Animal and Plant Health Inspection Service
Farm Service Agency
Forest Service
Rural Business-Cooperative Service
Rural Housing Service
Rural Utilities Service
Foreign-Trade Zones Board
International Trade Administration
National Oceanic and Atmospheric Administration
National Telecommunications and Information Administration
Federal Energy Regulatory Commission
Centers for Disease Control and Prevention
Food and Drug Administration
Federal Emergency Management Agency
Fish and Wildlife Service
Geological Survey
Land Management Bureau
Surface Mining Reclamation and Enforcement Office
Employment and Training Administration
Committee for the Implementation of Textile Agreements
Federal Aviation Administration
Federal Highway Administration
Federal Railroad Administration
Federal Transit Administration
National Highway Traffic Safety Administration
Surface Transportation Board
Foreign Assets Control Office
Internal Revenue Service
Thrift Supervision Office
Consult the Reader Aids section at the end of this issue for phone numbers, online resources, finding aids, reminders, and notice of recently enacted public laws.
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Rural Housing Service, USDA.
Direct final rule.
The Rural Housing Service (RHS) is amending its regulations to include all essential community facility projects $300,000 and under to utilize the authority granted for fire and rescue loans. Fire and rescue loans are handled with a streamlined procedure for application handling. All other Community Facilities loans costing $300,000 and under will be administered under this streamlined application process. The intended effect is to streamline and make available a cost-effective way to administer all Community Facilities loans $300,000 and under.
This rule is effective February 9, 2004, unless we receive written adverse comments or written notices of intent to submit adverse comments on or before January 23, 2004. If we receive such comments or notices, we will publish a timely document in the
Submit adverse comments, or notice of intent to submit adverse comments, to Tracy Givelekian, Regulations and Paperwork Management Branch, U.S. Department of Agriculture, Rural Housing Service, STOP 0742, 1400 Independence Avenue SW., Washington, DC 20250-0742. Comments may be submitted via the Internet by addressing them to
Chad Parker, Community Programs, Rural Housing Service, Direct Loan and Grant Processing Division, U.S. Department of Agriculture, Rural Housing Service, STOP 0787, 1400 Independence Avenue SW., Washington, DC 20250-0787; Telephone: 202-720-1490; FAX: 202-690-0471; E-mail:
This rule has been determined to be not significant for purposes of Executive Order 12866 and, therefore, has not been reviewed by the Office of Management and Budget (OMB).
In accordance with this rule: (1) All State and local laws and regulations that are in conflict with this rule will be preempted, (2) no retroactive effect will be given to this rule, and (3) administrative proceedings in accordance with 7 CFR part 11 must be exhausted before bringing suit in court challenging action taken under this rule, unless those regulations specifically allow bringing suit at an earlier time.
The Administrator of the Rural Housing Service has determined that this rule will not have a significant economic impact on a substantial number of small entities as defined in the Regulatory Flexibility Act (5 U.S.C. 601
There are no new reporting and recordkeeping requirements associated with this rule.
This rule contains no Federal mandates (under the regulatory provisions of Title II of the Unfunded Mandates Reform Act of 1995) for State, local, and tribal governments or the private sector. Thus, this rule is not subject to the requirements of sections 202 and 205 of the Unfunded Mandates Reform Act of 1995.
This document has been reviewed in accordance with 7 CFR part 1940, subpart G, “Environmental Program.” RHS has determined that this action does not constitute a major Federal action significantly affecting the quality of the human environment, and, in accordance with the National Environmental Policy Act of 1969, Pub. L. 91-190, an Environmental Impact Statement is not required.
The program affected is listed in the Catalog of Federal Domestic Assistance under Number 10.766, Community Facilities Loans and Grants.
The Community Facilities loan and grant program is subject to the provisions of Executive Order 12372, which requires intergovernmental consultation with State and local officials. RHS will conduct intergovernmental consultation in the manner delineated in RD Instruction 1940-J, “Intergovernmental Review of Rural Development Programs and Activities,” and in 7 CFR part 3015, subpart V.
RHS administers the Community Facilities loan program pursuant to 7 CFR part 1942, subpart A, designed to develop essential community facilities for public use in rural areas. These facilities include schools, libraries, childcare, hospitals, medical clinics, assisted-living facilities, fire and rescue stations, police stations, community centers, public buildings, and transportation. Loans are available to public entities such as municipalities, counties, and special-purpose districts, as well as to nonprofit corporations and tribal governments. Loan funds may be used to construct, enlarge, or improve community facilities for health care, public safety, and public services.
Regulations pursuant to 7 CFR part 1942, subpart C, entitled Fire and Rescue Loans, administered by RHS have allowed a streamlined process for application development of essential community facility projects meeting the definition of fire and rescue projects. RHS is amending its regulations to
Community development, Community facilities, Loan programs—Housing and community development, Loan security, Waste treatment and disposal—Domestic, Watersupply—Domestic.
5 U.S.C. 301; 7 U.S.C. 1989.
(a) This subpart outlines the policies and procedures for making and processing insured loans for Community Facilities except fire and rescue and other small essential community facility loans and water and waste disposal facilities. This subpart applies to Community Facilities loans for fire and rescue and other small essential community facility loans only as specifically provided for in subpart C of this part. * * *
This subpart provides the policies and procedures for making and processing insured Community Facilities (CF) loans for facilities that will primarily provide fire or rescue services and other small essential community facility projects and applies to fire and rescue and other Community Facilities loans for projects costing $300,000 and under. Any processing or servicing activity conducted pursuant to this subpart involving authorized assistance to Rural Development employees, members of their families, known close relatives, or business or close personal associates, is subject to the provisions of subpart D of part 1900 of this chapter. Applicants for this assistance are required to identify any known relationship or association with a Rural Development employee. Community Facilities loans for other types of facilities, and those costing in excess of $300,000, are defined in subpart A of this part.
(a)
(b)
(e)
(g)
(b)
(a) * * *
(1) * * *
(iii) The construction or development of an essential community facility requisite to the beneficial and orderly development of a community operated on a nonprofit basis in accordance with § 1942.17(d) of this subpart. This subpart includes those projects meeting the definition of a small community facility project.
Animal and Plant Health Inspection Service, USDA.
Affirmation of interim rule as final rule.
We are adopting as a final rule, without change, an interim rule that amended the regulations regarding State and zone classifications by removing New Mexico from the list of accredited-free States and adding it to the list of modified accredited advanced States. The interim rule was necessary to help prevent the spread of tuberculosis because New Mexico no longer meets the requirements for accredited-free State status.
The interim rule became effective on July 24, 2003.
Dr. Terry Beals, Senior Staff Veterinarian, Eradication and Surveillance Team, National Center for Animal Health Programs, VS, APHIS, 4700 River Road Unit 43, Riverdale, MD 20737-1231; (301) 734-5467.
In an interim rule effective and published in the
Comments on the interim rule were required to be received on or before September 22, 2003. We received one comment by that date, from a supplier of roping animals.
The commenter suggested that, given the size of the State of New Mexico and the variety of the cattle industries contained therein, a more beneficial course of action would be to split the State and designate each portion separately.
While the regulations do provide for the establishment of zones of classification within a State, such split State status must be requested by a State animal health official in accordance with § 77.4 and approved by the Administrator in accordance with § 77.3. We have not thus far received such a request from the State of New Mexico.
Therefore, for the reasons given in the interim rule and in this document, we are adopting the interim rule as a final rule without change.
This action also affirms the information contained in the interim rule concerning Executive Order 12866 and the Regulatory Flexibility Act, Executive Orders 12372 and 12988, and the Paperwork Reduction Act.
Further, for this action, the Office of Management and Budget has waived its review under Executive Order 12866.
Animal diseases, Bison, Cattle, Reporting and recordkeeping requirements, Transportation, Tuberculosis.
7 U.S.C. 8301-8317; 7 CFR 2.22, 2.80, and 371.4.
Animal and Plant Health Inspection Service, USDA.
Affirmation of interim rule as final rule.
We are adopting as a final rule, without change, an interim rule that amended the regulations regarding State and zone classifications by removing California from the list of accredited-free States and adding it to the list of modified accredited advanced States. The interim rule was necessary to help prevent the spread of tuberculosis because California no longer meets the requirements for accredited-free State status.
The interim rule became effective on April 25, 2003.
Dr. Terry Beals, Senior Staff Veterinarian, Eradication and Surveillance Team, National Center for Animal Health Programs, VS, APHIS, 4700 River Road Unit 43, Riverdale, MD 20737-1231; (301) 734-5467.
In an interim rule effective and published in the
Comments on the interim rule were required to be received on or before June 24, 2003. We received three comments by that date. They were from a State agricultural agency and two cattle industry groups. The comments are discussed below by topic.
Under the regulations in § 77.7(c), if two or more tuberculosis-affected herds are detected in an accredited-free State or zone within a 48-month period, that State or zone will be removed from the list of accredited-free States or zones and will be reclassified as modified accredited advanced. All three commenters stated that a classification system based solely on an absolute number of affected herds does not sufficiently take into consideration State tuberculosis mitigation and eradication efforts. We recognize this issue and are currently preparing a proposed rule that will address this and other aspects of the regulations.
In our interim rule, we delayed California's compliance date for certain identification requirements of the regulations for sexually intact heifers, steers, and spayed heifers moving interstate from California. We provided for this delay in recognition of the size and complexity of the cattle industry in California as well as in the interests of equitable treatment for producers in California since we had previously delayed the State of Texas's date of compliance with those requirements when we changed the classification of Texas from accredited-free to modified accredited advanced (
Additionally, one commenter stated that, although the delay in compliance means that there are no Federally imposed identification requirements for certain animals moving interstate, many States have ignored the delay in compliance granted by the USDA. We are sensitive to this issue and have sought to avoid such situations by holding meetings among State veterinarians and other officials in an effort to urge States to accept the Federal movement requirements.
Among the requirements that we deferred as part of the delay in compliance discussed previously are the identification and certification requirements for sexually intact heifers found in § 77.10(d). In our April 2003 interim rule, we described the certification requirements as applying to “sexually intact heifers moving to unapproved feedlots.” One commenter stated that since the term “unapproved feedlot” is utilized but not defined in the regulations, this creates ambiguity and makes it more difficult to understand and uphold the delay in compliance. We apologize for any confusion our use of the term “unapproved feedlot,” which does not appear in the regulations, may have caused. In using the term, we were simply attempting to draw a distinction between the requirements at § 77.10(b), which covers, in part, the movement of sexually intact heifers to approved feedlots, and the requirements at § 77.10(d), which covers the movement of those and other animals to other destinations, which could include feedlots that are not approved feedlots.
All three commenters expressed concern with the tuberculin testing cost estimates provided in the interim rule's economic analysis. One commenter stated that our determination that the identification requirements described would not have a significant impact on a substantial number of small entities was inaccurate. We are in the process of gathering data related to testing and testing costs in order to reevaluate our current information on those subjects. With regard to the determination of no significant impact on a substantial number of small entities, we consider “significant impact” to mean that the cost of a given action is equal to or greater than the small business's profit margin (5 to 10 percent of annual sales). By these standards, given the size and profitability of the cattle industry in California, this action does not represent a significant impact on a substantial number of small entities. A more detailed analysis of this issue can be found later in this document under the heading “Regulatory Flexibility Act.”
Therefore, for the reasons given in the interim rule and in this document, we are adopting the interim rule as a final rule without change.
This action also affirms the information contained in the interim rule concerning Executive Orders 12866, 12372, and 12988 and the Paperwork Reduction Act.
Further, for this action, the Office of Management and Budget has waived its review under Executive Order 12866.
This rule affirms an interim rule that amended the regulations by removing California from the list of accredited-free States and adding it to the list of modified accredited advanced States.
The following analysis addresses the economic effect of this rule on small entities, as required by the Regulatory Flexibility Act.
On January 1, 2002, there were approximately 22,000 cattle and bison operations in California, totaling 5.2 million head. According to the National Agricultural Statistics Service, the total cash value of cattle in California was over $4.8 billion as of that year. Over 90 percent of California's cattle operations yield less than $750,000 annually and are, therefore, considered small entities under criteria established by the Small Business Administration.
The interim rule changed the tuberculosis status of California from accredited-free to modified accredited advanced, resulting in interstate movement restrictions where none existed previously. Specifically, the regulations in § 77.10 require that, for movement to certain destinations, animals must test negative to an official tuberculin test and/or be officially identified by premises of origin identification before interstate movement is permitted.
The interim rule will prove beneficial by preventing the spread of tuberculosis to other areas of the United States. However, the stricter requirements for interstate movement will have an economic effect on those producers involved in the interstate movement of cattle and bison from California. As such, this analysis will focus on the expenses incurred by those producers engaged in interstate movement and in determining whether those negative impacts are significant.
The economic analysis prepared for the interim rule estimated the costs of tuberculin testing to be approximately $3.76 per animal. However, according to the California Department of Food and Agriculture (CDFA), in conjunction with the California Cattleman's Association, the estimated costs of tuberculosis testing are actually between $7.50 and $10 per animal. Also, it is to be noted that the cost of the official identification and applicator is borne by the USDA,
On January 1, 2002, the average value per animal in California was estimated to be $930, which translates to an average value per 101-head herd of about $94,000. Using high-end cost estimates of $10 per animal for tuberculosis testing and the cost of official identification, the cost of the additional tuberculin testing necessitated by the interim rule represents 1.1 percent of the per-head value of cattle. In general practice, we assume a regulation that has compliance costs equal to or greater than a small business' profit margin, or 5 to 10 percent of annual sales, to pose an impact that can be considered “significant.”
Thus, we believe that the added cost of the required tuberculin testing and identification is small relative to the average value of cattle and bison, representing less than 1 percent of the per-head value. In addition, the costs of compliance associated with the interim rule will only affect those operations engaged in the interstate movement of cattle or bison. Further, since APHIS has delayed the date of compliance with the identification requirements in § 77.10(b) and (d), the identification costs for sexually intact heifers, steers, and spayed heifers moving interstate from the State of California will be deferred until at least March 30, 2004.
Under these circumstances, the Administrator of the Animal and Plant Health Inspection Service has determined that this action will not have a significant economic impact on a substantial number of small entities.
Animal diseases, Bison, Cattle, Reporting and recordkeeping requirements, Transportation, Tuberculosis.
7 U.S.C. 8301-8317; 7 CFR 2.22, 2.80, and 371.4.
Federal Trade Commission.
Final rule.
The Federal Trade Commission (“Commission”) amends its Appliance Labeling Rule (“Rule”) by publishing new ranges of comparability to be used on required labels for compact clothes washers. The Commission also announces that the current ranges of comparability for standard-sized clothes washers will remain in effect until further notice.
The amendments announced in this document will become effective February 23, 2004.
Hampton Newsome, Attorney, Division of Enforcement, Federal Trade Commission, Washington, DC 20580 (202) 326-2889.
The Rule was issued by the Commission in 1979, 44 FR 66466 (Nov. 19, 1979), in response to a directive in the Energy Policy and Conservation Act of 1975 (“EPCA”),
The Rule requires manufacturers of all covered appliances to disclose specific energy consumption or efficiency information (derived from the DOE test procedures) at the point of sale in the form of an “EnergyGuide” label and in catalogs. The Rule requires manufacturers to include, on labels and fact sheets, an energy consumption or efficiency figure and a “range of comparability.” This range shows the highest and lowest energy consumption or efficiencies for all comparable appliance models so consumers can compare the energy consumption or efficiency of other models (perhaps competing brands) similar to the labeled model. The Rule also requires manufacturers to include, on labels for some products, a secondary energy usage disclosure in the form of an estimated annual operating cost based on a specified DOE national average cost for the fuel the appliance uses.
Section 305.8(b) of the Rule requires manufacturers, after filing an initial report, to report certain information annually to the Commission by specified dates for each product type.
The Commission has analyzed the 2003 annual data submissions for
Manufacturers of compact clothes washers must base the disclosures of estimated annual operating cost required at the bottom of EnergyGuide labels for standard-sized dishwashers on the 2003 Representative Average Unit Costs of Energy for electricity (8.41 cents per kilowatt-hour) and natural gas (81.6 cents per therm) that were published by DOE on April 9, 2003 (68 FR 17361) and by the Commission on May 5, 2003 (68 FR 23584).The new range for compact models will become effective February 23, 2004. Manufacturers may begin using the new range before that date.
The amendments published in this notice involve routine, technical and minor, or conforming changes to the labeling requirements in the Rule. These technical amendments merely provide a routine change to the range and cost information required on EnergyGuide labels. Accordingly, the Commission finds for good cause that public comment for these technical, procedural amendments is impractical and unnecessary (5 U.S.C. 553(b)(A)(B) and (d)).
The provisions of the Regulatory Flexibility Act relating to a Regulatory Flexibility Act analysis (5 U.S.C. 603-604) are not applicable to this proceeding because the amendments do not impose any new obligations on entities regulated by the Appliance Labeling Rule. These technical amendments merely provide a routine change to the range information required on EnergyGuide labels. Thus, the amendments will not have a “significant economic impact on a substantial number of small entities.” 5 U.S.C. 605. The Commission has concluded, therefore, that a regulatory flexibility analysis is not necessary, and certifies, under section 605 of the Regulatory Flexibility Act (5 U.S.C. 605(b)), that the amendments announced today will not have a significant economic impact on a substantial number of small entities.
In a June 13, 1998 notice (53 FR 22106), the Commission stated that the Rule contains disclosure and reporting requirements that constitute “information collection requirements” as defined by 5 CFR 1320.7(c), the regulation that implements the Paperwork Reduction Act.
Advertising, Energy conservation, Household appliances, Labeling, Reporting and recordkeeping requirements.
42 U.S.C. 6294.
“Standard” includes all household clothes washers with a tub capacity of 1.6 cu. ft or 13 gallons of water or more.
When the above range of comparability is used on EnergyGuide labels for standard clothes washers, the estimated annual operating cost disclosure appearing in the box at the bottom of the labels must be derived using the 2000 Representative Average Unit Costs for electricity (8.03¢ per kiloWatt-hour) and natural gas (68.8.6¢ per therm), and the text below the box must identify the costs as such.
“Compact” includes all household clothes washers with a tub capacity of less than 1.6 cu. ft. or 13 gallons of water.
When the above range of comparability is used on EnergyGuide labels for compact clothes washers, the estimated annual operating cost disclosure appearing in the box at the bottom of the labels must be derived using the 2003 Representative Average Unit Costs for electricity (8.41¢ per kiloWatt-hour) and natural gas (81.6¢ per therm), and the text below the box must identify the costs as such.
By Direction of the Commission.
Office of Surface Mining Reclamation and Enforcement (OSM), Interior.
Final rule; approval of amendment.
We are approving a proposed amendment to the Kentucky abandoned mine land reclamation plan (the “Kentucky plan”) under the Surface Mining Control and Reclamation Act of 1977 (SMCRA or the Act).
November 24, 2003.
William J. Kovacic, Telephone: (859) 260-8400, Internet address:
The Abandoned Mine Land (AML) Reclamation Program was established by Title IV of SMCRA (30 U.S.C. 1201
By letter dated April 29, 2002 (Administrative Record No. KY-70), Kentucky sent us a proposed amendment to its plan under SMCRA (30 U.S.C. 1201
It should be noted that Kentucky's formal submission on April 29, 2002, did not identify the specific changes being proposed. We subsequently reviewed the 635-page amendment to determine what revisions were made from the original plan. We completed our review on December 19, 2002. The proposed rule was published in the February 11, 2003,
Following are the findings we made concerning the amendment under SMCRA and the Federal regulations at 30 CFR 884.14 and 884.15. We are approving the amendment. Any revisions that we do not specifically discuss below concern nonsubstantive wording or editorial changes. Except where otherwise indicated below, we find that these amendments do not change the objectives, scope or major policies followed by Kentucky in the conduct of its reclamation program.
The subtitle “Management of Acquired Lands” has been added. This subtitle provides that land acquired “may be used for any lawful purpose that is not inconsistent with the reclamation activities and post-reclamation uses for which it was acquired.” It also establishes that users of acquired lands will be charged a use fee and that all fees collected “which are not used for the specific purpose of operating and maintaining improvement of the land will be deposited in the Abandoned Mine Reclamation Fund.”
These proposed changes meet the criteria of the counterpart Federal regulations found at 30 CFR 879.14, which provide that “[l] and acquired under this part may be used for any lawful purpose that is consistent with the necessary reclamation activities.” The State's proposed changes has this same requirement as well as the additional caveat that acquired land may be used for any lawful purpose not inconsistent with the post-reclamation uses for which it was acquired. Additionally, Kentucky's proposed change meets the Federal requirement, also at 30 CFR 879.14, that procedures for the collection of user fees provide that all user fees collected be deposited in the appropriate Abandoned Mine Reclamation Fund. Therefore, we are approving the proposed changes.
The subtitle “Environmental Scientist Principal” has been added. Chapter 10 of Kentucky's AML plan describes the title, class, duties, and minimum requirements of various employment positions within the organization. These provisions were previously approved by OSM because they meet the requirements of the counterpart Federal regulation found at 30 CFR 884.13(d). The addition of the description of the Environmental Scientist Principal position further clarifies the organization of the Plan and the responsibilities of individual employees. Therefore, we find that the proposed addition also meets the requirements of the counterpart Federal regulations, and we are approving it.
The Natural Resources Conservation Service is an agency of the U.S. Department of Agriculture and was formerly known as the Soil Conservation Service. Kentucky proposes to add “Natural Resources Conservation Service” throughout its plan to reflect this name change. These non-substantive changes are hereby approved.
Kentucky proposes to change the citation in the sub-heading for this subject from “884.13(f)(1)” to “884.13(e)(1).” This change was recommended by our Lexington Field Office because 30 CFR 884.13(e)(1), rather than 884.13(f)(1), requires a map showing the general location of known or suspected eligible lands and waters. Therefore, we are approving this change.
Kentucky's Plan contains an “Introduction” that explains that the Plan is divided into sections designed to facilitate review by the public, and State and Federal agencies. The introduction lists these sections along with citations to the Federal regulations that require the Plan to contain each respective section. Kentucky proposed to change the listed Federal counterpart for the sections entitled “Problems Occurring on A.M.L. Sites,” “Relationship to Existing and Planned Land Uses,” and “Social Economic and Environmental Conditions.” The proposed changes are from 30 CFR 884.13(f)(2) to 30 CFR 884.13(e)(2); 30 CFR 884.13(f)(3) to 30 CFR 884.13(e)(3); and 30 CFR 884.13(f)(5) to 30 CFR 884.13(f)(1), (2), and (3), respectively. We are approving the proposed changes since they refer to the appropriate Federal references and were made in accordance with OSM recommendations. Finally, Kentucky proposes to add, at page xxi, a reference to Section 19 of the Plan after the requirement of a general description of endangered and threatened plants, fish and wildlife, and their habitats. The reference to Section 19 is appropriate and is hereby approved, since that Section contains a socio-economic and cultural profile of the Kentucky coalfields, which are the lands for which the general descriptions of reclamation activities must be provided, as set forth on pages xx and xxi of the Plan.
Kentucky has deleted subsections (g), (h), (i), pertaining to noncoal mining, and (j), pertaining to construction of public facilities in communities impacted by coal development. Each of these subsections denotes an objective of the non-coal reclamation program that comes into existence only after the Governor of a State certifies to the Secretary that all reclamation priorities for eligible land and water adversely affected by past coal mining have been completed. See SMCRA section 411(a) and (b); 30 U.S.C. 1240(a) and (b). Because Kentucky has not yet reached the certification stage with its AML program, there is no need for the Plan to contain these post-certification prioritizing criteria for non-coal reclamation. Therefore, we are approving the deletions of subsections (g), (h) and (i).
In addition, the State has revised subsection (f) to meet the requirements of the Federal regulations at 30 CFR 875.12, pertaining to eligible lands affected by noncoal mining. Specifically, subsection (f), as amended, will allow the use of AML funds to reclaim noncoal sites with adverse effects that cause extreme danger to the public health, safety and general welfare. These funds may be used, upon request by the Governor and authorization by the Secretary, prior to certification by Kentucky that all coal mining reclamation problems have been addressed. We are approving this change because it meets the requirement of the Federal regulations at 30 CFR 875.12. We note that subsection (f) refers to “pre-August 3, 1977” noncoal mining, the term used in the Federal regulation, as “past” noncoal mining. This variation from the Federal language is acceptable because it is sufficiently similar to its Federal counterpart. Also, Kentucky has revised the last paragraph to address lower priority coal mining sites. This change was moved from the errata sheet of the approved 1981 Plan into the text. Therefore, its transfer to the text is approved without further discussion. Finally, subsection (f) has been revised to prohibit the use of AML monies for reclamation of sites designated for remedial action pursuant to the Uranium Mill Tailings Radiation Control Act of 1978 and the Comprehensive Environmental Response Compensation and Liability Act of 1980. We are approving this change because it meets the requirements of the Federal regulations at 30 CFR 875.16.
As previously approved by OSM, Kentucky's Plan contains a description of the Plan's goals. The Plan states that the principal goal of the AML program is to identify and correct adverse conditions caused by past mining practices on sites classified as Priority I. Following this statement is a paragraph explaining what Priority I and Priority II sites are. Under the previously-approved Plan, the heading to this paragraph was “Priority I Sites.” Kentucky proposed to revise the heading to include Priority II sites, because this section actually discusses both Priority I and Priority II sites. No other changes to the previously approved paragraph are proposed. Since the proposed change has no substantive effect on the program, we are approving the change.
This section, contained in the approved Errata Sheet for the original 1981 Plan, but now moved to the text of Chapter 3 of the Plan, explains which areas are classified as Priority III sites and lists reasons why work will be considered for priority III sites prior to reclamation of all Priority I and II sites. Kentucky's original plan listed four reasons, one being if “the project will be used for research and demonstration purposes.” Kentucky proposed to remove this justification for considering early work for priority III sites, presumably because Congress eliminated “research and demonstration projects relating to the development of surface mining reclamation and water quality control program methods and techniques'' from the list of priorities for AML Fund expenditures contained in section 403(a) of SMCRA in its passage of the Energy Policy Act of 1992. This deletion changes the objectives followed by Kentucky in the conduct of its reclamation projects and, therefore, can only be approved in accordance with 30 CFR 884.14.
This section was added to the text of chapter 3 of the Plan, but was previously contained in the Errata Sheet for the 1981 Plan. It states that Kentucky's resources are to be protected or enhanced through AML reclamation including, but not limited to, important wildlife habitats, endangered or threatened plants and animals or their critical habitats, natural areas, wild and scenic rivers, wetlands, floodplains, soil and water, recreational resources, and agricultural productivity. Because this section has been retained exactly as it appeared in the Errata sheet, it remains approved.
The State proposes to comply with the requirements of the Federal regulations at 30 CFR 886.23(b) by using OSM procedures concerning the Abandoned Mine Land Inventory System, required by SMCRA section 403(c). We are approving this change because it explicitly requires compliance with a provision of the Federal regulations.
This section has been revised to reference the authorizing statute at Kentucky Revised Statutes (KRS) 350.450. In addition, the State has amended its definition of small operators to include all those anticipated to mine less than 300,000 tons of coal per year. This change mirrors the Federal regulations at 30 CFR 795.6(a)(2), which also define small operators as those mining less than 300,000 tons per year. We are therefore approving this change.
This section has been revised to allow all contractors, rather than just small operators, to participate in the bidding for AML projects that involve incidental coal removal, although small operators will still receive preference. The change is intended to address the situation where small operators may occasionally lack the expertise, equipment, access, etc., to perform the needed work. Kentucky's practice of allowing only small operators to bid for AML contracts that involve the incidental removal of coal is set forth in the original Plan that we approved in 1982.
This section has been amended to change the heading from “Supplementation of Eligible Bond Forfeiture Sites” to “Bond Forfeiture Projects.” This change, already contained in the Errata Sheet that we approved in 1982, is now moved to the text of the Plan. It is non-substantive in nature and is hereby approved.
The section was further revised by deleting all but the first paragraph, and by adding a paragraph that states that it is the policy of the Kentucky Division of Abandoned Mine Lands (DAML) that only eligible bond forfeiture sites are covered by the AML plan and that bond forfeiture sites must meet all priority and grant submission requirements that all other AML problem sites meet. This change in effect eliminated the previous specific requirements for bond forfeiture sites. This change is approved because it does not conflict with section 402(g)(4)(B)(ii) of SMCRA and 30 U.S.C. 1232(g)(4)(B)(ii), which created AML Fund eligibility for certain bond forfeiture sites.
Kentucky proposed this new section to comply with SMCRA section 403(b)(1) and 30 U.S.C. 1233(b)(1), which authorizes States and Tribes to use up to 30 percent of their annual AML grants to fund projects for water supply facilities in areas that have suffered coal mining related impacts to drinking water supplies. Kentucky's new section states that:
Title IV of SMCRA was amended in 1990 to allow a state to use up to 30% of its annual AML grant to fund projects for ‘* * * the purpose of protecting, repairing, replacing, constructing, or enhancing facilities relating to water supply, including water distribution facilities and treatment plants, to replace water supplies adversely affected by past coal mining practices.’ Kentucky will use, at its discretion, up to 30% of its annual AML grant to provide drinking water to areas of the Commonwealth where water supplies have been adversely affected by AML.
Eligibility of water supply projects and funding of the projects will be made based on guidelines developed and administered by the Division of Abandoned Mine Lands. Eligibility requirements will be developed jointly with the OSM.
Kentucky's plan includes a section providing the specific criteria used to identify and rank projects to be funded through the program. As previously approved, this subsection, designated as subsection V, discusses the development of AML construction grant applications. Under this subsection, projects to be included in a year's construction grant application are selected from a grant development action list. Those projects included in the action list are “the known Priority I and II projects where the degree and imminency of impacts are most severe, plus those supplemental bond forfeiture reclamation areas yet unaddressed.”
Kentucky proposed to amend subsection V by removing the phrase, “plus those supplemental bond forfeiture reclamation areas yet unaddressed.” Thus, projects included in the action list would consist only of Priority I and II projects. The State also proposed to change references to the Assistant Director of the Division of Abandoned Mine Lands to references to the Director. Finally, Kentucky proposed to change the title of subsection V from “Annual Construction Grant Application” to “Project Selection.” This section has also been revised to reflect the current policy of including input from all professional staff in the project selection process and the process by which grant application elements are prepared for each project. We are approving the proposed changes because they meet the requirements of the Federal regulations at 30 CFR 884.13(c)(1), which require the State to describe its criteria for ranking and identifying projects to be funded by the AML program.
In the second paragraph of page 5-1, the phrase “30 CFR 884.13(f)(5)(v), Flora and Fauna of the Coalfields,” was deleted and replaced with the phrase “30 CFR 884.13(f)(3), Endangered and threatened plant, fish and wildlife and their habitat.” This change was made because the Federal regulation at 30 CFR 884.13(f)(5)(v) has been repealed, and because the correct reference is 30 CFR 884.13(f)(3). This is not a substantial concern.
This section has been revised to incorporate the language at KRS 350.570(3), which authorizes the Commonwealth of Kentucky to acquire
This section has been revised to eliminate subdivision 2(e), which requires itemizations of any unpaid taxes or assessments levied, assessed or due which could operate as a lien on the interest offered, and subdivision 2(f), which states that a deed of conveyance shall be executed, acknowledged and recorded in the name of the Commonwealth of Kentucky after acceptance of an offer.
The Federal regulations at 30 CFR 879.13(b) allow States to use applicable State law when accepting donations of land. Therefore, we are approving the deletion of the above provisions with the understanding that Kentucky will continue to follow all applicable State laws when accepting donations of real property.
Kentucky has revised this section by updating the names of departments and titles of certain departmental officials. As these revisions do not have a substantive effect on the State's AML program, we are approving them.
Kentucky has proposed to move this section from the approved Errata Sheet for the original 1981 Plan into the text of Chapter 6 of the plan. It is intended to comply with the requirements at 30 CFR 884.13(c)(4), which requires a description of policies and procedures regarding land acquisition, management and disposal. Specifically, this section corresponds to the Federal regulations at 30 CFR 879.14, “Management of acquired land.” Because the provision is identical in substance to the one approved by OSM in 1982 and contained in the Errata Sheet, it remains approved in its new location.
Kentucky has proposed to revise this section by adding a requirement that the appraised value of a property be stated in a land disposition notice. This change is based on recommendations made by OSM in the 1981 OSM Review (Administrative Record No. KY-57). With this change, the Plan remains in compliance with the Federal regulations at 30 CFR 879.15, pertaining to disposition of reclaimed land. Therefore, the change is approved. Also, the State elected to allow land sales to be conducted by either public auction or sealed bid, whereas the approved Errata Sheet for the 1981 Plan allowed sealed bids to be accepted prior to the sale date, followed by a public auction. This change likewise leaves the Plan in compliance with the Federal regulations at 30 CFR 879.15, and it is therefore approved.
Kentucky has proposed to revise these sections as follows:
(1)
In this case, the Kentucky revisions are more stringent than the Federal requirements at 30 CFR 884.13. The Federal program requires that within 60 days of filing a lien the property owners may petition under local law to determine the increase in market value to their land and may appeal any decisions under local law. Under the new section of State law, within 60 days of the reclamation work, the land owner shall be notified of the above. Landowners are given an opportunity to appeal any increases in market value within 60 days of the lien being filed. Although the Kentucky law, as proposed, does not allow for the specific appeal of the lien itself, any liens are only possible where there is an increase in property value. Thus, here the landowner's rights are still protected. We are therefore approving this change.
(2)
This change was recommended by OSM since there is not a State Abandoned Mine Reclamation Fund in Kentucky. Kentucky works under grants of State and Secretary share monies from the Abandoned Mine Reclamation Fund defined under SMCRA. If Kentucky someday does decide to have a State Abandoned Mine Reclamation Fund it will have to be legislated and could be used to account/administer set aside funds given them from the AML Fund, since these monies cease to be “AML Funds” once given to the State. Furthermore, Appendix 7-A and its Attachment 7-1 pertain only to contracting for reclamation of pre and post law coal mining permits for which the performance bond has been forfeited. The DAML administers forfeited bond money to accomplish reclamation as a collateral duty. DAML has a separate section within their Construction Branch that handles bond forfeiture planning and reclamation, which is accounted separately from AML work to reflect Title V costs for Kentucky I&E (Title V) Grant debiting. Therefore, these procedures are best documented by DAML as standard operating procedures rather than being in the AML Plan. As such, we find that these amendments are approvable, as they do not render the State program less effective than the Federal requirements.
Kentucky has revised their program so that the reference to “Division of Abandoned Lands (DAL)” has been changed here, and throughout the document, to “Division of Abandoned Mine Lands (DAML).” As this change is not substantive, and therefore will not render the State program less effective than the Federal program, we are approving it.
Kentucky has revised their program in accordance with Federal requirements
Kentucky has proposed a revision to its program on page 12-1, paragraph 6, that would delete the reference to Public Law 95-87 (SMCRA) and add references to Chapter 3 of the AML Plan, pertaining to Small Operator Goals, and to 30 CFR 884.13(c)(1). These changes were contained in the 1981 Errata Sheet for the original Plan, both of which we approved in 1982, and are now incorporated into the text of the Plan in identical form. Therefore, the changes are approved.
The subsection pertaining to purchase requisitions is being revised to reflect the current procedure for reviewing and approving requisitions. Specifically, three new paragraphs are added to the beginning of the Purchase Requisition section on page 12-4. These new paragraphs state that project plans are selectively reviewed and revised, if necessary, by the staff of the Commissioner of the Department for Surface Mining Reclamation and Enforcement (DSMRE) and, if approved are then returned to the DAML, where a purchase requisition is prepared for the Director to review and sign. After they are signed, the plans are sent to the Division of Administrative Services, which reviews the purchase requisition for accuracy and form, and to insure that sufficient funds are available.
This section, in effect, re-delegates the function and responsibility of purchase requisition review, approval, and processing. The changes comply with the Federal regulations at 30 CFR 884.13(d)(3), which require a description of the purchasing and procurement systems to be used by the agency that administers the AML Plan. Therefore, the additional paragraphs are approved.
Kentucky has proposed a revision to the first paragraph on page 12-6 to read: “When an apparent low bidder is identified for any AML reclamation contract, the Division of Abandoned Lands forwards the low bidder's name, Federal tax number, social security numbers and other information as required to the Ownership and Control Review section of the Division of Permits of the Kentucky Department of Surface Mining for an Applicant Violator System (AVS) check for permit eligibility, in accordance with 30 CFR 874.16. Before the contract is awarded to the apparent low bidder an AVS confirmation of permit eligibility will be received from the AVS check.”
This revision effectively updates the Kentucky program to be in compliance with the Federal regulations at 30 CFR 874.16, pertaining to AML contractor eligibility, and with the standard for AVS reviews. This proposed change is approved.
Also on page 12-6, the fourth sentence of the first paragraph is revised by deleting the statement that the Commonwealth has the right to “waive all informalities and technicalities of a bid when, in their judgment, the best interest of the Commonwealth of Kentucky may be served.” A sentence is then added immediately after the revised fourth sentence. The new sentence states that “[a]ll rejections of bids or waivers will be in accordance with requirements of Office of Management and Budget (OMB) Circular A-102, and applicable State or local law.” We previously approved these revisions in the Errata Sheet for the original 1981 Plan. This proposal merely transfers the revisions to the text of the Plan, and is therefore approved without further discussion.
Kentucky has deleted the subsections, “Monthly Reports for Office of Surface Mining”, “Final Report for the Office of Surface Mining” and “Change Orders,” in their entirety. In addition, the phrase, “and change orders,” at the end of the first paragraph on page 12-7 has been deleted.
Kentucky has also inserted the sentence “guidelines pertaining to change orders will be developed by the Division Director as needed” as the last sentence of the “Project Inspection” subsection.
OSM currently analyzes reports under oversight. The monthly reports to OSM noted in the previously-approved Plan were designed to keep OSM informed of Kentucky's progress during the startup of the Kentucky program in the early 1980's and were sent to the Knoxville Regional Office, which no longer exists. All monitoring and oversight of the Kentucky AML program has been moved to the Lexington Field Office, thereby rendering the reporting required by the deleted subsections unnecessary. In addition, the State has produced and follows internal standard operating procedures for change orders, which we review under normal oversight, and notifies us of significant change orders under a provision of our Directive AML-22 Performance Agreement for oversight purposes of their construction management process. Because there is no Federal requirement that States file monthly reports, final reports, with OSM, or that change orders or major revisions be approved by OSM, we are approving these changes.
Kentucky has added the subsection “AML Enhancement Rule.” This additional section incorporates OSM's AML Enhancement Rule at 30 CFR 874.17 by reference. The rule provides guidance and procedures for AML programs when considering an AML project as government-financed construction under 30 CFR Part 707 where the level of funding will be less than 50 percent of the total cost of planned coal extraction. Because this change will add to the universe of projects that are eligible for AML funding (
In this subsection, Kentucky proposes to allow operators to enter into reclamation agreements with the Division of Abandoned Mine Lands for the purpose of removal of excess spoil from adjacent or nearby active permitted operations and subsequent placement on AML sites. Placement of excess spoil on adjacent abandoned mine land has been addressed previously in other rulemaking. Specifically, in a July 9, 1991, letter to Ohio (Administrative Record No. OH-1546), the Director of OSM clarified OSM's position concerning the standards and requirements which apply to the usage of excess spoil for reclamation of abandoned mine land sites. OSM focused on the parameters for excess spoil disposal outside the permit area as established, in part, in several final rules approving such a provision in the West Virginia program (45 FR 69254-69255, October 20, 1980; 46 FR 5919, January 21, 1981; and 55 FR 21328-21329, May 23, 1990).
In the January 21, 1981,
First, Kentucky's proposal requires that the excess spoil placed on an abandoned site will be “for use as cover material and a growth medium for vegetation.” As such, the amount of excess spoil placed thereon will not exceed that required to restore that site to AOC. Therefore, valley, head-of-hollow and durable rock fills will not be constructed on these AML sites, because the amount of material deposited to form a fill would far exceed that necessary for use as cover material and as a growth medium for revegetation.
Second, the proposal requires that the “site must be designated as an active AML project during all reclamation activity and will be subject to oversight by (Kentucky) inspection personnel.” This is interpreted to mean the project is to be administered as a Federally-funded AML project authorized through the Federal AML grant process, which must comply with requirements of the Federal Assistance Manual (OSM Directive AML-10) and the National Environmental Policy Act of 1969 (NEPA). The environmental safeguards that therefore will apply should ensure that the excess spoil is placed in an environmentally-sound fashion, and that placement will not destroy or degrade features of environmental value.
Third, and finally, the Director finds that the proposal contains sufficient performance incentives to require compliance with all applicable requirements, since the proposal states that the “AML site will be maintained, as determined by (Kentucky), by the contractor through the entire bond liability period of the permitted site from which the excess spoil originated” and should the contractor “fail to honor or satisfy the agreement, (Kentucky) may require the company to obtain a permanent program permit under Title V for the affected area. In addition, Kentucky always has AML grant funds available to reclaim these sites in the event that the operator defaults on the terms of its contract, all Title V enforcement options are exhausted, and the AML reclamation contract performance bond is insufficient to complete reclamation.
Kentucky has revised this subsection to update organizational title and office changes. As this change is not substantive, and therefore will not render the State program less effective than the Federal program, we are approving it. This determination is based on recommendations made by OSM in the 1981 OSM Review (Administrative Record No. KY-57).
Kentucky has reworded the first paragraph to better clarify AML eligibility by referencing “Section 404 “Eligible Lands and Water” and/or 402(g)(4) of Title IV of Public Law 95-87 and/or KRS 350.560”. This change provides additional clarification of which sites are eligible for reclamation with Kentucky AML grant funds. Because this amendment refers to the appropriate Federal and State laws governing AML site eligibility, we are hereby approving it. This determination is based on recommendations made by OSM in the 1981 OSM Review (Administrative Record No. KY-57).
On page 16-3, first paragraph (Environmental Damage), line 3, Kentucky has added the phrase “including adverse impacts on endangered and threatened species” directly after the phrase “loss of fish and wildlife habitat.” Also on page 16-3, in the paragraph entitled “Surface/Groundwater Contamination,” the phrase “including adverse impacts on endangered and threatened species” is added after the phrase “aquatic vegetation.”
On page 16-5, at the end of the paragraph entitled “Erosion,” the following sentence is added: “On-site erosion and sediment control techniques will be used wherever practicable and feasible to minimize erosion and retain sediment within the disturbed area or limit the volume of sediment leaving the project site.” Also on page 16-5, at the end of the paragraph entitled “Reduced Fish and Wildlife Habitat,” the following sentence was added: “Unvegetated areas may also cause adverse impacts on endangered and threatened species.”
On pages 16-6 and 16-7, a new section, entitled “Abandoned Highwalls,” was added. This section enumerates and discusses problems generally associated with abandoned highwalls on AML sites. These problems include, but are not limited to, threats to life, health and safety, reduced wildlife habitat, attractive nuisances for children or hikers, and adverse impact on aesthetic, historical, cultural, or recreational resources. The new section also discussed certain
On page 16-9, in the paragraph entitled “Limitation of loss of habitat,” the sentence has been changed by adding at the end the phrase “and runoff from burned areas may impede or prevent utilization of water resources by aquatic life.” Also, a second sentence is added, which states that “[s]uch [forest] fires can have adverse impacts on endangered or threatened species.”
On page 16-12, at the end of the paragraph entitled “Limitation or loss of fish and wildlife habitat,” the following sentence was added: “This [limitation or loss of fish and wildlife habitat] problem is especially serious for those endangered or threatened species, such as Federally listed bats, which inhabit caves or mine shafts subject to subsidence.”
All of these changes to section 16 were previously contained in the Errata Sheet for the 1981 Plan, both of which we approved in 1982, and are merely being transferred to the text of the Plan. Therefore, we are approving the transfers without further discussion.
Kentucky has revised this section to recognize the presence of endangered or threatened species during reclamation and land use planning. A sentence has been added on page 17-6, stating that the Big South Fork National River and Recreation Area has been adversely affected by erosion, sedimentation and acid mine drainage from AML sites. On pages 17-6 and 17-7, it is noted that commercial forest land in the Eastern Kentucky Coalfield includes 670,000 acres of the Daniel Boone National Forest. These revisions to section 17 were previously contained in the Errata Sheet for the 1981 Plan, both of which we approved in 1982, and are merely being transferred to the text of the Plan. Therefore, we are approving the transfers without further discussion.
Kentucky has added the following two sentences on page 18-1, at the end of the first paragraph: “Not all of the acres listed are priority I or II sites. The acreages represent an approximation of the total mined acres in each coalfield, some of which may be determined to be acceptable in their current state or may require limited efforts to correct remaining problems.” This revision to section 18 was previously contained in the Errata Sheet for the 1981 Plan, both of which we approved in 1982, and is merely being transferred to the text of the Plan. Therefore, we are approving the transfer without further discussion.
Kentucky has changed the first sentence of “The Redbird Purchase Unit” paragraph to make it clear that the unit is not purely a recreational area. This revision to section 19 was previously contained in the Errata Sheet for the 1981 Plan, both of which we approved in 1982, and is merely being transferred to the text of the Plan. Therefore, we are approving the transfer without further discussion.
Kentucky has revised its program to include references to the National Environmental Policy Act of 1969 (NEPA), as amended (42 U.S.C., 4321
Kentucky has added a requirement for DSMRE to consult with the Kentucky Department of Fish and Wildlife Resources regarding the existence of Federally endangered or threatened species during the NEPA review process on page 21-79. We are approving this change because the Kentucky Department of Fish and Wildlife Resources is the appropriate state agency for purposes of consultation with respect to endangered or threatened species.
Kentucky has added the current title of the “Natural Resources and Environmental Protection Cabinet” to its AML plan. As this change does not substantively affect the Kentucky AML program, it is approved.
Kentucky has also revised its program to incorporate NEPA compliance measures into the AML plan rather than the previous requirement to do an “environmental assessment.” We are approving this change because it more accurately accounts for the varying levels of review that may be required pursuant to NEPA.
Kentucky has added numerous changes to the text of its AML Plan that are composed mostly of additional references to various species of flora and fauna. These changes were previously contained in the Errata Sheet for the 1981 Plan, both of which we approved in 1982, and are merely being transferred to the text of the Plan. Therefore, we are approving the transfers without further discussion.
The Figure 22-2, “Preliminary Correlation Chart of Coal Beds and Key Beds of the Pennsylvanian Rocks of Eastern Kentucky,” has been added and the section has been revised to present options in determining remining feasibility, and to eliminate references to Site Score Sheets and matrices to rank AML sites. The references to be deleted are found on page 22-22 of the currently approved AML plan, and are discussed further below.
The State has eliminated the use of Site Score Sheets and matrices to rank AML sites, and approved a new system that is found in Chapter 4 of the current plan, “Project Ranking and Selection Procedures” which was approved on July 14, 1987 (52 FR 26299). Based on that change, we recommended that the references in Chapter 22 to these previously removed features be removed from Chapter 22 of the current plan amendment as well. Kentucky has complied with this suggestion and we thus find that these deletions render the State AML program internally consistent with respect to AML site ranking and hereby approve them.
The sentences inserted to provide options in determining remining feasibility are found on page 22-14 of this amendment, and state that “Kentucky may use different systems to analyze the consideration for probability for remining. In 1980, the Kentucky Geological Survey developed a system of moderate complexity for ranking probability of remining.” We are approving this change because it accords with the elimination of the references to Site Score Sheets.
On page 22-26, pertaining to non-coal minerals, Kentucky has deleted the reference to the Site Score Sheet, but the potential for non-coal mineral recovery remains a factor to be considered when ranking AML sites. This deletion is approved for the reasons stated above in this same finding. In that same paragraph, the following four sentences are being added: “Extraction of these non-coal minerals in the Commonwealth may take place by any of several methods. Petroleum and natural gas are extracted through the
We asked for public comments on the amendment (Administrative Record No. KY-72). We did not receive any comments from the public.
Under 30 CFR 732.17(h)(11)(i) and section 503(b) of SMCRA, we requested comments on the amendment from various Federal agencies with an actual or potential interest in the Kentucky program (Administrative Record No. KY-72). We received one comment from the U.S. Fish and Wildlife Service (USFWS), one from the U.S. Department of Labor's Mine Safety and Health Administration (MSHA), and one from the U.S. Department of Agriculture's Natural Resource Conservation Service (NRCS).
We received a letter from the USFWS dated March 14, 2003 (Administrative Record No. KY-72). The letter indicated that the USFWS was interested in four sections of the AML plan changes. First, it indicated that it concurs with the changes to the AML Enhancement Rule (p. 12-9), as it may reduce the impacts to fish and wildlife resources on active mining permit areas, increase the number of AML projects that can be completed each year, and enhance additional habitat for fish and wildlife through AML reclamation projects. Second, the USFWS indicated support for the addition of the new subsection Reclamation Agreements (p. 12-10) because the site-specific removal of excess spoil will enhance reclamation on AML sites. Third, it supports the additions of sections relating to threatened and endangered species at Problems Occurring on Abandoned Mine Land Sites (pp. 16-3, 16-5, 16-9, and 16-12). In addition, to the extent that soils will not be compacted and the site's ability to reforest be jeopardized, it supports the addition of the erosion minimization and sediment retention techniques. We agree with the USFWS on this matter and recognize concerns associated with soil compaction. Finally, the USFWS indicated that it has a concern with the section Flora and Fauna of the Coalfields (Chapter 21, p. 21-79), such that it suggests that Kentucky should consult with it, in addition to the Kentucky Fish and Wildlife Service, regarding the existence of Federally listed species when implementing the Endangered Species Act. We acknowledge this concern and recognize that the USFWS has jurisdiction over both Federally listed species and the Federal Endangered Species Act. The USFWS concern in this case is handled by OSM policy set in OSM Directive GMT-10 “Federal Assistance Manual”. In accordance with this policy, OSM has the responsibility for environmental compliance with NEPA. However, policy provides that initial preparation of the environmental review document and initial consultations may be completed by the State. Final review, consultation, and authorization of the environmental review document rests with OSM. By agreement with Kentucky, OSM performs the consultation responsibility with the USFWS. The USFWS concerns in this case are therefore satisfied by OSM policy, rather than the Kentucky AML Plan.
We received a letter from the MSHA dated March 13, 2003 (Administrative Record No. KY-72). MSHA indicated that the changes to the AML plan would not have an impact concerning its office or jurisdiction.
We received a letter from the NRCS dated March 10, 2003 (Administrative Record No. KY-72). NRCS indicated that it concurs with Kentucky's proposals to update its AML plan, thereby bringing it up to date with current Federal regulations. The NRCS also stated that while it concurs with the changes made concerning coordination with the Rural Abandoned Mine Program formerly administered by NRCS, there are concerns about the funding longevity of the program as it has been taken “off budget.” We also share this concern, however it falls outside of the scope of our jurisdiction and as such we are unable to respond to this comment in our approval of Kentucky's AML plan amendment.
Under 30 CFR 732.17(h)(11)(ii), we are required to get a written concurrence from EPA for those provisions of the program amendment that relate to air or water quality standards issued under the authority of the Clean Water Act (33 U.S.C. 1251
Under 30 CFR 732.17(h)(4), we are required to request comments from the SHPO and ACHP on amendments that may have an effect on historic properties. On June 12, 2002, we requested comments on Kentucky's amendment (Administrative Record No. KY-72), but neither the SHPO nor the ACHP responded to our request.
Based on the above findings, we are approving Kentucky's proposed amendment, except as follows. We are not approving the word “or,” which appears at the end of paragraph 1 of the section entitled “Lands for Permanent Facilities.” We are approving the incorporation by reference of the Federal AML Enhancement Rule subject to the restrictions placed upon the Federal regulation by the court in
This rule does not have takings implications. This determination is based on the analysis performed for the counterpart Federal regulation.
This rule is exempted from review by the Office of Management and Budget (OMB) under Executive Order 12866.
The Department of the Interior has conducted the reviews required by section 3 of Executive Order 12988 and has determined that this rule meets the applicable standards of subsections (a) and (b) of that section. However, these standards are not applicable to the actual language of State and Tribal abandoned mine land reclamation plans
This rule does not have Federalism implications. SMCRA delineates the roles of the Federal and State governments with regard to the regulation of abandoned mine land reclamation programs. One of the purposes of SMCRA is to “establish a nationwide program to protect society and the environment from the adverse effects of surface coal mining operations.” Section 405(d) of SMCRA requires State abandoned mine reclamation programs be in compliance with procedures, guidelines, and requirements established by SMCRA.
In accordance with Executive Order 13175, we have evaluated the potential effects of this rule on Federally-recognized Indian tribes and have determined that the rule does not have substantial direct effects on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. This final rule applies only to the Kentucky program and therefore does not affect tribal programs.
On May 18, 2001, the President issued Executive Order 13211 which requires agencies to prepare a Statement of Energy Effects for a rule that is (1) considered significant under Executive Order 12866, and (2) likely to have a significant adverse effect on the supply, distribution, or use of energy. Because this rule is exempt from review under Executive Order 12866 and is not expected to have a significant adverse effect on the supply, distribution, or use of energy, a Statement of Energy Effects is not required.
This rule does not require an environmental impact statement because agency decisions on proposed State and Tribal abandoned mine land reclamation plans and plan amendments are categorically excluded from compliance with the National Environmental Policy Act (42 U.S.C. 4332) by the Manual of the Department of the Interior (516 DM 6, appendix 8, paragraph 8.4B(29).
This rule does not contain information collection requirements that require approval by OMB under the Paperwork Reduction Act (44 U.S.C. 3507
The Department of the Interior certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
This rule is not a major rule under 5 U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act. This rule: (a) Does not have an annual effect on the economy of $100 million; (b) will not cause a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions; and (c) does not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S.-based enterprises to compete with foreign-based enterprises. This determination is based upon the fact that the State submittal, which is the subject of this rule, is based upon counterpart Federal regulations for which an analysis was prepared and a determination made that the Federal regulation was not considered a major rule.
This rule will not impose an unfunded mandate on State, local, or tribal governments or the private sector of $100 million or more in any given year. This determination is based upon the fact that the State submittal, which is the subject of this rule, is based upon counterpart Federal regulations for which an analysis was prepared and a determination made that the Federal regulation did not impose an unfunded mandate.
Intergovernmental relations, Surface mining, Underground mining.
30 U.S.C. 1201
(d) The Kentucky Abandoned Mine Land Reclamation Plan amendment, submitted to OSM on April 29, 2002, is approved with the following exceptions. The word “or,” which appears at the end of paragraph 1 of the section entitled “Lands for Permanent Facilities,” is not approved. We are approving the State of Kentucky's incorporation by reference of the Federal AML Enhancement Rule into their regulations. This approval is subject to the restrictions placed upon the Federal regulation by the court in
Office of Foreign Assets Control, Treasury.
Interim final rule.
The Office of Foreign Assets Control (“OFAC”) of the Department of the Treasury is amending the Iraqi Sanctions Regulations to incorporate a general license authorizing U.S. financial institutions to transfer certain claims against the Government of Iraq for unpaid loans and other debts to their home offices or to other foreign offices of the same institution.
Effective September 30, 2003. Written comments must be received no later than January 23, 2004.
Comments may be submitted to the Chief of Records, ATTN: Request for Comments, Office of Foreign Assets Control, Department of the Treasury, 1500 Pennsylvania Avenue, NW., Washington, DC 20220. Alternatively, comments may be submitted via facsimile to the Chief of Records at 202/622-1657 or via OFAC's Web site <
OFAC's Chief of Licensing, tel. 202/622-2480, Chief of Policy Planning and Program Management, tel. 202/622-2500, or Chief Counsel, tel. 202/622-2410.
On August 2, 1990, the President issued Executive Order 12722, declaring a national emergency with respect to Iraq. This order was issued under the authority of, inter alia, the International Emergency Economic Powers Act (50 U.S.C. 1701
On May 22, 2003, the United Nations Security Council adopted Resolution 1483, which substantially lifted the multilateral economic sanctions with respect to Iraq. On May 23, 2003, OFAC issued a general license that reflected Resolution 1483 by authorizing most transactions that had been prohibited by the Regulations. This general license was published in the
On September 30, 2003, OFAC issued another general license that is being published today as new section 575.534 of the Regulations. New section 575.534 provides a limited authorization for U.S. financial institutions to transfer a category of blocked property and interests in property—
Because these regulations involve a foreign affairs function, the provisions of Executive Order 12866 and the Administrative Procedure Act (5 U.S.C. 553) (the “APA”) requiring notice of proposed rulemaking, opportunity for public participation, and delay in effective date, are inapplicable. However, because of the importance of the issues addressed in these regulations, they are being issued in interim form and comments will be considered in the development of a final rule. Accordingly, OFAC encourages interested persons who wish to comment to do so at the earliest possible time to permit the fullest consideration of their views. Comments may address the impact of the regulations on the submitter's activities, whether of a commercial, non-commercial or humanitarian nature, as well as changes that would improve the clarity and organization of the regulations.
The period for submission of comments will close January 23, 2004. The address for submitting comments appears near the beginning of this document. OFAC will consider all comments received before the close of the comment period in developing final regulations. Comments received after the end of the comment period will be considered if possible, but their consideration cannot be assured. OFAC will not accept public comments accompanied by a request that a part or all of the submission be treated confidentially because of its business proprietary nature or for any other reason. OFAC will return such a submission to the originator without considering the comments in the development of final regulations. In the interest of accuracy and completeness, OFAC requires comments in written form.
All public comments on these regulations will be a matter of public record. Copies of the public record concerning these regulations will be made available not sooner than February 23, 2004 and will be obtainable from OFAC's Web site <
This document is available as an electronic file on The Federal Bulletin Board the day of publication in the
The collections of information related to these regulations can be found in 31 CFR part 501. Pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. 3507), those collections of information have been previously approved by the Office of Management and Budget under control number 1505-0164.
Administrative practice and procedure, Banks, banking, Blocking of assets, Exports, Foreign trade,
3 U.S.C. 301; 18 U.S.C. 2332d; 22 U.S.C. 287c; Pub. L. 101-410, 104 Stat. 890 (28 U.S.C. 2461 note); 31 U.S.C. 321(b); 50 U.S.C. 1601-1651, 1701-1706; Pub. L. 101-513, 104 Stat. 2047-2055 (50 U.S.C. 1701 note); E.O. 12722, 55 FR 31803, 3 CFR, 1990 Comp., p. 294; E.O. 12724, 55 FR 33089, 3 CFR, 1990 Comp., p. 297; E.O. 12817, 57 FR 48433, 3 CFR, 1992 Comp., p. 317; E.O. 13290, 68 FR 14307, March 20, 2003.
U.S. financial institutions are authorized to transfer claims that were booked in the United States as of May 23, 2003, against the Government of Iraq for unpaid loans and other debts to their home offices or to other foreign offices of the same institution. This section authorizes only the transfer of claims and does not authorize the debiting of any blocked account.
Environmental Protection Agency (EPA).
Final rule.
EPA is finalizing approval of revisions to the South Coast Air Quality Management District (SCAQMD) portion of the California State Implementation Plan (SIP). These revisions were proposed in the
This rule is effective on December 24, 2003.
You can inspect copies of the administrative record for this action at EPA's Region IX office during normal business hours by appointment. You can inspect copies of the submitted SIP revisions by appointment at the following locations:
Yvonne Fong, EPA Region IX, (415) 947-4117,
Throughout this document, “we,” “us” and “our” refer to EPA.
On July 23 (68 FR 43481) and September 16 (68 FR 54181) 2003, EPA proposed to approve the following rules into the California SIP.
We proposed to approve these rules because we determined that they complied with the relevant CAA requirements. Our proposed action contains more information on the rules and our evaluation.
EPA's proposed action provided a 30-day public comment period. During this period, we did not receive any comments.
Our assessment that the submitted rules comply with the relevant CAA requirements has not changed since our proposals. Therefore, as authorized in section 110(k)(3) of the Act, EPA is fully approving these rules into the California SIP.
Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). This action merely approves state law as meeting Federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
This rule also does not have tribal implications because it will not have a substantial direct effect on one or more
In reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. In this context, in the absence of a prior existing requirement for the State to use voluntary consensus standards (VCS), EPA has no authority to disapprove a SIP submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a SIP submission, to use VCS in place of a SIP submission that otherwise satisfies the provisions of the Clean Air Act. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
The Congressional Review Act, 5 U.S.C. 801
Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by January 23, 2004. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (
Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Nitrogen dioxide, Ozone, Reporting and recordkeeping requirements.
42 U.S.C. 7401
(c) * * *
(293) * * *
(i) * * *
(A) * * *
(
(c) * * *
(308) * * *
(i) * * *
(D) South Coast Air Quality Management District.
(
Environmental Protection Agency (EPA).
Direct final rule.
EPA is taking direct final action to approve revisions to the Commonwealth of Pennsylvania's State Implementation Plan (SIP). The revisions were submitted by the Pennsylvania Department of Environmental Protection (PADEP) to establish and require reasonably available control technology (RACT) for Hercules Cement Company. Hercules Cement Company is a major source of nitrogen oxides (NO
This rule is effective on January 23, 2004 without further notice, unless EPA receives adverse written comment by December 24, 2003. If EPA receives such comments, it will publish a timely withdrawal of the direct final rule in the
Comments may be submitted either by mail or electronically. Written comments should be mailed to Makeba Morris, Chief, Air Quality Planning Branch, Mailcode 3AP21, U.S. Environmental Protection Agency, Region III, 1650 Arch Street, Philadelphia, Pennsylvania 19103. Electronic comments should be sent either to
Rose Quinto, (215) 814-2182, or by e-mail at
Pursuant to sections 182(b)(2) and 182(f) of the CAA, the Commonwealth of Pennsylvania (the Commonwealth or Pennsylvania) is required to establish and implement RACT for all major VOC and NO
On August 15, 2003, the Pennsylvania Department of Environmental Protection (PADEP) submitted formal revisions to its SIP to establish and impose case-by-case RACT for several major sources of VOC and NO
Hercules Cement Company owns and operates a Portland Cement producing facility located in Stokertown Borough, Northampton County, Pennsylvania and is considered a major source of NO
NO
The allowable NO
EPA is approving this SIP submittal because the Commonwealth established and imposed requirements in accordance with the criteria set forth in SIP-approved regulations for imposing RACT or for limiting a source's potential to emit. The Commonwealth has also imposed recordkeeping, monitoring, and testing requirements on these sources sufficient to determine compliance with these requirements.
EPA is approving revisions to the Commonwealth of Pennsylvania's SIP which establish and require RACT for Hercules Cement Company (48-0005A) located in Northampton County, Pennsylvania. EPA is publishing this rule without prior proposal because we view this as a noncontroversial amendment and anticipate no adverse comment. However, in the “Proposed Rules” section of today's
You may submit comments either electronically or by mail. To ensure proper receipt by EPA, identify the appropriate rulemaking identification number PA203-4217 in the subject line on the first page of your comment. Please ensure that your comments are submitted within the specified comment period. Comments received after the close of the comment period will be marked “late.” EPA is not required to consider these late comments.
1.
For public commenters, it is important to note that EPA's policy is that public comments, whether submitted electronically or in paper, will be made available for public viewing at the EPA Regional Office, as EPA receives them and without change, unless the comment contains copyrighted material, confidential business information (CBI), or other information whose disclosure is restricted by statute. When EPA identifies a comment containing copyrighted material, EPA will provide a reference to that material in the version of the comment that is placed in the official public rulemaking file. The entire printed comment, including the copyrighted material, will be available at the Regional Office for public inspection.
Do not submit information that you consider to be CBI electronically to EPA. You may claim information that you submit to EPA as CBI by marking any part or all of that information as CBI (if you submit CBI on disk or CD ROM, mark the outside of the disk or CD ROM as CBI and then identify electronically within the disk or CD ROM the specific information that is CBI). Information so marked will not be disclosed except in accordance with procedures set forth in 40 CFR part 2.
In addition to one complete version of the comment that includes any information claimed as CBI, a copy of the comment that does not contain the information claimed as CBI must be submitted for inclusion in the official public regional rulemaking file. If you submit the copy that does not contain CBI on disk or CD ROM, mark the outside of the disk or CD ROM clearly that it does not contain CBI. Information not marked as CBI will be included in the public file and available for public inspection without prior notice. If you have any questions about CBI or the procedures for claiming CBI, please consult the person identified in the
You may find the following suggestions helpful for preparing your comments:
1. Explain your views as clearly as possible.
2. Describe any assumptions that you used.
3. Provide any technical information and/or data you used that support your views.
4. If you estimate potential burden or costs, explain how you arrived at your estimate.
5. Provide specific examples to illustrate your concerns.
6. Offer alternatives.
7. Make sure to submit your comments by the comment period deadline identified.
8. To ensure proper receipt by EPA, identify the appropriate regional file/rulemaking identification number in the subject line on the first page of your response. It would also be helpful if you provided the name, date, and
Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). This action merely approves state law as meeting Federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
In reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. In this context, in the absence of a prior existing requirement for the State to use voluntary consensus standards (VCS), EPA has no authority to disapprove a SIP submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a SIP submission, to use VCS in place of a SIP submission that otherwise satisfies the provisions of the Clean Air Act. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
The Congressional Review Act, 5 U.S.C. 801
Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by January 23, 2004. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action, approving Pennsylvania's NO
Environmental protection, Air pollution control, Incorporation by reference, Nitrogen dioxide, Reporting and recordkeeping requirements.
42 U.S.C. 7401
(c) * * *
(217) Revisions to the Pennsylvania Regulations pertaining to NO
(i) Incorporation by reference.
(A) Letter of August 15, 2003 from the Pennsylvania Department of Environmental Protection transmitting source-specific NO
(B) Operating Permit (OP) for Hercules Cement Company, Northampton County, 48-0005A, effective April 16, 1999.
(ii) Additional Material—Other materials submitted by the Commonwealth of Pennsylvania in support of and pertaining to the RACT determinations for the source listed in paragraph (c)(217)(i)(B) of this section.
Federal Deposit Insurance Corporation.
Notice of proposed rulemaking with request for comments.
The Federal Deposit Insurance Corporation (FDIC) proposes to revise its regulations to implement section 508 of the Rehabilitation Act of 1973, as amended. Section 508 requires each Federal agency or department to ensure that the electronic and information technology (EIT) they develop or procure allows individuals with disabilities access to EIT comparable to the access of those who are not disabled, unless the agency would incur an undue burden.
Written comments must be received on or before January 23, 2004.
You may submit comments, identified by RIN number 3064-AC58, by any of the following methods:
• Agency Web site:
• Mail: Robert E. Feldman, Executive Secretary, Attention: Comments/Legal ESS, Federal Deposit Insurance Corporation, 550 17th Street, NW., Washington, DC 20429.
• Hand Delivered/Courier: The guard station at the rear of the 550 17th Street Building (located on F Street), on business days between 7 a.m. and 5 p.m.
• E-mail:
• Comments may be inspected and photocopied in the FDIC Public Information Center, Room 100, 801 17th Street, NW., Washington, DC, between 9 a.m. and 4:30 p.m. on business days.
Earl F. McJett, Information Management Analyst, Office of Diversity and Economic Opportunity, (202) 416-4320, or Joan S. Bunning, Counsel, Legal Division, (202) 898-8834, Federal Deposit Insurance Corporation, 550 17th Street, NW., Washington, DC 20429.
On March 20, 1986, the FDIC promulgated 12 CFR part 352 to implement the spirit of section 504 of the Rehabilitation Act of 1973 (the Rehabilitation Act) (29 U.S.C. 794), as amended. Section 504 prohibits discrimination on the basis of disability as it applies to programs and activities conducted by various agencies. Although the FDIC did and still does not believe that Congress contemplated that section 504 should cover non-appropriated, independent regulatory agencies such as the FDIC, it voluntarily chose to promulgate this regulation pursuant to section 504.
The Workforce Investment Act of 1998 (the WIA) (Pub. L. 105-220, 112 Stat. 936) amending section 508 of the Rehabilitation Act (29 U.S.C. 794d), was signed into law on August 7, 1998. As amended, section 508 requires each Federal agency or department to ensure that the EIT it develops or procures allows individuals with disabilities access comparable to those who are not disabled, unless the agency would incur an undue burden. In addition, the amended section 508 requires the Architectural and Transportation Barriers Compliance Board (Access Board) to publish standards defining EIT and setting forth the technical and functional performance criteria necessary to accessibility for such technology. The WIA was effective as of August 7, 2000. The statute required the Access Board to publish its final standards by February 7, 2000.
On July 13, 2000, the Military Construction Appropriations Act for Fiscal Year 2001 (Pub. L. 106-246, 114 Stat. 511) was signed into law. Section 2405 of that statute amended section 508 to delay the section's effective date for enforcement to 6 months from the publication of the Access Board's final standards. The Access Board's final standards were published on December 21, 2000.
This section would be amended to state that the purpose of the regulation is to implement the requirements of section 508 of the Rehabilitation Act of 1973, as amended by the WIA, in addition to section 504 of the Rehabilitation Act.
This section would be amended to state that Part 352 applies to EIT access in addition to the agency's programs and activities. It also updates references to certain components of the FDIC such as the Office of Legislative Affairs and lists the FDIC's Internet website as one of the agency programs or activities to which Part 352 applies.
This section would be amended to include definitions specifically pertaining to EIT, to update terminology by substituting the term “individual with a disability” for “handicapped person,” and to define references in the regulation to section 508 and pertinent statutes.
This section is currently designated 352.5. Current section 352.4 would be deleted by the proposed rule. This section pertained to a self-imposed requirement that the FDIC must evaluate its program to implement section 504 of the Rehabilitation Act within one year of the regulation's effective date. This self-evaluation has been conducted by the FDIC. The current section 352.4 is therefore unnecessary.
The new section 352.4 would state that no qualified individual with a disability shall be excluded from participation in, be denied the benefits of, or otherwise be subject to discrimination on the basis of that disability in FDIC programs or activities.
With respect to technology access, this new section states that the FDIC will ensure that employees and the public with disabilities will have access to EIT comparable to those without disabilities, unless an undue burden would be imposed on the FDIC.
This section would be amended to provide that no qualified individual with a disability shall, on the basis of that disability, be subjected to discrimination in employment in any program or activity conducted by the FDIC. The section would further provide that the definitions, requirements, and procedures of the Rehabilitation Act that pertain to employment discrimination, as reflected in the Rehabilitation Act's implementing regulations, will apply to FDIC employment.
This section would be amended to make plain that the FDIC shall operate its programs and activities to be readily accessible to and usable by persons with disabilities.
This section would be amended to provide that each building or part of a building where FDIC programs or activities will occur which is either new or substantially altered for the FDIC shall be fashioned for ready access and use by individuals with disabilities.
This section would be amended to provide that the FDIC shall take appropriate steps to effectively communicate with participants in FDIC programs and activities. The section would also be amended to refer to individuals with disabilities rather than handicapped persons and to the Office of Diversity and Economic Opportunity (ODEO) rather than the superseded Office of Equal Employment. The section would also be amended to provide the current address and telephone numbers of ODEO for those who wish to contact that FDIC component. Finally, the section would be amended to state that information as to where FDIC programs or activities are conducted shall be provided at the primary entrance to each FDIC facility.
This section would be amended to provide that the section applies to claims of discrimination on the basis of disability in FDIC programs and activities or the denial of access to EIT. The section would also be amended to update and correct references to the Office of Diversity and Economic Opportunity (ODEO), the procedures for filing and processing complaints alleging disability discrimination in FDIC programs or activities and denial of access to EIT. Moreover, the section would be amended to shorten the time period during which the FDIC must reach a finding with respect to a complaint alleging discrimination on the basis of disability in FDIC programs and activities and denial of access to EIT from 180 to 120 days.
This section would be amended to include a reference to EIT and section 508.
The Board of Directors of the FDIC (the Board) is seeking comment on whether the measures outlined in this notice of proposed rulemaking will fulfill the objectives set for the agency by section 508 of the Rehabilitation Act. The Board welcomes any suggestions that commenters might have for ways to improve upon the suggested measures or additional steps that the FDIC might take to promote access by individuals with disabilities to EIT and to prevent discrimination on the basis of disability.
The proposed rule would not involve any collections of information under the Paperwork Reduction Act (44 U.S.C. 3501,
Pursuant to 5 U.S.C. 605(b) the FDIC certifies that the proposed rule would not have a significant economic impact on a substantial number of small businesses within the meaning of the Regulatory Flexibility Act (5 U.S.C. 601,
The proposed rule will not affect family well-being within the meaning of section 654 of the Treasury and General Government Appropriations Act, enacted as part of the Omnibus Consolidated and Emergency Supplemental Appropriations Act of 1999 (Pub. L. 105-277, 112 Stat. 2681).
Access, Civil rights, Electronic and information technology, Equal employment opportunity, Federal building and facilities, Individuals with disabilities.
For the reasons set forth in the preamble, the Board of Directors of the Federal Deposit Insurance Corporation hereby proposes to revise Part 352 of Title 12 of the Code of Federal Regulations to read as follows:
12 U.S.C. 1819(a); 29 U.S.C. 794d.
(a) One purpose of this part is to implement the spirit of section 504 of the Rehabilitation Act of 1973 (the Rehabilitation Act) as amended by section 119 of the Rehabilitation, Comprehensive Services, and Developmental Disabilities Amendments of 1978 and the Workforce Investment Act of 1998. Section 504 prohibits discrimination on the basis of disability in programs and activities conducted by a federal executive agency. Although the FDIC does not believe that Congress contemplated coverage of non-appropriated, independent regulatory agencies such as the FDIC, the FDIC has chosen to promulgate this part to ensure that, to the extent practicable, persons with disabilities are provided with equal access to FDIC programs and activities.
(b) This part is also intended to implement section 508 of the Rehabilitation Act as amended. Section 508 requires each federal agency or department to ensure that the electronic and information technology they procure allows individuals with disabilities access to that technology comparable to the access of those who are not disabled, unless the agency would incur an undue burden.
(a) This part applies to all programs, activities, and electronic and information technology developed, procured, maintained, used or conducted by the FDIC. The following programs and activities involve the direct provision of benefits and services to, or participation by, members of the public:
(1) Attending Board of Directors meetings open to the public and all other public meetings;
(2) Making inquiries or filing complaints at the FDIC Office of Legislative Affairs and Office of Public Affairs;
(3) Using the FDIC library in Washington, DC;
(4) Using the FDIC Web site on the Internet;
(5) Visiting an insured bank at which they conducted business (or an alternative liquidation site selected by the FDIC) and which has become insolvent, or been purchased by another bank under FDIC supervision, for the purpose of:
(i) Collecting FDIC checks for the insured amount of their deposits previously held in such bank; and/or
(ii) Discussing with FDIC representatives matters related to the repayment of debts which they previously owed to such bank, prior to its failure or purchase by another bank under FDIC supervision;
(6) Seeking employment with the FDIC;
(b) This part governs the conduct of FDIC personnel in their interaction with employees of insured banks and employees of other state or federal agencies while discharging the FDIC's statutory obligations as insurer and/or receiver of financial institutions. It does not apply to financial institutions insured by the FDIC.
(c) Although application for employment and employment with the FDIC are programs and activities of the FDIC for purposes of this part, they shall be governed only by the standards set forth in § 352.6 of this part.
For purposes of this part, the term—
(1) With respect to any FDIC program or activity in which a person is required to perform services or to achieve a level of accomplishment, an individual with a disability who meets the essential eligibility requirements and can achieve the purpose of the program or activity without modifications in the program or activity that the FDIC can determine on the basis of a written record would result in a fundamental alteration in its nature;
(2) With respect to any other program or activity, an individual with a disability who meets the essential eligibility requirements for participation in, or receipt of benefits from, that program or activity;
(3) With respect to employment, an individual with a disability as defined in 29 CFR 1630.2(g), which is made applicable to this part by § 352.6.
In accordance with section 504 of the Rehabilitation Act, no qualified individual with a disability shall, solely by reason of his or her disability, be excluded from participation in, be denied the benefits of, or be subjected to discrimination in any program or activity conducted by the FDIC.
(a) In accordance with section 508 of the Rehabilitation Act, the FDIC shall ensure, absent an undue burden, that the electronic and information technology the agency develops, procures, maintains or allows:
(1) Individuals with disabilities who are FDIC employees or applicants to have access to and use of information and data that is comparable to the access to and use of information and data by FDIC employees or applicants who are not individuals with disabilities; and
(2) Individuals with disabilities who are members of the public seeking information or services from the FDIC to have access to and use of information and data that is comparable to the access to and use of information and data by members of the public who are not individuals with disabilities.
(b) When development or procurement of electronic and information technology that meets the standards published by the Architectural and Transportation Barriers Compliance Board, 36 CFR part 1194, would pose an undue burden, the FDIC shall provide individuals with disabilities covered by paragraph (a) of this section with the information and data by an alternative means of access that allows the individuals to use the information and data.
No qualified individual with a disability shall, on the basis of that disability, be subjected to discrimination in employment in any program or activity conducted by the FDIC. The definitions, requirements, and procedures (including those pertaining to employment discrimination complaints) of sections 501 of the Rehabilitation Act of 1973, as established in 29 CFR parts 1614 and 1630, shall apply to employment in the FDIC.
The FDIC shall operate each of the programs or activities set forth in § 352.2 of this part so that when viewed in its entirety, the program or activity is readily accessible to and usable by individuals with disabilities.
Each building or part of a building, whether newly constructed, or substantially altered, in which FDIC programs or activities will be conducted, shall be designed, constructed or altered so as to be readily accessible to, and usable by, individuals with disabilities.
(a) The FDIC shall take appropriate steps to ensure effective communication with participants in FDIC programs, activities and EIT.
(1) The FDIC shall furnish appropriate auxiliary aids where necessary to afford an individual with a disability an equal opportunity to participate in, and enjoy the benefits of, the FDIC programs or activities.
(i) In determining what type of auxiliary aid is necessary, the FDIC shall give primary consideration to any reasonable requests of the individual with a disability.
(ii) The FDIC need not provide individually prescribed devices, readers for personal use or study, or other devices of a personal nature.
(2) Where the FDIC communicates by telephone, it shall use telecommunications devices for deaf persons (TDD's) or equally effective telecommunication systems with hearing impaired participants and beneficiaries.
(b) The FDIC shall ensure that interested persons, including persons with impaired vision or hearing, can obtain information as to the existence and location of accessible services, activities, facilities and EIT. Interested persons may obtain such information by calling, writing or visiting the FDIC Office of Diversity and Economic Opportunity (ODEO), located at 801 17th Street, NW., Washington, DC 20434. The ODEO telephone number is (202) 416-4000 and (202) 416-2487 (TDD).
(c) The FDIC shall provide information at a primary entrance to each of its facilities where programs or activities are conducted, directing users to a location at which they can obtain information about accessible facilities. The international symbol for accessibility shall be used at each primary entrance of an accessible facility.
(a)
(b)
(c)
(d) If the FDIC receives a complaint over which it does not have jurisdiction, it shall promptly notify the complainant and shall make reasonable efforts to refer the complainant to the appropriate government entity.
(e)
(1) A finding regarding the alleged violations;
(2) A description of a remedy for each violation found; and
(3) A notice of the right to appeal.
(f) Appeals of the findings or remedies must be filed by the complainant within 30 days of receipt from the FDIC of the letter required by § 352.10(e). The FDIC may extend this time for good cause.
(g) Timely appeals shall be accepted and processed by the FDIC Chairman or ODEO Director.
(h) The FDIC Chairman or ODEO Director shall notify the complainant of the results of the appeal within 60 days of the receipt of the request. If the FDIC Chairman or ODEO Director determines that additional information is needed from the complainant, he or she shall have 60 days from the date of receipt of the additional information to make a determination on the appeal.
(i) The time limits set forth in paragraphs (e) and (h) of this section may be extended for an individual case when the FDIC Chairman or ODEO Director determines that there is good cause, based on the particular circumstances of that case.
(j) The FDIC may delegate its authority for conducting complaint investigations to other federal agencies or independent contractors, except that the authority for making the final determination may not be delegated.
The FDIC shall make available to employees, applicants, participants, beneficiaries, and other interested persons such information regarding the provisions of this part and its applicability to the programs or activities conducted by the FDIC, and make such information available to them in such manner as the Chairman or designee finds necessary to apprise such persons of the protections against discrimination under section 504 or technology access provided under section 508 and this part.
By order of the Board of Directors of the Federal Deposit Insurance Corporation.
Federal Aviation Administration, DOT.
Proposed rulemaking; notice of public meeting.
This document announces a public meeting of the Terminal Area Operations Aviation Rulemaking Committee (TAOARC) to discuss its recommended dispositions to public comments received in response to the proposed rule “Area Navigation (RNAV) and Miscellaneous Amendments.”
The public meeting will be held on December 9, 2003, at 9 a.m. Registration will begin at 8:30 a.m.
The public meeting will be held at the Hyatt Regency Crystal City at Washington National Hotel, 2799 Jefferson Davis Highway, Arlington, Virginia 22202; telephone (703) 418-1234, facsimile (703) 418-1289.
An electronic copy of the proposed dispositions to the comments may be found at the FAA's web page at
If you are unable to attend the meeting and wish to submit written comments, you may send your comments to Dr. Kathy Abbott at
For information on meeting administration matters, contact Heather McLaughlin at (202) 385-4590.
For technical or agenda item questions, contact Dr. Kathy Abbott, Regulation and Certification, Federal Aviation Administration, 800 Independence Avenue, SW., Washington, DC 20591; telephone (202) 267-7192, facsimile (503) 213-6495.
On December 17, 2002, the FAA published a Notice of Proposed Rulemaking (NPRM) concerning “Area Navigation (RNAV) and Miscellaneous Amendments” (67 FR 77326). The comment period closed on July 7, 2003. Some commenters requested that the FAA work with the Terminal Area Operations Aviation Rulemaking Committee (TAOARC) to respond to the questions and comments to the NPRM raised by industry. This committee was established under 49 U.S.C. 106(p)(5) to provide a forum for the FAA, other government entities, and affected members of the aviation community to discuss issues and to develop resolutions and processes to facilitate the evolution of safe and efficient terminal area operations. The FAA agreed with the commenters that it would be helpful to seek the advice of TAOARC and asked TAOARC to review the public comments on the RNAV NPRM and prepare a recommendation on how the FAA should address them. TAOARC's involvement was limited to reviewing the issues raised by the commenters and not to raise new issues.
The purpose of this meeting is to share TAOARC's draft disposition of comments with the general public and to solicit public comment on the draft disposition before it is presented to the FAA as a formal recommendation.
The agenda for the meeting includes:
• Review of the RNAV NPRM history.
• Review the comments received on the NPRM and the proposed dispositions to those comments.
• Respond to questions and conduct open discussion of identified issues.
Attendance is open to the interested public but may be limited to space available. To make arrangements to present oral statements at the meeting, contact Dr. Kathy Abbott (
Sign or oral interpretation or an assistive listening device will be available at the meeting if requested 10 calendar days before the meeting. If you need to make arrangements for these services, contact Heather McLaughlin (
Federal Aviation Administration, DOT.
Notice of proposed rulemaking (NPRM).
This document proposes adopting a new airworthiness directive (AD) for the specified Eurocopter France (Eurocopter) model helicopters. This proposal would require installing a tail rotor blade (blade)-to-torsion bar attachment tuning weight assembly on each blade of the Quiet Fenestron tail rotor and replacing each blade attachment bushing. This proposal is prompted by the discovery of tail rotor induced vibrations during flight tests. The actions specified by this proposed AD are intended to prevent vibration in the tail rotor and the pilot's anti-torque pedals, blade pitch control failure, and subsequent loss of control of the helicopter.
Comments must be received on or before January 23, 2004.
Submit comments in triplicate to the Federal Aviation
Richard Monschke, Aviation Safety Engineer, FAA, Rotorcraft Directorate, Rotorcraft Standards Staff, Fort Worth, Texas 76193-0110, telephone (817) 222-5116, fax (817) 222-5961.
Interested persons are invited to participate in the making of the proposed rule by submitting such written data, views, or arguments as they may desire. Communications should identify the Rules Docket number and be submitted in triplicate to the address specified above. All communications received on or before the closing date for comments will be considered before taking action on the proposed rule. The proposals contained in this document may be changed in light of the comments received.
Comments are specifically invited on the overall regulatory, economic, environmental, and energy aspects of the proposed rule. All comments submitted will be available, both before and after the closing date for comments, in the Rules Docket for examination by interested persons. A report summarizing each FAA-public contact concerned with the substance of this proposal will be filed in the Rules Docket.
Commenters wishing the FAA to acknowledge receipt of their mailed comments submitted in response to this proposal must submit a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket No. 2003-SW-11-AD.” The postcard will be date stamped and returned to the commenter.
The Direction Generale De L'Aviation Civile (DGAC), the airworthiness authority for France, notified the FAA that an unsafe condition may exist on Eurocopter Model AS 365 N3 helicopters. The DGAC advises of a report of the discovery of an increased level of vibration felt by the crew in the pedal units.
Eurocopter has issued Alert Service Bulletin (ASB) No. 64.00.23, dated October 30, 2002, which specifies installing a tuning weight assembly, part number (P/N) 365A33-3546-00, on each blade of the Quiet Fenestron tail rotor. Compliance with this ASB requires prior compliance with Eurocopter Service Bulletin 64.00.21, dated November 8, 2000 (modification 0761B23, 0765B35, and 0764B39, 40, 41), which specifies installing a Quiet Fenestron tail rotor, and with Eurocopter Service Bulletin 65.00.14, dated January 7, 2002 (modification 0765B41), which specifies installing a reinforced control shaft on the tail rotor hub control shaft assembly. The DGAC classified these service bulletins as mandatory and issued AD No. 2002-622(A), dated December 11, 2002, to ensure the continued airworthiness of these helicopters in France.
This helicopter model is manufactured in France and is type certificated for operation in the United States under the provisions of 14 CFR 21.29 and the applicable bilateral agreement. Pursuant to the applicable bilateral 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.
This previously described unsafe condition is likely to exist or develop on other helicopters of the same type design registered in the United States. Therefore, the proposed AD would require removing each tail rotor attachment bushing, P/N 365A33-3530-20, and then installing a blade-to-torsion bar attachment tuning weight assembly, P/N 365A33-3546-00, on each blade of the Quiet Fenestron tail rotor at the same time. Mixing the existing blade attachment bushings, P/N 365A33-3530-20, and the new tuning weight assembly, P/N 365A33-3546-00, on the same tail rotor hub would be prohibited. The actions would be required to be accomplished in accordance with the service bulletin described previously.
On July 10, 2002, the FAA issued a new version of 14 CFR part 39 (67 FR 47997, July 22, 2002), which governs the FAA's AD system. The regulation now includes material that relates to altered products, special flight permits, and alternative methods of compliance. Because we have now included this material in part 39, we no longer need to include it in each individual AD.
The FAA estimates that this proposed AD would affect 6 helicopters of U.S. registry and the proposed actions would take approximately 8 work hours per helicopter to accomplish at an average labor rate of $65 per work hour. Required parts would cost approximately $3,290, and attaching hardware would cost $40. Based on these figures, we estimate the total cost impact of the proposed AD on U.S. operators to be $3,850 per helicopter, or $23,100 for the entire fleet.
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 a new airworthiness directive to read as follows:
To prevent vibration in the tail rotor attachments and the pilot's anti-torque pedals, blade pitch control failure, and subsequent loss of control of the helicopter, accomplish the following:
(a) Install a tail rotor blade (blade)-to-torsion bar attachment tuning weight assembly, P/N 365A33-3546-00, on each blade of the Quiet Fenestron tail rotor in accordance with paragraph 2, Accomplishment Instructions, of Eurocopter France Alert Service Bulletin 64.00.23, dated October 30, 2002. Replace each of the 10 blade attachment bushings, P/N 365A33-3530-20, at the same time. Do not mix the existing blade attachment bushings, P/N 365A33-3530-20, and the new tuning weight assemblies, P/N 365A33-3546-00, on the same tail rotor hub.
(b) To request a different method of compliance or a different compliance time for this AD, follow the procedures in 14 CFR 39.19. Contact the Safety Management Group, Rotorcraft Directortate, FAA, for information about previously approved alternative methods of compliance.
The subject of this AD is addressed in Direction Generale De L'Aviation Civile (France) AD 2002-622(A), dated December 11, 2002.
Federal Aviation Administration, DOT.
Notice of proposed rulemaking (NPRM).
This document proposes adopting a new airworthiness directive (AD) for the specified Eurocopter France (Eurocopter) model helicopters. This proposal would require installing a tail rotor blade (blade)-to-torsion bar attachment bushing (bushing) with a tuning weight assembly on each blade of the Quiet Fenestron tail rotor, and replacing each blade attachment bushing. This proposal is prompted by a discovery of tail rotor induced vibration during flight tests. The actions specified by this proposed AD are intended to prevent vibrations in the tail rotor and the pilot's anti-torque pedals, blade pitch control failure, and subsequent loss of control of the helicopter.
Comments must be received on or before January 23, 2004.
Submit comments in triplicate to the Federal Aviation Administration (FAA), Office of the Regional Counsel, Southwest Region, Attention: Rules Docket No. 2003-SW-12-AD, 2601 Meacham Blvd., Room 663, Fort Worth, Texas 76137. You may also send comments electronically to the Rules Docket at the following address:
Richard Monschke, Aviation Safety Engineer, FAA, Rotorcraft Directorate, Rotorcraft Standards Staff, Fort Worth, Texas 76193-0110, telephone (817) 222-5116, fax (817) 222-5961.
Interested persons are invited to participate in the making of the proposed rule by submitting such written data, views, or arguments as they may desire. Communications should identify the Rules Docket number and be submitted in triplicate to the address specified above. All communications received on or before the closing date for comments will be considered before taking action on the proposed rule. The proposals contained in this document may be changed in light of the comments received.
Comments are specifically invited on the overall regulatory, economic, environmental, and energy aspects of the proposed rule. All comments submitted will be available, both before and after the closing date for comments, in the Rules Docket for examination by interested persons. A report summarizing each FAA-public contact concerned with the substance of this proposal will be filed in the Rules Docket.
Commenters wishing the FAA to acknowledge receipt of their mailed comments submitted in response to this proposal must submit a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket No. 2003-SW-12-AD.” The postcard will be date stamped and returned to the commenter.
The Direction Generale De L'Aviation Civile (DGAC), the airworthiness authority for France, notified the FAA that an unsafe condition may exist on Eurocopter Model EC 155B helicopters. The DGAC advises of a report of the discovery of an increased level of vibration felt by the crew in the pedal units.
Eurocopter has issued Alert Service Bulletin (ASB) No. 64A001, dated October 30, 2002, which specifies installing a tuning weight assembly, part number (P/N) 365A33-3546-00, on each blade of the Fenestron tail rotor. Compliance with this ASB requires prior compliance with Eurocopter Service Bulletin 64-002, dated December 19, 2002 (modifications 0765B35 and 0764B39), which specifies upgrading the Quiet Fenestron tail rotor hub and tail rotor gearbox for embodiment of the tuning weight modification, or Eurocopter Service Bulletin 65-003, dated December 10, 2001 (modification 0765B41), which specifies installing a reinforced control shaft on the tail rotor hub control shaft assembly or both The DGAC classified service bulletin ASB 64A001, dated October 30, 2002, as mandatory and issued AD No. 2002-621(A), dated December 11, 2002, to ensure the continued airworthiness of these helicopters in France.
This helicopter model is manufactured in France and is type certificated for operation in the United States under the provisions of 14 CFR 21.29 and the applicable bilateral agreement. Pursuant to the applicable bilateral 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.
This previously described unsafe condition is likely to exist or develop on other helicopters of the same type design registered in the United States. Therefore, the proposed AD would require removing each tail rotor attachment bushing, P/N 365A33-3530-20, and then installing a blade-to-torsion bar attachment tuning weight assembly, P/N 365A33-3546-00, on each blade of the Quiet Fenestron tail rotor at the same time. Mixing the existing blade attachment bushings, P/N 365A33-
On July 10, 2002, the FAA issued a new version of 14 CFR part 39 (67 FR 47997, July 22, 2002), which governs the FAA's AD system. The regulation now includes material that relates to altered products, special flight permits, and alternative methods of compliance. Because we have now included this material in part 39, we no longer need to include it in each individual AD.
The FAA estimates that this proposed AD would affect 3 helicopters of U.S. registry and the proposed actions would take approximately 8 work hours per helicopter to accomplish at an average labor rate of $65 per work hour. Required parts would cost approximately $3,290 and $40 for attaching hardware. Based on these figures, we estimate the total cost impact of the proposed AD on U.S. operators to be $3,850 for each helicopter, or $11,550 for the entire fleet.
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 a new airworthiness directive to read as follows:
To prevent vibration in the tail rotor attachments and the pilot's anti-torque pedals, blade pitch control failure, and subsequent loss of control of the helicopter, accomplish the following:
(a) Install a tail rotor blade (blade)-to-torsion bar attachment tuning weight assembly, P/N 356A33-3546-00, on each blade of the Quiet Fenestron tail rotor in accordance with paragraph 2, Accomplishment Instructions, of Eurocopter France Alert Service Bulletin 64A001, dated October 30, 2002. Replace each of the 10 blade attachment bushings, P/N 365A33-3530-20, at the same time. Do not mix the existing blade attachment bushings, P/N 365A33-3530-20, and the new tuning weight assemblies, P/N 365A33-3546-00, on the same tail rotor hub.
(b) To request a different method of compliance or a different compliance time for this AD, follow the procedures in 14 CFR 39.19. Contact the Safety Management Group, Rotorcraft Directortate, FAA, for information about previously approved alternative methods of compliance.
The subject of this AD is addressed in Direction Generale De L'Aviation Civile (France) AD 2002-621(A), dated December 11, 2002.
Federal Aviation Administration, DOT.
Notice of proposed rulemaking (NPRM).
This document proposes adopting a new airworthiness directive (AD) for the specified Sikorsky Aircraft Corporation (Sikorsky) model helicopters. The AD would require installing a Number 5 bearing chip detector in each engine, installing an on-board chip detector annunciation system, and revising the Rotorcraft Flight Manual (RFM) to add procedures for crew response to an on-board chip detector annunciation. This proposal is prompted by reports of the failure of the engine's Number 5 bearing that resulted in erratic movement of the high-speed engine-to-transmission shaft (shaft), oil leakage, an in-flight fire and an emergency landing. The actions specified by the proposed AD are intended to detect an impending engine bearing (bearing) failure and prevent a bearing failure, oil leakage, severing of the shaft housing, an uncontained in-flight fire, and a subsequent immediate emergency landing.
Comments must be received on or before January 23, 2004.
Submit comments in triplicate to the Federal Aviation Administration (FAA), Office of the Regional Counsel, Southwest Region, Attention: Rules Docket No. 2003-SW-35-AD, 2601 Meacham Blvd., Room 663, Fort Worth, Texas 76137. You may also send comments electronically to the Rules Docket at the following address:
Kirk Gustafson, Aviation Safety Engineer, Boston Aircraft Certification Office, Engine and Propeller Directorate, 12 New England Executive Park, Burlington, MA 01803, telephone (781) 238-7190, fax (781) 238-7170.
Interested persons are invited to participate in the making of the proposed rule by submitting such written data, views, or arguments as they may desire. Communications should identify the Rules Docket number and be submitted in triplicate to the address specified above. All communications received on or before the closing date for comments will be considered before taking action on the proposed rule. The proposals contained in this document may be changed in light of the comments received.
Comments are specifically invited on the overall regulatory, economic, environmental, and energy aspects of the proposed rule. All comments submitted will be available, both before and after the closing date for comments, in the Rules Docket for examination by interested persons. A report summarizing each FAA-public contact concerned with the substance of this proposal will be filed in the Rules Docket.
Commenters wishing the FAA to acknowledge receipt of their mailed comments submitted in response to this proposal must submit a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket No. 2003-SW-35-AD.” The postcard will be date stamped and returned to the commenter.
This document proposes adopting a new AD for Sikorsky Model S-61L, S-61N, S-61-NM, and S-61R helicopters. The AD would require, within 60 days, installing a chip detector for the Number 5 engine bearing, installing an on-board chip detector annunciation system, and providing in the Emergency Procedures section of the RFM the emergency procedures for the flight crew to follow in the event that the engine chip detector warning light comes on during flight operations. This proposal is prompted by at least five similar events that varied in severity, in which the Number 5 bearing on the high-speed shaft connecting the engine to the transmission failed. Failure of this engine bearing resulted in uneven rotation of the shaft, leakage of engine oil that may be ignited by friction-induced heat, failure of the shaft housing, which is part of the fire containment system, and an uncontained fire. In the most severe incident, the fire consumed the aircraft after a successful emergency landing. The actions specified by the proposed AD are intended to detect an impending bearing failure and to prevent a bearing failure, oil leakage, severing of the shaft housing, an uncontained in-flight fire, and a subsequent immediate emergency landing.
The FAA has reviewed General Electric Aircraft Engine CT58 Service Bulletin Number 72-0195, dated May 1, 2003, which describes procedures for installing an electrical chip detector (either part number 3018T72P01 or 3049T42P01) in the CT58 engine power turbine accessory drive assembly. The FAA has also reviewed Sikorsky Aircraft Corporation Alert Service Bulletin No. 61B30-15, dated June 9, 2003, which describes procedures for installing an on-board cockpit annunciation system that interfaces with these engine chip detectors, as a means to detect metallic chips in the event of deterioration of the Number 5 bearing in either engine.
This unsafe condition is likely to exist or develop on other helicopters of the same type design. Therefore, the proposed AD would require, within 60 days, installing a chip detector for the No. 5 bearing, installing an on-board chip detector annunication system, and revising the RFM to add procedures for crew response to an on-board chip detector annunciation. The actions would be required to be accomplished in accordance with the two service bulletins described previously.
On July 10, 2002, the FAA issued a new version of 14 CFR part 39 (67 FR 47997, July 22, 2002), which governs the FAA's AD system. The regulation now includes material that relates to altered products, special flight permits, and alternative methods of compliance. Because we have now included this material in part 39, we no longer need to include it in each individual AD.
The FAA estimates that this proposed AD would affect 21 helicopters of U.S. registry, and the proposed actions would take approximately 81.5 work hours per helicopter to accomplish at an average labor rate of $65 per work hour. Required parts would cost approximately $1,940 per helicopter. Based on these figures, the total cost impact of the proposed AD on U.S. operators would be $7,238 per helicopter, or $151,998 for the entire fleet.
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 a new airworthiness directive to read as follows:
To detect impending engine bearing (bearing) failure and prevent a bearing failure, oil leakage, severing of the shaft housing, an uncontained in-flight fire, and a subsequent immediate emergency landing, accomplish the following:
(a) Install an engine chip detector, part number 3049T42P01 or 3018T72P01, in the engine power turbine accessory drive assembly in accordance with the Accomplishment Instructions, paragraphs 3.A. and 3.B., in General Electric Aircraft Engines CT58 Service Bulletin Number 72-0195, dated May 1, 2003.
(b) Install an on-board engine chip detector annunciation system in accordance with Sikorsky Aircraft Corporation Alert Service Bulletin No. 61B30-15, dated June 9, 2003 (ASB). For helicopters with a master warning caution panel (MWCP) manufactured by United Controls or Sundstrand Data, install in accordance with paragraph 3.B. of the ASB. For helicopters with an MWCP
(c) After accomplishing paragraph (b) of this AD, before further flight, perform a functional test of the engine chip detector system and repeat the functional test at intervals not to exceed 150 hours TIS in accordance with the Accomplishment Instructions, paragraph 3.D., of the ASB.
(d) Insert the emergency procedures for an on-board engine chip detector warning light illumination into the Emergency Procedures section of the applicable Rotorcraft Flight Manual in accordance with the Accomplishment Instructions, paragraph 3.E., of the ASB.
(e) To request a different method of compliance or a different compliance time for this AD, follow the procedures in 14 CFR 39.19. Contact the Boston Aircraft Certification Office, Engine and Propeller Directorate, FAA, for information about previously approved alternative methods of compliance.
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
This action proposes to modify the current Minneapolis, MN, Class B airspace area. Specifically, this action proposes airspace changes to contain large turbine-powered aircraft during operations to the new Runway 17/35 and to address an increase in aircraft operations to and from the Minneapolis-St. Paul International (Wold-Chamberlain) Airport (MSP). The FAA is proposing this action to enhance safety and improve the management of aircraft operations in the Minneapolis terminal area. Further, this effort supports the FAA's national airspace redesign goal of optimizing terminal and en route airspace areas to reduce aircraft delays and improve system capacity.
Comments must be received on or before January 23, 2004.
Send comments on this proposal to the Docket Management System, U.S. Department of Transportation, Room Plaza 401, 400 Seventh Street, SW., Washington, DC 20590-0001. You must identify both docket numbers, FAA-2003-15471/Airspace Docket No. 03-AWA-6, at the beginning of your comments.
You may also submit comments through the Internet at
An informal docket may also be examined during normal business hours at the office of the Regional Air Traffic Division, Federal Aviation Administration, 2300 East Devon Avenue, Des Plaines, IL 60018.
Steve Rohring, 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 and be submitted in triplicate to the address listed above. Commenters wishing the FAA to acknowledge receipt of their comments on this notice must submit with those comments a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket Nos. FAA-2003-15471/Airspace Docket No. 03-AWA-6.” 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 notice 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
Additionally, any person may also obtain a copy of this notice by submitting a request to the FAA, Office of Air Traffic Airspace Management, ATA-400, 800 Independence Avenue, SW., Washington, DC 20591, or by calling (202) 267-8783. Communications must identify both docket numbers for this notice. 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.
In August 1979, the FAA issued a final rule establishing the Minneapolis, MN Terminal Control Area (TCA). This area was later re-classified as a Class B airspace area as a result of the Airspace Reclassification Final Rule (56 FR 65638); however, this final rule did not alter the dimensions of the original TCA.
Since its establishment, the Minneapolis terminal area has experienced a significant growth in aircraft operations from 233,000 in 1979 to over 518,000 in 2002. An analysis of MSP aircraft operations indicates that this increase has resulted in aircraft (arriving and departing MSP) frequently flying outside the horizontal and vertical limits of the current MSP Class B airspace area.
Further, in the first half of 2002, there were 17 traffic alert and collision avoidance system (TCAS) events reported in the area. These TCAS events occurred in the airspace areas proposed in this notice as a modification to the current MSP Class B airspace area. A TCAS event is defined as a situation where a pilot receives an alert on an aircraft in close proximity and is provided climb or descend instructions to avoid that aircraft. The TCAS sounds an alarm when it determines that
Other action taken outside of this proposal in an effort to better accommodate the increase in aircraft operations was the installation of a precision runway monitor (PRM). The PRM allows for simultaneous ILS approaches. In 1998, the PRM was installed to facilitate simultaneous ILS approaches to closely spaced parallel runways (Runway 12L/30R and 30L/12R) using minimum separation between arriving aircraft. Although this has increased airport capacity, during peak operations, high performance aircraft must frequently intercept the localizers for ILS approaches to the above runways more than 20 nautical miles (NM) from MSP at 4,000 feet above mean sea level (MSL) and 5,000 feet MSL. This results in aircraft initiating approach procedures outside of the confines of the current MSP Class B airspace area. Also, a new runway, scheduled to be opened in November 2004, is under construction. The new runway (17/35) will provide increased airport capacity. However, aircraft conducting instrument operations to this new runway would also frequently need to intercept the instrument approaches outside the Class B airspace area if the current Class B airspace area is not expanded. The proposed Class B airspace modification will address this matter.
As announced in Letter to Airmen No. 00-02 and in the
These meetings allowed interested airspace users an opportunity to present their views and offer suggestions regarding planned modifications to the MSP Class B airspace area. All comments received during the informal airspace meetings and the subsequent comment periods were considered in developing this proposal.
Seven commenters ask questions or volunteered to participate in the aeronautical study process.
Four commenters, three general aviation pilots and Northwest Airlines, concurred with the proposal.
Three commenters, the Aircraft Owners and Pilots Association (AOPA), the Experimental Aircraft Association (EAA), and the Airline Pilot's Association suggested raising the base altitude between 20 NM and 30 NM from the Minneapolis-St. Paul International (Wold-Chamberlain) Airport Distance Measuring Equipment (DME) Antenna (I-MSP) and developing extensions at lower altitudes to the east and west of MSP to accommodate aircraft conducting simultaneous operations to the parallel runways. The FAA agrees with these comments and has changed the planned modifications to reflect these suggestions.
Sixty-five commenters stated that the planned modifications would require pilots to fly farther to conduct training and would compress VFR aircraft operations into a smaller area. One of these commenters also stated an opposition to raising the ceiling from 8,000 feet MSL to 10,000 feet MSL. The FAA has determined that some aircraft would have to fly farther or at lower (or higher) altitudes to remain clear of the planned MSP Class B airspace area; however, this is necessary to separate them from large turbine-powered aircraft arriving and departing MSP.
One hundred and sixty-four commenters (including 130 signed form letters from glider pilots who operate out of Benson Municipal Airport or Stanton Airfield) opposed the planned base altitude of 4,000 feet over Benson Municipal Airport and Stanton Airfield. The Benson Municipal Airport (located 17 miles to the north of I-MSP) is within the lateral limits of the current MSP Class B airspace area and the planned expansion of the 4,000-foot base altitude to 30 NM from I-MSP would require aircraft departing the Benson Municipal Airport to fly 13 miles farther to depart the lateral limits of the MSP Class B airspace area and may also interfere with glider operations at that airport. Glider operations may also be impacted at Stanton Airfield, which is located approximately 30 NM to the south of MSP on the edge of the planned MSP Class B airspace area. To address these concerns, the FAA has changed the planned modifications by raising the base altitude between 20 NM and 30 NM from I-MSP from 4,000 feet MSL to 7,000 feet MSL (with the exception of extensions to the east and west of MSP that must remain at 4,000 feet MSL to contain aircraft conducting simultaneous approaches. The planned modifications were also changed to include “cut-outs” 20 NM to the north and 25 NM to the south of I-MSP. These changes mitigate the impact on glider operations at the Benson Municipal Airport and Stanton Airfield, respectively.
The Ad Hoc Committee was sponsored by Minnesota Department of Transportation, Office of Aeronautics and was comprised of representatives from the AOPA, EAA, Minnesota Soaring Clubs, International Aerobatics, Ultralight Association, Air National Guard, Life Flight, flight instructors, and skydivers. On May 14, 2002, the Ad Hoc Committee held the first of two meetings. During this meeting, representatives from the Minneapolis Airport Traffic Control Tower presented details of planned MSP Class B airspace area modifications, which reflected comments received as a result of informal airspace meetings. In general, the Ad Hoc Committee's comments on the planned modifications were favorable. However, several invited members of the Ad Hoc Committee were not present and the committee decided that an additional meeting was necessary to ensure that input was obtained from all members/organizations who had agreed to participate on the Ad Hoc Committee.
On June 25, 2002, the Ad Hoc Committee held their second and final meeting. During this meeting, participants presented comments and recommendations regarding the planned modifications presented at the first Ad Hoc Committee meeting. The Ad Hoc Committee then reached a consensus and drafted a consolidated recommendation that was submitted to the FAA. The consolidated recommendation contained the following two suggestions and one comment pertaining to aerobatic waivers:
1. Reduce the proposed expansion of Area E around the Stanton Airfield from the I-MSP 30-NM arc to the I-MSP 25-NM arc and raise the proposed floor in this area from 6,000 feet MSL to 7,000 feet MSL. The FAA has adopted this recommendation.
2. Provide a cutout in Area D over Benson Municipal Airport, bounded by the Farmington (FGT) Very High Frequency Omnidirectional Range/Tactical Air Navigation (VORTAC) 006° radial, the FGT VORTAC 015° radial, and the Gopher (GEP) VORTAC 095° radial. The FAA did not adopt this recommendation because the area is within the existing Class B airspace area and the published missed approach holding pattern used for the majority of MSP instrument approach procedures utilizes the Whisk intersection, which is located within the area that the recommendation suggests eliminating.
Members of the Ad Hoc User Committee representing the aerobatic community also requested that currently held waivers for aerobatic activities remain in place. The FAA has determined that the planned Class B airspace area modifications would not require the cancellation of any existing waivers, nor would it interfere with the normal procedures required for authorizing future waivers.
The FAA is proposing an amendment to part 71 of the Federal Aviation Regulations (14 CFR part 71) to modify the MSP Class B airspace area. Specifically, this action (depicted on the attached chart) proposes to expand the upper limits of Area A, Area B, Area C, and Area D from 8,000 feet MSL to and including 10,000 feet MSL; expand the lateral limits of Area D to the northwest and southeast of MSP; and add an Area E within 30 NM of I-MSP (excluding areas to the north and south of MSP) to improve the containment of turbo-jet aircraft operating within the MSP Class B airspace area.
These modifications would improve the management of aircraft operations in the MSP terminal area and enhance safety by expanding the dimensions of the Class B airspace area to protect the aircraft conducting instrument approaches to MSP. Additionally, this proposed action supports various efforts to enhance the efficiency and capacity of the National Airspace System.
The coordinates for this airspace docket are based on North American Datum 83. Class B airspace areas are published in paragraph 3000 of FAA Order 7400.9L, Airspace Designations and Reporting Points, dated September 2, 2003, and effective September 16, 2003, which is incorporated by reference in 14 CFR section 71.1. The Class B airspace area listed in this document would be published subsequently in the Order.
Changes to Federal Regulations must undergo several economic analyses. First, Executive Order 12866 directs that each Federal agency shall propose or adopt a regulation only upon a reasoned determination that the benefits of the intended regulation justify its costs. Second, the Regulatory Flexibility Act requires agencies to analyze the economic effect of regulatory changes on small businesses and other small entities. Third, the Office of Management and Budget directs agencies to assess the effect of regulatory changes on international trade. In conducting these analyses, the FAA has determined that this proposed rule: (1) Would generate benefits that justify its circumnavigation costs and is not a “significant regulatory action” as defined in the Executive Order; (2) is not significant as defined in the Department of Transportation's Regulatory Policies and Procedures; (3) would not have a significant impact on a substantial number of small entities; (4) would not constitute a barrier to international trade; and (5) would not contain any Federal intergovernmental or private sector mandate. These analyses are summarized here in the preamble, and the full Regulatory Evaluation is in the docket.
This NPRM would modify the Minneapolis-St. Paul, MN, Class B airspace area. The proposed rule would reconfigure the sub-area lateral boundaries, and raise the altitude ceiling in certain segments of the airspace.
The NPRM would generate benefits for system users and the FAA in the form of enhanced operational efficiency and simplified navigation in the MSP terminal area. These modifications would impose some circumnavigation costs on operators of non-compliant aircraft operating in the area around MSP. However, the cost of circumnavigation is considered to be small. Thus, the FAA has determined this proposed rule would be cost-beneficial.
The Regulatory Flexibility Act of 1980 establishes “as a principle of regulatory issuance that agencies shall endeavor, consistent with the objective of the rule and of applicable statutes, to fit regulatory and informational requirements to the scale of the business, organizations, and governmental jurisdictions subject to regulation.” To achieve that principal, the Act requires agencies to solicit and consider flexible regulatory proposals and to explain the rationale for their actions. The Act covers a widerange of small entities, including small businesses, not-for-profit organizations, and small governmental jurisdictions.
Agencies must perform a review to determine whether a proposed or final rule will have a significant economic impact on a substantial number of small entities. If the determination is that it will, the agency must prepare a regulatory flexibility analysis (RFA) as described in the Act.
However, if an agency determines that a proposed or final rule is not expected to have a significant economic impact on a substantial number of small entities, section 605(b) of the 1980 Act provides that the head of the agency may so certify and an RFA is not required. The certification must include a statement providing the factual basis for this determination, and the reasoning should be clear.
This proposed rule may impose some circumnavigation costs on individuals operating in the Minneapolis-St. Paul terminal area; but the proposed rule would not impose any costs on small business entities. Operators of general aviation aircraft are considered individuals, not small business entities
The Trade Agreement Act of 1979 prohibits Federal agencies from engaging in any standards or related activities that create unnecessary obstacles to the foreign commerce of the United States. Legitimate domestic objectives, such as safety, are not considered unnecessary obstacles. The statute also requires consideration of international standards and where appropriate, that they be the basis for U.S. standards.
The proposed rule is not expected to affect trade opportunities for U.S. firms doing business overseas or for foreign firms doing business in the United States.
Title II of the Unfunded Mandates Reform Act of 1995 (the Act), enacted as Public Law 0104-4 on March 22, 1995, requires each Federal agency, to the extent permitted by law, to prepare a written assessment of the effects of any Federal mandate in a proposed or final agency rule that may result in the expenditure of $100 million or more (when adjusted annually for inflation) in any one year by State, local, and tribal governments in the aggregate, or by the private sector. Section 204(a) of the Act, 2 U.S.C. 1534(a), requires the Federal agency to develop an effective process to permit timely input by elected officers (or their designees) of State, local, and tribal governments on a proposed “significant intergovernmental mandate.” A “significant intergovernmental mandate” under the Act is any provision in a Federal agency regulation that would impose an enforceable duty upon State, local, and tribal governments in the aggregate of $100 million (adjusted annually for inflation) in any one year. Section 203 of the Act, 2 U.S.C. 1533, which supplements section 204(a), provides that, before establishing any regulatory requirements that might significantly or uniquely affect small governments, the agency shall have developed a plan, which, among other things, must provide for notice to potentially affected small governments, if any, and for a meaningful and timely opportunity for these small governments to provide input in the development of regulatory proposals.
This proposed rule does not contain any Federal intergovernmental or private sector mandates. Therefore, the requirements of Title II of the Unfunded Mandates Reform Act of 1995 do not apply.
In accordance with the Paperwork Reduction Act of 1980 (Pub. L. 96-511), there are no requirements for information collection associated with this proposed rule.
In view of the minimal or zero cost of compliance of the proposed rule and the enhancements to operational efficiency that do not reduce aviation safety, the FAA has determined that the proposed rule would be cost-beneficial.
Airspace, Incorporation by reference, Navigation (air).
In consideration of the foregoing, the Federal Aviation Administration proposes to amend 14 CFR part 71 as follows:
1. The authority citation for part 71 continues to read as follows:
49 U.S.C. 106(g), 40103, 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959-1963 Comp., p. 389.
1. The incorporation by reference in 14 CFR 71.1 of the Federal Aviation Administration Order 7400.9L, Airspace Designations and Reporting Points, dated September 2, 2003, and effective September 16, 2003, is amended as follows:
Area A. That airspace extending upward from the surface to and including 10,000 feet MSL within a 6-mile radius of I-MSP.
Area B. That airspace extending from 2,300 feet MSL to and including 10,000 feet MSL within an 8.5-mile radius of I-MSP, excluding Area A previously described.
Area C. That airspace extending from 3,000 feet MSL to and including 10,000 feet MSL within a 12-mile radius of I-MSP, excluding Area A and Area B previously described.
Area D. That airspace extending from 4,000 feet MSL to and including 10,000 feet MSL within a 20-mile radius of I-MSP and including that airspace within a 30-mile radius from the Flying Cloud 295° radial clockwise to the Gopher 295° radial and from the Gopher 115° radial clockwise to the Flying Cloud 115° radial, excluding Area A, Area B, and Area C previously described.
Area E. That airspace extending from 7,000 feet MSL to and including 10,000 feet MSL within a 30-mile radius of I-MSP from the Gopher 295° radial clockwise to the Gopher 352° radial, and from the Gopher 085° radial clockwise to the Gopher 115° radial, and from the Flying Cloud 115° radial clockwise to the Flying Cloud 295° radial excluding that airspace between a 25-mile radius and a 30-mile radius between the Flying Cloud 115° radial clockwise to the Gopher 170° radial and excluding Area A, Area B, Area C, and Area D previously described.
Internal Revenue Service (IRS), Treasury.
Notice of proposed rulemaking.
This document contains proposed regulations relating to the tax treatment of installment obligations and property acquired pursuant to a contract under sections 704(c) and 737. The proposed regulations affect partners and partnerships and provide guidance necessary to comply with the law.
Written and electronic comments and requests for a public hearing must be received no later than February 23, 2004.
Send submissions to: CC:PA:LPD:PR (REG-160330-02), room 5203, Internal Revenue Service, POB 7604, Ben Franklin Station, Washington, DC 20044. Submissions may also be hand delivered Monday through Friday between the hours of 8 a.m. and 4 p.m. to: CC:PA:LPD:PR (REG-160330-02), Courier's Desk, Internal Revenue Service, 1111 Constitution Avenue NW., Washington, DC. Alternatively, taxpayers may submit electronic comments directly to the IRS Internet site at:
Concerning the regulations, Christopher L. Trump, 202-622-3070; concerning submissions and the hearing, Robin Jones, 202-622-3521 (not toll-free numbers).
Section 704(c)(1)(A) provides that income, gain, loss or deduction with respect to property contributed to a partnership by a partner shall be shared among the partners so as to take into account the variation between the basis of the property to the partnership and its fair market value at the time of the contribution.
Under section 704(c)(1)(B) and the regulations thereunder, any partner that contributes section 704(c) property to a partnership must recognize gain or loss on the distribution of such property to another partner within 7 years of its contribution. The amount of gain or loss recognized is the amount of gain or loss that would have been allocated to such partner under section 704(c)(1)(A) if the property had been sold by the partnership to the distributee partner for its fair market value at the time of the distribution.
Under section 737(a) and the regulations thereunder, any partner that contributes section 704(c) property to a partnership may recognize gain on a distribution of property (other than money) by the partnership to that partner. The amount of gain recognized is the lesser of: (1) The amount by which the fair market value of the distributed property exceeds the distributee partner's adjusted tax basis in the partner's partnership interest, or (2) the net precontribution gain of the partner. Section 737(b) defines the net precontribution gain of the partner as the net gain (if any) that would have been recognized by the distributee partner under section 704(c)(1)(B) if all property that (1) had been contributed to the partnership by the distributee partner within 7 years of the distribution and (2) is held by such partnership immediately before the distribution, had been distributed by such partnership to another partner.
For purposes of section 704(c)(1)(A) and (B) and section 737, if a partnership disposes of section 704(c) property in a nonrecognition transaction in which no gain or loss is recognized, the substituted basis property (within the meaning of section 7701(a)(42)) is treated as section 704(c) property with the same amount of built-in gain or loss as the section 704(c) property disposed of by the partnership. See §§ 1.704-3(a)(8), 1.704-4(d)(1), and 1.737-2(d)(3).
If a partnership disposes of property in an installment sale, income is taken into account under the installment method unless the partnership elects otherwise. See section 453. Upon the satisfaction of an installment obligation at other than its face value or the distribution, transmission, sale, or other disposition of an installment obligation, a taxpayer is generally required, under section 453B, to recognize gain or loss. Section 453B does not apply, however, on the disposition of an installment obligation in certain situations where the Internal Revenue Code (Code) otherwise provides for nonrecognition of gain or loss. For example, § 1.453-9(c)(2) provides that no gain or loss results under section 453(d) (now section 453B) in the case of a contribution to or distribution from a partnership under sections 721 or 731.
In addition, if a partnership acquires property pursuant to a contract such as an option, a forward contract, or a futures contract, the partnership may recognize no gain or loss on the acquisition of the property.
The proposed regulations amend § 1.704-3(a)(8) to clarify that, if a partnership disposes of section 704(c) property in exchange for an installment obligation, the installment obligation is treated as the section 704(c) property. The proposed regulations also clarify that, if a partner contributes a contract that is section 704(c) property to a partnership, and the partnership subsequently acquires property pursuant to that contract in a transaction in which less than all of the gain or loss is recognized, the acquired property is treated as the section 704(c) property for purposes of sections 704(c) and 737. For this purpose the term contract includes, but is not limited to, options, forward contracts, and futures contracts.
The proposed regulations amend § 1.704-4(d)(1) to provide that an installment obligation received by a partnership and property acquired pursuant to a contributed contract are treated as section 704(c) property for purposes of section 704(c)(1)(B) to the extent that the installment obligation or the acquired property is section 704(c) property under § 1.704-3(a)(8). As a result, if the installment obligation or property acquired pursuant to a contributed contract is distributed by a partnership to a partner other than the contributing partner within 7 years of the contribution, the contributing partner may recognize gain or loss under section 704(c)(1)(B). The proposed regulations include a similar rule under § 1.737-2(d)(3).
No inference is intended as to the treatment of these transactions under prior law.
These regulations are proposed to apply to installment obligations received by a partnership on or after November 24, 2003 in exchange for section 704(c) property and to property acquired on or after November 24, 2003 by a partnership pursuant to a contract that is section 704(c) property.
It has been determined that this notice of proposed rulemaking is not a significant regulatory action as defined in Executive Order 12866. Therefore, a regulatory assessment is not required. It also has been determined that section 553(b) of the Administrative Procedure Act (5 U.S.C. chapter 5) does not apply to these regulations, and, because these regulations do not impose a collection
Before these proposed regulations are adopted as final regulations, consideration will be given to any written (a signed original and 8 copies) or electronic comments that are submitted timely to the IRS. The IRS and Treasury Department request comments on the clarity of the proposed rules, how they can be made easier to understand and the administrability of the rules in the proposed regulations. All comments will be available for public inspection and copying. A public hearing may be scheduled if requested in writing by any person that timely submits written comments. If a public hearing is scheduled, notice of the date, time, and place of the public hearing will be published in the
The principal author of these proposed regulations is Christopher L. Trump of the Office of Associate Chief Counsel (Passthroughs and Special Industries). Other personnel from Treasury and the IRS participated in their development.
Income taxes, reporting and recordkeeping requirements.
Accordingly, 26 CFR part 1 is proposed to be amended as follows:
26 U.S.C. 7805 * * *
1. The paragraph heading for (a)(8) is revised.
2. The text of paragraph (a)(8) is redesignated as paragraph (a)(8)(i).
3. A paragraph heading for newly designated paragraph (a)(8)(i) is added.
4. The first sentence of newly designated paragraph (a)(8)(i) is amended by removing the language “in which no gain or loss is recognized''.
5. Paragraphs (a)(8)(ii) and (a)(8)(iii) are added.
6. Paragraph (f) is amended by:
a. Amending the first sentence of paragraph (f) by removing the language “of paragraph (a)(11)” and adding “of paragraphs (a)(8)(ii), (a)(8)(ii) and (a)(11)” in its place.
b. Adding two sentences at the end of paragraph (f).
The revisions and additions read as follows:
(a) * * *
(8)
(ii)
(iii)
(f)
1. The paragraph heading for (d)(1) is revised.
2. The text of paragraph (d)(1) is redesignated as paragraph (d)(1)(i).
3. A paragraph heading for newly designated paragraph (d)(1)(i) is added.
4. Paragraphs (d)(1)(ii) and (d)(1)(iii) are added.
5. Revising paragraph (g).
The revisions and additions read as follows:
(d)
(ii)
(iii)
(g)
1. The paragraph heading for (d)(3) is revised.
2. The text of paragraph (d)(3) is redesignated (d)(3)(i).
3. A paragraph heading for newly designated (d)(3)(i) is added.
4. Paragraphs (d)(3)(ii) and (d)(3)(iii) are added.
(d) * * *
(3)
(ii)
(iii)
Sections 1.737-1, 1.737-2, 1.737-3, and 1.737-4 apply to distributions by a partnership to a partner on or after January 9, 1995, except that § 1.737-2(d)(3)(ii) and (ii) apply to distributions by a partnership to a partner on or after November 24, 2003.
Environmental Protection Agency (EPA).
Proposed rule.
EPA proposes to approve the State Implementation Plan (SIP) revision submitted by the Commonwealth of Pennsylvania to establish and require reasonably available control technology (RACT) for Hercules Cement Company, a major source of nitrogen oxides (NO
Comments must be received in writing by December 24, 2003.
Comments may be submitted either by mail or electronically. Written comments should be mailed to Makeba Morris, Chief, Air Quality Planning Branch, Mailcode 3AP21, U.S. Environmental Protection Agency, Region III, 1650 Arch Street, Philadelphia, Pennsylvania 19103. Electronic comments should be sent either to
Rose Quinto at (215) 814-2182, or by e-mail at
For further information, please see the information provided in the direct final action, Pennsylvania's Approval of NO
You may submit comments either electronically or by mail. To ensure proper receipt by EPA, identify the appropriate rulemaking identification number PA203-4217 in the subject line on the first page of your comment. Please ensure that your comments are submitted within the specified comment period. Comments received after the close of the comment period will be marked “late.” EPA is not required to consider these late comments.
1.
i.
ii.
iii.
2.
For public commenters, it is important to note that EPA's policy is that public comments, whether submitted electronically or in paper, will be made available for public
Do not submit information that you consider to be CBI electronically to EPA. You may claim information that you submit to EPA as CBI by marking any part or all of that information as CBI (if you submit CBI on disk or CD ROM, mark the outside of the disk or CD ROM as CBI and then identify electronically within the disk or CD ROM the specific information that is CBI). Information so marked will not be disclosed except in accordance with procedures set forth in 40 CFR part 2.
In addition to one complete version of the comment that includes any information claimed as CBI, a copy of the comment that does not contain the information claimed as CBI must be submitted for inclusion in the official public regional rulemaking file. If you submit the copy that does not contain CBI on disk or CD ROM, mark the outside of the disk or CD ROM clearly that it does not contain CBI. Information not marked as CBI will be included in the public file and available for public inspection without prior notice. If you have any questions about CBI or the procedures for claiming CBI, please consult the person identified in the
You may find the following suggestions helpful for preparing your comments:
1. Explain your views as clearly as possible.
2. Describe any assumptions that you used.
3. Provide any technical information and/or data you used that support your views.
4. If you estimate potential burden or costs, explain how you arrived at your estimate.
5. Provide specific examples to illustrate your concerns.
6. Offer alternatives.
7. Make sure to submit your comments by the comment period deadline identified.
8. To ensure proper receipt by EPA, identify the appropriate regional file/rulemaking identification number in the subject line on the first page of your response. It would also be helpful if you provided the name, date, and
Animal and Plant Health Inspection Service, USDA.
Extension of approval of an information collection; comment request.
In accordance with the Paperwork Reduction Act of 1995, this notice announces the Animal and Plant Health Inspection Service's intention to request an extension of approval of an information collection in support of citrus canker regulations for payments for recovery of lost production income.
We will consider all comments that we receive on or before January 23, 2004.
You may submit comments by postal mail/commercial delivery or by e-mail. If you use postal mail/commercial delivery, please send four copies of your comment (an original and three copies) to: Docket No. 03-088-1, Regulatory Analysis and Development, PPD, APHIS, Station 3C71, 4700 River Road Unit 118, Riverdale, MD 20737-1238. Please state that your comment refers to Docket No. 03-088-1. If you use e-mail, address your comment to
You may read any comments that we receive on this docket in our reading room. The reading room is located in room 1141 of the USDA South Building, 14th Street and Independence Avenue SW., Washington, DC. Normal reading room hours are 8 a.m. to 4:30 p.m., Monday through Friday, except holidays. To be sure someone is there to help you, please call (202) 690-2817 before coming.
APHIS documents published in the
For information regarding the citrus canker regulations, contact Mr. Stephen Poe, Operations Officer, Surveillance and Emergency Programs Planning and Coordination, PPQ, APHIS, 4700 River Road Unit 134, Riverdale, MD 20737-1231; (301) 734-8899. For copies of more detailed information on the information collection, contact Mrs. Celeste Sickles, APHIS' Information Collection Coordinator, at (301) 734-7477.
Citrus canker is a plant disease that affects plant and plant parts, including fresh fruit of citrus and citrus relatives (
Under regulations in 7 CFR 301.75-16, eligible owners of commercial citrus groves in Florida can receive payments to recover production income lost as a result of the removal of their commercial citrus trees to control citrus canker. These payments are intended to reduce the economic effect of our citrus canker quarantine on affected commercial citrus growers in Florida.
The regulations require applicants for payments to complete a form.
We are asking the Office of Management and Budget (OMB) to approve our use of this form for an additional 3 years.
The purpose of this notice is to solicit comments from the public (as well as affected agencies) concerning our information collection. These comments will help us:
(1) Evaluate whether the collection of information is necessary for the proper performance of the functions of the Agency, including whether the information will have practical utility;
(2) Evaluate the accuracy of our estimate of the burden of the information collection, including the validity of the methodology and assumptions used;
(3) Enhance the quality, utility, and clarity of the information to be collected; and
(4) Minimize the burden of the information collection on those who are to respond, through use, as appropriate, of automated, electronic, mechanical, and other collection technologies,
All responses to this notice will be summarized and included in the request for OMB approval. All comments will also become a matter of public record.
Animal and Plant Health Inspection Service, USDA.
Extension of approval of an information collection; comment request.
In accordance with the Paperwork Reduction Act of 1995, this notice announces the Animal and Plant Health Inspection Service's intention to request an extension of approval of an information collection in support of the regulations for the importation of pork and pork products and live swine from the Mexican States of Baja California, Baja California Sur, Chihuahua, and Sinaloa.
We will consider all comments we receive on or before January 23, 2004.
You may submit comments by postal mail/commercial delivery or by e-mail. If you use postal mail/commercial delivery, please send four copies of your comment (an original and three copies) to: Docket No. 03-103-1, Regulatory Analysis and Development, PPD, APHIS, Station 3C71, 4700 River Road Unit 118, Riverdale, MD 20737-1238. Please state that your comment refers to Docket No. 03-103-1. If you use e-mail, address your comment to
You may read any comments that we receive on this docket in our reading room. The reading room is located in room 1141 of the USDA South Building, 14th Street and Independence Avenue SW., Washington, DC. Normal reading room hours are 8 a.m. to 4:30 p.m., Monday through Friday, except holidays. To be sure someone is there to help you, please call (202) 690-2817 before coming.
APHIS documents published in the
For information on the regulations regarding the importation of pork and pork products and live swine from the Mexican States of Baja California, Baja California Sur, Chihuahua, and Sinaloa, contact Dr. Hatim Gubara, Senior Staff Veterinarian, Regionalization Evaluation Services Staff, VS, APHIS, 4700 River Road Unit 38, Riverdale MD 20737-1231; (301) 734-4356. For copies of more detailed information on the information collection, contact Mrs. Celeste Sickles, APHIS’ Information Collection Coordinator, at (301) 734-7477.
The regulations in 9 CFR part 94 allow the importation of pork and products and live swine from the Mexican States of Baja California, Baja California Sur, Chihuahua, and Sinaloa under conditions designed to ensure that the pork and pork products and live swine will not transmit CSF. This disease is not present in those States but exists in other parts of Mexico. The conditions for importation require, among other things, certification from a full-time salaried veterinary officer of the Government of Mexico that the pork or pork products or live swine originated in a CSF-free region and have not been commingled with swine or pork or pork products from CSF-affected regions.
We are asking the Office of Management and Budget (OMB) to approve our use of this information collection activity for an additional 3 years.
The purpose of this notice is to solicit comments from the public (as well as affected agencies) concerning our information collection. These comments will help us:
(1) Evaluate whether the collection of information is necessary for the proper performance of the functions of the Agency, including whether the information will have practical utility;
(2) Evaluate the accuracy of our estimate of the burden of the information collection, including the validity of the methodology and assumptions used;
(3) Enhance the quality, utility, and clarity of the information to be collected; and
(4) Minimize the burden of the information collection on those who are to respond, through use, as appropriate, of automated, electronic, mechanical, and other collection technologies,
All responses to this notice will be summarized and included in the request for OMB approval. All comments will also become a matter of public record.
Animal and Plant Health Inspection Service, USDA.
Notice of availability and request for comments.
We are advising the public that a risk analysis has been prepared by the Animal Plant Health Inspection Service (APHIS) relative to the risk of introducing classical swine fever virus in swine and swine products imported from France and Spain. This risk analysis is a supplement to a risk analysis prepared by APHIS titled “Risk Analysis for Importation of Classical Swine Fever Virus in Swine and Swine Products from the European Union—December 2000.” The supplemental risk analysis also identifies the administrative units in France and Spain that we would consider the smallest administrative units that could be considered “regions” in each of those countries. We are making this supplemental risk analysis available to the public for review and comment.
We will consider all comments we receive on or before January 23, 2004.
You may submit comments by postal mail/commercial delivery or by e-mail. If you use postal mail/commercial delivery, please send four copies of your comment (an original and three copies) to: Docket No. 98-090-6, Regulatory Analysis and Development, PPD, APHIS, Station 3C71, 4700 River Road Unit 118, Riverdale, MD 20737-1238. Please state that your comment refers to Docket No. 98-090-6. If you use e-mail, address your comment to
You may read the supplemental risk analysis and any comments that we receive on that document in our reading room. The reading room is located in room 1141 of the USDA South Building, 14th Street and Independence Avenue, SW., Washington, DC. Normal reading room hours are 8 a.m. to 4:30 p.m., Monday through Friday, except holidays. To be sure someone is there to help you, please call (202) 690-2817 before coming.
You may request a copy of the supplemental risk analysis by calling or writing to the person listed under
APHIS documents published in the
Dr. Chip Wells, Senior Staff Officer, Regionalization Evaluation Services Staff, National Center for Import and Export, VS, APHIS, 4700 River Road Unit 38, Riverdale, MD 20737-1231; (301) 734-4356.
The Animal and Plant Health Inspection Service (APHIS) of the U.S. Department of Agriculture (the Department) regulates the importation of animals and animal products to guard against the introduction of animal diseases into this country. The regulations pertaining to the importation of animals and animal products are set forth in the Code of Federal Regulations (CFR), title 9, chapter I, subchapter D (9 CFR parts 91 through 99).
On June 25, 1999, we published in the
Before developing our proposed rule, we prepared a risk analysis to estimate the likelihood of introducing classical swine fever (CSF, which we referred to in the proposed rule as hog cholera) from the region, and to determine what, if any, mitigation measures we considered necessary. We assessed the likelihood of introducing CSF through the importation of live breeding swine, swine semen, and pork and pork products. We made the risk analysis available to the public during the comment period for the proposed rule.
We solicited comments concerning our proposed rule for 60 days ending August 24, 1999. One of the comments we received expressed concerns with several aspects of our risk analysis. Based on that comment, and as recommended by the Department's Office of Risk Assessment and Cost Benefit Analysis, we revised our risk analysis and included a supplement that presented in more detail specific information about CSF outbreaks in the EU. The revised risk analysis is titled “Risk Analysis for Importation of Classical Swine Fever Virus in Swine and Swine Products from the European Union—December 2000.”
On April 7, 2003, we published in the
In our April 2003 final rule, we continued to consider all of France and Spain affected with CSF, even though outbreaks had occurred only in limited areas of those countries, because we had not yet defined the administrative units in those countries we would use to consider less than the entire country affected with CSF. Since the outbreaks, each of the affected countries took action to eradicate CSF. The last affected herds were depopulated in Spain on April 30, 2002, and in France on April 29, 2002.
Following the elimination of CSF in domestic swine in France and Spain, we prepared a supplemental risk analysis to examine the risk of introducing CSF from the importation of swine and swine products from those countries. For the supplemental risk analysis, we used the applicable information from the risk analyses we conducted for the June 1999 proposed rule and the April 2003 final rule, as well as information made available following the outbreak and elimination of CSF in those countries.
We are giving notice that the supplemental risk analysis is available for public review and are requesting comments on the supplemental risk analysis for 60 days. The supplemental risk analysis addresses the current CSF situation in France and Spain and identifies the administrative units we would use to regionalize France and Spain in the event of future disease outbreaks in those counties. The supplemental risk analysis and any comments received will be the basis for determining whether to publish a final rule to: (1) Include France and Spain as part of the EU region recognized in our April 2003 final rule as one in which CSF is not known to exist, and from which breeding swine, swine semen, and pork and pork products may be imported into the United States under certain conditions in the absence of restrictions associated with other
The supplemental risk analysis is available on the Internet at
7 U.S.C. 450, 1622, 7701-7772, and 8301-8317; 21 U.S.C. 136 and 136a; 31 U.S.C. 9701; 42 U.S.C. 4331 and 4332; 7 CFR 2.22, 2.80, and 371.4.
Rural Housing Service (RHS), Rural Business-Cooperative Service (RBS), Rural Utilities Service (RUS), and Farm Service Agency (FSA), USDA.
Proposed collection; comments requested.
In accordance with the Paperwork Reduction Act of 1995, this notice announces the Agencies intention to request an extension for a currently approved information collection in support of the Real Estate Title Clearance and Loan Closing regulation.
Comments on this notice must be received by January 23, 2004, to be assured of consideration.
Gale Richardson, Loan Specialist, Single Family Housing Direct Loan Division, Rural Housing Service, U.S. Department of Agriculture, Mail STOP 0783, 1400 Independence Ave. SW., Washington, DC 20250-0783, Telephone: (202) 720-1459. (This is not a toll free number.)
The Agencies will be collecting information to assure that those participating in this program remain eligible to proceed with loan closing and to ensure that loans made with Federal funds are legally secured. The respondents are individuals or households, farms, businesses, and nonprofit institutions. The information required is used by USDA personnel to verify that the required lien position has been obtained. The information is collected at the field office responsible for processing a loan application through loan closing. The information is also used to insure the program is administered in a manner consistent with legislative and administrative requirements. If not collected, the Agency would be unable to determine if the loan is adequately and legally secured.
Copies of this information collection can be obtained from Renita Bolden, Regulations and Paperwork Management Branch, at (202) 692-0035.
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 will have practical utility; (b) The accuracy of the Agency's estimate of the burden of the proposed collection of information including the validity of the methodology and assumptions used; (c) Ways to enhance the quality, utility and clarity of the information to be collected; and (d) Ways to minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques, or other forms of information technology. Comments may be sent to Renita Bolden, Regulation and Paperwork Management Branch, U.S. Department of Agriculture, Rural Development, Stop 0742, 1400 Independence Ave., SW., Washington, DC 20250-0742. All responses to this notice will be summarized and included in the request for OMB approval. All comments will also become a matter of public record.
Forest Service, USDA.
Notice of meeting.
The Glenn/Colusa County Resource Advisory Committee (RAC) will meet in Willows, California. Agenda items to be covered include: (1) Introduction, (2) Approval of Minutes, (3) Public Comment, (4) Brochure for Glenn/Colusa, (5) Ski-High Project/Possible Action, (6) How to Solicit Projects, (7) Bear Wallow Trail, (8) Status of Members, (9) General Discussion, (10) Next Agenda.
The meeting will be held on November 24, 2003, from 1:30 p.m. and end at approximately 4:30 p.m.
The meeting will be held at the Mendocino National Forest Supervisor's Office, 825 N. Humboldt Ave., Willows, CA 95988. Individuals wishing to speak or propose agenda items must send their names and proposals to Jim Giachino, DFO, 825 N. Humboldt Ave., Willows, CA 95988.
Bobbin Gaddini, Committee Coordinator, USDA, Mendocino National Forest, Grindstone Ranger District, P.O. Box 164, Elk Creek, CA 95939. (530) 968-5329; E-mail
The meeting is open to the public. Committee discussion is limited to Forest Service staff and Committee members. However, persons who wish to bring matters to the attention of the Committee may file written statements with the Committee staff before or after the meeting. Public input sessions will be provided and individuals who made written requests by November 20, 2003 will have the opportunity to address the committee at those sessions.
Forest Service, USDA.
Notice of meeting.
The Tehama County Resource Advisory Committee (RAC) will meet in Red Bluff, California. Agenda items to be covered include: (1) Introductions, (2) Approval of Minutes, (3) Public Comment, (4) Chairman Report/Maintenance, (5) How to Leverage Funds, (6) Report from Members Meeting, (7) How to Get Stewardship Projects, (8) General Discussion, (9) Next Agenda.
The meeting will be held on December 11, 2003 from 9 a.m. and end at approximately 12 p.m.
The meeting will be held at the Lincoln Street School, Conference Room A, 1135 Lincoln Street, Red Bluff, CA. Individuals wishing to speak or propose agenda items must send their names and proposals to Jim Giachino, DFO, 825 N. Humboldt Ave., Willows, CA 95988.
Bobbin Gaddini, Committee Coordinator, USDA, Mendocino National Forest, Grindstone Ranger District, P.O. Box 164, Elk Creek, CA 95939. (530) 968-5329; E-mail
The meeting is open to the public. Committee discussion is limited to Forest Service staff and Committee members. However, persons who wish to bring matters to the attention of the Committee may file written statements with the Committee staff before or after the meeting. Public input sessions will be provided and individuals who made written requests by December 9, 2003 will have the opportunity to address the committee at those sessions.
An application has been submitted to the Foreign-Trade Zones Board (the Board) by the Indiana Port Commission, grantee of Foreign-Trade Zone 170, requesting authority to expand its zone in the Clark County, Indiana, area, within the Louisville 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 10, 2003.
FTZ 170 was approved on December 27, 1990 (Board Order 495, 56 FR 673, 1/8/91), and expanded on July 23, 1997 (Board Order 907, 62 FR 40796, 7/30/97). The zone currently consists of three sites in Clark County:
The applicant is now requesting authority to expand Site 1 to include an additional 958 acres. The change would cover the entire 993-acre Clark Maritime Center. The port is an active facility with companies involved in warehousing and distribution of steel, plastics, chemicals, metals, as well as general merchandise. The majority of the site is owned by the Indiana Port Commission. No specific manufacturing requests are being made at this time. Such requests would be made to the Board on a case-by-case basis.
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 23, 2004. Rebuttal comments in response to material submitted during the foregoing period may be submitted during the subsequent 15-day period (to February 9, 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 U.S. Department of Commerce Export Assistance Center, 601 W. Broadway,
DOC has submitted to the Office for Management and Budget (OMB) for clearance the following proposal for collection of information under the provisions of the Paperwork Reduction Act of 1995, Public Law 104-13.
The purpose of this questionnaire is to assess the effect the SABIT Program has had on its alumni, in order to make improvements to the program and report results.
Copies of the above information collection proposal can be obtained by calling or writing Diana Hynek, Departmental Paperwork Clearance Officer, Department of Commerce, Room 6625, 14th & Constitution Avenue, NW., Washington, DC 20230; Phone number: (202) 482-0266; E-mail:
Written comments and recommendations for the proposed information collection should be sent to David Rostker, OMB Desk Officer, Room 10202, New Executive Office Building, Washington, DC 20503 within 30 days of the publication of this notice in the
Import Administration, International Trade Administration, Department of Commerce.
Notice of Amended Final Determination of Sales at Less Than Fair Value.
November 24, 2003.
Helen Kramer or Ann Barnett-Dahl, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue NW, Washington, DC 20230; telephone: (202) 482-0405, or 482-3833, respectively.
For purposes of this investigation, the products covered are certain malleable iron pipe fittings, cast, other than grooved fittings, from the People's Republic of China. The merchandise is classified under item numbers 7307.19.90.30, 7307.19.90.60 and 7307.19.90.80 of the Harmonized Tariff Schedule (HTSUS). Excluded from the scope of this investigation are metal compression couplings, which are imported under HTSUS number 7307.19.90.80. A metal compression coupling consists of a coupling body, two gaskets, and two compression nuts. These products range in diameter from 1/2 inch to 2 inches and are carried only in galvanized finish. Although HTSUS subheadings are provided for convenience and Bureau of Customs and Border Protection (CBP) purposes, the Department's written description of the scope of this proceeding is dispositive.
On October 20, 2003, the Department of Commerce (“the Department”) determined that certain malleable iron pipe fittings from the People's Republic of China (“MPF”) are being, or are likely to be, sold in the United States at less than fair value, as provided in section 735(a) of the Act.
On October 27, 2003, we received ministerial error allegations, timely filed pursuant to 19 CFR 351.224(c)(2), from mandatory respondents Jinan Meide Casting Co., Ltd. (“JMC”) and Beijing Sai Lin Ke Hardware Co., Ltd. (“SLK”). On October 28, 2003, the petitioners also submitted a timely letter to the Department alleging ministerial errors . On October 30, 2003, the petitioners submitted a response to SLK's comments.
Section 351.224(f) of the Department's regulations defines a ministerial error as an error in addition, subtraction, or other arithmetic function, clerical error resulting from inaccurate copying, duplication, or the like, and any other similar type of unintentional error which the Secretary considers ministerial.
JMC alleges that the Department utilized the incorrect values for the adhesive tape and steel shavings factors of production. JMC notes that the Department's Factors Valuation Memorandum calculates a surrogate value of $4.9585 per kg for adhesive tape, excluding aberrantly high-priced imports from Sweden, and a surrogate value of $0.1300 per kg for steel shavings, excluding aberrantly high-priced imports from the United Kingdom However, JMC notes that the Department used values of $4.9587 and $0.1329, respectively, in the calculation of the final margin and that the Department apparently failed to exclude the aberrant imports from the Excel spreadsheets. JMC requests that the Department correct these clerical errors.
The petitioners did not comment on this issue.
We agree with JMC that we made clerical errors with respect to the surrogate values of adhesive tape and steel shavings as a result of inaccurate copying. Accordingly, we have corrected the Excel worksheets for adhesive tape and steel shavings used to
SLK argues that the Department incorrectly recalculated indirect labor hours in the galvanizing workshop of one of its suppliers by allocating them to the total weight of galvanized fittings produced in the galvanizing workshop. SLK states that both black and galvanized fittings are cleaned in the galvanizing workshop, and argues that the indirect labor hours should be divided by the weight of both types of fittings.
The petitioners argue that the selection of the basis over which to allocate indirect labor is not ministerial, but instead methodological, and urge the Department to deny SLK's request to revise the calculation.
We agree with SLK that the omission of the weight of the black fittings cleaned in the galvanizing workshop was a ministerial error. The error resulted from SLK's formatting of a worksheet, in which only the galvanized fittings are shown under the heading “Galvanizing and Cleaning.” As it was not an intentional choice of methodology, but resulted from an error in copying, we have made the requested correction. For a more detailed discussion, see the memorandum to Richard O. Weible from Helen M. Kramer entitled “Allegations of Ministerial Errors; Final Determination in the Antidumping Duty Investigation of Certain Malleable Iron Pipe Fittings from the People's Republic of China (A-570-881),” dated November xx, 2003 (“Ministerial Errors Memorandum”).
SLK claims that the Department applied a freight factor to recycled scrap in the final determination, contrary to its stated position, because it applied the surrogate value for freight in its facts available steel scrap calculation. SLK argues that the Department applied a factor of 56.83% for recycled scrap as facts available, and applied the surrogate value for freight equally to scrap and recycled scrap.
The petitioners rebut SLK, arguing that the alleged error involves a methodological decision regarding the application of facts available, and is not a ministerial error. The petitioners also argue that SLK's claim is not factually correct, because the Department applied the 56.83 percent facts available factor to
We agree with the petitioners that the Department's methodology of applying facts available is not a ministerial error within the meaning of 19 CFR 351.224(f) because the Department's decision to apply a surrogate freight value was intentional. We also agree with the petitioners that SLK's claim is not factually correct. We used a combination of petitioners' and two respondents' data to calculate the percentage by which purchased steel scrap and pig iron inputs should be increased to account for all metallic inputs. This calculation did not include freight. Inasmuch as we are applying facts available to purchased scrap steel which incurs freight expenses, and we did not use the respondents' data on recycled scrap, we do not agree with SLK that we applied surrogate freight to recycled scrap contrary to our stated intention.
The petitioners argue that the Department made ministerial errors in the calculation of SLK's net U.S. price by not deducting the variable “OTHDIS1” added after the preliminary determination for an additional discount, and the variable “INLFPWU,” representing the cost of trucking the subject merchandise from the Chicago rail station to LDR's warehouse for certain sales.
SLK did not comment on this issue.
We agree with the petitioners that these were ministerial errors. The omission of these variables from the adjustments to U.S. price was not a methodological decision, but rather errors in copying. For this amended final determination, we have therefore recalculated net U.S. price by deducting these variables from the gross price. See Ministerial Errors Memorandum at 4.
In accordance with 19 CFR 351.224(e), we are amending the final determination of the antidumping duty investigation of MPF from the PRC to correct these ministerial errors. The revised final weighted-average dumping margins are as follows:
In accordance with section 735(c)(1)(B)(ii) of the Act, we are directing the Bureau of Customs and Border Protection (CBP) to continue to suspend liquidation of all imports of MPF from the PRC. CBP shall require a cash deposit or the posting of a bond equal to the weighted-average amount by which the normal value exceeds the export price, as indicated in the chart above. These suspension of liquidation instructions will remain in effect until further notice.
In accordance with section 735(d) of the Tariff Act, we have notified the International Trade Commission of our amended final determination.This determination is issued and published in accordance with sections 735(d), 735(e) and 777(i)(1) of the Act.
Import Administration, International Trade Administration, Department of Commerce.
Notice of request for information and extension of time.
November 24, 2003.
Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW., Washington, DC 20230. Inquiries regarding any information on this notice may be addressed by calling Import Administration at 202-482-3902, via fax at 202-482-9089, and via email to the following address:
On October 31, 2003, the Department of Commerce (“Department”) received an antidumping duty petition (“Petition”) filed by the American Furniture Manufacturers Committee for Legal Trade and its individual members (“the Committee”) and the Cabinet Makers, Millmen, and Industrial Carpenters Local 721 (“Local 721”) (“collectively, Petitioners”). The Petitioners are domestic producers of wooden bedroom furniture.
The following language describes the imported merchandise from the People's Republic of China (“PRC”) that Petitioners intend to be included in the scope of the investigation:
The merchandise subject to this investigation is wooden bedroom furniture (
The subject merchandise includes (1) wooden beds such as loft beds, bunk beds, and other beds; (2) wooden headboards for beds (whether stand-alone or attached to side rails), wooden footboards for beds, wooden side rails for beds, and wooden canopies for beds; (3) night tables, night stands, dressers, commodes, bureaus, mule chests, gentlemen's chests, bachelor's chests, lingerie chests, wardrobes, vanities, chessers, chifforobes, and wardrobe-type cabinets; (4) dressers with framed glass mirrors that are attached to, incorporated in, sit on, or hang over the dresser; (5) chests-on-chests
The scope of the petition excludes (1) seats, chairs, benches, couches, sofas, sofa beds, stools, and other seating furniture; (2) mattresses, mattress supports (including box springs), infant cribs, water beds, and futon frames; (3) office furniture, such as desks, stand-up desks, computer cabinets, filing cabinets, credenzas, and bookcases; (4) dining room or kitchen furniture such as dining tables, chairs, servers, sideboards, buffets, corner cabinets, china cabinets, and china hutches; (5) other non-bedroom furniture, such as television cabinets, cocktails tables, end tables, occasional tables, wall systems, book cases, and entertainment systems; (6) bedroom furniture made primarily of wicker, cane, osier, bamboo or rattan; (7) side rails for beds made of metal if sold separately from the headboard and footboard; and (8) bedroom furniture in which bentwood parts predominate.
Imports of subject merchandise are classified under statistical category 9403.50.9040 of the Harmonized Tariff Schedule of the United States (“HTSUS”) as “wooden * * * beds” and under statistical category 9403.50.9080 of the HTSUS as “ other * * * wooden furniture of a kind used in the bedroom.” In addition, wooden headboards for beds, wooden footboards for beds, wooden side rails for beds, and wooden canopies for beds may also be entered under statistical category 9403.50.9040 of the HTSUS as “parts of wood” and framed glass mirrors may also be entered under statistical category 7009.92.5000 of the HTSUS as “glass mirrors * * * framed.” This investigation covers all wooden bedroom furniture meeting the above description, regardless of tariff classification. Although the HTSUS subheadings are provided for convenience and customs purposes, our written description of the scope of this proceeding is dispositive.
Pursuant to Section 771(10) of the Tariff Act of 1930, as amended (“the
Section 732(b)(1) of the Act requires that a petition be filed on behalf of the domestic industry. Section 732(c)(4)(A) of the Act provides that the Department's industry support determination be based on whether a minimum percentage of the relevant industry supports the petition. A petition meets this requirement if the domestic producers or workers who support the petition account for: (i) At least 25 percent of the total production of the domestic like product; and (ii) more than 50 percent of the production of the domestic like product produced by that portion of the industry expressing support for, or opposition to, the petition. Moreover, section 732(c)(4)(D) of the Act provides that, if the petition does not establish support of domestic producers or workers accounting for more than 50 percent of the total production of the domestic like product, the Department shall: (i) Poll the industry or rely on other information in order to determine if there is support for the petition, as required by subparagraph (A), or (ii) determine industry support using a statistically valid sampling method to poll the industry.
Because the Petition has not established that domestic producers or workers accounting for more than 50 percent of the total production of the domestic like product support the petition, we must “poll or otherwise determine industry support for the petition by the industry.”
In accordance with section 732(c)(4)(D) of the Act and in order to determine whether the petition establishes support of domestic producers or workers accounting for more than 50 percent of the total production of the domestic like product, we are hereby requesting that all domestic producer/manufacturers of the wooden bedroom furniture submit to the Department a response to the questions in Appendix I of this notice.
Given the very short period in which we must determine industry support, the number of potential responses, and the fact that industry support may not be re-examined after initiation, we are waiving the filing requirements set forth in 19 CFR 351.303 for certain parties submitting information on industry support. This waiver of the filing requirements will not apply to: 1) the submission of documents that are not in response to the information requested in this notice or 2) parties that are familiar with the conduct of antidumping and countervailing proceedings through prior involvement in such proceedings (
This limited waiver is applicable only until November 26, 2003, the deadline for submitting the information requested in this notice. This waiver is intended to expedite the receipt of information that is essential to our analysis of industry support by providing information on the production of the domestic like product by petitioning and non-petitioning companies. By avoiding delays in the receipt of such information, we will have more time to analyze whether the statutory requirements concerning industry support for the above-referenced petitions have been met.
All parties submitting any information must include the following statement in their response: “I, (name and title), currently employed by (person), certify that (1) I have read the attached submission, and (2) based on the information made available to me by (person), I have no reason to believe that this submission contains any material misrepresentation or omission of fact.” All information received by the Department will be treated as business proprietary information as outlined in our regulations (19 CFR 351.304-306), unless otherwise noted. Please note that all company names will be treated as public information. In addition, note that all business proprietary documents received by the Department in response to this notice will be served to those individuals with access to business proprietary information under the Administrative Protective Order (“APO”). All public documents may be made available to those parties on the public service list. The APO service lists and the public service lists are available on Import Administration's Web site:
Information submitted to the Department in response to this notice should be faxed to the following number: 202-482-9089. Furthermore, all such information will be placed on the official record of the proceeding. Responses to this notice are due no later than November 26, 2003. Responses after this date may not be reviewed by the Department and therefore, not included in the analysis.
Section 732(c)(1)(A)(ii) of the Act provides that within 20 days of the filing of an antidumping duty petition, the Department will determine,
We will require additional information from the petitioners and the domestic producers of wooden bedroom furniture in order to make our determination regarding industry support and/or time to analyze the petitioners' responses to our requests for information.
Because the Department has extended the deadline of the initiation determination, the Department will contact the Commission and will make this extension notice available to the Commission.
Pursuant to section 6(c) of the Educational, Scientific and Cultural Materials Importation Act of 1966 (Pub. L. 89-651; 80 Stat. 897; 15 CFR part 301), we invite comments on the question of whether an instrument of equivalent scientific value, for the purposes for which the instrument shown below is intended to be used, is being manufactured in the United States.
Comments must comply with 15 CFR 301.5(a)(3) and (4) of the regulations and be filed within 20 days with the Statutory Import Programs Staff, U.S. Department of Commerce, Washington, DC 20230. Applications may be examined between 8:30 a.m. and 5 p.m. in Suite 4100W, U.S. Department of Commerce, Franklin Court Building, 1099 14th Street, NW., Washington, DC.
(1) Phytoflagellates of the Salton Sea.
(2) Structure and function of mitochondria.
(3) Analysis of contractile protein function through ultrastructural analysis.
(4) Environmental adaptions in fish.
(5) Stress-induced coral mortality.
(6) Visualization of recombinant intermediates by Cryo-TEM.
Minor research uses by students include:
(1) New thermoacidophilic organisms from hot springs.
(2) Signal transduction of the stress response in the heart.
(3) Molecular genetic analysis of neuromuscular system function in
(4) Physiology of fish gill and their response to parasatism;
(5) Analysis and subcellular localization of putative sphingolipid signaling molecules in skeletal and cardiac muscle.
Import Administration, International Trade Administration, Department of Commerce.
Notice of preliminary results of countervailing duty expedited reviews.
The Department of Commerce (the Department) is conducting expedited reviews of the countervailing duty order on certain softwood lumber products from Canada for the period April 1, 2000 through March 31, 2001. This notice includes the preliminary results for 16 companies. For all 16 companies we applied the Group 2 methodology.
The Department is also rescinding expedited reviews of five companies.
November 24, 2003.
Stephanie Moore or Cindy Lai Robinson, Office of AD/CVD Enforcement VI, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW, Washington, DC 20230; telephone: (202) 482-3692 or (202) 482-3797.
On May 22, 2002, the Department published in the
As explained in the
With respect to the Group 1 companies, on August 14, 2002, the Department issued a notice of preliminary results covering 18 companies.
In addition, on May 8, 2003, the Department published another notice of preliminary results for 28 Group 1 companies (14 in Round 1 and 14 in Round 2).
This notice includes the preliminary results for 16 Group 2 companies (13 in Round 1 and three in Round 2). We are not including in this notice any of the following 15 Group 2 companies that requested an analysis of whether they benefitted from subsidies bestowed on their inputs. They are: Apollo Forest Products Ltd., Aspen Planers Ltd., Downie Timber Ltd., Dunkley Lumber Ltd., Gorman Bros. Lumber Ltd., Liskeard Lumber Ltd., Mill & Timber Products Ltd., North Enderby Timber Ltd., Riverside Forest Products Ltd., Selkirk Specialty Wood Ltd., Slocan Forest Products Ltd., Tembec Inc., Tolko Industries Ltd., and Uphill Wood Supply Inc. (the above companies are in Round 1), and Bridgeside Hilga Forest Industries Ltd. (which is in Round 2).
Furthermore, this preliminary results do not include the following three Group 2 companies: Jackpine Engineered Wood Products Inc. and Jackpine Forest Products Ltd. (in Round 1), and 9027-7971 Quebec Inc. (in Round 2), because the reviews of these three companies have been rescinded in an earlier notice (
We received various comments from interested parties subsequent to the Department's
We did not receive any responses from South East Forest Products Ltd. (South East Forest), a respondent in Round 2. We contacted a South East Forest company official who confirmed that the company will no longer participate in these expedited reviews.
On April 14, 2003, Teal Cedar Products Ltd., another respondent in Round 2, withdrew its request for review. West Fraser Mills Ltd., a respondent in Round 1, also withdrew its request for an expedited review on June 12, 2003. Therefore, we are rescinding the expedited review for Teal Cedar Products Ltd. and West Fraser Mills Ltd.
In addition, Lukwa Mills Ltd. (Lukwa), another Round 2 company, did not respond to our supplemental questionnaire. We contacted the general manager of the company who told us that Lukwa is shutting down and there is no staff to work on the response. Because Lukwa did not provide the necessary information, we are also unable to proceed with an expedited review of this company. Therefore, we are rescinding the expedited review for Lukwa.
Finally, the Department is also rescinding a Group 1 company, Kootenay Innovate Wood Inc. (Kootenay), which initially indicated a possible cross-ownership with a Group 2 company, Kalesnikoff Lumber Co. Ltd. (Kalesnikoff). The Department did not include Kootenay in the
However, during the Group 2 expedited review, Kalesnikoff stated that it is not cross-owned with Kootenay. After further analysis we have determined that cross-ownership between Kootenay and Kalesnikoff does not exist. Additionally, Kootenay stated in its application and later confirmed in a supplemental questionnaire response that it did not have any sales of subject merchandise to the United States during the POR. In accordance with the Department's practice, companies that did not ship subject merchandise during the period covered by the investigation or administrative review are not eligible to participate in that segment of the proceeding. See,
The following companies reported that they are cross-owned with other companies that produce and/or manufacture subject merchandise: Canadian Forest Products Ltd. (Canfor) reported that it is cross-owned with Lakeland Mills Ltd. (Lakeland), and the Pas Lumber Company Ltd. (The Pas); Greenwood Forest Products Ltd. (Greenwood) reported that it is cross-owned with GFP Enterprise Ltd. (GFP); Commonwealth Plywood Co. Ltd. (Commonwealth) reported that it is cross-owned with three companies that produce and/or manufacture subject merchandise: Les Entreprises Atlas (1985) Inc., Bois Clo-Val Inc., and the W.C. Edwards Company Ltd.; Shawood Lumber Inc. (Shawood) and Lukwa reported that the two companies jointly cross-own a logging company; R. Fryer Forest Products Ltd. (Fryer) reported
Regarding Canfor's reporting of cross-ownership with Lakeland and The Pas. Canfor
Specifically, under 19 CFR 351.525(b)(6)(vi), cross-ownership exists between two or more corporations where one corporation can use or direct the individual assets of the other corporation(s) in essentially the same ways it can use its own assets. Normally, this standard will be met where there is a majority voting ownership interest between two corporations or through common ownership of two (or more) corporations (
Greenwood reported that it was affiliated and cross-owned with GFP in its March 28, 2003 questionnaire response. It stated that the two companies shared a senior management position, but that each company had its own asset base, which is not shared. In its April 29, 2003 and May 16, 2003 supplemental questionnaire responses, Greenwood confirmed that there was no controlling interest between the two companies. Therefore, we preliminarily determine that Greenwood and GFP are not crossed-owned under 19 CFR 351.525(b)(6)(vi).
Kootenay reported that it was affiliated and shared cross-ownership with Kalesnikoff in its February 18, 2003 questionnaire response. Kalesnikoff, however, reported that it was not crossed-owned with any other company during the POR in its March 20, 2003 questionnaire response. We sent supplemental questionnaires to both companies with regard to the cross-ownership between the two companies. Both Kootenay and Kalesnikoff responded that, while the owners of the two companies are affiliated, neither company held any shares of the other company, nor did they share members of a board of directors or management staff.
Selkirk reported that it is cross-owned with another lumber producer. That producer requested the Department to calculate a separate CVD rate for its company using the arm's length methodology. On this basis, we determine that it is necessary to postpone the calculation of an individual, separate rate for Selkirk until the analysis has been completed for Selkirk's cross-owned company. Accordingly, we will combine the results of Selkirk and its cross-owned company in the results calculated subsequent to these preliminary results.
Finally, for these preliminary results, in those instances in which we determined that cross-ownership existed between companies during the POR, such as in the case of Commonwealth, we calculated the consolidated benefit for cross-owned companies in accordance with 19 CFR 351.525(b)(6). Specifically, for cross-owned companies that are all in Group 2 and had harvesting operations during the POR, we calculated the consolidated benefit using the Group 2 methodology as described below in the “Methodology” section. We then divided the total consolidated benefit by the entity's consolidated sales (scope and non-scope softwood lumber products, net of resales, and softwood lumber by-products) to obtain the consolidated net subsidy rate.
Shawood indicated that it did not harvest timber during the POR. Instead, it purchased its log inputs from a joint-owned logging company it created with Lukwa. Shawood and Lukwa each own fifty percent of the logging company. As stated above, under 19 CFR 351.525(b)(6)(iv), the cross-ownership standard is normally met where there is a majority voting ownership interest between two corporations or through common ownership of two (or more) corporations. Because Shawood does not have a majority interest in the logging company, we preliminary find that the two companies are not cross-owned within the meaning of 19 CFR 351.525(b)(6)(iv). Accordingly, to calculate the countervailable benefit, we multiplied the volume of the logs and lumber that Shawood purchased by the amount of the provincial unit benefit calculated in the underlying investigation.
With respect to Fryer, which is cross-owned with a holding company, and Cambie, whose cross-owned company is an inactive shell company, we applied the Group 2 methodology to the companies themselves, but not to their cross-owned companies.
This notice includes the preliminary results of review for the following 13 Group 2, Round 1 companies:
These preliminary results also include the preliminary results of review for the following three Group 2, Round 2 companies:
In addition, these preliminary results include the recision for one company in Group 2, Round 1, three companies in Group 2, Round 2, and one company in Group 1, Round 1.
The products covered by this order are softwood lumber, flooring and siding (softwood lumber products). Softwood lumber products include all products classified under headings 4407.1000, 4409.1010, 4409.1090, and 4409.1020, respectively, of the Harmonized Tariff Schedule of the United States (HTSUS), and any softwood lumber, flooring and siding described below. These softwood lumber products include:
(1) Coniferous wood, sawn or chipped lengthwise, sliced or peeled, whether or not planed, sanded or finger-jointed, of a thickness exceeding six millimeters;
(2) Coniferous wood siding (including strips and friezes for parquet flooring, not assembled) continuously shaped (tongued, grooved, rabbeted, chamfered, v-jointed, beaded, molded, rounded or the like) along any of its edges or faces, whether or not planed, sanded or finger-jointed;
(3) Other coniferous wood (including strips and friezes for parquet flooring, not assembled) continuously shaped (tongued, grooved, rabbeted, chamfered, v-jointed, beaded, molded, rounded or the like) along any of its edges or faces (other than wood moldings and wood dowel rods) whether or not planed, sanded or finger-jointed; and
(4) Coniferous wood flooring (including strips and friezes for parquet flooring, not assembled) continuously shaped (tongued, grooved, rabbeted, chamfered, v-jointed, beaded, molded, rounded or the like) along any of its edges or faces, whether or not planed, sanded or finger-jointed.
Although the HTSUS subheadings are provided for convenience and customs purposes, the written description of the merchandise subject to this order is dispositive.
As specifically stated in the Issues and Decision Memorandum accompanying the
The following softwood lumber products are excluded from the scope of this order provided they meet the specified requirements detailed below:
(1)
(2)
(3)
(4)
(5)
(6)
A. The imported home package or kit constitutes a full package of the number of wooden pieces specified in the plan, design or blueprint necessary to produce a home of at least 700 square feet produced to a specified plan, design or blueprint;
B. The package or kit must contain all necessary internal and external doors and windows, nails, screws, glue, sub floor, sheathing, beams, posts, connectors, and if included in the purchase contract, decking, trim, drywall and roof shingles specified in the plan, design or blueprint.
C. Prior to importation, the package or kit must be sold to a retailer of complete home packages or kits pursuant to a valid purchase contract referencing the particular home design plan or blueprint, and signed by a customer not affiliated with the importer;
D. Softwood lumber products entered as part of a single family home package or kit, whether in a single entry or multiple entries on multiple days, will be used solely for the construction of the single family home specified by the home design matching the entry.
E. For each entry, the following documentation must be retained by the importer and made available to the CBP upon request:
i. A copy of the appropriate home design, plan, or blueprint matching the entry;
ii. A purchase contract from a retailer of home kits or packages signed by a customer not affiliated with the importer;
iii. A listing of inventory of all parts of the package or kit being entered that conforms to the home design package being entered;
iv. In the case of multiple shipments on the same contract, all items listed in E(iii) which are included in the present shipment shall be identified as well.
Lumber products that the CBP may classify as stringers, radius cut box-spring-frame components, and fence pickets, not conforming to the above requirements, as well as truss components, pallet components, and door and window frame parts, are
Finally, as clarified throughout the course of the investigation, the following products, previously identified as Group A, remain outside the scope of this order. They are:
1. Trusses and truss kits, properly classified under HTSUS 4418.90;
2. I-joist beams;
3. Assembled box spring frames;
4. Pallets and pallet kits, properly classified under HTSUS 4415.20;
5. Garage doors;
6. Edge-glued wood, properly classified under HTSUS item 4421.90.98.40;
7. Properly classified complete door frames;
8. Properly classified complete window frames;
9. Properly classified furniture.
In addition, this scope language has been further clarified to now specify that all softwood lumber products entered from Canada claiming non-subject status based on U.S. country of origin will be treated as non-subject U.S.-origin merchandise under the countervailing duty order, provided that these softwood lumber products meet the following condition: Upon entry, the importer, exporter, Canadian processor and/or original U.S. producer establish to CBP's satisfaction that the softwood lumber entered and documented as U.S.-origin softwood lumber was first produced in the United States as a lumber product satisfying the physical parameters of the softwood lumber scope.
These preliminary results include companies that source less than a majority of their wood (less than 50 percent of their inputs) from the United States, the Maritime Provinces, Canadian private lands, and/or Canadian companies excluded from the order, and have acquired Crown timber through their own tenure contracts. We have included in our subsidy calculations only harvested softwood sawlogs processed by the firm's sawmills. We calculated company-specific rates as follows: To obtain the company-specific stumpage benefit for logs harvested under a company's own tenure, we first calculated, on a species-specific basis, an average unit benefit from “Crown land harvesting” by dividing the stumpage fees each company paid by the total quantity harvested from Crown land to obtain the stumpage price. The resulting unit stumpage price was adjusted by the company-specific unit tenure costs to derive an adjusted stumpage price for each species.
We then divided the combined stumpage benefit resulting from harvesting under a company's own tenure and from purchases of logs and lumber through other subsidized sources by the appropriate value of the company's sales (scope and non-scope softwood lumber products, net of resales, and softwood lumber by-products) to determine the company's estimated subsidy rate from stumpage and then added any benefit from other programs to obtain the net subsidy rate for the company.
As indicated in the
In the underlying investigation, the Department determined that the province of British Columbia provided countervailable benefits under the Forest Renewal program and the Job Protection program, while the province of Quebec provided countervailable benefits under the Private Forest Development Program (PFDP), loans issued by Investment Quebec, lending under Article 28 of the Society for the Industrial Development of Quebec (SDI), and loans issues by the Society for the Recuperation and Development of Quebec Forests (Rexfor). Based upon our decision in the underlying investigation, the Department requested information from companies regarding the use of these programs.
Kalesnikoff was the only one that reported using one of such program, the Forest Renewal program. However, Kalesnikoff reported that it did not receive any grants or loans under this program during the POR; rather it acted as a delivery agent for silviculture and resource inventory activities. Kalesnikoff was reimbursed for non-profit activities on behalf of the Forest Renewal Program for the administration and overhead costs incurred in delivering this program to the Province. On this basis, we preliminarily find that Kalesnikoff did not receive countervailable benefits under this program. No other company reported using any of the British Columbia or Quebec programs during the POR.
Cambie Cedar Products Ltd. (Cambie) asserts that there are several kinds of tenure arrangements in British Columbia which are considered both short-term agreements and long-term agreements. Cambie argues that Timber Sale Licenses cannot be described as
Cambie also argues that a distinction should be made between companies that had harvesting contracts during the POR, and those that actually harvested crown timber pursuant to harvesting rights that existed during the POR. In the instant case, Cambie reported that it obtained a one year Timber Sale License with respect to certain crown timber in British Columbia during the POR. However, Cambie also reported that it did not harvest any Crown timber during the POR and provided certifications from the province of British Columbia to support this claim. Therefore, Cambie concludes that its company should be classified under Group 1(b), “companies that source less than a majority of their wood from the United States, Maritime Provinces, Canadian private lands, and/or Canadian companies excluded from the order and have not acquired Crown timber through their own tenure contracts during the POR.” Thus, Cambie argues that the actual harvesting of Crown timber, rather than the existence of harvesting rights should govern whether a company is categorized within Group 1 or Group 2. Based on these arguments, Cambie contends that it should be considered a Group 1(b) company or alternatively, classified within Group 2. Cambie argues that if the Department determines that Cambie should be classified as a Group 2 company, it should be considered and analyzed first among that group because its data is not very complex.
Petitioners contest Cambie's request that companies with Section 20 Timber Sale Licenses should be reviewed using the Group 1 methodology for several reasons. According to petitioners, Section 20 sales are far below market value as recognized by the Department in the
Record evidence indicates that Cambie did not harvest Crown timber during the POR. Therefore, questions surrounding how the Department should calculate benefits stemming from Crown harvest operations are moot. Accordingly, since Cambie has indicated that it has no countervailable log harvests, we derived the benefit attributable to Cambie's purchases of countervailable log and lumber inputs using the approach, effectively the Group I methodology, described in the “Methodology” section of this notice.
Canfor argues that harvested Crown logs that do not enter Canfor's mill should not be included in the calculation. Additionally, Canfor states that the cash deposit rate should reflect the actual subsidy benefit it received on the logs it harvested for its lumber production.
According to petitioners, Canfor has suggested changes to the investigation methodology and the exclusion methodology. Petitioners assert that Canfor's contention that a stumpage benefit should be calculated only on the volume of crown logs that were manufactured into lumber is not consistent with the statute. Petitioners argue that a benefit has been conferred when a company pays less for goods than it would have paid absent the government subsidy program. Thus, petitioners assert that Canfor receives a countervailable subsidy benefit when it harvests timber at below-market prices.
With respect to harvested Crown logs that do not enter a lumber producer's mill, we agree with Canfor. We note that to do otherwise would be inconsistent with our approach in the underlying investigation.
Canfor argues that the Department should calculate a benefit for countervailable log and lumber purchases using a species/regional specific benefit rate (as opposed to the single province specific unit benefit rate used in our prior expedited review notices—
According to Canfor, companies can easily identify and quantify the volumes of logs and lumber purchased by source, province, geographic area in British Columbia, and species purchased, because they maintain the records for this information. Thus, Canfor argues that the Department should apply its suggested methodology for purchased logs and lumber and calculate the subsidy based on species-specific and region-specific benefit rate.
With respect to Canfor's argument that the Department's approach to
We disagree with Canfor on these points. As explained above, these expedited reviews are predicated on the consistent application to all companies of a streamlined methodology which adheres, as closely as possible, to the methodology utilized in the underlying investigation.
Canfor contends that resold lumber transactions should be excluded from the numerator and the denominator in the Department's company-specific rate calculations. According to Canfor, a company may purchase lumber and resell it without ever taking possession of it. They contend that, for CBP purposes, the cash deposit rate applied to these entries would be that applicable to the manufacturer (
With respect to resold lumber, we agree with Canfor that these transactions should not be included in the numerator or the denominator of the company's calculations. As explained in the “Preliminary Results of Review” section of the
Petitioners contend that Shawood Lumber Inc. (Shawood) has inconsistent reporting between its exclusion request and the expedited review. Specifically, petitioners state that Shawood reported an affiliated company in its exclusion request. However, in the expedited review, it did not report any affiliated companies. Moreover, in the company exclusion process, Shawood reported that it had received government assistance during the POI, but did not report government assistance in the expedited review process.
We disagree with petitioners. With respect to whether Shawood reported affiliates in its expedited review application, the reporting methodologies used by participating companies differed between the exclusion process and the expedited review process. In the exclusion process, companies signed certifications regarding their affiliation and cross-ownership status that were based on questionnaires and guidelines compiled and issued by the Government of Canada (GOC).
In accordance with 782(i)(3) of the Tariff Act of 1930, as amended (the Act), we may verify information submitted by respondents who receive a
In accordance with 19 CFR 351.221(b)(4)(i), we calculated an individual subsidy rate for each producer/exporter subject to these expedited reviews. For the period April 1, 2000 to March 31, 2001, we preliminarily determine the net subsidy to be as follows:
To the extent practicable, the Department will issue the final results of these reviews 30 days after the closing of the public comments. If the final results of these reviews remain the same as these preliminary results, the Department intends to instruct the CBP to collect cash deposits of estimated countervailing duties in the amounts indicated above of the f.o.b. invoice price on all shipments of the subject merchandise produced and exported by the reviewed companies, entered, or withdrawn from warehouse, for consumption on or after the date of publication of the final results of these reviews. These rates will not apply to merchandise purchased by the reviewed companies and exported without further processing.
If, in the final results, there are producers/exporters whose final estimated net subsidy rates are zero or
These expedited reviews cover only those companies that we have specifically identified as qualifying for expedited reviews. We will instruct the CBP to continue to collect cash deposits for all non-reviewed companies at the country-wide0 cash deposit rate established in the investigation.
Pursuant to 19 CFR 351.224(b), the Department will disclose to parties to the proceeding any calculations performed in connection with these preliminary results within five days after the date of publication of this notice. Pursuant to 19 CFR 351.309, interested parties may submit written comments in response to these preliminary results. Parties who submit argument in this proceeding are requested to submit with the argument: (1) A statement of the issue, and (2) a brief summary of the argument. Case and rebuttal briefs must be served on interested parties in accordance with 19 CFR 351.303(f). The due dates for the case briefs will be announced at a later date.
Individuals who wish to request a hearing must submit a written request within 14 days of the publication of this notice in the
Requests for a public hearing should contain: (1) The party's name, address, and telephone number; (2) the number of participants; and, (3) to the extent practicable, an identification of the arguments to be raised at the hearing. In addition, ten copies of the business proprietary version and six copies of the non-proprietary version of the case briefs must be submitted to the Assistant Secretary.
Representatives of parties to the proceeding may request disclosure of proprietary information under administrative protective order no later than 10 days after the representative's client or employer becomes a party to the proceeding, but in no event later than the date the case briefs, under 19 CFR 351.309(c)(ii), are due. The Department will include the results of its analysis of issues raised in any case or rebuttal briefs in the final results of these expedited reviews. The Department will ensure that interested parties are informed of the briefing schedule.
In the interests of giving each respondent an informed opportunity to request rescission of their expedited review, we have amended the timeline announced in the application form to request rescission of an expedited review. Requests for rescission must be received by the Department no later than 30 days after the date of publication of the preliminary results of the relevant expedited review.
These expedited reviews and notice are issued and published in accordance with section 751(a)(1) and 777(i)(1) of the Act (19 U.S.C. 1675(a)(1) and 19 U.S.C. 1677(f)(1).
International Trade Administration, Commerce.
Announcement of meeting.
The APAC will have a closed meeting on December 10, 2003 at the U.S. Department of Commerce to discuss U.S.-made automotive part sales in Japanese and other Asian markets.
December 10, 2003.
Henry Misisco, U.S. Department of
The U.S. Automotive Parts Advisory Committee (the “Committee”) advises U.S. Government officials on matters relating to the implementation of the Fair Trade in Automotive Parts Act of 1998 (Pub. L. 105-261). The Committee: (1) Reports to the Secretary of Commerce on barriers to sales of U.S.-made automotive parts and accessories in Japanese and other Asian markets; (2) reviews and considers data collected on sales of U.S.-made auto parts and accessories in Japanese and other Asian markets; (3) advises the Secretary of Commerce during consultations with other Governments on issues concerning sales of U.S.-made automotive parts in Japanese and other Asian markets; and (4) assists in establishing priorities for the initiative to increase sales of U.S.-made auto parts and accessories to Japanese markets, and otherwise provide assistance and direction to the Secretary of Commerce in carrying out the intent of that section; and (5) assists the Secretary of Commerce in reporting to Congress by submitting an annual written report to the Secretary on the sale of U.S.-made automotive parts in Japanese and other Asian markets, as well as any other issues with respect to which the Committee provides advice pursuant to its authorizing legislaiton. At the meeting, committee members will discuss specific trade and sales expansion programs related to automotive parts trade policy between the United States and Japan and other Asian markets.
The Acting Assistant Secretary for Administration, with the concurrence of the General Counsel formally determined on November 18, 2003, pursuant to section 10(d) of the Federal Advisory Committee Act, as amended, that the December 10th meeting of the Committee and of any subcommittee thereof, dealing with privileged or confidential commercial information may be exempt from the provisions of the Act relating to open meeting and public participation therein because these items are concerned with matters that are within the purview of 5 U.S.C. 552b(c)(4) and (9)(B). A copy of the Notice of Determination is available for public inspection and copying in Room 5317, Main Commerce.
NAFTA Secretariat, United States Section, International Trade Administration, Department of Commerce.
Notice of First Request for Panel Review.
On November 12, 2003, Domex Marketing, Inc (Domex), L&M Companies, Inc. (L&M), Nuchief Sales, Inc. (Nuchief), Oneonta Trading Corporation (Oneonta), PAC Marketing International, LLC. (PAC), Rainier Fruit Company (Rainier Fruit) and Sage Marketing LLC (Sage) filed a First Request for Panel Review with the Mexican Section of the NAFTA Secretariat pursuant to Article 1904 of the North American Free Trade Agreement. Panel review was requested of the final countervailing duty determination made by the Secretaria de Economia, respecting Apples, Table Apples and Their Varieties of Red Delicious and Its Mutations and Golden Delicious Apples from the United States of America. This determination was published in the
Caratina L. Alston, United States Secretary, NAFTA Secretariat, Suite 2061, 14th and Constitution Avenue, Washington, DC 20230, (202) 482-5438.
Chapter 19 of the North American Free-Trade Agreement (“Agreement”) establishes a mechanism to replace domestic judicial review of final determinations in antidumping and countervailing duty cases involving imports from a NAFTA country with review by independent binational panels. When a Request for Panel Review is filed, a panel is established to act in place of national courts to review expeditiously the final determination to determine whether it conforms with the antidumping or countervailing duty law of the country that made the determination.
Under Article 1904 of the Agreement, which came into force on January 1, 1994, the Government of the United States, the Government of Canada and the Government of Mexico established
A first Request for Panel Review was filed with the Mexican Section of the NAFTA Secretariat, pursuant to Article 1904 of the Agreement, on November 12, 2003, requesting panel review of the final determination described above.
The Rules provide that:
(a) A Party or interested person may challenge the final determination in whole or in part by filing a Complaint in accordance with Rule 39 within 30 days after the filing of the first Request for Panel Review (the deadline for filing a Complaint is December 12, 2003);
(b) A Party, investigating authority or interested person that does not file a Complaint but that intends to appear in support of any reviewable portion of the final determination may participate in the panel review by filing a Notice of Appearance in accordance with Rule 40 within 45 days after the filing of the first Request for Panel Review (the deadline for filing a Notice of Appearance is December 29, 2003); and
(c) The panel review shall be limited to the allegations of error of fact or law, including the jurisdiction of the investigating authority, that are set out in the Complaints filed in the panel review and the procedural and substantive defenses raised in the panel review.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of public meetings.
The Caribbean Fishery Management Council (Council) and its Administrative Committee will hold meetings.
The meetings will be held on December 17-18, 2003. The Council will convene on Wednesday, December 17, 2003, from 9 a.m. to 5 p.m., and the Administrative Committee will meet from 5:15 p.m. to 6:15 p.m. The Council will reconvene on Thursday, December
The meetings will be held at the Marriott Frenchman's Reef Morning Star Beach Resort, #5 Estate Bakkeroe, St. Thomas, USVI 00802.
Caribbean Fishery Management Council, 268 Munoz Rivera Avenue, Suite 1108, San Juan, Puerto Rico 00918-1920, telephone: (787) 766-5926.
The Council will hold its 114th regular public meeting to discuss the items contained in the following agenda:
The meetings are open to the public, and will be conducted in English. Fishers and other interested persons are invited to attend and participate with oral or written statements regarding agenda issues. 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. For more information or request for sign language interpretation and/other auxiliary aids, please contact Mr. Miguel A. Rolon, Executive Director, Caribbean Fishery Management Council (
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of public meeting.
The Gulf of Mexico Fishery Management Council (Council) will convene a public meeting of the Texas Habitat Protection Advisory Panel (AP).
The AP meeting is scheduled to begin at 9 a.m. on December 9, 2003 and will conclude by 4 p.m.
The meeting will be held at the Hobby Airport Hilton, 8181 Airport Boulevard, Houston, TX 77061; telephone: 713-645-3000.
Dr. Richard Leard, Senior Fishery Biologist, Gulf of Mexico Fishery Management Council; telephone: 813-228-2815.
At this meeting, the Texas Habitat Protection AP will tentatively discuss the U.S. Fish and Wildlife Service (USFWS) Bahia Grande restoration project, the Sabine-Neches waterway deepening project, the mouth of the Colorado River project, the possible reopening of Parker's Cut, current freshwater inflow issues in Texas, beneficial uses of dredged material in Galveston Bay, and information on the Harte Research Institute.
Although other issues not on the agenda may come before the panel for discussion, in accordance with the Magnuson-Stevens Fishery Conservation and Management Act, those issues may not be the subject of formal panel action during this meeting. Panel action will be restricted to those issues specifically identified in the agenda listed as available by this notice.
The AP is composed of persons from recreational and commercial fishing groups, conservation organizations, academia, and state and federal resource agencies.
The Texas Habitat Protection AP's principal role is to assist the Council in attempting to maintain optimum conditions within the habitat and ecosystems supporting the marine resources of the Gulf of Mexico. The Texas Habitat Protection AP serves as a first alert system to call to the Council's attention proposed projects being developed and other activities that may adversely impact the Gulf marine fisheries and their supporting ecosystems. The AP may also provide advice to the Council on its policies and procedures for addressing environmental affairs.
Copies of the agenda can be obtained by calling 813-228-2815.
This meeting is physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Anne Alford at the Council (see
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of a public meeting.
The New England Fishery Management Council (Council) is scheduling a public meeting of its Research Steering Committee in December, 2003. Recommendations from the committee will be brought to the full Council for formal consideration and action, if appropriate.
The meeting will be held on Thursday, December 11, 2003 at 9:30 a.m.
The meeting will be held at the Peabody Marriott, 8A Centennial Drive, Peabody, MA 01960; telephone: (978) 977-9700.
Paul J. Howard, Executive Director, New England Fishery Management Council; telephone: (978) 465-0492.
The committee will discuss and continue work on a process to review and integrate the results of cooperative research into the management process. It will also work on developing research priorities for 2004 for consideration by the Council and the NMFS Regional Administrator.
Although non-emergency issues not contained in this agenda may come before this group for discussion, those issues may not be the subject of formal action during this meeting. Action will be restricted to those issues specifically listed in this notice and any issues arising after publication of this notice that require emergency action under section 305(c) of the Magnuson-Stevens Act, provided the public has been notified of the Council's intent to take final action to address the emergency.
This meeting is physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Paul J. Howard (see
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce
Notice of public meeting.
The New England Fishery Management Council (Council) is scheduling a public meeting of its Habitat Committee in December, 2003 to consider actions affecting New England fisheries in the exclusive economic zone (EEZ). Recommendations from this group will be brought to the full Council for formal consideration and action, if appropriate.
The meeting will be held on December 8, 2003, at 9:30 a.m.
The meeting will be held at the Village Inn, One Beach Street, Narragansett, RI 02882; telephone: (401) 783-6767. Council address: New England Fishery Management Council, 50 Water Street, Mill 2, Newburyport, MA 01950; telephone: (978) 465-0492.
Paul J. Howard, Executive Director, New England Fishery Management Council. Requests for special accommodations should be addressed to the New England Fishery Management Council, 50 Water Street, Mill 2, Newburyport, MA 01950, telephone: (978) 465-0492.
The Habitat Oversight Committee will discuss the upcoming Omnibus Habitat Amendment including, but not limited to, the review of the Draft Timeline, Draft Notice of Intent, Draft Request for Proposals for Habitat Areas of Particular Concern and Dedicated Habitat Research Areas, and inclusion of the Draft Habitat Advisory Panel Process.
The meeting will also include a recap of Council decisions in Amendment 10 to the Atlantic Sea Scallop Fishery Management Plan (FMP) and Amendment 13 to the Multispecies FMP. In addition, the Committee will be updated on the status of the American Oceans Campaign v. Daley lawsuit settlement agreement requirements and any NMFS Essential Fish Habitat Consultations of particular interest to the Council. The Committee will also be updated on recent Marine Protected Area (MPA) work by the formerly separate MPA Committee. The timeline for development of a Council policy on MPAs will be developed. Possible closed session for the discussion and selection of habitat advisory panel.
Although non-emergency issues not contained in this agenda may come before this group for discussion, those issues may not be the subject of formal action during this meeting. Action will be restricted to those issues specifically listed in this notice and any issues arising after publication of this notice that require emergency action under section 305(c) of the Magnuson-Stevens Act, provided the public has been notified of the Council's intent to take final action to address the emergency.
This meeting is physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Paul J. Howard (
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Meetings of the North Pacific Fishery Management Council Fur Sea Committee.
The North Pacific Fishery Management Council (Council) Fur Seal Committee will meet December 11, 2003 at the Anchorage Hilton Hotel.
The meeting is scheduled December 11, 2003 at 6:30 p.m. King Salmon Room.
The meeting will be held at the Hilton Hotel, 500 W3rd Avenue, Anchorage, Alaska.
Bill Wilson, Council staff, Phone: 907-271-2809.
(1) Review Committee's Charge.
(2) Committee's working protocol.
(3) NMFS approach and schedule for the draft Environmental Impact Statement on renewing Fur Seal Subsistence Harvest Regulations.
(4) Presentation of Data on Status of the Bering Sea Fur Seal population.
(5) Presentation on groundfish fishery harvest in the Bering Sea Aleutian Islands relative to fur seal foraging areas.
(6) Other items as necessary.
Although non-emergency issues not contained in this agenda may come before this Committee for discussion, those issues may not be the subject of formal Council action during this meeting. Committee 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 Committee'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 Gail Bendixen at 907-271-2809 at least 7 working days prior to the meeting date.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Meetings of the North Pacific Fishery Management Council Joint Protocol Committee.
The North Pacific Fishery Management Council (Council) Joint Protocol Committee of the Alaska Board of Fisheries and Council will meet in December 2003, in Anchorage, AK.
The meeting will be held on December 8, 2003, 1-5 p.m.
Hilton Hotel, 500 W. 3rd Avenue, Aspen/Spruce Room, Anchorage, AK.
Jane DiCosimo, Council staff, Phone: 907-271-2809.
(1) Steering Committee recommendations for managing State groundfish fisheries if Federal groundfish fisheries are rationalized.
(2) Review groundfish proposals submitted to the Board of Fisheries.
(3) Update on Congressional action on pending Council action (if available).
(4) Other business as necessary.
Although non-emergency issues not contained in this agenda may come before this Committee for discussion, those issues may not be the subject of formal Council action during this meeting. Committee 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 Committee'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 Gail Bendixen at 907-271-2809 at least 7 working days prior to the meeting date.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Meetings of the North Pacific Fishery Management Council and its advisory committees.
The North Pacific Fishery Management Council (Council) and its advisory committees will hold public meetings. December 8 through December 16, 2003.
The Council's Advisory Panel will begin at 8 a.m., Monday, December 8, 2003, and continue through Saturday, December 13, 2003.
The Scientific and Statistical Committee will begin at 8 a.m. on Monday, December 8, 2003, and continue through Wednesday, December 10, 2003.
The Council will begin its plenary session at 8 a.m. on Wednesday, December 10, 2003 and continue through Tuesday December 16, 2003.
The Enforcement Committee will meet Tuesday, October 7, at 6:30 p.m.
All meetings are open to the public except executive sessions.
The meetings will be held at the Anchorage Hilton Hotel, 500 W 3rd Avenue, Anchorage, AK.
Council staff, Phone: 907-271-2809.
The agenda for the Council's plenary session will include the following issues. The Council may take appropriate action on any of the issues identified.
(a) Executive Director's Report
(b) National Marine Fisheries Service Management Report
(c) United States Coast Guard Report/NMFS Enforcement Report
(d) Alaska Department Fish & Game Reports
(e) United States Fish & Wildlife Report
(a) Receive report from Joint Protocol Committee
(b) Receive Groundfish Development Authority (Council only)
(c) Review and refine alternatives and options
(a) Program overview (Alaska Fishery Science Center)
(b) Preliminary review of Program Restructuring Analysis
(a) Receive report from NMFS on Amendment 79
(b) Review Committee report
(c) Finalize alternatives and options for Amendments 80a and 80b
(a) Receive report from IFQ Implementation and Cost Recovery Committee, and review IFQ proposals.
(a) Final action to adopt final Gulf of Alaska groundfish specifications for 2004
(b) Final action to adopt final Bering Sea Aleutian Islands groundfish specifications for 2004
(c) Discuss alternatives and schedule for repealing the Vessel Incentive Program.
(a) Review tasking and provide direction to staff
(b) Discuss direction to Committees
Scientific and Statistical Committee (SSC): The SSC agenda will include the following issues:
(a) D-1 Groundfish Management
(b) C-2 Observer Program
Although non-emergency issues not contained in this agenda may come before this Council for discussion, in accordance with the Magnuson-Stevens Fishery Conservation and Management Act, these issues may not be the subject of formal Council action during the meeting. Council action will be restricted to those issues specifically identified in the agenda listed in this notice and any issues arising after publication of this notice that require emergency action under section 305(c) of the Magnuson-Stevens Act, provided the public has been notified of the Council's intent to take final action to address the emergency.
These meetings are physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Gail Bendixen at 907-271-2809 at least 7 working days prior to the meeting date.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of public meetings.
The Pacific Fishery Management Council's (Council) Model Evaluation Workgroup (MEW) will hold a work session, which is open to the public, to discuss documentation of the Chinook and Coho Fishery Regulation Assessment Model (FRAM).
The work session will be held Wednesday, December 10, 2003 from 9:30 a.m. to 4 p.m.
The work session will be held at the Pacific Fishery Management Council, West Conference Room, 7700 NE Ambassador Place, Suite 200, Portland, OR 97220-1384, (503) 820-2280.
Mr. Chuck Tracy, (503) 820-2280.
The purpose of the work session is to review progress on development of a programmers guide and a users manual for the Chinook and Coho FRAM, and to prioritize and schedule upcoming tasks.
Although non-emergency issues not contained in the meeting agenda may come before the MEW for discussion, those issues may not be the subject of formal MEW action during this meeting. MEW 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 Fishery Conservation and Management Act, provided the public has been notified of the MEW's intent to take final action to address the emergency.
This meeting is physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Ms. Carolyn Porter at (503) 820-2280 at least 5 days prior to the meeting date.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of public meetings.
The South Atlantic Fishery Management Council (Council) will hold a meeting of its Snapper Grouper Advisory Panel, a joint meeting of its Snapper Grouper Committee and Advisory Panel, Highly Migratory Species Committee, Mackerel Committee, Shrimp Committee, Information and Education Committee, and a joint meeting of its Executive Committee and Finance Committee. In addition, there will be a meeting of the full Council.
The meeting will be held in December 2003.
The meeting will be held at the Blockade Runner Beach Resort, 275 Waynick Blvd. Wrightsville Beach, NC 28480. Telephone: 1-800-541-1161 or 910-256-2251. Copies of documents are available from Kim Iverson, Public Information Officer, South Atlantic Fishery Management Council at 843-571-4366.
Kim Iverson, Public Information Officer; telephone: 843-571-4366 or toll free at 866-SAFMC-10; fax: 843-769-4520; email:
1.
The Snapper Grouper Advisory Panel (AP) will receive an update on the Southeastern Data, Assessment and Review (SEDAR) process. The AP will receive an overview of Amendment 13B to the Snapper Grouper Fishery Management Plan (FMP) and discuss options.
2.
The Snapper Grouper Committee and AP will receive a status report on the economic work on the Snapper Grouper Cost/Earnings Study, the black sea bass capacity report, a report on a North Carolina socioeconomic project, the North Carolina State observer study, a report on the latest bycatch log book results, and a presentation on the expanded electronic log book project. In addition, AP members will comment on the status of the snapper/grouper fishery in their area. The Committee and AP will also receive an overview of Amendment 13B to the Snapper Grouper Fishery Management Plan (FMP) and develop recommendations for the Council to consider. The Committee and AP will receive an overview of the public hearing document for Amendment 14 to the Snapper Grouper FMP and develop recommendations for the Council to consider. The Committee and AP will also develop comments on the Management Plan for Gray's Reef National Marine Sanctuary.
3.
The Highly Migratory Species Committee will receive a report on the November meeting of the International Commission for the Conservation of Atlantic Tuna (ICCAT) and the status of the bluefin tuna quota and harvest in North Carolina.
4.
The Mackerel Committee will receive an update on the SEDAR for mackerel, review the options paper for Amendment 15 to the Coastal Migratory Pelagics FMP, and develop alternatives for the Council to consider regarding the options paper.
5.
The Shrimp Committee will receive status reports from NOAA fisheries on the shrimp vessel observer program, the bycatch data collection plan and the shrimp business plan. In addition, the Committee will review the options paper for Amendment 6 to the Shrimp FMP and develop alternatives for the Council to consider.
6.
The Information and Education Committee will review the consensus recommendations from the joint Committee and AP meeting earlier this year. The Committee will review and develop recommendations regarding options for the Council's web site hosting and design. The Committee will also discuss outreach/education plans for the Oculina Experimental Closed Area and Habitat Area of Particular Concern off the coast of Florida.
7.
The Executive Committee will meet jointly with the Finance Committee and receive an update on the Calendar Year (CY) 2003 budget and the status of the Fiscal Year 2004 Congressional budget. The Committees will develop recommendations for CY 2004 Fishery Management Plan, Plan Amendment and Framework timelines and Activities Schedule. The Committees will also approve the CY 2004 budget and Operations Plan.
8.
3-3:15 p.m., the Council will have a Call to Order, introductions and roll call, adoption of the agenda, and approval of the October 2003 meeting minutes.
3:15-3:30 p.m., the Council will hear a report from the Highly Migratory Species Committee.
3:30-3:45 p.m., the Council will hear a report from the Mackerel Committee.
3:45-4 p.m., the Council will hear a report from the Joint Executive Committee and Finance Committee and approve the 2004 FMP/Amendment/Framework timelines and the 2004 administrative budget.
4-6 p.m., the Council will hear a report from the Snapper Grouper Committee. The Council will consider Committee recommendations and approve alternatives for Amendment 13B to the Snapper Grouper FMP. The Council will also consider Committee recommendations on the public hearing draft for the marine protected area (MPA) component of Amendment 14 to the Snapper Grouper FMP and approve the MPA component for the first round of public hearings in 2004.
9.
8:30-9:30 a.m., the Council will receive a briefing on litigation and other legal issues affecting the Council (CLOSED SESSION).
9:30-9:45 a.m., the Council will hear a report from the Information and Education Committee.
9:45-10:15 a.m., the Council will hear a report from the Shrimp Committee and approve options for inclusion in Amendment 6 to the Shrimp FMP.
10:15-10:30 a.m., the Council will hear a report on the Federal Fisheries Managers Conference held in Washington, DC in November 2003.
10:30-11 a.m., the Council will hear status reports from NOAA Fisheries (NMFS) regarding Snapper Grouper Amendment 13A and the proposed rule for the Amendment, the Dolphin/Wahoo FMP and final rule, implementation of the Atlantic Coast Cooperative Statistics Program in the Southeast Region, and hear landings reports regarding Atlantic king mackerel, Gulf king mackerel (eastern zone), Atlantic Spanish mackerel, snowy grouper, golden tilefish, wreckfish, greater amberjack, and south Atlantic ocotocorals.
11 a.m.-12 noon, the Council will hear agency and liaison reports, discuss other business and upcoming meetings.
Documents regarding these issues are available from the Council office (see
Although non-emergency issues not contained in this agenda may come before this Council for discussion, those issues may not be the subjects of formal Council action during this meeting. Council action will be restricted to those issues specifically listed in this notice and any issues arising after publication of this notice that require emergency action under section 305(c) of the Magnuson-Stevens Act, provided the public has been notified of the Council's intent to take final action to address the emergency.
These meetings are physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to the Council office (
National Telecommunications and Information Administration, U.S. Department of Commerce.
Notice of public meeting.
The U.S. Department of Commerce's National Telecommunications and Information Administration (NTIA) will host a one-day spectrum efficiency and new technology forum. The first panel will discuss incentives for more efficient and beneficial spectrum use and cover such topics as defining efficiency, comparing efficiency to effectiveness, measuring methods of efficiency, and identifying policies to achieve efficient spectrum use. The second panel will discuss the development of new and expanded services and technologies that improve efficiency and streamline technology deployment. Both panels will feature participation from representatives of key industries and organizations that use spectrum, economists and analysts, technologists and futurists, equipment manufacturers, and experts from government and academia.
The forum will be held from 9 a.m. to 4:30 p.m. on Tuesday, December 9, 2003.
The Spectrum Efficiency and New Technology Forum will be held at the U.S. Department of Commerce, 1401 Constitution Avenue, NW., Room 4830, Washington, DC (the entrance to the Department of Commerce is on 14th Street between Constitution and Pennsylvania Avenues). All events are open to the public. To facilitate entry into the Department of Commerce, please have a photo identification and/or U.S. Government building pass, if applicable.
Joe Gattuso, NTIA Office of Policy Analysis and Development, at (202) 482-1880, or electronic mail:
This forum is one in a series of discussions to implement the President's Spectrum Policy Initiative, which will result in recommendations to the Administration for improving spectrum management policies and procedures. On May 29, 2003, the President signed a Presidential Memorandum outlining the Administration's initiative for spectrum management reform. The President established the “Spectrum Policy Initiative” to promote the development and implementation of a U.S. spectrum policy for the 21st century. He directed the Secretary of Commerce to chair the initiative, which includes two courses of spectrum-related activity, one based on an interagency task force and the other on a series of public meetings. The Department of Commerce will develop recommendations for revising policies and procedures to promote more efficient and beneficial use of spectrum without harmful interference to incumbent users.
NTIA will provide additional information about the forum in the near future on its home page at
Committee for the Implementation of Textile Agreements (CITA).
Issuing a directive to the Commissioner, Bureau of Customs and Border Protection.
November 25, 2003.
Ross Arnold, International Trade Specialist, Office of Textiles and Apparel, U.S. Department of Commerce, (202) 482-4212. For information on the quota status of these limits, refer to the Quota Status Reports posted on the bulletin boards of each Customs port, call (202) 927-5850, or refer to the Bureau of Customs and Border Protection website at http://www.customs.gov. For information on embargoes and quota re-openings, refer to the Office of Textiles and Apparel website at http://otexa.ita.doc.gov.
Section 204 of the Agricultural Act of 1956, as amended (7 U.S.C. 1854); Executive Order 11651 of March 3, 1972, as amended.
The current limit for Categories 338/339 is being decreased for the cancellation of special shift from Categories 638/639, which increases the limit for Categories 638/639.
A description of the textile and apparel categories in terms of HTS numbers is available in the CORRELATION: Textile and Apparel Categories with the Harmonized Tariff Schedule of the United States (see
Dear Commissioner: This directive amends, but does not cancel, the directive issued to you on October 8, 2002, by the Chairman, Committee for the Implementation of Textile Agreements. That directive concerns imports of certain cotton, wool, man-made fiber, silk blend and other vegetable fiber textiles and textile products, produced or manufactured in Indonesia and exported during the twelve-month period which began on January 1, 2003 and extends through December 31, 2003.
Effective on November 25, 2003, you are directed to adjust the limits for the categories listed below, as provided for under the Uruguay Round Agreement on Textiles and Clothing:
The Committee for the Implementation of Textile Agreements has determined that these actions fall within the foreign affairs exception to the rulemaking provisions of 5 U.S.C. 553(a)(1).
Sincerely,
Department of Education.
The Leader, Regulatory Information Management Group, Office of the Chief Information Officer invites comments on the submission for OMB review as required by the Paperwork Reduction Act of 1995.
Interested persons are invited to submit comments on or before December 24, 2003.
Written comments should be addressed to the Office of Information and Regulatory Affairs, Attention: Melanie Kadlic, Desk Officer, Department of Education, Office of Management and Budget, 725 17th Street, NW, Room 10235, New Executive Office Building, Washington, DC 20503 or should be electronically mailed to the internet address
Section 3506 of the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35) requires that the Office of Management and Budget (OMB) provide interested Federal agencies and the public an early opportunity to comment on information collection requests. OMB may amend or waive the requirement for public consultation to the extent that public participation in the approval process would defeat the purpose of the information collection, violate State or Federal law, or substantially interfere with any agency's ability to perform its statutory obligations. The Leader, Regulatory Information Management Group, Office of the Chief Information Officer, publishes that notice containing proposed information collection requests prior to submission of these requests to OMB. Each proposed information collection, grouped by office, contains the following: (1) Type of review requested,
Requests for copies of the submission for OMB review; comment request may be accessed from
Comments regarding burden and/or the collection activity requirements should be directed to Joseph Schubart at his e-mail address
Department of Education.
The Leader, Regulatory Information Management Group, Office of the Chief Information Officer, invites comments on the proposed information collection requests as required by the Paperwork Reduction Act of 1995.
Interested persons are invited to submit comments on or before January 23, 2004.
Section 3506 of the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35) requires that the Office of Management and Budget (OMB) provide interested Federal agencies and the public an early opportunity to comment on information collection requests. OMB may amend or waive the requirement for public consultation to the extent that public participation in the approval process would defeat the purpose of the information collection, violate State or Federal law, or substantially interfere with any agency's ability to perform its statutory obligations. The Leader, Regulatory Information Management Group, Office of the Chief Information Officer, publishes that notice containing proposed information collection requests prior to submission of these requests to OMB. Each proposed information collection, grouped by office, contains the following: (1) Type of review requested,
The Department of Education is especially interested in public comment addressing the following issues: (1) Is this collection necessary to the proper functions of the Department; (2) will this information be processed and used in a timely manner; (3) is the estimate of burden accurate; (4) how might the Department enhance the quality, utility, and clarity of the information to be collected; and (5) how might the Department minimize the burden of this collection on the respondents, including through the use of information technology.
Responses: 56.
Burden Hours: 2,240.
Requests for copies of the proposed information collection request may be accessed from
Comments regarding burden and/or the collection activity requirements should be directed to Sheila Carey at her e-mail address
Golden Field Office, U.S. Department of Energy.
Notice of issuance of funding announcement number DE-PS36-04GO94001.
The U.S. Department of Energy's (DOE) Office of Energy Efficiency and Renewable Energy (EERE) is seeking applications for research projects to expand the Enhanced (Engineered) Geothermal Systems (EGS) knowledge base. Through financial assistance awards, DOE intends to provide financial support for research directed to improving the technology to recover heat from rock with low permeability and at greater depth than presently feasible. This program is authorized under provisions of the “Geothermal Energy Research, Development, and Demonstration Act of 1976,” Pub. L. 93-410.
Issuance of the announcement is planned for November 12, 2003.
To obtain a copy of the announcement, interested parties should access the DOE Golden Field Office Home Page at
Questions regarding this announcement should be submitted electronically through IIPS by “submitting a question” on the IIPS “Finanicial Assistance Form” specific to this announcement. Response to questions will be posted on IIPS and available through “View Questions.”
IIPS provides the medium for disseminating announcements, receiving financial assistance applications, and evaluating the applications in a paperless environment. The application may be submitted by the applicant or a designated representative that receives authorization from the applicant; however, the application documentation must reflect the name and title of the representative authorized to enter the applicant into a legally binding agreement. The applicant or the designated representative must first register in IIPS, entering their first name and last name, then entering the company name/address of the applicant.
For questions regarding the operation of IIPS, contact the IIPS Help Desk at
Department of Energy.
Notice of open meeting.
This notice announces a meeting of the Environmental Management Site-Specific Advisory Board (EM SSAB), Fernald. The Federal Advisory Committee Act (Pub. L. 92-463, 86 Stat. 770) requires that public notice of these meetings be announced in the
Tuesday, December 2, 2003, 7 p.m.-9 p.m.
Fernald Closure Project Site, 7400 Willey Road, Trailer 214, Hamilton, OH 45013-9402.
Doug Sarno, The Perspectives Group, Inc., 1055 North Fairfax Street, Suite 204, Alexandria, VA 22314, at (703) 837-1197, or e-mail;
Take notice that on October 31, 2003, CenterPoint Energy—Mississippi River Transmission Corporation (MRT) tendered for filing and approval a negotiated rate agreement between MRT and Laclede Energy Resources, Inc. MRT requests that the Commission accept and approve the transaction 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 29, 2003, El Paso Natural Gas Company (El Paso) tendered for filing as part of its FERC Gas Tariff, Second Revised Volume No. 1-A, Third Revised Sheet No. 113D, with a September 1, 2003 effective date.
EPNG states that this tariff sheet is filed to permit partial reservation charge crediting under Rate Schedule FT-1 for non-delivery of gas due to pipeline maintenance.
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 November 10, 2003, Gulf South Pipeline Company, LP (Gulf South) tendered for filing as part of its FERC Gas Tariff, Sixth Revised Volume No. 1, the following tariff sheets, to become effective September 29, 2003.
On October 24, 2003 the Commission issued an Order addressing Gulf South's August 27, 2003 compliance filing in this docket. Gulf South states that this brings PAL service into compliance with the Order.
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 November 12, 2003, Iroquois Gas Transmission System, L.P. (Iroquois) tendered for filing as part of its FERC Gas Tariff, First Revised Volume No. 1, Substitute First Revised Sheet No. 8, proposed to become effective November 1, 2003.
Pursuant to the Commission's October 28, 2003 Order, Iroquois has opted not to file a revised tariff sheet to provide all shippers with the same contract term extension it was originally proposing to offer Amerada Hess Corporation (Amerada). Iroquois therefore submits Substitute First Revised Sheet No. 8 to replace First Revised Sheet No. 8 in order to delete the reference to the Amerada contract and retain this section in its tariff to list any future Commission approved non-conforming contracts.
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 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 November 12, 2003, Kern River Gas Transmission Company (Kern River) tendered for filing as part of its FERC Gas Tariff, Second Revised Volume No. 1, the following tariff sheets:
Kern River states that the purpose of this filing is to comply with the October 24, 2003 Order issued in this proceeding by submitting revised tariff sheets that modify the conditions under which available capacity may be reserved for use in a future expansion project.
Kern River states that it has served a copy of this filing on all parties designated on the official service list compiled 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 § 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 November 10, 2003, Maritimes & Northeast Pipeline, L.L.C. (Maritimes) made a compliance filing, in accordance with the Commission Order dated October 29, 2003, in the captioned proceeding.
Maritimes states that copies of its filing have been mailed to all parties listed on the Official Service List 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 § 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 November 7, 2003, The Peoples Gas Light and Coke Company (Peoples) tendered for filing cost and throughput data in compliance with the Commission Order issued on March 31, 2001 in Docket No. PR01-2-000 (94 FERC 91 ¶ 61,402 (2001)). Peoples states that it requests no change in its existing rates or terms and conditions of service.
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 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 July 16, 2003, Texas Eastern Transmission, LP (Texas Eastern) made a filing regarding its Interruptible Storage Service program in the above-docketed proceedings. Texas Eastern also included a request for waivers, to the extent necessary, to cease quarterly reporting except for those periods when forced withdrawals occurred.
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 November 10, 2003, Williston Basin Interstate Pipeline Company (Williston Basin) tendered for filing as part of its FERC Gas Tariff, Second Revised Volume No. 1, the following revised tariff sheets to become effective December 10, 2003:
Williston Basin states that it has revised the above-referenced tariff sheets of Williston Basin's FERC Gas Tariff, Second Revised Volume No. 1, to add a new sub-system, pool, and receipt point, Point ID No. 01011 (Northern Border-Manning) as a result of the construction of Williston Basin's Grasslands Pipeline.
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
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, 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 9GS 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 November 3, 2003, Louisville Gas and Electric Company and Kentucky Utilities Company (the Applicants) filed an Application under Section 203 of the Federal Power Act. The Applicants state that the proposed transaction that is the subject of the Application is intended solely to effect by year end a tax efficient reorganization and does not involve any acquisition or external disposition of public utilities, energy companies, or facilities subject to the jurisdiction of the Commission, and therefore will have no effect on competition, the Applicants' rates, or regulation. Consequently, the Applicants respectfully request the Commission to authorize the proposed transaction as soon as possible but in no event, later than the Commission's last business day of 2003.
On November 3, 2003, Panda-Rosemary, L.P. (Panda-Rosemary), filed an application with the Commission for determination of exempt wholesale generator status pursuant to section 32 of the Public Utility Holding Company Act of 1935, as amended, and part 365 of the Commission's regulations.
Panda-Rosemary states that it is a limited partnership organized and existing under the laws of the State of Delaware, and that it owns and operates an electric facility located in Roanoke Rapids, North Carolina. Panda-Rosemary further states that the electric facility consists of a nominal 180-MW, topping cycle cogeneration facility that burns natural gas as its primary fuel and No. 2 distillate oil as a back-up fuel, and certain related electric interconnection facilities necessary to effect the sale of electricity at wholesale.
On November 3, 2003, Panda Global Services, Inc (PGS) filed an application with the Federal Energy Regulatory Commission for determination of exempt wholesale generator status pursuant to section 32 of the Public Utility Holding Company Act of 1935, as amended, and part 365 of the Commission's regulations.
PGS states that it is a corporation organized and existing under the laws of the State of Delaware, and that it will be engaged directly and exclusively in the business of operating several eligible facilities. PGS further states that it will satisfy the requirement to sell electric energy at wholesale through its contractual relationship with the owner or lessee of such eligible facilities, which sell electric energy from such eligible facilities exclusively at wholesale.
Take notice that on November 3, 2003, Detroit Edison Company and DTE Energy Trading, Inc., hereby submitted for filing a status report in compliance with Commission's Order issued May 17, 2001, 95 FERC ¶ 61,240 (2001).
Take notice that on November 3, 2003, Praxair, Inc. tendered for filing a triennial market power update in compliance with Praxair, Inc., Letter Order, issued November 2, 2000 in Docket No. ER00-3767-000.
Take notice that on November 3, 2003, Delta Energy Center, LLC filed revised rate sheets to Delta's Rate Schedule FERC No. 2, consisting of a Must-Run Service Agreement and accompanying schedules.
Take notice that on November 3, 2003, ISO New England Inc. (ISO) submitted a Compliance Filing in above-captioned proceeding as directed by the Commission in its October 23, 2003 Order Accepting Initial Bid Cost Input Information for Filing, 105 FERC ¶ 61,096.
The ISO states that copies of the filing have been served on all parties to the above-captioned proceeding.
Take notice that on November 3, 2003, Pacific Gas and Electric Company (PG&E) submitted a revised Generator Special Facilities Agreement, Supplemental Letter Agreement, and Generator Interconnection Agreement between PG&E and Elk Hills Power, LLC (Elk Hills) in compliance with the Commission's “Order Accepting Interconnection Agreements and Revised Generator Special Facilities Agreement, As Modified”, dated October 3, 2003.
PG&E states that copies of this filing have been served upon Elk Hills, GWF Energy Company, LLC, the California Independent System Operator Corporation and the California Public Utilities Commission.
Take notice that on November 3, 2003, Montana Megawatts I, LLC (Montana Megawatts) tendered for filing a First Revised Rate Schedule FERC No. 1, consistent with Order No. 614, in compliance with the Commission's Order dated October 17, 2003. Montana Megawatts also states that it filed Rate Schedule FERC No. 1 on August 18, 2003, and First Revised Rate Schedule FERC No. 1 incorporates changes from recent amendments to the original contract.
Take notice that on October 24, 2003, Hartford Steam Company (Hartford Steam) submitted for filing a Notice of Withdrawal of an Energy Purchase Agreement dated September 26, 2003, by and between Hartford Steam and The Connecticut Light and Power Company.
Take notice that on November 3, 2003, Deseret tendered for filing an Errata to its October 30, 2003 filing, indicating that the proposed sheets to be included in Deseret's First Revised Service Agreement No. 2 to FERC Electric Tariff, Original Volume No. 1 were incorrectly designated. Deseret states that the proper designations are Original Sheet Nos. 87 through 101. Deseret further states that they have attached a complete copy of the revised sheets to the Errata filing and requests that these pages be substituted for those originally submitted on October 30, 2003.
Take notice that on November 3, 2003, Xcel Energy Services Inc. (XES), on behalf of Northern States Power Company (NSP), submitted for filing with the Commission a Generation Interconnection Agreement between NSP and K-Brink Windfarm, LLC, a 1.9 MW wind generator.
NSP requests the agreement to be accepted for filing effective January 9, 2003, and requests waiver of the Commission's notice requirements in order for the Agreements to be accepted for filing on the date requested.
Take notice that on November 3, NorthWestern Energy (NWE), tendered for filing with the Federal Energy Regulatory Commission pursuant to 18 CFR 35.13 an executed Firm and Non-Firm Point-To-Point Transmission Service Agreements with Basin Electric Power Cooperative and Calpine Energy Services. Also on the same date, NEW filed an unexecuted Firm and Non-Firm Transmission Service Agreement with Rainbow Energy Marketing Corp., under NWE's FERC Electric Tariff, Fifth Revised Volume No. 5 (Open Access Transmission Tariff).
NWE states that a copy of the filing was served upon Basin Electric, Rainbow Energy and Calpine Electric.
Take notice that on November 3, 2003, Columbus Southern Power Company (CSP), tendered for filing with the Commission a Notice of Cancellation for Service Agreement No. 4 under FERC Electric Tariff, Fifth Revised Volume No. 1, which became effective on February 22, 1982.
CSP states that the current version of Service Agreement No. 4 contains a ninety day notice of cancellation provision and that CSP gave the Village of Glouster, Ohio (Glouster), (the only customer that was served by CSP and Service Agreement No. 4), timely written notification of CSP's election to terminate Service Agreement No. 4 and service to Glouster under CSP's cost-based rates. CSP requests that its Notice of Cancellation be made effective as of February 28, 2003.
CSP states that copies of its filing have been served upon the Public Utilities Commission of Ohio and Glouster.
Take notice that on November 3, 2003, Appalachian Power Company (APCo), tendered for filing with the Commission a Notice of Cancellation for Rate Schedule FERC Nos. 126, 127, and 136, which became effective on November 17, 1991, August 1, 1991, and March 15, 1996, respectively.
APCo states that the current versions of Rate Schedules 126, 127 and 136 on file with the Commission contain a three (3) year notice of cancellation provision and that APCo gave Old Dominion Electric Cooperative (ODEC), the only customer served by APCo under Rate Schedules 126, 127 and 136, timely written notification of its election to terminate these Rate Schedules and service to CVEC under APCo's cost-based rates. APCo also states that, at ODEC's request, APCo and ODEC agreed to modify the effective dates of termination from the earliest dates permitted by Rate Schedules 126, 127 and 136, as provided in the termination letters sent by APCo, to December 31, 2003. APCo requests that its Notice of Cancellation be made effective as of January 1, 2004.
APCo further states that copies of its filing have been served upon the Virginia State Corporation Commission and ODEC.
Take notice that on November 3, 2003, Columbus Southern Power Company (CSP), tendered for filing with the Commission a Notice of Cancellation for Service Agreement No. 3 under FERC Electric Tariff, Fifth Revised Volume No. 1 (Service Agreement No. 3), which became effective on September 30, 1982.
CSP states that the current version of Service Agreement No. 3 contains a two year notice of cancellation provision and that CSP gave the City of Westerville, Ohio (Westerville), the only customer served by CSP under Service Agreement No. 3, timely written notification of CSP's election to terminate Service Agreement No. 3, and service to Westerville under CSP's cost-based rates. CSP requests that its Notice of Cancellation be made effective as of January 1, 2004.
CSP further states that copies of its filing have been served upon the Public Utilities Commission of Ohio and Westerville.
Take notice that on November 3, 2003, Nevada Power Company (Nevada Power) tendered for filing five unexecuted Regional Required System
Take notice that on November 3, 2003, Green Power Partners I LLC (Green Power) submitted for filing with the Federal Energy Regulatory Commission an Automated Power Exchange Master Service and Participation Agreement and corresponding schedules (APX Master Agreement) between itself and the Automated Power Exchange, Inc.
Take notice that on November 3, 2003 ISG Hennepin Inc. (ISG Hennepin) petitioned the Commission for acceptance of ISG Hennepin FERC Electric Tariff, Original Volume Number 1; the granting of certain blanket approvals, including the authority to sell electricity at market-based rates; and the waiver of certain Commission regulations. ISG Hennepin requests an effective date for the rate schedule of December 1, 2003.
Any person desiring to intervene or to protest this filing should file with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214). Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Any person wishing to become a party must file a motion to intervene. All such motions or protests should be filed on or before the comment date, and, to the extent applicable, must be served on the applicant and on any other person designated on the official service list. This filing is available for review at the Commission or may be viewed on the Commission's Web site at
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 14, 2003, FirstEnergy Corp, and its public utility subsidiaries (FirstEnergy) and NRG Energy, Inc. and its public utility subsidiaries (NRG) (collectively, Applicants) filed with the Commission an application pursuant to Section 203 of the Federal Power Act for authorization for FirstEnergy to acquire certain debt and common equity securities of NRG as a means of settling outstanding claims against NRG, and for authorization for FirstEnergy to dispose of such securities as soon as possible thereafter in light of market conditions. Applicants state that if a Settlement Agreement is approved, FirstEnergy will be entitled to receive approximately 6.5% of the common stock of NRG and approximately $30 million of NRG Senior Notes. Applicants are requesting expeditious approval.
Take notice that on November 6, 2003, the New England Power Pool Participants Committee (NEPOOL) submitted for filing two corrections to the attachments to the Response to Commission's Questions Regarding Transmission Cost Allocation Proposal for New England, which was filed on October 29, 2003 (October 29 Filing). NEPOOL states that copies of these materials were sent to all entities who received the October 29 Filing.
Take notice that on November 4, 2003, as amended on November 7, 2003, Midwest Generation, LLC and Commonwealth Edison Company filed a Settlement Agreement establishing revised rates for black start service.
Take notice that on November 7, 2003, New York State Electric & Gas Corporation (NYSEG) tendered for filing with the Federal Energy Regulatory Commission an executed Substitute Original Interconnection Agreement between NYSEG and Seneca Energy II, LLC (Seneca) that sets forth the terms and conditions governing the interconnection between Seneca's Ontario County Landfill generating facility in Ontario County, New York and NYSEG's transmission system.
NYSEG states that copies of this filing have been served upon Seneca, the New York State Public Service Commission, and the New York Independent System Operator, Inc.
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
1. In an order dated June 26, 2003, the Commission, acting pursuant to section 206 of the Federal Power Act (FPA),
2. In the June 26 Order, we also stated that in formulating our proposed Market Behavior Rules, we were required to strike a careful balance among a number of competing interests. We noted, for example, that while market participants must be given an effective remedy in the event anticompetitive behavior or other market abuses occur, sellers should be provided “rules of the road” that are clearly-delineated. We noted that while regulatory certainty was important for individual market participants and the marketplace in general, the Commission must not be impaired in its ability to provide remedies for market abuses whose precise form and nature cannot be envisioned today. We sought comments on whether our proposed rules achieved the appropriate balance among these competing interests.
3.The vast majority of the comments we received in response supported the Commission's overall objectives in this proceeding,
4. In the June 26 Order, we noted that as part of our ongoing responsibility to provide regulatory safeguards to ensure that customers are protected from market abuses, we were required to balance the following three goals: first, the need to provide for effective remedies on behalf of customers in the event anticompetitive behavior or other market abuses occur; second, the need to provide clearly-delineated “rules of the road” to market-based rate sellers while, at the same time, not impairing the Commission's ability to provide remedies for market abuses whose precise form and nature cannot be envisioned today; and third, the need to provide reasonable bounds within which conditions on market conduct will be implemented so as not to create unlimited regulatory uncertainty for individual market participants or harm to the marketplace in general. We also noted that a stable marketplace with clearly defined rules would benefit both customers and market participants and would create an environment that will attract much-needed capital.
5. Based on these objectives, we proposed six specific Market Behavior Rules to govern sellers' conduct in the wholesale market:
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6. We also stated that any seller found to have engaged in the behavior prohibited by our rules would be subject to a disgorgement remedy and any other appropriate non-monetary remedies such as revocation of seller's market-based rate authority. We sought comments from interested entities concerning a number of issues, including the specific language embodied in the rules themselves, the overall balance of interests reflected in these rules, and the remedies and procedures that would be available to market participants with respect to their enforcement.
7. The June 26 Order was published in the
8. Comments generally supportive of the Commission's proposed rules were submitted by a broad majority of the entities who filed comments. Specifically, commenters generally concurred that establishing a clear set of market behavior standards governing sellers' conduct in the wholesale markets is necessary. There were disagreements voiced over the means to meet these objectives. For example, some argued that our proposed rules were a necessary but not a sufficient step forward in addressing the concerns outlined in the June 26 Order. These commenters submitted that in addition to our proposed rules, we should also consider a number of market design changes to bolster the overall competitiveness of the wholesale markets. Others (most notably sellers or entities representing their interests) asserted that our proposed rules would, if implemented, impose a heavy-handed, open-ended burden on sellers that would, without fine-tuning and clarification, chill investment in the industry. A number of revisions were proposed addressing these issues.
9. On July 28, 2003, Southern Company Services, Inc. (Southern) filed a request for rehearing of the June 26 Order concerning the Commission's asserted statutory authority to adopt its proposed rules.
10. We will grant intervention status to each of the entities listed in Appendix C to this order. In addition, we will dismiss Southern's request for rehearing. As we held in the June 26 Order and reiterate here, rehearing may not be sought in this case until such time as the Commission issues a final order,
11. The task before us in this proceeding is to determine how and to what extent market-based rate seller conduct in the wholesale markets should be monitored by the Commission and, when necessary, how and to what extent this conduct should be remedied. To this end, we concur with the consensus view conveyed in the comments we have received in response to our proposed rules, namely, that sellers, while accountable for their actions, need and deserve clearly-delineated rules governing their conduct so that both sellers, buyers, and other interested entities will know what is and what is not acceptable market behavior. We find market-based rate tariffs and authorizations that do not include such standards are unjust and unreasonable.
12. Our behavioral rules are designed to provide market participants adequate opportunity to detect, and the Commission to remedy, market abuses. Our behavioral rules are also clearly defined so that they do not create uncertainty, disrupt competitive commodity markets or simply prove ineffective. However, since competive markets are dynamic, it is important that we periodically evaluate the impact these rules have on the energy markets. We direct our office of Market Oversight and Investigation to evaluate the effectiveness and consequences of these behavioral rules on an annual basis and include this analysis in the State of the Markets Report.
13. In the June 26 Order, we noted that the integrity of an organized market and other markets as well require sellers to comply with the rules and regulations of the applicable power market. In Market Behavior Rule 1, therefore, we proposed to require that sellers operate and schedule generating facilities, undertake maintenance, declare outages, and commit or otherwise bid supply in a manner that complies with these rules and regulations. We stated that while market participants may become subject to additional requirements through tariff service agreements or other market participation agreements, a specific requirement in each seller's market-based rate tariff addressing unit operation issues would be necessary in order to give the Commission and interested parties direct remedial authority for violations that may not exist without such a condition.
14.Commenters argue that Market Behavior Rule 1, unless it is revised, could be relied upon by market operators to impose operating and maintenance standards that would require generators to violate permit restrictions or operate in an unsafe manner.
15. Commenters also assert that the “rules and regulations” to which the proposed rule refers should be limited to “Commission-approved” rules and regulations.
16. Pacific Gas and Electric Company (PG&E) submits that the term “applicable power market” also requires clarification, where there is more than one market and more than one set of rules which may apply. In addition, commenters take varying positions on the issue of whether the Commission's proposed prohibitions should apply to bilateral and forward markets.
17. Merrill Lynch Capital Services, Inc. and Morgan Stanley Capital Group Inc. (Merrrill Lynch,
18. We will approve Market Behavior Rule 1, subject to two revisions, as requested. First, we will revise the rule to clarify that the “rules and regulations” to which the rule refers apply only to “Commission-approved” rules and regulations. Second, we will revise the rule to clarify that the operation of this rule will not impose a must-offer requirement on sellers (although sellers may have such an obligation independent of this rule). As revised, Market Behavior Rule 1 will require market-based rates sellers to:
Operate and schedule generating facilities, undertake maintenance, declare outages, and commit or otherwise bid supply in a manner that complies with the Commission-approved rules and regulations of the applicable power market. Compliance with this Market Behavior Rule 1 does not require Seller to bid or supply electric energy or other electricity products unless such requirement is a part of a separate Commission-approved tariff or requirement applicable to Seller.
19. As we noted in the June 26 Order, Market Behavior Rule 1 will aid the Commission in ensuring that the rates, terms and conditions charged by market-based rate sellers remain just and reasonable by tying sellers' conduct with respect to their unit operations to the rules and regulations of the power markets in which they do business. Our rule will thus give the Commission direct remedial authority for violations that may not exist in certain cases absent such a rule.
20. Commenters assert and we agree, however, that the rules and regulations to which this rule refers should be limited to “Commission-approved” rules and regulations of the applicable power market. We agree that it would not be appropriate to require that a market-based rate seller be made subject to potential sanction for rules or regulations (
21. We will also revise Market Behavior Rule 1 to make clear that no “must offer” requirement will be imposed under this rule. As revised, the rule makes clear that “[c]ompliance with this Market Behavior Rule 1 does not require Seller to bid or supply electric energy or other electricity products unless such requirement is a part of a separate Commission-approved tariff or requirement applicable to Seller.” Unless the seller is subject to a must-offer requirement pursuant to the applicability of a Commission-approved tariff, or other specific Commission-approved obligation, then, the seller will not be subject to such a requirement under our rule.
22. We will reject commenters' proposed clarification that our rule apply only to market-based rate sellers who own physical generation assets. Sellers, whether they do or do not own generation, participate in markets, bid supply, and, in many cases, control generation resources through contract rights. We also clarify that to the degree physical withholding or economic withholding issues are the subject of an applicable power market's rules and regulations, sellers' compliance with such rules and regulations will satisfy the seller's obligations. Thus, unless concepts of physical or economic withholding are a component of a broader manipulative behavior, as addressed in Market Behavior Rule 2, discussed below, actions taken in accord with the Commission-approved
23. Finally, commenters raise concerns that Market Behavior Rule 1 could require unit operation in an unsafe manner or in a way that could violate environmental permit restrictions. However, we are not aware of any Commission-approved rule or regulation (and commenters cite to no rule or regulation) which would require sellers to operate their units in an unsafe manner or in violation of any environmental permit restrictions. Issues of this nature should be raised and addressed in the applicable power markets when and to the extent they may arise.
24. In the June 26 Order, we stated that our reliance on competitive markets to establish just and reasonable rates requires that we have the tools necessary to ensure that prices created in these markets continue to fall within a just and reasonable zone. We stated that the tools we have relied upon include non-discriminatory transmission access, an efficient and pro-competitive wholesale market platform, and effective market monitoring and enforcement. Accordingly, we proposed to prohibit activities that adversely affect competitive outcomes, by stating that “[a]ctions or transactions without a legitimate business purpose which manipulate or attempt to manipulate market prices for electric energy and/or electric energy products which do not reflect the legitimate forces of supply and demand, are prohibited.”
25. The Electricity Consumers Resource Council
26. Other commenters take issue with the market manipulation prohibition set forth in proposed Market Behavior Rule 2. First, commenters assert that a market manipulation prohibition should not be applied to bilateral markets. Mirant and TransAlta, for example, argue that there is no economic rationale for applying market manipulation rules outside the short-term spot markets for power, given the difficulty of exercising market power in forward markets directly or leveraging market power from short-term markets into the forward markets. APPA and TAPS take the opposite position, noting market power and manipulation risks arise not only in the spot markets, but in the bilateral markets as well.
27. Commenters also challenge the sufficiency of the term “legitimate business purpose” in distinguishing between prohibited and non-prohibited conduct and question whether and to what extent the Commission can fairly (and with adequate notice to sellers) identify such motives. InterGen North America, L.P. (InterGen) argues, therefore, that the term “legitimate business purpose” is fatally vague and that there are no recognized principles or accepted rules or standards in the industry that would assist market participants in understanding what is and what is not “legitimate.” InterGen notes, in this regard, that Webster's Disctionary defines the word “legitimate” as conforming to recognized principles or accepted rules and standards.
28. For others, the term “legitimate business purpose” is insufficient because it will allow sellers who should be sanctioned to justify their bad conduct. The National Association of State Utility Consumer Advocates (NASUCA) points out that this term, if approved, will invite market participants to try to excuse actions that are manipulative but that were undertaken to promote some imaginable business purpose.
29. Other commenters focus their concerns on the term “legitimate forces of supply and demand.” EPSA,
30. Numerous commenters also argue that as a means of limiting the proposed rule and better defining it, an intent standard must be adopted (a recommendation also made with respect to certain other Market Behavior Rules, as discussed below).
31. Reliant also argues that the term “electric energy products,” as used in the proposed rule, is undefined and
32. The New York State Public Service Commission (New York Commission) requests that the Commission clarify that sellers are bound by the actions or transactions of their affiliates, as they relate to this rule. The New York Commission states that absent this clarification, sellers would be permitted to sidestep this rule by way of affiliate gaming practices. The New York Commission concludes that if a seller's affiliate violates a Market Behavior Rule in a way that improperly raises market prices and the seller enters into long-term contracts that benefit from that price, the seller's contract should be governed by this rule just as if the contracts had been signed by the affiliate.
33. Commenters also express concerns regarding the general impact of the proposed rule on the marketplace as a whole. EPSA,
34. Finally, the Federal Trade Commission (FTC) argues that structurally competitive markets that foster ease of entry are critical to efficient pricing, output, and investment, and are more likely to protect consumers than would the proposed rule. The FTC also suggests that because there may be conflicts between antitrust law and the meaning of the terms used by the Commission in the proposed rule (
35. We will adopt the prohibition against market manipulation, as set forth in Market Behavior Rule 2, as revised. As revised, the rule provides:
Actions or transactions that are without a legitimate business purpose and that are intended to or foreseeably could manipulate market prices, market conditions, or market rules for electric energy or electricity products are prohibited. Actions or transactions undertaken by Seller that are explicitly contemplated in Commission-approved rules and regulations of an applicable power market (such as virtual supply or load bidding) or taken at the direction of an ISO or RTO are not in violation of this Market Behavior Rule.
36. Our rule, as revised, balances the need to provide sellers clearly-defined rules of the road while, at the same time, not impairing the Commission's ability to provide remedies for market abuses whose precise form and nature cannot be envisioned today. This objective is satisfied, here, by our reliance on a prohibition that is broad enough in its reach and yet clear enough in its focus to capture manipulative conduct in all its forms. Our rule, in essence, is designed to prohibit market-based rate sellers from taking actions which interfere with the prices that would otherwise be set by competitive forces, or from manipulating market conditions or market rules.
37. In doing so, we clarify that transactions with economic substance, in which a seller offers or provides service to a willing buyer and where value is exchanged for value, are not prohibited by our rule. While commenters question the usefulness of the term “legitimate business purpose,” in this context, we note that our reliance on this measure will ensure that sellers acting in a pro-competitive manner will have the opportunity to show that their actions were not designed to distort prices or otherwise manipulate the market. Behaviors and transactions with economic substance will thus be recognized as reflecting a legitimate business purpose consistent with just and reasonable rates.
38. However, an action or transaction which is anticompetitive (even though it may be undertaken to maximize seller's profits), could not have a legitimate business purpose attributed to it under our rule. If, for example, a seller is shown to have caused, or attempts to cause, an artificial shortage by physically withholding sufficient and otherwise available power from the market for the purpose of raising the sales price obtainable by other units participating in the market—the seller may be found to have engaged in market manipulation, as prescribed by Market Behavior Rule 2,
39. Our prohibition against market manipulation is not the only tool we intend to rely upon to ensure competitive markets.
40. As recommended by commenters, we will strike from our prohibition the proposed term that would have characterized, as manipulative behavior, an act resulting in “market prices which do not reflect the legitimate forces of supply and demand.” While we do not believe that our use of this term was inappropriate or unjustified (as we intended it), many commenters appear to have misunderstood its purpose, suggesting that other causes (
41. We will reject commenters' argument that Market Behavior Rule 2 should identify and prohibit only expressly-defined acts of manipulation. For all the reasons discussed above, it is essential and appropriate that we have a prohibition designed to prohibit all forms of manipulative conduct. In approving such a prohibition, moreover, we take the necessary safeguards, both procedural and substantive. Thus, in the event the Commission receives a complaint about a particular behavior or identifies such behavior on its own, we will inquire into all of the surrounding facts and circumstances to understand the purpose for which the behavior was undertaken and the intended or foreseeable outcome of the behavior.
42. As a threshold matter, the Commission will evaluate if the facts presented appear to warrant further inquiry into whether the transaction appears to be of a questionable purpose. For example, actions or transactions undertaken at the direction of an ISO or an RTO are not, by definition, market manipulation in violation of our rule. In determining whether an activity is in violation of our rule, we will evaluate whether the activity was designed to lead to (or could foreseeably lead to) a distorted price not reflective of a competitive market.
43. Our approach to the enforcement of our rules, then, will be based on a consideration of the facts and circumstances of the conduct at issue to determine its purpose and intended or foreseeable result. We recognize that manipulation of energy markets does not happen by accident. However, we also recognize that intent often must be inferred from the facts and circumstances presented. Therefore, a violation of Market Behavior Rule 2 must involve conduct which is intended to, or could foreseeably result in, distorted prices.
44. While we believe that this approach to identifying and remedying market manipulation is necessary, we also believe it is fair. We believe, for example, that sellers can recognize the difference between actions and strategies that are in furtherance of legitimate profit opportunities, or which serve important market functions, and those that result in prices that would not have been bid or paid in the absence of manipulation. We expect our enforcement and complaint procedures, as approved herein, will allow us to timely examine and fairly determine, on a case-by-case basis, when, and if, a strategy employed by a seller lacks a legitimate business purpose.
45. Moreover, while our rules will apply to all jurisdictional markets, we note these rules will not supersede or replace parties' rights under section 206 of the FPA to file a complaint contending that a contract should be revised by the Commission (pursuant to either the “just and reasonable” or “public interest” tests as required by the contract). Rather, any party seeking contract reformation or abrogation based on a violation of one or more of the Market Behavior Rules adopted herein would be required to demonstrate that such a violation had a direct nexus to contract formation and tainted contract formation itself. If a jurisdictional seller enters into a contract without engaging in behavior that violates its tariff with respect to the formation of such contract, we do not intend to entertain contract abrogation complaints predicated on our Market Behavior Rules.
46. In addition to the prohibition against market manipulation set forth in proposed Market Behavior Rule 2, we also proposed to prohibit wash trades as a specific transaction that would be prohibited under our proposed rule,
47. The New York ISO suggests that as an alternative to this express prohibition, the Commission should rely on the ISO (or RTO) market monitoring unit to craft and implement rules specifically tailored to address improper conduct if and as it arises.
48. NASUCA asserts that the proposed definition of “wash trade” is too narrow, allowing sellers to evade regulation by slightly altering their transactions as they relate to price or quantity. The California Electricity Oversight Board (Cal Oversight Board) agrees, noting that by contrast, the Commodity Exchange Act defines wash trades as transactions producing “a
49. Northeast Utilities argues that the proposed rule is too broad, prohibiting sellers from engaging in legitimate “sleeve” transactions and other legitimate transactions. EEI also asserts that the proposed rule could be applied to legitimate transactions in an unfair and unjustified way. EEI states, for example, that market participants sometimes engage in product swaps between different locations to avoid the need to use physical transmission and that these transactions are both useful and legitimate.
50. The New York ISO also identifies a transaction which it claims should not fall within the Market Behavior Rule 2(a) prohibition. The New York ISO states that when a market participant mistakenly buys instead of sells, or accidentally buys more energy or capacity than it needs, it may be required to close out of this erroneous position as quickly as possible. The New York ISO states that to do so, the market participant may wish to enter into an offsetting transaction, possibly with the same party or on the same trading platform. Such a transaction, the New York ISO contends, is legitimate and should not be prohibited.
51. To clarify what would and what would not constitute a prohibited wash trade, Merrill Lynch,
52. We will adopt Market Behavior Rule 2(a), as proposed, to address, as a prohibited action or transaction:
Pre-arranged offsetting trades of the same product among the same parties, which involve no economic risk and no net change in beneficial ownership (sometimes called “wash trades”).
53. As described in the Western Markets Report, market participants engaged in wash trading during the period 2000-01 and, as a result, distorted market liquidity as well as other indicators of market performance.
54. EEI requests clarification that an exchange of power undertaken to avoid the procurement of a transmission service would not be considered a wash trade under our rule. We will grant EEI's request for clarification. As we understand the issue raised by EEI, the subject transactions would either be at different prices, transfer beneficial ownership, or both. As such, the exchange could not be characterized as a wash trade as we define it.
55. Commenters identify additional transactions which would not meet our definition of a wash trade and therefore would not be prohibited under Market Behavior Rule 2(a). The New York ISO's identification of trades engaged in to correct a prior error, for example, would not constitute a prohibited wash trade under our rule, because trades such as these would not be “prearranged” to cancel each other out. In addition, each of the transactions described by the New York ISO
56. Other commenters concerns are also misplaced. We do not agree, for example, that a legitimate “sleeve” or “bookout” transaction could be characterized as a prohibited wash trade under our definition. Specifically, a sleeve is not an off-setting trade but rather a mechanism to accomplish a power sale among parties that have not established a credit relationship (involving in the transaction chain a third party seller that possesses the required creditworthiness).
57. In addition, while we agree with EEI, that it may be easier to undertake a wash trade that occurs at the same location, it may also be possible to engage in wash trades that involve more than one location. As such, we decline to revise our proposed rule as EEI requests.
58. Commenters also argue that Market Behavior Rule 2(a) should be revised to include an intent standard, suggesting in effect that a wash trade could be executed without intent (or without an understanding as to its consequence) and should be excused, in this instance. We disagree. Wash trades, by their very nature, are manipulative and purposely so. By definition, parties to a wash trade intend to create prearranged off-setting trades with no economic risk. Thus, we know of no legitimate business purpose attributable to such behavior and no commenter has suggested one. Accordingly, wash trades, under our rule, will constitute a
59. In addition to the prohibition against market manipulation set forth in proposed Market Behavior Rule 2, we also proposed, as a specific action or transaction that would be prohibited, “transactions predicated on submitting false information to transmission providers or other entities responsible for operation of the transmission grid (such as inaccurate load or generation data; scheduling non-firm service or products sold as firm; or conducting ‘paper trades’ where an entity falsely designates resources and fails to have those resources available and feasibly functioning).”
60. Commenters raise three principal concerns regarding the proposed rule: (i) Its failure to include an intent standard; (ii) its apparent prohibition against virtual trading practices already permitted in organized markets; and (iii) its reference to a practice,
61. First, commenters assert that an intent standard should be adopted in order to protect sellers from the imposition of sanctions relating to inadvertent or honest errors that were
62. Related to this same concern, Dynegy notes that due to forecasting errors, load forecasts and generation data are rarely 100 percent accurate. Dynegy further notes that sellers often face unknowable circumstances relating to the timing and duration of derates or outages. Given these and related contingencies, Dynegy seeks clarification that Market Behavior Rule 2(b) is not intended to supersede or otherwise nullify existing practices and/or market rules which allow for variation between forecasted and actual outcomes. Similarly, AES seeks clarification that the proposed prohibition does not apply to situations where submitted load data or generation data was incorrect due to the occurrence of a legitimate and verifiable contingency, or situations that occur in the normal course of business and are separately governed by terms and conditions of tariffs already on file with the Commission.
63. EEI also raises concerns regarding the interplay between the proposed rule and the existing practice known as virtual trading.
64. As discussed below, we will adopt Market Behavior Rule 2(b), subject to two revisions. As requested, we will adopt an intent standard applicable to our prohibition against the submission of false information to transmission providers or to other entities responsible for operation of the transmission grid,
Transactions predicated on submitting false information to transmission providers or other entities responsible for operation of the transmission grid (such as inaccurate load or generation data; or scheduling non-firm service or products sold as firm), unless Seller exercised due diligence to prevent such occurrences.
65. Commenters generally agree, as do we, that a Market Behavior Rule addressing market manipulation appropriately includes within its prohibitions the submission of false information to transmission providers or other entities responsible for operation of the transmission grid. As requested, however, we are approving this rule subject to the clarification that inadvertent or honest errors will not constitute a prohibited act under Market Behavior Rule 2. Rather, to be actionable under this rule, it must be shown that a seller has knowingly submitted false information.
66. This due diligence standard, however, will not be measured by the Commission with respect to the individual who actually tenders the data or who may otherwise be responsible for its submission. Rather, it will apply to the seller alone.
67. Dynegy requests clarification that Market Behavior Rule 2(b) is not intended to supersede existing market rules which allow for variation between forecasted and actual demand or generation availability. We will grant Dynegy's request. We recognize that where required, both buyers and sellers submit information to transmission providers or other entities responsible for operation of the transmission grid based on forecasts. We understand that these forecasts are not and cannot be entirely accurate. Market Behavior Rule 2(b), as approved herein, fully accommodates this reality by addressing the knowing submission of false information. Submitting information based on good faith estimates that turn out to be incorrect, then, would not be a case of knowingly submitting false information.
68. Commenters also express concern that Market Behavior Rule 2(b) could be read to prohibit Commission-approved activities such as virtual bidding. While we do not believe that virtual bidding is premised on the knowing submission of false information, we explained in the June 26 Order,
69. Finally, based on commenters' objections, we have omitted the example of “paper trade” from our non-exclusive, illustrative list of submittals subject to Market Behavior Rule 2(b). We agree with Duke that because the term “paper trade” has no common meaning in the industry, at this time, using such an example to clarify the scope and reach of Market Behavior Rule 2(b) would not be beneficial.
70. In addition to the prohibition against market manipulation set forth in proposed Market Behavior Rule 2, we also proposed, as a specific action or transaction that would be prohibited, “transactions in which an entity first creates artificial congestion and then ‘relieves’ such artificial congestion.”
71. Colorado Consumer Counsel,
72. Reliant asserts that the Commission's apparent focus in Market Behavior Rule 2(c) is on market designs like those in California that do not use locational marginal pricing (LMP) as a tool to manage congestion. Reliant states that, if so, the Commission should clarify that its rule does not apply in LMP markets. EEI also questions the need and scope of the rule, noting that any transaction that would create “artificial congestion” would necessarily involve the submission of false information, as encompassed within the prohibition set forth in Market Behavior Rule 2(b). EEI and Pinnacle West also argue that the prohibition set forth in the rule should not apply to transactions that are consistent with an RTO's or an ISO's rules.
73. Reliant and EEI request that the Commission define what it means by “artificial congestion” because, in theory, this term could be construed to apply to (and thus be a sanction against) virtual transactions. Pinnacle West also requests clarification regarding the meaning of this term in this context.
74. The New York ISO also claims that Market Behavior Rule 2(c) requires clarification with respect to the day-ahead and real-time markets it operates. Specifically, the New York ISO claims that the proposed rule could be interpreted to prohibit changes in day-ahead schedules in response to changes in market conditions between the day-ahead and real-time markets,
75. Commenters also assert that Market Behavior Rule 2(c) should be modified to incorporate an intent standard.
76. We will adopt Market Behavior Rule 2(c), subject to the inclusion of an intent standard, as requested by commenters. As revised, Market Behavior Rule 2(c) will address, as a prohibited transaction:
Transactions in which an entity creates artificial congestion and then purports to relieve such artificial congestion (unless Seller exercised due diligence to prevent such an occurrence).
77. Commenters generally agree, as do we, that a Market Behavior Rule addressing market manipulation should include as an express prohibition transactions predicated on the creation and subsequent “relief” of artificial congestion. Experience has shown that in certain markets (including, in particular, markets that have not adopted an LMP market design) activities of this nature have been undertaken for the purpose of generating revenue without the occurrence of any corresponding economically substantive transaction.
78. We agree with commenters, however, that Market Behavior Rule 2(c) should be revised to include an intent standard,
Moreover, we will find that the seller has knowingly violated this rule where the prohibited conduct is found to have occurred in the absence of adequate internal procedures designed to prohibit its occurrence.
79. Commenters also request clarification regarding the scope and definition of the term artificial congestion, as it will be interpreted by the Commission in the context of our rule. We will grant these requests and hereby clarify that artificial congestion, under our rule, will be understood to include all forms of congestion that may result from scheduling power flows in an uneconomic manner for the purpose of creating congestion (real or perceived).
80. Finally, the New York ISO seeks clarification that the prohibition set forth in Market Behavior Rule 2(c) is not intended to be applied in those cases where a market participant may be legitimately responding to changing circumstances relative to the day-ahead and real time markets. The New York ISO points out that from time-to-time, there may be a level of congestion in the day-ahead markets that is not present in real-time markets because market participants can respond to changing conditions. The New York ISO requests clarification that such real time responses to congestion that were anticipated in the day-ahead markets will not be prohibited under our rule. We will grant the requested clarification. The market responses addressed by the New York ISO reflect appropriate behavior which is reactive to the price signals emanating from the LMP congestion management system. Market conduct of this sort will not be characterized as a prohibited act under our rule.
81. In addition to the prohibition against market manipulation set forth in proposed Market Behavior Rule 2, we proposed, as a specific action or transaction that would be prohibited, “collusion with another party for the purpose of creating market prices at levels differing from those set by market forces.”
82. Commenters generally support a market behavior rule directed towards non-competitive collusive acts or transactions, but argue that Market Behavior Rule 2(d) should include language (and should be interpreted) consistent with federal antitrust laws and thus
83. The New York ISO also points out that Market Behavior Rule 2(d), in its proposed form, varies with federal antitrust laws in a way that it should not. Specifically, the New York ISO asserts that the term “for the purpose of creating market prices,” as used in the proposed rule, suggests a reliance on an intent standard contrary to the accepted antitrust approach to collusion. In addition, the New York ISO argues that the proposed rule's focus on prices to the exclusion of non-price considerations is also inconsistent with federal antitrust law. Finally, the New York ISO suggests that the term “market forces,” as used in the proposed rule, departs from the antitrust term “competition” and the focus of the antitrust laws on the “unreasonable restraint of competition.”
84. The FTC also addresses these issues. The FTC points out that some seller conduct could violate both the antitrust laws and Market Behavior Rule 2, while other conduct could violate the Commission's rule (because it may be unjust and unreasonable) but not the antitrust laws. The FTC submits that to avoid potential conflicts in policing anti-competitive behavior, the Commission should reaffirm its general rule that sellers with market-based rate authority are prohibited from engaging in conduct that would violate the antitrust laws.
85. We will adopt Market Behavior Rule 2(d), as revised, to prohibit Sellers from engaging in:
Collusion with another party for the purpose of manipulating market prices, market conditions, or market rules for electric energy or electricity products.
86. To avoid possible confusion regarding the interpretation and scope of the term proposed in the June 26 Order (concerning “market prices [set] at levels differing from those set by market forces), we are replacing this term with language consistent our prohibition (“manipulating market prices, market conditions, or market rules for electric energy or electricity products”). Thus, we are prohibiting market manipulation undertaken by one seller acting alone and we are prohibiting market manipulation undertaken collectively.
87. As noted above, commenters, while disagreeing over the scope of our rule, generally agree that a specific market manipulation prohibition addressing collusive acts is both appropriate and necessary. EEI, for example, states that it agrees with the underlying concept embodied in the rule, while Duke concludes that the Commission's rule legitimately targets collusive activity. EPSA, moreover, as part of its code of ethics and sound trading practices, has adopted a similar standard.
88. EEI, however, suggests that our prohibition should simply incorporate by reference existing federal antitrust law and its jurisprudence, while EPSA,
89. We disagree with these assertions. While commenters are correct in their observation that the prohibition set forth in Market Behavior Rule 2(d), as applied, may be similar in certain respects to the prohibitions set forth in federal antitrust law, specifically to the prohibitions against unreasonable restraints of trade as set forth in the Sherman Anti-Trust Act,
90. Thus, we need not address, here, whether or to what extent federal antitrust law may be broader in scope, in certain instances, or more narrow in scope, in other cases. Federal antitrust law, rather, will apply to sellers in the judicial proceedings or other authorized settings in which it is found to apply. Our rule, on the other hand, will be governed by the unique facts and circumstances at play in the wholesale electric industry and will be interpreted by the Commission consistent with our statutory duties relating to these issues.
91. We also disagree that the Commission's standard is vague and overbroad and thus will not give sellers adequate notice of the conduct it requires or prohibits. While we address commenters' due process challenges in greater detail in Section N, below, we note here, with respect to Market Behavior Rule 2(d) in particular, that our rule merely expands upon the prohibition against market manipulation set forth in Market Behavior Rule 2. As discussed above, moreover, this prohibition is limited to actions or transactions that do not have a legitimate business purpose. As such, a seller cannot be found to have violated the prohibition set forth in Market Behavior Rule 2(d) where the conduct at issue (as known to the seller itself, in the first instance) has a legitimate business purpose. This limitation, we believe, puts sellers on adequate notice regarding the scope of our rule.
92. Finally, we do not agree that the industry lacks an understanding regarding the meaning of the terms referred to in our rule. These terms, rather, have more than a mere
93. In addition to the prohibition against market manipulation, as set forth in proposed Market Behavior Rule 2, we also proposed, as a specific action or transaction that would be prohibited, “bidding the output of or misrepresenting the operational capabilities of generation facilities in a manner which raises market prices by withholding available supply from the market.”
94. Commenters challenge Market Behavior Rule 2(e) on a number of grounds. As a legal matter, EEI and others assert that the proposed rule is vague and overbroad, thus failing to provide market participants with sufficient notice of the conduct it would require or prohibit.
95. Commenters also argue that the rule, if implemented, should adopt an intent standard, among other revisions. Reliant argues that inadvertent misrepresentations should not be considered violations of the rule and should not subject a seller to the same penalties that would attach to intentional violations. FirstEnergy adds that a seller should not be penalized for the types of action prohibited by the rule absent a showing that the actions at issue were intended to raise market prices above competitive levels.
96. Commenters also address whether and to what extent the proposed rule should define and more squarely address the concepts of physical withholding and economic withholding on an industry-wide basis.
97. Commenters also raise a number of concerns regarding the definition and scope of the term economic withholding, as it might be applied by the Commission under its proposed Market Behavior Rule 2(e) standard. The New York ISO asserts that any prohibition on withholding supply from the market should not be triggered by the inclusion of legitimate opportunity costs in a unit's bid. Reliant, on the other hand, asserts that defining what would and what would not constitute withholding under the proposed rule is virtually undoable.
98. Finally, EEI asserts that because Market Behavior Rule 1 and Market Behavior Rule 2(b) require sellers to operate their generation units consistent with RTO and ISO rules and prohibit the submission of false information, Market Behavior Rule 2(e) is redundant and unnecessary. The New York ISO claims that the prohibitions contemplated by the rule could be implemented by existing market mitigation measures approved by the Commission.
99. We agree with commenters that Market Behavior Rule 2(e) is redundant and unnecessary and therefore will not adopt it. For the reasons discussed below, we find that Market Behavior Rule 1 sufficiently addresses the concerns we intended to address in proposing the express prohibition embodied in Market Behavior Rule 2(e).
100. Several commenters appear to have misread the intent of our proposed rule. They suggest that, if implemented, the proposed rule would have imposed a must-offer condition in markets in which such a requirement is not currently in effect. However, we did not intend to create this or any other new substantive obligation applicable to sellers,
101. Because our proposed rule related to “bidding” into organized markets and to misrepresentations concerning the “operational capabilities of generation facilities,” commenters are correct that the requirements addressed by our proposed rule were necessarily tied to the existing requirements of the applicable power markets in which sellers operate and thus were already addressed by the unit operation requirements addressed in Market Behavior Rule 1. Given this overlap,
102. In reaching this conclusion, however, we are not finding that physical withholding,
103. In the June 26 Order, we proposed that sellers be required to “provide complete, accurate, and factual information, and not submit false or misleading information, or omit material information, in any communication with the Commission, market monitors, [RTOs, ISOs], or similar entities.” We sought comment on whether this proposed rule would be sufficient in its scope and breadth to cover any and all matters relevant to wholesale markets, including maintenance and outage data, bid data, price and transaction information, and load and resource data. In addition, we sought comment on whether this remedial authority would serve as a useful and appropriate tool in ensuring just and reasonable rates.
104. Commenters argue that the proposed rule should only prohibit violations knowingly committed.
105. Commenters also favor limitation of the proposed rule to “Commission-approved entities” and thus the deletion of the proposed term “or similar entities.”
106. We will adopt Market Behavior Rule 3, as revised. As revised, Market Behavior Rule 3 will require a market-based rate seller to:
Provide accurate and factual information and not submit false or misleading information, or omit material information in any communication with the Commission, Commission-approved market monitors, Commission-approved regional transmission organizations, Commission-approved independent system operators or jurisdictional transmission providers, unless Seller exercised due diligence to prevent such occurrences.
107. In adopting this rule, we are emphasizing the need for market-based rate sellers to act honestly and in good faith when interacting with the Commission or organizations and entities tasked by the Commission with the responsibility of carrying out non-discriminatory transmission access and wholesale electric market administration. The integrity of the processes established by the Commission for open competitive markets rely on the openness and honesty of market participant communications.
108. We have modified the proposed rule, however, to make clear that it will only apply to communications with the Commission and entities subject to its jurisdiction. We believe that such clarification is appropriate to assure sellers that the information sought or provided hereunder will be directly related to the wholesale transactions for which they have received market-based rate authority.
109. In addition, we clarify that this rule will not be a basis for a jurisdictional entity requesting or receiving information covered by this rule to compel the provision of such information or to fail to provide requested confidential treatment. The ability to compel the provision of information requested and determinations with respect to requests for confidential treatment will depend on the Commission-approved rules and regulations of the institution requesting or receiving the information.
110. We have also revised the rule to assure that inadvertent submission of inaccurate or incomplete information will not be sanctioned. As revised, the rule prohibits the knowing submission of false or misleading data.
111. In the June 26 Order, we applied the prohibition against false reporting, as set forth in proposed Market Behavior Rule 3, to the reporting of price data to publishers of electricity or natural gas price indices. We proposed that to the extent sellers engage in reporting of transactions to publishers of electricity or natural gas price indices, sellers will be required to provide complete, accurate and factual information to any such publisher. We further proposed that sellers would be required to notify the Commission of whether they engage in such reporting for all sales and that in addition, sellers would be required to adhere to such other standards and requirements for price reporting as the Commission may order.
112. We noted that Staff, in the Western Markets Report, supported the inclusion of such a requirement in sellers' market-based rate tariffs and authorizations.
113. Issues raised by commenters with respect to the proposed rule generally mirror the concerns discussed above relating to Market Behavior Rule 3. These concerns include, principally, (i) the absence of an intent standard;
114. With respect to scope, Platts submits that if the Commission does require sellers to state whether they report “all sales” to publishers, the Commission should further specify the information it expects to be provided. Platts argues that sellers should be required in their notification to state whether they are reporting their prices for electricity transactions, gas transactions or both, and to state to which publications they are reporting prices. Platts adds that sellers should be required to state that the information they provide to publishers includes all of the company's trading at all North American trading points, not merely a complete set of data for those points at which a seller chooses to report data.
115. The Intercontinental Exchange, Inc. (Intercontinental) argues that since there are only a small number of index publishers relative to the hundreds of sellers, the Commission should compel index publishers to reveal the number of sellers reporting transaction-level data and the number of transactions reported for each index at each hub on a daily (for day-ahead indices) and monthly (for month-ahead indices) basis. Finally, NASUCA and TDU Systems argue that Market Behavior Rule 4 should require mandatory reporting in order to restore liquidity and confidence to electricity and natural gas markets. NASUCA submits that this requirement should apply to all purchases as well as sales.
116. We will adopt Market Behavior Rule 4, as revised. As revised, Market Behavior Rule 4 will require that a market-based rate seller comply with the following:
To the extent Seller engages in reporting of transactions to publishers of electricity or natural gas indices, Seller shall provide accurate and factual information, and not knowingly submit false or misleading information or omit material information to any such publisher, by reporting its transactions in a manner consistent with the procedures set forth in the Policy Statement issued by the Commission in Docket No. PL03-3 and any clarifications thereto. Seller shall notify the Commission within 15 days of the effective date of this tariff provision of whether it engages in such reporting of its transactions and update the Commission within 15 days of any subsequent change to its transaction reporting status. In addition, Seller shall adhere to such other standards and requirements for price reporting as the Commission may order.
117. In the June 26 Order, we referred to our on-going proceeding investigating price index formation in Docket No. AD03-7-000. As commenters note, since our proposal regarding these rules was issued, we have issued a Policy Statement addressing standards we believe appropriate for the formation of price indices that will be robust and accurate in the context of a voluntary reporting regime.
118. In our rule, as revised herein, we explicitly adopt the standards set forth in the Policy Statement for transaction reporting. Further, we also adopt the “safe harbor” set forth therein as a component of our enforcement policy with respect to this rule. In addition, we make clear that all sellers will be required to inform the Commission of their “reporting status” within 15 days of the effective date of this revision to their tariff and within 15 days of any subsequent change in reporting status.
119. Finally, several commenters suggest that we require mandatory reporting, while other commenters contend that we have created requirements that will have a chilling effect on reporting. We believe that we have struck an appropriate balance in our rule. For the moment, we are attempting to work within the framework of voluntary reporting. We are awaiting Staff's review of the comprehensiveness of reporting in the wake of our Policy Statement. At this time, we are not mandating reporting. We have engaged in a comprehensive investigation of transaction reporting and related issues and believe the practices set forth in our Policy Statement represent the necessary minimum for those entities that choose to report. Accordingly, we will not require reporting, here, but will set forth practical standards for entities that do report.
120. In the June 26 Order, we noted that in the Western Markets Report, Staff recommended that all electric market-based rate tariffs and authorizations be expressly conditioned to require sellers to retain data and information needed to reconstruct a published price index for a period of three years.
121. Commenters generally agree that a data retention requirement of some kind should be imposed on market-based rate sellers, but disagree over the number of years over which this requirement should apply. Some argue that the data retention period should be reduced from the proposed three-year period to a two-year or even one-year requirement,
122. Commenters also raise concerns regarding the scope and specificity of the proposed requirement. EEI, Dynegy and MidAmerican, for example, argue that the language in the rule is too vague, while Exelon submits that the proposed rule would arguably require a seller to retain virtually every piece of paper it generates. These and other commenters conclude that without a more narrow, clearly articulated requirement, the proposed rule could be burdensome and costly.
123. We will adopt Market Behavior Rule 5, as revised. As revised, Market Behavior Rule 5 will require a market-based rate seller to:
Retain for a period of three years, all data and information upon which it billed the prices it charged for the electric energy or electric energy products it sold pursuant to this tariff or the prices it reported for use in price indices.
124. In revising this rule, we clarify that we are not seeking retention of “cost-of service” or analytical data related to all sales, as some commenters perceived from our use of the word “reconstruction” in our original proposal. Rather, we are requiring that sellers retain the complete set of contractual and related documentation upon which they billed their customers for their sales. The sales contemplated are sales made pursuant to the seller's market-based rate tariff. The Commission is indifferent as to whether this material is retained in paper form or in an electronic medium as long as the data can be made accessible in a reasonable fashion if its review is required by the Commission or its Staff.
125. In addition, commenters suggest that the length of the retention period may be burdensome. On balance, however, requiring sellers to retain records for the period proposed,
126. In the June 26 Order, we noted that in the Western Markets Report, Staff had found that sellers had failed to abide by their market-based rate codes of conduct
127. Notwithstanding the discussion which accompanied our proposed rule, commenters suggest that the language set forth in Market Behavior Rule 6, as proposed, could be construed to apply to codes of conduct other than sellers' market-based rate codes of conduct. Accordingly, commenters seek clarification that the codes of conduct to which Market Behavior Rule 6 refers are the codes of conduct contained in sellers' market-based rate schedules. EEI also challenges the proposed rule as being too heavy-handed, permitting the Commission, in theory, to revoke a seller's market-based rate authority for any code of conduct or standards of conduct violation, no matter how small or insignificant the infraction (
128. We will adopt Market Behavior Rule 6, as revised. As revised, Market Behavior Rule 6 will require that a market-based rate seller:
Not violate or collude with another party in actions that violate Seller's market-based rate code of conduct or Order No. 889 standards of conduct, as they may be revised from time to time.
129. Market Behavior Rule 6 is designed to emphasize our commitment to make certain that entities adhere to our electric power sales code of conduct and Order No. 889 standards of conduct. In response to commenter concerns, we have revised this rule to add clarity. In revising this rule, we clarify that this rule applies to a seller's electric power sales code of conduct contained in a Seller's market-based rate tariff or rate schedule as well as seller's Order No. 889 standards of conduct. We intend that any violation of this provision will subject the seller and its affiliates to disgorgement of unjust profits, as applicable, or other remedies as the Commission may find appropriate.
130. We further clarify that, in adopting this rule, it is not the Commission's intention to order disgorgement of unjust profits or other remedies for inadvertent errors (such as incorrectly posting a job description). However, the Commission is concerned with all violations and, in particular, those violations which involve affiliate sales and preferential treatment, including access to transmission information or service.
131. In the June 26 Order, we noted that the prohibitions set forth in our proposed Market Behavior Rules represented only one of the tools available to the Commission to ensure just and reasonable rates and that in undertaking our enforcement decisions, we would focus on the best outcome for assuring just and reasonable rates in our jurisdictional markets. We stated that in some instances, significant remedial action may be warranted, while in other instances, we may use a specific set of facts and circumstances to clarify our requirements for acceptable public utility activities. We noted that in formulating our proposed rules, we were required to balance a number of competing interests. We sought comments from interested entities on whether our proposed rules struck the appropriate balance.
132. A number of commenters assert, in effect, that the Commission's proposed Market Behavior Rules fail to strike the necessary balance of interests, given the Commission's asserted failure to address various additional issues.
133. El Paso Electric Company (El Paso), for example, states that June 26 Order failed to examine or otherwise provide any understanding on a number of important threshold questions underlying the Commission's stated objectives in this proceeding. Specifically, El Paso asserts that the Commission is attempting to articulate Market Behavior Rules without a full understanding of what constitutes a market, what dynamics foster a competitive market, and what kinds of behavior are beneficial or harmful.
134. The FTC points out that structurally competitive markets are generally the best remedy against anticompetitive behavior and that, as such, the Commission should give high priority to achieving structurally competitive markets while it pursues interim measures, if any, to address Market Behavior Rule violations. Similarly, EPSA,
135. In addition, commenters assert that the Market Behavior Rules should apply to all market participants, including transmission owners and load serving entities (LSEs). AE Supply argues that buyers who manipulate markets to depress prices should be subject to complaints by sellers to recover appropriate surcharges. EEI notes that this could be accomplished by including the Market Behavior Rules in the tariffs administered by all RTOs, ISOs, and the Western Systems Power Pool.
136. APPA, TAPS, and TDU Systems propose that the Commission broaden the scope of its undertaking in this proceeding by addressing structural market issues. APPA and TAPS propose as additional rules, a requirement imposing long-term sales obligations for the benefit of LSEs, a requirement for capacity auctions to de-concentrate generation, and additional rules providing for greater access to transmission and the relief of existing transmission constraints. TDU Systems recommends that the Commission take action on its proposed supply reassessment screen to provide an up-front measure of a seller's potential market power.
137. We share the views of those commenters who assert that the Commission's proposed Market Behavior Rules, taken alone, will not be adequate to ensure that the rates, terms and conditions offered by market-based rate sellers will be just and reasonable. We also agree with EPSA,
138. As we have recognized in the past, however, even in a structurally competitive market, individual sellers may have the ability to exercise market power. Individual sellers may have the ability to engage in market manipulation or other deceptive practices. Thus, it is appropriate that the Commission delineate well-defined rules of the road applicable to market-based rate sellers. Where these rules are violated, it is appropriate that the Commission provide a remedy for such conduct. It is important that such conduct be deterred to the extent possible.
139. In the June 26 Order, we indicated that in complaint proceedings brought before the Commission to enforce our proposed Market Behavior Rules, the principal remedy available to complainants for any Market Behavior Ruleviolation shown to have occurred (in addition to the potential revocation of the seller's market-based rate authority) would be the disgorgement of the seller's unjust profits attributable to the specific violation at issue.
140. In addition, we proposed to limit the applicability of potential disgorgement of unjust profits exposure by requiring that any violation alleged by a market participant be made on a transaction-specific basis and that any market participant request for disgorgement relief be made no later than 60 days after the end of the calendar quarter in which the violation is alleged to have occurred. We proposed that if a market participant can show that it did not know and should not have known of the behavior which forms the basis for its complaint within the period prescribed in our proposal, then the 60-day period would be deemed to run from the time when the market participant knew or should have known of the behavior. Finally, we proposed that these time limitations not apply to enforcement actions undertaken by the Commission.
141. EEI rejects the remedial approach set forth by the Commission in the June 26 Order. EEI asserts that to avoid regulatory uncertainty, the Commission should only pursue remedies on a prospective basis after the Commission identifies new market problems and/or the need for new market rules.
142. Numerous comments (both pro and con) were received regarding the specific financial remedy proposed by the Commission,
143. Commenters also stake out a number of different positions regarding the Commission's proposed 60-day complaint limitation rule. EPSA,
144. Commenters also address the Commission's statement in the June 26 Order that it would not be bound by the 60-day complaint limitation requirement applicable to market participant complaints. On the one hand, the Louisiana Commission asserts that this 60-day complaint exemption is appropriate and that it should also apply to state regulators. On the other hand, EPSA,
145. Commenters seek a number of clarifications regarding the Commission's role in enforcing its Market Behavior Rules. EPSA,
146. We will adopt the remedies and complaint procedures outlined in the June 26 Order, as revised (
147. Upon consideration of the comments received concerning our 60-day proposal, in the Commission's view the 60-day time period may be insufficient time for parties to discover and act upon violations of these rules. Accordingly, the Commission will modify its original proposal to allow 90 days from the end of the quarter from which a violation occurred for a party to bring a complaint based on these rules. A 90-day time period provides a reasonable balance between encouraging due diligence in protecting one's rights, discouraging stale claims, and encouraging finality in transactions. Furthermore, the Commission clarifies that its exception regarding the time period applicable to the filing of a complaint, where the complainant could not have known of the alleged violation, incorporates a reasonableness standard,
148. We will also place a time limitation on Commission enforcement action for potential violations of these Market Behavior Rules. The Commission, unlike the market participants who may be buyers or otherwise directly affected by a transaction, may not be aware of actions or transactions that potentially may violate our rules. Thus, the Commission will act within 90 days from the date it knew of an alleged violation of its Market Behavior Rules or knew of the potentially manipulative character of an action or transaction. Commission action in this context means a Commission order or the initiation of a preliminary investigation by Commission Staff pursuant to 18 CFR part 1b. If the Commission does not act within this time period, the seller will not be exposed to potential liability regarding the subject transaction. Knowledge on the part of the Commission will take the form of a call to our Hotline alleging inappropriate behavior or communication with our enforcement Staff.
149. We will not adopt commenters' additional proposed revisions and arguments. First, we reject EEI's argument that the disgorgement remedy proposed in the June 26 Order is inappropriate, because, EEI asserts, it will retroactively or retrospectively declare actions to be market abuses when such actions were not envisioned when the rules were promulgated. In fact, EEI's premise is mistaken. Our Market Behavior Rules establish clear advance guidelines to govern market participant conduct. Moreover, in approving these Market Behavior Rules and requiring sellers to be fully accountable for any unjust gains attributable to their violation, we do not foreclose our reliance on existing procedures or other remedial tools, as may be necessary, including generic rule changes or the approval of new market rules applicable to specific
150. We also reject commenters' assertions that a disgorgement remedy may be difficult to calculate in a particular case, or may operate as a chill on the market in other circumstances. The concerns raised by commenters, in this regard, are speculative at best. Moreover, any such concerns can be fairly evaluated by the Commission on a case-by-case basis, with a full opportunity for input from all interested parties. Thus, we need not reject a disgorgement remedy in all cases simply because it may be inappropriate to apply (and need not be imposed) in a specific case. For the reasons discussed below (
151. We also reject commenters' assertions that, in enforcing our Market Behavior Rules, the Commission should consider a make-the-market-whole remedy. In fact, the remedies outlined by the Commission in the June 26 Order, including the possible revocation of Sellers' market-based rate authority, will provide a sufficient inducement for sellers to comply with our rules. Our primary focus, in this regard, is on encouraging appropriate market behavior and deterring inappropriate market behavior.
152. Finally, we will reject the proposal made by Mirant and TransAlta that the triggering event applicable to market participant complaints be the date on which the transaction was entered into, absent fraud or willful withholding of material information on the part of the seller. We will not limit market participant complaints in this way. First, the Commission's Market Behavior Rules address both actions and transactions and thus cannot be limited to dates applicable to transactions alone. For example, the declaration of an outage, as addressed by Market Behavior Rule 1, could be an action that does not necessarily involve a transaction.
153. In the June 26 Order, we concluded that section 206 of the FPA would not bar the Commission from either approving or enforcing our proposed Market Behavior Rules.
154. We also found that the refund limitations of section 206(b) would not bar the Commission from enforcing our proposed Market Behavior Rules. We found that any remedies stemming from a violation of our proposed tariff provisions would be based on the tariff conditions themselves, as approved herein, and that we were fully authorized to take actions and impose remedies when tariffs are violated.
155. A number of commenters continue to challenge the Commission's authority to promulgate and/or enforce its proposed Market Behavior Rules, given the asserted limitations of Section 206 of the FPA.
156. In addition, commenters also challenge one or more of the Commission's proposed Market Behavior Rules on due process grounds.
157. AE Supply points to two Commission cases in which the Commission required the proposed tariff provisions at issue to impose a more clear and specific obligation and suggests that applying this same degree of specificity here, the Commission's proposed rules do not pass muster. AE Supply states that in
158. For the reasons discussed below, we find that: (i) the Commission is not barred by section 206 of the FPA from approving Market Behavior Rules applicable to market-based rate sellers, or allowing as a remedy the disgorgement of unjust profits and other remedies, as discussed herein; and (ii) these Market Behavior Rules are not unduly vague or overbroad.
159. First, we reject the suggestion that the potential financial consequences for sellers found to be in violation of the Commission's Market Behavior Rules would violate the refund limitations set forth in section 206(b) of the FPA.
160. Our Market Behavior Rules will operate as conditions to the grant of market-based rate authority and the Commission, in such a case, has broad authority to impose conditions that will help ensure that rates are within a zone of reasonableness. We held in the June 26 Order and reiterate here that the approval of Market Behavior Rules, under these circumstances, and any future remedies imposed for their violation, would neither violate the filed rate doctrine nor the refund limitations of section 206(b).
161. Further, the Commission has the authority to impose the appropriate remedy where it finds that violations of its Market Behavior Rules have occurred.
162. In addition, this order is based upon the Commission's finding after hearing that existing tariffs are unjust and unreasonable under section 206 of the FPA. In a proceeding brought pursuant to these rules, the issue would be whether the entity has violated its tariff. Therefore, in a remedial proceeding brought pursuant to these rules, unlike an FPA section 206 investigation initiated by the Commission, the regulated entity has notice of the conditions required for service at the time of the implementation of the service conditions and the Commission may, at its discretion, fashion an appropriate remedy.
163. In addition, we find that our Market Behavior Rules, including specifically the prohibitions set forth in Market Behavior Rule 2 (relating to market manipulation), are not unduly vague on their face.
164. As applied by the courts, this due process standard has been held to allow for flexibility in the wording of an agency's rules and for a reasonable breadth in their construction.
165. The Supreme Court has further noted that the degree of vagueness tolerated by the Constitution, as well as the relative importance of fair notice and fair enforcement, depend in part on the nature of the rules at issue.
166. Applying these standards here, we find that our Market Behavior Rules satisfy the requirement of due process. Market Behavior Rule 1, for example, gives sellers “ascertainable certainty” that in operating and scheduling their generation facilities, undertaking maintenance, declaring outages, and committing or otherwise bidding supply, they must do so in a manner that “complies with the Commission-approved rules and regulations of the applicable power market.” There can be no reasonable uncertainty, in this regard, as to what these broadly-practiced, generally-understood activities encompass in the wholesale electric utility industry (
167. Similarly, we cannot agree that the prohibitions against market manipulation, as set forth in Market Behavior Rule 2, are unclear in their requirement. It should be noted, in this regard, that our requirement that seller's actions or transactions have a “legitimate business purpose” is intended to give sellers an opportunity to explain their actions, while still safeguarding market participants against market manipulation for which there can be no legitimate business purpose attached. Sellers will not be required to guess at the meaning of this term, as applied, then, because the term can only have meaning with specific reference to a seller's own business practices and motives,
168. Moreover, as fully discussed in the June 26 Order and reiterated above, there is an important justification underlying our prohibition against market manipulation. We must be able to protect market participants against abuses whose precise form and nature cannot be envisioned today. As we have previously stated, in establishing these rules, we have worked to strike a necessary balance. We have attempted to set forth with sufficient specificity the class of behaviors we intend to prohibit and to do so in a manner that will inform market-based rate sellers of the type of activities that are consistent with just and reasonable rates. At the same time, we have also attempted to maintain our ability to address particular activities and situations that cannot be envisioned today. Our Market Behavior Rules, we have said, are designed to codify our requirements and provide a regulatory vehicle for their enforcement going forward.
169. The Commission would not be able to fulfill its statutory responsibilities, however, if it established rules addressing future activities based only on the specificity of the past. While we have provided clarity and specificity, where possible, with respect to our experience with past market conduct, we must also establish general rules to prohibit a class of behavior going forward if we are to adequately protect customers to ensure that rates are the product of competitive forces (and thus are just and reasonable). Thus, our Market Behavior Rules have been designed to meet these twin objectives—to be specific in order to inform sellers as to the type of behavior that is prohibited today, while containing enough breadth and flexibility to address new and unanticipated activities, as they may arise in the future.
170. In sum, we believe our Market Behavior Rules, as modified, explained and approved herein, put sellers and all market participants on fair notice regarding the conduct we seek to encourage and the conduct we seek to prohibit. Stripped to their essentials, these guidelines amount to the following: (i) Act consistently within the Commission's established rules; (ii) do not manipulate or attempt to manipulate power markets; (iii) be honest and forthright with the Commission and the institutions it has established to implement open-access transmission and entities publishing indices for the purpose of price transparency; and (iv) retain associated records. Viewed in this context, there can be no reasonable uncertainty over the underlying objectives embodied in our rules or their requirements going forward.
171. Nonetheless, we are committed to making our Market Behavior Rules as specific as they possibly can be and thus, as discussed above, we are adopting a number of the revisions proposed by commenters in order to better focus and fine-tune the scope and application of our rules.
172. With respect to Market Behavior Rule 2, we have clarified that the rule applies to actions without a legitimate business purpose which are undertaken for the purpose of manipulation of wholesale power markets or prices and that actions which are explicitly contemplated in Commission approved processes such as virtual load or supply bidding are not considered manipulation.
173. We have also revised the language of Market Behavior Rules 3 and 4 to assure that inadvertent factual errors in communications will not be sanctionable under our rules and, with respect to Market Behavior Rule 3, that only the Commission and entities relied upon by the Commission to implement open access transmission are the entities triggering seller's factual reporting obligations. We have also revised Market Behavior Rule 5 to make clear that we are not requiring “cost-based” or other data but rather the data upon which the seller based its market-based
174. In sum, we have carefully considered our proposal and the comments we have received in light of our obligation to assure that wholesale power rates are just and reasonable and that sellers subject to our regulation are fairly apprised of their obligations as participants in a competitive power market subject to Commission oversight. We believe the rules we are establishing herein will allow us to assure just and reasonable rates and provide an adequate basis for sellers to understand our expectations of them.
175. In the June 26 Order, we noted that the Market Behavior Rules we were proposing would apply to any market-based rate sale, whether in the bilateral market or in an organized market,
176. Commenters disagree over whether and to what extent the Commission's Market Behavior Rules should be applied in organized markets. Some argue that in these markets, the Market Behavior Rules should not apply.
177. Others assert that the Commission's Market Behavior Rules should play a vital role in the organized markets. Central Maine,
178. EEI asserts that market participants should not be left with conflicting sets of rules and no guidance as to which applies or which takes precedence over the other. EEI recommends that where there is an inconsistency between the Market Behavior Rules and an RTO or ISO tariff provision approved by the Commission, the Market Behavior Rule should be treated as subordinate. This is appropriate, EEI argues, because the RTO or ISO tariff provision, in this instance, will be the product of a regional stakeholder process specifically suited to meeting regional energy market needs.
179. EPSA,
180. In our discussion of Market Behavior Rule 1, above, we clarified that absent inclusion in a broader manipulative scheme addressed in Market Behavior Rule 2, compliance with the Commission-approved rules and regulations of an applicable power market, such as an ISO/RTO market, will serve as compliance with our behavioral rules.
181. As stated in our order issued in Docket No. RT03-1-000 (Communications with Commission-Approved Market Monitors), MMUs may be viewed as the “functional equivalent” of the Commission's staff and, for example, are not typically subject to our
182. We believe it is appropriate to authorize MMUs to enforce certain ISO/RTO tariff matters if those matters are: (i) Expressly set forth in the tariff; (ii) involve objectively-identifiable behavior; and (iii) do not subject the seller to sanctions or other consequences other than those expressly approved by the Commission and set forth in the tariff.
183. While MMUs may take actions as authorized by the ISO/RTO tariff, the Commission retains its responsibility to oversee tariff compliance on the part of any market-based rate seller. For example, a repeated pattern of tariff violations across several markets could lead the Commission to consider revoking a seller's market-based rate authorization. Further, except to the extent that enforcement authority has explicitly been authorized for an MMU in an ISO/RTO tariff, these behavioral rules will apply and be administered by the Commission.
184. The roles of the MMUs and the Commission will require the Commission staff and the MMUs to continue to forge a close working relationship. This process has been underway for some time. Commission Staff is coordinating data collection and reporting functions with MMUs, including developing appropriate triggers for referring compliance issues to the Commission. We expect an MMU to maintain an on-going dialogue with our staff so that we are apprised at all times of the status of the markets and activities of market participants. If an MMU becomes aware of activities of a market participant that appear to violate that market participant's market-based rate tariff condition or other requirement that has not been assigned to the MMU for enforcement in the first instance, the MMU is expected to bring the matter to the attention of the Commission staff.
185. Therefore, the behavioral rules adopted by the Commission for market-based rates sellers will apply to all markets. To the degree these rules overlap with a clearly stated tariff provision for which the Commission has assigned the first-line enforcement authority with associated sanctions to a MMU subject to appeal to the Commission, we will defer in the first instance to the MMU, subject to possible review. The Commission will exclusively undertake consideration of all other asserted violations of these rules. The Commission staff and the MMUs will work together to act to comprehensively assure that the overall competitiveness of jurisdictional electricity markets is maintained.
186. In addition, as discussed in our consideration of Market Behavior Rule 1, absent a situation in which an activity is part of a broader manipulative scheme prohibited by Market Behavior Rule 2, a compliance with Commission-approved ISO and RTO rules (such as bidding consistent with the AMP process in the New York ISO) will be deemed in compliance with these market behavior rules.
187. As noted above, the Market Behavior Rules approved herein will require jurisdictional market-based rate sellers, to the extent they engage in reporting of transactions to publishers of electricity or natural gas price indices, to provide accurate and factual information and not submit false or misleading information or omit material information to any such publisher.
188. Given these requirements, the collection of information set forth below has been submitted to the Office of Management and Budget (OMB) for review under section 3507(d) of the Paperwork Reduction Act of 1995.
Total annual hours for Collection (reporting + recordkeeping) = 8,208.
189.
190. OMB's regulations require it to approve certain information collection requirements imposed by agency rule. The Commission is submitting a copy of this order to OMB.
191. Interested persons may obtain information on the information requirements by contacting the following: Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426 [Attention: Michael Miller, Office of the Executive Director, Phone (202)502-8415, fax: (202)273-0873, e-mail:
192. For submitting comments concerning the collection of information and the associated burden estimates, please send your comments to the contact listed above and to the Office of Management and Budget, Office of Information and Regulatory Affairs, Washington, DC 20503, [Attention: Desk Officer for the Federal Energy Regulatory Commission, phone: (202)395-7856, fax: (202)395-7285.]
193. The Commission is required to prepare an Environmental Assessment or an Environmental Impact Statement for any action that may have a significant adverse effect on the human environment.
The actions proposed to be taken here fall within categorical exclusions in the Commission's regulations for rules that are clarifying, corrective, or procedural, for information gathering, analysis, and dissemination, and for sales, exchange, and transportation of natural gas that requires no construction of facilities.
194. The Regulatory Flexibility Act of 1980 (RFA)
195. The Commission does not believe that the Market Behavior Rules approved herein would have such an impact on small entities. Most of the sellers required to comply with the proposed regulations would be entities who do not meet the RFA's definition of a small entity whether or not they are under the Commission's jurisdiction. Therefore, the Commission certifies that this rule will not have a significant economic impact on a substantial number of small entities.
196. In addition to publishing the full text of this document in the
197. From FERC's Home page on the Internet, this information is available in the eLibrary. The full text of this document is available on eLibrary in PDF and Microsoft Word format for viewing, printing, and/or downloading. To access this document in eLibrary, type the docket number excluding the last three digits of this document in the docket number field.
198. User assistance is available for eLibrary and the FERC's Web site during normal business hours by contacting FERC Online Support at
199. The Commission has determined that the Market Behavior Rules approved in this order do not constitute a “major rule” as defined in section 351 of the Small Business Regulatory Enforcement Fairness Act of 1996. The provisions of 5 U.S.C. 801 regarding Congressional review of Final Rules, therefore, do not apply to this order.
200. On September 12, 2003, the Bankruptcy Court for the Northern District of Texas issued a “Temporary Restraining Order Against the Federal Energy Regulatory Commission” (TRO) in
201. Should the TRO be converted into a preliminary injunction, an action that the Commission opposes, the Commission will appeal that order. Despite the Commission's disagreement with the validity of the TRO and its expectation that the TRO (or a preliminary injunction) will be vacated on appeal, the Commission must comply with it until vacated. The TRO requires ten days' written notice before the Commission takes a proscribed action with respect to a covered Mirant Wholesale Contract. Accordingly, to the extent that this order requires Mirant to act in a manner proscribed by the TRO, the order will provide written notice to Mirant of the action that the Commission will take with respect to a covered Mirant Wholesale Contract.
(A) The Market Behavior Rules set forth in Appendix A to this order are hereby adopted, as discussed in the body of this order, to become effective 30 days from the date of issuance of this order.
(B) In compliance with this order, market-based rate sellers are hereby directed to include the Market Behavior Rules, as approved herein, at such time as they file any amendment to their market-based rates tariff or (if earlier) at such time as they seek continued authorization to sell at market-based rates (
(C) The Secretary shall promptly publish this order in the
(D) Southern's request for rehearing of the June 26 Order is hereby dismissed, as discussed in the body of this order.
(E) The entities listed in Appendix C to this order shall be treated as parties to this proceeding.
By the Commission. Commissioners Massey and Brownell concurring with separate statements attached.
As a condition of market-based rate authority, [Company Name] (hereafter, Seller) will comply with the following Market Behavior Rules:
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a. Pre-arranged offsetting trades of the same product among the same parties, which involve no economic risk and no net change in beneficial ownership (sometimes called “wash trades”);
b. Transactions predicated on submitting false information to transmission providers or other entities responsible for operation of the transmission grid (such as inaccurate load or generation data; or scheduling non-firm service or products sold as firm), unless Seller exercised due diligence to prevent such occurrences;
c. Transactions in which an entity first creates artificial congestion and then purports to relieve such artificial congestion (unless Seller exercised due diligence to prevent such an occurrence; and
d. Collusion with another party for the purpose of manipulating market prices, market conditions, or market rules for electric energy or electricity products.
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Any violation of these Market Behavior Rules will constitute a tariff violation. Seller will be subject to disgorgement of unjust profits associated with the tariff violation, from the date on which the tariff violation occurred. Seller may also be subject to suspension or revocation of its authority to sell at market-based rates or other appropriate non-monetary remedies.
Complaints alleging any violation of the Commission's Market Behavior Rules will be subject to the following remedies and procedures, in addition to all other remedies and procedures, as may be applicable, pursuant to the Commission's Rules of Practice and Procedure.
(1) Any complaint seeking relief for a violation of the Commission's Market Behavior Rules shall be made no later than 90 days after the end of the calendar quarter in which the violation is alleged to have occurred.
(2) If a complainant can show that it did not know and should not have known of the behavior which forms the basis for its complaint, within the period prescribed by these procedures, then the 90-day period will be deemed to run from the time when the complainant knew or should have known of the behavior.
(3) Commission action on a complaint not meeting the filing deadlines, as prescribed in these procedures, will be prospective only.
(4) The applicability of the Commission's disgorgement remedy in any complaint proceeding alleging a violation of the Commission's Market Behavior Rules will be limited by requiring that any such violation be shown to have occurred on a transaction-specific basis.
(5) The Commission will act within 90 days from the date it knew of an alleged violation of its Market Behavior Rules or knew of the potentially manipulative character of an action or transaction. Commission action, in this context, means a Commission order or the initiation of a preliminary investigation by Commission Staff pursuant to 18 CFR Section 1b. If the Commission does not act within this time period, the seller will not be exposed to potential liability regarding the subject action or transaction. Knowledge on the part of the Commission must take the form of a call to our Hotline alleging inappropriate behavior, communication with our enforcement Staff.
Massey, Commissioner,
The tariff conditions that the Commission approves today send a clear message to market-based rate sellers: don't lie, don't manipulate market conditions, don't violate market rules and don't collude with others. For sellers who choose to behave otherwise, the Commission now has the tools to sanction such bad behavior and we give notice of what some of those sanctions could be. This action should help to restore the faith in energy markets that has been lost in the last few years.
There is one aspect of today's order, however, that I would have written differently. I would not limit the monetary penalty for tariff violations to disgorgement of unjust profits. Market manipulation can raise the market prices paid by all market participants and collected by all sellers. In such a case, the appropriate remedy may be that the manipulating seller makes the market whole. I would prefer to not take this or any monetary remedy off of the table, but instead to allow the Commission the flexibility to tailor the remedy to the circumstances of each case.
This one concern with today's order should not be interpreted, however, as diminishing in any way my enthusiastic support for this otherwise excellent order. I commend my colleagues for taking this important and much needed step.
For these reasons, I concur in part with today's order.
Brownell, Commissioner,
1. We are adopting behavioral rules for market participants in the electric and natural gas markets. No one can question the good intention behind these behavioral rules. As I have stated before, if there are violations of our rules, regulations or policies, we must be willing to punish and correct. Concurrently, if there is misconduct by market participants that is intended to be anticompetitive, we must have the ability to remedy those market abuses.
2. Conversely, when we originally proposed behavioral rules, I had a number of concerns. I was concerned that the use of vague terms would create uncertainty and, thereby, undermine the good intentions of the rules. I feared that subsequent applications of the proposed behavior rules to real world actions could result in overly proscriptive “rules of the road” that will dampen business innovation and creative market strategies. The net effect would be less competition and the associated higher costs to consumers. I was concerned that we may be proposing a model that simply does not fit with the larger lessons we have learned in fostering competition over the past two decades, particularly in the gas market.
3. It is difficult to strike the right balance. I have carefully weighed the comments and believe the revisions and clarifications to the proposed behavioral rules achieve the appropriate balance. We clarify that these rules do not impose a “must offer” requirement. We revise the definition of manipulation to relate to actions that are “intended to or foreseeably could” manipulate markets. We add the exclusion that action taken at the direction of an RTO or ISO does not constitute manipulation.
4. Commenters also challenge the sufficiency of the term “legitimate business purpose” in distinguishing between prohibited and non-prohibited behavior. We clarify that transactions with economic substance, in which a seller offers or provides a service to a buyer where value is exchanged for value, are not prohibited behavior. Behavior driven by legitimate profit maximization or that serves important market functions is not manipulation. Moreover, I think it is important to recognize that scarcity pricing is the market response to a supply/demand imbalance that appropriately signals the need for infrastructure. For example, the high prices of 2000-2001 that reflected supply/demand fundamentals resulted in the first new power plants being constructed in California in ten years; price risk being hedged through the use of long-term contracting; and renewed efforts to correct a flawed market design.
5. We have also adopted measures that require accountability. A complaint must be brought to the Commission within 90 days after the calendar quarter that the manipulative action was alleged to have occurred. The 90-day time limit strikes an appropriate balance between providing sufficient opportunity to detect violations and the market's need for finality. The Order also places a similar time limit on Commission action. As a matter of prosecutorial policy, the Commission will only initiate a proceeding or investigation within 90 days from when we obtained notice of a potential violation through either a hotline call; conversations with our enforcement staff; or notification from a market monitor.
6. While these rules are designed to provide adequate opportunity to detect, and the Commission to remedy, market abuses and are clearly defined so that they do not create uncertainty, disrupt competitive commodity markets or prove simply ineffective, competitive markets are dynamic. We need to periodically evaluate the impact of these behavior rules on the electric and natural gas markets. We have directed our Office of Market Oversight and Investigation to evaluate the effectiveness and consequences of these behavioral rules on an annual basis and include their analysis in the State of the Market Report.
Take notice that the following hydroelectric applications have been filed with the Commission and are available for public inspection:
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Comments, protests, and interventions may be filed electronically via the Internet in lieu of paper; see 18 CFR 385.2001(a)(1)(iii) and the instructions on the Commission's web site under the “e-Filing” link. The Commission strongly encourages electronic filings.
The Commission's Rules of Practice and Procedure require all interveners filing documents with the Commission to serve a copy of that document on each person in the official service list for the project. Further, if an intervener files comments or documents with the Commission relating to the merits of an issue that may affect the responsibilities of a particular resource agency, they must also serve a copy of the document on that resource agency.
l.
m. The filings are available for review and reproduction at the Commission in the Public Reference Room, Room 2A, 888 First Street, NE., Washington, DC 20426. The filings may also be viewed on the web at
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q. All filings must (1) bear in all capital letters the title “PROTEST”, “MOTION TO INTERVENE”, “NOTICE OF INTENT TO FILE COMPETING APPLICATION,” “COMPETING APPLICATION,” “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 protesting or intervening; 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 applications directly from the applicant. Any of these documents must be filed by providing the original and the number of copies required by the Commission's regulations to: The Secretary, Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426. An additional copy must be sent to Director, Division of Hydropower Administration and Compliance, Office of Energy Projects, Federal Energy Regulatory Commission, at the above address. A copy of any protest or motion to intervene must be served upon each representative of the applicant specified in the particular application. A copy of all other filings in reference to either application must be accompanied by proof of service on all persons listed in the service list prepared by the Commission in the proceeding, in accordance with 18 CFR 4.34(b) and 385.2010.
Take notice that the following hydroelectric application has been filed with the Commission and is available for public inspection.
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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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q. Comments, protests and interventions may be filed electronically via the Internet in lieu of paper.
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 Magalie R. Salas, Secretary, Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426. Comments, protests, and interventions may be filed electronically via the Internet in lieu of paper. Any questions, please contact the Secretary's Office.
k.
When a Declaration of Intention is filed with the Federal Energy Regulatory Commission, the Federal Power Act requires the Commission to investigate and determine if the interests of interstate or foreign commerce would be affected by the project. The Commission also determines whether or not the project: (1) Would be located on a navigable waterway; (2) would occupy or affect public lands or reservations of the United States; (3) would utilize surplus water or waterpower from a government dam; or (4) if applicable, has involved or would involve any construction subsequent to 1935 that may have increased or would increase the project's head or generating capacity, or have otherwise significantly modified the project's pre-1935 design or operation.
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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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Environmental Protection Agency (EPA).
Notice.
This document announces the Office of Management and Budget's (OMB) responses to Agency clearance requests, in compliance with the Paperwork Reduction Act (44 U.S.C. 3501
Susan Auby (202) 566-1672, or e-mail at
EPA ICR No. 1052.07; NSPS Subpart D, Standards of Performance for Fossil-Fuel-Fired Steam Generating Units; was approved 11/06/2003; in 40 CFR part 60, subpart D; OMB Number 2060-0026; expires 11/30/2006.
EPA ICR No. 1696.04; Fuels and Fuel Additives—Health—Effects Research Protocols; was approved 11/06/2003; in 40 CFR part 79, subpart F; OMB Number 2060-0297; expires 11/30/2006.
EPA ICR No. 1893.03; Federal Emission Guidelines for Existing Municipal Solid Waste Landfills (Small); was approved 11/06/2003; in 40 CFR part 62, subpart GGG; OMB Number 2060-0430; expires 11/30/2006.
EPA ICR No. 1772.03; Activities Associated with EPA's Energy Star Buildings Program in the Commercial and Industrial Sectors; was approved 11/06/2003; OMB Number 2060-0347; expires 11/30/2006.
EPA ICR No. 1088.10; NSPS for Industrial-Commercial-Institutional Steam Generating Units; was approved 11/06/2003; in 40 CFR part 60, subpart Db; OMB Number 2060-0072; expires 11/30/2006.
EPA ICR No. 1061.09; NSPS for the Phosphate Fertilizer Industry; was approved 11/05/2003; in 40 CFR part 60, subpart T, U, V, W, and X; OMB Number 2060-0037; expires 11/30/2006.
EPA ICR No. 1084.07; NSPS for Nonmetallic Mineral Processing; was approved 11/05/2003; in 40 CFR part 60, subpart OOO; OMB Number 2060-0050; expires 11/30/2006.
EPA ICR No. 1128.07; NSPS for Secondary Lead Smelters; was approved 11/05/2003; in 40 CFR part 60, subpart L; OMB Number 2060-0080; expires 11/30/2006.
EPA ICR No. 1093.07; NSPS for the Surface Coating of Plastic Parts for Business Machines (Renewal); was approved 11/05/2003; in 40 CFR part 60, subpart TTT; OMB Number 2060-0162; expires 11/30/2006.
EPA ICR No. 1060.12; NSPS for Steel Plants: Electric Arc Furnaces and Argon-Oxygen Decarburization Vessels (Renewal); was approved 11/06/2003; in 40 CFR part 60, subparts AA and AAa, OMB Number 2060-0038; expires 11/30/2006.
EPA ICR No. 1665.06; Confidentiality Rules; was approved 11/03/2003; in 40 CFR part 2, subpart B; OMB Number 2020-0003; expires 11/30/2006.
EPA ICR No. 1415.05; NESHAP for Perchlorethylene Dry Cleaning Facilities; was approved 10/28/2003; in 40 CFR part 63, subpart M, OMB Number 2060-0234; expires 10/31/2006.
EPA ICR No. 0976.11; The 2003 Hazardous Waste Report; was approved 10/26/2003; in 40 CFR 262.41,264.75, 265.75; OMB Number 2050-0024; expires 10/31/2005.
Environmental Protection Agency (EPA).
Notice of proposed settlement agreement; request for public comment.
In accordance with section 113(g) of the Clean Air Act, as amended (“Act”), 42 U.S.C. 7413(g), notice is hereby given of a proposed settlement agreement to address a lawsuit filed by the Louisiana Environmental Action Network, represented by the Tulane Environmental Law Clinic:
Written comments on the proposed settlement agreement must be received by December 24, 2003.
Cecilia Kim, Air and Radiation Law Office (2344A), Office of General Counsel, U.S. Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460, Telephone: (202) 564-7606.
Submit your comments, identified by Docket ID number OGC-2003-0003, online at
The Clean Air Act affords EPA a 45-day period to review and object to, as appropriate, Title V operating permits proposed by state permitting authorities. Section 505(b)(2) of the Act authorizes any person to petition the EPA Administrator within 60 days after the expiration of this 45-day review period to object to state operating permits if EPA has not done so. Plaintiff filed an administrative petition to object to a state operating permit issued by LDEQ to Dupont Dow Elastomers, L.L.C., for a chloroprene facility in St. John the Baptist Parish, Louisiana. The lawsuit alleges that EPA has a nondiscretionary duty to grant or deny the petition within
The settlement agreement provides that, within ten days after execution by the parties, the parties will file a joint motion with the court requesting the lawsuit be stayed. Plaintiff may request the court to lift the stay of the lawsuit, and establish a schedule for further proceedings if EPA fails to sign a response to the petition by November 20, 2003.
For a period of thirty (30) days following the date of publication of this notice, the Agency will receive written comments relating to the proposed settlement agreement from persons who were not named as parties or interveners to the litigation in question. EPA or the Department of Justice may withdraw or withhold consent to the proposed settlement agreement if the comments disclose facts or considerations that indicate that such consent is inappropriate, improper, inadequate, or inconsistent with the requirements of the Act. Unless EPA or the Department of Justice determine, based on any comment which may be submitted, that consent to the settlement agreement should be withdrawn, the terms of the agreement will be affirmed.
EPA has established an official public docket for this action under Docket ID No. OGC-2003-0003 which contains a copy of the proposed settlement. The official public docket is available for public viewing at the Office of Environmental Information (OEI) Docket in the EPA Docket Center, EPA West, Room B102, 1301 Constitution Ave., NW., Washington, DC. The EPA Docket Center Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Public Reading Room is (202) 566-1744, and the telephone number for the OEI Docket is (202) 566-1752.
An electronic version of the public docket is available through EPA's electronic public docket and comment system, EPA Dockets. You may use EPA Dockets at
It is important to note that EPA's policy is that public comments, whether submitted electronically or in paper, will be made available for public viewing in EPA's electronic public docket as EPA receives them and without change, unless the comment contains copyrighted material, CBI, or other information whose disclosure is restricted by statute. Information claimed as CBI and other information whose disclosure is restricted by statute is not included in the official public docket or in EPA's electronic public docket. EPA's policy is that copyrighted material, including copyrighted material contained in a public comment, will not be placed in EPA's electronic public docket but will be available only in printed, paper form in the official public docket. Although not all docket materials may be available electronically, you may still access any of the publicly available docket materials through the EPA Docket Center.
You may submit comments as provided in the
If you submit an electronic comment, EPA recommends that you include your name, mailing address, and an e-mail address or other contact information in the body of your comment and with any disk or CD ROM you submit. This ensures that you can be identified as the submitter of the comment and allows EPA to contact you in case EPA cannot read your comment due to technical difficulties or needs further information on the substance of your comment. Any identifying or contact information provided in the body of a comment will be included as part of the comment that is placed in the official public docket, and made available in EPA's electronic public docket. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment.
Your use of EPA's electronic public docket to submit comments to EPA electronically is EPA's preferred method for receiving comments. The electronic public docket system is an “anonymous access” system, which means EPA will not know your identity, e-mail address, or other contact information unless you provide it in the body of your comment. In contrast to EPA's electronic public docket, EPA's electronic mail (e-mail) system is not an “anonymous access” system. If you send an e-mail comment directly to the Docket without going through EPA's electronic public docket, your e-mail address is automatically captured and included as part of the comment that is placed in the official public docket, and made available in EPA's electronic public docket.
Environmental Protection Agency (EPA).
Extension of comment period; correction.
On October 20, 2003 (68 FR 59935) EPA published a notice of data availability (NODA) to make available to the public certain analytical data pertaining to spent hydrorefining catalyst from petroleum refining operations (K172). The original comment period was to expire on December 4, 2003; today's notice extends the comment period to January 18, 2004. In addition, in the
Submit comments on or before January 18, 2004. Comments postmarked after this date will be marked “late” and may not be considered.
Comments may be submitted electronically, by mail, by facsimile, or through hand delivery/courier. Follow the detailed instructions as provided in section I of the
This document extends the public comment period established in the
To submit comments, or access the official public docket, please follow the detailed instructions as provided in Section I of the
Environmental Protection Agency (EPA).
Notice; request for public comment.
In accordance with the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended by the Superfund Amendments and Reauthorization Act of 1986 (CERCLA), 42 U.S.C. 9600
In exchange for the settlement, Carlson has agreed to pay EPA $100,000 in cash. In addition, Carlson has agreed to comply with a Covenant to Restrict Use of Property.
For thirty (30) calendar days following the date of publication of this notice, EPA will receive written comments relating to the proposed settlement. EPA's response to any comments received will be available for public inspection at 75 Hawthorne Street, San Francisco, CA 94105.
Comments must be submitted on or before December 24, 2003.
The proposed Prospective Purchaser Agreement is available for public inspection at EPA Region IX, 75 Hawthorne Street, San Francisco, California. A copy of the proposed settlement may be obtained from Janet Magnuson, EPA Region IX, 75 Hawthorne Street, ORC-3, San Francisco, CA 94105, telephone number 415-972-3887. Comments should reference the Richmond Townhouse Apartments Superfund Site, Richmond, California and EPA Docket No. 2004-05 and should be addressed to Janet Magnuson at the above address.
Janet Magnuson, Assistant Regional Counsel (ORC-3), Office of Regional Counsel, U.S. EPA Region IX, 75 Hawthorne Street, San Francisco, CA 94105; phone: (415) 972-3887; fax: (415) 947-3570; e-mail:
Environmental Protection Agency (EPA).
Notice; request for public comment.
In accordance with section 122(i) of the Comprehensive Environmental Response, Compensation, and Liability Act, as amended (“CERCLA”), 42 U.S.C. 9622(i), notice is hereby given of a proposed administrative settlement for recovery of past response costs concerning the Richmond Townhouse Apartments Site in Richmond, Contra Costa County, California with the following settling parties: Richmond Townhouses Apartments, Ltd.; Partnership Investor Services, Inc.; Westport Housing Corporation; Stephen D. Moses; and S. Chandler Sweetser, Jr. The settlement requires the settling parties to pay $1,400,000 to the Hazardous Substance Superfund. The settlement includes a covenant not to sue the settling party pursuant to Section 107(a) of CERCLA, 42 U.S.C. 9607(a). For thirty (30) days following the date of publication of this notice, the Agency will receive written comments relating to the settlement. The Agency will consider all comments received and may modify or withdraw its consent to the settlement if comments received disclose facts or considerations which indicate that the settlement is inappropriate, improper, or inadequate. The Agency's response to any comments received will be available for public inspection at 75 Hawthorne Street, San Francisco, CA 94105.
Comments must be submitted on or before December 24, 2003.
The proposed settlement is available for public inspection at EPA Region IX, 75 Hawthorne Street, San Francisco, California. A copy of the proposed settlement may be obtained from Janet Magnuson, EPA Region IX, 75 Hawthorne Street, ORC-3, San Francisco, CA 94105, telephone number 415-972-3887. Comments should
Janet Magnuson, Assistant Regional Counsel (ORC-3), Office of Regional Counsel, U.S. EPA Region IX, 75 Hawthorne Street, San Francisco, CA 94105; phone: (415) 972-3887; fax: (415) 947-3570; e-mail to:
Export-Import Bank of the United States.
Notice of a partially open meeting of the Board of Directors of the Export-Import Bank of the United States.
Tuesday, November 25, 2003 at 9:30 a.m. The meeting will be held at Ex-Im Bank in Room 1143, 811 Vermont Avenue, NW., Washington, DC 20571.
Short Term Insurance Program for Iraq.
The meeting will be open to public participation for Item No. 1 only. Attendees that are not employees of the Executive Branch will be required to sign in prior to the meeting.
For further information, contact: Office of the Secretary, 811 Vermont Avenue, NW., Washington, DC 20571 (Telephone No. 202-565-3957).
Federal Accounting Standards Advisory Board.
Notice of meetings for 2004.
Pursuant to 31 U.S.C. 3511(d), the Federal Advisory Committee Act (Pub. L. 92-463), as amended, and the FASAB Rules Of Procedure, as amended in October 1999, notice is hereby given that the Federal Accounting Standards Advisory Board (FASAB) will meet on the following dates in room 7C13 of the GAO Building unless otherwise noted:
The purposes of the meetings are to discuss issues related to:
A more detailed agenda can be obtained from the FASAB Web site (
Any interested person may attend the meetings as an observer. Board discussion and reviews are open to the public. GAO Building security requires advance notice of your attendance. Please notify FASAB of your planned attendance by calling 202-512-7350 at least one day prior to the respective meeting.
Wendy M. Comes, Executive Director, 441 G St., NW., Mail Stop 6K17V, Washington, DC 20548, or call (202) 512-7350.
Federal Advisory Committee Act. Pub. L. 92-463.
Federal Communications Commission.
Notice of public meeting.
In accordance with the Federal Advisory Committee Act, this notice advises interested persons of the final meeting of the Network Reliability and Interoperability Council VI (Council) under its charter renewed as of December 26, 2001. The meetings will be held at the Federal Communications Commission in Washington, DC.
Friday, December 5, 2003 from 10 a.m. to 1 p.m.
Federal Communications Commission, 445 12th St., SW., Room TW-C305, Washington, DC.
Jeffery Goldthorp at 202-418-1096 or TTY 202-418-2989.
The Council was established by the Federal Communications Commission to bring together leaders of the telecommunications industry and telecommunications experts from academic, consumer and other organizations to explore and recommend measures that will enhance network security, reliability and interoperability. At this sixth and last meeting of the Network Reliability and Interoperability Council VI, the Council will consider and vote on its final recommendations.
Inadvertent administrative delay prevented publication of this in the
The Federal Communications Commission will attempt to accommodate as many people as possible. Admittance, however, will be limited to the seating available. The public may submit written comments before the meeting to Jeffery Goldthorp, the Commission's Designated Federal Officer for the Network Reliability and Interoperability Council, by e-mail,
Federal Communications Commission.
This notice corrects a notice (FR Doc. 03-28720) published on page 65070 of the issue for Tuesday, November 18, 2003.
Under the Federal Reserve Bank of Richmond heading, the entry for Bank of America Corporation, Charlotte, North Carolina, is revised to read as follows:
In connection with this proposal, Bank of America has applied to acquire up to 19.9 percent of FleetBoston Financial Corporation, and FleetBoston Financial Corporation has an option to acquire 19.9 percent of the voting shares of Bank of America Corporation.
Comments on this application must be received by December 15, 2003.
Board of Governors of the Federal Reserve System, November 18, 2003.
Office of the Secretary, HHS.
Notice of meeting.
Pursuant to section 10(a) of the Federal Advisory Committee Act, as amended (5 U.S.C. appendix 2), notice is hereby given of the second meeting of the Secretary's Advisory Committee on Human Research Protections (SACHRP). The meeting will be open to the public, with attendance limited to space available. Individuals who plan to attend and need special assistance, such as sign language interpretation or other reasonable accommodations, should notify the contact person listed below.
The meeting will be held on Thursday, December 11 and Friday, December 12, 2003, and will convene each day from approximately 8:30 a.m. until 5 p.m. EST.
The Sheraton Four Points Hotel, 1201 K Street, NW., Washington, DC, 20005.
Bernard Schwetz, D.V.M., Ph.D., Acting Executive Secretary, SACHRP, Department of Health and Human Services (HHS), Office of Public Health and Science (OPHS), 1101 Wootton Parkway, Suite 200, Rockville, Maryland 20852, (301) 496-7005, fax: (301) 402-0527, e-mail address:
Under the authority of 42 U.S.C. 217a, section 222 of the Public Health Service Act, as amended, HHS established SACHRP to provide expert advice and recommendations to the Secretary of HHS and the Assistant Secretary for Health on issues and topics pertaining to or associated with the protection of human research subjects.
On December 11, SACHRP will receive and discuss preliminary reports from its three subcommittees that were created by SACHRP at its July 22, 2003 meeting to address issues related to the following three topics areas: Department of Health and Human Services (HHS) regulations and policies for research involving prisoners, HHS regulations and policies for research involving children, and the accreditation of human research protection programs by non-federal accrediting bodies. On December 12, SACHRP will hold panel discussions related to human subjects research in international settings and adverse event reporting requirements under HHS and Food and Drug Administration regulations. The committee will also discuss future tasks for 2004.
Members of the public will have the opportunity to provide comments at the meeting on December 11 and 12, 2003. Public comment will be limited to five minutes per speaker. Any members of the public who wish to have printed material distributed to SACHRP members should submit materials to the Acting Executive Secretary of SACHRP (contact information listed above) prior to close of business December 2, 2003.
Information about SACHRP and the draft meeting agenda will be posted on the SACHRP Web site at:
The Centers for Disease Control and Prevention (CDC) publishes a list of information collection requests under review by the Office of Management and Budget (OMB) in compliance with the Paperwork Reduction Act (44 U.S.C. chapter 35). To request a copy of these requests, call the CDC Reports Clearance Officer at (404) 498-1210. Send written comments to CDC, Desk Officer, Human Resources and Housing Branch, New Executive Office Building, Room 10235, Washington, DC 20503, or by fax to (202) 395-6974. Written comments should be received within 30 days of this notice.
In 2000, the Food and Drug Administration (FDA) and CDC consolidated regulations related to controlling the spread of communicable diseases. FDA formerly administered the regulations contained in part 1240 of title 21, Code of Federal Regulations, which pertained to interstate control of communicable diseases. These regulations may now be found in part 70 of title 42, Code of Federal Regulations.
FDA transferred 21 CFR part 1240 to CDC. This mandate regulates the interstate travel of any person who is in the communicable period of cholera, plague, smallpox, typhus, or yellow fever, or who, having been exposed to any such disease, is in the incubation period thereof. One of the sections—
Control of disease transmission within the States is considered to be the province of state and local health authorities, with federal assistance being sought by those authorities on a cooperative basis without application of federal regulations. The regulations formerly administered by FDA and assumed by CDC were developed to facilitate Federal action in the event of large outbreaks requiring a coordinated effort involving several states, or in the event of inadequate local control. While it is not known whether, or to what extent situations may arise in which these regulations would be invoked, contingency planning for domestic emergency preparedness is now commonplace. Should this occur, CDC will use the reporting and record-keeping requirements contained in the regulations to carry out quarantine responsibilities as required by law. The estimated annualized burden is 3,600 hours.
The Centers for Disease Control and Prevention (CDC) publishes a list of information collection requests under review by the Office of Management and Budget (OMB) in compliance with the Paperwork Reduction Act (44 U.S.C. chapter 35). To request a copy of these requests, call the CDC Reports Clearance Officer at (404) 498-1210. Send written comments to CDC, Desk Officer, Human Resources and Housing Branch, New Executive Office Building, Room 10235, Washington, DC 20503, or by fax to (202) 395-6974. Written comments should be received within 30 days of this notice.
ATSDR proposes to conduct customer satisfaction research for its Internet site. Information on the site focuses on prevention of exposure and adverse human health effects and diminished quality of life associated with exposure to hazardous substances from waste sites, unplanned releases, and other sources of pollution present in the environment. The site is designed to serve the general public, persons at risk for exposure to hazardous substances, and health professionals.
Approval for a similar Customer Satisfaction Survey was requested in 2002 jointly with the Centers for Disease Control and Prevention (OMB No. 0920-0449, Expiration Date 09/30/2003). The new survey is solely for ATSDR and is significantly shorter and would require less time to complete.
This research will ensure that targeted audiences find the information easy to access, clear, informative, and useful. Specifically, the research will examine whether the information is presented in an appropriate technological format and meets the needs, wants, and preferences of visitors or “customers” using the Web site. Results from the previous survey were utilized to redesign the ATSDR Web site—making improvements to architecture, links, organization, and content. Results from the new survey will assist ATSDR in making more improvements to the Web site in order to better serve its customers and visitors. The estimated annualized burden is 83 hours.
The Centers for Disease Control and Prevention (CDC) publishes a list of information collection requests under review by the Office of Management and Budget (OMB) in compliance with the Paperwork Reduction Act (44 U.S.C. chapter 35). To request a copy of these requests, call the CDC Reports Clearance Officer at (404) 498-1210. Send written comments to CDC, Desk Officer, Human Resources and Housing Branch, New Executive Office Building, Room 10235, Washington, DC 20503, or by fax to (202) 395-6974. Written comments should be received within 30 days of this notice.
To provide contextual data, in each participating school, the principal or another designated administrator will be asked to complete a questionnaire on the school's tobacco-related policies. The annualized burden for this data collection is 18,663 hours.
The Centers for Disease Control and Prevention (CDC) publishes a list of information collection requests under review by the Office of Management and Budget (OMB) in compliance with the Paperwork Reduction Act (44 U.S.C. Chapter 35). To request a copy of these requests, call the CDC Reports Clearance Officer at (404) 498-1210. Send written comments to CDC, Desk Officer, Human Resources and Housing Branch, New Executive Office Building, Room 10235, Washington, DC 20503 or by fax to (202) 395-6974. Written comments should be received within 30 days of this notice.
CDC requires MAI grantees to evaluate their programs. CDC has the responsibility to support these evaluation efforts by assisting grantees in the design and implementation of
Data collection will include self-administered questionnaires, which will be submitted quarterly, document reviews, and interviews with directors of community-based organizations, collaborating organizations, other community organizations, and community members served by these organizations. The first wave of data collection is planned for the summer of 2003. Subsequent waves of data collection are planned for 2004. The annualized burden for this data collection is 255 hours.
Part C (Centers for Disease Control and Prevention) of the Statement of Organization, Functions, and Delegations of Authority of the Department of Health and Human Services (45 FR 67772-76, dated October 14, 1980, and corrected at 45 FR 69296, October 20, 1980, as amended most recently at 68 FR 62456-62469, dated November 4, 2003) is amended to reflect the consolidation CDC's information technology infrastructure functions into a single organizational component entitled the Information Technology Services Office.
Section C-B, Organization and Functions, is hereby amended as follows:
Following the title and functional statement for the
Revise the mission statement for the
Delete item (1) and insert the following: (1) Develops and coordinates CDC-wide plans and budgets for the management of information technology and services.
Delete items (4) and (9) in their entirety. Delete from item (8) the word “equipment.”
Delete in their entirety the titles and functional statements for the
Delete item (4) of the functional statement for the
Delete item (4) of the Functional statement for the
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Delete the functional statement for the
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Delete items (5) through (8) from the functional statement for the
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Delete in their entirety the title and functional statement for the
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Delete in their entirety the title and functional statement for the
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Delete items (3) and (6) from the functional statement for the
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is announcing that a proposed collection of information has been submitted to the Office of Management and Budget (OMB) for review and clearance under the Paperwork Reduction Act of 1995.
Fax written comments on the collection of information by December 24, 2003.
OMB is still experiencing significant delays in the regular mail, including first class and express mail, and messenger deliveries are not being accepted. To ensure that comments on the information collection are received, OMB recommends that comments be faxed to the Office of Information and Regulatory Affairs, OMB, Attn: Fumie Yokota, Desk Officer for FDA, FAX: 202-395-6974.
Peggy Robbins, Office of Management Programs (HFA-250), Food and Drug Administration, 5600 Fishers Lane, Rockville, MD 20857, 301-827-1223.
In compliance with 44 U.S.C. 3507, FDA has submitted the following proposed collection of information to OMB for review and clearance.
FDA regulations in part 123 (21 CFR part 123) mandate the application of hazard analysis and critical control point (HACCP) principles to the processing of seafood. HACCP is a preventive system of hazard control designed to help ensure the safety of foods. The regulations were issued under FDA's statutory authority to regulate food safety, including section 402(a)(1) and (a)(4) of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 342(a)(1) and (a)(4)), and became effective on December 18, 1997.
Certain provisions in part 123 require that processors and importers of seafood collect and record information. The HACCP records compiled and maintained by a seafood processor primarily consist of the periodic observations recorded at selected monitoring points during processing and packaging operations, as called for in a processor's HACCP plan (e.g., the values for processing times, temperatures, acidity, etc., as observed at critical control points). The primary purpose of HACCP records is to permit a processor to verify that products have been produced within carefully established processing parameters (critical limits) that ensure that hazards have been avoided. HACCP records are normally reviewed by appropriately trained employees at the end of a production lot or at the end of a day or week of production to verify that control limits have been maintained, or that appropriate corrective actions were taken if the critical limits were not maintained. Such verification activities are essential to ensure that the HACCP system is working as planned. A review of these records during the conduct of periodic plant inspections also permits FDA to determine whether the products have been consistently processed in conformance with appropriate HACCP food safety controls.
Section 123.12 requires that importers of seafood products take affirmative steps and maintain records that verify that the fish and fishery products they offer for import into the United States were processed in accordance with the HACCP and sanitation provisions set forth in part 123. These records are also to made available for review by FDA as provided in § 123.12(c).
The time and costs of these recordkeeping activities will vary considerably among processors and importers of fish and fishery products, depending on the type and number of products involved, and on the nature of the equipment or instruments required to monitor critical control points. The burdens have been estimated using typical small seafood processing firms as a model because these firms represent a significant proportion of the industry.
The burden estimate in table 1 of this document includes only those
In the
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 23, 2004.
Submit electronic comments on the collection of information to: http://www.fda.gov/dockets/ecomments. Submit written comments on the collection of information to the Division of Dockets Management (HFA-305), Food and Drug Administration, 5630 Fishers Lane, rm. 1061, Rockville, MD 20852. All comments should be identified with the docket number found in brackets in the heading of this document.
JonnaLynn P. Capezzuto, Office of Management Programs (HFA-250), Food and Drug Administration, 5600 Fishers
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.
FDA will collect and use information gathered through the focus group vehicle. This information will be used to develop programmatic proposals, and as such, compliments other important research findings to develop these proposals. Focus groups do provide an important role in gathering information because they allow for a more indepth understanding of consumers' attitudes, beliefs, motivations, and feelings than do quantitative studies.
Also, information from these focus groups will be used to develop policy and redirect resources, when necessary, to our constituents. If this information is not collected, a vital link in information gathering by FDA to develop policy and programmatic proposals will be missed causing further delays in policy and program development.
FDA estimates the burden for completing the forms for this collection of information in table 1 of this document .
The total annual estimated burden imposed by this collection of information is 2,830 hours annually.
Annually, FDA projects about 28 focus group studies using 186 focus groups lasting an average of 1.78 hours each. FDA has allowed burden for unplanned focus groups to be completed so as not to restrict the agency's ability to gather information on public sentiment for its proposals in its regulatory as well as other programs.
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is announcing the availability of the guidance entitled “User Fees and Refunds for Premarket Approval Applications.” This guidance outlines the types of premarket approval applications (PMAs), including supplements and other submissions, that are subject to user fees as well as those that do not have an associated fee. The guidance also identifies industry and FDA actions on these submissions that may result in a partial refund of the fee. The guidance document is immediately in effect, but it remains subject to comment in accordance with the agency's good guidance practices (GGPs).
Submit written or electronic comments on agency guidances at any time.
Submit written requests for single copies on a 3.5″ diskette of the guidance document entitled “User Fees and Refunds for Premarket Approval Applications” to the Division of Small Manufacturers, International, and Consumer Assistance (HFZ-220), Center for Devices and Radiological Health, Food and Drug Administration, 1350 Piccard Dr., Rockville, MD 20850. Send two self-addressed adhesive labels to assist that office in processing your request, or fax your request to 301-443-8818. See the
Submit written comments concerning this guidance to the Division of Dockets Management (HFA-305), Food and Drug Administration, 5630 Fishers Lane, rm. 1061, Rockville, MD 20852. Submit electronic comments to
The Medical Device User Fee and Modernization Act of 2002 (MDUFMA) (Public Law 107-250), amends the Federal Food, Drug, and Cosmetic Act to allow FDA to collect user fees for certain premarket reviews. The new law also permits partial refunds under certain circumstances, such as in the case of a non-filing decision for a PMA. In other cases, the statute permits a refund but stipulates that it is to be in an amount determined by the level of effort expended by the agency during its review of the application. The guidance outlines the user fees due with certain PMAs, the refunds set by statute, and FDA's plan for determining the amount of the fee to be refunded when the exact amount is not prescribed by the new law.
FDA is making this guidance document immediately available because prior public participation was not feasible. MDUFMA's user fee provisions were effective immediately, and it is essential for the agency to provide guidance to its stakeholders on the user fee program as quickly as possible. Although it was not feasible to obtain comments before issuing the guidance, in accordance with this agency's GGP procedures, FDA will accept comments on the guidance at any time.
This guidance is being issued consistent with FDA's GGPs regulation (21 CFR 10.115). The guidance represents the agency's current thinking on user fees and refunds for PMAs. It does not create or confer any rights for or on any person and does not operate to bind FDA or the public. An alternative approach may be used if such approach satisfies the requirements of the applicable statute and regulations.
To receive a copy of “User Fees and Refunds for Premarket Approval Applications” by fax machine, call the Center for Devices and Radiological Health (CDRH) Facts-On-Demand system at 800-899-0381 or 301-827-0111 from a touch-tone telephone. Press 1 to enter the system. At the second voice prompt, press 1 to order a document. Enter the document number (1224) followed by the pound sign (#). Follow the remaining voice prompts to complete your request.
Persons interested in obtaining a copy of the guidance may also do so by using the Internet. CDRH maintains an entry on the Internet for easy access to information including text, graphics, and files that may be downloaded to a personal computer with Internet access. Updated on a regular basis, the CDRH home page includes device safety alerts,
This guidance contains information collection provisions that are subject to review by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (the PRA) (44 U.S.C. 3501-3520). The collections of information addressed in the guidance document have been approved by OMB in accordance with the PRA under the user fee forms (OMB control number 0910-0511), which expires on August 31, 2006, and the regulations governing administrative practices and procedures (21 CFR part 10, OMB control number 0910-0192).
Interested persons may submit to the Division of Dockets Management (see
Federal Emergency Management Agency, Emergency Preparedness and Response Directorate, Department of Homeland Security.
Notice and request for comments.
The Federal Emergency Management Agency, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on a proposed information collection. In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3506(c)(2)(A)), this notice seeks comments concerning the end-of-course evaluation form used to evaluate the National Fire Academy's (NFA) resident and regional delivery courses.
The NFA is mandated under the Fire Prevention and Control Act of 1974, Public Law 93-498, to provide training and education to the Nation's fire service and emergency service personnel. To maintain the quality of these programs, it is necessary to evaluate them on an ongoing basis. The National Fire Academy Course Evaluation Form provides one means of maintaining quality assurance for NFA resident and regional courses. This form is used for on-campus courses delivered at the NFA facility, located in Emmitsburg, Maryland, and for NFA regional courses, which are identical to the NFA resident courses, but offered in selected regions to students unable to travel to NFA for the resident offering of the course.
Interested persons should submit written comments to Muriel B. Anderson, Branch Chief, Records Management Branch, Information Resources Management Division, Information Technology Services Directorate, Federal Emergency Management Agency, Emergency Preparedness and Response Directorate, U.S. Department of Homeland Security, 500 C Street, SW., Room 316, Washington, DC 20472.
Contact Terry Gladhill, Program Analyst, National Fire Academy at (301) 447-1239 for additional information. You may contact Ms. Anderson for copies of the proposed collection of information at facsimile number (202) 646-3347 or e-mail address:
Federal Emergency Management Agency, Emergency Preparedness and Response Directorate, Department of Homeland Security.
Notice and request for comments.
The Federal Emergency Management Agency has submitted the following proposed information collection to the Office of Management and Budget for review and clearance in accordance with the requirements of the Paperwork Reduction Act of 1995 (44 U.S.C. 3507).
Requests for additional information or copies of the information collection should be sent to Muriel B. Anderson, Chief, Records Management Branch, Information Resources Management Division, Information Technology Services Directorate, Federal Emergency Management Agency at e-mail address
Office of the Chief Information Officer, HUD.
Notice.
The proposed information collection requirement described below has been submitted to the Office of Management and Budget (OMB) for review, as required by the Paperwork Reduction Act. The Department is soliciting public comments on the subject proposal.
This proposed survey measures the respondent's level of satisfaction with their living conditions, facilitates interaction and communication between PHAs/owners and residents, and guides managers in recognizing areas of concern identified by residents.
Interested persons are invited to submit comments regarding this proposal. Comments should refer to the proposal by name and OMB approval number (2507-0001) and should be sent to: Lauren Wittenberg, OMB Desk Officer, Office of Management and Budget, Room 10235, New Executive Office Building, Washington, DC 20503; Fax number (202) 395-6974; E-mail
Wayne Eddins, Reports Management Officer, AYO, Department of Housing and Urban Development, 451 Seventh Street, Southwest, 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.
This Notice also lists the following information:
Section 3507 of the Paperwork Reduction Act of 1995, 44 U.S.C. 35, as amended.
Office of the Chief Information Officer, HUD.
Notice.
The proposed information collection requirement described below has been submitted to the Office of Management and Budget (OMB) for review, as required by the Paperwork Reduction Act. The Department is soliciting public comments on the subject proposal.
This submission is a request for extension of OMB approval to collect the subject information. PHAs (or Resident Management Corporations) submit management information for evaluation of all major areas of a participant's management operations. The information is used to assess the management performance of PHAs.
Interested persons are invited to submit comments regarding this proposal. Comments should refer to the proposal by name and OMB approval number (2535-0106) and should be sent to: Lauren Wittenberg, OMB Desk Officer, Office of Management and Budget, Room 10235, New Executive Office Building, Washington, DC 20503; Fax number (202) 395-6974; E-mail
Wayne Eddins, Reports Management Officer, AYO, Department of Housing and Urban Development, 451 Seventh Street, Southwest, 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.
This Notice also lists the following information:
Section 3507 of the Paperwork Reduction Act of 1995, 44 U.S.C. 35, as amended.
Department of the Interior. Office of the Assistant Secretary—Water and Science; and the Utah Reclamation Mitigation and Conservation Commission (Commission).
Notice of availability, Draft Environmental Impact Statement (DEIS), Lower Duchesne river Wetlands Mitigation Project, Duchesne and Uintah Counties, Utah.
Pursuant to section 102(2)(c) of the National Environmental Policy Act of 1969, as amended, the Central Utah Project Completion Act Office, and the Utah Reclamation Mitigation and Conservation Commission (Commission), propose to create, restore, and otherwise enhance riparian wetland habitats along the Duchesne River, utah, as partial mitigation for the Bonneville Unit, Central Utah Project (CUP). This project has been planned in conjunction with the Ute Indian Tribe of the Uintah and Ouray Agency and is intended to fulfill long-standing commitments to mitigate for impacts to Ute Indian tribal and non-tribal wetland-wildlife habitats arising from construction and operation of the Bonneville Unit, and to provide additional wetland/wildlife benefits to the Ute Indian Tribe.
A Proposed Action and two alternatives are evaluated, along with the No Action Alternative, in the DEIS. Under the Proposed Action, approximately 7,790 acres of land composed of Ute Indian Tribal trust lands, up to 2,154 acres of fee lands to be acquired by the Federal Government, and a 1,087-acre parcel of existing Federal land would be acquired and/or developed into a cohesive wetlands management unit. A portion of the water currently managed by the Bureau of Indian Affairs for the uinta Indian Irrigation Project would be utilzed, along with water available under rights owned by the Federal Government, and any water acquired with fee lands, to improve existing, and restore prior existing, wetlands throughout the property. In general, the lands would be improved and managed for fish and wildlife habitat and wetland resources in a manner that replaces wetland resources, especially Ute Indian Tribal resources, lost or adversely impacted by the Bonneville Unit, CUP. All project lands would be managed by the Ute Indian Tribe under management agreements with the Joint Lead Agencies to achieve the prescribed wetlands-associated fish and wildlife benefits, and for other wetland/wildlife-related tribal benefits. The alternatives included in the DEIS are similar to the Proposed Action, differing only in the acreage amounts and locations.
The public is invited to submit comments on the adequacy of the DEIS and the assessment of environmental impacts. Comments received in response to this notice will be part of the public record and available for public review pursuant to the Freedom of Information Act (5 U.S.C. 552) and may be released to the public upon request. This will normally include names, addresses, and any other personal information be withheld from such releases by so indicating in their letter of comment or by means of separate written communication.
The DEIS will be available for public review and comment for a minimum of forty-five (45) calendar days following the publication of this notice. The deadline for submittal of written comments on the DEIS will be stated on the cover sheet of the document and noted in the transmittal letter to all reviewers.
Comments on the DEIS may also be presented verbally or in writing at the public meetings to be held at the vicinity of the project. Public meetings are being held to present the evaluation of environmental impacts to the public and provide additional opportunity for public comment on the project. The places, dates, and times of public
Public meetings will be held at the following locations:
December 16, 2003: West Junior High School, East Highway 40, Fort Duchesne, Utah 84026.
December 17, 2003: Crossroads Senior Center, 50 East 200 South, Roosevelt, Utah 84066.
December 18, 2003: State Office, Bureau of Land Management, Third Floor Conference Room, 324 South State Street, Salt Lake City, Utah 84138.
All meetings will begin at 6 pm and conclude at 8 pm.
Comments on the DEIS should be addressed to: Mr. Ron Groves, Director, Wissiups Wetlands Project, Ute Indian Tribe, PO Box 190, Ft. Duchesne, Utah 84026.
Copies of the Draft EIS and the resource technical reports can be obtained by contacting Mr. Ron Groves, Director, Wissiups Wetlands Project, Ute Indian Tribe, PO Box 190, Ft. Duchesne, Utah 84026, Telephone: (435) 722-5867, E-mail address:
Copies of the DEIS are also available for inspection at:
Utah Reclamation Mitigation and Conservation Commission, 102 West 500 South, Suite 315, Salt Lake City, Utah 84101.
Department of the Interior, Central Utah Project Completion Act Office, 302 East 1860 South, Provo, Utah 84606.
Department of the Interior, Natural Resource Library, 1849 C Street, NW., Washington, DC 20240.
Duchesne County Library, 70 East Lagoon, Roosevelt, Utah 84066.
Headquarters, Ute Indian Tribe of the Uintah and Ouray Agency, 988 South 7500 East, Ft. Duchesne, Utah 84026.
Information on other matters related to this notice may be obtained by calling or writing Mr. Ralph G. Swanson, Program Coordinator, CUP Completion Act Office, Department of the Interior, 302 East 1860 South, Provo UT 84606-6154, Telephone (801) 379-1254, E-mail address:
Fish and Wildlife Service, Interior.
Notice of intent.
The U.S. Fish and Wildlife Service (Department of the Interior), California Department of Fish and Game, and California State Lands Commission are joint trustees (Trustees) for natural resources and are authorized to assess injuries to Federal and State resources caused by the MV
To ensure consideration, we must receive written comments on or before December 24, 2003.
The Administrative Record will be available for public inspection, by appointment, during normal business hours at these locations:
You may schedule a time to review the Administrative Record by contacting the Sacramento Fish and Wildlife Office or the California Department of Fish and Game's Eureka office (
You may submit your written comments on this Notice, Administrative Record materials, and all upcoming restoration planning documents by any of the following methods:
1. Send written comments and information by mail to Charlene Hall, Sacramento Fish and Wildlife Office, at the above address.
2. Hand-deliver written comments to the Sacramento Fish and Wildlife Office, at the above address.
3. Fax comments to (916) 414-6713 (Attn.: Charlene Hall).
4. Send comments by electronic mail (e-mail) to
Charlene Hall, Sacramento Fish and Wildlife Office, telephone (916) 414-6590; California Department of Fish and Game, Eureka, (707) 441-5752. To receive public notices about future Restoration Planning activities, contact Charlene Hall by telephone.
On or about September 6, 1999, oil was spilled from the dredge vessel M/V Stuyvesant into the Pacific Ocean offshore of Humboldt Bay in the State of California. Oil was spread by tide, currents and winds and washed ashore along the coasts of Humboldt and Del Norte Counties. The oil affected a number of natural resources, including seabirds, shorebirds, marine waters, and beaches. This oil spill is hereafter referred to as the “Incident.”
Pursuant to section 1006 of the Oil Pollution Act (OPA), 33 U.S.C. 2701
This Notice is to announce, pursuant to § 990.44 of the NRDA regulations, that the Trustees, having collected and analyzed data, intend to proceed with restoration planning actions to address injuries to natural resources resulting from the Incident. The purpose of this restoration planning effort is to further evaluate injuries to natural resources and services and to use that information to determine the need for, type of, and scale of restoration actions.
The Trustees have made the following determinations pursuant to 15 CFR 990.41 and 990.42:
(1) On or about September 6, 1999, the dredge vessel MV
(2) The Incident was not permitted under a permit issued under Federal, State, or local law; was not from a public vessel; and was not from an onshore facility subject to the Trans-Alaska Pipeline Authority Act, 43 U.S.C. 1651
(3) Oil discharged during the Incident affected marine and shoreline habitats, wildlife, and human uses of natural resources in the area. Consequently, natural resources under the trusteeship of the Trustees have been injured as a result of the Incident.
(4) As a result of the foregoing determinations, the Trustees have jurisdiction to pursue restoration under the Federal Oil Pollution Act (OPA), 33 U.S.C. 2701-2761, and California's Lempert-Keene-Seastrand Oil Spill Prevention and Response Act, Government Code Sections 8670.1
The Trustees have determined, pursuant to 15 CFR 99.42(a), that:
(1) Data collected pursuant to 15 CFR 990.43 demonstrate that injuries to natural resources have resulted from the Incident, including but not limited to the following:
(i) Injury to a wide variety and number of seabirds and shorebirds, among them marbled murrelets and western snowy plovers (species listed as threatened under the Endangered Species Act, 16 U.S.C. 1531-1544);
(ii) Impacts to beaches, tide pools, offshore rocks, sea cliffs, and jetties such that the ecological services provided by these habitats were reduced for varying periods of time;
(iii) Impacts to water quality in marine waters affected by the spill such that the ecological services provided by this habitat were reduced for some period of time; and
(iv) Lost public recreational uses of beaches, parks, and other public areas, including lost or diminished opportunities for public hiking, camping, fishing, surfing, beach combing, and wildlife viewing.
(2) The response and cleanup actions taken during early stages of the Incident have not adequately addressed the injuries resulting from the Incident to the extent where restoration would not be necessary. Response efforts included collection and removal of oil and oiled debris along beaches and rehabilitation of oiled birds. These efforts reduced the magnitude and duration of impacts to beach habitats and wildlife, but did not eliminate all injuries or make restoration unnecessary.
(3) Potential assessment procedures to be used to evaluate injuries and to design and implement the appropriate type and scale of restoration for these injured natural resources and services consist of, but are not limited to:
(i) Compilation of data on numbers, species, and collection locations of dead or debilitated birds found during the spill response;
(ii) Compilation of demographic data for key bird species;
(iii) Field studies and/or literature searches to estimate rates of removal of carcasses from beaches by scavengers and effectiveness of wildlife operations personnel and techniques at finding oiled birds stranded on beaches;
(iv) Computer modeling of bird distribution and abundance data and/or oil trajectory data to estimate spill-related avian mortality;
(v) Resource Equivalency Analysis or other techniques to scale bird restoration projects to bird injuries;
(vi) Habitat Equivalency Analysis or other techniques to scale habitat restoration projects to habitat injuries;
(vii) Field studies to ascertain restoration suitability of various tracts of land; and
(viii) Analysis of habitat quality information to properly scale restoration projects.
(4) Feasible primary and compensatory restoration actions exist to address injuries from the Incident. Restoration activities are expected to focus on marbled murrelets and other seabirds, snowy plovers and other shorebirds, marine and shoreline habitats, and lost recreation. Restoration actions for the injured resources may include, but are not necessarily limited to:
(i) Acquisition of marbled murrelet nesting habitat from willing sellers, potentially including acquisition of forested lands identified as the Grizzly Creek Marbled Murrelet Conservation Area in the Pacific Lumber Company's Habitat Conservation Plan;
(ii) Enhancement and/or protection of nesting locations of seabirds along the California coast;
(iii) Enhancement and/or protection of beaches, wetlands and other habitats used by bird species that were affected by the spill, potentially including eradication of invasive exotic plants from dune areas; and
(iv) Enhancement of trails or other facilities used for public recreation at beaches or parks where public access was lost or diminished during the spill response.
The Trustees have opened an Administrative Record (Record) in compliance with 15 CFR 990.45. The Record includes documents relied upon by the Trustees during the assessment and restoration planning performed thus far in connection with the Incident, including data supporting the above determinations. The Record is on file and available to the public at the locations specified in the
Pursuant to 15 CFR 990.14(d), the Trustees seek public involvement in restoration planning for this Incident, through public review of, and comment on, this Notice and the documents contained in the Administrative Record, as well as on the Draft Restoration Plan after it has been prepared.
Please submit electronic comments in an ASCII file format and avoid the use of special characters and encryption. Please also include “Attn: Stuyvesant NOI” and your name and return address in your e-mail message. If you do not receive a confirmation from the system that we have received your e-mail message, please contact us directly by calling Charlene Hall at the Sacramento Fish and Wildlife Office (
Our practice is to make all comments, including names and home addresses of respondents, available for public review during regular business hours. Individual respondents may request that we withhold their home addresses from the record, which we will honor to the extent allowable by law. In some circumstances, we would withhold from the record a respondent's identity, as allowable by law. If you wish for us to withhold your name and/or address, you must state this prominently at the beginning of your comments. However, we will not consider anonymous comments. We will make all submissions from organizations or businesses, and from individuals identifying themselves as representatives or officials of organizations or businesses, available for public inspection in their entirety.
The primary author of this notice is Daniel Welsh (Sacramento Fish and Wildlife Office; see
The authority for this action is the Oil Pollution Act of 1990 (33 U.S.C. 2701
A request extending the information collection described has been submitted to the Office of Management and Budget (OMB) for Approval under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. chapter 35). Copies of the proposed collection instrument may be obtained by contacting the USGS clearance officer at the phone number listed below. OMB has up to 60 days to approve or disapprove the information collection, but may respond after 30 days; therefore, public comments should be submitted to OMB within 30 days in order to assure their maximum consideration. Comments and suggestions on the proposal should be made directly to the Desk Officer for the Interior Department, Office of Regulatory Affairs, OMB, via e-mail to
Specific public comments are requested as to:
1. Whether the collection of information is necessary for the proper performance of the functions on the USGS, including whether the information will have practical utility;
2. The accuracy of the USGS estimate of the burden of the collection of information, including the validity of the methodology and assumptions used;
3. The quality, utility, and clarity of the information to be collected; and
4. How to minimize the burden of the collection of information on those who are to respond, including the use of appropriate automated, electronic, mechanical, or other forms of information technology.
The Proposal to extend the collection of information described below has been submitted to the Office of Management and Budget for approval under the provisions of the Paperwork Reduction Act (44 U.S.C. chapter 35). Copies of the proposed collection of information and related forms may be obtained by contacting the Bureau's clearance officer at the phone number listed below. OMB has up to 60 days to approve or disapprove the information collection, but may respond after 30 days; therefore public comments should be submitted to OMB within 30 days in order to assure maximum consideration. Comments and suggestions on the proposal should be made directly to the Desk Officer for the Interior Department, OMB-OIRA, via e-mail to
Specific public comments are requested as to:
1. Whether the collection of information is necessary for the proper performance of the functions on the bureaus, including whether the information will have practical utility;
2. The accuracy of the bureau's estimate of the burden of the collection of information, including the validity of the methodology and assumptions used:
3. The quality, utility, and clarity of the information to be collected; and
4. How to minimize the burden of the collection of information on those who are to respond, including the use of appropriate automated, electronic, mechanical, or other forms of information technology.
Bureau of Land Management, Interior.
Notice of realty action.
The following described public land is determined suitable for classification for leasing or conveyance to the Jemez Mountain School District, Gallina, New Mexico under the provisions of the Recreation and Public Purposes (R&PP) Act, as amended (43 U.S.C. 869
Interested parties may submit comments regarding the proposed leasing/conveyance or classification of the lands to the Bureau of Land Management at the following address until January 8, 2004. The Bureau of Land Management, Farmington Field Manager, 1235 La Plata Highway, Farmington, NM 87401, who may sustain, vacate, or modify this realty action, will review any adverse comments. In the absence of any adverse comments, this realty action becomes the final determination of the Department of the Interior and effective on January 23, 2004.
Mary Jo Albin, Realty Specialist, at the Bureau of Land Management, Farmington Field Office, at (505) 599-6332. Information related to this action, including the environmental assessment, is available for review at the Bureau of Land Management, Farmington Field Office, 1235 La Plata Highway, and Farmington, NM 87401.
The Jemez Mountain School District proposes to use the land for a school with related buildings and educational facilities.
Containing 40 acres, more or less.
Publication of this notice segregates the public land described above from all other forms of appropriation under the public land laws, including the general mining laws, except for leasing and conveyance under the Recreation and Public Purposes Act and leasing under the mineral leasing laws for a period until November 25, 2005. The segregative affect will terminate upon issuance of the lease and patent to the Jemez Mountain School District or November 25, 2005, whichever occurs first.
The lease, when issued, will be subject to the following terms:
1. Provisions of the Recreation and Public Purposes Act and to all applicable regulations of the Secretary of the Interior.
2. Provisions of the Resource Conservation and Recovery Act of 1976 (RCRA) as amended, 42 U.S.C. 6901-6987 and the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (CERCLA) as amended, 42 U.S.C. 9601 and all applicable regulations.
3. Provisions of Title VI of the Civil Rights Act of 1964.
4. Provisions that the lease be operated in compliance with the approved Development Plan.
The patent, when issued, will be subject to the following terms:
1. Reservation to the United States of a right-of-way for ditches and canals in accordance with 43 U.S.C. 945.
2. Reservation to the United States of all minerals.
3. All valid existing rights,
4. Provisions that if the patentee or its successor attempts to transfer title to or control over the land to another or the land is devoted to a use other than that for which the land was conveyed, without the consent of the Secretary of the Interior or his delegate, or prohibits or restricts, directly or indirectly, or permits it agents, employees, contractors, or subcontractors, including without limitation, lessees, sublessees and permittees, to prohibit or restrict, directly or indirectly, the use of any part of the patented lands or any of the facilities whereon by any person because of such person's race, creed, color, or national origin, title shall revert to the United States.
Leasing and later patenting is consistent with current Bureau of Land Management policies and land use planning. The proposal serves the public interest since it would provide a school with educational facilities that would meet the needs of the surrounding Navajo Indian population.
International Trade Commission.
December 1, 2003 at 11 a.m.
Room 101, 500 E Street SW., Washington, DC 20436, Telephone: (202) 205-2000.
Open to the public.
1. Agenda for future meetings: None
2. Minutes
3. Ratification List
4. Inv. No. 731-TA-1056 (Preliminary) (Certain Aluminum Plate from South Africa)—briefing and vote. (The Commission is currently scheduled to transmit its determination to the Secretary of Commerce on December 1, 2003; Commissioners' opinions are currently scheduled to be transmitted to the Secretary of Commerce on or before December 8, 2003.)
5. Outstanding action jackets: None
In accordance with Commission policy, subject matter listed above, not disposed of at the scheduled meeting, may be carried over to the agenda of the following meeting.
By order of the Commission.
The Secretary's Advisory Committee for Veterans' Employment and Training was established under section 4110 of title 38, United States Code, to bring to the attention of the Secretary, problems and issues relating to veterans' employment and training.
Notice is hereby given that the Secretary of Labor's Advisory Committee for Veterans' Employment and Training will meet on Monday, December 8, 2003, beginning at 9 a.m. at the Embassy Suites Hotel, 1300 Concourse Drive, Baltimore, Maryland (near the Baltimore/Washington International Airport).
Written comments are welcome and may be submitted by addressing them to: Mr. John Muckelbauer, Designated Federal Official, Office of the Assistant Secretary for Veterans' Employment and Training, U.S. Department of Labor, 200 Constitution Avenue, NW., Room S-1325, Washington, DC, 20210.
The agenda will focus on the best ways to provide job-search assistance and related services to separating service members during their period of transition into civilian life.
The meeting will be open to the public.
Persons with disabilities needing special accommodations should contact Mr. John Muckelbauer at telephone number 202/693-4700 no later than Wednesday, December 3, 2003.
By application of July 12, 2003, a petitioner requested administrative reconsideration of the Department's negative determination regarding eligibility for workers and former workers of the subject firm to apply for Trade Adjustment Assistance (TAA). The denial notice applicable to workers of Agilent Technologies, Inc., Information Technology Division (IT), Loveland, Colorado was signed on June 20, 2003, and published in the
Pursuant to 29 CFR 90.18(c) reconsideration may be granted under the following circumstances:
(1) If it appears on the basis of facts not previously considered that the determination complained of was erroneous;
(2) if it appears that the determination complained of was based on a mistake in the determination of facts not previously considered; or
(3) if in the opinion of the Certifying Officer, a mis-interpretation of facts or of the law justified reconsideration of the decision.
The TAA petition was filed on behalf of workers at Agilent Technologies, Inc., Information Technology Division (IT), Loveland, Colorado engaged in computer consulting services combined with providing information technology. The petition was denied because the petitioning workers did not produce an article within the meaning of section 222 of the Act.
The petitioner alleges that the negative determination was erroneous because they produce “new software and firmware to support test hardware sent abroad.” The petitioner appears to imply that the fact that they are developing “new” software for a U.S. company, and that their jobs are being shifted abroad, that they should be considered eligible for TAA.
Software development does not constitute production within the meaning of section 222 of the Trade Act.
Even if the software development performed by subject firm workers did constitute production, an investigation would have to establish whether (a) imports contributed importantly to layoffs at the subject firm, or (b) whether a shift in production occurred to a country within the following four categories:
1. Is party to a free trade agreement with the United States.
2. Is a beneficiary country under the Andean Trade Preference Act.
3. Is a beneficiary country under African Growth and Opportunities Act.
4. Is a beneficiary country under the Caribbean Basin Economic Recovery Act.
The Software developed by subject firm workers is sent to Singapore for incorporation into foreign production. Thus, the software is developed exclusively for the export market, as their production is incorporated into a final product produced at a foreign facility. Therefore, there is no evidence of imports that are “like or directly competitive” with those produced at the subject firm contributing importantly to layoffs at the subject facility division.
Finally, the United States' Free Trade Agreement with Singapore is expected to come into force in January of 2004, at which point shifts in production to Singapore will meet the required “shift in production” criteria outlined in TAA legislation. However, this future date falls outside of the relevant period of this investigation and thus has no bearing on petitioning worker eligibility.
After review of the application and investigative findings, I conclude that there has been no error or misinterpretation of the law or of the facts which would justify reconsideration of the Department of Labor's prior decision. Accordingly, the application is denied.
Pursuant to Section 221 of the Trade Act of 1974, as amended, an investigation was initiated on October 14, 2003 in response to a worker petition filed on behalf of workers at Agilent Technologies, Loveland, Colorado.
The petitioning group of workers is covered by an earlier petition filed on October 7, 2003 (TA-W-53,164) that is the subject of an ongoing investigation for which a determination has not yet been issued. Further investigation in this case would duplicate efforts and serve no purpose; therefore the investigation under this petition has been terminated.
By application of August 26, 2003, a petitioner requested administrative reconsideration of the Department's negative determination regarding eligibility for workers and former workers of the subject firm to apply for Trade Adjustment Assistance (TAA). The denial notice was signed on August 12, 2003, and published in the
Pursuant to 29 CFR 90.18(c) reconsideration may be granted under the following circumstances:
(1) If it appears on the basis of facts not previously considered that the determination complained of was erroneous;
(2) if it appears that the determination complained of was based on a mistake in the determination of facts not previously considered; or
(3) if in the opinion of the Certifying Officer, a mis-interpretation of facts or of the law justified reconsideration of the decision.
The TAA petition, filed on behalf of workers at Alstom T&D, Industries, High Voltage Switchgear Division, Charleroi, Pennsylvania was denied because the “contributed importantly” group eligibility requirement of section 222(3) of the Trade Act of 1974 was not met and production was not shifted abroad.
The worker who filed the reconsideration request stated that affiliated companies of Alstom T&D Industries in Mexico produce the same products as Alstom T&D Industries, High Voltage Switchgear Division, Charleroi, Pennsylvania. Consequently, a decline in production and employment at the subject facility is a result of increasing production in Mexico facilities.
Contact with a company official confirmed that Alstom International, a parent company of the subject firm, does indeed own a facility in Mexico. However, the company official specified that the products manufactured in Mexico are not like or directly competitive with those produced in Charleroi, Pennsylvania. Workers at the Mexico facility specialize in production of instrumentation transformers and circuit breakers for LIFE tanks, while workers at Alstom T&D, Industries, High Voltage Switchgear Division, Charleroi, Pennsylvania produce circuit breakers for DEAD tanks. Both facilities cover two completely different and unaffiliated markets. Thus, an increase in production at the facilities in Mexico has no impact on production and employment at the subject facility. The company official stated that there was no evidence of a shift from the subject facility to the Mexican affiliate or any U.S. imports resulting from this or any other foreign production and a decrease in production at Alstom T&D, Industries, High Voltage Switchgear Division, Charleroi, Pennsylvania is solemnly the result of the overall decrease of demand in the market.
After review of the application and investigative findings, I conclude that there has been no error or misinterpretation of the law or of the facts which would justify reconsideration of the Department of Labor's prior decision. Accordingly, the application is denied.
Pursuant to Section 221 of the Trade Act of 1974, as amended, an investigation was initiated on October 1, 2003, in response to a petition filed by the company on behalf of workers at Arland Tool and Manufacturing, Inc., Sturbridge, Massachusetts.
The petitioner has requested that the petition be withdrawn. Consequently, the investigation has been terminated.
Pursuant to Section 221 of the Trade Act of 1974, an investigation was initiated on September 24, 2003 in response to a worker petition which was filed on behalf of workers at Chicago Cold Rolling, Portage, Indiana.
An active certification covering the petitioning group of workers is already in effect (TA-W-51,241I, as amended). Consequently, further investigation in this case would serve no purpose, and the investigation has been terminated.
Pursuant to Section 221 of the Trade Act of 1974, as amended, an investigation was initiated on August 18, 2003, in response to a worker petition filed by a company official on behalf of workers at Delta International Machinery, Pentair Tool Group, Tupelo, Mississippi.
The petitioning individual of the company has requested that this petition be withdrawn; therefore, further investigation would serve no purpose and the investigation is terminated.
Pursuant to Section 221 of the Trade Act of 1974, an investigation was initiated on October 1, 2003 in response to a worker petition filed by a company official on behalf of workers at DuPont Teijin Films, Florence, South Carolina.
The petitioner has requested that the petition be withdrawn. Consequently, the investigation has been terminated.
Petitions have been filed with the Secretary of Labor under section 221(a) of the Trade Act of 1974 (“the Act”) and are identified in the Appendix to this notice. Upon receipt of these petitions, the Director of the Division of Trade Adjustment Assistance, Employment and Training Administration, has instituted investigations pursuant to section 221(a) of the Act.
The purpose of each of the investigations is to determine whether the workers are eligible to apply for adjustment assistance under title II, chapter 2, of the Act. The investigations will further relate, as appropriate, to the determination of the date on which total or partial separations began or threatened to begin and the subdivision of the firm involved.
The petitioners or any other persons showing a substantial interest in the subject matter of the investigations may request a public hearing, provided such request is filed in writing with the Director, Division of Trade Adjustment Assistance, at the address shown below, not later than December 4, 2003.
Interested persons are invited to submit written comments regarding the subject matter of the investigations to the Director, Division of Trade Adjustment Assistance, at the address shown below, not later than December 4, 2003.
The petitions filed in this case are available for inspection at the Office of the Director, Division of Trade Adjustment Assistance, Employment and Training Administration, U.S. Department of Labor, Room C-5311, 200 Constitution Avenue, NW., Washington, DC 20210.
Pursuant to Section 221 of the Trade Act of 1974, as amended, an investigation was initiated on October 6, 2003 in response to a petition filed by a company official on behalf of workers of Fishing Vessel (F/V) Tri-K, Palmer, Alaska.
The investigation revealed that the subject firm did not separate or threaten to separate a significant number or proportion of workers as required by Section 222 of the Trade Act of 1974. Significant number or proportion of the workers means that at least three workers in a firm with a workforce of fewer than 50 workers would have to be affected. Separations by the subject firm did not meet this threshold level; consequently the investigation has been terminated.
Pursuant to Section 221 of the Trade Act of 1974, as amended, an investigation was initiated on October 6, 2003, in response to a worker petition filed by the United Automobile, Aerospace and Agricultural Implement Workers of America (UAW), Local 714, on behalf of workers at FMC Measurement Solutions, Erie, Pennsylvania.
The Department issued a negative determination applicable to the petitioning group of workers on September 10, 2003 (TA-W-52,576). No new information or change in circumstances is evident which would result in a reversal of the Department's previous determination. Consequently, further investigation would serve no purpose, and the investigation has been terminated.
Pursuant to Section 221 of the Trade Act of 1974, as amended, an investigation was initiated on September 24, 2003 in response to a petition filed by a company official on behalf of workers at Gary Works, a subsidiary of United States Steel Corporation, Gary, Indiana.
The petitioner has requested that the petition be withdrawn. Consequently, the investigation has been terminated.
Pursuant to Section 221 of the Trade Act of 1974, as amended, an investigation was initiated on September 15, 2003 in response to a worker petition filed by a company official on behalf of workers at Jan-Sew Manufacturing, Crossville, Tennessee.
The petitioning worker group is included in a petition filed on September 15, 2003 (TA-W-53,092) that is the subject of an ongoing investigation for which a determination has not yet been issued. Further investigation in this case would therefore serve no purpose and the investigation under this petition has been terminated.
Petitions have been filed with the Secretary of Labor under section 221(a) of the Trade Act of 1974 (“the Act”) and are identified in the Appendix to this notice. Upon receipt of these petitions, the Director of the Division of Trade Adjustment Assistance, Employment and Training Administration, has instituted investigations pursuant to section 221(a) of the Act.
The purpose of each of the investigations is to determine whether the workers are eligible to apply for adjustment assistance under title II, chapter 2, of the Act. The investigations will further relate, as appropriate, to the determination of the date on which total or partial separations began or threatened to begin and the subdivision of the firm involved.
The petitioners or any other persons showing a substantial interest in the subject matter of the investigations may request a public hearing, provided such request is filed in writing with the Director, Division of Trade Adjustment Assistance, at the address shown below, not later than December 4, 2003.
Interested persons are invited to submit written comments regarding the subject matter of the investigations to the Director, Division of Trade Adjustment Assistance, at the address shown below, no later than December 4, 2003.
The petitions filed in this case are available for inspection at the Office of the Director, Division of Trade Adjustment Assistance, Employment and Training Administration, U.S. Department of Labor, Room C-5311, 200 Constitution Avenue, NW., Washington, DC 20210.
By application of August 1, 2003, a petitioner requested administrative reconsideration of the Department's negative determination regarding eligibility to apply for Trade Adjustment Assistance (TAA), applicable to workers and former workers of the subject firm. The denial notice was signed on July 11, 2003, and published in the
Pursuant to 29 CFR 90.18(c) reconsideration may be granted under the following circumstances:
(1) If it appears on the basis of facts not previously considered that the determination complained of was erroneous;
(2) If it appears that the determination complained of was based on a mistake in the determination of facts not previously considered; or
(3) If in the opinion of the Certifying Officer, a mis-interpretation of facts or of the law justified reconsideration of the decision.
The petition for the workers of LeSportsac, Manufacturing and Distribution Division, Stearns, Kentucky was denied because criterion (2) was not met. Sales and production of luggage and women's handbags at the subject plant increased from February through May 2001 to the corresponding period of 2002 and also increased from February through May of 2002 to the same period in 2003.
In the request for reconsideration, the petitioner alleged that figures indicating sales and production increases at the subject facility incorporated volumes of imports from China. The petitioner questions how an employment decline could have occurred in conjunction with a sales/production increase.
A communication with a company official in regard to this allegation revealed that the sales and production figures provided to the Department in this investigation were for the Stearns facility exclusively. The official further stated that the company is in the midst of a reorganization of its domestic facilities and that employment declines were a result of streamlining production processes more efficiently and reapportioning employment to other domestic facilities.
After review of the application and investigative findings, I conclude that there has been no error or misinterpretation of the law or of the
Pursuant to Section 221 of the Trade Act of 1974, as amended, an investigation was initiated on August 11, 2003 in response to a petition filed by a company official on behalf of workers of the Corey Farmer Set Net Operation, Eagle River, Alaska.
The investigation revealed that the subject firm did not separate or threaten to separate a significant number or proportion of workers as required by Section 222 of the Trade Act of 1974. Significant number or proportion of the workers means that at least three workers in a firm with a workforce of fewer than 50 workers would have to be affected. Separations by the subject firm did not meet this threshold level; consequently the investigation has been terminated.
By application of June 24, 2003, a petitioner requested administrative reconsideration of the Department's negative determination regarding eligibility for workers and former workers of the subject firm to apply for Trade Adjustment Assistance (TAA). The denial notice was signed on March 30, 2003 and published in the
Pursuant to 29 CFR 90.18(c) reconsideration may be granted under the following circumstances:
(1) If it appears on the basis of facts not previously considered that the determination complained of was erroneous;
(2) If it appears that the determination complained of was based on a mistake in the determination of facts not previously considered; or
(3) If in the opinion of the Certifying Officer, a mis-interpretation of facts or of the law justified reconsideration of the decision.
The TAA petition, filed on behalf of workers at Metso Paper USA, Inc., Beloit, Wisconsin was denied because the “contributed importantly” group eligibility requirement of Section 222 of the Trade Act of 1974 was not met and production was not shifted abroad.
In the reconsideration investigation, it was revealed that the production worker group is embedded within the Logistics Division of the subject facility.
The petitioner alleges that “production has shifted to Finland for many of the spare parts supplied from Metso to U.S. papermills.” Contact from another petitioner alleged that the company was serving former and present subject firm customers with foreign production, and implies that the company is attempting to hide the fact that they are engaged in foreign production from their customers.
A history of the subject facility site revealed that the subject facility was once owned by Beloit Paper, and was sold to the current owners following bankruptcy in 2000. The purchasing company included a facility in Finland. Prior to the relevant period of this investigation, the new owners dramatically downsized the production capacity of the subject facility due to dramatically decreased demand following the bankruptcy. Contact with company officials revealed that the subject facility only produced doctor blades and headbox vanes (parts used in paper making equipment) in the relevant period, and that the majority of work performed in the Logistics Division of the Metso Beloit facility involves buying, warehousing and shipping many other spare parts purchased by, but not produced at the subject facility. The officials stated that the company had not shifted production of doctor blades or headbox vanes away from the subject facility. One official did confirm that the company did outsource many of the parts that were warehoused at the same site. However, items that are not like or directly competitive with production at the subject facility in the relevant period are not pertinent to this investigation.
The petitioner states that production of doctor blades shifted to Finland, and implies that this shifted production is being used to supply U.S. customers. Further contact with the petitioners yielded a request that we obtain a copy of a “BaaN” report from the company that would reveal the volume of doctor blades that had been sourced in Finland, and subsequently imported to the U.S.
Contact with a company official revealed that the subject facility supplied almost all of their North American business. He further stated that the Finnish facility did on rare occasions supply customers with doctor blades in cases where an unanticipated increased demand occurred. The official later clarified that they also imported Finnish doctor blades in cases where “odd ball” sizes were requested, but the doctor blades with these specifications had never been produced at the subject facility. Results of the company “BaaN” report revealed that imports represented a very small amount of total subject firm production.
The petitioner asserted that “castings” previously produced in “Beloit, Wisconsin or the “Stateline Area” surrounding Beloit” were shifted to Canada.
Castings were not produced at the subject facility in the relevant period and are therefore irrelevant to this investigation.
The petitioner alleges that coater rods and assemblies previously “machined” at the subject facility are currently being produced in finished form in Finland for U.S. customers.
In regard to this issue, a company official stated that coater rods produced in Finland are “cut to length” at the subject facility, but there has been no change in the production location in the relevant period.
The petitioner alleges that the company's customers have begun purchasing headbox vanes from competitors in Canada.
The reconsideration investigation revealed that plant production of headvane boxes declined slightly in the relevant period, while sales increased. It was revealed that the subject firm produces two different types of headvane boxes, one made of lexan (which needs to be replaced every six months or so), and the other made of graphite, which lasts for two to three years before requiring a replacement.
After review of the application and investigative findings, I conclude that there has been no error or misinterpretation of the law or of the facts which would justify reconsideration of the Department of Labor's prior decision. Accordingly, the application is denied.
Pursuant to Section 221 of the Trade Act of 1974, as amended, an investigation was initiated on September 26, 2003 in response to a petition filed on by a company official on behalf of workers of Modern Packaging, Inc., Deer Park, New York.
The petitioner has requested that the petition be withdrawn. Consequently, the investigation has been terminated.
By application of August 6, 2003, a petitioner requested administrative reconsideration of the Department's negative determination regarding eligibility to apply for Trade Adjustment Assistance (TAA), applicable to workers and former workers of the subject firm. The denial notice was signed on July 22, 2003, and published in the
Pursuant to 29 CFR 90.18(c) reconsideration may be granted under the following circumstances:
(1) If it appears on the basis of facts not previously considered that the determination complained of was erroneous;
(2) If it appears that the determination complained of was based on a mistake in the determination of facts not previously considered; or
(3) If in the opinion of the Certifying Officer, a mis-interpretation of facts or of the law justified reconsideration of the decision.
The petition for the workers of Pall Corporation, Life Sciences Groups, Capsule Department, Ann Arbor, Michigan was denied because criterion (1) was not met. Employment at the subject plant increased from 2001 to 2002, and January 2003 as compared to January 2002.
The petitioner suggests that the data indicating an increase in employment at the subject facility is mitigated by the fact that the company has reduced positions in “skilled worker jobs”, and that the total number of employees is buffered by “low wage level work'.
In following the directives of TAA legislation, the Department assesses whether worker groups are separately identifiable by product line. If workers at the subject facility are all engaged in the production of the same products, it is directed to consider the totals of all production workers. Thus the type of distinctions sought by the petitioner are not relevant to an investigation regarding group eligibility requirements for TAA.
In the request for reconsideration, the petitioner seems to imply that a shift of production to Puerto Rico on the part of the company constitutes a shift of production to a country included in Caribbean Basin Economic Recovery Act. The petitioner seems to conclude that it is this shift that is responsible for separations at the subject facility.
Puerto Rico is a U.S. Territory and therefore any movement of production to this region would not constitute a shift of production to a foreign source.
After review of the application and investigative findings, I conclude that there has been no error or misinterpretation of the law or of the facts which would justify reconsideration of the Department of Labor's prior decision. Accordingly, the application is denied.
By application of August 18, 2003, a petitioner requested administrative reconsideration of the Department's negative determination regarding eligibility for workers and former workers of the subject firm to apply for Trade Adjustment Assistance (TAA). The denial notice was signed on July 25, 2003 and published in the
Pursuant to 29 CFR 90.18(c) reconsideration may be granted under the following circumstances:
(1) If it appears on the basis of facts not previously considered that the determination complained of was erroneous;
(2) If it appears that the determination complained of was based on a mistake in the determination of facts not previously considered; or
(3) If in the opinion of the Certifying Officer, a mis-interpretation of facts or of the law justified reconsideration of the decision.
The TAA petition, filed on behalf of workers at Pearl Baths, Inc., a division of MAXX, Inc., Brooklyn Park, Minnesota engaged in the production of whirlpool baths was denied because the “contributed importantly” group eligibility requirement of Section 222 of the Trade Act of 1974 was not met and production was not shifted abroad.
The petitioner's main allegation consisted in the fact that employees of the Marketing, Customer Service, Tech Service and Accounting Departments, who were engaged in production, were separated as a result of a shift of their positions to Canada.
Marketing, customer service, tech service and accounting do not constitute
Only in very limited instances are service workers certified for TAA, namely the worker separations must be caused by a reduced demand for their services from a parent or controlling firm or subdivision whose workers produce an article and who are currently under certification for TAA.
After review of the application and investigative findings, I conclude that there has been no error or misinterpretation of the law or of the facts which would justify reconsideration of the Department of Labor's prior decision. Accordingly, the application is denied.
By application of June 14, 2003, petitioners requested administrative reconsideration of the Department's negative determination regarding eligibility to apply for Trade Adjustment Assistance (TAA), applicable to workers and former workers of the subject firm. The denial notice was signed on June 6, 2003, and published in the
Pursuant to 29 CFR 90.18(c) reconsideration may be granted under the following circumstances:
(1) If it appears on the basis of facts not previously considered that the determination complained of was erroneous;
(2) If it appears that the determination complained of was based on a mistake in the determination of facts not previously considered; or
(3) If in the opinion of the Certifying Officer, a mis-interpretation of facts or of the law justified reconsideration of the decision.
The petition for the workers of Plastene Supply Co., Plant 1, Division of Siegel Robert, Inc., Portageville, Missouri was denied because the “contributed importantly” group eligibility requirement of Section 222(3) of the Trade Act of 1974, as amended, was not met and production did not shift to a foreign source. The subject firm shifted production to another domestic source.
In the reconsideration request, the petitioners state that other products were produced at the subject facility other than the “automotive nameplates” cited in the negative determination.
The negative determination was based on data received by the company regarding sales totals of all products at the subject facility. This data indicates that there was a direct domestic shift from the Portageville plant to another company owned plant in Farmington, Missouri. Totals of collective sales of competitive products from these two plants over the relevant period of this investigation indicate that there were no declines in domestic production.
The petitioners further allege that the subject firm served as a “downstream producer” because “many parts were shipped to Canada or Mexico”.
The initial negative determination was issued on the basis of a primary investigation; no specific trade certified customers were indicated either in the initial petition or the reconsideration request. Further, in order to be eligible as secondary “downstream producers”, the subject facility would have to assemble or finish products from primary firm production that was the basis for a trade adjustment assistance certification. There is no indication that subject firm production served this purpose.
After review of the application and investigative findings, I conclude that there has been no error or misinterpretation of the law or of the facts which would justify reconsideration of the Department of Labor's prior decision. Accordingly, the application is denied.
Pursuant to Section 221 of the Trade Act of 1974, as amended, an investigation was initiated on September 17, 2003 in response to a worker petition filed by a company official on behalf of workers at Progress Casting Group, Inc., Plymouth, Minnesota.
The petitioner has requested that the petition be withdrawn. Consequently, the investigation has been terminated.
Pursuant to section 221 of the Trade Act of 1974, as amended, an investigation was initiated on September 24, 2003 in response to a petition filed by a State agency representative on behalf of workers at Old Time Cutting, also known as R&S Cutting, Passaic, New Jersey.
The petitioner has requested that the petition be withdrawn. Consequently, the investigation has been terminated.
In accordance with section 223 of the Trade Act of 1974 (19 U.S.C. 2273) the Department of Labor issued a Certification of Eligibility to Apply for Worker Adjustment Assistance on February 19, 2002, applicable to workers of Republic Technologies International located in Lorain, Ohio. The notice was published in the
At the request of the company, the Department reviewed the certification for workers of the subject firm. The workers produce hot rolled steel bars. The company reports that Republic Technologies International was purchased by Republic Engineered Products in August 2002 and that workers wages are reported under the Unemployment Insurance tax account for the new owner.
Accordingly, the Department is amending the certification to reflect the change in ownership.
The intent of the Department's certification is to include all workers of the firm adversely impact by increased imports of steel bars.
The amended notice applicable to TA-W-40,521 is hereby issued as follows:
In accordance with section 223 of the Trade Act of 1974 (19 U.S.C. 2273) the Department of Labor issued a Certification of Eligibility to Apply for Worker Adjustment Assistance on July 11, 2003, applicable to workers of Robert Bosch Fuel Systems Corporation, formerly Diesel Technology Company, a division of Robert Bosch North America, Kentwood, Michigan. The notice was published in the
At the request of the State agency, the Department reviewed the certification for workers of the subject firm. Information provided by the company shows that leased workers of K-Force Professional Staffing were employed at Robert Bosch Fuel Systems Corporation to produce fuel injector systems at the Kentwood, Michigan location of the subject firm.
Based on these findings, the Department is amending this certification to include leased workers of K-Force Professional Staffing working at Robert Bosch Fuel Systems Corporation, Kentwood, Michigan.
The intent of the Department's certification is to include all workers employed at Robert Bosch Fuel Systems Corporation, formerly Diesel Technology Company, a division of Robert Bosch North America who was adversely affected by the shift in production to Brazil, Germany and Charleston, South Carolina.
The amended notice applicable to TA-W-52,014 is hereby issued as follows:
All workers of Robert Bosch Fuel Systems Corporation, formerly Diesel Technology Company, a division of Robert Bosch North America, Kentwood, Michigan, including leased workers of K-Force Professional Staffing, producing fuel injector systms at Robert Bosch Fuel Systms Corporation, formerly Diesel Technology Company, a division of Robert Bosch North America, Kentwood, Michigan, who became totally or partially separated from employment on or after June 10, 2002, through July 11, 2005, are eligible to apply for adjustment assistance under section 223 of the Trade Act of 1974.
In accordance with Section 223 of the Trade Act of 1974 (19 U.S.C. 2273) the Department of Labor issued a Certification of Eligibility to Apply for Worker Adjustment Assistance on July 11, 2003, applicable to workers of Robert Bosch Fuel Systems Corporation, formerly Diesel Technology Company, a division of Robert Bosch North America,
At the request of the State agency, the Department reviewed the certification for workers of the subject firm. Information provided by the company shows that leased workers of Adecco Technical were employed at Robert Bosch Fuel Systems Corporation to produce fuel injector systems at the Kentwood, Michigan location of the subject firm.
Based on these findings, the Department is amending this certification to include leased workers of Adecco Technical working at Robert Bosch Fuel Systems Corporation, Kentwood, Michigan.
The intent of the Department's certification is to include all workers employed at Robert Bosch Fuel Systems Corporation, formerly Diesel Technology Company, a division of Robert Bosch North America who were adversely affected by the shift in production to Brazil and Germany.
The amended notice applicable to TA-W-52,014 is hereby issued as follows:
All workers of Robert Bosch Fuel Systems Corporation, formerly Diesel Technology Company, a division of Robert Bosch North America, Kentwood, Michigan, including leased workers of Adecco Technical and K-Force Professional Staffing, producing fuel injector systems at Robert Bosch Fuel Systems Corporation, formerly Diesel Technology Company, a division of Robert Bosch North America, Kentwood, Michigan, who became totally or partially separated from employment on or after June 10, 2002, through July 11, 2005, are eligible to apply for adjustment assistance under Section 223 of the Trade Act of 1974.
In accordance with Section 223 of the Trade Act of 1974 (19 U.S.C. 2273) the Department of Labor issued a Certification of Eligibility to Apply for Worker Adjustment Assistance on July 25, 2003, applicable to workers of Sanmina—SCI Corporation, including leased workers of Adecco and Manpower, Augusta, Maine. The notice was published in the
At the request of the company, the Department reviewed the certification for workers of the subject firm. Information provided by the company shows that a leased worker of Next Level Communications, Inc. were employed at Sanmina—SCI Corporation to produce telecommunication and medical electronic systems assembly at the Augusta, Maine location of the subject firm.
Based on these findings, the Department is amending this certification to include a leased worker of Next Level Communications, Inc. working at Sanmina—SCI Corporation, Augusta, Maine.
The intent of the Department's certification is to include all workers employed at Sanmina—SCI Corporation who was adversely affected by the shift in production to Mexico and Canada.
The amended notice applicable to TA-W-52,104 is hereby issued as follows:
• All workers of Sanmina—SCI, Augusta, Maine, who became totally or partially separated from employment on or after June 20, 2003, through July 25, 2005; and leased workers of Adecco, Manpower and Next Level Communications, Inc., producing telecommunication and medical electronic systems assembly at Sanmina—SCI, Augusta, Maine, who became totally or partially separated from employment on or after June 19, 2002, through July 25, 2005, are eligible to apply for adjustment assistance under Section 223 of the Trade Act of 1974.
Pursuant to section 221 of the Trade Act of 1974, as amended, an investigation was initiated on September 23, 2003 in response to a petition filed by a company official on behalf of workers of Snap-on Tools Manufacturing Company, Mt. Carmel, Illinois.
The petitioner has requested that the petition be withdrawn. Consequently, the investigation has been terminated.
Pursuant to section 221 of the Trade Act of 1974, as amended, an investigation was initiated on September 25, 2003 in response to a petition filed by a company official on behalf of workers of Snap-on Tools Manufacturing Company, Kenosha, Wisconsin.
The petitioner has requested that the petition be withdrawn. Consequently, the investigation has been terminated.
In accordance with Section 223 of the Trade Act of 1974 (19 U.S.C. 2273) the Department of Labor issued a Certification of Eligibility to Apply for Worker Adjustment Assistance on July 17, 2003, applicable to workers of Sony Semiconductor Company, including leased workers from Manpower
At the request of the company, the Department reviewed the certification for workers of the subject firm. Information provided by the company shows that workers of BOC Edwards were employed at Sony Semiconductor Company to maintain wet and dry pumps used in the equipment needed to produce semiconductor wafers at the San Antonio, Texas location of the subject firm.
Based on these findings, the Department is amending this certification to include workers of BOC Edwards, San Antonio, Texas working at Sony Semiconductor Company, San Antonio, Texas.
The intent of the Department's certification is to include all workers of Sony Semiconductor Company who were adversely affected by increased imports of semiconductor wafers.
The amended notice applicable to TA-W-52,099 is hereby issued as follows:
• All workers of Sony Semiconductor Company, San Antonio, Texas, including workers of BOC Edwards working at Sony Semiconductor Company, San Antonio and leased workers of Manpower Processional, working at Sony Semiconductor, San Antonio, Texas, engaged in employment related to the production of semiconductor wafers at Sony Semiconductor Company, San Antonio, Texas, who became totally or partially separated from employment on or after June 18, 2002, through July 17, 2005, are eligible to apply for adjustment assistance under Section 223 of the Trade Act of 1974.
Pursuant to section 221 of the Trade Act of 1974, as amended, an investigation was initiated on September 9, 2003, in response to a petition filed by Teamsters “General” Local Union, No. 200, on behalf of workers at SPX Dock Products, a division of SPX Corporation, Milwaukee, Wisconsin.
The petitioner has requested that the petition be withdrawn. Consequently, the investigation has been terminated.
Pursuant to section 221 of the Trade Act of 1974, an investigation was initiated on October 20, 2003, in response to a worker petition which was filed by a company official on behalf of workers at Stimson Lumber Company, Coeur d'Alene, Idaho.
The petitioner has requested that the petition be withdrawn. Consequently, the investigation has been terminated.
Pursuant to section 221 of the Trade Act of 1974, as amended, an investigation was initiated on October 9, 2003, in response to a petition filed by a company official on behalf of workers at Timber Resource Management, Inc., Livingston, Montana.
The petitioner has requested that the petition be withdrawn. Consequently, the investigation has been terminated.
Pursuant to section 221 of the Trade Act of 1974, as amended, an investigation was initiated on October 15, 2003, in response to a worker petition filed by a company official on behalf of workers at Vesuvius USA, Champaign, Illinois.
The petitioner has requested that the petition be withdrawn. Consequently, the investigation has been terminated.
On July 25, 2003, the Department issued an Affirmative Determination Regarding Application on Reconsideration applicable to workers and former workers of the subject firm. The notice was published in the
On April 16, 2003, the Department initially denied TAA to workers of Vanguard EMS, Inc., Beaverton, Oregon a/k/a Viasystems Portland, Inc. that produce circuit boards for projectors because the “contributed importantly” group eligibility requirement of Section 222 of the Trade Act of 1974 was not met.
On reconsideration, the department surveyed additional customers of the subject plant regarding their purchases of circuit boards for projectors during
After reconsideration, I affirm the original notice of negative determination of eligibility to apply for worker adjustment assistance for workers and former workers of Vanguard EMS, Inc., Beaverton, Oregon a/k/a Viasystems Portland, Inc., Beaverton, Oregon.
Notice.
The Department of Labor, as part of its continuing effort to reduce paperwork and respondent burden, conducts a preclearance consultation program to provide the general public and Federal agencies with an opportunity to comment on proposed and/or continuing collections of information in accordance with the Paperwork Reduction Act of 1995 (PRA95) (44 U.S.C. 3506(c)(2)(A)). This program helps to ensure that requested data can be provided in the desired format, reporting burden (time and financial resources) is minimized, collection instruments are clearly understood, and the impact of collection requirements on respondents can be properly assessed. Currently, the Employment Standards Administration is soliciting comments concerning the proposed collection: Claim for Compensation by Dependents Information Reports (CA-5, CA-5b, CA-1031, CA-1074, Letter of Compensation Due at Death and Letter of Student/Dependency). A copy of the proposed information collection request can be obtained by contacting the office listed below in the addresses section of this notice.
Written comments must be submitted to the office listed in the addresses section below on or before January 23, 2004.
Ms. Hazel M. Bell, U.S. Department of Labor, 200 Constitution Ave., NW., Room S-3201, Washington, DC 20210, telephone (202) 693-0418, fax (202) 693-1451, e-mail
• 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,
Comments submitted in response to this notice will be summarized and/or included in the request for Office of Management and Budget approval of the information collection request; they will also become a matter of public record.
Dominion Nuclear North Anna, LLC (Dominion) has submitted an application for an early site permit (ESP) for a location in central Virginia identified as the North Anna ESP site. The site is located near the Town of Mineral in Louisa County, Virginia, on the southern shore of Lake Anna. The application for the ESP was submitted by letter dated September 25, 2003, pursuant to 10 CFR part 52. The application also includes a site redress plan in accordance with 10 CFR 52.17(c) and 52.25. If a site redress plan is incorporated in an approved ESP, the applicant may carry out certain site preparation work and limited construction activities. A notice of receipt and availability of the application, which included the environmental report (ER), was published in the
In accordance with 10 CFR 52.17(a)(2), 10 CFR 51.45 and 10 CFR 51.50, Dominion submitted the ER as part of the application. The ER was prepared pursuant to 10 CFR parts 51 and 52 and is available for public inspection at the NRC Public Document Room (PDR), located at One White Flint North, 11555 Rockville Pike (first floor), Rockville, Maryland, or from the Publicly Available Records component of NRC's Agencywide Documents Access and Management System (ADAMS). ADAMS is accessible at
The following key reference documents related to the ESP applications and the NRC staff's review process are available through the NRC's Web site at
a. 10 CFR part 51, Environmental protection regulations for domestic licensing and related regulatory functions.
b. 10 CFR part 52, Early site permits; standard design certifications; and combined licenses for nuclear power plants.
c. 10 CFR part 100, Reactor site criteria.
d. NUREG-1555, Standard Review Plans for Environmental Reviews for Nuclear Power Plants.
e. NUREG/BR-0298, Brochure on Nuclear Power Plant Licensing Process.
f. Regulatory Guide 4.7, General Site Suitability Criteria for Nuclear Power Stations.
g. Fact Sheet on Nuclear Power Plant Licensing Process.
h. Draft Review Standard RS-002, Processing Applications for Early Site Permits.
i. NRR Office Instruction LIC-203, Procedural Guidance for Preparing Environmental Assessments and Considering Environmental Issues.
The regulations, NUREG-series documents, regulatory guide, and fact sheet can be found under Document Collections in the Electronic Reading Room on the NRC Web page. The draft review standard is at
This notice advises the public that the NRC intends to gather the information necessary to prepare an environmental impact statement (EIS) in support of the review of the application for the ESP and the site redress plan at the North Anna ESP site. Possible alternatives to the proposed action (issuance of the ESP at the North Anna ESP site) include no action and consideration of alternative sites. The NRC is required by 10 CFR 52.18 to prepare an EIS in connection with the issuance of an ESP. This notice is being published in accordance with the NEPA and the NRC's regulations found in 10 CFR part 51.
The NRC will first conduct a scoping process for the EIS and, as soon as practicable thereafter, will prepare a draft EIS for public comment. Participation in the scoping process by members of the public and local, State, Tribal, and Federal government agencies is encouraged. The scoping process for the EIS will be used to accomplish the following:
a. Define the proposed action which is to be the subject of the EIS.
b. Determine the scope of the EIS and identify the significant issues to be analyzed in depth.
c. Identify and eliminate from detailed study those issues that are peripheral or that are not significant.
d. Identify any environmental assessments and other EISs that are being or will be prepared that are related to, but are not part of the scope of the EIS being considered.
e. Identify other environmental review and consultation requirements related to the proposed action.
f. Indicate the relationship between the timing of the preparation of the environmental analyses and the Commission's tentative planning and decision-making schedule.
g. Identify any cooperating agencies and, as appropriate, allocate assignments for preparation and schedules for completing the EIS to the NRC and any cooperating agencies.
h. Describe how the EIS will be prepared, and include any contractor assistance to be used.
The NRC invites the following entities to participate in the scoping process:
a. The applicant, Dominion Nuclear North Anna, LLC.
b. Any Federal agency that has jurisdiction by law or special expertise with respect to any environmental impact involved, or that is authorized to develop and enforce relevant environmental standards.
c. Affected State and local government agencies, including those authorized to develop and enforce relevant environmental standards.
d. Any affected Indian tribe.
e. Any person who requests or has requested an opportunity to participate in the scoping process.
f. Any person who intends to petition for leave to intervene.
In accordance with 10 CFR 51.26, the scoping process for an EIS may include a public scoping meeting to help identify significant issues related to a proposed activity and to determine the scope of issues to be addressed in an EIS. The NRC will hold a public scoping meeting for the EIS regarding the North Anna ESP application and the associated site redress plan. The scoping meeting will be held in the Forum at the Louisa County Middle School, 1009 Davis Highway, Mineral, Virginia, on Monday, December 8, 2003. The meeting will convene at 7 p.m. and will continue until 10 p.m., as necessary. The meeting will be transcribed and will include: (1) An overview by the NRC staff of the NEPA environmental review process, the proposed scope of the EIS, and the proposed review schedule, and (2) the opportunity for interested government agencies, organizations, and individuals to submit comments or suggestions on the environmental issues or the proposed scope of the EIS. Additionally, the NRC staff will host informal discussions one hour before the start of the meeting outside the Forum in the Louisa County Middle School. No formal comments on the proposed scope of the EIS will be accepted during the informal discussions. To be considered, comments must be provided either at the transcribed public meeting or in writing, as discussed below. Persons may register to attend or present oral comments at the meeting on the scope of the NEPA review by contacting Ms. Stacey Imboden, by telephone at 1-800-368-5642, extension 2462, or by Internet to the NRC at
Members of the public may send written comments on the environmental scope of the North Anna ESP and site redress plan review to the Chief, Rules and Directives Branch, Division of Administrative Services, Office of Administration, Mailstop T-6D59, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, and should cite the publication date and page number of this
Participation in the scoping process for the EIS does not entitle participants to become parties to the proceeding to which the EIS relates. Notice of a hearing regarding the application for an ESP will be the subject of a future
At the conclusion of the scoping process, the NRC will prepare a concise summary of the determination and conclusions reached, including the significant issues identified, and will send a copy of the summary to each participant in the scoping process. The summary will also be available for inspection through the NRC's PERR link. The staff will then prepare and issue for comment the draft EIS, which will be the subject of separate notices and a separate public meeting. A copy will be available for public inspection at the above-mentioned address, and one copy per request will be provided free of charge. After receipt and consideration of the comments, the NRC will prepare a final EIS, which will also be available for public inspection.
Pursuant to the Coastal Zone Management Act of 1972, as amended, the applicant for a Federal license for an activity in Virginia is required to conduct its activities in a manner consistent with the federally approved Virginia Coastal Resources Management Program (
Information about the proposed action, the EIS, and the scoping process may be obtained from Ms. Imboden at the aforementioned telephone number or e-mail address.
For the Nuclear Regulatory Commission.
The U.S. Nuclear Regulatory Commission (NRC or the Commission) is considering an application for the renewal of Operating License No. NPF-6, which authorize the Entergy Operations, Inc. (Entergy) to operate Arkansas Nuclear One, Unit 2, at 3026 megawatts thermal. The renewed license would authorize the applicant to operate Arkansas Nuclear One, Unit 2, for an additional 20-years beyond the period specified in the current license. The current operating license for Arkansas Nuclear One, Unit 2, will expire on July 17, 2018.
On October 15, 2003, the Commission's staff received an application from Entergy, filed pursuant to 10 CFR Part 54, to renew the Operating License No. NPF-6 for Arkansas Nuclear One, Unit 2. A Notice of Receipt and Availability of the license renewal application, “Entergy Operation Inc., Arkansas Nuclear One, Unit 2; Notice of Receipt and Availability of Application for Renewal of Facility Operating License No. NPF-6 for an Additional 20-Year Period,” was published in the
The Commission's staff has determined that Entergy has submitted sufficient information in accordance with 10 CFR 54.19, 54.21, 54.22, 54.23, and 51.53(c) that is acceptable for docketing. The current Docket No. 50-368 for Operating License No. NPF-6, will be retained. The docketing of the renewal application does not preclude requesting additional information as the review proceeds, nor does it predict whether the Commission will grant or deny the application.
Before issuance of the requested renewed license, the NRC will have made the findings required by the Atomic Energy Act of 1954, as amended (the Act), and the Commission's rules and regulations. In accordance with 10 CFR 54.29, the NRC will issue a renewed license on the basis of its review if it finds that actions have been identified and have been or will be taken with respect to (1) managing the effects of aging during the period of extended operation on the functionality of structures and components that have been identified as requiring aging management review, and (2) time-limited aging analyses that have been identified as requiring review, such that there is reasonable assurance that the activities authorized by the renewed license will continue to be conducted in accordance with the current licensing basis (CLB), and that any changes made to the plant's CLB comply with the Act and the Commission's regulations.
Additionally, in accordance with 10 CFR 51.95(c), the NRC will prepare an environmental impact statement that is a supplement to the Commission's NUREG-1437, “Generic Environmental Impact Statement for License Renewal of Nuclear Power Plants,” dated May 1996. Pursuant to 10 CFR 51.26, and as part of the environmental scoping process, the staff intends to hold a public scoping meeting. Detailed information regarding this meeting will be included in a future
Within 30 days from the date of publication of this
As required by 10 CFR 2.714, a petition for leave to intervene shall set forth with particularity the interest of the petitioner in the proceeding and how that interest may be affected by the results of the proceeding, taking into consideration the limited scope of matters that may be considered pursuant to 10 CFR parts 51 and 54. The petition must specifically explain the reasons why intervention should be permitted with particular reference to the following factors: (1) The nature of the petitioner's right under the Act to be made a party to the proceeding; (2) the nature and extent of the petitioner's property, financial, or other interest in the proceeding; and (3) the possible effect of any order that may be entered in the proceeding on the petitioner's interest. The petition must also identify the specific aspect(s) of the subject matter of the proceeding as to which petitioner wishes to intervene. Any person who has filed a petition for leave to intervene or who has been admitted as a party may amend the petition without requesting leave of the board up to 15 days before the first prehearing conference scheduled in the proceeding, but such an amended petition must satisfy the specificity requirements described above.
No later than 15 days before the first prehearing conference scheduled in the proceeding, a petitioner shall file a supplement to the petition to intervene that must include a list of the contentions that the petitioner seeks to have litigated in the hearing. Each contention must consist of a specific statement of the issue of law or fact to be raised or controverted. In addition, the petitioner shall provide a brief explanation of the bases of each contention and a concise statement of the alleged facts or the expert opinion that supports the contention and on which the petitioner intends to rely in proving the contention at the hearing. The petitioner must also provide references to those specific sources and documents of which the petitioner is aware and on which the petitioner intends to rely to establish those facts or expert opinion. The petitioner must provide sufficient information to show that a genuine dispute exists with the applicant on a material issue of law or fact. Contentions shall be limited to matters within the scope of the action under consideration. The contention must be one that, if proven, would entitle the petitioner to relief. A petitioner who fails to file such a supplement that satisfies these requirements with respect to at least one
Those permitted to intervene become parties to the proceeding, subject to any limitations in the order granting leave to intervene, and have the opportunity to participate fully in the conduct of the hearing, including the opportunity to present evidence and cross-examine witnesses.
Requests for a hearing and petitions for leave to intervene must be filed with the Secretary of the Commission, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, Attention: Rulemakings and Adjudications Staff, or it may be delivered to the Commission's Public Document Room (PDR), located at One White Flint North, 11555 Rockville Pike (first floor), Rockville, Maryland, 20855-2738, by the above date. Because of the continuing disruptions in delivery of mail to United States Government offices, it is requested that petitions for leave to intervene and requests for hearing be transmitted to the Secretary of the Commission either by means of facsimile transmission to (301) 415-1101 or by e-mail to
Nontimely filings of petitions for leave to intervene, amended petitions, supplemental petitions, and/or requests for a hearing will not be entertained absent a determination by the Commission, the presiding officer, or the ASLB that the petition and/or request should be granted based upon a balancing of the factors specified in 10 CFR 2.714(a)(1)(i)-(v) and 2.714(d).
Detailed information about the license renewal process can be found under the Nuclear Reactors icon on the NRC's Web page at
The staff has verified that a copy of the license renewal application is also available to local residents near the Arkansas Nuclear One site at the Ross Pendergraft Library and Technology Center at the Arkansas Tech University in Russellville, Arkansas.
For the Nuclear Regulatory Commission.
Mid American Inspection Services, Inc. (Licensee) is the holder of Materials License No.21-26060-01 issued (renewed) by the Nuclear Regulatory Commission (NRC or Commission) August 27, 2001. The license authorizes the Licensee to perform industrial radiography using NRC-licensed materials in accordance with the conditions specified therein.
The NRC conducted an inspection of the Licensee's activities on April 10, 2003. The results of this inspection indicated that the Licensee had not conducted its activities in full compliance with NRC requirements. A written Notice of Violation and Proposed Imposition of Civil Penalty (Notice) was served upon the Licensee by letter dated August 12, 2003. The Notice states the nature of the violation, the provision of the NRC's requirements that the Licensee had violated, and the amount of the civil penalty proposed for the violation.
The Licensee responded to the Notice in a letter dated, September 8, 2003. In its response, the Licensee admitted the violation and provided its corrective actions to prevent recurrence of similar violations in the future. The Licensee also requested reduction of the proposed civil penalty.
After consideration of the Licensee's response and the statements of fact, explanation, and argument for reduction contained therein, the NRC staff has exercised discretion and lowered the proposed civil penalty of $6,000 to $3,000. Therefore, a civil penalty in the amount of $3,000 should be imposed.
In view of the foregoing and pursuant to Section 234 of the Atomic Energy Act of 1954, as amended (Act), 42 U.S.C. 2282, and 10 CFR 2.205,
The Licensee pay a civil penalty in the amount of $3,000 within 30 days of the date of this Order, in accordance with NUREG/BR-0254. In addition, at the time of making the payment, the licensee shall submit a statement indicating when and by what method payment was made, to the Director, Office of Enforcement, U.S. Nuclear Regulatory Commission, One White Flint North, 11555 Rockville Pike, Rockville, MD 20852-2738.
The Licensee may request a hearing within 30 days of the date of this Order. Where good cause is shown, consideration will be given to extending the time to request a hearing. A request for extension of time must be made in writing to the Director, Office of Enforcement, U.S. Nuclear Regulatory Commission, Washington, DC 20555, and include a statement of good cause for the extension. A request for a hearing should be clearly marked as a “Request for an Enforcement Hearing” and shall be submitted to the Secretary, U.S. Nuclear Regulatory Commission, ATTN: Rulemakings and Adjudications Staff, Washington, DC 20555. Copies also shall be sent to the Director, Office of Enforcement, U.S. Nuclear Regulatory Commission, Washington, DC 20555, to
If a hearing is requested, the Commission will issue an Order designating the time and place of the hearing. If the Licensee fails to request a hearing within 30 days of the date of this Order (or if written approval of an extension of time in which to request a hearing has not been granted), the provisions of this Order shall be effective without further proceedings. If payment has not been made by that time, the matter may be referred to the Attorney General for collection.
In the event the Licensee requests a hearing as provided above, the issues to be considered at such hearing shall be:
Whether, on the basis of the violations admitted by the license, this Order should be sustained.
For the Nuclear Regulatory Commission.
Notice is hereby given that the U.S. Nuclear Regulatory Commission (the Commission) has issued Renewed Facility Operating License No. DPR-40 to Omaha Public Power District (the licensee), the operator of the Fort Calhoun Station, Unit 1 (Fort Calhoun, Unit 1). Renewed Facility Operating License No. DPR-40 authorizes operation of Fort Calhoun, Unit 1, by the licensee at reactor core power levels not in excess of 1500 megawatts thermal in accordance with the provisions of the Fort Calhoun, Unit 1, renewed license and its Technical Specifications.
Fort Calhoun, Unit 1, is a pressurized, light water moderated and cooled, nuclear reactor located in Washington County, Nebraska.
The application for the renewed license complied with the standards and requirements of the Atomic Energy Act of 1954, as amended (the Act), and the Commission's regulations. As required by the Act and the Commission's regulations in 10 CFR Chapter 1, the Commission has made appropriate findings, which are set forth in each license. Prior public notice of the action involving the proposed issuance of the renewed license and of an opportunity for a hearing regarding the proposed issuance of the renewed license was published in the
For further details with respect to this action, see (1) the Omaha Public Power District's renewal application for Fort Calhoun, Unit 1 dated January 9 and April 5, 2002, as supplemented by letters dated November 22, 2002 (two letters), December 12, 2002, December 19, 2002 (two letters), March 14, 2003, April 4, 2003, May 16, 2003, and July 7, 2003; (2) the Commission's safety evaluation report, dated October, 2003 (NUREG-1782); (3) the licensee's updated safety analysis report; and (4) the Commission's final environmental impact statements (NUREG-1437, Supplement 12, for Fort Calhoun, Unit 1, dated August 15, 2003). These documents are available at the NRC's Public Document Room, One White Flint North, 11555 Rockville Pike, first floor, Rockville, Maryland 20852, and can be viewed from the NRC Public Electronic Reading Room at
Copies of Renewed Facility Operating License No. DPR-40, may be obtained by writing to the U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, Attention: Director, Division of Regulatory Improvement Programs. Copies of the safety evaluation report (NUREG-1782), and the final environmental impact statements (NUREG-1437), Supplement 12, for Fort Calhoun, Unit 1 may be purchased from the National Technical Information Service, Springfield, Virginia 22161-0002 (
For the Nuclear Regulatory Commission.
Notice of availability of Environmental Assessment and Finding of No Significant Impact.
Sattar Lodhi, Nuclear Materials Safety Branch 2, Division of Nuclear Materials Safety, Region I, 475 Allendale Road, King of Prussia, Pennsylvania, 19406; telephone (610) 337-5364; fax (610) 337-5269; or by e-mail: ASL@nrc.gov.
The U.S. Nuclear Regulatory Commission (NRC) is considering the issuance of a license amendment to Bristol-Myers Squibb Pharma Company for Materials License No. 07-00455-40, to authorize release of its facilities in Wilmington, Delaware for unrestricted use and has prepared an Environmental Assessment (EA) in support of this action in accordance with the requirements of 10 CFR part 51. Based on the EA, the NRC has concluded that a Finding of No Significant Impact (FONSI) is appropriate.
The purpose of the proposed action is to allow for the release of the licensee's Wilmington, Delaware, facilities for unrestricted use. The subject license was originally issued to DuPont Pharmaceuticals Company on February 25, 1999, to use licensed material at the site. Bristol-Myers Squibb Pharma Company acquired the license on October 9, 2001, and continued the use of radioactive materials for research and
The NRC staff has evaluated Bristol-Myers Squibb Pharma Company's request and the results of the surveys and has concluded that the completed action complies with 10 CFR part 20. The staff has prepared the EA (summarized above) in support of the proposed license amendment to terminate the license and release the facility for unrestricted use. On the basis of the EA, the NRC has concluded that the environmental impacts from the proposed action are expected to be insignificant and has determined not to prepare an environmental impact statement for the proposed action.
The EA and the documents related to this proposed action, including the application for the license amendment and supporting documentation, are available for inspection at NRC's Public Electronic Reading Room at
For the Nuclear Regulatory Commission.
Notice of Environmental Assessment (EA) and Finding of No Significant Impact (FONSI) for a license amendment.
Mr. Donald Stout, Fuel Cycle Facilities Branch, Division of Fuel Cycle Safety and Safeguards, U.S. Nuclear Regulatory Commission, Mail Stop T8-A33, Washington, DC 20555-0001, telephone: (301) 415-5269 and e-mail:
The U.S. Nuclear Regulatory Commission (NRC) is issuing an amendment to Special Nuclear Material License SNM-42 to exempt the licensee from the fissile material package standards for shipment of certain bulk materials (
The NRC has prepared an Environmental Assessment (EA) in support of this action in accordance with the requirements of 10 CFR part 51. Based on this evaluation, the NRC has concluded that a Finding of No Significant Impact (FONSI) is appropriate for the proposed licensing action.
The NRC staff has evaluated the environmental impacts of the exemption of BWXT from the fissile material package standards for shipment of certain bulk materials (
The BWXT facility in Lynchburg, VA, is authorized under NRC Materials License SNM-42 to manufacture nuclear products utilizing Strategic Special Nuclear Material, specifically high-enriched uranium, and to receive, possess, use, store and transfer source material. These activities generate low-level radioactive waste (LLRW). Examples of this waste include, but are not limited to, filter cake solids, debris generated during plant renovation and/or decommissioning operations, and dry active waste that consists of paper, plastic, glass, gloves, dry filters, light metal, and other contaminated material.
On April 15, 2002, the Westinghouse facility in Hematite, MO (SNM-33), received a fissile material exemption for use in decommissioning the Hematite facility. Also, on January 2, 2003, the Westinghouse Commercial Nuclear Fuel Facility in Columbia, SC (SNM-1107) received the same exemption from fissile material classification and package standards listed in 10 CFR 71.55 and 71.59.
In accordance with 10 CFR part 51, this EA serves to: (1) Present information and analysis for determining whether to issue a FONSI or to prepare an Environmental Impact Statement (EIS); (2) fulfill the NRC's compliance with the NEPA when no EIS is necessary; and (3) facilitate preparation of an EIS when one is necessary. Should the NRC issue a FONSI, no EIS would be prepared and the license amendment would be granted.
This document serves to evaluate and document the impacts of the proposed action. Other activities on the site have previously been evaluated and documented in the 1991 EA for the Renewal of the NRC license for BWXT. The 1991 document is referenced when no significant changes have occurred. Besides the proposed licensing action, operations will continue to be limited to those authorized by the license.
The proposed action is to amend NRC Materials License SNM-42 to exempt the licensee from the fissile material package standards for shipment of certain bulk materials containing low concentrations of uranium-235 contamination and to impose limiting conditions to ensure adequate controls for nuclear criticality safety. These materials would be exempt from fissile material classification and the fissile material package standards of 10 CFR 71.55 and 71.59, but subject to other requirements of 10 CFR part 71 and the further limiting conditions. A Safety Evaluation Report (SER) has been prepared by the NRC staff and contains a discussion of the safety considerations for approval of the amendment. The
BWXT is currently manufacturing products for the Department of Energy and downblending high-enriched SNM to low-enriched SNM for commercial reactor use. It is requesting the exemption for transportation of LLRW generated during normal, routine operations. The reason for this request is to better utilize shipping containers.
On February 10, 1997, the NRC issued an emergency direct final rule (62 FR 5913) changing the fissile material exemption specifications of 10 CFR part 71. The revised rule limits the fissile-material mass in a consignment and restricts the presence of select moderators with very low neutron-absorption properties (
BWXT must make many small LLRW shipments to comply with the current SNM limits. With this amendment, BWXT will be able to efficiently utilize the volume of strong-tight containers or intermodal containers, B-25 containers, etc; thus, shipping, in one shipment, LLRW that currently requires several shipments. Therefore, BWXT submitted this license amendment request for a specific exemption from the requirements of 10 CFR 71.55 and 71.59 for specified SNM shipments with greater than 400 grams U-235 per consignment.
The NRC considered one alternative to the proposed activity which is to take no action (
The affected environment for the proposed action would be the immediate vicinity of the vehicle used to transport the material to a licensed disposal facility.
The affected environment for no action is the BWXT site. A full description of the site and its characteristics is given in the 1991 EA for the Renewal of the NRC license for BWXT. The BWXT facility is located on a 525 acre site in Campbell County, VA, approximately 5 miles east of Lynchburg, VA.
Occupational health was also considered in the Final Environmental Impact Statement on the Transportation of Radioactive Material by Air and Other Modes (NRC, 1977). The average annual occupational dose to the driver(s) is estimated to be 8.7 mSv (870 mrem), which is below the 10 CFR part 20 requirement of 50 mSv (5000 mrem). The Department of Transportation (DOT) regulations in 49 CFR 177.842(g) require that the radiation dose rate may not exceed 0.02 mSv (2 mrem) per hour in any position normally occupied in a motor vehicle. The proposed action would not cause dose rates to the driver exceeding the DOT limit.
The NRC staff evaluated the possibility of a criticality accident due to transportation of this material. Based on the statements and representations in the application, the staff concluded that limiting the contents as described in the application will provide adequate assurance that an inadvertent criticality cannot occur if the materials are exempt from the fissile material classification and fissile material package standards of 10 CFR 71.55 and 71.59. A detailed discussion of this analysis can be found in the Safety Evaluation Report for this amendment.
Under the proposed action, the doses to the public and to the workers are not increased beyond those considered in the Final Environmental Impact Statement on the Transportation of Radioactive Material by Air and Other Modes (NRC, 1977). Therefore, shipment of these materials as proposed would be consistent with the assessment of environmental impacts and the conclusions in the Final Environmental Impact Statement on the Transportation of Radioactive Material by Air and Other Modes (NRC, 1977).
The occupational health impacts would not change significantly as a result of denial of this amendment request. Occupational doses at the facility may be slightly higher as a result of the larger number of packages that workers must prepare and handle; however, the facility will continue to implement NRC-approved, radiation safety procedures for handling radioactive materials. Thus, the dose to workers under the no action alternative will remain within acceptable regulatory limits.
Based on its review, the NRC staff has concluded that the environmental impacts associated with the proposed action are not significant and, therefore, do not warrant denial of the license amendment request. The staff has
During a September 10, 2003, telephone call with the Virginia Department of Environmental Quality (VDEQ), NRC staff confirmed that the proposed action would not affect the regulation in 10 CFR 70.42 requiring BWXT to verify that waste disposal facilities are authorized to receive their shipments. VDEQ had no comments or concerns with the proposed action.
Because the proposed action is entirely within existing facilities and established roadways, the NRC has concluded that there is no potential to affect endangered species or historic resources, and therefore consultation with the State Historic Preservation Society and the U.S. Fish and Wildlife Service was not necessary.
U.S. Nuclear Regulatory Commission (NRC), December 1977, “Final Environmental Impact Statement on the Transportation of Radioactive Material by Air and Other Modes.”
U.S. Nuclear Regulatory Commission (NRC), June 1995, “Environmental Assessment for Renewal of Special Nuclear Material License SNM-42.”
U.S. Nuclear Regulatory Commission (NRC), January 2003, “Westinghouse Electric Company, LLC, Amendment 35—Approval of Exemption from Fissile Material Transport Classification and Package Standards,” ADAMS No. ML030080034.
The Commission has prepared the above Environmental Assessment related to the amendment of Special Nuclear Material License SNM-42. On the basis of the assessment, the Commission has concluded that environmental impacts associated with the proposed action would not be significant and, therefore, do not warrant the preparation of an Environmental Impact Statement. It has been determined that a Finding of No Significant Impact is appropriate.
In accordance with 10 CFR 2.790 of the NRC's “Rules of Practice,” the Environmental Assessment and the documents related to this proposed action will be available electronically for public inspection from the Publicly Available Records (PARS) component of NRC's document system (ADAMS). ADAMS is accessible from the NRC Web site at
For the Nuclear Regulatory Commission.
Nuclear Regulatory Commission.
Notice of availability.
The Nuclear Regulatory Commission (NRC) is announcing the availability of draft NUREG-1614, Volume 3, “U.S. Nuclear Regulatory Commission, FY 2004-2009 Strategic Plan,” dated November 7, 2003. The draft strategic plan will be open for public comment until December 31, 2003.
The comment period for the draft strategic plan will close on December 31, 2003.
You may submit comments by any one of the following methods. Please include the phrase “Draft Strategic Plan” in the subject line of your submission. Comments submitted in writing or in electronic form will be made available to the public in their entirety. Personal information will not be removed from your comments.
Mail comments to: Chief, Rules and Directives Branch, MS-T6-D59, Office of Administration, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001.
Fax comments to: Chief, Rules and Directives Branch, Office of Administration, U.S. Nuclear Regulatory Commission at (301) 415-5144.
Draft NUREG-1614, Volume 3, and other publicly available documents related to this notice are available for electronic viewing on public computers in the NRC's Public Document Room (PDR), Public File Area O1F21, One White Flint North, 11555 Rockville Pike, Rockville, Maryland. The PDR's reproduction services contractor will provide copies of publicly available documents for a fee.
Publicly available documents related to this notice, including public comments received, are also available electronically through the NRC's Electronic Reading Room at
A free single copy of Draft NUREG-1614, Volume 3, to the extent of availability, may be requested by writing to the Office of the Chief Information Officer, Reproduction and Distribution Services Section, U.S. Nuclear Regulatory Commission, Printing and Graphics Branch, Washington, DC 20555-0001; facsimile: 301-415-2289; e-mail:
Some publications in the NUREG series available through the NRC's Electronic Reading Room at
Leslie W. Barnett, Director, Division of Planning, Budget, and Analysis, Office of the Chief Financial Officer, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001; telephone: 301-415-7540.
As a normal course of activities, agencies periodically re-visit their strategic plans. The NRC is developing a new strategic plan for FY 2004-2009 to replace the agency's existing strategic plan.
The NRC is seeking comments on its draft FY 2004-2009 Strategic Plan (ADAMS Accession No. ML033140570). The draft Strategic Plan establishes the agency's long-term strategic direction and outcomes. It provides a foundation to guide NRC's work and to allocate NRC's resources.
The NRC's draft Strategic Plan does not represent a fundamental change in the agency's mission. However, it better aligns the agency's goals with its mission and strategic objective to
The NRC's draft Strategic Plan now includes a vision statement for NRC. The NRC's vision in fulfilling its responsibilities is: “Excellence in regulating the safe and secure use and management of radioactive materials for the public good.” The draft plan also focuses on five general goals: Safety, security, openness, effectiveness, and management excellence. These goals support our ability to maintain the public health, safety, and trust. The overarching goal of ensuring the safe use of radioactive materials and of enhancing safety, as appropriate, remains unchanged. The general goal on security has been added to reflect recent changes in our environment, while the general goal on openness emphasizes those actions we can directly control and states that public confidence should be an outcome of openness.
The NRC encourages all interested parties to comment on the draft Strategic Plan. The comment period will close on December 31, 2003. Comments on the draft plan may be submitted by any of the methods outlined under the
The final version of NUREG-1614, Volume 3, is expected to be released on or about March 30, 2004.
For the Nuclear Regulatory Commission.
Securities and Exchange Commission (“SEC”).
Notice of an application for an order (the “Order”) of approval pursuant to Section 26(c) of the Investment Company Act of 1940 (the “1940 Act”) and an order of exemption pursuant to Section 17(b) of the 1940 Act from Section 17(a) of the 1940 Act.
AIG SunAmerica Life Assurance Company and Variable Separate Account of AIG SunAmerica Life Assurance Company (collectively, the “Applicants.”)
The Applicants request an order (a) permitting the substitution of Growth Series, International Series, Growth-Income Series, Asset Allocation Series, High-Yield Bond Series, U.S. Government/AAA Rated Securities Series and Cash Management Series (the “Replaced Portfolios”), each a series of the Anchor Pathway Fund (“Anchor Fund “), for Class 3 shares of the Growth Fund, International Fund, Growth-Income Fund, Asset Allocation Fund, High-Income Bond Fund, U.S. Government/AAA-Rated Securities Fund and Cash Management Fund (the “Replacement Portfolios”), each a series of the American Funds Insurance Series (“AFIS”); and (b) permitting certain in-kind transactions in connection with the proposed substitutions (the “Substitutions”).
The application was filed on January 28, 2003, amended and restated on September 22, 2003, and amended on November 14, 2003.
An order granting the application will be issued unless the SEC orders a hearing. Interested persons may request a hearing on the application by writing to the Secretary of the SEC and serving Applicants with a copy of the request, personally or by mail. Hearing requests must be received by the SEC by 5:30 p.m. on December 12, 2003, and should be accompanied by proof of service on Applicants in the form of an affidavit or, for lawyers, a certificate of service. Hearing requests should state the nature of the writer's interest, the reason for the request, and the issues contested. Persons may request notification of a hearing by writing to the Secretary of the SEC.
Secretary, Securities and Exchange Commission, 450 Fifth Street, NW., Washington, DC 20549-0609. Applicants: c/o Jorden Burt LLP, 1025 Thomas Jefferson Street, NW., East Lobby, Suite 400, Washington, DC 20007, Attention: Joan E. Boros, Esq.
Mark Cowan, Senior Counsel, or Zandra Y. Bailes, Branch Chief, at (202) 942-0670 (Division of Investment Management, Office of Insurance Products).
The following is a summary of the application. The complete application is available for a fee from the Public Reference Branch of the SEC, 450 Fifth Street, NW., Washington, DC 20549-0102 [tel. (202) 942-8090].
1. AIG SunAmerica Life Assurance Company (“AIG SunAmerica”) is a stock life insurance company originally organized under the laws of the state of California in April 1965, and redomesticated under the laws of the state of Arizona on January 1, 1996. AIG SunAmerica is a wholly-owned subsidiary of SunAmerica Life Insurance Company, an Arizona corporation, which is, in turn, wholly-owned by AIG SunAmerica Inc., a Delaware corporation, which is, in turn, wholly-owned by American International Group, Inc. AIG SunAmerica was previously known as Anchor National Life Insurance Company. AIG SunAmerica is authorized to conduct annuity and life insurance business in the District of Columbia and all states except New York.
2. Variable Separate Account of AIG SunAmerica (the “Separate Account”) was established by AIG SunAmerica on June 25, 1981, in accordance with the laws of the state of California and is currently authorized under the laws of the state of Arizona as a result of AIG SunAmerica's redomestication on January 1, 1996. The Separate Account is registered as a unit investment trust under the 1940 Act. The Separate Account is used to fund the contract under which the proposed Substitutions are to take place (the “Contract”) and other annuity contracts issued by AIG SunAmerica and is currently divided into a total of sixty-six (66) variable accounts (“Variable Accounts”); however, only seven (7) of the Variable Accounts and portfolios (“Portfolios”) in which they invest are available on an exclusive basis, under the Contract that is the subject of the application.
3. The Contract issued by AIG SunAmerica through its Separate Account, the American Pathway II Variable Annuity, is an individual flexible premium deferred non-participating variable annuity contract that currently utilizes only the Replaced Portfolios as underlying investments. AIG SunAmerica discontinued new sales of the Contract as of the close of business on August 31, 1993, but continues to accept subsequent purchase payments on existing Contracts and to issue the Contract to new participants in existing qualified retirement plans using the Contract as a funding vehicle.
4. The Replaced Portfolios, each of which offers a single class of shares, constitute each of the separate series available through the Anchor Fund. The Anchor Fund was organized as a Massachusetts business trust on March 23, 1987, and established to provide a funding medium for the Variable Accounts of the Separate Account that are its sole shareholders. The Separate Account buys and sells shares of the Anchor Fund at net asset value that is net of the management fees (“Business Management Fee”), which range from .20% to .24% of average daily net assets, paid to SunAmerica Asset Management Corp. (“SAAMCO”), an affiliate of AIG SunAmerica, to manage the business affairs of the Anchor Fund and to provide administrative services pursuant to a written agreement (“Business Management Agreement”). The Anchor Fund is registered as a diversified, open-end management investment company under the 1940 Act, and its shares are registered as securities under the Securities Act of 1933 (the “1933 Act”). Capital Research and Management Company (“Capital Research” or the “Adviser”) serves as the investment adviser to the Anchor Fund. Capital Research is not affiliated with AIG SunAmerica.
5. The Replacement Portfolios represent the Class 3 shares of seven (7) of the thirteen (13) series of AFIS, each of which also offers Class 1 and Class 2 shares. AFIS is registered as a diversified, open-end management investment company under the 1933 Act and was organized as a Massachusetts business trust on September 13, 1983. Its Class 1 and Class 2 shares are sold currently only to separate accounts of various insurance companies to provide a funding medium for their variable annuity contracts and variable life policies. The Replacement Portfolios, which the Separate Account will purchase, will be offered at net asset value subject to a plan adopted pursuant to Rule 12b-1 under the 1940 Act (the “Rule 12b-1 Plan”). Pursuant to the plan, AFIS will pay .18%, subject to the condition discussed below with respect to the Growth Fund, of the average daily net assets attributed to the Class 3 shares to reimburse AIG SunAmerica for performing administrative services (the “Service Fee”).
6. Once registered, the Class 3 shares of the Replacement Portfolios will initially be sold only to the Separate Account to serve as the exclusive funding medium for the Variable Accounts under the Contract. However, AFIS would be permitted to offer shares of the Replacement Portfolios to other insurance companies. Capital Research serves as the investment adviser to AFIS. Capital Research is not affiliated with AIG SunAmerica.
7. The application covers all of the available Portfolios in which the Separate Account invests under the Contract. AIG SunAmerica reviewed the Portfolios available under the Contract. The primary goal of the review was to consider and determine whether to replace certain or all of the Portfolios based on a review of their investment objectives and principal investment strategies, total annual expenses, net asset size, and performance. The review resulted in the proposal that AIG SunAmerica discontinue offering Variable Accounts investing in the Replaced Portfolios as investment options under the Contract and substitute shares of the Replacement Portfolios. Taking into account that the Contract is no longer offered for sale and will not be offered for sale after the Substitutions occur, this proposal was due primarily to AIG SunAmerica's conclusion that the larger and growing asset size of the Replacement Portfolios would provide the only feasible means of maintaining lower total annual expenses and maintaining effective asset management with the goal of improving performance. No other contract is funded through investment in the Replaced Portfolios, and therefore, there is no growth potential for the Replaced Portfolios.
8. The Applicants represent that each of the Replacement Portfolios has investment objectives, policies, and restrictions substantially identical in all material respects to those of its corresponding Replaced Portfolio. In addition, the Replacement Portfolios utilize the same investment adviser as the Replaced Portfolios, Capital Research, a well-known and respected investment adviser.
9. The Applicants represent that each of the Replacement Portfolios has lower total annual expenses than those of its corresponding Replaced Portfolio (except for the Growth Fund, which has slightly higher total annual expense than the Growth Series), as set forth in the following chart.
10. The Applicants represent that each of the Replacement Portfolios has a significantly larger asset base than that of its corresponding Replaced Portfolio. Moreover, AIG SunAmerica believes that it is no longer economical to continue to offer the Replaced Portfolios as their smaller and dwindling asset size will make it more difficult to manage such assets so as to keep expense ratios down and to maintain performance.
11. The Applicants represent that each of the Replacement Portfolios has a performance record comparable to that of its corresponding Replaced Portfolio.
12. The Applicants will effect the proposed Substitutions by first redeeming shares of each of the Replaced Portfolios wholly on an in-kind basis at their net asset value and then immediately contributing those assets in-kind to the corresponding Replacement Portfolio to purchase their respective shares (the “In-Kind Transactions”). The In-Kind Transactions will be done in a manner consistent with the investment objectives, policies and restrictions, and diversification requirements of the Replaced and Replacement Portfolios. Capital Research will review the In-Kind Transactions, and given that it is the investment adviser and employs the same system of multiple portfolio counselors in managing assets for both the Replaced and Replacement Portfolios, which have substantially identical investment objectives, policies and restrictions, Applicants anticipate that all redeemed assets of the Replaced Portfolios will be suitable for the corresponding Replacement Portfolios. For these same reasons, Applicants also submit that the portfolio securities to be contributed in-kind for shares of the Replacement Portfolios will be of the type and quality that each Replacement Portfolio could have acquired, respectively, with the proceeds from the sale of its shares had the shares been sold for cash. In effecting the In-Kind Transactions, Applicants will follow the requirements of Rule 17a-7 under the 1940 Act to the extent possible and all assets and liabilities will be valued based on the normal valuation procedures of the Replaced and Replacement Portfolios, as set forth, respectively, in the Anchor Fund and AFIS's registration statements.
13. At all times, before and after the Substitutions, monies attributable to owners of the Contract (“Owners”) then invested in the Replaced Portfolios will remain fully invested and will result in no change in the amount of any Owner's Contract value, death benefit or investment in the Separate Account so that the full net asset value of the redeemed shares held by the Separate Account will be reflected in the Owners' accumulation values or annuity unit values following the Substitutions. In addition, AIG SunAmerica hereby undertakes to assume all transaction costs and expenses relating to the Substitutions, including any direct or indirect costs of liquidating the assets of the Replaced Portfolios such as legal and accounting fees (or any brokerage commissions, if any redemptions are effected otherwise on an in-kind basis), so that the full net asset value of redeemed shares of the Replaced Portfolios held by the Separate Account will be reflected in the Owners' accumulation values or annuity unit values following the Substitutions.
14. Owners will not incur any fees or charges as a result of the Substitutions, nor will the rights of Owners or obligations of AIG SunAmerica under the Contract be altered in any way. The
15. AIG SunAmerica will schedule the Substitutions to occur after issuance of the requested order and any required state insurance department approvals. Further, although the Substitutions will result in the replacement of the Portfolios of all the available Variable Accounts under the Contract, AIG SunAmerica will not exercise any right it may have under the Contract to collect transfer fees or impose any additional restrictions on Owners who may wish to make transfers among the available Variable Accounts funded by the Replacement Portfolios for a period of at least thirty (30) days following mailing of the Notice, as defined below, of the proposed Substitutions (the “Free Transfer Period”). During the Free Transfer Period, transfers among the available Variable Accounts funded by the Replacement Portfolios will be permitted without those transfers being counted against any limit on free transfers under the Contract.
16. Upon filing the Application, AIG SunAmerica supplemented the prospectus for the Contract to reflect the proposed Substitutions. Within five days after the Substitutions, AIG SunAmerica will send to its Owners written notice of the Substitutions (the “Notice”), identifying the shares of the Replaced Portfolios that have been eliminated and the shares of the Replacement Portfolios that have been substituted. AIG SunAmerica will also include in the mailing of the Notice the applicable prospectus supplement for the Contract describing the Substitutions and a copy of the prospectus for the Replacement Portfolios to Owners who have not already received a copy of that prospectus in the ordinary course. The Notice will further advise Owners that during the Free Transfer Period, Owners may transfer all assets, as substituted, among the available Variable Accounts funded by the Replacement Portfolios without limit or charge and without those transfers being counted against any limit on free transfers under their Contract.
1. Section 26(c) of the 1940 Act provides that “[i]t shall be unlawful for any depositor or trustee of a registered unit investment trust holding the security of a single issuer to substitute another security for such security unless the [SEC] shall have approved such substitution.”
2. Applicants represent that the proposed Substitution involves a substitution of securities within the meaning of meaning of Section 26(c) of the 1940 Act. The Applicants, therefore, request an order from the SEC pursuant to Section 26(c) approving the proposed Substitution.
3. Applicants represent that the Substitutions do not present the type of costly forced redemption or other harms that Section 26(c) was intended to guard against and is consistent with the protection of investors and the purposes fairly intended by the 1940 Act for the following reasons:
a. The Substitutions will continue to fulfill Owners' objectives and risk expectations, because the Replacement Portfolios corresponding to the Replaced Portfolios have objectives, policies, and restrictions substantially identical in all material respects to the objectives, policies, and restrictions of the Replaced Portfolios;
b. After receipt of the Notice informing an Owner of the Substitutions, an Owner may request that his or her assets be reallocated among the available Variable Accounts funded by the Replacement Portfolios at any time during the Free Transfer Period without any limit or charge and without those transfers being counted against any limit on free transfers under the Contract. This right also will be granted to Owners who are receiving variable payments based on the Replaced Portfolios. The Free Transfer Period will provide sufficient time for Owners to consider their reinvestment and withdrawal options;
c. The Substitutions will be at net asset value of the respective shares, without the imposition of any transfer or similar charge, so that there will be not change in the Owners' accumulation values or any other contract values following the Substitution;
d. AIG SunAmerica has undertaken to assume all expenses and transaction costs, including, but not limited to, legal and accounting fees (or any brokerage commissions, if any redemptions are effected otherwise than on an in-kind basis), in connection with the Substitutions involving the Separate Account;
e. The Substitutions will in no way alter the contractual obligations of AIG SunAmerica or the rights and privileges of Owners under the Contract;
f. The proposed Substitutions will not have any adverse tax consequences to Owners;
g. The Substitutions are expected to confer certain economic benefits on Owners by virtue of generally lower expenses currently or in the long term;
h. At the time of the Substitutions, the total annual expenses of each Replacement Portfolio (except for the Growth Fund which has slightly higher total annual expenses than the Growth Series) are expected to be lower than those of the corresponding Replaced Portfolio;
i. It is anticipated that the Substitutions will be effected by redeeming shares of each of the Replaced Portfolios wholly on an in-kind basis and contributing those assets in-kind to the corresponding Replacement Portfolio to purchase their respective shares; and
j. The In-Kind Transactions will be done in a manner consistent with the investment objectives, policies and restrictions, and diversification requirements of the Replaced and Replacement Portfolios; and Capital Research will review the In-Kind Transactions.
4. Applicants anticipate that all redeemed assets of the Replaced Portfolios will be suitable for the corresponding Replacement Portfolios.
5. AIG SunAmerica represents that it and its affiliates currently do not, and will not for a period of three years from the date of the Order requested herein, receive any direct or indirect benefit from the Replacement Portfolios their adviser (or their adviser's affiliates) or underwriters and affiliates, in connection with assets attributable to the Contract affected by the Substitutions, at a higher rate, as a percentage of its Separate Account assets invested in such Replacement Portfolios, than it or any affiliate had received from the corresponding Replaced Portfolio its adviser, (or its adviser's affiliates) or underwriters and affiliates, including without limitation 12b-1, shareholder service, administrative or other service fees, revenue sharing or other arrangements.
6. AIG SunAmerica further represents that the proposed Substitutions involving the Replaced and Replacement Portfolios and its selection of the Replacement Portfolios were not motivated by any financial consideration paid or to be paid to it or to any of its affiliates by the Replacement Portfolios, their adviser or
7. As explained more fully in the application, SAAMCO is entitled to receive a Business Management Fee from each Replaced Portfolio in return for certain business management and administrative services. Further, AIG SunAmerica will be entitled to receive a Service Fee from each Replacement Portfolio, to cover the expense of providing certain administrative services. Each Replacement Portfolio's Service Fee will be lower than the current Business Management Fee imposed on its corresponding Replaced Portfolio by between two and six basis points. Notwithstanding that advisory fees (including the Service Fees) for the Replacement Portfolios will be higher than the advisory fees (including the Business Management Fee) for the Replaced Portfolios (except for the International Fund, which has lower advisory fees), each Replacement Portfolio has a lower total expense ratio than its corresponding Replaced Portfolio (except for the Growth Fund, which has a slightly higher total annual expense than the Growth Series).
8. Applicants represent that, in the event that the Growth Fund's total annualized expenses are not equal to or lower than the total annual expenses of the Growth Series at February 28, 2003 during the 12-month period following the Substitution, as determined quarterly, the amount of the Service Fee imposed on the Growth Fund for a period of one-year following the Substitution will be reduced for such quarter by an amount equal to the disparity between the lower total annual expenses of the Growth Series and the then higher total annualized expenses of the Growth Fund.
9. The Applicants represent that, in the event that the Growth Fund total annualized expenses are not equal to or lower than the total annual expenses of the Growth Series at February 28, 2003 during the 12-month period following the Substitution, as determined quarterly, and waiver of the entire .18 basis point of Service Fees is insufficient to offset any excess of the Growth Fund fees over the expenses of the Growth Series, Applicants will make a corresponding reduction in the corresponding separate account sub-account expenses on the last day of each such quarterly period, such that the amount of the Growth Fund expenses, together with those of the corresponding sub-account will, on an annualized basis, be no greater than the sum of the net expenses of the Growth Series and the net expenses of the sub-account on February 28, 2003.
10. AIG SunAmerica will not increase any Contract fees or reduce any services to the Growth Series during the 12-month period following the Substitution.
11. The Applicants, on the basis of the facts and circumstances described in the Application, assert that the proposed Substitution is consistent with the protection of investors and the purposes fairly intended by the policy and purposes of the1940 Act and therefore request that the Substitution should be granted.
1. Section 17(a)(1) of the 1940 Act, in relevant part, prohibits any affiliated person of a registered investment company, or any affiliated person of such person, acting as principal, from knowingly selling any security or other property to that company. Section 17(a)(2) of the 1940 Act generally prohibits the persons described above, acting as principals, from knowingly purchasing any security or other property from the registered investment company.
2. Section 17(b) of the 1940 Act provides that the SEC may, upon application, grant an order exempting any transaction from the prohibitions of Section 17(a) if the evidence establishes that: (a) 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; (b) the proposed transaction is consistent with the policy of each registered investment company concerned, as recited in its registration statement and reports filed under the 1940 Act; and (c) the proposed transaction is consistent with the general purposes of the 1940 Act.
3. Applicants request an order pursuant to Section 17(b) of the 1940 Act exempting them from the provisions of Section 17(a) to the extent necessary to permit them to carry out the In-Kind Transactions.
4. Applicants submit that the terms of their proposed Substitutions, including the consideration to be paid and received, as described in their application, are reasonable and fair and do not involve overreaching on the part of any person concerned. Applicants also submit that their proposed Substitutions are consistent with the policies of the Anchor Fund (and each of its Replaced Portfolios) as recited in its current registration statement and reports filed under the 1940 Act, and AFIS (and each of its Replacement Portfolios), as recited in its registration statements and reports to be filed under the 1940 Act. As more fully described in the application, the In-Kind Transactions will be done in a manner consistent with the investment objectives, policies and restrictions, and diversification requirements of the Replaced and Replacement Portfolios, and Capital Research will review the In-Kind Transactions. The Applicants anticipate that all redeemed assets of the Replaced Portfolios will be suitable for the corresponding Replacement Portfolios.
5. Applicants submit that the proposed In-Kind Transactions are consistent with the general purposes of the 1940 Act.
6. The In-Kind Transactions effecting the Substitutions will be carried out in conformity with Section 22(c) of the 1940 Act and Rule 22c-1 thereunder, and will substantially comply with the conditions of Rule 17a-7 under the 1940 Act. Owners will not incur any fees or charges as a result of the transfer of Contract value pursuant to the Substitutions. Owners' rights and privileges under the Contract and AIG SunAmerica's obligations thereunder will not be affected by the Substitutions. The Substitutions will not increase Contract or separate account fees and charges after the Substitutions. Expenses incurred in connection with the Substitutions including, but not limited to, legal and accounting fees (or any brokerage commissions, if any redemptions are effected otherwise than on an in-kind basis), will not be borne by Owners. Contract values will remain unchanged and fully invested following consummation of the Substitutions. Accordingly, Owner interests after the Substitutions, in practical economic terms, will not differ in any measurable way from such interests immediately prior to the Substitutions. In each case, the consideration to be received and paid is, therefore, reasonable and fair.
7. As more fully discussed in the application, the investment objectives of each of the Replacement Portfolios are substantially identical to the investment objectives of the corresponding Replaced Portfolios. In this regard, the Substitutions are consistent with the findings required under Section 17(b) of the 1940 Act.
8. The proposed In-Kind Transactions do not present any of the issues or abuses that the 1940 Act is designed to prevent. Moreover, the proposed In-Kind Transactions will be effected in a manner consistent with the public interest and the protection of investors as Owners will be fully informed of the terms of the Substitutions through the
For the reasons set forth in the application, the Applicants respectively state that the proposed Substitution and the related In-Kind Transactions meet the standards of Section 26(c) of the 1940 Act and Section 17(b) of the 1940 Act and respectfully request that the SEC issue an order of approval pursuant to Section 26(c) of the 1940 Act and order of exemption pursuant to Section 17(b) of the 1940 Act.
For the SEC, by the Division of Investment Management, pursuant to delegated authority.
68 FR 64672, November 14, 2003.
Closed Meeting.
450 Fifth Street NW., Washington, DC.
Wednesday, November 19, 2003 at 3 p.m.
Additional item.
The following item has been added to the Closed Meeting of Wednesday, November 19, 2003: Institution of injunctive action.
Commissioner Glassman, as duty officer, determined that Commission business required the above change and that no earlier notice thereof was possible.
At times, changes in Commission priorities require alterations in the scheduling of meeting items. For further information and to ascertain what, if any, matters have been added, deleted or postponed, please contact the Office of the Secretary at (202) 942-7070.
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 12, 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 12, 2003, the application(s) and/or declaration(s), as filed or as amended, may be granted and/or permitted to become effective.
Gulf Power Company (“Gulf”), 500 Bayfront Parkway, Pensacola, Florida, 32501 a wholly owned public utility subsidiary of The Southern Company (“Southern”), a registered public utility holding company, has filed with the Commission a declaration (“Declaration”) under sections 6(a) and 7 of the Act and rule 54 under the Act.
Gulf proposes to issue and sell from time to time, through January 1, 2007 (“Authorization Period”), (i) short-term and/or term-loan notes to lenders and (ii) commercial paper to or through dealers in an aggregate principal amount at any one time outstanding of up to $600 million.
Gulf proposes to effect borrowings from certain banks or other lending institutions. These institutional borrowings will be evidenced by (i) notes to be dated as of the date of the borrowings and to mature in not more than seven years after the date of issue or (ii) “grid” notes evidencing all outstanding borrowings from each lender to be dated as of the date of the initial borrowing and to mature not more than seven years after the date of issue. Gulf proposes that it may provide that any note evidencing these borrowings may not be prepayable, or that it may be prepaid with payment of a premium that is not in excess of the stated interest rate on the borrowing to be prepaid.
Gulf states that borrowings will be at the lender's prevailing rate offered to corporate borrowers of similar quality, but asserts that these rates will not exceed the lender's prime rate or (i) London Inter Bank Offering Rate plus up to 3% or (ii) a rate not to exceed the prime rate to be established by bids obtained from the lenders prior to a proposed borrowing.
Gulf states that compensation for the credit facilities may be provided by fees of up to 1% per annum of the amount of the facility and that compensating balances may be used in lieu of fees to compensate certain of the lenders.
Gulf also proposes to issue and sell commercial paper (“Commercial Paper”) to or through dealers from time to time through the Authorization Period. Gulf states that the Commercial Paper will be in the form of promissory notes with varying maturities not to exceed 390 days.
Gulf states that it will pay a commission not to exceed 1/8 of 1% per annum payable to the Dealer in respect of Commercial Paper sold through the Dealer as principal. Gulf states that the Dealer will reoffer the commercial paper at a discount rate of up to 1/8 of 1% per annum less than the prevailing interest rate to Gulf or at an equivalent cost if sold on an interest-bearing basis.
By order dated December 13, 1996, (HCAR No. 26628) (“Short-Term Borrowings Order”), Gulf has authority to effect short-term borrowings, include bank borrowings and the issuance of commercial paper, in an amount not to exceed $300,000,000 prior to January 1, 2004.
Additionally, by order dated November 8, 2000 (HCAR No. 27273) (“Consolidated Commercial Paper Order”), Gulf states that it has authority to effect short-term borrowings in which Gulf is not the issuer. Gulf states that the Consolidated Commercial Paper Order authorizes Gulf to effect short-term borrowings through a Southern consolidated commercial paper program in an amount not to exceed $300,000,000 through June 30, 2004. The Consolidated Commercial Paper Order authorized a Southern subsidiary (“Issuer”) to issue commercial paper for the benefit of Gulf and other Southern utility subsidiaries, Georgia Power Company, Mississippi Power Company, Savannah Electric and Power Company, Alabama Power Company, and Southern Electric Generating Company (“Participants”). Each Participant borrows the proceeds from the sale of commercial paper by the Issuer for that Participant's benefit. Gulf states that it is authorized to borrow up to $300,000,000 outstanding principal amount at any time from the Issuer under to the Consolidated Commercial Paper Order.
According to terms of the Short-Term Borrowings Order and the Consolidated Commercial Paper Order, any borrowings under each order must be aggregated and may not exceed the $300,000,000 aggregate principal amount authorized by the Short-Term Borrowings Order. At September 30, 2003, Gulf states that it did not have any borrowings outstanding under either authorization.
Gulf now requests to increase its short-term borrowings authority from an aggregate principal amount of $300,000,000 to $600,000,000. Gulf proposes that the authorization sought in this Declaration would supersede and replace the authorization in the Short-Term Borrowings Order effective immediately upon the date of the Commission's order in connection with this Declaration but would not supercede the authorization in the Consolidated Commercial Paper Order. Gulf expects that a new filing requesting authority to continue the Southern consolidated commercial paper program (“Expected Filing”) will be filed prior to the expiration of the authorization in the Consolidated Commercial Paper Order. Gulf states that this filing will include $600,000,000 aggregate principal amount of borrowings for the benefit of Gulf, which will correspond to the amount sought in this Declaration.
Gulf requests that any borrowings entered into under authority granted in this Declaration and those entered into under the authority granted in the Consolidated Commercial Paper Order be aggregated and may not exceed the $600,000,000 aggregate principal amount. Gulf requests that at all times when the order in connection with this Declaration is in effect, Gulf will have short-term borrowings authorization in an amount not to exceed $600,000,000 aggregate principal amount.
Gulf states that proceeds from the proposed borrowings will be used for working capital purposes, including the financing in part of its construction program. Except as may be otherwise authorized by the Commission, Gulf states that any short-term or term-loan borrowings of Gulf outstanding after June 30, 2007 and June 30, 2014, respectively, will be retired from internal cash resources, the proceeds of equity financings or the proceeds of short or long-term debt.
Gulf represents that it will maintain its common equity as a percentage of capitalization (inclusive of short-term debt) at no less than thirty percent. Gulf will not issue any securities under authority from this Declaration, unless upon original issuance thereof: (i) The securities, if rated, are rated at least investment grade, (ii) all outstanding securities of Gulf that are rated are rated investment grade, and (iii) all outstanding securities of Southern that are rated are rated investment grade. For purposes of this provision, any security will be deemed to be rated “investment grade” if it is rated investment grade by at least one nationally recognized statistical rating organization, as defined in paragraphs (c)(2)(vi)(E), (F) and (H) of Rule 15c3-1 under the Securities Exchange Act of 1934, as amended. Gulf requests that it be permitted to issue a security that does not satisfy the foregoing condition if the requirements of rule 52(a)(i) and rule 52(a)(iii) are met and the issue and sale of the security have been expressly authorized by the Florida Public Service Commission. Gulf hereby requests that the Commission reserve jurisdiction over the issuance of any securities at any time that the conditions set forth above are not satisfied.
For the Commission by the Division of Investment Management, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The CBOE proposes to change the time periods (i) after which an individual's inactive nominee status will be terminated and (ii) during which a former individual member may reapply for membership through the renewal/change of status application process.
The text of the proposed rule change is available at the Office of the Secretary, CBOE and at the Commission.
In its filing with the Commission, the CBOE included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The CBOE has prepared summaries, set for in Sections A, B, and C below, of the most significant parts of such statements.
CBOE Rule 3.8(g) provides that a member organization may designate one or more inactive nominees. An inactive nominee is an individual who is eligible to become an effective nominee of a member organization with respect to any membership for which the organization is either an owner (and not a lessor) or is a lessee. In order to become an inactive nominee of a member organization, an individual must be approved for membership and become an effective nominee of the member organization, with authorized floor functions, within 90 days of the approval for membership. An inactive nominee has no rights or privileges of membership and no right of access to the Exchange's trading floor, unless and until the inactive nominee becomes an effective member. Additionally, Rule 3.8(g)(iv) provides that if at any time an individual remains an inactive nominee for 6 consecutive months, the individual's eligibility for membership is terminated and the individual must reapply for membership in order to again become eligible for inactive nominee status.
The Exchange proposes to extend the time period under Rule 3.8(g)(iv) by 3 months. Specifically, the Exchange proposes to amend Rule 3.8(g)(iv) to provide that an individual's inactive nominee status will terminate if at any time an individual remains an inactive nominee for 9 consecutive months. The Exchange believes this change will improve the efficiency of the Exchange's membership processes in that individuals will have a longer period of time during which they may remain inactive nominees before they are required to go through a membership application process.
Similarly, in order to further improve the efficiency of the Exchange's membership processes, the Exchange proposes to change the time period during which a former individual member may reapply for membership through the renewal/change of status application process. As with the inactive nominee termination period, the time period during which a former individual member may reapply for membership through the renewal/change of status application process is proposed to be extended from the current 6 month period following termination from membership to 9 months following membership termination. The foregoing change would be reflected in three ways in CBOE rules.
First, CBOE Rule 3.9(e) would be amended to provide that a posting period will not be applicable when an applicant has been a member within 9 months prior to the date of receipt of the applicant's membership application by the Membership Department. Currently, the name of an applicant and the application request are published in the Exchange Bulletin and posted on the Exchange Bulletin Board for 10 days if the applicant has not been a member within 6 months prior to submission of the application. This is the case because applicants that go through the renewal/change of status application process do not have a posting period. Accordingly, the time period under Rule 3.9(e) in which a former member is not subject to a posting period is also proposed to be changed to 9 months from membership termination in order to correspond to the new proposed time period during which a former member may reapply for membership through the renewal/change of status application process.
Second, Rule 3.9(f) would be amended to provide that applicants are not required to be investigated by the Exchange if the applicant was a member within 9 months (instead of the current 6 months) prior to submission of that applicant's membership application or if the applicant was investigated by the Membership Department within 9 months (instead the current 6 months) prior to submission of the application. This maintains the current procedure under which applicants that go through the renewal/change of status application process are not investigated by the Membership Department. However, the Membership Department would retain its current authority under Rule 3.9(f) to investigate any applicant that is not required to be investigated. Additionally, membership applicants that go through the renewal/change of status application process will continue to have their fingerprints submitted to the Attorney General of the United States or its designee in connection with the application.
Third, the Exchange's Membership Fee Circular would be amended to provide that the Renewal/Change of Status application fee would apply to a former individual member who reapplies for membership within 9 months (instead of the current 6 months) of his/her membership termination date and who becomes an effective member within 1 year of his/her membership termination date. Under the amended Membership Fee Circular, a former individual member who reapplies for membership within 9 months of termination from membership would be assessed the Renewal/Change of Status fee at the time of submission of the application. If that person becomes an effective member more than 1 year after his/her membership termination date, the person would then be charged an additional fee equal to the difference between the Individual/Nominee/CBOT Exerciser/Lessee/Lessor application fee and the Renewal/Change of Status fee.
The reason that an additional fee will be assessed if a former member reapplies for membership within 9 months of membership termination and then does not become an effective member within 1 year after membership termination is to discourage applicants from taking advantage of the lower Renewal/Change of Status fee and then not following through on the application or their membership approval on a timely basis. Rule 3.9(l) provides that if the membership application process is not completed within 6 months of the submission of a membership application, the application shall be deemed to be automatically withdrawn. Rule 3.10 provides that an applicant approved for membership must become effective in that status within 90 days of the approval for that status (except that an applicant approved as a lessor may become effective in that status within 6 months of approval). Therefore, it is conceivable that an applicant could request that the Membership Department defer action on a membership application for up to 6 months after it is submitted and then not become an effective member following membership approval for another 3 months (or another 6 months in the case of a lessor). The Exchange does not believe the Renewal/Change of Status fee should apply to such situations (for example, where an individual takes advantage of the Renewal/Change of Status fee and then does not become an effective member again until 18 months after termination
Additionally, it should be noted that, irrespective of the changes proposed by this rule filing, CBOE Rule 3.9(g) will remain applicable. Rule 3.9(g) provides, in pertinent part, that any person who does not possess an authorized floor function for more than 1 year is required to re-attend the Exchange's New Member Orientation Program and to re-pass the Floor Member Qualification Exam in order to once again become eligible to have an authorized floor function. Retention of this requirement will ensure that former members that have not had an authorized floor function for an extended period of time will go through the Exchange's floor member orientation class again and will be required to pass the related Exchange exam.
The proposed rule change will improve the efficiency of the Exchange's membership application processes. Accordingly, the proposed rule change is consistent with Section 6(b) of the Act,
The CBOE does not believe that the proposed rule change will impose any burden on competition not necessary or appropriate in furtherance of the purposes of the Act.
No written comments were solicited or received with respect to the proposed rule change.
Within 35 days of the date of publication of this notice in the
(A) by order approve such proposed rule change, or
(B) institute proceedings to determine whether the proposed rule change should be disapproved.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposal is consistent with the Act. Persons making written submissions should file six copies thereof with the Secretary, Securities and Exchange Commission, 450 Fifth Street, NW., Washington, DC 20549-0609. Copies of the submission, all subsequent amendments, all written statements with respect to the proposed rule change that are filed with the Commission, and all written communications relating to the proposed rule change between the Commission and any person, other than those that may be withheld from the public in accordance with the provisions of 5 U.S.C. 552, will be available for inspection and copying in the Commission's Public Reference Room. Copies of such filing will also be available for inspection and copying at the principal office of the CBOE. All submissions should refer to File No. SR-CBOE-2003-49 and should be submitted by December 15, 2003.
For the Commission, by the Division of Market Regulation, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The proposed rule change will terminate DTC's Data Link for Intermediaries (“DALI”) tax service.
In its filing with the Commission, DTC 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. DTC has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
The proposed rule change will terminate DTC's DALI tax service effective December 31, 2003. DALI is a communications hub that allows financial institutions (typically, a U.S. paying institution acting as a U.S. withholding agent and its foreign customer payee) to exchange the data necessary to determine correct withholding and reporting of U.S. tax on
DTC introduced DALI in January 2001 at the request of four DTC participants (“Consortium”). DALI's principal features are communicating payment events and withholding instructions relating to such events, managing payee tax documentation (such as IRS Forms W-8 and W-9), and aggregating information for tax reporting and recordkeeping.
At the Consortium's request, DTC agreed to act as project manager for developing the DALI software system and for operating and maintaining the system as a DTC service that would be available to all DTC participants and their customers at standard DTC fees. The Consortium members agreed to finance the product development costs and expected to be reimbursed for such costs over time from the proceeds of user service fees in excess of these costs. The Consortium also agreed to fund DALI's operating losses during the initial phase of operations. The Consortium expected that the DALI system would be widely used by DTC participants, which would therefore obviate the need for the Consortium to continue to fund operating losses and would enable the Consortium to recoup any amounts previously funded.
Only Consortium members have used DALI, and by mid-2003, only one out of those four members continued using DALI. Given the costs of maintaining DALI, DTC has determined that it will no longer offer this service. Consistent with the agreements between DTC and the Consortium, DTC will transfer the DALI system to the Consortium member that is still using and funding DALI. DTC will operate the system as a facilities manager on behalf of that member for a limited period of time (less than one year) during the transition. This member intends to operate the DALI system in-house for its own customers.
DTC believes that the proposed rule change is consistent with the requirements of Section 17A(b)(3)(A) of the Act
DTC perceives no impact on competition by reason of the proposed rule change. Each of the three Consortium members that used DALI informed DTC that it has developed its own internal system to perform withholding and reporting with respect to DALI's functions and that DTC's discontinuance of DALI will not adversely affect it. DTC will assist the remaining Consortium member in transitioning the DALI system for its own use.
DTC has not solicited nor received written comments on the proposed rule change. DTC will inform the Commission of any written comments it receives.
The foregoing rule change has become effective pursuant to Section 19(b)(3)(A) of the Act
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Persons making written submissions should file six copies thereof with the Secretary, Securities and Exchange Commission, 450 5th Street NW., Washington, DC 20549-0069. Comments may also be submitted electronically at the following e-mail address:
For the Commission by the Division of Market Regulation, pursuant to delegated authority.
On November 27, 2001, the National Association of Securities Dealers, Inc. (“NASD”), through its wholly owned subsidiary, NASD Regulation, Inc., filed with the Securities and Exchange Commission (“Commission”), pursuant to section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
NASD Rule 3370(b)(2)(A) provides that no member or person associated with a member shall accept a short sale order for any customer in any security unless the member or person associated with a member makes an affirmative determination that the member will receive delivery of the security from the customer or that the member can borrow the security on behalf of the customer for delivery by settlement date. For purposes of NASD Rule 3370(b)(2), the term “customer” is defined in NASD Rule 0120(g) and excludes a broker or dealer.
As a result, the requirements of NASD Rule 3370(b)(2)(A) generally do not apply directly to orders received by a member from another broker-dealer (the “originating broker-dealer”). This does not present regulatory concerns where the originating broker-dealer is also an NASD member because, as a member, the originating broker-dealer would have an independent obligation to comply with the requirements under NASD Rule 3370(b)(4)(B) (“Affirmative Determination Requirements”) with respect to the order. Non-member broker-dealers, however, are not subject to NASD rules and, therefore, are not independently required to comply with the NASD's Affirmative Determination Requirements. Thus the Affirmative Determination Requirements generally do not apply to short sale orders that originate with a non-member broker-dealer and are subsequently routed to an NASD member.
To address these concerns, the proposed rule change would amend NASD Rule 3370(b)(2)(A) to require that no member or person associated with a member shall accept a short sale order for any customer, or any non-member broker-dealer in any security unless the member or person associated with a member makes an affirmative determination that the member will receive delivery of the security from the customer or non-member broker-dealer, or that the member can borrow the security on behalf of the customer or non-member broker-dealer for delivery by settlement date. In such instances, members also would be required to comply with the corresponding recordkeeping requirements under NASD Rule 3370(b)(4)(B).
While NASD members generally are required to make affirmative determinations for both customer and proprietary orders, there are limited exceptions for proprietary orders that are bona fide market making, bona fide fully hedged or bona fide fully arbitraged transactions.
The Commission received one comment letter from Island ECN, Inc. (“Island”). Island's comment letter makes two basic points. First, it suggests the Commission should not approve the proposal until the issue of the Nasdaq primary market maker (“PMM”) standards exemption is addressed. Second, Island argues that the NASD offers no factual basis for the proposal. The NASD believes that no changes to the proposal are necessary in response to Island's letter.
Regarding Island's first point, the NASD's response is that Island confuses the requirements of the bid test, which addresses the price at which a short sale may be made, with the affirmative determination requirement, which prevents abusive short selling and ensures that short sellers satisfy their settlement obligations. According to the NASD, short selling members must comply with both affirmative determinations and bid test requirements. According to the NASD, the current rule applies only to a member's proprietary orders and customer orders, which excludes another broker or dealer by definition.
Further, NASD has made similar changes NASD Rule 2860 to the option position, exercise and reporting requirements.
NASD's response to Island second point is that NASD has set forth a factual basis for approval of the proposal consistent with section 15A(b)(6) of the Act.
Interested persons are invited to submit written data, views, and arguments concerning Amendment Nos. 1 and 2 to the proposed rule change, including whether Amendment Nos. 1 and 2 are consistent with the Act. Persons making written submissions should file six copies thereof with the Secretary, Securities and Exchange Commission, 450 Fifth Street, NW., Washington, DC 20549-0609. Copies of the submission, all subsequent amendments, all written statements with respect to the proposed rule change that are filed with the Commission, and all written communications relating to the proposed rule change between the Commission and any person, other than those that may be withheld from the public in accordance with the provisions of 5 U.S.C. 552, will be available for inspection and copying in the Commission's Public Reference Room. Copies of such filing will also be available for inspection and copying at the principal office of the NASD. All submissions should refer to File No. SR-NASD-2001-85 and should be submitted by December 15, 2003.
The Commission finds that the proposed rule change is consistent with the requirements of the Act and the rules and regulations thereunder
The Commission finds good cause for approving Amendment Nos. 1 and 2 to the proposed rule change prior to the thirtieth day after the amendments are published for comment in the
For the foregoing reasons, the Commission finds that the proposed rule change, as amended, is consistent with the Act and the rules and regulations thereunder applicable to a national securities association, and, in particular, with section 15A(b)(7) of the Act.
For the Commission, by the Division of Market Regulation, pursuant to delegated authority.
Small Business Adminstration.
Notice of members of the FY 2003 Performance Review Board.
Section 4314(c)(4) of Title 5, U.S.C., requires each agency to publish notification of the appointment of individuals who may serve as members of that Agency's Performance Review Boards (PRB). The following have been designated to serve on the FY 2003 Performance Review Boards for the U.S. Small Business Administration:
1. Lisa Goeas, Chief of Staff;
2. Cheryl Mills, Associate Deputy Administrator for Entrepreneurial Development;
3. Lewis D. Andrews, Jr., Associate Deputy Administrator for Management and Administration;
4. Stephen Galvan, Chief Information Officer;
5. Susan Hensley, Associate Administrator for Communications and Public Liaison;
6. Judith Roussel, District Director (Chicago);
7. José Sifontes, District Director (New York);
8. Robert J. Moffitt, Deputy Associate Deputy Administrator for Management and Administration;
9. Monika Edwards Harrison, Chief Human Capital Officer;
10. Loyola R. Trujillo, Assistant Administrator for Equal Employment Opportunity and Civil Rights Compliance;
11. Eric Benderson, Associate General Counsel for Litigation;
12. Calvin Jenkins, Deputy Associate Deputy Administrator for Capital Access;
13. Jennifer Main, Deputy Chief Financial Officer;
14. James Rivera, Associate Administrator for Financial Assistance; and,
15. Jerry Williams, Deputy Chief Information Officer.
By virtue of the authority vested in me as Under Secretary of State for Management, including under Delegation of Authority No. 198, dated September 16, 1992, I hereby delegate the duties, functions and responsibilities for the administrative collection, compromise, suspension, termination of Department collection, advance decision, settlement, and waiver of claims of or against debtors of the Department of State pursuant to section 211 of the Legislative Branch Appropriation Act, 1996, Public Law 104-53, 109 Stat. 514(1995); the Office of Management and Budget's Determination with Respect to Transfer of Functions Pursuant to Public Law 104-53 (June 30, 1996); sections 103(d), 105(b), 116, and 204 of the General Accounting Office Act of 1996, Public Law 104-316, 110 Stat. 3816 (1996); the Office of Management and Budget's Determination with Respect to Transfer of Functions Pursuant to Public Law 104-316 (December 17, 1996); and Title 31 of the United States Code Chapter 37 to the Chief Financial Officer. I further delegate such authority to additional officers regarding claims for specified amounts as follows:
• Over $35,000 but not more than $50,000: Deputy Chief Financial Officer;
• Up to and including $35,000: Deputy Assistant Secretary for Global Financial Services; and
• Up to and including $500: Principal Officer of the post.
The following delegation of authority is hereby revoked: the June 15, 1999,
(a) This Delegation of authority shall be published in the
(b) Notwithstanding any provision of this Delegation of Authority, the Secretary of State, the Deputy Secretary of State, or the Under Secretary of State for Management may at any time exercise any function delegated by this delegation of authority.
(c) Functions delegated by this delegation of authority may not be redelegated.
(d) Any reference in this delegation of authority to any act, executive order, determination, delegation of authority, regulation, or procedure shall be deemed to be a reference to such act, order, determination, delegation of authority, regulation, or procedure as amended from time to time.
On December 11, 1981, pursuant to the authority of 22 U.S.C. 211a and Executive Order 11295 (31 FR 10603), and in accordance with 22 CFR 51.73(a)(3), all United States passports were declared invalid for travel to, in, or through Libya unless specifically validated for such travel. This restriction has been renewed yearly because of the unsettled relations between the United States and the Government of Libya and the possibility of hostile acts against Americans in Libya. The American Embassy in Tripoli remains closed, thus preventing the United States from providing routine diplomatic protection or consular assistance to Americans who may travel to Libya.
In light of these events and circumstances, I have determined that Libya continues to be a country “where there is imminent danger to the public health or physical safety of United States travellers” within the meaning of 22 U.S.C. 211a and 22 CFR 51.73(a)(3).
Accordingly, all United States passports shall remain invalid for travel to, in, or through Libya unless specifically validated for such travel under the authority of the Secretary of State.
This Public Notice shall be effective upon publication in the
Federal Highway Administration (FHWA), DOT.
Notice of intent to prepare an environmental impact statement.
The FHWA is issuing this notice to advise the public that an environmental impact statement (EIS) will be prepared for the proposed improvements of STH 23 between CTH K east of Fond du Lac in Fond du Lac County and CTH P west of Plymouth in Sheboygan County, Wisconsin.
Mr. Johnny M Gerbitz, Field Operations Engineer, Federal Highway Administration, 567 D'Onofrio Drive, Madison, Wisconsin 53719-2814; telephone: (608) 829-7511. You may also contact Mr. Eugene Johnson, Director, Bureau of Equity & Environmental Services, Wisconsin Department of Transportation, P.O. Box 7965, Madison, Wisconsin 53707-7965; telephone: number 608-267-9527.
An electronic copy of this document may be downloaded by using a computer, modem and suitable communications software from the Government Printing Office's Electronic Bulletin Board Service at (202) 512-1661. Internet users may reach the Office of
The FHWA, in cooperation with the Wisconsin Department of Transportation, will prepare an Environmental Impact Statement to construct a four-lane facility on STH 23. The project begins at CTH K east of Fond du Lac in Fond du Lac County and extends approximately 19 miles to CTH P west of Plymouth in Sheboygan County, Wisconsin.
The anticipated format for the EIS will be Screening Worksheets rather than the typical narrative form. The Wisconsin Department of Transportation has developed a series of Environmental Screening Worksheets which are divided into Basic Sheets and Factor Sheets. The Screening Worksheets provide a flexible means of addressing the requirements for an Environmental Document.
The improvements to this highway are considered necessary to decrease the potential for crashes, lower congestion, and complete the constrution of a multi-lane highway facility between the Fond du Lac and Sheboygan urban areas.
Planning, environmental, and engineering studies are underway to develop transportation alternatives. The EIS will assess the need, location, and environmental impacts of alternatives within the study area. These alternatives include (1)
Information describing the proposed action and soliciting comments will be sent to appropriate Federal, State and local agencies and to private organizations and citizens who have previously expressed, or are known to have interest in this proposal. A series of public meetings will be held in the project corridor throughout the data gathering and development of alternatives. In addition, a public hearing will be held. Public notice will be given of the time and place of the
To ensure that the full range of issues related to this proposed action are addressed, and all substantive issues are identified, comments and suggestions are invited from all interested parties. Comments or questions concerning this proposed action and the EIS should be directed to FHWA or the Wisconsin Department of Transportation at the addresses provided in the caption
23 U.S.C. 315; 49 CFR 1.48.
Federal Railroad Administration (FRA), DOT.
Notice of safety advisory.
FRA is issuing Safety Advisory 2003-03, which provides additional information on the potential catastrophic failure of 100-ton truck bolsters manufactured by National Castings of Mexico's (NCM) Sahagun, Mexico facility with Association of America Railroads (AAR) Identification Numbers B-2410 and B-2409 and National Patterns 52122 and 52202, respectively, used in 263,000 pound and 286,000 pound gross rail load freight cars. These two bolster patterns were manufactured by NCM from 1995 through 1998 and were installed on 29,186 U.S. freight cars of various type construction. Additionally, an overview of the railroad industry's AAR Safety Action Plan for appropriate handling and disposition of these cars is contained in this advisory.
Ronald Newman, Staff Director, Motive Power and Equipment Division (RRS-14), FRA Office of Safety Assurance and Compliance, 1120 Vermont Avenue, NW., Washington, DC 20590, telephone: (202) 493-6241 of Thomas Herrmann, Staff Attorney, FRA Office of Chief Counsel, 1120 Vermont Avenue, NW., Washington, DC 20590, telephone: (202) 493-6036.
On December 30, 2002, FRA issued Safety Advisory 2002-03 which identified a problem with National Castings of Mexico (NCM) bolsters bearing AAR identification #B-2410, and National Pattern 52122 used in 263,000 and 286,000 pound gross rail load freight cars. In that advisory, FRA referenced AAR Maintenance Advisory MA-81 and AAR Early Warning Letters EW-5191, EW-5191-S1, and EW-5191-S2 that indicated there were as many as 15,000 freight cars in revenue service, which may be equipped with the NCM bolsters. Since publication of FRA Safety Advisory 2002-03, FRA has been made aware of another series of bolsters, AAR Identification # B-2409 and National Pattern 52202, which pose a similar potential safety hazard. The NCM bolsters with pattern 52202 have been referenced in AAR Early Warning Letters EW-5194, EW-5195, EW-5196, and EW-5197. The total estimated population of defective truck bolsters from both NCM patterns is 58,373 bolsters. This large number of truck bolsters represents a fleet of roughly 29,186 freight cars, which may be equipped with the defective NCM bolsters. Extensive fatigue testing of both types of bolsters (both patterns 52122 and 52202) at the AAR Transportation Test Center in Pueblo, CO and two other laboratories confirmed a tendency of these bolsters to develop internal cracking (design flaw) which can lead to sudden and catastrophic failure. The fatigue testing indicated that the action plan, as outlined by the AAR and contained herein, would be an appropriate industry response for dealing with these defective bolsters.
During the week of March 10, 2003, the AAR tendered its
The Plan approved and implemented by AAR's Technical Services Working Committee (TSWC) provided the following proactive safety measures:
1. Tank car owners must complete 20% of their HAZMAT cars (complete bolster replacements) no later than May 31, 2003, and a minimum of 20% per month, thereafter, with 100% replacement no later than September 30, 2003 (Group I, HAZMAT cars).
2. Mill gondola and coal cars (subject to vertical loading impacts) must have bolsters either replaced or requalified (via radiographic inspection) no later than December 31, 2003 (Group II cars).
3. All other cars must either have bolsters replaced or requalified (via radiographic inspection) no later than April 1, 2004 (Group III and Category III, Tank cars, non-HAZMAT service).
FRA recognizes that some of the dates in the AAR industry action plan have not been met for a variety of reasons, primarily the result of not having a sufficient quantity of replacement bolsters. AAR, the railroads and car owners have taken additional measures to ensure safety based on AAR's waiver review, cars held out of service and special inspection procedures. Since initiation of the
It should be noted that FRA Hazardous Materials Regulations (HMR), contained in 49 CFR parts 171-180, set forth the requirements for the safe transportation of hazardous materials in commerce by railcar, aircraft, vessel, and motor vehicle. The HMR prescribe requirements for classification, packaging, hazard communication, shipping papers, incident reporting, handling, loading, unloading, segregation, and movement of hazardous materials. FRA understands that there may be as many as 3,300 tank cars originally equipped with either the NCM bolsters in pattern(s) 52122 or 52202, some of
Failure of the rail industry to voluntarily take action consistent with the AAR
Federal Transit Administration (FTA), DOT.
Notice of availability of fiscal year 2004 funds; solicitation of grant applications.
The U.S. Department of Transportation (DOT) Federal Transit Administration (FTA) announces the availability of funds in fiscal year (FY) 2004 for the Over-the-Road Bus (OTRB) Accessibility Program, authorized by Section 3038 of the Transportation Equity Act for the 21st Century (TEA-21). The OTRB Accessibility Program makes funds available to private operators of over-the-road buses to finance the incremental capital and training costs of complying with DOT's over-the-road bus accessibility final rule, published in a
FTA expects that in FY 2004, $5.25 million will be appropriated for intercity fixed-route service providers and $1.7 million will be appropriated for other over-the-road bus service providers. As of the date of this announcement, TEA-21 has been extended through February 29, 2004, and the FY 2004 funding for FTA programs has not yet been appropriated by Congress. This announcement describes application procedures for the OTRB Accessibility Program and the procedures FTA will use to determine which projects it will fund when the status of FY 2004 funding is resolved.
This announcement is available on the Internet on the FTA website at:
Complete applications for OTRB Accessibility Program grants must be submitted to the appropriate FTA regional office (
The appropriate FTA regional office is that office which serves the state in which an applicant's headquarters office is located. FTA will announce grant selections in summer 2004, or when FY 2004 funds are fully available.
Contact the appropriate FTA Regional Administrator (Appendix B) for application-specific information and issues. For general program information, contact Blenda Younger, Office of Program Management, (202) 366-2053, e-mail:
The program is authorized under Section 3038 of the Transportation Equity Act for the 21st Century (TEA-21). Although FY 2004 funds have not yet been appropriated as of the date of this notice, FTA is issuing the solicitation notice now to get the application cycle started.
Over-the-road buses are used in intercity fixed-route service as well as other services, such as commuter, charter, and tour bus services. These services are an important element of the U.S. transportation system. TEA-21 authorized FTA's Over-the-road Bus Accessibility Program to assist over-the-road bus operators in complying with the Department's Over-the-road Bus Accessibility rule, “Transportation for Individuals with Disabilities” (49 CFR part 37) published in a
Specifications describing the design features that an over-the-road bus must have to be readily accessible to and usable by persons who use wheelchairs or other mobility aids required by the “Americans with Disabilities Act Accessibility Guidelines for Transportation Vehicles: Over-the-Road Buses” rule (36 CFR part 1192) were published in another
Improving mobility and shaping America's future by ensuring that the transportation system is accessible, integrated, and efficient, and offers flexibility of choices is a key strategic goal of the Department of Transportation. Over-the-road Bus Accessibility projects will improve mobility for individuals with disabilities by providing financial assistance to help make vehicles accessible and provide training to ensure that drivers and others understand how to use accessibility features as well as how to treat patrons with disabilities.
Grants will be made directly to operators of over-the-road buses. Intercity, fixed-route over-the-road bus service providers may apply for the $5.25 million that FTA expects will be available to intercity fixed-route providers in FY 2004. Other over-the-road bus service providers, including operators of local fixed-route service, commuter service, and charter or tour service may apply for the $1.7 million expected to be available in FY 2004 for these providers. OTRB operators who provide intercity, fixed-route service and another type of service, such as commuter, charter or tour, may apply for both categories of funds with a single application. Private for-profit operators of over-the-road buses are eligible to be direct applicants for this program. This is a departure from most other FTA programs for which the direct applicant must be a state or local public body.
An “over-the-road bus” is a bus characterized by an elevated passenger deck located over a baggage compartment.
Intercity, fixed-route over-the-road bus service is regularly scheduled bus service for the general public, using an over-the-road bus that: operates with limited stops over fixed routes connecting two or more urban areas not in close proximity or connecting one or more rural communities with an urban area not in close proximity; has the capacity for transporting baggage carried by passengers; and makes meaningful connections with scheduled intercity bus service to more distant points.
Other over-the-road bus service means any other transportation using over-the-road buses, including local fixed-route service, commuter service, and charter or tour service (including tour or excursion service that includes features in addition to bus transportation such as meals, lodging, admission to points of interest or special attractions). While some commuter service may also serve the needs of some intercity fixed-route passengers, the statute includes commuter service in the definition of “other” service. Commuter service providers should apply for these funds, even though the services designed to meet the needs of commuters may also provide service to intercity fixed-route passengers on an incidental basis. If a service provider can document that more than 50 percent of its passengers are using the service as intercity fixed-route service, the provider may apply for the funds designated for intercity fixed-route operators.
Projects to finance the incremental capital and training costs of complying with DOT's over-the-road bus accessibility rule (49 CFR part 37) are eligible for funding. Incremental capital costs eligible for funding include adding lifts, tie-downs, moveable seats, doors and all labor costs associated with work on the vehicle needed to make vehicles accessible. Retrofitting vehicles with such accessibility components is also an eligible expense. Please see Buy America section for further determination of eligibility.
FTA may award funds for costs already incurred by the applicants. Any new wheelchair accessible vehicles delivered since June 8, 1998, the date that the Transportation Equity Act for the 21st Century was effective, are eligible for funding under the program. Vehicles of any age that have been retrofitted with lifts and other accessibility components since June 8, 1998 are also eligible for funding.
Eligible training costs are those required by the final accessibility rule as described in 49 CFR 37.209. These activities include training in proper operation and maintenance of accessibility features and equipment, boarding assistance, securement of mobility aids, sensitive and appropriate interaction with passengers with disabilities, and handling and storage of mobility devices. The costs associated with developing training materials or providing training for local providers of over-the-road bus services for these purposes are eligible expenses.
FTA will not fund the incremental costs of acquiring used wheelchair accessible OTRBs, as it may be impossible to verify whether or not FTA funds were already used to make the vehicles accessible. Also, it would be difficult to place a value on the accessibility features based upon the depreciated value of the vehicle. FTA wishes to increase the number of wheelchair accessible over-the-road buses available to persons with disabilities throughout the country, and the purchase of used accessible vehicles, whether or not they were previously funded by FTA, does not further this objective.
FTA has sponsored the development of accessibility training materials for public transit operators. FTA-funded Project Action is a national technical assistance program to promote cooperation between the disability community and the transportation industry. Project Action provides training, resources and technical assistance to thousands of disability organizations, consumers with disabilities, and transportation operators. It maintains a resource center with the most up-to-date information on transportation accessibility. Project Action may be contacted at: Project Action, 700 Thirteenth Street NW., Suite 200, Washington, DC 20590,
FTA will award grants based on:
1. The identified need for over-the-road bus accessibility for persons with disabilities in the areas served by the applicant;
2. The extent to which the applicant demonstrates innovative strategies and financial commitment to providing access to over-the-road buses to persons with disabilities;
3. The extent to which the over-the-road bus operator acquires equipment required by DOT's over-the-road bus accessibility rule prior to the required timeframe in the rule;
4. The extent to which financing the costs of complying with DOT's rule presents a financial hardship for the applicant; and
5. The impact of accessibility requirements on the continuation of over-the-road bus service, with particular consideration of the impact of the requirements on service to rural areas and for low-income individuals.
Applicants selected for funding must include documentation necessary to meet the requirements of FTA's Nonurbanized Area Formula program (Section 5311 under Title 49, United States Code). Technical assistance regarding these requirements is available from each FTA regional office. The regional offices will contact those applicants selected for funding regarding procedures for making the required certifications and assurances to FTA before grants are made.
Those applicants selected for funding will be required to comply with all of the Federal requirements applicable to the OTRB Accessibility Program, provided in the comprehensive compilation below. Federal requirements apply to the incremental cost of adding wheelchair accessibility features to new vehicles or when retrofitting existing vehicles, not to the entire vehicle. All applicants are advised to read the entire list of requirements to be confident of their responsibilities and commitments for compliance.
The authority for these requirements are provided by the Transportation Equity Act for the 21st Century, Pub. L. 105-178, June 9, 1998, as amended by the TEA-21 Restoration Act 105-206, 112 Stat. 685, July 22, 1998, 49 U.S.C. chapter 53, Title 23, United States Code, DOT and FTA regulations at 49 CFR, and FTA Circulars.
In the OTRB Accessibility program, FTA's Buy America regulations, 49 CFR Part 661, apply to the incremental capital cost of making vehicles accessible. Those regulations do not apply to associated labor costs. The following discussion relates to the contract between the grantee and the prime contractor.
The “General Requirements” found at 49 CFR 661.5 apply to that portion of the accessibility system being funded. That section requires that all of the manufacturing processes for the product take place in the United States and that all components of the product be made in the United States. A component is considered domestic if it is manufactured in the U.S.A., regardless of the origin of its subcomponents. The lift, the moveable seats, and the securement devices will all be considered components for purposes of this program; accordingly, as components, each must be manufactured in the United States. Should a recipient choose to request funding for only a specific component, such as the lift or the securement device, then the Buy America requirements would apply only to that item funded by FTA.
Three exceptions to the general requirements can be found at 49 CFR 661.7: first, a waiver may be requested when the application of the regulation is not in the public interest; second, a waiver may be requested if the materials and products being procured are not produced in the United States in sufficient and reasonably available quantities and of a satisfactory quality; and third, a price differential waiver may be requested where the results of competitive procurement show that there is a 25 percent price difference between the domestic and foreign products. FTA approval of a waiver must be received by the recipient of FTA funds prior to the execution of contract.
It should also be noted that FTA has issued a general public interest waiver for all purchases under the Federal “small purchase” threshold, which is currently $100,000. This waiver can be found in 49 CFR 661.7, Appendix A(e). In Section 3038(b) of TEA-21, Congress authorized FTA financing of the incremental capital costs of compliance with DOT's OTRB accessibility rule. Consistent with this provision, the small purchase waiver applies only to the incremental cost of the accessibility features FTA is funding. Where more than one bus is purchased, the grantee must consider the incremental cost increase for the entire procurement when determining if the small purchase waiver applies. For example, if $30,000 is the incremental cost for the accessibility features eligible under this program per bus (regardless of the Federal share contribution), then a procurement of three buses with a total such cost of $90,000, would qualify for the small purchase waiver. No special application to FTA would be required.
The grantee must obtain a certification from the bus manufacturer that all items included in the incremental cost for which the applicant is applying for funds meet Buy America requirements.
The Buy America regulations can be found at
Before FTA may award a grant for capital assistance, 49 U.S.C. 5333(b) requires that fair and equitable arrangements must be made to protect the interests of transit employees affected by FTA assistance. Those arrangements must be certified by the Secretary of Labor as meeting the requirements of the statute. When a labor organization represents a group of affected employees in the service area of an FTA project, the employee protective arrangement is usually the product of negotiations or discussions with the union. The grant applicant can facilitate Department of Labor (DOL) certification by identifying in the application any previously certified protective arrangements that have been applied to similar projects undertaken by the grant applicant, if any. Receiving funds under the OTRB Accessibility program, however, will not require the grantee's employees to be represented by organized labor. Nothing in the labor protection provisions in 49 U.S.C 5333(b) requires a motorcoach operator to become a union carrier or encourages union organizing in any manner. Upon receipt of a grant application requiring employee protective arrangements, FTA will transmit the application to DOL and request certification of the employee protective arrangements. In accordance with DOL guidelines, DOL notifies the relevant unions in the area of the project that a grant for assistance is pending and affords the grant applicant and union the opportunity to agree to an arrangement establishing the terms and conditions of the employee protections. If necessary, DOL furnishes technical and mediation assistance to the parties during their negotiations. The Secretary of Labor may determine the protections to be certified if the parties do not reach an agreement after good faith bargaining and mediation efforts have been exhausted. DOL will also set the protective conditions when affected employees in the service area are not represented by a union. When DOL determines that employee protective arrangements comply with labor protection requirements, DOL will provide a certification to FTA. The grant agreement between FTA and the grant applicant incorporates by reference the employee protective arrangements certified by DOL.
Applicants must identify any labor organizations that may represent their
For each local of a nationally affiliated union, the applicant must provide the name of the national organization and the number or other designation of the local union. (For example, Amalgamated Transit Union local 1258) Since DOL makes its referral to the national union's headquarters, there is no need to provide a means of contacting the local organization.
However, for each independent labor organization (
Where a labor organization represents transit employees in the service area of the project, DOL must refer the proposed protective arrangements to each union and to each recipient. For this reason, please provide DOL with a contact person, address, telephone number and fax number for your company, and associated union information.
DOL issued a
Applicants are encouraged to notify the appropriate state departments of transportation and metropolitan planning organizations (MPO) in areas likely to be served by equipment made accessible through funds made available in this program. Those organizations, in turn, should take appropriate steps to inform the public, and individuals requiring fully accessible services in particular, of operators' intentions to expand the accessibility of their services. Incorporation of funded projects in the plans and transportation improvement programs of states and metropolitan areas by states and MPOs also is encouraged, but is not required.
The Applicant assures that it will comply with all applicable Federal statutes, regulations, executive orders, FTA circulars, and other Federal administrative requirements in carrying out any project supported by the FTA grant. The Applicant acknowledges that it is under a continuing obligation to comply with the terms and conditions of the grant agreement issued for its project with FTA. The Applicant understands that Federal laws, regulations, policies, and administrative practices might be modified from time to time and affect the implementation of the project. The Applicant agrees that the most recent Federal requirements will apply to the project, unless FTA issues a written determination otherwise.
A.
(1) The Applicant (Primary Participant) certifies, to the best of its knowledge and belief, that it and its principals:
(a) Are not presently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded from covered transactions by any Federal department or agency;
(b) Have not, within a three (3) year period preceding this certification, been convicted of or had a civil judgment rendered against them for commission of fraud or a criminal offense in connection with obtaining, attempting to obtain, or performing a public (Federal, state, or local) transaction or contract under a public transaction, violation of Federal or state antitrust statutes, or commission of embezzlement, theft, forgery, bribery, falsification or destruction of records, making false statements, or receiving stolen property;
(c) Are not presently indicted for or otherwise criminally or civilly charged by a governmental entity (Federal, state, or local) with commission of any of the offenses listed in subparagraph (1)(b) of this certification; and
(d) Have not within a three-year period preceding this certification had one or more public transactions (Federal, state, or local) terminated for cause or default.
(2) The Applicant also certifies that, if it later becomes aware of any information contradicting the statements of paragraph (1) above, it will promptly provide that information to FTA.
(3) If the Applicant (Primary Participant) is unable to certify to all statements in paragraphs (1) and (2) above, it shall indicate so in its signature page and provide a written explanation to FTA.
B.
(1) Publishing a statement notifying its employees that the unlawful manufacture, distribution, dispensing, possession, or use of a controlled substance is prohibited in its workplace and specifying the actions that will be taken against its employees for violation of that prohibition;
(2) Establishing an ongoing drug-free awareness program to inform its employees about:
(a) The dangers of drug abuse in the workplace,
(b) Its policy of maintaining a drug-free workplace,
(c) Any available drug counseling, rehabilitation, and employee assistance programs, and
(d) The penalties that may be imposed upon its employees for drug abuse violations occurring in the workplace;
(3) Making it a requirement that each of its employees be engaged in the performance of the grant be given a copy of the statement required by paragraph (1) above;
(4) Notifying each of its employees in the statement required by paragraph (1) that, as a condition of employment financed with Federal assistance provided by the grant, the employee will be required to:
(a) Abide by the terms of the statement, and
(b) Notify the employer (Applicant) in writing of any conviction for a violation of a criminal drug statute occurring in the workplace no later than five (5) calendar days after that conviction;
(5) Notifying FTA in writing, within ten (10) calendar days after receiving notice required by paragraph (4)(b) above from an employee or otherwise receiving actual notice of that conviction. The Applicant, as employer of any convicted employee, must provide notice, including position title,
(6) Taking one of the following actions within thirty (30) calendar days of receiving notice under paragraph (4)(b) of this agreement with respect to any employee who is so convicted:
(a) Taking appropriate personnel action against that employee, up to and including termination, consistent with the requirements of the Rehabilitation Act of 1973, as amended, or
(b) Requiring that employee to participate satisfactorily in a drug abuse assistance or rehabilitation program approved for such purposes by a Federal, state, or local health, law enforcement, or other appropriate agency; and
(7) Making a good faith effort to continue to maintain a drug-free workplace through implementation of paragraphs (1), (2), (3), (4), (5), and (6) of this agreement. The Applicant agrees to maintain a list identifying its headquarters location and each workplace it maintains in which project activities supported by FTA are conducted, and make that list readily accessible to FTA.
C.
D.
(1) The Applicant assures that each project will be conducted, property acquisitions will be undertaken, and project facilities will be operated in accordance with all applicable requirements of 49 U.S.C. 5332 and 49 CFR part 21, and understands that this assurance extends to its entire facility and to facilities operated in connection with the project.
(2) The Applicant assures that it will take appropriate action to ensure that any transferee receiving property financed with Federal assistance derived from FTA will comply with the applicable requirements of 49 U.S.C. 5332 and 49 CFR part 21.
(3) The Applicant assures that it will promptly take the necessary actions to effectuate this assurance, including notifying the public that complaints of discrimination in the provision of transportation-related services or benefits may be filed with U.S. DOT or FTA. Upon request by U.S. DOT or FTA, the Applicant assures that it will submit the required information pertaining to its compliance with these requirements.
As required by 49 U.S.C. 5332 (which prohibits discrimination on the basis of race, color, creed, national origin, sex, or age, and prohibits discrimination in employment or business opportunity), Title VI of the Civil Rights Act of 1964, as amended, 42 U.S.C. 2000d, and U.S. DOT regulations, “Nondiscrimination in Federally-Assisted Programs of the Department of Transportation—Effectuation of Title VI of the Civil Rights Act,” 49 CFR part 21 at 21.7, the Applicant assures that it will comply with all requirements of 49 CFR part 21; FTA Circular 4702.1, “Title VI Program Guidelines for Federal Transit Administration Recipients”, and other applicable directives, so that no person in the United States, on the basis of race, color, national origin, creed, sex, or age will be excluded from participation in, be denied the benefits of, or otherwise be subjected to discrimination in any program or activity (particularly in the level and quality of transportation services and transportation-related benefits) for which the Applicant receives Federal assistance awarded by the U.S. DOT or FTA as follows:
(1) The Applicant assures that each project will be conducted, property acquisitions will be undertaken, and project facilities will be operated in accordance with all applicable requirements of 49 U.S.C. 5332 and 49 CFR part 21, and understands that this assurance extends to its entire facility and to facilities operated in connection with the project.
(2) The Applicant assures that it will take appropriate action to ensure that any transferee receiving property financed with Federal assistance derived from FTA will comply with the applicable requirements of 49 U.S.C. 5332 and 49 CFR part 21.
(3) The Applicant assures that it will promptly take the necessary actions to effectuate this assurance, including notifying the public that complaints of discrimination in the provision of transportation-related services or benefits may be filed with U.S. DOT or FTA. Upon request by U.S. DOT or FTA, the Applicant assures that it will submit the required information pertaining to its compliance with these requirements.
(4) The Applicant assures that it will make any changes in its 49 U.S.C. 5332 and Title VI implementing procedures as U.S. DOT or FTA may request.
(5) As required by 49 CFR 21.7(a)(2), the Applicant will include in each third party contract or subagreement provisions to invoke the requirements of 49 U.S.C. 5332 and 49 CFR part 21, and include provisions to invoke those requirements in deeds and instruments recording the transfer of real property, structures, improvements.
E.
(a) Has the legal authority to apply for Federal assistance and the institutional, managerial, and financial capability (including funds sufficient to pay the non-Federal share of project cost) to ensure proper planning, management, and completion of the project described in its application.
(b) Will give FTA, the Comptroller General of the United States and, if appropriate, the state, through any authorized representative, access to and the right to examine all records, books, papers, or documents related to the award; and will establish a proper accounting system in accordance with generally accepted accounting standards or agency directives.
(c) Will establish safeguard to prohibit employees from using their positions for a purpose that constitutes or presents the appearance of personal or organizational conflict of interest or personal gain.
(d) Will initiate and complete the work within the applicable project time periods following receipt of FTA approval.
(e) Will comply with all statutes relating to nondiscrimination including, but not limited to:
(1) Title VI of the Civil Rights Act, 42 U.S.C. 2000d, which prohibits discrimination on the basis of race, color, or national origin;
(2) Title IX of the Education Amendments of 1972, as amended, 20 U.S.C. 1681, 1683, and 1685 through 1687, which prohibits discrimination on the basis of sex;
(3) Section 504 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. 794, which prohibits discrimination on the basis of handicaps;
(4) The Age Discrimination Act of 1975, as amended, 42 U.S.C. 6101 through 6107, which prohibit discrimination on the basis of age;
(5) The Drug Abuse Office and Treatment Act of 1972, Pub. L. 92-255, March 21, 1972, and amendments thereto, relating to nondiscrimination on the basis of drug abuse;
(6) The Comprehensive Alcohol Abuse and Alcoholism Prevention Act of 1970, Pub. L. 91-616, Dec. 31, 1970, and amendments thereto, relating to nondiscrimination on the basis of alcohol abuse or alcoholism;
(7) The Public Health Service Act of 1912, as amended, 42 U.S.C. 290dd-3 and 290ee-3, related to confidentiality of alcohol and drug abuse patient records;
(8) Title VIII of the Civil Rights Act, 42 U.S.C. 3601
(9) Any other nondiscrimination provisions in the specific statutes under which Federal assistance for the project may be provided including, but not limited to section 1101(b) of the Transportation Equity Act for the 21st Century, 23 U.S.C. 101 note, which provides for participation of disadvantaged business enterprises in FTA programs; and
(10) The requirements of any other nondiscrimination statute(s) that may apply to the project.
(f) Will comply, or has complied, with the requirements of Titles II and III of the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, as amended, (Uniform Relocation Act) 42 U.S.C. 4601
(1) The Applicant will adequately inform each affected person of the benefits, policies, and procedures provided for in 49 CFR part 24;
(2) The Applicant will provide fair and reasonable relocation payments and assistance required by 42 U.S.C. 4622, 4623, and 4624; 49 CFR part 24; and any applicable FTA procedures, to or for families, individuals, partnerships, corporations or associations displaced as a result of any project financed with FTA assistance;
(3) The Applicant will provide relocation assistance programs offering the services described in 42 U.S.C. 4625 to such displaced families, individuals, partnerships, corporations, or associations in the manner provided in 49 CFR part 24 and FTA procedures;
(4) Within a reasonable time before displacement, the Applicant will make available comparable replacement dwellings to displaced families and individuals as required by 42 U.S.C. 4625(c)(3);
(5) The Applicant will carry out the relocation process in such a manner as to provide displaced persons with uniform and consistent services, and will make available replacement housing in the same range of choices with respect to such housing to all displaced persons regardless of race, color, religion, or national origin; and
(6) In acquiring real property, the Applicant will be guided to the greatest extent practicable under state law, by the real property acquisition policies of 42 U.S.C. 4651 and 4652;
(7) The Applicant will pay or reimburse property owners for necessary expenses as specified in 42 U.S.C. 4653 and 4654, with the understanding that FTA will participate in the Applicant's eligible costs of providing payments for those expenses as required by 42 U.S.C. 4631;
(8) The Applicant will execute such amendments to third party contracts and subagreements financed with FTA assistance and execute, furnish, and be bound by such additional documents as FTA may determine necessary to effectuate or implement the assurances provided herein; and
(9) The Applicant agrees to make these assurances part of or incorporate them by reference into any third party contract or subagreement, or any amendments thereto, relating to any project financed by FTA involving relocation or land acquisition and provide in any affected document that these relocation and land acquisition provisions shall supersede any conflicting provisions.
(g) To the extent applicable, will comply with provisions of the Hatch Act, 5 U.S.C. 1501 through 1508, and 7324 through 7326, which limit the political activities of state and local agencies and their officers and employees whose principal employment activities are financed in whole or part with Federal funds including a Federal loan, grant, or cooperative agreement, but pursuant to 23 U.S.C. 142(g), does
(h) To the extent applicable, will comply with the Davis-Bacon Act, as amended, 40 U.S.C. 276a through 276a(7), the Copeland Act, as amended, 18 U.S.C. 874 and 40 U.S.C. 276c, and the Contract Work Hours and Safety Standards Act, as amended, 40 U.S.C. 327 through 333, regarding labor standards for federally-assisted subagreements.
(i) To the extent applicable, will comply with flood insurance purchase requirements of section 102(a) of the Flood Disaster Protection Act of 1973, as amended, 42 U.S.C. 4012a(a), requiring recipients in a special flood hazard area to participate in the program and purchase flood insurance if the total cost of insurable construction and acquisition is $10,000 or more.
(j) Will comply with environmental standards that may be prescribed to implement the following Federal laws and executive orders:
(1) Institution of environmental quality control measures under the National Environmental Policy Act of 1969, as amended, 42 U.S.C. 4321
(2) Notification of violating facilities pursuant to Executive Order No. 11738, 42 U.S.C. 7606
(3) Protection of wetlands pursuant to Executive Order No. 11990, 42 U.S.C. 4321
(4) Evaluation of flood hazards in floodplains in accordance with Executive Order 11988, 42 U.S.C. 4321
(5) Assurance of project consistency with the approved State management program developed pursuant to the requirements of the Coastal Zone Management Act of 1972, as amended, 16 U.S.C. 1451
(6) Conformity of Federal actions to State (Clean Air) Implementation Plans under section 176(c) of the Clean Air Act of 1955, as amended, 42 U.S.C. 7401
(7) Protection of underground sources of drinking water under the Safe Drinking Water Act of 1974, as amended, 42 U.S.C. 300h
(8) Protection of endangered species under the Endangered Species Act of 1973, as amended, Endangered Species Act of 1973, as amended, 16 U.S.C. 1531
(9) Environmental protections for Federal transit programs, including, but not limited to protections for a park, recreation area, or wildlife or waterfowl refuge of national, state, or local significance or any land from a historic site of national, state, or local significance used in a transit project as required by 49 U.S.C. 303.
(k) Will comply with the Wild and Scenic Rivers Act of 1968, as amended, 16 U.S.C. 1271
(l) Will assist FTA in assuring compliance with section 106 of the National Historic Preservation Act of 1966, as amended, 16 U.S.C. 470f, Executive Order No. 11593 (identification and protection of historic properties), 16 U.S.C. 470 note, and the Archaeological and Historic Preservation Act of 1974, as amended, 16 U.S.C. 469a-1
(m) Will comply with the Lead-Based Paint Poisoning Prevention Act, 42 U.S.C. 4801, which prohibits the use of lead-based paint in construction or rehabilitation of residence structures.
(n) Will not dispose of, modify the use of, or change the terms of the real property title, or other interest in the site and facilities on which a construction project supported with FTA assistance takes place without permission and instructions from the awarding agency.
(o) Will record the Federal interest in the title of real property in accordance with FTA directives and will include a covenant in the title of real property acquired in whole or in part with Federal assistance funds to assure nondiscrimination during the useful life of the project.
(p) Will comply with FTA requirements concerning the drafting, review, and approval of construction plans and specifications of any construction project supported with FTA assistance. As required by U.S. DOT regulations, “Seismic Safety,” 49 CFR 41.117(d), before accepting delivery of any building financed with FTA assistance, it will obtain a certificate of compliance with the seismic design and construction requirements of 49 CFR part 41.
(q) Will provide and maintain competent and adequate engineering supervision at the construction site of any project supported with FTA assistance to ensure that the complete work conforms with the approved plans and specifications and will furnish progress reports and such other information as may be required by FTA or the State.
(r) Will comply with the National Research Act, Pub. L. 93-348, July 12, 1974, as amended, regarding the protection of human subjects involved in research, development, and related activities supported by Federal assistance and DOT regulation, “Protection of Human Subjects,” 49 CFR part 11.
(s) Will comply with the Laboratory Animal Welfare Act of 1966, as amended, 7 U.S.C. 2131
(t) Will have performed the financial and compliance audits required by the Single Audit Act Amendments of 1996, 31 U.S.C. 7501
(u) Will comply with all applicable requirements of all other Federal laws, executive orders, regulations, and policies governing the project.
An Applicant that submits, or intends to submit this fiscal year, an application for Federal assistance exceeding $100,000 must provide the following certification. Consequently, FTA may not provide Federal assistance for an application exceeding $100,000 until the Applicant provides this certification by selecting category “II” on the Signature Page at the end of this document.
(a) As required by U.S. DOT regulations, “New Restrictions on Lobbying,” at 49 CFR 20.110, the Applicant's authorized representative certifies to the best of his or her knowledge and belief that for each application for a Federal assistance exceeding $100,000:
(1) No Federal appropriated funds have been or will be paid, by or on behalf of the Applicant, to any person for influencing or attempting to influence an officer or employee of any agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress pertaining to the award of any Federal assistance, or the extension, continuation, renewal, amendment, or modification of any Federal assistance agreement; and
(2) If any funds other than Federal appropriated funds have been or will be paid to any person for influencing or attempting to influence an officer or employee of any agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member
(b) The Applicant understands that this certification is a material representation of fact upon which reliance is placed and that submission of this certification is a prerequisite for providing Federal assistance for a transaction covered by 31 U.S.C. 1352. The Applicant also understands that any person who fails to file a required certification shall be subject to a civil penalty of not less than $10,000 and not more than $100,000 for each such failure.
FTA is conducting a national solicitation for applications under the OTRB Accessibility program. Grant awards will be made on a competitive basis. Applicants should submit 3 copies of their project proposal application, consistent with the application format provided at Appendix A, to the appropriate regional office. Project proposal applications must be received by FTA no later than February 2, 2004. The OTRB operators should submit the application to the office in the region in which its headquarters office is located (see Appendix B). The application should provide information on all items for which you are requesting funding in FY 2004. The application must include the following elements:
This addresses basic identifying information, including:
a. Company name and Dun and Bradstreet (D&B) Data Universal Numbering System (DUNS) number.
b. Contact information for notification of project selection: Contact name, address, fax and phone number.
c. Description of services provided by company.
d. For fixed-route carriers, whether you are a large (Class I, with gross annual operating revenues of $5.3 million or more) or small (gross operating revenues of less than $5.3 million annually) carrier.
e. Existing fleet and employee information, including number of over-the-road buses used for intercity fixed-route service and other service and number of employees.
f. Estimate of the proportion of service, if any, that is intercity fixed-route.
g. Description of your technical, legal, and financial capacity to implement the proposed project.
Every application must:
a. Provide the Federal amount requested for each purpose for which funds are sought.
b. How intercity fixed-route service meets the definition of intercity fixed-route service, including how service makes meaningful connections with scheduled intercity bus service to more distant points.
c. Document matching funds, including amount and source.
d. Describe project, including components to be funded,
e. Provide project time-line, including significant milestones such as date or contract for purchase of vehicle(s), and actual or expected delivery date of vehicles.
f. Address each of the five statutory evaluation criteria.
g. Complete Standard Form 424, “Application For Federal Assistance''.
3. Labor Information
a. Identify any labor organizations that may represent your employees and all labor organizations that represent the employees of any transit providers in the service area of the project. For each local of a nationally affiliated union, the applicant must provide the name of the national organization and the number or other designation of the local union. (For example, Amalgamated Transit Union local 1258.) Since DOL makes its referral to the national union's headquarters, there is no need to provide a means of contacting the local organization.
b. For each independent labor organization (
c. Where a labor organization represents transit employees in the service area of the project, DOL must refer the proposed protective arrangements to each union and to each recipient. For this reason, please provide DOL with a contact person, address, telephone number and fax number for your company and associated union information.
Applications are to be submitted to the appropriate FTA Regional Office by the close of business on February 2, 2004. FTA will screen all applications to determine whether all required eligibility elements, as described in Section 2 of the application, are present. An FTA evaluation team will evaluate each application according to the criteria described in this announcement.
FTA expects to notify all applicants, both those selected for funding and those not selected, in summer 2004. Projects selected for funding will be published in a
F.
G.
H.
A.
If funds are being requested for intercity fixed-route services, please describe how the service meets the definition of intercity fixed-route service, including how the service makes meaningful connections with scheduled intercity bus service to more distant points.
B.
C.
D.
E.
The identified need for over-the-road bus accessibility for persons with disabilities in the areas served by the applicant. (20 points)
The extent to which the applicant demonstrated innovative strategies and financial commitment to providing access to over-the-road buses to persons with disabilities. (20 points)
The extent to which the over-the-road bus operator acquired equipment required by DOT's over-the-road bus accessibility rule prior to the required time-frame in the rule. (20 points)
The extent to which financing the costs of complying with DOT's rule presents a financial hardship for the applicant. (20 points)
The impact of accessibility requirements on the continuation of over-the-road bus service with particular consideration of the impact of the requirements on service to rural areas and for low-income individuals. (20 points)
This notice grants the application by Freightliner LLC (Freightliner) on behalf of Thomas Built Buses, Inc. (Thomas) of High Point, North Carolina, to be exempted from the notification and remedy requirements of 49 U.S.C. 30118 and 30120 for a noncompliance with 49 CFR 571.205, Federal Motor Vehicle Safety Standard (FMVSS) No. 205, “Glazing Materials.” Freightliner has filed an appropriate report pursuant to 49 CFR Part 573, “Defect and Noncompliance Responsibility and Reports.” Pursuant to 49 CFR Part 556, “Exemption for Inconsequential Defect or Noncompliance,” Freightliner has also applied to be exempted from the notification and remedy requirements of 49 U.S.C. Chapter 301, “Motor Vehicle Safety.” The basis of the grant is that the noncompliance is inconsequential to motor vehicle safety.
Notice of receipt of the application was published August 19, 2003, (68 FR 49841) affording an opportunity for comment. The comment closing date was September 18, 2003. No comments were received.
From September 22, 2002 to February 24, 2003, Freightliner manufactured 700 Thomas Built Conventional, MPV-EF and HDX buses with driver side windows that do not meet the labeling requirements of paragraph S6 of FMVSS No. 205. The driver side windows were not marked with the “DOT” symbol, manufacturer's number and the AS 2 code mark.
FMVSS No. 205, paragraph S6, “Certification and marking,” requires that each piece of glazing material shall be marked in accordance with Section 6 of the American National Standard “Safety Code for Safety Glazing Materials for Glazing Materials for Glazing in Motor Vehicles Operating on Land Highways' Z-26.1-1977, January 26, 1977, as supplemented by Z26.1a, July 3, 1980 (ANS Z26). This specifies all safety glazing materials for use in accordance with this code shall be legibly and permanently marked in letters and numerals at least 0.070 inch (1.78 mm) in height, with the words “American National Standard” or the characters “AS” and, in addition, with a model number that will identify the type of construction of the glazing material. The glazing materials shall also be marked with the manufacturer's distinctive designation or trademark. In addition, FMVSS No. 205, paragraph S6.2 requires that each piece of glazing material be marked with the symbol “DOT.” Freightliner stated that the noncompliance consists of the driver side windows not being marked with the “DOT” symbol, manufacturer's number and the AS 2 code mark.
According to Freightliner, the manufacturer of the window, Double Eagle Window MFG, LLC, notified Freightliner on April 15, 2003 of the labeling noncompliance. Freightliner submitted a compliance test report indicating that the tempered glass parts in question were in full compliance with 49 CFR 571.205 except for labeling.
NHTSA has reviewed Freightliner's application and, for the reasons discussed in this paragraph, concludes that the noncompliance of the Freightliner driver side windows is inconsequential to motor vehicle safety. Freightliner has provided documentation indicating that the driver side windows do comply with all other safety performance requirements of the standard except labeling requirements. Consequently, the noncompliance would not affect the purposes of FMVSS No. 205, which include reducing injuries from impacts to glazing surfaces, ensuring driver
In consideration of the foregoing, NHTSA has decided that the applicant has met its burden of persuasion that the noncompliance it describes is inconsequential to motor vehicle safety.
Accordingly, the application is granted, and the applicant is exempted from providing the notification of the noncompliance that is required by 49 U.S.C. 30118, and from remedying the noncompliance, as required by 49 U.S.C. 30120.
The applicant is hereby informed that all products manufactured on and after the date it determined the existence of this noncompliance must fully comply with the requirements of FMVSS No. 205.
49 U.S.C. 30118(b), 30120(h), delegations of authority at 49 CFR 1.50 and 501.8.
General Motors North America (GM), has determined that approximately 251,000 model year 2003 Silverado/Sierra pickup trucks, Tahoe/Suburban/Escalade sport utility vehicles, and Savanna/Express vans do not comply with either paragraph S5.3.3(a) of Federal Motor Vehicle Safety Standard (FMVSS) No. 105, or paragraph S5.5.3 of FMVSS No. 135. The Silverado/Sierra pickup trucks and the Savanna/ Express vans are required to comply with FMVSS No. 105, while the Tahoe/Escalade/Suburban sport utility vehicles are required to comply with FMVSS No. 135, based on gross vehicle weight ratings (GVWR).
Pursuant to 49 U.S.C. 30118(d) and 30120(h), GM has applied for a determination that the noncompliance is inconsequential to motor vehicle safety and has filed an appropriate report pursuant to 49 CFR Part 573, “Defect and Noncompliance Reports.” Notice of receipt of GM's application was published in the
Specifically, the red “Brake” telltale, if illuminated, will be extinguished for the duration of an Antilock Brake System (ABS) activation event that involves the front wheels. Stated briefly, the “Brake” telltale will not be illuminated while ABS is modulating the front brakes. Both FMVSS Nos. 105 and 135 require that the “Brake” telltale, once activated, remain illuminated until the problem that activated the telltale is resolved.
The brake system malfunctions that can cause illumination of “Brake” telltale can result in brake system failure, therefore, it is important that the “Brake” telltale be visible to the driver whenever it is activated. A potential danger of this noncompliance is that the “Brake” telltale may be activated while the ABS is modulating the front brakes, which would momentarily prevent the illumination of the telltale. Also, if the telltale is extinguished for any length of time, the driver may believe the brake system problem has been corrected.
GM considers the momentary extinguishing of the “BRAKE” telltale while ABS is cycling to be inconsequential to motor vehicle safety. According to GM, malfunctions of the foundation brake system that results in “Brake” telltale illumination are rare events and the combination of “Brake” telltale illumination with a simultaneous ABS activation is extremely unlikely.
The owner's manual of the noncompliant vehicles includes the following text regarding the “BRAKE” telltale:
“If the light comes on while you are driving, pull off the road and stop carefully. You may notice that the pedal is harder to push. Or, the pedal may go closer to the floor. It may take longer to stop. If the light is still on, have the vehicle towed for service. CAUTION: Your brake system may not be working properly if the brake system warning light is on. Driving with the brake system warning light on can lead to an accident. If the light is still on after you've pulled off the road and stopped carefully, have the vehicle towed for service.”
According to GM, the instructions and caution are intended to prompt drivers to take immediate corrective action when the “BRAKE” telltale is illuminated, which would minimize the likelihood that the vehicle would experience ABS cycling subsequent to initial illumination of the telltale.
GM further supported the position that the noncompliance is inconsequential to motor vehicle safety by pointing out that S5.3.4 of FMVSS 105 allows the subject “BRAKE” telltale to be “steady burning or flashing.” The corresponding language in S5.5.4 of FMVSS 135 is “continuous or flashing”. This explicit regulatory allowance for flashing demonstrates that momentary absence of telltale illumination is not per se a safety issue.
According to GM, the “Brake” and “ABS” telltales on the subject vehicles otherwise comply with all applicable provisions of paragraph S5.3 of FMVSS 105 and paragraph S5.5 of FMVSS 135 and GM is not aware of any crashes, injuries, owner complaints or field reports related to this condition.
The agency has reviewed paragraph S5.3 of FMVSS No. 105 and paragraph S5.5 of FMVSS No. 135, and concurs with the GM's decision that the extinguishment of the “Brake” telltale during an activation of the ABS would constitute a noncompliance with both standards. We do not have data to define the frequency of brake system malfunctions that activate the “Brake” telltale. Nevertheless, we believe that except in rare instances where fluid lost during a brake application would cause the “Brake” telltale to illuminate, the telltale would already be illuminated prior to the driver making a stop that engaged the ABS. The color red of the “Brake” telltale is one that requires immediate attention and is consistent with the red lamp in a traffic signal that directs the driver to stop.
In consideration of the foregoing, NHTSA has decided that the petitioner has met its burden of persuasion that the noncompliance is inconsequential to motor vehicle safety.
Accordingly, the application is granted and the applicant is exempted from providing the notification and remedy requirements of 49 U.S.C. 30118 and 49 U.S.C. 30120, respectively. (49 U.S.C. 301118, 301120; delegations of authority at 49 CFR 1.50 and 501.8)
Consistent with the Surface Transportation Board's decision in
In
Also, consistent with the requirements of 49 CFR part 1152, subpart F, SANBAG has certified that: (1) No local traffic has moved over the line for at least 2 years; (2) any overhead traffic on the line can be rerouted over other lines; (3) no formal complaint filed by a user of rail service on the line (or by a state or local government entity acting on behalf of such user) regarding cessation of service over the line either is pending with the Board or with any U.S. District Court or has been decided in favor of complainant within the 2-year period; and (4) the requirements at 49 CFR 1105.7 (environmental reports), 49 CFR 1105.8 (historic reports), 49 CFR 1105.11 (transmittal letter), 49 CFR 1105.12 (newspaper publication), and 49 CFR 1152.50(d)(1) (notice to governmental agencies) have been met.
As a condition to this exemption, any employee adversely affected by the abandonment shall be protected under
A copy of any petition filed with the Board should be sent to applicant's representative: Charles A. Spitulnik, McLeod, Watkinson & Miller, One Massachusetts Avenue, NW., Suite 800, Washington, DC 20001.
If the verified notice contains false or misleading information, the exemption is void
SANBAG has filed an environmental report which addresses the abandonment's effects, if any, on the environment and historic resources. SEA will issue an environmental assessment (EA) by November 28, 2003. Interested persons may obtain a copy of the EA by writing to SEA (Room 500, Surface Transportation Board, Washington, DC 20423-0001) or by calling SEA, at (202) 565-1539. [Assistance for the hearing impaired is available through the Federal Information Relay Service (FIRS) at 1-800-877-8339]. Comments on environmental and historic preservation matters must be filed within 15 days after the EA becomes available to the public.
Environmental, historic preservation, or trail use/rail banking conditions will be imposed, where appropriate, in a subsequent decision.
Pursuant to the provisions of 49 CFR 1152.29(e)(2), SANBAG shall file a notice of consummation with the Board to signify that it has exercised the authority granted and fully abandoned the line. If consummation has not been effected by SANBAG's filing of a notice of consummation by November 24, 2004, and there are no legal or regulatory barriers to consummation, the authority to abandon will automatically expire.
Board decisions and notices are available on our Web site at
By the Board, David M. Konschnik, Director, Office of Proceedings.
The Department of Treasury has submitted the following public information collection requirement(s) to OMB for review and clearance under the Paperwork Reduction Act of 1995, Pub. L. 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,
Written comments should be received on or before December 24, 2003 to be assured of consideration.
The Department of Treasury has submitted the following public information collection requirement(s) to OMB for review and clearance under the Paperwork Reduction Act of 1995, Pub. L. 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 24, 2003 to be assured of consideration.
Internal Revenue Service, Treasury.
Notice of proposed new privacy act system of records.
In accordance with the requirements of the Privacy Act of 1974, as amended, 5 U.S.C. 552a, the Department of the Treasury, Internal Revenue Service, gives notice of a proposed new system of records entitled “Treasury/IRS 00.008—Recorded Quality Review Records.”
Comments must be received no later than December 24, 2003. This new system of records will be effective January 5, 2004 unless the IRS receives comments that would result in a contrary determination.
Comments should be sent to the Office of Governmental Liaison and Disclosure, Internal Revenue Service, 1111 Constitution Avenue, NW., Washington, DC 20224. Comments will be made available for inspection and copying upon request in the Freedom of Information Reading Room (1621), at the above address.
Anita Loftin, Senior Policy Analyst, W:CAS 401 West Peachtree Street, NW., Atlanta, Georgia 30308, 404-338-8914 (not a toll-free number).
Our current quality monitoring process does not provide the same opportunity as the proposed system for all calls to be included in the sample selected for quality monitoring. A February 15, 2002 Treasury Inspector General for Tax Administration (TIGTA) review recommended that the IRS institute an automated call recording system that would provide a true random method of selecting calls from the entire population of taxpayer assistance calls. In a follow-up review dated January 16, 2003, TIGTA stated that the planned implementation of call recording will provide the IRS with an important opportunity for improving the effectiveness and efficiency of its quality assurance process and, in turn, would improve the quality of the customer's experience when calling the IRS for assistance. Taxpayers will be notified at the beginning of a call that their call may be monitored or recorded for quality improvement purposes.
The proposed automated call recording system will allow the IRS to improve quality of responses to taxpayers by providing an efficient and effective means of assessing employee performance. Managers may play the recording when discussing the evaluation of the call with the employee. Audio recordings and screen capture images will be kept long enough for the review and discussion process to take place, generally not more than 45 days.
By recording taxpayer calls and tracking employee actions, the IRS will be able to improve its service to the public by providing specific, tangible feedback to employees. The system will automatically keep track of evaluative data and will alert the manager to areas in which the employee needs improvement. As a result, targeted training will be provided to the employee either on-line or in one-on-one coaching sessions. The IRS is currently negotiating the proposed program with representatives of the National Treasury Employees Union.
The new system of records report, as required by 5 U.S.C. 552a(r) of the Privacy Act, has been submitted to the Committee on Government Reform and Oversight of the House of Representatives, the Committee on Governmental Affairs of the Senate and the Office of Management and Budget, pursuant to Appendix I to OMB Circular A-130, “Federal Agency Responsibilities for Maintaining Records About Individuals,” dated November 30, 2000.
The proposed new system of records entitled “Treasury/IRS 00.008—Recorded Quality Review Records” is published in its entirety below.
Recorded Quality Review Records—Treasury/IRS.
Andover Call Site—W&I, 310 Lowell Street, Andover, MA 01812.
Andover Remote Call Site, 900 Chelmford St., Tower III, Lowell, MA 01851.
Andover Methuen EITC, 96 Milk Street, Methuen, MA 01844.
Atlanta Call Site—W&I, 2385 Chamblee-Tucker Road, Chamblee, Georgia 30341.
Dunwoody AUR Call Site—W&I, 6655 Peachtree-Dunwoody Road, Dunwoody, Georgia 30328.
Austin Call Site—W&I, 1821 Director's Boulevard, Austin, TX 78744.
Baltimore Call Site—W&I, 100 S. Charles Street, Baltimore, MD 21201.
Boston Call Site, 25 New Sudbury Street, 10th Floor, JFK Federal Bldg., Boston, MA 02203.
Brookhaven Call Site—SB/SE, 1040 Waverly Avenue, Holtsville, NY 11742.
Buffalo Call Site—SB/SE, Union & Bennet Road, Cheektowaga, NY 14227.
Cincinnati Call Sitez—SB/SE, 333 Scott Street, Covington, KY 41019.
Cincinnati TE/GE Call Site, Peck Federal Bldg., 550 Main St., Room 2405, Cincinnati, OH 45201.
Cleveland Call Site—W&I, 1240 East 9th Street, Cleveland, OH 44109.
Dallas Call Site—W&I, 114 Commerce Street, Dallas, TX 75242.
Houston Call Site, 8701 South Gessner, Houston, TX 77074.
Denver Call Site—W&I, 600 17th Street, Denver, CO 80202.
Detroit Call Site, McNamara Federal Bldg., 477 Michigan Avenue, Detroit, MI 48226.
Fresno Call Site—W&I, 5045 E. Butler Avenue, Fresno, CA 93888.
Indianapolis Call Site—SB/SE 3849 Richardt Street, Indianapolis, IN 46226.
Jacksonville Call Site—W&I, 4057 Carmichael Drive, Jacksonville, FL 32207.
Jacksonville Call Site—W&I, One Independent Drive, 3rd Floor, Jacksonville, FL 32202.
Kansas City Call Site—W&I, 7720 W. 119th Street, Overland Park, KS 66213.
Memphis Call Site—SB/SE, 5333 Getwell Road, Memphis, TN 38118.
Memphis Call Site, 5410 S. Mendenhall, Ste. 10, Memphis, TN 38141.
Nashville Call Site—SB/SE, 5080 Nolensville Road, Nashville, TN 32701.
Oakland Call Site—SB/SE, 1301 Clay Street, Oakland, CA 94612.
Ogden Call Site—SB/SE, 2262 Wall Street, Ogden, UT 84401.
Ogden Compliance A Call Site, 1160 W. 1200 South St., Ogden, UT 84201.
Ogden Compliance E Call Site, 119 N. Jorgensen Ave., Ogden, UT 84404.
Philadelphia Call Site—SB/SE, 11601 Roosevelt Blvd., Philadelphia, PA 19154.
Philadelphia Compliance Call Site, 11601 Roosevelt Blvd., Philadelphia, PA 19154.
Pittsburgh Call Site—W&I, 100 Liberty Avenue, Pittsburgh, PA 15222.
Portland Call Site—W&I, 1220 SE. 3rd Avenue, Portland, OR 97204.
Richmond Call Site—W&I, 400 N. 8th Street, Richmond, VA 23240.
San Juan Call Site-W&I, 7 Tabonuco Street, San Juan, PR 00968.
Seattle Call Site-W&I, 915 2nd Avenue, Seattle, WA 98174.
St. Louis Call Site—W&I, 1222 Spruce Street, St. Louis, MO 63101.
Chicago Call Site, 230 S. Dearborn St., 22nd Fl., Chicago, IL 60604.
IRS employees who respond to taxpayer assistance calls.
Records required to administer IRS quality review and employee performance feedback programs.
26 U.S.C. 7801.
Records in this system are used to administer IRS quality review programs. Although information will include questions and other statements from taxpayers or their representatives on recordings, the primary focus of the system is to improve service and retrieve information by the employee and not create records focusing on the taxpayer.
Disclosure of returns and return information may be made only as provided by 26 U.S.C. 6103.
Records other than returns and return information may be used to:
(1) Disclose information in a proceeding before a court, adjudicative body, or other administrative body before which the agency is authorized to appear when (a) the agency, or (b) any employee of the agency in his or her official capacity, or (c) any employee of the agency in his or her individual capacity where the Department of Justice or the agency has agreed to represent the employee; or (d) the United States, when the agency determines that litigation is likely to affect the agency, is a party to litigation or has an interest in such litigation, and the use of such records by the agency is deemed to be relevant and necessary to the litigation or administrative proceeding and not otherwise privileged.
(2) Provide information to a congressional office in response to an inquiry made at the request of the employee to whom the record pertains.
(3) Disclose information to a contractor when necessary to perform a government contract.
Electronic media and paper.
Recorded contacts will be retrieved by unique identifier for the IRS employee handling the telephone call. Recorded calls or screens will not be retrieved by taxpayer name or taxpayer identifying number.
Safeguard access controls will not be less than those provided for by IRM 25.10.1, Information Technology Security Policy and Guidance, and IRM 1.16, Manager's Security Handbook.
Record retention will be established in accordance with the National Archives and Records Administration Regulations part 1228, subpart B-Scheduling Records. Audio recordings and screen capture images will be kept long enough for the review and discussion process to take place, generally not more than 45 days.
Official prescribing policies and practices: Commissioner, Wage and Investment. Official maintaining the system: Head of the call site maintaining the file. See “system location” above for a list of the call sites and addresses.
Individuals may inquire in accordance with instructions appearing at 31 CFR part 1, subpart C, Appendix B. Inquiries should be addressed to the systesm manager address listed above.
Individuals seeking access to any record contained in this system of records or seeking to contest its contents, may inquire in accordance with instructions appearing at 31 CFR part 1, subpart C, Appendix B. Inquiries should be addressed to the system manager address listed below.
26 U.S.C. 7852(e) prohibits Privacy Act amendment of tax records. See “Record Access Procedures” above for seeking amendment for records that are not tax records.
Records in this system are provided by IRS employees when they provide information by identifying themselves for the purpose of assisting a taxpayer.
None.
Notice is hereby given that on November 14, 2003, the Director, Supervision Policy, Office of Thrift Supervision (“OTS”), or her designee, pursuant to delegated authority, approved the application of Provident Bancorp, MHC and Provident Bank, both of Montebello, New York, to convert the stock form of organization. Copies of the application are available for inspection by appointment (phone number: 202-906-5922 or e-mail:
By the Office of Thrift Supervision.
Notice is hereby given that on November 12, 2003, the Director, Supervision Policy, Office of Thrift Supervision (“OTS”), or her designee, acting pursuant to delegated authority, approved the application of Synergy Bank, Cranford, New Jersey, to convert to the stock form of organization. Copies of the application are available for inspection by appointment (phone number: 202-906-5922 or e-mail:
By the Office of Thrift Supervision.
United States Institute of Peace.
Notice.
The Agency Announces its Upcoming Spring 2004 Solicited Grant Competition. The Solicited Grant competition is restricted to projects that fit specific themes and topics identified in advance by the Institute of Peace.
The themes and topics for the Spring 2004 Solicited competition are:
• Solicitation A: The Proliferation of Weapons of Mass Destruction
• Solicitation B: Bridging the Divides: Improving Relations With, and Within, the Muslim World
Deadline: March 1, 2004.
Application material Available on Request.
Notification Date: September 31, 2004.
For more information and an application package: United States Institute of Peace, Grant Program, Solicited Grants, 1200 17th Street, NW., Suite 200, Washington, DC 20036-3011, (202) 429-3842 (phone), (202) 833-1018 (fax), (202) 457-1719 (TTY), E-mail:
Application material available on-line:
The Grant Program, Phone (202) 429-3842, E-mail:
United States Institute of Peace.
Notice.
The Agency announces its Upcoming Unsolicited Grant Program, which offers support for research, education and training, and the dissemination of information on international peace and conflict resolution. The Unsolicited competition is open to any project that falls within the Institute's broad mandate of international conflict resolution.
Application Material Available on Request.
Receipt of Application: March 1, 2004.
Notification Date: September 31, 2003.
For Application Package: United States Institute of Peace, Grant Program, 1200 17th Street, NW., Suite 200, Washington, DC 20036-3011, (202) 429-3842 (phone), (202) 833-1018 (fax), (202) 457-1719 (TTY), E-mail:
Application material available on-line:
The Grant Program, Phone (202)-429-3842, E-mail:
In rule document 03-28416 beginning on page 64543 in the issue of Friday, November 14, 2003, make the following correction:
On page 64549, in §52.2270(c), in the table, under