steel flat products of a rectangular shape, of a width of 0.5 inch or greater, neither clad, plated, nor coated with metal, and whether or not painted, varnished, or coated with plastics or other non-metallic substances, in coils (whether or not in successively superimposed layers), regardless of thickness, and in straight lengths, of a thickness of less than 4.75 mm and of a width measuring at least 10 times the thickness. Universal mill plate (
Steel products to be included in the scope of this review, regardless of definitions in the Harmonized Tariff Schedule of the United States (HTS), are products in which: (i) Iron predominates, by weight, over each of the other contained elements; (ii) the carbon content is 2 percent or less, by weight; and (iii) none of the elements listed below exceeds the quantity, by weight, respectively indicated:
All products that meet the physical and chemical description provided above are within the scope of this review unless otherwise excluded. The following products, by way of example, are outside or specifically excluded from the scope of this review:
• Alloy hot-rolled steel products in which at least one of the chemical elements exceeds those listed above (including,
• Society of Automotive Engineers (SAE)/American Iron and Steel Institute (AISI) grades of series 2300 and higher.
• Ball bearings steels, as defined in the HTS.
• Tool steels, as defined in the HTS.
• Silico-manganese (as defined in the HTS) or silicon electrical steel with a silicon level exceeding 2.25 percent.
• ASTM specifications A710 and A736.
• USS Abrasion-resistant steels (USS AR 400, USS AR 500).
• All products (proprietary or otherwise) based on an alloy ASTM specification (sample specifications: ASTM A506, A507).
• Non-rectangular shapes, not in coils, which are the result of having been processed by cutting or stamping and which have assumed the character of articles or products classified outside chapter 72 of the HTS.
The merchandise subject to this review is classified in the HTS at subheadings: 7208.10.15.00, 7208.10.30.00, 7208.10.60.00, 7208.25.30.00, 7208.25.60.00, 7208.26.00.30, 7208.26.00.60, 7208.27.00.30, 7208.27.00.60, 7208.36.00.30, 7208.36.00.60, 7208.37.00.30, 7208.37.00.60, 7208.38.00.15, 7208.38.00.30, 7208.38.00.90, 7208.39.00.15, 7208.39.00.30, 7208.39.00.90, 7208.40.60.30, 7208.40.60.60, 7208.53.00.00, 7208.54.00.00, 7208.90.00.00, 7211.14.00.90, 7211.19.15.00, 7211.19.20.00, 7211.19.30.00, 7211.19.45.00, 7211.19.60.00, 7211.19.75.30, 7211.19.75.60, and 7211.19.75.90. Certain hot-rolled flat-rolled carbon steel flat products covered by this review, including: vacuum degassed fully stabilized; high strength low alloy; and the substrate for motor lamination steel may also enter under the following tariff numbers: 7225.11.00.00, 7225.19.00.00, 7225.30.30.50, 7225.30.70.00, 7225.40.70.00, 7225.99.00.90, 7226.11.10.00, 7226.11.90.30, 7226.11.90.60, 7226.19.10.00, 7226.19.90.00, 7226.91.50.00, 7226.91.70.00, 7226.91.80.00, and 7226.99.00.00. Subject merchandise may also enter under 7210.70.30.00, 7210.90.90.00, 7211.14.00.30, 7212.40.10.00, 7212.40.50.00, and 7212.50.00.00. Although the HTS subheadings are provided for convenience and U.S. Customs and Border Protection (CBP) purposes, the written description of the merchandise under review is dispositive.
All issues raised in the case and rebuttal briefs by parties to this administrative review are addressed in the
A list of the issues which parties have raised and to which we have responded, all of which are in the
In the
Furthermore, we used an adverse inference and applied AFA pursuant to section 776(b) of the Act because we determined that Iscor/Saldanha and Highveld had failed to cooperate to the best of their ability by refusing to respond to the Department's questionnaire, making it impossible for the Department to perform any company-specific analysis or calculate dumping margins, if any, for the period of review (POR). After analyzing the comments received, we continue to find that the use of AFA is warranted for exports of subject merchandise to the United States by Iscor/Saldanha and Highveld in these final results. For a complete discussion,
Section 776(c) of the Act provides that when the Department relies on the facts otherwise available and relies on “secondary information,” the Department shall, to the extent practicable, corroborate that information from independent sources reasonably at the Department's disposal. The SAA clarifies that the petition is “secondary information,” and states that “corroborate” means to determine that the information used has probative value.
As part of the corroboration process, we have re-examined the information used as facts available in the investigation. For purposes of this administrative review, we have reviewed the petition and the administrative record, and found no reason to believe that the reliability of this information should be called into question.
Further, the Department considers information reasonably at its disposal to determine whether a margin continues to have relevance. With respect to the relevance aspect of corroboration, however, the Department will consider information reasonably at its disposal as to whether there are circumstances that would render a margin inappropriate. Where circumstances indicate that the selected margin is not appropriate as adverse facts available, the Department will disregard the selected margin and determine an appropriate margin.
When circumstances warrant, the Department may diverge from its standard practice of selecting as the AFA rate the highest rate in any segment of the proceeding and calculate the AFA rate pursuant to section 776(b) of the Act. For example, in
Accordingly, we determine that the highest rate from any segment of this administrative proceeding (
As a result of our review, we determine the antidumping margins for Iscor/Saldanha and Highveld, based on total AFA, to be as follows:
The Department shall determine, and CBP shall assess, antidumping duties on all appropriate entries. The Department will issue appropriate appraisement instructions directly to CBP within 15 days of publication of the final results of review. Furthermore, the following deposit rates will be effective with respect to all shipments of certain hot-rolled carbon steel flat products from South Africa entered, or withdrawn from warehouse, for consumption on or after the publication date of the final results, as provided for by section 751(a)(2)(C) of the Act: (1) For Iscor/Saldanha and Highveld, the cash deposit rate will be the rate indicated above; (2) for previously reviewed or investigated companies not listed above, the cash deposit rate will be the company-specific rate established for the most recent period; (3) if the exporter is not a firm covered in this review, a prior review, or the 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 subject merchandise; and (4) for all other producers and/or exporters of this merchandise, the cash deposit rate shall be the all other rate established in the LTFV investigation, which is 9.28 percent. These deposit rates, when imposed, shall remain in effect until publication of the final results of the next administrative review.
This notice also serves as a final reminder to importers of their responsibility under section 351.402(f) to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during this review period. Failure to comply with this requirement could result in the Secretary's presumption that reimbursement of antidumping duties occurred and the subsequent assessment of doubled antidumping duties.
This notice also serves as a reminder to parties subject to administrative protective orders (APO) of their responsibility concerning the disposition of proprietary information disclosed under APO as explained in the administrative order itself. Timely written notification of the return/destruction of APO materials or conversion to judicial protective order is hereby requested. Failure to comply with the regulations and terms of an APO is a sanctionable violation.
This administrative review and notice are in accordance with sections 751(a)(3)(A) and 777(i)(1) of the Act.
Import Administration, International Trade Administration, Department of Commerce.
Notice of Initiation and Preliminary Results of Changed Circumstances Antidumping and Countervailing Duty Administrative Reviews.
The Department of Commerce has received information sufficient to warrant the initiation of changed circumstances administrative reviews of the antidumping and countervailing duty orders on certain pasta from Turkey. Based on this information, we preliminarily determine that Tat Konserve Sanayi A.S. is the successor-in-interest to Pastavilla Makarnacilik Sanayi ve Ticaret A.S., for purposes of determining antidumping and countervailing duty liabilities. Interested parties are invited to comment on these preliminary results.
November 17, 2003.
Melanie Brown (Countervailing) or Lyman Armstrong (Antidumping), Office of AD/CVD Enforcement, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th and Constitution Avenue, NW., Washington, DC 20230, telephone: (202) 482-4987 or (202) 482-3601, respectively.
On July 24, 1996, the Department of Commerce (“the Department”) published in the
Imports covered by this review are shipments of certain non-egg dry pasta in packages of five pounds (2.27 kilograms) or less, whether or not enriched or fortified or containing milk or other optional ingredients such as chopped vegetables, vegetable purees, milk, gluten, diastases, vitamins, coloring and flavorings, and up to two percent egg white. The pasta covered by this scope is typically sold in the retail market, in fiberboard or cardboard cartons, or polyethylene or polypropylene bags of varying dimensions.
Excluded from the scope of this review are refrigerated, frozen, or canned pastas, as well as all forms of egg pasta, with the exception of non-egg dry pasta containing up to two percent egg white.
The merchandise subject to review is currently classifiable under item 1902.19.20 of the
The Department has issued the following scope ruling to date:
(1) On October 26, 1998, the Department self-initiated a scope inquiry to determine whether a package weighing over five pounds as a result of allowable industry tolerances is within the scope of the antidumping and countervailing duty orders. On May 24, 1999, we issued a final scope ruling finding that, effective October 26, 1998, pasta in packages weighing or labeled up to (and including) five pounds four
In November 2002, Koc Group, a Turkish conglomerate, and Pastavilla's parent company, announced its intent to reorganize and merge its four food-producing subsidiaries. On June 25, 2003, the Shareholders' General Assemblies for Tat and Pastavilla approved the merger. The merger plan called for three of the Koc Group companies to be merged into a fourth Koc Group company, Tat, a tomato products producer. The companies merged into Tat included: Pastavilla, a pasta producer; Maret Marmara Besicilik ve Et Sanayi ve Ticaret A.S., a meat processor; and Sek Süt Endustrisi Kurumu, a dairy products producer. On that same day, Tat's General Assembly approved amendments to Tat's articles of incorporation to include the operations of the merged companies. Therefore, the reorganization of the Koc companies was completed on June 25, 2003.
In the course of this reorganization, Tat acquired Pastavilla as an ongoing concern,
Based on the information provided by Tat, and in accordance with section 751(b)(1) of the Tariff Act of 1930, as amended (“the Act”) and 19 CFR 351.216(d) of the Department's regulations, the Department has determined that there is a sufficient basis to initiate a changed circumstances review to determine whether Tat is the successor-in-interest to Pastavilla.
In making a successor-in-interest determination, the Department examines several factors including, but not limited to, changes in: (1) Management; (2) production facilities; (3) supplier relationships; and (4) customer base.
We preliminarily determine that Tat is the successor-in-interest to Pastavilla. In its September 24, 2003 submission, Tat provided evidence illustrating that its production continues with the same equipment, the same management, the same raw materials purchased from the same suppliers, and the same production process, as Pastavilla. Tat also provided evidence that it continues to sell the same products to the same customers to which Pastavilla previously sold. Documentation attached to Tat's September 24, 2003 submission supports its claims that the acquisition of Pastavilla resulted in little or no changes in the production facilities, supplier relationships, customer base, or management. This documentation consisted of: (1) An independent valuation report which included,
When it concludes that expedited action is warranted, the Department may publish the notice of initiation and preliminary results in a changed circumstances review concurrently.
For these reasons, we preliminarily find that Tat is the successor-in-interest to Pastavilla and, thus, should receive the same antidumping and countervailing duty treatment with respect to certain pasta from Turkey as the former Pastavilla.
Any interested party may request a hearing within 30 days of publication of this notice. Any hearing, if requested, will be held no later than 44 days after the date of publication of this notice, or the first workday thereafter. Case briefs from interested parties may be submitted not later than 30 days after the date of publication of this notice. Rebuttal briefs, limited to the issues raised in those comments, may be filed not later than 37 days after the date of publication of this notice. All written comments shall be submitted in accordance with 19 CFR 351.303. Persons interested in attending the hearing, if one is requested, should contact the Department for the date and time of the hearing. The Department will publish the final results of this changed circumstances review, in accordance with 19 CFR 351.216(e), including the results of its analysis of issues raised in any written comments.
We are issuing and publishing these results and notice in accordance with sections 751(b)(1) and 777(i)(1) and (2) of the Act and section 19 CFR 351.216.
Import Administration, International Trade Administration, Department of Commerce.
Notice of implementation under section 129 of the Uruguay Round Agreements Act; countervailing measures concerning certain steel products from the European communities.
On January 8, 2003, the Dispute Settlement Body of the World Trade Organization adopted the report of the Appellate Body in
November 7, 2003.
John Brinkmann (French and Italian determinations), Robert Copyak (German determination), or Dana Mermelstein (all other determinations), Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW., Washington, DC 20230; telephone: (202) 482-4126, (202) 482-2209, (202) 482-1391, respectively.
Unless otherwise indicated, all citations to the statute are references to the Tariff Act of 1930, as amended (the Act). In addition, unless otherwise indicated, all citations to the Department's regulations are references to the provisions codified at 19 CFR part 351 (2003). Finally, citation to “section 129” refers to section 129 of the Uruguay Round Agreements Act (“URAA”), codified at 19 U.S.C. 3538.
On January 8, 2003, the Dispute Settlement Body (“DSB”) of the World Trade Organization (“WTO”) adopted the report of the WTO Appellate Body in
Subsequently, pursuant to section 129(b)(2) of the URAA,
On October 24, the Department issued twelve Section 129
Subsequent to the Department's issuance of the Section 129 Determinations and pursuant to section 129(b)(3) of the URAA, the U.S. Trade Representative consulted with the Department and the Congressional committees concerning these determinations. Then, by letter dated November 7, 2003, the U.S. Trade Representative requested the Department, pursuant to section 129(b)(4) of the URAA, to implement the Section 129 Determinations with respect to the eight determinations that did not involve sunset reviews under section 751(c) of the Act.
Section 129(c)(1)(B) of the URAA expressly provides that a determination under section 129 applies only with respect to unliquidated entries of merchandise entered, or withdrawn from warehouse, for consumption on or after the date on which the USTR directs the Department to implement that determination. In other words, as the SAA clearly provides, “such determinations have prospective effect only.” SAA at 1026. Thus, “relief available under subsection 129(c)(1) is distinguishable from relief in an action brought before a court or a NAFTA binational panel, where * * * retroactive relief may be available.”
Because the U.S. Trade Representative declined to direct the Department to implement the revised determinations with regard to the four sunset reviews involved in the WTO dispute, we are not implementing these Section 129 Determinations.
We are, however, implementing the remaining Section 129 Determinations as follows. With respect to the five countervailing duty orders noted immediately below, we are revising the cash deposit rates for certain companies to reflect the impact that privatization had on non-recurring, allocable subsidies. Thus, in accordance with section 129(c)(1)(B) of the URAA, we will instruct U.S. Customs and Border Protection (“CBP”) to collect cash deposits of estimated countervailing duties in the percentage detailed below of the f.o.b. invoice price on all shipments of the companies noted below, entered, or withdrawn from warehouse, for consumption on or after November 7, 2003. In addition, three of the five cases noted below involve determinations in investigations. The “all others” cash deposit rates for these three cases shall be revised as follows.
With respect to the countervailing duty orders on certain cut-to-length carbon quality steel plate from France (C-427-817) and stainless steel sheet and strip in coils from France (C-427-815), consistent with our Section 129 Determinations, we are revoking those orders in whole. Accordingly, we will instruct CBP to discontinue suspension of liquidation under those orders of all shipments of subject merchandise entered, or withdrawn from warehouse, for consumption on or after November 7, 2003.
With respect to the countervailing duty order on stainless steel wire rod from Italy (C-475-821), consistent with our Section 129 Determination, we are revoking this order with respect to the company CAS. Accordingly, we will instruct CBP to discontinue suspension of liquidation under this order of all of CAS's shipments of subject merchandise entered, or withdrawn from warehouse, for consumption on or after November 7, 2003. The “all others” cash deposit rate under this order will be revised to 1.28 percent.
This notice of implementation is issued and published in accordance with section 129(c)(2)(A) of the URAA.
Office of Oceanic and Atmospheric Research (OAR), National Oceanic and Atmospheric Administration (NOAA), U.S. Department of Commerce.
Notice of Intent to prepare an Environmental Impact Statement (EIS) for the construction of an Office/Laboratory/Classroom Facility for the Canaan Valley Institute (CVI); request for comments.
NOAA is the lead agency funding and overseeing the proposed action and preparation of this EIS by CVI for construction of an office/laboratory/classroom facility near the town of Davis, West Virginia. In accordance with the National Environmental Policy Act of 1969, this notice also initiates the public scoping process for the preparation of the EIS to examine potential issues and identify key resource impacts.
Written comments on the intent to prepare an EIS will be accepted for thirty days following publication of this notice. At least one public scoping meeting will be scheduled in early 2004. An announcement, notifying the public of the meeting dates, times, and locations, will be made once the meeting is scheduled. Both agency personnel and the public will be invited to attend this meeting. The dual purpose of this meeting will be to identify the scope of issues that will be addressed in the EIS and to solicit public input relating to the scope of studies for the construction of the facility and its access road.
To submit comments, request further information, request a detailed map of the proposed sites and roadway access alternatives, and/or have your name added to the EIS mailing list, contact Jim Rawson, Canaan Valley Institute, PO Box 673, Davis, WV 26260; Telephone (304) 463-4739; Fax (304) 463-4759 or Bruce Hicks, NOAA Air Resources Laboratory, Route: R/ARL, SSMC3 Rm. 3152, 1315 East West Highway, Silver Spring, MD 20910-3282; Telephone (301) 713-0684 x136; Fax (301) 713-0119.
Canaan Valley Institute (CVI) will construct a new facility on their property to be utilized as their headquarters. This facility is proposed to include office, laboratory, classroom, and conference room space, as well as some outdoor interpretive areas. This project would be funded through a NOAA grant. The new headquarters would include a view of the Canaan Valley, which is important for both visitor experience and interpretation potential,
Several key environmental features exist within or adjacent to the CVI property. The federally endangered Appalachian Northern Flying Squirrel (
At least three alternative site locations and five access alternatives will be developed and are expected to be analyzed to evaluate the environmental impacts, costs, and ability to meet project needs of each. The public involvement plan for this project will give citizens, public officials, community stakeholders, and other organizations and groups a medium to obtain information regarding the project as well as provide input and get involved with the project. This plan will include general public meetings, public officials workshops, and neighborhood and special purpose meetings. The public involvement requirements for Environmental Justice as required by Title VI of the Civil Rights Act of 1964 and Executive Order (EO) 12868 will be addressed. In addition, the public may also be informed about the project through news releases, project newsletters, or the CVI Web site,
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notification of approval of VMS systems.
This document provides notice of vessel monitoring systems (VMS) approval by NOAA for use by vessels participating in the Pacific Coast groundfish fishery and sets forth relevant features of the VMS.
To obtain copies of the list of NOAA approved VMS mobile transmitting units and NOAA approved VMS communications service providers,
To submit a completed and signed checklist, mail or fax it to NOAA Enforcement, 7600 Sand Point Way NE; Seattle, WA 98115; fax (206)526-6528.
For more addresses regarding approved VMS, see the
For current listing information contact Mark Oswell, Outreach Specialist, phone 301-427-2300, fax 301-427-2055. For questions regarding VMS installation, activation checklists, and status of evaluations, contact Jonathan Pinkerton, National VMS Program Manager, phone 301-427-2300, fax 301-427-2055. For questions regarding the checklist, contact Joe Albert, Northwest Divisional VMS Program Manager, phone 206-526-6133.
The public may acquire this notice, installation checklist, and relevant updates via the “fax-back” service, or by contacting Joe Albert, Northwest Divisional VMS Program Manager, Northwest Division, phone (206) 526-6133.
The Inmarsat-C satellite communications VMS transmitting units that meet the minimum technical requirements for the Pacific Coast groundfish fishery are the Thrane & Thrane Fishery “Capsat” (part number TT-3022D-NMFS) and the Thrane & Thrane Fishery “Mini-C” (part number TT-3026-NMFS). The address for the Thrane & Thrane distributor (LandSea Systems) dealer contact is provided under the heading VMS Provider Addresses.
Thrane & Thrane TT-3022D-NMFS Features: The transceiver consists of an integrated GPS/Inmarsat-C unit in the wheelhouse and an antenna mounted atop the vessel. The unit is factory pre-configured for NMFS VMS operations (non-Global Maritime Distress & Safety System (non-GMDSS)). Satellite commissioning services are provided by LandSea Systems personnel.
Automatic GPS position reporting starts after transceiver nstallation and power activation onboard the vessel. The unit is a car-radio-sized transceiver using a floating 10 to 32 VDC power supply. The unit is configured for automatic reduced position transmissions when the vessel is stationary (i.e., in port). It allows for port stays without power drain or power shut down. The unit restarts normal position transmission automatically when the vessel goes to sea.
The outside antenna, model TT-3005M, is a compact omni-directional Inmarsat-C/GPS antenna, providing operation down to +/-15 deg. angles.
A configuration option is available to automatically send position reports to a private address, such as a fleet management company. Another available option is the ability to send and receive private e-mail and other messages with the purchase and installation of an input device such as a laptop, personal computer, or message display terminal.
Thrane & Thrane TT-3026-NMFS features: The transceiver consists of an integrated GPS/Inmarsat-C unit mounted atop the vessel. The unit is factory pre-configured for NMFS VMS operations (non-Global Maritime Distress & Safety System (non-GMDSS)). Satellite commissioning services are provided by LandSea Systems personnel.
Automatic GPS position reporting starts after transceiver installation and power activation onboard the vessel. The unit is an integrated transceiver/antenna/GPS design using a floating 10 to 32 VDC power supply. The unit is configured for automatic reduced position transmissions when the vessel is stationary (i.e., in port). It allows for port stays without power drain or power shut down. The unit restarts normal position transmission automatically when the vessel goes to sea.
The TT-3026-NMFS provides operation down to +/-15 degree angles. Although the unit has the capability of two-way communication to send and receive private e-mail and other messages; it can only use this capability when additional equipment not required by NMFS is purchased (i.e., a laptop, personal computer, or message display terminal). A configuration option is available to automatically send position reports to a private address, such as a fleet management company.
A vessel owner wishing to purchase either of these systems may contact the entity identified under the heading VMS Provider Addresses for Thrane & Thrane TT-3022D-NMFS and TT-3026-NMFS. The owner should identify himself or herself as a vessel owner in the “Pacific Coast groundfish fishery.” The Thrane & Thrane transceiver set the vessel owner purchases will be configured for the Pacific Coast groundfish fishery.
To use the TT-3022-NMFS or the TT-3026-NMFS, the vessel owner will need to establish an Inmarsat-C system use contract with an approved Inmarsat-C communications service provider. The owner will be required to complete the Inmarsat-C “Registration for Service Activation for Maritime Mobile Earth Station.” The owner should consult with LandSea Systems when completing this form.
LandSea Systems personnel will perform the following before shipment: (a) configure the transceiver according to OLE specifications for the Pacific Coast groundfish fishery; (b) download the predetermined NMFS position reporting and broadcast command identification numbers into the unit; (c) test the unit to ensure operation when installation has been completed on the vessel; and (d) forward the Inmarsat service provider and the transceiver identifying information to OLE.
The Inmarsat-D+ satellite communications VMS transmitting unit that meets the minimum technical requirements for the Pacific Coast groundfish fishery is the Satamatics SAT-101 (model number SAT-101 NMFS/PCG). The address for the Satamatics contact is provided under the heading VMS Provider Addresses.
Satamatics-101 NMFS/PCG Features: The transceiver is part of a bundled service provided by Satamatics that includes the transceiver and the satellite airtime. The transceiver is delivered as a complete kit including main unit, antenna, antenna mount, cabling, power connector and detailed installation manual. The main unit is an integrated GPS receiver and Inmarsat-D+ transmitter receiver measuring 4.375in. x 6.75in. x 1.5 in. For the VMS environment, it is enclosed in a secure ruggedized outer box so that it can be mounted inside the superstructure or hull of the vessel or externally in any location sheltered from “green seas.” Prime power to the unit is a floating 9.6 to 30 Vdc. The main unit includes a back up, re-chargeable battery. The antenna is small and lightweight measuring 4.375in. diameter and 1.5 in. high and weighing 0.5 lbs. The transceiver is factory pre-configured for NMFS VMS requirements for each fishery for “plug and play” installation and operation requiring no specialized training or expertise.
Automatic GPS position reporting can start immediately after transceiver installation and power activation onboard the vessel. The unit is configured for automatic reduced position transmissions when the vessel is stationary (i.e., in port). It allows for port stays without power drain or power
Satamatics provides a one-stop shop for easy purchase and commissioning of transceiver and satellite airtime. A vessel owner wishing to purchase the model number SAT 101- NMFS/PCG can purchase a bundled package of transceiver and satellite airtime directly from Satamatics using a self-serve web site or by contacting Satamatics as listed in the VMS Provider Addresses.
Satellite commissioning service is instantaneous via a self-service web page or through Satamatics Support anytime after the receipt of the transceiver. This eliminates delays and paperwork. Satamatics will forward the transceiver identifying information to OLE. Although the VMS package has been designed for an easy, low cost self-install, Satamatics provides a support web site and contact line for fishermen.
The ORBCOMM satellite communications VMS transmitting units that meet the minimum technical requirements for the Pacific Coast groundfish fishery is the Stellar ST2500G (part number ST2500G-NMFS). The address for ORBCOMM and Stellar Value Added Resellers (VAR) and their regional sales outlets around the country are provided under the heading VMS Provider Addresses.
Stellar ST2500G-NMFS Features: The transceiver consists of an integrated GPS/ORBCOMM Satellite Communicator mounted in the wheelhouse and antennas mounted atop the vessel. The unit is pre-configured and tested for NMFS VMS operations (with an emergency alarm switch (non-GMDSS)). Satellite commissioning services are provided by several VMS providers.
Automatic GPS position reporting starts after transceiver installation and power activation onboard the vessel. The unit is a 4 in x 8in x 2in transceiver powered by any 12 to 32 VDC power supply. It is factory configured for automatic reduced position transmissions when the vessel is stationary (i.e., in port) which allows for port stays without power drain or unit shut down. The unit restarts normal position transmission automatically when the vessel goes to sea.
The ST2500G has an omni-directional VHF antenna, providing operation from +/-5 degrees above the horizon anywhere on earth.
A configuration option is available to automatically send position reports to a private e-mail address or to a secure web site where the data is provided on a map and in tabular form. Another available option is the ability to send and receive private e-mail from a PC or Laptop personal computer or from specific hand held devices. A complete list of devices, supported operating systems and available software solutions are described by each VMS provider.
A vessel owner wishing to purchase the Stellar ST2500G transceiver will be required to complete an ORBCOMM “Provisioning” form via the web. If assistance is required, the owner may consult with the VAR or one of the entities identified under the heading VMS Provider Addresses for the ST2500G-NMFS when completing this form. The unit purchased by the vessel owner will be configured specifically for the Pacific Coast groundfish fishery.
The ORBCOMM VMS VAR will perform the following before shipment: (a) configure the transceiver according to OLE specifications for the Pacific Coast groundfish fishery; (b) download the predetermined NMFS position reporting applications into the unit; (c) test the unit to ensure proper operation prior to shipping; (d) forward the service provider and the transceiver identifying information to OLE and test the unit when the installation has been completed on the vessel.
OLE has approved the below-listed communications service providers: Orbcomm, Satamatics, Telenor, and Xantic satellite communications services for the Pacific Coast groundfish fishery.
It is recommended that the vessel owner keep for his or her records and that the VAR have on record the following identifying information: (a) signed and dated receipts and contracts; (b) satellite communicator identification number; (c) VAR customer number, (Identification number/unit surname name combination); (d) e-mail address of satellite communicator (
Pursuant to 50 CFR 635.69(d), OLE will provide an installation and activation checklist which the vessel owner must follow. The vessel owner must sign a statement on the checklist certifying compliance with the installation procedures and return the checklist to OLE. Installation can be performed by experienced crew, a VAR or by an electronics specialist. All installation costs are paid by the owner.
The owner may confirm the Stellar ST2500G-NMFS operation and communications service to ensure that position reports are automatically sent to and received by OLE before leaving on a fishing trip under VMS. OLE does not regard the fishing vessel as meeting the requirements of 50 CFR 635.69 until position reports are automatically received. For confirmation purposes, contact the NOAA Enforcement, 7600 Sand Point Way NE; Seattle, WA 98115, at (206) 526-6133.
ORBCOMM is a store-and-forward data messaging service allowing users to send and receive information virtually anywhere in the world, on land, at sea, and in the air. ORBCOMM supports a wide variety of applications including Plain Text Internet e-mail, position and weather reporting, and remote equipment monitoring and control. Mariners can use ORBCOMM free of charge to send critical safety at sea messages as part of the U.S. Coast Guard's Automated Mutual-Assistance Vessel Rescue system. VMS Services are being sold through specific ORBCOMM VARS.
Features offered: Customer Service supports the security and privacy of vessel accounts and messages with the following: (a) password authentication for vessel owners or agents and for OLE to prevent unauthorized changes or inquiries; and (b) separation of private messages from OLE messages. (OLE requires VMS-related position reports, only.)
Billing is separated between accounts for the vessel owner and OLE. VMS position reports and vessel-initiated messaging are paid for by the vessel owner. Messaging initiated from OLE operations center is paid for by OLE.
ORBCOMM provides customer service through its VARS to establish and support two-way transmission of transceiver unit configuration commands between the transceiver and land-based control center. This supports OLE's message needs and, optionally, fishermen's private e-mail needs.
The owner should refer to and follow the configuration, installation, and service activation procedures for the Stellar ST2500G-NMFS satellite communicator.
Satamatics provides tracking and monitoring solutions globally using Inmarsat-D+. Satamatics is able to provide end to end bundled services using a combination of its satellite gateways that it designed, built, owns and maintains and its own D+ transceiver line that it designed and
Satamatics provides a one-stop shop for service and transceiver for easy purchase and commissioning. Vessel owners wishing to use the Satamatics solution to meet the Pacific Coast groundfish fishery VMS requirement can purchase a bundled package of transceiver and airtime directly from Satamatics using a self-serve web site or contacting Satamatics as listed in the VMS Provider Addresses.
Satellite commissioning service is instantaneous via a self-service web page or through Satamatics Support anytime after the receipt of the transceiver. This eliminates delays and paperwork. Satamatics will forward the transceiver identifying information to OLE. Although the VMS service package has been designed for easy commissioning via the web, Satamatics provides a support line for fishermen as well.
Billing for satellite airtime is separated between accounts for the vessel owner and OLE. VMS position reports and vessel-initiated messaging are paid for by the vessel owner. Messaging initiated from OLE operations center is paid for by NOAA.
It is recommended that the vessel owner keep for his or her records and that Telenor and Xantic have on record the following identifying information: (a) Signed and dated receipts and contracts; (b) transceiver serial number; (c) Telenor or Xantic customer number, user name and password; (d) e-mail address of transceiver; (e) Inmarsat identification number; (f) owner name; (g) vessel name; (h) vessel documentation or registration number; and (i) mobile earth station license (FCC license).
Pursuant to 50 CFR 635.69(d), OLE will provide an installation and activation checklist which the vessel owner must follow. The vessel owner must sign a statement on the checklist certifying compliance with the installation procedures and return the checklist to OLE. Installation can be performed by experienced crew or by an electronics specialist, and the installation cost is paid by the owner.
The owner may confirm the TT-3022-NMFS or TT-3026-NMFS operation and communications service to ensure that position reports are automatically sent to and received by OLE before leaving on a fishing trip under VMS. OLE does not regard the fishing vessel as meeting the requirements of 50 CFR 635.69 until position reports are automatically received. For confirmation purposes, contact the NOAA Fisheries Office for Law Enforcement, 7600 Sand Point Way NE; Seattle, WA 98115, at (206) 526-6133.
Inmarsat-C is a store-and-forward data messaging service. Inmarsat C allows users to send and receive information virtually anywhere in the world, on land, at sea, and in the air. Inmarsat-C supports a wide variety of applications including Internet e-mail, position and weather reporting, a free daily news service, and remote equipment monitoring and control. Mariners can use Inmarsat-C free of charge to send critical safety at sea messages as part of the U.S. Coast Guard's Automated Mutual-Assistance Vessel Rescue system and of the NOAA Shipboard Environmental Acquisition System programs. Telenor Vessel Monitoring System Services is being sold through LandSea Systems, Inc. For the LandSea and Telenor addresses, look under the heading “VMS Provider Addresses”.
Xantic is a provider Vessel Monitoring Services to the fishing industry. By installing an approved OLE Imarsat-C transceiver on the vessel, fishermen can send and receive E-mail, to and from land, transceiver automatically sends vessel position reports to OLE, and is fully compliant with the International Coast Guard Search and Rescue Centers. XANTIC Vessel Monitoring System Services are being sold through LandSea Systems, Inc. For the LandSea and XANTIC addresses, look under the heading VMS Provider Addresses.
Telenor and XANTIC Features offered through LandSea Systems: Customer Service supports the security and privacy of vessel accounts and messages with the following: (a) password authentication for vessel owners or agents and for OLE to prevent unauthorized changes or inquiries; and (b) separation of private messages from OLE messages. (OLE requires VMS-related position reports, only.)
Billing is separated between accounts for the vessel owner and the OLE. VMS position reports and vessel-initiated messaging are paid for by the vessel owner. Messaging initiated from OLE operations center is paid for by NOAA.
LandSea Systems provides customer service for Telenor and XANTIC users to support and establish two-way transmission of transceiver unit configuration commands between the transceiver and land-based control centers. This supports OLE's message needs and, optionally, fishermen's private message needs.
The vessel owner can configure automatic position reports to be sent to a private address, such as to a fleet management company. The vessel can send and receive private e-mail and other messages when the transceiver has such an input device as a laptop or personal computer attached.
Vessel owners wishing to use Telenor or XANTIC services will need to purchase an Inmarsat-C transceiver approved for the fishery. The owner will need to complete an Inmarsat-C system use contract with Telenor or XANTIC, including a mobile earth station license (FCC requirement). The transceiver will need to be commissioned with Inmarsat according to Telenor or XANTIC's instructions. The owner should refer to and follow the configuration, installation, and service activation procedures for the specific transceiver purchased.
For ORBCOMM and Stellar ST2500G-NMFS information, contact: ORBCOMM, LLC; 21700 Atlantic Boulevard; Dulles, VA 20166 USA.
Call 800-ORBCOMM (USA); Phone: 703-433-6300; Fax: 703-433-6400 Satamatics/INMARSAT D+ bundled VMS solution of satellite airtime and SAT-101 NMFS/PCG transceiver: go to
For Telenor or XANTIC information, contact LandSea Systems Inc., Donna Sherman, 509 Viking Drive, Suite K, L, M, Virginia Beach, VA 23452; voice: 757-463-9557; fax: 757-463-9581; e-mail:
OLE is constantly evaluating new and emerging technologies for inclusion in the VMS program. Additional units may be approved for use in the Pacific Coast groundfish fishery at a later date.
16 U.S.C. 1801,
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of public meetings.
The Mid-Atlantic Fishery Management Council (Council) and its Ecosystems Committee and Executive Committee will hold public meetings.
The meetings will be held on Tuesday, December 2, through Thursday, December 4, 2003. See
This meeting will be held at the Sheraton Suites, 422 Delaware Avenue, Wilmington, DE; telephone: 302-654-8300.
Daniel T. Furlong, Executive Director, Mid-Atlantic Fishery Management Council; telephone: 302-674-2331, ext. 19.
On Tuesday, December 2, the Ecosystems Committee will meet from 10 a.m. until noon. The Council will meet from 1 p.m. to 5 p.m. On Wednesday, December 3, the Executive Committee will meet from 8 a.m. to 9 a.m. The Council will meet from 9 a.m. to 10 a.m. The Council, together with the Atlantic States Marine Fisheries Commission's (ASMFC) Summer Flounder, Scup, and Black Sea Bass Board, will meet from 10 a.m. until 5 p.m. On Thursday, December 4, the Council will meet from 8 a.m. until 4 p.m.
Agenda items for the Council's committees and the Council itself are: Review the committee charge regarding ecosystem-based management, habitat, GRAs, etc., and determine the need for advisors; Review the effect of the New England Council's action and likely schedule of events on Groundfish Amendment 13; Address the exclusion of limited access vessels and develop the Council position on NMFS' proposed action on Scallop Amendment 10; Review Delaware's Artificial Reef Plan: Review the Monkfish Committee's action regarding changes to management for 2004/05 fishing year, and adopt default measures or recommend new measures for 2004/05 fishing year; Review committees 2004 planned actions and schedules, and review committee advisory panel status; Review and adopt Framework 4 to the Squid, Mackerel, and Butterfish Framework 4 (Meeting 2) which extends the Illex squid moratorium; Review and discuss the Monitoring Committees' recommendations, review and discuss the Advisory Panels' recommendations, and develop and approve recreational management measures for 2004 for summer flounder, scup, and black sea bass; Hear a presentation of the Council's Communications Plan; Receive and hear committee and organizational reports, and act on any new and/or continuing business.
Although non-emergency issues not contained in this agenda may come before the Council for discussion, these issues may not be the subject of formal Council action during these meetings. Council action will be restricted to those issues specifically listed in this notice and any issues arising after publication of this notice that require emergency action under section 305(c) of the Magnuson-Stevens Act, provided the public has been notified of the Council's intent to take final actions to address such emergencies.
These meetings are physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Joanna Davis at the Council (see
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of the Southeastern Data, Assessment, and Review (SEDAR) Workshops for Atlantic and Gulf King Mackerel.
The SEDAR assessment of the South Atlantic and Gulf King mackerel will consist of a series of three workshops, a Data Review Workshop, an Assessment Workshop, and a Review Workshop.
The Data Workshop will take place December 1-5, 2003; the Assessment Workshop will take place February 16-20, 2004; and the Review Workshop will take place April 5-9, 2004. See
The three workshops will be held at NOAA Fisheries' Southeast Fisheries Science Center, 75 Virginia Beach Drive, Miami, FL 33149, phone: (305) 361-4200.
Kim Iverson, Public Information Officer, South Atlantic Fishery Management Council, One Southpark Circle, Suite 306, Charleston, SC 29407-4699; phone: (843) 571-4366 or toll free: (866) SAFMC-10; fax: (843) 769-4520.
The workshops will take place: December 1-5, 2003; February 16-20; 2004; and April 5-9, 2004.
The South Atlantic Fishery Management Council, in conjunction with NOAA Fisheries, has implemented the SEDAR process, a multi-step method for determining the status of fish stocks. SEDAR includes three workshops: (1) Data Workshop, (2) Stock Assessment Workshop, and (3) Review Workshop. The product of the Data Workshop and the Stock Assessment Workshop is a stock assessment report. This report is then peer reviewed at the Review Workshop, and a final consensus report and an advisory report are prepared that includes strengths and weaknesses in the stock assessment and recommendations to fishery managers for future data and research needs. The process includes data collectors, biologists, fishermen, environmental representatives, database managers, stock assessment scientists, and Council members and staff.
An assessment data set will be developed during the Data Workshop for Atlantic and Gulf King mackerel. The assessment data set will include catch statistics, fishery sampling, independent monitoring, life history, and logbook information.
Using the data set resulting from the Data Workshop, participants will develop population models, evaluate the status of the stock, and create a report for review.
The Review Workshop involves a peer review of the report created from the earlier two workshops. Two reports will be produced: (1) a consensus report and (2) an advisory report.
Although non-emergency issues not contained in this agenda may come before this group for discussion, those issues may not be the subject of formal action during this meeting. Action will be restricted to those issues specifically identified in this notice and any issues arising after publication of this notice that require emergency action under section 305(c) of the Magnuson-Stevens Fishery Conservation and Management Act, provided the public has been notified of the Council's intent to take final action to address the emergency.
These meetings are physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to the Council office (
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of public meeting.
NMFS will hold a public meeting regarding the scientific research proposed by Dr. Peter J. Stein, Scientific Solutions, Inc., Nashua, New Hampshire, in an application for a scientific research permit and analyzed in a draft environmental assessment.
The meeting will be held on November 20, 2003 at 1 pm.
The meeting will be held at the NOAA Silver Spring Metro Center Complex, Room 1W611, 1305 East-West Highway, Silver Spring, MD 20910.
Dr. Tammy Adams or Steve Leathery, (301)713-2289.
On November 5, 2003, notice was published in the
This meeting is accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Tyrone Stuckey or Dee Jenkins, 301-713-2289 (voice) or 301-713-0376 (fax), at least five business days before the scheduled meeting date.
Department of Defense.
Notice.
Pursuant to the Information Security Oversight Office's Classified National Security Information Directive No. 1, this notice provides Department of Defense addresses to which Mandatory Declassification Review requests may be sent. This notice benefits the public in advising them where to send such requests for declassification review.
Mr. Charlie Talbott, 703-697-4325.
The following chart identifies the offices to which mandatory declassification review requests should be addressed:
Department of the Air Force, DoD.
Notice of meeting.
Pursuant to Public Law 92-463, notice is hereby given of the forthcoming outbrief on Technology for Machine-to-Machine ISR Integration. The purpose of the meeting is to allow the SAB leadership to advise SAF/AQ an outbrief of the study. This meeting will be closed to the public.
November 20, 2003.
Pentagon (SAF/AQ), Room 4E964, Washington, DC 20330.
Paul Hazell, Air Force Scientific Advisory Board Secretariat, 1180 Air Force Pentagon, Rm 5D982, Washington, DC 20330-1180, (703) 697-4811.
Department of the Air Force, DoD.
Notice of meeting.
Pursuant to Public Law 92-463, notice is hereby given of the forthcoming outbrief on Technology for Machine-to-Machine ISR Integration. The purpose of the meeting is to allow the SAB leadership to advise J8 an outbrief of the study. This meeting will be closed to the public.
November 20, 2003.
Pentagon (J8), Room 1E962, Washington DC 20330.
Paul Hazell, Air Force Scientific Advisory Board Secretariat, 1180 Air Force Pentagon, Rm 5D982, Washington DC 20330-1180, (703) 697-4811.
Federal Interagency Coordinating Council, Department of Education.
Notice of a public meeting.
This notice describes the schedule and agenda of a forthcoming meeting of the Federal Interagency Coordinating Council (FICC). Notice of this meeting is intended to inform members of the general public of their opportunity to attend the meeting. The FICC will engage in policy discussions related to health services for young children with disabilities and their families. This meeting was originally scheduled for September 18, 2003, but was cancelled due to the threat of Hurricane Isabel. The meeting will be open and accessible to the general public.
American Institutes for Research, 1000 Thomas Jefferson Street, NW., Conference Rooms B & C, 2nd Floor Washington, DC 20007.
Obral Vance, U.S. Department of Education, 330 C Street, SW., Room 3090, Switzer Building, Washington, DC 20202. Telephone: (202) 205-5507 (press 3).
Individuals who use a telecommunications device for the deaf (TDD) may call (202) 205-5637.
The FICC is established under section 644 of the Individuals with Disabilities Education Act (20 U.S.C. 1444). The FICC is established to: (1) Minimize duplication across Federal, State and local agencies of programs and activities relating to early intervention services for infants and toddlers with disabilities and their
Individuals who need accommodations for a disability in order to attend the meeting (
Summary minutes of the FICC meetings will be maintained and available for public inspection at the U.S. Department of Education, 330 C Street, SW., Room 3090, Switzer Building, Washington, DC 20202, from the hours of 9 a.m. to 5 p.m., weekdays, except Federal holidays.
Department of Energy.
Notice of charter renewal.
Pursuant to Section 14(a)(2)(A) of the Federal Advisory Committee Act (Pub. L. No. 92-463) and in accordance with title 41 of the Code of Federal Regulation, section 102-3.65, and following consultation with the Committee Management Secretariat of the General Services Administration, notice is hereby given that the National Coal Council has been renewed for a two-year period ending November 1, 2005. The Council will continue to provide advice, information, and recommendations to the Secretary of Energy on a continuing basis regarding general policy matters relating to coal issues.
Council members are chosen to assure a well-balanced representation from all sections of the country, all segments of the coal industry, including large and small companies, and commercial and residential consumers. The Council also has diverse members who represent interests outside the coal industry, including environmental interests, labor, research, and academia. Membership and representation of all interests will continue to be determined in accordance with the requirements of the Federal Advisory Committee Act, and implementing regulations.
The renewal of the Council has been determined essential to the conduct of the Department's business and in the public interest in connection with the performance of duties imposed upon the Department of Energy by law. The Council will continue to operate in accordance with the provisions of the Federal Advisory Committee Act and implementing regulations.
Rachel M. Samuel at (202) 586-3279.
Department of Energy.
Notice of charter renewal.
Pursuant to section 14(a)(2)(A) of the Federal Advisory Committee Act (Pub. L. No. 92-463) and in accordance with title 41 of the Code of Federal Regulation, section 102-3.65, and following consultation with the Committee Management Secretariat of the General Services Administration, notice is hereby given that the National Petroleum Council has been renewed for a two-year period ending November 1, 2005. The Council will continue to provide advice, information, and recommendations to the Secretary of Energy on matters relating to oil and gas or the oil and gas industry.
Council members are chosen to assure a well-balanced representation from all sections of the country, all segments of the petroleum industry, and from large and small companies. The Council also has diverse members who represent interests outside the petroleum industry, including environmental labor, academia, research and environmental organizations, and State utilty regulatory commissions. Membership and representation of all interests will continue to be determined in accordance with the requirements of the Federal Advisory Committee Act and implementing regulations.
The renewal of the Council has been determined essential to the conduct of the Department's business and in the public interest in connection with the performance of duties imposed upon the Department of Energy by law. The Council will operate in accordance with the Federal Advisory Act and implementing regulations.
Rachel M. Samuel at (202) 586-3279.
Take notice that on October 1, 2003, Algonquin Gas Transmission Company (Algonquin) tendered for filing as part of its FERC Gas Tariff, Fourth Revised Volume No. 1, the tariff sheets included in Appendix A to the filing, proposed to be effective: (1) On November 1, 2003, or, if service does not commence on November 1, 2003, such later date as the facilities constructed for the HubLine Mainline are placed into service, and (2) on April 1, 2004 for certain sheets previously filed, as designated in Appendix A.
Algonquin asserts that the purpose of this filing is to comply with the Commission's Orders issued in the above-captioned docket on December 21, 2001, as amended June 4, 2002, in which the Commission approved
Algonquin states that copies of its filing have been mailed to all affected customers of Algonquin and interested state commissions.
Any person desiring to protest said filing should file a protest with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, in accordance with § 385.211 of the Commission's Rules and Regulations. All such protests must be filed on or before the protest date as shown below. Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceedings. This filing is available for review at the Commission in the Public Reference Room or may be viewed on the Commission's Web site at
Take notice that on October 31, 2003, ANR Pipeline Company (ANR) tendered for filing and approval one new negotiated rate service agreement and amendments to eight existing negotiated rate service agreements between ANR and Wisconsin Gas Company, and amendments to two existing negotiated rate service agreements between ANR and Wisconsin Electric Power Company. ANR also included in its filing an Amended and Restated Delivery Pressure Agreement, which relates to the tendered service agreements.
ANR requests that the Commission accept and approve the subject negotiated rate agreement and amendments to be effective November 1, 2003.
Any person desiring to be heard or to protest said filing should file a motion to intervene or a protest with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, in accordance with § 385.214 or 385.211 of the Commission's Rules and Regulations. All such motions or protests must be filed in accordance with § 154.210 of the Commission's Regulations. Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceedings. Any person wishing to become a party must file a motion to intervene. This filing is available for review at the Commission in the Public Reference Room or may be viewed on the Commission's Web site at
Take notice that on October 1, 2003, ANR Pipeline Company (ANR), 9 E Greenway Plaza, Houston, Texas 77046, filed with the Federal Energy Regulatory Commission (Commission) pursuant to Section 7(C) of the Natural Gas Act, and Subpart A of the Commission's Regulations its application to install an additional 6,000 horsepower of electric powered compression at its Weyauwega Compressor Station in Waupaca County, Wisconsin, referred to as its North Leg Project. ANR states that its North Leg Project will effectively replace ANR's reliance on upstream Viking Gas Transmission Company (Viking) capacity for flowing volumes of 107,217 dekatherms per day at ANR's Marshfield receipt point. ANR states that its North Leg Project involves the construction of electric compression only, with no pipeline looping proposed, and is consistent with its settlement with Viking in Docket No. CP00-391-000.
Any questions regarding the application may be directed to Kevin P. Erwin, Senior Counsel, ANR Pipeline Company, Nine E. Greenway Plaza, Suite 1866, Houston, Texas, 77048, at (832) 676-5501, with fax at (832) 676-2251.
There are two ways to become involved in the Commission's review of this project. First, any person wishing to obtain legal status by becoming a party to the proceedings for this project
However, a person does not have to intervene in order to have comments considered. The second way to participate is by filing with the Secretary of the Commission, as soon as possible, an original and two copies of comments in support of or in opposition to this project. The Commission will consider these comments in determining the appropriate action to be taken, but the filing of a comment alone will not serve to make the filer a party to the proceeding. The Commission's rules require that persons filing comments in opposition to the project provide copies of their protests only to the party or parties directly involved in the protest.
Persons who wish to comment only on the environmental review of this project should submit an original and two copies of their comments to the Secretary of the Commission. Environmental commenters will be placed on the Commission's environmental mailing list, will receive copies of environmental documents, and will be able to participate in meetings associated with the Commission's environmental review process. Commenters will not be required to serve copies of filed documents on all other parties. However, Commenters will not receive copies of all documents filed by other parties or issued by the Commission, and will not have the right to seek rehearing or appeal the Commission's final order to a Federal court.
The Commission will consider all comments and concerns equally, whether filed by commenters or those requesting intervener status.
The Commission may issue a preliminary determination on non-environmental issues prior to the completion of its review of the environmental aspects of the project. This preliminary determination typically considers such issues as the need for the project and its economic effect on existing customers of the applicant, on other pipelines in the area, and ion landowners and communities. For example, the Commission considers the extent to which the applicant may need to exercise eminent domain to obtain rights-of-way for the proposed project and balances that against the non-environmental benefits to be provided by the project. Therefore, if a person has comments on community and landowner impacts from this proposal, it is important to file comments or to intervene as early in the process as possible.
Take notice that on October 2, 2003, CenterPoint Energy Gas Transmission Company (CEGT) tendered for filing as part of its FERC Gas Tariff, Sixth Revised Volume No. 1, Second Revised Sheet No. 685, to be effective November 1, 2003.
CEGT states that the purpose of this filing is to submit a non-conforming service agreement.
Any person desiring to be heard or to protest said filing should file a motion to intervene or a protest with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, in accordance with sections 385.214 or 385.211 of the Commission's Rules and Regulations. All such motions or protests must be filed in accordance with section 154.210 of the Commission's Regulations. Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceedings. Any person wishing to become a party must file a motion to intervene. This filing is available for review at the Commission in the Public Reference Room or may be viewed on the Commission's Web site at
Take notice that on September 15, 2003, Chanaramble Power Partners LLC filed an initial rate schedule to sell power at market-based rates.
Any person desiring to intervene or to protest this filing should file with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214). Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Any person wishing to become a party must file a motion to intervene. All such motions or protests should be filed on or before the comment date, and, to the extent applicable, must be served on the applicant and on any other person designated on the official service list. This filing is available for review at the Commission or may be viewed on the Commission's Web site at
Take notice that on October 30, 2003, Colorado Interstate Gas Company (CIG) tendered for filing and acceptance by the Federal Energy Regulatory Commission (Commission) the following tariff sheets to its FERC Gas Tariff, First Revised Volume No. 1, to become effective November 30, 2003.
CIG states that these tariff sheets are filed to establish a recovery methodology for electricity commodity expenses related to new electric air compression facilities on the CIG system in compliance with the Commission's February 28, 2003, order in this proceeding.
Any person desiring to protest said filing should file a protest with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, in accordance with § 385.211 of the Commission's Rules and Regulations. All such protests must be filed in accordance with section 154.210 of the Commission's Regulations. Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceedings. This filing is available for review at the Commission in the Public Reference Room or may be viewed on the Commission's Web site at
Take notice that on October 1, 2003, Columbia Gas Transmission Corporation (Columbia) tendered for filing, filed the following revised tariff sheet to its FERC Gas tariff, Second Revised Volume No. 1, bearing a proposed effective date of November 1, 2003:
On December 20, 2002, the Commission issued an Order Issuing Certificate, Grant Abandonment Authority, and Vacating Certificate in the above-referenced proceedings (the Certificate Order). Ordering Paragraph D provided that, [w]ithin 30 days before the commencement of service, Columbia must file its executed service agreements as discussed in the body of this order. Ordering Paragraph E provided that, [b]etween 30 and 60 days before commencement of service, Columbia must file a revised tariff sheet adding its project service agreements to its list of non-conforming service agreements in its tariff.
Columbia states that the appropriate non-conforming provision have been removed, and the FTS Service Agreements are now in a form approved by the Commission in the Certificate Order.
Columbia states that copies of its filing have been mailed to all firm customers, interruptible customers, and affected state commissions.
Any person desiring to intervene or to protest this filing should file with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214). Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Any person wishing to become a party must file a motion to intervene. All such motions or protests should be filed on or before the comment date, and, to the extent applicable, must be served on the applicant and on any other person designated on the official service list. This filing is available for review at the Commission or may be viewed on the Commission's Web site at
Take notice that on October 3, 2003, Dauphin Island Gathering Partners (Dauphin Island) tendered for filing as part of its FERC Gas Tariff, First Revised Volume No. 1, the tariff sheets listed below to become effective October 1, 2003:
Dauphin Island states that these tariff sheets reflect changes to Maximum Daily Quantities (MDQ's) and shipper names.
Dauphin Island states that copies of the filing are being served contemporaneously on all participants listed on the service list in this proceeding and on all persons who are
Any person desiring to protest said filing should file a protest with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, in accordance with Section 385.211 of the Commission's Rules and Regulations. All such protests must be filed in accordance with Section 154.210 of the Commission's Regulations. Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceedings. This filing is available for review at the Commission in the Public Reference Room or may be viewed on the Commission's Web site at
Take notice that on October 31, 2003, Dominion Transmission Inc. (DTI) submitted the following revised tariff sheet, for inclusion in its FERC Gas Tariff, Third Revised Volume No. 1, disclosing a recently negotiated rate transaction. DTI requests an effective date of November 1, 2003, for its proposed tariff sheet.
DTI states that copies of the filing have been sent to DTI's customers and interested state commissions. DTI also states that copies of its filing are available for public inspection during regular business hours in a convenient form and place, at DTI's offices at 120 Tredegar St, Richmond, VA 23219.
Any person desiring to be heard or to protest said filing should file a motion to intervene or a protest with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, in accordance with § 385.214 or 385.211 of the Commission's Rules and Regulations. All such motions or protests must be filed in accordance with § 154.210 of the Commission's Regulations. Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceedings. Any person wishing to become a party must file a motion to intervene. This filing is available for review at the Commission in the Public Reference Room or may be viewed on the Commission's Web site at
Take notice that on September 30, 2003, East Tennessee Natural Gas Company (East Tennessee) tendered for filing as a part of its FERC Gas Tariff, Second Revised Volume No. 1, the following tariff sheets proposed to be effective on the later of November 1, 2003 or the in-service date of the facilities constructed under the Patriot Project:
East Tennessee asserts that the purpose of this filing is to comply with the Commission's order issued on November 20, 2002, in Docket Nos. CP01-415-000,
East Tennessee states that copies of its filing have been mailed to all affected customers of East Tennessee and interested state commissions.
Any person desiring to protest said filing should file a protest with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, in accordance with § 385.211 of the Commission's Rules and Regulations. All such protests must be filed on or before the protest date as shown below. Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceedings. This filing is available for review at the Commission in the Public Reference Room or may be viewed on the Commission's Web site at
Take notice that on October 6, 2003, Eastern Shore Natural Gas Company (ESNG) tendered for filing as part of its FERC Gas Tariff, Second Revised
ESNG states that the purpose of this instant filing is to track rate changes attributable to a storage service purchased from Columbia Gas Transmission Corporation (Columbia) under its Rate Schedules FSS and SST. The costs of the above referenced storage service comprises the rates and charges payable under ESNG's Rate Schedule CFSS. This tracking filing is being made pursuant to Section 3 of ESNG's Rate Schedule CFSS.
ESNG states that copies of the filing have been served upon its jurisdictional customers and interested State Commissions.
Any person desiring to be heard or to protest said filing should file a motion to intervene or a protest with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, in accordance with sections 385.214 or 385.211 of the Commission's Rules and Regulations. All such motions or protests must be filed in accordance with section 154.210 of the Commission's Regulations. Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceedings. Any person wishing to become a party must file a motion to intervene. This filing is available for review at the Commission in the Public Reference Room or may be viewed on the Commission's Web site at
Take notice that on October 6, 2003, El Paso Natural Gas Company (El Paso) tendered for filing as part of its FERC Gas Tariff, Second Revised Volume No. 1A, Second Sub First Revised Sheet No. 113D, with an effective date of September 1, 2003.
El Paso states that the tariff sheet is being filed to implement the capacity allocation changes in compliance with the Commission's August 29, 2003 order in this proceeding.
Any person desiring to protest said filing should file a protest with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, in accordance with Section 385.211 of the Commission's Rules and Regulations. All such protests must be filed in accordance with Section 154.210 of the Commission's Regulations. Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceedings. This filing is available for review at the Commission in the Public Reference Room or may be viewed on the Commission's Web site at
Take notice that on October 31, 2003, Iroquois Gas Transmission System, L.P. (Iroquois) tendered for filing the following tariff sheet proposed to become effective December 1, 2003:
Iroquois states that this sheet is submitted in compliance with the Commission's Orders issued in Docket No. RP03-420-000 on June 27, 2003 and August 29, 2003. The tariff sheet included herewith reflects the change required by the Commission.
Iroquois states that copies of its filing were served on all jurisdictional customers and interested state regulatory agencies and all parties to the proceeding.
Any person desiring to be heard or to protest said filing should file a motion to intervene or a protest with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, in accordance with § 385.214 or 385.211 of the Commission's Rules and Regulations. All such motions or protests must be filed in accordance with § 154.210 of the Commission's Regulations. Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceedings. Any person wishing to become a party must file a motion to intervene. This filing is available for review at the Commission in the Public Reference Room or may be viewed on the Commission's Web site at
Take notice that on October 1, 2003, Kinder Morgan Border Pipeline, L.P. (KMBorder), an intrastate pipeline company, filed a petition for rate approval pursuant to Section 284.123(b)(2) of the Commission's Regulations.
Any person desiring to participate in this rate proceeding must file a motion to intervene or protest with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington DC 20426, in accordance with Sections 385.214 or 385.211 of the Commission's Rules and Regulations. All such motions or protests must be filed with the Secretary of the Commission on or before the date as indicated below. Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceedings. Any person wishing to become a party must file a motion to intervene. This petition for rate approval is available for review at the Commission in the Public Reference Room or may be viewed on the Commission's Web site at
Take notice that on October 3, 2003, New England Gas Company (NEGASCO), 100 Weybosset Street, Providence, Rhode Island 02903, a division of Southern Union Company, filed in Docket No. CP04-7-000, an application pursuant to Section 7(f) of the Natural Gas Act (NGA) for a service area determination, a declaration that NEGASCO qualifies as a local distribution company (LDC) and a waiver of the regulatory requirements under the NGA and the Natural Gas Policy Act (NGPA), all as more fully set forth in the application which is on file with the Commission and open to public inspection. This filing is available for review at the Commission in the Public Reference Room or may be viewed on the Commission's Web site at
NEGASCO requests a service area determination to include the facilities necessary to connect NEGASCO's facilities in Rhode Island to those of Yankee Gas Services Company (Yankee Gas) in Connecticut in order to obtain additional pipeline supply to alleviate capacity shortfalls on the Algonquin pipeline. NEGASCO states that the enlarged service area would enable it to enlarge, extend and interconnect its distribution facilities with those of Yankee Gas without losing its status as a local distribution customer. NEGASCO proposes to construct approximately 75 feet of 8” diameter distribution main from Westerly, RI, into the state of Connecticut in order to accomplish the interconnection with Yankee Gas.
Any questions regarding the application should be directed to James Moriarty or Regina Pace, Fleischman and Walsh, L.L.P., 1919 Pennsylvania Ave, NW., Washington, DC 20006, (202) 939-7900.
NEGASCO explains that the proposed service area determination would not change NEGASCO's services or operations. NEGASCO also requests a declaration that it qualifies as an LDC for the purposes of Section 311 of the NGPA and a waiver of all reporting and accounting requirements applicable to natural gas companies under the NGA and the NGPA.
There are two ways to become involved in the Commission's review of this project. First, any person wishing to obtain legal status by becoming a party to the proceedings for this project should, on or before the comment date stated below file with the Federal Energy Regulatory Commission, 888 First Street, NE, Washington, DC 20426, a motion to intervene in accordance with the requirements of the Commission's Rules of Practice and Procedure (18 CFR 385.214 or 385.211) and the Regulations under the NGA (18 CFR 157.10). A person obtaining party status will be placed on the service list maintained by the Secretary of the Commission and will receive copies of all documents filed by the applicant and by all other parties. A party must submit 14 copies of filings made in the proceeding with the Commission and must mail a copy to the applicant and to every other party. Only parties to the proceeding can ask for court review of Commission orders in the proceeding.
However, a person does not have to intervene in order to have comments considered. The second way to participate is by filing with the Secretary of the Commission, as soon as possible, an original and two copies of comments in support of or in opposition to this project. The Commission will consider these comments in determining the appropriate action to be taken, but the filing of a comment alone will not serve to make the filer a party to the proceeding. The Commission's rules require that persons filing comments in opposition to the project provide copies of their protests only to the party or parties directly involved in the protest.
Protests and interventions may be filed electronically via the Internet in lieu of paper;
Take notice that on September 15, 2003, Northeast Utilities Service Company (NUSCO) on behalf of its operating company affiliates, The Connecticut Light and Power Company, Western Massachusetts Electric Company, Holyoke Power and Electric Company and Holyoke Water Power Company (the NU Companies) submitted for filing a fourth amendment to the Settlement Agreement approved by the Commission in Northeast Utilities Service Company, 88 FERC ¶ 61,006 (the Settlement) to extend the rates, terms and conditions of the Settlement for an additional period of thirty days commencing on September 14, 2003.
NUSCO states that it does not consider this filing to constitute a rate change within the meaning of 18 CFR 35.13. To the extent that the Commission disagrees, NUSCO requests that the Commission waive the requirements of 18 CFR 35.13.
NUSCO states that a copy of this filing has been mailed to the service list. NUSCO requests an effective date of September 14, 2003 and requests any waivers of the Commission's regulations that may be necessary to permit such an effective date.
Any person desiring to intervene or to protest this filing should file with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214). Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Any person wishing to become a party must file a motion to intervene. All such motions or protests should be filed on or before the comment date, and, to the extent applicable, must be served on the applicant and on any other person designated on the official service list. This filing is available for review at the Commission or may be viewed on the Commission's Web site at
Take notice that an informal settlement conference will be convened in this proceeding commencing at 10 a.m. on Wednesday, October 22, 2003, and if necessary, 9 a.m. on Thursday, October 23, 2003, at the offices of the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, for the purpose of exploring the possible settlement of the above-referenced docket.
Any party, as defined by 18 CFR 385.102(c), or any participant as defined by 18 CFR 385.102(b), is invited to attend. Persons wishing to become a party must move to intervene and receive intervenor status pursuant to the Commission's regulations (18 CFR 385.214).
For additional information, please contact Michael Cotleur (202) 502-8519 or cell phone number (301) 964-1260, e-mail
Take notice that on October 3, 2003, Northwest Pipeline Corporation (Northwest) tendered for filing as part of its FERC Gas Tariff, Third Revised Volume No. 1, the following tariff sheets, to be effective as indicated:
Northwest states that this filing complies with the Commission's Order dated September 30, 2003, to correct a typographical error on Sheet No. 14 concerning the fuel reimbursement factor for Rate Schedules LS-1, LS-2F and LS-2I. Northwest also states that this filing corrects a typographical error in a footnote to the Evergreen Expansion Project shippers' incremental rates.
Northwest states that a copy of this filing has been served upon each person designated on the official service list complied by the Secretary in this proceeding.
Any person desiring to protest said filing should file a protest with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, in accordance with section 385.211 of the Commission's Rules and Regulations. All such protests must be filed in accordance with section 154.210 of the Commission's Regulations. Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceedings. This filing is available for review at the Commission in the Public Reference Room or may be viewed on the Commission's Web site at
For assistance, please contact FERC Online Support at
Take notice that on October 31, 2003, pursuant to 18 CFR 154.7 and 154.203, and in compliance with the Commission's Order on Rehearing and Compliance Filing issued March 4, 2003 (March 4 Order), in Docket Nos. RP00-398-001,002, 003 and RP01-34-004, Overthrust Pipeline Company (Overthrust) tenders for filing, to be effective December 1, 2003, proposed tariff sheets to First Revised Volume No. 1-A of its FERC Gas Tariff that are listed as follows:
Overthrust states that in the March 4 Order, the Commission granted Overthrust an extension of time until December 1, 2003, to implement segmentation on a self-implementing basis through the nomination process and to allow segmenting shippers access to receipt and delivery points outside the flow path described by the service agreement's receipt and delivery points. The Commission's March 4 Order directed Overthrust to file revised tariff sheets 30 days prior to December 1, 2003, to implement those changes. This filing is tendered to comply with the Commission's March 4 Order.
Overthrust states that a copy of this filing has been served upon its customers and the Public Service Commission of Utah and the Public Service Commission of Wyoming.
Any person desiring to be heard or to protest said filing should file a motion to intervene or a protest with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, in accordance with § 385.214 or 385.211 of the Commission's Rules and Regulations. All such motions or protests must be filed in accordance with § 154.210 of the Commission's Regulations. Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceedings. Any person wishing to become a party must file a motion to intervene. This filing is available for review at the Commission in the Public Reference Room or may be viewed on the Commission's Web site at
Take notice that on September 15, 2003, Pacific Gas and Electric Company (PG&E) tendered for filing a Wholesale Distribution Tariff (WDT) Service Agreement and an Interconnection Agreement (IA) between PG&E and Hercules Municipal Utility.
PG&E states that the Service Agreement is submitted pursuant to the PG&E WDT and permits PG&E to recover the ongoing costs for service required over PG&E's distribution facilities. PG&E states that the IA provides the terms and conditions for the continued interconnection of the Electric Systems of Hercules Municipal Utility and PG&E.
PG&E has requested certain waivers for a proposed effective date of September 1, 2003. PG&E states that copies of this filing have been served upon Hercules Municipal Utility, the California Independent System Operator Corporation and the California Public Utilities Commission.
Any person desiring to intervene or to protest this filing should file with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214). Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Any person wishing to become a party must file a motion to intervene. All such motions or protests should be filed on or before the comment date, and, to the extent applicable, must be served on the applicant and on any other person designated on the official service list. This filing is available for review at the Commission or may be viewed on the Commission's Web site at
Take notice that on September 15, 2003, Pacific Gas and Electric Company (PG&E) tendered for filing a Wholesale Distribution Tariff (WDT) Service Agreement and an Interconnection Agreement (IA) between PG&E and McAllister Ranch Irrigation District (MRID).
PG&E states that the Service Agreement is submitted pursuant to the PG&E WDT and permits PG&E to recover the ongoing costs for service required over PG&E's distribution
PG&E states that copies of this filing have been served upon MRID, the California Independent System Operator Corporation and the California Public Utilities Commission.
Any person desiring to intervene or to protest this filing should file with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214). Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Any person wishing to become a party must file a motion to intervene. All such motions or protests should be filed on or before the comment date, and, to the extent applicable, must be served on the applicant and on any other person designated on the official service list. This filing is available for review at the Commission or may be viewed on the Commission's Web site at
Take notice that on October 31, 2003, Paiute Pipeline Company (Paiute) tendered for filing as part of its FERC Gas Tariff, Second Revised Volume No. 1-A, the following tariff sheets, to become effective November 1, 2003:
Paiute states that the purpose of this filing is to comply with the Commission's Order issued July 14, 2003, in Docket No. CP03-31-000.
Any person desiring to protest said filing should file a protest with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, in accordance with § 385.211 of the Commission's Rules and Regulations. All such protests must be filed in accordance with § 154.210 of the Commission's Regulations. Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceedings. This filing is available for review at the Commission in the Public Reference Room or may be viewed on the Commission's Web site at
Take notice that on October 31, 2003, Pursuant to 18 CFR 154.7, and the Commission's Order issued August 27, 2002, in Docket Nos. RP00-397,
In this filing Questar states that it filed tariff sheets to implement its Phase II segmentation proposal to be effective December 1, 2003, as directed by the August 27 Order in Docket Nos. RP00-397,
Questar states that a copy of this filing has been served upon its customers, the Public Service Commission of Utah and the Public Service Commission of Wyoming.
Any person desiring to be heard or to protest said filing should file a motion to intervene or a protest with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, in accordance with § 385.214 or 385.211 of the Commission's Rules and Regulations. All such motions or protests must be filed in accordance with § 154.210 of the Commission's Regulations. Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceedings. Any person wishing to become a party must file a motion to intervene. This filing is available for review at the Commission in the Public Reference Room or may be viewed on the Commission's Web site at
Take notice that on October 30, 2003, Tennessee Gas Pipeline Company (Tennessee), Nine Greenway Plaza, Houston, Texas 77046, tendered for filing its Negotiated Rate Tariff Filing.
Tennessee's filing requests the Commission to approve a negotiated rate arrangement between Tennessee and Louis Dreyfus Energy Services, L.P. Tennessee requests that the Commission grant such approval effective November 1, 2003.
Any person desiring to be heard or to protest said filing should file a motion to intervene or a protest with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, in accordance with §§ 385.214 or 385.211 of the Commission's Rules and Regulations. All such motions or protests must be filed in accordance with § 154.210 of the Commission's Regulations. Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceedings. Any person wishing to become a party must file a motion to intervene. This filing is available for review at the Commission in the Public Reference Room or may be viewed on the Commission's Web site at
Take notice that on October 31, 2003, Tennessee Gas Pipeline Company (Tennessee), Nine Greenway Plaza, Houston, Texas 77046, tendered for filing its Negotiated Rate Tariff Filing.
Tennessee's filing requests the Commission to approve a negotiated rate arrangement between Tennessee and Tennessee Valley Authority. Tennessee requests that the Commission grant such approval effective November 1, 2003.
Any person desiring to be heard or to protest said filing should file a motion to intervene or a protest with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, in accordance with § 385.214 or 385.211 of the Commission's Rules and Regulations. All such motions or protests must be filed in accordance with § 154.210 of the Commission's Regulations. Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceedings. Any person wishing to become a party must file a motion to intervene. This filing is available for review at the Commission in the Public Reference Room or may be viewed on the Commission's Web site at
Take notice that on October 31, 2003, Tennessee Gas Pipeline Company (Tennessee), Nine Greenway Plaza, Houston, Texas 77046, tendered for filing its Negotiated Rate Tariff Filing.
Tennessee's filing requests the Commission to approve a negotiated rate arrangement between Tennessee and NJR Energy Services Company. Tennessee requests that the Commission grant such approval effective November 1, 2003.
Any person desiring to be heard or to protest said filing should file a motion to intervene or a protest with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, in accordance with § 385.214 or 385.211 of the Commission's Rules and Regulations. All such motions or protests must be filed in accordance with § 154.210 of the Commission's Regulations. Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceedings. Any person wishing to become a party must file a motion to intervene. This filing is available for review at the Commission in the Public Reference Room or may be viewed on the Commission's Web site at
Take notice that on October 30, 2003, Texas Gas Transmission, LLC (Texas Gas), submitted for filing the tariff sheets listed below for incorporation into its FERC Gas Tariff, Second Revised Volume No. 1:
Texas Gas states that the purpose of this filing is to propose revised tariff sheets in order to delete references to negotiated rate and/or non-conforming service agreements which have expired, or which have been modified to eliminate the non-conforming language.
Texas Gas states that copies of this filing are being mailed to all parties on the official service list in this docket, to Texas Gas's official service list, to Texas Gas's jurisdictional customers, and to interested state commissions.
Any person desiring to be heard or to protest said filing should file a motion to intervene or a protest with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, in accordance with § 385.214 or 385.211 of the Commission's Rules and Regulations. All such motions or protests must be filed in accordance with § 154.210 of the Commission's Regulations. Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceedings. Any person wishing to become a party must file a motion to intervene. This filing is available for review at the Commission in the Public Reference Room or may be viewed on the Commission's Web site at
Take notice that on October 2, 2003, Transcontinental Gas Pipe Line Corporation (Transco) tendered for filing as part of its FERC Gas Tariff, Third Revised Volume No. 1, Original Sheet No. 40Z.01, to be effective November 1, 2003.
Transco states that the purpose of the instant filing is to set forth under Rate Schedule FT the initial recourse reservation rate surcharge applicable to service provided on the Trenton Woodbury Expansion Project approved in Docket No. CP02-204-000.
Transco states that copies of the filing are being mailed to its affected customers and interested State Commissions.
Any person desiring to protest said filing should file a protest with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, in accordance with section 385.211 of the Commission's Rules and Regulations. All such protests must be filed on or before the protest date as shown below. Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceedings. This filing is available for review at the Commission in the Public Reference Room or may be viewed on the Commission's Web site at
Take notice that on October 3, 2003, Transcontinental Gas Pipe Line Corporation (Transco), tendered for filing in Docket No. CP04-3-000 an application in abbreviated form, pursuant to Section 7(b) of the Natural Gas Act (NGA), as amended, and the Rules and Regulations of the Federal Energy Regulatory Commission (Commission), for an order permitting and approving abandonment of the interruptible transportation service provided to the City of Lawrenceville, Georgia under Transco's Rate Schedule X-258, all as more fully set forth in the application which is on file with the Commission and open to public inspection.
Transco states that it does not propose to abandon any facilities pursuant to the instant application. Transco further states that no service to any of its other customers will be affected by the abandonment authorizations requested herein.
Any person desiring to be heard or to protest said filing should file a motion to intervene or a protest with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, in accordance with Sections 385.214 or 385.211 of the Commission's Rules and Regulations. All such motions or protests must be filed on or before the date as indicated below. Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceedings. Any person wishing to become a party must file a motion to intervene. This filing is available for review at the Commission in the Public Reference Room or may be viewed on the Commission's Web site at
Take further notice that, pursuant to the authority contained in and subject to the jurisdiction conferred upon the Commission by Sections 7 and 15 of the NGA and the Commission's Rules of Practice and Procedure, a hearing will be held without further notice before the Commission on this application if no petition to intervene is filed within the time required herein, if the Commission on its own review of the matter finds that a grant of the abandonment is required by the public convenience and necessity. If a protest or petition for leave to intervene is timely filed, or if the Commission on its own motion believes that a formal hearing is required, further notice of such hearing will be duly given. Under the procedure herein provided for, unless otherwise advised, it will be unnecessary for Transco to appear or to be represented at the hearing.
Take notice that on October 7, 2003, Western Gas Interstate Company (WGI), tendered for filing as part of its FERC Gas Tariff, Fourth Revised Volume No. 1, the following tariff sheets in compliance with the Commission's September 17, 2003 Order in this proceeding. The proposed effective date of the tariff sheets is November 1, 2003.
WGI states that the purpose of the filing is to: (1) Eliminate certain duplicative tariff language found on both Sheet Nos. 230B and 230C; and (2) incorporate various standards adopted by the North American Energy Standards Board for Title Transfer Tracking, netting and trading, and e-mail notification.
WGI states that copies of this filing were served on its customers and interested state commissions.
Any person desiring to protest said filing should file a protest with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, in accordance with Section 385.211 of the Commission's Rules and Regulations. All such protests must be filed in accordance with Section 154.210 of the Commission's Regulations. Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceedings. This filing is available for review at the Commission in the Public Reference Room or may be viewed on the Commission's Web site at
Take notice that on September 30, 2003, Western Interconnect, L.L.C. (WI, L.L.C.) filed with the Federal Energy Regulatory Commission, pursuant to section 385.207 of the Commission's Rules of Practice and Procedure, 18 CFR 35.207, a petition for Declaratory Order seeking confirmation of their proposal to establish a Regional Transmission Organization (RTO) that covers the entire Western Interconnect.
Any person desiring to intervene or to protest this filing should file with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214). Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Any person wishing to become a party must file a motion to intervene. All such motions or protests should be filed on or before the comment date, and, to the extent applicable, must be served on the applicant and on any other person designated on the official service list. This filing is available for review at the Commission or may be viewed on the Commission's Web site at
Take notice that on October 30, 2003, Wyoming Interstate Company, Ltd. (WIC) tendered for filing as part of its FERC Gas Tariff, Second Revised Volume No. 2, the following tariff sheets with an effective date of November 19, 2003:
WIC states that these tariff sheets implement the pro forma tariff provisions accepted by the Commission in WIC's gas quality settlement at Docket No. RP03-480-001.
Any person desiring to protest said filing should file a protest with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, in accordance with § 385.211 of the Commission's Rules and
Take notice that on October 3, 2003, Yankee Gas Services Company (Yankee Gas) filed, pursuant to Section 284.224 of the Commission's Regulations, an application for a blanket certificate of public convenience and necessity authorizing the transportation of natural gas in interstate commerce to the same extent and in the same manner that intrastate pipelines are authorized to engage in such activities pursuant to Subpart C of Part 284 of the Commission Regulations.
Yankee Gas states that a copy of its application has been served on the Connecticut Department of Public Utility Control.
Any person desiring to be heard or to protest said filing should file a motion to intervene or a protest with the Federal Energy Regulatory Commission, 888 First Street, N.E., Washington, D.C. 20426, in accordance with Sections 385.214 or 385.211 of the Commission's Rules and Regulations. All such motions or protests must be filed on or before the date as indicated below. Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceedings. Any person wishing to become a party must file a motion to intervene. This filing is available for review at the Commission in the Public Reference Room or may be viewed on the Commission's Web site at
The following filings have been made with the Commission. The filings are listed in ascending order within each docket classification.
Take notice that on October 31, 2003, Eurus Combine Hille I LLC (Applicant) filed with the Federal Energy Regulatory Commission an Application for Determination of Exempt Wholesale Generator Status pursuant to Part 365 of the Commission's regulations. Applicant states that it intends to construct, own and operate a wind generating station with a nominal aggregate generating capacity of up to 41 MW in the County of Umatilla, Oregon.
Take notice that on October 31, 2003, Tucson Electric Power Company tendered for filing a triennial market power analysis in compliance with the Commission's Order in Docket No. ER98-1150-000, Tucson Electric Power Co., 82 FERC ¶ 61,141 (1998).
3. New England Power Pool ISO New England Inc.
Take notice that on October 30, 2003, New England Power Pool, ISO New England Inc. and the New England Conference of Public Utilities Commissioners (collectively, the Joint Movants), tendered for filing a Joint Request With Respect to Nodal Pricing in New England.
The Joint Movants state that copies of the filing have been served on each person designated on the official service list compiled by the Secretary in this proceeding.
Take notice that on October 31, 2003, Superior Electric Power Corporation (SEPC) tendered for filing its revised tariff sheet canceling FERC Electric Tariff, Original Volume No. 1, Original Sheet No. 1, supplementing its filing of September 4, 2003 in Docket No. ER03-1289-000.
Take notice that on October 29, 2003, Utility Management Corporation (Utility Management) tendered for filing an amendment to the Notice of Cancellation of its Market-Based Rate Schedule, filed in Docket No. ER04-30-000.
Take notice that on October 31, 2003, Pacific Gas and Electric Company (PG&E tendered for filing proposed changes to rates and terms in its Transmission Owner (TO) Tariff, along with cost support for PG&E specific rates associated with the Tariff. PG&E requests that its filing be made effective as of January 1, 2004. PG&E states that this filing proposes changes to its transmission access charges, which are calculated in accordance with the rate methodology set forth in PG&E's TO Tariff.
PG&E states that copies of this filing have been served upon the California Public Utilities Commission and the California Independent System Operator Corporation.
Take notice that on October 31, 2003, the New England Power Pool (NEPOOL) Participants tendered for filing proposed changes to Restated NEPOOL Agreement, NEPOOL Open Access Transmission Tariff and NEPOOL Market Rule 1 (the Ninety-Ninth Agreement). NEPOOL states that the changes proposed by the Ninety-Ninth Agreement are intended to address various issues raised by the potential participation by End Users in the NEPOOL Market. NEPOOL requests that the Ninety-Ninth Agreement become effective upon the later of (1) January 1, 2004 or (2) the date that a ruling by the Commission that end user participation in the NEPOOL Market will not jeopardize the exempt wholesale generator status of any Participant becomes final and non-appealable.
The NEPOOL Participants Committee states that copies of these materials were sent to the NEPOOL Participants, Non-Participant Transmission Customers and the New England state governors and regulatory commissions.
Take notice that on October 31, 2003, the California Power Exchange Corporation (CalPX) tendered for filing its Rate Schedule for the period January 1, 2004 through June 30, 2004. CalPX states that it files this Rate Schedule pursuant to the Commission's Orders of August 8, 2002 (100 FERC ¶ 61,178) in Docket No. ER02-2234-000, and April 1, 2003 (103 FERC ¶ 61,001) issued in Docket Nos. EC03-20-000 and 001, which require CalPX to make a new rate filing every six months to recover current expenses. CalPX states that the Rate Schedule covers expenses projected for the period January 1, 2004 through June 30, 2004, and CalPX requests an effective date of January 1, 2004.
CalPX states that it has served copies of the filing on its participants, on the California ISO, and on the California Public Utilities Commission.
Take notice that on October 31, 2003, KeySpan Generation LLC (KeySpan Generation), submitted a rate filing for changes in rate schedules, pursuant to 18 CFR 35.13, between KeySpan Generation and the Long Island Power Authority (LIPA) under the Power Supply Agreement (PSA). KeySpan Generation states that the PSA between KeySpan Generation and LIPA is for a term of fifteen years and that KeySpan Generation and LIPA are entering the seventh Contract Year, commencing January 1, 2004. KeySpan Generation states, as required by Appendix A of the PSA, this filing supports the calculation of the revenue requirement for services that KeySpan Generation will provide to LIPA for the seventh Contract Year. In this filing, KeySpan Generation states it is proposing rates, terms and conditions for its sale and delivery of electric capacity, energy and ancillary services to LIPA under the PSA, which will be in effect in the seventh through twelfth Contract Years. KeySpan Generation requests an effective date of January 1, 2004.
KeySpan states that copies of the filing were served upon LIPA and the New York State Public Service Commission.
Take notice that on October 31, 2003, the New England Power Pool (NEPOOL) Participants Committee filed for acceptance materials to permit NEPOOL to expand its membership to include D. E. Shaw Plasma Power, L.L.C. (Plasma Power), and to terminate the membership of Northeast Generation Services (NGS). The Participants Committee requests a November 1, 2003 effective date for the termination of NGS and a January 1, 2004 effective date for the commencement of participation in NEPOOL by Plasma Power.
The Participants Committee states that copies of these materials were sent to the New England state governors and regulatory commissions and the Participants in NEPOOL.
Take notice that on October 31, 2003, ISO New England Inc. (the ISO) tendered for filing under Section 205 of the Federal Power Act changes to its Capital Funding tariff. The ISO requests that the changes to the Capital Funding Tariff be allowed to go into effect on January 1, 2004.
ISO states that copies of the transmittal letter were served upon each non-Participant entity that is a customer under the NEPOOL Open Access Transmission Tariff, as well as on the governors and utility regulatory agencies of the six New England States, and the New England Conference of Public Utility Commissioners. ISO further states that NEPOOL Participants were also served with the entire filing electronically and the entire filing is posted on the ISO's Web site (
Any person desiring to intervene or to protest this filing should file with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214). Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Any person wishing to become a party must file a motion to intervene. All such motions or protests should be filed on or before the comment date, and, to the extent applicable, must be served on the applicant and on any other person designated on the official service list. This filing is available for review at the Commission or may be viewed on the Commission's Web site at
The following filings have been made with the Commission. The filings are listed in ascending order within each docket classification.
Take notice that on October 30, 2003, Exelon Generation Company, LLC (Exelon Generation), AmerGen Energy Company, LLC (AmerGen), and British Energy Investment Ltd. (BEIL and collectively, the Applicants) filed with the Federal Energy Regulatory Commission an application pursuant to Section 203 of the Federal Power Act for authorization to transfer indirect ownership of jurisdictional facilities and for expedited action. Applicants state that BEIL will transfer its 50 percent indirect ownership in AmerGen to Exelon Generation. Applicants further state that the transaction will have no adverse effect on competition, rates or regulation. Applicants request privileged treatment of certain material submitted with the filing.
Take notice that on October 30, 2003, pursuant to Section 203 of the Federal Power Act, FPL Energy New Mexico, LLC, and FPL Energy American Wind, LLC, on their own behalf and on behalf of their affected subsidiaries (jointly, the Applicants) filed a joint application for approval of an intracorporate reorganization.
Applicants state that a copy of the application has been served on the public utility commissions in the states where the facilities are located. The Applicants have requested waivers of the Commission's regulations so that the filing may become effective at the earliest possible date, but no later than December 1, 2003.
Take notice that on October 30, 2003, Caledonia Generating, LLC (Caledonia), Cogentrix Energy Power Marketing, Inc. (CEPM), Cogentrix Lawrence County, LLC (Cogentrix Lawrence), Green Country Energy, LLC (Green Country), Logan Generating Company, L.P. (Logan), Pittsfield Generating Company, L.P. (Pittsfield), Quachita Power, LLC (Quachita), Rathdrum Power, LLC (Rathdrum), and Southaven Power, LLC (Southaven) (together, Project Companies), Cogentrix Energy, Inc. (Cogentrix), and GS Power Holdings, LLC (GS Power Holdings) (collectively, Applicants) filed with the Federal Energy Regulatory Commission a joint application pursuant to Section 203 of the Federal Power Act and notice of change in status with respect to the transfer of indirect upstream membership interests in Project Companies from Cogentrix to GS Power Holdings.
Take notice that on October 30, 2003, GenWest, LLC (GenWest) filed with the Commission an application for determination of exempt wholesale generator status pursuant to Part 365 of the Commission's regulations.
GenWest states that it will develop, own and operate a 590 MW electric generating facility located at Apex, Nevada, and sell electric energy exclusively at wholesale. GenWest's principal business offices are located at 400 North 5th Street, Phoenix, Arizona.
Take notice that on October 17, 2003, Denver City Energy Associates, L.P. (DCE) submitted for filing its triennial market power analysis in compliance with the Commission's October 17, 1997 Order. DCE also filed with the Commission a notice of change in status in connection with the transfer of equity interests in DCE to EIF Mustangs Holdings I, LLC, a subsidiary of Energy Investors Funds Group.
Take notice that on October 30, 2003, the New England Power Pool (NEPOOL) Participants and the New York Independent System Operator, Inc. (NYISO) supplemented their September 3, 2003 filing of an Emergency Energy Transactions Agreement (Agreement) between the NEPOOL Participants and NYISO: (1) to formally designate the Agreement as NEPOOL and NYISO Rate Schedules; and (2) to include the formal Notice of Cancellation of the transaction that the Agreement replaces. NEPOOL states that the supplement makes no substantive change to the original filing and the NEPOOL Participants and NYISO renew their request for a September 4, 2003 effective date for the Agreement.
NEPOOL states that copies of the filing were sent to same entities that received the original filing, which includes the governors and the electric utility regulatory agencies for New York and the six New England states which comprise the NEPOOL Control Area, and the New England Conference of Public Utilities Commissioners, Inc.
Take notice that on October 30, 2003, Ameren Services Company (ASC) tendered for filing an unexecuted Service Agreement for Network Integration Transmission Service and an unexecuted Network Operating Agreement between Ameren Services and Ameren Energy Marketing Company (Service Agreement No. 583). Ameren Services states that the purpose of the Agreements is to permit Ameren Services to provide transmission service to Ameren Energy Marketing Company pursuant to Ameren's Open Access Tariff.
Take notice that on October 30, 2003, Ameren Services Company (ASC) tendered for filing an unexecuted Service Agreement for Network Integration Transmission Service and an unexecuted Network Operating Agreement between Ameren Services and Ameren Energy Marketing Company (Service Agreement No. 582). Ameren Services asserts that the purpose of the Agreements is to permit Ameren Services to provide transmission service to Ameren Energy Marketing Company pursuant to Ameren's Open Access Tariff.
Take notice that on October 30, 2003, Ameren Services Company (ASC) tendered for filing an unexecuted Service Agreement for Firm Point-to-Point Transmission Service between ASC and Ameren Energy. ASC asserts that the purpose of the Agreement is to permit ASC to provide transmission services to Ameren Energy pursuant to
Take notice that on October 30, 2003, Portland General Electric Company (PGE) tendered for filing Amendatory Agreement No. 1 to the 1997 Pacific Northwest Coordination Agreement (1997 PNCA).
PGE also states that a copy of the filing was served upon the parties to the 1997 PNCA.
Take notice that on October 30, 2003, the Midwest Independent Transmission System Operator, Inc. (Midwest ISO) submitted for filing proposed revisions to Attachment P (List of Grandfathered Agreements) of the Midwest ISO Open Access Transmission Tariff (OATT), FERC Electric Tariff, Second Revised Volume No. 1 in order to reflect: (1) The addition or deletion of certain grandfathered agreements; (2) updated termination provisions of certain grandfathered agreements; (3) corrected Rate Schedules of certain grandfathered agreements; and (4) clean-up, in general, of its Attachment P. The Midwest ISO requests an effective date of October 31, 2003.
The Midwest ISO has also requested waiver of the service requirements set forth in 18 CFR 385.2010. Midwest ISO states it has electronically served a copy of this filing, with attachments, upon all Midwest ISO Members, Member representatives of Transmission Owners and Non-Transmission Owners, the Midwest ISO Advisory Committee participants, as well as all state commissions within the region. In addition, Midwest states that the filing has been electronically posted on the Midwest ISO's Web site at
Any person desiring to intervene or to protest this filing should file with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214). Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Any person wishing to become a party must file a motion to intervene. All such motions or protests should be filed on or before the comment date, and, to the extent applicable, must be served on the applicant and on any other person designated on the official service list. This filing is available for review at the Commission or may be viewed on the Commission's Web site at
The following filings have been made with the Commission. The filings are listed in ascending order within each docket classification.
Take notice that on November 4, 2003, South Carolina Electric & Gas Company (SCE&G) filed with the Federal Energy Regulatory Commission an Answer/Amendment to the protest filed by Columbia Energy LLC (Columbia Energy) in reference to documents filed by SCE&G on September 29, 2003, constituting the agreement between SCE&G and Columbia Energy for the interconnection of the Columbia Energy facilities located at Columbia, SC, with the SCE&G transmission system (the Interconnection Agreement). The Answer included, for the first time, support for the Operations and Maintenance fee (O&M) in the Interconnection Agreement, as well as the justification for treating the interconnection facilities as direct assignment facilities whose costs are the responsibility of Columbia Energy.
Take notice that on October 31, 2003, California Independent System Operator Corporation (ISO) pursuant to Section 205 of the Federal Power Act and Section 35 of the Commission Regulations, submitted for filing revisions of its Grid Management Charge (GMC) rate formula. ISO states that the GMC is the rate through which it recovers administrative and operating costs, including the cost incurred in establishing the ISO prior to the commencement of operations. The ISO requests an effective date of January 1, 2004 for the revised GMC rate.
Take notice, that on October 31, 2003, Southern California Edison Company (SCE) tendered for filing revisions to its Transmission Owner Tariff, FERC Electric Tariff, Second Revised Volume No. 6, and to certain Existing Transmission Contracts to reflect a change to SCE's Reliability Services Rates.
SCE states that copies of this filing were served upon the Public Utilities Commission of the State of California, the California Independent System Operator Corporation, the California Electricity Oversight Board, Pacific Gas and Electric Company, San Diego Gas & Electric Company, and the wholesale customers that have loads in SCE's historic control area but are not Participating Transmission Owners in the California Independent System Operator.
Take notice that on October 31, 2003, FPL Energy 251 Wind, LLC (FPLE 251) tendered for filing a Notice of Succession pursuant to Section 35.16 of the Commission's regulations, 18 CFR 35.16. FPLE 251 states it is succeeding to rate schedules of ZWHC LLC.
Take notice that on October 31, 2003, Indiana Michigan Power Company
I&M requests an effective date of January 1, 2004, for the revised service agreements. I&M further states that a copy of its filing was served upon counsel for the ten (10) customers, the Indiana Utility Regulatory Commission and the Michigan Public Service Commission.
Take notice that on October 31, 2003, FPL Energy Cabazon Wind, LLC (FPLE Cabazon) tendered for filing a Notice of Succession pursuant to Section 35.16 of the Commission's regulations, 18 CFR 35.16. FPLE Cabazon is succeeding to rate schedules of Cabazon Power Partners LLC.
Take notice that on October 31, 2003, FPL Energy Green Power Wind, LLC tendered for filing an application for authorization to sell energy and capacity at market-based rates pursuant to section 205 of the Federal Power Act.
Take notice that on October 31, 2003, Illinois Power Company (Illinois Power) tendered for filing First Revised Interconnection and Operating Agreement entered into by Illinois Power and Corn Belt Energy Generation Cooperative (Service Agreement No. 335). Illinois Power requests an effective date of October 3, 2003.
Take notice that on October 31, 2003, American Electric Power Service Corporation (AEPSC) as agent for Public Service Company of Oklahoma (PSO) tendered for filing pursuant to Section 35.15 of the Federal Energy Regulatory Commission's regulations, 18 CFR 35.15, a Notice of Cancellation of a Contract for Electric Service between PSO and The City of Collinsville, Oklahoma (Collinsville) under PSO FERC Rate Schedule No. 237 (Power Agreement). AEPSC requests that this Power Agreement be terminated because Collinsville cancelled the contract and electric service was discontinued on September 29, 2003. The Power Agreement was accepted for filing by the Commission in Docket ER93-435-000. AEPSC requests an effective date of October 1, 2003 for the cancellation.
AEPSC states that it has served copies of the filing upon the party listed in Exhibit 1 and the affected state regulatory commissions.
Take notice that on October 31, 2003, Public Service Company of New Hampshire (PSNH), tendered for filing a new Interconnection and Delivery Service Agreement with the Town of Wolfeboro (Wolfeboro), pursuant to Section 205 of the Federal Power Act and Part 35 of the Commission's regulations on rate schedule modifications. In addition, PSNH states that it submitted a Notice of Cancellation of PSNH's FERC Electric Rate Schedule No. 135 for the sale of partial requirements power service and delivery service to Wolfeboro, which terminates by its own terms on October 31, 2003.
PSNH states that copies of this filing were served upon Wolfeboro, the Office of the Attorney General for the State of New Hampshire, the Executive Director and Secretary of the New Hampshire Public Utilities Commission and the State of New Hampshire Office of Consumer Advocate. PSNH requests an effective date for the Interconnection and Delivery Service Agreement of November 1, 2003, and an effective date for the cancellation of FERC Rate Schedule No. 135 of October 31, 2003.
Take notice that on October 31, 2003, New York State Electric & Gas Corporation (NYSEG) tendered for filing an amendment to its Rate Schedule No. 229 providing for the termination of service to certain delivery points effective as of the end of October 31, 2003. NYSEG requests a waiver of the Commission's notice requirements and that the amendment be made effective as of November 1, 2003.
NYSEG states that copies of the amendment have been served on the New York State Public Service Commission and the New York Power Authority and its affected customers.
Take notice that on October 31, 2003, Wolverine Power Supply Cooperative, Inc. (Wolverine) tendered for filing proposed changes in its First Revised Rate Schedule FERC No. 4. Wolverine states that the proposed changes amend First Revised Rate Schedule FERC No. 4 by revising, deleting or adding specific rates and provisions respecting Wolverine's wholesale sales of power and energy to Wolverine's distribution cooperative members.
Wolverine states that copies of this filing were served on the public utility's customers, and the Michigan Public Service Commission.
Take notice that on October 31, 2003, Duke Energy Oakland, LLC (DEO) pursuant to 16 U.S.C. § 824d, and 18 CFR 35.13, tendered for filing certain revisions to Rate Schedules A and B of DEO's Reliability Must Run (RMR) Agreement with the California Independent System Operator (CAISO) for contract year 2004 and an informational filing.
DEO requests an effective date of January 1, 2004 for these revisions. DEO states that copies of the filing have been served upon the CAISO, Pacific Gas & Electric Company, the Public Utilities Commission of the State of California, and the Electricity Oversight Board of the State of California.
Take notice that on October 31, 2003, Duke Energy South Bay, LLC (DESB), pursuant to 16 U.S.C. § 824d, and 18 CFR 35.13, tendered for filing certain revisions to Rate Schedules A and B of DESB's Reliability Must Run Agreement with the California Independent System Operator (CAISO) for contract year 2004 and an informational filing.
DESB requests an effective date of January 1, 2004 for these revisions.
Take notice that on October 31, 2003, Eurus Combine Hills I LLC (Eurus Combine) applied to the Commission for acceptance of Eurus Combine's Electric Tariff FERC No. 1; the granting of certain blanket approvals, including the authority to sell electric energy and capacity at market-based rates; and the waiver of certain Commission regulations.
Take notice that on October 31, 2003, PJM Interconnection, L.L.C. (PJM), submitted for filing a notice of cancellation for an interconnection service agreement (ISA) between PJM and Conectiv Delmarva Generation, Inc. that has terminated.
PJM states that copies of this filing were served upon the parties to the agreement and the state regulatory commissions within the PJM region.
Take notice that on October 31, 2003, Deseret Generation & Transmission Co-operative, Inc. (Deseret) tendered for filing an amendment to First Revised Service Agreement No. 5 under Deseret's FERC Electric Tariff, Original Volume No. 1 (Original Sheets Nos. 150A through 150H). The filing consists of an Amendment to the Agreement for Large Industrial Rate between Deseret and one of its members, Moon Lake Electric Association Inc. (Moon Lake), for the benefit of Moon Lake's industrial customer, QEP.
Deseret states that copies of this filing have been served upon Deseret's members cooperatives.
Take notice that on October 31, 2003, Deseret Generation & Transmission Co-operative, Inc. (Deseret) tendered for filing an amendment to First Revised Service Agreement No. 5 under Deseret's FERC Electric Tariff, Original Volume No. 1 (Original Sheets Nos. 279 through 296). The filing consists of an Amendment to the Agreement for Large Industrial Rate between Deseret and one of its members, Moon Lake Electric Association, Inc. (Moon Lake) for the benefit of Moon Lake's industrial customer, QEP. Deseret requests an effective date of November 1, 2003.
Deseret states that copies of this filing have been served upon Deseret's member cooperatives.
Take notice that on October 31, 2003, Michigan Electric Transmission Company, LLC (METC) submitted proposed amendments to the following agreements: (1) Project I Transmission Ownership and Operating Agreement Between Consumers Power Company and Michigan South Central Power Agency, dated November 20, 1980; (2) Campbell Unit No. 3 Transmission Ownership and Operating Agreement Between Consumers Power Company and Northern Michigan Electric Cooperative, Inc. and Wolverine Electric Cooperative, Inc., dated August 15, 1980; (3) Campbell Unit No. 3 Transmission Ownership and Operating Agreement Between Consumers Power Company and Michigan Public Power Agency, dated October 1, 1979; (4) Belle River Transmission Ownership and Operating Agreement Between Consumers Power Company and Michigan Public Power Agency, dated December 1, 1982; and (5) Wolverine Transmission Ownership and Operating Agreement Between Consumers Power Company and Wolverine Power Supply Cooperative, Inc., dated July 27, 1992 (collectively, the Customers and the Operating Agreements.). The proposed amendments are intended to allow for the reimbursement to METC for certain Midwest Independent Transmission System Operator, Inc. costs and annual charges associated with the load of the Customers. METC requests an effective date of November 1, 2003 for the proposed amendments.
Take notice that on October 31, 2003, Pacific Gas and Electric Company (PG&E) submitted rate schedule sheet revisions, to become effective January 1, 2004, to its Reliability Must-Run Service Agreement with the California Independent System operator Corporation (ISO) for Humboldt Bay Power Plant (PG&E First Revised Rate Schedule FERC No. 208). PG&E states that this filing revises portions of the rate schedule and adjusts the applicable rates.
PG&E states that copies of this filing have been served upon the ISO, the California Electricity Oversight Board and the California Public Utility Commission.
Take notice that on October 31, 2003, Pacific Gas and Electric Company (PG&E) made an informational filing under its Reliability Must-Run Service Agreements with the California Independent System Operator Corporation (ISO) for Helms Power Plant (PG&E First Revised Rate Schedule FERC No. 207), Humboldt Bay Power Plant (PG&E First Revised Rate Schedule FERC No. 208), Hunters Point Power Plant (PG&E First Revised Rate Schedule FERC No. 209), San Joaquin Power Plant (PG&E First Revised Rate Schedule FERC No. 211), and Kings River Watershed (PG&E Rate Schedule FERC No. 226).
PG&E states that copies of this filing have been served upon the ISO, the California Electricity Oversight Board, and the California Public Utilities Commission.
Take notice that on October 31, 2003, Pacific Gas and Electric Company (PG&E) submitted an annual rate update filing, including rate schedule sheet revisions, to become effective January 1, 2004, to its Reliability Must-Run Service Agreements with the California Independent System Operator Corporation (ISO) for Helms Power Plant (PG&E First Revised Rate Schedule FERC No. 207), Humboldt Bay Power Plant (PG&E First Revised Rate Schedule FERC No. 208), Hunters Point Power Plant (PG&E First Revised Rate Schedule FERC No. 209), San Joaquin Power Plant (PG&E First Revised Rate Schedule FERC No. 211) and Kings River Power Plant (PG&E Rate Schedule FERC No. 226). This filing revises portions of these rate schedules and adjusts the applicable rates as required under the RMR Agreements.
PG& E states that copies of this filing have been served upon the ISO, the California Electricity Oversight Board, and the California Public Utilities Commission.
Take notice that on October 31, 2003, the New York System Operator, Inc. (NYISO) tendered for filing proposed revisions to its Market Administration and Control Area Services Tariff (Services Tariff) designed to extend the current methodology and rate used to calculate payments for Voltage Support Service through the end of calendar year 2004. The NYISO has requested that the Commission make the filing effective on January 1, 2004.
The NYISO states it has served a copy of this filing on all persons that have executed Service Agreements under the NYISO Services Tariff or the NYISO Open Access Transmission Tariff, on the New York Public Service Commission, and on the electric utility regulatory agencies in New Jersey and Pennsylvania.
Take notice that on October 31, 2003, Power-Link Systems, Ltd., d/b/a/ First Choice Energy (First Choice) tendered for filing a Notice of Cancellation of its market-based rate tariff effective October 31, 2003. First Choice states that it is no longer conducting business.
Any person desiring to intervene or to protest this filing should file with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214). Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Any person wishing to become a party must file a motion to intervene. All such motions or protests should be filed on or before the comment date, and, to the extent applicable, must be served on the applicant and on any other person designated on the official service list. This filing is available for review at the Commission or may be viewed on the Commission's Web site at
Take notice that the draft environmental assessment issued on August 26, 2003, for Center Creek Hydroelectric Project FERC No. 1273-009 will serve as the final National Environmental Policy Act (NEPA) document and a basis for any license order on the application.
In accordance with the National Environmental Policy Act of 1969 and the Federal Energy Regulatory Commission's (Commission) regulations, 18 CFR Part 380 (Order No. 486, 52 F.R. 47897), the Office of Energy Projects has reviewed the application for license for the Center Creek Hydroelectric Project located on Center Creek, in Iron County, Utah, and prepared a draft Environmental Assessment (EA) for the project. The project occupies 21.43 acres of United States lands administered by the Bureau of Land Management.
The draft EA issued on August 26, 2003, contains Commission staff's analysis of the potential environmental impacts of the project and concludes that licensing the project, with appropriate environmental protective measures, would not constitute a major federal action that would significantly affect the quality of the human environment.
A copy of the draft EA is available for review at the Commission in the Public Reference Room or may be viewed on the Commission's Web site at
We received one comment from the U.S. Fish and Wildlife Service in support of our recommendation in the draft EA. Therefore the draft EA will serve as our final NEPA document and as a basis for any order issued on the license application.
For further information, contact Gaylord Hoisington at (202) 502-6032 or
On December 9, 2003, the staff of the Federal Energy Regulatory Commission (Commission) will conduct a public meeting to receive comments on the draft environmental impact statement (DEIS) for the Freeport LNG Project.
The meeting will be held at the Lake Jackson Civic Center, which is located at 333 Highway 332 East in Lake Jackson, Texas. The meeting will start at 7 p.m.
The Executive Summary of the DEIS, which was unintentionally omitted from the recently issued DEIS, is being mailed to everyone on the environmental mailing list and the service list for this project.
For additional information, please contact the Commission's Office of External Affairs at 1-866-208-FERC.
In accordance with the National Environmental Policy Act of 1969 and
The EA contains the staff's analysis of the potential environmental impacts of the proposal and concludes that approval of the proposal would not constitute a major federal action that would significantly affect the quality of the human environment.
A copy of the EA is available for review at the Commission in the Public Reference Room, or it may be viewed on the Commission's Web site at
For further information, contact Rebecca Martin at 202-502-6012.
Take notice that the following hydroelectric application has been filed with the Commission and is available for public inspection.
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All documents (original and eight copies) should be filed with: Magalie R. Salas, Secretary, Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426.
The Commission's Rules of Practice require all intervenors filing documents with the Commission to serve a copy of that document on each person on the official service list for the project. Further, if an intervenor files comments or documents with the Commission relating to the merits of an issue that may affect the responsibilities of a particular resource agency, they must also serve a copy of the document on that resource agency.
Comments, recommendations, terms and conditions, and prescriptions may be filed electronically via the Internet in lieu of paper. The Commission strongly encourages electronic filings.
k. This application has been accepted for filing and is now ready for environmental analysis.
l. The Kern Canyon Hydroelectric Project consists of: (1) An existing 150-foot-long and 23-foot-high dam; (2) an existing 3-acre reservoir having a usable capacity of 27-acre-feet; (3) a 1.58-mile-long horseshoe shaped tunnel; (4) a 520-foot-long steel penstock varying in diameter from 96 inches to 90 inches; (5) a powerhouse containing one generating unit with an installed capacity of 9,540 kilowatts; (6) existing transmission facilities; and (7) appurtenant facilities. The project is estimated to generate an average of 67.6 gigawatthours annually. The dam and existing project facilities are owned by the applicant.
m. A copy of the application is available for review at the Commission in the Public Reference Room or may be viewed on the Commission's Web site at
You may also register online at
n. Public notice of the filing of the initial development application, which has already been given, established the due date for filing competing applications or notices of intent. Under the Commission's regulations, any competing development application must be filed in response to and in compliance with public notice of the initial development application. No competing applications or notices of intent may be filed in response to this notice.
The Commission directs, pursuant to § 4.34(b) of the Regulations (see Order No. 533 issued May 8, 1991, 56 FR 23108, May 20, 1991) that all comments, recommendations, terms and conditions and prescriptions concerning the application be filed with the Commission within 60 days from the issuance date of this notice. All reply comments must be filed with the Commission within 105 days from the date of this notice.
All filings must (1) bear in all capital letters the title “COMMENTS”, “REPLY COMMENTS”, “RECOMMENDATIONS,” “TERMS AND CONDITIONS,” or “PRESCRIPTIONS;” (2) set forth in the heading the name of the applicant and the project number of the application to which the filing responds; (3) furnish the name, address, and telephone number of the person submitting the filing; and (4) otherwise comply with the requirements of 18 CFR 385.2001 through 385.2005. All comments, recommendations, terms and conditions or prescriptions must set forth their evidentiary basis and otherwise comply with the requirements of 18 CFR 4.34(b). Agencies may obtain copies of the application directly from the applicant. Each filing must be accompanied by proof of service on all persons listed on the service list prepared by the Commission in this proceeding, in
Take notice that the following hydroelectric application has been filed with the Commission and is available for public inspection.
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All documents (original and eight copies) should be filed with: Magalie R. Salas, Secretary, Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426.
The Commission's Rules of Practice require all intervenors filing documents with the Commission to serve a copy of that document on each person on the official service list for the project. Further, if an intervenor files comments or documents with the Commission relating to the merits of an issue that may affect the responsibilities of a particular resource agency, they must also serve a copy of the document on that resource agency.
Motions to intervene and protests may be filed electronically via the Internet in lieu of paper. The Commission strongly encourages electronic filings.
k. This application has been accepted, but is not ready for environmental analysis at this time.
l. The project includes two developments with a total authorized capacity of 1,755 megawatts (MW) as follows:
(a) The Wanapum development consisting of a dam 186.5 feet high and 8,637 feet long with upstream fish passage facilities, a reservoir with an approximate surface area of 14,680 acres, a powerhouse with ten turbine-generator units with a total nameplate capacity of 900 MW, transmission lines, and appurtenant facilities.
(b) The Priest Rapids development consisting of a dam 179.5 feet high and 10,103 feet long with upstream fish passage facilities, a reservoir with an approximate surface area of 7,725 acres, a powerhouse with ten turbine-generator units with a total nameplate capacity of 855 MW, transmission lines, and appurtenant facilities.
m. A copy of the application is available for review at the Commission in the Public Reference Room or may be viewed on the Commission's Web site at
You may also register online at
n. Anyone may submit a protest or a motion to intervene in accordance with the requirements of Rules of Practice and Procedure, 18 CFR 385.210, 385.211, and 385.214. In determining the appropriate action to take, the Commission will consider all protests filed, but only those who file a motion to intervene in accordance with the Commission's Rules may become a party to the proceeding. Any protests or motions to intervene must be received on or before the specified deadline date for the particular application.
All filings must (1) bear in all capital letters the title “PROTEST” or “MOTION TO INTERVENE;” (2) set forth in the heading the name of the applicant and the project number of the application to which the filing responds; (3) furnish the name, address, and telephone number of the person protesting or intervening; and (4) otherwise comply with the requirements of 18 CFR 385.2001 through 385.2005. Agencies may obtain copies of the application directly from the applicant. A copy of any protest or motion to intervene must be served upon each representative of the applicant specified in the particular application.
Take notice that the following hydroelectric application has been filed with the Commission and is available for public inspection.
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All documents (original and eight copies) should be filed with: Magalie R. Salas, Secretary, Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426.
The Commission's Rules of Practice require all intervenors filing documents
Motions to intervene and protests may be filed electronically via the Internet in lieu of paper. The Commission strongly encourages electronic filings.
k. This application has been accepted for filing, but is not ready for environmental analysis at this time.
l. The existing Bryson Hydroelectric Project operates in a run-of-river mode, within a 6-inch tolerance band. Project operation is dependent on available flow in the Oconaluftee River. The project consists of the following features: (1) A 341-foot-long, 36-foot-high concrete multiple arch dam, consisting of, from left to right facing downstream, (a) a concrete, non-overflow section, (b) two gravity spillway sections, each surmounted by a 16.5-foot-wide by 16-foot-high Tainter gate, and (c) an uncontrolled multiple-arch spillway with four bays; (2) a 1.5-mile-long, 38-acre impoundment at elevation 1828.41 mean sea level (msl); (3) two intake bays, each consisting of an 8.5-foot-diameter steel intake pipe with a grated trashrack having a clear bar spacing of between 2.25 to 2.5 inches; (4) a powerhouse having a brick and concrete superstructure and concrete substructure, containing two turbine/generating units, having a total installed capacity of 980 kilowatts (kW); (5) a switchyard, with three single-phased transformers; and (6) appurtenant facilities.
Duke Power estimates that the average annual generation is 5,534,230 kilowatt hours (kWh). Duke Power uses the Bryson Project facilities to generate electricity for use by retail customers living in the Duke Power-Nantahala Area.
m. A copy of the application is available for review at the Commission in the Public Reference Room or may be viewed on the Commission's Web site at
You may also register online at
n. Anyone may submit a protest or a motion to intervene in accordance with the requirements of Rules of Practice and Procedure, 18 CFR 385.210, 385.211, and 385.214. In determining the appropriate action to take, the Commission will consider all protests filed, but only those who file a motion to intervene in accordance with the Commission's Rules may become a party to the proceeding. Any protests or motions to intervene must be received on or before the specified deadline date for the particular application.
When the application is ready for environmental analysis, the Commission will issue a public notice requesting comments, recommendations, terms and conditions, or prescriptions.
All filings must (1) bear in all capital letters the title “PROTEST” or “MOTION TO INTERVENE”; (2) set forth in the heading the name of the applicant and the project number of the application to which the filing responds; (3) furnish the name, address, and telephone number of the person protesting or intervening; and (4) otherwise comply with the requirements of 18 CFR 385.2001 through 385.2005. Agencies may obtain copies of the application directly from the applicant. A copy of any protest or motion to intervene must be served upon each representative of the applicant specified in the particular application.
Take notice that the following hydroelectric application has been filed with the Commission and is available for public inspection.
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All documents (original and eight copies) should be filed with: Magalie R. Salas, Secretary, Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426.
The Commission's Rules of Practice require all intervenors filing documents with the Commission to serve a copy of that document on each person on the official service list for the project. Further, if an intervenor files comments or documents with the Commission relating to the merits of an issue that may affect the responsibilities of a particular resource agency, they must also serve a copy of the document on that resource agency.
Motions to intervene and protests may be filed electronically via the Internet in lieu of paper. The Commission strongly encourages electronic filings.
k. This application has been accepted for filing, but is not ready for environmental analysis at this time.
l. The existing Dillsboro Hydroelectric Project operates in a run-of-river mode, within a 6-inch tolerance band. Project operation is dependent on available flow in the Tuckasegee River, which is dependent on Duke Power's East Fork (FERC No. 2698) and West Fork (FERC No. 2686) Tuckasegee River projects. The Dillsboro Project consists of the following features: (1) A 310-foot-long, 12-foot-high concrete masonry dam, consisting of, from left to right facing downstream, (a) a concrete, non-overflow section, (b) a 14-foot-long uncontrolled spillway section, (c) a 20-foot-long spillway section with two 6-foot-wide spill gates, (d) a 197-foot-long uncontrolled spillway section, (e)
Duke Power estimates that the average annual generation is 912, 330 Kwh. Duke Power uses the Dillsboro Project facilities to generate electricity for use by retail customers living in the Duke Power-Nantahala Area.
m. A copy of the application is available for review at the Commission in the Public Reference Room or may be viewed on the Commission's Web site at
You may also register online at
n. Anyone may submit a protest or a motion to intervene in accordance with the requirements of Rules of Practice and Procedure, 18 CFR 385.210, 385.211, and 385.214. In determining the appropriate action to take, the Commission will consider all protests filed, but only those who file a motion to intervene in accordance with the Commission's Rules may become a party to the proceeding. Any protests or motions to intervene must be received on or before the specified deadline date for the particular application.
When the application is ready for environmental analysis, the Commission will issue a public notice requesting comments, recommendations, terms and conditions, or prescriptions.
All filings must (1) bear in all capital letters the title “PROTEST” or “MOTION TO INTERVENE”; (2) set forth in the heading the name of the applicant and the project number of the application to which the filing responds; (3) furnish the name, address, and telephone number of the person protesting or intervening; and (4) otherwise comply with the requirements of 18 CFR 385.2001 through 385.2005. Agencies may obtain copies of the application directly from the applicant. A copy of any protest or motion to intervene must be served upon each representative of the applicant specified in the particular application.
Take notice that the following hydroelectric application has been filed with the Commission and is available for public inspection.
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All documents (original and eight copies) should be filed with: Magalie R. Salas, Secretary, Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426.
The Commission's Rules of Practice require all intervenors filing documents with the Commission to serve a copy of that document on each person on the official service list for the project. Further, if an intervenor files comments or documents with the Commission relating to the merits of an issue that may affect the responsibilities of a particular resource agency, they must also serve a copy of the document on that resource agency.
Motions to intervene and protests may be filed electronically via the Internet in lieu of paper. The Commission strongly encourages electronic filings.
k. This application has been accepted for filing, but is not ready for environmental analysis at this time.
l. The existing Franklin Hydroelectric Project operates in a run-of-river mode, within a 6-inch tolerance band. Project operation is dependent on available flow in the Little Tennessee River. The Franklin Project consists of the following features: (1) A 462.5-foot-long, 35.5-foot-high concrete masonry dam, consisting of, from left to right facing downstream, (a) a 15-foot-long non-overflow section, (b) a 54-foot-long ungated Ogee spillway, (c) a 181.5-foot-long gated spillway section, having six gated, ogee spillway bays, (d) a 54-foot-long ungated Ogee spillway, (e) a 25-foot-long non-overflow section, and (f) a 70-foot-long non-overflow section; (2) a 4.6-mile-long, 174-acre impoundment at elevation 2000.22 msl; (3) three intake bays, each consisting of a flume and grated trashracks having a clear bar spacing of 3 inches; (4) a powerhouse having a reinforced concrete substructure and a brick superstructure, containing two turbine/generating units, having a total installed capacity of 1.040 kW; (5) a switchyard, with a single three-phase transformer; and (6) appurtenant facilities.
Duke Power estimates that the average annual generation is 5.313.065 kWh. Duke Power uses the Franklin Project facilities to generate electricity for use by retail customers living in the Duke Power-Nantahala Area.
m. A copy of the application is available for review at the Commission in the Public Reference Room or may be viewed on the Commission's Web site at
You may also register online at
n. Anyone may submit a protest or a motion to intervene in accordance with the requirements of Rules of Practice and Procedure, 18 CFR 385.210, 385.211, and 385.214. In determining the appropriate action to take, the Commission will consider all protests filed, but only those who file a motion to intervene in accordance with the Commission's Rules may become a party to the proceeding. Any protests or motions to intervene must be received on or before the specified deadline date for the particular application.
When the application is ready for environmental analysis, the Commission will issue a public notice requesting comments, recommendations, terms and conditions, or prescriptions.
All filings must (1) bear in all capital letters the title “PROTEST” or “MOTION TO INTERVENE”; (2) set forth in the heading the name of the applicant and the project number of the application to which the filing responds; (3) furnish the name, address, and telephone number of the person protesting or intervening; and (4) otherwise comply with the requirements of 18 CFR 385.2001 through 385.2005. Agencies may obtain copies of the application directly from the applicant. A copy of any protest or motion to intervene must be served upon each representative of the applicant specified in the particular application.
Take notice that the following application has been filed with the Commission and is available for public inspection:
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All documents (original and eight copies) should be filed with: Ms. Magalie R. Salas, Secretary, Federal Energy Regulatory Commission, 888 First Street, NE., Washington DC 20426. Please include the project number (P-2067-021) on any comments or motions filed. Comments, protests, and interventions may be filed electronically via the internet in lieu of paper.
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m. Individuals desiring to be included on the Commission's mailing list should so indicate by writing to the Secretary of the Commission.
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Take notice that the following hydroelectric application has been filed
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k. Pursuant to § 4.32(b)(7) of 18 CFR of the Commission's regulations, if any resource agency, Indian Tribe, or person believes that an additional scientific study should be conducted in order to form an adequate factual basis for a complete analysis of the application on its merit, the resource agency, Indian Tribe, or person must file a request for a study with the Commission not later than December 3, 2003, and serve a copy of the request on the applicant.
All documents (original and eight copies) should be filed with: Magalie R. Salas, Secretary, Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426.
The Commission's Rules of Practice require all intervenors filing documents with the Commission to serve a copy of that document on each person on the official service list for the project. Further, if an intervenor files comments or documents with the Commission relating to the merits of an issue that may affect the responsibilities of a particular resource agency, they must also serve a copy of the document on that resource agency.
Additional study requests and requests for cooperating agency status may be filed electronically via the Internet in lieu of paper. The Commission strongly encourages electronic filings.
l. This application is not ready for environmental analysis at this time.
m. The existing project consists of a 16.5-foot-high timber dam at the outlet of Upper Lake (a.k.a. Indian Lake), creating a reservoir with a surface area of approximately 20.4 acres at the maximum reservoir elevation of 431 feet (local datum), a channel spillway, a 7,700-foot-long, 8-inch-diameter wood-stave and steel pipeline, a 60-kilowatt generating unit inside the applicant's fish cannery, the generator leads, and appurtenant facilities. No new facilities or changes in operation are proposed.
n. A copy of the application is available for review at the Commission in the Public Reference Room or may be viewed on the Commission's Web site at
You may also register online at
o. With this notice, we are initiating consultation with the
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Final amendments to the application must be filed with the Commission no later than 30 days from the issuance date of the notice of ready for environmental analysis.
Take notice that the following hydroelectric application has been filed with the Commission and is available for public inspection.
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All documents (original and eight copies) should be filed with: Magalie R. Salas, Secretary, Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426.
The Commission's Rules of Practice require all intervenors filing documents with the Commission to serve a copy of that document on each person on the official service list for the project. Further, if an intervenor files comments or documents with the Commission relating to the merits of an issue that may affect the responsibilities of a particular resource agency, they must also serve a copy of the document on that resource agency.
Motions to intervene and protests may be filed electronically via the Internet in lieu of paper. The Commission strongly encourages electronic filings.
k. This application has been accepted for filing, but is not ready for environmental analysis at this time.
l. The existing Mission Hydroelectric Project operates in a run-of-river mode, within a 6-inch tolerance band. Project operation is dependent on available flow in the Hiwassee River, which is regulated by TVA's Chatuge dam located approximately 15 miles upstream. The Mission Project consists of the following features: (1) A 397-foot-long, 50-foot-high concrete gravity dam, consisting of, from left to right facing downstream, (a) three bulkhead sections, (b) seven ogee spillway sections, surmounted by 14-foot-high by 16-foot-wide gates, (c) four bulkhead sections, (d) a powerhouse intake structure, and (e) four bulkhead sections; (2) a 47-acre impoundment at elevation 1658.17 msl; (3) three intake bays, each consisting of an 8-foot-diameter steel-cased penstock and a grated trashrack having a clear bar spacing of between 2.25 to 2.5 inches; (4) a powerhouse consisting of a reinforced concrete substructure and a brick superstructure, containing three turbine/generating units, having a total installed capacity of 1,800 kW; (5) a switchyard, with a single three-phase transformer; and (6) appurtenant facilities.
Duke Power estimates that the average annual generation is 8,134,370 kWh. Duke Power uses the Mission Project facilities to generate electricity for use by retail customers living in the Duke Power-Nantahala Area.
m. A copy of the application is available for review at the Commission in the Public Reference Room or may be viewed on the Commission's Web site at
You may also register online at
n. Anyone may submit a protest or a motion to intervene in accordance with the requirements of Rules of Practice and Procedure, 18 CFR 385.210, 385.211, and 385.214. In determining the appropriate action to take, the Commission will consider all protests filed, but only those who file a motion to intervene in accordance with the Commission's Rules may become a party to the proceeding. Any protests or motions to intervene must be received on or before the specified deadline date for the particular application.
When the application is ready for environmental analysis, the Commission will issue a public notice requesting comments, recommendations, terms and conditions, or prescriptions.
All filings must (1) bear in all capital letters the title “PROTEST” or “MOTION TO INTERVENE”; (2) set forth in the heading the name of the applicant and the project number of the application to which the filing responds; (3) furnish the name, address, and telephone number of the person protesting or intervening; and (4) otherwise comply with the requirements of 18 CFR 385.2001 through 385.2005. Agencies may obtain copies of the application directly from the applicant. A copy of any protest or motion to intervene must be served upon each representative of the applicant specified in the particular application.
On November 6, 2003, staff from the Public Utility District No. 1 of Chelan County will meet with Commission staff to discuss the settlement agreement for the licensing of the Lake Chelan Hydroelectric Project, located on the Chelan River near the City of Chelan, Washington. The meeting will be held at the Federal Energy Regulatory Commission, 888 First Street NE., Washington, DC, on November 6, 2003, from 9 a.m. to 12 p.m. in Hearing Room 3. All interested individuals, organizations, and agencies are invited to attend, and should contact David Turner at 202-502-6091 by November 3, 2003 if they plan to attend. This meeting is posted on the Commission's calendar located at
If you have further questions, please contact David Turner, at 202-502-6091.
1. As announced in the Notice of Conference issued September 23, 2003, and clarified in the Supplemental Notice issued October 3, 2003, the Federal Energy Regulatory Commission (FERC) will convene a public conference on October 14, 2003 at 9:00 a.m. in the Commission Meeting Room.
2. The purpose of this conference is to discuss the findings and recommendations contained in the National Petroleum Council's (NPC) report, Balancing Natural Gas Policy—Fueling the Demands of a Growing Economy,
3. All interested persons are invited to attend. No registration is required for attendance. All visitors must check-in at the 888 First Street NE., entrance and have picture identification readily available to ensure quick admittance to the building.
This constitutes notice, in accordance with 18 CFR 385.2201(b), of the receipt of exempt and prohibited off-the-record communications.
Order No. 607 (64 FR 51222, September 22, 1999) requires Commission decisional employees, who make or receive an exempt or prohibited off-the-record communication relevant to the merit's of a contested on-the-record proceeding, to deliver a copy of the communication, if written, or a summary of the substance of any oral communication, to the Secretary.
Prohibited communications will be included in a public, non-decisional file associated with, but not a part of, the decisional record of the proceeding. Unless the Commission determines that the prohibited communication and any responses thereto should become a part of the decisional record, the prohibited off-the-record communication will not be considered by the Commission in reaching its decision. Parties to a proceeding may seek the opportunity to respond to any facts or contentions made in a prohibited off-the-record communication, and may request that the Commission place the prohibited communication and responses thereto in the decisional record. The Commission will grant such a request only when it determines that fairness so requires. Any person identified below as having made a prohibited off-the-record communication shall serve the document on all parties listed on the official service list for the applicable proceeding in accordance with Rule 2010, 18 CFR 385.2010.
Exempt off-the-record communications will be included in the decisional record of the proceeding, unless the communication was with a cooperating agency as described by 40 CFR 1501.6, made under 18 CFR 385.2201(e)(1)(v).
The following is a list of prohibited and exempt communications recently received in the Office of the Secretary. The communications listed are grouped by docket numbers. These filings are available for review at the Commission in the Public Reference Room or may be viewed on the Commission's Web site at
Exempt:
Environmental Protection Agency (EPA).
Notice of guidance availability.
We are announcing today the availability of guidance to assist States and Tribes in implementing regulations governing regional haze which were published in the
Interested parties can download the
Neil Frank, U.S. Environmental Protection Agency (C304-01), Research Triangle Park, NC 27711; e-mail
In section 169A of the 1977 Amendments to the Clean Air Act, Congress established a national visibility goal as the “prevention of any future, and the remedying of any existing, impairment of visibility in mandatory Federal Class I areas which impairment results from manmade air pollution” (42 U.S.C. 7491). These provisions were further supplemented by section 169B of the Clean Air Act Amendments of 1990 (42 U.S.C. 7492). States are required to develop implementation plans that make “reasonable progress” toward this goal.
The EPA issued initial visibility regulations in 1980
The overall framework of the regional haze rule requires States to develop a State Implementation Plan that includes: (1) Reasonable progress goals for improving visibility in each mandatory Federal Class I area and (2) set of emission reduction measures to meet these goals. Specifically, States will set progress goals for each mandatory Federal Class I area to:
Most States (and Tribes as appropriate
The purpose of the documents announced in today's notice is to provide guidance to the States and Tribes in implementing the regional haze program and to explain how EPA intends to exercise its discretion in implementing Clean Air Act provisions and EPA regulations concerning the estimation of natural visibility and tracking progress under the Regional Haze program. The guidance documents are designed to implement national policy on these issues. The guidance documents are designed to assist States and Tribes in implementing national policy on these issues. Sections 169A and 169B of the Clean Air Act and implementing regulations at 40 CFR 51.308 and 51.309 contain legally binding requirements. These guidance documents will not substitute for those provisions or regulations, nor will they constitute regulations themselves. Thus, they will not impose binding, enforceable requirements on any party, and may not apply to a particular situation based upon the circumstances. We and State decision makers retain the discretion to adopt approaches on a case-by-case basis that differ from this guidance where appropriate. Any decisions by us regarding a particular SIP demonstration will only be made based on the statute and regulations. Therefore, you are free to raise questions and objections about the appropriateness of the application of this guidance to a particular situation; we will, and States should, consider whether or not the recommendations in this guidance are appropriate in that situation. These guidance documents will be living documents and may be revised periodically without public notice. We welcome public comments on these documents at any time and will consider those comments in any future revision of these guidance documents.
Because these documents are not regulations and do not impose binding requirements, we are not required to solicit public comments on them. However, we chose to do so as a matter of discretion in order to improve the quality and responsiveness of the documents to the needs of the State and Tribal air quality management agencies. A summary of the comments we received and our responses to them will be available at the Web site identified above.
Environmental Protection Agency (EPA).
Notice of proposed NPDES general permit reissuance.
The Regional Administrator of EPA Region 6 today proposes to issue the National Pollutant Discharge Elimination System (NPDES) general permit for the Territorial Seas of Texas (No. TXG260000) for discharges from existing and new dischargers and New Sources in the Offshore Subcategory of the Oil and Gas Extraction Point Source Category as authorized by section 402 of the Clean Water Act. The permit will supercede the previous general permit (TX0085651) issued on September 15, 1983 and published in the
Comments must be received by January 16, 2004.
Comments should be sent to: Director, Water Quality Protection Division, Region 6, U.S. Environmental Protection Agency, 1445 Ross Avenue, Dallas, Texas 75202-2733. Comments may also be submitted via e-mail to the following address:
Ms. Diane Smith, Region 6, U.S. Environmental Protection Agency, 1445 Ross Avenue, Dallas, Texas 75202-2733. Telephone: (214) 665-7191.
A complete draft permit and/or a fact sheet more fully explaining the proposal may be obtained from Ms. Smith. In addition, the Agency's current administrative record on the proposal is available for examination at the Region's Dallas offices during normal working hours after providing Ms. Smith 24 hours advance notice. Additionally, a copy of the proposed permit, fact sheet, and this
Specifically, the draft permit proposes to prohibit the discharge of drilling fluids, drill cuttings and produced sand. Produced water discharges are limited for oil and grease, 48-hour acute toxicity, and 24-hour acute end-of-pipe toxicity. In addition to limits on oil and grease, the proposed permit includes a prohibition of the discharge of priority pollutants except in trace amounts in well treatment, completion, and workover fluids. A limit of “No Free Oil” is proposed for miscellaneous discharges, such as non-contact cooling water and ballast water, and on deck drainage discharges. Discharges of seawater and freshwater which have been used to pressure test existing pipelines and piping, to which treatment chemicals have been added, are also proposed to be authorized. Those seawater and freshwater discharges are proposed to be subject to limitations on free oil, concentration of treatment chemicals, and acute toxicity.
Based on the available information and analysis of the discharges described in the Fact Sheet for this proposed modification EPA Region 6 has determined that authorization of the proposed discharges is not likely to adversely affect listed threatened or endangered species. EPA is seeking written concurrence from the National Marine Fisheries Service (NMFS) and the U.S. Fish and Wildlife Service on this determination.
This reissued permit will not significantly change the reporting and application requirements from those under the previous general permit, which authorized discharges to the territorial seas off Texas. Since this permit is very similar in reporting and application requirements and in discharges which are required to be monitored as the Western Gulf of Mexico Outer Continental Shelf (OCS) general permit (GMG290000), the paperwork burdens are expected to be nearly identical. When it issued the OCS general permit, EPA estimated it would take an affected facility three hours to prepare the request for coverage and 38 hours per year to prepare discharge monitoring reports. It is estimated that the time required to prepare the request for coverage and discharge monitoring reports for this permit will be the same.
However, the alternative to obtaining authorization to discharge under this general permit is under an individual permit. The application and reporting burden of obtaining authorization to discharge under the general permit is expected to be significantly less than under an individual permit.
NPDES general permits are not “rules” under the APA and thus not subject to the APA requirement to publish a notice of proposed rulemaking. NPDES general permits are also not subject to such a requirement under the CWA. While EPA publishes a notice to solicit public comment on draft general permits, it does so pursuant to the CWA section 402(a) requirement to provide “an opportunity for a hearing.” Thus, NPDES general permits are not “rules” for RFA or UMRA purposes.
EPA has determined that the proposed permit modification would not contain a Federal requirement that may result in expenditures of $100 million or more for State, local and tribal governments, in the aggregate, or the private sector in any one year.
The Agency also believes that the permit would not significantly nor uniquely affect small governments. For UMRA purposes, “small governments” is defined by reference to the definition of “small governmental jurisdiction” under the RFA. (
The permit, as proposed, also would not uniquely affect small governments because compliance with the proposed permit conditions affects small governments in the same manner as any other entities seeking coverage under the permit. Additionally, EPA does not expect small governments to operate facilities authorized to discharge by this permit.
EPA issued a Notice of Intent (NOI) on February 12, 1993, to prepare an Environmental Impact Statement (EIS) on new source NPDES General Permits for the Offshore Subcategory of the Oil & Gas Extraction Category proposed for the territorial seas of both Texas and Louisiana. Scoping issues were considered through the NOI and other informal procedures, including interagency meetings conducted in July, 1993. The Draft EIS was issued in January 1994, for review and comment from interested agencies, officials, groups and individuals. EPA's public hearing to receive comments on the Draft EIS was held on March 16, 1994. The Final EIS issued in June 1996, however, covered only EPA's proposed general permit action for Louisiana, recognizing that a separate Final EIS would be prepared prior to its decision on the NPDES general permit for the territorial seas of Texas.
EPA intends to rely on its original Draft EIS (which is available for review at the EPA Region 6 Office) in this continued NEPA review process for the current proposal to issue the oil and gas NPDES general permit for the territorial seas of Texas. In addition EPA will
The Federal Communications Commission, 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(s), as required by the Paperwork Reduction Act of 1995, Public Law No. 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 Paperwork Reduction Act (PRA) comments should be submitted on or before December 17, 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 regarding this Paperwork Reduction Act submission to Judith B. Herman, Federal Communications Commission, Room 1-C804, 445 12th Street, SW., Washington, DC 20554 or via the Internet to
For additional information or copies of the information collection(s), contact Judith B. Herman at 202-418-0214 or via the Internet at
Federal Communications Commission.
Notice.
As a result of certain licensees' failure to respond to the Wireless Telecommunications Bureau (Bureau) audit inquiries, the Bureau announces that certain licenses have been presumed non-operational for one year or more and therefore have cancelled automatically. Action has
Denise D. Walter, Commercial Wireless Division, at 202-418-0620.
This is a summary of the Commission's
1. On May 14, 2003, 452 letters were mailed to all licensees operating in the QT, QD, and QO radio services inquiring into the operational status of each license held. Each licensee was required to respond and certify, by June 13, 2003, that its authorized station(s) had not permanently discontinued service (
2. In the audit letters that were mailed to the individual licensees, as well as in the Bureau's Public Notices, the Bureau expressly indicated that a response to the audit letter was mandatory. The Bureau also indicated that failure to provide a timely response might result in the Commission's presumption that station at issue was non-operational for one year or more and therefore automatically cancelled. The Bureau's second audit letter explicitly stated that failure to timely respond to the audit letter would result in the loss of the licensee's authority to operate on the station(s) at issue in the audit letter. The Bureau has received no response to either of the audit letters for the station licenses that are set forth in Attachment A of the
The following items have been deleted from the list of Agenda items scheduled for consideration at the November 13, 2003, Open Meeting and previously listed in the Commission's Notice of November 6, 2003.
A notice announcing a 30-Day comment period for the proposed project: Health and Safety Outcomes Related to Work Schedules in Nurses—NEW—The National Institute for Occupational Safety and Health (NIOSH), Centers for Disease Control and Prevention (CDC) was inadvertently republished in the
The official publication of this notice was September 18, 2003, [68 FR 54732] and stands as published.
In compliance with the requirement of section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995 for opportunity for public comment on proposed data collection projects, the Centers for Disease Control and Prevention (CDC) will publish periodic summaries of proposed projects. To request more information on the proposed projects or to obtain a copy of the data collection plans and instruments, call the CDC Reports Clearance Officer on (404) 498-1210.
Comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden of the proposed collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be
While much has been learned about the development of CCC plans, little is known about CCC grantee activities, organizational capacity, or essential elements of implementing CCC plans. CDC, through a contractor will evaluate the necessary components of the CCC Program. The evaluation consists of: (1) The design of a plan to evaluate the CCC Program; (2) an evaluation of grantee activities; (3) a nationwide assessment of capacity to plan, implement and evaluate CCC programs, and (4) a study of selected grantees' experiences implementing CCC plans. This project will focus on the fourth component of the evaluation.
Implementation case studies provide the opportunity to follow the relationships among needs identified in the planning process, goals and objectives established in the plan (priorities for action), and implemented activities. The goals of the proposed data collection are to document the process and activities CCC programs undertake to implement a CCC plan, and to document measures CCC programs use to assess how well a CCC plan is implemented.
The data will be collected via in-person interviews with key personnel in the implementation of CCC plans. Key personnel will include: Program directors, program staff in health departments and partner organizations, partner organization decisionmakers, program evaluators, and representatives from non-partner organizations. Interviews will take place during one 3 to 4-day site visit to 10 sites. A total of 240 interviews will be conducted. Interviews will last approximately one to two hours each. The program directors will also complete a packet of background information in preparation for the site visits. The materials will take approximately two hours to complete. The only cost to respondents is their time.
In compliance with the requirement of Section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995 for opportunity for public comment on proposed data collection projects, the Centers for Disease Control and Prevention (CDC) will publish periodic summaries of proposed projects. To request more information on the proposed projects or to obtain a copy of the data collection plans and instruments, call the CDC Reports Clearance Officer on (404) 498-1210.
Comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden of the proposed collection of information; (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. Send comments to Seleda Perryman, CDC Assistant Reports Clearance Officer, 1600 Clifton Road, MS-D24, Atlanta, GA 30333. Written comments should be received within 60 days of this notice.
Recent outbreaks of emerging zoonotic diseases in the United States have highlighted the need to better protect the veterinary community from infectious diseases by educating them about personal protective measures. In particular, during the recent 2003 outbreak of monkeypox in the United States associated with prairie dogs and imported rodents, veterinarians or veterinary staff represented over 25% of confirmed and probable human cases. During the height of this outbreak, health officials were tasked with providing information to the medical and veterinary communities to ensure safety when examining monkeypox-infected patients; a lack of universally accepted infection control and personal protection guidelines within the veterinary community hampered the delivery of effective prevention messages to this vulnerable population.
The proposed survey asks veterinarians about infection control procedures employed in their clinics and the use of personal protective equipment to prevent zoonotic disease transmission.
The proposed study consists of a self-administered, written questionnaire
In compliance with the requirement of section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995 for opportunity for public comment on proposed data collection projects, the Centers for Disease Control and Prevention (CDC) will publish periodic summaries of proposed projects. To request more information on the proposed projects or to obtain a copy of the data collection plans and instruments, call the CDC Reports Clearance Officer on (404) 498-1210.
Comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden of the proposed collection of information; (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. Send comments to Anne O'Connor, CDC Assistant Reports Clearance Officer, 1600 Clifton Road, MS-D24, Atlanta, GA 30333. Written comments should be received within 60 days of this notice.
The mission of the National Institute for Occupational Safety and Health (NIOSH) is to promote safety and health at work for all people through research and prevention. Consistent with this mission, NIOSH is undertaking a study of the reproductive and neurobehavioral effects of the occupational exposure to acrylamide. Acrylamide workers and control workers (N = 100 per group) will be recruited from manufacturing, end-user and non-exposed settings. Exposure will be characterized by acrylamide hemoglobin, adduct and urinary metabolite levels, ambient area, personal air, and dermal sampling. Reproductive effects will be evaluated by examining semen quality, sperm DNA integrity, reproductive hormone levels, and prostate specific antigen (PSA) levels.
Neurobehavioral effects will be assessed using sensation-tactile, postual stability, grooved pegboard, and simple reaction time tests. Two questionnaires will be administered on one occasion. Questionnaire information will be collected concurrently to augment test interpretation, adjust for potential confounders and covariates during regression analysis, correlate specific jobs and job activities with exposure measurements, and for validation purposes. Findings from this study will clarify if the adverse reproductive effects observed in animal studies are also present in acrylamide-exposed workers, and if preclinical neurobehavioral deficits are present at acrylamide doses currently considered to be within safe limits.
This study is scheduled for implementation in late 2003 and 2004. There are no costs to respondents.
In accordance with section 10(a)(2) of the Federal Advisory Committee Act (Pub. L. 92-463), the Centers for Disease Control and Prevention (CDC) announces the following committee meeting:
In December 2000 the President delegated responsibility for funding, staffing, and operating the Board to HHS, which subsequently delegated this authority to the CDC. NIOSH implements this responsibility for CDC. The charter was renewed on August 3, 2003 and the President has completed the appointment of members to the Board to ensure a balanced representation on the Board.
The purpose of the closed sessions is to include development, review, and discussion of a proposed Independent Government Cost Estimate (IGCE) for a technical support contract intended to assist the Board in fulfilling its statutory duty to advise the Secretary, HHS regarding dose reconstruction efforts under the EEOICPA. The IGCE will include contract cost estimates, the disclosure of which would adversely impact the Government's negotiating position and strategy in regards to this contract by giving potential bidders an undue advantage in determining the price associated with their bids. The information being discussed will include information of a confidential nature.
This portion of the meeting will be closed to the public in accordance with provisions set forth regarding subject matter considered confidential under the terms of 5 U.S.C. 552b(c)(9)(B), 48 CFR 5.401(b)(1) and (4), and 48 CFR 7.304(d), and the Determination of the Director of the Management Analysis and Services Office, Centers for Disease Control and Prevention, pursuant to Pub. L. 92-463.
A summary of this meeting will be prepared and submitted with 14 days of the close of the meeting.
Agenda items are subject to change as priorities dictate.
Larry Elliott, Executive Secretary, ABRWH, NIOSH, CDC, 4676 Columbia Parkway, Cincinnati, Ohio 45226, telephone 513/533-6825, fax 513/533-6826.
The Director, Management Analysis and Services Office, has been delegated the authority to sign
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is announcing an opportunity for public comment on the proposed collection of certain information by the agency. Under the Paperwork Reduction Act of 1995 (the PRA), Federal agencies are required to publish notice in the
Submit written or electronic comments on the collection of information by January 16, 2004.
Submit electronic comments on the collection of information to:
Karen Nelson, Office of Management Programs (HFA-250), Food and Drug Administration, 5600 Fishers Lane, Rockville, MD 20857, 301-827-1482.
Under the PRA (44 U.S.C. 3501-3520), Federal agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. “Collection of information” is defined in 44 U.S.C. 3502(3) and 5 CFR 1320.3(c) and includes agency requests or requirements that members of the public submit reports, keep records, or provide information to a third party. Section 3506(c)(2)(A) of the PRA (44 U.S.C. 3506(c)(2)(A)) requires Federal agencies to provide a 60-day notice in the
With respect to the following collection of information, FDA invites comments on these topics: (1) Whether the proposed collection of information is necessary for the proper performance of FDA's functions, including whether the information will have practical utility; (2) the accuracy of FDA's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques, when appropriate, and other forms of information technology.
Migraine headaches affect about 20 million Americans. Over the last decade, a category of drugs referred to as triptans, has been shown to be efficacious in treating migraine and has been prescribed to millions. However, triptans are routinely contraindicated in patients with vascular diseases due to associated rare occurrence of myocardial infarction, stroke, and other ischemic events. In view of the wide use of this class of drugs and the potential impact on public health, it would be of great use to better understand the prescribing practices as a result of this contraindication.
FDA plans to use the Internet to recruit triptan-user migraine headache patients to determine whether prescribers follow the labeling recommendation to avoid prescribing this class of drugs to patients with pre-existing cardiovascular, cerebrovascular, or peripheral vascular syndromes or with cardiac risk factors. The study is intended to measure the proportion of patients that were prescribed triptans although they have pre-existing cardiovascular, cerebrovascular, or peripheral vascular syndromes.
Soliciting patients over the Internet will identify a cohort of triptan users. These patients will then be asked to fill out a questionnaire about their medical history with a focus on vascular diseases. Following that, a sample of patients' medical records will be solicited and reviewed to verify the medical history. Prevalence of cardiovascular, cerebrovascular, or peripheral vascular ischemic diseases among migraine patients using triptans will be estimated. Information about patients' demographics, route of administration (oral, injection, intranasal), and duration of exposure to triptans will also be collected.
There are no available estimates about the rates of various vascular diseases and cardiac risk factors among migraine headache patients using triptans. The current study is considered a pilot study aimed at providing estimates of such rates to be used as a basis for future studies. Although FDA recognizes that the study population obtained through Internet-based recruitment may not reflect the population of triptan users at large, a signal of substantial prescribing to patients with vascular contraindications in this selected population may warrant further action on the sponsor's part to improve risk management. Improvement of risk management may include further study of the problem, a labeling change, educational programs performed by the sponsor, or increased restrictions on prescribing.
FDA estimates that approximately 500 persons will voluntarily complete the questionnaire. The estimated time for completing each questionnaire is approximately 2 hours, resulting in a total burden of 1,000 hours per year. The burden of this collection of information is estimated as follows:
National Institutes of Health, Public Health Service, HHS.
Notice.
The invention listed below is owned by an agency of the U.S. Government and is available for licensing in the U.S. in accordance with 35 U.S.C. 207 to achieve expeditious commercialization of results of federally-funded research and development. Foreign patent applications are filed on selected inventions to extend market coverage
Licensing information and copies of the U.S. patent application listed below may be obtained by writing to the indicated licensing contact at the Office of Technology Transfer, National Institutes of Health, 6011 Executive Boulevard, Suite 325, Rockville, Maryland 20852-3804; telephone: 301-496-7057; fax: 301-402-0220. A signed Confidential Disclosure Agreement will be required to receive copies of the patent application.
Homologous recombination is the process of exchanging DNA between two molecules through regions of identical sequence. Homologous recombination provides an alternative to using restriction endonucleases and ligases for producing recombinant DNA. However, the background level of homologous recombination in
When the ssDNA used for recombineering introduces change(s) near the DNA replication fork, the change(s) may trigger mismatch repair (MMR), which in turn can reduce the level of recombination. In the present invention, altering MMR function achieves a 10-to 100-fold increase in Red recombination. This increase raises the number of recombinants to 25 to 30 percent of treated cells surviving electroporation of the oligo. Methods of transiently inhibiting MMR and bacterial strains deficient for the production of MMR genes are also provided. (Annu. Rev. Genet. 2002, 36:361-88.)
National Institutes of Health, Public Health Service, HHS.
Notice.
The invention listed below is owned by an agency of the U.S. Government and is available for licensing in the U.S. in accordance with 35 U.S.C. 207 to achieve expeditious commercialization of results of federally-funded research and development. Foreign patent applications are filed on selected inventions to extend market coverage for companies and may also be available for licensing.
Licensing information and copies of the U.S. patent application listed below may be obtained by writing to the indicated licensing contact at the Office of Technology Transfer, National Institutes of Health, 6011 Executive Boulevard, Suite 325, Rockville, Maryland 20852-3804; telephone: 301-496-7057; fax: 301-402-0220. A signed Confidential Disclosure Agreement will be required to receive copies of the patent application.
Available for licensing is a system and software that analyzes digital representations of the colon and eliminates the occurrence of false positive colonic polyps. For example, in a scenario in which a list of polyp candidates is analyzed, the ileocecal valve can be removed from the list. Because the ileocecal valve is a normal structure and not a polyp (
Despite recent developments in drug and compound design to combat the human immunodeficiency virus (HIV), there remains a need for a potent, non-toxic compound that is effective against wild type reverse transcriptase (RT) as well as RTs that have undergone mutations and thereby become refractory to commonly used anti-HIV compounds. There are two major classes of RT inhibitors. The first comprises nucleoside analogues, which are not specific for HIV-RT and are incorporated into cellular DNA by host DNA polymerases. Nucleoside analogues can cause serious side effects and have resulted in the emergence of drug resistance viral strains that contain mutations in their RT. The second major class of RT inhibitors comprises non-nucleoside RT inhibitors (NNRTIs) that do not act as DNA chain terminators and are highly specific for HIV-RT. This technology is a novel class of NNRTIs (substituted benzimidazoles) effective in the inhibition of HIV-RT wild type as well as against variant HIV strains resistant to many non-nucleoside inhibitors. These NNRTIs are highly specific for HIV-1 RT and do not inhibit normal cellular polymerases, resulting in lower cytotoxicity and fewer side effects that the nucleoside analogues, such AZT. This novel class of compounds could significantly improve
National Institutes of Health, Public Health Service, DHHS.
Notice.
The invention listed below is owned by an agency of the U.S. Government and is available for licensing in the U.S. in accordance with 35 U.S.C. 207 to achieve expeditious commercialization of results of federally-funded research and development. Foreign patent applications are filed on selected inventions to extend market coverage for companies and may also be available for licensing.
Licensing information and copies of the U.S. patents and patent applications listed below may be obtained by contacting Michael Ambrose, Ph.D., at the Office of Technology Transfer, National Institutes of Health, 6011 Executive Boulevard, Suite 325, Rockville, Maryland 20852-3804; telephone: 301/594-6565; fax: 301/402-0220; e-mail:
Philip Murphy, Christopher Combadiere, Ji-liang Gao (NIAID).
DHHS Reference No. E-216-2003/0—Research Tool.
This mouse has been generated by targeted gene disruption. The mouse provides a model to investigate the function of the chemokine receptor CX3CR1, which is a proinflammatory receptor for the leukocyte chemoattractant CX3CL1 (aka fractalkine). As an example, the mouse is in use in the study of atherosclerosis. Further, the mouse may serve as a model study the role of the immune system during infection with pathogens as well as other immunologically mediated diseases and responses to tumors.
This mouse has been described in the publication “Decreased atheroscelerotic lesion formation in CX3R1/ApoE double knockout mice”. Combadiere C., Potteaux S., Gao J-L., Esposito B., Casanova S., Lee EJ., Debre P., Tedgui A., Murphy PM., Mallat Z. Circulation. 2003; 1009-1016.
Joel Moss (NHLBI), Masatoshi Noda (EM).
U.S. Provisional Application No. 60/409,742 filed 10 Sep 2002 (DHHS Reference No. E-223-2002/0-US-01); PCT Application No. PCT/US03/28282 filed 09 Sep 2003 (DHHS Reference No. E-223-2002/0-PCT-02).
This invention discloses and covers polyphenolic compounds that will bind bacterial toxins, methods for the treatment of such infections, specifically Stx-1 toxins from STEC strains of
Bacterial infections not only cause disease by their presence but also upon the release of toxins. The common enteric bacteria,
The disclosed invention uses an extract from the bracts of
David D. Roberts, Sizhuang Yan (NCI).
U.S. Patent Application No. 09/258,634 filed 26 Feb 1999 (DHHS Reference No. E-086-1999/0-US-01).
Three hemoglobin-response genes from
Jay A. Berzofsky (NCI), Igor M. Belyakov (NCI), Michael A. Derby (NCI), Brian L. Kelsall (NIAID), Warren Strober (NIAID).
U.S. Patent Application No. 09/508,552 filed 12 Jun 2000 (DHHS Reference No. E-268-1997/2-US-02).
This invention claims methods and compositions for inducing a protective mucosal cytotoxic T lymphocyte (CTL) response in a mammal involving administering a soluble antigen or a soluble antigen with one or more active agents such as a cytokine or co-stimulatory molecule to a mucosal surface or tissue. As a preferred embodiment, the invention contemplates intrarectal administration of the peptide vaccine because the inventors have shown that there is a greater CTL response through intrarectal administration rather than intranasal administration. The synthetic peptide vaccines utilized in the invention to elicit protective immune responses after mucosal infection comprise a multideterminant helper peptide containing a cluster of overlapping helper epitopes (a PCLUS or cluster peptide) colinearly synthesized with a peptide epitope target for neutralizing antibodies and CTL. The inventors have generated data showing that an intrarectally administered synthetic multiepitope HIV/SIV peptide vaccine administered to macaques in conjunction with mutant
Victor E. Marquez, Juan B. Rodriguez, Marc C. Nicklaus, Joseph J. Barchi, Jr., Maqbool A. Siddiqui (NCI).
U.S. Patent 5,629,454 issued 13 May 1997 (DHHS Reference No. E-231-1993/1-US-01); U.S. Patent 5,869,666 issued 09 Feb 1999 (DHHS Reference No. E-231-1993/1-US-02); and
Victor E. Marquez, Juan B. Rodriguez, Marc C. Nicklaus, Joseph J. Barchi, Jr., Maqbool A. Siddiqui (NCI).
U.S. Patent 5,840,728 issued 23 Nov 1998 (DHHS Reference No. E-100-1996/0-US-03).
The compounds of the present invention represent the first examples of carbocyclic dideoxynucleosides that in solution exist locked in a defined N-geometry (C3′-endo) conformation typical of conventional nucleosides. These analogues exhibit increased stability due to the substitution of carbon for oxygen in the ribose ring. The invention includes 4′-6′-cyclopropane fused carbocyclic dideoxynucleosides, 2′-deoxynucleosides and ribonucleosides as well as oligonucleotides derived from these analogues; the preferred embodiment of the invention is carbocyclic-4′-6′-cyclopropane-fused analogues of dideoxypurines, dideoxypyrimidines, deoxypurines, deoxypyrimidines, purine ribonucleosides and pyrimidine ribonucleosides. In addition, oligonucleotides derived from one or more of the nucleosides in combination with the naturally occurring nucleosides are within the scope of the present invention.
The second invention discloses a method for the treatment of herpes virus infections by the administration of cyclopropanated carbocyclic 2′-deoxynucleosides to an affected individual. This invention is a method of administration of the compounds described above. The compounds of this invention are particularly efficacious against herpes simplex viruses 1 and 2 (HSV-1 and HSV-2), Epstein-Barr Virus (EBV) and human cytomegalovirus (CMV), although the nucleoside analogues of the invention may be used to treat any condition caused by a herpes virus. Specifically, the N-methanocarba-T (Thymidine) analogue has been shown to exhibit strong activity against HSV-1 and HSV-2, and moderate to strong activity against EBV. Significantly, the anti-HSV activity of the Thymidine analogue is stronger than that of Acyclovir (shown in a plaque reduction assay), a widely used anti-HSV therapeutic. Furthermore, the Thymidine analogue is also non-toxic against stationary cells and is potent against rapidly dividing cells. Dosage amounts for the compounds are similar to those of Acyclovir.
Descriptions of these inventions may be found in Rodriguez
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. Appendix 2), notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
This notice is being published less than 15 days prior to the meeting due to the timing limitations imposed by the review and funding cycle.
This notice is being published less than 15 days prior to the meeting due to the timing limitations imposed by the review and funding cycle.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. Appendix 2), notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
This notice is being published less than 145 days prior to the meeting due to the timing limitations imposed by the review and funding cycle.
This notice is being published less than 15 days prior to the meeting due to the timing limitations imposed by the review and funding cycle.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. Appendix 2), notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. Appendix 2), notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commerical property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
This notice is being published less than 15 days prior to the meeting due to the timing limitations imposed by the review and funding cycle.
This notice is being published less than 15 days prior to the meeting due to the timing limitations imposed by the review and funding cycle.
This notice is being published less than 15 days prior to the meeting due to the mining limitations imposed by the review and funding cycle.
This notice is being published less than 15 days prior to the meeting due to the timing limitations imposed by the review and funding cycle.
This notice is being published less than 15 days prior to the meeting due to the timing limitations imposed by the review and funding cycle.
This notice is being published less than 15 days prior to the meeting due to the timing limitations imposed by the review and funding cycle.
This notice is being published less than 15 days prior to the meeting due to the timing limitations imposed by the review and funding cycle.
Coast Guard, DHS.
Request for comments.
In compliance with the Paperwork Reduction Act of 1995, this request for comments announces that the Coast Guard has forwarded the four Information Collection Requests (ICRs) abstracted below to the Office of Information and Regulatory Affairs (OIRA) of the Office of Management and Budget (OMB) for review and comment. Our ICRs describe the information we seek to collect from the public. Review and comment by OIRA ensures that we impose only paperwork burdens commensurate with our performance of duties.
Please submit comments on or before December 17, 2003.
To make sure that your comments and related material do not enter the docket [USCG 2003-15778] more than once, please submit them by only one of the following means:
(1)(a) By mail to the Docket Management Facility, U.S. Department of Transportation, room PL-401, 400 Seventh Street, SW., Washington, DC 20590-0001. (b) By mail to OIRA, 725 17th Street, NW., Washington, DC 20503, to the attention of the Desk Officer for the Coast Guard.
(2)(a) By delivery to room PL-401 at the address given in paragraph (1)(a)
(3) By fax to (a) the Facility at (202) 493-2251 and (b) OIRA at (202) 395-5806, or e-mail to OIRA at
(4)(a) 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 (Plaza level), 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 ICRs are available for inspection and copying in public dockets. They are available in docket USCG 2003-15778 of the Docket Management Facility between 10 a.m. and 5 p.m., Monday through Friday, except Federal holidays; for inspection and printing on the Internet at
Barbara Davis, Office of Information Management, (202) 267-2326, for questions on this document; 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
Privacy Act: Anyone can search the electronic form of all comments received in dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review the Privacy Act Statement of DOT in the
This request constitutes the 30-day notice required by OIRA. The Coast Guard has already published [68 FR 45833 (August 4, 2003)] the 60-day notice required by OIRA. That notice elicited no comments.
The Coast Guard invites comments on the proposed collections of information to determine whether the collections are necessary for the proper performance of the functions of the Department. In particular, the Coast Guard would appreciate comments addressing: (1) The practical utility of the collections; (2) the accuracy of the Department's estimated burden of the collections; (3) ways to enhance the quality, utility, and clarity of the information that is the subject of the collections; and (4) ways to minimize the burden of collection on respondents, including the use of automated collection techniques or other forms of information technology.
Comments, to DMS or OIRA, must contain the OMB Control Number of the ICR addressed. Comments to DMS must contain the docket number of this request, USCG 2003-15778. Comments to OIRA are best assured of having their full effect if OIRA receives them 30 or fewer days after the publication of this request.
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Office of the Chief Information Officer, HUD.
Notice.
The proposed information collection requirement described below will be submitted to the Office of Management and Budget (OMB) for review, as required by the Paperwork Reduction Act. The submission is a request for extension of the current approval to collect information on baseline performance standards. This information replaced various reporting requirements and places greater emphasis on performance and results in grant programs.
The Department is soliciting public comments on our request to extend approval for the subject information collection.
Interested persons are invited to submit comments regarding this proposal. Comments should refer to the proposal by name and/or OMB approval number (2535-0102) and should be sent to: Wayne Eddins, Reports Management Officer, AYO, Department of Housing and Urban Development, 451 Seventh Street, Southwest, Washington, DC 20410; e-mail
Wayne Eddins, Reports Management Officer, AYO, or Lillian Deitzer, Information Technology Specialist, AYO, Department of Housing and Urban Development, 451 Seventh Street, SW., Washington, DC 20410; e-mail
The Department has submitted the proposal for the collection of information, as described below, to OMB for review, as required by the Paperwork Reduction Act (44 U.S.C. Chapter 35). The Notice lists the following information: (1) The title of the information collection proposal; (2) the office of the agency to collect the information; (3) the OMB approval number, if applicable; (4) the description of the need for the information and its proposed use; (5) the agency form number, if applicable; (6) what members of the public will be affected by the proposal; (7) how frequently information submissions will be required; (8) an estimate of the total number of hours needed to prepare the information submission including number of respondents, frequency of response, and hours of response; (9) whether the proposal is new, an extension, reinstatement, or revision of an information collection requirement; and (10) the name and telephone number of an agency official familiar with the proposal and of the OMB Desk Officer for the Department.
Section 3507 of the Paperwork Reduction Act of 1995, 44 U.S.C. 35, as amended.
Office of the Assistant Secretary for Public and Indian Housing, HUD.
Notice.
The proposed information collection requirement described below will be submitted to the Office of Management and Budget (OMB) for review, as required by the Paperwork Reduction Act. The Department is soliciting public comments on the subject proposal.
Interested persons are invited to submit comments regarding this proposal. Comments should refer to the proposal by name and/or OMB Control Number and should be sent to: Mildred M. Hamman, Reports Liaison Officer, Public and Indian Housing, Department of Housing & Urban Development, 451-7th Street, SW., Room 4249, Washington, DC 20410-5000.
Mildred M. Hamman, (202) 708-0614, extension 4128. (This is not a toll-free number). For hearing- and speech-impaired persons, this telephone number may be accessed via TTY (Text telephone) by calling the Federal Information Relay Services at 1-800-877-8339 (toll-free).
The Department will submit the proposed information collection to OMB for review, as required by the Paperwork Reduction Act of 1995 (44 U.S.C. chapter 35, as amended).
Housing Agencies (HAs) must maintain certain records and submit certain documents to HUD with the award of oversight or construction contracts for development or new low-income housing developments or modernization of existing developments. This information is necessary for compliance with procurement requirements part 85.36(b).
This notice is soliciting comments from members of the public and affected agencies concerning the proposed collection of information to: (1) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (2) evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information; (3) enhance the quality, utility, and clarity of the information to be collected; and (4) minimize the burden of the collection of information on those who are to respond; including through the use of appropriate automated collection techniques or other forms of information technology,
This Notice also Lists the Following Information:
Bidding Control Record. HAs or its architect maintains a record of bid documents received or issued to each individual or firm requesting a bid package. A control record is required for each contract, but is not submitted to HUD, except for the bid tabulation when prior HUD approval of contract award is required.
Register of Change Order and Time Extensions. HAs maintain a register of change orders and time extensions to assure factual data upon which to adjudicate disputes or claims concerning delays from the HA, architect, contractor or HUD actions or inactions relative to approval, disapproval or execution of requested work changes or time extensions.
Form HUD-5372, Construction Progress Schedule. Immediately after execution of the Construction Contract, the contractor submits Form HUD-5372 to the HA to enable accurate checking of Actual completion of the contract within prescribed time periods.
Form HUD-51000, Schedule of Amounts for Contract Payments. Immediately after execution of the construction contract, the contractor submits the schedule of amounts for contract payment to the HA to enable accurate checking of periodical estimates for partial payments.
Section 3506 of the Paperwork Reduction Act of 1995, 44 U.S.C. chapter 35, as amended.
Office of the Assistant Secretary for Community Planning and Development, HUD.
Notice of funding availability; correction.
On October 15, 2003, HUD published the Notice of Funding Availability (NOFA) for the Competitive Reallocation of HOME Funds to Provide Permanent Housing for the Chronically Homeless. This notice corrects that funding announcement by notifying applicants of the new government-wide requirement that all applicants for federal grants and cooperative agreements must provide a Dun and Bradstreet Data Universal Numbering System (DUNS) number with their applications. In addition, this document makes a correction to the scoring assigned to certain HOME participating jurisdictions (PJs) found in Appendix 1 to the NOFA and changes the deadline for submission of applications to December 18, 2003.
Cliff Taffet, Office of Affordable Housing Programs, Office of Community Planning and Development, Department of Housing and Urban Development, 451 Seventh Street, SW., Washington DC, 20410-5000; telephone (202) 708-3226 ext. 4589 (this is not a toll-free number). Hearing- or speech-impaired individuals may access this number through TTY by calling the toll-free Federal Information Relay Service at (800) 877-8339.
On October 15, 2003 (68 FR 59450), HUD published its Notice of Funding
In addition, it has come to our attention that in the NOFA published on October 15, 2003, the scoring for Selection Criterion 2C did not give recognition in all cases to Community Housing Development Organization (CHDO) set-aside funding in completed “mixed-funded” projects where “regular” (
As a consequence of the scoring change, which could affect the decision of these PJs to apply under the HOME competition, the deadline for submission of applications is being moved back to December 18, 2003.
All other guidance and requirements contained in the original NOFA, including the scores assigned to PJs not appearing on Appendix A, are unchanged.
Accordingly, the Notice of Funding Availability for the Competitive Reallocation of HOME Funds to Provide Permanent Housing for the Chronically Homeless, published in the
1. On page 59450, in the first column under Program Overview and again under section I, Application Due Date, Standard Forms, Further Information, and Technical Assistance, the deadline for submission of applications is changed to December 18, 2003.
2. On page 59454, in the middle column, under section VI. entitled, “Application Requirements and Checklist for Application Submission,” a new paragraph at the end of this section to read as follows:
3. On Appendix 1, beginning on page 59455, the scores assigned to nine participating jurisdictions for Selection Criterion 2C and, consequently, their total scores are changed. The specific PJs affected by this change are St. Petersburg, FL (page 59458); Dupage County Consortium, IL (page 59458); New Orleans, LA (page 59459); Quincy Consortium, MA (page 59460); Middlesex County Consortium, NJ (page 59462); Ocean County Consortium, NJ (page 59462); Altoona, PA (page 59463); Utah, UT (page 59465); and Bellingham, WA (page 59466). A list of the affected PJs and their revised scores is found on Appendix A to this notice.
Office of the Inspector General, HUD.
Notice.
This
Bryan P. Saddler, Counsel to the Inspector General, Office of Legal Counsel Office of Inspector General, Room 8260, Department of Housing and Urban Development, 451 Seventh Street, SW., Washington, DC 20410-4500, telephone (202) 708-1613 (this is not a toll-free number). Persons with hearing or speech impairments may access this number through TTY by calling the toll-free Federal Information Relay Service at (800) 877-8339.
The HUD Office of Inspector General is established by law to provide independent and objective reporting to the Secretary, the Congress, and the American people through its audit and investigative activities. HUD's OIG works to promote the integrity, efficiency and effectiveness of HUD
Consistent with this charge, Section II of this notice presents OIG's recently issued bulletin on detecting and preventing counterfeiting of local housing authority (HA) checks.
This Bulletin highlights a recurring problem in the production of counterfeit Housing Authority checks across the country.
OIG's mission is to provide policy direction for HUD and to conduct, supervise, and coordinate audits, investigations, and other activities for the purpose of promoting economy and efficiency in the administration of the programs and operations of HUD and preventing and detecting fraud and abuse in such programs. HUD administers Federal aid to local housing agencies (HAs) that own and operate housing for low-income residents at rents they can afford. During the course of audits and investigations of, and relating to, HAs, OIG has detected numerous bank fraud schemes victimizing HAs across the country. Examples of these schemes follow.
In Cleveland, OH, fourteen individuals were indicted for conspiracy to defraud local banks, merchants, businesses, and the Cuyahoga Metropolitan Housing Authority (CMHA). These individuals allegedly comprised a loosely connected ring formed to counterfeit payroll and business checks. The ring was led by a felon with a prior uttering conviction. He used “recruiters” who, in turn, would seek out individuals who were willing to provide their identification, and in some cases, their own bank accounts, to deposit counterfeit checks which he made on a personal computer. The felon, the recruiters, and check utterers would then split the proceeds. Counterfeit check amounts ranged from as little as $300 to more than $16,000. Six of the defendants were indicted for passing counterfeit checks that displayed either the payroll or Section 8 account numbers of the CMHA. CMHA's loss estimates exceed $49,500.
In St. Louis, MO, an individual was indicted on two counts of bank fraud for allegedly manufacturing counterfeit checks drawn on accounts of the City of St. Louis and St. Louis County Housing Authority (SLCHA). The individual engaged in his scheme beginning in October 2002 and continuing until April 2003, and over $80,000 in fraudulent SLCHA checks were created and uttered in the St. Louis metropolitan area. SLCHA lost over $28,000 from its Section 8 account.
As part of a counterfeiting scheme, bank routing and account numbers of HAs are used to create counterfeit checks. Among other means, counterfeiters obtain the routing and account numbers from: (1) HA employees and vendors who receive payroll checks or other checks from an HA; and (2) HA residents who receive utility or other checks from an HA. Counterfeiters then employ personal computers, commercially available software, and check stock to manufacture bogus checks using the legitimate routing and account numbers. In some cases investigated by OIG, the counterfeit checks were used to buy computer equipment, which in turn was used to manufacture more fictitious checks.
Federal funds are at risk, and from an HA's standpoint avoiding victimization can be difficult. First, even tiny HAs have numerous employees and vendors who regularly receive HA checks, and it only takes one such employee or vendor to open an HA to fraud. Second, many HAs issue utility checks directly to residents via the U.S. mail. These residents may participate in a scheme against the HA, or their utility checks could be intercepted from the mail by a third party. Third, check stock and business check software is readily available at local office supplies stores. Fourth, counterfeit checks are usually cashed at local mom/pop stores that don't have check authentication equipment or protocols. Fifth, numerous false identities accompany the counterfeit checks, and local merchants don't necessarily have the will or ability to detect false identifications.
An accounting discrepancy detected by monthly bank reconciliation performed by the HA. A discrepancy in the check stock (
The first step in preventing this type of scheme is for HAs to enhance procedures for preventing and detecting fraud and mismanagement (
Bureau of Land Management (BLM), Lakeview District.
The Southeast Oregon Resource Advisory Council (SEORAC) will hold a meeting for all members from 8 a.m. to 5 p.m. Pacific Time (PT), Monday, December 8, 2003 and 8 a.m. to 2 p.m. (PT) on Tuesday, December 9, 2003 at the BLM, Burns District Office. The meeting is open to the public. Members of the public in the Burns area may attend the meeting in person at the Burns District Office, Conference Room, HC 74-12533, Hwy 20 West, Hines, Oregon 97738.
The meeting topics that may be discussed by the Council include a discussion of issues within Southeast Oregon related to: Welcome new members, Set 2004 meeting dates, Update on National Fire Plan implementation, Healthy Forest Initiative as it relates to Eastern Oregon, Noxious Weeds—update and explanation on national process, Report/Update on Sage Grouse Conservation Plan, Report/Update on Sustainable Working Landscapes, Tour of Burns Wild Horse facility. Update on Steens Mountain Advisory Council activities, Update on Steens/Andrews RMP/EIS, SEORAC Subcommittee meetings and reports, Summary of Rangeland Health Assessment process, Federal Officials' update and other issues that may come before the Council.
Information to be distributed to the Council members is requested in written format 10 days prior to the Council meeting. Public comment is scheduled for 11:15 a.m. to 11:45 a.m. (PT) on Monday, December 8, 2003.
Additional information concerning the SEORAC conference call may be obtained from Pam Talbott, Contact Representative, Lakeview Interagency Office, 1301 South G Street, Lakeview, OR 97630 (541) 947-6107, or
Bureau of Land Management; Interior.
Notice of proposed reinstatement of terminated oil and gas lease.
Pursuant to the provisions of 30 U.S.C. 188(d) and (e), and 43 CFR 3108.2-3(a) and (b)(1), a petition for reinstatement of oil and gas lease WYW154931 for lands in Converse, County, Wyoming, was timely filed and was accompanied by all the required rentals accruing from the date of termination.
Bureau of Land Management, Pamela J. Lewis, Chief, Fluid Minerals Adjudication, at (307) 775-6176.
The lessee has agreed to the amended lease terms for rentals and royalties at rates of $10.00 per acre, or fraction thereof, per year and 16
Bureau of Land Management, Interior.
Notice.
The purpose of this notice is to inform the public and interested State and local government officials of the filing of Plats of Survey in Nevada.
Filing is effective at 10 a.m. on the dates indicated below.
David J. Clark, Acting Chief, Branch of Geographic Sciences, Bureau of Land Management (BLM), Nevada State Office, 1340 Financial Blvd., P.O. Box 12000, Reno, Nevada 89520, (775) 861-6541.
1. The Plat of Survey of the following described lands was officially filed at the Nevada State Office, Reno, Nevada, on July 11, 2003:
The plat, in three sheets, representing the dependent resurvey of a portion of the west boundary, a portion of the subdivisional lines and a portion of the subdivision-of-section lines of section 20, the further subdivision of section 20, the subdivision of sections 29 and 30, and metes-and-bounds surveys in sections 19, 20, 29, and 30, Township 23 South, Range 62 East, Mount Diablo Meridian, Nevada, under Group No. 809, was accepted July 10, 2003.
This plat was prepared to meet certain administrative needs of the Bureau of Land Management.
2. The Plat of Survey of the following described lands were officially filed at the Nevada State Office, Reno, Nevada, on September 5, 2003:
The plat, representing the dependent resurvey of a portion of the subdivisional lines, the subdivision of section 6, and a metes-and-bounds survey in section 6, Township 18 North, Range 29 East, Mount Diablo Meridian, Nevada, under Group No. 813, was accepted September 4, 2003.
This survey was executed to meet certain administrative needs of the Bureau of Reclamation.
3. The Supplemental Plat of the following described lands was officially
The supplemental plat, showing a subdivision of lot 4, section 30, Township 14 North, Range 71 East, Mount Diablo Meridian, Nevada, was accepted September 9, 2003.
This supplemental plat was prepared to meet certain administrative needs of the Bureau of Land Management.
4. The above-listed surveys are now the basic record for describing the lands for all authorized purposes. These surveys have been placed in the open files in the BLM Nevada State Office and are available to the public as a matter of information. Copies of the surveys and related field notes may be furnished to the public upon payment of the appropriate fees.
Office of the Special Trustee for American Indians, Interior.
Notice of reopening of comment period.
Notice is hereby given that the period during which the Office of the Special Trustee for American Indians (OST) will accept written comments concerning potential issues related to participation by OST in the Department of the Interior plan to consolidate agency appraisal functions, has been reopened to be effective from the date of this publication in the
On June 19, 2003, Secretary of the Interior Gale Norton announced that real estate appraisal functions currently performed by various agencies within the Department would be consolidated into a single office. This action is taken in response to concerns about the objectivity and management of appraisal functions carried out by several agencies within the Department, and documented in reports issued by the Department's Inspector General, the General Accounting Office and other groups.
The goals of a consolidated appraisal organization include: To restore public and consumer confidence in land valuations; to ensure greater appraiser independence for unbiased valuation services that meet the highest professional standards; and a sharing of skills and resources throughout the Department. In addition, the consolidation is expected to provide better coordination and consistency of appraisal guidance, enhanced professional development of appraisers, and greater efficiencies in contract monitoring and development.
Since July 2003, OST has participated in the Departmental action team composed of appraisal and realty specialists from affected offices within the Department. The action team has been meeting to determine the best way to accomplish the consolidation, with as minimal disruption to appraisal services as possible. Participation on this action team, and additional discussions with the Department, indicate that it would be in the best interest of the OST appraisal program to join this consolidation. Specific issues unique to the appraisal of Indian trust assets as conducted by the OST Office of Appraisal Services, and by self-governance and self-determination tribes, however, require special consideration. OST held four tribal consultation sessions to discuss these issues. Two meetings were held on September 24, 2003 in Tulsa, Oklahoma, and two meetings were held on October 28, 2003 in Las Vegas, Nevada. In response to requests for additional time to submit written comments on the proposal to OST, the comment period has been reopened from the date of publication to December 1, 2003.
All comments are due by December 1, 2003.
Send or hand-deliver written comments to: Carrie Moore, Office of the Special Trustee for American Indians, 1849 C Street, NW., Suite 5140, Washington, DC 20240. Submissions by facsimile should be sent to (202) 208-7545.
Carrie Moore at (202) 208-4866 or Pat Gerard at (505) 816-1313.
The purpose of the consultation is to provide Indian tribes and other interested parties with the opportunity to comment on issues relevant to OST participation in the Department of the Interior consolidation of agency appraisal programs.
Individual respondents may request confidentiality. If you wish us to withhold your name, street address, and other contact information (such as fax or phone number) from public review or from disclosure under the Freedom of Information Act, you must state this prominently at the beginning of your comment. We will honor your request to the extent allowable by law. We will make available for public inspection in their entirety all submissions from organizations or businesses, and from individuals identifying themselves as representatives or officials of organizations or businesses.
This notice is published in accordance with the authority delegated by the Secretary of the Interior to the Special Trustee for American Indians by 209 DM 11.
National Aeronautics and Space Administration.
Notice of meeting.
In accordance with the Federal Advisory Committee Act, Public Law 92-463, as amended, the National Aeronautics and Space Administration announces a meeting of the NASA Advisory Council, Biological and Physical Research Advisory Committee.
Monday, December 8, 2003, from 10 a.m. until 5 p.m.
Holiday Inn Washington Capitol, 550 C Street SW., Washington, DC 20024.
Dr. Bradley Carpenter, Code UG, National Aeronautics and Space Administration, Washington, DC 20546, (202) 358-0826.
The meeting will be open to the public up to the seating capability of the meeting room.
The agenda for the meeting is as follows:
It is imperative that the meeting be held on this date to accommodate the scheduling priorities of the key participants. Visitors will be requested to sign a visitor's register.
Notice of public hearing.
The National Commission on Terrorist Attacks Upon the United States will hold its fifth public hearing on November 19, 2003, at Drew University in Madison, NJ. Witnesses will speak about issues related to “Private/Public Sector Partnerships for Emergency Preparedness.” Representatives of the media should register in advance of the hearing by visiting the Commission's Web site at
November 19, 2003, 10 a.m. to 5 p.m. Press availability to follow.
Baldwin Gymnasium, Drew University, 36 Madison Ave, Madison, NJ, 07940.
Al Felzenberg, (202) 401-1725 (office) or (202) 236-4878 (cellular).
Please refer to Public Law 107-306 (November 27, 2002), title VI (Legislation creating the Commission), and the Commission's Web site:
Institute of Museum and Library Services.
Notice of Requests for Information Collection, Submission for OMB Review.
The Institute of Museum and Library Services announces the following information collection has been submitted to the Office of Management and Budget 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 the proposed forms may be obtained by calling the Institute of Museum and Library Services, Director of Research and Technology, Rebecca Danvers at (202) 606-2478. Individuals who use a telecommunications device for the deaf (TTY/TDD) may call (202) 606-8636.
Comments must be received by December 17, 2003. 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,
For a copy of the form contact: Rebecca Danvers, Director of Research and Technology, Institute of Museum and Library Services, 1100 Pennsylvania Ave., NW., Room 223, Washington, DC 20506.
The Institute of Museum and Library Services is an independent Federal grant-making agency authorized by the Museum and Library Services Act, Public Law 104-208. The IMLS provides a variety of grant programs to assist the nation's museums and libraries in improving their operations and enhancing their services to public. Museums and libraries of all sizes and types may receive support from IMLS programs.
Pub. L. 104-208 enacted on September 30, 1996 contains the Library Services and Technology Act and the Museum Services Act.
Pub. L. 104-208 authorizes the Director of the Institute of Museum and Library Services to make grants to States, and to Indian tribes and to organizations that primarily serve and represent Native Hawaiians to—
(1) Consolidate Federal library service programs;
(2) stimulate excellence and promote access to learning and information resources in all types of libraries for individuals of all ages;
(3) promote library services that provide all users access to information through State, regional, national and international electronic networks;
(4) provide linkages among and between libraries;
(5) promote targeted library services to people of diverse geographic, cultural, and socioeconomic backgrounds, to individuals with disabilities, and to people with limited functional literacy or information skills.
Pub. L. 104-208 also provides authority for the Director to make grants, and to enter into contracts and cooperative agreements for activities that may include:
(1) Education and training of persons in library and information science, particularly in ares of new technology and other critical needs, including graduate fellowships, traineeships, institutes and other programs.
(2) research and demonstration projects related to the improvement of libraries, education in library and information science, enhancement of library services through effective and efficient use of new technologies, and dissemination of information derived from such projects;
(3) preserving or digitization of library materials and resources, giving priority to projects emphasizing coordination, avoidance of duplication, and access by researchers beyond the institution of library entity undertaking the project; and
(4) model programs demonstrating cooperative efforts between libraries and museums.
Pub. L. 104-208 also provides authority for the Director to make grants to museums for activities such as—
(1) Programs that enable museums to construct or install displays,
(2) assisting museums in developing and maintain professionally trained or otherwise experienced staff to meet the needs of the museums;
(3) assisting museums in meeting the administrative costs of preserving and maintaining the collections of the museums, exhibiting the collections to the public, and providing educational programs to the public through the use of the collections;
(4) assisting museums in cooperating with each other in developing traveling exhibitions, meeting transportation costs, and identifying and locating collections available for loan;
(5) assisting museums in the conservation of their collections;
(6) developing and carrying out specialized programs for specific segments of the public, such as programs for urban neighborhoods, rural areas, Indian reservations, and penal and other State institutions; and
(7) model programs demonstrating cooperative efforts between libraries and museums.
The Director is also authorized to enter into contracts and cooperative agreements with appropriate entities to strengthen museum services.
To administer these programs of grants, cooperative agreements and contracts, IMLS must develop application guidelines, reports and customer service surveys.
Comments should be sent to the Office of Information and Regulatory Affairs, Attn.: OMB Desk Officer for Education, Office of Management and Budget, Room 10235, Washington, DC 20503, (202) 395-7316.
Cannon Express, Inc., a Delaware corporation (“Issuer”), has filed an application with the Securities and Exchange Commission (“Commission”), pursuant to Section 12(d) of the Securities Exchange Act of 1934 (“Act”)
The Issuer states that it wishes to withdraw its Security from listing and registration on the Amex because the Company is no longer eligible for continued listing on the Amex. The Issuer's management states that the Issuer would not be in a position to file its Form 10-K and Form 10-Q before the deadline required by the Amex and that it is in the Issuer's best interest to commence a voluntary delisting from the Amex.
The Issuer stated in its application that it has met the requirements of Amex Rule l8 by complying with all applicable laws in the State of Delaware, in which it is incorporated, and with the Amex's rules governing an issuer's voluntary withdrawal of a security from listing and registration.
The Issuer's application relates solely to the withdrawal of the Securities from listing on the Amex and from registration under Section 12(b) of the Act
Any interested person may, on or before December 2, 2003, submit by letter to the Secretary of the Securities and Exchange Commission, 450 Fifth Street, NW., Washington, DC 20549-0609, facts bearing upon whether the application has been made in accordance with the rules of the Amex and what terms, if any, should be imposed by the Commission for the protection of investors. The Commission, based on the information submitted to it, will issue an order granting the application after the date mentioned above, unless the Commission determines to order a hearing on the matter.
For the Commission, by the Division of Market Regulation, pursuant to delegated authority.
Securities and Exchange Commission (“Commission”).
Notice of an application for an order under sections 6(c), 12(d)(1)(J), and 17(b) of the Investment Company Act of 1940 (the “Act”) for an exemption from sections 12(d)(1)(A) and (B) and 17(a) of the Act, and under section 17(d) of the Act and rule 17d-1 under the Act to permit certain joint transactions.
Secretary, Commission, 450 Fifth Street, NW., Washington, DC 20549-0609; Applicants, 2500 Westchester Avenue, Suite 109, Purchase, NY 10577.
John Yoder, Attorney-Adviser, at (202) 942-0544 or Mary Kay Frech, Branch Chief at (202) 942-0564, (Division of Investment Management, Office of Investment Company Regulation).
The following is a summary of the application. The complete application may be obtained for a fee at the Commission's Public Reference Branch, 450 Fifth Street, NW., Washington, DC 20549-0102 (telephone: (202) 942-8090).
1. Each Investment Company is organized as a Delaware business trust and is registered under the Act as an open-end management investment company. The Investment Companies have one or more series, each with separate investment objectives and policies. Alpine Woods Growth Values, L.P. and Alpine Woods Growth Values Financial Equities, L.P. are Delaware limited partnerships excluded from the definition of investment company under the Act pursuant to section 3(c)(1) or 3(c)(7) of the Act. Alpine Management is a Delaware limited liability company registered under the Investment Advisers Act of 1940 (“Advisers Act”) and serves as investment adviser to each series of the Investment Companies. Saxon Woods is a Delaware limited liability company registered under the Advisers Act and serves as sub-adviser to a series of Alpine Series Trust and as investment manager for Alpine Woods Growth Values, L.P. and Alpine Woods Growth Values Financial Equities, L.P. (Alpine Management and Saxon Woods or any entity controlling, controlled by, or under common control with Alpine Management or Saxon Woods, collectively, the “Advisers”).
2. Applicants state that certain Funds and Private Funds (the “Investing Funds”) have, or may be expected to have, uninvested cash (“Uninvested Cash”) in an account held by a custodian. Uninvested Cash may result from a variety of sources, including dividends or interest received on portfolio securities, unsettled securities transactions, reserves held for investment strategy purposes, scheduled maturity of investments, liquidation of investment securities to meet anticipated redemptions, dividend payments, or new monies received from investors.
3. Applicants request an order to permit each of the Investing Funds to invest its Uninvested Cash in shares of one or more Funds that are money market funds and comply with rule 2a-7 under the Act (“Money Market Funds”), and to permit the Money Market Funds to sell shares to, and redeem such shares from, the Investing Funds, and the Advisers to effect such purchases and sales. All existing and future Funds that invest their Uninvested Cash in the Money Market Funds are referred to as “Registered Investing Funds,” and the Private Funds that invest in the Money Market Funds are referred to as the “Non-Registered Investing Funds.” Investment of Uninvested Cash in shares of the Money Market Funds will be made only to the extent that such investments are consistent with each Registered Investing Fund's investment objectives, restrictions, and policies as set forth in its prospectus and statement of additional information. Applicants believe that the proposed transactions may reduce transaction costs, create more liquidity, increase returns, and diversify holdings.
1. Section 12(d)(1)(A) of the Act provides that no investment company may acquire securities of a registered investment company if such securities represent more than 3% of the acquired company's outstanding voting stock, more than 5% of the acquiring company's total assets, or if such securities, together with the securities of other acquired investment companies, represent more than 10% of the acquiring company's assets. Section 12(d)(1)(B) of the Act provides that no registered open-end investment company may sell its securities to another investment company if the sale will cause the acquiring company to own more than 3% of the acquired company's voting stock, or if the sale will cause more than 10% of the acquired company's voting stock to be owned by investment companies. Any entity that is excluded from the definition of investment company under section 3(c)(1) or 3(c)(7) of the Act is deemed to be an investment company for the purposes of the 3% limitation specified in sections 12(d)(1)(A) and (B) with respect to purchases by and sales to such company.
2. Section 12(d)(1)(J) of the Act provides that the Commission may exempt any person, security, or transaction from any provision of section 12(d)(1) if and to the extent that such exemption is consistent with the public interest and the protection of investors. Applicants request relief under section 12(d)(1)(J) to permit the Investing Funds to use their Uninvested Cash to acquire shares of the Money Market Funds in excess of the percentage limitations in section 12(d)(1)(A), provided, however, that in all cases a Registered Investing Fund's aggregate investment of Uninvested Cash in shares of the Money Market Funds will not exceed 25% of the Registered Investing Fund's total assets at any time. Applicants also request relief to permit the Money Market Funds to sell their securities to the Investing Funds in excess of the percentage limitations in section 12(d)(1)(B).
3. Applicants state that the proposed arrangement will not result in the abuses that sections 12(d)(1)(A) and (B) were intended to prevent. Applicants state that there is no threat of redemption to gain undue influence over the Money Market Funds due to the highly liquid nature of each Money Market Fund's portfolio. Applicants state that the proposed arrangement will not result in inappropriate layering of fees. Shares of the Money Market Funds sold to the Investing Funds will not be subject to a sales load, redemption fee, distribution fee under a plan adopted in accordance with rule 12b-1 under the Act or service fee (as defined in NASD
4. Section 17(a) of the Act makes it unlawful for any affiliated person of a registered investment company, acting as principal, to sell or purchase any security to or from the investment company. Section 2(a)(3) of the Act defines an affiliated person of an investment company to include any person directly or indirectly owning, controlling, or holding with power to vote 5% or more of the outstanding voting securities of the other person, any person 5% or more of whose outstanding securities are directly or indirectly owned, controlled, or held with power to vote by the other person, any person directly or indirectly controlling, controlled by, or under common control with the other person, and any investment adviser to the investment company. Because each Fund shares a common investment adviser, they may be deemed to be under common control and thus affiliated persons of each other. In addition, if a Registered Investing Fund purchases more than 5% of the voting securities of a Money Market Fund, the Money Market Fund and the Registered Investing Fund may be affiliated persons of each other. As a result, section 17(a) would prohibit the sale of the shares of Money Market Funds to the Investing Funds, and the redemption of the shares by the Investing Funds.
5. Section 17(b) of the Act authorizes the Commission to exempt a transaction from section 17(a) of the Act if the terms of the proposed transaction, including the consideration to be paid or received, are reasonable and fair and do not involve overreaching on the part of any person concerned, and the proposed transaction is consistent with the policy of each registered investment company concerned and with the general purposes of the Act. Section 6(c) of the Act permits the Commission to exempt persons or transactions from any provision of the Act, if the 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 Act.
6. Applicants submit that their request for relief to permit the purchase and redemption of shares of the Money Market Funds by the Investing Funds satisfies the standards in sections 6(c) and 17(b) of the Act. Applicants note that shares of the Money Market Funds will be purchased and redeemed at their net asset value, the same consideration paid and received for these shares by any other shareholder. Applicants state that the Registered Investing Funds will retain their ability to invest Uninvested Cash directly in money market instruments as authorized by their respective investment objectives and policies. Applicants state that a Money Market Fund has the right to discontinue selling shares to any of the Investing Funds if the Money Market Fund's Board determines that such sale would adversely affect the Money Market Fund's portfolio management and operations.
7. Section 17(d) of the Act and rule 17d-1 under the Act prohibit an affiliated person of a registered investment company, acting as principal, from participating in or effecting any transaction in connection with any joint enterprise or joint arrangement in which the investment company participates, unless the Commission has approved the joint arrangement. Applicants state that the Investing Funds and the Money Market Funds, by participating in the proposed transactions, and the Advisers, by managing the proposed transactions, could be deemed to be participating in a joint arrangement within the meaning of section 17(d) and rule 17d-1.
8. In considering whether to approve a joint transaction under rule 17d-1, the Commission considers whether the investment company's participation in the joint transaction is consistent with the provisions, policies and purposes of the Act, and the extent to which the participation is on a basis different from or less advantageous than that of other participants. Applicants state that the investment by the Investing Funds in shares of the Money Market Funds would be on the same basis and no different from or less advantageous than that of other participants. Applicants submit that the proposed transactions meet the standards for an order under rule 17d-1.
Applicants agree that any order granting the requested relief will be subject to the following conditions:
1. Shares of the Money Market Funds sold to and redeemed from the Investing Funds will not be subject to a sales load, redemption fee, distribution fee under a plan adopted in accordance with rule 12b-1, or service fee (as defined in rule 2830(b)(9) of the Rules of Conduct of the NASD) or, if such shares are subject to any such sales load, redemption fee, distribution fee or service fee, an Adviser will waive its advisory fee for each Investing Fund in an amount that offsets the amount of such fees incurred by the Investing Fund.
2. Before the next meeting of the Board of a Registered Investing Fund is held for purposes of voting on an advisory contract under section 15 of the Act, the Adviser to the Registered Investing Fund will provide the Board with specific information regarding the approximate cost to the Adviser of, or portion of the advisory fee under the existing advisory contract attributable to, managing the Uninvested Cash of the Registered Investing Fund that can be expected to be invested in the Money Market Funds. Before approving any advisory contract for a Registered Investing Fund, the Board of the Registered Investing Fund, including a majority of the Disinterested Trustees, shall consider to what extent, if any, the advisory fees charged to the Registered Investing Fund by the Adviser should be reduced to account for reduced services provided to the Registered Investing Fund by the Adviser as a result of Uninvested Cash being invested in the Money Market Funds. The minute books of the Registered Investing Fund will record fully the Board's considerations in approving the advisory contract, including the considerations relating to fees referred to above.
3. Each of the Registered Investing Funds will invest Uninvested Cash in,
4. Investment by a Registered Investing Fund in shares of the Money Market Funds will be in accordance with each Registered Investing Fund's respective investment restrictions and will be consistent with each Registered Investing Fund's policies as set forth in its prospectus and statement of additional information.
5. Each Registered Investing Fund and each Money Market Fund relying on the order will be advised by an Adviser. A Registered Investing Fund that is subadvised, but not advised, by an Adviser may rely on the order provided that the Adviser manages the Uninvested Cash and the Registered Investing Fund is in the same group of investment companies (as defined in 12(d)(1)(G) of the Act) as the Money Market Fund in which the Registered Investing Fund invests its Uninvested Cash. Each Non-Registered Investing Fund will be advised by an Adviser or have an Adviser as its general partner exercising investment discretion.
6. So long as its shares are held by an Investing Fund no Money Market Fund shall acquire securities of any other investment company in excess of the limits contained in section 12(d)(1)(A) of the Act.
For the Commission, by the Division of Investment Management, under delegated authority.
Pursuant to section 107(b) of the Sarbanes-Oxley Act of 2002 (the “Act”), notice is hereby given that on October 1, 2003, the Public Company Accounting Oversight Board (the “Board” or the “PCAOB”) filed with the Securities and Exchange Commission (the “SEC” or “Commission”) the proposed rules described in Items I and II below, which items have been prepared by the Board.
On September 29, 2003, the Board adopted rules on investigations and adjudications (the “Enforcement Rules”). The current proposal is limited to a subset of the Enforcement Rules. The subset consists of certain rules that would govern hearings that the Board may hold concerning possible disapproval of applications for registration. As to the subset (the “Temporary Hearing Rules”), the Board requests that the Commission grant accelerated effectiveness, pursuant to section 19(b)(2) of the Securities Exchange Act of 1934 (“Exchange Act”). The Board seeks accelerated effectiveness of the Temporary Hearing Rules to facilitate any registration disapproval hearings that may be necessary before the Enforcement Rules are approved. The Board requests that effectiveness only on a temporary basis. The Temporary Hearing Rules would be superseded by any Enforcement Rules approved by the Commission, upon final Commission approval of those rules. The Temporary Hearing Rules include 41 rules and nine definitions, all of which are designated as temporary by appending a “T” to the rule number. The text of the Temporary Hearing Rules is set forth below.
When used in the Rules, unless the context otherwise requires—
In computing any period of time prescribed in or allowed by these Rules or by order of the Board, the day of the act, event, or default from which the designated period of time begins to run shall not be included. The last day of the period so computed shall be included unless it is a Saturday, Sunday, or federal legal holiday, in which event the period runs until the end of the next day that is not a Saturday, Sunday, or federal legal holiday. Intermediate Saturdays, Sundays, and federal legal holidays shall be excluded from the computation when the period of time prescribed or allowed is seven days or less, not including any additional time allowed by rule or order for service by mail. If on the day a filing is to be made, weather or other conditions have caused the Secretary's office or other designated filing location to close, the filing deadline shall be extended to the end of the next day that is neither a Saturday, a Sunday, nor a federal legal holiday.
The Secretary will maintain a list of federal legal holidays.
As soon as practicable after the Board has issued an order instituting proceedings, or after a registration applicant has requested a hearing pursuant to Rule 5500(b), the Secretary shall assign a hearing officer to preside over the proceeding and shall serve the parties with notice of the hearing officer's assignment. Subject to Rules 5402 and 5403, the hearing officer shall have the authority to do all things necessary and appropriate to discharge his or her duties. The powers of the hearing officer include, but are not limited to, the following—
(1) Obtaining a court reporter to administer oaths and affirmations;
(2) Issuing accounting board demands pursuant to Rule 5424;
(3) Receiving relevant evidence and ruling upon the admission of evidence and offers of proof;
(4) Regulating the course of a proceeding and the conduct of the parties and their counsel;
(5) Holding prehearing and other conferences and requiring the attendance at any such conference of at least one representative of each party who has authority to negotiate concerning the resolution of issues in controversy;
(6) Recusing himself or herself upon motion made by a party or upon his or her own motion;
(7) Ordering, in his or her discretion, in a proceeding involving more than one respondent, that the interested division indicate, on the record, at least one day prior to the presentation of any evidence, each respondent against whom that evidence will be offered;
(8) Subject to any limitations set forth elsewhere in these Rules, considering and ruling upon all procedural and other motions;
(9) Preparing an initial decision as provided in Rule 5204;
(10) Upon notice to all parties, reopening any hearing prior to the filing of an initial decision therein, or, if no initial decision is to be filed, prior to the time fixed for the filing of final briefs with the Board;
(11) Informing the parties as to the availability of one or more alternative means of dispute resolution, and encouraging the use of such methods; and
(12) Scheduling hearing dates, except that a hearing officer may not, absent the approval of the Board, change a hearing date set by Board order.
The staff of the Division of Enforcement and Investigations may not participate or advise in the decision, or in Board review of the decision, in any proceeding in which the Division of Enforcement and Investigations is the interested division, except as a witness or counsel in the proceeding. Any other employee or agent of the Board engaged in the performance of investigative or prosecutorial functions for the Board in a proceeding may not, in that proceeding or one that is factually related, participate or advise in the decision, or in Board review of the decision, except as a witness or counsel in the proceeding. A hearing officer may not be responsible to or subject to the supervision or direction of an employee or agent engaged in the performance of investigative or prosecuting functions for the Board.
By order of the Board or a hearing officer, proceedings involving a common question of law or fact may be consolidated for hearing of any or all the matters at issue in such proceedings. The Board or the hearing officer may make such orders concerning the conduct of such proceedings as it deems appropriate to avoid unnecessary cost or delay. Consolidation shall not prejudice any rights under these Rules and shall not affect the right of any party to raise issues that could have been raised if consolidation had not occurred. For purposes of this Rule, no distinction is made between joinder and consolidation of proceedings.
In the case of a proceeding pursuant to Rule 5500, the notice of a hearing shall state proposed grounds for disapproving the registration application.
A hearing record shall consist of—
(i) The order instituting proceedings, each notice of hearing and any amendments;
(ii) Each application, supplemental application, motion, submission or other paper, and any amendments, motions, objections, and exceptions to or regarding them;
(iii) Each stipulation, transcript of testimony and document or other information admitted into evidence;
(iv) Each written communication accepted by the hearing officer pursuant to Rule 5420;
(v) With respect to a request to disqualify a hearing officer or to allow the hearing officer's withdrawal pursuant to Rule 5402, each affidavit or transcript of testimony taken and the decision made in connection with the request;
(vi) All motions, briefs and other papers filed on interlocutory appeal;
(vii) Any proposed findings and conclusions;
(viii) Each written order or notice issued by the hearing officer or the Board; and
(ix) Any other document or item accepted into the record by the Board or the hearing officer.
The record on a disapproval of an application with respect to which the applicant has elected to waive its opportunity for a hearing pursuant to Rule 5500 shall consist of—
(i) The application for registration, and any supplemented application;
(ii) Any additional information provided by the applicant;
(iii) Any other information obtained by the Board in connection with the application;
(iv) The notice of a hearing and any written order issued by the Board; and
(v) Any other document or item accepted into the record by the Board.
Any document offered in evidence but excluded, and any document marked for identification but not offered as an exhibit, shall not be considered a part of the record. The Secretary shall retain any documents offered in evidence but excluded until all opportunities for Commission and judicial review have been exhausted or waived.
A true copy of a document may be substituted for any document in the record or any document retained pursuant to paragraph (b) of this Rule.
Promptly after the close of a hearing, the hearing officer shall transmit to the Secretary an index of any motions, exhibits or any other documents submitted to, or accepted into evidence by, the hearing officer that have not been previously transmitted to the Secretary, and the Secretary shall prepare a record index. Prior to issuance of an initial decision, the Secretary shall transmit the record index to the hearing officer and serve a copy of the record index on each party. Any party may file proposed corrections to the record index with the hearing officer within 15 days of service of the record index. The hearing officer shall, by order, direct whether any corrections to the record index shall be made. The Secretary shall make such corrections, if any, and issue a revised record index. The initial decision shall include a certification that the record consists of the items set forth in the record index or revised record index issued by the Secretary.
After the close of a hearing, the hearing officer shall transmit to the Secretary originals of exhibits or any other documents submitted to, or accepted into evidence by, the hearing officer, and any other portions of the record that have not already been transmitted to the Secretary. Prior to service of the initial decision by the Secretary, the Secretary shall inform the hearing officer if any portions of the record are not in the Secretary's custody.
No hearing shall be public unless ordered by the Board. In any proceeding commenced pursuant to Rule 5200(a), the Board shall not order that a hearing be public except for good cause shown and with consent of the parties.
Unless the Board directs otherwise, a hearing officer shall prepare an initial decision in any proceeding in which the Board directs a hearing officer to preside at a hearing. An initial decision shall include findings and conclusions, including sanctions, if appropriate, and the reasons or basis therefor, as to all the material issues of fact, law or discretion presented on the record and such other information as the Board may require.
Unless the Board has directed otherwise, the Board expects hearing officers in proceedings pursuant to Rule 5500 to prepare initial decisions within 45 days after the deadline for filing post-hearing briefs or other submissions.
The hearing officer shall file the initial decision with the Secretary. The Secretary shall promptly serve the initial decision upon the parties. In a public proceeding, the Secretary shall as soon as practicable thereafter publish the initial decision, unless the Board otherwise directs.
(1) An initial decision as to a party shall become the final decision of the Board as to that party upon issuance of a notice of finality by the Secretary.
(2) Subject to subparagraph (3) of this paragraph, the Secretary shall issue a notice of finality no later than 20 days after the lapsing of the time period for filing a petition for review of the initial decision.
(3) The Secretary shall not issue a notice of finality as to any party
(i) Who has filed a timely petition for review; or
(ii) with respect to whom the Board has ordered review of the initial decision pursuant to Rule 5460(b).
Any firm or person who is notified that a proceeding may or will be instituted against him or her, or any firm or person that is a party to a proceeding already instituted, may, at any time, propose in writing an offer of settlement.
An offer of settlement shall state that it is made pursuant to this Rule; shall recite or incorporate as a part of the offer the provisions of paragraphs (c)(2) and (3) of this Rule; shall be signed by the person making the offer, not by counsel; and shall be submitted to the Director of Enforcement and Investigations.
(1) The Director of Enforcement and Investigations shall present an offer of settlement to the Board with his or her recommendation, except that, if the recommendation is unfavorable, the offer shall not be presented to the Board unless the person making the offer so requests.
(2) By submitting an offer of settlement, the person making the offer waives, subject to acceptance of the offer—
(i) All hearings pursuant to the statutory provisions under which the proceeding is to be or has been instituted;
(ii) the filing of post-hearing briefs or other submissions, proposed findings of fact and conclusions of law;
(iii) proceedings before, and an initial decision by, a hearing officer;
(iv) all post-hearing procedures; and
(v) judicial review by any court.
(3) By submitting an offer of settlement the person further waives—
(i) such provisions of the Rules of Board Procedure or other requirements of law as may be construed to prevent any member of the Board's staff from participating in the preparation of, or advising the Board as to, any order, opinion, finding of fact, or conclusion of law to be entered pursuant to the offer; and
(ii) any right to claim bias or prejudgment by the Board based on the consideration of or discussions concerning settlement of all or any part of the proceeding.
(4) If the Board rejects the offer of settlement, the person making the offer shall be notified of the Board's action and the offer of settlement shall be deemed withdrawn. The rejected offer shall not constitute a part of the record in any proceeding against the person making the offer. Rejection of an offer of settlement does not affect the continued validity of waivers pursuant to paragraph (c)(3) of this Rule with respect to any discussions concerning the rejected offer of settlement.
(5) Final acceptance of any offer of settlement will occur only upon the issuance of findings and an order by the Board.
In a hearing on disapproval of registration, an offer of settlement will be considered and handled by the Director of Registration and Inspections in accordance with Rule 5206 as if the Director of Registration and Inspections were the Director of Enforcement and Investigations.
Hearings for the purpose of taking evidence shall be held only upon order
A person shall not be represented before the Board or a hearing officer except as stated in paragraphs (a) or (b) of this Rule or as otherwise permitted by the Board or a hearing officer.
In any proceeding, an individual may appear on his or her own behalf.
In any proceeding, a person may be represented by counsel; a member of a partnership may represent the partnership; a bona fide officer of a corporation, trust or association may represent the corporation, trust or association.
When an individual first makes any filing or otherwise appears on his or her own behalf before the Board or a hearing officer, he or she shall file with the Secretary both an electronic and a mailing address at which any notice or other written communication required to be served upon him or her or furnished to him or her may be sent and a telephone number where he or she may be reached during business hours, and the individual shall promptly advise the Secretary of changes to that information during the course of the proceeding.
When a person first makes any filing or otherwise appears in a representative capacity before the Board or a hearing officer, that person shall file with the Secretary, and keep current, a written notice stating the name of the proceeding; the representative's name, mailing address, electronic address and telephone number; and the name and electronic and mailing addresses of the person or persons represented; and, if the person is an attorney, a declaration that the attorney is admitted to practice before the Supreme Court of the United States or the highest court of any state, as defined in Section 3(a)(16) of the Exchange Act.
Any individual appearing or practicing before the Board in a representative capacity may be required to file a power of attorney with the Board showing his or her authority to act in such capacity.
Withdrawal by any individual appearing in a representative capacity shall be permitted only by order of the Board or the hearing officer. A motion seeking leave to withdraw shall state with specificity the reasons for such withdrawal. Leave to withdraw shall not be withheld absent good cause.
A party who has a reasonable, good faith basis to believe that a hearing officer has a conflict of interest or personal bias, or circumstances otherwise exist such that the hearing officer's fairness may reasonably be questioned, may make a motion to the hearing officer that the hearing officer withdraw, which shall be filed with the Secretary. The motion shall be accompanied by an affidavit setting forth in detail the facts alleged to constitute grounds for disqualification. If the hearing officer finds himself or herself not disqualified, he or she shall so rule and shall continue to preside over the proceeding. A motion for withdrawal shall be filed within 15 days after the later of—
(1) When the party learned of the facts believed to constitute the basis for the disqualification; or
(2) when the party was notified of the assignment of the hearing officer.
Upon withdrawal of a hearing officer, or in the event that a hearing officer is incapacitated or is otherwise unable to continue to serve after being appointed, the Secretary will appoint a replacement hearing officer. To ensure fairness to the parties and expedite completion of the proceeding when a replacement hearing officer is appointed after a hearing has commenced, the replacement hearing officer may recall any witness or may certify familiarity with any part or all of the record.
Except to the extent permitted for the disposition of ex parte matters as authorized by law or the Board's Rules—
(a) The person presiding over an evidentiary hearing may not consult a person or party on a fact in issue, unless on notice and with opportunity for all parties to participate; and
(b) neither a party, nor any Board staff that substantially assists the interested division on the particular matter, whether before or during the hearing, may—
(1) Communicate with the person presiding over an evidentiary hearing on a fact in issue, unless on notice and opportunity for all parties to participate; or
(2) communicate with the Board or any member of the Board on a fact in issue, unless on notice and opportunity for all parties to participate or under circumstances in which a party excluded from the communication has waived the rights described in Rule 5205(c)(3) with respect to the matters that are the subject of the communication.
In every proceeding, each paper, including each notice of appearance, written motion, brief, or other written communication, shall be served upon each party in a manner calculated to bring the paper to the attention of the party to be served.
All papers required to be served by a party upon any person shall be filed with the Board at the time of service or promptly thereafter. Papers required to be filed with the Board must be received within the time limit, if any, for such filing.
Unless otherwise permitted by the Secretary, filing of papers with the Board shall be made by electronically filing them with the Secretary.
When a document has been filed electronically, the official record is the electronic recording of the document as stored by the Secretary, and the filing party is bound by the document as filed. A document filed electronically is deemed filed at the date received electronically by the Secretary. Upon request, the Secretary may permit regulators granted permission to participate on a limited basis (to request a stay), amici curiae, nonparties and others to file in paper form. Where practicable, the Secretary will scan such a filing into the docket file.
Papers filed in connection with any proceeding shall—
(1) Be formatted in a Portable Document Format on pages measuring 8
To the extent that the reduction of larger documents would render them illegible, the Secretary may consent to the filing of such documents on larger paper, in electronic or paper form.
(2) include at the head of the paper, or on a title page, the name of the Board, the title of the proceeding, the names of the parties, the subject of the particular paper or pleading, and the file number assigned to the proceeding;
(3) be paginated with margins at least 1 inch wide; and
(4) be double-spaced in a 12-point font, with single-spaced footnotes and single-spaced indented quotations.
All briefs containing more than 10 pages shall include a table of contents, an alphabetized table of cases, a table of statutes, and a table of other authorities cited, with references to the pages of the brief wherein they are cited.
Following the issuance of an order instituting proceedings, every filing of a party who represents himself or herself shall sign his or her individual name and state the date and his or her address and telephone number on every filing. A party represented by counsel shall be signed by at least one counsel of record in his or her name and shall state that counsel's business address and telephone number.
If practicable, a party's or an attorney's signature should be scanned into an electronic document. In any event, however, the use of an attorney's electronic mail address, or password for the Board's electronic filing system, shall constitute the signature of that attorney.
Unless made during a hearing or conference, a motion shall be in writing, shall state with particularity the grounds therefor, shall set forth the relief or order sought, and shall be accompanied by a written brief of the points and authorities relied upon. Unless otherwise ordered by the Board or the hearing officer, if a motion is properly made to the Board concerning a proceeding to which a hearing officer is assigned, the proceeding before the hearing officer shall continue pending the determination of the motion by the Board. No oral argument shall be heard on any motion unless the Board or the hearing officer otherwise directs.
Except as provided in Rule 5427, and unless otherwise ordered by the Board or a hearing officer, a brief in opposition to a motion shall be filed within five days after service of the motion. Reply briefs are only permitted with leave of the hearing officer.
Except as provided in Rule 5427, a brief in support of or opposition to a motion shall not exceed 10 pages, exclusive of pages containing any table of contents, table of authorities, and/or addendum. The hearing officer may grant requests for leave to file briefs in excess of 10 pages, upon a showing of good cause.
A party to a proceeding may be deemed to be in default and the Board or the hearing officer may determine the proceeding against that party upon consideration of the record, including the order instituting proceedings or notice of a hearing, the allegations of which may be deemed to be true, if that party fails—
(1) To appear, in person or through a representative, at a hearing or conference of which that party has been notified;
(2) to answer when required to do so by a Board order, to respond to a dispositive motion within the time provided, or otherwise to defend the proceeding; or
(3) to cure a deficient filing within the time specified by the Board or the hearing officer.
A motion to set aside a default shall be made within a reasonable time, state the reasons for the failure to appear or defend, and specify the nature of the proposed defense in the proceeding. In order to prevent injustice and on such conditions as may be appropriate, the hearing officer, at any time prior to the filing of the initial decision, or the Board at any time, may for good cause shown set aside a default.
If service is made by mail, three days shall be added to the prescribed period for response.
Except as otherwise provided by law, the Board, at any time, or the hearing officer, at any time prior to the filing of his or her initial decision, may, for good cause shown, extend or shorten any time limits prescribed by these Rules for the filing of any papers and may, consistent with paragraph (b) of this Rule, postpone or adjourn any hearing.
The Board or the hearing officer may grant leave to participate on a limited basis only to an authorized representative of the Commission, an authorized representative of the United States Department of Justice, an authorized representative of a United States Attorney, an appropriate state regulatory authority, or an authorized representative of any criminal prosecutorial authority of any State or any other political subdivision of a State for the purpose of requesting a stay during the pendency of a Commission investigation or proceeding, a criminal investigation or prosecution, or a state regulatory proceeding, arising out of the same or similar facts that are at issue in the pending Board or disciplinary proceeding. Motions for leave to participate shall be in writing, shall set forth the nature and extent of the movant's interest in the proceeding, and, except where good cause for late filing is shown, shall be filed not later than 20 days prior to the date fixed for the commencement of the hearing. A stay granted pursuant to this Rule may be granted for such a period and upon such conditions as the Board or the hearing officer deems appropriate.
Upon a showing that a stay requested pursuant to this Rule is necessary to protect an ongoing Commission investigation, the motion for the stay shall be granted.
Upon a showing that such a stay is in the public interest or for the protection of investors, the motion for the stay shall be favored.
In its order instituting proceedings, the Board may require any party to file an answer to each of the allegations contained therein. Even if not so ordered, any party in any proceeding may elect to file an answer.
Unless additional time is granted by the hearing officer or the Board, a party filing an answer as provided in
Unless otherwise directed by the hearing officer or the Board, an answer shall specifically admit, deny, or state that the party does not have, and is unable to obtain, sufficient information to admit or deny each allegation in the order instituting proceedings. When a party intends in good faith to deny only a part of an allegation, the party shall specify so much of it as is true and shall deny only the remainder. A statement of a lack of information shall have the effect of a denial. A defense of res judicata, statute of limitations or any other matter constituting an affirmative defense shall be asserted in the answer. Any allegation not denied shall be deemed admitted.
Unless otherwise provided by this Rule, or by order of the Board or the hearing officer, in proceedings pursuant to Rule 5500, the Division of Registration and Inspections shall make available for inspection and copying by the applicant documents obtained by that division in connection with the registration application prior to the notice of hearing, except that the Division need not produce any documents described in subparagraph (b) that it does not intend to introduce as evidence.
(1) The interested division may decline to make available for inspection and copying—
(i) Any document prepared by a member of the Board or of the Board's staff that has not been disclosed to any person other than Board members, Board staff, or persons retained by the Board or Board staff to provide services in connection with the investigation, disciplinary proceeding, or hearing on disapproval of registration;
(ii) any other document that is privileged, including any other document protected by the attorney work product doctrine;
(iii) any document that would disclose the identity of a confidential source; and
(iv) any other document that the staff identifies for the hearing officer's consideration as to whether the document may be withheld as not relevant to the subject matter of the proceeding or otherwise for good cause shown.
(2) Nothing in this paragraph (b), or in paragraph (a)(2) above, authorizes the interested division in connection with a disciplinary proceeding or hearing on disapproval of registration to withhold documents that contain material exculpatory evidence.
(1) The interested division shall, at the time it makes documents available to a respondent under this rule, provide the respondent with a log of documents withheld pursuant to paragraph (b)(1)(ii) of this Rule. The log shall provide the same information that a person would be required to supply to the Board under Rule 5106 in connection with a privilege assertion. On a motion by any respondent, a hearing officer may, in his or her discretion, require the interested division to submit any document listed on the log for inspection by the hearing officer in camera. A hearing officer may order that any such document be made available to a respondent for inspection and copying only if the hearing officer determines that the document is not a document described in paragraph (b)(1)(ii).
(2) The interested division shall, at the time it makes documents available to a respondent under this rule, provide the hearing officer and each respondent with a list of documents withheld pursuant to paragraph (b)(1)(iii) or (b)(1)(iv) of this Rule and a brief description of the reason for withholding each document. The list provided to the respondent may be redacted as necessary to protect interests related to the interested division's reason for withholding the document. The hearing officer may require the interested division to submit any such document for inspection by the hearing officer in camera. The hearing officer may order that any such document be made available to the respondent for inspection and copying only if the hearing officer determines that—
(i) With respect to any document withheld pursuant to paragraph (b)(1)(iii)—
(A) producing the document would not have the effect of identifying a confidential source; or
(B) the document contains material, exculpatory evidence, provided, however, that to the extent such evidence can be disclosed without disclosing the identity of a confidential source, such identity shall not be disclosed.
(ii) with respect to any document withheld pursuant to paragraph (b)(1)(iv)—
(A) the document is relevant to the subject matter of the proceeding and no good cause exists for withholding it; or
(B) the document contains material, exculpatory evidence.
Unless otherwise ordered by the Board or the hearing officer, the interested division shall make documents available for inspection and copying to any respondent who is not in default under Rule 5409 no later than 14 days after the institution of proceedings pursuant to Rule 5500.
Documents subject to inspection and copying pursuant to this Rule shall be made available to a party for inspection and copying at the Board office where they are ordinarily maintained, or at such other place as the parties, in writing, may agree. A party shall not be given custody of the documents or leave to remove the documents from the Board's offices pursuant to the requirements of this Rule other than by written agreement of the interested division. Such agreement shall specify the documents subject to the agreement, the date they shall be returned and such other terms or conditions as are appropriate to provide for the safekeeping of the documents.
A party may obtain a photocopy of any documents made available for inspection. The party shall be responsible for the cost of photocopying. The respondent shall be given access to the documents at the Board's offices or such other place as the parties may agree during normal business hours for copying of documents at the respondent's expense.
In the event that a document required to be made available to a party pursuant to this Rule is not made available by the
The interested division's obligation under this Rule relates to documents obtained by that division. Documents located only in the files of other divisions or offices are beyond the scope of the Rule, except that documents located in the files of other divisions and that the interested division intends to introduce as evidence shall, for purposes of this Rule, be treated as if they have been obtained by the interested division and must therefore be made available under this Rule.
Upon motion by any respondent in a disciplinary proceeding, the hearing officer may order that the interested division produce for inspection and copying any statement of any person called or to be called as a witness by the division that pertains, or is expected to pertain, to his or her direct testimony and that would be required to be produced pursuant to the Jencks Act, 18 U.S.C. 3500, if the Board were a governmental entity. Such production shall be made at a time and place fixed by the hearing officer and shall be made available to any party, provided, however, that the production shall be made under conditions intended to preserve the items to be inspected or copied.
In the event that a statement required to be made available for inspection and copying by a respondent is not turned over by the interested division, no rehearing or redecision of a proceeding already heard or decided shall be required unless the respondent establishes that the failure to turn over the statement was not harmless error.
For purposes of this Rule, the term “statement” shall have the meaning set forth in 18 U.S.C. 3500(e).
In connection with any hearing ordered by the Board, a party may request the issuance of an accounting board demand of a registered public accounting firm or an associated person of such a firm, or an accounting board request of any other person. Such a demand or request may call for the attendance and testimony of a witness at the designated time and place of the hearing or for the production of documentary or other tangible evidence returnable at any designated time or place. Unless made on the record at a hearing, an application for issuance of such a demand or request shall be made in writing and served on each party. A party whose application for such a demand or request has been denied or modified may not submit any other application seeking substantially the same testimony or other evidence specified in the denied application or excluded from an otherwise granted application.
In the event that the hearing officer assigned to a proceeding is unavailable, any member of the Board, or other person designated by the Board for this purpose, may grant an application for the issuance of an accounting board demand or request. A party seeking such issuance may submit the application to the Secretary, who shall direct it to a person authorized to grant the request, deny the request, or grant the request with modifications.
A hearing officer may authorize issuance of an accounting board demand, or an accounting board request, and may delegate the manual signing of the demand or request to any other person.
Where it appears that an application for an accounting board demand or request is reasonable in scope and is reasonably calculated to encompass, or lead to the discovery of, admissible evidence, the application shall be granted. If it appears that the accounting board demand or request sought may be unreasonable, oppressive, excessive in scope, unduly burdensome, designed to seek irrelevant information, or sought for the purpose of harassment or delay, the application shall be denied. The hearing officer or other person ruling on the application may, in his or her discretion, as a condition precedent to the issuance of the demand or request, require the party seeking the demand or request to show the general relevance and reasonable scope of the testimony or other evidence sought. After consideration of all the circumstances, the hearing officer or other person ruling on the application may grant the application upon such conditions or with such modifications as fairness requires. In making the determination, the hearing officer or other person ruling on the application may inquire of the parties whether they will stipulate to the facts sought to be proved.
Whenever possible, the parties should explore the extent to which stipulations of fact may obviate the need for issuance of accounting board demands and requests to non-parties, and the hearing officer or other person ruling on an application for issuance of an accounting board demand or request should encourage the parties to reach such stipulations when possible.
A witness, other than a party, who is summoned to a Board proceeding pursuant to an accounting board demand, or an accounting board request, or who is deposed pursuant to Rule 5425, shall be paid his or her reasonable expenses by the party at whose instance the witness appears.
Any party desiring to take the testimony of a witness by deposition shall make a written motion setting forth the reasons why such deposition should be taken including the specific reasons why the party believes the witness will be unable to attend or testify at the hearing; the name and address of the prospective witness; the matters concerning which the prospective witness is expected to be questioned; and the proposed time and place for the taking of the deposition.
Depositions under the Rules of Board Procedure are used only to preserve testimony of a witness who would be unlikely to be able to attend the hearing. They are not permitted for purposes of discovery.
In the discretion of the Board or the hearing officer, an order for deposition may be issued upon a finding that the prospective witness will likely give testimony material to the proceeding, that it is likely the prospective witness will be unable to attend or testify at the hearing because of age, sickness, infirmity, imprisonment or other disability, or otherwise unavailable, and that the taking of a deposition will serve the interests of justice.
A witness whose testimony is taken by deposition shall be sworn or shall affirm before any questions are put to him or her. Examination and cross-examination of deponents may proceed
Objections to questions or evidence shall be in short form, stating the grounds of objection relied upon. Objections to questions or evidence shall be noted in the transcript, but no person other than the hearing officer shall have the power to decide on the competency, materiality or relevance of evidence. Failure to object to questions or evidence during the deposition shall not be deemed a waiver unless the ground of the objection is one that might have been obviated or removed if presented at that time.
The questions propounded and all answers or objections shall be recorded or transcribed verbatim, and a transcript prepared by the deposition officer, or under his or her direction. The transcript shall be subscribed by the witness and certified by the deposition officer. The original deposition and exhibits shall be filed with the Secretary. A copy of the deposition shall be available to the deponent and each party for purchase at prescribed rates.
At a hearing, any person wishing to introduce a prior, sworn statement of a nonparty witness otherwise admissible in the proceeding, in lieu of live testimony may make a motion setting forth the reasons therefor. If only part of a statement is offered in evidence, the hearing officer may require that all relevant portions of the statement be introduced. If all of a statement is offered in evidence, the hearing officer may require that portions not relevant to the proceeding be excluded. A motion to introduce a prior sworn statement in lieu of live testimony may be granted if—
(a) The witness is dead;
(b) the witness is out of the United States, unless it appears that the absence of the witness was procured by the party offering the prior sworn statement;
(c) the witness is unable to attend or testify because of age, sickness, infirmity, imprisonment or other disability;
(d) the party offering the prior sworn statement has been unable to procure the attendance of the witness by accounting board demand; or,
(e) in the discretion of the Board or the hearing officer, it would be desirable, in the interests of justice, to allow the prior sworn statement to be used. In making this determination, due regard shall be given to the presumption that witnesses will testify orally in an open hearing. If the parties have stipulated to accept a prior sworn statement in lieu of live testimony, consideration shall also be given to the convenience of the parties in avoiding unnecessary expense.
All hearings shall be recorded and a written transcript thereof shall be prepared.
Transcripts of public hearings shall be available for purchase at prescribed rates. Transcripts of nonpublic proceedings shall be available for purchase only by parties, provided, however, that any person compelled to testify at a hearing may purchase a copy of that person's own testimony.
Prior to the filing of post-hearing briefs or other submissions, or within such earlier time as directed by the Board or the hearing officer, a party or witness may make a motion to correct the transcript. Proposed corrections of the transcript may be submitted to the hearing officer by stipulation or by motion. Upon notice to all parties to the proceeding, the hearing officer may, by order, specify corrections to the transcript.
The Board or the hearing officer may receive relevant evidence and shall exclude all evidence that is irrelevant, immaterial or unduly repetitious.
Objections to the admission or exclusion of evidence must be made on the record and shall be in short form, stating the grounds relied upon. Exceptions to any ruling thereon by the hearing officer need not be noted at the time of the ruling. Such exceptions will be deemed waived on appeal to the Board, however, unless raised—
(1) pursuant to interlocutory review in accordance with Rule 5461;
(2) in a proposed finding or conclusion filed pursuant to Rule 5445; or
(3) in a petition for Board review of an initial decision filed in accordance with Rule 5460.
Whenever evidence is excluded from the record, the party offering such evidence may make an offer of proof, which shall be included in the record. Excluded material shall be retained pursuant to Rule 5202(b).
A witness at a hearing for the purpose of taking evidence shall testify under oath or affirmation.
In any proceeding, a party may present its case or defense by oral or documentary evidence, submit rebuttal evidence, and conduct such cross-examination as, in the discretion of the Board or the hearing officer, may be required for a full and true disclosure of the facts. The scope and form of evidence, rebuttal evidence, if any, and cross-examination, if any, shall be determined by the Board or the hearing officer in each proceeding.
(a) At the end of the hearing in any proceeding instituted pursuant to Rule 5200(a)(1), Rule 5200(a)(2), or Rule 5500 in which an initial decision is to be issued, the hearing officer shall, by order, after consultation with the parties, prescribe the period within which post-hearing briefs or other submissions are to be filed. Unless the hearing officer, for good cause shown, permits a different period and sets forth in the order the reasons why the different period is necessary—
(i) the party or parties directed to file first shall make its or their initial filing within 30 days of the end of the hearing; and
(ii) the total period within which all such filings and any opposition and reply submissions are to be filed shall be no longer than 90 days after the end of the hearing.
Any party to a hearing may obtain Board review of an initial decision by filing a petition for review that—
(1) sets forth specific findings and conclusions of the initial decision as to which exception is taken, together with the supporting reasons for each exception; and
(2) is filed, in a proceeding instituted pursuant to Rule 5500, within 30 days after service of the initial decision on the petitioner or within 10 days after the filing of a petition for review by another party, whichever is later.
The Board may, on its own initiative, order review of any initial decision, or a portion of any initial decision, at any time before the initial decision becomes final pursuant to Rule 5204(d).
Based on a petition for review, or on its own initiative, the Board may affirm, reverse, modify, set aside or remand for further proceedings, in whole or in part, an initial decision by a hearing officer and may make any findings or conclusions that in its judgment are proper based on the record.
Review by the Board of an initial decision shall be limited to the issues specified in the petition for review or the issues, if any, specified in the briefing schedule order issued pursuant to Rule 5462(a). On notice to all parties, however, the Board may, at any time prior to issuance of its decision, raise and determine any other matters that it deems material, with opportunity for oral or written argument thereon by the parties.
The Board may summarily affirm an initial decision based upon the petition for review and any response thereto, without further briefing, if it finds that no issue raised in the petition for review warrants further consideration by the Board.
The Board will not review a hearing officer's ruling prior to its consideration of the entire proceeding in the absence of extraordinary circumstances. The Board may decline to consider a ruling certified by a hearing officer pursuant to paragraph (c) of this Rule if it determines that interlocutory review is not warranted or appropriate under the circumstances. The Board may, at any time, on its own motion, direct that any matter be submitted to it for review.
A ruling submitted to the Board for interlocutory review shall be certified in writing by the hearing officer as appropriate for interlocutory review and shall specify the basis for certification. The hearing officer shall certify a ruling only if—
(1) The ruling would compel testimony of Board members, officers or employees or the production of documentary evidence in their custody; or
(2) upon application by a party, within five days of the hearing officer's ruling, the hearing officer is of the opinion that—
(i) the ruling involves a controlling question of law as to which there is substantial ground for difference of opinion; and
(ii) an immediate review of the order may materially advance the completion of the proceeding.
The filing of an application for interlocutory review or the grant of interlocutory review shall not stay proceedings before the hearing officer unless he or she, or the Board, shall so order. The Board will not consider the motion for a stay unless the motion has first been made to the hearing officer.
Upon a timely and valid petition for review, or upon its own timely motion to review an initial decision, other than review ordered pursuant to Rule 5469, the Board shall issue a briefing schedule order directing the parties to file opening briefs and specifying particular issues, if any, as to which briefing should be limited or directed. Unless otherwise provided, opening briefs shall be filed within 40 days of the date of the briefing schedule order. Opposition briefs shall be filed within 30 days after the date opening briefs are due. Reply briefs may be filed within 14 days after the date opposition briefs are due. No briefs in addition to those specified in the briefing schedule order may be filed except with leave of the Board. The briefing schedule order shall be issued—
(1) At the time the Board orders review on its own initiative pursuant to Rule 5460(b), or orders interlocutory review on its own motion pursuant to Rule 5460; or
(2) within 21 days, or such longer time as provided by the Board, after—
(i) the last day permitted for filing a petition for review pursuant to Rule 5204(d);
(ii) certification of a ruling for interlocutory review pursuant to Rule 5461(c).
Briefs shall be confined to the particular matters at issue. Each exception to the findings or conclusions being reviewed shall be stated succinctly. Exceptions shall be supported by citation to the relevant portions of the record, including references to the specific pages relied upon, and by concise argument including citation of such statutes, decisions and other authorities as may be relevant. If the exception relates to the admission or exclusion of evidence, the substance of the evidence admitted or excluded shall be set forth in the brief, in an appendix thereto, or by citation to the record. Reply briefs shall be confined to matters in opposition briefs of other parties.
Opening and opposition briefs shall not exceed 30 pages and reply briefs shall not exceed 15 pages, exclusive of pages containing the table of contents, table of authorities, and any addendum, except with leave of the Board.
The Board, on its own motion or the motion of a party, may order oral argument with respect to any matter. Motions for oral argument with respect to whether to affirm all or part of an initial decision by a hearing officer shall be granted unless exceptional circumstances make oral argument impractical or inadvisable. The Board will consider appeals, motions and other matters properly before it on the basis of the papers filed by the parties without oral argument unless the Board determines that the presentation of facts and legal arguments in the briefs and record and the decisional process would be significantly aided by oral argument.
Requests for oral argument shall be made by separate motion accompanying the initial brief on the merits. The Board shall issue an order as to whether oral argument is to be heard, and if so, the time and place therefor. The grant or denial of a motion for oral argument shall be made promptly after the filing of the last brief called for by the briefing schedule. If oral argument is granted, the time fixed for oral argument shall be changed only by written order of the Board, for good cause shown. The order shall state at whose request the change is made and the reasons for any such change.
Unless the Board orders otherwise, not more than one half-hour per side will be allowed for oral argument. The
The term “side” is used in this Rule to indicate that the time allowed is afforded to opposing interests rather than to individual parties. If multiple parties have a common interest, they may constitute only a single side.
A member of the Board who was not present at the oral argument may participate in the decision of the proceeding, provided that the member has reviewed the transcript of such argument prior to such participation. The decision shall state whether the required review was made.
Upon its own motion or the motion of a party, the Board may allow the submission of additional evidence. A party may file a motion for leave to adduce additional evidence at any time prior to issuance of a decision by the Board. Such motion shall show with particularity that such additional evidence is material and that there were reasonable grounds for failure to adduce such evidence previously. Any other party may file a response to the motion within 5 days after the motion is filed, or such longer time as the Board may allow. The Board may accept or hear additional evidence, or it may remand or refer the proceeding to a hearing officer for the taking of additional evidence, as appropriate.
The Board shall determine each matter on the basis of the record.
In proceedings for final decision before the Board, the record shall consist of—
(1) All items part of the hearing record below in accordance with Rule 5202(a);
(2) any petitions for review, cross-petitions or oppositions; and
(3) all briefs, motions, submissions and other papers filed on appeal or review.
Within 14 days after the last date set for filing briefs or such later date as the Board directs, the Secretary shall transmit the record to the Board.
Any document offered in evidence but excluded by the hearing officer or the Board and any document marked for identification but not offered as an exhibit shall not be considered a part of the record before the Board on appeal but shall be transmitted to the Board by the Secretary if so requested by the Board. In the event that the Board does not request the document, the Secretary shall retain the document not admitted into the record until the later of—
(1) The date upon which the Board's order becomes final, or
(2) the conclusion of any Commission and judicial review of that order.
A party may file a motion for reconsideration of a final order issued by the Board.
A motion for reconsideration shall be filed within 10 days after service of the order complained of on each party, or within such time as the Board may prescribe upon motion of the person seeking reconsideration, if made within the foregoing 10-day period. The motion for reconsideration shall briefly and specifically state the matters of record alleged to have been erroneously decided, the grounds relied upon, and the relief sought. Except with permission of the Board, a motion for reconsideration shall not exceed 15 pages. No responses to a motion for reconsideration shall be filed unless requested by the Board.
The Board may commence a proceeding to determine whether to approve or disapprove a public accounting firm's application for registration when, based on review of an application for registration as a registered public accounting firm—
(a) The Board determines, pursuant to Rule 2106(b)(2)(ii), to provide the applicant with written notice of a hearing to determine whether to approve or disapprove the application; and
(b) within such period, as the Board permits, after the date of service of a notice of a hearing whether to approve or disapprove an application for registration pursuant to Rule 2106(b)(2)(ii), the public accounting firm served with such notice files with the Secretary a written request for a hearing date and a notice of appearance pursuant to Rule 5401(c), and includes with the request—
(1) A statement that the public accounting firm has elected not to treat the notice as a written notice of disapproval for purposes of Section 102(c) of the Act; and
(2) a statement describing with specificity why the public accounting firm believes that the Board should not issue a written notice of disapproval.
Proceedings instituted pursuant to Rule 5500 shall be subject to procedures as described in Parts 2 and 4 of Section 5 of the Board's Rules.
In its filing with the Commission, the Board included statements concerning the purpose of, and basis for, the proposed rules and discussed any comments it received on the proposed rules. The text of these statements may be examined in the Commission's Public Reference Room and at the principal office of the PCAOB. The Board has prepared summaries, set forth in sections A, B and C below, of the most significant aspects of such statements as they relate to the proposed Temporary Hearing Rules.
Section 102 of the Act prohibits accounting firms that are not registered with the Board from preparing or issuing, or playing a substantial role in the preparation or furnishing of, an audit report with respect to any issuer. Under Board rules previously approved by the Commission, the Board will not disapprove an application for registration without first giving the applicant an opportunity for a hearing. The purpose of the proposed temporary rules is to supply fair procedures and rules to govern the conduct of any such hearing. The proposed temporary rules consist of 41 rules and nine definitions. Each of the rules and definitions is discussed below.
Rule 1001(a)(ix)T defines “accounting board demand” as a command to produce documents and/or to appear at a certain time and place to give testimony. The rules use this term only to identify demands made upon registered public accounting firms and associated persons of such firms. Under the Act, the Board has authority to require those firms and persons to provide any testimony or documents sought by the Board in furtherance of its responsibilities under the Act, and including in particular any testimony or documents that the Board considers relevant to an investigation.
Rule 1001(a)(x)T defines “accounting board request” as a request to produce documents and/or to appear at a certain time and place to give testimony. The rules use this term to distinguish the Board's efforts to obtain documents and testimony from persons other than registered public accounting firms and their associated persons.
Rule 1001(c)(ii)T defines “counsel” as an attorney at law admitted to practice, and in good standing, before the Supreme Court of the United States or the highest court of any state.
Rule 1001(h)(i)T defines “hearing officer” to mean any person, other than a Board member or staff of the interested division, duly authorized by the Board to preside at a hearing.
Rule 1001(i)(iv)T defines “interested division” as a division or office of the Board assigned primary responsibility by the Board to participate in a particular proceeding. As a general matter, the interested division in a disciplinary proceeding will be the Division of Enforcement and Investigations, and the interested division in a hearing on disapproval of a registration application will be the Division of Registration and Inspections. The definition is adapted from Rule 101(a)(6) of the Commission's Rules of Practice.
Rule 1001(o)(ii)T defines “order instituting proceedings” as an order issued by the Board commencing a disciplinary proceeding.
Rule 1001(p)(iii)T defines “party” as the interested division, any person named as a respondent in an order instituting proceedings or notice of a hearing, any applicant named in the caption of any order, or any person seeking Board review of a decision.
Rule 1001(p)(iv)T defines “person” as any natural person or any business, legal or governmental entity or association.
Rule 1001(s)(iii)T defines “Secretary” as the Secretary of the Board.
Rule 1002T describes the method by which the Board shall compute time for purposes of complying with deadlines in the Board's rules.
Rule 5200T(b) provides for an appointment of a hearing officer by the Board as soon as practicable after issuance of the order instituting proceedings or after a registration applicant has requested a hearing pursuant to Rule 5500T(b). The rule is adapted from NASD Rule 9213(a).
Under Rule 5200T(b), the Board shall notify the parties of the hearing officer's assignment. The hearing officer shall have authority to do all things necessary and appropriate to discharge his or her duties, including, but not limited to, the matters specified in Rule 5200T(b). The rule expressly subjects the hearing officer's authority to the limitations described in Rule 5402T (concerning hearing officer disqualification) and Rule 5403T (concerning ex parte communications).
Rule 5200T(c) provides that the Board will observe certain separation of functions principles. The rule provides that neither the staff of the Division of Enforcement and Investigations, nor any other staff who engaged in investigative or prosecutorial functions on a matter, may participate or advise in the decision, or the review of the decision, except as a witness or counsel. In addition, the rule provides that a hearing officer may not be responsible to or subject to the supervision or direction of an employee or agent engaged in the performance of investigative or prosecuting functions for the Board.
With respect to proceedings that involve a common question of law or fact, Rule 5200T(d) provides that the Board or a hearing officer may, by order, consolidate the proceedings for hearing of any or all matters at issue in the proceedings. The rule is adapted from Rule 201 of the Commission's Rules of Practice. The rule provides that consolidation shall not prejudice any rights that any party may have under the Board's Rules and shall not affect the right of any party to raise issues that could have been raised in the absence of consolidation.
Rule 5201T(c) provides that, in the case of a hearing on a registration application commenced under Rule 5500T, the notice of hearing shall state proposed grounds for disapproving the registration application.
Rule 5202T(a) describes the material that shall make up the contents of the record in a disciplinary proceeding (Rule 5202T(a)(1)) and the contents of the record on disapproval of an application for registration (Rule 5202T(a)(2)). Under Rule 5202T(b), any document offered as evidence but excluded, and any document marked for identification but not offered as an exhibit, shall not be considered part of the record but shall be maintained by the Secretary until all opportunities for Commission and judicial review have been exhausted or waived. Paragraphs (c)-(e) of Rule 5202T address the substitution of true copies for documents in the record, the preparation of the record and the certification of the record index, and the final transmittal of record items to the Secretary. The rule is adapted from Rules 350 and 351 of the Commission's Rules of Practice.
Under Rule 5203T, a hearing on disapproval of a registration application shall be nonpublic unless the Board orders otherwise. The rule essentially creates a presumption that a hearing on disapproval of a registration application will be non-public. A disapproval hearing will, by its nature, involve a firm that is not yet a registered firm and may well involve a record that includes confidential information submitted as part of the registration application. The rule reserves to the Board the flexibility to make the hearing public if warranted by unusual circumstances. In any event, if the Board decides, after a hearing, to disapprove the application, that decision, along with the reasons for the decision, will be made public according to the provisions of Section 105(d) of the Act.
Rule 5204T(b) provides that, unless the Board orders otherwise, the hearing officer shall prepare an initial decision following a hearing. The rule provides that the initial decision shall include findings and conclusions, including sanctions, if appropriate, and the reasons or basis therefore, as to all the material issues of fact, law, or discretion presented on the record and such other information as the Board may require.
The note to Rule 5204T(b) sets out the Board's general expectations about the time frame within which a hearing officer should complete an initial decision in various types of cases. These time frames are nothing more than the Board's general expectations and do not create any right in any person to have an initial decision prepared within any particular period of time.
Rule 5204T(c) governs the hearing officer's filing of the initial decision with the Secretary and the Secretary's service of the initial decision on the parties.
Rule 5204T(d) provides the circumstances in which an initial decision of a hearing officer becomes the final decision of the Board as to a party. The rule is adapted from Rule 360(d) of the Commission's Rules of Practice. Rule 5204T(d)(1) provides that the initial decision becomes the Board's final decision as to a party upon issuance by the Secretary of a notice of finality. Rule 5204T(d)(2) provides that the Secretary shall issue the notice of finality no later than twenty days after the lapsing of the time period for filing a petition for Board review (as described in Rule 5460T), unless one of the two conditions described in Rule 5204T(d)(3) has occurred. Rule 5204T(d)(3) provides that the Secretary shall not issue a notice of finality as to any party who has filed a timely petition for Board review or with respect to whom the Board, on its own motion, has ordered review of the initial decision pursuant to Rule 5460T(b).
Rule 5205T governs certain matters related to possible settlement of disciplinary proceedings. The rule is adapted from Rule 240 of the Commission's Rules of Practice.
Rule 5205T provides that any person who is or is to be a party to a disciplinary proceeding may at any time propose in writing an offer of settlement. The rule imposes requirements for the content of the offer, and requires that it be signed by the person making the offer, not by counsel.
Rule 5205T(c)(1) requires that the Division Director the offer to the Board along with a recommendation concerning the offer, except that, if the recommendation is unfavorable, the Director shall not present the offer to the Board unless the person making the offer so requests.
Rules 5205T(c)(2)-(3) set out various matters that the person making the offer must waive before the Board will consider the offer, including waiver of rights to hearings, rights to proposed findings of fact and conclusions of law, rights to proceedings before and an initial decision by a hearing officer, rights to post-hearing procedures, rights to judicial review, rights to have Board and Board staff observe separation of functions principles, and rights to claim bias or prejudgment by the Board based on consideration of or discussions concerning the settlement offer.
Rule 5205T(c)(4) provides that if the Board rejects the offer, the offer will be deemed withdrawn and will not constitute a part of the record. Rule 5205T(c)(4) further provides that rejection of the offer will not affect the continued validity of waivers of rights to claim bias or prejudgment on the basis of discussions concerning the settlement offer.
Rule 5205T(c)(5) provides that Board acceptance of an offer will occur only upon the issuance of findings and an order by the Board.
A note to Rule 5205T points out that in hearings on disapproval of registration, settlement offers will be handled by the Director of Registration and Inspections.
Rule 5400T provides for hearings to be held only upon order of the Board and to be conducted in a fair, impartial, expeditious and orderly manner. The rule is adapted from Rule 200 of the Commission's Rules of Practice.
Rule 5401T provides that a person may appear on his own behalf before the Board or may be represented by counsel. Rule 5401T further provides that a member of a partnership may represent the partnership and a bona fide officer of a corporation, trust, or association may represent the corporation, trust, or association. Rule 5401T(c) imposes certain procedural requirements related to representation and withdrawal.
Rule 5402T allows a party to make a motion for withdrawal of a hearing officer and governs the circumstances under which such a motion may be made and the time within which it must be made. Rule 5402T also provides for appointment of a replacement hearing officer in the event of withdrawal or disqualification. The rule is based on Rule 112 of the Commission's Rules of Practice and NASD Rule 9233.
Rule 5403T prohibits a hearing officer from having
Rule 5404T requires service of papers on each party in a manner calculated to bring the paper to the attention of the party served.
Rule 5405T governs procedures for filing papers with the Board.
Rule 5406T governs the form of papers to be filed with the Board.
Rule 5407T requires every paper filed to be signed either by the party, if the party represents himself or herself, or by counsel if the party is represented by counsel. Because the Board expects most papers to be filed electronically, a note to the rule states that the signature should be scanned into an electronic document where practicable, but that otherwise certain indicia of electronic signature will suffice.
Rule 5408T describes procedures and length limitations related to motions and supporting briefs.
Rule 5409T describes the circumstances that shall constitute a default and the procedure for seeking to set aside a default. The rule is adapted from Rule 155 of the Commission's Rules of Practice.
Rule 5410T allows an additional three days, with respect to any computation of time, for service made by mail.
Rule 5411T provides that the Board maintains discretion, except as otherwise provided by law, to adjust the time limits prescribed by the rules or to postpone or adjourn any hearing.
Rule 5420T provides a procedure by which certain entities may seek a stay of a hearing. The entities that may seek such a stay would have been the Commission, the United States Department of Justice or any United States Attorney's Office, any criminal prosecutorial authority of a state or political subdivision of a state, and an appropriate state regulatory authority may seek a stay.
Under Rule 5420T, an authorized representative of any such entity may seek leave to participate on a limited basis to request a stay. Rule 5420T provides that a stay shall be granted upon a showing that a stay is necessary to protect an ongoing Commission investigation, and that a stay shall otherwise be favored upon a showing that it is in the public interest or for the protection of investors.
Rule 5421T governs the filing of answers to orders instituting proceedings. A party may file an answer in any matter, but is not required to file an answer unless ordered to do so in the order instituting proceedings.
Rule 5422T governs the obligations of Board staff to make documents available to a party for inspection and copying. Paragraphs (a) through (c) of Rule 5422T are the core provisions for determining what documents the staff must make available. Paragraph (a) describes generally the documents that the staff must make available to a respondent. Paragraph (b) limits paragraph (a) by describing categories of documents that the staff may withhold, subject to an overriding obligation not to withhold material exculpatory evidence. Paragraph (c) prescribes procedures the staff must follow when withholding certain categories of documents, and procedures for a hearing officer to determine whether withholding is appropriate.
Rule 5422T(a)(3) applies to registration disapproval proceedings commenced pursuant to Rule 5500T. Rule 5422T(a)(3) requires the Division of Registration and Inspections to make available all documents obtained by the Division in connection with the registration application prior to the notice of hearing.
Rule 5422T(a) includes specific exceptions for, and must be read in conjunction with, Rule 5422T(b), which describes four categories of documents that the Division may withhold from a respondent even if Rule 5422T(a) would otherwise require the Division to make the document available. Moreover, withholding documents may trigger the procedural requirements of Rule 5422T(c). We therefore individually address each of the four categories of documents that may be withheld under Rule 5422T(b), and any Rule 5422T(c) procedures related to withholding those documents.
Under Rule 5422T(b)(1)(i), the Division need not make available any document prepared by a member of the Board or the Board's staff that has not been disclosed to any person other than Board members, Board staff, or persons retained by the Board or Board staff to provide services in connection with the investigation, disciplinary proceeding, or hearing on disapproval of registration. Withholding such documents does not trigger any procedural requirements under Rule 5422T(c).
Under Rule 5422T(b)(1)(ii), the Division need not make available any other document that, while not encompassed within the first category, is nevertheless protected by a privilege or by the attorney work product doctrine. This category would include, for example, documents that were privileged in the hands of the person who supplied them to the Board, but who supplied them pursuant to an understanding that doing so would not otherwise waive the privilege. As to this category of withheld documents, Rule 5422T(c)(1) requires the Division to supply to the hearing officer and each respondent a log providing all of the same information that Rule 5106 requires a person to submit when asserting a privilege against production to the Board.
(1) the person asserting the privilege, or his or her attorney, shall identify the nature of the privilege (including attorney work product) that is being claimed and indicate the relevant jurisdiction's privilege rule being invoked; and
(2) the following information shall be provided in the objection, unless divulgence of such information would cause disclosure of the allegedly privileged information—
(i) for documents: (A) the type of document, (
(ii) for oral communications: (A) the name of the person making the communication and the names of persons present while the communication was made and, where not apparent, the relationship of the persons present to the person making the communication; (B) the date and place of communication; and (C) the general subject matter of the communication. (Telephone conversation between Gordon Seymour, Acting General Counsel, PCAOB, and staff of the Commission's Office of the Chief Accountant, on November 4, 2003.)
Under Rule 5422T(b)(1)(iii), the Division need not make available any document that would disclose the identity of a confidential source. The rule provides, however, that the staff may not withhold a document on this basis if doing so results in withholding material exculpatory evidence. Rule 5422T(c)(2) requires the Division to provide the hearing officer with a list of any documents withheld to protect the identity of a confidential informant. The rule requires the Division to provide the same list to each respondent, although the staff may redact as much information as necessary from that list (including, in appropriate circumstances, all information) to protect the interests related to the Division's reason for withholding the document. The hearing officer, in his or her discretion, may review any such document
Under Rule 5422T(b)(1)(iv), the Division need not make available any other document that the staff identifies for the hearing officer's consideration as to whether the document may be withheld as not relevant to the subject matter of the proceeding or otherwise for good cause shown. For example, the staff might have documents supplied by a foreign regulator under a confidentiality agreement. If the staff does not intend to use them, the “good cause” exception allows the staff to withhold them to honor the confidentiality agreement. Again, however, the good cause exception does not allow the staff to withhold a document that contains material exculpatory evidence. Rule 5422T(c)'s
In addition to the procedural protections described above, Rule 5422T(b)(2) provides an over-arching restriction on what the Division may withhold. It provides that nothing in paragraph (b) authorizes the interested division to withhold non-privileged documents that contain material exculpatory evidence.
Rule 5422T(d) governs the time period in which the staff must make the documents available. Under the rule, the staff must make the documents available within 14 days of the institution of proceedings under Rule 5500.
Rule 5422T(e) provides that the staff shall make the documents available at the Board's office where the documents are normally maintained, or at such other place as the parties agree upon in writing. Rule 5422T(d) further provides that, except as subject to any specific contrary agreement with the staff, a party shall not have custody of the documents and shall not remove the documents from the Board's offices, though the party may make and retain copies of the documents. Rule 5422T(f) provides that a party wishing to make copies of the documents must bear the cost of copying.
Rule 5422T(g) addresses any failure by the interested division to make available any document that these rules required it to make available. The rule provides that, in that event, no person shall be entitled to a rehearing or redetermination in a matter already heard or decided unless that person first establishes that the failure to make the document available did not constitute harmless error.
A note following Rule 5422T points out that the obligations of the interested division under this rule extend only to documents obtained by that division, and that this Rule does not require the interested division to make available documents located only in the files of other divisions or offices. The proviso, however, is not intended to relieve the interested division of the obligation to make available any such document that the division knows of and intends to introduce as evidence. Any such document should be treated, for purposes of Rule 5422T, just as if it were physically located in the division's files.
Rule 5423T(a) provides that a respondent may move that the interested division produce any statement of a person, called or to be called as a witness by the division, that pertains or is expected to pertain to his or her direct testimony and that would be required to be produced pursuant to the Jencks Act, 18 U.S.C. 3500, if the Board were a governmental entity. The hearing officer shall have authority to grant such a motion and require production of any such statement. Rule 5423T(b) provides, however, that the interested division's failure to produce any such statement shall not be grounds for rehearing or redecision of a matter already heard or decided unless the respondent first establishes that the failure to produce the statement was not harmless error. The rule is based on Rule 231 of the Commission's Rules of Practice.
Rule 5424T provides for mechanisms by which any party may seek to secure testimony or evidence relevant to a proceeding. Rule 5424T(a) describes procedures by which any party may seek to have an accounting board demand served on any registered public accounting firm or associated person of such a firm, or seek to have an accounting board request served on any other person. Under the rule, the party must make a request to the hearing officer for issuance of the accounting board demand or accounting board request. In the event of the hearing officer's unavailability, the party may present its request, through the Secretary, to any member of the Board, or any other person designated by the Board to issue such demands and requests.
The application for an accounting board demand or accounting board request may be denied, or may be granted with modifications, if it is unreasonable, oppressive, excessive in scope, or unduly burdensome. The rule provides that a person whose application for an accounting board demand or accounting board request has been denied or modified may not make the same application to another person and may not apply to the Board for a Commission subpoena covering the same testimony, documents, or information as the denied application covered or as was excluded by modification in granting an application. Rule 5424T(a) also provides that a party who applies for an accounting board demand or accounting board request to summon a witness shall pay the witness's reasonable expenses.
Rule 5425T provides procedures by which a party may seek a deposition for the purpose of preserving for a hearing the testimony of a person who may be unavailable to appear at the hearing. Rule 5425T does not provide for depositions taken for the purpose of discovery. The rule is adapted from Rule 233 of the Commission's Rules of Practice.
Under Rule 5425T(a), a party seeking to take a deposition to preserve testimony must make a written motion setting out the reasons why the deposition is necessary and specifically including the reasons that the party believes the witness will be unable to testify at the hearing. The motion must also identify the witness, the matters on which the party intends to question the witness, and the proposed time and place of the deposition. Under Rule 5425T(b), the hearing officer may grant the motion if the hearing officer finds that the witness will likely give testimony material to the proceeding, that it is likely the witness will be unable to appear at the hearing because of age, sickness, infirmity, imprisonment or other disability, or will otherwise be unavailable, and that the taking of the deposition will serve the interests of justice. Rules 5425T(c)-(e) describe certain procedures governing any such deposition allowed by the hearing officer.
Rule 5426T provides procedures by which a party may introduce into evidence a witness's prior sworn statement in lieu of live testimony by the witness. Rule 5426T is not a limitation on any party's ability to introduce a prior sworn statement with respect to a witness who appears in person and testifies (for purposes of impeachment, for example). But Rule 5426T does limit the circumstances in which a party may introduce a prior sworn statement in lieu of live testimony by the witness.
Rule 5426T identifies five circumstances in which the hearing officer may grant a motion to introduce a prior sworn statement in lieu of live testimony: (1) If the witness is dead, (2) if the witness is outside of the United States, unless it appears that the witness's absence from the country was procured by the party offering the prior sworn statement, (3) if the witness is
Rule 5440T describes procedures related to the creation, correction, and availability of hearing transcripts.
Rule 5441T provides that a hearing officer may receive relevant evidence and shall exclude all evidence that is irrelevant, immaterial or unduly repetitious. The standard in Rule 5441T is based on the Administrative Procedures Act.
Rule 5442T(a) provides that any objections must be made on the record and must be in short form, stating the grounds relied upon. Under Rule 5442T(a) any exception to a hearing officer's ruling on an objection need not be noted at the time of the ruling but will be deemed waived on appeal to the Board unless the exception was raised (1) on interlocutory review under Rule 5461T, (2) in a proposed finding or conclusion filed under Rule 5445T, or (3) in a petition for Board review of an initial decision filed under Rule 5460T. Rule 5442T(b) provides that when evidence is excluded from the record, the party offering the evidence may make an offer of proof which shall be included in the record. The excluded material itself would be retained under Rule 5202T(b).
Rule 5443T provides that witnesses at a hearing shall testify under oath or affirmation.
Rule 5444T provides that a party may present its case or defense by oral or documentary evidence, submit rebuttal evidence, and conduct such cross-examination as, in the discretion of the Board or the hearing officer, may be required for a full and true disclosure of the facts. The rule provides that the Board or hearing officer shall determine the scope and form of evidence, rebuttal evidence, and cross-examination in any proceeding. The rule is adapted from Rule 326 of the Commission's Rules of Practice.
Rule 5445T provides procedures relating to the submission of post-hearing briefs and other submissions.
Rule 5460T concerns Board review of initial decisions. Under Rule 5460T, a party may obtain Board review of an initial decision by filing a timely petition setting forth specific findings and conclusions of the initial decision to which the party takes exception and setting forth the supporting reasons for each exception. To be timely, a petition must be filed within 30 days of an initial decision in proceedings on disapproval of a registration application. The rule is based in part on Rule 410 of the Commission's Rules of Practice.
Also under Rule 5460T(a), if one party submits a timely petition for review, any other party then has an additional ten days to submit its own petition for review, even if its petition raises different issues than those raised by the first party to submit a petition. The purpose of this rule is to avoid the unnecessary expenditure of Board resources in cases where no party would appeal if it knew that the other party would not appeal, but in which one or more parties nevertheless appeal because of a concern that failing to appeal will deprive it of the opportunity to raise its issues in any appeal lodged by another party. Under Rule 5460T(a), no party need guess about the other party's intentions, and no party sacrifices anything by waiting to see whether another party files a timely petition for review.
Rule 5460T(b) provides that the Board may, on its own initiative, order review of all or any portion of an initial decision even if no party seeks review. The Board may order such review, however, only if it does so before the initial decision would otherwise become the final decision of the Board pursuant to the operation of Rule 5204T(c). In effect, this allows the Board to order review on its own initiative for a period of 20 days beyond the deadline for a party to petition for review. The rule is based in part on Rule 411 of the Commission's Rules of Practice. Rules 5460T(c)-(e) set out procedural matters related to Board review.
Rule 5461T concerns Board interlocutory review of hearing officer rulings. Under Rule 5461T(a), the Board will not grant interlocutory review absent extraordinary circumstances, but also may direct at any time that any matter or ruling be submitted to the Board for review. Rule 5461T(b) provides that a hearing officer shall certify a ruling for interlocutory review only if (1) the ruling would compel testimony of Board members, officers or employees or the production of documentary evidence in their custody, or (2) the ruling involves a controlling question of law as to which there is substantial ground for difference of opinion and immediate review of the order may materially advance completion of the proceeding. Rule 5461T(c) provides that neither an application for, nor the granting of, interlocutory review shall stay the proceeding unless otherwise ordered by the hearing officer or the Board. The rule is adapted from Rule 400 of the Commission's Rules of Practice and 28 U.S.C. 1292(b).
Rule 5462T describes procedural requirements related to briefs and the filing of briefs. The rule is adapted from Rule 450 of the Commission's Rules of Practice.
Rule 5463T concerns oral argument before the Board. Under Rule 5463T(a), the Board may order oral argument, with or without the motion of a party, on any matter. The rule provides that, in general, motions for oral argument will be granted unless exceptional circumstances make oral argument impractical or inadvisable. Rules 5463T(b)-(c) provide for procedures relating to oral argument. Rule 5463T(d) provides that a member of the Board who is not present for oral argument may nevertheless participate in the Board's decision as long as the Board member reviews a transcript of the argument before participating in the decision.
Rule 5464T provides that the Board may, upon its own motion or the motion of a party, allow the submission of additional evidence in connection with the Board's review of an initial decision. The rule is adapted from Rule 452 of the Commission's Rules of Practice.
Rule 5465T provides that the Board shall determine each matter on the basis of the record and provides certain requirements concerning the record. The rule is adapted from Rule 460 of the Commission's Rules of Practice.
Rule 5466T provides procedures by which a party may seek reconsideration of a Board decision. The rule is adapted from Rule 470 of the Commission's Rules of Practice.
Rule 5469T provides procedures relating to Board consideration of petitions for review of actions made pursuant to authority delegated by the Board. Rule 5469T(a) provides that the Board may act summarily on the basis of the petition, or on the basis of the petition and any staff response, or may require additional statements in support of or opposition to the petition. Rule 5469T(b) provides that the effect of any staff action would not be stayed pending any petition for review of that action.
Rule 5500T describes the procedure relating to the commencement of a Board adjudication proceeding to consider an application for registration. Under the Board's registration rules, if the Board is unable to make the determination necessary to approve a registration application, the Board will provide the applicant with notice of a hearing. Rule 5500T provides the procedures through which such a proceeding would be commenced.
Specifically, Rule 5500T provides that a proceeding would commence after the Board provides a notice of hearing under Rule 2106(b)(2)(ii) and the applicant timely files a request for a hearing date and notice of appearance, rather than opting to treat the Board's notice of hearing as a denial of the application. Under Rule 5500T(b), a request for hearing must include a statement that the applicant has elected not to treat the notice of hearing as a disapproval of its application and a statement describing with specificity why the applicant believes that the Board should not disapprove the application.
Rule 5501T provides that proceedings commenced pursuant to Rule 5500T are subject to the procedures set out in Parts 2 and 4 of Section 5 of the Board's rules.
The statutory basis for the proposed rules is Title I of the Act.
The Board does not believe that the proposed rules will result in any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. The proposed temporary rules supply procedures for the conduct of fair hearings. Moreover, the proposed temporary rules would apply only in the context of a hearing that an applicant for registration elects, at its option, to have.
The Board published the Enforcement Rules, including the rules that constitute the Temporary Hearing Rules, for public comment in PCAOB Release No. 2003-012 (July 28, 2003). A copy of PCAOB Release No. 2003-012 and the comment letters received in response to the PCAOB's request for comment are available on the PCAOB's Web site at
The Board proposed to define the term “hearing officer” to include a panel of Board members constituting less than a quorum of the Board, an individual Board member, or any other person duly authorized by the Board to preside at a hearing. Several commenters expressed the view that neither Board members nor staff of the interested division should ever serve as hearing officers. We never intended to permit staff of the interested division to serve as hearing officers, and we have revised the rule to exclude that possibility. Nor did we intend to provide for a Board member to serve as a hearing officer except in an extraordinary situation, and we are now persuaded that the rule should exclude that possibility as well. In general, we intend to rely on a corps of qualified persons whose service to the Board is strictly limited to the role of hearing officer. We may rely on consultants for this purpose, or we may employ a staff of hearing officers, or we may rely on a combination of the two.
Rule 5200T(c) provides that the Board will observe certain separation of functions principles. The proposed rule provided that any Board employee or agent engaged in investigative or prosecutorial functions for the Board in a proceeding could not, in that same proceeding or a factually related proceeding, participate or advise in the decision, or in Board review of the decision, except as a witness or counsel in the proceeding. One commenter suggested that this rule should clearly exclude all enforcement personnel from participating in the adjudication of a disciplinary proceeding, whether or not they had an investigative or prosecutorial role in the matter. We are persuaded that this represents a good policy choice and we have revised the rule accordingly. The final rule provides that neither the staff of the Division of Enforcement and Investigations, nor any other staff who engaged in investigative or prosecutorial functions on a matter, may participate or advise in the decision, or the review of the decision, except as a witness or counsel.
Rule 5401T provides that a person may appear on his own behalf before the Board or may be represented by counsel and imposes certain procedural requirements related to representation
We are sensitive to the importance of counsel being free to withdraw in appropriate circumstances, and the importance of a party being free to change counsel in appropriate circumstances. We are also mindful of the ways in which an ostensible desire to withdraw or to change counsel can be used to delay or disrupt proceedings. To provide some assurance of the limited scope within which we intend for the Board or hearing officer to withhold permission to withdraw, we have adopted the suggestion of those commenters who urged that the rule provide that permission to withdraw would not be unreasonably withheld.
Rule 5402T allows a party to make a motion for withdrawal of a hearing officer and governs the circumstances under which such a motion may be made and the time within which it must be made. Rule 5402T also provides for appointment of a replacement hearing officer in the event of withdrawal or disqualification. The rule is based on Rule 112 of the Commission's Rules of Practice and NASD Rule 9233. Commenters suggested that the rule should provide for a right of immediate interlocutory appeal to the Board from a hearing officer's denial of a recusal motion. One commenter stated that this was of particular importance given the possibility that Board staff, including enforcement staff, might be assigned to serve as hearing officers.
As discussed earlier, we have revised the definition of “hearing officer” to provide that neither a Board member nor any staff of the interested division will serve as a hearing officer. We decline to create a special right of interlocutory Board review in every case of a denied recusal motion. The interlocutory appeal process, governed by Rule 5461T, allows a party to request that the hearing officer certify his or her recusal ruling for interlocutory review. The rule requires that the hearing officer should certify the ruling if immediate review of the order may materially advance the completion of the proceeding. Given that a reversible denial of a recusal motion could substantially delay completion of the proceeding by eventually requiring a complete re-hearing before a different hearing officer, we expect hearing officers to give careful attention to whether that standard for certification has been met with respect to any ruling denying a recusal motion.
One commenter suggested that the rule should provide that, if a hearing officer is replaced, the parties should have a right to move that certain testimony be reheard so that the new hearing officer may judge credibility. We believe that the rules as proposed and adopted are flexible enough to accommodate such a motion and to leave the decision within the discretion of the new hearing officer.
Rule 5403T prohibits a hearing officer from having
Rule 5422T(a)(3) applies to registration disapproval proceedings commenced pursuant to Rule 5500T. Rule 5422T(a)(3) requires the Division of Registration and Inspections to make available all documents obtained by the Division in connection with the registration application prior to the notice of hearing, and specifies the categories of documents that the Division may withhold from production. In response to comments, we have revised the proposed rule to provide more clearly that nonprivileged documents that include material, exculpatory evidence may not be withheld even if they otherwise fall into one of the categories of documents that may be withheld. In response to other comments, we have revised the rule to require the Division to supply a log of certain privileged documents and lists of other withheld documents.
The Board has asked the Commission to approve the proposed temporary rules prior to the thirtieth day after the date of publication of notice of the filing to ensure the efficient implementation of the registration process under section 102 of the Act.
Under section 102 of the Act, Congress required accounting firms to register with the Board by October 22, 2003, the 180th day from the Commission's section 101(d) determination that the Board is organized and has the capacity to carry out the requirements of, and enforce compliance with, the Act. The Board began accepting registration forms on August 7, 2003. Under section 102(c)(i) of the Act, the Board is required to issue a notice of disapproval or seek additional information within 45 days of receiving a registration form. Furthermore, section 105(c) of the Act requires that the Board, among other things, establish fair disciplinary procedures. Under rules previously adopted by the Board and approved by the Commission, the Board may not disapprove an application without first giving the applicant an opportunity for a hearing. On July 28, 2003, the Board proposed procedural rules for disapproving a registration application, as part of its Rules on Investigations and Adjudications. The Board sought and received comments on the proposals. After considering the comments, the Board adopted temporary rules relating to registration disapproval procedures on September 29, 2003.
Pursuant to section 107(b) of the Act, the Commission shall approve proposed rules upon a finding that such rules are consistent with the Act and with the securities laws or are necessary or appropriate in the public interest or for the protection of investors. Although the Commission will later consider permanent rules, the proposed temporary rules will facilitate the process of making determinations on new and pending registration applications. On the basis of the foregoing, the Commission finds that the temporary rules are consistent with the requirements of sections 102, 105(c) and 107(b) of the Act and the securities laws
Because accounting firms already have begun submitting registration
The Commission believes that the proposed temporary rules will enable the Board to properly exercise its authority and perform its responsibilities within the time frame specified by the Act. Because of the importance of registering accounting firms to the operation of the Board and the benefit provided by the Board's inspection, investigation and enforcement functions, expedited implementation of the temporary rules is consistent with the public interest and protection of investors.
The Commission therefore finds good cause, consistent with sections 102, 105 and 107 of the Act and section 19(b)(2) of the Exchange Act, to approve the proposed temporary rules on an accelerated basis.
Interested persons are invited to submit written data, views and arguments concerning the proposed temporary hearing rules, including whether the rules are consistent with the Act and the securities laws or are necessary or appropriate in the public interest or for the protection of investors. Commenters may prefer to comment on the PCAOB's proposed permanent rules for investigations and adjudications when the Commission publishes those rules for comment. Persons making written submissions with regard to the proposed temporary hearing rules should file six copies thereof with the Secretary, Securities and Exchange Commission, 450 Fifth Street, NW, Washington, DC 20549-0609. Copies of the submission, all subsequent amendments, all written statements with respect to the proposed temporary hearing rules that are filed with the Commission, and all written communications relating to the proposed temporary hearing rules between the Commission and any person, other than those that may be withheld from the public in accordance with the provisions of 5 U.S.C. 552, will be available for inspection and copying at the Commission's Public Reference Room. All submissions should refer to File No. PCAOB-2003-06 and should be submitted by December 17, 2003.
By the Commission.
Notice is hereby given that the following filing(s) has/have been made with the Commission pursuant to provisions of the Act and rules promulgated under the Act. All interested persons are referred to the application(s) and/or declaration(s) for complete statements of the proposed transaction(s) summarized below. The application(s) and/or declaration(s) and any amendment(s) is/are available for public inspection through the Commission's Branch of Public Reference.
Interested persons wishing to comment or request a hearing on the application(s) and/or declaration(s) should submit their views in writing by December 3, 2003, to the Secretary, Securities and Exchange Commission, Washington, DC 20549-0609, and serve a copy on the relevant applicant(s) and/or declarant(s) at the address(es) specified below. Proof of service (by affidavit or, in the case of an attorney at law, by certificate) should be filed with the request. Any request for hearing should identify specifically the issues of facts or law that are disputed. A person who so requests will be notified of any hearing, if ordered, and will receive a copy of any notice or order issued in the matter. After December 3, 2003, the application(s) and/or declaration(s), as filed or as amended, may be granted and/or permitted to become effective.
Dominion Resources, Inc. (“DRI”), a registered public-utility holding company, and Dominion Energy, Inc. (“DEI”), its direct, wholly owned nonutility subsidiary (together, “Applicants”), both located at 120 Tredegar Street, Richmond, Virginia 23219, have filed an application-declaration under sections 6(a), 7, 9(a), 10, 12 (b) and (d) and 13 of the Act and rules 53 and 54.
DRI and DEI propose to organize and acquire Dominion Wholesale, Inc. (“DWI”), as a subsidiary of DEI to assist their nonutility electric generation and gas-related subsidiaries in the procurement, storage and maintenance of materials, machinery, equipment, services and supplies (the “Equipment”) more cost effectively and, incidentally, to sell Equipment to unaffiliated third parties.
DRI and DEI have multiple subsidiaries, utility and nonutility, engaged in the generation of electricity.
For the Commission, by the Division of Investment Management, pursuant to delegated authority.
On August 11, 2003, the Chicago Board Options Exchange, Inc. (“CBOE” or “Exchange”) filed with the Securities and Exchange Commission (“Commission”), pursuant to section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The proposed rule change was published for notice and comment in the
The Commission finds that the proposed rule change is consistent with the requirements of the Act and the rules and regulations thereunder applicable to a national securities exchange
It is therefore ordered, pursuant to section 19(b)(2) of the Act,
For the Commission, by the Division of Market Regulation, pursuant to delegated authority.
Pursuant to section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
NASD is proposing to amend NASD's Plan of Allocation and Delegation of Functions by NASD to Subsidiaries (“Delegation Plan”) to remove The Nasdaq Stock Market, Inc.'s (“Nasdaq”) representation of NASD in the Joint Self-Regulatory Organization Plan Governing the Collection, Consolidation and Dissemination of Quotation and Transaction Information for Nasdaq-Listed Securities Traded on Exchanges on an Unlisted Trading Privilege Basis (“UTP Plan”).
The text of the proposed rule change is below. Proposed new language is in italics; proposed deletions are in brackets.
A. Delegation of Functions and Authority.
1. Subject to section I.B.11., [the] NASD hereby delegates to Nasdaq and Nasdaq assumes the following responsibilities and functions as a registered securities association:
a. through g. No Change.
h. To administer [the Association's]
i. through o. No Change.
2. No Change.
B. through C. No Change.
In its filing with the Commission, NASD included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in item IV below. NASD has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
In 1996, NASD delegated authority to Nasdaq to administer NASD's involvement in the National Market System Plans relating to Nasdaq/Unlisted Trading Privileges or trading in the third market for securities listed on a registered exchange.
On April 22, 2003, the Director of the SEC's Division Market Regulation “Director” wrote to NASD's Chairman and Chief Executive Officer and requested that NASD exercise its own participation rights in the UTP Plan.
This proposed rule change effectuates the Director's request by proposing to amend the Delegation Plan to retract the delegation of its UTP participation rights to Nasdaq. In addition, the proposed rule change replaces several references to “the Association” and “the NASD” in the text of the proposed rule change with “NASD.” NASD no longer refers to itself using its full corporate name, “the Association” or “the NASD.” Instead, NASD uses “NASD” unless otherwise appropriate for corporate or regulatory reasons.
NASD believes that the proposed rule change is consistent with the provisions of section 15A(b)(6) of the Act,
NASD does not believe that the proposed rule change will result in any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act, as amended.
Written comments were neither solicited nor received.
Within 35 days of the date of publication of this notice in the
A. By order approve such proposed rule change, or
B. Institute proceedings to determine whether the proposed rule change should be disapproved.
Interested persons are invited to submit written data, views and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Persons making written submissions should file six copies thereof with the Secretary, Securities and Exchange Commission, 450 Fifth Street, NW., Washington, DC 20549-0609. Copies of the submission, all subsequent amendments, all written statements with respect to the proposed rule change that are filed with the Commission, and all written communications relating to the proposed rule change between the Commission and any person, other than those that may be withheld from the public in accordance with the provisions of 5 U.S.C. 552, will be available for inspection and copying in the Commission's Public Reference Room. Copies of such filing will also be available for inspection and copying at the principal office of the NASD. All submissions should refer to file number SR-NASD-2003-147 and should be submitted by December 8, 2003.
For the Commission, by the Division of Market Regulation, pursuant to delegated authority.
On September 3, 2003, the New York Stock Exchange, Inc. (“NYSE” or “Exchange”), filed with the Securities and Exchange Commission (“Commission”), pursuant to section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
NYSE Rule 342.15 provides that a small office (one with three or fewer registered representatives) may be in the charge of a non-resident qualified principal or manager. However, pursuant to Interpretation /02 to the same Rule, in such a case, a resident registered representative must be designated as “in charge.” Currently, Interpretation /02 to Rule 345(a) prohibits a natural person registered representative who is an independent contractor from serving as a “registered representative-in-charge.”
The Exchange has represented that small offices with independent contractors typically have a limited securities sales business, and that “members and member organizations generally assign administrative as opposed to supervisory functions to persons they designate as registered representatives-in-charge.”
The Commission finds that the proposed rule change is consistent with the requirements of the Act and the rules and regulations thereunder applicable to a national securities exchange.
At the same time, the Commission notes that the proposed rule change does not alter in any way the obligation of NYSE members or member organizations to oversee the operation of their businesses and supervise the performance of their associated persons in a manner that assures compliance with the Act and rules and regulations thereunder, as well as applicable rules of the NYSE. The Commission therefore believes that the proposal is consistent with its longstanding position that regardless of their designation, independent contractor registered representatives are considered “associated persons” of a broker-dealer under the Act if their activities are subject to control by the broker-dealer, such as when there is a principal and agent relationship.
To this end, the Commission notes that other NYSE rules governing the supervision of personnel that relate to independent contractors and small offices will remain unchanged. Thus, NYSE Interpretation /02 to Rule 345(a) will continue to provide that status as an “independent contractor” does not preclude characterization and treatment as an employee for purposes of the NYSE Constitution and Rules. Moreover, NYSE rules will continue to require that qualified supervisors perform all supervisory functions, such as approval of accounts and review of account activity.
It is therefore ordered, pursuant to section 19(b)(2) of the Act,
For the Commission, by the Division of Market Regulation, pursuant to delegated authority.
Federal Aviation Administration, DOT.
Notice of availability of proposed advisory circular and request for comments.
The Federal Aviation Administration (FAA) announces the availability of proposed advisory circular (AC) number 33.4-3,
Comments must be received on or before February 16, 2004.
Send all comments on the proposed AC to the Federal Aviation Administration, Attn: Gary Horan, Engine and Propeller Standards Staff, ANE-110, 12 New England Executive Park, Burlington, MA 01803-5299.
Gary Horan, Engine and Propeller Standards Staff, ANE-110, at the above address, telephone: (781) 238-7164; fax: (781) 238-7199; e-mail:
A copy of the subject AC may be obtained by contacting the person named under
This AC provides guidance and methods, but not the only methods, that may be used to demonstrate compliance with § 33.4 of title 14 of the Code of Federal Regulations (14 CFR 33.4), Instructions for Continued Airworthiness. This AC provides maintenance tasks to ensure the integrity of HIRF/Lightning protection features.
Federal Aviation Administration (FAA), DOT.
Notice of Intent To Rule on Application.
The FAA proposes to rule and invites public comment on the application to impose and use a PFC at the Jackson Hole Airport under the provisions of 49 U.S.C. 40117 and part 158 of the Federal Aviation Regulations (14 CFR 158).
Comments must be received on or before December 17, 2003.
Comments on this application may be mailed or delivered in triplicate to the FAA at the following address: Craig A. Sparks, Manager; Denver Airports District Office, DEN-ADO; Federal Aviation Administration; 26805 E. 68th Avenue, Suite 224; Denver, CO 80249-6361.
In addition, one copy of any comments submitted to the FAA must be mailed or delivered to Mr. George Larson, Airport Director, at the following address: Jackson Hole Airport Board, P.O. Box 159, Jackson, Wyoming 83001.
Air Carriers and foreign air carriers may submit copies of written comments previously provided to Jackson Hole Airport, under section 158.23 of part 158.
Mr. Christopher Schaffer, (303) 342-1258; Denver Airports District Office, DEN-ADO; Federal Aviation Administration; 26805 E. 68th Avenue, Suite 224; Denver, CO 80249-6361. The application may be reviewed in person at this same location.
The FAA proposes to rule and invites public comment on the application (04-09-C-00-JAC) to impose and use a PFC at the Jackson Hole Airport, under the provisions of 49 U.S.C. 40117 and part 158 of the Federal Aviation Regulations (14 CFR part 158).
On November 5, 2003, the FAA determined that the application to impose and use a PFC submitted by the Jackson Hole Airport Board, Jackson Hole Airport, Jackson, Wyoming, was substantially complete within the requirements of section 158.25 of part 158. The FAA will approve or disapprove the application, in whole or in part, no later than February 7, 2004.
The following is a brief overview of the application:
Any person may inspect the application in person at the FAA office listed above under
In addition, any person may, upon request, inspect the application, notice and other documents germane to the application in person at the Jackson Hole Airport.
Federal Highway Administration (FHWA), Georgia Department of Transportation (GDOT).
Notice of intent.
The FHWA is issuing this notice to advise the public that a supplemental draft Environmental Impact Statement (EIS) will be prepared for the proposed new location extension of US 411 in Bartow County, Georgia.
Robert M. Callan, P.E., Division Administrator, Federal Highway Administration, 61 Forsyth Street, SW., Suite 17T100, Atlanta, GA 30303-3104, Telephone (404) 562-3630 and/or Mr.
The FHWA, in cooperation with the GDOT, will prepare a supplemental draft EIS to construct a new location roadway between US 41 and I-75 in Bartow County, Georgia for a distance of approximately 7.5 miles. This new location extension of US 411 is needed to provide additional capacity and congestion relief for the existing roadway network, which currently includes common sections of US 411, SR 61 and SR 20 to access I-75. This project would provide direct, multi-lane access from Rome to I-75 and is one of the final connecting links in the Memphis to Atlanta Connector.
A Final EIS for this project was approved January 9, 1989, and the Record of Decision was signed May 25, 1989. In 1991, a suit was filed against the USDOT, FHWA and the GDOT on this project. In 1993, the United States District Court for the Northern District of Georgia acknowledged the need for the project and confirmed its independent utility from a larger east-west connector known as teh Northern Arc. However, the document was ruled inadequate because it failed to adequately study a full range of alternatives. The proposed Supplemental draft EIS will address and study a full range of alternatives for this corridor and will provide updated studies and analyses on the alternatives originally studied.
Letters describing the proposed action and soliciting comments will be sent to appropriate Federal, State, and local agencies. A public hearing will be held and a public notice will be given of the time and place of the hearing.
To ensure that the full range of issues related to this proposed project is addressed and all significant issues identified in the EIS, formal scoping will be reinitiated. Additionally, comments and suggestions are invited from all interested parties. Comments or questions concerning this proposed action should be directed to the FHWA at the address provided above.
Federal Motor Carrier Safety Administration (FMCSA), DOT.
Notice of renewal of exemption; request for comments.
This notice publishes the FMCSA decision to renew the exemptions from the vision requirement in the Federal Motor Carrier Safety Regulations for 22 individuals. The FMCSA has statutory authority to exempt individuals from vision standards if the exemptions granted will not compromise safety. The agency has concluded that granting these exemptions will provide a level of safety that will be equivalent to, or greater than, the level of safety maintained without the exemptions for these commercial motor vehicle (CMV) drivers.
This decision is effective November 30, 2003. Comments from interested persons should be submitted by December 17, 2003.
You may submit comments identified by DOT DMS Docket Numbers FMCSA-98-4334, FMCSA-99-5578, FMCSA-99-5748, FMCSA-99-6480, FMCSA-2000-7363, and FMCSA-2000-8398 by any of the following methods:
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Ms. Sandra Zywokarte, Office of Bus and Truck Standards and Operations, (202) 366-2987, FMCSA, Department of Transportation, 400 Seventh Street, SW., Washington, DC 20590-0001. Office hours are from 7:45 a.m. to 4:15 p.m., e.t., Monday through Friday, except Federal holidays.
Under 49 U.S.C. 31315 and 31136(e), the FMCSA may renew an exemption from the vision requirement in 49 CFR 391.41(b)(10), which applies to drivers of CMVs in interstate commerce, for a 2-year period if it finds “such exemption
They are: Terry J. Aldridge, Jerry D. Bridges, Michael L. Brown, Roosevelt Bryant, James C. Bryce, Thomas P. Cummings, Ralph E. Eckles, Marion R. Fox, Jr., Gary R. Gutschow, Richard J. Hanna, Peter L. Haubruck, James J. Hewitt, John K. Love, Albert E. Malley, Eldon Miles, Rodney M. Mimbs, Walter F. Moniowczak, Marvin L. Swillie, Jr., Robert Tatum, Thomas E. Walsh, Kevin P. Weinhold, and Thomas A. Wise.
These exemptions are extended subject to the following conditions: (1) That each individual have a physical exam every year (a) by an ophthalmologist or optometrist who attests that the vision in the better eye continues to meet the standard in 49 CFR 391.41(b)(10), and (b) by a medical examiner who attests that the individual is otherwise physically qualified under 49 CFR 391.41; (2) that each individual provide a copy of the ophthalmologist's or optometrist's report to the medical examiner at the time of the annual medical examination; and (3) that each individual provide a copy of the annual medical certification to the employer for retention in the driver's qualification file and retain a copy of the certification on his/her person while driving for presentation to a duly authorized Federal, State, or local enforcement official. Each exemption will be valid for 2 years unless rescinded earlier by the FMCSA. The exemption will be rescinded if: (1) The person fails to comply with the terms and conditions of the exemption; (2) the exemption has resulted in a lower level of safety than was maintained before it was granted; or (3) continuation of the exemption would not be consistent with the goals and objectives of 49 U.S.C. 31315 and 31136(e).
Under 49 U.S.C. 31315(b)(1), an exemption may be granted for no longer than 2 years from its approval date and may be renewed upon application for additional 2-year periods. In accordance with 49 U.S.C. 31315 and 31136(e), each of the 22 applicants has satisfied the entry conditions for obtaining an exemption from the vision requirements (63 FR 66226, 64 FR 16517, 66 FR 41656, 64 FR 27027, 64 FR 51568, 66 FR 63289, 64 FR 40404, 64 FR 66962, 64 FR 68195, 65 FR 20251, 65 FR 45817, 65 FR 77066, 65 FR 78256, 66 FR 16311). Each of these 22 applicants has requested timely renewal of the exemption and has submitted evidence showing that the vision in the better eye continues to meet the standard specified at 49 CFR 391.41(b)(10) and that the vision impairment is stable. In addition, a review of each record of safety while driving with the respective vision deficiencies over the past 2 years indicates each applicant continues to meet the vision exemption standards. These factors provide an adequate basis for predicting each driver's ability to continue to drive safely in interstate commerce. Therefore, the FMCSA concludes that extending the exemption for each renewal applicant for a period of 2 years is likely to achieve a level of safety equal to that existing without the exemption.
The FMCSA will review comments received at any time concerning a particular driver's safety record and determine if the continuation of the exemption is consistent with the requirements at 49 U.S.C. 31315 and 31136(e). However, the FMCSA requests that interested parties with specific data concerning the safety records of these drivers submit comments by December 17, 2003.
In the past the FMCSA has received comments from Advocates for Highway and Auto Safety (Advocates) expressing continued opposition to the FMCSA's procedures for renewing exemptions from the vision requirement in 49 CFR 391.41(b)(10). Specifically, Advocates objects to the agency's extension of the exemptions without any opportunity for public comment prior to the decision to renew, and reliance on a summary statement of evidence to make its decision to extend the exemption of each driver.
The issues raised by Advocates were addressed at length in 66 FR 17994 (April 4, 2001). The FMCSA continues to find its exemption process appropriate to the statutory and regulatory requirements.
National Highway Traffic Safety Administration, DOT.
Notice of receipt of petition for decision that nonconforming 1991-1994 Mercedes Benz S Class (140 car line) passenger cars are eligible for importation.
This document announces receipt by the National Highway Traffic Safety Administration (NHTSA) of a petition for a decision that 1991-1994 Mercedes Benz S Class (140 car line) passenger cars that were not originally manufactured to comply with all applicable Federal motor vehicle safety standards are eligible for importation into the United States because (1) they are substantially similar to vehicles that were originally manufactured for importation into and sale in the United States and that were certified by their manufacturer as complying with the safety standards, and (2) they are capable of being readily altered to conform to the standards.
The closing date for comments on the petition is December 17, 2003.
Comments should refer to the docket number and notice number, and be submitted to: Docket Management, Room PL-401, 400 Seventh St., SW., Washington, DC 20590 (docket hours are from 9 a.m. to 5 p.m.). Anyone is able to search the electronic form of all comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union,
Coleman Sachs, Office of Vehicle Safety Compliance, NHTSA (202-366-3151).
Under 49 U.S.C. 30141(a)(1)(A), a motor vehicle that was not originally manufactured to conform to all applicable Federal motor vehicle safety
Petitions for eligibility decisions may be submitted by either manufacturers or importers who have registered with NHTSA pursuant to 49 CFR part 592. As specified in 49 CFR 593.7, NHTSA publishes notice in the
Sunshine Car Import L.C. of Cape Coral, Florida (“SCI”) (Registered Importer 01-289) has petitioned NHTSA to decide whether 1991-1994 Mercedes Benz S Class (140 car line) passenger cars are eligible for importation into the United States. The vehicles which SCI believes are substantially similar are 1991-1994 Mercedes Benz S Class (140 car line) passenger cars that were manufactured for importation into, and sale in, the United States and certified by their manufacturer as conforming to all applicable Federal motor vehicle safety standards.
The petitioner claims that it carefully compared non-U.S. certified 1991-1994 Mercedes Benz S Class (140 car line) passenger cars to their U.S.-certified counterparts, and found the vehicles to be substantially similar with respect to compliance with most Federal motor vehicle safety standards.
SCI submitted information with its petition intended to demonstrate that non-U.S. certified 1991-1994 Mercedes Benz S Class (140 car line) passenger cars, as originally manufactured, conform to many Federal motor vehicle safety standards in the same manner as their U.S. certified counterparts, or are capable of being readily altered to conform to those standards.
Specifically, the petitioner claims that non-U.S. certified 1991-1994 Mercedes Benz S Class (140 car line) passenger cars are identical to their U.S. certified counterparts with respect to compliance with Standard Nos. 102
The petitioner also contends that the vehicles are capable of being readily altered to meet the following standards, in the manner indicated:
Standard No. 101
Standard No. 108
Standard No. 110
Standard No. 111
Standard No. 114
Standard No. 118
Standard No. 208
(a) Reprogramming of the instrument cluster software to activate the seat belt warning buzzer; (b) inspection of all vehicles and replacement of the driver's and passenger's air bags, control units, sensors, and seat belts with U.S.-model components on vehicles that are not already so equipped. The petitioner states that the vehicles should be equipped at the front and rear outboard seating positions with combination lap and shoulder belts that are self-tensioning and that release by means of a single red pushbutton and with a lap belt at the rear center seating position. The petitioner further states that the vehicles are equipped with a seat belt warning lamp that is identical to the lamp installed on U.S.-certified models.
Standard No. 214
Standard No. 301
The petitioner states that all vehicles must be inspected for compliance with the Bumper Standard found in 49 CFR part 581 and that U.S.-model components necessary to achieve compliance with the standard must be installed on vehicles that are not already so equipped.
The petitioner also states that a vehicle identification plate must be affixed to the vehicles near the left windshield post and a reference and certification label must be affixed in the area of the left front door post to meet the requirements of 49 CFR part 565. The petitioner further states that a certification label must be affixed to the driver's door latch post to meet the requirements of 49 CFR part 567.
Interested persons are invited to submit comments on the petition described above. Comments should refer to the docket number and be submitted to: Docket Management, Room PL-401, 400 Seventh St., SW., Washington, DC 20590 (docket hours are from 9 a.m. to 5 p.m.). It is requested but not required that 10 copies be submitted.
All comments received before the close of business on the closing date indicated above will be considered, and will be available for examination in the docket at the above address both before and after that date. To the extent possible, comments filed after the closing date will also be considered. Notice of final action on the petition will be published in the
49 U.S.C. 30141(a)(1)(A) and (b)(1); 49 CFR 593.8; delegations of authority at 49 CFR 1.50 and 501.8.
National Highway Traffic Safety Administration, DOT.
Notice of receipt of petition for decision that nonconforming 1999 Chevrolet Corvette Coupe passenger cars are eligible for importation.
This document announces receipt by the National Highway Traffic Safety Administration (NHTSA) of a petition for a decision that 1999 Chevrolet Corvette Coupe passenger cars that were not originally manufactured to comply with all applicable Federal motor vehicle safety standards are eligible for importation into the United States because (1) they are substantially similar to vehicles that were originally manufactured for sale in the United States and that were certified by their manufacturer as complying with the safety standards, and (2) they are capable of being readily altered to conform to the standards.
The closing date for comments on the petition is December 17, 2003.
Comments should refer to the docket number and notice number, and be submitted to: Docket Management, Room PL-401, 400 Seventh St., SW., Washington, DC 20590 (docket hours are from 9 a.m. to 5 p.m.). Anyone is able to search the electronic form of all comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union,
Coleman Sachs, Office of Vehicle Safety Compliance, NHTSA (202-366-3151).
Under 49 U.S.C. 30141(a)(1)(A), a motor vehicle that was not originally manufactured to conform to all applicable Federal motor vehicle safety standards shall be refused admission into the United States unless NHTSA has decided that the motor vehicle is substantially similar to a motor vehicle originally manufactured for importation into and sale in the United States, certified under 49 U.S.C. 30115, and of the same model year as the model of the motor vehicle to be compared, and is capable of being readily altered to conform to all applicable Federal motor vehicle safety standards.
Petitions for eligibility decisions may be submitted by either manufacturers or importers who have registered with NHTSA pursuant to 49 CFR part 592. As specified in 49 CFR 593.7, NHTSA publishes notice in the
Sunshine Car Import L.C. of Cape Coral, Florida (“SCI”) (Registered Importer 01-289) has petitioned NHTSA to decide whether 1999 Chevrolet Corvette Coupe passenger cars originally manufactured for sale in foreign markets are eligible for importation into the United States. The vehicles which SCI believes are substantially similar are 1999 Chevrolet Corvette Coupe passenger cars that were manufactured for sale in the United States and certified by their manufacturer as conforming to all applicable Federal motor vehicle safety standards.
The petitioner claims that it carefully compared non-U.S. certified 1999 Chevrolet Corvette Coupe passenger cars to their U.S.-certified counterparts, and found the vehicles to be substantially similar with respect to compliance with most Federal motor vehicle safety standards.
SCI submitted information with its petition intended to demonstrate that non-U.S. certified 1999 Chevrolet Corvette Coupe passenger cars, as originally manufactured, conform to many Federal motor vehicle safety standards in the same manner as their U.S. certified counterparts, or are capable of being readily altered to conform to those standards.
Specifically, the petitioner claims that non-U.S. certified 1999 Chevrolet Corvette Coupe passenger cars are identical to their U.S. certified counterparts with respect to compliance with Standard Nos. 101
The petitioner states that the vehicles also comply with the Bumper Standard found in 49 CFR part 581.
The petitioner also contends that the vehicles are capable of being readily altered to meet the following standards, in the manner indicated:
Standard No. 108
Standard No. 110
Standard No. 111
Standard No. 118
Standard No. 214
The petitioner states that all vehicles must be inspected for compliance with the Theft Prevention Standard found in 49 CFR 541, and that an anti-theft system capable of immobilizing the vehicle must be installed in any vehicles that are not already so equipped.
The petitioner also states that a vehicle identification plate must be affixed to the vehicles near the left windshield post and a reference and certification label must be affixed in the area of the left front door post to meet the requirements of 49 CFR part 565. The petitioner further states that a
Interested persons are invited to submit comments on the petition described above. Comments should refer to the docket number and be submitted to: Docket Management, Room PL-401, 400 Seventh St., SW., Washington, DC 20590 (docket hours are from 9 a.m. to 5 p.m.). It is requested but not required that 10 copies be submitted.
All comments received before the close of business on the closing date indicated above will be considered, and will be available for examination in the docket at the above address both before and after that date. To the extent possible, comments filed after the closing date will also be considered. Notice of final action on the petition will be published in the
49 U.S.C. 30141(a)(1)(A) and (b)(1); 49 CFR 593.8; delegations of authority at 49 CFR 1.50 and 501.8.
Office of Pipeline Safety (OPS), Research and Special Programs Administration (RSPA), DOT.
Notice; issuance of advisory bulletin.
This document provides guidance to operators of gas transmission pipelines on the requirement in 49 U.S.C. 60109 that operators begin the baseline integrity assessment of pipeline segments located in high consequence areas no later than June 17, 2004. Trade associations representing natural gas pipeline companies affected by this requirement, have asked for guidance on what actions an operator must take to begin a baseline assessment. This document provides guidance to gas transmission operators on what initial steps RSPA/OPS expects each operator to take to begin the baseline integrity assessment to meet the intent of the statute.
You may contact the Dockets Facility by phone at (202) 366-9329, for copies of this document or other material in the docket. All materials in this docket may be accessed electronically at
Anyone is able to search the electronic form of all comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review DOT's complete Privacy Act Statement in the
Mike Israni by phone at (202) 366-4571, by fax at (202) 366-4566, or by e-mail at
The Federal Pipeline Safety Statute (49 U.S.C. 60109(c)) requires that RSPA/OPS issue regulations, by December 17, 2003, establishing requirements for integrity management programs for gas transmission pipelines in high consequence areas. The statute also imposes requirements directly on gas pipeline operators. The statute requires each gas pipeline operator to adopt an integrity management program for pipeline segments located in high consequence areas by December 17, 2004, and to begin the baseline integrity assessment of those segments no later than June 17, 2004. The statute requires that an operator complete the baseline assessment on all the operator's gas transmission pipeline segments in high consequence areas by December 17, 2012, with at least 50 percent of those segments being assessed no later than December 17, 2006. An operator must also reassess each of the segments every 7 years.
Trade associations that represent gas pipeline operators have requested guidance on what actions are necessary for an operator to have begun the required baseline assessment process by the statutory deadline. This advisory bulletin gives guidance on the actions RSPA/OPS expects an operator to take by June 17, 2004 for the operator to be considered as having begun the baseline assessment.
On August 6, 2002, RSPA/OPS published a final rule defining high consequence areas,
RSPA/OPS expects that by June 17, 2004, an operator will have identified many high consequence areas along its transmission pipelines though operation and maintenance activities on the pipeline right-of-way, including patrolling, that the operator conducts on a routine basis, and through the guidance RSPA/OPS provided on how to determine the identified sites component with the help of emergency response officials. An operator will also have integrated all available data and information the operator has available on those high consequence areas to prioritize segments that are high risk, and to have begun selecting the assessment method best suited for each segment and scheduling the assessment of the high risk segments.
Prior to June 17, 2004, each operator must have begun to—
• Identify segments that are located in high consequence areas;
• Integrate available data on those identified segments;
• Prioritize the highest risk segments from available data on those identified segments; and
• Select the assessment method best suited to assess (pressure-test, internal inspection devices, direct assessment, or alternative method) each high risk segment.
By June 17, 2004, each operator must have begun its preparation to conduct a baseline assessment on at least one high risk segment that the operator has already identified. Preparing to conduct a baseline assessment means that—
• An operator has scheduled for assessment the segments identified prior to June 17, 2004; and
• An operator has started to contract or has entered into a contract with a tool vendor to assess the identified segments; or
• An operator has started to assess the first scheduled segment.
RSPA/OPS also considers that any of the following actions as meeting the intent of the statute that an operator have begun the baseline integrity assessment process by June 17, 2004. The following actions are not the only actions that RSPA/OPS will accept.
• An operator has installed launchers or receivers for internal inspection devices;
• An operator has set up a segment for a pressure test; or
• An operator has completed the pre-assessment step for Direct Assessment.
Pursuant to section 10(a)(2) of the Federal Advisory Committee Act (Pub. L. 92-463; 5 U.S.C. App. I) notice is hereby given of a meeting of the Advisory Board of the Saint Lawrence Seaway Development Corporation (SLSDC), to be held at 11 a.m. on Thursday, November 20, 2003, at the Office of the Administrator, 400 Seventh Street, SW., Washington, DC, room 5424, by conference call. The agenda for this meeting will be as follows: Opening Remarks; Consideration of Minutes of Past Meeting; Review of Programs; New Business; and Closing Remarks.
Attendance at meeting is open to the interested public but limited to the space available. With the approval of the Administrator, members of the public may present oral statements at the meeting. Persons wishing further information should contact, not later than November 19, 2003, Anita K. Blackman, Chief of Staff, Saint Lawrence Seaway Development Corporation, 400 Seventh Street, SW., Washington, DC 20590; 202-366-0091.
Any member of the public may present a written statement to the Advisory Board at any time.
Surface Transportation Board.
Notice of Availability of Environmental Appendix and Request for Comments.
CN has filed an application with the Surface Transportation Board (Board) seeking approval under 49 U.S.C. 11321-11325 to acquire control of three rail carriers—Duluth, Missabe and Iron Range Railway Company; Bessemer and Lake Erie Railroad Company; and The Pittsburgh & Conneaut Dock Company—from Great Lakes Transportation, LLC (GLT).
CN has met with the Board's Section of Environmental Analysis (SEA) and has explained to SEA that CN believes that its proposed transaction would not have significant environmental impacts or require further environmental review. Therefore, according to CN, the Board should exercise its authority under 49 CFR 1105.6(d) and find that this transaction is one for which preparation of an Environmental Assessment or an Environmental Impact Statement is not required. To afford the public an opportunity to review and comment on CN's conclusion, CN has prepared an “Environmental Appendix,” which provides further information in support of CN's conclusion. CN has mailed copies of the Environmental Appendix to appropriate government agencies and other interested parties. CN has also placed notices in major newspapers delivered to communities located in the project area announcing the availability of the Environmental Appendix and the opportunity for public review and comment on the Environmental Appendix.
Comments are due to SEA by December 10, 2003. SEA invites written comments on all aspects of the Environmental Appendix and whether there is any reason that the proposed transaction could result in potentially significant environmental impacts warranting preparation of further environmental documentation. SEA will consider all timely written comments on the Environmental Appendix when making its recommendation to the Board about whether there is a need for further environmental review in this case. Comments should be submitted to the address below.
Comments on the Environmental Appendix are due by December 10, 2003.
Comments (an original and 10 copies) regarding the Environmental Appendix should be submitted in writing to: Case Control Unit, STB Finance Docket No. 34424, Surface Transportation Board, 1925 K Street NW., Washington, DC 20423, to the attention of Phillis Johnson-Ball.
Phillis Johnson-Ball, (202) 565-1530 (TDD for the hearing impaired, 1-800-877-8339). To obtain a copy of the Environmental Appendix, you may contact Ms. Johnson-Ball at the number above or Mr. Paul Cunningham, CN's legal representative, at (202) 973-7600. Copies of the Environmental Appendix are available on the Board's Web site
By the Board, Victoria Rutson, Chief, Section of Environmental Analysis.
The Department of the Treasury has submitted the following public information collection requirement(s) to OMB for review and clearance under the Paperwork Reduction Act of 1995, Public Law 104-13. Copies of the submission(s) may be obtained by calling the Treasury Bureau Clearance Officer listed. Comments regarding this information collection should be addressed to the OMB reviewer listed and to the Treasury Department Clearance Officer, Department of the Treasury, Room 11000, 1750 Pennsylvania Avenue, NW., Washington, DC 20220.
Written comments should be received on or before December 17, 2003 to be assured of consideration.
Internal Revenue Service (IRS), Treasury.
Notice.
An open meeting of the E-Filing Issue Committee will be conducted (via teleconference). The Taxpayer Advocacy Panel is soliciting public comment, ideas, and suggestions on improving customer service at the Internal Revenue Service.
The meeting will be held Thursday, December 11, 2003, from 3 to 4 p.m., Eastern Standard Time.
Mary Ann Delzer at 1-888-912-1227, or (414) 297-1604.
Notice is hereby given pursuant to section 10(a)(2) of the Federal Advisory Committee Act, 5 U.S.C. App. (1988) that an open meeting of the Taxpayer Advocacy Panel, E-Filing Issue Committee will be held Thursday, December 11, 2003, from 3 to 4 p.m., Eastern standard time via a telephone conference call. You can submit written comments to the panel by faxing to (414) 297-1623, or by mail to Taxpayer Advocacy Panel, Stop 1006MIL, 310 West Wisconsin Avenue, Milwaukee, WI 53203-2221. Public comments will also be welcome during the meeting. Please contact Mary Ann Delzer at 1-888-912-1227 or (414) 297-1604 for dial-in information.
The agenda will include the following: Various IRS issues.
Securities and Exchange Commission.
Final rule.
We are adopting amendments to Rule 10b-18 under the Securities Exchange Act of 1934 (Exchange Act), which provides issuers with a “safe harbor” from liability for manipulation when they repurchase their common stock in the market in accordance with the Rule's manner, timing, price, and volume conditions. The amendments are intended to simplify and update the safe harbor provisions in light of market developments since the Rule's adoption. To enhance the transparency of issuer repurchases, we also are adopting amendments to a number of regulations and forms to require disclosure of all issuer repurchases (open market and private transactions), regardless of whether the repurchases are effected in accordance with the safe harbor rule.
The repurchase disclosure required by new Item 8 and Item 10(a)(3) of Form N-CSR must appear in reports filed on this form by registered closed-end management investment companies for periods ending on or after June 15, 2004. A registered closed-end management investment company need not file reports on Form N-23C-1 with respect to any repurchases during any calendar month following June 2004.
James Brigagliano, Assistant Director, Joan Collopy, Special Counsel, or Elizabeth Sandoe, Special Counsel, Office of Risk Management and Control, Division of Market Regulation, at (202) 942-0772, or, with respect to the disclosure amendments, Sean Harrison, Special Counsel, Office of Rulemaking, Division of Corporation Finance, at (202) 942-2900, or, John Faust, Attorney Adviser, Office of Disclosure Regulation, Division of Investment Management, at (202) 942-0721, at the Securities and Exchange Commission, 450 Fifth Street, NW, Washington, DC 20549.
We are adopting amendments to Rule 10b-18 under the Exchange Act [17 CFR 240.10b-18], Regulations S-K and S-B [17 CFR 229.703 and 228.703], Exchange Act Forms 10-Q [17 CFR 249.308a], 10-QSB [17 CFR 249.308b], 10-K [17 CFR 249.310], 10-KSB [17 CFR 310b], and 20-F [17 CFR 249.220f], Form N-CSR under the Exchange Act and the Investment Company Act of 1940 (Investment Company Act) [17 CFR 249.331 and 274.128], and Rule 23c-1 [17 CFR 270.23c-1], and Form N-23C-1 [17 CFR 274.201] under the Investment Company Act.
On December 10, 2002, we proposed amendments to Rule 10b-18, Regulations S-K and S-B, Forms 10-Q, 10-QSB, 10-K, 10-KSB, 20-F, and N-CSR,
• Modify the definition of a “Rule 10b-18 purchase” to incorporate the current “Rule 10b-18 bid” definition;
• Clarify the scope of the exclusion for purchases effected “pursuant to a merger, acquisition, or similar transaction involving a recapitalization”;
• Modify the timing condition by applying an average daily trading volume (ADTV) value and public float value test to determine when an issuer must be out of the market before the scheduled close of trading in order to qualify for the safe harbor;
• Apply a uniform price condition that limits issuers to purchasing their securities at a price that does not exceed the highest independent bid or the last independent transaction price, whichever is higher;
• Modify the volume condition's treatment of block purchases by including block purchases in calculating a security's ADTV and the 25% volume limitation;
• Apply an alternative volume condition (applicable only during the trading session immediately following a market-wide trading suspension), which would increase the 25% volume limitation to 100%; and
• Amend Regulations S-K and S-B, and Forms 10-Q, 10-QSB, 10-K, 10-KSB, and 20-F under the Exchange Act, and Form N-CSR under the Exchange Act and the Investment Company Act, to require disclosure of all issuer repurchases (open market and private transactions) of equity securities, regardless of whether the repurchases are effected in accordance with Rule 10b-18.
We received letters from 43 commenters in response to the Proposing Release.
After considering the comments received, and upon thorough examination of current market practices and the purposes underlying the safe harbor, we are adopting the amendments substantially as proposed, but with some modifications to clarify provisions or to address commenters' concerns (particularly with respect to the “block exception” and the “merger exclusion”), as discussed below. In response to comments received, we also are adopting an amendment that will extend the safe harbor for certain issuer repurchases effected during after-hours trading sessions.
In 1982, the Commission adopted Rule 10b-18,
Although the safe harbor conditions are intended to offer issuers guidance when repurchasing their securities in the open market, Rule 10b-18 is not the exclusive means of making non-manipulative issuer repurchases. As the Rule states, there is no presumption that bids or purchases outside of the safe harbor violate Sections 9(a)(2) or 10(b) of the Exchange Act, or Rule 10b-5 under the Exchange Act.
Rule 10b-18 applies to bids for and purchases of an issuer's common stock by or for an issuer.
Rule 10b-18 provides a safe harbor for purchases on a given day. To come within the safe harbor for that day, an issuer must satisfy the Rule's manner, timing, price, and volume conditions when purchasing its own common stock in the market.
The manner of purchase condition requires an issuer to use a single broker or dealer per day to bid for or purchase its common stock. This requirement is intended to avoid the appearance of widespread trading in a security that could result if the issuer uses many brokers or dealers to repurchase its stock.
Moreover, where an issuer engages a single coordinating broker or dealer to make its Rule 10b-18 purchases, the broker or dealer can make (consistent with the single broker or dealer condition) appropriate and customary arrangements with other brokers or dealers, including exchange specialists, or “two-dollar” brokers on exchange floors to execute repurchases.
The timing condition restricts the periods during which the issuer may bid for or purchase its common stock. Currently, this condition excludes from the safe harbor purchases at the opening and during the last half hour of trading because market activity at such times is considered to be a significant indicator of the direction of trading, the strength of demand, and the current market value of the security.
The price condition specifies the highest price an issuer may bid or pay for its common stock.
The volume condition limits the amount of securities an issuer may repurchase in the market in a single day. The volume condition is designed to prevent an issuer from dominating the market for its securities through substantial purchasing activity.
Under the current volume condition, an issuer may effect daily purchases in an amount up to 25% of the ADTV in its shares (the “25% volume limitation”).
The definition also provides that a block does not include any amount a broker or dealer, acting for its own account, has accumulated for the purpose of selling to the issuer, if the issuer knows or has reason to know that such amount was accumulated for such purpose. The definition also excludes any amount that a broker or dealer has sold short to the issuer, if the issuer knows or has reason to know that the sale was a short sale.
We are adopting the two preliminary notes to Rule 10b-18 as proposed. The first note explains that, as a safe harbor, compliance with Rule 10b-18 is voluntary. However, to come within the safe harbor, an issuer's repurchases must satisfy (on a daily basis) each of the Rule's four conditions. Failure to meet any one of the four conditions removes all of the issuer's repurchases from the safe harbor for that day. Because we are adopting this sentence as part of the preliminary notes to the Rule, we have decided that it is unnecessary to also include this sentence in paragraph (d), as we had originally proposed. The note also states that the safe harbor is not available for repurchases that, although made in technical compliance with the Rule, are part of a plan or scheme to evade the federal securities laws.
The second note states that, regardless of whether the repurchases are effected in accordance with Rule 10b-18, reporting issuers must comply with the new disclosure provisions,
While not making any substantive changes to the scope of the Rule, we are adopting the proposed amendment to merge the current definition of “Rule 10b-18 bid”
We proposed to amend the definition of “Rule 10b-18 purchase” to clarify that the current exception for purchases effected “pursuant to a merger, acquisition, or similar transaction
Some of the commenters, however, argued that the proposed amendment would drastically expand the scope of the current exclusion and that Regulation M's restricted periods
After considering the comments, and in view of the fact that we are limiting the amount that can be repurchased within the safe harbor (as discussed below and in Section III.B.6 of this Release), we have determined that it is not necessary to exclude from the safe harbor all issuer repurchase activity following the announcement of a merger, acquisition, or similar transaction involving a recapitalization. Instead, as adopted in 10b-18(a)(13)(iv), the merger exclusion applies to purchases that are effected during the period from the time of public announcement of a merger, acquisition, or similar transaction involving a recapitalization, until the earlier of the completion of such transaction or the completion of the vote by target shareholders (including during any period where the market price of a security will be a factor in determining the consideration to be paid pursuant to a merger, acquisition, or similar transaction),
The exclusion does not extend to transactions in which the consideration is solely cash and there is no valuation period (
While not making any substantive changes, we are shortening the language in subsection (a)(13)(i) (regarding purchases made during a Rule 102 of Regulation M restricted period) to read simply: “effected during the applicable restricted period of a distribution that is subject to Section 242.102 of this chapter.”
In addition, if the issuer made block purchases within the safe harbor (pursuant to paragraph (b)(4) of the amended Rule) over the course of the three full calendar months prior to the announcement of a merger or other covered transaction, then the issuer may make block purchases within the safe harbor with the same average size and frequency during the post-announcement period. For example, if a thinly traded issuer purchased three blocks over the course of the three full calendar months prior to a merger announcement (an average of one block per month) and the average block size was 7,800 shares, then the issuer could purchase a block no larger than 7,800 shares each month during the post-announcement period (subject to other applicable restrictions). If the issuer did not make any block purchases under the amended block exception during the three-month period, the issuer could not utilize the amended block exception during the post-announcement period.
Issuers are reminded that the safe harbor is not available for repurchases that, although made in technical compliance with the Rule, are fraudulent or manipulative, when viewed in the totality of the facts and circumstances surrounding the repurchases. See Adopted Preliminary Notes to Rule 10b-18.
We believe that limiting the amount an issuer may repurchase following the announcement of a merger or other covered transaction will safeguard against the heightened potential for manipulative abuse during this sensitive
We received other comments suggesting further changes that we have not incorporated into the amended Rule because we continue to believe that issuers may have an incentive to manipulate in the situations raised by commenters. For example, some commenters suggested the safe harbor should be available for transactions that the issuer deems immaterial. They also expressed concern that, in addition to lengthy regulatory delays, multiple, overlapping transactions would similarly preclude an issuer from relying on the safe harbor for extensive time periods.
Materiality is judged from the perspective of a reasonable investor, not a subjective issuer.
In summary, Rule 10b-18 is intended to protect issuer repurchases from manipulation charges when the issuer has no special incentive to interfere with the ordinary forces of supply and demand affecting its stock price. Therefore, it is not appropriate for the safe harbor to be available when the issuer has a heightened incentive to manipulate its share price. As discussed above, in these circumstances, issuers have the flexibility to purchase outside the safe harbor (unless constrained by other provisions of law) without any presumption that they are engaged in manipulation. While issuers argue that they are reluctant to repurchase outside the safe harbor, we do not find that argument sufficiently persuasive to make the safe harbor available where there is the heightened potential for issuer manipulation.
In the Proposing Release, we sought comment as to whether the Rule 10b-18 safe harbor should apply to issuer repurchases effected in markets outside of the United States. While the safe harbor currently applies only to issuer repurchases effected in the United States, a few commenters suggested that we amend Rule 10b-18 to apply to non-U.S. markets.
After considering the comments, we have determined not to extend the safe harbor to issuer repurchases effected outside of the United States. The safe harbor was crafted based on the manner in which the securities markets operate in United States. We do not believe currently that a workable rule could be created for universal application both inside
The safe harbor applies to Rule 10b-18 purchases made by or for an “affiliated purchaser” of the issuer. An “affiliated purchaser” of the issuer is currently defined as a person acting in concert
We believe the current definition of “affiliated purchaser” has proved to be a workable one, and that an expanded, more complex definition, would unnecessarily complicate the Rule. Therefore, we are not revising the definition of “affiliated purchaser” at this time, except to add the words “directly or indirectly” to the “acting in concert” language in subparagraph (a)(3)(i) of the Rule in order to make it consistent with the “acting in concert” language in Regulation M.
While we did not propose making any substantive changes to the “single broker or dealer” condition, several commenters asked us to clarify the application of the single broker or dealer
We are adopting the proposed amendments that add an ADTV value and public float value test to determine the time when an issuer must be out of the market before the scheduled close of trading in order to qualify for the safe harbor.
As adopted, the timing condition would work as follows: to qualify for the safe harbor, issuers of more liquid securities (
In calculating the dollar value of ADTV, any reasonable and verifiable method may be used. For example, it may be derived from multiplying the number of shares by the price in each trade, or from multiplying each day's total volume of shares by the closing price on that day. Public float value (
Issuers of all other eligible securities (
We had proposed to explicitly exclude Rule 10b-18 purchases “after the termination of the period in which last sale prices are reported in the consolidated system” in order to emphasize that the safe harbor applies only to reported, open market purchases.
In the Proposing Release, we also sought comment as to whether the Rule's timing condition should be modified to allow issuers of more liquid securities (
We are adopting the proposed amendment to apply a uniform price condition that limits all issuers to purchasing their securities at a price that does not exceed the highest independent bid or the last independent transaction price, whichever is higher, quoted or reported in the consolidated system.
In the Proposing Release, we also sought comment as to whether Rule 10b-18's price condition should apply where the issuer has no control, directly or indirectly, over the price at which a Rule 10b-18 purchase will be effected, for example, “passive” (independently-derived) pricing, such as the VWAP. Several commenters favored excepting VWAP transactions from the Rule's pricing condition. One commenter specifically urged the Commission to except VWAP transactions from the pricing condition because VWAP matches do not influence price or provide price discovery.
After considering the comments, we believe that excepting VWAP transactions from the Rule's pricing condition is premature at this time. However, we will continue to consider the commenters' recommendations, as well as current market practices involving VWAP transactions, in considering whether any future changes to the Rule are appropriate.
In the Proposing Release, we sought specific comment regarding the application of Rule 10b-18 to riskless principal transactions. Riskless principal transactions raise the issue of how to apply the safe harbor to the two “legs” of the transaction: the broker-dealer's purchase in the market for its own account; and the issuer's purchase of the shares from the broker-dealer. The issuer and the broker-dealer (buying on behalf of the issuer) may seek to claim the protection of the safe harbor for both legs of the transaction.
We believe that the safe harbor should apply to riskless principal trades that are analogous to agency trades effected on behalf of the issuer. Thus, the safe harbor should apply only to those riskless principal transactions where both legs are effected at the same price and only one leg is reported to the market (
Under the current volume condition, an issuer's block purchases are not subject to the Rule's 25% volume limitation, nor are the shares purchased by the issuer in block transactions included when calculating a security's four week ADTV.
Under the proposed amendments, to qualify for the safe harbor, an issuer would have to include its block purchases in its 25% volume limitation. However, the issuer also could include its block purchases in calculating its
Twenty-six of the 43 comment letters we received discussed the treatment of block purchases, all of which opposed our proposal to eliminate the block exception. Most of the support for retaining the block exception came from companies with moderate or low average daily trading volumes. These issuers say that they rely heavily on the block transactions to implement their repurchase programs and argue that eliminating the block exception would cause their repurchase programs to take much longer to complete.
As alternatives to eliminating the block exception, several commenters suggested raising the amount of shares in a block to the NYSE definition (
We believe eliminating the current block exception is essential if we are to maintain a limit on the amount of repurchase activity that is protected under the safe harbor.
These situations illustrate that the potential for manipulative abuse can be exacerbated by the block exception. Moreover, extending a safe harbor for issuer repurchases without any effective limit on the amount of repurchase activity undermines the original objectives of the Rule. For example, the current block exception may allow companies to engage in undisclosed stabilization and market domination, or the exception may be used by companies to engage in aggressive buybacks in order to enhance exchange ratios for their common stock. These activities can mislead investors about the integrity of the securities trading market as an independent pricing mechanism.
The predicate assumption of the commenters—that significant abuse must exist before any revisions to the safe harbor are warranted—may be appropriate for a prohibitive rule, but it is not necessary when the Commission is determining whether a safe harbor is warranted. We believe that safe harbors should facilitate only those activities that clearly present no cause for regulatory concern. In the case of the block exception, there is cause for regulatory concern.
After carefully considering the comments received, and upon thorough examination of current market practices and the underlying purposes of the safe harbor, we are adopting the proposed amendments relating to the volume condition's treatment of block purchases, with some modifications in response to comments received. Under the amended volume condition, to qualify for the safe harbor, an issuer's total volume of Rule 10b-18 purchases effected on any single day must not exceed 25% of the ADTV in its security, which includes any block-size purchases by or on behalf of the issuer for that day. Issuers, however, can include their block-size purchases when calculating its security's four-week ADTV.
In view of commenters' concerns that eliminating the block exception would negatively affect issuers with moderate or low average daily trading volumes
We carefully considered whether to allow issuers to effect one block purchase per day (rather than per week). However, commenters noted that even one block purchase for a thinly traded issuer could be greater than 25% of its ADTV on a particular day. Rule 10b-18's conditions are intended to minimize the market impact of an issuer's repurchases, thereby allowing the market to establish a security's price based on independent market forces without undue influence by the issuer. Allowing small, thinly traded issuers to use the block exception each trading day so that they might enjoy safe harbor protection for purchasing more than 25% of their ADTV for each of these days is inconsistent with the purpose of the Rule, investor protection and market integrity. If there is no true volume limitation, that condition is meaningless and safe harbor protection is inappropriate. We stress, however, that there is no presumption of manipulation if the issuer decides to purchase a block outside the safe harbor.
We also wish to reiterate that Rule 10b-18 is not the exclusive means by which issuers and their affiliated purchasers may effect purchases of the issuer's stock without manipulating the market. In fact, the Commission has long recognized that there may be circumstances under which an issuer could effect repurchases outside the volume limitation without raising manipulative concerns, and indeed that failure to satisfy the conditions of the safe harbor does not give rise to any presumption that the activity is manipulative.
Since the adoption of Rule 10b-18, the opportunity for investors to trade securities after the markets' regular trading sessions (“after-hours trading”) has increased.
In the Proposing Release, we asked whether the safe harbor should be available to other issuer repurchases effected during after-hours trading and, if so, how should the safe harbor conditions apply to each separate trading session in one day. One commenter suggested that the safe harbor be available as long as the consolidated reporting system is open, so that the safe harbor would be available up to 30 minutes prior to the close of the consolidated tape with a price limit that is no higher than the closing price of the regular trading session (subject to bids or sales subsequently reported to the tape by other markets).
After considering the comments, we have decided to extend the safe harbor to issuer repurchases effected after-hours (while the consolidated system is still open) and that are effected at prices that do not exceed the lower of the closing price of the primary trading session in the principal market for the security and any lower bids or sale prices subsequently reported in the consolidated system by other markets.
For many market centers, including the NYSE and the Nasdaq Stock Market, primary (or regular) trading sessions currently run from 9:30 a.m. to 4 p.m. Eastern Time. For securities that do not have a principal market, the issuer would need to look to the closing price of the primary trading session in the listing market for the security.
In view of the extreme market volatility that would trigger a circuit breaker and the desirability of facilitating liquidity in that context, we are adopting our proposed amendment to modify the safe harbor alternative conditions (which are applicable only during the trading session immediately following a market-wide trading suspension), by increasing the 25% volume limitation to 100% of a security's ADTV.
In the event that there is another “market emergency” that does not fit within the meaning of a “market-wide trading suspension” (as defined under the rule), as was the case with the events following September 11, the Commission would have the same emergency and exemptive authority as above (
In the Proposing Release, we sought comment as to whether Rule 10b-18's “alternative conditions” should apply where there is a significant decline in the market price of an
To enhance the transparency of issuer repurchases, we proposed that Regulations S-K and S-B, and Forms 10-Q, 10-QSB, 10-K, 10-KSB, 20-F (for foreign private issuers), and N-CSR (for closed-end funds) be amended to require periodic disclosure of all issuer repurchases of equity securities. These disclosure requirements would be independent of the Rule 10b-18 safe harbor.
Under the proposed amendments, issuers would be required to disclose, among other things, the total number of shares repurchased during the past quarter, the average price paid per share, the number of shares that were purchased as part of a publicly announced repurchase plan, and the maximum number (or approximate dollar value) of shares that may yet be purchased under the plans or programs.
Most of the commenters expressed support for enhanced transparency through the proposed disclosure and agreed that issuer disclosure in periodic filings of repurchases of their equity securities would provide investors with useful information about the level, frequency and purpose of such activity by an issuer and its affiliates.
However, commenters generally believed that disclosure of the broker-dealer's identity is an unnecessary disclosure of confidential business information that could provide an informational advantage to other market participants.
After consideration of the above comments, and the concerns expressed about disclosure of the broker-dealer's identity, and in view of the fact that most of the commenters agreed that publicly available information about issuer repurchasing activity would be useful for investors, we are adopting the proposed tabular disclosure requirements, with one modification. Specifically, the final rules will not require issuers to disclose the identity of the broker-dealer(s) used to effect the purchases.
As adopted, Regulations S-K and S-B, and Forms 10-Q, 10-QSB, 10-K, 10-KSB, 20-F, and N-CSR are amended to require periodic disclosure of all issuer repurchases of shares or other units of any class of the issuer's “equity securities”
New Item 16E to Form 20-F requires the same tabular presentation of information (again, pursuant to the adopted amendments, the identity of the broker-dealer effecting the transactions will not be required in the table included in Form 20-F). However, a foreign private issuer that has securities registered under Section 12 of the Exchange Act is required to disclose on a yearly basis in its annual report on Form 20-F its repurchases of its securities. The disclosure provided relates to the issuer's securities in ordinary share form, whether the issuer has repurchased the shares itself or depositary receipts that represent the shares. The price data and other data should be stated in the same currency used in the issuer's primary financial statements.
One commenter noted that many foreign private issuers are subject to regulatory regimes in their home countries with respect to the repurchase of shares and suggested that these issuers be permitted to include disclosure in their Form 20-F annual reports that was based on home country disclosure requirements instead of our proposed disclosure requirements.
The final rules also require footnote disclosure of the principal terms of publicly announced repurchase plans or programs, including: (1) The date of announcement, (2) the share or dollar amount approved, (3) the expiration date (if any) of the plans or programs, (4) each plan or program that has expired during the period covered by the table, and (5) each plan or program that the issuer has determined to terminate prior to expiration or under which the issuer does not intend to make further purchases.
We initially proposed to require additional footnote disclosure of each plan or program that the issuer has not purchased under during the period covered by the table, and whether the issuer still intends to purchase under that plan or program. Several commenters opposed the proposed disclosure of an issuer's intent to make future purchases under an announced plan or program. One commenter noted that a board's authorization of a purchase plan or program typically is general enough as to provide management with considerable flexibility to respond to market conditions in executing the plan.
Based on commenters' remarks, we have modified the footnote disclosure to instead require an issuer to disclose each plan or program under which the issuer does not intend to make further purchases. Because an issuer therefore will only have to provide this disclosure after it has made a determination to stop making purchases under a particular plan or program, there will be no need for the issuer to speculate about its future intent. The revision also will obviate the need for issuers to include boilerplate representations in their periodic reports indicating that they may continue to make purchases under announced plans or programs.
The table also must include footnotes that briefly disclose the nature of the transaction for purchases made other than pursuant to a publicly announced repurchase plan or program. These include, for example, open market and privately negotiated purchases, issuer tender offers, purchases made by the issuer upon another person's exercise of outstanding put rights, and in other transactions through which the company purchases its Section 12 registered equity securities.
We believe information about how much common stock the issuer has repurchased is important to investors.
The importance of requiring disclosure of issuer repurchases was made more apparent when the Commission temporarily afforded emergency relief regarding Rule 10b-18 following the September 11, 2001 attacks.
Closed-end funds will provide the required disclosure regarding their repurchases semi-annually on Form N-CSR. We believe that, as with other issuers, additional disclosure regarding repurchases by closed-end funds will be useful to investors.
We are eliminating the current requirement for closed-end funds to disclose information regarding privately negotiated repurchases of their securities on Form N-23C-1. One commenter noted that the current requirement would be duplicative, in light of the new disclosure required on Form N-CSR, and we agree.
We are also adopting a conforming technical amendment to Rule 23c-1 under the Investment Company Act. Currently, Rule 23c-1(a)(11) requires a closed-end fund to file a copy of any written solicitation to purchase securities under the rule sent or given during the prior month by or on behalf of the fund to 10 or more persons together with Form N-23C-1. Because we are eliminating Form N-23C-1, we are amending Rule 23c-1 and Form N-CSR to require closed-end funds to use Form N-CSR to comply with the requirement to file such a solicitation.
The adopted amendments to Regulations S-K, S-B, Forms 10-Q, 10-QSB, 10-K, 10-KSB, 20-F, and N-CSR contain collection of information requirements within the meaning of the Paperwork Reduction Act of 1995.
Compliance with the adopted amendments to Regulations S-K, S-B, Forms 10-Q, 10-QSB, 10-K, 10-KSB, 20-F, and N-CSR will be mandatory. The Commission will not keep the information required by the amendments confidential.
An agency may not conduct or sponsor, and a person is not required to respond to, an information collection unless it displays a currently valid OMB
We believe that the amendments to Regulations S-K, S-B, Forms 10-Q, 10-QSB, 10-K, 10-KSB, 20-F, and N-CSR are necessary to: (1) Facilitate the transparency of issuers' repurchases, (2) bolster investor confidence in the integrity of the securities trading markets, and (3) monitor and assess the level and market impact of issuers' repurchases. We estimate that 75% of the total burden of Forms 10-K, 10-KSB, 10-Q and 10-QSB is carried by the issuer, and therefore is reflected as an hourly burden. The remaining 25% of the total burden is attributed to outside costs.
Closed-end funds would be required to provide similar disclosure on new Item 8 of Form N-CSR.
We are sensitive to the costs and benefits of our rules and we have considered the costs and benefits of our adopted amendments. To assist us in evaluating the costs and benefits, in the Proposing Release we encouraged commenters to discuss any costs or benefits that the modifications might impose. In particular, we requested comment on the potential costs for any modifications to information gathering, management, and record keeping systems or procedures as well as any potential benefits resulting from the proposals for issuers, investors, brokers, dealers, and other securities industry professionals, regulators, and others. Commenters were requested to provide analysis and data supporting their views on the costs and benefits associated with the proposed amendments.
We believe the adopted amendments simplify and update Rule 10b-18 in light of market developments since its adoption. First, the adopted amendments merge the definition of a “Rule 10b-18 bid” into the definition of a “Rule 10b-18 purchase.” Second, the adopted amendments clarify that the safe harbor is available for repurchases of common equity securities. Next, the adopted amendments clarify the scope of the merger exclusion. Fourth, the adopted amendments clarify the application of the single broker or dealer condition to repurchases effected through ECNs or other ATSs. Fifth, the adopted amendments modify the timing condition to allow issuers of highly liquid securities to rely on the safe harbor for a longer time period each day. Sixth, the adopted amendments simplify the pricing condition by applying a uniform price limit for all issuers. Additionally, the adopted amendments clarify the safe harbor's availability for certain riskless principal transactions. Further, the adopted amendments to the volume condition are revised (i) to eliminate the current block exception, (ii) to include block purchases in the 25% ADTV limit, (iii) to provide a volume limit of one block purchase per week in lieu of the 25% ADTV limitation, and (iv) to increase the volume condition following a market-wide trading suspension to 100% of ADTV. Lastly, the adopted amendments extend the safe harbor to certain repurchases made during after-hours trading and allow the use of a different broker or dealer for those repurchases.
In order to assess the benefits of the proposed amendments to Rule 10b-18, we sought comment regarding potential benefits as well as data and facts supporting commenters' views. We requested data and analysis on any effect the proposed amendments might have on liquidity.
We believe the amendments we are adopting today (i) simplify and update Rule 10b-18 in light of market developments since its adoption; (ii) provide continued clarity as to the scope of the safe harbor for issuers and the brokers, or dealers that assist them with repurchasing; (iii) avoid what might otherwise be a substantial and unpredictable risk of liability under the anti-manipulation provisions of the Exchange Act; and (iv) allow the market to establish a security's price based on independent market forces without undue issuer influence by minimizing the impact of an issuer's safe harbor repurchases.
The Commission expects that the Rule 10b-18 adopted amendments should benefit issuers, brokers, dealers, investors, and the marketplace in a number of ways. First, the adopted amendment to the definition of a “Rule 10b-18 purchase” to include a “Rule 10b-18 bid” simplifies the definition making Rule 10b-18 easier for issuers and broker-dealers to use. Similarly, the clarification that the safe harbor is available for repurchases of common equity securities alleviates any ambiguity as to the scope of the Rule, thereby benefiting issuers and the brokers, or dealers they employ to effect Rule 10b-18 repurchases. The adopted amendments should further benefit issuers and broker-dealers by providing certainty regarding the use of ECNs and ATSs to effect safe harbor repurchases.
Additionally, we expect the modified timing condition that allows issuers of highly liquid securities to effect safe harbor repurchases for a longer period of time each day should benefit brokers and dealers by allowing them to implement a repurchasing strategy over a longer period of time. We believe this amendment should benefit investors and the marketplace by maintaining a reasonable limit on the repurchases so that market prices are not unduly effected by an issuer's repurchases. Moreover, we anticipate that this
The adopted amendments also reflect our view that a uniform pricing condition should benefit brokers and dealers who effect repurchases for several issuers by making the price condition easier to apply to several issuers on a given day. Next, the adopted amendments make certain riskless principal transactions eligible for the safe harbor, benefiting issuers and broker-dealers who wish to execute Rule 10b-18 repurchases in this manner. We believe that this amendment should similarly allow the markets to establish a security's price based on independent market forces without undue issuer influence, because the open market leg of the transaction must meet the conditions of Rule 10b-18.
We anticipate that the amendment to include block purchases in calculating the 25% ADTV should simplify an issuer's volume calculation because block purchases would no longer need to be subtracted. We also expect that the adopted amendments providing an alternative volume limit of one block per week should benefit small issuers who believed that a complete elimination of the block exception would make the safe harbor entirely unavailable to them. We anticipate that the one block per week limitation should place a reasonable limit on this activity while providing liquidity to investors. Moreover, the inclusion of block purchases in the 25% volume limitation will establish a reasonable limit on the amount of repurchasing activity that is safe harbor protected, which, in turn, prevents issuers from dominating the market for their common stock. Share prices that are established by independent market forces rather than an issuer's substantial repurchasing activity will promote investor confidence and market integrity. Next, we believe that the adopted amendment to the volume condition following a market-wide trading suspension should benefit issuers by increasing their Rule 10b-18 repurchasing flexibility. This adopted amendment should also benefit investors and the marketplace by providing enhanced liquidity. Moreover, the increased liquidity may reduce issuers' transaction costs.
Lastly, we expect that the adopted amendments concerning after-hours repurchases should benefit issuers by providing a longer time period throughout the day in which to effect Rule 10b-18 repurchases. We expect that this may provide additional liquidity for investors effecting after-hours transactions. Further, the adopted modification to the one broker or dealer condition for after-hours sessions should also provide additional Rule 10b-18 flexibility to issuers.
Rule 10b-18 is an optional safe harbor rather than a prescriptive rule. As such, issuers are not required to comply with its conditions. Thus, any costs related to complying with the safe harbor and the adopted amendments are assumed voluntarily. We assume that issuers will rely on Rule 10b-18 only if the anticipated benefits from doing so exceed any anticipated costs. We believe that the adopted Rule 10b-18 amendments should impose negligible costs, if any, on issuers, and should not compromise investor protection. As an aid in evaluating costs and reductions in costs, the Proposing Release sought comments concerning the public's views as well as any supporting information. Specifically, we requested comment as to whether the proposed amendments would impose greater costs on issuers than the current Rule. We received few comments regarding costs and those that we did receive concerned the treatment of blocks and mergers.
The adopted amendments with respect to block purchases allow issuers to choose to purchase one block per week in lieu of the 25% ADTV limit. Rather than a complete elimination of the block exclusion, the amended volume condition allows issuers to elect between purchasing one block per week or purchasing within the 25% ADTV limit. We anticipate that large issuers will continue to rely on the 25% volume limitation as their liquidity levels will enable them to effect repurchases in an amount that equates with their needs without dominating the market for their common stock. We understand that some issuers of less liquid common stock may not have a sufficient ADTV to purchase even one 5,000-share block within the safe harbor using the 25% limit. We anticipate that these issuers will rely on the one block per week exception. We further expect that this exception should mitigate the concerns of small issuers that the inability to purchase any blocks within the safe harbor would increase costs. In light of the comments we solicited in the Proposing Release, we expect that certain issuers will choose this block purchase alternative and we anticipate that this may reduce costs, as blocks may be less costly for issuers to acquire. Next, we anticipate that including block purchases in the ADTV calculation should reduce costs associated with the calculation because it will reduce the burden of, and the potential error associated with, subtracting block purchases.
Additionally, the adopted amendments concerning the merger exclusion will permit for some post merger announcement repurchases to be eligible for the safe harbor. The Commission did not adopt a blanket prohibition with respect to safe harbor repurchasing post-merger announcement. Some commenters believed that such an amendment would reduce liquidity, and affect capital allocation strategies, among other things. Instead, the adopted amendments allow for certain post merger announcement repurchases while excluding those where there is a heightened incentive to manipulate. For example, certain repurchases that reflect an issuer's repurchases during the three-month period prior to a merger announcement are safe harbor eligible, subject to the 25% ADTV limit. We expect that the allowance for certain safe harbor repurchasing post merger announcement should mitigate any adverse effect on issuer costs.
The amendments to Regulations S-K and S-B and Forms 10-K, 10-KSB, 10-Q, 10-OSB, 20-F and N-CSR will provide several important benefits to investors and the securities markets as a whole. The new repurchase disclosure requirement may prevent undetected manipulation by deterring repurchase program announcements by issuers that do not intend to effect repurchases but would benefit from a post announcement increase in the price of their common stock. The disclosure requirement will increase market transparency by providing investors with information that otherwise has not been readily available. Issuers use their discretion in deciding whether and when to effect repurchases. Moreover, issuers may not repurchase all, or even any, of the shares they are authorized to repurchase. Before adoption of these rules, investors and market participants have not had ready access to information that would help them determine the amount of repurchasing effected by a registrant in any given time
The amendments also will provide a uniform disclosure system concerning repurchases. This system should benefit investors and other market participants by providing repurchasing information in a consistent format and in a timely manner. The amendments will also provide investors with useful information concerning the manner in which a company makes repurchases (
Furthermore, the amendments will shed light on currently undisclosed repurchases. Before adoption of these requirements, only certain repurchasing activity had to be disclosed, such as repurchases from company insiders and certain repurchases by closed-end funds. The final rules require comprehensive repurchasing disclosure. For example, the amendments require disclosure of currently undisclosed activity, such as an issuer repurchasing its stock from put option holders who exercised options issued by the company.
Additionally, the disclosure will provide investors and the marketplace with signaling information. An issuer's repurchases may signal information to investors such as an issuer's belief that its stock is undervalued. In the same way, the disclosure could signal information about market trends.
Finally, the disclosure requirement will also provide information about an issuer's use of capital. When registering an offering, an issuer may state various uses of the offering proceeds, including repurchasing. The new periodic disclosure will provide follow-up information to such a registration statement disclosure. It is also a valuable way to confirm whether any of the offering proceeds were used for repurchases. All of these benefits will increase market efficiency.
The final rules require issuers to disclose, with respect to their repurchases, the total number of shares (or units) repurchased, the average price per share, the number of shares (or units) that were repurchased pursuant to a publicly announced plan or program and the maximum number (or approximate dollar value) of shares (or units) that may yet be repurchased under the plans or programs. The final rules will increase costs for all reporting companies that make repurchases. However, these costs may be mitigated somewhat for many issuers that currently collect and publish repurchase information concerning the number of shares repurchased, the total dollar amount paid for the repurchases or the average price paid per share, and/or the number of shares or dollar amount available for repurchase under a particular repurchase program.
We estimate that it will take an issuer an average of approximately one hour per annual, semi-annual, or quarterly filing to prepare the required disclosure. The estimated cost per registrant of providing this disclosure per filing on Forms 10-Q, 10-QSB, 10-K, 10-KSB and N-CSR is $169.
Section 3(f) of the Exchange Act
We have considered the proposed amendments to Rule 10b-18 in light of the standards of Section 23(a)(2) of the Exchange Act and believe the adopted amendments should not impose any burden on competition not necessary or appropriate in furtherance of the Exchange Act. With one exception noted below, the amended safe harbor will apply equally to all issuers. Further, Rule 10b-18 is not the exclusive means by which issuers may effect purchases of their common stock. An issuer can purchase its common stock outside the safe harbor without raising a presumption of manipulation. The one area in which issuers may be treated differently is the adopted timing condition amendment. This amendment
With respect to disclosure, the adopted amendments to Forms 10-K, 10-KSB, 10-Q, 10-QSB, 20-F and N-CSR apply equally to all filers who announce that they intend to make repurchases. Thus, we do not believe that the amendments to these forms will have an anti-competitive effect.
We believe that the Rule 10b-18 safe harbor, as amended, should improve market efficiency in the trading session following a market-wide trading suspension by providing enhanced liquidity. We further believe the adopted amendments will improve market efficiency by providing greater clarity, uniformity, and simplification of the safe harbor conditions. An efficient market generally promotes capital formation.
Moreover, the adopted disclosure amendments to Forms 10-K, 10-KSB, 10-Q, 10-QSK, 20-F and N-CSR should enhance market efficiency by providing additional, readily accessible information to investors concerning issuer repurchase activity. Enhanced disclosure will allow investors to make better-informed investment decisions. We believe the increased transparency of issuer activity will improve market efficiency and bolster investor confidence in our securities markets. Informed investor decisions generally promote market efficiency and capital formation.
The Final Regulatory Flexibility Analysis (FRFA) has been prepared in accordance with the Regulatory Flexibility Act.
The adopted Rule 10b-18 amendments fulfill several objectives including (1) simplifying and updating the Rule; (2) providing additional liquidity in times of market stress; (3) fostering investor confidence; and (4) providing a risk management tool to issuers. Moreover, the adopted amendments are consistent with the objective of minimizing the effects of an issuer's repurchases on the market price of an issuer's common stock thereby furthering our objective of fostering markets where investors, and particularly an issuer's shareholders, should be able to rely on a common stock price that is set by independent market forces and not influenced in a manipulative manner by the issuer.
First, the amendments simplify and update the Rule in light of our experience with its operation and to reflect market developments since its adoption. The adopted amendments modify the definition of “Rule 10b-18 purchase” to incorporate the current “Rule 10b-18 bid” definition, and to apply a uniform price condition among issuers. The safe harbor amendments also clarify the scope of the merger exclusion and modify the timing condition for actively traded issuers. Second, the amended volume condition provides increased liquidity to the markets by easing the volume condition in the trading session following a market-wide trading suspension, and provides an alternative volume condition allowing issuers to purchase one block or 25% of their ADTV on a given day. Third, the adopted amendments foster investor confidence in market integrity by maintaining reasonable limits on issuer repurchasing activity within the safe harbor, and facilitating pricing by independent market forces. Fourth, the adopted amendments provide increased clarity to issuers relying on the Rule to better manage the risk of potential liability associated with repurchases.
The prime objective of the adopted disclosure amendments is to provide investors with useful, timely, and readily accessible information about issuer repurchases. The adopted amendments to Regulations S-K, S-B, Forms 10-Q, 10-QSB, 10-K, 10-KSB, 20-F and N-CSR provide investors and the marketplace with enhanced transparency concerning issuers' repurchases in order to better assess investment decisions and issuers generally. The increased transparency regarding repurchasing will promote enhanced evaluation of issuers, their repurchases and the effects of those repurchases on the issuers' stock prices and the market place. The adopted amendments also provide a means to monitor and assess the level and impact of issuers' repurchases.
The Initial Regulatory Flexibility Analysis (IRFA) appeared in the Proposing Release. We requested comment on the IRFA, including the number of issuers conducting repurchase programs that are small entities, the impact the proposals would have on small entities, and how to quantify the impact. We received no comment letters regarding the IRFA.
Exchange Act Rule 0-10(a)
The Rule 10b-18 adopted amendments will not impose any new reporting, record keeping, or other compliance requirements. The amendments to Regulations S-K, S-B, Forms 10-K, 10-KSB, 10-Q, 10-QSB, 20-F and N-CSR add a new disclosure item for issuer purchases of equity securities. As stated in Section X. C above, approximately 11 issuers who conducted repurchase programs in 2002 were small entities. We believe no additional skills beyond those currently possessed by issuers (and broker-dealers) will be necessary to prepare the forms in accordance with the adopted disclosure amendments or to comply with the adopted Rule 10b-18 amendments.
As required by the Regulatory Flexibility Act, we have considered alternatives that would accomplish our stated objectives, while minimizing any significant adverse impact on small entities. In connection with the amendments, we considered the following alternatives:
• The establishment of differing compliance or reporting requirements or timetables that take into account the resources available to small entities;
• The clarification, consolidation, or simplification of filing or posting requirements;
• The use of performance rather than design standards; and
• An exemption from coverage of the amendments, or any part of them, for small entities.
With respect to the adopted Rule 10b-18 amendments, we believe that the establishment of different requirements for small entities, other than the timing amendment, is neither necessary nor practicable, because the safe harbor amendments provide a voluntary safe harbor. The adopted timing amendment allows issuers of more liquid securities to remain in the market effecting Rule 10b-18 repurchases for 20 minutes more per day than issuers of less actively traded securities. We did not believe it is appropriate to provide safe harbor eligibility near the close of trading for less liquid securities as such activity potentially could affect the closing price of security through undue issuer influence. Such activity could diminish investor confidence that common stock prices are set by independent market forces and erode market integrity.
The Rule 10b-18 amendments should not adversely affect small entities because they do not impose any new reporting, record keeping or compliance requirements. Therefore, it is not feasible to further clarify, consolidate or simplify the safe harbor for small entities. Further, it does not seem necessary to develop separate requirements for small entities with respect to the adopted amendments to Regulations S-K, S-B, Forms 10-K, 10-KSB, 10-Q, 10-QSB, 20-F and N-CSR, because we think all issuers, including issuers that are small entities, already have this information readily available or would not meet objectives.
The Rule amendments are being adopted pursuant to Sections 2, 3, 9(a)(6), 10(b), 12, 13(e), 15, 15(c), and 23(a) of the Exchange Act, 15 U.S.C. 78b, 78c, 78i(a)(6), 78j(b), 78m(e), 78o(c), 78o(d) and 78w(a), and Sections 8, 23, 24(a), 30, 31, and 38 of the Investment Company Act, 15 U.S.C. 80a-8, 80a-23, 80a-24(a), 80a-29, 80a-30, and 80a-37.
Reporting and record keeping requirements, Securities, Small businesses.
Reporting and record keeping requirements, Securities.
Brokers, Dealers, Issuers, Securities.
Investment companies, Reporting and record keeping requirements, Securities.
15 U.S.C. 77e, 77f, 77g, 77h, 77j, 77k, 77s, 77z-2, 77z-3, 77aa(25), 77aa(26), 77ddd, 77eee, 77ggg, 77hhh, 77jjj, 77nnn, 77sss, 78l, 78m, 78n, 78o, 78u-5, 78w, 78ll, 78mm, 80a-8, 80a-29, 80a-30, 80a-37, 80b-11, 7201
(a) In the following tabular format, provide the information specified in paragraph (b) of this Item with respect to any purchase made by or on behalf of the small business issuer or any “affiliated purchaser,” as defined in § 240.10b-18(a)(3) of this chapter, of shares or other units of any class of the small business issuer's equity securities that is registered by the small business issuer pursuant to section 12 of the Exchange Act (15 U.S.C. 78
(b) The table shall include the following information for each class or series of securities for each month included in the period covered by the report:
(1) The total number of shares (or units) purchased (column (a));
Include in this column all small business issuer repurchases, including those made pursuant to publicly announced plans or programs and those not made pursuant to publicly announced plans or programs. Briefly disclose, by footnote to the table, the number of shares purchased other than through a publicly announced plan or program and the nature of the transaction (
(2) The average price paid per share (or unit) (column (b));
(3) The total number of shares (or units) purchased as part of publicly announced repurchase plans or programs (column (c)); and
(4) The maximum number (or approximate dollar value) of shares (or units) that may yet be purchased under the plans or programs (column (d)).
1. In the table, disclose this information in the aggregate for all plans or programs publicly announced.
2. By footnote to the table, indicate:
a. The date each plan or program was announced;
b. The dollar amount (or share or unit amount) approved;
c. The expiration date (if any) of each plan or program;
d. Each plan or program that has expired during the period covered by the table; and
e. Each plan or program the small business issuer has determined to terminate prior to expiration, or under which the small business issuer does not intend to make further purchases.
Disclose all purchases covered by this Item, including purchases that do not satisfy the conditions of the safe harbor of § 240.10b-18 of this chapter.
15 U.S.C. 77e, 77f, 77g, 77h, 77j, 77k, 77s, 77z-2, 77z-3, 77aa(25), 77aa(26), 77ddd, 77eee, 77ggg, 77hhh, 77iii, 77jjj, 77nnn, 77sss, 78c, 78i, 78j, 78l, 78m, 78n, 78o, 78u-5, 78w, 78
(a) In the following tabular format, provide the information specified in paragraph (b) of this Item with respect to any purchase made by or on behalf of the issuer or any “affiliated purchaser,” as defined in § 240.10b-18(a)(3) of this chapter, of shares or other units of any class of the issuer's equity securities that is registered by the issuer pursuant to section 12 of the Exchange Act (15 U.S.C. 78
(b) The table shall include the following information for each class or series of securities for each month included in the period covered by the report:
(1) The total number of shares (or units) purchased (column (a));
Include in this column all issuer repurchases, including those made pursuant to publicly announced plans or programs and those not made pursuant to publicly announced plans or programs. Briefly disclose, by footnote to the table, the number of shares purchased other than through a publicly announced plan or program and the nature of the transaction (
(2) The average price paid per share (or unit) (column (b));
(3) The total number of shares (or units) purchased as part of publicly announced repurchase plans or programs (column (c)); and
(4) The maximum number (or approximate dollar value) of shares (or units) that may yet be purchased under the plans or programs (column (d)).
1. In the table, disclose this information in the aggregate for all plans or programs publicly announced.
2. By footnote to the table, indicate:
a. The date each plan or program was announced;
b. The dollar amount (or share or unit amount) approved;
c. The expiration date (if any) of each plan or program;
d. Each plan or program that has expired during the period covered by the table; and
e. Each plan or program the issuer has determined to terminate prior to expiration, or under which the issuer does not intend to make further purchases.
Disclose all purchases covered by this Item, including purchases that do not satisfy the conditions of the safe harbor of § 240.10b-18 of this chapter.
15 U.S.C. 77c, 77d, 77g, 77j, 77s, 77z-2, 77z-3, 77eee, 77ggg, 77nnn, 77sss, 77ttt, 78c, 78d, 78e, 78f, 78g, 78i, 78j, 78j-1, 78k, 78k-1, 78
1. Section 240.10b-18 provides an issuer (and its affiliated purchasers) with a “safe harbor” from liability for manipulation under sections 9(a)(2) of the Act and § 240.10b-5 under the Act
2. Regardless of whether the repurchases are effected in accordance with § 240.10b-18, reporting issuers must report their repurchasing activity as required by Item 703 of Regulations S-K and S-B (17 CFR 229.703 and 228.703) and Item 15(e) of Form 20-F (17 CFR 249.220f) (regarding foreign private issuers), and closed-end management investment companies that are registered under the Investment Company Act of 1940 must report their repurchasing activity as required by Item 8 of Form N-CSR (17 CFR 249.331; 17 CFR 274.128).
(a)
(1)
(2)
(3)
(i) A person acting, directly or indirectly, in concert with the issuer for the purpose of acquiring the issuer's securities; or
(ii) An affiliate who, directly or indirectly, controls the issuer's purchases of such securities, whose purchases are controlled by the issuer, or whose purchases are under common control with those of the issuer;
(4)
(5)
(i) Has a purchase price of $200,000 or more; or
(ii) Is at least 5,000 shares and has a purchase price of at least $50,000; or
(iii) Is at least 20 round lots of the security and totals 150 percent or more of the trading volume for that security or, in the event that trading volume data are unavailable, is at least 20 round lots of the security and totals at least one-tenth of one percent (.001) of the outstanding shares of the security, exclusive of any shares owned by any affiliate;
(6)
(7)
(i) Imposed pursuant to the rules of a national securities exchange or a national securities association in response to a market-wide decline during a single trading session; or
(ii) Declared by the Commission pursuant to its authority under section 12(k) of the Act (15 U.S.C. 78
(8)
(9)
(10)
(11)
(12)
(13)
(i) Effected during the applicable restricted period of a distribution that is subject to § 242.102 of this chapter;
(ii) Effected by or for an issuer plan by an agent independent of the issuer;
(iii) Effected as a fractional share purchase (a fractional interest in a security) evidenced by a script certificate, order form, or similar document;
(iv) Effected during the period from the time of public announcement (as defined in § 230.165(f)) of a merger, acquisition, or similar transaction involving a recapitalization, until the earlier of the completion of such transaction or the completion of the vote by target shareholders. This exclusion does
(A) Effected during such transaction in which the consideration is solely cash and there is no valuation period; or
(B) Where:
(
(
(
(v) Effected pursuant to § 240.13e-1;
(vi) Effected pursuant to a tender offer that is subject to § 240.13e-4 or specifically excepted from § 240.13e-4; or
(vii) Effected pursuant to a tender offer that is subject to section 14(d) of the Act (15 U.S.C. 78n(d)) and the rules and regulations thereunder.
(b)
(1)
(i) The “one broker or dealer” condition shall not apply to Rule 10b-18 purchases that are not solicited by or on behalf of the issuer or its affiliated purchaser(s);
(ii) Where Rule 10b-18 purchases are effected by or on behalf of more than one affiliated purchaser of the issuer (or the issuer and one or more of its affiliated purchasers) on a single day, the issuer and all affiliated purchasers must use the same broker or dealer; and
(iii) Where Rule 10b-18 purchases are effected on behalf of the issuer by a broker-dealer that is not an electronic communication network (ECN) or other alternative trading system (ATS), that broker-dealer can access ECN or other ATS liquidity in order to execute repurchases on behalf of the issuer (or any affiliated purchaser of the issuer) on that day.
(2)
(i) The opening (regular way) purchase reported in the consolidated system;
(ii) Effected during the 10 minutes before the scheduled close of the primary trading session in the principal market for the security, and the 10 minutes before the scheduled close of the primary trading session in the market where the purchase is effected, for a security that has an ADTV value of $1 million or more and a public float value of $150 million or more; and
(iii) Effected during the 30 minutes before the scheduled close of the primary trading session in the principal market for the security, and the 30 minutes before the scheduled close of the primary trading session in the market where the purchase is effected, for all other securities;
(iv) However, for purposes of this section, Rule 10b-18 purchases may be effected following the close of the primary trading session until the termination of the period in which last sale prices are reported in the consolidated system so long as such purchases are effected at prices that do not exceed the lower of the closing price of the primary trading session in the principal market for the security and any lower bids or sale prices subsequently reported in the consolidated system, and all of this section's conditions are met. However, for purposes of this section, the issuer may use one broker or dealer to effect Rule 10b-18 purchases during this period that may be different from the broker or dealer that it used during the primary trading session. However, the issuer's Rule 10b-18 purchase may not be the opening transaction of the session following the close of the primary trading session.
(3)
(i) Does not exceed the highest independent bid or the last independent transaction price, whichever is higher, quoted or reported in the consolidated system at the time the Rule 10b-18 purchase is effected;
(ii) For securities for which bids and transaction prices are not quoted or reported in the consolidated system, Rule 10b-18 purchases must be effected at a purchase price that does not exceed the highest independent bid or the last independent transaction price, whichever is higher, displayed and disseminated on any national securities exchange or on any inter-dealer quotation system (as defined in § 240.15c2-11) that displays at least two priced quotations for the security, at the time the Rule 10b-18 purchase is effected; and
(iii) For all other securities, Rule 10b-18 purchases must be effected at a price no higher than the highest independent bid obtained from three independent dealers.
(4)
(i) No other Rule 10b-18 purchases are effected that day, and
(ii) The block purchase is
(c)
(1) That the time of purchases condition in paragraph (b)(2) of this section shall not apply, either:
(i) From the reopening of trading until the scheduled close of trading on the day that the market-wide trading suspension is imposed; or
(ii) At the opening of trading on the next trading day until the scheduled close of trading that day, if a market-wide trading suspension was in effect at the close of trading on the preceding day; and
(2) The volume of purchases condition in paragraph (b)(4) of this section is modified so that the amount of Rule 10b-18 purchases must not exceed 100 percent of the ADTV for that security.
(d)
15 U.S.C. 78a,
Section 249.308 is also issued under 15 U.S.C. 80a-29 and 80a-37.
The text of Form 20-F does not, and this amendment will not, appear in the Code of Federal Regulations.
(a) In the following tabular format, provide the information specified in paragraph (b) of this Item with respect to any purchase made by or on behalf of the issuer or any “affiliated purchaser,” as defined in § 240.10b-18(a)(3), of shares or other units of any class of the issuer's equity securities that is registered by the issuer pursuant to section 12 of the Exchange Act (15 U.S.C. 78
(b) The table shall include the following information for each class or series of securities for each month included in the period covered by the report:
(1) The total number of shares (or units) purchased (column (a)).
Include in this column all issuer repurchases, including those made pursuant to publicly announced plans or programs and those not made pursuant to publicly announced plans or programs. Briefly disclose, by footnote to the table, the number of shares purchased other than through a publicly announced plan or program and the nature of the transaction (
(2) The average price paid per share (or unit) (column (b)).
(3) The number of shares (or units) purchased as part of a publicly announced repurchase plan or program (column (c)).
(4) The maximum number (or approximate dollar value) of shares (or units) that may yet be purchased under the plans or programs (column (d)).
1. In the table, disclose this information in the aggregate for all plans or programs publicly announced.
2. By footnote to the table, indicate:
a. The date each plan or program was announced;
b. The dollar amount (or share or unit amount) approved;
c. The expiration date (if any) of each plan or program;
d. Each plan or program that has expired during the period covered by the table; and
e. Each plan or program the issuer has determined to terminate prior to expiration, or under which the issuer does not intend to make further purchases.
Disclose all purchases covered by this item, including purchases that do not satisfy the conditions of the safe harbor of § 240.10b-18. Price data and other data should be stated in the same currency used in the issuer's primary financial statements provided in Item 8 of this Form.
The text of Form 10-Q does not, and this amendment will not, appear in the Code of Federal Regulations.
(e) Furnish the information required by Item 703 of Regulation S-K (§ 229.703 of this chapter) for any repurchase made in the quarter covered by the report. Provide disclosures covering repurchases made on a monthly basis. For example, if the quarter began on January 16 and ended on April 15, the chart would show repurchases for the months from January 16 through February 15, February 16 through March 15, and March 16 through April 15.
The text of Form 10-QSB does not, and this amendment will not, appear in the Code of Federal Regulations.
(e) Furnish the information required by Item 703 of Regulation S-B (§ 228.703 of this chapter) for any repurchase made in the quarter covered by the report. Provide disclosures covering repurchases made on a monthly basis. For example, if the quarter began on January 16 and ended on April 15, the chart would show repurchases for the months from January 16 through February 15, February 16 through March 15, and March 16 through April 15.
The text of Form 10-K does not, and this amendment will not, appear in the Code of Federal Regulations.
(c) Furnish the information required by Item 703 of Regulation S-K (§ 229.703 of this chapter) for any repurchase made in a month within the fourth quarter of the fiscal year covered by the report. Provide disclosures covering repurchases made on a monthly basis. For example, if the fourth quarter began on January 16 and ended on April 15, the chart would show repurchases for the months from January 16 through February 15, February 16 through March 15, and March 16 through April 15.
The text of Form 10-KSB does not, and this amendment will not, appear in the Code of Federal Regulations.
(c) Furnish the information required by Item 703 of Regulation S-B (§ 228.703 of this chapter) for any repurchase made in a month within the fourth quarter of the fiscal year covered by the report. Provide disclosures covering repurchases made on a monthly basis. For example, if the fourth quarter began on January 16 and ended on April 15, the chart would show repurchases for the months from January 16 through February 15, February 16 through March 15, and March 16 through April 15.
15 U.S.C. 80a-1
(a) * * *
(11) The issuer files with the Commission, as an exhibit to Form N-CSR (§ 249.331 and § 274.128), a copy of any written solicitation to purchase securities under this section sent or given during the period covered by the report by or on behalf of the issuer to 10 or more persons.
15 U.S.C. 77f, 77g, 77h, 77j, 77s, 78c(b), 78
These additions read as follows:
The text of Form N-CSR does not, and this amendment will not, appear in the Code of Federal Regulations.
(a) If the registrant is a closed-end management investment company, in the following tabular format, provide the information specified in paragraph (b) of this Item with respect to any purchase made by or on behalf of the registrant or any “affiliated purchaser,” as defined in Rule 10b-18(a)(3) under the Exchange Act (17 CFR 240.10b-18(a)(3)), of shares or other units of any class of the registrant's equity securities that is registered by the registrant pursuant to Section 12 of the Exchange Act (15 U.S.C. 78
Disclose all purchases covered by this Item, including purchases that do not satisfy the conditions of the safe harbor of Rule 10b-18 under the Exchange Act (17 CFR 240.10b-18), made in the period covered by the report. Provide disclosures covering repurchases made on a monthly basis. For example, if the reporting period began on January 16 and ended on July 15, the chart would show repurchases for the months from January 16 through February 15, February 16 through March 15, March 16 through April 15, April 16 through May 15, May 16 through June 15, and June 16 through July 15.
(b) The table shall include the following information for each class or series of securities for each month included in the period covered by the report:
(1) The total number of shares (or units) purchased (column (a));
Include in this column all repurchases by the registrant, including those made pursuant to publicly announced plans or programs and those not made pursuant to publicly announced plans or programs. Briefly disclose, by footnote to the table, the number of shares purchased other than through a publicly announced plan or program and the nature of the transaction (e.g., whether the purchases were made in open-market transactions, tender offers, in satisfaction of the registrant's obligations upon exercise of outstanding put options issued by the registrant, or other transactions).
(2) The average price paid per share (or unit) (column (b));
(3) The number of shares (or units) purchased as part of publicly announced repurchase plans or programs (column (c)); and
(4) The maximum number (or approximate dollar value) of shares (or units) that may yet be purchased under the plans or programs (column (d)).
1. In the table, disclose this information in the aggregate for all plans or programs publicly announced.
2. By footnote to the table, indicate:
a. The date each plan or program was announced;
b. The dollar amount (or share or unit amount) approved;
c. The expiration date (if any) of each plan or program;
d. Each plan or program that has expired during the period covered by the table; and
e. Each plan or program the registrant has determined to terminate prior to expiration, or under which the registrant does not intend to make further purchases.
(a) * * *
(3) Any written solicitation to purchase securities under Rule 23c-1 under the Act (17 CFR 270.23c-1) sent or given during the period covered by the report by or on behalf of the registrant to 10 or more persons.
By the Commission.