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Agricultural Marketing Service, USDA.
Final rule.
This rule increases the assessment rate established for the Florida Tomato Committee (Committee) for the 2003-04 and subsequent fiscal periods from $.02 to $.025 per 25-pound container or equivalent of tomatoes handled. The Committee locally administers the marketing order which regulates the handling of tomatoes grown in Florida. Authorization to assess tomato handlers enables the Committee to incur expenses that are reasonable and necessary to administer the program. The fiscal period began August 1 and ends July 31. The assessment rate will remain in effect indefinitely unless modified, suspended, or terminated.
December 22, 2003.
Doris Jamieson, Southeast Marketing Field Office, Fruit and Vegetable Programs, AMS, USDA, 799 Overlook Drive, Suite A, Winter Haven, FL 33884-1671; telephone: (863) 324-3375, Fax: (863) 325-8793; or George Kelhart, Technical Advisor, Marketing Order Administration Branch, Fruit and Vegetable Programs, AMS, USDA, 1400 Independence Avenue SW., STOP 0237, Washington, DC 20250-0237; telephone: (202) 720-2491, Fax: (202) 720-8938.
Small businesses may request information on complying with this regulation by contacting Jay Guerber, Marketing Order Administration Branch, Fruit and Vegetable Programs, AMS, USDA, 1400 Independence Avenue SW., STOP 0237, Washington, DC 20250-0237; telephone: (202) 720-2491, Fax: (202) 720-8938, or E-mail:
This rule is issued under Marketing Agreement No. 125 and Order No. 966, both as amended (7 CFR part 966), regulating the handling of tomatoes grown in Florida, hereinafter referred to as the “order.” The order is effective under the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-674), hereinafter referred to as the “Act.”
The Department of Agriculture (USDA) is issuing this rule in conformance with Executive Order 12866.
This rule has been reviewed under Executive Order 12988, Civil Justice Reform. Under the marketing order now in effect, Florida tomato handlers are subject to assessments. Funds to administer the order are derived from such assessments. It is intended that the assessment rate as issued herein will be applicable to all assessable tomatoes beginning August 1, 2003, and continue until amended, suspended, or terminated. This rule will not preempt any State or local laws, regulations, or policies, unless they present an irreconcilable conflict with this rule.
The Act provides that administrative proceedings must be exhausted before parties may file suit in court. Under section 608c(15)(A) of the Act, any handler subject to an order may file with USDA a petition stating that the order, any provision of the order, or any obligation imposed in connection with the order is not in accordance with law and request a modification of the order or to be exempted therefrom. Such handler is afforded the opportunity for a hearing on the petition. After the hearing USDA would rule on the petition. The Act provides that the district court of the United States in any district in which the handler is an inhabitant, or has his or her principal place of business, has jurisdiction to review USDA's ruling on the petition, provided an action is filed not later than 20 days after the date of the entry of the ruling.
This rule increases the assessment rate established for the Committee for the 2003-04 and subsequent fiscal periods from $.02 to $.025 per 25-pound container or equivalent of tomatoes.
The Florida tomato marketing order provides authority for the Committee, with the approval of USDA, to formulate an annual budget of expenses and collect assessments from handlers to administer the program. The members of the Committee are producers of Florida tomatoes. They are familiar with the Committee's needs and with the costs for goods and services in their local area and are thus in a position to formulate an appropriate budget and assessment rate. The assessment rate is formulated and discussed in a public meeting. Thus, all directly affected persons have an opportunity to participate and provide input.
For the 2001-02 and subsequent fiscal periods, the Committee recommended, and USDA approved, an assessment rate that would continue in effect from fiscal period to fiscal period unless modified, suspended, or terminated by USDA upon recommendation and information submitted by the Committee or other information available to USDA (68 FR 15338, March 31, 2003; 66 FR 56599, November 9, 2001).
The Committee met on September 4, 2003, and unanimously recommended 2003-04 expenditures of $1,773,100 and an assessment rate of $0.025 per 25-pound container of tomatoes. In comparison, last year's budgeted expenditures were $1,910,840. The assessment rate of $0.025 is $.005 higher than the rate currently in effect. The number of assessable containers during 2003-04 is estimated to be 50 million and the recommended assessment rate would generate $1,250,000 in income. The Committee s financial reserve is now estimated to be $1,767,427 and is available to cover the deficit in assessment income. The increased assessment rate allows the Committee to maintain its financial reserve at a level it deems appropriate.
The major expenditures recommended by the Committee for the 2003-04 fiscal period include $700,000 for education and promotion, $405,000 for salaries, $320,000 for research, $49,000 for employee health insurance, and $61,000 for employee retirement. Budgeted expenses for these items in 2002-03 were $900,000 for education and promotion, $370,730 for salaries, $320,000 for research, $38,250 for employee health insurance, and $54,860 for employee retirement, respectively.
The assessment rate recommended by the Committee was derived by examining anticipated expenses and expected shipments of Florida tomatoes and considering available reserves. As mentioned earlier, tomato shipments for the year are estimated at 50 million 25-pound containers or equivalents which should provide $1,250,000 in assessment income. Income derived from handler assessments, along with interest income and funds from the Committee s authorized reserve, should be adequate to cover budgeted expenses. Funds in the reserve currently total $1,767,427 and are within the maximum permitted by the order of not to exceed one fiscal period s expenses as stated in § 966.44.
The assessment rate established in this rule will continue in effect indefinitely unless modified, suspended, or terminated by USDA upon recommendation and information submitted by the Committee or other available information.
Although this assessment rate will be in effect for an indefinite period, the Committee will continue to meet prior to or during each fiscal period to recommend a budget of expenses and consider recommendations for modification of the assessment rate. The dates and times of Committee meetings are available from the Committee or USDA. Committee meetings are open to the public and interested persons may express their views at these meetings. USDA will evaluate Committee recommendations and other available information to determine whether modification of the assessment rate is needed. Further rulemaking will be undertaken as necessary. The Committee's 2003-04 budget and those for subsequent fiscal periods would be reviewed and, as appropriate, approved by USDA.
Pursuant to requirements set forth in the Regulatory Flexibility Act (RFA), the Agricultural Marketing Service (AMS) has considered the economic impact of this rule on small entities. Accordingly, AMS has prepared this final regulatory flexibility analysis.
The purpose of the RFA is to fit regulatory actions to the scale of business subject to such actions in order that small businesses will not be unduly or disproportionately burdened. Marketing orders issued pursuant to the Act, and the rules issued thereunder, are unique in that they are brought about through group action of essentially small entities acting on their own behalf. Thus, both statutes have small entity orientation and compatibility.
There are approximately 100 producers of tomatoes in the production area and approximately 80 handlers subject to regulation under the marketing order. Small agricultural producers are defined by the Small Business Administration (13 CFR 121.201) as those having annual receipts less than $750,000, and small agricultural service firms are defined as those whose annual receipts are less than $5,000,000.
Based on industry and Committee data, the average annual price for fresh Florida tomatoes during the 2002-03 season was approximately $9.59 per 25-pound container or equivalent, and total fresh shipments for the 2002-03 season were 50,974,342 25-pound equivalent cartons of tomatoes. Committee data indicates that approximately 25 percent of the handlers handle 94 percent of the total volume shipped outside the regulated area. Based on the average annual price of $9.59 per 25-pound container, about 75 percent of handlers could be considered small businesses under SBA s definition. Therefore, the majority of handlers of Florida tomato handlers may be classified as small entities. It also is believed that the majority of Florida tomato producers may be classified as small entities.
This rule increases the assessment rate established for the Committee and collected from handlers for the 2003-04 and subsequent fiscal periods from $0.02 to $0.025 per 25-pound container of tomatoes. The Committee unanimously recommended 2003-04 expenditures of $1,773,100 and an assessment rate of $0.025 per 25-pound container or equivalent. The assessment rate of $0.025 is $0.005 higher than the 2002-03 rate. The quantity of assessable tomatoes for the 2003-04 season is estimated at 50 million 25-pound cartons or equivalents. Thus, the $0.025 rate should provide $1,250,000 in assessment income. Income derived from handler assessments, along with interest income and funds from the Committee s authorized reserve, should be adequate to cover budgeted expenses.
The major expenditures recommended by the Committee for the 2003-04 fiscal period include $700,000 for education and promotion, $405,000 for salaries, $320,000 for research, $49,000 for employee health insurance, and $61,000 for employee retirement. Budgeted expenses for these items in 2002-03 were $900,000 for education and promotion, $370,730 for salaries, $320,000 for research, $38,250 for employee health insurance, and $54,860 for employee retirement, respectively.
As previously mentioned, the number of assessable containers during 2003-04 is estimated to be 50 million and the recommended assessment rate would generate $1,250,000 in income. The Committee s financial reserve is now estimated to be $1,767,427 and is available to cover the deficit in assessment income. The increased assessment rate will allow the Committee to maintain its financial reserve at a level it deems appropriate.
The Committee reviewed and unanimously recommended 2003-04 expenditures of $1,773,100 which included increases in administrative and office salaries, research, and education and promotion programs. Prior to arriving at this budget, the Committee considered information from various sources, such as the Committee's Executive Subcommittee, Finance Subcommittee, Research Subcommittee, and Education and Promotion Subcommittee. Alternative expenditure levels were discussed by these groups, based upon the relative value of various research projects to the tomato industry. The assessment rate of $0.025 per 25-pound container or equivalent of tomatoes was then determined by examining the anticipated expenses and expected shipments and considering available reserves. The recommended assessment rate should generate $1,250,000 in income. This is approximately $523,100 below the anticipated expenses, which the Committee determined to be acceptable.
A review of historical information and preliminary information pertaining to the upcoming season indicates that the grower price for the 2003-04 season could range between $6.45 and $10.37 per 25-pound container of tomatoes. Therefore, the estimated assessment revenue for the 2003-04 season as a percentage of total grower revenue could range between .4 and .2 percent, respectively.
This action increases the assessment obligation imposed on handlers. While assessments impose some additional costs on handlers, the costs are minimal and uniform on all handlers. Some of the additional costs may be passed on to producers. However, these costs are offset by the benefits derived by the operation of the marketing order. In addition, the Committee's meeting was widely publicized throughout the Florida tomato industry and all interested persons were invited to attend the meeting and participate in Committee deliberations on all issues. Like all Committee meetings, the September 4, 2003, meeting was a public meeting and all entities, both large and small, were able to express views on this issue.
This rule imposes no additional reporting or recordkeeping requirements on either small or large Florida tomato handlers. As with all Federal marketing order programs, reports and forms are periodically reviewed to reduce information requirements and duplication by industry and public sector agencies.
USDA has not identified any relevant Federal rules that duplicate, overlap, or conflict with this rule.
A proposed rule concerning this action was published in the
A small business guide on complying with fruit, vegetable, and specialty crop marketing agreements and orders may be viewed at:
After consideration of all relevant material presented, including the information and recommendation submitted by the Committee and other available information, it is hereby found that this rule, as hereinafter set forth, will tend to effectuate the declared policy of the Act.
Pursuant to 5 U.S.C. 553, it also found and determined that good cause exists for not postponing the effective date of this rule until 30 days after publication in the
Marketing agreements, Reporting and recordkeeping requirements, Tomatoes.
7 U.S.C. 601-674.
On and after August 1, 2003, an assessment rate of $0.025 per 25-pound container or equivalent is established for Florida tomatoes.
Office of the Comptroller of the Currency, Treasury.
Final rule.
The Office of the Comptroller of the Currency (OCC) is finalizing the proposed rule published on April 23, 2003 amending our regulations pertaining to the foreign operations of national banks, and Federal branches and agencies of foreign banks operating in the United States. The final rule generally makes regulatory requirements more streamlined and risk-focused. It clarifies certain regulatory definitions and simplifies approval procedures for foreign banks seeking to establish Federal branches and agencies in the United States. These changes will further conform the treatment of Federal branches and agencies of foreign banks to that of their domestic national bank counterparts consistent with the national treatment principles of the International Banking Act of 1978.
This rule is effective on January 20, 2004.
Lee Walzer, Counsel, Legislative & Regulatory Activities Division, (202) 874-5090; Carlos Hernandez, Senior International Advisor, International Banking & Finance, (202) 874-4730; or Crystal Maddox, Senior Licensing Analyst, Licensing Policy & Systems, (202) 874-5060.
As part of our ongoing effort to streamline regulatory requirements to reduce unnecessary regulatory burdens, the OCC published a notice of proposed rulemaking (NPRM) to amend 12 CFR parts 5 and 28 in the
The OCC received eight comments on the NPRM. The commenters included several Members of Congress, Federal and state banking agencies, a bank trade association, and an association of state banking officials. Four of the commenters generally supported the OCC's efforts to streamline our regulatory processes and reduce regulatory burden, but offered suggestions to modify various portions of the proposal. Two commenters did not favor the proposal, asserting that the NPRM exceeds the OCC's statutory authority and is inconsistent with congressional intent. These commenters requested that the OCC withdraw the proposal until Congress provides the necessary authority. One of the commenters focused exclusively on a narrow legal question involving interstate branching. Another commenter focused only on the impact on pending legislation if the OCC were to apply certain definitions used in the NPRM to define those same terms in pending legislation if it were to be enacted by the U.S. Congress.
As we explain in the discussion that follows, the OCC has concluded that there is ample authority supporting the revisions to our regulations that we proposed. We also explain why the concerns raised by certain commenters are not, in fact, raised by this proposal. Accordingly, we decline to withdraw the proposal. However, the final rule includes modifications to the proposal intended to address certain of the
The proposal revised § 5.3 to update references to the OCC units that should receive certain applications. The OCC received no comments on this technical amendment and adopts it as proposed.
The proposal stated that a well-capitalized, well-managed Federal branch may make non-controlling investments and use the after-the-fact notice procedure set forth in 12 CFR 5.36 in the same manner as a national bank.
Three commenters addressed this amendment. One commenter supported the proposed change, stating that it is consistent with national treatment principles. The second was also supportive, indicating that it would have no objection to the proposed regulatory change as long as any investment made by the branch is a permissible investment under the Bank Holding Company Act and the foreign bank obtains any necessary authorizations from the Board of Governors of the Federal Reserve System (FRB). The commenter requested that OCC clarify that these conditions apply to these investments. As discussed below, to address this point, we are adding language to the final regulation in 12 CFR 28.10(c) clarifying that nothing in the OCC's rules relieves a foreign bank from complying with requirements imposed by the FRB in accordance with applicable law.
A third commenter opposed allowing Federal branches to make non-controlling equity investments, stating that there is “no statutory authorization [in the International Banking Act of 1978] for the investments referred to [in] the new proposed section, which relies solely on the principle of national treatment.” This commenter disagreed with the OCC's interpretation of national treatment under the International Banking Act of 1978 (IBA), asserting that the IBA's national treatment scheme does not treat Federal branches as national banks but rather treats Federal branches as
The OCC disagrees. The commenter's interpretation is not supported by the plain language of the statute or its legislative history, court cases that have interpreted the statute, or the Congressional intent of the IBA.
The plain language of section 4(b) of the IBA
Except as otherwise specifically provided in this Act or in rules, regulations, or orders adopted by the Comptroller under this section, operations of a foreign bank at a Federal branch or agency shall be conducted with the same rights and privileges as a
After carefully examining legislative history and Congressional intent, a U.S. Court of Appeals interpreted the national treatment language in the IBA and concluded that the IBA is intended to “treat federally-chartered foreign and
The legislative history of the IBA indicates that the national treatment language in the IBA was not intended to be an inflexible standard for applying national bank laws to Federal branches and agencies. Congress recognized that, because Federal branches and agencies are offices of foreign banks and not separately incorporated entities, certain adjustments in the strict application of the national bank laws may be necessary in order to observe this legal and operational reality. Congress charged the OCC with the primary responsibility to administer this comprehensive framework for Federal offices of foreign banks.
The commenter further argues that the IBA does not give Federal branches and agencies the authority to engage in activities permitted for national banks under the National Bank Act (NBA) unless the authority is also found in the IBA. This interpretation also is not consistent with the plain language of the statute or its legislative history.
The legislative history of the IBA describes the language in section 4(b) quoted above to provide that, “[w]ith certain exceptions, statutory or regulatory, the
For all of these reasons, the OCC adopts § 5.36 as proposed.
The proposal amended § 5.70, which describes filing requirements for corporate activities and transactions involving Federal branches and agencies, to ensure consistency with proposed changes to 12 CFR part 28 described elsewhere in this proposal. The proposal deleted the definition of
The proposed rule amended § 28.3 to provide that no notice to the OCC is required if a national bank closes or relocates a foreign branch. No comments were received on this proposed change and we are adopting it as proposed.
The proposed rule made a technical change to § 28.5 with respect to identifying the appropriate OCC office to receive certain notices. We did not receive any comments on this change and we, thus, are adopting it as proposed.
The proposal did not include revisions to § 28.10, which sets out the authority, purpose, and scope for subpart B of part 28, which pertains to Federal branches and agencies of foreign banks. One commenter thought that we should clarify that other legal requirements, in addition to those contained in the OCC's rules, may apply to certain transactions involving Federal branches and agencies. This clarification is simply an express statement of current law and 12 CFR 28.12(i) already has a limited statement of this principle with respect to the approval requirements for a Federal branch or agency.
These changes clarify that none of the revisions adopted in the final rule supersedes any legal requirements that are imposed by the FRB in the FRB's Regulation K
The IBA, which governs the operations of foreign banks in the United States through branches and agencies and other offices, sets standards for establishing the offices of foreign banks and requires the OCC to approve the “establishment” of Federal branches and agencies of foreign banks. Part 28 currently defines the term “establish” to mean initial entry of a foreign bank into the United States via a Federal branch or agency; the opening of additional branches and agencies, whether through intrastate or interstate branching; mergers and other consolidations; and “changes in status.” The term “changes in status” means both expansions (
The NPRM deleted the separate definition of “changes in status” from part 28 and incorporated certain elements of that definition in a revised definition of the term “establish a Federal branch or agency”. These amendments result in contractions in activities,
In addition, we are making one clarifying and technical change to the definitions in § 28.11 that was not proposed in the NPRM. The definition of “manual” in § 28.11(u) (as redesignated herein) means the Comptroller's Corporate Manual as defined in 12 CFR 5.2(c). In an interim rule effective April 14, 2003 (68 FR 17890), the OCC amended § 5.2(c) to reflect that the Comptroller's Corporate Manual has been replaced with the Comptroller's Licensing Manual. We are, thus, making a conforming change to § 28.11(u) to clarify that the term “manual” has the same meaning as in § 5.2(c).
The proposed rule provided that, consistent with national treatment, and analogous to the national bank chartering process, the OCC would
One commenter praised this provision in the NPRM because it would reduce the burdens associated with the licensing process when a foreign bank is establishing additional Federal branches and agencies. Another commenter, however, thought that “[i]t may be possible to issue a single license to a foreign bank with branches and agencies in multiple states” but opposed the change on the basis of the same national treatment arguments as presented in connection with the change to 12 CFR 5.36. The commenter also was concerned about the OCC using the single licensing procedure to change substantive legal requirements.
We disagree with the national treatment arguments raised for the same reasons that we explained above when discussing the comments on our proposed change to 12 CFR 5.36.
Most important, however, is that the substantive legal requirements applicable to Federal branches and agencies are unaffected by permitting those entities to operate under a single license. As explained in the NPRM, “[t]his change in licensing procedures would not affect the substance of the OCC's regulatory and supervisory responsibilities. The OCC would
Therefore, the single licensing proposal is adopted without substantive modification but with one technical change. The final rule clarifies that the single license will be the method of licensing Federal branches and agencies after the effective date of the final rule. Foreign banks already operating in the United States with multiple Federal branches or agencies will have the option of converting to a single license or continuing to maintain multiple licenses for their offices, however.
The proposal provided that the OCC generally would consider whether a foreign bank applicant is subject to comprehensive supervision on a consolidated basis by its home country supervisor (CCS) only in certain cases and
One commenter specifically supported this amendment to streamline the OCC's application procedures. No commenter opposed the change. Thus, the OCC is adopting this amendment as proposed.
The proposal provided for expedited review of additional types of applications to establish a Federal branch or agency. Under proposed new § 28.12(e)(2), a foreign bank could establish a new intrastate Federal branch or agency after providing written notice to the OCC 45 days in advance of the proposed establishment. The OCC may waive the 45-day period in certain circumstances, as well as suspend the notice period or require an application if the notice raises significant policy or supervisory issues.
In addition, under proposed new § 28.12(e)(3), an eligible foreign bank's
One commenter supported the proposed streamlined approval procedures and urged the OCC to shorten the period for processing notices for intrastate expansions and
The OCC agrees with this commenter and has changed the final rule to reduce the prior approval period from 45 days to 30 days in the case of intrastate expansions by foreign banks and interstate expansions by eligible foreign banks. The OCC believes that 30 days is sufficient time for the OCC to review the notice or application and advise the foreign bank that the proposed expansion is disapproved, or that additional time is needed to evaluate the notice or application.
Another commenter argued that the OCC's proposed notice and application procedures for certain foreign banks to expand through intrastate and interstate offices does not satisfy the IBA's prior approval requirements.
The OCC disagrees. It is crucial to recognize that the proposal did not alter the statutory prior approval requirements. The proposal established streamlined procedures permitting certain foreign banks to seek approval through a notice or application procedure to be filed prior to establishing an additional intrastate branch or agency or an interstate branch or agency, respectively. In particular, under the proposal, the OCC is deemed to have given its prior approval under these streamlined procedures if we do not advise the foreign bank that the proposed expansion is disapproved within a specified time period. Our regulations contain similar procedures to provide for streamlined and expedited review for qualifying national banks in other situations where OCC approval is required by law.
Five commenters argued that the OCC's interstate branching procedures for eligible foreign banks may be interpreted as providing substantive authority for foreign banks to branch interstate in violation of law. Two comment letters sought clarification in the final rule regarding whether a foreign bank may establish a
The procedural changes we proposed do not permit this result. As we said in the NPRM, none of the proposed changes affects any legal requirements that are otherwise applicable under law with respect to a national bank's foreign activities
The IBA, however, also authorizes branches and agencies of foreign banks to branch interstate and to upgrade interstate offices under circumstances that may be different from those permitted for domestic banks.
We proposed to establish expedited procedures for eligible foreign banks to obtain OCC approval of applications to open a Federal branch or agency on an interstate basis. The proposal did not provide a new source of authority for a foreign bank to establish such an interstate office. Nor did it make any substantive changes in the legal requirements for interstate branching under the IBA.
For these reasons, we have not changed the final rule in the manner suggested by these commenters. In addition, we do not believe that it is appropriate to include a provision in the regulation clarifying that the OCC will not approve an application of a foreign bank to establish a
Thus, the changes discussed above to shorten the period for processing notices for intrastate expansions by foreign banks and
Under current part 28, foreign banks with Federal branches and agencies that all are rated “1” or “2” under the applicable interagency rating system are eligible for expedited processing of certain applications and other filings. 12 CFR 28.12(e) and (f). The proposed rule would revise § 28.12(f) to provide that a foreign bank that has no Federal branches or agencies also is “eligible” if it is engaging in a state-to-Federal conversion and its state offices satisfy the eligibility criteria. This change would simply codify procedures that we have already adopted in our Manual.
No comments were received on this proposal and the OCC is adopting it as proposed.
Under current part 28, if foreign bank A, which has a Federal branch, merges with foreign bank B, which does not have a Federal branch or agency, an application to establish the Federal branch would have to be submitted to the OCC if B were the surviving institution. Under current § 28.12(g), the two foreign banks may proceed with their merger without approval of B's establishment of the branch if B provides reasonable advance notice of the transaction to the OCC. Prior to the merger, B must also apply to the OCC or commit to abide by the OCC's decision on the application.
Proposed new § 28.12(h) provided an expedited procedure for foreign bank B if B already has banking offices in the United States. However, we would retain the discretion to require prior approval to establish the Federal branch or agency if necessary for prudential reasons.
One commenter supported streamlining this procedure in the manner proposed by the OCC. The OCC is, thus, adopting this provision without change.
This technical change revised § 28.12(j) (as redesignated in this proposal) to clarify that the OCC also reserves the right to adopt different procedures with respect to a part 28 filing or class of filings.
No comments were received on this provision and we are adopting it without change.
This technical amendment added § 28.12(k) to codify the current OCC practice of accepting applications or notices filed with other Federal agencies that contain the necessary information required by the OCC to approve an application or act on a particular request. Under the proposal, we retained the discretion to request additional information from an applicant as deemed necessary. This amendment is adopted without change.
The IBA requires Federal branches and agencies to establish and maintain a CED. 12 U.S.C. 3102(g). In 2002, the OCC issued a final rule revising certain requirements regarding CED deposit arrangements based on a supervisory
The proposal amended § 28.15(a)(1) to clarify the types of assets eligible to be deposited in a CED. Currently, a CED must consist of bank-eligible securities, dollar deposits payable in the United States, certificates of deposit payable in the United States, and other assets permitted by the OCC. The proposal included dollar deposits payable in any Group of Ten (G-10) country and added repurchase agreements to the list of permissible CED assets. The proposal also clarified that the OCC's authority to permit other assets to qualify for the CED is limited to other assets that are “similar” to those expressly included in the statute.
In addition, the proposal clarified the OCC's current policy to exclude liabilities of an international banking facility to third parties, and of a Federal branch to an international banking facility, when calculating the required amount of a CED. Also, the proposed rule permitted the OCC, like some other regulators, to exclude liabilities from repurchase agreements on a case-by-case basis.
One commenter generally supported the OCC's efforts to alleviate burden associated with the CED requirements and specifically supported these changes to part 28. Consequently, the OCC is adopting this amendment as proposed.
In the NPRM, we proposed to clarify the meaning of the term “located” in the context of the location of a depository bank that holds a CED deposit, relative to a Federal branch or agency subject to the CED requirement. Under the IBA, for purposes of the CED requirement, a
One commenter supported the proposed changes in the NPRM with respect to CEDs, particularly the proposal to allow multiple Federal branches and agencies to maintain a single consolidated CED at a U.S. depository bank. The commenter expressed its view that it would not be necessary for the consolidated CED account to contain segregated assets to cover specific offices; instead, the commenter said that maintaining a consolidated account large enough to cover the operations of all of the individual offices would be sufficient.
Another commenter opposed the proposed changes, contending first that the NPRM should have stated that a Federal branch or agency is located in each state in which it maintains an office under the plain meaning of the term “located.” Second, the commenter stated that the legislative history of the CED requirement “demonstrates Congressional concern that assets be available to local creditors in the event that a foreign bank becomes insolvent.” The commenter added that segregated accounts promote efficient liquidations by minimizing the need for local creditors to pursue remedies in other states. Segregated accounts, according to the commenter, would better protect local creditors in situations where the foreign bank operated both Federal and state branches or agencies.
As explained above, our proposed definition of “located” is an interpretation of current law
The OCC agrees that in order to be eligible to hold a foreign bank's CED for its Federal branches and agencies, a depository bank's main office or a branch must be located in the state in which the Federal branch or agency's foreign bank parent has its home office or in any state in which a Federal branch or agency office is maintained. In the latter case, the state may not necessarily be the state in which the Federal branch or agency is licensed under the single-licensing approach described above but may be any state in which the foreign bank has a Federal branch or agency office.
This interpretation of the term “located” is reasonable and consistent with national treatment and the intent of the IBA. As one commenter agrees, the CED statute does not define the term “located.” Thus, by analogy to national banking law,
Under the IBA, the OCC has the authority to establish limitations and conditions for the CED and its administration. 12 U.S.C. 3102(g)(1). Section 3102(g)(3) further extends this authority, stating that “[t]he deposit shall be maintained with any such member bank pursuant to a deposit agreement in such form and containing such limitations and conditions as the Comptroller may provide.” This very specific authority is enhanced by the IBA's general grant of authority to the OCC to issue rules, regulations, and orders pertaining to the establishment and administration of Federal branches. 12 U.S.C. 3102(b). Moreover, the legislative history of the IBA recognized that, while the objective of Federal regulation under the IBA is to achieve equal treatment between foreign and domestic banks, some discretion was necessary to develop a regulatory framework that is appropriate to the actual operations of foreign banking institutions.
With regard to requiring foreign banks to segregate assets in a consolidated CED account, we have considered the comments received and have decided that foreign banks with multiple branches and/or agencies that consolidate their CED deposits should maintain book entry segregation of assets for each office. We are clarifying new § 28.18(c)(3) to add such a requirement. This will help to promote orderly liquidations and will help to ensure that local creditors of each office of a foreign bank are protected. In addition, we are revising new § 28.15(e) to clarify that the total amount of the CED will continue to be calculated on an office-by-office basis to ensure that there are sufficient assets available for each individual office.
As proposed, the final rule makes a technical correction to § 28.16(b)(8) to correct the citation to the FRB's Regulation K (12 CFR 211.6).
Proposed new § 28.18(c)(3) required a foreign bank that has interstate Federal branches or agencies and combines its CEDs into one account to designate one of its Federal offices to maintain consolidated information about the Federal branches and agencies covered by the CEDs. The final rule includes this provision without change. In addition, the final rule includes the provision described above that will require consolidated CED deposits to reflect book entry segregation of assets for each Federal branch or agency office.
Under current law, we may impose asset maintenance requirements on a foreign bank to hold certain assets in the state in which its Federal branch or agency is located if necessary for prudential, supervisory, or enforcement reasons. 12 CFR 28.20(a)(1). These requirements are in addition to the CED requirements but, in determining compliance with any asset maintenance requirements imposed by the OCC, we must give credit to the amount of assets held in the CED and other reserves or assets required under the IBA. 12 U.S.C. 3102(g)(4).
The proposal revised § 28.20(a)(2) to delete the requirement that the amount of assets held by the foreign bank cannot be less than 105% of the aggregate amount of liabilities of the Federal branch or agency, payable at or through the Federal branch or agency. Under the proposal, we would prescribe the amount of assets on a case-by-case basis and there would be no set minimum. This change is adopted in the final rule.
The proposal made certain changes in the voluntary liquidation procedures for Federal branches and agencies. We received no comments on this provision and we are adopting it as proposed.
To be consistent with the IBA's national treatment standard, the proposal treated a foreign bank that is closing some but not all of its Federal branches and/or agencies like a national bank that is closing a branch office. We received no comments on this change and we are adopting it as proposed.
The proposal added a new section to part 28 to require a foreign bank to submit a written notice to the OCC when there is a change in control of the foreign bank. The notice would be submitted within 14 days after the foreign bank became aware of the change if no other filing is required under part 28. A foreign bank could provide its supervisory office with the copy of a notice submitted to another Federal regulator to satisfy the requirements of this section.
No comments were received on this provision and it is adopted as proposed.
In the NPRM, the OCC provided that a Federal branch may operate a loan production office (LPO), an administrative office, or a regional administrative office that conducts other types of representational activities, as part of a branch license. The OCC noted that, since national banks may operate such offices, allowing Federal branches to do so is consistent with national treatment.
Two commenters addressed this proposal. One noted that it would view loan production offices as representative offices and their activities would be limited as such and noted that such offices would need to be approved by the FRB in accordance with applicable law. The commenter requested that the final rule refer to these requirements.
The second commenter stated that the IBA does not permit the establishment of such offices and that, if Congress wished to authorize them, it would have expressly done so. This commenter added that offices that are not branches or agencies are treated under Regulation K as representative offices. Since there is no basis for chartering federal representative offices, the IBA does not permit the establishment of loan production offices and other types of non-branch offices, according to the commenter.
With respect to the first comment, as discussed above, we are adding a statement to § 28.10(c) to clarify that nothing in our regulations relieves a foreign bank of any requirement that is imposed by the FRB under applicable law.
We believe that the second commenter is wrong as a matter of law. The fact that certain non-branch offices may be subject to other regulatory requirements does not diminish the ability of the OCC to permit Federal branches to establish such offices. The OCC's authority to allow a Federal branch to establish LPOs or other administrative offices or regional administrative offices as part of its Federal branch license is derived from separate authority.
For these reasons, we have adopted § 28.26 substantially as proposed.
Pursuant to section 605(b) of the Regulatory Flexibility Act (RFA), 5 U.S.C. 605(b), the regulatory flexibility analysis otherwise required under section 604 of the RFA is not required if the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities and publishes its certification and a short, explanatory statement in the
Pursuant to section 605(b) of the RFA, the OCC hereby certifies that this final rule will not have a significant economic impact on a substantial number of small entities. Specifically the proposed rule will reduce burden by: (1) Streamlining procedures for national banks' foreign operations through branches; (2) eliminating the requirement to file an application with the OCC in certain circumstances when a foreign bank downgrades its U.S. operations; (3) requiring approval, but not a new license, for additional Federal branches or agencies opened after the establishment of the initial branch office; and (4) clarifying that a foreign bank with Federal branches and agencies in more than one state may consolidate its capital equivalency deposits in one deposit account in a depository bank that satisfies certain criteria. These revisions will result in cost reductions for national banks and for the U.S. operations of Federal branches and agencies of foreign banks. Accordingly, a regulatory flexibility analysis is not needed.
The OCC has determined that this final rule is not a significant regulatory action under Executive Order 12866.
Section 202 of the Unfunded Mandates Reform Act of 1995, Pub. L.
In accordance with the requirements of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
The information collection requirements contained in the NPRM have been reviewed and approved by OMB in accordance with the Paperwork Reduction Act of 1995 under OMB control number 1557-0102.
However, the paperwork burden for these requirements likely will be transferred to OMB control number 1557-0014. OMB control number 1557-0014 covers the Comptroller's Licensing Manual (Manual). The Manual explains the OCC's policies and procedures for the formation of a new national bank, entry into the national banking system by other institutions, and corporate expansion and structural changes by existing national banks. The Manual includes sample documents to assist the respondent in understanding the types of information the OCC needs to process a filing. The documents are samples only. An applicant may use any format that provides sufficient information for the OCC to act on a particular filing.
The NPRM and this final rule generally eased regulatory requirements and reduced paperwork burden somewhat. The OMB approved burden attributable to the NPRM and this final rule is as follows:
The burden for 12 CFR part 5 is as follows:
The burden for 12 CFR part 28 is as follows:
The Comptroller of the Currency has determined that this final rule does not have any Federalism implications, as required by Executive Order 13132.
Administrative practice and procedure, National banks, Reporting and recordkeeping requirements, Securities.
Foreign banking, National banks, Reporting and recordkeeping requirements.
12 U.S.C. 1
(c) * * *
(1) The Licensing Department for all national bank subsidiaries of those holding companies assigned to the Washington, DC, licensing unit;
(4) The licensing unit in the Northeastern District Office for Federal branches and agencies of foreign banks.
(f)
(c) * * *
(1) * * *
(i) Open and conduct business through an initial or additional Federal branch or agency;
(iv) Convert a state branch or state agency operated by a foreign bank, or a commercial lending company controlled by a foreign bank, into a Federal branch or agency;
(v) Relocate a Federal branch or agency within a state or from one state to another; or
(vi) Convert a Federal agency or a limited Federal branch into a Federal branch.
(2)
(d) * * *
(2) * * *
(i) Establishes a Federal branch or agency; or
12 U.S.C. 1
(a) * * *
(1) * * *
(i) Establish or open a foreign branch;
(2) Opens a foreign branch, and no application or notice is required by the FRB for such transaction.
(a)
(b)
(b) Purpose. * * *
(c)
(f)
(1) Open and conduct business through an initial or additional Federal branch or agency;
(4) Convert a state branch or agency operated by a foreign bank, or a commercial lending company controlled by a foreign bank, into a Federal branch or agency;
(5) Relocate a Federal branch or agency within a state or from one state to another; or
(6) Convert a Federal agency or a limited Federal branch into a Federal branch.
(h) *** Unless otherwise provided, the references in this subpart B of part 28 to a Federal branch include a limited Federal branch.
(u)
(a)
(i) Establishes a Federal branch or agency; or
(ii) Exercises fiduciary powers at a Federal branch.
(2)
(b) * * *
(5) With respect to an application to establish a Federal branch or agency outside of the foreign bank's home state, whether the foreign bank is subject to comprehensive supervision or regulation on a consolidated basis by its home country supervisor. The OCC, in its discretion, also may consider whether the foreign bank is subject to comprehensive supervision or regulation on a consolidated basis by its home country supervisor when reviewing any other type of application to establish a Federal branch or agency; and
(e) * * *
(2)
(ii) The OCC may waive the 30-day period required under paragraph (e)(2)(i) of this section if immediate action is required. The OCC also may suspend the notice period or require an application if the notification raises significant policy or supervisory concerns.
(3)
(4)
(f)
(h)
(1) The resulting bank is an “eligible foreign bank” under paragraph (f) of this section; and
(2) No Federal branch established by the transaction accepts deposits that are insured by the FDIC pursuant to the Federal Deposit Insurance Act (12 U.S.C. 1811
(i)
(j)
(k)
(a) * * *
(1) * * *
(i) * * *
(ii) United States dollar deposits payable in the United States or payable in any other Group of Ten country;
(iii) Certificates of deposit, payable in the United States, and banker's acceptances, provided that, in either case, the issuer or the instrument is rated investment grade by an internationally recognized rating organization, and neither the issuer nor the instrument is rated lower than investment grade by any such rating organization that has rated the issuer or the instrument;
(iv) Repurchase agreements; or
(v) Other similar assets permitted by the OCC to qualify to be included in the CED.
(3)
(e)(1)
(2)
(b) * * *
(8) Persons who may deposit funds with an Edge corporation as provided in the FRB's Regulation K, 12 CFR 211.6, including persons engaged in certain international business activities; and
(c) * * *
(3) A foreign bank with a Federal branch or agency in more than one state that consolidates its CEDs into one account in accordance with § 28.15(e) shall designate a participating Federal branch or agency to maintain consolidated asset, liability, and capital equivalency account information for all Federal branches and agencies covered by the consolidated deposit. A foreign bank with a consolidated CED shall maintain a book entry accounting of assets designated under the consolidated CED for each office of that foreign bank.
(a) * * *
(2) If the OCC requires asset maintenance, the amount of assets held by a foreign bank shall be prescribed by the OCC after consideration of the aggregate amount of liabilities of the Federal branch or agency, payable at or through the Federal branch or agency. * * *
(a)
(b)
In cases where § 28.22 does not apply, and a foreign bank is closing one or more, but not all, of its Federal branches and/or agencies, it shall follow the
(a)
(b)
A Federal branch may establish lending offices, make credit decisions, and engage in other representational activities at a site other than a Federal branch office, subject to the same rights, privileges, requirements and limitations that apply to national banks under 12 CFR 7.1003, 7.1004, and 7.1005.
Food and Drug Administration, HHS.
Final rule.
The Food and Drug Administration (FDA) is amending the animal drug regulations to reflect approval of an abbreviated new animal drug application (ANADA) filed by Norbrook Laboratories, Ltd. The ANADA provides for the veterinary prescription use of flunixin meglumine injectable solution for the control of inflammation in horses, beef cattle, and nonlactating dairy cattle.
This rule is effective December 19, 2003.
Lonnie W. Luther, Center for Veterinary Medicine (HFV 104), Food and Drug Administration, 7519 Standish Pl., Rockville, MD 20855, 301-827-8549, e-mail:
Norbrook Laboratories, Ltd., Station Works, Newry BT35 6JP, Northern Ireland, filed ANADA 200-308 for the use of Flunixin Injection by veterinary prescription for the control of inflammation in horses, beef cattle, and nonlactating dairy cattle. Norbrook Laboratories' Flunixin Injection is approved as a generic copy of Schering-Plough Animal Health's BANAMINE (flunixin) Solution, approved under NADA 101-479. The ANADA is approved as of November 17, 2003, and the regulations in § 522.970 (21 CFR 522.970) are amended to reflect the approval. The basis of approval is discussed in the freedom of information summary.
In accordance with the freedom of information provisions of 21 CFR part 20 and 21 CFR 514.11(e)(2)(ii), a summary of safety and effectiveness data and information submitted to support approval of this application may be seen in the Division of Dockets Management (HFA-305), Food and Drug Administration, 5630 Fishers Lane, rm. 1061, Rockville, MD 20852, between 9 a.m. and 4 p.m., Monday through Friday.
The agency has determined under 21 CFR 25.33(a)(1) that this action is of a type that does not individually or cumulatively have a significant effect on the human environment. Therefore, neither an environmental assessment nor an environmental impact statement is required.
This rule does not meet the definition of “rule” in 5 U.S.C. 804(3)(A) because it is a rule of “particular applicability.” Therefore, it is not subject to the congressional review requirements in 5 U.S.C. 801-808.
Animal drugs.
21 U.S.C. 360b.
Internal Revenue Service (IRS), Treasury.
Final and temporary regulations.
This document contains regulations designed to eliminate regulatory impediments to the electronic filing of certain income tax returns and other forms. These regulations affect business taxpayers who file income tax returns electronically. The text of the temporary regulations also serves as the text of the proposed regulations set forth in the Proposed Rules section in this issue of the
Nathan Rosen, (202) 622-4910 (not a toll-free number).
These regulations are being issued without prior notice and public procedure pursuant to the Administrative Procedure Act (5 U.S.C. 553). For this reason, the collection of information contained in these regulations has been reviewed and pending receipt and evaluation of
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid control number.
For further information concerning this collection of information, and where to submit comments on the collection of information and the accuracy of the estimated burden, and suggestions for reducing this burden, please refer to the preamble to the cross-referencing notice of proposed rulemaking published in the Proposed Rules section of this issue of the
Books and records relating to a collection of information must be retained as long as their contents may become material in the administration of any internal revenue law. Generally, tax returns and tax return information are confidential, as required by 26 U.S.C. 6103.
This document contains amendments to the Income Tax Regulations (26 CFR part 1) and the Procedure and Administration Regulations (26 CFR part 301) designed to eliminate regulatory impediments to the electronic submission of tax returns and other forms filed by corporations, partnerships and other businesses.
In 1998, Congress enacted the Internal Revenue Service Restructuring and Reform Act of 1998 (RRA 1998), Public Law 105-206 (112 Stat. 685) (1998). In relevant part, RRA 1998 states that the policy of Congress is to promote the paperless filing of Federal tax returns. Section 2001(a) of RRA 1998 sets a long-range goal for the IRS to have at least 80 percent of all Federal tax returns filed electronically by 2007. Section 2001(b) of RRA 1998 requires the IRS to establish a 10-year strategic plan to eliminate barriers to electronic filing. On January 30, 2003, the IRS published final regulations (TD 9040) eliminating a number of regulatory impediments to the electronic filing of Form 1040, “U.S. Individual Income Tax Return.”
The IRS has identified a number of regulatory provisions that impede the ability of business entities to file returns electronically. Some of these regulations, for example, impede electronic filing by requiring taxpayers to include third-party signatures on their tax returns or by requiring taxpayers to attach documents or statements generated by a third party. Others require a taxpayer to sign an IRS form and file it as an attachment to the taxpayer's income tax return. These regulations eliminate the impediments for taxable years beginning after December 31, 2002. The regulations generally affect taxpayers who must file any of the following forms: Form 926, “Return by a U.S. Transferor of Property to a Foreign Corporation”; Form 972, “Consent of Shareholder To Include Specific Amount in Gross Income”; Form 973, “Corporation Claim for Deduction for Consent Dividends”; Form 982, “Reduction of Tax Attributes Due to Discharge of Indebtedness (and Section 1082 Basis Adjustment)”; Form 1120, “U.S. Corporation Income Tax Return”; Form 1120S, “U.S. Income Tax Return for an S Corporation”; Form 1122, “Authorization and Consent of Subsidiary Corporation To Be Included in a Consolidated Income Tax Return”; Form 5471, “Information Return of U.S. Persons With Respect To Certain Foreign Corporations”; Form 5712-A, “Election and Verification of the Cost Sharing or Profit Split Method Under Section 936(h)(5)”; and Form 8832, “Entity Classification Election.”
Section 6038B provides that transferors of property to foreign corporations must, in certain circumstances, file information returns with the Secretary regarding such transactions. Section 1.6038B-1(b)(1)(i) requires the transferor to file the return on Form 926 as an attachment to its income tax return. Under § 1.6038B-1(b)(1)(i) and (ii), filers of Form 926 must sign the form and attachments to the form are subject to the declaration under penalties of perjury that the information submitted is true, correct, and complete. The signature requirement impedes electronic filing of the transferor's income tax return because Form 926 cannot yet be signed electronically. These regulations eliminate the obligation to sign Form 926 and provide, instead, that Form 926 and any attachments to the form are verified by signing the income tax return with which the form and attachments are filed.
Section 565 allows a corporation and its shareholders to treat certain hypothetical corporate distributions as actual dividends. Section 1.565-1(b)(1) requires shareholders to use Form 972 to elect such treatment and requires each consenting shareholder (or an authorized agent) to sign the form. Section 1.565-1(b)(3) requires the corporation to attach the signed Form 972 to its income tax return for the taxable year in which it claims the dividends paid deduction for the hypothetical dividends. Requiring corporations to attach a signed Form 972 impedes electronic filing of their income tax returns because third-party signatures cannot be incorporated into an electronic return. These regulations provide that an unsigned copy of Form 972 may be submitted with the corporation's income tax return if the corporation retains the signed original in its records.
A corporation uses Form 973 to claim the dividend treatment permitted by section 565. Section 1.565-1(b)(3) requires the corporation to sign Form 973 under penalties of perjury and submit the form with its tax return. This signature requirement impedes electronic filing of a corporation's income tax return because Form 973 cannot yet be signed electronically. These regulations eliminate the obligation to sign Form 973 and provide, instead, that Form 973 is verified by signing the income tax return with which the form is filed.
Section 1017 provides for basis reductions when income from discharge of indebtedness is excluded from gross income. If a partnership has income from discharge of indebtedness, § 1.1017(g) permits its partners to request that the partnership reduce the basis of partnership depreciable property with respect to the partners. Section 1.1017-1(g)(2)(iii)(A) requires a partnership that consents to this basis reduction to prepare a statement describing, among other things, the amount of the reduction. Section 1.1017-1(g)(2)(iii)(B) requires the affected partners to attach a copy of that statement to their income tax returns.
Requiring partners to attach the partnership consent statement impedes the electronic filing of their income tax returns because the partnership statement cannot yet be incorporated into all electronic returns. To remedy this impediment, these regulations eliminate the obligation to attach the partnership consent statement and provide, instead, that taxpayers must
Section 1503 prescribes certain rules for computing tax for corporations filing consolidated returns. Section 1.1503-2(g) permits dual consolidated losses of dual resident corporations to offset the income of domestic affiliates under specified circumstances, including entry into an agreement described in § 1.1503-2(g)(2)(i). The corporation entering into the agreement must attach the agreement to its timely filed U.S. income tax return for the taxable year in which the loss is incurred. The agreement must be signed under penalties of perjury by the person who signs the income tax return. Section 1.1503-2(g)(2)(iv)(B)(3)(iii) also requires a successor corporation to file an agreement described in § 1.1503-2(g)(2)(i) to prevent recapture of the dual consolidated loss in certain circumstances. The new agreement must be signed under penalties of perjury by the person who signs the income tax return. Section 1.1503-2(g)(2)(vi)(B) requires corporations to file annual certifications with respect to dual consolidated losses. The annual certification must be signed under penalties of perjury by the person who signs the corporation's income tax return. The signature requirements in § 1.1503-2(g)(2)(i), (g)(2)(iv)(B)(3)(iii), and (g)(2)(vi)(B) impede electronic filing of the corporation's income tax return because neither the agreement nor the annual certification can be signed electronically. These regulations eliminate the obligations under § 1.1503-2(g)(2)(i) and (iv)(B)(3)(iii) to attach a signed agreement and provide, instead, that an unsigned copy of the agreement may be submitted with the corporation's income tax return if the corporation retains the signed original in its records. These regulations also eliminate the obligation under § 1.1503-2(g)(2) (vi)(B) to sign the annual certification and provide, instead, that the annual certification is verified by signing the income tax return with which the certification is filed.
Section 170 addresses the tax deductibility of charitable contributions and gifts. Section 1.170A-11(b)(1) provides that, under certain conditions, corporations may treat a charitable contribution as paid during a taxable year even if the contribution occurs in the following taxable year. A corporation claiming a charitable deduction for a taxable year under this provision must attach a copy of the resolution of the board of directors authorizing the contribution to its return for the year. In addition, the corporation must attach a declaration, signed under penalties of perjury, that the resolution was adopted during the taxable year.
Section 1.1502-21(b)(3)(i) provides that a consolidated group of corporations may elect to relinquish carryback treatment with respect to a consolidated net operating loss for any consolidated return year. The consolidated group elects this treatment by attaching a statement to the group's income tax return for the relevant year. The regulations require the statement to be signed by the common parent. This signature requirement impedes electronic filing of Form 1120 because the statement cannot be signed electronically. These regulations eliminate the signature requirement and permit the election to be made in an unsigned statement.
Section 1.1502-21(b)(3)(ii)(B) provides that a group of corporations acquiring a new member may elect to relinquish part of the carryback period with respect to certain net operating losses of the new member. The election is made in a statement attached to the group's income tax return. The statement must be signed by the common parent, the new member, and any other corporation joining the group with the new member. This signature requirement impedes electronic filing of Form 1120 because third-party signatures cannot be incorporated into an electronic return. These regulations eliminate the signature requirement and permit the election to be made in an unsigned statement.
Section 1377 provides that under certain circumstances an S Corporation may elect to treat a taxable year as if it consisted of two separate taxable years. Section 1.1377-1(b)(5) provides that an S Corporation elects this treatment by attaching a signed statement to its income tax return. This signature requirement impedes electronic filing of Form 1120S because the statement described in § 1.1377-1(b)(5) cannot be signed electronically. These regulations eliminate the signature requirement and permit the election to be made in an unsigned statement that is verified by signing the return.
Section 1.1368-1(g)(2)(i) provides a similar election for purposes of determining the treatment of distributions by an S Corporation in the event of certain ownership changes. Section 1.1368-1(g)(2)(iii) provides that an S Corporation makes this election by attaching a statement, signed by an officer of the corporation, to its income tax return for the relevant taxable year. This signature requirement impedes electronic filing of Form 1120S because the statement described in § 1.1368-1(g)(2)(iii) cannot be signed electronically. These regulations eliminate the signature requirement and permit the election to be made in an unsigned statement that is verified by signing the return.
Section 1.1368-1(f) allows an S corporation to make certain elections relating to the source of its distributions. Section 1.1368-1(f)(5)(iii) provides that an S corporation makes these elections by attaching a statement containing specified information to its income tax return. An officer of the corporation must sign the statement under penalties of perjury. This signature requirement impedes electronic filing of Form 1120S because the statement described in § 1.1368-1(f)(5)(iii) cannot be signed electronically. These regulations eliminate the signature requirement and permit the election to be made in an unsigned statement that is verified by signing the return.
Section 1.1502-75(h)(2) provides that, when an affiliated group of corporations files a consolidated return for the first time, each subsidiary must consent to the filing by signing Form 1122 and the signed consent forms must be attached to the consolidated return. Requiring the group to file signed consent forms
Section 1.556-2(e)(2) provides that certain U.S. shareholders of a foreign personal holding company must attach a number of items to their income tax returns relating to property the company owns or operates. In particular, § 1.556-2(e)(2)(vii) requires certain shareholders to attach a copy of the contract, lease or rental agreement covering the property. A shareholder attaches these items to Form 5471, and in turn attaches that form to its return. Requiring shareholders to attach a copy of these documents to an income tax return impedes electronic filing because the documents cannot yet be incorporated into all electronic returns. These regulations eliminate this requirement and provide, instead, that a copy of the contract, lease or rental agreement must be retained in the shareholder's records.
Section 1.936-7(a), Q&A 1 provides that a possessions corporation makes the election under section 936(h)(5) to use the cost sharing or profit split method by filing a signed Form 5712-A that includes a declaration that all affiliated group members have consented to the election. The electing corporation attaches the Form 5712-A to Form 5735, “Possessions Corporation Tax Credit,” which in turn must be attached to the corporation's income tax return. Requiring taxpayers to sign Form 5712-A impedes electronic filing of corporate income tax returns because Form 5712-A cannot yet be signed electronically. These regulations eliminate the signature requirement and permit the election to be made using an unsigned Form 5712-A that is verified by signing the return.
An eligible business entity may file Form 8832 to specify the way in which it is to be classified for federal tax purposes. The form must be signed under penalties of perjury. Section 301.7701-3(c)(1)(ii) provides that in certain circumstances the entity must attach a copy of Form 8832 to its tax or information returns. The requirement to attach a copy of Form 8832 impedes electronic filing of tax and information returns because a copy of the signed form cannot yet be incorporated into all electronic returns. These regulations provide that the requirement to attach a copy of Form 8832 to a return may be satisfied with an unsigned copy.
It has been determined that this Treasury decision is not a significant regulatory action as defined in Executive Order 12866. Therefore, a regulatory assessment is not required. It 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. For the applicability of the Regulatory Flexibility Act (5 U.S.C. chapter 6), refer to the Special Analyses section of the preamble to the cross-reference notice of proposed rulemaking published in the Proposed Rules section in this issue of the
The principal author of these regulations is Nathan Rosen, Office of Associate Chief Counsel (Procedure and Administration), Administrative Provisions and Judicial Practice Division.
Income taxes, Reporting and recordkeeping requirements.
Employment taxes, Estate taxes, Excise taxes, Gift taxes, Income taxes, Penalties, Reporting and recordkeeping requirements.
Reporting and recordkeeping requirements.
26 U.S.C. 7805 * * *
(b) * * *
(2) [Reserved]. For further guidance
(a) [Reserved]. For further guidance,
(b) Election by corporations on an accrual method—(1) [Reserved]. For further guidance,
(2) The election must be made at the time the return for the taxable year is filed, by reporting the contribution on the return. There shall be attached to the return when filed a written declaration stating that the resolution authorizing the contribution was adopted by the board of directors during the taxable year. For taxable years beginning before January 1, 2003, the declaration shall be verified by a statement signed by an officer authorized to sign the return that it is made under penalties of perjury, and there shall also be attached to the return when filed a copy of the resolution of the board of directors authorizing the contribution. For taxable years beginning after December 31, 2002, the declaration must also include the date of the resolution, the declaration shall be verified by signing the return, and a copy of the resolution of the board of directors authorizing the contribution is a record that the taxpayer must retain and keep available for inspection in the manner required by § 1.6001-1(e).
(c) through (d) [Reserved]. For further guidance,
(e) * * *
(2) * * *
(vii) [Reserved]. For further guidance,
(3) [Reserved]. For further guidance,
(a) through (e)(2)(vi) [Reserved]. For further guidance,
(e)(2)(vii) In the case of a return for a taxable year beginning before January 1, 2003, a copy of the contract, lease, or rental agreement;
(e)(2)(viii) through (xi) [Reserved]. For further guidance
(3) If the statement described in § 1.556-2(e)(2) is attached to a taxpayer's income tax return for a taxable year beginning after December 31, 2002, a copy of the applicable contract, lease or rental agreement is not required to be submitted with the return, but must be retained by the taxpayer and kept available for inspection in the manner required by § 1.6001-1(e).
(f) [Reserved]. For further guidance,
(b) * * *
(3) [Reserved]. For further guidance,
(a) through (b)(2) [Reserved]. For further guidance,
(b)(3) A consent may be filed at any time not later than the due date of the corporation's income tax return for the taxable year for which the dividends paid deduction is claimed. With such return, and not later than the due date thereof, the corporation must file Forms 972 for each consenting shareholder, and a return on Form 973 showing by classes the stock outstanding on the first and last days of the taxable year, the dividend rights of such stock, distributions made during the taxable year to shareholders, and giving all the other information required by the form. For taxable years beginning before January 1, 2003, the Form 973 filed with the corporation's income tax return shall contain or be verified by a written declaration that is made under the penalties of perjury and the Forms 972 filed with the return must be duly executed by the consenting shareholders. For taxable years beginning after December 31, 2002, the Form 973 filed with the corporation's income tax return shall be verified by signing the return and the Forms 972 filed with the return must be duly executed by the consenting shareholders or, if unsigned, must contain the same information as the duly executed originals. If the corporation submits unsigned Forms 972 with its return for a taxable year beginning after December 31, 2002, the duly executed originals are records that the corporation must retain and keep available for inspection in the manner required by § 1.6001-1(e).
(c) [Reserved]. For further guidance,
(b) * * *
Q. 1. [Reserved]. For further guidance,
A. 1. [Reserved]. For further guidance,
(a) [Reserved]. For further guidance,
(b)
Q. 1: How does a possessions corporation make an election to use the cost sharing method or profit split method?
A.1: A possessions corporation makes an election to use the cost sharing or profit split method by filing Form 5712-A (“Election and Verification of the Cost Sharing or Profit Split Method Under Section 936(h)(5)”) and attaching it to its tax return. Form 5712-A must be filed on or before the due date (including extensions) of the tax return of the possessions corporation for its first taxable year beginning after December 31, 1982. The electing corporation must set forth on the form the name and the taxpayer identification number or address of all members of the affiliated group (including foreign affiliates not required to file a U.S. tax return). All members of the affiliated group must consent to the election. For elections filed with respect to taxable years beginning before January 1, 2003, an authorized officer of the electing corporation must sign the statement of election and must declare that he has received a signed statement of consent from an authorized officer, director, or other appropriate official of each member of the affiliated group. Elections filed for taxable years beginning after December 31, 2002, will incorporate a declaration by the electing corporation that it has received a signed consent from an authorized officer, director, or other appropriate official of each member of the affiliated group and will be verified by signing the return. The election is not valid for a taxable year unless all affiliates consent. A failure to obtain an affiliate's written consent will not invalidate the election out if the possessions corporation made a good faith effort to obtain all the necessary consents or the failure to obtain the missing consent was inadvertent. Subsequently created or acquired affiliates are bound by the election. If an election out is revoked under section 936(h)(5)(F)(iii), a new election out with respect to that product area cannot be made without the consent of the Commissioner. The possessions corporation shall file an amended Form 5712-A with its timely filed income tax return to reflect any changes in the names or number of the members of the affiliated group for any taxable year after the first taxable year to which the election out applies. By consenting to the election out, all affiliates agree to provide information necessary to compute the cost sharing payment under the cost sharing method or combined taxable income under the profit split method, and failure to provide such information shall be treated as a request to revoke the election out under section 936(h)(5)(F)(iii).
Q. & A. 2 through 8 [Reserved]. For further guidance,
(c) and (d) [Reserved]. For further guidance,
(g) * * *
(2) * * *
(iii) * * *
(B) [Reserved] For further guidance,
(c) through (g)(2)(iii)(A) [Reserved]. For further guidance, see § 1.1017-1(c) through (g)(2)(iii)(A).
(g)(2)(iii)(B)
(g)(2)(iv) through (i) [Reserved]. For further guidance,
(f) * * *
(5) * * *
(iii) [Reserved]. For further guidance,
(g) * * *
(2) * * *
(iii) [Reserved]. For further guidance,
(a) through (f)(5)(ii) [Reserved]. For further guidance,
(f)(5)(iii)
(f)(5)(iv) through (g)(2)(ii) [Reserved]. For further guidance,
(g)(2)(iii)
(g)(2)(iv) [Reserved]. For further guidance,
(b) * * *
(5) * * *
(i) * * *
(C) [Reserved]. For further guidance,
(a) through (b)(5)(i)(B) [Reserved]. For further guidance,
(b)(5)(i)(C) The signature on behalf of the S corporation of an authorized officer of the corporation under penalties of perjury, except that for taxable years beginning after December 31, 2002, the election statement described in § 1.1377-1(b)(5)(i) shall be verified, and the requirement of this paragraph (b)(5)(i)(C) is satisfied, by the signature on the Form 1120S filed by the S corporation.
(b)(5)(i)(D) through (c) [Reserved]. For further guidance,
(b) * * *
(2) * * *
(iii) [Reserved]. For further guidance,
(3) * * * (i) [Reserved]. For further guidance,
(ii) * * * (A) * * *
(b)(3)(ii)(B) [Reserved]. For further guidance,
(b)(2)(iii) [Reserved]. For further guidance,
(b)(3)
(b)(3)(ii) through (b)(3)(ii)(A) [Reserved]. For further guidance,
(B)
(h) * * *
(2) [Reserved]. For further guidance,
(a) through (h)(1) [Reserved]. For further guidance,
(2)
(h)(3) through (k) [Reserved]. For further guidance,
(g) * * *
(2) * * *
(i) [Reserved]. For further guidance,
(iv) * * *
(B) * * *
(3) * * *
(iii) [Reserved]. For further guidance,
(vi) * * *
(B) [Reserved]. For further guidance,
(a) through (g)(1) [Reserved]. For further guidance,
(2)
(A) A statement that the document submitted is an election and an agreement under the provisions of § 1.1503-2(g)(2) of the Income Tax Regulations.
(B) The name, address, identifying number, and place and date of incorporation of the dual resident corporation, and the country or countries that tax the dual resident corporation on its worldwide income or on a residence basis, or, in the case of a separate unit, identification of the separate unit, including the name under which it conducts business, its principal activity, and the country in which its principal place of business is located.
(C) An agreement by the consolidated group, unaffiliated dual resident
(D) A statement of the amount of the dual consolidated loss covered by the agreement.
(E) A certification that no portion of the dual resident corporation's or separate unit's losses, expenses, or deductions taken into account in computing the dual consolidated loss has been, or will be, used to offset the income of any other person under the income tax laws of a foreign country.
(F) A certification that arrangements have been made to ensure that no portion of the dual consolidated loss will be used to offset the income of another person under the laws of a foreign country and that the consolidated group, unaffiliated dual resident corporation, or unaffiliated domestic owner will be informed of any such foreign use of any portion of the dual consolidated loss.
(g)(2)(ii) through (iv)(B)(
(g)(2)(iv)(B)(
(g)(2)(iv)(C) through (vi)(A) [Reserved]. For further guidance,
(B)
(g)(2)(vii) through (h) [Reserved]. For further guidance,
(b)(1)(i) and (ii) [Reserved]. For further guidance,
(a) [Reserved]. For further guidance,
(b)
(ii)
(b)(2) through (b)(3) [Reserved]. For further guidance,
26 U.S.C. 7805.
(c) * * * (1) * * *
(ii) [Reserved]. For further guidance,
(a) through (c)(1)(i) [Reserved]. For further guidance,
(ii)
(c)(1)(iii) through (h) [Reserved]. For further guidance,
26 U.S.C. 7805 * * *
(b) * * *
United States Parole Commission, Justice.
Interim rule with request for comments.
This interim rule is designed to provide a fair and expeditious means of handling the case of an accused parole violator who is found to be mentally incompetent to proceed with a scheduled parole revocation hearing. Under the Commission's present rule, such a parolee is sent to the Bureau of Prisons for a mental health examination, with a report every six months, until the parolee regains sufficient competence to participate in a revocation hearing. This rule can result in the indefinite detention of the mentally incompetent parolee, without any provision for bringing the revocation matter to resolution. The interim rule authorizes the Commission to conduct a revocation hearing notwithstanding the parolee's lack of mental competency, so long as the Commission obtains a current mental health report, ensures that the parolee has counsel to present a defense, and takes the parolee's mental condition into account in its determination.
Send comments to Office of General Counsel, U.S. Parole Commission, 5550 Friendship Blvd., Chevy Chase, Maryland 20815.
Office of General Counsel, U.S. Parole Commission, 5550 Friendship Blvd., Chevy Chase, Maryland 20815, telephone (301) 492-5959. Questions about this publication are welcome, but inquiries concerning individual cases cannot be answered over the telephone.
A recent case in the District of Columbia has illustrated the problems that can arise when the Commission finds that a parolee who is charged with parole violations is not mentally competent to participate a revocation hearing, and successive efforts to hold a revocation hearing are frustrated by the parolee's inability to regain competency. Other pending revocation cases potentially raise similar difficulties. Under the Commission's present regulation, 28 CFR 2.8, such a parolee must be kept in prison with a report as to his mental competency submitted every six months. A revocation hearing is attempted only when the mental health report indicates that the parolee may be competent to proceed. The regulation can result in indefinite delays in holding the revocation hearing, because the rule lacks any provision for resolving the parolee's situation.
The rule at § 2.8 is grounded, in part, on the policy judgment that the Commission cannot responsibly return accused parole violators to parole supervision solely by reason of their mental incompetency. This result would be incompatible with a primary purpose of parole,
The mental incompetency of a defendant facing a criminal prosecution has a far different consequence. A defendant who is found unable to regain competence to stand trial in the foreseeable future cannot be incarcerated indefinitely and must be released, as mandated by
On the other hand, maintaining an accused parole violator on a potentially indefinite six-month reporting cycle without a revocation hearing, as permitted by the present rule, fails to serve the interest of both society and the parolee in seeing that parole violation charges are resolved in a reasonable time. Conducting a revocation hearing notwithstanding the parolee's mental incompetency is the appropriate solution because, in the final analysis, revocation of parole is remedial in nature.
If revocation is ordered, depending on the seriousness of the violations committed and the risk of new criminal behavior, the Commission can take such measures as are best suited to protect the public, which may include a reparole under conditions of supervision adequate to support the parolee's mental health needs. If the charges are dismissed, or revocation is otherwise not found appropriate, the Commission can return the parolee to the community with a better understanding of the needs that must be addressed to improve the parolee's chances for success.
Consequently, the Commission's revised regulation requires that, whenever a parolee appears to be incompetent to go forward with a revocation hearing, the hearing examiner must temporarily postpone the hearing to obtain a report concerning the parolee's competency from mental health professionals. If the incompetency appears at the probable cause hearing stage, the examiner (or Commission) will make a finding as to probable cause and, if probable cause is found, will schedule a revocation hearing to be held with such a report.
At the postponed revocation hearing, the hearing examiner will make a preliminary determination as to the parolee's competency before proceeding with the revocation hearing. But the hearing examiner will proceed with the revocation hearing even if the examiner determines that the parolee is mentally incompetent to participate in the hearing. Under the interim rule, a finding of incompetency is not a reason for ordering further postponements or for canceling the hearing. In such a case, the purpose of the mental competency determination is to inform the examiner of the parolee's condition, so that the examiner can ensure that both a fair revocation hearing and a reasonable decision results.
In drafting this revised regulation, the Commission has taken account of the possibility that holding a revocation hearing in the case of an incompetent parolee could result in an increased risk of erroneous fact-finding. This risk will be controlled by the provision that any mentally incompetent parolee must be afforded representation by counsel at the revocation hearing. Counsel will be expected to investigate the charges by speaking to witnesses, family members, and others with relevant information. Counsel will be permitted to present any substantial defense to the charges which the circumstances suggest, even if the parolee is not able to testify or give counsel meaningful assistance. This is not an unfair expectation because counsel is not tasked with preparing a defense in a criminal trial under the standard of “beyond a reasonable doubt.” Counsel is only tasked with preparing a defense in an informal administrative hearing, under the lesser standard of the “preponderance of the evidence,” whereby counsel need only provide the Commission with the explanation of the facts which “best accords with reason and probability.”
Therefore, the absence of any readily evident defenses to the alleged parole violations will, in most cases, result in counsel emphasizing factors in mitigation. Even though a case may occur in which a parolee cannot communicate to counsel some defense that is known only to the parolee, it is still preferable for the Commission to hold a hearing and make the best decision it can, as opposed to postponing the hearing until such time as the parolee is able to regain his competence.
In sum, the only requirement of due process in such a case is that the Commission must take the parolee's mental condition fully into account in conducting the revocation hearing and making its decision.
Because this is a rule of procedure only, and implementation of the rule at the earliest opportunity is necessary for the Commission to be able to resolve any potential delays in its revocation caseload, this rule will go into effect as an interim rule with request for comments, in contrast to proposals for rulemaking on substantive matters such as paroling policy.
The amended rule will take effect January 20, 2004, and will apply to all cases, federal and District of Columbia, including District of Columbia offenders on supervised release.
The U.S. Parole Commission has determined that this interim rule does not constitute a significant rule within the meaning of Executive Order 12866.
This regulation will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. Under Executive Order 13132, this rule does not have sufficient federalism implications requiring a Federalism Assessment.
The interim rule will not have a significant economic impact upon a substantial number of small entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 605 (b), and is deemed by the Commission to be a rule of agency practice that does not substantially affect the rights or obligations of non-agency parties pursuant to section 804 (3) (c) of the Congressional Review Act.
This rule will not cause State, local, or tribal governments, or the private sector, to spend $100,000,000 or more in any one year, and it will not significantly or uniquely affect small governments. No action under the Unfunded Mandates Reform Act of 1995 is necessary.
This rule is not a major rule as defined by section 804 of the Small Business Regulatory Enforcement Fairness Act of 1996. This rule will not result in an annual effect on the economy of $100,000,000 or more; a major increase in costs or prices; or significant adverse effects on the ability of United States-based companies to compete with foreign-based companies.
Administrative practice and procedure, Prisoners, Probation and parole.
18 U.S.C. 4203 (a) (1) and 4204 (a) (6).
(c) Whenever the hearing examiner(s) or designated official determine that a prisoner is mentally incompetent and postpone the previously scheduled hearing, they shall forward the record of the preliminary hearing with their findings to the Regional Commissioner for review.
(1) In the case of a prisoner, if the Regional Commissioner concurs with their findings, the Commissioner shall order the temporarily postponed hearing to be postponed indefinitely until such time as it is determined that the prisoner has recovered sufficiently to understand the proceedings. The Regional Commissioner shall require a progress report on the mental health of the prisoner at least every six months. When the Regional Commissioner determines that the prisoner has recovered sufficiently, the Commissioner shall reschedule the hearing for the earliest feasible date.
(2) In the case of a parolee in a revocation proceeding, the Regional Commissioner shall postpone the revocation hearing and order that the parolee be given a mental health examination in a suitable facility of the Bureau of Prisons or the District of Columbia. The postponed revocation hearing shall be held within 60 days, or as soon as a satisfactory mental health report is submitted. The Regional Commissioner shall order that appointment of counsel be sought in any case where the parolee does not have counsel for the revocation hearing. If the parolee's mental incompetency is raised at a preliminary interview or probable cause hearing, the Commission (or hearing official) will make a determination of probable cause and, if probable cause is found, schedule a revocation hearing as provided in this paragraph.
(e) At a postponed revocation hearing under this section, the hearing examiner shall make a preliminary determination as to the parolee's mental competency, taking into account all available mental health reports, any evidence submitted on the parolee's behalf, any report from counsel as to counsel's ability to communicate with the parolee, and the parolee's own responses to the examiner's questioning.
(1) If the hearing examiner determines the parolee to be mentally competent, the examiner shall conduct the revocation hearing. If counsel has previously asserted the parolee's incompetence, the examiner shall offer counsel a brief recess to consult with the parolee before proceeding.
(2) If the hearing examiner determines the parolee to be mentally incompetent, the examiner shall conduct the revocation hearing, and shall take into full account the parolee's mental condition in determining the facts and recommending a decision as to revocation and reparole.
(3) If the Commission revokes parole, the Commission may grant reparole conditioned on the parolee's acceptance into a particular type of mental health program prior to release from prison, or may grant reparole with a special condition of supervision that requires appropriate mental health treatment, including medication. In cases where no other option appears appropriate, the Commission may grant reparole conditioned upon the parolee's voluntary self-commitment to a mental health institution until such time as the parolee has sufficiently recovered for the Commission to permit the parolee's return to supervision.
(4) If the Commission finds that the parolee did not commit the charged violations of parole, but also finds that the parolee is unable to fulfill the normal obligations of a parolee by reason of his mental condition, the Commission may reinstate the parolee to parole with any appropriate special condition, including the special condition, if necessary, that the parolee voluntarily commit himself to a mental institution until such time as the parolee has sufficiently recovered for the Commission to permit a return to supervision.
U.S. Coast Guard, DHS.
Notice of temporary deviation from regulations.
The Commander, Seventh Coast Guard District, has approved a temporary deviation from the regulations governing the operation of the Florida East Coast Railway bridge across the Loxahatchee River, mile 1.2, Jupiter, Florida. This deviation allows the bridge to remain in the closed position from 7 p.m. to 7 a.m. each day from December 10, 2003 until December 19, 2003 for repairs.
This deviation is effective from 7 p.m. on December 10 until 7 a.m. on December 19, 2003.
Material received from the public, as well as documents indicated in this preamble as being available in the docket [CGD07-03-172] will become part of this docket and will be available for inspection or copying at Commander (obr), Seventh Coast Guard District, 909 S.E. 1st Avenue, Miami, Florida 33131-3050 between 7:30 a.m. and 4 p.m., Monday through Friday, except Federal Holidays.
Mr. Michael Lieberum, Project Officer, Seventh Coast Guard District, Bridge Branch at (305) 415-6744.
The Florida East Coast Railway bridge across the Loxahatchee River, Jupiter, Florida, is a single leaf bascule bridge with a vertical clearance of 4 feet above mean high water (MHW) measured at the fenders in the closed position with a horizontal clearance of 40 feet. The current operating regulation in 33 CFR 117.300 requires that the bridge is not constantly tended. The draw is normally in the fully open position, displaying flashing green lights to indicate that vessels may pass. When a train approaches, the lights go to flashing red and a horn starts four blasts, pauses, and then continues four blasts. After an eight minute delay, the draw lowers and locks, providing the scanning equipment reveals nothing under the draw. The draw remains down for a period of eight minutes or while the approach track circuit is occupied. After the train has cleared, the draw opens and the lights return to flashing green.
On October 30, 2003, the bridge owner, Florida East Coast Railroad, requested a deviation from the current operating regulations to allow the owner and operator to keep this bridge in the closed position during certain times each day to facilitate repairs. The Commander, Seventh Coast Guard District has granted a temporary deviation from the operating requirements listed in 33 CFR 117.300 to complete repairs to the bridge. Under this deviation the Florida East Coast Railway bridge, across the Loxahatchee River, mile 1.2, Jupiter, Florida, need not open from 7 p.m. to 7 a.m., each day, from December 10, 2003 until December 19, 2003.
Forest Service, USDA; Fish and Wildlife Service, Interior.
Seasonal adjustment.
This provides notice of the Federal Subsistence Board's management action to protect a declining moose population in Unit 22(A). This action provides an exception to the Subsistence Management Regulations for Public Lands in Alaska, published in the
This action is effective December 4, 2003, through January 31, 2004.
Thomas H. Boyd, Office of Subsistence Management, U.S. Fish and Wildlife Service, telephone (907) 786-3888. For questions specific to National Forest System lands, contact Steve Kessler, Subsistence Program Leader, USDA—Forest Service, Alaska Region, telephone (907) 786-3592.
Title VIII of the Alaska National Interest Lands Conservation Act (ANILCA) (16 U.S.C. 3111-3126) requires that the Secretary of the Interior and the Secretary of Agriculture (Secretaries) implement a joint program to grant a preference for subsistence uses of fish and wildlife resources on public lands in Alaska, unless the State of Alaska enacts and implements laws of general applicability that are consistent with ANILCA and that provide for the subsistence definition, preference, and participation specified in Sections 803, 804, and 805 of ANILCA. In December 1989, the Alaska Supreme Court ruled that the rural preference in the State subsistence statute violated the Alaska Constitution and, therefore, negated State compliance with ANILCA.
The Department of the Interior and the Department of Agriculture (Departments) assumed, on July 1, 1990, responsibility for implementation of Title VIII of ANILCA on public lands. The Departments administer Title VIII through regulations at Title 50, Part 100 and Title 36, Part 242 of the Code of Federal Regulations (CFR). Consistent with Subparts A, B, and C of these regulations, as revised January 8, 1999, (64 FR 1276), the Departments established a Federal Subsistence Board to administer the Federal Subsistence Management Program. The Board's composition includes a Chair appointed by the Secretary of the Interior with concurrence of the Secretary of Agriculture; the Alaska Regional Director, U.S. Fish and Wildlife Service; the Alaska Regional Director, National Park Service; the Alaska State Director, Bureau of Land Management; the Alaska Regional Director, Bureau of Indian Affairs; and the Alaska Regional Forester, USDA Forest Service. Through the Board, these agencies participate in the development of regulations for Subparts A, B, and C, which establish the program structure and determine which Alaska residents are eligible to take specific species for subsistence uses, and the annual Subpart D regulations, which establish seasons, harvest limits, and methods and means for subsistence take of species in specific areas. Subpart D regulations for the 2003 hunting seasons, harvest limits, and methods and means were
The Alaska Department of Fish and Game (ADF&G), under the direction of the Alaska Board of Game (BOG) and the Board of Fisheries (BOF), manages sport, commercial, personal use, and State subsistence harvest on all lands and waters throughout Alaska. However, on Federal lands and waters, the Federal Subsistence Board implements a subsistence priority for rural residents as provided by Title VIII of ANILCA. In providing this priority, the Federal Board may, when necessary, preempt State harvest regulations for fish or wildlife on Federal lands and waters.
This adjustment is necessary because of the need to protect a declining moose population in a portion of Unit 22. This action is authorized and in accordance with 50 CFR 100.19(d-e) and 36 CFR 242.19(d-e).
In 2003 recruitment surveys were completed by ADF&G and BLM in the Golsovia River drainage and on the main stems of the Unalakleet, Shaktoolik and Ungalik river drainages for comparison to similar Unit 22(A) surveys completed in 2000. In all drainages surveyed, except the Golsovia, considerably fewer moose were seen in 2003 than in 2000. This information points to a substantial decline in moose numbers in Unit 22(A) especially the population north of the Golsovia River. Current Federal regulations provide opportunity to harvest bull moose in the affected area December 1 through January 31. This Board action closes the moose season in a portion of Unit 22(A) north of the Golsovia River drainage, closes the winter season in the remainder of Unit 22(A) at the end of December, and changes the harvest limit in remainder of Unit 22(A) to antlered bulls only. ADF&G has executed an Emergency Order for a similar adjustment of the State moose season on private lands in response to the ongoing population declines.
The Board finds that additional public notice and comment requirements under the Administrative Procedure Act (APA) for this adjustment is impracticable, unnecessary, and contrary to the public interest. Lack of appropriate and immediate measures could seriously affect the continued viability of wildlife populations, adversely impact subsistence opportunities for rural Alaskans, and would generally fail to serve the overall public interest. Therefore, the Board finds good cause pursuant to 5 U.S.C. 553(b)(3)(B) to waive additional public notice and comment procedures prior to implementation of this action and pursuant to 5 U.S.C. 553(d)(3) to make this rule effective as indicated in the
A Final Environmental Impact Statement (FEIS) was published on February 28, 1992, and a Record of Decision on Subsistence Management for Federal Public Lands in Alaska (ROD) was signed April 6, 1992. The final rule for Subsistence Management Regulations for Public Lands in Alaska, Subparts A, B, and C (57 FR 22940-22964, published May 29, 1992) implemented the Federal Subsistence Management Program and included a framework for an annual cycle for subsistence hunting and fishing regulations. A final rule that redefined the jurisdiction of the Federal Subsistence Management Program to include waters subject to the subsistence priority was published on January 8, 1999, (64 FR 1276.)
The intent of all Federal subsistence regulations is to accord subsistence uses of fish and wildlife on public lands a priority over the taking of fish and wildlife on such lands for other purposes, unless restriction is necessary to conserve healthy fish and wildlife populations. A Section 810 analysis was completed as part of the FEIS process. The final Section 810 analysis determination appeared in the April 6, 1992, ROD which concluded that the Federal Subsistence Management Program, under Alternative IV with an annual process for setting hunting and fishing regulations, may have some local impacts on subsistence uses, but the program is not likely to significantly restrict subsistence uses.
The adjustment and emergency closure do not contain information collection requirements subject to Office of Management and Budget (OMB) approval under the Paperwork Reduction Act of 1995.
The adjustments have been exempted from OMB review under Executive Order 12866.
The Regulatory Flexibility Act of 1980 (5 U.S.C. 601
Title VIII of ANILCA requires the Secretaries to administer a subsistence preference on public lands. The scope of this program is limited by definition to certain public lands. Likewise, the adjustments have no potential takings of private property implications as defined by Executive Order 12630.
The Service has determined and certifies pursuant to the Unfunded Mandates Reform Act, 2 U.S.C. 1502
The Service has determined that the adjustments meet the applicable standards provided in Sections 3(a) and 3(b)(2) of Executive Order 12988, regarding civil justice reform.
In accordance with Executive Order 13132, the adjustments do not have sufficient federalism implications to
In accordance with the President's memorandum of April 29, 1994, “Government-to-Government Relations with Native American Tribal Governments” (59 FR 22951), Executive Order 13175, and 512 DM 2, we have evaluated possible effects on Federally recognized Indian tribes and have determined that there are no effects. The Bureau of Indian Affairs is a participating agency in this rulemaking.
On May 18, 2001, the President issued Executive Order 13211 on regulations that significantly affect energy supply, distribution, or use. This Executive Order requires agencies to prepare Statements of Energy Effects when undertaking certain actions. As these actions are not expected to significantly affect energy supply, distribution, or use, they are not significant energy actions and no Statement of Energy Effects is required.
William Knauer drafted this document under the guidance of Thomas H. Boyd, of the Office of Subsistence Management, Alaska Regional Office, U.S. Fish and Wildlife Service, Anchorage, Alaska. Taylor Brelsford, Alaska State Office, Bureau of Land Management; Greg Bos, Alaska Regional Office, U.S. Fish and Wildlife Service; Sandy Rabinowitch, Alaska Regional Office, National Park Service; Warren Eastland, Alaska Regional Office, Bureau of Indian Affairs; and Steve Kessler, USDA-Forest Service, provided additional guidance.
16 U.S.C. 3, 472, 551, 668dd, 3101-3126; 18 U.S.C. 3551-3586; 43 U.S.C. 1733.
Department of Veterans Affairs.
Final rule.
This document amends the Department of Veterans Affairs (VA) medical regulations concerning “reasonable charges” for medical care or services provided or furnished by VA to a veteran:
• For a nonservice-connected disability for which the veteran is entitled to care (or the payment of expenses of care) under a health plan contract;
• For a nonservice-connected disability incurred incident to the veteran's employment and covered under a worker's compensation law or plan that provides reimbursement or indemnification for such care and services; or
• For a nonservice-connected disability incurred as a result of a motor vehicle accident in a State that requires automobile accident reparations insurance.
The regulations contain methodologies designed to establish VA charges that replicate, insofar as possible, the 80th percentile of community charges, adjusted to the market areas in which VA facilities are located, and trended forward to the time period during which the charges will be used. This document amends the regulations regarding VA's reasonable charges methodologies for the following purposes: To establish charges for medical care, procedures, services, durable medical equipment (DME), drugs, injectables, medical items, and supplies for which we previously did not have charges; to replace certain charges previously based on VA costs with charges based on community charges; to establish separate charges for medical care, procedures, services, DME, drugs, injectables, medical items, and supplies whose charges were previously combined with other charges; to bring our charge structures and associated billing practices closer to industry standard charge structures and billing practices; and to provide certain clarifications.
This final rule is effective December 19, 2003.
Stephanie Mardon, Chief Business Office (168), Veterans Health Administration, Department of Veterans Affairs, 810 Vermont Avenue, NW., Washington, DC 20420, (202) 254-0362. (This is not a toll free number.)
In a proposed rule published in the
The comment focused on the use of the term “medically directed” as it applies to VA charges for anesthesia services. The commenter pointed out that under the Medicare program, the term “medically directed” has specific meaning having to do with Medicare payments to anesthesiologists for providing certain services. The commenter also pointed out that Medicare does not require that Certified Registered Nurse Anesthetists (CRNAs) be medically directed by anesthesiologists while providing anesthesia services. The commenter stated that Medicare and other primary insurers recognize the terms “personally performed” and “non-medically directed,” and recommended that these terms be used in the VA regulation. We appreciate this information, and we have revised paragraph (g) of the regulation to incorporate the recommended language.
The commenter also recommended that VA establish an “Anesthesia Reimbursement Working Group” to advise VA regarding methodology for determining professional charges and values for anesthesia services. Our response to this recommendation is that we believe our current methodology for determining professional charges and values for anesthesia services is appropriate, and that establishing the indicated working group is not necessary at this time.
In the proposed rule, we identified the Internet site of the Veterans Health Administration Chief Business Office as
In the proposed rule, we defined “geographic area” to mean “a three-digit ZIP Code area.” We are now adding a clarification to that definition to indicate that the three-digit ZIP Codes referred to are the first three digits of standard U.S. Postal Service ZIP Codes.
Based on the rationale set forth in the proposed rule and in this document, we now adopt the proposed rule as a final rule with the minor revisions, clarifications, and minor technical changes indicated.
This document supercedes our previous interim final rule with comment period, “Reasonable Charges for Medical Care or Services; 2003 Update,” published in the
The Unfunded Mandates Reform Act requires, at 2 U.S.C. 1532, that agencies prepare an assessment of anticipated costs and benefits before developing any rule that may result in an expenditure by State, local, or tribal governments, in the aggregate, or by the private sector, of $100 million or more in any given year. This rule will have no such effect on State, local, or tribal governments, or the private sector.
This document contains provisions at 38 CFR 17.101(a)(4) constituting a collection of information under the Paperwork Reduction Act (44 U.S.C. 3501-3521). The Office of Management and Budget (OMB) has approved the information collection requirements for § 17.101(a)(4) under OMB control number 2900-0606.
The Secretary hereby certifies that this rule does not have a significant economic impact on a substantial number of small entities as they are defined in the Regulatory Flexibility Act, 5 U.S.C. 601-612. This rule affects mainly large insurance companies, and where small entities are involved, they are not impacted significantly since most of their business is not with VA. Accordingly, pursuant to 5 U.S.C. 605(b), this rule is exempt from the initial and final regulatory flexibility analysis requirements of sections 603 and 604.
The Catalog of Federal Domestic Assistance numbers for the programs affected by this rule are 64.005, 64.007, 64.008, 64.009, 64.010, 64.011, 64.012, 64.013, 64.014, 64.015, 64.016, 64.018, 64.019, 64.022, and 64.025.
Administrative practice and procedure, Alcohol abuse, Alcoholism, Claims, Day care, Dental health, Drug abuse, Foreign relations, Government contracts, Grant programs-health, Grant programs-veterans, Health care, Health facilities, Health professions, Health records, Homeless, Medical and dental schools, Medical devices, Medical research, Mental health programs, Nursing homes, Philippines, Reporting and recordkeeping requirements, Scholarships and fellowships, Travel and transportation expenses, Veterans.
38 U.S.C. 501, 1721, unless otherwise noted.
(a)(1)
(i) For a nonservice-connected disability for which the veteran is entitled to care (or the payment of expenses of care) under a health plan contract;
(ii) For a nonservice-connected disability incurred incident to the veteran's employment and covered under a worker's compensation law or plan that provides reimbursement or indemnification for such care and services; or
(iii) For a nonservice-connected disability incurred as a result of a motor vehicle accident in a State that requires automobile accident reparations insurance.
(2)
(3)
(4)
(5)
MDR means Medical Data Research, a medical charge database published by Ingenix, Inc.
Non-provider-based means a VA health care entity (such as a small VA community-based outpatient clinic) that functions as the equivalent of a doctor's office or for other reasons does not meet CMS provider-based criteria, and, therefore, is not entitled to bill outpatient facility charges.
(6)
(7)
(8)
(i) In the event that a new identifier (DRG, CPT code, or HCPCS code) is assigned to a particular type or item of medical care or service, then until such time as VA establishes a charge for the new identifier, VA's charge for such care or service will be VA's most recent established charge for the identifier previously assigned to that type or item of medical care or service; otherwise,
(ii) In the event that the medical care or service is provided or furnished at VA expense by a non-VA provider, then VA's charge for such care or service will be the amount VA paid to the non-VA provider; otherwise,
(iii) VA's charges for prosthetic devices and durable medical equipment will be VA's actual cost; otherwise,
(iv) If a Medicare allowed charge amount can be determined for the care or service, then VA's charge will be the Medicare participating provider allowed charge amount geographically adjusted using the applicable geographic area adjustment factors determined pursuant to this section; otherwise,
(v) If a charge cannot be established under paragraphs (a)(8)(i) through (iv) of this section, then VA will not charge for the care or service under this section.
(b)
(1)
(i)
(ii)
(iii)
(2)
(i)
(ii)
(iii)
(iv)
(3)
(c)
(1)
(2)
(i)
(ii)
(3)
(d)
(1)
(2)
(i)
(ii)
(3)
(e)
(1)
(i) Outpatient departments and clinics at VA medical centers;
(ii) Other VA provider-based entities; and
(iii) VA non-provider-based entities, for procedures and tests for which no corresponding professional charge is established under the provisions of paragraph (f) of this section.
(2)
(3)
(i)
(A)
(B)
(C)
(D)
(
(
(
(
(
(
(
(
(
(
(ii)
(iii)
(4)
(5)
(f)
(1)
(2)(i)
(A)
(B)
(ii)
(iii)
(iv)
(3)
(i)
(ii)
(iii)
(4)
(5)
(i)
(ii)
(A) Nurse practitioner: 85 percent.
(B) Clinical nurse specialist: 85 percent.
(C) Physician Assistant: 85 percent.
(D) Clinical psychologist: 80 percent.
(E) Clinical social worker: 75 percent.
(F) Dietitian: 75 percent.
(G) Clinical pharmacist: 80 percent.
(g)
(1)
(2)
(3)
(i)
(ii)
(iii)
(h)
(1)
(2)
(i)
(ii)
(iii)
(3)
(i)
(1)
(2)(i)
(ii)
(iii)
(iv)
(3)
(i)
(ii)
(iii)
(j)
(1)
(2)(i)
(ii)
(3)
(k)
(1)
(2)(i)
(ii)
(iii)
(3)
(l)
(1)
(2)
(i)
(A) Chemotherapy Drugs: Ingenix/St. Anthony's RBRVS Practice Expense RVUs.
(B) Other Drugs: Ingenix/St. Anthony's RBRVS Practice Expense RVUs.
(C) DME—Hospital Beds: Medicare DME Fee Schedule amounts.
(D) DME—Medical/Surgical Supplies: Medicare DME Fee Schedule amounts.
(E) DME—Orthotic Devices: Medicare DME Fee Schedule amounts.
(F) DME—Oxygen and Supplies: Medicare DME Fee Schedule amounts.
(G) DME—Wheelchairs: Medicare DME Fee Schedule amounts.
(H) Other DME: Medicare DME Fee Schedule amounts.
(I) Enteral/Parenteral Supplies: Medicare Parenteral and Enteral Nutrition Fee Schedule amounts.
(J) Surgical Dressings and Supplies: Medicare DME Fee Schedule amounts.
(K) Vision Items—Other Than Lenses: Medicare DME Fee Schedule amounts.
(L) Vision Items—Lenses: Medicare DME Fee Schedule amounts.
(M) Hearing Items: Ingenix/St. Anthony's RBRVS Practice Expense RVUs.
(ii)
(iii)
(iv)
(3)
(i)
(ii)
(4)
(5)
(i)
(A) Chemotherapy Drugs: Drugs.
(B) Other Drugs: Drugs.
(C) DME—Hospital Beds: DME/supplies.
(D) DME—Medical/Surgical Supplies: DME/supplies.
(E) DME—Orthotic Devices: DME/supplies.
(F) DME—Oxygen and Supplies: DME/supplies.
(G) DME—Wheelchairs: DME/supplies.
(H) Other DME: DME/supplies.
(I) Enteral/Parenteral Supplies: DME/supplies.
(J) Surgical Dressings and Supplies: DME/supplies.
(K) Vision Items—Other Than Lenses: DME/supplies.
(L) Vision Items—Lenses: DME/supplies.
(M) Hearing Items: DME/supplies.
(ii)
(iii)
(m)
Environmental Protection Agency (EPA).
Direct final rule.
EPA is amending certain regulations to reflect the current delegation status of national emission standards for hazardous air pollutants in California. Several local air pollution control agencies in California have requested delegation of these Federal standards as they apply to non-major sources. The purpose of this action is to approve those delegation requests and update the listing in the Code of Federal Regulations.
This rule is effective on February 17, 2004, without further notice, unless EPA receives relevant adverse comments by January 20, 2004. If EPA receives such comments, then it will publish a timely withdrawal in the
Send comments to Andrew Steckel, Rulemaking Office Chief (AIR-4), U.S. Environmental Protection Agency, Region IX, 75 Hawthorne Street, San Francisco, CA 94105-3901, or e-mail to
Mae Wang, Rulemaking Office (AIR-4), Air Division, U.S. Environmental Protection Agency, Region IX, 75 Hawthorne Street, San Francisco, California 94105-3901, (415) 947-4124,
Section 112(l) of the Clean Air Act, as amended in 1990 (CAA), authorizes EPA to delegate to State or local air pollution control agencies the authority to implement and enforce the standards set out in title 40 of the Code of Federal Regulations (40 CFR), part 63, National Emission Standards for Hazardous Air Pollutants for Source Categories. On November 26, 1993, EPA promulgated regulations, codified at 40 CFR part 63, subpart E (hereinafter referred to as “subpart E”), establishing procedures for EPA's approval of State rules or programs under section 112(l) (
Any request for approval under CAA section 112(l) must meet the approval criteria in 112(l)(5) and subpart E. To streamline the approval process for future applications, a State or local agency may submit a one-time demonstration that it has adequate authorities and resources to implement and enforce any CAA section 112 standards. If such demonstration is approved, then the State or local agency would no longer need to resubmit a demonstration of these same authorities and resources for every subsequent request for delegation of CAA section 112 standards. However, EPA maintains the authority to withdraw its approval if the State does not adequately implement or enforce an approved rule or program. On July 6, 1995, the California Air Resources Board (CARB) submitted a demonstration that California has adequate authorities and resources to implement and enforce Clean Air Act section 112 programs and rules. This demonstration was approved on May 21, 1996 (61 FR 25397).
While each local air pollution control agency in California (district) has an approved program for receiving delegation of any CAA section 112 standards as promulgated, California districts currently have delegation only for standards that apply to major sources. As part of EPA's approval of each district's Title V operating permits program, districts received delegation of unchanged federal section 112 standards for Title V sources. This delegation did not extend to sources not covered by the California Title V program submittals. Therefore, California needed to make a separate voluntary request for delegation of any section 112 standards that apply to sources not covered by district Title V programs (area sources).
On October 6, 2003, CARB submitted on behalf of nine California districts a request for delegation of all Federal section 112 standards that apply to area sources, with the exception of the dry cleaning and chromium electroplating standards for which State or local rules have already been approved (
CARB's October 6, 2003, request was submitted on behalf of the following nine districts in California: Antelope Valley Air Quality Management District, Butte County Air Quality Management District, Kern County Air Pollution Control District, Mendocino County Air Quality Management District, Mojave Desert Air Quality Management District, Monterey Bay Unified Air Pollution Control District, San Luis Obispo County Air Pollution Control District, Ventura County Air Pollution Control
In the future, other districts may choose to make similar delegation requests through CARB. EPA Region IX may grant approvals of such requests by means of a letter. These delegation approvals would then be effective upon the date of the approval letter and EPA Region IX would later publish a
With the exception of the dry cleaning and chromium electroplating standards, EPA is hereby granting delegation of unchanged Federal section 112 area source standards to the following districts in California: Antelope Valley Air Quality Management District, Butte County Air Quality Management District, Kern County Air Pollution Control District, Mendocino County Air Quality Management District, Mojave Desert Air Quality Management District, Monterey Bay Unified Air Pollution Control District, San Luis Obispo County Air Pollution Control District, Ventura County Air Pollution Control District, and Yolo-Solano Air Quality Management District. Upon the effective date of this action, these nine districts will have authority to implement and enforce existing area source standards unchanged as promulgated by EPA. Each of these districts will also receive delegation of any future area source standards or revisions 90 days after promulgation of these standards or revisions, unless the district chooses to decline delegation of a particular future standard by notifying the EPA Region IX office in writing.
Today's action also serves to notify the public that future requests for delegation of CAA section 112 area source standards from other California districts may be approved by letter, and these delegations will be later codified into the CFR.
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). Delegations of authority to implement and enforce unchanged Federal standards under section 112(l) of the Clean Air Act do not create any new requirements but simply allow the State to administer requirements that have been or will be separately promulgated. Accordingly, the Administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
This rule also does not have tribal implications because it will not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal government and Indian tribes, or on the distribution of power and responsibilities between the Federal government and Indian tribes, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). This action also does not have federalism implications because it does not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). This action does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. This rule also is not subject to Executive Order 13045, “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), because it is not economically significant.
In reviewing State delegation submissions, our role is to approve State choices, provided that they meet the criteria of the CAA. In this context, in the absence of a prior existing requirement for the State to use voluntary consensus standards (VCS), we have no authority to disapprove State submissions for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews State submissions, to use VCS in place of State submissions that otherwise satisfy the provisions of the CAA. 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 CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by February 17, 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, Administrative practice and procedure, Air pollution control, Hazardous substances, Intergovernmental relations,
This action is issued under the authority of section 112 of the Clean Air Act, as amended, 42 U.S.C. 7412.
42 U.S.C. 7401,
(a) * * *
(5) * * *
(i)(A) California major sources. Except as described in paragraph (ii) below, each local air pollution control agency in California has delegation for national emission standards promulgated in this part as they apply to major sources.
(B) California area sources. Except as described in paragraph (ii), the local agencies listed below also have delegation for national emission standards promulgated in this part as they apply to area sources:
(ii) California approvals other than straight delegation.
Affected sources must comply with the
Federal Communications Commission.
Final rule.
The Audio Division, at the request of Saga Communications of Tuckessee, LLC, licensee of Station WJOI-FM, reallots Channel 232A from Springfield, Tennessee to Oak Grove, Kentucky, as the community's first local aural transmission service, and modifies Station WJOI-FM license accordingly. Channel 232A can be allotted to Oak Grove, in compliance with the minimum distance separation requirement of the Commission's rules, provided there is a site restriction 9.3 kilometers (5.8 miles) east of the community. The reference coordinates for Channel 232A at Oak Grove are 36-38-23 NL and 87-20-39 WL. This document also dismisses a counterproposal filed by Saga Communications of Tuckessee, LLC that requested the reallotment of Station WJOI-FM, Channel 232A from Springfield, Tennessee to Trenton, Kentucky in lieu of Oak Grove, Kentucky.
Effective January 23, 2004.
Federal Communications Commission, 445 Twelfth Street, SW., Washington, DC 20554.
Rolanda F. Smith, Media Bureau, (202) 418-2180.
This is a summary of the Commission's
Radio, Radio broadcasting.
47 U.S.C. 154, 303, 334 and 336.
Federal Communications Commission.
Final rule.
The Commission, at the request of Entercom Boston License, L.L.C., reallots Channel 297B from Worcester to Westborough, Massachusetts, as the community's first local aural transmission service and modifies Station WAAF(FM)'s license accordingly.
Effective January 23, 2004.
Federal Communications Commission, Washington, DC 20554.
Sharon P. McDonald, Media Bureau, (202) 418-2180.
This is a synopsis of the Commission's Report and Order, MM Docket No. 02-49, adopted November 12, 2003, and released November 14, 2003. The full text of this Commission decision is available for inspection and copying during normal business hours in the FCC Reference Information Center (Room CY-A257), 445 12th Street, SW., Washington, DC. The complete text of this decision may also be purchased from the Commission's copy contractor, Qualex International, Portals II, 445 12th Street, SW., Room CY-B402, Washington, DC 20054.
Provisions of the Regulatory Flexibility Act of 1980 do not apply to this proceeding.
Members of the public should note that from the time a notice of proposed rule making is issued until the matter is no longer subject to Commission consideration or court review, all
For information regarding proper filing procedures for comments,
Radio, Radio broadcasting.
47 U.S.C. 54, 303, 334 and 336.
Federal Communications Commission.
Final rule.
In response to a
Effective January 23, 2004.
Victoria M. McCauley, Media Bureau, (202) 418-2180.
This is a synopsis of the Commission's Report and Order, MB Docket No. 03-22, adopted December 3, 2003, and released December 8, 2003. The full text of this Commission decision is available for inspection and copying during normal business hours in the FCC Reference Center (Room 239), 445 12th Street, SW., Washington, DC. This document may also be purchased from the Commission's duplicating contractor, Qualex International, Portals II, 445 12th Street, SW., Room CY-B402, Washington, DC, 20554, telephone 202-863-2893, facsimile 202-863-2898, or via e-mail
Radio, Radio broadcasting.
47 U.S.C. 154, 303, 334, and 336.
Office of Energy Policy and New Uses, USDA.
Notice of proposed rulemaking.
The U.S. Department of Agriculture (USDA) is proposing to establish guidelines for designating items made from biobased products that would be afforded Federal procurement preference, as required under Section 9002 of the Farm Security and Rural Investment Act of 2002 (FSRIA).
Submit comments on or before February 17, 2004.
You may submit comments by postal mail/commercial delivery or by e-mail. If you use postal mail/commercial delivery, please send your comments to: Marvin Duncan, USDA, Office of the Chief Economist, Office of Energy Policy and New Uses, Room 361, 300 Seventh Street SW., Washington, DC 20024. If you wish to use e-mail, go to the Web site
Marvin Duncan by e-mail at
These guidelines are proposed under the authority of section 9002 of the Farm Security and Rural Investment Act of 2002 (FSRIA), 7 U.S.C. 8102 (referred to in this document as “section 9002”).
Section 9002 provides for preferred procurement of biobased products by Federal agencies. Federal agencies are required to purchase biobased products, as defined in regulations to implement the statute, for all items costing over $10,000 or when the quantities of functionally equivalent items purchased over the preceding fiscal year equaled $10,000 or more. Procurements by a Federal agency subject to section 6002 of the Solid Waste Disposal Act (42 U.S.C. 6962) are not subject to the requirements under section 9002 to the extent that the requirements of the two programs are inconsistent. Federal agencies must procure biobased products unless the items are not reasonably available, fail to meet applicable performance standards, or are available only at an unreasonable price.
The Office of Federal Procurement Policy (OFPP) and the USDA will work in cooperation to implement the requirements of section 9002. In this document, we are proposing to establish guidelines for Federal agencies to follow in the procurement of items designated for preferred procurement. These guidelines also address the statutory requirement that Federal agencies have in place, within 1 year of the publication of final guidelines, a procurement program that assures items composed of biobased products will be purchased to the maximum extent practical. Those procurement programs would have to contain a biobased products preference program, an agency promotion program, and provisions for the annual review and monitoring of an agency's procurement program. USDA consulted with the Environmental Protection Agency (EPA), the General Services Administration (GSA), and the Department of Commerce National Institute of Standards and Technology (NIST) in preparing these proposed guidelines.
In designating items (generic groupings of specific products such as crankcase oils or synthetic fibers), the Secretary will consider the availability of such items and the economic and technological feasibility of using such items, including life cycle costs. Federal agencies would be required to purchase products contained within an item only after that item has been designated for preferred procurement. In addition, the Secretary would provide information to Federal agencies on the availability, relative price, performance, and environmental and public health benefits of such items and, where appropriate, would recommend the level of biobased content to be contained in the procured product. Manufacturers and vendors would be able to offer their products to Federal agencies for preferred procurement under the proposed program when their commercial products fell within the definition of an item that had been designated for preferred procurement and the biobased content of the products met the standards set forth in the guidelines.
Paragraph (h) of section 9002 provides that the Secretary, in consultation with the Administrator of the Environmental Protection Agency (EPA), shall establish a voluntary program authorizing producers of biobased products to use a “U.S.D.A. Certified Biobased Product” label. In a subsequent rulemaking, we intend to establish that voluntary program and provide eligibility criteria and guidelines for the use of the “U.S.D.A. Certified Biobased Product” label.
Paragraph (j) of section 9002 provides funds to the Secretary to support the testing of biobased products to carry out the provisions of the section.
The legislative history of Title IX of FSRIA suggests that Congress had in mind three primary objectives that would apply to section 9002. The first objective is to improve demand for biobased products. This would have a number of salutary effects, one of which would be to increase domestic demand for many agricultural commodities that can serve as feedstocks for production of biobased products. Another important effect would be the substitution of products with a more benign or beneficial environmental impact, as compared to the use of fossil energy based products.
As a second objective, Congress wants to spur the development of value-added agricultural processing and manufacturing in rural communities.
The third objective is to enhance the Nation's energy security by substituting domestically produced biobased products for fossil energy-based products derived from imported oil and natural gas. The growing dependence of the Nation on imported oil and natural gas, along with heightened concerns about political instability in some of the oil rich regions in the world, have led the Congress to place a higher priority on domestically produced energy and biobased products.
In 1999, as required by section 504 of Executive Order 13101, “Greening the Government through Waste Prevention, Recycling, and Federal Acquisition,” the U.S. Department of Agriculture (USDA) Biobased Products Coordination Council (now called the Biobased Products and Bioenergy Coordination Council) published a notice in the
The requirements of section 9002 differ from those of Executive Order 13101. For example, the Executive Order and section 9002 use slightly different definitions of the term “biobased product.” Another distinction is that the Executive Order encourages, but does not require, procurement of biobased products. Section 9002 establishes a mandatory procurement preference, with limited exceptions, for designated items. The Executive Order envisions a list of specific products to be promulgated, whereas section 9002 requires guidelines designating “items which are or can be produced with biobased products” and recommended procurement practices for both biobased products and items containing biobased products.
Under section 9002, the term “biobased products” refers to “a product determined by the Secretary to be a commercial or industrial product (other than food or feed) that is composed, in whole or in significant part, of biological products or renewable domestic agricultural materials (including plant, animal, and marine materials) or forestry materials.” The term “item” refers to a subcategory or grouping of similar products containing biobased content. An item is populated by commercial and industrial products available for purchase by Federal agencies. An example of an item (or subcategory) under the “Lubricants and functional fluids category” discussed later in this document is hydraulic, power steering, and transmission fluids. Under Executive Order 13101, the term “biobased product” was used to mean what the term “item” means under section 9002.
USDA no longer intends to promulgate a list of biobased products as envisioned in Executive Order 13101. Rather, USDA will designate items that qualify for preferred procurement as required by section 9002.
The statutorily required elements of the section 9002 guidelines further distinguish the guidelines from the Executive Order list. Despite these differences, comments received in response to the 1999 proposed procedures to implement the biobased products list were taken into consideration when preparing proposed product categories and selection criteria for these proposed guidelines.
For purposes of identifying a Federal agency in implementing section 9002, we have chosen to use the definition of “Federal agency” found in the Federal Acquisition Regulation (48 CFR 2.101),
Once USDA designates an item, responsibility for complying with section 9002 rests with Federal agencies. Responsibilities and implementation strategies of USDA, Federal agencies, the Office of Federal Procurement Policy, and manufacturers and vendors, respectively, are outlined briefly below in section IV.
This program is modeled on the EPA
The legislative history of section 9002 suggests that Congress intended to use this program to speed the development of new markets for biobased products, rather than to support mature markets for products. Hence, USDA has crafted this program to focus on new market development. It is USDA's intention to exclude from this program biobased products it concludes have mature markets. USDA proposes to use a number of filters or tests to exclude products in what it defines as mature markets. If a product falls within an excluded group of products in any one filter, it is excluded from consideration under the program to implement section 9002. To be eligible for preferred procurement under section 9002, a product must be found eligible under each of these filters or tests. In the first test, silk, cotton and wool garments, household items, and industrial or commercial products are excluded, unless made with a substantial amount of a biobased plastic product. Also excluded are wood products made from traditionally harvested forest materials.
Biobased products marketed only in regional or in single specialized markets, rather than national markets, are not considered to be in mature markets for purposes of this program. Finally, products developed, or that have made significant market penetration, more recently than 1972 also are not considered to be in mature markets for purposes of this program. The first of several oil supply and price shocks, which occurred in the United States beginning at about 1972, was an
To carry out the requirements of section 9002, USDA will:
• Propose guidelines, after consultation with the EPA, GSA, and NIST, for the use of Federal agencies that indicate which items are or can be produced with biobased products and whose procurement by procuring agencies would carry out the objectives of this program;
• Determine in the guidelines, as appropriate, the minimum level of biobased material to be contained in a designated item;
• Propose items to be available for designation under the guidelines and explain the factors to be considered in their designation (availability, economic and technological feasibility, and life cycle costs);
• Identify in the guidelines the information about availability, relative price, performance, and environmental and public health benefits that will be provided to Federal agencies on items designated for preferred procurement; and
• Set forth recommended practices for the procurement of biobased products and designated items.
Following the issuance of final guidelines and the designation of items, Federal agencies would:
• Give a procurement preference, with certain exceptions, to designated items with the highest percentage of biobased products practicable, consistent with the guidelines and with maintaining sufficient competition;
• Incorporate in procurement specifications biobased item preferences consistent with the guidelines and the requirements of section 9002; and
• Establish an agency affirmative procurement program that includes a biobased products preference program, an agency promotion program to promote the preference program, and an annual review to monitor the effectiveness of the agency's procurement program.
Following the issuance of final guidelines and subsequent regulatory action to designate items eligible for preferred procurement, the OFPP would:
• Work in cooperation with USDA to implement the biobased product procurement preference program;
• Coordinate the biobased products procurement policy with other Federal procurement policies; and
• Report to Congress every 2 years on the actions taken by Federal agencies in the implementation of the biobased product procurement program.
Following the issuance of final guidelines and designation of items eligible for preferred procurement, firms desiring to participate in the program would:
• Determine whether products they intend to offer for Federal agency procurement qualify under the guidelines and fall within items designated by USDA for preferred procurement;
• Certify the percentage of biobased content in the commercial or industrial products that fall within designated items and are proposed by the manufacturer or vendor to be used in the performance of a contract; and
• When offering biobased products from an item that has been designated by the Secretary for preferred procurement by Federal agencies, certify that the biobased products to be used in the performance of the contract will comply with the applicable specifications or other contractual requirements.
The proposed guidelines would be contained in a new 7 CFR part 2902, “Guidelines for Designating Biobased Products for Federal Procurement.” The new part would be divided into two subparts, “Subpart A—General,” and “Subpart B—Biobased Product Eligibility for Federal Preference.” Subpart A would address the purpose and scope of the guidelines and their applicability, provide guidance on product availability and procurement, define terms used in the part, and address affirmative procurement programs and USDA funding for testing. Subpart B would address communicating information on qualifying biobased products and characteristics required for obtaining designated item status, and would set out the initial categories of designated items and minimum content. The proposed guidelines are discussed in detail below.
This section would introduce the guidelines by explaining that their purpose is to assist Federal agencies in complying with the requirements of section 9002 as they apply to the procurement of designated items. This section would also note that items designated in the guidelines are those items that are or can be produced with biobased products and whose procurement by Federal agencies will carry out the objectives of section 9002.
The procurement preference applies to all Federal agencies (as defined in this document) with respect to all procurement actions where the purchase price of the item exceeds $10,000 or where the quantity of such items (or of functionally equivalent items) purchased during the preceding fiscal year cost a total of $10,000 or more. Unlike the EPA program for procurement of items with recovered materials, section 9002 affords a procurement preference for biobased products only for procurement by Federal agencies. Thus, unlike RCRA (42 U.S.C. 6903(17)), the guidelines do not apply to State and local agencies using appropriated Federal funds to procure qualifying biobased items, and persons contracting with such agencies with respect to work performed under such contracts. USDA proposes to apply the $10,000 threshold as applicable to Federal agencies as a whole, rather than to agency subgroups such as regional offices or subagencies of a larger department or agency.
As noted previously, the proposed guidelines would not apply to any procurement by any Federal agency that is subject to the regulations issued by the EPA under section 6002 of the Solid Waste Disposal Act (40 CFR part 247), to the extent that the requirements of the guidelines are inconsistent with those regulations. Further, as provided by paragraph (i) of section 9002, these guidelines do not apply to the procurement of motor vehicle fuels or electricity.
Section 9002 requires Federal agencies to purchase designated biobased items unless the agency determines the items to be procured are not readily available within a reasonable
The proposed guidelines would provide that, prior to designating items for preferred procurement under the section 9002 program, USDA would consider a number of factors. These factors are availability of the items and the economic feasibility and technological feasibility of using such items, including life cycle costs. Moreover, when designating items for preferred procurement under the program, USDA would provide the following information to Federal agencies on the items designated: availability, relative price, performance, and environmental and public health benefits of using the designated items.
In order to accomplish these requirements, USDA plans to initially rely, in part, on the information developed in a study by Concurrent Technologies Corporation (CTC) to address the statutory requirement for information on item availability. This study was conducted by CTC under a contract with the USDA Agricultural Research Service (ARS) as one of the activities undertaken by ARS in order to fulfill Executive Order 13101's requirement for the development of information on the market availability of biobased items. The CTC study can be viewed on the Web site
Information on economic and technological feasibility of using biobased items and life cycle costs will be sought from industry. Because of the heterogeneity among commercial products with biobased content within any grouping of biobased items, and the heterogeneity of characteristics across item groupings, information will be sought on individual commercial products included within each type of item. Once this information is available on a sufficient number of such products within an item, the information will be evaluated and extrapolated to the generic item level and, if determined to be adequate to meet the requirements of section 9002, the item will be designated for preferred procurement.
Information on relative price, performance, and environmental and public health benefits that the Secretary is required to provide to Federal agencies will be gathered from manufacturers and vendors at the individual product level. This information, to be of maximum value to Federal agencies in making procurement decisions, must be considered at an individual product level.
USDA proposes to gather the above discussed information from industry using an Internet Web site to which manufacturers and vendors will be invited to voluntarily provide information, including availability on the commercial products with biobased content that they offer to Federal agencies. That Web site will provide business contact information, selected test information, and the information about the offered commercial products noted in this discussion. It will also group such information by item and indicate whether the item has been designated for preferred procurement under the section 9002 program. No items will be designated for preferred procurement until adequate information has been obtained from manufacturers and vendors to enable the Secretary to both designate the item and provide Federal agencies the required information about the item. USDA also believes that making the above noted information available on an individual commercial product basis on USDA's informational Web site will provide the greatest help to Federal agencies in making decisions on the purchase of biobased products.
USDA envisions the voluntary, web-based information system as the principal clearinghouse of information on manufacturer and vendor contact information, currently available products, and relevant product characteristics.
A standardized format with interactive capabilities will permit manufacturers and vendors to enter information into the Web site. The information is not expected to be either confidential or proprietary, but will instead be information a business firm would provide prospective purchasers. Data placed on the Web site will be password protected and can only be changed by the submitting manufacturer or vendor or by USDA. Moreover, password protection can extend, if necessary, to making individual product information accessible only to Federal agencies, USDA, and to the firm providing the information. USDA will ask manufacturers and vendors to annually review data provided on the Web site and to purge inaccurate or out-of-date information. In addition, USDA will periodically audit the information displayed and, where questions arise, contact the manufacturer or vendor to verify, correct, or remove incorrect or out-of-date information.
Federal agency procurement officials are encouraged to access the website to gather information on commercially available products within the scope of designated items, as a means of facilitating the acquisition of designated items, in furtherance of the requirements of section 9002.
After discussions with the Office of Management and Budget (OMB), USDA also has agreed to develop a model procurement policy and program for designated items to support its own procurement practices. USDA intends to work with OFPP to develop outreach and education programs, based on the USDA model procurement policy, to assist other Federal agencies in complying with the requirements of this program.
USDA seeks comments on the kinds of contact and product information that should be made available on its web-based information system, as well as comments on the appropriate components of a model procurement program for biobased items.
Section 2902.4 would define the terms used in the proposed guidelines. The definition of
Section 2902.5 sets out the procurement requirements or expectations that would apply to Federal agencies. In most respects, the information in this section reflects the responsibilities and implementation strategies discussed previously in this document (
Biobased content on items procured should be maximized subject to additional considerations. Section 9002(c) requires, with certain exceptions discussed above, that Federal agencies, when making procurement decisions on items designated in the guidelines, give preference to items composed of the highest percentage of biobased products practicable, consistent with maintaining a satisfactory level of competition. These guidelines propose minimum content levels of biobased products in designated items. It is recognized that the highest percentage of biobased content may not always result in the best item for Federal agencies, since other characteristics, such as performance, may not, in all cases, be positively correlated with higher content. Therefore, Federal agencies should interpret the requirement to mean procuring items with the highest biobased content consistent with other desired attributes such as availability, price, and performance.
Performance of designated items is important. USDA believes that evidence of performance by a qualifying biobased item in its intended use will be a very important factor in Federal agencies' decisions to procure that item. In most circumstances, biobased items can be manufactured with a blend of components that enable them to meet required performance standards. In some circumstances, prior experience with product performance or observation of its widespread use elsewhere will be sufficient evidence of performance to cause Federal agencies to procure the qualifying biobased item. In most other cases, especially for new items in the marketplace or for certain users of high performance items in Federal agencies, more formal evidence of performance may be required. When Federal agencies require more formal performance related information for their procurement decision, USDA encourages these agencies to request this information from manufacturers or vendors of designated items, focusing on performance against ASTM, ISO, Federal or military specifications, or other industry performance standards.
It is also important to set minimum requirements for biobased content of items at levels which are low enough to allow items produced with biobased products to compete with fossil energy based products in performance and economics, using current technology. While the statute requires Federal agencies, when purchasing designated items, to give preference to those that have the highest percentage of biobased content, that requirement must be considered in the context of whether the product meets required performance standards for the application in which it will be used.
USDA has statutory requirements to meet in designating items for preferred procurement. Section 9002 requires USDA to designate items that are or can be made with biobased products. In making the designation, the Secretary is required to consider, at a minimum, the availability of such items and the economic and technological feasibility of using such items, including life cycle costs. In addition, section 9002 requires the Secretary to provide information on availability, relative price, performance, and environmental and public health benefits to Federal agencies. No designation of items will be made until the above noted requirements are met. Only upon publication of a final rule in the
USDA also will utilize the data entered by manufacturers and vendors on its Web site, on individual commercial products with biobased content, to develop information on availability, relative price, performance, and environmental and public health benefits that can be extrapolated to the generic item, the scope of which embraces those individual commercial products, prior to designating that item. This information will be made available to Federal agencies to satisfy the additional statutory information requirements (section 9002(e)(1)(C)) the Secretary is required to provide Federal agencies on designated items. Because the primary value of this information to Federal agencies is at the specific product level and in the ability to compare data across products within a designated item, USDA will encourage manufacturers and vendors to voluntarily post this product specific information on those products they are offering for preferred procurement.
USDA plans to rely on information from the previously discussed CTC study to determine the availability of items. USDA will evaluate information on relative price and performance of individual commercial products with biobased content, from the voluntary Web site, to develop the information on items and products the Secretary must consider in designating items and must make available to Federal agencies.
Information on environmental and public health benefits will be developed from voluntary information manufacturers and vendors provide on individual products. When voluntarily providing such information to USDA, this information must be based on a National Institute of Standards and Technology BEES (Building for Environmental and Economic Sustainability) analytical tool analysis of the product.
No designation of an item will be made by USDA until USDA has sufficient information to reasonably meet the information requirements the Secretary must address, as specified in the statute, and to provide the required information to Federal agencies about items designated in subsequent regulations. Based on the information considered, USDA will publish regulations in the
As explained above, section 9002 requires the Secretary to consider specific types of information in determining whether to designate an item under these guidelines. Also as explained above, section 9002 requires that the Secretary provide specific types of information to Federal agencies regarding designated items. As a means of obtaining some of the required information, section 9002(j) provides to the Secretary $1 million per year for each of the fiscal years 2002 through 2007 to support the testing of biobased products to carry out the provisions of the section. Section 9002(j) further provides that the Secretary, at her discretion, may “give priority to the testing of products for which private sector firms provide cost sharing for the testing.” 7 U.S.C. 8102(j)(2)(C).
For the first few years of this program, the Secretary is exercising her discretion to test products based on the USDA assessment of the best use of these funds to designate items most expeditiously under this program. USDA will work first to designate items in categories having the greatest likelihood of sale to Federal agencies. Additionally, should USDA obtain sufficient data from manufacturers' voluntary submissions or from other sources that very limited informational gaps exist to delay designation, USDA may target the use of these funds to fill in the limited data gaps to expedite designation of that item. USDA will enter into arrangements with entities capable of conducting tests to conduct tests of biobased content and BEES Analyses on
Once the program has achieved a critical mass of designated items, anticipated to occur within the next three years, USDA will exercise its discretion to make cost-sharing a more determinative factor in the selection of some products for testing. USDA will make some of the section 9002(j) funds available for testing of competitively-selected products for which private sector firms have offered cost sharing. USDA will make a public announcement to that effect at the time and solicit cost-sharing proposals. Paragraph 2902.7(b) sets forth how USDA proposes to exercise this discretion. USDA will consider cost-sharing proposals only for the BEES Analysis and performance testing of products. USDA does not intend to consider cost-sharing for testing to determine biobased content.
Cost sharing will be considered first for products of “small and emerging private business enterprises.” If funds remain to support further testing, a second tranche of applicants could be drawn from all other producers of biobased items. Proposals will be evaluated and assigned a priority rating. Priority ratings will be based on the following criteria:
• A maximum of 25 points will be awarded a proposal based on the market readiness.
• A maximum of 20 points will be awarded a proposal based on the potential size of the market for that product in Federal agencies.
• A maximum of 25 points will be awarded based on the financial need, for testing assistance, of the manufacturer or vendor.
• A maximum of 20 points will be awarded a proposal based on the product's prospective competitiveness in the market place.
• A maximum of 10 points will be awarded a proposal based on its likely benefit to the environment.
Projects will be funded in order of declining priority ratings (from highest to lowest) until available funds are committed. USDA could provide up to 50 percent of the cost of determining the life cycle costs and environmental and health effects using the NIST's BEES Analysis, up to a maximum of $5,000 of assistance per product. USDA could provide up to 50 percent of cost for performance testing, up to $100,000 of assistance per product for up to two performance tests (measures of performance) per product.
Pursuant to section 9002(j)(2)(B), USDA will enter into agreements with and provide the funds to entities that have the experience and special skills to conduct the testing. These entities will use the USDA and any private sector cost sharing funds to test the items. Products submitted in one year, but not funded for testing in that year, could be resubmitted to be considered for cost-sharing in the next year. USDA does not intend to provide financial assistance for testing to determine biobased content.
USDA seeks comments on possible methods of providing financial assistance for manufacturers and vendors for testing of individual commercial products with biobased content that are intended to qualify for preferred procurement by Federal agencies under this program.
Section 2902.10 of the proposed guidelines would provide general information applicable to the exchange of information regarding biobased products. In paragraph (a), we would reiterate that manufacturers and vendors of designated items have the responsibility to inform Federal procurement officials of items that comply with the guidelines, including the biobased content of the product, and recommend that Federal agencies, for their part, affirmatively seek this information. This paragraph would also point out the informational Web site referred to in § 2902.3 as a resource that can be utilized by both Federal agencies and manufacturers and vendors.
Manufacturers and vendors of biobased products that fall within an item (generic grouping) that has been designated by regulation for preferred procurement under the program are free to market those products to Federal agencies while claiming the preferred procurement status for the products under the program. Manufacturers and vendors must be able to certify to Federal agencies that their products are consistent with the definition of biobased product in section 2902.4. In addition manufacturers and vendors must be able to present third party test results that indicate the biobased products have at least the threshold amount of biobased feedstock content specified in the designating regulations for the item under which the biobased products fit.
Manufacturers and vendors must use the BEES analytical tool to provide information on life cycle costs and environmental and health benefits when asked for such information by Federal Agencies. In the case of products which are essentially the same formulation, but marketed under a variety of brand names, the manufacturers and vendors can simply refer to the underlying BEES Analysis data as the basis to demonstrate the life cycle costs, rather than conducting a BEES Analysis on each branded item. USDA is adopting the BEES Analysis method in order to establish a uniform methodology and platform for analysis of environmental and health effects and life cycle costs; doing so will enable Federal agencies to evaluate BEES results (scores) and life cycle costs across biobased products within a designated item.
When asked for performance data by Federal agencies, manufacturers and vendors are required to use test results obtained, for the individual products they offer for preferred procurement, from testing against industry accepted performance standards, which may include a Federal or Military Specification (ASTM, ISO, Military Specifications,
In paragraph (d), we would remind manufacturers and vendors that any claims regarding health and environmental benefits of their products should conform to the Federal Trade Commission (FTC) Guides for the Use of Environmental Marketing Claims, 16 CFR part 260. A copy can be obtained through FTC's Web site:
Section 9002 envisions giving preference to items composed of the highest percentage of biobased products practicable. Hence, to further the purposes of section 9002, USDA believes it is important to guard against designating items for preferred procurement which contain only token amounts of biobased materials. However, for some uses of biobased products in the production of a
ASTM International is in the process of finalizing and adopting a method for determining biobased content. USDA anticipates that ASTM International will adopt a standard prior to USDA publishing its final rule. The method under consideration by ASTM International is a Radioisotope Standard Method to discriminate between “old carbon” from fossil resources and “new carbon” from renewable resources. A measurement of a product's contemporary
Further, USDA proposes that manufacturers and vendors must utilize third party ASTM/ISO compliant test facilities using that testing standard method to determine the biobased content of their products offered for preferred procurement. Federal agencies and USDA may request verification of biobased content from manufacturers and vendors for products certified to qualify for preferred procurement.
In the case of products which are essentially the same formulation, but marketed under a variety of brand names, the manufacturers and vendors can simply refer to the underlying biobased content test data as the basis to demonstrate the biobased content, rather than conducting a biobased content test on each branded item.
USDA is proposing that biobased content be determined based on the weight of the biobased material (exclusive of water and other non-active ingredients, fillers, and diluents) divided by the total weight of the product and expressed as a percentage by weight.
Minimum biobased content requirements used in the proposed guidelines refer to the biobased portion of the product itself. For example, in a carpet using a biobased material as a carpet backing, the minimum biobased content indicated for the carpet refers only to the biobased backing. It is understood that the completed carpet, made up of several different materials, would have a lower biobased content than is specified in these guidelines for the biobased product (the carpet backing) itself. Minimum percentages used for various products in these guidelines refer to the biobased content of the product (such as carpet backing) itself, not to a finished product (the carpet) that might be fabricated using both a biobased product and other inputs, unless that is otherwise specified.
Section 2902.11 also would incorporate the filters discussed earlier in this preamble to exclude from this program those products having mature markets.
The biobased products listed in the proposed guidelines would be grouped according to category, with each category consisting of one or more items; an item developed by a particular manufacturer is referred to as a product. That is, an item is made up of individual products and a category consists of items. For instance, “Lubricants and Functional Fluids” is a category. Hydraulic fluids is an item within that category, and “ABC Hydraulic Fluid” made by the ABC Company is a product.
As noted previously, the items and the indicated biobased content of items contained within the categories discussed in this preamble are based on the study conducted in 2002 for the USDA Agricultural Research Service by CTC. The final report of the study can be viewed at the Office of Energy Policy and New Uses, Reporters Building, Room 361, 300 7th Street, SW., Washington, DC 20024. To arrange for viewing, contact Marvin Duncan at 202-401-0532. USDA also has posted the study on its informational Web site,
The items discussed below are intended to be the items that will be proposed for designation for preferred procurement by Federal agencies after the Secretary has sufficient information on availability of the items and the economic and technological feasibility of using such items, including life cycle costs. The information on availability of the items is determined from the CTC study from which the categories, items, and proposed minimum biobased content data were developed. However, items will not be designated for preferred procurement until the additional information required by section 9002 is considered by the Secretary. As items are designated for procurement preference, they would be added to § 2902.12 of the guidelines.
Comments proposing a new item should include information similar to that found in USDA's initial survey of the industry, including biobased products from which the items are derived, item characteristics, likely uses of the item, and percentage of biobased content of the items. In addition to new items proposed for inclusion in the guidelines, USDA is seeking comment on procedural issues, such as a process for proposing additional items, the review of such proposals, and what market information should be necessary to support the addition or deletion of an item. USDA particularly seeks public comment on the proposed categories and items, and the reasonableness of the biobased content percentages, discussed below.
Proposed § 2902.12 would contain items, grouped according to category, that are or can be produced with biobased products and provide the minimum biobased content for each listed item. It is anticipated that as the biobased product industry develops, new products will enter the market. As necessary, new items will be designated. USDA intends to periodically survey the industry to learn of new products entering the marketplace and to determine new items for designation. While § 2902.12 in these proposed guidelines contains no categories or items, given that none have yet been designated for procurement preference, the following paragraphs contain a discussion of future proposed categories and minimum content levels thus far identified. USDA seeks comments on the following categories, items (subcategories), minimum content levels based on manufactured value, and the minimum biobased content levels.
Biobased adhesives are chemical products used to join or bond two or more other materials together. A wide range of agricultural materials can be used to make biobased adhesives, including but not limited to starch from corn, potatoes, wheat, tapioca, and other plants; casein from skimmed milk; soy protein; soybean oil; vegetable gums; gelatin; livestock derivatives; tannins from woody biomass; and marine animal derivatives.
USDA proposes to include in this category both biobased adhesives and items embodying those adhesives. Items using such adhesives include book bindings, envelopes, stamps, medical application such as tapes and alternatives to sutures, doors, windows, paper bonds, corrugated paper boxes, lumber, furniture, and more. Biobased pressure sensitive adhesives have been developed for clear tape, duct tape, masking tape, labels, and a variety of disposable items. Another example of biobased adhesives is soy-based products used to glue wood to form finger-jointed lumber, glulam beams, I-joists, and other engineered wood products.
Adhesive products are to have a minimum biobased content of 70 percent by weight of the adhesive. Biobased adhesive additives may also be used to reduce the total amount of phenol-formaldehyde and isocyanate-containing adhesives used to bond plywood and other wood panels. These products and wood products made with these products are proposed to qualify when the additive is used to reduce total adhesive content of the finished product by at least 25 percent and when the minimum content of the additive is at least 70 percent biobased material. Finished products in which 90 percent of all of the adhesives used in production are biobased would be designated as biobased products.
The Construction Material Subcategory (or item) includes product applications containing biobased adhesives, such as plywood and finger jointed lumber; oriented strand board, medium density fiberboard, and hardboard; engineered wood building components,
The Composite Panels Subcategory (or item) is composed of nonstructural composite materials such as highly engineered blends of recycled paper products or agricultural wastes, biobased resins, and color additives can combine to provide a composite and composite panels. Product applications include furniture, tabletops, trim, store fixtures, awards, plaques, trophies, indoor signs, and other interior or nonstructural uses. Composite panel products include panels made from straw or other agricultural residues.
Molded Reinforced Composites subcategory (or item) products, such as decorative trim, shingles, or siding, may be made from bioplastic resins used to bind inorganic fibers such as fiber glass or agricultural fibers such as kenaf. These resins may be made from a combination of biobased materials and may be reacted with petro-based chemicals to achieve functional properties.
The Insulating Foams and Films Subcategory (or item) includes biobased polyurethane made from a soybean oil polyol, poly-lactides made from cornstarch, polyesters made from vegetable oils, and other bioplastic materials. Hundreds of products can employ these materials ranging from carpet backing to foam cushions; pads for furniture; automotive seats and dashboards; molded cases and covers for appliances; telephones; computers; and rigid insulating foams used to insulate refrigerators, freezers, coolers, and appliances. Each use may have different biobased content requirements.
This item also includes bioplastic rigid and soft foam, used to produce such products as fiber and foam insulation. Starch mixtures such as aqua gels or vegetable compounds can be added to concrete mixture during setting to reduce the density of concrete, and concrete mold release agents from vegetable oils are available products.
The Mixed System Products Subcategory (or item) is composed of products where specific component parts are designated as biobased (such as carpets and carpet squares with backing, attached pad, or face material that is biobased) but other components of the products may be from another product subcategory (item) or be non-biobased. The minimum content requirement may be applied to the biobased component rather than the complete product. An example would be the replacement of a portion of petroleum-based urethane for carpet backing with a percentage of soybean oil-based urethane.
In use, these items may include a large percentage of inert fillers and extenders which are not counted in computing total product weight. When determining the percent biobased content, calculations should be made on the weight of the component less excluded materials, and not on the weight of the total product.
The minimum biobased content requirement may be based on the weight of the biobased component rather than the complete material. USDA is providing guidance on the more prevalent products. As subsequent regulations to designate items for preferred procurement continue to evolve, more content information will be forthcoming. USDA particularly welcomes comments on adding additional subcategories to this section to more clearly define content requirements. The minimum biobased content of each item in this category must be:
There is a broad range of agricultural crops, forest biomass, and livestock that contributes materials to this category including non-tree sources such as bamboo, corn stover, low-grade cotton, flax, kenaf, cereal and grain straws, sugar cane bagasse, switch grass, leaves, and poultry feathers; and wood from forest thinnings, saw dust, flour, shavings, chips, grindings, and curls from trees.
Fibers from biobased sources can be used in the manufacture of product containers such as boxes, drums, and pails for the storage or shipment of food or manufactured products. Biobased fibers can also be used as bulk packaging materials for filler and protection of stored or transported goods. Natural biobased fibers are very ductile and typically do not splinter. Their properties have been compared to carbon and glass fibers for use in fiberglass composites.
Fiber composites are created when biobased fibers are blended with molten plastic in ratios of up to 70 percent fiber by weight to make furniture, toys, and other molded items.
Composite packaging materials use an emerging technology that relies on a mix of organic and inorganic materials, such as starch and limestone, and sometimes include fibers and coating materials that are also biodegradable. These materials often use starch from potatoes, corn, or
Woven fiber products represent important uses of biobased fibers. A variety of biobased fibers can be spun or woven into items such as ropes, textiles, and yarns. For example, flax is a traditional textile fiber used to make linen, while other fibers, such as jute, are woven to make burlap for bags and coverings.
Packaging materials can be made from waste fibers described above that, if not used in the paper making process, might be sent to a landfill.
Paperboard and packaging products, strong lightweight honeycomb panels made from recycled and agricultural fibers, illustrate another use of biobased fibers. Panel items can also be made almost entirely from cereal straw residue and used in nonstructural applications such as furniture, cabinets, store displays, door panels, moldings, and other fixtures.
Items such as pillows and comforters are made from milkweed fibers mixed with goose down to create bedding materials.
Like the construction category above, this item application is very large and each application may have separate content requirements. The category may require additional subcategories, or the creation of new categories; for instance tree-free paper versus tree-derived paper. In this guideline, USDA has listed a few of the more common uses and encourages comment on content requirements for a wide range of uses. To be included in the biobased fiber, paper, and packaging category, the minimum biobased content of each item must be:
A variety of fuel additives can be made from agricultural and forest materials and can be used to help power vehicles, heat buildings, provide heat for steam for industrial process, and other applications. Fuel additives can be mixed or diluted with other materials or used as an additive to enhance certain properties of a fuel.
Raw material sources for these biobased liquid fuel additive items include processed products from agricultural crops such as corn; soy bean; rapeseed; canola; animal fat; wood; and crop and processing residues such as stalks, manure, used cooking oils, used wood, nonrecyclable paper and paper sludge, and hulls.
Raw material sources for solid fuel additive items include agricultural and forest materials such as wood and wood processing residues, formed wood residue; nonrecyclable papers, paper sludge, and other paper processing residues; grains, grain processing byproducts and residues; byproducts or residues from soy, cotton, and sugar processing; pelletized residues from livestock production and processing, including manures.
Ethanol is the most widely used biobased fuel additive. It is typically made by fermentation of an agricultural product or residue and can be used as an oxygenated additive and a source of octane in a formulation with other fuels. Another liquid biobased fuel additive is biodiesel. Biodiesel is defined as a mono-alkyl ester of vegetable oils or animal fats and can be use as a lubricity agent with low-sulfur conventional diesel fuel.
Biobased items that are solid fuels are typically “formed” for ease of handling into a wide variety of shapes and sizes including pellets, rolls, briquettes, and other forms. Combustible binders, which may both act as fuels or be blended with other primary fuels, allow the fuel to be formed into various shapes and sizes. Biobased and other binders, such as resins and propellants, are also used to facilitate ignition and combustion. Formed coal fines are one example of a solid fuel. Recovered coal fines can be formed into a variety of shapes and sizes,
As noted previously, section 9002 and these guidelines do not apply to the procurement of motor vehicle fuels or electricity.
To be included in this fuel additives category, the minimum biobased content of each item must be:
This category includes materials and items associated with landscaping materials and compost. Many biobased items, such as construction materials, coatings, paper, fibers, and sorbents are compostable and reusable as landscaping materials.
Various agricultural crops and residues, including straws and short rotation woody crops, are the sources of landscaping materials. For the purposes of this category, woody materials are those obtained from activities such as forest thinning, fuel reduction in plantation stands, regenerated forest stands, intensively cultivated short rotation woody stands (
Compost is derived from a managed process that decomposes and transforms organic material into a soil-like item called humus. Food scraps, leaves, paper, wood, livestock manures, and agricultural residues are organic materials that can be composted. Composting reduces the amount of waste that may go to a landfill and it produces a soil amendment that can improve the texture and fertility of the soil. Mulches and composted materials can be used to control moisture and nutrients in soils and reduce the potential for erosion. Other materials, such as agricultural and animal wastes, serve as fertilizers.
Items include landscaping materials such as bark, chips, mulch, and pine needles. Composted materials provide fertilizer and ground cover. These
Agricultural and animal wastes are fertilizers and may be in composted form or, in the case of manures, may be applied as fertilizers without further composting or processing.
To be included in the landscaping materials and compost category, the minimum biobased content of each item must be:
Biobased lubricants and functional fluids are important materials used to reduce friction between moving surfaces or between moving and stationary surfaces in engines and other machinery, to reduce wear and dissipate heat on those surfaces, and to provide other benefits such as corrosion protection. Items like 2-cycle engine oils can be formulated from biobased sources. These formulated lubricants are added to fuels used in 2-cycle engines found in lawnmowers, chainsaws, string trimmers, and other small machinery.
Biobased functional fluids are used as items that transfer heat and/or pressure to or from surfaces, reduce friction in machining operations, provide electrical insulation, and for many other purposes. There is a broad range of biobased lubricant and functional fluid items, each carefully designed to meet particular performance needs and applications. These materials often need to be replaced on a routine schedule to maintain their expected performance.
Biobased lubricants and functional fluids are typically made from multiple components, including one or more base stocks plus additives that enhance performance or extend the life of the item. A variety of agricultural-based oils can be used as biobased lubricants and functional fluids, including but not limited to canola, corn, rapeseed, soybean, sunflower, other plant materials, and animal fats. The base oil used must have sufficient natural or enhanced stability to be used as base stock for biobased lubricants. Biobased items in this category can be base stock (the starting material into which additives and other materials are blended to make the final formulated product), lubricant or functional fluid additive (materials that are used for specific performance benefits such as lower pour point, increased flash point, greater extreme pressure properties, a desired viscosity, or reduced foam), or formulated lubricant or functional fluid (the final product including base stock and all additives).
Vehicles, heavy machinery, and mobile equipment use lubricant items such as crankcase oils and greases, and functional fluids such as transmission fluids, coolants, power steering fluids, brake fluids, and others. Industrial equipment uses for lubricants include metal working fluids (cutting and drilling oils/lubricants, stamping and forming lubricants), hydraulic fluids, and process fluids (heat transfer and dielectric fluids). Total loss lubricants are released directly into the environment in such applications as rail and flange, wire rope, and chain saw lubricants; concrete and asphalt form release fluids; and 2-cycle engine oils.
Biobased lubricants can include bar, chain, and sprocket oils or general purpose lubricants used for general cleaning, lubrication, and corrosion prevention of metal parts including wheels, bearings, gears, rollers, chains, hinges, hand tools, guns, and sporting equipment.
Biobased hydraulic fluid items can be used in construction equipment, industrial pumps, and other equipment, as well as in specialty uses where incidental food contact may occur. These specialty fluids can also be used in transmission systems of vehicles and other transportation equipment.
Biobased functional fluid items include the fluids used to lubricate and cool equipment/metals and nonmetal parts during cutting and parts fabrication, as well as drilling and machining operations.
Biobased functional fluids can be used for specialty purposes items such as mold release agents that are applied to wood, metal, or plastic forms prior to pouring concrete to facilitate the removal of forms after concrete has cured, or to foundry molds prior to pouring the foundry metal to facilitate the removal of metal parts from the molds. These biobased items can also be used as dielectric fluids that are used in electric transformers to provide insulation and to dissipate heat generated by the transmission of electric current.
To be included in this lubricants and functional fluids category, the minimum biobased content of each item must be:
Most plastics are made from petroleum-based monomers and polymers. Biobased plastics from renewable resources are sometimes biodegradable and have positive life-cycle benefits. Biobased plastics can be derived from a wide variety of agricultural and forest materials in the form of starch, cellulose, and other polymers or synthesized from plant oil and process byproduct monomers.
Biobased plastic polymers include cellulose, the most plentiful carbohydrate since 40 percent of all organic matter in the world is cellulose; starch, found in corn, potatoes, wheat, tapioca, and other plants can be used for such nonfood items as paper, cardboard, textile sizing, and adhesives; collagen, the most abundant protein found in mammals, including gelatin used to make sausage casings, capsules for drugs and vitamin preparations, and other miscellaneous industrial applications, including photography; and casein, a commercial product derived mainly from milk, used in adhesives, binders, protective coatings, and other biobased items. Corn, soy, and wheat proteins are abundant and can be
The plastic materials made with biobased monomers, such as plant oils, propane diol, and lactic acid, can be made to closely resemble the molecular structures of petroleum-based plastics and provide particular performance and application benefits,
Used in durable goods for insulation and cushioning, biobased plastics may be rigid for panels in appliances, flexible in cushions, or molded for automotive dashboards, for example. Examples of biodegradable plastic films are biofilms, plastic films made biodegradable by formulation with starch. Examples of durable films and coatings are components in durable goods such as automotive and construction equipment, tools, electrical equipment, and appliances. Water-soluble polymers are biobased items used in wastewater facilities and can help mining and heavy industry clean heavy metals from their wastewater. Examples of biodegradable/compostable molded plastic items are table flat ware, knives, forks, and spoons. Examples of durable molded plastic items and composites using biobased resins are thermoset automotive parts and equipment hoods and doors and access panels for farm and industrial equipment. Examples of molded composite items using biobased fibers are automotive parts combining petroleum-based resins with natural fibers, such as interior door panels and trunk liners. Examples of synthetic fibers from biobased raw materials are synthetic fibers, similar in function to nylon, woven into various textiles such as carpeting.
To be included in this bioplastics and biopolymers category, the minimum biobased content of each item must be:
Paints and other types of coatings such as stains, varnishes, and sealants can be derived from agricultural materials. These coatings enhance the appearance and protect the materials onto which they are applied. The protective function includes reducing corrosion, water infiltration, weathering from sun and wind exposure, and other damage. Biobased paints and coatings are important alternatives to traditional paints and coatings that are derived from petroleum-based chemicals and metal pigments.
A wide variety of agricultural materials can be used to produce items for biobased paint and coatings applications, including: xanthan gum to help thicken latex paints and coatings, and to uniformly suspend zinc, copper, and other metal additives in corrosion control coatings; cellulose esters and ethers can be used to make lacquers and paints; guayule derived epoxy-amine can be used to make coatings for metal panels that help protect the metal from corrosion during exposure to fog and salt; corn, soy, wheat, and other proteins are used to make coatings for paper and cardboard; and epoxidized linseed oil and soybean oil can be used as plasticizers, as well as intermediate chemicals in the manufacture of paints.
Biobased paints and coatings have a wide range of item uses that include protection of seeds to enhance germination, marine coatings, concrete and wood sealers, stains, corrosion inhibitors, and polishes. Architectural coatings made from soybean and linseed oils constitute a significant portion of the coatings market. Industrial coatings made from vegetable oils have been the mainstay in architectural and industrial paints for corrosion prevention, weatherability, and ease of application.
To be included in the paints and coatings category, the minimum biobased content of each item must be:
Biobased solvents and cleaners are widely used as cleaners and de-greasers in manufacturing and other processes and as ingredients in adhesives, paints, and coatings. Solvent and cleaner applications are broad and include alternatives to petroleum chemicals such as mineral spirits, ketones, acetone, trichloroethylene, xylene, toluene, and methylene chloride. As a cleaning item, uses include fabric and textile cleaning; fruit and vegetable cleaning; removal of grease, tar, oil, stains, paints from concrete and metal surfaces; paint stripper from metals and wood; carpet and upholstery cleaner; solvent for inks, paints; agricultural chemicals such as fertilizers, herbicides and pesticides; graffiti remover; and industrial parts cleaning. Some biobased solvents may also be used as carrier solvents for paints, inks, lotions, insect repellents, polishes, and other uses.
Biobased solvents and cleaners are made from renewable agricultural materials including crops and livestock.
Diluent items made from soybean oil, linseed oil, and tung oil can reduce the viscosity of a paint or coating. These diluents can act as both a solvent and a resin, thus eliminating the need for volatile organic compounds (VOCs). These solvents can be used in a variety of specialty applications such as metal finishing and ink formulation.
Parts cleaning compounds can contain one or more biobased solvents that are formulated with other performance additives such as surfactants, biocides, and rheology agents. These items are used in manufacturing and fabrication operations for cleaning parts prior to assembly, or in repair operations such as automotive shops or jet aircraft engine repair. Printing ink removers can be formulated items used for the removal of ink from printing presses and other printing equipment, such as press and blanket washes and screen cleaners. Adhesive/mastic removers are generally formulated items designed to remove adhesives or mastics from machinery used in gluing applications or from surfaces where an adhesive or mastic has been applied, such as with tile removal. Paint strippers are generally formulated items designed to remove paints from wood or metal surfaces. Asphalt removal and release materials are formulated or neat solvent
Hard surface cleaners include general purpose formulated items for the removal of greases and other dirt from metal, tile, glass, plastics, and hard surfaces. Glass cleaners are generally formulated items for the removal of dirt from glass surfaces with minimal or no film residues. Food machinery cleaners are formulated items used to remove accumulated greases and soils from metal and non-metal parts of food machinery (meat saws and slicers, vent fans, ovens, cooking vats, etc.), and should be approved for incidental food contact or certified by the manufacturer as safe. Textile cleaners are formulated items for the removal of heavy stains from textiles prior to institutional cleaning (dry cleaning or laundry). Graffiti removers are formulated items for the removal of graffiti (spray paint, markers, crayons, etc.) from metal and or wood surfaces. Concrete, stone, and masonry cleaners are formulated items that remove oil, grease, soot, and other soils from concrete driveways/sidewalks, stone, and masonry.
Hand cleaners and soaps are formulated items for the removal of heavy greases and dirt from skin. Laundry aids include stain removers and pre-washes for the treatment of stains on fabrics. Wood cleaners and polishes are formulated items for cleaning and polishing of wood surfaces and furniture.
Some biobased solvents are used as carrier solvents for paints, inks, lotions, insect repellents, polishes, and other uses.
To be included in this solvents and cleaners category, the minimum biobased content of each item must be:
Biobased sorbents are materials that are used to take up and hold liquids. A wide range of agricultural and forest materials can be used as biobased sorbents, including but not limited to wool, cotton and cotton linters, vegetable starch, kenaf, and agricultural residues such as corn stover and peanut hulls. The range of items produced includes products to collect oil and other environmental spills, collect blood and other fluids in medicinal and surgical applications, collect urine in diapers and incontinence products, and for animal bedding (including wood chips).
Sorbents can be placed in items such as containers, packages, gauzes, or other carriers to create a sorbent system. This aids in handling of the sorbent and application of the sorbent at a location to achieve greatest benefit. The sorbent carrier may be of a material other than a biobased item. For the purposes of this category, the biobased material is the “active” part of the sorbent system. Biobased items in this category must address the function of the entire product,
Plant starch contained within a cotton bag is an illustration of a sorbent system. While the plant starch is not the end product, it is the “active” ingredient in these sorbent systems. The USDA Agricultural Research Service developed a patented sorbent gel that would be a sorbent system. The gel is capable of absorbing hundreds of times its own weight in water and has been used in such items as seed coatings, wound dressings, automobile fuel filters, plastic barriers used at construction sites, and, most notably, in disposable diapers.
The biobased sorbents product category is organized as two broad groups of items: sorbents and sorbent systems. A sorbent system involves the use of a sorbent (active ingredient) in combination with a non-active carrier or an active carrier. For example a disposable diaper is a carrier for a specialized absorbent material, which is the sorbent. To be included in the sorbents category, the minimum biobased content of each item must be:
Here the category and the item are one and the same. Plant and vegetable oils can be used to make a wide variety of biobased inks. Over 90 percent of all U.S. daily newspapers use at least some soy ink, made by blending soybean oil with pigments, resins, and waxes to make either black or color ink. Unlike petroleum inks, soy ink does not release VOCs into the atmosphere upon drying. Newspapers printed with soy ink are easier to recycle.
In 1994, the U.S. Congress enacted the “Vegetable Ink Printing Act of 1994,” Public Law 103-348, mandating that, when technologically feasible and price competitive, Federal lithographic printing be performed using ink containing minimum percentages of plant and vegetable oil. Plant and vegetable inks are not considered to be in mature markets because plant and vegetable inks did not have significant national market penetration prior to 1972.
Biobased inks can be provided in black and a variety of colors. These inks can be used to print a broad range of documents, including newspapers, magazines, brochures, business cards, and reports. The inks can also be used with a variety of specialty applications including stencils, textiles, labeling, as well as pens and other writing instruments.
To be included in the inks category, the minimum biobased content of each item must be:
Section 9002(h) directs USDA to establish a voluntary labeling program for biobased items. USDA will address requirements for the labeling program in a future rulemaking. However, in order to signal USDA thinking in this regard, the potential parameters of the labeling program are described here.
It is anticipated the labeling program will build on the requirements to qualify for preferred procurement of biobased items discussed in this current proposed regulation. Biobased products that qualify for preferred procurement would be eligible to qualify for use of the “U.S.D.A. Certified Biobased Product” label. Two additional criteria would determine eligibility to use the label. First, an analysis of life cycle costs and health benefits of the product would be required using NIST's BEES
USDA seeks comments on the potential direction of future regulation regarding a voluntary program for use of the label by manufacturers and vendors of biobased products and on the possibility of assessing a user fee to support the labeling program.
It is estimated the proposed rule, when finalized, will not have an annual effect on the economy of $100 million or more. This program will have only a relatively small effect on the economy for the foreseeable future. This rule does not propose to designate any items. Successive items will be designated for preferred procurement through subsequent rulemakings over a period of at least several years. The industry, itself, is still very small. Although this program is intended to spur development of the industry, that is likely to occur only over many years. Each time an item is proposed for designation, USDA will evaluate the economic effect of that designation, as well as the cumulative effect of that and previous item designations.
For the above reasons, 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.
When an agency issues a rulemaking proposal, the Regulatory Flexibility Act (RFA), 5 U.S.C. 601-612, requires the agency to “prepare and make available for public comment an initial regulatory flexibility analysis” which will “describe the impact of the proposed rule on small entities.” 5 U.S.C. 603(a). Section 605 of the RFA allows an agency to certify a rule, in lieu of preparing an analysis, if the proposed rulemaking is not expected to have a significant economic impact on a substantial number of small entities.
Although this program ultimately may have a direct impact on a substantial number of small entities, USDA has determined that this proposed rule will not have a direct significant economic impact on a substantial number of small entities. This rule will affect directly primarily Federal agencies. Private sector manufacturers and vendors of biobased products voluntarily may provide information to USDA through the means set forth in this proposed rule. However, the proposed rule imposes no requirement on manufacturers and vendors to do so, and does not differentiate between manufacturers and vendors based on size. USDA does not know how many small manufacturers and vendors may opt to participate at this stage of the program.
As explained above, when USDA issues a proposed rulemaking to designate items for preferred procurement under this program, USDA will assess the anticipated impact of such designations, including the impact on small entities. USDA anticipates that this program will impact small entities which manufacture or sell biobased products. For example, once items are designated, this program will provide additional opportunities for small businesses to manufacture and sell biobased products to Federal agencies. This program also will impact indirectly small entities that supply biobased materials to manufacturers. Additionally, this program may decrease opportunities for small businesses that manufacture or sell nonbiobased products or provide components for the manufacturing of such products. Again, USDA cannot assess these anticipated impacts on small entities until USDA proposes items for designation. This rule does not propose to designate any items.
The proposed rule will directly impact small entities by implementing a cost-sharing program which gives first consideration to proposals for products of “small and emerging business enterprises.” Submission of a proposal is voluntary and not limited to small entities. The direct impact would be beneficial for those entities whose products are selected for cost-sharing. Because of the limited amount of funds available for cost-sharing, the proposed ceilings on cost-sharing, and the anticipated breadth of any competition (not limited to a particular manufacturing sector and open to other than small entities), USDA does not anticipate that this cost-sharing competition would have a significant economic impact on a substantial number of small entities.
Accordingly, USDA hereby certifies that this proposed rule will not have a significant economic impact on a substantial number of small entities. USDA invites comments from members of the public who believe that the proposed rule will have a significant economic impact on a substantial number of small entities.
This rule has been reviewed in accordance with Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights, and does not contain policies that would have implications for these rights.
This proposed rule has been reviewed in accordance with Executive Order 12988, Civil Justice Reform. This proposed rule does not preempt State or local laws, is not intended to have retroactive effect, and does not involve administrative appeals.
This proposed rule does not have sufficient federalism implications to warrant the preparation of a Federalism Assessment. Provisions of this proposed rule will not have a substantial direct effect on States or their political subdivisions or on the distribution of power and responsibilities among the various government levels.
This proposed rule contains no Federal mandates under the regulatory provisions of Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), 2 U.S.C. 1531-1538, for State, local, and tribal governments, or the private sector. Therefore, a statement under section 202 of UMRA is not required.
For the reasons set forth in the Final Rule Related Notice for 7 CFR part 3015, subpart V (48 FR 29115, June 24, 1983), this program is excluded from the scope of the Executive Order 12372 which requires intergovernmental consultation with State and local officials. This program does not directly affect State and local governments.
The policies contained in this rulemaking do not have tribal implications and thus no further action is required under Executive Order 13175.
In accordance with the Paperwork Reduction Act of 1995, 44 U.S.C. chapter 35, and the implementing Office of Management and Budget (OMB) regulations in 5 CFR part 1320, USDA has submitted the information collections contained in this proposed rule to the OMB for review under section 3507(d) of the Act. Comments addressing the proposed information collections should be submitted to the Office of Information and Regulatory Affairs of OMB, Attention: Desk Officer for Agriculture, Margaret Malanoski, 725 17th Street, NW., Room 10202, Washington, DC 20503.
This information may be included on the website or a hotlink may be established to manufacturers' or vendors' websites to access the information. The information sought for this voluntary website is envisioned to be non-proprietary. Should proprietary information be provided, the website will be password protected making that accessible only to USDA, Federal agencies, and to the manufacturer or vendor that provided the information.
USDA invites written comments on:
(a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information 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) Minimizing the burden of the collection of the 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.
Biobased products, Procurement.
For the reasons stated in the preamble, the Department of Agriculture proposes to amend 7 CFR chapter XXIX as follows:
1. The chapter heading of chapter XXIX is revised to read as set forth above.
2. A new part 2902 is added to chapter XXIX to read as follows:
7 U.S.C. 8102.
(a) The purpose of the guidelines in this part is to assist Federal agencies in complying with the requirements of section 9002 of FSRIA, 7 U.S.C. 8102, as they apply to the procurement of the items designated in subpart B of this part.
(b) The guidelines in this part designate items that are or can be produced with biobased products and whose procurement by Federal agencies will carry out the objectives of section 9002 of FSRIA.
(a) The guidelines in this part apply to all procurement actions by Federal agencies involving items designated by USDA in this part, where the Federal agency purchases $10,000 or more worth of one of these items during the course of a fiscal year, or where the quantity of such items or of functionally equivalent items purchased during the preceding fiscal year was $10,000 or more. The $10,000 threshold applies to procuring agencies as a whole rather than to agency subgroups such as regional offices or subagencies of a larger department or agency.
(b) The guidelines in this part do not apply to:
(1) Any procurement by any Federal agency that is subject to regulations of the Administrator of the Environmental Protection Agency under section 6002 of the Solid Waste Disposal Act (40 CFR part 247), to the extent that the requirements of this part are inconsistent with such regulations; or
(2) The procurement of motor vehicle fuels or electricity.
(c) FSRIA section 9002(c)(1) requires Federal agencies to procure designated items composed of the highest percentage of biobased products practicable, consistent with maintaining a satisfactory level of competition, considering such guidelines. Federal agencies may decide not to procure such items if they are not reasonably priced or readily available or do not meet specified or reasonable performance standards.
An informational USDA website implementing section 9002 can be found at:
These definitions apply to this part:
(a) Within 1 year after the publication date of each designated item, Federal agencies that have the responsibility for drafting or reviewing specifications for items procured by Federal agencies shall ensure that their specifications require the use of designated items composed of biobased products, consistent with the guidelines in this part. The biobased content of a designated item may vary considerably from product to product based on the mix of ingredients used in its manufacture. In procuring designated items, the percentage of biobased content should be maximized, consistent with achieving the desired performance for the product.
(b) Within 1 year after the publication date of the guidelines in this part, each Federal agency shall develop a procurement program which will assure that items composed of biobased products will be purchased to the maximum extent practicable and which is consistent with applicable provisions of Federal procurement laws. Each procurement program shall contain:
(1) A preference program for purchasing designated items, (2) A promotion program to promote the preference program; and
(3) Provisions for the annual review and monitoring of the effectiveness of the procurement program.
(c) In developing the preference program, Federal agencies shall adopt one of the following options, or a substantially equivalent alternative, as part of the procurement program:
(1) A policy of awarding contracts to the vendor offering a designated item
(i) Are not available within a reasonable time;
(ii) Fail to meet performance standards set forth in the applicable specifications, or the reasonable performance standards of the Federal agency; or
(iii) Are available only at an unreasonable price.
(2) A policy of setting minimum biobased products content specifications in such a way as to assure that the biobased products content required is consistent with section 9002 of FSRIA and the requirements of the guidelines in this part except when such items:
(i) Are not available within a reasonable time;
(ii) Fail to meet performance standards for the use to which they will be put, or the reasonable performance standards of the Federal agency; or
(iii) Are available only at an unreasonable price.
(a) USDA will use funds to support testing for biobased content and conduct of the BEES Analysis for products within items USDA has selected to designate for preferred procurement through early regulatory action. USDA initially will focus on gathering the necessary test information on a sufficient number of products within an item (generic grouping of products) to support regulations to be promulgated to designate an item or items for preferred procurement under this program. USDA may accept cost sharing for such testing to the extent consistent with USDA product testing decisions. During this period USDA will not consider cost sharing in deciding what products to test. When USDA has concluded that a critical mass of items have been designated, USDA will exercise its discretion, in accordance with the competitive procedures outlined in paragraph (b) of this section, to allocate a portion of the available USDA testing funds to give priority to testing of products for which private sector firms provide cost sharing for the testing.
(b)(1) Subject to the availability of funds and paragraph (a) of this section, USDA will announce annually the solicitation of proposals for cost-sharing for the testing of biobased products to carry out this program. Information regarding the submission of proposals for cost sharing also will be posted on the USDA informational Web site,
(2) Cost-sharing proposals will be considered first for products of small and emerging private business enterprises. If funds remain to support further testing, a second tranche of applicants may be drawn from all other producers of biobased items. Proposals will be evaluated and assigned a priority rating. Priority ratings will be based on the following criteria:
(i) A maximum of 25 points will be awarded a proposal based on the market readiness;
(ii) A maximum of 20 points will be awarded a proposal based on the potential size of the market for that product in Federal agencies;
(iii) A maximum of 25 points will be awarded based on the financial need for assistance of the manufacturer or vendor;
(iv) A maximum of 20 points will be awarded a proposal based on the product's prospective competitiveness in the market place;
(v) A maximum of 10 points will be awarded a proposal based on its likely benefit to the environment.
(3) Proposals will be selected in order of declining priority ratings (from highest to lowest) until available funds for the fiscal year are committed.
(4)(i) For products selected for BEES Analysis testing under this paragraph, USDA could provide up to 50 percent of the cost of determining the life cycle costs and environmental and health effects using the NIST's BEES Analysis, up to a maximum of $5,000 of assistance per product.
(ii) For products selected for performance testing under this paragraph, USDA could provide up to 50 percent of cost for performance testing, up to $100,000 of assistance per product for up to two performance tests (measures of performance) per product.
(5) For selected proposals, USDA will enter into agreements with and provide the funds directly to the testing entities.
(6) Proposals submitted in one fiscal year, but not selected for cost-sharing of testing in that year, may be resubmitted to be considered for cost-sharing in the following year.
(a) Manufacturers and vendors are expected to provide relevant information to Federal agencies, upon request, with respect to product characteristics. USDA recommends that Federal agencies affirmatively seek this information. Manufacturers must be able to verify the biobased content in their products. The level of biobased content in the product is to be determined using the ASTM International standard that is a Radioisotope Standard Method to distinguish between carbon from fossil resources and that from renewable sources.
(b) Manufacturers and vendors must use the National Institute of Standards and Technology BEES (Building for Environmental and Economic Sustainability) analytical tool to provide information on life cycle costs and environmental and health benefits to Federal agencies, when asked.
(c) In assessing performance of qualifying biobased products, USDA requires that Federal agencies rely on results of performance tests using applicable ASTM International, International Organization for Standardization (ISO), Federal or military specifications, or other similarly authoritative industry test standards. Such testing must be conducted by a third party ASTM/ISO compliant laboratory.
(d) Manufacturers and vendors are reminded that their advertising, labeling, and other marketing claims, including claims regarding health and environmental benefits of the product, must conform to the Federal Trade Commission Guides for the Use of Environmental Marketing Claims, 16 CFR part 260.
(a) All qualifying items under this program must have at least 5 percent of their total manufactured value (measured after manufacture at the location of manufacture) made up of biobased product(s).
(b) Minimum biobased content requirements in § 2902.12 refer to the biobased portion of the product, and not the entire item. These requirements are in addition to the 5 percent total manufactured value requirement in paragraph (a) of this section.
(c) Manufacturers and vendors must utilize third party ASTM/ISO compliant test facilities using the ASTM International Radioisotope Standard Method to determine and certify the biobased content of their products offered for preferred procurement. Federal agencies and USDA may request verification of biobased content from manufacturers and vendors for products certified to qualify for preferred procurement.
(d)(1) Biobased content shall be determined based on the weight of the biobased material (exclusive of water and other non-active ingredients, fillers,
(2) In the case of products that are essentially the same formulation, but marketed under a variety of brand names, the manufacturer or vendor may refer to the underlying biobased content test data as the basis to demonstrate the biobased content, rather than conducting a biobased content test on each branded product.
(e) Products having mature markets are excluded from this program. For purposes of this program, a product has a mature market if the product falls within any of the following groups:
(1) Silk, cotton and wool garments, household items, and industrial or commercial products unless made with a substantial amount of biobased plastic product.
(2) Wood products made from traditionally-harvested forest materials.
(3) Products having significant national market penetration prior to 1972.
USDA shall designate items that meet the criteria set forth in this part as eligible for the procurement preference. In designating items, USDA will group items by category and will identify the minimum biobased content for each listed item. As items are designated for procurement preference, they will be added to this section.
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking.
This notice proposes to establish Class E airspace at Lawrenceville, VA. The development of Standard Instrument Approach Procedures (SIAP) based on the Global Positioning System (GPS) to serve flights operating into Lawrenceville/Brunswick Municipal Airport (LVL) under Instrument Flight Rules (IFR) makes this action necessary. Controlled airspace extending upward from 700 feet Above Ground Level (AGL) is needed to contain aircraft executing the approach. The area would be depicted on aeronautical charts for pilot reference.
Comments must be received on or before January 20, 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 the docket number FAA-2003-15979/Airspace Docket No. 03-AEA-10 at the beginning of your comments. You may also submit comments on the Internet at
An informal docket may also be examined during normal business hours at the office of the Regional Air Traffic Division, Federal Aviation Administration, Eastern Region, 1 Aviation Plaza, Jamaica, NY, 11434-4809.
Mr. Francis T. Jordan, Jr., Airspace Specialist, Airspace Branch, AEA-520, Eastern Region, 1 Aviation Plaza, Jamaica, NY 11434-4809, telephone: (718) 553-4521.
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, 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 No. FAA-2003-15979/Airspace Docket No. 03-AEA-10”. The postcard will be date/time stamped and returned to the commenter.
An electronic copy of this document may be downloaded through the Internet at
The FAA is considering an amendment to part 71 of the Federal Aviation Regulations (14 CFR part 71) to establish Class E airspace area at Lawrenceville, VA. The development of SIAPs to serve flights operating IFR into Lawrenceville/Brunswick Municipal Airport makes this action necessary. Controlled airspace extending upward from 700 feet AGL is needed to accommodate the SIAPs. Class E airspace designations for airspace areas extending upward from 700 feet or more above the surface are published in Paragraph 6005 of FAA Order 700.9L, dated September 2, 2003, and effective September 16, 2003, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designation listed in this document would be published subsequently in the Order.
The FAA has determined that this proposed regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. Therefore, this proposed regulation—(1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated
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 14 CFR Part 71 continues to read as follows:
49 U.S.C. 106(g), 40103, 40113, 40120; EO 10854, 24 FR 9565, 3 CFR, 1959-1963 Comp., p. 389.
The incorporation by reference in 14 CFR 71.1 of Federal Aviation Administration Order 7400.9L dated September 2, 2003 and effective September 16, 2003, is proposed to be amended as follows:
That airspace extending upward from 700 feet above the surface within a 6-mile radius of Lawrenceville/Brunswick Municipal Airport.
Internal Revenue Service (IRS), Treasury.
Notice of proposed rulemaking by cross-reference to temporary regulations.
In the Rules and Regulations section of this issue of the
Written or electronic comments and requests for a public hearing must be received by March 18, 2004.
Send submissions to: CC:PA:LPD:PR (REG-116641-01), room 5203, Internal Revenue Service, POB 7604, Ben Franklin Station, Washington, DC 20044. Submissions may be hand delivered Monday through Friday between the hours of 8 a.m. and 4 p.m. to: CC:PA:LPD:PR (REG-116641-01), 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, Nathan Rosen (202) 622-4910; concerning submissions of comments and/or requests for a hearing, Robin Jones (202) 622-3521 (not toll-free numbers).
The collection of information contained in this notice of proposed rulemaking has been submitted to the Office of Management and Budget for review in accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)). Comments on the collection of information should be sent to the Office of Management and Budget, Attn: Desk Officer for the Department of the Treasury, Office of Information and Regulatory Affairs, Washington, DC 20503, with copies to the Internal Revenue Service, Attn: IRS Reports Clearance Officer, SE:W:CAR:MP:T:T:SP, Washington, DC 20224. Comments on the collection of information should be received by February 17, 2004. Comments are specifically requested concerning:
Whether the proposed collection of information is necessary for the proper performance of the functions of the Internal Revenue Service, including whether the information will have practical utility; The accuracy of the estimated burden associated with the proposed collection of information (
How the quality, utility, and clarity of the information to be collected may be enhanced;
How the burden of complying with the proposed collection of information may be minimized, including through the application of automated collection techniques or other forms of information technology; and
Estimates of capital or start-up costs and costs of operation, maintenance, and purchase of service to provide information.
The collection of information in this proposed regulation is in § 1.170A-11T. Section 170 of the Code permits tax deductions, within limits, for charitable contributions by individuals and corporations. Section 170(a)(2) provides that under certain conditions, corporations may treat a charitable contribution as paid during the taxable year even if the contribution occurs in the following taxable year. Existing regulations provide that to invoke this provision, a corporation must submit with its income tax return a supporting statement and a copy of the board of directors' resolution authorizing the contribution. The proposed regulation eliminates the need to submit the resolution with the return, but provides that the supporting statement must identify the date of the resolution. This information regarding the timing of board action is required to be reported to help ensure that taxpayers properly document their entitlement to deductions for charitable contributions. The IRS cannot ascertain this information from the board resolution itself since, as noted above, taxpayers will no longer have to submit that document with their returns. The collection of information is mandatory. The likely respondents are for-profit corporations.
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a valid control number assigned by the Office of Management and Budget.
Books or records relating to a collection of information must be retained as long as their contents may become material in the administration of any internal revenue law. Generally,
Temporary regulations in the Rules and Regulations section of this issue of the
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. It is hereby certified that the collection of information in these regulations will not have a significant economic impact on a substantial number of small entities. This certification is based on the fact that the collection of information described above under the heading “Paperwork Reduction Act” does not affect corporations that elect to be taxed under Subtitle A, Chapter 1, Subchapter S of the Code. Moreover, requiring a corporation to report the information described above concerning board of directors' approval of certain charitable contributions imposes virtually no incremental burden in time or expense. Therefore, a Regulatory Flexibility Analysis under the Regulatory Flexibility Act (5 U.S.C. Chapter 6) is not required. Pursuant to section 7805(f) of the Code, this notice of proposed rulemaking will be submitted to the Chief Counsel for Advocacy of the Small Business Administration for comment on its impact on small business.
Before these proposed regulations are adopted as final regulations, consideration will be given to any written (a signed original and eight (8) copies) or electronic comments that are submitted timely to the IRS. The IRS and the Treasury Department specifically request comments on the clarity of the proposed regulations and how they can be made easier to understand. All comments will be available for public inspection and copying. A public hearing may be scheduled if requested by any person who timely submits comments. If a public hearing is scheduled, notice of the date, time and place for the hearing will be published in the
The principal author of these regulations is Nathan Rosen, Office of Associate Chief Counsel (Procedure and Administration), Administrative Provisions and Judicial Practice Division.
Income taxes, Reporting and recordkeeping requirements.
Employment taxes, Estate taxes, Excise taxes, Gift taxes, Income taxes, Penalties, Reporting and recordkeeping requirements.
Accordingly, 26 CFR parts 1 and 301 are proposed to be amended as follows:
26 U.S.C. 7805. * * *
(b) * * *
(2) [The text of the proposed amendment to § 1.170A-11(b)(2) is the same as the text of § 1.170A-11T(b)(2) published elsewhere in this issue of the
1. Revising paragraph (e)(2)(vii).
2. Adding paragraph (e)(3).
The revision and addition read as follows:
(e) * * *
(2) * * *
(vii) [The text of the proposed amendment to § 1.556-2(e)(2)(vii) is the same as the text of § 1.556-2T(e)(2)(vii) published elsewhere in this issue of the
(3) [The text of the proposed amendment to § 1.556-2(e)(3) is the same as the text of § 1.556-2T(e)(3) published elsewhere in this issue of the
(b) * * *
(3) [The text of the proposed amendment to § 1.565-1(b)(3) is the same as the text of § 1.565-1T(b)(3) published elsewhere in this issue of the
(b) * * *
Q.& A. 1 [The text of the proposed amendment to § 1.936-7(b), Q.& A. 1 is the same as the text of § 1.936-7T(b), Q.& A. 1, published elsewhere in the issue of the
(g) * * *
(2) * * *
(iii) * * *
(B) [The text of the proposed amendment to § 1.1017-1(g)(2)(iii)(B) is the same as the text of § 1.1017-1T(g)(2)(iii)(B) published elsewhere in this issue of the
(f) * * *
(5) * * *
(iii) [The text of the proposed amendment to § 1.1368-1(f)(5)(iii) is the same as the text of § 1.1368-1T(f)(5)(iii) published elsewhere in this issue of the
(g) * * *
(2) * * *
(iii) [The text of the proposed amendment to § 1.1368-1(g)(2)(iii) is the same as the text of § 1.1368-1T(g)(2)(iii) published elsewhere in this issue of the
(b) * * *
(5) * * *
(i) * * *
(C) [The text of the proposed amendment to § 1.1377-1(b)(5)(i)(C) is the same as the text of § 1.1377-1T(b)(5)(i)(C) published elsewhere in this issue of the
(b)(2)(iii) [The text of the proposed amendment to § 1.1502-21(b)(2)(iii) is the same as the text of § 1.1502-21T(b)(2)(iii) published elsewhere in this issue of the
(3) * * * (i) [The text of the proposed amendment to § 1.1502-21(b)(3)(i) is the same as the text of § 1.1502-21T(b)(3)(i) published elsewhere in this issue of the
(ii) * * *
(B) [The text of the proposed amendment to § 1.1502-21(b)(3)(ii)(B) is the same as the text of§ 1.1502-21T(b)(3)(ii)(B) published elsewhere in this issue of the
(h) * * *
(2) [The text of the proposed amendment to § 1.1502-75(h)(2) is the same as the text of § 1.1502-75T(h)(2) published elsewhere in the issue of the
(g) * * *
(2) * * * (i) [The text of the proposed amendment to § 1.1503-2(g)(2)(i) is the same as the text of § 1.1503-2T(g)(2)(i) published elsewhere in this issue of the
(iv) * * *
(B) * * *
(
(
(vi) * * *
(B) [The text of the proposed amendment to § 1.1503-2(g)(2)(vi)(B) is the same as the text of § 1.1503-2T(g)(2)(vi)(B) published elsewhere in this issue of the
(b) * * * (1) * * * (i) [The text of the proposed amendments to § 1.6038B-1(b)(1)(i) is the same as the text of § 1.6038B-1T(b)(1)(i) published elsewhere in this issue of the
(ii) [The text of the proposed amendment to § 1.6038B-1(b)(1)(ii) is the same as the text of § 1.6038B-1T(b)(1)(ii) published elsewhere in this issue of the
26 U.S.C. 7805 * * *
(c) * * * (1) * * *
(ii) [The text of the proposed amendment to § 301.7701-3 (c)(1)(ii) is the same as the text of § 301.7701-3T(c)(1)(ii) published elsewhere in this issue of the
Office of Surface Mining Reclamation and Enforcement, Interior.
Proposed rule; public comment period and opportunity for public hearing on proposed amendment.
We are announcing receipt of a proposed amendment to the New Mexico regulatory program (hereinafter, the “New Mexico program”) under the Surface Mining Control and Reclamation Act of 1977 (SMCRA or the Act). New Mexico proposes revisions to and additions of rules about definitions of permit modification, permit revision, and temporary cessation of operations; permit fees; administrative review of decisions; review of permits; requirements for permit modifications; public hearings for permit modifications; and additional requirements for temporary cessation of operations. New Mexico intends to revise its program to clarify ambiguities, provide additional safeguards, and improve operational efficiency.
This document gives the times and locations that the New Mexico program and proposed amendment to that program are available for your inspection, the comment period during
We will accept written comments on this amendment until 4 p.m., m.d.t. January 20, 2004. If requested, we will hold a public hearing on the amendment on January 13, 2004. We will accept requests to speak until 4 p.m., m.d.t. on January 5, 2004.
You should mail or hand deliver written comments and requests to speak at the hearing to Willis Gainier at the address listed below.
You may review copies of the New Mexico program, this amendment, a listing of any scheduled public hearings, and all written comments received in response to this document at the addresses listed below during normal business hours, Monday through Friday, excluding holidays. You may receive one free copy of the amendment by contacting Office of Surface Mining Reclamation and Enforcement (OSM's) Albuquerque Field Office.
Willis L. Gainer Telephone: 505-248-5096. Internet address:
Section 503(a) of the Act permits a State to assume primacy for the regulation of surface coal mining and reclamation operations on non-Federal and non-Indian lands within its borders by demonstrating that its State program includes, among other things, “a State law which provides for the regulation of surface coal mining and reclamation operations in accordance with the requirements of this Act . . .; and rules and regulations consistent with regulations issued by the Secretary pursuant to this Act.” See 30 U.S.C. 1253(a)(1) and (7). On the basis of these criteria, the Secretary of the Interior conditionally approved the New Mexico program on December 31, 1980. You can find background information on the New Mexico program, including the Secretary's findings, the disposition of comments, and the conditions of approval of the New Mexico program in the December 31, 1980,
By letter dated October 27, 2003, New Mexico sent us a proposed amendment to its program (administrative record No. 869) under SMCRA (30 U.S.C. 1201
New Mexico proposes non-substantive editorial revisions at 19.8.13.1301.A(4) and E(1) New Mexico Annotated Code (NMAC) concerning permit revisions and hearing and notice requirements. New Mexico also proposes the following substantive revisions at:
19.8.1.7.P NMAC by adding definitions at, respectively, 19.8.1.7.P(8) and (9) NMAC, of “permit modification” to mean an alteration of the terms or requirements of a permit, which alteration is not a permit revision, and “permit revision” to mean a significant alteration of the terms or requirements of a permit, as identified in 19.8.13.1301.A NMAC;
19.8.1.7.T NMAC by adding a definition of “temporary cessation of operations” at 19.8.1.7.T(2) NMAC to mean the cessation of mining or reclamation operations for more than thirty days and where a reasonable expectation of the continuation of mining can be demonstrated by the permittee;
19.8.5.506.A, B, D, E, F, and G NMAC, concerning permit and exploration fees, to, respectively, (1) increase the original permit filing fee to $2,500 plus $25 per acre for estimated area to be disturbed during the first year of mining, (2) commencing the second year to increase the annual permit fee to $2,500 with an acreage fee of $25 per acre of disturbed permit area for which the bond has not been released, provided that $15,000 per year acreage fee is the maximum charge per year for all disturbance and cap the maximum annual fee at $17,500 and require that the annual fee be submitted with the annual report; (3) increase the fee for transferring a permit to $1000; (4) increase the fee for a revision that expands the size of the permit to $4000 plus $25 per acre for the estimated area to be disturbed during the first year of mining in the expansion area and to require a fee for all other permit revisions of $4000; (5) increase the fee for filing a notice of intention to explore to $100; and (6) increase the fee for filing an application for exploration of greater than 250 tons of coal;
19.8.12.1200.A NMAC, concerning administrative review of permit and exploration decisions, to (1) provide the permittee or any person with an interest which is or may be adversely affected by the decision regarding a permit modification an opportunity to request a hearing on the reasons for the final decision and (2) require that any request for a hearing on any permit and exploration decision be made in writing and state with reasonable specificity the reasons for the request and objection to the decision;
19.8.13.1300.B NMAC to clarify that, at any time, the Director of the New Mexico program may, by order, require reasonable revisions or modification of the approved permit;
19.8.13.1301.B, C, and E(2) NMAC to (1) clarify that the existing language at 19.8.13.1301.A NMAC defines when a permit revision is required and to require that a permit modification be obtained for all other changes to a permit not classified as a permit revision; (2) to state that the operator may not implement any permit revision or permit modification before obtaining the Director's written approval; and (3) state that (a) within 10 days after the filing of a complete application for a permit modification, the Director shall issue a decision approving or denying the application in whole or in part and promptly provide a written copy of the decision to the permittee and other interested parties and (b) within 30 days after the decision notification, the permittee or any person may request a formal hearing in regard to the Director's decision, in accordance with 19.8.12.1200 NMAC; and
19.8.20.2073 NMAC, concerning temporary cessation of operations, by adding new C, D, E, and F, to state (1) at the Director's discretion, the permittee may be directed to take other reasonable actions consistent with 19.8 NMAC to ensure the protection of public safety and the environment while the operation is under temporary cessation; (2) that no temporary cessation of mining and reclamation operations shall extend beyond the current permit term, unless the Director approves an extension of the temporary cessation during the permit renewal
Under the provisions of 30 CFR 732.17(h), we are seeking your comments on whether the amendment satisfies the applicable program approval criteria of 30 CFR 732.15. If we approve the amendment, it will become part of the New Mexico program.
Send your written or electronic comments to OSM at the address given above. Your comments should be specific, pertain only to the issues proposed in this rulemaking, and include explanations in support of your recommendations. We will not consider or respond to your comments when developing the final rule if they are received after the close of the comment period (see
Please submit Internet comments as an ASCII file avoiding the use of special characters and any form of encryption. Please also include “Attn: SATS No. NM-043-FOR,” and your name and return address in your Internet message. If you do not receive a confirmation that we have received your Internet message, contact the Albuquerque Field Office at (505) 248-5091.
We will make comments, including names and addresses of respondents, available for public review during normal business hours. We will not consider anonymous comments. If individual respondents request confidentiality, we will honor their request to the extent allowable by law. Individual respondents who wish to withhold their name or address from public review, except for the city or town, must state this prominently at the beginning of their 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 review in their entirety.
If you wish to speak at the public hearing, contact the person listed under
To assist the transcriber and ensure an accurate record, we request, if possible, that each person who speaks at a public hearing provide us with a written copy of his or her comments. The public hearing will continue on the specified date until everyone scheduled to speak has been given an opportunity to be heard. If you are in the audience and have not been scheduled to speak and wish to do so, you will be allowed to speak after those who have been scheduled. We will end the hearing after everyone scheduled to speak and others present in the audience who wish to speak, have been heard.
If only one person requests an opportunity to speak, we may hold a public meeting rather than a public hearing. If you wish to meet with us to discuss the amendment, please request a meeting by contacting the person listed under
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 regulatory programs and program amendments because each program is drafted and promulgated by a specific State, not by OSM. Under sections 503 and 505 of SMCRA (30 U.S.C. 1253 and 1255) and the Federal regulations at 30 CFR 730.11, 732.15, and 732.17(h)(10), decisions on proposed State regulatory programs and program amendments submitted by the States must be based solely on a determination of whether the submittal is consistent with SMCRA and its implementing Federal regulations and whether the other requirements of 30 CFR parts 730, 731, and 732 have been met.
This rule does not have federalism implications. SMCRA delineates the roles of the Federal and State governments with regard to the regulation of surface coal mining and reclamation operations. 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 503(a)(1) of SMCRA requires that State laws regulating surface coal mining and reclamation operations be “in accordance with” the requirements of SMCRA. Section 503(a)(7) requires that state programs contain rules and regulations “consistent with” regulations issued by the Secretary pursuant to 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. The rule does not involve or affect Indian Tribes in any way.
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)
This rule does not require an environmental impact statement because section 702(d) of SMCRA (30 U.S.C. 1292(d)) provides that agency decisions on proposed State regulatory program provisions do not constitute major Federal actions within the meaning of section 102(2)(C) of the National Environmental Policy Act (42 U.S.C. 4332(2)(C)).
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.
Environmental Protection Agency (EPA).
Proposed rule.
EPA is proposing to delegate to several California air pollution control agencies the authority to implement and enforce national emision standards for hazardous air pollutants as they apply to non-major sources.
Any comments on this proposal must arrive by January 20, 2004.
Send comments to Andrew Steckel, Rulemaking Office Chief (AIR-4), U.S. Environmental Protection Agency, Region IX, 75 Hawthorne Street, San Francisco, CA 94105-3901, or e-mail to
Mae Wang, EPA Region IX, (415) 947-4124,
Pursuant to section 112(l) of the 1990 Clean Air Act, EPA is proposing to delegate national emission standards for hazardous air pollutants as they apply to non-major sources to the following local air pollution control agencies in California: Antelope Valley Air Quality Management District, Butte County Air Quality Management District, Kern County Air Pollution Control District, Mendocino County Air Quality Management District, Mojave Desert Air Quality Management District, Monterey Bay Unified Air Pollution Control District, San Luis Obispo County Air Pollution Control District, Ventura County Air Pollution Control District, and Yolo-Solano Air Quality Management District. In the Rules and Regulations section of this
We do not plan to open a second comment period, so anyone interested in commenting should do so at this time. If we do not receive adverse comments, no further activity is planned. For further information, please see the direct final action.
Federal Communications Commission.
Proposed rule.
This document sets forth a proposal to amend the FM Table of Allotments, Section 73.202(b) of the Commission's rules, 47 CFR 73.202(b). The Commission requests comment on a petition filed by Caldwell Broadcasting, LLC, licensee of Station KKSY(FM), Channel 296C3, Bald Knob, Arkansas. Petitioner proposes to delete Channel 296C3 at Bald Knob, to allot Channel 296C3 at Greenbrier, Arkansas, and to modify the license of Station KKSY(FM) accordingly. Channel 296C3 can be allotted to Greenbrier in compliance with the Commission's minimum distance separation requirements with a site restriction of 8.8 km (5.5 miles) northeast of Greenbrier. The coordinates for Channel 296C3 at Greenbrier are 35-17-28 North Latitude and 92-19-14 West Longitude.
Comments must be filed on or before January 30, 2004, and reply comments on or before February 17, 2004.
Federal Communications Commission, Washington, DC 20554. In addition to filing comments with the FCC, interested parties should serve the petitioner as follows: Larry Crain, Managing Member, Caldwell Broadcasting, LLC, 425 West Capitol Avenue, Suite 1584, Little Rock, Arkansas 72201.
Deborah A. Dupont, Media Bureau (202) 418-7072.
This is a synopsis of the Commission's Notice of Proposed Rule Making, MB Docket No. 03-247, adopted December 3, 2003 and released December 8, 2003. The full text of this Commission decision is available for inspection and copying during normal business hours in the FCC Reference Information Center (Room CY-A257), 445 12th Street, SW., Washington, DC The complete text of this decision may also be purchased from the Commission's copy contractor, Qualex International, Portals II, 445 12th Street, SW., Room CY-B402, Washington, D.C. 20554, telephone (202)863-2893.
The Provisions of the Regulatory Flexibility Act of 1980 do not apply to this proceeding. Members of the public should note that from the time a Notice of Proposed Rule Making is issued until the matter is no longer subject to Commission consideration or court review, all
For information regarding proper filing procedures for comments,
Radio, Radio broadcasting.
For the reasons discussed in the preamble, the Federal Communications Commission proposes to amend 47 CFR Part 73 as follows:
1. The authority citation for Part 73 continues to read as follows:
47 U.S.C. 154, 303, 334 and 336.
2. Section 73.202(b), the Table of FM Allotments under Arkansas, is amended by removing Bald Knob, Channel 296C3, and by adding Greenbrier, Channel 296C3.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Apportionment of reserve; request for comments.
NMFS proposes to apportion amounts of the reserve to certain target species in the Bering Sea and Aleutian Islands management area (BSAI). This action is necessary to account for previous harvest of the total allowable catch (TAC). It is intended to promote the goals and objectives of the fishery management plan for the BSAI.
Comments must be received at the following address no later than 4:30 p.m., Alaska local time, January 2, 2004.
Comments must be mailed to Sue Salveson, Assistant Regional Administrator, Sustainable Fisheries Division, Alaska Region, NMFS, P.O. Box 21668, Juneau, AK 99802-1668, Attn: Lori Durall. Comments also may be sent via facsimile (fax) to 907 586 7557. Comments will not be accepted if submitted via e-mail or Internet. Courier or hand delivery of comments may be made to NMFS in the Federal Building, Room 453, Juneau, AK 99801.
Josh Keaton, 907-586-7228.
NMFS manages the groundfish fishery in the BSAI according to the Fishery Management Plan for the Groundfish Fishery of the Bering Sea and Aleutian Islands Area (FMP) prepared by the North Pacific Fishery Management Council under authority of the Magnuson-Stevens Fishery Conservation and Management Act. Regulations governing fishing by U.S. vessels in accordance with the FMP appear at subpart H of 50 CFR part 600 and 50 CFR part 679.
The Administrator, Alaska Region, NMFS, has determined that the initial TACs specified in the final 2003 harvest specifications (68 FR 9907, March 3, 2003) for Greenland turbot in the Bering Sea subarea and arrowtooth flounder, yellowfin sole and Alaska plaice in the BSAI need to be supplemented from the non-specified reserve in order to continue operations and account for prior harvest.
Therefore, in accordance with § 679.20(b)(3), NMFS proposes to apportion from the reserve to the TACs for the following species: Bering Sea subarea - 100 metric tons (mt) to Greenland turbot; BSAI - 3,000 mt to Arrowtooth flounder, 3,500 mt to yellowfin sole, Alaska plaice - 750 mt. These proposed apportionments are consistent with § 679.20(b)(1)(ii) and do not result in overfishing of a target species because the revised TAC's are equal to or less than specifications of acceptable biological catch (68 FR 9907, March 3, 2003).
This action responds to the best available information recently obtained
The AA also finds good cause to waive the 30-day delay in the effective date of this action under 5 U.S.C. 553(d)(3). This finding is based upon the reasons provided above for waiver of prior notice and opportunity for public comment. Under § 679.20(b)(3)(iii), interested persons are invited to submit written comments on this action to the above address until January 2, 2004.
This action is required by 50 CFR 679.20 and is exempt from review under Executive Order 12866.
16 U.S.C. 1801,
Animal and Plant Health Inspection Service, USDA.
Notice of availability and request for comments.
We are advising the public that the Animal and Plant Health Inspection Service has prepared a draft environmental assessment relative to the control of saltcedar (
We will consider all comments that we receive on or before January 20, 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. 03-110-1, 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. 03-110-1. If you use e-mail, address your comment to
You may read any comments that we receive on the environmental assessment in our reading room. The reading room is located in room 1141 of the USDA South Building, 14th Street and Independence Avenue SW., Washington, DC. Normal reading room hours are 8 a.m. to 4:30 p.m., Monday through Friday, except holidays. To be sure someone is there to help you, please call (202) 690-2817 before coming.
APHIS documents published in the
Mr. Robert Richard, Western Region Program Manager, PPQ, APHIS, 2150 Centre Avenue Building B, Fort Collins, CO 80526-8117; (970) 494-7565.
Saltcedar (
A single mature saltcedar may produce hundreds of thousands of seeds between April and October. The seeds are then dispersed by wind and water throughout the growing season, germinating within 24 hours of moistening. Seedlings are tolerant of water, saline soils, and drought and may grow by as much as a foot a month.
Saltcedar was first introduced into the United States from Asia in the early 1800s. The plant has been used for windbreaks, as ornamentals, and for erosion control. By 1850, saltcedar had infested river systems and drainages in the southwest. By 1938, infestations were found from Florida to California and as far north as Idaho. Saltcedar continues to spread rapidly and currently infests water drainages and areas throughout the United States, including the following western States: Colorado, North Dakota, South Dakota, Iowa, Nebraska, Nevada, Kansas, Missouri, Montana, Idaho, Oregon, Washington, Utah, and Wyoming.
As a result of rising infestation levels, the Animal and Plant Health Inspection Service has prepared a draft environmental assessment (EA) relative to the environmental release of the nonindigenous saltcedar leaf beetle (
The saltcedar leaf beetle is native to the Mediterranean region and central and middle Asia. All stages of saltcedar leaf beetle larvae feed on saltcedar foliage. As adults, the beetles continue to feed on saltcedar foliage. Saltcedar leaf beetles have been known to completely defoliate large areas of saltcedar. Release of this insect into the environment is expected to produce a gradual reduction in the size of saltcedar plants and in foliage cover and density of saltcedar stands.
APHIS' review and analysis of the proposed action and its alternatives are documented in detail in a draft EA entitled, “Proposed Program for Control of Saltcedar (
The draft EA may be viewed on the Internet at
The draft EA has been prepared in accordance with: (1) The National Environmental Policy Act of 1969 (NEPA), as amended (42 U.S.C. 4321
Forest Service, USDA.
Notice—Availability of appealable decisions; legal notice for availability for comment of decisions that may be appealable under 36 CFR part 215.
Responsible Officials in the Southwestern Region will publish notices of availability for comment and notices of decisions that may be subject to administrative appeal under 36 CFR part 215. These notices will be published in the legal notice section of the newspapers listed in the Supplementary Information section of this notice. As provided in 36 CFR 215.5, 215.6, and 215.7, such notice shall constitute legal evidence that the agency has given timely and constructive notice for comment and notice of decisions that may be subject to administrative appeal. Newspaper publication of notices of decisions is in addition to direct notice to those who have requested notice in writing and to those known to be interested in or affected by a specific decision.
Use of these newspapers for the purpose of publishing legal notices for comment and decisions that may be subject to appeal under 36 CFR part 215 shall begin December 19, 2003 and continue until further notice.
Southwestern Region, ATTN: Regional Appeals Coordinator, 333 Broadway SE, Albuquerque, NM 87102-3498.
Christina Gonzalez, 505-842-3219.
Responsible Officials in the Southwestern Region will give legal notice of decisions that may be subject to appeal under 36 CFR part 215 in the following newspapers which are listed by Forest Service administrative unit. Where more than one newspaper is listed for any unit, the first newspaper listed is the primary newspaper which shall be used to constitute legal evidence that the agency has given timely and constructive notice for comment and for decisions that may be subject to administrative appeal. As provided in 36 CFR 215.15, the time frame for appeal shall be based on the date of publication of a notice for decision in the primary newspaper.
Notice by Regional Forester of Availability for Comment and Decisions affecting New Mexico Forests: “Albuquerque Journal”, published daily in Albuquerque, Bernalillo County, New Mexico, for comment and decisions affecting National Forest System Lands in the State of New Mexico and for any decisions of Region-wide impact.
Notice by Regional Forester of Availability for Comment and Decisions affecting Arizona Forests: “The Arizona Republic” published daily in Phoenix, Maricopa County, Arizona, for comment and decisions affecting National Forest System lands in the State of Arizona and for any decisions of Region-wide impact.
Notice by Regional Forester of Availability for Comment and Decisions affecting National Grasslands in New Mexico, Oklahoma, and Texas: Kiowa National Grassland in Colfax, Harding, Mora and Union Counties, New Mexico: “Union County Leader”, published weekly on Wednesday in Clayton, Union County, New Mexico. Rita Blanca National Grassland in Cimarron County, Oklahoma: “Boise City News”, published weekly on Wednesday in Boise City, Cimarron County, Oklahoma. Rita Blanca National Grassland in Dallam County, Texas: “The Dalhart Texan”, published on Tuesday and Saturday in Dalhart, Dallam County, Texas. Black Kettle National Grassland in Roger Mills County, Oklahoma: “Cheyenne Star”, published weekly on Thursday in Cheyenne, Roger Mills County, Oklahoma. Black Kettle National Grassland in Hemphill County, Texas: “The Canadian Record”, published weekly on Thursday in Canadian, Hemphill County, Texas. McClellan Creek National Grassland in Gray County, Texas: “The Pampa News”, published daily in Pampa, Gray County, Texas.
Notice by Forest Supervisor of Availability for Comment and Decisions: “The White Mountain Independent”, published Tuesday and Friday in Show Low and Navajo County, Arizona.
Notice by District Ranger of Availability for Comment and Decisions: Alpine District: “The White Mountain Independent”, published Tuesday and Friday in Show Low and Navajo County, Arizona. Black Mesa District: “The White Mountain Independent”, published Tuesday and Friday in Show Low and Navajo County, Arizona. Clifton District: “Copper Era”, published weekly on Wednesday in Clifton, Greenlee County, Arizona. Lakeside District: “The White Mountain Independent”, published Tuesday and Friday in Show Low and Navajo County, Arizona. Springerville District: “The White Mountain Independent”, published Tuesday and Friday in Show Low and Navajo County, Arizona.
Notice by Forest Supervisor of Availability for Comment and Decisions: “Arizona Daily Sun”, published daily, in Flagstaff, Coconino County, Arizona.
Notice by District Ranger of Availability for Comment and Decisions: Mogollon District: “Arizona Daily Sun”, published daily, in Flagstaff, Coconino County, Arizona. Peaks District: “Arizona Daily Sun”, published daily in Flagstaff, Coconino County, Arizona. Red Rock District: “Red Rock News”, published Wednesday and Friday in Sedona, Coconino County, Arizona.
Notice by Forest Supervisor of Availability for Comment and Decisions: “The Arizona Daily Star”, published daily, in Tucson, Pima County, Arizona.
Notice by District Ranger of Availability for Comment and Decisions: Douglas District: “Daily Dispatch”, published Tuesday-Saturday, and Sunday in Douglas, Cochise County, Arizona. Nogales District: “Nogales International”, published on Tuesday and Friday in Nogales, Santa Cruz County, Arizona. Sierra Vista District: “Sierra Vista Herald”, published Sunday-Friday, in Sierra Vista, Cochise County, Arizona. Safford District: “Eastern Arizona Courier”, published weekly on Wednesday, in Safford, Graham County, Arizona. Santa Catalina District: “The Arizona Daily Star”, published daily, in Tucson, Pima County, Arizona.
Notice by Forest Supervisor of Availability for Comment and Decisions: “Arizona Daily Sun”,
Notice by District Ranger of availability for Comment and Decisions: North Kaibab District: “Arizona Daily Sun”, published daily, in Flagstaff, Coconino County, Arizona. Tusayan District: “Arizona Daily Sun” published daily, in Flagstaff, Coconino County, Arizona. Williams District: “Arizona Daily Sun”, published daily, in Flagstaff, Coconino County, Arizona
Notice by Forest Supervisor of Availability for Comment and Decisions: “Prescott Courier”, published daily in Prescott, Yavapai County, Arizona.
Notice by Forest Supervisor of Availability for Comment and Decisions: Bradshaw District “Prescott Courier”, published daily in Prescott Yavapai County, Arizona. Chino Valley District: “Prescott Courier” published daily in Prescott, Yavapai County, Arizona. Chino Valley District: “Prescott Courier”, published daily in Prescott, Yavapai County, Arizona. Verde District: “Prescott Courier”, published daily in Prescott, Yavapai County, Arizona.
Notice by Forest Supervisor of Availability for Comment and Decisions: “East Valley Tribune” and “Scottsdale Tribune”, published daily in Mesa, Maricopa County, Arizona.
Notice by District Ranger of Availability for Comment and Decisions: Cave Creek District: “Scottsdale Tribune”, published daily in Mesa, Maricopa County, Arizona. Globe District: “Arizona Silver Belt”, published weekly on Wednesday in Globe, Gila County, Arizona. Mesa District: “East Valley Tribune”, published daily in Mesa, Maricopa County, Arizona. Payson District: “Payson Roundup”, published biweekly on Tuesday and Friday in Payson, Gila County, Arizona. Pleasant Valley District: “Payson Roundup”, published biweekly on Tuesday and Friday in Payson, Gila County, Arizona. Tonto Basin District: “Payson Roundup”, published biweekly on Tuesday and Friday in Payson, Gila County, Arizona.
Notice by Forest Supervisor of Availability for Comment and Decisions: “The Taos News”, published weekly on Thursday in Taos, Taos County, New Mexico.
Notice by District Ranger of Availability for Comment and Decisions: Canjilon District: “Rio Grande Sun”, published Wednesday in Espanola, Rio Arriba County, New Mexico. El Rito District: “Rio Grande Sun”, published Wednesday in Espanola, Rio Arriba County, New Mexico, Jicarilla District: “Farmington Daily Times”, published daily in Farmington, San Juan County, New Mexico. Camino Real District: “The Taos News”, published weekly on Thursday in Taos, Taos County, New Mexico. Tres Piedras District: “The Taos News”, published weekly on Thursday in Taos, Taos County, New Mexico. Questa District: “The Taos News”, published weekly on Thursday in Taos, Taos County, New Mexico.
Notice by Forest Supervisor of Availability for Comment and Decisions affecting lands in New Mexico, except the National Grasslands: “Albuquerque Journal”, published daily in Albuquerque, Bernalillo County, New Mexico.
Notice by Forest Supervisor of Availability for Comment and Decisions affecting National Grasslands in New Mexico, Oklahoma and Texas: Kiowa National Grassland in Colfax, Harding, Mora and Union Counties, New Mexico: “Union County Leader”, published weekly on Wednesday in Clayton, Union County, New Mexico. Rita Blanca National Grassland in Cimarron County, Oklahoma: “Boise City News”, published weekly on Wednesday in Boise City, Cimarron County, Oklahoma. Rita Blanca National Grassland in Dallam County, Texas: “The Dalhart Texan”, published on Tuesday and Saturday in Dalhart, Dallam County, Texas. Black Kettle National Grassland, in Roger Mills County, Oklahoma: “Cheyenne Star”, published weekly on Thursday in Cheyenne, Roger Mills County, Oklahoma. Black Kettle National Grassland, in Hemphill County, Texas: “The Canadian Record”, published weekly on Thursday in Canadian, Hemphill County, Texas. McClellan Creek National Grassland, in Gray County, Texas: “The Pampa News”, published daily in Pampa, Gray County, Texas.
Notice by District Ranger of Availability for Comment and Decisions: Mt. Taylor District: “Cibola County Beacon”, published on Tuesday and Friday in Grants, Cibola County, New Mexico. Magdalena District: “Defensor-Chieftain”, published Wednesday and Saturday in Socorro, Socorro County, New Mexico. Mountainair District: “Mountainview Telegraph”, published weekly on Thursday in Tijeras, Bernalillo County, New Mexico. Sandia District: “Albuquerque Journal”, published daily in Albuquerque, Bernalillo County, New Mexico. Kiowa National Grassland: “Union County Leader”, published weekly on Wednesday in Clayton, Union County, New Mexico. Rita Blanca National Grassland: “Boise City News”, published weekly on Wednesday in Boise City, Cimarron County, Oklahoma. Rita Blanca National Grassland in Dallam County, Texas: “Dalhart Texan”, published on Tuesday and Saturday in Dalhart, Dallam County, Texas. Black Kettle National Grassland: “Cheyenne Star”, published weekly on Thursday in Cheyenne, Roger Mills County, Oklahoma. Black Kettle National Grassland: “The Canadian Record”, published weekly on Thursday in Canadian, Hemphill County, Texas. McClellan Creek National Grassland: “The Pampa News”, published daily in Pampa Gray County, Texas.
Notice by Forest Supervisor of Availability for Comment and Decisions: “Silver City Daily Press”, published Monday-Saturday in Silver City, Grant County, New Mexico.
Notice by District Ranger of Availability for Comment and Decision: Black Range District: “The Herald”, published on Tuesday, in Truth or Consequences, Sierra County, New Mexico. Quemado District: “Silver City Daily Press”, published Monday-Saturday in Silver City, Grant County, New Mexico. Reserve District: “Silver City Daily Press”, published Monday-Saturday in Silver City, Grant County, New Mexico. Glenwood District: “Silver City Daily Press”, published Monday-Saturday in Silver City, Grant County, New Mexico. Silver City District: “Silver City Daily Press”, published Monday-Saturday in Silver City, Grant County, New Mexico. Wilderness District: “Silver City Daily Press”, published Monday-Saturday in Silver City, Grant County, New Mexico.
Notice by Forest Supervisor of Availability for Comment and Decisions: “Alamogordo Daily News”, published daily in Alamogordo, Otero County, New Mexico.
Notice by District Ranger of Availability for Comment and Decisions: Sacramento District: “Alamogordo Daily News”, published daily in Alamogordo, Otero County, New Mexico. Guadalupe District: “Carlsbad Current Argus”, published daily except Saturday, in Carlsbad, Eddy County, New Mexico. Smokey
Notice by Forest Supervisor of Availability Comment and Decisions: “Albuquerque Journal”, published daily in Albuquerque, Bernalillo County, New Mexico.
Notice by District Ranger of Availability for Comment and Decisions: Coyote District: “Albuquerque Journal”, published daily in Albuquerque, Bernalillo County, New Mexico. Cuba District: “Albuquerque Journal”, published daily in Albuquerque, Bernalillo County, New Mexico. Espanola District: “Albuquerque Journal”, published daily in Albuquerque, Bernalillo County, New Mexico. Jemez District: “Albuquerque Journal”, published daily in Albuquerque, Bernalillo County, New Mexico. Pecos-Las Vegas District: “Albuquerque Journal”, published daily in Albuquerque, Bernalillo County, New Mexico.
Forest Service, USDA.
Notice of meeting.
The National Urban and Community Forestry Advisory Council will meet in Washington, DC, February 26-28, 2004. The purpose of the meeting is to discuss emerging issues in urban and community forestry.
The meeting will be held February 26-28, 2004.
The meeting will be held at the Hotel Monaco, 700 F Street, NW, Washington, DC. Individuals who wish to speak at the meeting or to propose agenda items must send their names and proposals to Suzanne M. del Villar, Executive Assistant, National Urban and Community Forestry Advisory Council, P.O. Box 1003, Sugarloaf, CA 92386-1003. Individuals may fax their names and proposed agenda items to (909) 585-9527.
Suzanne M. del Villar, Urban and Community Forestry Staff, (909) 585-9268.
The meeting is open to the public. Council discussion is limited to Forest Service staff and Council members; however, persons who wish to bring urban and community forestry matters to the attention of the Council may file written statements with the Council staff before or after the meeting. Public input sessions will be provided.
USDA Forest Service.
Notice of meeting.
The Shasta County Resource Advisory Committee (RAC) will meet on the following dates in Redding, California. The purpose of the meeting will be to discuss committee actions and to review projects to nominate for approval consideration.
The meeting will be from 8 a.m. to noon on:
• January 7, 2004
• February 4, 2004
• March 3, 2004
• April 7, 2004
• May 5, 2004
• June 2, 2004
• July 7, 2004
• August 4, 2004
• September 1, 2004
• October 6, 2004
• November 3, 2004
• December 1, 2004
The meeting will be held at USDA Service Center, 3644 Avtech Parkway.
Kevin McIver, coordinator, USDA Forest Service, (530) 226-2595 or (530) 226-2500. E-mail:
The meeting is open to the public. Discussion is limited to Forest Service staff and committee members. However, time may be provided for public input, giving individuals the opportunity to address the committee.
Forest Service, USDA.
Notice of meeting.
The Del Norte County Resource Advisory Committee (RAC) will meet on January 6, 2004, in Crescent City, California. The purpose of the meeting is to discuss the selection of title II projects under Pub. L. 106-393, H.R. 2389, the Secure Rural Schools and Community Self-Determination Act of 2000, also called the “Payments to States” Act.
The meeting will be held on January 6, 2004, from 6 to 8:30 p.m.
The meeting will be held at the Del Norte County Unified School District Board Room, 301 West Washington Boulevard, Crescent City, California.
Laura Chapman, Committee Coordinator, USDA, Six Rivers National Forest, 1330 Bayshore Way, Eureka, CA 95501. Phone: (707) 441-3549. E-mail:
The committee will hear the status of Title II projects funded over the last two years. The meeting is open to the public. Public input opportunity will be provided and individuals will have the opportunity to address the committee at that time.
Forest Service, USDA.
Notice; request for comment.
The Forest Service is proposing to revise its timber sale contracts, Form FS-2400-6 for scaled sale procedures and Form FS-2400-6T
Comments must be received in writing on or before February 17, 2004.
Send written comments by mail to the Director of Forest and Rangeland Management, MAIL STOP 1105, Forest Service, USDA, 1400 Independence Avenue, SW., Washington, DC 20250-1105; via e-mail to
Rex Baumback, Forest and Rangeland Management Staff, (202) 205-0855.
Timber sale contract Forms FS-2400-6 and FS-2400-6T are used by the Forest Service for the sale of all large, complex timber sales. Timber sale contract Form FS-2400-6 is used when timber is measured for payment after it is harvested, and timber sale contract Form FS-2400-6T is used when the basis for payment is measurement prior to sale. These contracts were originally brought into use in July 1970 and January 1972, respectively, and were the result of extended discussions between the Federal Timber Purchasers Committee and the Forest Service. After 2 years, these contracts were revised in September 1973 and October 1973, respectively, to incorporate modifications based upon experience gained and policy changes since their inception.
From 1973 until July 2001, the requirements of new legislation and Forest Service policy were implemented in the contracts by issuing special provisions that replaced or added to the standard contract provisions. In July 2001, new versions of timber sale contract Forms FS-2400-6 and FS-2400-6T were issued. The July 2001 versions incorporated the special provisions that had been brought into use since 1973, but did not make any other changes that affect the rights and obligations of the Forest Service and timber sale purchasers.
The Forest Service is proposing to revise timber sale contract Forms FS-2400-6 and FS-2400-6T to:
1. Clarify the remedies available when contracts are suspended, modified, or terminated for environmental reasons.
2. Incorporate special provisions that are applicable to all timber sales into the standard contract provisions.
3. Correct inconsistencies and clarify ambiguous language that has accumulated by the addition of 30 years of special provisions to the timber sale contracts.
4. Make organizational and editorial changes intended to eliminate duplicative and unnecessary provisions.
5. Decrease the need in the existing contracts to make certain standard provisions inapplicable by replacing those provisions with the appropriate former special provisions.
6. Provide for liquidated damages when the Forest Service unilaterally terminates or partially terminates a timber sale contract.
7. Provide for a rate redetermination after a specified time when the Forest Service orders the delay or interruption of operations for specific reasons.
A side-by-side comparison of the specific differences between the existing contracts and the proposed revised contracts is available electronically and in paper copy as provided in the
Rural Business-Cooperative Service, USDA.
Proposed collection; comments requested.
In accordance with the Paperwork Reduction Act of 1995, this notice announces the Rural Business-Cooperative Service's intention to request an extension for a currently approved information collection in support of the program for 7 CFR part 4284, subpart G.
Comments on this notice must be received by February 17, 2004 to be assured of consideration.
Diane M. Berger, Loan Specialist, Rural Business-Cooperative Service, USDA, STOP 3225, 1400 Independence Ave., SW., Washington, DC 20250-3225, Telephone: (202) 720-2383.
Copies of this information collection can be obtained from Cheryl Thompson, Regulations and Paperwork Management Branch, Support Services Division at (202) 692-0043.
Comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of Rural Business-Cooperative Service, including whether the information will have practical utility; (b) the accuracy of Rural Business-Cooperative Service'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 Cheryl Thompson, Regulations and Paperwork Management Branch, Support Services Division, U.S. Department of Agriculture, 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.
Committee for Purchase from People Who Are Blind or Severely Disabled.
Proposed Additions to Procurement List.
The Committee is proposing to add to the Procurement List products and a service to be furnished by nonprofit agencies employing persons who are blind or have other severe disabilities.
Comments Must Be Received on or Before: January 18, 2004.
Committee for Purchase From People Who Are Blind or Severely Disabled, Jefferson Plaza 2, Suite 10800, 1421 Jefferson Davis Highway, Arlington, Virginia, 22202-3259.
Sheryl D. Kennerly, (703) 603-7740.
This notice is published pursuant to 41 U.S.C 47(a) (2) and 41 CFR 51-2.3. Its purpose is to provide interested persons an opportunity to submit comments on the proposed actions. If the Committee approves the proposed additions, the entities of the Federal Government identified in the notice for each product or service will be required to procure the products and service listed below from nonprofit agencies employing persons who are blind or have other severe disabilities.
I certify that the following action will not have a significant impact on a substantial number of small entities. The major factors considered for this certification were:
1. If approved, the action will not result in any additional reporting, recordkeeping or other compliance requirements for small entities other than the small organizations that will furnish the products and service to the Government.
2. If approved, the action will result in authorizing small entities to furnish the products and service to the Government.
3. There are no known regulatory alternatives which would accomplish the objectives of the Javits-Wagner-O'Day Act (41 U.S.C. 46-48c) in connection with the products and service proposed for addition to the Procurement List. Comments on this certification are invited. Commenters should identify the statement(s) underlying the certification on which they are providing additional information.
The following products and service are proposed for addition to Procurement List for production by the nonprofit agencies listed:
Committee for Purchase from People Who Are Blind or Severely Disabled.
Additions to Procurement List.
This action adds to the Procurement List services to be furnished by nonprofit agencies employing persons who are blind or have other severe disabilities.
January 18, 2004.
Committee for Purchase From People Who Are Blind or Severely Disabled, Jefferson Plaza 2, Suite 10800, 1421 Jefferson Davis Highway, Arlington, Virginia, 22202-3259.
Sheryl D. Kennerly, (703) 603-7740.
On October 24, 2003, the Committee for Purchase From People Who Are Blind or Severely Disabled published notice (68 FR 60908) of proposed additions to the Procurement List. After consideration of the material presented to it concerning capability of qualified nonprofit agencies to provide the services and impact of the additions on the current or most recent contractors, the Committee has determined that the services listed below are suitable for procurement by the Federal Government under 41 U.S.C. 46-48c and 41 CFR 51-2.4.
I certify that the following action will not have a significant impact on a substantial number of small entities. The major factors considered for this certification were:
1. The action will not result in any additional reporting, recordkeeping or other compliance requirements for small entities other than the small organizations that will furnish the services to the Government.
2. The action will result in authorizing small entities to furnish the services to the Government.
3. There are no known regulatory alternatives which would accomplish the objectives of the Javits-Wagner-O'Day Act (41 U.S.C. 46-48c) in connection with the services proposed for addition to the Procurement List.
Accordingly, the following services are added to the Procurement List:
This action does not affect current contracts awarded prior to the effective date of this addition or options that may be exercised under those contracts.
Import Administration, International Trade Administration, Department of Commerce.
Initiation of Antidumping Duty Investigations.
December 19, 2003.
David Layton at (202) 482-0371 or Chris Welty at (202) 482-0186, AD/CVD Enforcement Office 5, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW., Washington, DC 20230.
On November 21, 2003, the U.S. Department of Commerce (the Department) received a petition filed in proper form by Sun Chemical Corporation (Sun) and Nation Ford Chemical Company (collectively, the petitioners). The Department received supplemental information from the petitioners on December 4, 2003.
In accordance with section 732(b)(1) of the Tariff Act of 1930, as amended (the Act), the petitioners allege that imports of carbazole violet pigment 23 (CVP-23) from India and the People's Republic of China (PRC) are, or are likely to be, sold in the United States at less than fair value within the meaning of section 731 of the Act, and that imports from India and the PRC are materially injuring, or are threatening to materially injure, an industry in the United States.
The Department finds that the petitioners filed the petition on behalf of the domestic industry because they are interested parties as defined in section 771(9)(C) of the Act and they have demonstrated sufficient industry support with respect to each of the antidumping investigations that they are requesting the Department to initiate.
The anticipated period of investigation (POI) for India is October 1, 2002, through September 30, 2003, and for the PRC it is April 1, 2003, through September 30, 2003.
The merchandise covered by these investigations is carbazole violet 23 identified as Color Index No. 51319 and Chemical Abstract No. 6358-30-1, with the chemical name of
The merchandise subject to these investigations is classifiable under subheading 3204.17.9040 of the Harmonized Tariff Schedule of the United States (HTSUS). Although the HTSUS subheadings are provided for convenience and customs purposes, the written description of the merchandise under investigation is dispositive.
During our review of the petition, we discussed the scope with the petitioners to ensure that it is an accurate reflection of the products for which the domestic industry is seeking relief. As discussed in the preamble to the Department's regulations (
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, which is to be made before the initiation of the investigation, be based on whether a minimum percentage of the relevant industry supports the petition. A petition satisfies this requirement if the domestic producers or workers who support the petition account for: (1) At least 25 percent of the total production of the domestic like product; and (2) 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 either poll the industry or rely on other information in order to determine if there is support for the petition.
Section 771(4)(A) of the Act defines the “industry” as the producers of a domestic like product. Thus, to determine whether a petition has the requisite industry support, the statute directs the Department to look to producers and workers who produce the domestic like product. The U.S. International Trade Commission (ITC), which is responsible for determining whether “the domestic industry” has been injured, must also determine what constitutes a domestic like product in order to define the industry. While both the Department and the ITC must apply the same statutory definition regarding the domestic like product (section 771(10) of the Act), they do so for different purposes and pursuant to separate and distinct authority. In addition, the Department's determination is subject to limitations of time and information. Although this may result in different definitions of the like product, such differences do not render the decision of either agency contrary to the law.
Section 771(10) of the Act defines the domestic like product as “a product which is like, or in the absence of like, most similar in characteristics and uses with, the article subject to an investigation under this title.” Thus, the reference point from which the domestic like product analysis begins is “the article subject to an investigation,”
In this case, the petition covers a single class or kind of merchandise, CVP-23, as defined in the “Scope of Investigations” section, above. The petitioners do not offer a definition of domestic like product distinct from the scope of the investigations. Further, based on our analysis of the information presented to the Department by the petitioners, we have determined that there is a single domestic like product which is consistent with the definition of the “Scope of the Investigation” section above and have analyzed industry support in terms of this domestic like product.
The Department has determined that the petitioners have established industry support representing over 50 percent of total production of the domestic like product, requiring no further action by the Department pursuant to section 732(c)(4)(D) of the Act. In addition, the Department received no opposition to the petition from domestic producers of the like product. Therefore, the domestic producers or workers who support the petition account for at least 25 percent of the total production of the domestic like product, and the requirements of section 732(c)(4)(A)(i) of the Act are met. Furthermore, the domestic producers or workers who support the petition account for 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. Thus, the requirements of section 732(c)(4)(A)(ii) of the Act also are met.
Accordingly, we determine that the petition is filed on behalf of the domestic industry within the meaning of section 732(b)(1) of the Act.
The following are descriptions of the allegations of sales at less than fair value upon which the Department based its decision to initiate these investigations. The sources of data for the deductions and adjustments relating to U.S. and home market prices and factors of production are discussed in greater detail in the Initiation Checklist. Should the need arise to use any of this information as facts available under section 776 of the Act in our preliminary or final determinations, we may re-examine the information and revise the margin calculations, if appropriate.
The petitioners based export price (EP) on average unit values of CVP-23 imports from India for the POI. The petitioners derived such values from import statistics under the HTSUS subheading 3204.17.9040.
With respect to normal value (NV), the petitioners provided a home market price for CVP-23 based on a price list obtained during the POI. The price was quoted in Indian rupees per kilogram on an ex-warehouse basis with the Central Excise and Sales Tax included. The petitioners adjusted this price by deducting the Central Excise and Sales Tax and converting the Indian value to U.S. dollars per pound using the exchange rates from the Department's website.
The estimated dumping margin for subject merchandise from India, based on a comparison of EP and NV based on a home market price quote, is 147.59 percent.
The petitioner based EP on average unit values of CVP-23 imports from the PRC during the POI. The petitioner derived such values from import statistics under the HTSUS subheading 3204.17.9040.
The petitioner alleges that the PRC is a NME country, and notes that in all previous investigations the Department has determined that the PRC is a NME.
The petitioners assert that India is the most appropriate surrogate country for the PRC, claiming that India is: (1) A market economy; (2) at a level of economic development comparable to the PRC in terms of per-capita gross national income; and (3) a commercial producer of the subject merchandise. Based on the information provided by the petitioners, we believe that the petitioners' use of India as a surrogate country is appropriate for purposes of initiation of this investigation.
With respect to NV, the petitioners calculated a NV based on the constructed values for crude and finished CVP-23, which were then weight-averaged based on the relative quantity of crude and finished color pigment imported during the POI. The petitioners provided constructed values based on Indian surrogate values and factors of production from the production processes of Indian and U.S. producers of CVP-23. Most of the Indian material inputs for the production of CVP-23 are taken from a schedule published by the Government of India and used to calculate import credits in a program called the Duty Entitlement Passbook Scheme. The import credits are based on the quantity of physical inputs used to produce crude CVP-23 and other products covered by the program. For those inputs not reported by the Indian government, the petitioners relied on their own experience in producing crude and finished CVP-23, and they adjusted for any known differences between their production process, the Indian production process, and the Chinese CVP-23 production process. Petitioners were unable to obtain publicly available prices for two material inputs, chloranil and para toluene sulphonyl chloride, in India or any other surrogate country and, therefore, submitted price quotes from Indian suppliers. We determined these prices were sufficient for initiation purposes.
Where applicable, the petitioners adjusted values to be exclusive of excise and sales taxes. Indian values were converted to U.S. dollars using the exchange rates from the Department's website. Where surrogate values were not contemporaneous with the POI, the petitioners adjusted such values using wholesale price indices for all commodities from India.
For selling, general and administrative expenses, profit and packaging, the petitioners relied upon amounts reported in the 2001-2002 financial reports of Pidilite Industries Ltd., which according to its website is the largest producer of CVP-23 in India.
The estimated dumping margin for the PRC, based on a comparison of EP and NV based on a weight-averaged constructed value, is 370.06 percent.
Based on the data provided by the petitioners, there is reason to believe that imports of CVP-23 from India and the PRC are being, or are likely to be, sold at less than fair value.
The petitioners allege that the U.S. industry producing the domestic like product is being materially injured, or is threatened with material injury, by reason of the cumulated imports from India and the PRC of the subject merchandise sold at less than NV.
The petitioners contend that the industry's injured condition is evident in the declining trends in net operating profits, net sales volumes, domestic prices, revenue, profit-to-sales ratios, production employment, capacity utilization, and domestic market share. The allegations of injury and causation are supported by relevant evidence including U.S. import data, lost sales, and pricing information.
The Department has assessed the allegations and supporting evidence regarding material injury and causation and determined that these allegations are properly supported by adequate evidence and meet the statutory requirements for initiation.
Based upon our examination of the petition, we have found that it meets the requirements of section 732 of the Act.
In accordance with section 732(b)(3)(A) of the Act, a copy of the public version of the petition has been provided to the representatives of the governments of India and the PRC. We will attempt to provide a copy of the public version of the petition to each exporter named in the petition, as provided for under 19 CFR 351.203(c)(2).
We have notified the ITC of our initiations as required by section 732(d) of the Act.
The ITC will determine no later than January 5, 2004, whether there is a reasonable indication that imports of
Import Administration, International Trade Administration, Department of Commerce.
On September 30, 2003, the Department published the initiation of administrative review of the antidumping duty order on corrosion-resistant carbon steel flat products from Canada, covering the period August 1, 2002, through July 31, 2003.
December 19, 2003.
Scott Lindsay or Dana Mermelstein at (202) 482-0780 and (202) 482-1391, respectively; Office of AD/CVD Enforcement VII, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW., Washington, DC 20230.
On September 30, 2003, the Department published the initiation of administrative review of CCC, Dofasco, Ideal Roofing, Impact Steel, Russel Metals, Sorevco, and Stelco, covering the period August 1, 2002, through July 31, 2003.
Pursuant to the Department's regulations, the Department will rescind an administrative review “if a party that requested the review withdraws the request within 90 days of the date of publication of notice of initiation of the requested review.”
We are issuing and publishing this determination and notice in accordance with section 777(i) of the Act and 19 CFR 351.213(d)(4) of the regulations.
Import Administration, International Trade Administration, Department of Commerce.
Notice of extension of time limit for the preliminary results of new shipper reviews.
The Department of Commerce is extending the time limit for the preliminary results of new shipper reviews of the antidumping duty order on fresh garlic from the People's Republic of China until April 25, 2004. This extension applies to the new shipper reviews of the following seven exporters: Linyi Sanshan Import & Export Trading Co., Ltd., Sunny Import & Export Limited, Linshu Dading Private Agricultural Products Co., Ltd., Tancheng County Dexing Foods Co., Ltd., Jinxiang Dong Yun Freezing Storage Co., Ltd., Shanghai Ever Rich Trade Company, and Taian Ziyang Food Co., Ltd. The period of review is November 1, 2002, through April 30, 2003.
December 19, 2003.
Brian Ellman or Minoo Hatten, AD/CVD Enforcement 3, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW., Washington, DC 20230; telephone: (202) 482-4852 and (202) 482-1690, respectively.
On July 7, 2003, the Department of Commerce (the Department) announced the initiation of the new shipper reviews for seven companies.
The Tariff Act of 1930, as amended (the Act), at section 751(a)(2)(B)(iv) provides that the Department will issue the preliminary results of a new shipper review of an antidumping duty order within 180 days after the date on which the new shipper review was initiated. The Act also provides that the Department may extend that 180-day period to 300 days if it concludes that the new shipper review is
The Department has determined that the new shipper reviews are extraordinarily complicated and that it is not practicable to complete the preliminary results by the current deadline of December 27, 2003. There are a number of complex factual and legal questions related to the calculation of the antidumping margins in the new shipper reviews, in particular the analysis of the
We are issuing and publishing this notice in accordance with sections 751(a)(2)(B) and 777(i) of the Act and 19 CFR 351.214(i).
Import Administration, International Trade Administration, Department of Commerce.
Notice of Preliminary Results and Partial Rescission of Antidumping Duty Administrative Review.
The Department of Commerce (“the Department”) is conducting an administrative review of the antidumping duty order on stainless steel wire rods (“SSWR”) from India in response to a request by Panchmahal Steel Limited (“Panchmahal”), Mukand Limited (“Mukand”), the Viraj Group (“Viraj”), and by petitioner,
We have preliminarily determined that Mukand and Viraj have sold subject merchandise at less than normal value (“NV”) during the POR. In addition, we have determined to rescind the review with respect to Panchmahal based on the timely withdrawal of the only request for review of the company. Lastly, we have preliminarily determined to apply an adverse facts available rate to all sales and entries of Isibars' subject merchandise during the POR. If these preliminary results are adopted in our final results of this administrative review, we will instruct U.S. Customs and Border Protection (“CBP”) to assess antidumping duties on entries of subject merchandise during the POR for which the importer-specific assessment rates are above
We invite interested parties to comment on these preliminary results. Parties who submit arguments in this segment of the proceeding are requested to submit with the argument: (1) A statement of the issue, and (2) a brief summary of the argument.
January 20, 2004.
For Isibars contact Eugene Degnan at (202) 482-0414, for Mukand contact Jonathan Herzog at (202) 482-4271, for Panchmahal contact Jonathan Freed at (202) 482-3818, and for Viraj contact Kit Rudd at (202) 482-1385, or Robert Bolling at (202) 482-3434. AD/CVD Enforcement Group III, Office 9, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW., Washington, DC 20230.
On October 20, 1993, the Department published the final determination in the
On December 31, 2002, Mukand, Panchmahal, and Viraj requested an administrative review of the antidumping duty order on certain stainless steel wire rods from India.
On February 11, 2003, the Department issued Sections A-E questionnaires to Isibars, Mukand, Panchmahal, and Viraj. Additionally, the Department initiated a sales below cost of production inquiry and requested that Mukand and Viraj respond to Section D of the questionnaire in addition to Sections A, B, and C.
On March 4, 2003, the Department received a letter from Panchmahal withdrawing its request for an administrative review.
On March 11, 2003, Isibars submitted its Section A response to the Department and supplemented it with additional exhibits on April 11, 2003. On April 14, 2003, Isibars submitted its Sections B and C response. Additionally, on April 14, 2003, the Department issued its first supplemental Section A questionnaire to Isibars, to which Isibars responded on May 28, 2003. However, due to improper filing by Isibars, the Department initially rejected this submission.
On April 23, 2003, petitioner submitted an allegation that Isibars was selling subject merchandise below their
On May 29, 2003, the Department issued a Sections B and C supplemental questionnaire to Isibars, to which Isibars responded on June 20, 2003. On July 8, 2003, the Department received Isibars' Section D response. Also on July 8, 2003, Isibars properly refiled its first Section A supplemental questionnaire of May 28, 2003.
On August 20, 2003, the Department issued a second Sections A, B, and C supplemental questionnaire and a first Section D supplemental questionnaire. The Department received Isibars' response to the second Sections A, B, and C supplemental questionnaire on September 29, 2003 and to the first Section D supplemental questionnaire on October 14, 2003. On September 12, 2003, the Department issued a third Section A supplemental questionnaire to Isibars, to which Isibars responded on October 14, 2003. On September 24, 2003, the Department issued a second Section D supplemental questionnaire to Isibars, to which Isibars responded on October 14, 2003.
On October 6, 2003, the Department issued a fourth Section A supplemental questionnaire, a third Sections B and C supplemental questionnaire, and a third Section D supplemental questionnaire to Isibars, to which Isibars responded on October 20, 2003. On October 21, 2003, the Department issued a fifth Section A supplemental questionnaire and a fourth Section D questionnaire, to which Isibars responded on November 5, 2003.
On March 11, 2003, Mukand submitted its Section A response. On March 14, 2003, Mukand supplemented its Section A response with several exhibits. On April 7, 2003, Mukand submitted its Sections B and C questionnaire response.
On May 14, 2003, the Department requested pursuant to its
On July 28, 2003, the Department issued a Section D supplemental questionnaire to Mukand, to which Mukand responded on August 29, 2003. On August 12, 2003, the Department issued a Sections A, B, and C supplemental questionnaire to Mukand. Mukand responded to the Department's Sections A, B, and C supplemental questionnaire on September 8, 2003. Also on August 12, 2003, the Department issued a Section C supplemental questionnaire to Mukand regarding its CEP sales, to which Mukand submitted a letter, dated September 15, 2003, informing the Department that it would not submit a response to this questionnaire. On September 23, 2003, the Department issued a Sections A, B, C, and D supplemental questionnaire to Mukand, to which Mukand responded on October 17, 2003. On October 29, 2003, the Department issued a second Sections A, B, C, and D supplemental questionnaire to which Mukand responded on November 17, 2003.
Viraj submitted its Section A response on March 18, 2003 and its Sections B, C, and D responses on April 4, 2003. The Department issued its first Section A supplemental questionnaire to Viraj on April 9, 2003, to which Viraj responded on May 19, 2003. The Department issued its first Sections B, C, and D supplemental questionnaire to Viraj on June 20, 2003, to which Viraj responded on July 5, 2003. The Department issued a second Section A supplemental questionnaire to Viraj on September 3, 2003, to which Viraj responded on September 20, 2003. The Department issued a third Section A supplemental questionnaire to Viraj on September 11, 2003, to which Viraj responded on September 15, 2003. The Department issued a fourth supplemental questionnaire for Section A and a second Sections B, C and D supplemental questionnaire on October 7, 2003, to which Viraj responded on October 13, 2003. The Department issued a fifth Section A supplemental questionnaire to Viraj on October 13, 2003. Viraj responded to this questionnaire on October 20, 2003. The Department issued a third Sections C and D supplemental questionnaire to Viraj on October 20, 2003, to which Viraj responded on October 23, 2003. The Department issued a fourth Section D supplemental questionnaire to Viraj on October 27, 2003, to which Viraj responded on October 30, 2003. The Department issued a fifth Sections C and D supplemental questionnaire to Viraj on October 29, 2003, and received Viraj's response on October 30, 2003.
On August 5, 2003, the Department extended the due date for the preliminary results.
Additionally, on November 21, 2003, in accordance with Section 751(a)(3)(A) of the Act, the Department again extended the due date for the notice of preliminary results an additional 11 days from the revised due date of December 1, 2003, to December 12, 2003.
The period of review (“POR”) is December 1, 2001, through November 30, 2002.
The merchandise under review is certain SSWR, which are hot-rolled or hot-rolled annealed and/or pickled rounds, squares, octagons, hexagons or other shapes, in coils. SSWR are made of alloy steels containing, by weight, 1.2 percent or less of carbon and 10.5 percent or more of chromium, with or without other elements. These products are only manufactured by hot-rolling and are normally sold in coiled form, and are of solid cross Section. The majority of SSWR sold in the United States are round in cross-section shape, annealed and pickled. The most common size is 5.5 millimeters in diameter.
The SSWR subject to this review are currently classifiable under subheadings 7221.00.0005, 7221.00.0015, 7221.00.0030, 7221.00.0045, and 7221.00.0075 of the
As provided in section 782(i)(3) of the Act, we verified sales and cost information provided by Viraj from November 3, 2003, through November 8, 2003, using standard verification procedures, including an examination of relevant sales, cost, financial records, and selection of original documentation containing relevant information. Our verification results are outlined in the public version of the verification report and are on file in the Department's Central Records Unit located in Room B-099 of the main Department of Commerce Building, 14th Street and Constitution Avenue, NW., Washington, DC.
Section 351.213(d)(1) of the Department's regulations provides that a party which requests an administrative review may withdraw the request within 90 days after the date of publication of the notice of initiation of the requested administrative review. The Department may extend this deadline if it is reasonable to do so. On December 31, 2003, Panchmahal requested that the Department review its sales for the POR. On March 4, 2003, which is within the 90 day period, Panchmahal withdrew its request for an administrative review. Thus, Panchmahal's request was timely and no other interested party requested a review of Panchmahal's sales to the United States during the POR. Therefore, in accordance with 19 CFR 351.213(d)(1), the Department is rescinding the review, in part, with respect to Panchmahal for the period of December 1, 2001, through November 3, 2002.
In the instant review, despite numerous requests and clarifications from the Department, Isibars failed to adequately provide the information requested by the Department. As explained in detail below, because the Department received deficient and incomplete responses to the questionnaire and multiple supplemental questionnaires from Isibars, the Department was unable to verify the incomplete information that Isibars did provide, which is necessary for the margin analysis.
Section 776(a)(2) of the Act provides that, if an interested party: (A) Withholds information that has been requested by the Department; (B) fails to provide such information in a timely manner or in the form or manner requested subject to sections 782 (c) and (e) of the Act; (C) significantly impedes a proceeding under this title; or (D) provides such information but the information cannot be verified as provided in section 782(i) of the Act, the Department shall, subject to Section 782(d) of the Act, use the facts otherwise available in reaching the applicable determination.
Section 782(c)(1) of the Act provides that, if an interested party promptly notifies the Department that it is unable to submit the information requested in the requested form and manner, together with a full explanation and suggested alternative forms in which such party is able to submit the information, the Department shall take into consideration the ability of the party to submit the information in the requested form and manner, and may modify such requirements to the extent necessary to avoid imposing an unreasonable burden on that party. Section 782(c)(2) of the Act similarly provides that the Department shall consider the ability of the party submitting the information and shall provide such interested party assistance that is practicable.
Section 782(d) of the Act provides that, if the Department determines that a response to a request for information does not comply with the request, the Department will inform the person submitting the response of the nature of the deficiency and shall, to the extent practicable, provide that person the opportunity to remedy or explain the deficiency. If the person submits further information that continues to be unsatisfactory, or this information is not submitted within the applicable time limits, the Department may, subject to section 782(e) of the Act, disregard all or part of the original and subsequent responses, as appropriate.
Pursuant to section 782(e) of the Act, notwithstanding the Department's determination that the submitted information is “deficient” under section 782(d) of the Act, the Department shall not decline to consider such information if all of the following requirements are satisfied: (1) The information is submitted by the established deadline; (2) the information can be verified; (3) the information is not so incomplete that it cannot serve as a reliable basis for reaching the applicable determination; (4) the interested party has demonstrated that it acted to the best of its ability; and (5) the information can be used without undue difficulties.
In this review, Isibars repeatedly failed to supply the Department with information regarding home market and U.S. market sales reconciliations, major inputs from affiliates, control number (“CONNUM”) specific weight-averaged cost data, operable home market and U.S. market sales data, and they failed to serve petitioner in this review. These deficiencies effectively prevented the Department from conducting a meaningful verification. Despite the numerous requests by the Department in supplemental questionnaires, telephone calls, and e-mails, Isibars has failed to rectify the above mentioned factual deficiencies to the record, and to properly serve petitioner in this review. Additionally, the Department offered extra assistance and aid to Isibars in getting the required information on the record.
The Department delayed its departure for verification in order to allow Isibars time to provide the necessary information requested by the Department.
Accordingly, and as discussed in more detail below, the Department determined to apply facts available for
The reconciliation is required of respondents to determine if all appropriate sales of the subject merchandise have been reported. A reconciliation serves as a “starting point” for the Department at verification.
Isibars' failure to provide or withholding of the requested reconciliation is an incomplete questionnaire response that significantly impeded this proceeding.
Section 776(a)(2)(A) of the Act authorizes the Department, subject to section 782(d) of the Act, to use facts otherwise available when a respondent withholds information that has been requested by the Department. The Department has requested sales reconciliations from Isibars three times: in the original questionnaire, sent on February 11, 2003; in a supplemental questionnaire, issued on October 21, 2003; and in a letter to Isibars, sent on October 29, 2003.
Section 782(d) requires that, in the case of a deficient response by the respondent, the Department inform the respondent of the deficiency, and give the respondent an opportunity to remedy or explain the deficiency. In addition to the original questionnaire, and two supplemental questionnaires requesting a sales reconciliation, the Department, in an October 29, 2003, letter, alerted Isibars that failure to supply this information would lead to the cancellation of verification, and may result in the Department basing its determination on facts available.
Because Isibars failed to supply the Department with the requested sales reconciliation that the Department needed to conduct a meaningful verification, and gave no explanation why it has failed to do so, despite numerous opportunities afforded by the Department, the Department cannot consider Isibars to have acted to the best of its ability in this review. Therefore, the application of adverse facts available in determining the preliminary margin, in accordance with section 776(b) of the Act, is warranted.
Section 773(f)(2) of the Act allows the Department to test whether transactions between affiliated parties involving any element of value (
Section 776(a)(2)(A) of the Act authorizes the Department, subject to section 782(d) of the Act, to use facts otherwise available when a respondent withholds information that has been requested by the Department. Isibars has repeatedly failed to provide information regarding its affiliate's cost of production and market price for major inputs supplied by its affiliates. The Department has requested this information three times in questionnaires and supplemental questionnaires: the original Section D questionnaire, issued June 3, 2003; and two supplemental questionnaires, issued on September 24, 2003, and October 21, 2003. Because Isibars has withheld this information, the Department is authorized, subject to section 782(d) of the Act, to use facts otherwise available.
Section 776(a)(2)(D) of the Act authorizes the Department, subject to section 782(d) of the Act, to use facts otherwise available when a respondent provides information, but the information cannot be verified. Because Isibars provided only the transfer price of major inputs, and not the market price and the affiliate's cost of
Section 782(d) requires that, in the case of a deficient response by the respondent, the Department inform the respondent of the deficiency, and give the respondent an opportunity to remedy or explain the deficiency. In addition to the two supplemental questionnaires that were issued requesting that Isibars supply major input information, the Department also notified Isibars of the importance of supplying this information to the Department in two letters sent to Isibars, on October 21, 2003, and on October 29, 2003.
Because Isibars has not provided the requested information necessary to value major inputs despite numerous opportunities and requests by the Department, and because Isibars has offered no explanation why they have not supplied this information, we determine, pursuant to section 776(b) of the Act, that Isibars has not acted to the best of its ability to comply with the Department's requests for information. Therefore, the application of adverse facts available in determining the preliminary margin, in accordance with section 776(b) of the Act, is warranted.
Despite the repeated requests by the Department to correct its data, Isibars' reported labor and variable overhead costs remain virtually the same for each CONNUM in its reported cost of production (“COP”) data, and literally the same for each CONNUM in its reported constructed value (“CV”) data. Without accurate data for these items, the Department cannot perform an accurate cost test, cannot make appropriate selections for price-to-price comparisons, and cannot determine accurate constructed values for use as normal value. Therefore, Isibars' Section D response is unusable for this preliminary determination.
Section 776(a)(2)(A) of the Act authorizes the Department, subject to section 782(d) of the Act, to use facts otherwise available when a respondent withholds information that has been requested by the Department. The Department has requested that Isibars report its Section D COP and CV data as CONNUM specific weighted-average data six times: in the original Section D questionnaire, in three supplemental questionnaires, issued on August 20, 2003; on October 6, 2003; and on October 21, 2003; and in a letter and an e-mail sent to Isibars on October 29, 2003. Isibars has never complied with these numerous requests.
Section 776(a)(2)(B) of the Act authorizes the Department, subject to section 782(d) of the Act, to use facts otherwise available when a respondent fails to provide requested information in the form or manner requested by the Department, subject to sections (c)(1) and (e) of section 782. Although Isibars supplied some cost data, as explained immediately below, it repeatedly failed to conform its cost data to the form requested by the Department. Isibars never, pursuant to section 782(c)(1), notified the Department that it could not submit this data in the form requested. Furthermore, the data, as provided by Isibars, is unusable by the Department in determining Isibars' COP.
Section 776(a)(2)(D) of the Act authorizes the Department, subject to section 782(d) of the Act, to use facts otherwise available when a respondent provides information, but the information cannot be verified. Because Isibars' Section D cost data is not provided as CONNUM specific weighted-averaged data, the Department cannot verify the COP for each unique product of subject merchandise.
Section 782(d) requires that, in the case of a deficient response by the respondent, the Department inform the respondent of the deficiency, and give the respondent an opportunity to remedy or explain the deficiency. In the original Section D questionnaire, the Department provided a general explanation to Isibars of how to report its COP data. This general explanation instructed Isibars that the COP is the weighted-average CONNUM specific cost of the product sold.
In the first Section D supplemental questionnaire, issued on August 20, 2003, the Department explained to Isibars that it must account for time in its allocations for labor and variable production overhead, and requested Isibars submit worksheets showing how it calculated these costs. Isibars never responded to these requests. In the October 21, 2003, supplemental questionnaire, the Department requested this again, and Isibars did respond, in its November 5, 2003, response, but did not account for time in its allocation. The Department also stressed to Isibars in the Department's October 6, 2003, supplemental questionnaire that Isibars must report weighted average costs specific to each unique CONNUM. However, to date Isibars has never adjusted its reported CONNUM data to reflect CONNUM specific, weighted-average data. Finally, in light of the fact that Isibars appears in this review
Because Isibars failed to supply the Department with the requested data that the Department needed to conduct a meaningful verification, and gave no explanation why it has failed to do so, despite numerous opportunities afforded by the Department, the Department cannot consider Isibars to have acted to the best of its ability in this review. Therefore, the application of adverse facts available in determining the preliminary margin, in accordance with section 776(b) of the Act, is warranted.
The final computer data file received by the Department from Isibars on November 5, 2003, contained data files for Sections B & C that were inoperable and could not be accessed.
Section 776(a)(2)(A) of the Act authorizes the Department, subject to section 782(d) of the Act, to use facts otherwise available when a respondent withholds information that has been requested by the Department. Isibars failed to provide final data sets of home market and U.S. sales, immediately before the planned verification.
Section 782(d) requires that, in the case of a deficient response by the respondent, the Department inform the respondent of the deficiency, and give
Because Isibars failed to supply the Department with the necessary sales data that the Department needed to conduct a meaningful verification, and gave no explanation why it has failed to do so, despite numerous opportunities afforded by the Department, the Department cannot consider Isibars to have acted to the best of its ability in this review. Therefore, the application of adverse facts available in determining the preliminary margin, in accordance with section 776(b) of the Act, is warranted.
Isibars' non-service of petitioners, in conjunction with numerous late filings, improper filings, and incomplete responses by Isibars, has possibly impaired petitioners ability to participate in this review.
Section 776(a)(2)(B) of the Act authorizes the Department, subject to section 782(d) of the Act, to use facts otherwise available when a respondent fails to provide information by the deadline for submission, or in the form or manner requested. Isibars has failed to serve the petitioner in this review numerous times, as requested by section 351.303(f)(1) of the Department's regulations, which directs all persons filing a document with the Department to simultaneously serve a copy of that document to all persons on the service list. To date, petitioner has not received: Isibars' September 29, 2003, Sections B & C supplemental questionnaire response; Isibars' October 14, 2003, Section A supplemental questionnaire response; Isibars' October 14, 2003, first Section D supplemental questionnaire response; Isibars' October 14, 2003, Section D second supplemental questionnaire response; nor Isibars' October 20, 2003, Sections A, B and D supplemental questionnaire response.
Section 782(d) requires that, in the case of a deficient response by the respondent, the Department inform the respondent of the deficiency, and give the respondent an opportunity to remedy or explain the deficiency. Despite numerous admonitions by the Department (
Because Isibars failed to serve petitioner, and gave no explanation why it has failed to do so, despite admonitions by the Department, the Department cannot consider Isibars to have acted to the best of its ability in this review. Therefore, the application of adverse facts available in determining the preliminary margin, in accordance with section 776(b) of the Act, is warranted.
Isibars' failure to provide the information requested by the Department has resulted in an inadequate response that has prevented the Department from conducting verification and using its data in the preliminary results.
In selecting from among the facts otherwise available, section 776(b) of the Act provides that adverse inferences may be used in selecting from the facts available if a party has failed to cooperate by not acting to the best of its ability to comply with a request for information. Adverse inferences are appropriate “to ensure that the party does not obtain a more favorable result by failing to cooperate than if it had cooperated fully.”
In this case, Isibars has failed to cooperate by not acting to the best of its ability to comply with the requests for information. As discussed above, despite the numerous requests by the Department, Isibars failed to provide or withheld requested information from the Department (
Due to Isibars' failure to provide the requested information that the Department identified as necessary for the verification, the Department was precluded from conducting verification by the inadequacy of information on the record. Moreover, Isibars failed to provide a reasonable explanation for its failure to comply with these standard requests for information. Accordingly, the Department finds that Isibars did not act to the best of its ability to provide the information requested, despite the assistance offered by the Department. As facts become available, we have preliminarily assigned Isibars the all others rate of 48.80 percent. As discussed below, we have corroborated this rate pursuant to 19 CFR 351.308(d) of the Department's regulations.
Section 776(c) of the Act provides that when the Department relies on the facts otherwise available and relies on “secondary information,” the Department shall to the extent practicable, corroborate that information from independent sources reasonably at the Department's disposal. The
With respect to the relevance aspect of the corroboration, the Department has considered information reasonably at its disposal to determine whether a margin continues to have relevance. Where circumstance indicate that the selected margin is not appropriate as AFA, the Department will disregard the margin and determine an appropriate margin. For example, in
Accordingly, we determine that the highest rate from any previous segment of this administrative proceeding (
In the previous administrative review, the Department collapsed Viraj Forgings Limited (“VFL”), Viraj Alloys Limited (“VAL”) and Viraj Impoexpo Limited (“VIL”) because the companies were found capable, through their sales and production operations, of manipulating prices or affecting production decisions.
Section 771 (33) of the Act, states that the Department considers the following parties as affiliated:
(A) Members of a family, including brothers and sisters (whether by the whole or half blood), spouse, ancestors, and lineal descendants;
(B) Any officer or director of an organization and such organization;
(C) Partners;
(D) Employer and employee;
(E) Any person directly or indirectly owning, controlling, or holding with power to vote, 5 percent or more of the outstanding voting stock or shares of any organization and such organization;
(F) Two or more persons directly or indirectly controlling, controlled by, or under common control with, any person; and
(G) Any person who controls any other person and such other person.
For the purpose of this statute, a person is deemed to control another person if the person is legally or operationally in a position to exercise restraint or direction over the other person.
The Department has analyzed the information regarding affiliation on the record in this administrative review, and preliminarily determines that VAL and VSL should be considered affiliated under sections 771(33)(A) and (F) by virtue of common control by several family members involved in ownership and management of VAL and VSL.
Moreover, the aforementioned chairperson and directors of VAL and VSL control significant shares of stocks in both companies, and the chairperson of VAL is also the managing director of VAL.
Further, the Department preliminarily determines that VAL and VSL should be collapsed in accordance with 19 CFR 351.401(f), because both VAL and VSL have production facilities to produce similar or identical merchandise without substantial retooling and there is a significant potential for the manipulation of price or production.
During the POR, for sales to the home market, VAL produced and retained title to stainless steel billets which are rolled by an unaffiliated subcontractor into stainless steel wire rod, via tolling arrangement. The subcontractor returns the non-annealed and non-pickled finished wire rod (“unfinished wire rod”) to VAL, who transfers it to VSL, who sells the subject merchandise in the home market. For sales to the U.S. market, VAL produced and retained title
According to 19 CFR 351.401(h), the Department does not consider a subcontractor or toller as the producer of subject merchandise where that subcontractor or toller does not acquire ownership or sell the relevant merchandise. Thus, via its tolling arrangement with the unaffiliated subcontractor, VAL is considered a producer of SSWR, because the unaffiliated subcontractor does not acquire ownership of VAL's stainless steel billets/SSWR, nor does it control the sale of the SSWR, once it has been rolled.
Further, the Department also considers VSL a producer of SSWR. By virtue of the fact that VSL obtains title to VAL's unfinished SSWR and then finishes the production (
Additionally, the Department also finds that in accordance with 19 CFR 351.401(f)(1), VAL has the capability to add finishing equipment (
Finally, the Department preliminarily determines that VAL and VSL have enough common ownership and have intertwined their operations significantly enough to justify the conclusion that a significant potential for manipulation of price and production exists. Thus, the Department preliminarily determines that VAL and VSL should be collapsed. Specifically, (1) VAL and VSL share common shareholders, including the chairpersons and directors of VAL and VSL; (2) VAL acts as the sole supplier to VSL of unfinished wire rods; and (3) VSL makes all sales of SSWR in the home market and U.S. market.
To determine whether sales of subject merchandise from India to the United States by Mukand and Viraj were made at less than NV, we compared the export price (“EP”) and CEP, as appropriate, to the NV, as described in the “Export Price/Constructed Export Price” and “NV” sections of this notice, below. In accordance with section 777A(d)(2) of the Act, we calculated monthly weighted-average prices for NV and compared these to individual EP and CEP transactions.
In accordance with section 771(16) of the Act, we considered all products covered by the
Mukand submitted information on the record which claimed that all of its reported grades should be treated as distinct grades for calculation purposes.
The grade chemistries provided on the record by Mukand indicate that the chemistry ranges reported by Mukand for grades 304L and 304LN are of a similar chemistry and composition; thus, Mukand's grades 304LN and 304L have been treated by the Department as one grade for purposes of the home market and U.S. sales programs.
It is the Department's practice not to create additional categories unless the physical characteristics are significantly different from an existing known category.
In accordance with section 772(a) of the Act, EP is the price at which the subject merchandise is first sold (or agreed to be sold) before the date of
For purposes of this review, Mukand has classified certain sales as EP sales and certain sales as CEP sales. Based on the information on the record, we are using both EP and CEP as defined in section 772(a) and (b) of the Act.
For purposes of this review, Viraj has classified all sales as CEP sales. Based on the information on the record, we are using CEP as defined in section 772(b) of the Act.
The Department has determined that Mukand's EP sales are properly reported sales, because those sales were made in accordance with the definition of an EP sale. Mukand has classified those sales made by its wholly-owned affiliate, Mukand International Limited (“MIL”), which was based in the United Arab Emirates during the POR, as EP sales. For the reported EP sales, MIL sold directly to a U.S. customer, prior to importation. Based on the evidence on the record, the Department preliminarily determines that MIL's EP sales were made within the meaning of section 772(a) of the Act, and thus have been appropriately classified by Mukand as EP transactions.
The Department based EP on packed prices to unaffiliated purchasers in the United States. The Department made deductions for inland freight, international freight, marine insurance, brokerage and handling, and U.S. Customs duties in accordance with section 772(c)(2) of the Act.
In addition, Mukand classified certain sales made in the United States after importation, in accordance with an agreement signed by MIL and its customer Precision Metals Services (“PMS”) (“the Agreement”), as CEP sales. Due to the proprietary nature of this agreement, please refer to Antidumping Duty Administrative Review of Stainless Steel Wire Rods from India: Agency Sales Analysis, dated December 12, 2003 (
Additionally, based on the evidence on the record, the Department has preliminarily determined that given the unique terms and circumstances of these sales, those sales classified by Mukand as CEP sales should also be treated as sales made through an agent, with PMS as the agent.
Citing the
By not providing the agency sales information requested by the Department, in a database format that provides specific prices and expenses for these agency sales, Mukand has prevented the Department from calculating an accurate dumping margin. Further, in the
However, despite this knowledge, Mukand and PMS failed to respond to the Department's request to remedy the deficiencies in their response to the Department's request for the downstream sales prices and expenses for the CEP/agency sales. Thus, because Mukand was aware of the fact that the Department would examine its reported CEP/agency sales and the potential consequences of not responding to the Department's request, and because, unlike in the last review, the Department made this request several months before the preliminary determination, the Department has preliminarily determined to apply facts available to these sales (
Consistent with sections 776(a)(2)(A) and 776(b) of the Act, Mukand and PMS withheld information that had been requested by the Department and did not act to the best of its ability to comply with the Department's request for information, justifying the use of adverse facts available in reaching the applicable determination. Therefore, the Department has preliminarily determined that the use of adverse facts available for the prices and expenses incurred for Mukand's agency sales in the U.S. market, in accordance with section 776(b) of the Act. Facts available, the Department has applied the corroborated “all others” rate of 48.8% to Mukand's reported CEP sales.
For purposes of this review, Viraj has classified all of its sales as CEP sales. Based on the information on the record, we are using CEP as defined in section 772(b) of the Act.
Viraj has classified those sales made by VSL through Viraj USA Inc. (“VUI”), an affiliated reseller in the United States that is 100% owned by VFL, as CEP sales. VSL makes the shipment from India on an Ex-Dock Duty Paid (“EDDP”) basis to VUI. VUI clears the goods through U.S. customs and oversees customer delivery. Then VUI sells the goods to the unaffiliated U.S. customer, who makes payment to VUI.
Based on the record evidence, the Department preliminarily determines that VSL's U.S. sales through VUI were made “in the United States” within the meaning of section 772(b) of the Act, and thus have been appropriately classified by Viraj as CEP transactions.
The Department calculated CEP, in accordance with section 772(b) of the Act, based on the packed EDDP prices to the first unaffiliated customer in the United States. The Department made deductions for movement expenses in accordance with section 772(c)(2)(A) of the Act; these included, where appropriate, brokerage and handling, inland freight, international freight, U.S. customs duties, marine insurance, and customs clearance and delivery arrangements. In accordance with section 772(d)(1) of the Act, we deducted those selling expense associated with economic activities occurring in the United States, including direct selling expenses (bank charges and credit expenses) and indirect selling expenses.
We recalculated Viraj's U.S. credit expenses to reflect U.S. Federal Reserve short-term rates in accordance with the Department's policy, because Viraj did not incur any short-term loans denominated in U.S. dollars, and the rate reported by Viraj was based on a rate quote that could not be substantiated.
We deducted the profit allocated to expenses deducted under sections 772(d)(1) and (d)(2) in accordance with sections 772(d)(3) and 772(f) of the Act. In accordance with section 772(f) of the Act, we computed profit based on total revenues realized on sales in both the U.S. and home markets, less all expenses associated with those sales. We then allocated profit to expenses incurred with respect to U.S. economic activity, based on the ratio of total U.S. expenses to total expenses for both the U.S. and home market.
In the previous two administrative reviews, the Department denied Viraj's request for an upward adjustment to the U.S. starting price based on duty drawback pursuant to section 772(c)(1)(B) of the Act.
Similarly, in the current review, the Department finds that Viraj has not provided substantial evidence on the record to establish the necessary link between the import duty and the reported rebate for duty drawback. Viraj has reported that it received duty drawback in the form of duty entitlement certificates which are issued by the Government of India to neutralize the incidence of basic custom duty on the import of raw materials used in the production of subject merchandise, but has failed to establish the necessary link between the import duty paid and the rebate given by the Government of India.
After testing home market viability, we calculated NV as noted in the “Price-to-CV Comparisons” and “Price-to-Price Comparisons” sections of this notice.
In accordance with section 773(a)(1)(C) of the Act, to determine whether there was a sufficient volume of sales in the home market to serve as a viable basis for calculating NV (
For NV, we used the prices at which the foreign like product was first sold for consumption in India, in the usual commercial quantities, in the ordinary course of trade, and, to the extent possible, at the same level of trade (“LOT”) as the EP or CEP as appropriate. After testing home market viability and whether home market sales were at below-cost prices, we calculated NV as noted in the “Price-to-Price Comparisons” and “Price-to-Constructed Value (“CV”) Price Comparisons” sections of this notice.
Additionally, Viraj reported the home market sales of VSL. Since we have preliminarily determined to collapse the companies of Viraj, we included the home market sales of VSL as the basis of NV for Viraj.
Because the Department disregarded certain Mukand sales made in the home market at prices below the cost of producing the subject merchandise in the most recently completed segment of this proceeding and excluded such sales
Because the Department disregarded certain Viraj Group sales made in the home market at prices below the cost of producing the subject merchandise in the most recently completed segment of this proceeding and excluded such sales from NV, the Department determined that there are reasonable grounds to believe or suspect that Viraj made sales in the home market at prices below the cost of producing the merchandise in this review.
In accordance with section 773(b)(3) of the Act, we calculated cost of production (“COP”) based on the sum of Mukand and Viraj's costs of materials and fabrication for the foreign like product, plus amounts for home market selling, general and administrative expenses (“SG&A”), including interest expenses, and packing costs. The Department relied on the COP data submitted by Mukand and Viraj in their original and supplemental cost questionnaire responses for this calculation.
For the preliminary results, the Department denied Viraj's claimed interest offset because we have determined that Viraj's claimed interest offsets that were not of a short-term nature.
We compared the weighted-average COP for Mukand and Viraj's home market sales of the foreign like product as required under section 773(b) of the Act, in order to determine whether these sales had been made at prices below the COP. In determining whether to disregard home market sales made at prices less than the COP, we examined whether such sales were made: (1) In substantial quantities within an extended period of time; and (2) at prices which permitted the recovery of all cost with all costs within a reasonable period of time, in accordance with sections 773(b)(1)(A) and (B) of the Act. We compared the COP to home market prices, less any applicable billing adjustments, movement charges, discounts, and indirect selling expenses.
Pursuant to section 773(b)(2)(C) of the Act, where less than 20 percent of the sales made by Mukand and Viraj of a given product were, within an extended period of time, at prices less than the COP, we did not disregard any below-cost sales of that product because we determined that the below-cost sales were not made in “substantial quantities.” Where 20 percent or more of the sales made by Mukand and Viraj of a given product were at prices less than the COP, we determined such sales to have been made in “substantial quantities” within an extended period of time, in accordance with sections 773(b)(2)(B) of the Act and 19 C.F.R. 351.406(b). In such cases, because we used POR average costs, we also determined that such sales were not made at prices which would permit recovery of all costs within a reasonable period of time, in accordance with section 773(b)(2)(D) of the Act. We compared the COP for subject merchandise to the reported home market prices less any applicable movement charges. Based on this test, we disregarded below-cost sales. Where all sales of a specific product were at prices below the cost of production, we disregarded all sales of that product.
In accordance with section 773(a)(4) of the Act, we based NV on CV if we were unable to find a home market match of identical or similar merchandise. We calculated CV based on the sum of the cost of materials, fabrication employed by Mukand and Viraj in producing the subject merchandise, and SG&A, including interest expenses and profit. We calculated the COPs included in the calculation of CV as noted above in the “Calculation of COP” section of this notice. In accordance with section 773(e)(2)(A) of the Act, we based SG&A expense and profit on the amounts incurred and realized by the respondent in connection with the production and sale of the foreign like product in the ordinary course of trade for consumption in India. For selling expenses, we used the actual weighted-average home market direct and indirect selling expenses. For CV, we made the same adjustments described in the COP section above.
For those products comparisons for which there were sales at prices at or above the COP, we based NV on the home market prices to the home market customers. We made adjustments, where applicable, for inland freight from plant to distribution warehouse, and warehousing in accordance with section 773(a)(6)(B)(i) and (ii) of the Act. We made circumstance-of-sale adjustments for commissions, credit and interest revenue, where appropriate, in accordance with section 773(a)(6)(C) of the Act. We also made commission-offset adjustments, where applicable, for indirect selling expenses, including inventory carrying costs in accordance with section 773(a)(6)(C) of the Act.
We made adjustments, where appropriate, for physical differences in the merchandise in accordance with section 773(a)(6)(C)(ii) of the Act. Additionally, in accordance with section 773(a)(6)(A), we added U.S. packing costs. In accordance with the Department's practice, where all contemporaneous matches to a U.S. sale observation resulted in difference-in-merchandise adjustments exceeding 20 percent of the cost of manufacturing (“COM”) of the U.S. product, we based NV on CV. Finally, in accordance with section 773(a)(4) of the Act, where the Department was unable to determine NV on the basis of contemporaneous matches in accordance with section 773(a)(1)(B)(i) of the Act, we based NV on CV.
For those products comparisons for which there were sales at prices at or above the COP, we based NV on the home market prices to the home market customers. We made circumstance-of-sale adjustments for commissions and credit, where appropriate in accordance with section 773(a)(6)(C) of the Act. We also made adjustments, where applicable, for other discounts and indirect selling expenses in accordance with section 773(a)(6)(B)(ii) of the Act.
We made adjustments, where appropriate, for physical differences in the merchandise in accordance with section 773(a)(6)(C)(ii) of the Act. Additionally, in accordance with
In accordance with section 773(a)(1)(B) of the Act, to the extent practicable, we determine NV based on sales in the comparison market at the same level of trade (“LOT”) as the EP or CEP transaction.
To determine the LOT of a sale, we examine stages in the marketing process and selling functions along the chain of distribution between the producer and the unaffiliated customer. Substantial differences in selling activities are a necessary, but not sufficient condition for determining that there is a difference in the stage of marketing.
In implementing these principles in this review, we obtained information from Mukand and Viraj about the marketing stages involved in their respective U.S. and home market sales, including a description of the selling activities performed by Mukand and Viraj for each channel of distribution. In identifying levels of trade for CEP, we considered only the selling activities reflected in the price after the deduction of expenses and profit under section 772(d) of the Act.
In the present review, while Mukand requested an LOT adjustment, Viraj did not; the Department nonetheless considered LOT adjustments for both Mukand and Viraj. To determine whether an adjustment was necessary for either company, in accordance with the principles discussed above, we examined information regarding the distribution systems in both the United States and home markets, including the selling functions, classes of customer, and selling expenses.
In the home market (“HM”), Mukand reported three levels of trade.
For the U.S. market, Mukand reported one level of trade.
For EP sales in the U.S. market, Mukand provided the same level of services for both EP and NV sales with only minor differences.
In order to determine whether NV was established at a different LOT than CEP, we examined stages in the marketing process and selling functions between Mukand and its home market customers. We compared the selling functions performed for home market sales with those performed with respect to the CEP transactions, after deductions for economic activities occurring in the United States, pursuant to section 772(d) of the Act, to determine if the home market level of trade constituted a different level of trade than the CEP level of trade. After analyzing the selling functions performed for sales in the HM and CEP sales in the U.S. market, we preliminarily determine that there is no significant difference in the selling functions performed in the home market and U.S. market, and that these sales are made at the same LOT.
Mukand did not request a CEP offset. Nonetheless, in accordance with the principles discussed above, we examined information regarding the distribution systems in both the United States and the Indian markets, including the selling functions, classes of customer, and selling expenses to determine whether a CEP offset was necessary. In identifying levels of trade for CEP, we considered only the selling activities reflected in the price after the deduction of expenses and profit under section 772(d) of the Act.
In accordance with the principles discussed above, we examined information regarding Viraj's distribution systems in both the United States and Indian markets, including selling functions, classes of customer, and selling expenses for Viraj.
Viraj claimed three levels of trade in the home market.
Viraj claimed three levels of trade in the U.S. market.
In order to determine whether NV was established at a different LOT than CEP sales, we examined stages in the marketing process and selling functions along the chains of distribution between (1) Viraj and its home market customers and (2) Viraj and its affiliated U.S. reseller, VUI, after deductions for expenses and profits. Specifically, we compared the selling functions performed for home market sales with those performed with respect to the CEP transaction, after deductions for economic activities occurring in the United States, pursuant to section 772(d) of the Act, to determine if the home market level of trade constituted a different level of trade than the CEP level of trade.
Viraj did not request a CEP offset. Nonetheless, in accordance with the principles discussed above, we examined information regarding the distribution systems in both the United States and Indian markets, including the selling functions, classes of customer, and selling expenses to determine whether a CEP offset was necessary. For CEP sales, we found that Viraj provided many of the same selling functions and expenses for its sale to its affiliated U.S. reseller VUI as it provided for its home market sales, including price negotiation, order processing, and customer communication. Based on our analysis of the channels of distribution and selling functions performed for sales in the home market and CEP sales in the U.S. market, we preliminarily find that there is no significant difference in the selling functions performed in the home market and the U.S. market for CEP sales. Thus, we find that Viraj's NV and CEP sales were made at the some LOT, and no LOT adjustment or CEP offset need be granted.
We made currency conversions into U.S. dollars based on the exchange rates in effect on the dates of the U.S. sales, as certified by the Federal Reserve Bank, in accordance with section 773A(a) of the Act.
As a result of our review, we preliminarily determine that the following weighted-average dumping margin exists for Isibars, Mukand, and Viraj for the period December 1, 2001 through November 30, 2002:
The Department will disclose calculations performed for these preliminary results within five days of the date of publication of this notice to the parties of this proceeding in accordance with 19 CFR 351.224(b). Any interested party may request a hearing within 30 days of publication of these preliminary results.
Upon issuance of the final results of this review, the Department shall determine, and the CBP shall assess, antidumping duties on all appropriate entries. Pursuant to 19 CFR 351.212(b), the Department has calculated an assessment rate applicable to all appropriate entries. We calculated importer-specific duty assessment rates on the basis of the ratio of the total amount of antidumping duties calculated for the examined sales to the total entered value, or entered quantity, as appropriate, of the examined sales for that importer. Upon completion of this review, where the assessment rate is above de minimis, we will instruct BCBP to assess duties on all entries of subject merchandise by that importer.
The following cash deposit requirements will be effective upon publication of the final results of this administrative review for all shipments of the subject merchandise entered, or withdrawn from warehouse, for consumption on or after the publication date of the final results of this administrative review, as provided by section 751(a)(1) of the Act: (1) The cash deposit rate for each of the reviewed companies will be the rate listed in the final results of review (except that if the
This notice also serves as a preliminary reminder to importers of their responsibility under 19 CFR 351.402(f)(2) to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during this review period. Failure to comply with this requirement could result in the Secretary's presumption that reimbursement of the antidumping duties occurred and the subsequent assessment of double antidumping duties.
This determination is issued and published in accordance with sections 751(a)(1) and 777(i)(1) of the Act.
Import Administration, International Trade Administration, Department of Commerce.
December 19, 2003.
Sean Carey at (202) 482-3964, Office of AD/CVD Enforcement Office 7, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW., Washington, DC 20230.
On November 21, 2003, the U.S. Department of Commerce (the Department) received a petition filed in proper form by Sun Chemical Corporation and Nation Ford Chemical Company (collectively, the petitioners). The Department received supplemental information to the petition from the petitioners on December 5, 2003.
In accordance with section 702(b)(1) of the Act, petitioners allege that producers or exporters of carbazole violet pigment 23 (CVP-23) in India receive countervailable subsidies within the meaning of section 701 of the Act, and that imports from India are materially injuring, or are threatening material injury, to an industry in the United States.
The Department finds that the petitioners filed the petition on behalf of the domestic industry because they are interested parties as defined in section 771(9)(C) of the Act and they have demonstrated sufficient industry support with respect to the countervailing duty investigation that they are requesting the Department to initiate.
The anticipated period of investigation (POI) is January 1, 2002 through December 31, 2002.
The merchandise covered by this investigation is carbazole violet 23 identified as Color Index No. 51319 and Chemical Abstract No. 6358-30-1, with the chemical name of
The merchandise subject to this investigation is classifiable under subheading 3204.17.9040 of the Harmonized Tariff Schedule of the United States (HTSUS). Although the HTSUS subheading is provided for convenience and customs purposes, the written description of the merchandise under investigation is dispositive.
During our review of the petition, we discussed the scope with the petitioners to ensure that it is an accurate reflection of the products for which the domestic industry is seeking relief. As discussed in the preamble to the Department's regulations (
In accordance with Article 13.1 of the Agreement on Subsidies and Countervailing Measures and section 702(b)(4)(A)(ii) of the Tariff Act of 1930, we held consultations with the Government of India (“GOI”) regarding this petition on December 9, 2003.
Section 702(b)(1) of the Act requires that a petition be filed on behalf of the domestic industry. Section 702(c)(4)(A) of the Act provides that the Department's industry support determination, which is to be made before the initiation of the investigation, be based on whether a minimum percentage of the relevant industry supports the petition. A petition satisfies this requirement if the domestic producers or workers who support the petition account for: (1) at least 25 percent of the total production of the domestic like product; and (2) more than 50 percent of the production of the
Section 771(4)(A) of the Act defines the “industry” as the producers of a domestic like product. Thus, to determine whether a petition has the requisite industry support, the statute directs the Department to look to producers and workers who produce the domestic like product. The U.S. International Trade Commission (ITC), which is responsible for determining whether “the domestic industry” has been injured, must also determine what constitutes a domestic like product in order to define the industry. While both the Department and the ITC must apply the same statutory definition regarding the domestic like product (section 771(10) of the Act), they do so for different purposes and pursuant to separate and distinct authority. In addition, the Department's determination is subject to limitations of time and information. Although this may result in different definitions of the like product, such differences do not render the decision of either agency contrary to the law.
Section 771(10) of the Act defines the domestic like product as “a product which is like, or in the absence of like, most similar in characteristics and uses with, the article subject to an investigation under this title.” Thus, the reference point from which the domestic like product analysis begins is “the article subject to an investigation,”
In this case, the petition covers a single class or kind of merchandise, CVP-23, as defined in the “Scope of Investigation” section, above. The petitioners do not offer a definition of domestic like product distinct from the scope of the investigation. Further, based on our analysis of the information presented to the Department by the petitioners, we have determined that there is a single domestic like product which is consistent with the definition of the “Scope of the Investigation” section above and have analyzed industry support in terms of this domestic like product.
The Department has determined that the petitioners have established industry support representing over 50 percent of total production of the domestic like product, requiring no further action by the Department pursuant to section 702(c)(4)(D) of the Act. In addition, the Department received no opposition to the petitions from domestic producers of the like product. Therefore, the domestic producers or workers who support the petitions account for at least 25 percent of the total production of the domestic like product, and the requirements of section 702(c)(4)(A)(i) of the Act are met. Furthermore, the domestic producers or workers who support the petitions account for 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 petitions. Thus, the requirements of section 702(c)(4)(A)(ii) of the Act also are met.
Accordingly, we determine that the petition is filed on behalf of the domestic industry within the meaning of section 702(b)(1) of the Act.
Because India is a “Subsidies Agreement Country” within the meaning of section 701(b) of the Act, section 701(a)(2) applies to this investigation. Accordingly, the ITC must determine whether imports of the subject merchandise from India are materially injuring, or are threatening material injury to, an industry in the United States.
Section 702(b) of the Act requires the Department to initiate a countervailing duty proceeding whenever an interested party files a petition, on behalf of an industry, that; (1) alleges the elements necessary for an imposition of a duty under section 701(a), and (2) is accompanied by information reasonably available to petitioners supporting the allegations.
We are initiating an investigation of the following programs alleged in the petition to have provided countervailable subsidies to manufacturers, producers and exporters of the subject merchandise in India (a full description of each program is provided in the
The petitioners allege that the U.S. industry producing the domestic like product is being materially injured, or is threatened with material injury, by reason of subsidized imports from India of the subject merchandise.
The petitioners contend that the industry's injured condition is evident in the declining trends in net operating profits, net sales volumes, domestic prices, revenue, profit-to-sales ratios, production employment, capacity utilization, and domestic market share. The allegations of injury and causation are supported by relevant evidence including U.S. import data, lost sales, and pricing information.
The Department has assessed the allegations and supporting evidence regarding material injury and causation and determined that these allegations are properly supported by adequate evidence and meet the statutory requirements for initiation.
Based on our examination of the petition on CVP-23, and petitioners' responses to our requests for supplemental information clarifying the petition, we have found that the petition meets the requirements of section 702(b) of the Act. Therefore, in accordance with section 702(b) of the Act, we are initiating a countervailing duty investigation to determine whether
In accordance with section 702(b)(3)(A) of the Act, a copy of the public version of the petition has been provided to the representatives of the government of India. We will attempt to provide a copy of the public version of the petition to each exporter named in the petition, as provided for under 19 CFR 351.203(c)(2).
We have notified the ITC of our initiation as required by section 702(d) of the Act.
The ITC will determine no later than January 5, 2004, whether there is a reasonable indication that imports of CVP-23 from India are materially injuring, or threatening material injury to, a U.S. industry. A negative ITC determination will result in the investigation being terminated; otherwise, this investigation will proceed according to statutory and regulatory time limits.This notice is issued and published pursuant to section 777(i) of the Act.
Office of Oceanic and Atmospheric Research, NOAA, DOC.
Notice of open meeting.
The Science Advisory Board (SAB) was established by a Decision Memorandum dated September 25, 1997, and is the only Federal Advisory Committee with responsibility to advise the Under Secretary of Commerce for Oceans and Atmosphere on long- and short-range strategies for research, education, and application of science to resource management. SAB activities and advice provide necessary input to ensure that National Oceanic and Atmospheric Administration (NOAA) science programs are of the highest quality and provide optimal support to resource management.
Dr. Michael Uhart, Executive Director, Science Advisory Board, NOAA, Rm. 11142, 1315 East-West Highway, Silver Spring, Maryland 20910. (Phone: 301-713-9121, Fax: 301-713-3515, E-mail:
Notice.
The Department of Defense has submitted to OMB for clearance, the following proposal for collection of information under the provisions of the Paperwork Reduction Act (44 U.S.C. Chapter 35).
Consideration will be given to all comments received by January 20, 2004.
Notice.
The Department of Defense has submitted to OMB for clearance, the following proposal for collection of information under the provisions of the Paperwork Reduction Act (44 U.S.C. Chapter 35).
Consideration will be given to all comments received by January 20, 2004.
Notice.
The Department of Defense has submitted to OMB for clearance, the following proposal for collection of information under the provisions of the Paperwork Reduction Act (44 U.S.C. Chapter 35).
Consideration will be given to all comments received by January 20, 2004.
The Department of Defense has submitted to OMB for clearance, the following proposal for collection of information under the provisions of the Paperwork Reduction Act (44 U.S.C. Chapter 35).
Consideration will be given to all comments received by January 20, 2004.
Notice.
The Department of Defense has submitted to OMB for clearance, the following proposal for collection of information under the provisions of the Paperwork Reduction Act (44 U.S.C. Chapter 35).
Consideration will be given to all comments received by January 20, 2004.
Department of Defense (DOD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA).
Notice of request for public comments regarding an extension to an existing OMB clearance (9000-0005).
Under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35), the Federal Acquisition Regulation (FAR) Secretariat has submitted to the Office of Management and Budget (OMB) a request to review and approve an extension of a currently approved information collection requirement concerning architect-engineer and related services questionnaire for specific project (SF 255). A request for public comments was published at 68 FR 60093, October 21, 2003. No comments were received.
Public comments are particularly invited on: Whether this collection of information is necessary for the proper performance of functions of the FAR, and whether it will have practical utility; whether our estimate of the public burden of this collection of information is accurate, and based on valid assumptions and methodology; ways to enhance the quality, utility, and clarity of the information to be collected; and ways in which we can minimize the burden of the collection of information on those who are to respond, through the use of appropriate technological collection techniques or other forms of information technology.
Submit comments on or before January 20, 2004.
Submit comments regarding this burden estimate or any other aspect of this collection of information, including suggestions for reducing this burden to the General Services Administration, FAR Secretariat (MVA), 1800 F Street, NW., Room 4035, Washington, DC 20405.
Cecelia Davis, Acquisition Policy Division, GSA (202) 219-0202.
Standard Form (SF) 255, Architect-Engineer and Related Services Questionnaire for Specific Projects is used by all Executive agencies to obtain information from architect-engineer (A-E) firms interested in a particular project. The information on the form is reviewed by a selection panel composed of professional people and assists the panel in selecting the most qualified A-E firm to perform the specific project. The form is designed to provide a uniform method for A-E firms to submit information on experience, personnel, capabilities of the A-E firm to perform, along with information on the consultants they expect to collaborate with on the specific project.
The SF 330, Architect-Engineer Qualifications will replace SF 255, Architect-Engineer and Related Services Questionnaire for Specific Projects. The SF 330 reflects current architect-engineer practices in a streamlined and updated format, and is organized into data blocks that readily support automation. The final version of the SF 330 has been published in the
Requesters may obtain a copy of the information collection documents from the General Services Administration, FAR Secretariat (MVA), Room 4035, 1800 F Street, NW., Washington, DC 20405, telephone (202) 501-4755. Please cite OMB Control No. 9000-0005, Architect-Engineer and Related Services Questionnaire for Specific Project (SF 255), in all correspondence.
Department of Defense (DOD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA).
Notice of request for public comments regarding an extension to an existing OMB clearance (9000-0004).
Under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. chapter 35), the Federal Acquisition Regulation (FAR) Secretariat has submitted to the Office of Management and Budget (OMB) a request to review and approve an extension of a currently approved information collection requirement concerning architect-engineer and related services questionnaire (SF 254). A request for public comments was published at 68 FR 60093, October 21, 2003. No comments were received.
Public comments are particularly invited on: Whether this collection of information is necessary for the proper performance of functions of the FAR, and whether it will have practical utility; whether our estimate of the public burden of this collection of information is accurate, and based on valid assumptions and methodology; ways to enhance the quality, utility, and clarity of the information to be collected; and ways in which we can minimize the burden of the collection of information on those who are to respond, through the use of appropriate technological collection techniques or other forms of information technology.
Submit comments on or before January 20, 2004.
Submit comments regarding this burden estimate or any other aspect of this collection of information, including suggestions for reducing this burden to the General Services Administration, FAR Secretariat (MVA), 1800 F Street, NW., Room 4035, Washington, DC 20405.
Cecelia Davis, Acquisition Policy Division, GSA (202) 219-0202.
Standard Form (SF) 254, Architect-Engineer and Related Services Questionnaire is used by all Executive agencies to obtain uniform information about a firm's experience in architect-engineering (A-E) projects. The form is submitted annually as required by 40 U.S.C. 541—544 by firms wishing to be considered for government A-E contracts. The information obtained on this form is used to determine if a firm should be solicited for A-E projects.
The SF 330, Architect-Engineer Qualifications will replace SF 254, Architect-Engineer and Related Services Questionnaire. The SF 330 reflects current architect-engineer practices in a streamlined and updated format, and is organized into data blocks that readily support automation. The final version of the SF 330 has been published in the
Requesters may obtain a copy of the information collection documents from the General Services Administration, FAR Secretariat (MVA), Room 4035, 1800 F Street, NW., Washington, DC 20405, telephone (202) 501-4755. Please cite OMB Control No. 9000-0004, Architect-Engineer and Related Services Questionnaire (SF 254), in all correspondence.
Department of Defense.
Notice of Advisory Committee Meeting.
The Defense Science Board Task Force on Identification Technologies will meet in closed session on February 18-19, 2004, at Strategic Analysis Inc., 3601 Wilson Boulevard, Arlington, VA. The Task Force will assess current technologies and operational concepts to identify and track individuals and materiel.
The mission of the Defense Science Board is to advise the Secretary of Defense and the Under Secretary of Defense for Acquisition, Technology & Logistics on scientific and technical matters as they affect the perceived needs of the Department of Defense. In this assessment, the task force's investigation will encompass defense, intelligence, and commercial systems, including compartmented technology in development and promising technologies in the lab that are not yet deployed. Technologies will include passive/active, line of sight/non-line of sight and cooperative/non-cooperative. Potential mechanisms include predictive behavior modeling based on threat characteristics (attack modality, ideological makeup, social, ethnic, religious and political tendencies,
In accordance with section 10(d) of the Federal Advisory Committee Act, Public Law 92-463, as amended (5 U.S.C. App. II), it has been determined that this Defense Science Board Task Force meeting concerns matters listed in 5 U.S.C. 552b(c)(1) and that, accordingly, the meeting will be closed to the public.
Department of Defense.
Notice of Advisory Committee Meeting.
The Defense Science Board Task Force on Identification Technologies will meet in closed session on January 22-23, 2004, at Strategic Analysis Inc., 3601 Wilson Boulevard, Arlington, VA. The Task Force will assess current technologies and operational concepts to identify and track individuals and materiel.
The mission of the Defense Science Board is to advise the Secretary of Defense and the Under Secretary of Defense for Acquisition, Technology & Logistics on scientific and technical matters as they affect the perceived needs of the Department of Defense. In this assessment, the task force's investigation will encompass defense, intelligence, and commercial systems, including compartmented technology in development and promising technologies in the lab that are not yet deployed. Technologies will include passive/active, line of sight/non-line of sight, and cooperative/non-cooperative. Potential mechanisms include predictive behavior modeling based on threat characteristics (attack modality, ideological makeup, social, ethnic, religious and political tendencies,
In accordance with section 10(d) of the Federal Advisory Committee Act, Public Law 92-463, as amended (5 U.S.C. App. II), it has been determined that this Defense Science Board Task Force meeting concerns matters listed in 5 U.S.C. 552b(c)(1) and that, accordingly, the meeting will be closed to the public.
Department of the Army, DoD.
Notice of availability.
The Department of the Army announces the general availability of exclusive, partially exclusive or non-exclusive licenses relative to novel propellant formulation as described in U.S. Patent application Amine Azide Propellant (U.S. Patent Application No. 10/398885). Any license shall comply with 35 U.S.C. 209 and 37 CFR 404.
Michael D. Rausa, U.S. Army Research Laboratory, Office of Research and Technology Applications, Attn: AMSRL-DP-T/Bldg. 459, Aberdeen Proving Ground, MD 21005-5425, Telephone: (410) 278-5028.
Department of the Army, DoD.
Notice of availability.
The Department of the Army announces the general availability of exclusive, partially exclusive or non-exclusive licenses relative to a novel conformal and flexible imaging technology as described in U.S. Patent No. 6,580,413; entitled “Method and Apparatus for the Low Cost Formation and Control of Images on Conformal Materials” issued June 17, 2003. Any license shall comply with 35 U.S.C. 209 and 37 CFR 404.
Michael D. Rausa, U.S. Army Research Laboratory, Office of Research and Technology Applications, Attn: AMSRL-DP-T/Bldg. 459, Aberdeen Proving Ground, MD 21005-5425, Telephone: (410) 278-5028.
Department of the Army, DoD.
Notice of availability.
The Department of the Army announces the general availability of exclusive, partially exclusive or non-exclusive licenses relative to novel shaped charge technology as described in U.S. Patent Application “Shaped Charge Explosive Device and Method of Making Same” (U.S. Patent Application No. 10/421899. Any license shall comply with 35 U.S.C. 209 and 37 CFR 404.
Michael D. Rausa, U.S. Army Research Laboratory, Office of Research and Technology Applications, ATTN: AMSRL-DP-T/Bldg. 459, Aberdeen Proving Ground, Maryland 21005-5425, Telephone: (410) 278-5028.
Department of the Army, U.S. Army Corps of Engineers, DoD.
Notice of intent.
The Jacksonville District, U.S. Army Corps of Engineers (Corps), intends to prepare a Draft Environmental Impact Statement (DEIS) to address the potential impacts associated with the implementation of beach restoration measures in Indian River County, Florida. The Corps will be evaluating a permit application for the work under the authority of section 10 of the Rivers and Harbors Act and section 404 of the Clean Water Act. The DEIS will be used as a basis for the permit decision and to ensure compliance with the National Environmental Policy Act (NEPA). Interested parties are invited to submit comments on or before February 9, 2004 to assure full consideration during the scoping process.
Questions or comment submissions should be addressed to Ms. Irene Sadowski, Jacksonville District at U.S. Army Corps of Engineers, 2460 N. Courtney Parkway, Suite 204, Merritt Island, FL 32953, phone: (321) 453-7655, Ext. 12 or e-mail:
Within Sector 7, continued erosion has limited the availability of quality beaches and has increased the cost of protecting the shoreline. To protect shorefront properties within the area, extensive seawall construction has taken place within recent years. Without adequate large-scale measures to counteract erosion rates within this area, more shoreline armoring to protect property is likely to occur.
Beach restoration was recommended for this shoreline based on erosion rates, proximity of major structures to mean high water line, beach width, available sand resources and coastal dynamics. The goals of the beach restoration and dune enhancement are to optimize the performance and cost of the project while providing storm protection for the upland properties, limiting direct and indirect coverage of nearshore hardbottom habitats, creating additional nesting habitat for marine turtles, and providing greater recreational area along the County's beaches.
Indian River County recently completed a beach restoration project in Sectors 1 and 2 at the northern end of the County (Ambersand Beach Restoration Project), under the authority of the Department of the Army Permit Number 200001872 (IP-IS) and the Florida Department of Environmental Protection Permit Number 0166929-001-JC. This project involved the development of an Environmental Assessment and Regional Cumulative Impact Assessment. This regional assessment of the cumulative impacts associated with beach nourishment activities will be updated with this project and included in the DEIS as an appendix.
The DEIS intends to focus on Sector 7 and incorporate the effects of all future beach nourishment projects in less detail. Future projects within Indian River County with be added as supplements to the EIS when these projects come on line.
Department of the Army, U.S. Army Corps of Engineers, DOD.
Cease preparation of Draft EIS/R.
The U.S. Army Corps of Engineers (Corps) Los Angeles District is no longer preparing a Draft Environmental Impact Statement/Subsequent Environmental Impact Report (EIS/SEIR) covering the overall proposed West Basin improvement projects in the Port of Los Angeles. The Corps and the Los Angeles Harbor Department (LAHD) had previously circulated a Notice of Intent to prepare a Draft EIS/SEIR (
Phone messages or questions can be directed to Joshua Burnam, Project Manager, Regulatory Branch, Los Angeles District at: (213) 452-3294 or by e-mail at
Department of the Army, U.S. Army Corps of Engineers, DoD.
Notice of intent.
The Town of Topsail Beach is located on Topsail Island, a barrier island on North Carolina's central coast. The town has experienced severe erosion of the ocean shoreline, high vulnerability to storm overwash, and damage to numerous structures due to erosion and storms. The Water Resources Development Act (WRDA) of 1992 authorized a Federal Shore Protection Project to address these problems, but the project has not been constructed. The authorized project and the remaining ocean shoreline at Topsail Beach are now undergoing reevaluation studies to provide a basis for a decision regarding continuation of
Questions about the proposed action and Draft Environmental Impact Statement (DEIS) can be answered by Ms. Jenny Owens; Environmental Resources Section; U.S. Army Engineer District, Wilmington; Post Office Box 1890; Wilmington, NC 28402-1890; telephone: (910) 251-4757.
WRDA of 1992 authorized the implementation of the West Onslow Beach and New River Inlet (Topsail Beach) Shore Protection Project, as described in the report of the Chief of Engineers dated November 19, 1991. However, the plan recommended for construction was not the National Economic Development (NED) plan, which would have provided a storm dune and beach, a rock terminal groin, and periodic beach nourishment. The rock groin was unacceptable to the State of North Carolina due to its inconsistency with hard structure rules of the Coastal Management Program. Therefore, the recommended plan did not include a groin and, instead, provided for more frequent beach nourishment to offset the sand retention that would have been provided by a groin. The recommended plan extended over a distance of approximately 3.6 miles along the oceanfront at the southern end of Topsail Beach and included a dune with a crest elevation of 13 feet above mean sea level (msl) fronted by a storm berm at elevation 9 feet msl and a beach berm at elevation 7 feet msl.
Reevaluation studies will address the currently authorized project and the remaining shoreline at Topsail Beach. The principal purpose of a Federal project would be the reduction of damages associated with hurricane and storm events and beach erosion. Potential benefits from the project would include protection of the town's structures and related infrastructure (
The GRR studies will evaluate several alternatives to address shore protection and related issues at Topsail Beach. These alternatives may include: (1) Construction of berms and dunes along all or portions of the oceanfront within the study area; (2) Removal and/or relocation of structures; and (3) No Federal action. The maximum potential project length is approximately 4.6 miles (
During the GRR, potential estuarine, inlet, offshore, and upland sources of borrow material will be investigated, and quantities of sand required for berm and dune construction will be determined. Estimated sand volumes and placement frequency for project maintenance will also be developed.
Alternative methods of beach nourishment and dredging of offshore borrow areas will also be evaluated, including the use of an ocean-certified hydraulic pipeline or hopper dredge.
All private parties and Federal, State, and local agencies having an interest in the study are hereby notified of the study and are invited to comment at this time. A scoping letter requesting input to the study was sent to all known interested parties on February 14, 2001.
A formal scoping meeting is not planned at this time but may be held if it is determined that new information could be obtained that would not otherwise be available. All comments received as a result of this notice of intent and the previous scoping letter will be considered in the preparation of the DEIS.
Significant environmental resources to be addressed during project studies and in the DEIS include: (1) Endangered and threatened species; (2) Marine and estuarine resources; (3) Fish and wildlife and their habitats, including essential fish habitat; (4) Water quality; (5) Socioeconomic resources; and (6) Cultural resources. Efforts will be made to enhance resource conditions and minimize adverse impacts.
The lead agency for this project is the U.S. Army Corps of Engineers District, Wilmington. Cooperating agency status has not been assigned to any other agency. The DEIS is being prepared in accordance with the requirements of the National Environmental Policy Act of 1969, as amended, and will address the relationship of the proposed action to all other applicable Federal and State Laws and Executive Orders. The DEIS is currently scheduled for distribution to the public in the summer of 2004.
Department of the Army, U.S. Army Corps of Engineers, DoD.
Notice of intent.
Surf City and North Topsail Beach are located on Topsail Island, a barrier island on North Carolina's central coast. Storm activity has resulted in severe erosion of the protective berm and dune along the ocean shoreline of the area, as well as damage to numerous structures and their contents. Studies conducted to address these problems were included in House Document 393, 102nd Congress, “West Onslow Beach and New River Inlet, North Carolina,” which was approved by Congress in 1992. This report recommended a hurricane protection and beach erosion control project for approximately 3.6 miles of oceanfront at Topsail beach, but determined that such improvements were economically infeasible for the northernmost portion of the island, including Surf City and North Topsail Beach. However, the six hurricanes that passed through the area during 1996-1999 inflicted heavy damages to these towns and, as a result, Congress directed that a review be made of the 1992 report to determine the advisability of modifying its recommendations with regard to shore protection for Surf City and North Topsail beach.
The potential for shoreline protection was subsequently reexamined in the “Surf City and North Topsail Beach, North Carolina, Reconnaissance Report” of May 2001, which recommended continued Federal participation a feasibility study. The feasibility study was initiated in 2002 and is ongoing.
Questions about the proposed action and Draft Environmental Impact Statement (DEIS) can be answered by Ms. Jenny Owens; Environmental Resources Section; U.S. Army Engineer District, Wilmington; Post Office Box 1890; Wilmington, NC 28402-1890; telephone: (910) 251-4757.
Feasibility studies will investigate the entire oceanfront along Surf City and North Topsail Beach, except for portions of North Topsail Beach located within the Coastal Barrier Resources System (CBRS). The Coastal Barrier Resources Act of 1982 renders units of the CBRS
The feasibility studies will evaluate several alternatives to address shore protection and related issues. These alternatives may include: (1) Construction of berms and dunes along all or portions of the oceanfront within the study area; (2) Removal and/or relocation of threatened structures; and (3) No Federal action. The maximum potential project length is approximately 10 miles (the 17 miles from New River Inlet south to the Surf City-Topsail Beach town limits exclusive of approximately 7 miles within the CBRS). The selection of final project features and reaches for inclusion in a recommended plan will be based on a maximization of net benefits.
During the feasibility studies, potential estuarine, inlet, offshore, and upland sources of borrow material will be investigated, and quantities of sand required for berm and dune construction will be determined. Estimated sand volumes and placement frequency for project maintenance will also be developed.
Alternative methods of beach nourishment and dredging of offshore borrow areas will be evaluated, including the use of ocean-certified hydraulic pipeline and/or hopper dredges.
All private parties and Federal, State, and local agencies having an interest in the study are hereby notified of the study and are invited to comment at this time. A scoping letter requesting input to the study was sent to all known interested parties on February 14, 2001.
A formal scoping meeting is not planned at this time but may be held if it is determined that new information may be obtained that would not otherwise be available. All comments received as a result of this notice of intent and the previous scoping letter will be considered in the preparation of the DEIS.
Significant environmental resources to be addressed during project studies and in the DEIS include: (1) Endangered and threatened species; (2) Fish and wildlife and their habitats, including essential fish habitat; (3) Water quality; (4) Socioeconomic resources; and (5) Cultural resources. Efforts will be made to enhance resource conditions and minimize adverse impacts.
The lead agency for this project is the U.S. Army Corps of Engineers District, Wilmington. Cooperating agency status has not been assigned to any other agency. The DEIS is being prepared in accordance with the requirements of the National Environmental Policy Act of 1969, as amended, and will address the relationship of the proposed action to all other applicable Federal and State Laws and Executive Orders. The DEIS is currently scheduled for distribution to the public in the winter of 2005.
Correction; notice reopening application deadline for certain applicants.
We correct the postmark date listed in the
On December 16, 2003, we published a notice in the
Ms. Darlene B. Collins, U.S. Department of Education, 1990 K Street, NW., 6th Floor, Washington, DC 20006-8513. Telephone: (202) 502-7576 or via Internet:
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To use PDF you must have Adobe Acrobat Reader, which is available free at this site. If you have questions about using PDF, call the U.S. Government Printing Office (GPO), toll free, at 1-888-293-6498; or in the Washington, DC area at (202) 512-1530.
The official version of this document is the document published in the
20 U.S.C. 1001-1101d, 1103-1103g.
Department of Energy.
Notice of renewal.
Pursuant to section 14(a)(2)(A) of the Federal Advisory Committee Act, and in accordance with section 102-3.60, title 41 of the Code of Federal Regulations, and following consultation with the Committee Management Secretariat, General Services Administration, notice is hereby given that the Biological and Environmental Research Advisory Committee has been renewed for a two-year period beginning in December 2003. The Committee will provide advice to the Director, Office of Science, on the Biological and Environmental Research Program managed by the Office of Biological and Environmental Research.
The renewal of the Biological and Environmental Research Advisory Committee has been determined to be essential to the conduct of the Department of Energy business and to be in the public interest in connection with the performance of duties imposed upon the Department of Energy by law. The Committee will operate in
Further information regarding this Advisory Committee can be obtained from Mrs. Rachel M. Samuel at (202) 586-3279.
U.S. Department of Energy.
Notice inviting grant applications.
The Office of Biological and Environmental Research (OBER) of the Office of Science (SC), U.S. Department of Energy (DOE), hereby announces its interest in receiving applications for research grants in the Natural and Accelerated Bioremediation Research (NABIR) Program. The goal of the NABIR program is to provide the fundamental science that will serve as the basis for development of cost-effective bioremediation and long-term stewardship of radionuclides and metals in the subsurface at DOE sites. The focus of the program is on understanding the role of microorganisms in long-term immobilization of contaminants in place, and the potential for their remobilization. Contaminants of interest are uranium, technetium, plutonium, chromium or mercury. NABIR is focused on subsurface sediments below the zone of root influence and includes both the vadose (unsaturated) zone and the saturated zone (groundwater and sediments). Applications should describe research projects in one or more of the following program categories: (1) Biogeochemistry, Biotransformation, Community Dynamics and Microbial Ecology, or Assessment; (2) Interdisciplinary studies that integrate research from more than one NABIR element; or (3) Projects to be performed at the NABIR Field Research Center (FRC) addressing field scale processes that immobilize uranium and/or technetium; field teams must include, at a minimum, expertise in microbiology, geochemistry and hydrology.
Researchers are strongly encouraged to submit a preapplication for programmatic review. Preapplications should be submitted on or before February 6, 2004, for review for programmatic relevance.
The deadline for receipt of formal applications is 4:30 p.m., E.S.T., March 9, 2004, to be accepted for merit review and to permit timely consideration for awards late in Fiscal Year 2004 or in early Fiscal Year 2005.
Preapplications referencing Program Notice DE-FG01-04ER04-06, should be sent by E-mail to:
Formal applications referencing Program Notice DE-FG01-04ER04-06, must be sent electronically by an authorized institutional business official through DOE's Industry Interactive Procurement System (IIPS) at:
If you are unable to submit an application through IIPS, please contact the Grants and Contracts Division, Office of Science at: (301) 903-5212 or (301) 903-3604, in order to gain assistance for submission through IIPS or to receive special approval and instructions on how to submit printed applications.
Mr. Paul Bayer, Environmental Remediation Sciences Division, SC-75/Germantown Building, Office of Biological and Environmental Research, Office of Science, U.S. Department of Energy, 1000 Independence Ave., SW., Washington, DC 20585-1290, telephone: (301) 903-5324, e-mail:
For more than 50 years, the U.S. created a vast network of more than 113 facilities for research, development, testing and production of nuclear weapons. As a result of these activities, subsurface contamination has been identified at over 7,000 discrete sites across the U.S. Department of Energy complex. With the end of the Cold War threat, the DOE has shifted its emphasis to remediation, decommissioning, and decontamination of contaminated groundwater, sediments, and structures at its sites. DOE is currently responsible for remediating 1.7 trillion gallons of contaminated groundwater and 40 million cubic meters of contaminated soil. It is estimated that more than 60 percent of DOE facilities have groundwater contaminated with metals or radionuclides. More than 50 percent of all DOE facilities have soils or sediments contaminated with radionuclides and metals. While virtually all of the contaminants found at industrial sites nationwide can also be found at DOE sites, many of the metals and most of the radionuclides are unique to DOE sites. The NABIR program aims: (1) To provide the fundamental knowledge that may lead to new remediation technologies or strategies for radionuclides and metals; and (2) to advance the understanding of the key microbiological and geochemical processes that control the effectiveness of
While bioremediation of organic contaminants involves their biotransformation to benign products, such as carbon dioxide, bioremediation of radionuclides and metals involves their removal from the aqueous phase to reduce risk to humans and the environment. Microorganisms can directly affect the solubility of radionuclides and metals by changing their oxidation state to a reduced form that leads to
The goal of the NABIR program is to provide the fundamental science that will serve as the basis for development of cost-effective bioremediation and long-term stewardship of radionuclides and metals in the subsurface at DOE sites. An important aspect to the NABIR program is to assess factors controlling the long-term stability of the immobilized contaminants and to devise approaches (biological/chemical) to maintain their immobilization through the stewardship phase. Naturally-occurring subsurface microbes may be involved in intrinsic bioremediation of radionuclides and metals by reduction and immobilization, either directly or indirectly. However, these natural processes (known as natural attenuation) typically occur at fairly slow rates, and there may be a need to use biostimulation to enhance the rates. The primary focus of the NABIR program is on biostimulation strategies, due to the ubiquity of metal-reducers in nature. Immobilized radionuclides and metals are not removed from the subsurface as may occur with excavation, pump and treat, or biodegradation of organic contaminants. Thus, understanding the potential for remobilization of contaminants is of special interest.
The focus of the NABIR program is on radionuclides and metals that: (1) Pose the greatest potential risk to humans and the environment at DOE sites; and (2) are amenable to immobilization by means of bioremediation. Thus, research is focused on the radionuclides uranium, technetium and plutonium and the metals chromium and mercury. Radioactive contaminants such as tritium and cobalt are not a focus because of their relatively short half lives, and strontium and cesium are not addressed because they are not readily amenable to biotransformation. Research is focused on subsurface sediments below the zone of root influence and includes both the vadose (unsaturated) zone and the saturated zone (both groundwater and sediments). Research on phytoremediation will not be supported by this solicitation.
NABIR is oriented toward areas that have low levels of widespread contamination; it is too costly to clean up those situations with existing technologies. Uranium, technetium, and chromium can be especially mobile in the subsurface under certain conditions; they are risk-driving contaminants at some DOE sites. The effects of co-contaminants, such as nitrate, complexing agents, (such as EDTA) and chlorinated solvents, (such as trichloroethylene and carbon tetrachloride) on the behavior of radionuclides and metals in the subsurface is also of interest to the NABIR program. The NABIR Program supports hypothesis-driven, basic research that is more fundamental in nature than demonstration projects.
The NABIR program consists of four interrelated Science Elements (Biogeochemistry, Biotransformation, Community Dynamics and Microbial Ecology, and Biomolecular Science and Engineering). Innovative method development for the Science Elements is supported under the Assessment Element. The program also includes an element addressing ethical, legal and societal issues called Bioremediation and its Societal Implications and Concerns (BASIC). The NABIR program strongly encourages researchers to integrate laboratory and field research at DOE or DOE-relevant sites. More information on the NABIR program may be found at:
To encourage hypothesis-based field research and process-level understanding, the NABIR program established the Field Research Center (FRC) for long-term field studies. The FRC provides a site for investigators to conduct field-scale research and to obtain DOE-relevant subsurface samples for laboratory-based studies of bioremediation, and it is located on the U.S. Department of Energy Oak Ridge Reservation in Oak Ridge, Tennessee. The FRC is operated by the Environmental Sciences Division of the Oak Ridge National Laboratory, and it includes a contaminated and a background (uncontaminated control) area for in situ studies. Both areas are located in Bear Creek Valley (BCV) within the Y-12 Plant area.
The contaminated research site at the FRC is a 98-hectare plot containing uranium, nitrate, technetium-99, strontium, and cadmium in groundwater, soils, and sediments. To a lesser extent, metals such as mercury, copper, zinc, and lead, and organics, such as acetone, methylene chloride, tetrachloroethylene, and toluene are also present. The contaminated area includes the groundwater plume that originated from the S-3 Waste Disposal Ponds.
The background area is approximately 163 hectares and is located in West Bear Creek Valley, about 2 km from the contaminated area. The area lies directly along the geologic strike of the contaminated area and is, therefore, underlain by nearly identical geology, mineralogy, and structure. No known contaminants have been disposed at this location throughout the history of DOE operations. The majority of the area is heavily wooded, with the exception of the Bear Creek floodplain.
Both the background and contaminated areas are well-characterized and well-instrumented, and should be available for five to ten years. The water table resides between 0 and 3 meters below the surface and is readily accessible through multilevel groundwater monitoring wells.
The FRC is responsible for general site characterization activities and provides a rich database for use by NABIR researchers. The FRC is responsible for data management, systems integration, and fundamental hydrological and geochemical modeling of the contaminated and background sites. The FRC makes these data and models accessible to all researchers.
While the FRC provides a major focus for the NABIR program, it is recognized that other sites that represent the different hydrogeological regimes found at DOE sites will also be valuable to researchers. A large fraction of the national inventory of DOE wastes resides in unconsolidated, porous media in relatively thick, vadose zones and in groundwaters low in soluble organic carbon. For this reason, NABIR investigators are encouraged to take advantage of opportunities to collect and analyze samples from arid western environments that typify the Hanford Reservation and Uranium Mill Tailings Remedial Action (UMTRA) sites. For further information on NABIR Field Research, please contact Mr. Paul Bayer (
Applicants are encouraged to propose making use of the capabilities provided by DOE's National Scientific User Facilities. The instrumentation and experimental facilities at these user facilities are available free of charge to users who agree to publish their findings in the peer reviewed literature. Applicants may be interested in one or
Applicants may be interested in the capabilities offered at the Environmental Molecular Sciences Laboratory (EMSL), which is located at the Pacific Northwest National Laboratory in Richland, WA. EMSL provides users with unique and leading edge instrumentation for molecular-level studies, including a wide variety of capabilities in spectroscopy and microscopy, particle characterization and imaging, and meter-scale reactive transport. These experimental capabilities are located within EMSL's high field magnetic resonance, high performance mass spectrometry, interfacial and nanoscale science and optical imaging and spectroscopy facilities. In addition, the high-performance molecular science computing facility within the EMSL includes an 11.8 TeraFlop supercomputer for use in reactive transport and flow modeling.
Applicants may also be interested in the molecular-level capabilities for studying the speciation, properties or behavior of contaminants that are available through DOE's synchrotron radiation facilities. Information concerning the types of analytical techniques available at specific synchrotron facilities is available through EnviroSync, a national organization that represents molecular environmental science at the synchrotrons.
Research projects should address the scientific aims of: (1) Individual NABIR elements including Biogeochemistry, Biotransformation, Community Dynamics and Assessment; (2) Integrative, interdisciplinary studies that involve research from more than one element; or (3) Field research projects to be performed at the NABIR FRC in Oak Ridge, Tennessee. The focus is on field research, or laboratory studies that can be scaled to the field, to provide supporting information for current or future field research. The NABIR FRC provides an opportunity for researchers to work at a DOE site in collaboration with scientists from different research elements. Studies at the NABIR FRC show that microbial reduction of radionuclides and metals is affected by the presence of nitrate and low pH. Thus, research into microbial mechanisms involved in the reduction of radionuclides and metals in this type of subsurface environment is of special interest.
• To increase immobilization of radionuclides and metals, what are the principal biogeochemical reactions that govern the concentration, chemical speciation, and distribution of metals and radionuclides between the aqueous and solid phases (with an emphasis on natural geological matrices)? What are the thermodynamic and kinetic controls on these reactions? How do factors, such as co-contaminants, sorption processes, and terminal electron acceptors (
• Under what conditions would the contaminants remobilize, and what alterations to the environment would increase the long term stability of metals and radionuclides in the subsurface?
• What influence do hydrological processes such as reactive transport, advective/dispersive transport and colloidal transport have on the biological availability, biotransformation, and movement of radionuclides and metals?
• What are the primary metabolic pathways for biotransformation of radionuclides and/or metals by subsurface microorganisms at DOE sites, such as the FRC? Physiological processes studied at the laboratory scale will need to demonstrate how results will be scaled to the field.
• How can metal reduction be harnessed or accelerated to immobilize radionuclides and/or metals in the subsurface? Can
• What environmental controls affect microbial physiological processes involved in radionuclide and metal biotransformations leading to immobilization in vadose and saturated zones? What factors inhibit these biotransformations
• How can we quantify
• Is there sufficient biological activity and diversity in subsurface environments to support natural and/or accelerated bioremediation of metals and radionuclides?
• What are the effects of metal and radionuclide contamination on microbial community structure and function, particularly on populations that transform radionuclides and metals? What are the effects of key physical, chemical and hydrological factors on community structure and function, as it relates to immobilization of metals and radionuclides?
• What is the role of consortial interactions in subsurface environments contaminated with radionuclides and metals? Such interactions might include competition for electron donors and acceptors, or consortial interactions in the biotransformation of metals and radionuclides.
• What is the potential importance of gene transfer in natural microbial communities at subsurface sites contaminated with radionuclides or metals?
• Biogeochemical or biotransformation processes and rates, and microbial community structure and function relative to bioremediation of metals and radionuclides.
• Bioremediation end points, in particular, the concentration, speciation and stability of radionuclide and metal contaminants.
Techniques must enable NABIR science and address specific science needs of the program. The applicant should explain the potential impact and contribution to the NABIR program, as well as the relevance and potential usefulness of the innovation.
• Employing numerical modeling to integrate information from more than one element, such as Biogeochemistry, Biotransformation, and Community Dynamics and Microbial Ecology, to better predict
• Studies of the effects of key physical, geochemical and hydrological parameters on the structure and function of subsurface microbial communities engaged in metal/radionuclide biotransformation and immobilization.
• Integration of new methods in the Assessment element with actual application to studies of biotransformation or biogeochemistry of radionuclide/metal reduction and precipitation.
• Linking chemical speciation of radionuclides and metals in subsurface environments to the bioavailability of those contaminants to microorganisms.
• Studies on the changes of subsurface microbial community structure and function, and the effect on net rates of biotransformation during biostimulation experiments.
Although bioremediation of radionuclides and metals has been studied in the laboratory, and bioremediation technologies have been demonstrated in the field, there are few examples of carefully controlled, hypothesis-driven, in situ bioremediation research at the field-scale. The FRC provides opportunities for such field-scale experiments.
The S-3 Ponds were the primary source of contamination detected in the contaminated zone of the FRC. The S-3 Ponds consisted of four unlined ponds constructed in 1951 on the west end of the Y-12 Plant at Oak Ridge. Liquid wastes, composed primarily of nitric acid plating wastes containing nitrate and various radionuclides and metals (
Three areas in the contaminated zone are currently identified as the primary targets for in situ studies. Areas 1 and 3 are located adjacent and directly south and west, respectively, of the S-3 Ponds parking lot and Area 2 is located several hundred feet to the southwest of the parking lot. Applicants may choose to propose research for Area 1 (a high nitrate, low pH site), Area 2 (a low nitrate, circumneutral site) or Area 3 (a very high contaminant concentration, very low pH site). More detailed information on Areas 1, 2 and 3 can be found on the NABIR FRC Web site
The initial focus of in situ research conducted at the FRC has been on biostimulation experiments to understand or promote the immobilization of uranium and technetium by microbial processes. Understanding natural and stimulated uranium biotransformation in the presence of high nitrate and low pH in unconsolidated residuum and fractured rock is one of the biggest challenges at the FRC at Oak Ridge, and at other DOE sites. The NABIR program is currently funding the following three in situ projects within the contaminated area of the FRC: (1) A stimulated biocurtain for uranium biotransformation combined with denitification; (2) push-pull tests to determine the kinetics of electron-acceptor and electron-donor use for microbially-mediated uranium and technetium reduction and reoxidation; and (3) stimulation of microbial uranium reduction in hydrologically-accessible fractured zones to precipitate uranium oxide and isolate the uranium in low-permeability porous regions. Applicants should attempt to complement existing projects; additional information can be found at
For this solicitation, the NABIR program is seeking applications that focus on in situ studies that are aligned with the short- and mid-term scientific tasks outlined in the recently completed strategic plan for the FRC (
Applicants must propose a testable hypothesis that is based on microbially-mediated mechanisms of immobilization for in situ field research, and they should describe a detailed technical approach that should include: (1) Establishing a defined (surface area and depth) experimental and control plot within the proposed contaminated field site; and (2) manipulating the experimental plot by amendments of nutrients or other chemicals that might stimulate microbial communities to immobilize uranium or technetium. The technical approach must be described in phases such that completion of each phase could result in publishable results. A statistically robust sampling regimen to determine the efficacy of the manipulation should also be described. Moreover, the applicant must explain the technical feasibility of performing the proposed field research. Technology demonstration projects will not be funded by this solicitation.
The applicants must propose research to be performed as an interdisciplinary team including, at a minimum, expertise in microbiology, geochemistry, and hydrology. The Principal Investigator for the team must have prior experience in relevant field research, and the activities of each team member must be clearly defined. Multi-institutional partnerships are strongly encouraged; for example, applicants may draw expertise from National Laboratories, academia, and other institutions engaged in basic research. The successful team must be willing to partner with other funded NABIR investigators who may wish to obtain samples in conjunction with the proposed field studies.
Although compliance with National Environmental Policy Act (NEPA) is the responsibility of DOE, successful applicants who propose to conduct field research are expected to provide information necessary for the DOE to complete the NEPA review and documentation. Successful applicants will also be expected to brief and to obtain approval of their written work plan from the Field Research Review Panel (FRRP) prior to beginning their field work. For this solicitation, applicants should describe how they would communicate their proposed experimental design and their results to stakeholders, regulators, and community groups. Applicants may wish to review the FRC Communication Plan, which can be found on the FRC web site. All applicants should discuss other relevant societal issues, where appropriate, which may include intellectual property protection, and communication with and outreach to affected communities (including members of affected minority communities where appropriate) to explain the proposed research. For further information on NABIR Field Research, please contact Mr. Paul Bayer (
The following indicators establish specific long term goals in Scientific Advancement that the BER program is committed to, and against which progress can be measured.
All grant proposals should address one or more of these measures and/or explain how the proposed research supports the broad scientific objectives outlined above. More information on the program and the scientific research it supports can be found at our Web site:
A brief preapplication should be submitted. The preapplication should identify, on the cover sheet, the institution, Principal Investigator name, address, telephone, fax and E-mail address, and title of the project. The preapplication should consist of one or two pages of narrative describing the research objectives and methods. These will be reviewed for responsiveness to the scope and research needs described in this notice. Please note that notification of a successful preapplication is not an indication that an award will be made in response to the formal application.
It is anticipated that up to $3 million will be available for multiple awards to be made in late Fiscal Year 2004, and early Fiscal Year 2005, in the categories described above, contingent on availability of appropriated funds. An additional sum, up to $3 million, will be available for competition by DOE National Laboratories under a separate solicitation (LAB 04-06). Applications may request project support up to three years, with out-year support contingent on availability of funds, progress of the research and programmatic needs. Annual budgets for Biogeochemistry, Biotransformation or Community Dynamic projects are expected to range from $100,000 to $300,000 total costs. Annual budgets for integrative studies involving participants representing
Applications will be subjected to formal merit review (peer review) and will be evaluated against the following evaluation criteria which are listed in descending order of importance codified at 10 CFR 605.10(d):
1. Scientific and/or Technical Merit of the Project;
2. Appropriateness of the Proposed Method or Approach;
3. Competency of Applicant's Personnel and Adequacy of Proposed Resources;
4. Reasonableness and Appropriateness of the Proposed Budget.
For renewals, progress on previous NABIR funded research will be an important criterion for evaluation. As part of the evaluation, program policy factors also become a selection priority. Note, external peer reviewers are selected with regard to both their scientific expertise and the absence of conflict-of-interest issues. Federal and non-federal reviewers will be used, and submission of an application constitutes agreement that this is acceptable to the investigator(s) and the submitting institution.
Information about the development, submission of applications, eligibility, limitations, evaluation, the selection process, and other policies and procedures may be found in 10 CFR part 605, and in the Application Guide for the Office of Science Financial Assistance Program. Electronic access to SC's Financial Assistance Application Guide is possible via the World Wide Web at:
In addition, for this notice, the research description must be 20 pages or less, exclusive of attachments, and must contain an abstract or summary of the proposed research (to include the hypotheses being tested, the proposed experimental design, and the names of all investigators and their affiliations).
The Office of Science, as part of its grant regulations, requires at 10 CFR 605.11(b) that a recipient receiving a grant and performing research involving recombinant DNA molecules and/or organisms and viruses containing recombinant DNA molecules shall comply with the NIH “Guidelines for Research Involving Recombinant DNA Molecules,” which is available via the World Wide Web at:
Grantees must also comply with other federal and state laws and regulations as appropriate; for example, the Toxic Substances Control Act (TSCA) as it applies to genetically modified organisms. Although compliance with NEPA is the responsibility of DOE, grantees proposing to conduct field research are expected to provide information necessary for the DOE to complete the NEPA review and documentation.
Additional information on the NABIR program is available at the following Web site:
The Catalog of Federal Domestic Assistance number for this program is 81.049, and the solicitation control number is ERFAP 10 CFR part 605.
Department of Energy (DOE).
Notice of open meeting.
This notice announces a meeting of the Environmental Management Site-Specific Advisory Board (EM SSAB), Paducah. The Federal Advisory Committee Act (Pub. L. 92-463, 86 Stat. 770) requires that public notice of these meetings be announced in the
Thursday, January 15, 2004; 5:30 p.m.-9:30 p.m.
111 Memorial Drive, Barkley Centre, Paducah, Kentucky.
William E. Murphie, Deputy Designated Federal Officer (DDFO), Department of Energy Paducah Site Office, Post Office Box 1410, MS-103, Paducah, Kentucky 42001, (270) 210-2215.
Availability of EPA comments prepared pursuant to the Environmental Review Process (ERP), under section 309 of the Clean Air Act and section 102(2)(c) of the National Environmental Policy Act as amended. Requests for copies of EPA comments can be directed to the Office of Federal Activities at (202) 564-7167.
ERP No. D-AFS-J65392-MT Rating EC2, Helena National Forest Noxious Weed Treatment Project, Implementation, Lewis and Clark, Powell, Jefferson, Broadwater and Meagher Counties, MT.
ERP No. D-AFS-J65394-MT Rating EC2, Basin Creek and Blacktail Hazardous Watershed Fuels Reduction Project, Implementation, Highland Mountains, Butte Ranger District, Beaverhead-Deerlodge National Forest, Butte-Silver Bow County, MT.
ERP No. D-AFS-L65433-OR Rating EC2, North Fork Burnt River Mining Project, Proposal for Mineral Plans of Operation, Implementation, Wallowa-Whitman National Forest, Unity Ranger District, Whitman Unit, Blue Mountains, Town of Unity, Baker County, OR.
ERP No. D-AFS-L65439-OR Rating EC2, Monument Fire Recovery Project, Whitman Unit—Wallowa—Whitman National Forest (WWNF) Timber Harvest of Fire Killed/Dying Trees, Reforestation, Recovery of Herbaceous, Native Vegetation and Maintenance or Improvement of Water Quality, Implementation, Baker County, OR.
ERP No. D-BLM-L65422-00 Rating EO2, Upper Klamath River Management Plan, Resource Management Plan Amendments, Implementation, Upper Klamath River stretch between Lake Ewauna, OR, south to Irongate Dam in CA.
ERP No. D-FHW-F40417-WI Rating EC2, WI-83 Highway Improvements, County NN in Mukwonago to WI-16 in Hartland, Funding and U.S. Army COE Section 404 Permit Issuance, Waukesha County, WI.
ERP No. D-NOA-E91014-00 Rating EC2, Generic Essential Fish Habitat Amendment to the Fishery Management Plans of the Gulf of Mexico (GOM) for Shrimp, Red Drum, Reef Fish, Stone Crab, Coral and Coral Reef, Spiny Lobster Fisheries of the GOM and South Atlantic Coastal Migratory Pelagic Resources of the Gulf of Mexico and South Atlantic.
ERP No. D-USN-K11112-CA Rating EC2, Tertiary Treatment Plant and Associated Facilities Construction and Operation, Implementation, Marine Corps Base Camp Pendleton, San Diego County, CA.
ERP No. DB-NOA-B91021-00 Rating EC1, Northeast Multispecies Fishery Management Plan, Amendment 13, New Information concerning Management Alternatives and Impact Analysis, Adoption, Approval and Implementation, New England Management Council, ME, HH, VT, MA, RI, CT, NY, NJ, DE, MD, VA and NC.
ERP No. DF-NOA-L64015-AK Rating EC1, Programmatic EIS—Alaska Groundfish Fisheries, New Information concerning the Ecosystem and a Preferred Alternative, Fishery Management Plans for the Groundfish Fishery of the Gulf of Alaska and the Groundfish of the Bering Sea and Aleutian Islands Area, North Pacific Fishery Management Council, AK.
ERP No. D1-AFS-E65031-KY Rating EC1, Gray Mountain Coal Lease Land Use Analysis, Application for Leasing Tracts 3094Bb, 3049Be and 3049Az, Daniel Boone National Forest, Leslie County, KY.
ERP No. F-AFS-K65255-CA Spalding Land Exchange Project, Proposed Land Exchange between Spalding Community Service District (SCSD) and Lassen National Forest (LNF), Special Use Permit, Lassen County, CA.
ERP No. F-NOA-E91009-00 Dolphin and Wahoo Fishery Management Plan, Establishing Fishery Management Units, Stock Status Determination and Harvesting Restrictions, Initial Regulatory Flexibility Analysis, South Atlantic, Caribbean, and Gulf of Mexico.
This document is available on the Internet at:
This document is available on the Internet at:
Revision of
Revision of
Environmental Protection Agency (EPA).
Notice; correction.
The U.S. Environmental Protection Agency published a notice in the
Robert Tolpa, (202) 564-2337.
Correction:
In the
Review Information: Persons interested in obtaining further background information regarding current or proposed FY 2005-2007 national enforcement and compliance assurance priorities may submit a request for hard copy or electronic version of information to:
Federal Communications Commission.
Notice of public meeting.
In accordance with the Federal Advisory Committee Act, this notice advises interested persons of the fourth meeting of the Technological Advisory Council (“Council”) under its charter renewed as of November 25, 2002. The meeting will be held at the Federal Communications Commission in Washington, DC.
January 23, 2004 beginning at 10 a.m. and concluding at 3 p.m.
Federal Communications Commission, 445 12th St., SW., Room TW-C305, Washington, DC 20554.
Jeffery Goldthorp, (202) 418-1096.
Continuously accelerating technological changes in telecommunications design, manufacturing, and deployment require that the Commission be promptly informed of those changes to fulfill its statutory mandate effectively. The Council was established by the Federal Communications Commission to provide a means by which a diverse array of recognized technical experts from different areas such as manufacturing, academia, communications services providers, the research community, etc., can provide advice to the FCC on innovation in the communications industry.
Closer to the meeting date, a more detailed agenda will be available on the Federal Communications Commission's Web page at
Members of the public may attend the meeting. The Federal Communications
Federal Communications Commission.
The notificants listed below have applied under the Change in Bank Control Act (12 U.S.C. 1817(j)) and § 225.41 of the Board’s Regulation Y (12 CFR 225.41) to acquire a bank or bank holding company. The factors that are considered in acting on the notices are set forth in paragraph 7 of the Act (12 U.S.C. 1817(j)(7)).
The notices are available for immediate inspection at the Federal Reserve Bank indicated. The notices also will be available for inspection at the office of the Board of Governors. Interested persons may express their views in writing to the Reserve Bank indicated for that notice or to the offices of the Board of Governors. Comments must be received not later than January 2, 2004.
Board of Governors of the Federal Reserve System, December 15, 2003.
Administration on Aging, HHS.
Notice.
The Administration on Aging (AoA) 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 February 17, 2004.
Submit electronic comments on the collection of information to:
Melanie K. Starns at (202) 357-3464.
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 request 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
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.
Work-related asthma is the most common lung disease seen in occupational health clinics in the United States based on data from the Association of Occupational and Environmental Clinics for 1991-1996. Work-related asthma includes both new onset asthma initiated by workplace exposures and pre-existing asthma exacerbated by workplace environments, in both types of cases repeated exposure to asthmatic agents can lead to chronic pulmonary impairment. The 1985 American Thoracic Society statement “What Constitutes an Adverse Health Effect of Air Pollution” identified exacerbation of asthma as one of the serious effects of environmental air pollution. While anecdotal evidence suggests that as many as one-half of work-related asthma patients treated in occupational medicine clinics had pre-existing asthma that was exacerbated by workplace conditions, there are few data from studies in the United States to support this claim.
Three years ago, NIOSH requested approval from OMB to conduct a three phase study. In Phase 1 (Baseline Study), a telephone interview was conducted to address three specific aims: (1) To determine the frequency of workplace exacerbation of asthma (WEA); (2) to determine the circumstances at work associated with exacerbation of asthma; and (3) to determine the social and economic costs associated with workplace exacerbation of asthma. To date, the Baseline Study telephone interviews have been completed for a total of 615 participants. Also, patient care records have been obtained in order to ascertain cost of care for asthma for each participant (Specific Aim 3).
Phase 2 (Validation Phase) is being conducted with a subset of respondents from the Baseline Study. Employed respondents with and without workplace exacerbation are being asked to conduct serial spirometry with a portable device. These findings will serve as the “gold standard” to determine the sensitivity and specificity of a self-report of workplace exacerbation of asthma (Specific Aim #4). As part of the serial testing, respondents complete a diary and final brief telephone interview at the end of the serial testing. Data collection for Phase 2 continues. The Paperwork Reduction Act does not apply to Phase 2 of the study.
In Phase 3 (Follow-up Study), all respondents from the Baseline Study will be asked to complete a follow-up telephone interview approximately two years later to investigate whether workplace exacerbation at baseline predicts an increase in asthma severity (Specific Aim #5). We anticipate that interviewing for Phase 3 will continue through August, 2004.
The data collected in this study will be used to further understand the frequency of workplace-exacerbated asthma, the social and economic impacts of this problem, and the implication of self-reporting WEA for subsequent asthma severity. This information can be used to prioritize resources for addressing this problem. The data collected in this study will also identify which jobs and exposures are likely to exacerbate existing asthma, thus providing guidance on where to focus preventive efforts. Collected data on the validity of self-reporting WEA will be useful to both clinicians and researchers who attempt to treat or study individuals with this problem. The annualized burden for this data collection is 214 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.
Diabetes Mellitus Type 2 is a chronic metabolic disease that has the potential for serious health consequences which include both psychological and physical conditions. Effective management of this disease is important to prevent the development of these problems. No previous studies have systematically examined the ways in which psychological functioning, patient-provider relationships, family and social support, health insurance availability and utilization, lifestyle practices, and community support influence diabetes self-management among African American patients. Most diabetes management information is based on research conducted primarily with Caucasian patients. The Division of Diabetes Translation within the National Center for Chronic Disease Prevention and Health Promotion of the Centers for Disease Control and Prevention plans to conduct a pilot study of a longitudinal, family-centered research project to determine optimal ways of teaching African American patients and their families how to work together to manage diabetes successfully.
The research will involve samples of 40-to 64-year-old African American men and women with Type 2 diabetes and their close family members. Participating families will be divided into two groups, an intervention group that will receive the intervention at the beginning of the study, and a comparison group that will receive a modified version at the end. Measurements of self-care adherence and diabetes control will include both self-reports and objective measures such as blood glucose levels obtained through clinical lab work. Other data will include diabetes knowledge, community characteristics, social support, community support, psychological functioning, patient-provider relationships, and health care coverage. Participant involvement will occur over a 13 month period.
CDC is requesting a three year approval for this data collection. The estimated annualized burden is 1,433 hours. The total burden over the course of this data collection is 4,300 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.
Arthritis affects nearly 43 million Americans, or about one in every six people, and is the leading cause of disability among adults in the United States. Because of the broad public health impact of this disease, the Centers for Disease Control and Prevention (CDC) developed the National Arthritis Action Plan in 1998 as a comprehensive approach to reducing the burden of arthritis on the United States. As part of its efforts to implement the National Arthritis Action Plan, CDC, National Center for Chronic Disease Prevention and Health Promotion developed a physical activity campaign, People with Arthritis (PWA). PWA targets African American and Caucasian men and women aged 45-64, high school education or less, with an annual income less than $35,000 per year. Campaign materials include print ads, 15-, 30- and 60-second radio public service announcements, and desktop displays with brochures for pharmacies, doctors' offices, and community centers. The campaign objectives are to increase target audience members' (1) beliefs about physical activity as an arthritis management strategy (there are “things they can do” to make arthritis better, and physical activity is an important part of arthritis management); (2) knowledge of the benefits of physical activity and appropriate physical activity for people with arthritis; (3) confidence in their ability to be physically active, and (4) trial of physical activity behaviors.
During 2002, the health communications campaign, “Physical Activity: The Arthritis Pain Reliever” was pilot-tested by 6 CDC-funded states. CDC plans to disseminate the health communications arthritis campaign to 38 CDC-funded states. The preliminary pilot tests focused on reach and exposure. The purpose of this evaluation is to determine if core campaign messages are reaching the target audience; and if so, how they are affecting knowledge, beliefs, confidence and behaviors of people with arthritis. CDC will use the data from this evaluation to make recommendations to state health departments and their partners on the use of this media campaign.
In this data collection, CDC proposes to conduct an evaluation using
In compliance with the requirement of section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995, the Centers for Medicare and Medicaid Services (CMS) (formerly known as the Health Care Financing Administration (HCFA), Department of Health and Human Services, is publishing the following summary of proposed collections for public comment. Interested persons are invited to send comments regarding this burden estimate or any other aspect of this collection of information, including any of the following subjects: (1) The necessity and utility of the proposed information collection for the proper performance of the agency's functions; (2) the accuracy of the estimated burden; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) the use of automated collection techniques or other forms of information technology to minimize the information collection burden.
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To obtain copies of the supporting statement and any related forms for the proposed paperwork collections referenced above, access CMS Web site address at
In compliance with the requirement of section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995, the Centers for Medicare and Medicaid Services (CMS) (formerly known as the Health Care Financing Administration (HCFA)), Department of Health and Human Services, is publishing the following summary of proposed collections for public comment. Interested persons are invited to send comments regarding this burden estimate or any other aspect of this collection of information, including any of the following subjects: (1) The necessity and utility of the proposed information collection for the proper performance of the agency's functions; (2) the accuracy of the estimated burden; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) the use of automated collection techniques or other forms of information technology to minimize the information collection burden.
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1. Initial enrollment questionnaire.
2. MSP claims investigation, which consists of first claim development, trauma code development, self-reporting MSP liability development, notice to responsible third party development (411.25 notice), secondary claims development, and “08” development (involving claims where information cannot be obtained from the beneficiary).
3. Provider MSP development, which requires the provider to request information from the beneficiary or representative during admission and other encounters;
To obtain copies of the supporting statement and any related forms for the proposed paperwork collections referenced above, access CMS's Web site address at
The Administration for Children and Families (ACF), Office of Child Support Enforcement (OCSE) invites eligible applicants to submit competitive grant applications for special improvement projects which further the national child support mission, vision, and goals which are: All children to have parentage
Applicants should understand that OCSE will not award grants for special improvement projects which (a) Duplicate automated data processing and information retrieval system requirements/enhancements and associated tasks which are specified in the Social Security Act; or (b) which cover costs for routine activities which would normally be reimbursed under the Child Support Program (
OCSE is looking for projects that would expedite and facilitate courts'/tribunals' processing of child support case actions. In many states, courts/tribunals play a key role in establishing, modifying, or enforcing child support orders. In these jurisdictions, courts/tribunals may find that current rules, practices, or procedures create obstacles to more timely and equitable processing of child support cases. For example, courts/tribunals may require the physical presence of the parents at hearings; may accept only an official employer/corporate verification of earnings statements as evidence of income; or require a formal hearing or otherwise impose procedural obstacles to allowing deviations from guidelines to determine support orders. Under this solicitation, we are looking for projects that would address at least one of the following design elements:
• Design and implement new practices or procedures that enable courts/tribunals to remove barriers to participation in Title IV-D child support proceedings such as requiring the physical presence of the parents at hearings and other legal proceedings. Projects would demonstrate the effectiveness of using more flexible approaches, such as allowing telephone or videoconference hearings when it is difficult for a parent to personally attend a hearing due to distance, health, or other reasons. Projects might show how courts/tribunals can overcome legal and other obstacles to holding telephone hearings, using facsimile machines to transmit evidence,
• Develop and implement procedures that could demonstrate the effectiveness of courts' use of Federal or State-certified information from the Federal or State Parent Locator Services (FPLS/SPLS) in Title IV-D cases, including New Hire information, to establish or modify child support orders. These projects would show how courts/tribunals that allow use of SPLS/FPLS data certified by a child support agency, rather than by an employer, overcome evidentiary or other obstacles to the use of such data. The projects should be designed to assist courts/tribunals or other relevant decision makers to develop and/or implement changes necessary to promote the effective and efficient use of FPLS/SPLS information in the establishment or modification of orders. The projects should show how removing obstacles, such as the requirement of employer/corporate verification of earnings, would lead to improved program performance or customer service, including expedited establishment/modification of child support orders; increased number of orders established; reduced use of imputed income; decreased accrual of arrears; increased collections; and/or increased cost-effectiveness.
• Develop and implement revised criteria, as established by the State, and guidance allowing judicial or administrative personnel greater authority to deviate from State child support order guidelines without a hearing. Projects would demonstrate the benefits of having greater discretionary guidance in this area. For example, such discretion may be warranted when application of the guidelines is considered unjust or inappropriate, such as in cases involving excessive health care costs, child care or education costs or multiple non-custodial parent families. These projects should be designed to assist other jurisdictions to adapt similar discretionary guidance and categories and to show that providing this type of discretion would improve program performance or customer service, including expedited case processing, increased collections, reduction of arrears and/or increased cost-effectiveness. Proposals must be consistent with section 467 of the Social Security Act which governs the application of State child support guidelines.
The purpose of this solicitation is to educate the public about child support enforcement tools and parental obligations with the aim of increasing paternity establishment, child support
Projects would develop guidelines/procedures for modifying child support orders in a more timely and efficient manner. Under section 467 of the Social Security Act, states must review orders every three years at the request of either parent, or at the request of the state child support agency. In addition to using cost-of-living adjustments (COLA) that alter orders periodically without reviews, States can also use automated methods to identify orders eligible for review and to apply the appropriate adjustments to the orders.
In 1997, OCSE funded a research and demonstration grant to the State of Alaska Department of Revenue Child Support Enforcement Division (CSED) to develop and test a more efficient method of reviewing and adjusting child support award amounts. The project, “Alaska: Review and Adjustment of Child Support Order Amounts: Evaluation of Electronic Modification (ELMO),” used income information from automated sources, such as the National Directory of New Hires (NDNH), linked electronically to its child support system to review child support orders annually. Promising results from this project include an increased number of reviews, more timely reviews, and modifications which more accurately reflect the noncustodial parents' ability to pay.
Under this solicitation, OCSE is looking for additional demonstration projects which States can conduct under current State law. These projects would demonstrate the feasibility of automating the review and adjustment process, using a variety of data sources including FPLS/New Hire earnings data, to better reflect current noncustodial/custodial parent income and assets (
Under this solicitation, OCSE is looking for child support agencies to initiate customer contact to alert customers of upcoming appointments or missed appointments, and potential problems, such as missed payments, in order to improve customer satisfaction or resolve issues before they become problematic. Generally, State/local child support agencies use a responsive approach to customers;
We are looking for child support agency approaches designed to alert customers to important case activities such as scheduled appointments or hearings, payment changes/delays, and to obtain case information. These projects would demonstrate the effectiveness of initiating contact to notify customers of important case activities or the need for information to complete case actions in order to improve child support outcomes such as increased collections, cost-effectiveness, customer service satisfaction, reduction in arrears, missed appointments,
Projects would demonstrate effective child support strategies to help low-income NCPs meet their child support and family responsibilities. There is a very high rate of default cases where the noncustodial parent is either not appropriately served or simply does not show up for either paternity or child support hearings. As a result, orders are not always appropriate for the NCP's financial situation, or are not based on the NCP's actual income. Further, many low-income NCPs fall behind in their payment of child support due to unemployment or underemployment. This solicitation would address at least one of the following design elements:
• Develop, implement and determine the effectiveness of alternative measures for avoiding default cases, and/or using imputed income/minimum order amounts in establishing child support orders which can create excessive payment levels for low-income NCPs. These alternatives could include adopting more customer-friendly approaches in establishing orders for low-income fathers to avoid a high level of default orders (such as using alternative service of process methods to ensure NCPs get served and understand the notice to avoid defaults); and/or securing and using more complete income information,
• Develop and implement strategies to provide employment services to low-income fathers who are unemployed or under-employed and cannot meet their child support obligations. Projects should include voluntary and/or mandatory referral, as appropriate, of NCPs for employment and training services by child support agencies or courts/tribunals, to local workforce development agencies or other public employment agencies and local organizations, including community-based and faith-based organizations. For example, projects could include collaboration with TANF agencies to use TANF funds to support employment and training services for NCPs in public assistance cases to demonstrate whether custodial parents left TANF more quickly because of child support receipt. Incentive to NCPs could be reduction/compromise of arrears. Or, projects could develop partnerships with workforce development boards and courts/tribunals to demonstrate the impact on child support outcomes if unemployed or under-employed NCPs, who had past due child support obligations, were required to participate in a job training/placement program or be sentenced to a period in jail. Outcome measures would include increased payment rates on orders, as well as increases in employment, job retention rates and wages.
Under this solicitation, projects would target underserved ethnic and culturally diverse populations, including, but not limited to, the Hispanic/Latino community, the Asian-American and Pacific Islander community, the African-American community, and Native Americans, American Indians, and Alaskan Natives so that they may receive more effective child support enforcement services. OCSE has funded several small-scale community projects which developed outreach media campaigns and language-appropriate materials and/or used community and volunteer resources to help these groups better understand the child support program. Under this solicitation, we are looking for projects which are either statewide or serve multiple counties or a large county. We are interested in collaborations between State/local governments and courts/tribunals with community-based and faith-based organizations to offer model service approaches (not outreach campaigns) that will result in large-scale, systematic, institutionalized approaches to service delivery to underserved populations. Projects should identify nature/causes of barriers to effective child support enforcement service delivery for customers with language and diversity barriers and develop/implement approaches to reduce or eliminate them. Such approaches could include providing bilingual staff, resources, training, etc. to judges/attorneys to address the needs of these customers and assure judicial fairness and/or development of new delivery strategies within the community to increase child support outcomes, such as an increase in numbers of orders established and collections. This solicitation is not designed to provide funding for the development and implementation of Tribal child support enforcement programs since these provisions are being addressed through Federal regulation.
Under this announcement, OCSE is looking for projects that are not covered by any of the above priority areas. OCSE is looking for projects that will test new interventions and approaches to increase paternity and support order establishments and collections. Applicants would propose new ways of doing business, within Federal law and regulations, and put them into effect. We encourage collaborations among entities which may include State/local governments, non-profit organizations, faith-based and community-based organizations, and tribal governments and universities (including historically black colleges and universities).
Over the past five years, OCSE has awarded an average of 9 grants per year, totaling approximately $1.3 million per year. All grant awards are subject to the availability of appropriated funds. A non-Federal match is not required. The anticipated start date for the new awards is May 1, 2004; projects may go through September 2005, for a period of up to 17 months.
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The Federal OCSE will provide the State CSE agency the opportunity to comment on the merits of local CSE agency applications before final award. Given that the purpose of these projects is to improve child support enforcement programs, it is critical that applicants have the cooperation of IV-D agencies to operate these projects. Preference will be given to applicants representing CSE agencies and applicant organizations which have letters of commitment or cooperative agreements with CSE agencies. All applications developed jointly by more than one agency/organization must identify a single lead organization as the official applicant. The lead organization will be the recipient of the grant award. Participating agencies and organizations can be included as co-participants, subgrantees, or subcontractors with their written authorization.
Private non-profit organizations are encouraged to submit with their applications the survey located under “Grant Related Documents and Forms” titled “Survey for Private, Non-Profit Grant Applicants” at
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For specific questions regarding the application or program concerns regarding the announcement, contact: Susan A. Greenblatt, Deputy Director, Division of State, Tribal and Local Assistance, Office of Child Support Enforcement, 370 L'Enfant Promenade, SW., 4th Floor, East Wing, Washington, DC 20447 (this is not the mailing address for submission of applications,
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In addition to the project description, the applicant needs to complete all the standard forms required for making applications for awards under this announcement. Applicants requesting financial assistance for non-construction projects must file the Standard Form 424B, “Assurances: Non-Construction Programs.” Applicants must sign and return the Standard Form 424B with their applications.
Applicants must provide a certification regarding lobbying when applying for an award in excess of $100,000. Applicants must sign and return the certification with their applications.
Applicants must disclose lobbying activities on the Standard Form LLL when applying for an award in excess of $100,000. Applicants who have used non-Federal funds for lobbying activities in connection with receiving assistance under this announcement shall complete a disclosure form, if applicable, with their applications.
Applicants must make the appropriate certification of their compliance with the Drug-Free Workplace Act of 1988. By signing and submitting the application, the applicant is providing the certification and need not mail back the certification with the application.
Applicants must make the appropriate certification that they are not presently debarred, suspended or otherwise ineligible for an award. By signing and submitting the application, the applicant is providing the certification and need not mail back the certification with the application.
The forms (Forms 424, 424A-B; and Certifications including Certification Regarding Lobbying; Debarment, Suspension,
Private non-profit organizations are encouraged to submit with their applications the survey located under “Grant Related Documents and Forms” titled “Survey for Private, Non-Profit Grant Applicants” at
On June 27, 2003, the Office of Management and Budget published in the
Please ensure that your organization has a DUNS number. You may require a DUNS number at no cost by calling the dedicated toll-free DUNS number request line on 1-866-705-5711 or you may request a number on-line at
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All States and Territories except Alabama, Alaska, Arizona, Colorado, Connecticut, Hawaii, Idaho, Indiana, Kansas, Louisiana, Massachusetts, Minnesota, Montana, Nebraska, New Jersey, New York, Ohio, Oklahoma, Oregon, Pennsylvania, South Dakota, Tennessee, Vermont, Virginia, Washington, Wyoming, American Samoa and Palau have elected to participate in the Executive Order process and have established Single Points of Contact (SPOCs). Applicants from these 28 jurisdictions need take no action regarding E.O. 12372. Applicants for projects to be administered by federally-recognized Indian tribes are also exempt from the requirements of E.O. 12372. Otherwise, applicants should contact their SPOCs as soon as possible to alert them of the prospective applications and receive any necessary instructions. Applicants must submit any required material to the SPOCs as soon as possible so that the program office can obtain and review SPOC comments as part of the award process. It is imperative that the applicant submit all required materials, if any, to the SPOC and indicate the date of this submittal (or indicate “not applicable” if no submittal is required) on the Standard Form 424, item 16a.
Under 45 CFR 100.8(a)(2), a SPOC has 60 days from the application deadline to comment on proposed new or competing continuation awards.
SPOCSs are encouraged to eliminate the submission of routine endorsements as official recommendations.
Additionally, SPOCs are requested to clearly differentiate between mere advisory comments and those official State process recommendations which may trigger the “accommodate or explain” rule.
When comments are submitted directly to ACF, they should be addressed to the U.S. Department of Health and Human Services, Administration for Children and Families, Office of Grants Management, Division of Discretionary Grants, 370
A list of the Single Points of Contact for each participating State and Territory can be found on the Web at:
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Applicants are responsible for mailing applications well in advance to ensure that the application is received on or before the deadline date and time. Applicants should submit a signed original and two copies of the complete application package and submit it as follows:
Any application received after 4:30 p.m. on the deadline date will not be considered for competition. Applicants using express/overnight mail services should allow two working days prior to the deadline date for receipt of applications. (Applicants are cautioned that express/overnight mail services do not always deliver as agreed.)
ACF cannot accommodate transmission of applications by fax. Therefore, applications transmitted to ACF by fax will not be accepted regardless of date or time of submission and time of receipt.
You may submit your application to us in either electronic or paper format. To submit an application electronically, please use the
Please note the following if you plan to submit your application electronically via Grants.gov:
• Electronic submission is voluntary.
• When you enter the Grants.gov site, you will find information about submitting an application electronically through the site, as well as the hours of operation. We strongly recommend that you do not wait until the application deadline date to begin the application process through Grants.gov.
• To use Grants.gov, you, as the applicant, must have a DUNS Number and register in the Central Contractor Registry (CCR). You should allow a minimum of five days to complete the CCR registration.
• You will not receive additional point value because you submit a grant application in electronic format, nor will we penalize you if you submit an application in paper format.
• You may submit all documents electronically, including all information typically included on the SF 424 and all necessary assurances and certifications.
• Your application must comply with any page limitation requirements described in this program announcement.
• After you electronically submit your application, you will receive an automatic acknowledgement from Grants.gov that contains a Grants.gov tracking number. The Administration for Children and Families will retrieve your application from Grants.gov
• We may request that you provide original signatures on forms at a later date.
• You may access the electronic application for this program on
• You must search for the downloadable application package by the CFDA number.
The project description provides a major means by which an application is evaluated and ranked to compete with other applications for available assistance. The project description should be concise and complete and should address the activity for which Federal funds are being requested. Supporting documents should be included where they can present information clearly and succinctly. In preparing your project description, all information requested through each specific evaluation criterion should be provided. Awarding offices use this and other information in making their funding recommendations. It is important, therefore, that this information be included in the application.
Applicants are required to submit a full project description and shall prepare the project description statement in accordance with the instructions and the specified evaluation criteria in the sections below. The instructions give a broad overview of what your project description should include while the evaluation criteria expand and clarify more program-specific information that is needed.
Provide a summary of the project description (a page or less) with reference to the funding request.
Clearly identify the physical, economic, social, financial, institutional, and/or other problem(s) requiring a solution. The need for assistance must be demonstrated and the principal and subordinate objectives of the project must be clearly stated; supporting documentation, such as letters of support and testimonials from concerned interests other than the applicant, may be included. Any relevant data based on planning studies should be included or referred to in the endnotes/footnotes. Incorporate demographic data and participant/beneficiary information, as needed. In developing the project description, the applicant may volunteer or be requested to provide information on the total range of projects currently being conducted and supported (or to be initiated), some of which may be outside the scope of the program announcement.
Outline a plan of action which describes the scope and detail of how the proposed work will be accomplished. Account for all functions or activities identified in the application. Cite factors which might accelerate or decelerate the work and state your reason for taking the proposed approach rather than others. Describe any unusual features of the project such as design or technological innovations, reductions in cost or time, or extraordinary social and community involvement.
Provide quantitative monthly or quarterly projections of the accomplishments to be achieved for each function or activity in such terms as the number of people to be served and the number of activities accomplished. For example, increased use of an interstate child support enforcement remedy (such as income withholding, tax refund offset) is projected to have quarterly results of a 5% increase in income withholding collections and a 5% increase in automated enforcement collections. When accomplishments cannot be quantified by activity or function, list them in chronological order to show the schedule of accomplishments and their target dates.
If any data is to be collected, maintained, and/or disseminated, clearance may be required from the U.S. Office of Management and Budget (OMB). This clearance pertains to any “collection of information that is conducted or sponsored by ACF.” List organizations, cooperating entities, consultants, or other key individuals who will work on the project along with a short description of the nature of their effort or contribution.
Provide a biographical sketch for each key person appointed and a job description for each vacant key position. A biographical sketch will also be required for new key staff as appointed.
Provide a narrative addressing how the results of the project and the conduct of the project will be evaluated. In addressing the evaluation of results, state how you will determine the extent to which the project has achieved its stated objectives and the extent to which the accomplishment of objectives can be attributed to the project. Discuss the criteria to be used to evaluate results, and explain the methodology that will be used to determine if the needs identified and discussed are being met and if the project results and benefits are being achieved. With respect to the conduct of the project, define the procedures to be employed to determine whether the project is being conducted in a manner consistent with the work plan presented and discuss the impact of the project's various activities on the project's effectiveness.
Provide line item detail and detailed calculations for each budget object class identified on the Budget Information Form. Detailed calculations must include estimation methods, quantities, unit costs, and other similar quantitative detail sufficient for the calculation to be duplicated. Provide a narrative budget justification that describes how the categorical costs are derived. Discuss the necessity, reasonableness and allocability of the proposed costs.
1.
The application should demonstrate a thorough understanding and analysis of the problem(s) being addressed in the project, the need for assistance and the importance of addressing these problems in improving the effectiveness of the child support program. The applicant should describe how the project will address this problem(s) through implementation of changes, enhancements and innovative efforts and specifically, how this project will improve program results. The applicant should address one or more of the activities listed under the “Design Elements in the Application” described above for the specific priority area they are applying for (refer to Part I. Priority Areas). The applicant should identify the key goals and objectives of the project; describe the conceptual framework of its approach to resolve the identified problem(s); and provide a rationale for taking this approach as opposed to others.
A well thought-out and practical management and staffing plan is mandatory. The application should include a detailed management plan that includes time-lines and detailed
The application describes how the success of this project can be measured and how the success of this project has broader application in contributing to child support enforcement policies, practices, and/or providing solutions that could be adapted by other states/jurisdictions. The application describes the specific results/products that will be achieved; as appropriate, identifies the kinds of data to be collected and maintained; describes procedures for informed consent of participants, where applicable, and discusses the criteria to be used to evaluate the results of the project. The application describes the evaluation methodology to be used to determine if the process proposed was implemented and if the project goals/objectives were achieved. Sound evaluations to determine whether or not project goals have been realized are of importance to child support enforcement policy makers and administrators. Thus, the proposal should include a process evaluation component and comparison of before/and after the project site(s)' experience, as appropriate, to demonstrate the results achieved.
The project costs need to be reasonable in relation to the identified tasks, including the evaluation component. A detailed budget (
Preference will be given to those grant applicants representing IV-D agencies and applicant organizations who have documented IV-D agency commitment to the project, either through a cooperative agreement or letter of commitment, which needs to be signed and attached to the application.
2.
Applications which pass the initial ACF screening will be evaluated and rated by an independent review panel on the basis of specific evaluation criteria. The results of these reviews will assist the Commissioner and OCSE program staff in considering competing applications. Reviewers' scores will weigh heavily in funding decisions but will not be the only factors considered. Applications generally will be considered in order of the average scores assigned by reviewers. However, highly ranked applications are not guaranteed funding because other factors are taken into consideration. These include, but are not limited to, the number of similar types of existing grants or projects funded with OCSE funds in the last five years; comments of reviewers and government officials; staff evaluation and input; geographic distribution; previous program performance of applicants; compliance with grant terms under previous DHHS grants; audit reports; investigative reports; an applicant's progress in resolving any final audit disallowance on previous OCSE or other Federal agency grants. OCSE will consider the geographic distribution of funds among States and the relative proportion of funding among rural and urban areas. The evaluation criteria were designed to assess the quality of a proposed project, and to determine the likelihood of its success. The evaluation criteria are closely related and are considered as a whole in judging the overall quality of an application. Points are awarded only to applications which are responsive to the evaluation criteria within the context of this program announcement.
Federal reviewers will be used for the review process.
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For copies of forms and the announcement, contact: Jean Robinson, Program Analyst, at (202) 401-5330, Fax (202) 205-4315; email,
For questions regarding application development, forms, or program concerns regarding the announcement contact: Susan A. Greenblatt, Deputy Director, Division of State, Tribal and Local Assistance, at (202) 401-4849; e-mail,
For questions regarding application submittal or other grants management concerns, contact Barbara Ziegler Johnson at (202) 401-4646; e-mail,
In compliance with the requirements of Section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995, the Administration for children and Families is soliciting public comment on the specific aspects of the information collection described above. Copies of the proposed collection of information can be obtained and comments may be forwarded by writing to the Administration for Children and Families, Office of Administration, Office of Information Services, 370 L'Enfant Promenade, SW., Washington, DC 20447, Attn: ACF Reports Clearance Officer. All requests should be identified by the title of the information collection.
The Department specifically requests comments on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden of the proposed collection of information; (c) the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology. Consideration will be given to comments and suggestions submitted within 60 days of this publication.
In compliance with the requirements of Section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995, the Administration for Children and Families is soliciting public comment on the specific aspects of the information collection described above. Copies of the proposed collection of information can be obtained and comments may be forwarded by writing to the Administration for Children and Families, Office of Administration, Office of Information Services, 370 L'Enfant Promenade, SW., Washington, DC 20447, Attn: ACF Reports Clearance Officer. E-mail address:
The Department specifically requests comments on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden of the proposed collection of information; (c) the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology. Consideration will be given to comments and suggestions submitted within 60 days of this publication.
It compliance with the requirements of Section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995, the Administration for Children and Families is soliciting public comment on the specific aspects of the information collection described above. Copies of the proposed collection of information can be obtained and comments may be forwarded by writing to the Administration for Children and Families, Office of Administration, Office of Information Services, 370 L'Enfant Promenade, SW., Washington, DC 20447, Attn: ACF Reports Clearance Officer. E-Mail address:
The Department specifically requests comments on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden of the proposed collection of information; (c) the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology. Consideration will be given to comments and suggestions submitted within 60 days of this publication.
Respondents are drawn from the public with a legislatively required preference being given to those who are Native American, Native Alaskan, Native Hawaiian and other Pacific Islanders. These project evaluation panels review and rank applications.
In compliance with the requirements of Section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995, the Administration for Children and Families is soliciting public comment on the specific aspects of the information collection described above. Copies of the proposed collection of information can be obtained and comments may be forwarded by writing to the Administration for Children and Families, Office of Administration, Office of Information Services, 370 L'Enfant Promenade, SW., Washington, DC 20447, Attn: ACF Reports Clearance Officer. E-mail address:
The Department specifically requests comments on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden of the proposed collection of information; (c) the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or
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 February 17, 2004.
Submit electronic comments on the collection of information to:
Karen Nelson, Office of Management Programs (HFA-250), Food and Drug Administration, 5600 Fishers Lane, Rockville, MD 20857, 301-827-1482.
Under the PRA (44 U.S.C. 3501-3520), Federal agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. “Collection of information” is defined in 44 U.S.C. 3502(3) and 5 CFR 1320.3(c) and includes agency requests or requirements that members of the public submit reports, keep records, or provide information to a third party. Section 3506(c)(2)(A) of the PRA (44 U.S.C. 3506(c)(2)(A)) requires Federal agencies to provide a 60-day notice in the
With respect to the following collection of information, FDA invites comments on these topics: (1) Whether the proposed collection of information is necessary for the proper performance of FDA's functions, including whether the information will have practical utility; (2) the accuracy of FDA's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques, when appropriate, and other forms of information technology.
On November 21, 1997, the President signed the Food and Drug Administration Modernization Act (the Modernization Act) (Pubic Law 105-115) into law. Section 116 of the Modernization Act amended the Federal Food, Drug, and Cosmetic Act (the act) by adding section 506A (21 U.S.C. 356a), which describes requirements and procedures for making and reporting manufacturing changes to approved new drug applications (NDAs) and abbreviated new drug applications (ANDAs), to new and abbreviated animal drug applications, and to license applications for biological products.
The guidance is intended to assist applicants in determining how they should report changes to an approved NDA or ANDA under section 116 of the Modernization Act, which provides requirements for making and reporting manufacturing changes to an approved application and for distributing a drug product made with such changes.
The guidance provides recommendations to holders of approved NDAs and ANDAs who intend to make postapproval changes in accordance with section 506A of the act. The guidance covers recommended reporting categories for postapproval changes for drugs, other than specified biotechnology and specified synthetic biological products. Recommendations are provided for postapproval changes in the following areas: (1) Components and composition, (2) sites, (3) manufacturing process, (4) specification(s), (5) package, (6) labeling, and (7) miscellaneous changes.
Some of the basic elements of section 506A of the act are as follows:
A drug made with a manufacturing change, whether a major manufacturing change or otherwise, may be distributed only after the applicant validates the effects of the change on the identity, strength, quality, purity, and potency of the drug as these factors may relate to the safety or effectiveness of the drug (sections 506A(a)(1) and (b) of the act). This section recognizes that additional testing, beyond testing to ensure that an approved specification is met, is required to ensure unchanged identity, strength, quality, purity, or potency as these factors may relate to the safety or effectiveness of the drug.
A drug made with a major manufacturing change may be distributed only after the applicant submits a supplemental application to FDA and the supplemental application is approved by the agency. The application is required to contain information determined to be appropriate by FDA and include the information developed by the applicant when “validating the effects of the change” (section 506A(c)(1) of the act).
A major manufacturing change is a manufacturing change determined by FDA to have substantial potential to adversely affect the identity, strength, quality, purity, or potency of the drug as these factors may relate to the safety or effectiveness of the drug. Such changes include the following possibilities: (1) A change made in the qualitative or quantitative formulation of the drug involved or in the specifications in the approved application or license unless exempted by FDA by regulation or guidance; (2) a change determined by FDA by regulation or guidance to require completion of an appropriate clinical study demonstrating equivalence of the drug to the drug manufactured without the change; and (3) other changes determined by FDA by regulation or guidance to have a
FDA may require submission of a supplemental application for drugs made with manufacturing changes that are not major (section 506A(d)(1)(B) of the act) and establish categories of manufacturing changes for which a supplemental application is required (section 506A(d)(1)(C) of the act). In such a case the applicant may begin distribution of the drug 30 days after FDA receives a supplemental application unless the agency notifies the applicant within the 30 day period that prior approval of the application is required (section 506A(d)(3)(B)(i) of the act). FDA may also designate a category of manufacturing changes that permit the applicant to begin distributing a drug made with such changes upon receipt by the agency of a supplemental application for the change (section 506A(d)(3)(B)(ii) of the act). If FDA disapproves a supplemental application, the agency may order the manufacturer to cease the distribution of drugs that have been made with the disapproved change (section 506A(d)(3)(B)(iii) of the act).
FDA may authorize applicants to distribute drugs without submitting a supplemental application (section 506A(d)(1)(A) of the act) and may establish categories of manufacturing changes that may be made without submitting a supplemental application (section 506A(d)(1)(C) of the act). The applicant is required to submit a report to FDA on such a change and the report is required to contain information the agency deems to be appropriate and information developed by the applicant when validating the effects of the change. FDA may also specify the date on which the report is to be submitted (section 506A(d)(2)(A) of the act). If during a single year an applicant makes more than one manufacturing change subject to an annual reporting requirement, FDA may authorize the applicant to submit a single report containing the required information for all the changes made during the year (annual report) (section 506A(d)(2)(B) of the act).
Section 506A of the act provides FDA with considerable flexibility to determine the information and filing mechanism required for the agency to assess the effect of manufacturing changes in the safety and effectiveness of the product. There is a corresponding need to retain such flexibility in the guidance on section 506A of the act to ensure that the least burdensome means for reporting changes are available. FDA believes that such flexibility will allow it to be responsive to increasing knowledge of and experience with certain types of changes and help ensure the efficacy and safety of the products involved. For example, a change that may currently be considered to have a substantial potential to have an adverse effect on the safety or effectiveness of the product may, at a later date, based on new information or advances in technology, be determined to have a lesser potential to have such an adverse effect. Conversely, a change originally considered to have a minimal or moderate potential to have an adverse effect on the safety or effectiveness of the product may later, as a result of new information, be found to have an increased, substantial potential to adversely affect the product. The guidance enables the agency to respond more readily to knowledge gained from manufacturing experience, further research and data collection, and advances in technology. The guidance describes the agency's current interpretation of specific changes falling into the four filing categories. Section 506A of the act explicitly provides FDA the authority to use guidance documents to determine the type of changes that do or do not have a substantial potential to adversely affect the safety or effectiveness of the drug product. The use of guidance documents allows FDA to more easily and quickly modify and update important information.
As explained in the next paragraph, FDA estimates the burden of this collection of information as follows:
Section 506A(a)(1) and (b) of the act requires the holder of an approved application to validate the effects of a manufacturing change on the identity, strength, quality, purity, or potency of the drug as these factors may relate to the safety or effectiveness of the drug before distributing a drug made with the change. Under section 506A(d)(3)(A) of the act, information developed by the applicant to validate the effects of the change regarding identity, strength, quality, purity, and potency is required to be submitted to FDA as part of the supplement or annual report. Thus, no separate estimates are provided for these sections in table 1 of this document; estimates for validation requirements are included in the estimates for supplements and annual reports. The guidance does not provide recommendations on the specific information that should be developed by the applicant to validate the effect of the change on the identity, strength (e.g., assay, content uniformity); quality (e.g., physical, chemical, and biological properties); purity (e.g., impurities and degradation products); or potency (e.g., biological activity, bioavailability, and bioequivalence) of a product as they may relate to the safety or effectiveness of the product.
Section 506A(c)(1) and (c)(2) of the act sets forth requirements for changes requiring supplement submission and approval prior to distribution of the product made using the change (major changes). Under these sections of the act, a supplement must be submitted for any change in the product, production process, quality controls, equipment, or facilities that has a substantial potential to have an adverse effect on the identity, strength, quality, purity, or potency of
Based on data concerning the number of supplements received by the agency, FDA estimates that approximately 1,517 supplements will be submitted annually under section 506A(c)(1) and (c)(2) of the act. FDA estimates that approximately 263 applicants will submit such supplements, and that it will take approximately 150 hours to prepare and submit to FDA each supplement.
Section 506A(d)(1)(B), (d)(1)(C), and (d)(3)(B)(i) sets forth requirements for changes requiring supplement submission at least 30 days prior to distribution of the product made using the change (moderate changes). Under these sections, a supplement must be submitted for any change in the product, production process, quality controls, equipment, or facilities that has a moderate potential to have an adverse effect on the identity, strength, quality, purity, or potency of the product as these factors may relate to the safety or effectiveness of the product. Distribution of the product made using the change may begin not less than 30 days after receipt of the supplement by FDA.
Based on data concerning the number of supplements received by the agency, FDA estimates that approximately 2,322 supplements will be submitted annually under section 506A(d)(1)(B), (d)(1)(C), and (d)(3)(B)(i) of the act. FDA estimates that approximately 274 applicants will submit such supplements, and that it will take approximately 95 hours to prepare and submit to FDA each supplement.
Under section 506A(d)(3)(B)(ii) of the act, FDA may designate a category of changes for the purpose of providing that, in the case of a change in such category, the holder of an approved application may commence distribution of the drug upon receipt by the agency of a supplement for the change. Based on data concerning the number of supplements received by the agency, FDA estimates that approximately 1959 supplements will be submitted annually under section 506A(d)(3)(B)(ii) of the act. FDA estimates that approximately 202 applicants will submit such supplements, and that it will take approximately 95 hours to prepare and submit to FDA each supplement.
Section 506A(d)(1)(A), (d)(1)(C), (d)(2)(A), and (d)(2)(B) of the act sets forth requirements for changes to be described in an annual report (minor changes). Under these sections, changes in the product, production process, quality controls, equipment, or facilities that have a minimal potential to have an adverse effect on the identity, strength, quality, purity, or potency of the product as these factors may relate to the safety or effectiveness of the product must be documented by the applicant in the next annual report.
Based on data concerning the number of supplements and annual reports received by the agency, FDA estimates that approximately 7,639 annual reports will include documentation of certain manufacturing changes as required under section 506A(d)(1)(A), (d)(1)(C), (d)(2)(A), and (d)(2)(B). FDA estimates that approximately 580 applicants will submit such information and that it will take approximately 35 hours to prepare and submit to FDA the information for each annual report.
Food and Drug Administration, HHS.
Notice.
This notice announces a forthcoming meeting of a public advisory committee of the Food and Drug Administration (FDA). The meeting will be open to the public.
The background materials for this meeting will become available no later than 1 business day before the meeting and will be posted at:
Persons attending FDA's advisory committee meetings are advised that the agency is not responsible for providing access to electrical outlets.
FDA welcomes the attendance of the public at its advisory committee meetings and will make every effort to accommodate persons with physical disabilities or special needs. If you require special accommodations due to a disability, please contact Shalini Jain at least 7 days in advance of the meeting.
Notice of this meeting is given under the Federal Advisory Committee Act (5 U.S.C. app. 2).
Food and Drug Administration, HHS.
Notice.
This notice announces a forthcoming meeting of a public advisory committee of the Food and Drug Administration (FDA). The meeting will be open to the public.
Persons attending FDA's advisory committee meetings are advised that the agency is not responsible for providing access to electrical outlets.
FDA welcomes the attendance of the public at its advisory committee meetings and will make every effort to accommodate persons with physical disabilities or special needs. If you require special accommodations due to a disability, please contact Leonard Schechtman at least 7 days in advance of the meeting.
Notice of this meeting is given under the Federal Advisory Committee Act (5 U.S.C. app. 2).
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is announcing the availability of the guidance entitled “Premarket Notification [510(k)] Submissions for Chemical Indicators.” The document provides guidance for industry and other interested parties regarding the submission of chemical indicators such as process indicators, chemical integrators, and air removal indicators used in test packs.
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 “Premarket Notification [510(k)] Submissions for Chemical Indicators” 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
Chiu Lin, Center for Devices and Radiological Health (HFZ-480), Food and Drug Administration, 9200 Corporate Blvd., Rockville, MD 20850, 301-443-8913, ext. 143.
This guidance is for chemical indicators intended for use in health care facilities. Chemical indicators are Class II devices identified in 21 CFR 880.2800. The chemical indicators discussed in the guidance document include process indicators, chemical integrators, and air removal indicators used in test packs such as the Bowie Dick Test Pack.
In the
This guidance is being issued consistent with FDA's good guidance practices (GGPs) regulation (21 CFR 10.115). The guidance represents the agency's current thinking on chemical
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 USC 3501-3520). The collections of information addressed in the guidance document have been approved by OMB in accordance with the PRA under the regulations governing premarket notification submissions (21 CFR part 807, subpart E, OMB control number 0910-0120). The labeling provisions addressed in the guidance have been approved by OMB under OMB control number 0910-0485.
To receive a copy of “Premarket Notification [510(k)] Submissions for Chemical Indicators” 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 (1420) 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,
Interested persons may submit to the Division of Dockets Management (see
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is announcing the availability of a compliance policy guide (CPG) Sec. 110.300 entitled “Registration of Food Facilities Under the Public Health Security and Bioterrorism Preparedness and Response Act of 2002.” The CPG provides written guidance to FDA's staff on enforcement of section 305 of the Public Health Security and Bioterrorism Preparedness and Response Act of 2002 (the Bioterrorism Act) and the agency's implementing regulation, which require, beginning on December 12, 2003, registration with FDA for all domestic and foreign facilities that manufacture/process, pack, or hold food for human or animal consumption in the United States.
This guidance is final upon the date of publication. However, you may submit written or electronic comments at any time.
Submit written requests for single copies of the guidance to the Division of Compliance Policy (HFC-230), Office of Enforcement, Food and Drug Administration, 5600 Fishers Lane, Rockville, MD 20857. Send one self-addressed adhesive label to assist that office in processing your request or include a fax number to which the guidance may be sent.
Submit written comments on the 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
FDA is announcing the availability of CPG Sec.110.300 entitled “Registration of Food Facilities Under the Public Health Security and Bioterrorism Preparedness and Response Act of 2002.” This guidance outlines for FDA staff the agency's policy on enforcement of section 305 of the Bioterrorism Act and its implementing regulation (68 FR 58894, October 10, 2003; to be codified at 21 CFR part 1, subpart H). The Bioterrorism Act and subpart H require that, beginning on December 12, 2003, all domestic and foreign facilities that manufacture, process, pack, or hold food for human or animal consumption in the United States be registered with FDA.
FDA is issuing this document as level 1 guidance consistent with FDA's good guidance practices regulation § 10.115 (21 CFR 10.115). The CPG Sec. 110.300 is being implemented immediately without prior public comment, under § 10.115(g)(2), because the agency has determined that prior public participation is not feasible. As noted, under section 305 of the Bioterrorism Act, the requirement that food facilities be registered is effective December 12, 2003, making it urgent that the agency explain how it intends to enforce this requirement.
Interested persons may submit to the Division of Dockets Management (see
An electronic version of this guidance is available on the Internet at
Periodically, the Health Resources and Services Administration (HRSA) publishes abstracts of information collection requests under review by the Office of Management and Budget, in compliance with the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35). To request a copy of the clearance requests submitted to OMB for review, call the HRSA Reports Clearance Office on (301)-443-1129.
HRSA's Office of Rural Health Policy (ORHP) currently funds a number of Rural Health Research Centers in the United States, allocating funding through cooperative agreements. Authorized by Section 301 of the Public Health Service Act (42 U.S.C. 241), ORHP conducts research and investigations to render assistance to appropriate public authorities in the areas of the health and well-being of rural populations in the United States. A major current initiative of HRSA is the expansion of Health Centers (HCs) receiving funding under section 330 of the PHS Act, which provides medical care to lower income Americans regardless of the ability to pay in rural and urban areas.
HCs are a key element of the nation's medical care safety net, and are scheduled to expand the scope of their operations in the near future. One of the issues affecting HC expansion is their ability to recruit adequate numbers of medical and administrative personnel to accomplish their mission, particularly in rural areas, where there have been persistent problems recruiting and retaining health care personnel. HRSA's Office of Rural Health Policy (ORHP) has funded a study in collaborative oversight with the Bureau of Primary Health Care (BPHC) and the Bureau of Health Professions (BHPr), to collect information from HCs on issues concerning the recruitment of various types of health professionals and administrative personnel.
This data collection effort is designed to assess the problems encountered by rural and remote HCs in their efforts to recruit needed personnel as well as the types of programs employed in recruitment efforts, and to compare these patterns with prevailing programs in urban HCs. This one-time survey will collect information on all HCs receiving section 330 grant funding in the United States. The survey includes 13 separate response items, and will collect information from HC administrators on health care professional staffing, recruitment trends and issues and needs among HCs throughout the nation. The data collected will improve HRSA's abilities in forecasting needs for personnel as HCs expand, planning recruitment programs and strategies, and implementing of local and national policy initiatives to meet the personnel demands of HCs so that access to health care is maximized.
The burden estimates are as follows:
Written comments and recommendations concerning the proposed information collection should be sent within 30 days of this notice to: John Morrall, Human Resources and Housing Branch, Office of Management and Budget, New Executive Office Building, Room 10235, Washington, DC 20503.
Periodically, the Health Resources and Services Administration (HRSA) publishes abstracts of information collection requests under review by the Office of Management and Budget, in compliance with the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35). To request a copy of the clearance requests submitted to OMB for review, call the HRSA Reports Clearance Office on (301) 443-1129.
The following request has been submitted to the Office of Management and Budget for review under the Paperwork Reduction Act of 1995:
This clearance request is for a revision to the approval of the notification, reporting and recordkeeping requirements in the HEAL program to insure that the lenders, holders and schools participating in the HEAL program follow sound management procedures in the administration of federally-insured student loans. While the regulatory requirements are approved under this OMB number,
Annual Response Burden for the following regulations is cleared by OMB when the reporting forms are cleared:
The estimate of burden for the regulatory requirements of this clearance are as follows:
Written comments and recommendations concerning the proposed information collection should be sent within 30 days of this notice to: John Morrall, Human Resources and Housing Branch, Office of Management and Budget, New Executive Office Building, Room 10235, Washington, DC 20503.
In accordance with section 10(a)(2) of the Federal Advisory Committee Act (Pub. L. 92-463), notice is hereby given of the following meeting:
Agenda items are subject to change as priorities indicate.
Under the provisions of Section 3507(a)(1)(D) of the Paperwork Reduction Act of 1995, the National Institute on Alcohol Abuse and Alcoholism (NIAAA), the National Institutes of Health (NIH) has submitted to the Office of Management and Budget (OMB) a request for review and approval of the information collection listed below. This proposed information collection was previously published in the
Written comments and/or suggestions from the public and affected agencies are invited on one or more of the following points: (1) Whether the proposed collection of information is necessary for the proper performance of the function of the agency, including whether the information will have practical utility; (2) The accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methdology and assumptions used; (3) Ways to enhance the quality, utility, and clarity of the information to be collected; and (4) Ways to minimize the burden of the collection of information on those who are to respond, including the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology.
Written comments and/or suggestions regarding the item(s) contained in this notice, especially regarding the estimated public burden and associated response time, should be directed to the: Office of Management and Budget, Office of Regulatory Affairs, New Executive Office Building, Room 10235, Washington, DC 20503, Attention: Desk Officer for NIH. To request more information on the proposed project or to obtain a copy of the data collection plans and instruments, contact Dr. Bridget Grant, Chief, Laboratory of Biometry and Epidemiology, Division of Intramural Clinical and Biological Research, NIAAA, NIH, Willco Building, Suite 514, 6000 Executive Boulevard, Bethesda, Maryland 20892-7003, or call non-toll-free number (301) 443-7370 or E-mail your request, including your address to:
Comments regarding this information collection are best assured of having their full effect if received within 30 days of the date of this publication.
Estimated costs to the respondents consists of their time; time is estimated using a rate of $10.00 per hour for patients and the public; $30.00 for vendors, regulators, organizations and $55.00 for health care professionals. The estimated annual costs to respondents for each year for which the generic clearance is requested is $27,187.10 for 2004, $31,043 for 2005, and $24,693.70 for 2006. Estimated Capital Costs are $7,000. Estimated Operating and Maintenance costs are $73,000.
Written comments and/or suggestions from the public and affected agencies are invited on one or more of the following points: (1) Whether the proposed collection of information is necessary for the proper performance of the functions of the Clinical Center and the agency, including whether the information shall have practical utility; (2) the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on those who are to respond, including the use of automated, electronic, mechanical, or other technological collection techniques or other forms of information technology.
To request more information on the proposed project, or to obtain a copy of the data collection plans and instruments, contact: Dr. David K. Henderson, Deputy Director for Clinical Care, Warren G. Magnuson Clinical Center, National Institutes of Health, Building 10, Room 2C 146, 9000 Rockville Pike, Bethesda, Maryland 20892, or call non-toll free: 301-496-3515, or e-mail your request or comments, including your address to:
Comments regarding this information collection are best assured of having their full effect if received within 60 days of the date of this publication.
National Institutes of Health, Public Health Service, DHHS.
Notice.
The invention listed below is owned by an agency of the U.S. Government and is available for licensing in the U.S. in accordance with 35 U.S.C. 207 to achieve expeditious commercialization of results of federally-funded research and development. Foreign patent applications are filed on selected inventions to extend market coverage for companies and may also be available for licensing.
Licensing information and copies of any U.S. patent applications listed below may be obtained by writing to the indicated licensing contact at the Office of Technology Transfer, National Institutes of Health, 6011 Executive Boulevard, Suite 325, Rockville, Maryland 20852-3804; telephone: 301/496-7057; fax: 301/402-0220. A signed Confidential Disclosure Agreement will be required to receive copies of the patent applications.
Bitter taste has evolved in mammals as a central warning signal against ingestion of poisonous or toxic compounds. However, many beneficial compounds are also bitter and taste masking of bitter tasting pharmaceutical compounds is a billion dollar industry. The diversity of compounds that elicit bitter-taste sensations is vast and more than two dozen members of the TAS2R bitter taste receptor gene family have been identified. How individuals are genetically predisposed to respond or not to respond to the bitter taste of substances like nicotine and certain foods like broccoli may have broad implications for nutritional status and tobacco use. Large individual differences in the taste perception of bitter compounds have been well documented, and phenylthiocarbamide (PTC), the subject of this invention by scientists at the NIH and the University of Utah, has been widely used for genetic and anthropological studies.
The PTC receptor encodes a novel member of the G protein-coupled TAS2R bitter taste receptor family (Science (2003) 299, 1221-1225). Three coding SNPs in this gene were identified as giving rise to five haplotypes which accounted for the bimodal distribution of PTC taste sensitivity worldwide. Distinct phenotypes are associated with distinct genotypes and SNPs such as these identifying variations in the PTC receptor would allow taste masking of bitter tasting compounds tailored to the population genetics profile of different groups and populations.
The invention available for licensing includes composition of matter claims for a bitter taste receptor for PTC, antibodies to the receptor and methods
National Institutes of Health, Public Health Service, HHS.
Notice.
The inventions listed below are owned by an agency of the U.S. Government and are available for licensing in the U.S. in accordance with 35 U.S.C. 207 to achieve expeditious commercialization of results of federally-funded research and development. Foreign patent applications are filed on selected inventions to extend market coverage for companies and may also be available for licensing.
Licensing information and copies of the U.S. patent applications listed below may be obtained by writing to the indicated licensing contact at the Office of Technology Transfer, National Institutes of Health, 6011 Executive Boulevard, Suite 325, Rockville, Maryland 20852-3804; telephone: 301/496-7057; fax: 301/402-0220. A signed Confidential Disclosure Agreement will be required to receive copies of the patent applications.
Inflammatory processes associated with the over-production of cytokines, particularly of tumor necrosis factor-alpha (TNF-a), accompany numerous neurodegenerative diseases, such as Alzheimer's disease and ALS, in addition to numerous common systemic conditions, such as rheumatoid arthritis, septic shock, graft-versus-host disease, Crohn's disease and erythema nodosum leprosum (ENL). TNF-a has been validated as a drug target with the development of the inhibitors Enbril (Amgen, Thousand Oaks, CA/Wyeth, Princeton, NJ) and Remicade (Centocor, Malvern, PA/Schering-Plough, Orange, NJ) as prescription medications for rheumatoid arthritis. Both, however, are large macromolecules and hence are expensive to produce, require direct intravenous or subcutaneous injection, and have negligible brain access. The classical orally active drug, thalidomide (N-a-phthalimidoglutarimide), a glutamic acid derivative, is being increasingly used in the clinical management of a wide spectrum of immunologically-mediated and infectious diseases, and cancers. Its clinical value in treating ENL derives from its TNF-a inhibitory activity. Specifically, it inhibits TNF-a protein expression at the post-transcriptional level by facilitating turnover of the mRNA (Sampaio
Novel structural modification of thalidomide was achieved towards the discovery of original and potent isosteric analogues. The present invention relates to thalidomide analogues and, in particular, thiothalidomides (sulfur-containing thalidomide analogues), methods of synthesizing the analogues, and methods for using the analogues to modulate TNF-α and angiogenesis activities in a subject. Disclosed analogues potently inhibited TNF-α secretion, compared to thalidomide, via post-transcriptional mechanisms that decreased TNF-α mRNA stability via its 3′-UTR (Zhu
The invention relates to the discovery that C12 beta-D-galactosyl ceramide may be used to deplete or inactivate NKT cell populations. These findings suggest methods for using C12 beta-D-galactosyl ceramide to treat conditions that would benefit from depletion of NKT cells, such as certain auto-immune diseases (
The presence of NKT cells can be associated with either beneficial effects or pathology. Deficiencies in NKT cells are associated with at least some types of autoimmune disease, including type 1 diabetes and autoimmune gastritis in mice. In contrast, NKT cells augment autoantibody secretion and lupus development in lupus-prone mouse models and therefore lupus patients may benefit from the depletion of NKT cells. The remission state of multiple sclerosis (MS) is also associated with decreased levels of NKT cells, suggesting NKT cell depletion as a method of treatment for MS.
The above-mentioned invention is available for licensing on an exclusive or a non-exclusive basis.
The hypoxia-inducible factor 1 (HIF-1) is a transcription factor that plays a pivotal role in cellular adaptation to oxygen availability. HIF-1alpha protein is a subunit of HIF-1. Although the gene for HIF-1alpha is constitutively expressed, it is an extremely short-lived protein under normoxic conditions and is targeted for destruction via the proteosome pathway by an E3 ubiquitin ligase (the VHL protein).
The invention relates to the discovery that mutations or deletions of Leu574 result in a more stable form of HIF-1alpha. Therefore, the invention relates
This technology is available for licensing on an exclusive or a non-exclusive basis.
This patent relates to the stimulation of hematopoiesis, more specifically to the protection of hematopoietic stem cells from toxic agents, including chemotherapeutic agents and/or irradiation. The subject patent discloses specific fragments of vasostatin, and their application as stimulants of hematopoiesis in vitro and in vivo. Also disclosed is a method for stimulating the proliferation/survival of hematopoietic cells exposed to a chemotherapeutic agent or irradiation using these fragments. In one embodiment, a method is disclosed for stimulating the growth or survival of hematopoietic stem cells with a fragment of vasostatin, in the presence of a growth factor.
National Institutes of Health, Public Health Service, HHS.
Notice.
The inventions listed below are owned by an agency of the U.S. Government and are available for licensing in the U.S. in accordance with 35 U.S.C. 207 to achieve expeditious commercialization of results of federally-funded research and development. Foreign patent applications are filed on selected inventions to extend market coverage for companies and may also be available for licensing.
Licensing information and copies of the U.S. patent applications listed below may be obtained by writing to the indicated licensing contact at the Office of Technology Transfer, National Institutes of Health, 6011 Executive Boulevard, Suite 325, Rockville, Maryland 20852-3804; telephone: 301/496-7057; fax: 301/402-0220. A signed Confidential Disclosure Agreement will be required to receive copies of the patent applications.
This invention presents a high throughput, multi-analyte microfluidic chip device. This device can be used for the detection and characterization of proteins, immuno-affinity assays as well as analyte detection in biological samples or other media. The sub-microliter volumes for use make this device applicable where biological samples are rare and difficult to obtain.
The device consists of a series of channels that are connected via communication ports for sample flow. The channels can be individually loaded with detection reagents via portals at their ends. As such, the assay channels can be run in series using a single sample source or individually via the loading ports, thus increasing the utility of the microchip device. Each channel can then be detected via colorimetric, fluorimetric or other detection method as desired. The chip can be integrated into multiple detection devices or other analytical equipment.
The chip as designed, is manufactured using photolithographic etching, thus the number and size of the individual reaction channels can be modified to increase the number of channels or the volume the channels can hold. The chip should also be reusable, thus further increasing the utility of the device.
Biological fluids are the repositories of vast number of molecules that are excreted or otherwise shed by cells. These molecules present in biological fluids reflect the physiological and pathological states of the cells that are in contact by the fluids or the cells from which these molecules are derived. A major goal of clinical diagnostics is to correlate the particular molecules (biomarkers) present in biological fluids with particular disease states.
The present invention relates to analysis of molecules present in biological fluids. Specifically, it discloses a diagnostic method for isolating/analyzing biomarker attractant molecules for the presence of bound fragments of cellular proteins that are known to correlate with particular biological states in specific anatomic or physiologic locations.
This invention relates to the discovery that tristetraprolin (TTP) can promote the poly(A)RNase (PARN) mediated deadenylation of polyadenylated substrates containing AU-rich elements (AREs). As one aspect of the invention, the inventors have developed a cell free system that may be used for the purposes of assessing the effects of the various system components or their derivatives (
This technology is available for licensing on an exclusive or a non-exclusive basis.
One of the current obstacles for the design and testing of effective vaccines and immunotherapies of HIV is the lack of in vitro correlates that will predict the ability to restrict virus replication. This invention relates to methods for evaluating the effectiveness of HIV therapies and vaccines and methods for assessing the ability of HIV patients to restrict virus replication. Upon restimulation of CD8+ T cells, the expression of perforin in these cells, and the cell cycle stage of these cells may be measured and used as in vitro markers for monitoring the patient's ability to restrict HIV replication and the effectiveness of the therapies and vaccines applied. Significant proliferation of CD8+ T cells, the presence of perforin in these cells, and the ability of these cells to progress beyond the G1 stage signify the patient's ability to restrict HIV replication and a favorable effect of the therapies or vaccines. These methods may be advantageously applied in conjunction with other measurements of HIV specific immune response such as HLA tetramers.
This invention relates to a general gene therapy technology which uses an HIV-1 based vector containing a baculovirus gp64 protein. HIV-1 based gene therapy vectors hold great promise due to their ability to deliver genes to non-dividing cells including hematopoietic stem cells. However native HIV only binds to cells with a CD4 receptor, while gene therapy vectors would need to be delivered to a variety of cells. Various different envelope proteins have been tried to replace the native envelope protein of HIV with a new envelope protein whose origin is another enveloped virus (pseudotyping) that has more general binding capabilities. However, to date, no one has been successful for practical purposes, due to either low titers or cytotoxic effects of the expressed proteins. The inventors have developed a family of nontoxic vectors using baculovirus gp64 protein (which binds to a variety of cells) and HIV proteins that efficiently deliver genes of interest to target cells. Furthermore, since gp64 expression in producer cells is not accompanied by cytotoxic side effects, this protein is an ideal candidate for the development of cell lines for constitutive expression of gp64 for the process of construction of the hybrid HIV (packaging cell lines).
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. Appendix 2), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. Appendix 2), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. Appendix 2), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. Appendix 2), notice is hereby given of a meeting of the National Advisory Council on Aging.
The meeting will be open to the public as indicated below, with attendance limited to space available. Individuals who plan to attend and need special assistance, such as sign language interpretation or other reasonable accommodations, should notify the Contact Person listed below in advance of the meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
In the interest of security, NIH has instituted stringent procedures for entrance into the building by non-government employees. Persons without a government I.D. will need to show a photo I.D. and sign-in at the security desk upon entering the building.
Information is also available on the Institute's/Center's Home page:
National Institutes of Health, Public Health Services, DHHS.
Notice.
This is notice, in accordance with 35 U.S.C. 209(c)(1) and 37 CFR 404.7(a)(1)(i), that the National Institutes of Health, Department of Health and Human Services, is contemplating the grant of an exclusive license to practice the inventions embodied in U.S. provisional patent application 60/393,021 (DHHS ref. no. E-143-2002/0-US-01) filed June 28, 2002, international PCT application PCT/US02/38290 (DHHS ref. no. E-143-2002/0-PCT-02), international PCT application PCT/US03/20428 (DHHS ref. no. E-143-2002/0-PCT-04), and United States Patent Application Serial No. 10/607,598 (DHHS ref. no. E-143-2002/0-US-03), all entitled, “Zenapax (Humanized Antibody Against the IL-2 Receptor Alpha Chain) As A Novel Treatment for Multiple Sclerosis,” and all corresponding foreign patent applications to Protein Design Laboratories, of Fremont, California. The patent rights in these inventions have been assigned to the United States of America.
The prospective exclusive license territory will be worldwide. The field of use may be limited to the treatment of multiple sclerosis using monoclonal antibodies against the interleukin-2 receptor.
Only written comments and/or license applications which are received by the National Institutes of Health on or before February 17, 2004 will be considered.
Requests for copies of the patent(s)/patent application(s), inquiries, comments and other materials relating to the contemplated exclusive license should be directed to: Catherine M. Joyce, Intellectual Property Management Specialist, Office of Technology Transfer, National Institutes
The prospective exclusive license will be royalty-bearing and will comply with the terms and conditions of 35 U.S.C. 209 and 37 CFR 404.7. The prospective exclusive license may be granted unless within sixty (60) days from the date of this published notice, the NIH receives written evidence and argument that establish that the grant of the license would not be consistent with the requirements of 35 U.S.C. 209 and 37 CFR 404.7
Applications for a license in the field of use filed in response to this notice will be treated as objections to the grant of the contemplated exclusive license. Comments and objections submitted to this notice will not be made available for public inspection and, to the extent permitted by law, will not be released under the Freedom of Information Act, 5 U.S.C. 552.
National Institutes of Health, Public Health Service, DHHS.
Notice.
This is notice, in accordance with 35 U.S.C. 209(c)(1) and 37 CFR 404.7(a)(1)(i), that the National Institutes of Health (NIH), Department of Health and Human Services, is contemplating the grant of an exclusive license worldwide to practice the invention embodied in: USSN 60/193,530 and USSN 60/194,440, converted into combined PCT Application, PCT/US01/10293, and national stage filed in the U.S., Canada, Australia, Europe and Japan. A PCT-CIP was also filed and given a PCT Application Number of PCT/US02/09886, followed by national stage filings in the U.S., Canada, Australia, Europe, and Japan. The potential licensee is Torotech, LLC, having a place of business in the State of Maryland. The field of use may be limited to the therapeutic treatment of hypogonadism and human reproduction therapy. The United States of America is the assignee of the patent rights in this invention. This announcement is the first notice to grant an exclusive license to this technology.
Only written comments and/or application for a license which are received by the NIH Office of Technology Transfer on or before February 17, 2004 will be considered.
Requests for a copy of the patent applications, inquiries, comments and other materials relating to the contemplated license should be directed to: Marlene Shinn-Astor, Technology Licensing Specialist, Office of Technology Transfer, National Institutes of Health, 6011 Executive Boulevard, Suite 325, Rockville, MD 20852-3804; Telephone: (301) 435-4426; Facsimile: (301) 402-0220; e-mail:
This technology relates to compounds that possess potent androgenic activity. These compounds offer a potential therapeutic benefit in the treatment of hypogonadism, regardless of cause, as an adjuvant in hormone replacement therapy for both men and women and for androgen stimulation of anabolism in a broad spectrum of disease entities involving debilitation.
These compounds are far more active and retain their potency after oral administration more than that achieved with the current oral androgen standard, methyltestosterone. An additional expected benefit is that liver toxicity, if any, should be minimal because 7α, 11β-dimethyl-17β-hydroxy-4-estren-3-one bucyclate is not alkylated at the C17 position.
The prospective exclusive license will be royalty-bearing and will comply with the terms and conditions of 35 U.S.C. 209 and 37 CFR 404.7. The prospective exclusive license may be granted unless, within 60 days from the date of this published Notice, NIH receives written evidence and argument that establishes that the grant of the license would not be consistent with the requirements of 35 U.S.C. 209 and 37 CFR 404.7.
Properly filed competing applications for a license filed in response to this notice will be treated as objections to the contemplated license. Comments and objections submitted in response to this notice will not be made available for public inspection, and, to the extent permitted by law, will not be released under the Freedom of Information Act, 5 U.S.C. 552.
National Institutes of Health, Public Health Service, DHHS.
Notice.
This is notice, in accordance with 35 U.S.C. 209(c)(1) and 37 CFR 404.7(a)(1)(i), that the National Institutes of Health (NIH), Department of Health and Human Services, is contemplating the grant of an exclusive license worldwide to practice the invention embodied in: PCT application number PCT/US03/12276 filed April 19, 2003 entitled, “Postnatal Stem Cells and Uses Thereof” to Dentigenix, having a place of business in the State of Washington. The field of use may be limited to the treatment of dental regeneration. The United States of America is the assignee of the patent rights in this invention. This announcement is the first notice to grant an exclusive license to this technology.
Only written comments and/or application for a license which are received by the NIH Office of Technology Transfer on or before February 17, 2004 will be considered.
Requests for a copy of the patent applications, inquiries,
This technology encompasses human postnatal deciduous dental pulp stem cells commonly known as “baby teeth”, that are used to create dentin and have been shown to differentiate into cells of specialized function such as neural cells, adipocytes, and odontoblasts. It is believed that these cells could be manipulated to repair damaged teeth, induce the regeneration of bone, and treat neural injury or disease.
The prospective exclusive license will be royalty-bearing and will comply with the terms and conditions of 35 U.S.C. 209 and 37 CFR 404.7. The prospective exclusive license may be granted unless, within 60 days from the date of this published Notice, NIH receives written evidence and argument that establishes that the grant of the license would not be consistent with the requirements of 35 U.S.C. 209 and 37 CFR 404.7.
Properly filed competing applications for a license filed in response to this notice will be treated as objections to the contemplated license. Comments and objections submitted in response to this notice will not be made available for public inspection, and, to the extent permitted by law, will not be released under the Freedom of Information Act, 5 U.S.C. 552.
Office of the Under Secretary for Management, Department of Homeland Security.
Notice.
The Department of Homeland Security (DHS), has resubmitted OMB 1600-0001 information collection request (ICR) (Product and Service Information Site) for reinstatement with change for a previously approved collection, utilizing emergency review procedures, to the Office of Management and Budget (OMB) for review and clearance in accordance with the Paperwork Reduction Act of 1995 (Pub. L. 104-13, 44 U.S.C. chapter 35) as amended by the Clinger-Cohen Act (Pub. L. 104-106). OMB approval has been requested by December 22, 2003.
Comments and questions about the ICR listed below should be forwarded to the Office of Information and Regulatory Affairs, Attn: OMB Desk Officer for Homeland Security, Office of Management and Budget, Room 10235, Washington, DC 20503; telephone (202) 395-7316. The Office of Management and Budget is particularly interested in comments which:
(1) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(2) Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
(3) Enhance the quality, utility, and clarity of the information to be collected; and
(4) Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
A copy of this ICR, with applicable supporting documentation, may be obtained by calling Yvonne Pollard, Program Analyst and Paperwork Reduction Act Contact, Office of the Chief Information Officer, Department of Homeland Security, Washington, DC 20528; telephone (202) 692-4221.
The Department of Homeland Security, U.S. Citizenship and Immigration Services (CIS), has submitted the following information collection request to the Office of Management and Budget (OMB) for review and clearance in accordance with the Paperwork Reduction Act of 1995. The information collection was previously published in the
The purpose of this notice is to allow an additional 30 days for public comments. Comments are encouraged and will be accepted until January 20, 2004. This process is conducted in accordance with 5 CFR 1320.10.
Written comments and/or suggestions regarding the items contained in this notice, especially regarding the estimated public burden and associated response time, should be directed to the Office of Management and Budget,
Written comments and suggestions from the public and affected agencies concerning the proposed collection of information should address one or more of the following four points:
(1) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(2) Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
(3) Enhance the quality, utility, and clarity of the information to be collected; and
(4) Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
Overview of this information collection:
(1)
(2)
(3)
(4)
(5)
(6)
If you have additional comments, suggestions, or need a copy of the proposed information collection instrument with instructions, or additional information, please contact Richard A. Sloan, 202-514-3291, Director, Regulations and Forms Services Division, Department of Homeland Security, Room 4304, 425 I Street, NW., Washington, DC 20536. Additionally, comments and/or suggestions regarding the item(s) contained in this notice, especially regarding the estimated public burden and associated response time may also be directed to Mr. Richard A. Sloan.
If additional information is required contact: Mr. Steve Cooper, PRA Clearance Officer, Department of Homeland Security, Office of Chief Information Officer, Regional Office Building 3, 7th and D Streets, SW., Suite 4636-26, Washington, DC 20202.
The Department of Homeland Security, U.S. Citizenship and Immigration Services (CIS), has submitted the following information collection request to the Office of Management and Budget (OMB) for review and clearance in accordance with the Paperwork Reduction Act of 1995. The information collection was previously published in the
The purpose of this notice is to allow an additional 30 days for public comments. Comments are encouraged and will be accepted until January 20, 2004. This process is conducted in accordance with 5 CFR 1320.10.
Written comments and/or suggestions regarding the items contained in this notice, especially regarding the estimated public burden and associated response time, should be directed to the Office of Management and Budget, Office of Information and Regulatory Affairs, Attention: Department of Homeland Security Desk Officer, 725-17th Street, NW., Room 10235, Washington, DC 20530.
Written comments and suggestions from the public and affected agencies concerning the proposed collection of information should address one or more of the following four points:
(1) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(2) Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
(3) Enhance the quality, utility, and clarity of the information to be collected; and
(4) Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
Overview of this information collection:
(1)
(2)
(3)
(4)
(5)
(6)
If you have additional comments, suggestions, or need a copy of the proposed information collection instrument with instructions, or
If additional information is required contact: Mr. Steve Cooper, PRA Clearance Officer, Department of Homeland Security, Office of Chief Information Officer, Regional Office Building 3, 7th and D Streets, SW., Suite 4636-26, Washington, DC 20202.
The Department of Homeland Security (DHS), U.S. Customs and Border Protection (CBP), has submitted the following information collection request in the Office of Management and Budget (OMB) for review and clearance in accordance with the Paperwork Reduction Act of 1995. The information collection was previously published in the
The purpose of this notice is to allow an additional 30 days for public comments. Comments are encouraged and will be accepted until January 20, 2004. This process is conducted in accordance with 5 CFR 1320.10.
Written comments and/or suggestions regarding the items contained in this notice, especially regarding the estimated public burden and associated response time, should be directed to the Office of Management and Budget (OMB), Office of Information and Regulatory Affairs, Attention: Department of Homeland Security Desk Officer, Room 10235, 725-17th Street, NW., Washington, DC 20530. You may fax comments to the OMB at 202-395-5806.
Written comments and suggestions from the public and affected agencies concerning the proposed collection of information should address one or more of the following four points:
(1) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(2) Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
(3) Enhance the quality, utility, and clarity of the information to be collected; and
(4) Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
Overview of this information collection:
(1)
(2)
(3)
(4)
(5)
(6)
If you have additional comments, suggestions, or need a copy of the proposed information collection instrument with instructions, or additional information, please contact Richard A. Sloan 202-514-3291, Director, Regulations and Forms Services Division, Department of Homeland Security, Room 4304, 425 I Street, NW., Washington, DC 20536. Additionally, comments and/or suggestions regarding the item(s) contained in this notice, especially regarding the estimated public burden and associated response time may also be directed to Mr. Richard A. Sloan.
If additional information is required contact: Mr. Steve Cooper, PRA Clearance Officer, Department of Homeland Security, Office of the Chief Information Officer, Regional Office Building 3, 7th and D Streets, SW., Suite 4636-26, Washington, DC 20202.
Office of the Assistant Secretary for Community Planning and Development, HUD.
Notice.
This Notice identifies unutilized, underutilized, excess, and surplus Federal property reviewed by HUD for suitability for possible use to assist the homeless.
December 19, 2003.
Mark Johnston, Department of Housing and Urban Development, Room 7262, 451 Seventh Street SW., Washington, DC 20410; telephone (202) 708-1234; TTY number for the hearing- and speech-impaired (202) 708-2565, (these telephone numbers are not toll-free), or call the toll-free Title V information line at 1-800-927-7588.
In accordance with the December 12, 1988 court order in
Today's Notice is for the purpose of announcing that no additional properties have been determined suitable or unsuitable this week.
Office of the Chief Information Officer, HUD.
Notification of the establishment of a new system of records.
Pursuant to the provision of the Privacy Act of 1974 (5 U.S.C. 552a), HUD is giving notice that it proposes to establish a new system of records entitled the “Single Family Neighborhood Watch Early Warning System” (NW). HUD staff and lenders use NW to monitor default and claim rates on FHA insured loans for FHA-approved lenders and FHA programs. The system includes records from individuals who have obtained a mortgage insured under HUD/FHA's single-family mortgage insurance programs. It also includes records from individuals involved in the HUD/FHA single-family loan origination process. Specifically, records contained in the system include borrowers' name, property address, Social Security Number or other identifying numbers. NW is a Web-based query tool that displays summary and loan level origination, default and claim information by originating, sponsoring, principal, and agent lenders for two-year periods by beginning amortization date for FHA insured loans, etc.
Interested persons are invited to submit comments regarding this notice to the Rules Docket Clerk, Office of General Counsel, Room 10276, Department of Housing and Urban Development, 451 7th Street, SW., Washington, DC 20410-0050. Communications should refer to the above docket number and title. Comments submitted by facsimile (Fax) will not be accepted. A copy of each communication submitted will be available for public inspection and copying between 7:30 a.m. and 5:30 p.m. weekdays at the above address.
For Privacy Act Information: Jeanette Smith, Departmental Privacy Act Officer, Telephone Number (202) 708-2374. For Housing, Single Family Neighborhood Watch Early Warning System information, Phillip Murray, Director, Office of Lender Activities and Program Compliance, Office of Housing, Department of Housing and Urban Development, 451 7th Street, SW., Room B-133, Washington, DC 20410-8000; telephone (202) 708-1515 (this is not a toll-free number). Persons with hearing- or speech-impairments may access this number via TTY by calling the toll-free Federal Information Relay Services at 1-800-877-8339.
HUD's Office of Lender Activities and Program Compliance (LAPC) is responsible for monitoring FHA approved lenders to ensure that they follow HUD guidelines when they originate, sponsor, and/or service FHA insured loans. In addition, LAPC is responsible for implementing HUD's Credit Watch Termination initiative that allows HUD to terminate the origination approval agreement of lender branches whose default and claim rate exceeds the field offices default and claim rate by 200% or more. HUD staff use NW to target FHA approved lenders for on-site monitoring reviews and to evaluate lender performance relative to HUD's Credit Watch Termination initiative. HUD also uses the Appraiser performance information that is currently only available to HUD staff, to evaluate Appraiser performance.
5 U.S.C. 552a; 88 Stat. 1896; 42 U.S.C. 3535(d).
Single Family Neighborhood Watch Early Warning System (NW).
The system's databases and coldfusion code are located in Lanham, MD.
Individuals who have obtained a mortgage insured under HUD/FHA's single-family mortgage insurance programs. Additionally, individuals involved in the HUD/FHA single-family loan origination process.
Records consist of the borrower's name, property address, Social Security Number or other identification number (ID). Also included in the records is originating, sponsoring, holder and servicer lender ID and name, mortgage amount, interest rate, front and back ratios, FHA ADP code, loan purpose, gift source and amount, loan closing and endorsement dates, default status, default reason, default date, post endorsement technical review ratings, underwriter ID and name, appraiser ID and name, HUD indemnification information, and other data fields associated with an FHA Case Number.
Section 203, National Housing Act, Pub. L. 73-479.
NW enables HUD staff and lenders to monitor the default and claim rates on FHA insured loans for FHA-approved lenders and FHA programs. NW is designed to highlight exceptions—lenders, programs, loan characteristics and geographic areas with unusual originations or high defaults and claims on FHA insured loans. The loan level information is password protected and can only be viewed by HUD staff with a need to know and lenders who were the originator, sponsor, holder, or servicer on the loan.
In addition to those disclosures generally permitted under 5 U.S.C. 552a(b) of the Privacy Act other routine uses include:
(a) To FHA approved mortgage institutions to monitor the default and claim rates on FHA insured loans. Mortgage institutions can only view the loan level information where they were the originator, sponsor, holder, or servicer on the loan.
The NW records are stored on a Sybase 12.5 server HLANUDP001 in the database sfapps and on Sybase IQ server HUDDW database sfdw.
Records are retrieved by a manual or computer search on the number of originations, default, and defaults and claims from the Early Warnings menu option, by computer search on the counts in the Loss Mitigation—Current Defaults Reported display from the Servicing menu option, and by accessing the Late Endorsement, Pipeline/Uninsured, the Default Report by Servicer queries. Entering an FHA Case Number from the Case Status Query feature also retrieves case level detail.
Automated records are maintained in secured areas. Access is limited to authorized personnel.
Neighborhood Watch retains up to 13 quarter end dates of two years of summary originations data, and three quarter end dates of loan level data.
Director, Quality Assurance Division, HULQ, Department of Housing and Urban Development, 451 Seventh Street, SW., Washington, DC 20410.
For information, assistance, or inquiry about the existence of records, contact the Privacy Act Officer at the Department of Housing and Urban Development, 451 7th Street SW., Washington, DC. Written requests must include the full name, Social Security Number, date of birth, current address, and telephone number of the individual making the request.
The Department's rules for contesting the contents of records and appealing initial denials, by the individual concerned, appear in 24 CFR part 16. If additional information or assistance is needed, it may be obtained by contacting: (i) in relation to contesting contents of records, the Privacy Act Officer at the appropriate location. A list of all locations is given in appendix A; (ii) in relation to appeals of initial denials, the HUYD Department Privacy Appeals Officer, Office of General Counsel Department of Housing and Urban Development, 451 Seventh Street, SW., Washington, DC 20410.
Information may be collected from HUD, program participants, and subject individuals.
None.
Bureau of Land Management, Interior.
Notice of availability.
In compliance with the National Environmental Policy Act of 1969, as amended, 42 U.S.C 4321-4347, and title 40 CFR part 1500, the Bureau of Land Management (BLM) hereby gives notice that the draft Environmental Impact Statement/Environmental Impact Report (EIS/EIR) for the Imperial Irrigation District's (IID) Desert Southwest Transmission Line Project is available for public review and comment. This project may involve an amendment to the applicable BLM land use plan: The California Desert Conservation Area (CDCA) Plan of 1980, as amended.
Comments will be accepted until 90 days have elapsed after publication of a notice of availability of this document, in the
If you wish to comment, you may submit your comments by any of several methods. You may mail comments to: James G. Kenna, Field Manager; Bureau of Land Management, Palm Springs—South Coast Field Office, P.O. Box 581260, North Palm Springs, CA 92258.
You may also comment via the Internet to
Oral comments will be accepted at any of three public meetings to be held during the month of November 2003. These meetings will be held in El Centro, Blythe, and North Palm Springs, California. Notices published in local media will be provided at least 15 days prior to the scheduled public meetings.
Individuals may request confidentiality with respect to their name, address, and phone number. If you wish to have your name or street address withheld from public review, or from disclosure under the Freedom of Information Act, the first line of the comment should start with the words ‘CONFIDENTIALITY REQUESTED’ in uppercase letters in order for BLM to comply with your request. Such request will be honored to the extent allowed by law. Comment contents will not be kept confidential. All submissions from organizations or businesses, and from individuals identifying themselves as representatives or officials of organizations or businesses, will be available for public inspection in their entirety.
Diane Gomez at (760) 251-4852 or e-mail:
A copy of the draft Environmental Impact Statement/Environmental Impact Report (EIS/EIR) for the Imperial Irrigation District's Proposed Desert Southwest Transmission Line Project is available for review via the Internet at
The IID is proposing to construct a 230 or 500 kilovolt (kV) electrical transmission line located parallel and adjacent to Interstate Highway 10 between North Palm Springs and Blythe, California, a distance of approximately 118 miles. Four alternatives to the proposed project are being considered in this EIS/EIR. These alternatives are consistent with the California Desert Conservation Area (CDCA) Plan of 1980, as amended, with the exception of Alternative B. This alternative is located partially outside of designated utility corridors under the CDCA Plan and would; if selected, require an amendment to this land use plan.
The BLM, together with the IID, have jointly prepared this draft EIS/EIR. The BLM is the lead Federal agency for the preparation of this EIS/EIR in compliance with the requirements of the National Environmental Policy Act
Butte Field Office, Bureau of Land Management, Interior.
Notice of Intent to prepare a Resource Management Plan (RMP) for the Butte Field Office and associated Environmental Impact Statement (EIS).
This document provides notice that the Bureau of Land Management (BLM) intends to prepare an RMP with an associated EIS for the Butte Field Office. The planning area is located in Beaverhead, Broadwater, Deer Lodge, Gallatin, Jefferson, Lewis and Clark, Park, and Silver Bow Counties, Montana. The plan will fulfill the needs and obligations set forth by the National Environmental Policy Act (NEPA), the Federal Land Policy and Management Act (FLPMA), and BLM management policies. The BLM will work collaboratively with interested parties to identify the management decisions that are best suited to local, regional, and national needs and concerns. The public scoping process will identify planning issues and develop planning criteria, including an evaluation of the existing RMP in the context of the needs and interests of the public.
This notice initiates the public scoping process. Formal scoping will end February 17, 2004; however, collaboration with the public will continue throughout the process. Comments on issues and planning criteria can be submitted in writing to the address listed below. All public meetings will be announced through the local news media, newsletters, and the BLM Web site (
Written comments should be sent to Bureau of Land Management, Ruth Miller, RMP Project Manager, Butte Field Office, 106 North Parkmont, Butte, MT, 59701; Fax;—(406) 533-7660. Documents pertinent to this proposal may be examined at the Butte Field Office. Comments, including names and street addresses of respondents, will be available for public review at the Butte Field Office during regular business hours 7:45 a.m. to 4:30 p.m., Monday through Friday, except holidays, and may be published as part of the EIS. Individual respondents may request confidentiality. If you wish to withhold your name or street address from public review or from disclosure under the Freedom of Information Act, you must state this prominently at the beginning of your written comments. Such requests will be honored to the extent allowed by law. All submissions from organizations and businesses, and from individuals identifying themselves as representatives or officials of organizations or businesses, will be available for public inspection in their entirety.
Ruth Miller, on (406) 533-7645, Bureau of Land Management, RMP Project Manager, Butte Field Office, 106 North Parkmont, Butte, MT, 59701.
The lands within the Butte Field Office are currently being managed according to the 1984 Headwaters RMP. In 1983, while the Headwaters RMP was being developed, the Butte and Lewistown Districts (now called Field Offices) adjusted their jurisdictional boundaries (as well as the Dillon Resource Area and Headwaters Resource Area within the Butte District). This resulted in lands covered by the Headwaters RMP being managed by both Districts.
The BLM lands in the following areas are now being managed by the Lewistown Field Office and will not be covered in the Butte RMP process: Pondera, Teton, Cascade, Meagher, and the north half of Lewis and Clark County. Also, the BLM lands within Silver Bow and Deerlodge Counties (and a small portion of Beaverhead County along the Big Hole River) were included in the Dillon Resource Area Management Framework Plan (MFP) of 1979 and will now be covered in this Butte RMP revision.
Because this RMP will follow the existing Butte Field Office boundary, the name of the RMP will be the Butte RMP. This will help separate the new document from the existing Headwaters RMP, and from the Lewistown portion that will still be managed under the Headwaters RMP until its revision.
The RMP revision to be prepared for the public lands administered by the Butte Field Office will identify goals, objectives, standards and guidelines for management of a variety of resources and values. The plan will specify actions, constraints, and general management practices necessary to achieve desired conditions. The plan will also identify any areas requiring special management such as ACECs. The scope of the RMP will be comprehensive. Certain existing standards and guidelines and other BLM plans will be incorporated into the RMP.
The changing needs and interests of the public necessitate a revision to the Butte Field Office RMP. Preliminary issues and management concerns have been identified by BLM personnel, other agencies, and in meetings with individuals and user groups. They represent the BLM's knowledge to date on the existing issues and concerns with current management. The major issue themes that will be addressed in the RMP effort include: (1) Management of vegetation; (2) conservation and recovery of special status species; (3) water quality, quantity, and aquatic species; (4) travel management and access to public lands; (5) management of areas with special values; (6) availability and management of public lands for commercial uses; and (7) land tenure adjustments.
After gathering public comments on what issues the plan should address, the suggested issues will be placed in one of three categories:
1. Issues to be resolved in the plan;
2. Issues resolved through policy or administrative action; or
3. Issues beyond the scope of this plan.
Rationale will be provided for each issue placed in categories two or three. In addition to these major issues, a number of management questions and concerns will be addressed in the plan.
An interdisciplinary approach will be used to develop the plan in order to consider the variety of resource issues and concerns identified. Disciplines involved in the planning process will include specialists with expertise in minerals and geology, forestry, range, fire and fuels, outdoor recreation, archaeology, paleontology, wildlife and fisheries, lands and realty, hydrology, soils, sociology and economics.
The following planning criteria have been proposed to guide development of the plan, avoid unnecessary data collection and analyses, and to ensure the plan is tailored to the issues. Other criteria may be identified during the public scoping process. After gathering comments on planning criteria, the BLM will finalize the criteria and provide feedback to the public on the criteria to be used throughout the planning process.
• The plan will be completed in compliance with FLPMA and all other applicable laws.
• The planning process will include an EIS that will comply with NEPA standards.
• The plan will establish new guidance and identify existing guidance upon which the BLM will rely in managing public lands within the Butte Field Office.
• The RMP/EIS will incorporate by reference the
• The RMP/EIS will incorporate by reference all prior Wilderness designations and Wilderness Study Area findings that affect public lands in the planning area.
• The plan will result in determinations as required by special program and resource specific guidance detailed in Appendix C of the BLM's Planning Handbook.
• The plan will recognize the State's responsibility to manage wildlife populations, including uses such as hunting and fishing, within the planning area.
• Decisions in the plan will strive to be compatible with the existing plans and policies of adjacent local, State, tribal, and Federal agencies as long as the decisions are in conformance with legal mandates on management of public lands.
• The scope of analysis will be consistent with the level of analysis in approved plans and in accordance with Bureau-wide standards and program guidance.
• Resource allocations must be reasonable and achievable within available technological and budgetary constraints.
• The lifestyles and concerns of area residents will be recognized in the plan.
The BLM is also requesting public input for nominations considered worthy of ACEC designation. To be considered as a potential ACEC, an area must meet the criteria of relevance and importance as established and defined in 43 CFR 1610.7-2. Nominations must include descriptive materials, detailed maps, and evidence supporting the “relevance” and “importance” of the resource or area. There is currently one ACEC within the Butte FO boundary; the Sleeping Giant ACEC in Lewis and Clark County was designated by the Headwaters RMP in 1984. All ACEC nominations within the planning area will be evaluated during development of the RMP.
Bureau of Land Management, Interior.
Notice of intent.
Pursuant to section 102(2)(C) of the National Environmental Policy Act of 1969, the Bureau of Land Management (BLM), Vernal Field Office, Vernal, Utah, will prepare an Environmental Impact Statement (EIS). The EIS will focus on Questar Exploration and Production Company's (QEP) proposed gas and oil development on about 99,000 acres in the Greater Deadman Bench oil and gas production region.
Public scoping comments will be accepted on or before February 4, 2004. A public scoping open house and information meeting will be held on January 14, 2004 from 7-9 p.m., at the Uintah County Commission Chambers, 147 E Main Street, Vernal, Utah. If you have any information, data, concerns, or suggestions related to the potential impacts of the proposed action, including the issues identified above, please submit them to the address listed below.
The project area, located about 20 miles south of Vernal, Utah, involves about 85% BLM-administered lands (83,864 acres); 12% (11,448 acres) State of Utah-administered lands; and, 3% (3,473 acres) patented land. Currently 278 oil and water-injection wells and about 300 gas wells with their attendant service roads exist within the project area. The proponent anticipates the drilling of up to 1239 new wells over a period of 10 years, or until the resource base is fully developed. Of these new wells, 826 would be new locations and 470 would be twins drilled from existing locations (representing 38% of the total new wells that would be drilled). Required infrastructure includes electric power lines, roads, oil and gas flow lines and pipelines, well pads (with pumping units for oil wells), central facilities, water injection facilities, gas treatment and compression facilities. Gas would be transported via pipeline to centralized compression and treatment facilities. Produced water would be trucked or piped to one of several existing QEP water injection plants where it would be re-injected into the oil reservoir or disposal zone via an injection well system.
Major issues at this time include potential impacts on desert and semi-desert ecosystems and their dependent wildlife species (including antelope, sage grouse, white-tailed prairie dog colonies and their associated species), vegetation (including noxious weeds and reclamation), riparian habitat associated with the Green River corridor. Alternatives identified at this time include the proposed action and the no action alternatives.
Jean Nitschke-Sinclear, (435) 781-4437 or e-mail:
Written scoping comments should be sent to: Field Manager, Bureau of Land Management, Vernal Field Office, 170 South 500 East, Vernal, Utah 84078, Attn: QEP Field Development Project.
Comments, including names and street addresses of respondents will be available for public review at the BLM Vernal Field Office and will be subject to disclosure under the Freedom of Information Act (FOIA). They may be
Bureau of Land Management, Department of the Interior.
Notice of public meeting.
In accordance with the Federal Land Policy and Management Act and the Federal Advisory Committee Act of 1972, the U.S. Department of the Interior, Bureau of Land Management, New Mexico Resource Advisory Council (RAC) will meet as indicated below.
The meeting dates are February 26-27, 2004, at Marbob Energy, 2208 West Main, Artesia, New Mexico, beginning at 8 a.m. both days. The meeting will adjourn at approximately 5 p.m. on Thursday and 11:30 a.m. on Friday. The three established RAC working groups may have a late afternoon or an evening meeting on Thursday, February 26, 2004
An optional field trip is planned for Wednesday, February 25, 2004. The public comment period is scheduled for Wednesday, February 25, from 6-8 p.m. at Marbob Energy, 2208 West Main, Artesia, New Mexico. The public may present written comments to the RAC.
Depending on the number of individuals wishing to comment and time available, oral comments may be limited.
The 15-member RAC advises the Secretary of the Interior, through the Bureau of Land Management, on a variety of planning and management issues associated with public land management in New Mexico. All meetings are open to the public. At this meeting, topics for discussion include: Otero Mesa Unitization working Group results, rehabilitation of the oil and gas legacy wells, oil and gas and cultural management in the Carlsbad Area, the Preferred Upstream Management Practices (PUMP) III Project (a cultural resources Geographic Information System database focused on oil and gas fields), update on noxious weeds program, access follow-up, and proposed RAC initiatives.
Theresa Herrera, New Mexico State Office, Office of External Affairs, Bureau of Land Management, P.O. Box 27115, Santa Fe, New Mexico 87502-0115, (505) 438-7515.
Bureau of Land Management, Interior.
Notice of public meeting.
In accordance with the Federal Land Policy and Management Act (FLPMA) and the Federal Advisory Committee Act of 1972 (FACA), the U.S. Department of the Interior, Bureau of Land Management (BLM) Eastern Washington Resource Advisory Council (RAC), will meet as indicated below.
The Eastern Washington Resource Advisory Council (EWRAC) will meet on January 23, 2004, at the Spokane District Office, Bureau of Land Management, 1103 North Fancher Road, Spokane, Washington, 99212-1275.
The meeting will start at 9 a.m. and adjourn about 4 p.m. Topics on the meeting agenda include:
The RAC meeting is open to the public, and there will be an opportunity for public comments at 10:30 a.m.. Information to be distributed to Council members for their review is requested in written format 10 days prior to the Council meeting date.
Sandra Gourdin or Kathy Helm, Bureau of Land Management, Spokane District Office, 1103 N. Fancher Road, Spokane, Washington, 99212, or call (509) 536-1200.
Bureau of Reclamation, Interior.
Notice for additional open house meeting on the Draft Environmental Impact Statement (DEIS).
The Bureau of Reclamation will hold an additional open house on the DEIS for the Lake Berryessa Visitor Services Plan (VSP). The first open house was held on November 22, 2003. The public hearings will be held as originally planned on January 21, 2004. The notice of availability of the DEIS and notice of public workshop and notice of public hearings was published in the
The additional open house will be held on Saturday, January 10, 2004 from 10 a.m. to 4 p.m. in Napa, CA.
The public hearings will be held on Wednesday, January 21, 2004 from 1 to 4 p.m. and 7 to 10 p.m.
The additional open house will be held at the Napa Valley Expo at the Reisling Hall, 575 3rd Street, Napa, CA.
The hearings will be held at the Solano County Fairgrounds, Exposition Hall, 900 Fairgrounds Drive, Vallejo, CA.
Mr. Stephen Rodgers at 707-966-2111 x106, fax 707-966-0409, or e-mail:
International Trade Commission.
Institution of investigation pursuant to 19 U.S.C. 1337.
Notice is hereby given that a complaint was filed with the U.S. International Trade Commission on November 17, 2003, under section 337 of the Tariff Act of 1930, as amended, 19 U.S.C. 1337, on behalf of Amkor Technology, Inc. of West Chester, Pennsylvania. Letters supplementing the complaint were filed on December 2 and 9, 2003. The complaint as supplemented alleges violations of section 337 in the importation into the United States, the sale for importation, and the sale within the United States after importation of certain encapsulated integrated circuit devices and products containing same by reason of infringement of claims 1-4, 7, 17, 18, and 20-23 of U.S. Patent No. 6,433,277; claims 1-4, 7 and 8 of U.S. Patent No. 6,630,728; and claims 1, 2, 13 and 14 of U.S. Patent No. 6,455,356. The complaint further alleges that an industry in the United States exists as required by subsection (a)(2) of section 337.
The complainant requests that the Commission institute an investigation and, after the investigation, issue an exclusion order and a cease and desist order.
The complaint and supplements, except for any confidential information contained therein, are available for inspection during official business hours (8:45 a.m. to 5:15 p.m.) in the Office of the Secretary, U.S. International Trade Commission, 500 E Street, SW., Room 112, Washington, DC 20436, telephone 202-205-2000. Hearing impaired individuals are advised that information on this matter can be obtained by contacting the Commission's TDD terminal on 202-205-1810. Persons with mobility impairments who will need special assistance in gaining access to the Commission should contact the Office of the Secretary at 202-205-2000. General information concerning the Commission may be obtained by accessing its Internet server (
David O. Lloyd, Esq., Office of Unfair Import Investigations, U.S. International Trade Commission, telephone 202-205-2582.
The authority for institution of this investigation is contained in section 337 of the Tariff Act of 1930, as amended, and in section 210.10 of the Commission's Rules of Practice and Procedure, 19 CFR 210.10 (2003).
Having considered the complaint, the U.S. International Trade Commission, on December 12, 2003,
(1) Pursuant to subsection (b) of section 337 of the Tariff Act of 1930, as amended, an investigation be instituted to determine whether there is a violation of subsection (a)(1)(B) of section 337 in the importation into the United States, the sale for importation, or the sale within the United States after importation of certain encapsulated integrated circuit devices or products containing same by reason of infringement of one or more of claims 1-4, 7, 17, 18, and 20-23 of U.S. Patent No. 6,433,277; claims 1-4, 7 and 8 of U.S. Patent No. 6,630,728; and claims 1, 2, 13 and 14 of U.S. Patent No. 6,455,356; and whether an industry in the United States exists as required by subsection (a)(2) of section 337.
(2) For the purpose of the investigation so instituted, the following are hereby named as parties upon which this notice of investigation shall be served:
(a) The complainant is—
Amkor Technology, Inc., 1345 West Enterprise Drive, West Chester, Pennsylvania 19380.
(b) The respondents are the following companies alleged to be in violation of section 337, and are the parties upon which the complaint is to be served:
Carsem (M) Sdn Bhd, No. 2 Jalan Lapangan Terbang, 31350 Ipoh, Perak, Malaysia.
Carsem Semiconductor Sdn Bhd, Lot 52986, Taman Meru Industrial Estate, 30020 Jelapang, Ipoh, Perak, Malaysia.
Carsem, Inc., 17890 Castleton Street, Suite 245, City of Industry, California 91748.
(c) David O. Lloyd, Esq., Office of Unfair Import Investigations, U.S. International Trade Commission, 500 E Street, SW., Suite 401, Washington, DC 20436, who shall be the Commission investigative attorney, party to this investigation; and
(3) For the investigation so instituted, the Honorable Charles E. Bullock is designated as the presiding administrative law judge.
Responses to the complaint and the notice of investigation must be submitted by the named respondents in accordance with § 210.13 of the Commission's rules of practice and procedure, 19 CFR 210.13. Pursuant to 19 CFR 201.16(d) and 210.13(a), such responses will be considered by the Commission if received no later than 20 days after the date of service by the Commission of the complaint and the notice of investigation. Extensions of time for submitting responses to the complaint will not be granted unless good cause therefor is shown.
Failure of a respondent to file a timely response to each allegation in the complaint and in this notice may be deemed to constitute a waiver of the right to appear and contest the allegations of the complaint and to authorize the administrative law judge and the Commission, without further notice to that respondent, to find the facts to be as alleged in the complaint and this notice and to enter both an initial determination and a final determination containing such findings, and may result in the issuance of a limited exclusion order or a cease and desist order or both directed against that respondent.
By order of the Commission.
On the basis of the record
Pursuant to § 207.18 of the Commission's rules, the Commission also gives notice of the commencement of the final phase of its investigation. The Commission will issue a final phase notice of scheduling, which will be published in the
On October 21, 2003, a petition was filed with the Commission and Commerce on behalf of Westnut LLC, Dundee, OR; Northwest Hazelnut Co., Hubbard, OR; Hazelnut Growers of Oregon, Cornelius, OR; Willamette Filbert Growers, Newberg, OR; Evergreen Orchards, McMinnville, OR; and Evonuk Orchards, Eugene, OR, alleging that an industry in the United States is materially injured and threatened with material injury by reason of LTFV imports of certain processed hazelnuts from Turkey. Accordingly, effective October 21, 2003, the Commission instituted antidumping duty investigation No. 731-TA-1057 (Preliminary).
Notice of the institution of the Commission's investigation and of a public conference to be held in connection therewith was given by posting copies of the notice in the Office of the Secretary, U.S. International Trade Commission, Washington, DC, and by publishing the notice in the
The Commission transmitted its determination in this investigation to the Secretary of Commerce on December 12, 2003. The views of the Commission are contained in USITC Publication 3656 (December 2003), entitled
By order of the Commission.
By letter of September 30, 2003, a petitioner requested administrative reconsideration of the Department of Labor's Notice of Negative Determination Regarding Eligibility to Apply for Worker Adjustment Assistance, applicable to workers of the subject firm. The Department's determination notice was signed on August 29, 2003. The notice was published in the
The Department reviewed the request for reconsideration and has determined that the petitioner has provided additional information. Therefore, the Department will conduct further investigation to determine if the workers meet the eligibility requirements of the Trade Act of 1974.
After careful review of the application, I conclude that the claim is of sufficient weight to justify reconsideration of the Department of Labor's prior decision. The application is, therefore, grated.
By letter of November 10, 2003, a petitioner requested administrative reconsideration of the Department of Labor's Notice of Negative Determination Regarding Eligibility to Apply for Worker Adjustment Assistance, applicable to workers of the subject firm. The Department's determination notice was signed on October 10, 2003. The notice was published in the
The Department reviewed the request for reconsideration and has determined that the petitioner has provided additional information. Therefore, the Department will conduct further investigation to determine if the workers meet the eligibility requirements of the Trade Act of 1974.
After careful review of the application, I conclude that the claim is of sufficient weight to justify reconsideration of the Department of Labor's prior decision. The application is, therefore, granted.
By letter of October 10, 2003, a petitioner requested administrative reconsideration of the Department of Labor's Notice of Negative Determination Regarding Eligibility to Apply for Worker Adjustment Assistance, applicable to workers of the subject firm. The denial notice was signed on September 23 2003, and will
The Department reviewed the request for reconsideration and has determined that sales and production did decline in the relevant period, and therefore, a survey of subject firm customers is merited to establish whether imports contributed to layoffs in the petitioning worker group.
After careful review of the application, I conclude that the claim is of sufficient weight to justify reconsideration of the Department of Labor's prior decision. The application is, therefore, granted.
By letter of October 16, 2003, a petitioner requested administrative reconsideration of the Department of Labor's Notice of Negative Determination Regarding Eligibility to Apply for Worker Adjustment Assistance, applicable to workers of the subject firm. The Department's determination notice was signed on September 24, 2003 and published in the
The Department has reviewed the request for reconsideration and has determined that the petitioner has provided additional information. Therefore, the Department will conduct further investigation to determine if the workers meet the eligibility requirements of the Trade Act of 1974.
After careful review of the application, I conclude that the claim is of sufficient weight to justify reconsideration of the Department of Labor's prior decision. The application is, therefore, granted.
By letter of November 17, 2003, a petitioner requested administrative reconsideration of the Department of Labor's Notice of Negative Determination Regarding Eligibility to Apply for Worker Adjustment Assistance, applicable to workers of the subject firm. The Department's determination notice was signed on October 21, 2003 and published in the
The Department reviewed the request for reconsideration and has determined that the petitioner has provided additional information regarding an alleged shift of production to Mexico. Therefore, the Department will conduct further investigation to determine if the workers meet the eligibility requirements of the Trade Act of 1974.
After careful review of the application, I conclude that the claim is of sufficient weight to justify reconsideration of the Department of Labor's prior decision. The application is, therefore, granted.
By letter of June 27, 2003, a company official requested administrative reconsideration of the Department of Labor's Notice of Negative Determination Regarding Eligibility to Apply for Worker Adjustment Assistance, applicable to workers of the subject firm. The denial notice was signed on May 5, 2003, and published in the
The Department reviewed the request for reconsideration and has determined that the Department will conduct further surveys of customers provided by the company that were not indicated in the initial investigation.
After careful review of the application, I conclude that the claim is of sufficient weight to justify reconsideration of the Department of Labor's prior decision. The application is, therefore, granted.
By letter of July 3, 2003, a petitioner requested administrative reconsideration of the Department of Labor's Notice of Negative Determination Regarding Eligibility to Apply for Worker Adjustment Assistance, applicable to workers of the subject firm. The denial notice was signed on June 10, 2003, and published in the
The Department reviewed the request for reconsideration and has determined that a survey of subject firm customers is merited to establish whether imports contributed to layoffs in the petitioning worker group.
After careful review of the application, I conclude that the claim is of sufficient weight to justify reconsideration of the Department of Labor's prior decision. The application is, therefore, granted.
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: Maintenance of Receipts for Benefits Paid by a Coal Mine Operator (CM-200). 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 February 17, 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, Email
The Office of Workers' Compensation Programs (OWCP) administers the Federal Black Lung Benefits Act (FBLBA). Under 20 CFR 725.531, self-insured coal mine operators or insurance carriers must maintain receipts for black lung benefit payments made for five years after the date on which the receipt was executed. This requirement is designated as CM-200, Maintenance of Receipts for Benefits Paid by a Coal Mine Operator. There is no form or format for the receipts; a cancelled check will satisfy the requirement. This information collection is currently approved for use through June 30, 2004.
The Department of Labor is particularly interested in comments which:
• Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
• Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
• Enhance the quality, utility and clarity of the information to be collected; and
• Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
The Department of Labor seeks approval for the extension of this information collection in order that coal mine operators and insurers can provide evidence, as necessary, that payment to claimants has been made and received.
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.
General wage determination decisions of the Secretary of Labor are issued in accordance with applicable law and are based on the information obtained by the Department of Labor from its study of local wage conditions and data made available from other sources. They specify the basic hourly wage rates and fringe benefits which are determined to be prevailing for the described classes of laborers and mechanics employed on construction projects of a similar character and in the localities specified therein.
The determinations in these decisions of prevailing rates and fringe benefits have been made in accordance with 29 CFR part 1, by authority of the Secretary of Labor pursuant to the provisions of the Davis-Bacon Act of March 3, 1931, as amended (46 Stat. 1494, as amended, 40 U.S.C. 276a) and of other Federal statutes referred to in 29 CFR part 1, Appendix, as well as such additional statutes as may from time to time be enacted containing provisions for the payment of wages determined to be prevailing by the Secretary of Labor in accordance with the Davis-Bacon Act. The prevailing rates and fringe benefits determined in these decisions shall, in accordance with the provisions of the foregoing statutes, constitute the minimum wages payable on Federal and
Good cause is hereby found for not utilizing notice and public comment procedure thereon prior to the issuance of these determinations as prescribed in 5 U.S.C. 553 and not providing for delay in the effective date as prescribed in that section, because the necessity to issue current construction industry wage determinations frequently and in large volume causes procedures to the impractical and contrary to the public interest.
General wage determination decisions, and modifications and supersedes decisions thereto, contain no expiration dates and are effective from their date of notice in the
Any person, organization, or governmental agency having an interest in the rates determined as prevailing is encouraged to submit wage rate and fringe benefit information for consideration by the Department.
Further information and self-explanatory forms for the purpose of submitting this data may be obtained by writing to the U.S. Department of Labor, Employment Standards Administration, Wage and Hour Division, Division of Wage Determinations, 200 Constitution Avenue, NW., Room S-3014, Washington, DC 20210.
The number of the decisions listed to the Government Printing Office document entitled “General Wage Determinations Issued Under the Davis-Bacon and Related Acts” being modified are listed by Volume and State. Dates of publication in the
General wage determinations issued under the Davis-Bacon and related Acts, including those noted above, may be found in the Government Printing Office (GPO) document entitled “General Wage Determinations Issued Under the Davis-Bacon and Related Acts.” This publication is available at each of the 50 Regional Government Depository Libraries and many of the 1,400 Government Depository Libraries across the country.
General wage determinations issued under the Davis-Bacon and related Acts are available electronically at no cost on the Government Printing Office site at
Hard-copy subscriptions may be purchased from: Superintendent of Documents, U.S. Government Printing Office, Washington, DC 20402, (202) 512-1800.
When ordering hard-copy subscription(s), be sure to specify the State(s) of interest, since subscriptions may be ordered for any or all of the six separate Volumes, arranged by State. Subscriptions include an annual edition (issued in January or February) which includes all current general wage determinations for the States covered by each volume. Throughout the remainder of the year, regular weekly updates will be distributed to subscribers.
Occupational Safety and Health Administration (OSHA), Labor.
Request for comment.
OSHA solicits comments concerning its proposal to decrease the existing burden-hour estimates, and to extend OMB approval of the information collection requirements of the regulation titled Access to Employee Exposure and Medical Records (29 CFR 1910.1020).
Comments must be submitted by the following dates:
The Supporting Statement for the information Collection is available for downloading from OSHA's Web site at
Todd Owen, Directorate of Standards and Guidance, OSHA, U.S. Department of Labor, Room N-3609, 200 Constitution Avenue, NW., Washington, DC 20210; telephone (202) 693-2222.
You may submit comments in response to this document by (1) hard copy, (2) fax transmission (facsimile), or (3) electronically through the OSHA Web page. Please note you cannot attach materials such as studies or journal articles to electronic comments. If you have additional materials, you must submit three copies of them to the OSHA Docket Office at the address above. The additional materials must clearly identify your electronic comments by name, date, subject and docket number so we can attach them to your comments. Because of security-related problems there may be a significant delay in the receipt of comments by regular mail. Please contact the OSHA Docket Office at (202) 693-2350 for information about security procedures concerning the delivery of materials by express delivery, hand delivery and messenger service.
The Department of Labor, as part of its continuing effort to reduce paperwork and respondent (
Access to exposure and medical information enables employees and their designated representatives to become directly involved in identifying and controlling occupational health hazards, as well as managing and preventing occupationally-related health impairment and disease. Providing the Agency with access to the records permits it to ascertain whether or not employers are complying with the regulation, as well as the recordkeeping requirements of its other health standards; therefore, OSHA access provides additional assurance that employees and their designated representatives are able to obtain the data they need to conduct their analyses.
OSHA has a particular interest in comments on the following issues:
• Whether the proposed information collection requirements are necessary for the proper performance of the Agency's functions to protect workers, including whether the information is useful;
• The accuracy of OSHA's estimate of the burden (time and costs) of the information collection requirements, including the validity of the methodology and assumptions used;
• The quality, utility, and clarity of the information collected; and
• Ways to minimize the burden on employers who must comply; for example, by using automated or other technological information collection and transmission techniques.
OSHA proposes to decrease the existing burden-hour estimates, and to extend OMB approval of the information collection requirements of the Access to Employee Exposure and Medical Records Standard (29 CFR 1910.1020). The reduction is mainly a result of a reduction in the estimated number of establishments affected by this regulation.
OSHA will summarize the comments submitted in response to this notice, and will include this summary in the request to OMB to extend the approval of the information collection requirements contained in the Access to Employee Exposure and Medical Records Standard (29 CFR 1910.1020).
John L. Henshaw, Assistant Secretary of Labor for Occupational Safety and Health, directed the preparation of this notice. The authority for this notice is the Paperwork Reduction Act of 1995 (44 U.S.C. 3506), and Secretary of Labor's Order No. 5-2002 (67 FR 65008).
The National Endowment for the Humanities.
Notice of meetings.
Pursuant to the provisions of the Federal Advisory Committee Act (Pub. L. 92-463, as amended), notice is hereby given that the following meetings of the Humanities Panel will be held at the Old Post Office, 1100 Pennsylvania Avenue, NW., Washington, DC 20506.
Heather Gottry, Acting Advisory Committee Management Officer, National Endowment for the Humanities, Washington, DC 20506; telephone (202) 606-8322. Hearing-impaired individuals are advised that information on this matter may be obtained by contacting the Endowment's TDD terminal on (202) 606-8282.
The proposed meetings are for the purpose of panel review, discussion, evaluation and recommendation on applications for financial assistance under the National Foundation on the Arts and the Humanities Act of 1965, as amended, including discussion of information given in confidence to the agency by the grant applicants. Because the proposed meetings will consider information that is likely to disclose trade secrets and commercial or financial information obtained from a person and privileged or confidential and/or information of a personal nature the disclosure of which would constitute a clearly unwarranted invasion of personal privacy, pursuant to authority granted me by the Chairman's Delegation of Authority to Close Advisory Committee meetings, dated July 19, 1993, I have determined that these meetings will be closed to the public pursuant to subsections (c) (4), and (6) of section 552b of Title 5, United States Code.
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The Nuclear Regulatory Commission (NRC) is considering issuance of an exemption from 10 CFR 50.75(h)(2) for Facility Operating License Nos. DPR-29 and DPR-30, issued to Exelon Generation Company, LLC (Exelon) and MidAmerican Energy Company (MEC) (the licensee), for operation of the Quad Cities Nuclear Power Station, Units 1 and 2, located in Rock Island County, Illinois. Therefore, as required by 10 CFR 51.21, the NRC is issuing this environmental assessment and finding of no significant impact.
The proposed is an exemption to the requirements of 10 CFR 50.75(h)(2), as requested by MEC by letter dated November 21, 2003. The proposed action would exempt MEC from compliance with requirements of the new regulation until MEC's amended nuclear decommissioning trusts are approved by the Illinois Commerce Commission.
The proposed exemption from 10 CFR 50.75(h)(2) is needed because MEC may not obtain approval of the amended nuclear decommissioning trusts from the Illinois Commerce Commission prior to December 24, 2003.
The NRC has completed its safety evaluation of the proposed action and concludes that the proposed exemption will not present an undue risk to the public health and safety. The details of the staff's safety evaluation will be provided in the exemption that will be issued as part of the letter to the MEC approving the exemption to the regulation.
The proposed action will not significantly increase the probability or consequences of accidents. No changes are being made in the types of effluents that may be released offsite. There is no significant increase in the amount of any effluent released offsite. There is no significant increase in occupational or public radiation exposure. Therefore, there are no significant radiological environmental impacts associated with the proposed action.
With regard to potential non-radiological impacts, the proposed action does not have a potential to affect any historic sites. It does not affect non-radiological plant effluents and has no other environmental impact. Therefore, there are no significant non-radiological environmental impacts associated with the proposed action.
Accordingly, the NRC concludes that there are no significant environmental impacts associated with the proposed action.
As an alternative to the proposed action, the staff considered denial of the proposed action (
The action does not involve the use of any different resources than those previously considered in the Final Environmental Statement for the Quad Cities Power Station, Units 1 and 2 dated September 1972 and the Draft Supplemental Environmental Impact Statement (NUREG-1437 Supplement 16) dated November 2003.
On December 10, 2003, the staff consulted with the Illinois State official, Frank Niziiolek, of the Illinois Emergency Management Agency, regarding the environmental impact of the proposed action. The State official had no comments.
On the basis of the environmental assessment, the NRC concludes that the proposed action will not have a significant effect on the quality of the human environment. Accordingly, the NRC has determined not to prepare an environmental impact statement for the proposed action.
For further details with respect to the proposed action, see the licensee's letter dated November 21, 2003. Documents may be examined, and/or copied for a fee, at the NRC's Public Document Room (PDR), located at One White Flint North, 11555 Rockville Pike (first floor), Rockville, Maryland. Publicly available records will be accessible electronically from the Agencywide Documents Access and Management System (ADAMS) Public Electronic Reading Room on the NRC Web site,
For the Nuclear Regulation Commission.
Nuclear Regulatory Commission.
Notice of issuance.
The Nuclear Regulatory Commission (NRC) has issued NRC Bulletin 2003-02 to all holders of operating licenses for pressurized-water nuclear power reactors (PWRs) with penetrations in the lower head of the reactor pressure vessel, (RPV) except those who have permanently ceased operations and have certified that fuel has been permanently removed from the RPV. The NRC issued this bulletin to (1) advise PWR addressees that current methods of inspecting the RPV lower heads may need to be supplemented with additional measures (
The bulletin was issued on August 21, 2003.
Not applicable.
Edmund Sullivan at 301-415-2796, e-mail
NRC Bulletin 2003-02 may be examined and/or copied for a fee at the NRC's Public
If you do not have access to ADAMS or if there are problems in accessing documents located in ADAMS, contact the NRC Public Document Room (PDR) Reference staff at 301-415-4737 or 1-800-397-4209, or by e-mail to
For the Nuclear Regulatory Commission.
Securities and Exchange Commission (“SEC” or “Commission”).
Notice of Application for an Order of Exemption under Section 6(c) of the Investment Company Act of 1940 (“1940 Act”) for an exemption from the provisions of Sections 9(a), 13(a), 15(a), and 15(b) of the 1940 Act and Rules6e-2(b)(15) and 6e-3(T)(b)(15) thereunder.
AEGON/Transamerica Series Fund, Inc. (“ATSF”) and AEGON/Transamerica Fund Advisers, Inc. (“ATFA”) (collectively, “Applicants”).
Applicants seek an order to permit shares of ATSF and shares of any other existing or future investment company that is designed to fund insurance products and for which ATFA, or any of its affiliates, may serve as investment manager, investment adviser, subadviser, administrator, manager, principal underwriter or sponsor (ATSF and such other investment companies being hereinafter referred to, collectively, as “Insurance Investment Companies”), or permit shares of any current or future series of any Insurance Investment Company (“Insurance Fund”), to be sold to and held by: (1) Separate accounts funding variable annuity and variable life insurance contracts issued by both affiliated and unaffiliated life insurance companies; (2) qualified pension and retirement plans outside of the separate account context (“Qualified Plans” or “Plans”); (3) any investment manager to an Insurance Fund and affiliates thereof that is permitted to hold shares of an Insurance Fund consistent with the requirements of Treasury Regulation 1.817-5 (collectively, the “Manager”); and (4) any insurance company that is permitted to hold shares of an Insurance Fund consistent with the requirements of Treasury Regulation 1.817-5.
The Application was filed on October 16, 2003.
An order granting the Application will be issued unless the Commission orders a hearing. Interested persons may request a hearing on the Application by writing to the Secretary of the SEC and serving Applicants with a copy of the request, personally or by mail. Hearing requests must be received by the SEC by 5:30 p.m. on January 9, 2004 and should be accompanied by proof of service on the Applicants, in the form of an affidavit or, for lawyers, a certificate of service. Hearing requests should state the nature of writer's interest, the reason for the request, and the issues contested. Persons may request notification of the date of the hearing by writing to the SEC's Secretary.
Secretary, SEC, 450 Fifth Street, NW., Washington, DC 20549-0690. Applicants, c/o John K. Carter, Esq., Senior Vice President and General Counsel, AEGON/Transamerica Fund Advisers, Inc., 570 Carillon Parkway, St. Petersburg, Florida 33716.
Curtis A. Young, Senior Counsel or Lorna J. MacLeod, Branch Chief, Office of Insurance Products, Division of Investment Management at 202-942-0670.
The following is a summary of the Application. The complete Application is available for a fee from the SEC's Public Reference Branch, 450 Fifth Street, NW., Washington, DC 20549-0102 (202-942-8090).
1. ATSF is a Maryland corporation organized on August 21, 1985 and is registered as an open-end management investment company under the 1940 Act. ATSF is a series company currently comprising fifty-one (51) series (the “Insurance Funds”). Additional series of ATSF and classes of the Funds and additional Insurance Funds may be established in the future.
2. ATFA has served as ATSF's investment adviser since 1997. ATFA is directly owned by Western Reserve Life Assurance Co. of Ohio (78 percent) and AUSA Holding Company (22%), both of which are indirect wholly-owned subsidiaries of AEGON N.V., a Netherlands corporation which is a publicly traded international insurance group. Pursuant to investment subadvisory agreements, ATFA retains a subadviser for many Insurance Funds. Each subadviser is registered as an investment adviser with the Commission under the Investment Advisers Act of 1940.
3. ATSF currently offers shares of the Insurance Funds only to separate accounts of affiliated insurance companies in order to fund benefits under flexible premium variable annuity contracts and variable life insurance policies. In the future, the Insurance Investment Companies intend to offer shares of the Insurance Funds (a) separate accounts of affiliated and unaffiliated insurance companies in order to fund variable annuity contracts and variable life insurance contracts (collectively, “Separate Accounts”); (b) Qualified Plans; (c) any investment manager to an Insurance Fund and affiliates thereof that is permitted to hold shares of an Insurance Fund consistent with the requirements of Treasury Regulation 1.817-5 (collectively, the “Manager”); and (d) any insurance company that is permitted to hold shares of an Insurance Fund consistent with the requirements of Treasury Regulation 1.817-5 (“General Accounts”).
4. Insurance companies whose Separate Account(s) may now or in the future own shares of the Insurance Funds are referred to herein as “Participating Insurance Companies.” The Participating Insurance Companies have established or will establish their own separate accounts and design their own variable contracts. Each Participating Insurance Company has or will have the legal obligation to satisfy all applicable requirements under both State and Federal law. Participating Insurance Companies may rely on Rules 6e-2 and 6e-3(T), although some Participating Insurance Companies, in connection with variable life insurance contracts, may rely on individual exemptive orders as well.
5. The Insurance Investment Companies intend to offer shares of the Insurance Funds directly to Qualified Plans outside of the separate account
6. Shares of each Insurance Fund also may be offered to the Manager or to General Accounts, in reliance on regulations issued by the Treasury Department (Treas. Reg. 1.817-5) that established diversification requirements for variable annuity and variable life insurance contracts (“Treasury Regulations”). Treasury Regulation 1.817-5(f)(3)(ii) permits such sales as long as the return on shares held by the Manager or General Accounts is computed in the same manner as for shares held by the Separate Accounts, and the Manager or the General Accounts do not intend to sell to the public shares of the Insurance Investment Company that they hold. An additional restriction is imposed by the Treasury Regulations on sales to the Manager, who may hold shares only in connection with the creation or management of the Insurance Investment Company. Applicants anticipate that sales in reliance on these provisions of the Treasury Regulations generally will be made to the Manager for the purpose of providing necessary capital required by section 14(a) of the 1940 Act.
1. Applicants seek exemptive relief from the provisions of sections 9(a), 13(a), 15(a), and 15(b) of the 1940 Act and rules 6e-2(b)(15) and 6e-3(T)(b)(15) thereunder (including any comparable provisions of a permanent rule that replaces Rule 6e-3(T)), to the extent necessary to permit shares of each Insurance Investment Company to be offered and sold to, and held by: (i) Separate Accounts funding variable annuity contracts and scheduled premium and flexible premium variable life insurance contracts issued by both affiliated and unaffiliated life insurance companies; (ii) Qualified Plans outside of the separate account context; (iii) any Manager to an Insurance Fund; and (iv) General Accounts.
2. Section 6(c) authorizes the Commission to exempt any person, security, or transaction or any class or classes of persons, securities, or transactions from any provision or provisions of the 1940 Act and/or of any rule thereunder if and to the extent that such exemption is necessary or appropriate in the public interest and consistent with the protection of investors and the purposes fairly intended by the policy and provisions of the 1940 Act.
3. In connection with the funding of scheduled premium variable life insurance contracts issued through a separate account organized as a unit investment trust (“Trust Account”), Rule 6e-2(b)(15) provides partial exemptions from Sections 9(a), 13(a), 15(a), and 15(b) of the 1940 Act. The exemptions granted to an insurance company by Rule 6e-2(b)(15) are available only where each registered management investment company underlying the Trust Account (“underlying fund”) offers its shares “
4. In connection with the funding of flexible premium variable life insurance contracts issued through a Trust Account, rule 6e-3(T)(b)(15) provides partial exemptions from sections 9(a), 13(a), 15(a) and 15(b) of the 1940 Act to the extent that those sections have been deemed by the Commission to require “pass-through” voting with respect to an underlying fund's shares. The exemptions granted to a separate account by rule 6e-3(T)(b)(15) are available only where all of the assets of the separate account consist of the shares of one or more underlying funds which offer their shares “exclusively to separate accounts of the life insurer, or of any affiliated life insurance company, offering either scheduled contracts or flexible contracts, or both; or which also offer their shares to variable annuity separate accounts of the life insurer or of an affiliated life insurance company” (emphasis added). Therefore, rule 6e-3(T) permits mixed funding with respect to a flexible premium variable life insurance separate account, subject to certain conditions. However, rule 6e-3(T) does not permit shared funding because the relief granted by rule 6e-3(T)(b)(15) is not available with respect to a flexible premium variable life insurance separate account that owns shares of an underlying fund that also offers its shares to separate accounts (including variable annuity and flexible premium and scheduled premium variable life insurance separate accounts) of unaffiliated life insurance companies. The relief provided by rule 6e-3(T) is not relevant to the purchase of shares of the Insurance Investment Companies by Qualified Plans, the Manager or General Accounts. However, because the relief granted by rule 6e-3(T)(b)(15) is available only where shares of the underlying fund are offered exclusively to separate accounts, or to life insurers in connection with the operation of a separate account, additional exemptive relief may be necessary if the shares of the Insurance Investment Companies are also to be sold to Qualified Plans, the Manager or General Accounts.
5. The relief provided by rule 6e-3(T) is not relevant to the purchase of shares of the Insurance Investment Companies by Qualified Plans, the Manager or General Accounts. However, because the relief granted by rule 6e-3(T)(b)(15) is available only where shares of the
6. Applicants assert that the Treasury Regulations made it possible for shares of an investment company to be held by a Qualified Plan, the investment company's investment manager or its affiliates or General Accounts without adversely affecting the ability of shares in the same investment company to also be held by separate accounts of insurance companies in connection with their variable life insurance contracts. Section 817(h) of the Internal Revenue Code of 1986, as amended (“Code”), imposes certain diversification standards on the underlying assets of separate accounts funding variable annuity contracts and variable life contracts. In particular, the Code provides that such contracts shall not be treated as an annuity contract or life insurance contract for any period (and any subsequent period) for which the separate account investments are not, in accordance with regulations prescribed by the Treasury Department, adequately diversified. The Treasury Regulations provide that, in order to meet the diversification requirements, all of the beneficial interests in the investment company must be held by the segregated asset accounts of one or more insurance companies. However, the Treasury Regulations also contain certain exceptions to this requirement, one of which allows shares of an investment company to be held by the trustee of a qualified pension or retirement plan without adversely affecting the ability of shares in the same investment company to also be held by the separate accounts of insurance companies in connection with their variable annuity and variable life contracts (Treas. Reg. § 1.817-5(f)(3)(iii)).
7. Applicants also assert that the Treasury Regulations contain another exception that permits the Insurance Funds to sell shares to General Accounts or the Manager subject to certain conditions (Treas. Reg. § 1.817-5(f)(3)(i), (ii)).
8. The promulgation of rules 6e-2(b)(15) and 6e-3(T)(b)(15) preceded the issuance of the Treasury Regulations which made it possible for shares of an investment company to be held by a Qualified Plan, the investment company's investment manager or its affiliates or General Accounts without adversely affecting the ability of shares in the same investment company to also be held by the separate accounts of insurance companies in connection with their variable life insurance contracts. Thus, the sale of shares of the same investment company to separate accounts through which variable life insurance contracts are issued, to Qualified Plans, to the investment company's investment manager and its affiliates or General Accounts (collectively, “eligible shareholders”) could not have been envisioned at the time of the adoption of rules 6e-2(b)(15) and 6e-3(T)(b)(15), given the then-current tax law.
9. Paragraph (3) of section 9(a) provides, among other things, that it is unlawful for any company to serve as investment adviser to or principal underwriter for any registered open-end investment company if an affiliated person of that company is subject to a disqualification enumerated in sections 9(a)(1) or (a)(2). rule 6e-2(b)(15)(i) and (ii) and rule 6e-3(T)(b)(15)(i) and (ii) provide exemptions from section 9(a) under certain circumstances, subject to the limitations discussed above on mixed and shared funding. These exemptions limit the application of the eligibility restrictions to affiliated individuals or companies that directly participate in the management or administration of the underlying management investment company. The relief provided by rules 6e-2(b)(15)(i) and 6e-3(T)(b)(15)(i) permits a person disqualified under section 9(a) to serve as an officer, director, or employee of the life insurer, or any of its affiliates, so long as that person does not participate directly in the management or administration of the underlying fund. The relief provided by rules 6e-2(b)(15)(ii) and 6e-3(T)(b)(15)(ii) permits the life insurer to serve as the underlying fund's investment manager or principal underwriter, provided that none of the insurer's personnel who are ineligible pursuant to section 9(a) are participating in the management or administration of the fund. The partial relief granted in rules 6e-2(b)(15) and 6e-3(T)(b)(15) from the requirements of section 9 limits, in effect, the amount of monitoring of an insurer's personnel that would otherwise be necessary to ensure compliance with section 9 to that which is appropriate in light of the policy and purposes of section 9. Those rules recognize that it is not necessary for the protection of investors or the purposes fairly intended by the policy and provisions of the 1940 Act to apply the provisions of section 9(a) to the many individuals in an insurance company complex, most of whom typically will have no involvement in matters pertaining to investment companies in that organization. Applicants assert that it is also unnecessary to apply section 9(a) of the 1940 Act to the many individuals in various unaffiliated insurance companies (or affiliated companies of Participating Insurance Companies) that may utilize the Insurance Funds as the funding medium for variable contracts. There is no regulatory purpose in extending the monitoring requirements to embrace a full application of section
10. Sections 13(a), 15(a), and 15(b) of the 1940 Act have been deemed by the Commission to require “pass-through” voting with respect to underlying fund shares held by a separate account. Rules 6e-2(b)(15)(iii) and 6e-3(T)(b)(15)(iii) under the 1940 Act provide partial exemptions from those sections to permit the insurance company to disregard the voting instructions of its contract owners in certain limited circumstances. Rules 6e-2(b)(15)(iii)(A) and 6e-3(T)(b)(15)(iii)(A)(1) under the 1940 Act provide that the insurance company may disregard the voting instructions of its contract owners in connection with the voting of shares of an underlying fund if such instructions would require such shares to be voted to cause such underlying funds to make (or refrain from making) certain investments that would result in changes in the subclassification or investment objectives of such underlying funds or to approve or disapprove any contract between an underlying fund and its investment manager, when required to do so by an insurance regulatory authority (subject to the provisions of paragraphs (b)(5)(i) and (b)(7)(ii)(A) of such rules). Rules 6e-2(b)(15)(iii)(B) and 6e-3(T)(b)(15)(iii)(A)(2) under the 1940 Act provide that the insurance company may disregard contract owners' voting instructions if the contract owners initiate any change in such underlying fund's investment policies, principal underwriter, or any investment manager (provided that disregarding such voting instructions is reasonable and subject to the other provisions of paragraphs (b)(5)(ii) and (b)(7)(ii)(B) and (C) of rules 6e-2 and 6e-3(T)).
11. Rule 6e-2 recognizes that a variable life insurance contract is an insurance contract; it has important elements unique to insurance contracts; and it is subject to extensive state regulation of insurance. In adopting rule 6e-2(b)(15)(iii), the Commission expressly recognized that state insurance regulators have authority, pursuant to state insurance laws or regulations, to disapprove or require changes in investment policies, investment advisers, or principal underwriters. The Commission also expressly recognized that state insurance regulators have authority to require an insurer to draw from its general account to cover costs imposed upon the insurer by a change approved by contract owners over the insurer's objection. The Commission therefore deemed such exemptions necessary “to assure the solvency of the life insurer and performance of its contractual obligations by enabling an insurance regulatory authority or the life insurer to act when certain proposals reasonably could be expected to increase the risks undertaken by the life insurer.” In this respect, flexible premium variable life insurance contracts are identical to scheduled premium variable life insurance contracts; therefore, rule 6e-3(T)'s corresponding provisions presumably were adopted in recognition of the same factors. State insurance regulators have much the same authority with respect to variable annuity separate accounts as they have with respect to variable life insurance separate accounts. Insurers generally assume both mortality and expense risks under variable annuity contracts. Therefore, variable annuity contracts pose some of the same kinds of risks to insurers as variable life insurance contracts. The Commission staff has not addressed the general issue of state insurance regulators' authority in the context of variable annuity contracts, and has not developed a single comprehensive exemptive rule for variable annuity contracts.
12. The Insurance Investment Companies' sale of shares to Qualified Plans, the Manager or General Accounts will not have any impact on the relief requested herein in this regard. Shares of the Insurance Funds sold to Qualified Plans would be held by the trustees of such Plans. The exercise of voting rights by Qualified Plans, whether by the trustees, by participants, by beneficiaries, or by investment managers engaged by the Plans, does not present the type of issues respecting the disregard of voting rights that are presented by variable life separate accounts. With respect to the Qualified Plans, which are not registered as investment companies under the 1940 Act, there is no requirement to pass through voting rights to Plan participants. Similarly, the Manager and General Accounts are not subject to any pass-through voting requirements. Accordingly, unlike the case with insurance company separate accounts, the issue of the resolution of material irreconcilable conflicts with respect to voting is not present with Qualified Plans, the Manager or General Accounts.
13. Applicants assert that shared funding by unaffiliated insurance companies does not present any issues that do not already exist where a single insurance company is licensed to do business in several or all states. A particular state insurance regulatory body could require action that is inconsistent with the requirements of other states in which the insurance company offers its policies. The fact that different Participating Insurance Companies may be domiciled in different states does not create a significantly different or enlarged problem.
14. Applicants further assert that shared funding by unaffiliated Participating Insurance Companies is, in this respect, no different than the use of the same investment company as the funding vehicle for affiliated Participating Insurance Companies, which rules 6e-2(b)(15) and 6e-3(T)(b)(15) permit under various circumstances. Affiliated Participating Insurance Companies may be domiciled in different states and be subject to differing state law requirements. Affiliation does not reduce the potential, if any exists, for differences in state regulatory requirements. In any event, the conditions discussed below are designed to safeguard against and provide procedures for resolving any adverse effects that differences among state regulatory requirements may produce.
15. Applicants assert that the right under rules 6e-2(b)(15) and 6e-3(T)(b)(15) of an insurance company to disregard contract owners' voting instructions does not raise any issues different from those raised by the
16. With respect to voting rights, it is possible to provide an equitable means of giving such voting rights to contract owners and to Qualified Plans, the Manager or General Accounts. The transfer agent(s) for the Insurance Investment Companies will inform each shareholder, including each separate account, each Qualified Plan, the Manager and each General Account, of its share ownership, in an Insurance Investment Company. Each Participating Insurance Company will then solicit voting instructions in accordance with the “pass-through” voting requirement. Investment by Qualified Plans or General Accounts in any Insurance Investment Company will similarly present no conflict. The likelihood that voting instructions of insurance company contract owners will ever be disregarded or the possible withdrawal referred to immediately above is extremely remote and this possibility will be known, through prospectus disclosure, to any Qualified Plan or General Account choosing to invest in an Insurance Fund. Moreover, even if a material irreconcilable conflict involving Qualified Plans or General Accounts arises, the Qualified Plans or General Accounts may simply redeem their shares and make alternative investments. Votes cast by the Qualified Plans or General Accounts, of course, cannot be disregarded but must be counted and given effect.
17. Applicants assert that there is no reason why the investment policies of an Insurance Fund would or should be materially different from what they would or should be if such Insurance Fund funded only variable annuity contracts or variable life insurance policies, whether flexible premium or scheduled premium policies. Each type of insurance product is designed as a long-term investment program. Similarly, the investment strategy of Qualified Plans and General Accounts (
18. Furthermore, Applicants assert that no one investment strategy can be identified as appropriate to a particular insurance product. Each pool of variable annuity and variable life insurance contract owners is composed of individuals of diverse financial status, age, insurance and investment goals. A fund supporting even one type of insurance product must accommodate these diverse factors in order to attract and retain purchasers. Permitting mixed and shared funding will provide economic justification for the growth of the Insurance Investment Company. In addition, permitting mixed and shared funding will facilitate the establishment of additional series serving diverse goals. The broader base of contract owners and shareholders can also be expected to provide economic justification for the creation of additional series of each Insurance Investment Company with a greater variety of investment objectives and policies.
19. Applicants note that section 817(h) of the Code is the only section in the Code where separate accounts are discussed. Section 817(h) imposes certain diversification standards on the underlying assets of variable annuity contracts and variable life contracts held in the portfolios of management investment companies. Treasury Regulation 1.817-5, which established diversification requirements for such portfolios, specifically permits, in paragraph (f)(3), among other things, “qualified pension or retirement plans,” “the general account of a life insurance company,” “the manager * * * of an investment company” and separate accounts to share the same underlying management investment company. Therefore, neither the Code nor the Treasury Regulations nor Revenue Rulings thereunder present any inherent conflicts of interest if Qualified Plans, Separate Accounts, the Manager and General Accounts all invest in the same underlying fund.
20. Applicants assert that the ability of the Insurance Investment Companies to sell their respective shares directly to Qualified Plans, the Manager or General Accounts does not create a “senior security,” as such term is defined under section 18(g) of the 1940 Act, with respect to any variable contract, Qualified Plan, Manager or General Accounts. As noted above, regardless of the rights and benefits of contract owners or Plan participants, the Separate Accounts, Qualified Plans, the Manager and the General Accounts have rights only with respect to their respective shares of the Insurance Investment Companies. They can only redeem such shares at net asset value. No shareholder of any of the Insurance Investment Companies has any preference over any other shareholder with respect to distribution of assets or payment of dividends.
21. Applicants assert that permitting an Insurance Investment Company to sell its shares to the Manager in compliance with Treas. Reg. 1.817-5 will enhance Insurance Investment Company management without raising significant concerns regarding material irreconcilable conflicts. Applicants assert that the Insurance Investment Companies may be deemed to lack an insurance company “promoter” for purposes of rule 14a-2 under the Act. Accordingly, Applicants assert that such Insurance Investment Companies will be subject to the requirements of section 14(a) of the 1940 Act, which generally requires that an investment company
22. Applicants assert that given the conditions of Treas. Reg. 1.817-5(i)(3) and the harmony of interest between an Insurance Investment Company, on the one hand, and its Manager or a Participating Insurance Company, on the other, little incentive for overreaching exists. Applicants assert that such investments should not implicate the concerns discussed above regarding the creation of material irreconcilable conflicts. Instead, Applicants assert that permitting investment by the Manager will permit the orderly and efficient creation and operation of Insurance Investment Companies, and reduce the expense and uncertainty of using outside parties at the early stages of Insurance Investment Company operations.
23. Applicants assert that various factors have limited the number of insurance companies that offer variable contracts. These factors include the costs of organizing and operating a funding medium, the lack of expertise with respect to investment management (principally with respect to stock and money market investments) and the lack of name recognition by the public of certain Participating Insurance Companies as investment experts. In particular, some smaller life insurance companies may not find it economically feasible, or within their investment or administrative expertise, to enter the variable contract business on their own. Use of the Insurance Investment Companies as a common investment medium for variable contracts, Qualified Plans and General Accounts would help alleviate these concerns, because Participating Insurance Companies, Qualified Plans and General Accounts will benefit not only from the investment and administrative expertise of ATFA, or any other investment manager to an Insurance Fund, but also from the cost efficiencies and investment flexibility afforded by a large pool of funds. Therefore, making the Insurance Investment Companies available for mixed and shared funding and permitting the purchase of Insurance Investment Company shares by Qualified Plans and General Accounts may encourage more insurance companies to offer variable contracts, and this should result in increased competition with respect to both variable contract design and pricing, which can be expected to result in more product variation. Mixed and shared funding also may benefit variable contract owners by eliminating a significant portion of the costs of establishing and administering separate funds. Furthermore, granting the requested relief should result in an increased amount of assets available for investment by the Insurance Investment Companies. This may benefit variable contract owners by promoting economies of scale, by reducing risk through greater diversification due to increased money in the Insurance Investment Companies, or by making the addition of new Insurance Funds more feasible.
Applicants agree that the order granting the requested relief shall be subject to the following conditions:
1. A majority of the Board of Trustees or Board of Directors (“Board”) of each Insurance Investment Company shall consist of persons who are not “interested persons” of the Insurance Investment Company, as defined by section 2(a)(19) of the 1940 Act and the rules thereunder and as modified by any applicable orders of the Commission (“Independent Board Members”), except that if this condition is not met by reason of the death, disqualification, or bona fide resignation of any trustee or director, then the operation of this condition shall be suspended: (i) For a period of 90 days if the vacancy or vacancies may be filled by the Board; (ii) for a period of 150 days if a vote of shareholders is required to fill the vacancy or vacancies; or (iii) for such longer period as the Commission may prescribe by order upon application or by future rule.
2. Each Board will monitor the respective Insurance Investment Company for the existence of any material irreconcilable conflict among and between the interests of the contract owners of all Separate Accounts, participants of Qualified Plans, the Manager or General Accounts investing in that Insurance Investment Company, and determine what action, if any, should be taken in response to such conflicts. A material irreconcilable conflict may arise for a variety of reasons, including: (i) An action by any state insurance regulatory authority; (ii) a change in applicable Federal or State insurance, tax, or securities laws or regulations, or a public ruling, private letter ruling, no-action or interpretative letter, or any similar action by insurance, tax, or securities regulatory authorities; (iii) an administrative or judicial decision in any relevant proceeding; (iv) the manner in which the investments of any Insurance Fund are being managed; (v) a difference in voting instructions given by variable annuity contract owners, variable life insurance contract owners, Plan trustees, or Plan participants; (vi) a decision by a Participating Insurance Company to disregard the voting instructions of contract owners; or (vii) if applicable, a decision by a Qualified Plan to disregard the voting instructions of Plan participants.
3. Any Qualified Plan that executes a fund participation agreement upon becoming an owner of 10 percent or more of the assets of an Insurance Investment Company (“Participating Qualified Plan”), any Participating Insurance Company (on their own behalf, as well as by virtue of any investment of general account assets in all Insurance Investment Companies), and the Manager (collectively, “Participants”) will report any potential or existing conflicts to the Board. Each of the Participants will be responsible for assisting the Board in carrying out the Board's responsibilities under these conditions by providing the Board with all information reasonably necessary for the Board to consider any issues raised. This includes, but is not limited to, an obligation by each Participating Insurance Company to inform the Board whenever contract owner voting instructions are disregarded and, if pass-through voting is applicable, an obligation by each Qualified Plan that is a Participant to inform the Board whenever it has determined to disregard Plan participant voting instructions. The responsibility to report such information and conflicts and to assist the Board will be a contractual obligation of all Participating Insurance Companies and Qualified Plans investing in an Insurance Investment Company under their agreements governing participation in the Insurance Investment Company, and such agreements shall provide that such responsibilities will be carried out with a view only to the interests of the contract owners or, if applicable, Plan participants.
4. If it is determined by a majority of the Board of an Insurance Investment Company, or a majority of its Independent Board Members, that a material irreconcilable conflict exists, the relevant Participating Insurance Companies and Participating Qualified Plans shall, at their expense or, at the discretion of a Manager to an Insurance Investment Company, at that Manager's expense, and to the extent reasonably practicable (as determined by a majority of the Independent Board Members), take whatever steps are necessary to remedy or eliminate the material irreconcilable conflict, up to and including: (i) Withdrawing the assets allocable to some or all of the Separate
For the purposes of this Condition (4), a majority of the Independent Board Members shall determine whether or not any proposed action adequately remedies any material irreconcilable conflict, but in no event will the Insurance Investment Company or its Manager be required to establish a new funding medium for any variable contract. No Participating Insurance Company shall be required by this Condition (4) to establish a new funding medium for any variable contract if an offer to do so has been declined by vote of a majority of contract owners materially adversely affected by the material irreconcilable conflict. No Qualified Plan shall be required by this Condition (4) to establish a new funding medium for such Qualified Plan if (i) a majority of Plan participants materially and adversely affected by the material irreconcilable conflict vote to decline such offer or (ii) pursuant to governing Plan documents and applicable law, the Plan makes such decision without Plan participant vote.
5. The Board's determination of the existence of a material irreconcilable conflict and its implications shall be made known promptly in writing to all Participants.
6. Participating Insurance Companies will provide pass-through voting privileges to all variable contract owners whose contracts are funded through a registered Separate Account for so long as the Commission continues to interpret the 1940 Act as requiring pass-through voting privileges for variable contract owners. Accordingly, such Participating Insurance Companies will vote shares of each Insurance Fund held in their registered Separate Accounts in a manner consistent with voting instructions timely received from such contract owners. Each Participating Insurance Company will vote shares of each Insurance Fund held in its registered Separate Accounts for which no timely voting instructions are received, as well as shares held by its General Accounts, in the same proportion as those shares for which voting instructions are received. Participating Insurance Companies shall be responsible for assuring that each of their registered Separate Accounts investing in an Insurance Investment Company calculates voting privileges in a manner consistent with all other Participating Insurance Companies. The obligation to vote an Insurance Investment Company's shares and to calculate voting privileges in a manner consistent with all other registered Separate Accounts investing in an Insurance Investment Company shall be a contractual obligation of all Participating Insurance Companies under their agreements governing participation in the Insurance Investment Company. Each Plan will vote as required by applicable law and governing Plan documents.
7. An Insurance Investment Company will notify all Participating Insurance Companies and Qualified Plans that disclosure regarding potential risks of mixed and shared funding may be appropriate in prospectuses for any of the Separate Accounts and in Plan documents. Each Insurance Investment Company will disclose in its prospectus that: (i) Shares of the Insurance Investment Company are offered to insurance company Separate Accounts that fund both variable annuity and variable life insurance contracts, and to Qualified Plans and General Accounts; (ii) due to differences of tax treatment or other considerations, the interests of various contract owners participating in the Insurance Investment Company and the interests of Qualified Plans or General Accounts investing in the Insurance Investment Company might at some time be in conflict; and (iii) the Board will monitor the Insurance Investment Company for any material conflicts and determine what action, if any, should be taken.
8. All reports received by the Board of potential or existing conflicts, and all Board action with regard to determining the existence of a conflict, notifying Participants of a conflict, and determining whether any proposed action adequately remedies a conflict, will be properly recorded in the minutes of the Board or other appropriate records, and such minutes or other records shall be made available to the Commission upon request.
9. If and to the extent rule 6e-2 and rule 6e-3(T) under the 1940 Act are amended, or proposed rule 6e-3 is adopted under the 1940 Act, to provide exemptive relief from any provision of the 1940 Act or the rules thereunder with respect to mixed or shared funding on terms and conditions materially different from any exemptions granted in the order requested in this Application, then each Insurance Investment Company and/or the Participating Insurance Companies, as appropriate, shall take such steps as may be necessary to comply with rule 6e-2 and rule 6e-3(T), as amended, and rule 6e-3, as adopted, to the extent such rules are applicable.
10. Each Insurance Investment Company will comply with all provisions of the 1940 Act requiring voting by shareholders (which, for these purposes, shall be the persons having a voting interest in the shares of that Insurance Investment Company), and in particular each Insurance Investment Company will either provide for annual
11. As long as the Commission continues to interpret the 1940 Act as requiring pass-through voting privileges for variable contract owners, the Managers will vote their shares in the same proportion as all contract owners having voting rights with respect to the relevant Insurance Investment Company; provided, however, that the Manager or any General Account shall vote their shares in such other manner as may be required by the Commission or its staff.
12. The Participants shall at least annually submit to the Board of an Insurance Investment Company such reports, materials or data as the Board may reasonably request so that it may fully carry out the obligations imposed upon it by the conditions contained in this Application and said reports, materials and data shall be submitted more frequently, if deemed appropriate, by the Board. The obligations of Participating Insurance Companies and Participating Qualified Plans to provide these reports, materials and data to the Board of the Insurance Investment Company when it so reasonably requests, shall be a contractual obligation of the Participating Insurance Companies and Participating Qualified Plans under their agreements governing participation in each Insurance Investment Company.
13. If a Qualified Plan should become an owner of 10 percent or more of the assets of an Insurance Investment Company, the Insurance Investment Company shall require such Plan to execute a participation agreement with such Insurance Investment Company which includes the conditions set forth herein to the extent applicable. A Qualified Plan will execute an application containing an acknowledgment of this condition upon such Plan's initial purchase of the shares of any Insurance Investment Company.
For the reasons and upon the facts summarized above, Applicants assert that the requested exemptions are appropriate in the public interest and consistent with the protection of investors and the purposes fairly intended by the policy and provisions of the 1940 Act.
For the Commission, by the Division of Investment Management, pursuant to delegated authority.
Pursuant to section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The Commission is publishing this notice to solicit comments on the proposed rule change from interested persons.
The NYSE proposes to list and trade 7
In its filing with the Commission, the NYSE 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. NYSE has prepared summaries, set forth in Sections A, B, and C below, of the most significant aspects of such statements.
Under Section 703.19 of the Listed Company Manual (“Manual”), the Exchange may approve for listing and trading securities not otherwise covered by the criteria of Sections 1 and 7 of the Manual, provided the issue is suited for auction market trading.
The Units are being offered pursuant to an exchange offer, the full terms of which are set out in the Registration Statement.
Each Purchase Contract obligates the holder of a Unit to purchase from PPL, no later than May 18, 2004 (the
From the date of issuance until the Contract Settlement Date, the Notes will constitute subordinated obligations of PPL Capital and will be guaranteed on a subordinated basis by PPL. On or after Contract Settlement Date, the Notes will constitute senior obligations of PPL Capital and will be guaranteed on a senior basis by PPL. Prior to the Contract Settlement Date, the ownership interest in the Notes will be pledged to secure the Unit holders' obligation to purchase PPL's common stock under the purchase contract. PPL has appointed a remarketing agent to remarket, or sell on behalf of Unit holders, the Notes to third party investors on a date (the “Remarketing Date”) just prior to the Contract Settlement Date. Unit holders may choose to opt out of the remarketing of the Notes to third party investors to satisfy their payment obligations on the Contract Settlement Date. A Unit holder who opts out of the remarketing of the Notes would be required to settle each Purchase Contract for $25.00 in cash.
PPL Capital will also pay Unit holders interest at a rate of 7.29% per year on the principal amount of the Note. If there is a successful remarketing of the Notes, the interest rate will be reset and may be greater or less than 7.29% per year. PPL unconditionally guarantees the payment of principal and interest on the Notes of PPL Capital.
The Units represent both an equity and fixed income investment in PPL. The equity investment is in the form of the Purchase Contract, which, unless earlier terminated, requires a Unit holder to purchase a variable number of shares of PPL common stock. The fixed income investment is in the form of a trust preferred security that represents an undivided beneficial interest in the subordinated Notes of PPL Capital which are guaranteed on a subordinated basis by PPL.
The Units will conform to the issuer listing criteria under Section 703.19 of the Manual and be subject to the relevant continuing listing criteria under Section 801 and 802 of the Manual.
The Exchange's existing equity trading rules apply to trading of the Units. The Exchange will also have in place certain other requirements to provide additional investor protection. First, pursuant to Exchange Rule 405, the Exchange will impose a duty of due diligence on its members and member firms to learn the essential facts relating to every customer prior to trading the Units.
The Exchange represents that its surveillance procedures are adequate to properly monitor the trading of the Units. Specifically, the Exchange will rely on its existing surveillance procedures governing equity, which have been deemed adequate under the Act.
The Exchange believes that the proposed rule change is consistent with section 6(b) of the Act,
The Exchange does not believe that the proposed rule change will impose any burden on competition.
The Exchange has neither solicited nor received written comments on the proposed rule change.
NYSE requested that the Commission find good cause for approving the proposal to accommodate the listing of the Units by December 18, 2003, the expiration date of the exchange offer pursuant to which the Units are being offered. The Commission, however, does not find good cause to accelerate approval of this proposal.
Within 35 days of the date of publication of this notice in the
(A) By order approve the 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. 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.
Pursuant to section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The Exchange proposes to extend its pilot program that amends NYSE Rule 36 (Communication Between Exchange and Members' Offices) to allow a Floor broker's use of an Exchange authorized and provided portable telephone on the Exchange Floor upon approval by the Exchange (“Pilot”) for an additional six months to expire on June 16, 2004. The Pilot is currently in effect on a six-month pilot basis and set to expire on December 16, 2003.
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in Sections A, B, and C below, of the most significant aspects of such statements.
In the Original Order,
NYSE Rule 36 (Communications Between Exchange and Members' Offices) governs the establishment of telephone or electronic communications between the Exchange's Trading Floor and any other location. Prior to the Pilot, NYSE Rule 36.20 prohibited the use of portable telephone communications between the Trading Floor and any off-Floor location, and the only way that voice communication could be conducted by Floor brokers
The Exchange is proposing to extend the Pilot for an additional six months, expiring on June 16, 2004. The Pilot would amend NYSE Rule 36 to permit a Floor broker to use an Exchange authorized and issued portable telephone on the Floor. Thus, with the approval of the Exchange, a Floor broker would be permitted to engage in direct voice communication from the point of sale to an off-Floor location, such as a member firm's trading desk or the office of one of the broker's customers. Such communications would permit the broker to accept orders consistent with Exchange rules, provide status and oral execution reports as to orders previously received, as well as “market look” observations as have historically been routinely transmitted from a broker's booth location. Use of a portable telephone on the Exchange Floor other than one authorized and issued by the Exchange would continue to be prohibited.
Furthermore, both incoming and outgoing calls would continue to be allowed, provided the requirements of all other Exchange rules have been met. A broker would not be permitted to represent and execute any order received as a result of such voice communication unless the order was first properly recorded by the member and entered into the Exchange's Front End Systemic Capture (“FESC”) electronic database.
As noted above, under the policy prior to the Pilot, an off-Floor customer could communicate with a broker in a trading crowd only in an indirect way by calling a broker's booth and using the booth clerk as an intermediary. The Exchange believes that the extension of the Pilot would enable the Exchange to provide more direct, efficient access to its trading crowds and customers, increase the speed of transmittal of orders and the execution of trades, and provide an enhanced level of service to customers in an increasingly competitive environment.
The Exchange also notes that specialists are subject to separate restrictions in NYSE Rule 36 on their ability to engage in voice communications from the specialist post to an off-Floor location.
Since the Pilot's inception, the Exchange represents that there have been approximately 800 portable phone subscribers. In addition, with regard to portable phone usage, for a sample week of July 28, 2003 through August 1, 2003, an average of 19,611 calls per day were originated from portable phones, and an average of 3218 calls per day were received on portable phones. Of the calls originated from portable phones, an average of 18,116 calls per day were internal calls to the booth, and 1495 calls per day were external calls. Thus, over 90% of the calls that originated from portable phones were internal calls to the booth. With regard to received calls, of the 3218 average calls per day received, an average of 1351 calls per day were external calls, and an average of 1867 calls per day were internal calls received from the booth. Thus, approximately 58% of all received calls were internally generated, and 42% were calls from the outside.
Therefore, the Exchange believes that the Pilot appears to be successful in that there is a reasonable degree of usage of portable phones, but as noted above, there have been no regulatory, administrative, or other technical problems associated with their usage. The Exchange believes that the Pilot appears to facilitate communication on the Floor without any corresponding drawbacks. Accordingly, the Exchange believes it is appropriate to extend the Pilot for an additional six months, expiring on June 16, 2004.
The Exchange believes that the proposed rule change is consistent with section 6(b) of the Act
The Exchange does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act.
The Exchange has neither solicited nor received written comments on the proposed rule change.
Because the proposed rule change (1) does not significantly affect the protection of investors or the public interest; (2) does not impose any significant burden on competition; and (3) does not become operative for 30 days from the date of filing, or such shorter time as the Commission may designate if consistent with the protection of investors and the public interest, and the Exchange provided the Commission with written notice of its intent to file the proposed rule change at least five days prior to the filing date, the proposed rule change has become effective pursuant to section 19(b)(3)(A) of the Act,
The Exchange requests that the Commission waive the 30-day delayed operative date of Rule 19b-4(f)(6)(iii).
The Commission believes that the use of Exchange authorized and issued portable telephones would allow the Exchange to have access to all phone records. This ability to track phone calls, along with the data captured in FESC, should aid the Exchange in surveilling for compliance with Exchange rules. In this regard, the Commission notes that proper surveillance is an essential component of any telephone access policy to an Exchange Trading Floor. Surveillance procedures should help to ensure that Floor brokers who are interacting with the public on portable phones are authorized to do so, as NYSE Rule 36 will require,
Interested persons are invited to submit written data, views and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Persons making written submissions should file six copies thereof with the Secretary, Securities and Exchange Commission, 450 Fifth Street, NW., Washington, DC 20549-0609. 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.
Pursuant to section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The Phlx proposes to amend its schedule of dues, fees and charges to provide that fees, dues, discounts, credits and charges that apply to Phlx remote competing specialists will also be applicable to Phlx remote primary specialists.
In its filing with the Commission, the Phlx 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 Phlx has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
On August 6, 2002, in connection with the planned commencement of the Exchange's remote competing specialist program, the Exchange amended its fee schedule to specify fees, dues, discounts, credits and charges applicable to Phlx remote competing specialists.
The Commission recently approved a proposed rule change to expand Phlx's remote specialist program to include remote primary specialists in addition to remote competing specialists.
The Exchange believes that its proposal to amend its schedule of dues, fees and charges is consistent with section 6(b) of the Act
The Exchange does not believe that the proposed rule change will impose any inappropriate burden on competition.
No written comments were either solicited or received.
The foregoing proposed rule change has been designated as a fee change pursuant to section 19(b)(3)(A)(ii) of the Act
Interested persons are invited to submit written data, views and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Persons making written submissions should file six copies thereof with the Secretary, Securities and Exchange Commission, 450 Fifth Street, NW., Washington, DC 20549-0609. 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.
Pursuant to section 19(b)(7) of the Securities Exchange Act of 1934 (“Act”),
OneChicago also has filed the proposed rule change with the Commodity Futures Trading Commission (“CFTC”). OneChicago filed a written certification with the CFTC under section 5c(c) of the Commodity Exchange Act
OneChicago proposes to add new OneChicago Rule 616, attached hereto as Exhibit 4, to create a safe harbor for OneChicago market makers so that they may engage in Other Business Activities described below which may result in inadvertent cross trades without violating OneChicago Rule 604, provided that OneChicago confirms that each such market maker has implemented and maintains “Chinese Wall” procedures in conformance with the Rule. The text of the proposed rule change appears below. New text is in
OneChicago has prepared statements concerning the purpose of, and basis for, the proposed rule change, burdens on competition, and comments received from members, participants, and others. The text of these statements may be examined at the places specified in Item IV below. These statements are set forth in Sections A, B, and C below.
OneChicago proposes to add new OneChicago Rule 616 to provide a safe harbor to market makers for inadvertent cross trades that may occur between their market-making operations in OneChicago's products and their “Other Business Activities” (as defined below) on the condition that OneChicago confirms that each such market maker has implemented and maintains “Chinese Wall” procedures in conformance with OneChicago Rule 616. For purposes of this Rule, “Other Business Activities” means (1) conducting an investment or banking or public securities business; (2) making markets in the securities underlying the security futures or options on the securities or indexes underlying the security futures in which the market maker makes markets; or (3) entering agency orders or proprietary orders (other than market-making transactions for OneChicago products) into the OneChicago system. OneChicago Rule 616 would also permit members to conduct proprietary trading in the same physical space as their market-making activities, but only in security futures products that are not within their market-making assignments.
To qualify for the protection afforded by the OneChicago Rule 616 safe harbor, a OneChicago market maker must meet the following conditions: Have an organizational structure that has physical separation between the persons engaged in its market making activities on the Exchange and the persons conducting its “Other Business Activities”; implement “Chinese Wall” procedures to prevent the use of material non-public, corporate or market information in possession of persons on one side of the wall from divulging such information to persons on the other side of the wall; and restrict, with some exceptions,
Under paragraph (f) of proposed OneChicago Rule 616, an OneChicago market maker would not be in violation of OneChicago Rules 604, if the Exchange market maker functions as a non-market maker Exchange member exclusively in contracts in which such member is not appointed as a market maker pursuant to OneChicago Rule 515(n) and such member enters orders only for its proprietary account or the accounts of its affiliated entities.
OneChicago believes that the proposed rule change is consistent with section 6(b)(5) of the Act
OneChicago believes that the proposed new rule will promote competition by offering a safe harbor for market makers executing inadvertent cross trades on the Exchange and thereby removing a significant deterrent to potential market makers for the Exchange's products.
Comments on the proposed rule change have not been solicited and none have been received.
The proposed rule change has become effective on December 8, 2003. Within 60 days of the date of effectiveness of the proposed rule change, the Commission, after consultation with the CFTC, may summarily abrogate the proposed rule change and require that the proposed rule change be refiled in accordance with the provisions of section 19(b)(1) of the Act.
Interested persons are invited to submit written data, views and arguments concerning the foregoing, including whether the proposed rule change conflicts with the Act. Persons making written submissions should file nine copies of the submission with the Secretary, Securities and Exchange Commission, 450 Fifth Street, NW., Washington, DC 20549-0609. Comments also may be submitted electronically to the following e-mail address:
For the Commission, by the Division of Market Regulation, pursuant to delegated authority.
A meeting of the U.S. Advisory Commission on Public Diplomacy will be held at the American Embassy in London, England on January 9, 2004. The Commission will examine and approve public diplomacy subjects for exploration in Fiscal Year 2004.
The Commission was reauthorized pursuant to Pub. L. 106-113 (H.R. 3194, Consolidated Appropriations Act, 2000).
The U.S. Advisory Commission on Public Diplomacy is a bipartisan Presidentially appointed panel created by Congress in 1948 to provide oversight of U.S. Government activities intended to understand, inform and influence foreign publics. The Commission reports its findings and recommendations to the President, the Congress and the Secretary of State and the American people. Current Commission members include Barbara M. Barrett of Arizona, who is the Chairman; Harold C. Pachios of Maine; Ambassador Penne Percy Korth of Washington, DC; Ambassador Elizabeth F. Bagley of Washington, DC; Charles “Tre” Evers III of Florida; Jay T. Snyder of New York; and Maria Sophia Aguirre of Washington, DC.
For more information, please contact Matt J. Lauer at (202) 203-7880.
Office of the United States Trade Representative.
Determination under Trade Agreements Act of 1979.
January 1, 2004.
Jean Heilman Grier, Senior Procurement Negotiator, Office of the United States Trade Representative, (202) 395-9476, or Theodore R. Posner, Assistant General Counsel, Office of the United States Trade Representative, (202) 395-9512.
On June 6, 2003, the United State and Chile entered into the United States-Chile Free Trade Agreement (“the USCFTA”). Chapter 9 of the USCFTA sets forth certain obligations with respect to government procurement of goods and services, as specified in Annex 9.1 of the USCFTA.
On September 3, 2003, the President signed into law the United States-Chile Free Trade Agreement Implementation Act (“the USCFTA Act”) (Pub. L. No. 108-77, 117 Stat. 909) (19 U.S.C. 3805 note). In section 101(a) of the USCFTA Act, the Congress approved the USCFTA and the statement of administrative action proposed to implement the USCFTA that the President submitted to the Congress.
Section 1-201 of Executive Order 12260 of December 31, 1980 (46 FR 1653) delegated the functions of the President under sections 301 and 302 of the Trade Agreements Act of 1979 (“the Trade Agreements Act”) (19 U.S.C. 2511, 2512) to the United States Trade Representative.
Now, therefore, I, Robert B. Zoellick, United States Trade Representative, in conformity with the provisions of sections 301 and 302 of the Trade Agreements Act, and Executive Order 12260, and in order to carry out U.S. obligations under Chapter 9 of the USCFTA, do hereby determine effective on January 1, 2004, that:
1. Chile is a country, other than a major industrial country, which, pursuant to the USCFTA, will provide appropriate reciprocal competitive government procurement opportunities to United States products and suppliers of such products. In accordance with section 301(b)(3) of the Trade Agreements Act, Chile is so designated for purposes of section 301(a) of the Trade Agreements Act.
2. With respect to eligible products of Chile (
(A) To United States products and suppliers of such products; or
(B) To eligible products of another foreign country or instrumentality which is party to the Agreement on Government Procurement referred to in section 101(3)(17) of the Uruguay Round Agreements Act (19 U.S.C. 3511(d)(17)) and suppliers of such products, shall be waived.
This waiver shall be applied by all entities listed in the Schedule of the United States to Section A of Annex 9.1 of the USCFTA, and in list A of the Schedule of the United States to Section C of Annex 9.1 of the USCFTA.
3. The designation in paragraph 1 and the waiver in paragraph 2 are subject to modification or withdrawal by the United States Trade Representative.
Office of the United States Trade Representative.
Determination under Trade Agreements Act of 1979.
January 1, 2004.
Jean Heilman Grier, Senior Procurement Negotiator, Office of the United States Trade Representative, (202) 395-9476, or Theodore R. Posner, Assistant General Counsel, Office of the United States Trade Representative, (202) 395-9512.
On May 6, 2003, the United States and Singapore entered into the United States-Singapore Free Trade Agreement (“USSFTA”). Chapter 13 of the USSFTA sets forth certain obligations with respect to government procurement of goods and services, as specified in Annex 13A of the USSFTA.
On September 3, 2003, the President signed into law the United States-Singapore Free Trade Agreement Implementation Act (“the USSFTA ACT”) (Pub. L. No. 108-78, 117 Stat. 948) (19 U.S.C. 3805 note). In section 101(a) of the USSFTA Act, the Congress approved the USSFTA and the statement of administrative action proposed to implement the USSFTA that the President submitted to the Congress.
Section 1-201 of Executive Order 12260 of December 31, 1980 (46 FR 1653) delegates the functions of the President under Sections 301 and 302 of the Trade Agreements Act of 1979 (“the Trade Agreements Act”) (19 U.S.C. 2511, 2512) to the United States Trade Representative.
On January 1, 1981, acting pursuant to Executive Order 12260, the Acting United States Trade Representative designated Singapore for purposes of section 301(a) of the Trade Agreements Act, on the basis of Singapore's status as a party to the predecessor to the World Trade Organization Agreement on Government Procurement. Singapore is a party to World Trade Organization Agreement on Government Procurement (“the GPA”) and continues to be designated for purposes of section 301(a) of the Trade Agreements Act.
Under the USSFTA, Singapore will provide reciprocal competitive government procurement opportunities to United States products and suppliers of such products, which are greater than the reciprocal competitive government procurement opportunities Singapore provides to United States products and suppliers of such products under the GPA. Singapore's commitment to provide such reciprocal competitive procurement opportunities constitutes an independent basis for its designation for purposes of section 301(a) of the Trade Agreements Act.
Now, therefore, I, Robert B. Zoellick, United States Trade Representative, in conformity with the provisions of sections 301 and 302 of the Trade Agreements Act, and Executive Order 12260, and in order to carry out U.S. obligations under Chapter 13 of the USSFTA, do hereby determine, effective on January 1, 2004, that:
1. Singapore is a country, other than a major industrial country, which, pursuant to the USSFTA, will provide appropriate reciprocal competitive government procurement opportunities to United States products and suppliers of such products. In accordance with section 301(b)(3) of the Trade Agreements Act, Singapore is so designated for purposes of section 301(a) of the Trade Agreements Act.
2. With respect to eligible products of Singapore (
(A) To United States products and suppliers of such products; or
(B) To eligible products of another foreign country or instrumentality which is a party to the GPA and suppliers of such products, shall be waived.
This waiver shall be applied by all entities referred to in Schedules 1.A and 1.C of the United States Annex 13A of the USSFTA.
3. The designation in paragraph 1 and the waiver in paragraph 2 are subject to modification or withdrawal by the United States Trade Representative.
Office of the United States Trade Representative.
Determination of procurement thresholds under the WTO Government Procurement Agreement and Chapter 10 of the North American Free Trade Agreement.
January 1, 2004.
Jean Heilman Grier, Senior Procurement Negotiator, Office of the United States Trade Representative, (202) 395-9476.
Executive Order 12260 requires the United States Trade Representative to set the U.S. dollar thresholds for application of Title III of the Trade Agreements Act of 1979, as amended (19 U.S.C. 2511
Now, therefore, I, Robert B. Zoellick, United States Trade Representative, in conformity with the provisions of Executive Order 12260, and in order to carry out U.S. trade agreement obligations under the WTO Government Procurement Agreement and Chapter 10 of NAFTA, do hereby determine, effective on January 1, 2004:
For the calendar years 2004-2005, the thresholds are as follows:
A. Central Government Entities listed in U.S. Annex 1:
B. Sub-Central Government Entities listed in U.S. Annex 2:
C. Other Entities listed in U.S. Annex 3:
A. Federal Government Entities listed in the U.S. Schedule to Annex 1001.1a-1:
B. Government Enterprises listed in the U.S. Schedule to Annex 1001.1a-2:
Federal Aviation Administration (FAA) DOT.
Notice.
In compliance with the Paperwork Reduction Act (44 U.S.C. 33501
Comments must be received on or before February 17, 2004.
Comments may be mailed or delivered to the FAA at the following address: Ms. Judy Street, Room 613, Federal Aviation Administration, Standards and Information Division, AFP-100, 800 Independence Ave., SW., Washington, DC 20591.
Ms. Judy Street at the above address or on (202) 267-9895.
In accordance with the Paperwork Reduction Act of 1995, an agency may not conduct or sponsor, and a person is not required to respond to a collection of information unless it displays a currently valid OMB control number. Therefore, the FAA solicits comments on the following current collections of information in order to evaluate the necessity of the collection, the accuracy of the agency's estimate of the burden, the quality, utility, and clarity of the information to be collected, and possible ways to minimize the burden of the collection in preparation for submission to renew the clearances of the following information collections.
1. 2120-0001: Notice of Proposed Construction or Alteration, Notice of Actual Construction or Alteration, and Project Status Report. Federal regulations require that all persons report proposed or actual construction and alteration of structures affecting air safety. The reporting requirements as prescribed in 14 CFR part 77 affect any persons or businesses planning to construct or alter a structure that might affect air safety. The current estimated annual reporting burden is 15,500 hours.
2. 2120-0568: Flight Standards Customer Satisfaction Survey. The Flight Standards Service conducts surveys requiring that every element have contact with their customers to assure that their needs are being met and that service is improved. The respondents are air operators, air agencies, and airmen. The current estimated annual reporting burden is 6,667 hours.
Federal Aviation Administration (FAA), DoT.
Notice.
In compliance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Comments must be submitted on or before January 20, 2004. A comment to OMB is most effective if OMB receives it within 30 days of publication.
Judy Street on (202) 267-9895.
Send comments to the Office of Information and Regulatory Affairs, Office of Management and Budget, 725 17th Street, NW., Washington, DC 20503, Attention: FAA Desk Officer. Comments are invited on: Whether the proposed collection of information is necessary for the proper performance of the functions of the Department, including whether the information will have practical utility; the accuracy of the Department's estimates of the burden of the proposed information collection; ways to enhance the quality, utility and clarity of the information to be collected; and ways to minimize the burden of the collection of information on respondents, including the use of automated collection techniques or other forms of information technology.
Federal Aviation Administration (FAA), DOT.
Notice of disposition of prior petition.
Pursuant to FAA's rulemaking provisions governing the application, processing, and disposition of petitions for exemption part 11 of Title 14, Code of Federal Regulations (14 CFR), this notice contains the disposition of a certain petition previously received. The purpose of this notice is to improve the public's awareness of, and participation in, this aspect of FAA's regulatory activities. Neither publication of this notice nor the inclusion or omission of information in the summary is intended to affect the legal status of any petition or its final disposition.
John F. Linsenmeyer, Office of Rulemaking (ARM-1), Federal Aviation Administration, 800 Independence Avenue, SW., Washington, DC 20591. Tel. (202) 267-5174.
This notice is published pursuant to 14 CFR 11.85 and 11.91.
Federal Aviation Administration (FAA), DOT.
Notice of public workshop.
The FAA intends to hold two informal airspace workshops to solicit comments regarding operational and environmental concerns from airspace users and others concerning traffic flows for aircraft operating to Runway 24R and Runway 24L at Ted Stevens Anchorage International Airport (ANC). The workshops will be presented on January 20 and January 22, 2004. The purpose of these workshops is to provide interested parties an opportunity to comment on the proposed conversion of a random flight track into a published Charted Visual Flight Procedure (CVFP) to Runway 24R and Runway 24L.
Robert van Haastert, Operations Branch, AAL-535, Federal Aviation Administration, 222 West 7th Avenue, Box 14, Anchorage, AK 99513-7587; telephone number (907) 271-5863; fax: (907) 271-2850; email:
Due to mountainous terrain within ten miles east of the ANC, there are no instrument approaches to Runways 24R or 24L. When wind conditions dictate the use of these runways, the only option available for Instrument Flight Rules (IFR) arrivals is a visual approach. Since aircraft on a visual approach are not restricted to a specific route and since high minimum vectoring altitudes prohibit giving subsequent aircraft an extended downwind leg, excessive spacing must be used to ensure aircraft separation.
The establishment of the CVFPs to Runways 24R and 24L would keep aircraft as close to ANC as possible and within Class C airspace to avoid the Seward Highway Segment by heavily used Visual Flight Rules (VFR) aircraft.
The fleet mix and number of aircraft into ANC would not change. The percentage of time Runway 24 would be utilized would also not change. Additionally, the CVFPs would result in a slight average increase in aircraft altitudes over the proposed flight track.
This workshop is intended to involve the community in our decision making process. The workshop will be set up in an open house fashion with stations attended by FAA representatives. These stations are intended to provide information and collect comments on the development of new Charted Visual Flight Procedures for Runway 24R and Runway 24L.
(a) The workshop will be informal in nature and will be conducted by representatives of the FAA Alaskan Region.
(b) The workshop will be open to all persons on a space-available basis. Every effort was made to provide a workshop site with sufficient capacity for expected participation. There will be no admission fee nor other charges to attend and participate.
(c) Representatives of Ted Stevens Anchorage International Airport Traffic Control Tower and Anchorage Terminal Radar Approach Control will be present to discuss procedural concepts. FAA Air Traffic Division representatives will be present to discuss environmental concerns.
(d) Any person who wishes to submit a position paper to FAA representatives pertinent to the establishment of Charted Visual Flight Procedures may do so.
(e) The workshop will not be formally recorded. However, informal tape recordings may be made to ensure that each respondent's comments are noted accurately.
(f) An official verbatim transcript or minutes of the informal airspace workshop will not be made. However, a list of the attendees, written statements received from attendees during and after the workshop and a digest of discussions during the workshop will be included in the administrative record for the project.
(g) Every reasonable effort will be made to hear the concerns of interested persons consistent with a reasonable closing time for the workshop.
Maritime Rail, LLC (Maritime Rail), a noncarrier, has filed a verified notice of exemption under 49 CFR 1150.31 to lease and operate certain railroad properties totaling about 3,500 track feet in length. The tracks, which extend beyond a point of connection with a Consolidated Rail Corporation branch line known as Meadows Industrial Track No. 1, are identified on the Exhibit A-1 map attached to the notice of exemption as: (1) An existing lead track that terminates in a track identified on the A-1 map as the “car loading track'; (2) an existing track identified on the A-1 map as the “10-car storage track'; (3) an existing track identified on the A-1 map as the “10-car capacity track for holding empties while loads are pulled'; and (4) a track identified on the A-1 map as the “10-car capacity loading track,” which does not now exist but which will be constructed at a later date (this track existed in the past, but it is now paved over). Maritime Rail certifies that its projected annual revenues will not exceed $5 million and that Maritime Rail will be a Class III rail carrier.
Maritime Rail states that it intends to commence operations sometime during the year 2004, specifically 6 to 8 months after the Army Corps of Engineers and the State of New Jersey award a joint contract for a demonstration project involving the dredging of the Passaic River and the treatment of the dredged material. By decision served December 8, 2003, the effective date of Maritime Rail's exemption was postponed to January 8, 2004. Therefore, the earliest the transaction can be consummated is January 8, 2004.
If the notice contains false or misleading information, the exemption is void
An original and 10 copies of all pleadings, referring to STB Finance Docket No. 34442, must be filed with the Surface Transportation Board, 1925 K Street, NW., Washington, DC 20423-0001. In addition, one copy of each pleading must be served on John D. Heffner, Esq., 1920 N Street, NW., Suite 800, Washington, DC 20036.
Board decisions and notices are available on our Web site at
By the Board, David M. Konschnik, Director, Office of Proceedings.
Internal Revenue Service (IRS), Treasury.
Notice and request for comments.
The Department of the Treasury, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995, Public Law 104-13 (44 U.S.C. 3506(c)(2)(A)). Currently, the IRS is soliciting comments concerning Form 976, Claim for Deficiency Dividends Deductions by a Personal Holding Company, Regulated Investment Company, or Real Estate Investment Trust.
Written comments should be received on or before February 17, 2004 to be assured of consideration.
Direct all written comments to Robert Coar, Internal Revenue Service, room 6411, 1111 Constitution Avenue, NW., Washington, DC 20224.
Requests for additional information or copies of the form and instructions should be directed to Allan Hopkins, at (202) 622-6665, or at Internal Revenue Service, room 6407, 1111 Constitution Avenue, NW., Washington, DC 20224. Or through the internet, at
The following paragraph applies to all of the collections of information covered by this notice:
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid OMB control number. Books or records relating to a collection of information must be retained as long as their contents may become material in the administration of any internal revenue law. Generally, tax returns and tax return information are confidential, as required by 26 U.S.C. 6103.
Internal Revenue Service (IRS), Treasury.
Notice and request for comments.
The Department of the Treasury, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995, Pub. L. 104-13 (44 U.S.C. 3506(c)(2)(A)). Currently, the IRS is soliciting comments concerning Form 973, Corporation Claim for Deduction for Consent Dividends.
Written comments should be received on or before February 17, 2004, to be assured of consideration.
Direct all written comments to Robert Coar, Internal Revenue Service, room 6411, 1111 Constitution Avenue NW., Washington, DC 20224.
Requests for additional information or copies of the form and instructions should be directed to Allan Hopkins, at (202) 622-6665, or at Internal Revenue Service, room 6407, 1111 Constitution Avenue, NW., Washington, DC 20224, or through the Internet, at
The following paragraph applies to all of the collections of information covered by this notice:
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid OMB control number. Books or records relating to a collection of information must be retained as long as their contents may become material in the administration of any internal revenue law. Generally, tax returns and tax return information are confidential, as required by 26 U.S.C. 6103.
Internal Revenue Service (IRS), Treasury.
Notice and request for comments.
The Department of the Treasury, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995, Pub. L. 104-13(44 U.S.C. 3506(c)(2)(A)). Currently, the IRS is soliciting comments concerning Form 1310, Statement of Person Claiming Refund Due A Deceased Taxpayer.
Written comments should be received on or before February 17, 2004, to be assured of consideration.
Direct all written comments to Robert Coar, Internal Revenue Service, room 6411, 1111 Constitution Avenue, NW., Washington, DC 20224.
Requests for additional information or copies of the form and instructions should be directed to Allan Hopkins, at (202) 622-6665, or at Internal Revenue Service, room 6407, 1111 Constitution Avenue, NW., Washington, DC 20224, or through the Internet, at
The following paragraph applies to all of the collections of information covered by this notice:
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid OMB control number. Books or records relating to a collection of information must be retained as long as their contents may become material in the administration of any internal revenue law. Generally, tax returns and tax return information are confidential, as required by 26 U.S.C. 6103.
Internal Revenue Service (IRS), Treasury.
Notice and request for comments.
The Department of the Treasury, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995, Pub. L. 104-13 (44 U.S.C. 3506(c)(2)(A)). Currently, the IRS is soliciting comments concerning an existing final regulation, LR-100-78 (T.D. 7918), Creditability of Foreign Taxes (§§ 1.901-2 and 1.901-2A).
Written comments should be received on or before February 17, 2004, to be assured of consideration.
Direct all written comments to Robert Coar, Internal Revenue Service, room 6411, 1111 Constitution Avenue, NW., Washington, DC 20224.
Requests for additional information or copies of the information collection should be directed to Allan Hopkins, at (202) 622-6665, or at Internal Revenue Service, room 6407, 1111 Constitution Avenue, NW., Washington, DC 20224, or through the Internet, at
The following paragraph applies to all of the collections of information covered by this notice:
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid OMB control number. Books or records relating to a collection of information must be retained as long as their contents may become material in the administration of any internal revenue law. Generally, tax returns and tax return information are confidential, as required by 26 U.S.C. 6103.
Internal Revenue Service (IRS), Treasury.
Notice and request for comments.
The Department of the Treasury, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995, Pub. L. 104-13 (44 U.S.C. 3506(c)(2)(A)). Currently, the IRS is soliciting comments concerning an existing final regulation, PS-80-93 (TD 8645), Rules for Certain Rental Real Estate Activities (Section 1.469-9).
Written comments should be received on or before February 17, 2004 to be assured of consideration.
Direct all written comments to Robert Coar, Internal Revenue Service, room 6411, 1111 Constitution Avenue NW., Washington, DC 20224.
Requests for additional information or copies of this regulation should be directed to Allan Hopkins, at (202) 622-6665, or at Internal Revenue Service, room 6407, 1111 Constitution Avenue NW., Washington, DC 20224, or through the Internet, at
The following paragraph applies to all of the collections of information covered by this notice.
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid OMB control number. Books or records relating to a collection of information must be retained as long as their contents may become material in the administration of any internal revenue law. Generally, tax returns and tax return information are confidential, as required by 26 U.S.C. 6103.
Internal Revenue Service (IRS) Treasury.
Notice.
An open meeting of the Taxpayer Advocacy Panel (TAP) Multilingual Initiative Issue (MLI) Committee will be conducted (via teleconference). The Taxpayer Advocacy Panel is soliciting public comments, ideas, and suggestions on improving customer service at the Internal Revenue Service.
The meeting will be held Friday, January 16, 2004 from 1 p.m. e.s.t. to 2 p.m. e.s.t.
Inez E. De Jesus at 1-888-912-1227, or 954-423-7977.
Notice is hereby given pursuant to section 10(a)(2) of the Federal Advisory Committee Act, 5 U.S.C. App. (1988) that an open meeting of the Taxpayer Advocacy Panel Multilingual Initiative Issue Committee will be held Friday, January 16, 2004 from 1 p.m. e.s.t. to 2 p.m. e.s.t. via a telephone conference call. Individual comments will be limited to 5 minutes. If you would like to have the TAP consider a written statement, please call 1-888-912-1227 or 954-423-7977, or write Inez E. De Jesus, TAP Office, 1000 South Pine Island Rd., Suite 340, Plantation, FL 33324. Due to limited conference lines, notification of intent to participate in the telephone conference call meeting must be made with Inez E. De Jesus. Ms. De Jesus can be reached at 1-888-912-1227 or 954-423-7977.
The agenda will include the following: Various IRS issues.
Internal Revenue Service (IRS), Treasury.
Notice.
An open meeting of the Area 3 Taxpayer Advocacy Panel will be conducted (via teleconference). The Taxpayer Advocacy Panel is soliciting public comments, ideas, and suggestions on improving customer service at the Internal Revenue Service.
The meeting will be held Friday, January 16, 2004 from 11 a.m. e.d.t to 12:30 p.m. e.d.t.
Sallie Chavez at 1-888-912-1227, or 954-423-7979.
Notice is hereby given pursuant to section 10(a)(2) of the Federal Advisory Committee Act, 5 U.S.C. App. (1988) that an open meeting of the Area 3 Taxpayer Advocacy Panel will be held Friday, January 16, 2004, from 11 a.m. e.s.t. to 12:30 p.m. e.s.t. via a telephone conference call. Individual comments will be limited to 5 minutes. If you would like to have the TAP consider a written statement, please call 1-888-912-1227 or 954-423-7979, or write Sallie Chavez, TAP Office, 1000 South Pine Island Rd., Suite 340, Plantation, FL 33324. Due to limited conference lines, notification of intent to participate in the telephone conference call meeting must be made with Sallie Chavez. Ms. Chavez can be reached at 1-888-912-1227 or 954-423-7979.
The agenda will include various IRS issues.
Internal Revenue Service (IRS), Treasury.
Cancellation notice.
The open meeting of the E-Filing Issue Committee has been cancelled.
The meeting was scheduled for Thursday, January 8, 2004, from 3 to 4 p.m., Eastern Time.
Mary Ann Delzer at 1-888-912-1227, or (414) 297-1604.
Notice is hereby given pursuant to section 10(a)(2) of the Federal Advisory Committee Act, 5 U.S.C. App. (1988) that the meeting of the Taxpayer Advocacy Panel, E-Filing Issue Committee scheduled for Thursday, January 8, 2004, from 3 to 4 p.m., Eastern standard time via a telephone conference call has been cancelled. You can submit written comments to the panel by faxing to (414) 297-1623, or by mail to Taxpayer Advocacy Panel, Stop 1006MIL, 310 West Wisconsin Avenue, Milwaukee, WI 53203-2221.
Notification of CCAC 2004 public meetings.
Pursuant to Public Law 108-15, Sec. 103, enacted on April 23, 2003, the Citizens Coinage Advisory Committee (CCAC) announces its meetings for the calendar year 2004. These meetings are open to the public. The purpose of the CCAC is to advise the Secretary of the Treasury on designs pertaining to the coinage of the United States and for other purposes.
Confirmation of the meetings, as well as meeting times and specific locations, will be announced at least two weeks prior to each meeting.
Public Law 108-15 established the CCAC to:
• Advise the Secretary of the Treasury on any theme or design proposals relating to circulating coinage, bullion coinage, Congressional gold medals, and national and other medals produced by the United States Mint;
• Advise the Secretary of the Treasury with regard to the events, persons, or places to be honored by the issuance of commemorative coins in each of the five calendar years succeeding the year in which a commemorative coin designation is made; and
• Make recommendations with respect to the mintage level for any commemorative coin recommended.
Melody Grimm; United States Mint Liaison to the CCAC; 801 Ninth Street, NW; Washington, DC 20220, or call 202-354-7606.
Any member of the public interested in submitting matters for the CCAC's consideration is invited to submit them by fax to 202-756-6424.
Pub. L. 108-15 (April 23, 2003).
Department of Veterans Affairs.
Notice.
In a companion document published as a final rule in this issue of the
The final rule includes methodologies for establishing charges for VA medical care and services. Information for calculating actual charge amounts at individual VA facilities using these methodologies is set forth in a notice published in the
When charges for medical care or services provided or furnished at VA expense by either VA or non-VA providers have not been established under other provisions of the final rule, then the alternate methods for determining VA's charges as set forth in the regulations at 38 CFR 17.101(a)(8) will apply.
Stephanie Mardon, Chief Business Office (168), Veterans Health Administration, Department of Veterans Affairs, 810 Vermont Avenue, NW., Washington, DC 20420, (202) 254-0362. (This is not a toll free number.)
The companion document published as a final rule in this issue of the
Acute inpatient facility charges by diagnosis related group (DRG) are set forth in Table A in the October 2 notice document. Those charges were based on 2003 DRGs. Table A in the October 2 notice document is being replaced by Table A in this notice, which provides updated charges based on 2004 DRGs.
Relative value units (RVUs) and other information for physician and other professional services are set forth in Table G in the October 2 notice document. In Table G, the absence of a modifier indicates that the code is a global service, the presence of modifier -26 indicates a professional component, and the presence of modifier -TC indicates a technical component. Upon further review, we have determined that several codes presented with -26 and -TC modifiers should instead be presented as global services. Table G in this notice lists the changes that we are making to Table G in the October 2 notice document.
Charges for durable medical equipment, drugs, injectables, and other medical services, items and supplies identified by HCPCS Level II Codes are set forth in Table K in the October 2 notice document. Table K contained 28 HCPCS Codes for which we listed the code but did not provide a charge. We are changing Table K to delete those codes that have no charge.
Table K in the October 2 notice document included 71 HCPCS codes for which we listed four versions of each code: new (modifier NU), rental (modifier RR), used (modifier UE), and global (no modifier). We are changing Table K to delete the non-modified versions of these codes and their associated charges.
Table K in the October 2 notice document included 21 HCPCS codes that included only new (modifier NU) and global (no modifier) versions. We are changing Table K to delete the NU-modified versions of these codes and their associated charges.
Table K in the October 2 notice document included 8 HCPCS codes associated with facial prostheses that included new impression (modifier KM), previous impression (modifier KN), and non-modified versions. We are changing Table K to delete the non-modified versions of these codes and their associated charges.
Table K in the October 2 notice document contained five ambiguous HCPCS code-modifier pairs that were presented with a rental (RR) modifier and also with no modifier. For these five codes (E0749, E0784, E1510, K0012, and K0195), we have assigned the non-modified version to be new, and have appended the NU modifier accordingly.
Table K in the October 2 notice document included only one entry for HCPCS code E0780, modified with NU. For purposes of clarity, we have changed this code to be non-modified.
Table K in the October 2 notice document included two charges for HCPCS code B9002, one for a new item (modifier NU) and one for rental of this equipment (modifier RR). We inadvertently omitted the charge for B9002-UE, for used equipment, and are now adding that code-modifier combination and its associated charge.
Table K in this notice lists the codes that we are adding, changing, and deleting versus Table K in the October 2 notice document.
The editions of the data sources used to establish the charges are set forth in Supplementary Table 1 in the October 2 notice document. We used updated data sources to establish the updated acute inpatient facility charges set forth in Table A in this notice. Accordingly, Supplementary Table 1 in this notice lists the updated data sources that we used to update our acute inpatient facility charges.
In Supplementary Table 3 in the October 2 notice document, we set forth the list of VA medical facility locations and their three-digit ZIP Codes. One of the provisions of the final rule is to designate each VA facility as either provider-based or non-provider-based. Accordingly, Supplementary Table 3 in the October 2 notice document is being replaced by Supplementary Table 3 in this notice, which is updated to add the current provider-based/non-provider-based designation of each VA facility, and to make additions, changes, and deletions to the list of VA facilities. Consistent with the final rule, subsequent updates to Supplementary Table 3 will be posted on the Internet site of the Veterans Health Administration Chief Business Office, currently at
Department of Veterans Affairs.
Notice with request for comments.
The Department of Veterans Affairs (VA) is revising VA Directive and Handbook 5021, Employee/Management Relations, dated April 15, 2002, to include the delegation from the Under Secretary for Health to the Deputy Under Secretary for Health the authority to accept, reject, or remand findings and decisions of Disciplinary Appeals Boards (DABs) involving major adverse actions taken against title 38 employees who have completed the probationary period and the delegation from the Under Secretary for Health to the Deputy Under Secretary for Health for Operations and Management the authority to make the final decision regarding the timeliness of appeals to a DAB. This notice announces that the revisions to the amended regulations are available for review and comment.
Comments must be received on or before December 19, 2003. The proposed effective date of these amendments is 30 days after publication of this notice.
Send written comments to: Director, Regulations Management (00REG1), Department of Veterans Affairs, 810 Vermont Avenue, NW., Washington, DC 20420.
Robert MacDonald, Employee Relations Team Leader, Department of Veterans Affairs, Office of Human Resources Management (051E), 810 Vermont Avenue, NW., Washington, DC 20420. Mr. MacDonald may be reached at (202) 273-9707.
The Under Secretary for Health has delegated to the Deputy Under Secretary for Health the authority to accept, reject, or remand findings and decisions of Disciplinary Appeals Boards (DAB) in connection with non-probationary title 38 employees' appeals of major adverse actions. The Under Secretary for Health has also delegated authority to the Deputy Under Secretary for Health for Operations and Management the authority to make the final decision regarding the timeliness of appeals to a DAB. These delegations will alleviate the need to convene a DAB to determine timeliness and provide more timely decisions of DAB findings.
1.
2.
b. 38 U.S.C. 501(a), 7421, 7461, 7462, 7464.
3.
b.
8. Formal Hearing.
b.
c.
d.
e.
f.
g.
(2) The employee and/or his/her representative shall be provided a copy of the transcript of the formal hearing after authentication.
9.
b.
(1) If any charge is sustained in whole or in part, the Board shall approve the action as imposed; approve the action with modification, reduction, or exception; or reverse the action.
(2) If none of the charges are sustained in whole or in part, the Board will reverse the decision.
c.
(1) However, if the Deputy Under Secretary for Health finds a decision of the Board to be clearly contrary to the evidence or unlawful the Deputy Under Secretary for Health may:
(a) Reverse the decision of the Board; or
(b) Vacate the decision of the Board and remand the matter to the Board for further consideration.
(2) If the decision, while not clearly contrary to the evidence or unlawful, is found to be not justified by the gravity of the charges, the Deputy Under Secretary for Health may mitigate the adverse action imposed.
(3) The Deputy Under Secretary for Health's execution of a Board's decision, or the mitigated action if appropriate, shall be the final administrative action in the case.
d.
10.
1.
2.
3.
b.
6.
a. Taking proper steps to expedite the hearing of evidence, and speaking and acting for the Board;
b. Ruling on all questions arising during the proceedings, such as admissibility of evidence offered during the hearing, calling of witnesses, order of introduction of witnesses, etc.;
c. Obtaining further evidence concerning any issue under consideration by the Board at any stage of the proceedings;
d. Acting as the presiding officer, directing the regular and proper conduct of the proceedings, and authenticating, by his or her signature, instructions and proceedings of the Board;
e. Ruling on questions of disqualification of any member of the Board. In cases where the Chairperson is the challenged member, the question shall be resolved in accordance with paragraph 7e of this chapter;
f. Scheduling the specific hour and dates of hearings;
g. Closing the record;
h. Administering oaths or affirmations made by individuals giving testimony;
i. Ruling on motions from the parties; and
j. Calling witnesses on behalf of the Board.
7.
(1) The record of decision in any mixed case shall include a statement by the Board of its exclusive jurisdiction, citing 38 U.S.C. 7462(a) as the authority and the basis for such exclusive jurisdiction. A mixed case is one that includes both (a) a major adverse action arising out of, or including, a question of professional conduct or competence, and (b) a major adverse action which does not arise out of a question of professional conduct or competence or a disciplinary action.
(2) If necessary, the Board may develop the record to establish jurisdiction.
(3) If the Board determines that the appeal is not properly before it,
8.
(e) Technical advisors are not members of the Board and, therefore, do not possess any voting power.
9.
c.
(1) If any charge is sustained in whole or in part, the Board shall approve the action as imposed; approve the action with modification, reduction, or exception; or reverse the action.
(2) If none of the charges are sustained in whole or in part, the Board will reverse the action.
d.
e.
(1) However, if the Deputy Under Secretary for Health finds a decision of the Board to be clearly contrary to the evidence or unlawful, the Deputy Under Secretary for Health may:
(a) Reverse the decision of the Board; or
(b) Vacate the decision of the Board and remand the matter to the Board for further consideration.
(2) If the decision, while not clearly contrary to the evidence or unlawful, is found to be not justified by the gravity of the charges, the Deputy Under Secretary for Health may mitigate the adverse action imposed.
(3) The Deputy Under Secretary for Health's execution of a Board's decision, or the mitigated action, if appropriate, shall be the final administrative action in the case.
f.
(1) In any event, the Board's decision will be made no later than 90 calendar days after the remand is received by the Board Chairperson.
(2) If the remand is related solely to jurisdictional issues, then the Deputy Under Secretary for Health may establish a shorter resolution period.
g.
(2) Major adverse action files, which have been involved with an appeal to the Disciplinary Appeals Board will be maintained by the Office of Human Resources Management, Human Resources Management Programs and Policies Service (051). Records are maintained and disposed of in accordance with the records disposition authorities found in General Records Schedule 1 and VA Records Control Schedule 10-1, except where otherwise required to be retained for a longer period of time.
(3) One copy of notice of decision will be provided to the employee, the employee's representative, and the official who decided the adverse action. Any SF-50B, Notification of Personnel Action, will be filed in the employee's personnel folder.
10.
(1) The Board Chairperson may authorize the disclosure of such records or information to that employee (or representative) to the extent the Board considers appropriate for purposes of the proceedings of the Board.
(2) Decisions on requests to disclose records or information will be in writing.
b. In any such case, the Chairperson may direct that measures be taken to protect the personal privacy of individuals whose records are involved. * * *
Environmental Protection Agency (EPA).
Final rule.
This action promulgates national emission standards for hazardous air pollutants (NESHAP), specifically mercury emissions, from mercury cell chlor-alkali plants. The final rule will limit mercury air emissions from these plants. The final rule will implement section 112(d) of the Clean Air Act (CAA) which requires all categories and subcategories of major sources and area sources listed under section 112(c) to meet hazardous air pollutant emission standards reflecting the application of the maximum achievable control technology (MACT). Mercury cell chlor-alkali plants are a subcategory of the chlorine production source category listed under the authority of section 112(c)(1) of the CAA. The chlorine production source category was also identified as a source of mercury under section 112(c)(6) that must be subjected to standards. In addition, mercury cell chlor-alkali plants were listed as an area source category under section 112(c)(3) and (k)(3)(B) of the CAA. The final rule, which will satisfy our requirement to issue 112(d) regulations under each of these listings (for mercury), will reduce mercury emissions by about 3,068 kilograms per year from the levels allowed by the existing Mercury NESHAP.
Mercury is a neurotoxicant that accumulates, primarily in the especially potent form of methylmercury, in aquatic food chains. The highest levels are reached in predator fish species. Mercury emitted to the air from various types of sources (usually in the elemental or inorganic forms) transports through the atmosphere and eventually deposits onto land or water bodies. When mercury is deposited to surface waters, natural processes (bacterial) can transform some of the mercury into methylmercury that accumulates in fish. Ingestion is the primary exposure route of interest for methylmercury. The health effect of greatest concern due to methylmercury is neurotoxicity, particularly with respect to fetuses and young children.
In addition, in this final action, we are utilizing our authority under section 112(d)(4) of the CAA not to regulation chlorine and hydrochloric acid (HCl) emissions from the mercury cell chlor-alkali plant subcategory.
December 19, 2003.
For information concerning applicability and rule determinations, contact your State or local regulatory agency representative or the appropriate EPA Regional Office representative. For information concerning analyses performed in developing the final rule, contact Mr. Iliam Rosario, Metals Group, Emission Standards Division (C439-02), U.S. EPA, Research Triangle Park, North Carolina 27711; telephone number (919) 541-5308; fax number (919) 541-5600; electronic mail address:
The official public docket is the collection of materials that is available for public viewing. The EPA Docket Center Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Reading Room is (202) 566-1744, and the telephone number for the Air Docket is (202) 566-1742.
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
This list is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be regulated by this action. To determine whether your facility is regulated by this action, you should examine the applicability criteria in § 63.8182 of the final rule. If you have questions regarding the applicability of this action to a particular entity, consult your State or local agency (or EPA Regional Office) described in the preceding
Section 112 of the CAA contains our authorities for reducing emissions of hazardous air pollutants (HAP). Section 112(c)(1) of the CAA requires us to list categories and subcategories of major sources and area sources of HAP and to establish NESHAP for the listed source categories and subcategories. Section 112(c)(6) requires us to list source categories and subcategories assuring that sources accounting for not less than 90 percent of the aggregate emissions of each of seven specific pollutants (including mercury) are subject to standards under section 112(d) of the CAA. Finally, section 112(c)(3) and (k)(3)(B) require that we list source categories to ensure that area sources representing 90 percent of the area source emissions of the 30 urban HAP are subject to regulation under section 112(d).
The chlorine production source category was initially listed as a category of major sources of HAP pursuant to section 112(c)(1) of the CAA on July 16, 1992 (57 FR 31576). At the time of the initial listing, we defined the chlorine production source category as follows:
The Chlorine Production Source Category includes any facility engaged in the production of chlorine. The category includes, but is not limited to, facilities producing chlorine by the following production methods: diaphragm cell, mercury cell, membrane cell, hybrid fuel cell, Downs cell, potash manufacture, hydrochloric acid decomposition, nitrosyl chloride process, nitric acid/salt process, Kel-Chlor process, and sodium chloride/sulfuric acid process.
In our subsequent analysis of the chlorine production source category, we did not identify any facilities that produce chlorine using hybrid fuel cells, the nitrosyl chloride process, the Kel-Chlor process, the sodium chloride/sulfuric acid process, or as a by-product from potash manufacturing. The majority of the source category is made up of chlor-alkali plants that produce chlorine and caustic (sodium hydroxide) using mercury cells, diaphragm cells, or membrane cells. We also identified operating plants that produce chlorine as a by-product: one from the production of sodium metal in Down cells, another from the production of potassium nitrate fertilizer that uses the nitric acid/salt process, and a third that produces chlorine as a by-product from primary magnesium refining (magnesium refining is a separately listed source category and will be addressed on its own in a separate rulemaking). In addition, at a site where a membrane cell process is located, we have also identified a process that produces chlorine through the decomposition of HCl. Our analysis shows that the only HAP emitted from sources within this chlorine production source category are chlorine, HCl, and mercury; and mercury is only emitted from mercury cell chlor-alkali plants.
In addition to the listing pursuant to section 112(c)(1), chlor-alkali production was among the categories of sources identified pursuant to section 112(c)(6) to achieve the 90 percent goal for mercury. While this category was titled “chlor-alkali production,” the only sources of mercury emissions are mercury cell chlor-alkali plants. However, the mercury cell chlor-alkali subcategory was not officially “listed” under section 112(c)(6) because the chlorine production source category was already listed under section 112(c)(1), and sources of mercury emissions at mercury cell chlor-alkali plants would be subject to section 112(d)(2) standards via that chlorine production source category listing.
Finally, on July 19, 1999 (64 FR 38706), we listed Mercury Cell Chlor-Alkali Plants as an area source category. In this listing, Mercury Cell Chlor-Alkali Plants were identified as one of the area source categories that contribute at least 15 percent of the total area source mercury emissions.
Because of the differences in the production methods and the HAP emitted, we decided to divide the chlorine production category into two subcategories: (1) Mercury cell chlor-alkali plants, and (2) chlorine production plants that do not rely upon mercury cells for chlorine production (diaphragm cell chlor-alkali plants, membrane cell chlor-alkali plants,
Section 112(d)(2) of the CAA specifies that NESHAP for new and existing sources must reflect the maximum degree of reduction in HAP emissions that is achievable, taking into consideration the cost of achieving the emissions reductions, any non-air quality health and environmental benefits, and energy requirements. This level of control is commonly referred to as MACT.
Section 112(d)(3) defines the minimum level of control or floor allowed for NESHAP. In essence, the MACT floor ensures that the standards are set at a level that assures that all affected sources achieve the level of control at least as stringent as that already achieved by the better-controlled and lower-emitting sources in each source category or subcategory. For new sources, the MACT floor cannot be less stringent than the emission control that is achieved in practice by the best-controlled similar source. The MACT standards for existing sources cannot be less stringent than the average emission limitation achieved by the best-performing 12 percent of existing sources in the category or subcategory (or the best-performing five sources for categories or subcategories with fewer than 30 sources).
In developing MACT, we also consider control options that are more stringent than the floor. We may establish standards more stringent than the floor based on the consideration of cost of achieving the emissions reductions, any non-air quality health and environmental impacts, and energy impacts.
The CAA includes exceptions to the general statutory requirement to establish emission standards based on MACT. For pollutants for which a threshold has been established, section 112(d)(4) allows us “to consider such threshold level, with an ample margin of safety, when establishing emissions standards. * * *.”
As discussed above, we divided the chlorine production source category into mercury cell chlor-alkali plants, and chlorine production plants that do not rely upon mercury cells for chlorine production (non-mercury cell chlorine production). On July 3, 2002, we proposed one action to address mercury emissions from the mercury cell chlor-alkali plant subcategory, and a separate action to address chlorine and HCl emissions from both subcategories.
For mercury emissions from mercury cell chlor-alkali plant subcategory sources, we issued a proposed rule based on MACT (67 FR 44672). Comments were received on the proposed rule and today's action issues the final rule for the mercury emissions from the mercury cell chlor-alkali plant subcategory.
We also proposed not to regulate chlorine and HCl emissions from both the mercury cell chlor-alkali plant and non-mercury cell chlorine production subcategories under our authority in section 112(d)(4) of the CAA (67 FR 44713). We based this decision on our determination that no further control is necessary because chlorine and HCl are “health threshold pollutants,” and chlorine and HCl levels emitted from chlorine production processes are below their threshold values within an ample margin of safety. The basis for the determination was a series of site-specific risk assessments for every chlorine production facility in the United States that was located at a major source plant site. In addition, we concluded, using a qualitative evaluation, that chlorine and HCl emissions from these chlorine production facilities did not result in adverse environmental effects. Background for this action is contained in Docket OAR-2002-0016 or Docket A-2002-09. Public comments on the proposed action were received, and we are finalizing actions addressing chlorine and HCl emissions in today's
Prior to proposal, we met with industry representatives and State regulatory authorities several times to discuss the data and information used to develop the proposed standards. In addition, these and other potential stakeholders, including equipment vendors and environmental groups, had opportunity to comment on the proposed standards.
The proposed rule was published in the
We received nine public comment letters on the proposed rule (two of which were received well after the close of the comment period). The commenters represent the following affiliations: Mercury cell chlor-alkali companies, industrial trade associations, environmental/conservation organizations, and a women's advocacy organization. In the post-proposal period, we talked with commenters and other stakeholders to clarify comments and to assist in our analysis of the comments. Records of these contacts are found in Docket OAR-2002-0017 or Docket A-2000-32. All of the comments have been carefully considered, and, where appropriate, the final rule has been written to so reflect.
The proposed action not to regulate chlorine and HCl emissions was published in the
We received eight public comment letters on the proposed action. The commenters represent the following affiliations: Industry representatives, governmental entities, and environmental groups. In the post-proposal period, we talked with commenters and other stakeholders to clarify comments and to assist in our analysis of the comments. Records of these contacts are found in Docket OAR-2002-0016 or Docket A-2002-09. All of the comments have been carefully considered.
Today's NESHAP apply to mercury emissions from mercury cell chlor-alkali plants. Mercury cells are considerably larger than other types of chlor-alkali cells. A mercury cell plant typically has scores of individual cells (around 60 feet long and 9 feet wide) housed in one or more cell buildings. Mercury cells are electrically connected together in series with circuits of 30 or more cells.
In the mercury cell process, each cell actually involves two distinct operations. The electrolytic cell
A stream of liquid mercury flows in a continuous loop between the electrolytic cell and the decomposer. The mercury enters the cell at the inlet end box and flows down a slight grade to the outlet end box. At the outlet end box, the mercury flows out of the cell and falls down to the decomposer. After being processed in the decomposer, the mercury is pumped back up to the inlet end box of the electrolytic cell.
Saturated salt brine (using either sodium chloride or potassium chloride) is fed to the electrolytic cell at the inlet end box and flows toward the outlet end box on top of the mercury stream. The brine and mercury flow under a dimensionally stable metal anode made of a titanium substrate with a metal catalyst. The mercury forms the cathode of the cell.
An electric current is applied between the anode and the mercury cathode. The electric current causes a reaction producing chlorine gas at the anode and a mercury:sodium (HgNa) or mercury:potassium (HgK) amalgam at the cathode. Chlorine is collected at the top of the cell. The amalgam ultimately exits at the outlet end box, falling into the decomposer. Depleted brine also exits the cell at the outlet end box. This brine is generally piped to a tank for resaturation and reuse.
The decomposer is a packed bed reactor where the mercury amalgam is contacted with deionized water in the presence of a catalyst. The amalgam reacts with the water, regenerating elemental mercury and producing caustic (NaOH or KOH) and hydrogen. The caustic and mercury are separated in a trap at the end of the decomposer. The caustic and hydrogen are transferred to auxiliary processes for purification, and the mercury is recycled back to the cell.
Chlorine is collected from the tops of the mercury cells by a common header system which runs through the cell building. Hydrogen is collected from the amalgam decomposers in a common header system. The hydrogen stream contains a small amount of mercury vapor from the liquid mercury processed in the decomposer. To remove the mercury vapor, the hydrogen stream is typically cooled, passed through a mist eliminator, and usually sent to a finishing device such as a carbon adsorber. The hydrogen may then be discharged to the atmosphere, used on-site, or sold for use off-site.
In a mercury cell process, a 50 percent caustic solution is obtained directly from the amalgam decomposers. Thus, the mercury cell caustic requires little further processing to yield a commercial product.
Contaminated mercury and mercury-containing wastes are generated from a number of sources at a mercury cell plant. These include the hydrogen treatment operation, the brine and caustic treatment operations, and mercury leaks or spills. Many plants recover mercury from these wastes on-site in a mercury retort, or mercury thermal recovery unit.
Mercury is emitted from two point sources associated with the production of chlorine—the end box ventilation system and by-product hydrogen system. Mercury is also emitted from mercury thermal recovery units, which is also a point source. In addition, there are mercury fugitive emissions from the cell rooms and from the waste recovery areas.
In addition to mercury, chlorine and HCl are emitted from mercury cell plants. Chlorine can be emitted from the tail gas stream from the final liquefier, the cell room, and equipment in chlorine service. Hydrochloric acid is used to pretreat feed brine prior to entering a chlor-alkali cell, and at other locations throughout the process to adjust pH. It can also be emitted from storage tanks and equipment in HCl service.
We promulgated the National Emission Standard for Mercury on April 6, 1973 (40 CFR part 61, subpart E).
The requirements in today's final standards are more stringent than the requirements in the Mercury NESHAP. Using the 1,000 grams per day value as the baseline, we estimate that mercury emissions will be reduced to less than 60 grams per day (on average) by the final rule. This represents about 94 percent reduction from the Mercury NESHAP baseline for vents. In addition, the work practice standards in today's final rule represent the most explicit compilation of practices currently employed by the industry, along with detailed recordkeeping and reporting requirements. While we cannot quantify the mercury emissions reductions that would be achieved by the final work practice standards, we are confident that their implementation would result in additional reductions in mercury emissions beyond that currently achieved by the existing Mercury NESHAP.
Every aspect of the Mercury NESHAP that applies to mercury cell chlor-alkali plants is addressed in today's final rule (40 CFR part 63, subpart IIIII). In fact, as discussed above, the requirements are more stringent than the respective requirements in the Mercury NESHAP. Consequently, when mercury cell chlor-alkali plants are required to comply with the final rule, the requirements of the Mercury NESHAP that apply to them will no longer be relevant or applicable. Therefore, upon the compliance date as indicated in § 63.8186 of the final rule, mercury cell chlor-alkali plants will no longer have any obligation to comply with the Mercury NESHAP, nor will they be allowed to comply with the Mercury NESHAP instead of the applicable provisions in 40 CFR part 63, subpart IIIII. Specifically, affected sources
The proposed rule contained a compliance date 2 years from the date that the final rule would appear in the
For mercury cell chlor-alkali production facilities affected sources, the proposed rule included a single emission limitation that covered all mercury emissions from the two point sources associated with chlorine production in mercury cells: the by-product hydrogen stream and the end box ventilation system vent. The format of this limitation was total grams of mercury per Megagram of chlorine production (g Hg/Mg Cl
In addition to the averaging time for the by-product hydrogen/end box ventilation system vent, we changed the value of the emission limitation for plants with end box ventilation systems from the proposed limit of 0.067 g Hg/Mg Cl
In the final rule, we have written the method for determining continuous compliance for the point sources of emissions in both types of affected sources covered by the rule (by-product hydrogen streams and end box ventilation system vents at mercury cell chlor-alkali production facilities and mercury thermal recovery unit vents at mercury recovery facilities). In the proposed rule, performance tests would have been required to determine initial compliance with the applicable emission limitation. The proposed rule also would have required that the mercury concentration of each vent be monitored during these performance tests, and that a mercury concentration operating limit be established for each vent based on the monitoring results obtained during the test. Compliance with the emission limitation would have then been determined by comparing the results of the continuous monitoring of mercury concentration against the established operating limits. There were several comments received on this approach.
In response to these comments, continuous compliance in the final rule is determined via a direct comparison of emissions to the emission limitation rather than using mercury concentration operating limits as a surrogate. For by-product hydrogen streams and end box ventilation system vents, the aggregate mercury emissions will be determined, divided by the corresponding chlorine production, and compared with the emission limitation for each 52-week compliance period (as discussed above). For mercury thermal recovery unit vents, the measured mercury concentration will be directly compared against the emission limitations (which are in units of milligrams of mercury per dry standard cubic meter, or mg/dscm). Also, the final rule contains two options for measuring the mercury emissions for continuous compliance: Continuous mercury emission monitoring systems, and periodic sampling using EPA reference methods or approved alternative methods.
The proposed work practice provisions included a cell room monitoring program, which would have required that the mercury concentration be monitored in the cell room and corrective action taken when a plant-specific action level was exceeded. The final rule retains the cell room monitoring program, but it is as an alternative to the work practices. The optional cell room monitoring provisions in the final rule are more detailed and prescriptive than the requirements in the proposed rule, and the final rule requires the preparation and submittal of site-specific cell room monitoring plans. Since the cell room monitoring program was made optional, the final rule requires (if optional cell room monitoring is not chosen) the owner or operator to institute a floor-level mercury vapor measurement program. This program is designed to limit the amount of mercury vapor in the cell room environment through periodic measurement of mercury vapor levels.
The final rule also requires that the owner of each mercury cell chlor-alkali plant report the mass of virgin mercury added to the cells. Initial compliance with this requirement is demonstrated by reporting the mass of mercury added to cells for the 5 years preceding the compliance date. This is a requirement requested by commenters.
The chlorine production source category contains the mercury cell chlor-alkali plant subcategory and includes all plants engaged in the manufacture of chlorine and caustic in mercury cells. Other non-mercury cell chlorine production plants used to produce chlorine and caustic, such as diaphragm cell and membrane cell technologies, are not covered by the final rule.
The final rule defines two affected sources: Mercury cell chlor-alkali production facilities, and mercury recovery facilities. The former includes all cell rooms and ancillary operations used in the manufacture of chlorine, caustic, and by-product hydrogen at a plant site. The latter includes all processes and associated operations needed for mercury recovery from wastes.
Emission points addressed within mercury cell chlor-alkali production facilities include each mercury cell by-product hydrogen stream, each mercury cell end box ventilation system vent, and fugitive emission sources throughout each cell room and various areas. Emission points addressed within mercury recovery facilities include each
For new or reconstructed mercury cell chlor-alkali production facilities, the final rule prohibits mercury emissions.
For existing mercury cell chlor-alkali production facilities with end box ventilation systems, the final rule requires that aggregate mercury emissions from all by-product hydrogen streams and end box ventilation system vents not exceed 0.076 g Hg/Mg Cl
For new, reconstructed, or existing mercury recovery facilities with oven type mercury thermal recovery units, the final rule requires that total mercury emissions not exceed 23 mg/dscm from each oven type unit vent. For new, reconstructed, or existing mercury recovery facilities with non-oven type mercury thermal recovery units, the limit in the final rule is 4 mg/dscm.
The final rule contains a set of work practice standards to address and mitigate fugitive mercury releases at mercury cell chlor-alkali plants. These provisions include specific equipment standards such as the requirement that end boxes either be closed (that is, equipped with fixed covers), or that end box headspaces be routed to a ventilation system. Other examples include requirements that piping in liquid mercury service have smooth interiors, that cell room floors be free of cracks and spalling (
A cornerstone of the work practice standards is the inspection program for equipment problems, leaking equipment, liquid mercury accumulations and spills, and cracks or spalling in floors and pillars and beams. Specifically, the final rule requires that visual inspections be conducted twice each day to detect equipment problems, such as end box access port stoppers not securely in place, liquid mercury in open containers not covered by an aqueous liquid, or leaking vent hoses. If a problem is found during an inspection, the owner or operator will need to take immediate action to correct the problem. Monthly inspections for cracking or spalling in cell room floors are also required as well as semiannual inspections for cracks and spalling on pillars and beams. Any cracks or spalling found will need to be corrected within 1 month.
Visual inspections for liquid mercury spills or accumulations are also required twice per day. If a liquid mercury spill or accumulation is identified during an inspection, the owner or operator will need to initiate cleanup of the liquid mercury within 1 hour of its detection. Acceptable cleanup methods include wet vacuum cleaning or a suitable alternative method approved upon petition.
In addition to cleanup, the final rule requires that an inspection of equipment in the area of the spill or accumulation be conducted to identify the source of the liquid mercury. If the source is found, the owner or operator is required to repair the leaking equipment as discussed below. If the source is not found, the owner or operator will be required to reinspect the area every 6 hours until the source is identified or until no additional liquid mercury is found at that location.
Inspections of specific equipment for liquid mercury leaks are required once per day. If leaking equipment is identified, the final rule requires that any dripping mercury be contained and covered by an aqueous liquid, and that a first attempt to repair leaking equipment be made within 1 hour of the time it is identified. The final rule requires that leaking equipment be repaired within 4 hours of the time it is identified, although there are provisions for delaying repair of leaking equipment for up to 48 hours.
Inspections for hydrogen gas leaks are required twice per day. For a hydrogen leak at any location upstream of a hydrogen header, a first attempt at repair is required within 1 hour of detection of the leaking equipment, and the leaking equipment is required to be repaired within 4 hours (with provisions for delay of repair if the leaking equipment is isolated). For a hydrogen leak downstream of the hydrogen header but upstream of the final control device, a first attempt at repair is required within 4 hours, and complete repair required within 24 hours (with delay provisions if the header is isolated).
The work practice standards in the final rule require you to institute a floor-level mercury vapor measurement program. Under this program, mercury vapor levels are periodically measured and compared to an action level of 0.05 mg/m
As an alternative to the full set of work practice standards (including the floor-level monitoring program), the final rule also includes an optional requirement to institute a cell room monitoring program whereby owners and operators continuously monitor mercury concentrations in the upper portion of each cell room and take corrective actions as soon as practicable when elevated mercury vapor levels are detected.
The program is not designed to be a continuous monitoring system inasmuch as the results would be used only to determine relative changes in mercury vapor levels rather than compliance with a cell room emission or operating limit. The owner or operator is required to establish an action level for each cell room based on preliminary monitoring to determine normal baseline conditions. The action level, or levels if appropriate, will then be established as a yet-to-be-determined multiple of the baseline values. Once the action level(s) is established, continuous monitoring must be conducted. If an action level is exceeded, actions to correct the situation are required to be initiated as soon as possible. If the elevated mercury vapor level is due to a maintenance activity, the owner or operator must ensure that all work practices related to that maintenance activity are followed. If a maintenance activity is not the cause, inspections and other actions will be needed to identify and correct the cause of the elevated mercury vapor level. Owners and operators utilizing this cell room monitoring program option are required to develop site-specific cell room monitoring plans describing their monitoring system and quality assurance/quality control
The final rule establishes the duty for owners and operators to routinely wash surfaces throughout the plant where liquid mercury could accumulate. Owners and operators are required to prepare and follow a written washdown plan detailing how and how often specific areas specified in the final rule are to be washed down to remove any accumulations of liquid mercury.
Finally, the final rule requires owners or operators to record and report the mass of virgin mercury added to cells. Virgin mercury is defined as mercury that has not been processed in an onsite mercury thermal recovery unit or otherwise recovered from mercury-containing wastes onsite. In order to establish a baseline of mercury being added to the cells, the final rule requires owners or operators to submit the mass of virgin mercury added to cells for the 5 years preceding the compliance date.
The final rule requires that each owner and operator always operate and maintain each affected source, including air pollution control and monitoring equipment, in a manner consistent with good air pollution control practices for minimizing air emissions, as required under 40 CFR 63.6(e)(1)(i) of the NESHAP General Provisions. The final rule requires each owner and operator to prepare and implement a written startup, shutdown, and malfunction plan according to the operation and maintenance requirements in § 63.6(e)(3) of the NESHAP General Provisions.
The final rule requires compliance with the emission limitations and applicable work practice requirements at all times, except during periods or startup, shutdown, and malfunction as defined in 40 CFR 63.2. The owner or operator must develop and implement a written startup, shutdown, and malfunction plan according to the requirements in 40 CFR 63.6(e)(3).
The final rule requires compliance with emission limitations and work practices by December 19, 2006.
To demonstrate initial compliance with the emission limits for by-product hydrogen streams and end box ventilation system vents, the final rule requires each owner or operator to conduct performance tests using 40 CFR part 61, appendix A, Method 102 for by-product hydrogen streams, and 40 CFR part 61, appendix A, Method 101 or 101A for end box ventilation system vents. In addition, the final rule also includes procedures for reducing the mercury emissions data collected during the performance test to units of the standard (
Concurrent with each test run, each owner or operator is required to determine the quantity of chlorine produced using an equation contained in the final rule which calculates chlorine production based on cell line electric current load.
Initial compliance is demonstrated by showing that the total mercury emission rate from all by-product hydrogen streams and all end box ventilation system vents for the test are less than 0.076 g Hg/Mg Cl
In addition, if the final control device is not a nonregenerable carbon adsorber and continuous compliance will be demonstrated using the periodic monitoring option, the owner or operator is required to monitor the following parameters during the performance test to establish either a maximum or minimum monitoring value, as applicable for the control device:
As part of the initial compliance demonstration, the owner or operator must determine the maximum or minimum monitoring value by calculating the average of the data collected during the performance test. The exception to this is when the final control device is a regenerative carbon adsorber. In this case, the highest temperature reading during the performance test must be used.
To demonstrate initial compliance with the mercury thermal recovery unit emission limits, the final rule requires that owners or operators conduct a performance test for each vent using 40 CFR part 61, appendix A, Method 101 or 101A. The owner or operator is required to develop and follow a site-specific test plan according to § 63.7(c)(2) of the NESHAP General Provisions. Three test runs would need to be conducted at a point after the last control device for each vent.
Initial compliance is achieved if the average vent mercury concentration is less than 23 mg/dscm for each oven type vent or 4 mg/dscm for each non-oven type vent. In addition, if the final control device is not a nonregenerable carbon adsorber and continuous compliance will be demonstrated using the periodic monitoring option, the owner or operator is required to monitor the same parameters as required for by-product hydrogen streams and end box ventilation system vents and to establish the appropriate minimum or maximum monitoring value for the control device.
The final rule contains two options for continuous compliance with the emission limit for by-product hydrogen streams and end box ventilation system vents and the emission limit for mercury thermal recovery unit vents: Continuous monitoring using mercury continuous emissions monitors, or periodic monitoring using testing. Both of these options will produce results in the units of the standard, so continuous compliance will be demonstrated through a direct comparison of monitoring system results.
If mercury continuous emission monitors are used to comply with the final rule, a site-specific monitoring plan must be developed to ensure proper control device evaluation, and a performance evaluation is required according to the monitoring plan. For each monitor, the final rule requires the site-specific monitoring plan to address installation and siting, monitor performance specifications,
To demonstrate continuous compliance, the final rule requires the owner or operator to reduce mercury emissions to 52-week averages and to maintain the 52-week average below 0.076 g Hg/Mg Cl
The final rule requires compliance with the work practice standards within 3 years from December 19, 2003.
The final rule contains specific recordkeeping requirements related to the work practice standards. These include records of when inspections were conducted, problems identified, and actions taken to correct problems. Continuous compliance with work practice standards will be demonstrated by maintaining these required records.
Initial compliance with the washdown plan will be demonstrated by submission of the plan by the owner or operator and certification that they operate according to, or will operate according to, the plan. Continuous compliance with the plan will be demonstrated by maintaining related records. Records will also be required to demonstrate compliance with the cell room monitoring program.
The final rule requires that owners or operators submit Initial Notifications, Notifications of Intent to conduct a performance test, Notification of Compliance Status (NOCS), and compliance reports.
For the Initial Notification, we are requiring that each owner or operator notify us that their plant is subject to the NESHAP for mercury cell chlor-alkali plants, and that they provide other basic information about the plant. For existing sources, this notification would need to be submitted no later than April 19, 2004.
For the Notification of Intent report, we are requiring that each owner or operator notify us in writing of the intent to conduct a performance test at least 60 days before the performance test is scheduled to begin.
The NOCS for the work practice standards will be due 30 days after the compliance date for existing sources. In this notification, the owner or operator will need to certify that the work practice standards are being or will be met. Furthermore, we are requiring that the washdown plan be submitted as part of this notification, and that the owner or operator certify that they operate or will operate according to the plan.
For the emission limits where a performance test is required to demonstrate initial compliance (that is, the emission limits for by-product hydrogen streams and end box ventilation system vents and the mercury thermal recovery unit vent limits), the tests will have to be conducted no later than the compliance date, and the NOCS will be due 60 days after the completion of the performance test. The site-specific monitoring plan addressing the use of mercury continuous emission monitors for vents must be submitted as part of this notification.
Compliance reporting is required semiannually, with the first report due within the first 6 months after initial compliance.
Records required by the final rule related to by-product hydrogen streams, end box ventilation system vents, and mercury thermal recovery unit vents include the following: Performance test results, records showing the establishment of the applicable mercury concentration operating limits (including records of the mercury concentration monitoring conducted during the performance tests), records of the continuous mercury concentration monitoring data, records of the daily average elemental mercury concentration values, and records associated with site-specific monitoring plans.
With regard to the work practice standards, the final rule requires that records be maintained to document when each required inspection was conducted and the results of each inspection. Records noting equipment problems (such as end box cover stoppers not securely in place or mercury in an open container not covered by an aqueous liquid) identified during a required inspection, and the corrective action taken would also be required. If equipment that is leaking mercury liquid or hydrogen/mercury vapor is identified during a required inspection or at any other time, the final rule requires records of when the leak was identified and when it was repaired. Similarly, if a mercury spill or accumulation is identified at any time, the final rule requires records of when the spill or accumulation was found and when it was cleaned up.
A copy of the current version of the washdown plan would need to be kept on-site and be available for inspection. Records of when washdowns were conducted would be required.
The final rule requires that copies of each notification and report that is submitted to comply with the final rule be kept and maintained for 5 years, the first 2 of which must be on-site.
This section includes discussion of significant comments on the proposed rule. For a complete summary of all the comments received on the proposed rule and our responses to them, refer to the “Background Information Document for Promulgation of National Emissions Standards for Hazardous Air Pollutant (NESHAP): Mercury Emissions From Mercury Cell Chlor-Alkali Plants” EPA-453/R-03-012 (hereafter called the “response to comments document”) in Docket OAR-2002-0017 or A-2000-32.
There were no issues raised by commenters regarding the sources subject to the proposed rule and the affected source, as a mercury cell chlor-alkali plant is a distinct and easily identifiable entity. There were, however, issues raised regarding the proposed requirement for all affected sources to obtain a title V permit and regarding the specific emission points that were addressed in the proposed rule.
One commenter noted that in previously promulgated area source MACT standards (
In contrast, another commenter supported the proposed requirement to require all affected sources to obtain title V permits. The commenter argued that title V permits are needed because they consolidate sources' applicable requirements in a single place. The commenter further noted that “* * * given the detailed work practice requirements, it is reasonable to expect significant source-specific tailoring of the standard for each plant's individual configuration.” See,
In order to exempt area sources under the final rule from title V requirements, the test in section 502(a) of the CAA must be met. Specifically, the Administrator must make a finding that title V requirements are impracticable, infeasible, or unnecessarily burdensome for the source category or categories in question. Commenters may provide data which would help the Administrator make such a finding, but the commenters who were opposed to area sources being permitted under the final rule did not provide any such data. Commenters providing supporting data for their arguments is consistent with what the Agency stated in its final rule for the Municipal Solid Waste Landfills NESHAP in reference to the test in section 502(a) of the CAA (68 FR 2227, 2234, January 16, 2003).
In terms of the commenters' concern about title V adding duplicative recordkeeping and reporting requirements, the only potential duplicative requirement that we are aware of is in relation to deviation reporting under the semiannual compliance report required by § 63.8254 of the final rule and the semiannual monitoring report required by 40 CFR 70.6(a)(3)(iii)(A) or 40 CFR 71.6(a)(3)(iii)(A). However, this potential duplication was addressed by § 63.8254(d) in the proposed rule and this has been clarified in the final rule.
As to the deferral for area sources subject to the Dry Cleaning MACT and the Halogenated Solvent Cleaning MACT, the area sources subject to these MACT standards were deferred from title V permitting until December 9, 2004. See final deferral rulemaking (64 FR 69637, December 14, 1999). This deferral was granted in part because of the concern that area sources would not be able to obtain the technical and procedural assistance from permitting authorities needed to file timely and complete title V applications given that permitting authorities would be focused on the permitting of major sources. However, as the title V program is no longer in its initial stages and the initial permitting of existing major sources is nearing completion, we would not be justified in granting a deferral to area sources under the final rule for the same reason.
In terms of the commenter who supported the permitting of affected sources under the final rule, we agree that the consolidation of requirements in a title V permit is one of the ways that title V helps assure compliance with all applicable requirements. As this commenter also pointed out, title V permits clarify which requirements in standards apply to a source where requirements may vary due to various factors,
In conclusion, as the test in section 502(a) of the CAA has not been met, EPA has retained the requirement in the final rule that affected sources subject to the final rule must obtain title V permits. Therefore, whether an affected source under the final rule is a part of a major or area source, the major/area source is required to obtain a title V permit.
The commenter did not provide emissions data that would indicate that these sources emit significant amounts of mercury, or emit mercury at all. Therefore, the final rule does not contain standards for mercury emissions from chlorine purification, brine preparation, wastewater treatment operations, chemical mercury recovery and recovery in batch purification stills.
We point out that the final rule does contain very stringent emission limitations for all point sources that have been demonstrated to be sources of mercury emissions. Further, the work practice requirements in the final rule address fugitive mercury emissions in all areas of the facility, including the chlorine purification, brine preparation, wastewater treatment areas, as well as areas where chemical mercury recovery processes and batch purification stills are located.
As noted earlier, we divided the chlorine production category into two subcategories: Mercury cell chlor-alkali plants and chlorine production plants that do not rely upon mercury cells for chlorine production (diaphragm cell chlor-alkali plants, membrane cell chlor-alkali plants, etc.). On July 3, 2002, we issued separate proposals to address the emissions of mercury from the mercury cell chlor-alkali plant subcategory sources (67 FR 44672) and the emissions of chlorine and HCl from both the non-mercury cell chlorine production subcategory sources and the mercury cell chlor-alkali subcategory sources (67 FR 44713). Specifically, we proposed a rule for mercury emissions from mercury cell chlor-alkali plants, and we proposed not to regulate chlorine and HCl emissions from mercury cell chlor-alkali plants and non-mercury cell chlorine production plants under our authority in section 112(d)(4) of the CAA.
Comments were received regarding the proposed action not to regulate chlorine and HCl emissions (
One commenter stated that EPA conducted an appropriate analysis to determine that human exposures from ambient concentrations are well below threshold values with an ample margin of safety. According to another commenter, any further regulation of chlorine and HCl emissions from the chlorine production industry would have no environmental benefits, but would result in costs for monitoring, recordkeeping, and reporting efforts to certify compliance with any requirements. The commenter was concerned that a regulation would also stretch EPA's limited resources in monitoring for compliance. Three commenters stated that EPA's interpretation of their authority under section 112(d)(4) was supported by the legislative history, which emphasizes that Congress included section 112(d)(4) in the CAA to prevent unnecessary regulation of source categories. The commenter agreed that under section 112(d)(4), once EPA establishes that a pollutant has a health threshold and that exposure to that pollutant's emissions are below the health threshold, EPA should refrain from setting MACT standards for that pollutant. The commenter further suggested that EPA should use section 112(d)(4) whenever setting emission standards under section 112(d).
Three commenters disagreed with EPA's interpretation of section 112(d)(4). They did not believe that section 112(d)(4) could be used as an alternative to setting MACT standards under section 112(d)(3). One commenter noted that the phrase “in lieu of” was not included in the section 112(d)(4) provisions and that its absence was intentional. In support of their claim, the commenter pointed to section 112(d)(5), which does contain the phrase “in lieu of.” The commenter interpreted section 112(d)(4) to mean that health-based thresholds can be considered when establishing the degree of MACT requirements, but not in place of the requirement to establish a MACT floor pursuant to section 112(d)(3).
The commenter also pointed to the provisions of section 112(c)(2) which require the Administrator to establish NESHAP for listed source categories and subcategories. The commenter was concerned that EPA evaluated emissions from chlorine production plants and concluded that since they do not pose a threat to human health and the environment, the Administrator is relieved of her responsibilities to establish a MACT standard. The commenter maintained that this position is not supported by section 112(c)(2).
The commenter also referred to section 112(d)(1), stating that EPA did not have the authority to “make a determination of no regulation for a listed source category or pollutant.”
Finally, the commenter referred to section 112(d)(3), which contains the MACT floor provisions. According to the commenter, the intent of the NESHAP program is to develop a MACT
Two of the commenters stated that EPA should support its decision not to regulate the chlorine production source category by citing the provisions of section 112(c)(9)(B)(ii) in addition to the provisions of section 112(d)(4). The commenters stated that the evaluation performed by EPA would also be sufficient for deleting sources under section 112(c)(9)(B)(ii) and that EPA's proposal to not regulate chlorine production is similar to deleting a subcategory of the Chlorine Production source category. Therefore, in addition to using the authority under section 112(d)(4), the commenters suggested that EPA delete the subcategory using the authority under section 112(c)(9)(B)(ii) to avoid any uncertainty over the use of its authority under section 112(d)(4).
Contrary to other commenters claims that our use of section 112(d)(4) is inappropriate, both the statutory language and the legislative history of the provision support our decision not to set limitations for chlorine and HCl emissions from sources in the mercury cell chlor-alkali plant subcategory. The language of section 112(d)(4) provides the Agency with ample discretion to utilize a risk-based approach in determining whether to establish emission standards for those HAP where we determine that the HAP are “threshold pollutants” and that the standard (or no standard) will achieve an “ample margin of safety.”
The statutory language in section 112(d)(4) is ambiguous. Thus, under the Supreme Court's decision in
This approach is consistent with prior decisions EPA has made in the context of two other NESHAP. First, in the NESHAP for combustion sources at pulp mills (40 CFR part 63, subpart MM), we chose not to set a standard for HCl emissions from recovery furnaces, while we did set standards for other HAP emitted from the same sources within the category. We explained this decision in the preamble to the proposed MACT standard and received no adverse comment on the approach (63 FR 18754, 18765-68, April 15, 1998). Second, we proposed to set no standard under section 112(d)(4) for HCl emitted from lime kilns, while we also proposed to set standards for other HAP emitted by these same sources (67 FR 78046 December 20, 2002). We also received no adverse comment on that proposed decision. While we originally proposed to utilize section 112(d)(4) to set no standard for chlorine and HCl from chlorine production sources in a separate notice of the
We do not agree that Congress' use of the phrase “in lieu of” in CAA section 112(d)(5) so clearly restricts any possible interpretation of CAA section 112(d)(4) such that some form of a MACT standard must always be set even when the criteria of section 112(d)(4) are met. Instead, we interpret that Congress enacted section 112(d)(4) to provide EPA with the discretion to take risk into account and decide that standards need not be set when the HAP are threshold pollutants and levels being emitted are below the threshold value with an ample margin of safety. Moreover, in each case where we have exercised authority under section 112(d)(4), we have established standards in each category (or subcategory, as here) for those pollutants that do not satisfy the threshold pollutant and ample margin of safety statutory criteria.
We also disagree with the commenter who argued that the provision in section 112(c)(2), which requires the Administrator to establish emission standards for listed categories and subcategories, has much bearing on our use of section 112(d)(4) in this circumstance. By setting a standard for the emission of mercury from the mercury cell chlor-alkali plant subcategory, we are fulfilling our obligations under section 112(c)(2). As stated earlier, we have utilized the same approach in our other uses of section 112(d)(4),
The statutory language in section 112(d)(1) and (3) does not prevent us from deciding that no emission standard is necessary for a particular threshold pollutant which is being emitted at levels well below the ample margin of safety when we are also establishing standards for HAP emitted from sources in that same category or subcategory. This approach to our use of section 112(d)(4) is consistent with the statutory language of section 112(d)(1) and (3). We are establishing emission standards for the listed category or subcategory, but are deciding that no MACT floor need be established and no emission standard set for those HAP that meet the criteria of “threshold pollutant” and “ample margin of safety.”
With regard to the concerns the commenter raised about the failure to set a standard for new sources, our review of the mercury cell subcategory indicates that no new mercury cell chlor-alkali plants will be constructed. Given that our emission standard for new sources in the mercury cell chlor-alkali subcategory prohibits the emission of mercury, we do not believe any new sources using mercury cells for chlorine production will ever be constructed (or reconstructed). Therefore, this no-mercury emissions requirement in the final rule will, in effect, also ensure that there are no chlorine or HCl emissions from new mercury cell facilities.
In response to other commenters' suggestion that we utilize the authority of section 112(c)(9)(B)(ii) to delete the chlorine production category, we have
The reference concentration (RfC) is a “long-term” threshold, defined as an estimate of a daily inhalation exposure that, over a lifetime, would not likely result in the occurrence of noncancer health effects in humans. We have determined that the RfC for HCl of 20 micrograms per cubic meter (μg/m
In cases where we have not studied a chemical itself, we rely on the studies of other governmental agencies, such as the Agency for Toxic Substances and Disease Registry (ATSDR) or the Office of Health Hazard Assessment of California's Environmental Protection Agency (CAL EPA), for RfC values. The CAL EPA developed an RfC value of 0.2 μg/m
Acute exposure guideline level (AEGL) toxicity values are estimates of adverse health effects due to a single exposure lasting 8 hours or less. The confidence in the AEGL (a qualitative rating of either low, medium, or high) is based on the number of studies available and the quality of the data. Consensus toxicity values for effects of acute exposures have been developed by several different organizations, and we are beginning to develop such values. A national advisory committee organized by EPA has developed AEGL's for priority chemicals for 30-minute, 1-hour, 4-hour, and 8-hour airborne exposures. They have also determined the levels of these chemicals at each exposure duration that will protect against discomfort (AEGL1), serious effects (AEGL2), and life-threatening effects or death (AEGL3). Hydrogen chloride has been assigned AEGL values (65 FR 39264, June 23, 2000), including the 1-hour, AEGL1 of 2,700 μg/m
We maintain that the listing of health thresholds by EPA and other organizations in the public domain as discussed above has “established” health thresholds for HCl and chlorine. Further, the recognition of these levels by EPA, ASTDR, and CAL EPA indicates that chlorine and HCl are threshold pollutants.
Moreover, we provided the public an opportunity to comment on the thresholds for chlorine and HCl that we used in our original analysis for the proposed action (67 FR 44716). We used the same threshold level for HCl for both the proposed and final NESHAP for the pulp and paper mill category. We have also used the same threshold for HCl in the proposed and final NESHAP for lime production (67 FR 78046; final action is anticipated in August 2003). There is no requirement in section 112(d)(4) that EPA develop or finalize a threshold for a particular HAP in a certain manner. The thresholds we have used for both HCl and chlorine are consistent with the statutory language in section 112(d)(4).
In contrast, two other commenters did not agree with our use of the HCl RfC as a threshold level for chlorine. The commenters stated that not all of the annual chlorine emissions can be considered as HCl and, therefore, the chlorine exposure was underestimated. The commenters argued that chlorine emissions will not undergo photolysis to convert to HCl when there is not bright sunshine (
The additional information obtained from the literature confirmed our earlier information. There are several different pathways that molecular chlorine can take, including photolysis (reaction with light), reactions with hydroxyl radicals, reactions with oxygen atoms, and reactions with water vapor. Each pathway results in different amounts of Cl
Therefore, this information did not fundamentally change the assumption made in the original risk assessment, which was that on a long-term basis, individuals will be exposed more to HCl formed from the photolysis of chlorine than to chlorine. However, the commenters are correct that there will be situations where individuals will be exposed to chlorine. Therefore, in addition to the assessment where we considered only acute exposure to chlorine, we concluded that it was appropriate to consider the effects of chronic exposure to chlorine emissions from chlor-alkali plants. In order to provide an upper bound estimate of the chronic risks to compare with the lower bound estimates assuming that all chlorine was converted to HCl, we conducted modeling assuming that no chlorine is photolyzed.
In general, we consider an exposure concentration which is below the RfC concentration (what we call a hazard quotient of less than 1) to be “safe.” This is based on the definition of RfC. The RfC is a peer reviewed value defined as an estimate (with uncertainty spanning perhaps an order of magnitude) of a daily inhalation exposure to the human population (including sensitive subgroups) that is likely to be without appreciable risk of deleterious noncancer effects during a lifetime (
As discussed above, we conducted additional modeling for major source facilities within the subcategory using the same model used for the proposed action (ISCST3) to estimate chronic chlorine exposure using the assumption that no chlorine is photolyzed to HCl. The hazard quotients resulting from this additional modeling defined the upper bound of our risk assessment. The highest upper-bound hazard quotient estimated by the model is just over 0.3. (For more details regarding this revised risk assessment, refer to table 2 of the responses to comment document, available in the docket.) Given the health protective assumptions used in
As utilized in the proposed action, the AEGL2 1-hour concentrations for chlorine and HCl are 5,800 μg/m
The 1-hour AEGL1 concentration for chlorine is 2,900 μg/m
Although we stand by our original analysis, which used the AEGL2 level, we have incorporated the commentor's suggested use of the AEGL1 values (possibly with a safety factor) for determining whether an ample margin of safety has been obtained. Therefore, we simply compared the short term (1-hour average) modeling results from the original acute risk assessment to the AEGL1 values. These results were obtained by modeling the maximum allowable hourly emissions reported in the section 114 responses for each of the sources. For plants that did not report fugitive emissions, fugitive emissions were estimated using worst-case emission factors.
The maximum modeled 1-hour chlorine concentration for two of the three plants with the mercury cell chlor-alkali process is less than 5 percent of the AEGL1 (and ACGIH) value for chlorine. Further, the highest modeled concentration for any plant, 155 μg/m
Based on this comparison, we conclude that the chlorine and HCl emissions from mercury cell chlor-alkali production plants do not represent an unsafe level of acute exposure. We further maintain that, along with the chlorine exposure assessment, this proves that an ample margin of safety is provided with no additional control.
In contrast, one commenter stated that the risk assessment fell short of the Agency's prior practice. According to the commenter, whenever EPA has made determinations to regulate a specific pollutant based on health considerations (
In this assessment, the predicted health effects estimated, using very conservative inputs and assumptions, were well below the recognized health thresholds. While our approach in this particular action may not be the same as an approach for a NAAQS, we believe that it has been certainly more than “cursory.” We have looked at emissions and exposure data for each of the major sources in the subcategory. We have established hazard indices for chlorine and HCl for each major source in the subcategory. We performed a qualitative ecological assessment. Moreover, in response to comment received, we have revised our analyses and taken into account comments that we have received when performing these reassessments. We will base each risk assessment for this and future regulatory action on sound scientific principles.
There are instances where mercury cell chlor-alkali facilities are collocated with other source categories. However, based on the risk assessment for chlorine and HCl emissions from mercury cell chlor-alkali plants, the predicted impacts from chlorine and HCl at these plants are extremely low. We believe that the human health and environmental impacts from all sources in the subcategory even when collocated with other chlorine and HCl emissions will still be within an ample margin of safety to protect the public health, and will not cause adverse environmental effects. Moreover, as indicated in the preamble to the proposed action, most major processes at the sites where mercury cell chlor-alkali facilities are located are subject to, or will be subject to, NESHAP to reduce HAP emissions (67 FR 44714, July 3, 2002). Therefore, it would be inappropriate to include emissions from those sources in an assessment for the mercury cell chlor-alkali subcategory conducted under the authority of section 112(d)(4).
The commenter concluded that although EPA acknowledged that it had an obligation to ensure that any standards set under section 112(d)(4) did not have any adverse environmental effects, the Agency did not properly consider the issue. Therefore, the commenter stated that EPA could not promulgate standards under section 112(d)(4) without contravening the CAA.
The commenters are correct, however, that we did not discuss the ecological effects of chlorine. This was because, as was stated in the proposal preamble, we did not perform a separate evaluation of chronic chlorine exposure because chlorine is converted to HCl in the atmosphere so rapidly.
Atmospheric exposure is the primary pathway for environmental effects from chlorine emissions. However, since most chlorine is converted to HCl, studies have focused on the effects of HCl on vegetation. Although plant exposures to elevated levels of chlorine can cause plant injury, it tends to be converted to other, less toxic forms rather rapidly in plants and may not result in the direct accumulation of
Plant studies have found foliar damage due to chlorine emissions, decreased levels of chlorphyll a and b, decreased leaf areas, obvious chlorosis, and a decline in fruit production due to chlorine emissions.
There is evidence of effects to animals due to accidental and/or catastophic exposures, but the chlorine concentrations of these exposures are unknown. However, there are no data on exposure to historic or atmospheric concentrations.
More information is available on the effects of chlorine from aquatic exposures. However, there is no evidence that suggests that emissions of chlorine from industrial sources in the air contribute significantly to aquatic concentrations of chlorine.
One study reported a significant decrease in phytoplankton activity following exposure to 0.1 ppm chlorine in cooling tower water. Additional laboratory studies showed that continuous exposure to 0.002 milligrams per liter (mg/L) total residual chlorine (TRC) resulted in depressed algal biomass in naturally-derived microcosms.
When exposed continuously for 96 hours to 0.05 mg/L TRC, the Eurasian water milfoil showed a significant reduction in shoot and dry weights, shoot length, and chlorophyll content.
Aquatic invertebrates are very sensitive to chlorine and reaction products of chlorine, with early life stages showing the most sensitivity. For example, free chlorine, monochloramine, and dichloroamine have been shown to reduce the rate of oyster larvae survival. Many studies have been performed, and the results are highly variable depending on the chlorine species, the lifestage of the invertebrate, and other factors such as salinity. The most sensitive aquatic species appears to be molluscan larvae, with lethal concentration 50% (LC
The effects on fish also vary depending on the life stage and fish species and environmental factors, such as the pH, temperature, and type of chlorine species. Larval stages are more susceptible to effects, and freshwater species are more sensitive than marine species. Free chlorine is generally more toxic than residual chlorine; where the form of chlorine is dependent on the pH of the water. Sublethal effects such as avoidance, reduction of diversity in chlorinated effluents, reduction or elimination of spawning, abnormal larvae, reduced oxygen consumption, and gill damage have been noted. Many LC
Acute and chronic exposures to predicted chlorine and HCl concentrations around the sources are not expected to result in adverse toxicity effects. These pollutants are not persistent in the environment. The chlorine and HCl emitted should not significantly contribute to aquatic chlorine concentrations and are not likely to accumulate in the soil. Chlorine rapidly converts to HCl in the atmosphere, and chlorine and HCl are not believed to result in biomagnification or bioaccumulation in the environment. Therefore, we do not feel there will be adverse ecological effects due to chlorine and HCl emissions from mercury cell chlor-alkali plants.
The commenter further listed a lack of confidence that the mercury cell process could be adequately controlled. The commenter explained that the work practice requirements which are proposed to address fugitive emissions, the largest source of emissions from this process, are too weak.
Finally, the commenter stated that converting all mercury cell plants to membrane cells would still be cost-effective, and that their estimate of the cost to convert all mercury cell plants to other technologies ($920 million) was justifiable given the significant threat to public health and the environment posed by mercury.
In general, EPA has previously taken the position that subcategorization is appropriate where types of emissions and/or types of operation make use of the same air pollution control technology infeasible. The EPA's rulemakings reflect this general understanding and provide criteria for subcategorization that focus on the appropriateness of applying similar technology-based requirements at different sources.
The EPA feels that the subcategorization scheme it has used for this category of sources (as described above and in the proposed rule) is consistent with the statute, the legislative history, and EPA's past implementation of section 112(c) and the MACT program. The HAP emitted by the two subcategories (mercury cell chlor-alkali plants and non-mercury cell chlorine production) plants are different—while plants in both categories emit chlorine and HCl, only plants in the mercury cell subcategory emit mercury. The processes used to produce chlorine that the plants in the two subcategories used are generally different (because of the use of the mercury cells). Thus, no change was made in response to this comment and the final rule does not ban mercury cells (except the final rule does prohibit the emission of mercury from new or reconstructed chlor-alkali production facility sources).
With regard to the cost effectiveness of a ban of mercury cell chlor-alkali facilities, the commenter did not provide any basis for their estimate so we could not verify these costs. Further, we do not feel that “conversion” accurately describes the replacement of a mercury cell plant to another technology. There is little salvageable from a mercury cell plant that can be used in the construction of a membrane cell plant, so the demolition of the mercury cell plant followed by the construction of a membrane cell plant is a more accurate characterization.
Therefore, we did not promulgate a final rule that requires non-mercury technology for chlorine production.
These commenters were also concerned that the very low emission limits required by EPA's beyond-the-floor determination cannot be obtained by the industry as a whole. Specifically, the commenters stated that the Agency lacks high quality point source emission data upon which to base their “beyond-the-floor” limits. The commenters pointed out that the mercury emission limitations for hydrogen vent gas streams are based on limited data provided by a single facility in Maine that has been closed for nearly 2 years. The commenters maintained that for all of the eleven plants combined (ten affected plants plus the closed Maine plant), there was very little high quality point source emission data. Due to the significant chance that the data used to develop the standard are biased and quantitatively non-representative, the commenters stated that the Agency was not justified in moving beyond the floor to the most stringent value ever obtained by the industry.
The commenters further argued that EPA's conclusion that the “beyond-the-floor” emission limitations can be met with existing, commercially available control equipment is not supported and thereby seriously flawed. The commenters pointed out that EPA presented no data in the preamble or elsewhere in support of their decision that the proposed standards could be met with commercially available control systems.
However, in the proposal preamble (67 FR 44682), we acknowledged that there was uncertainty associated with the level of control associated with the beyond-the-floor option proposed because the molecular sieve adsorption control technology is no longer commercially available, and because the plant representing this level of control is no longer operating. We did not receive any comments indicating that the molecular sieve control technology is commercially available. Further, since the plant has closed, we were unable to obtain additional information to further scrutinize the data to ensure that they were not biased and quantitatively non-representative. Therefore, we have concluded that we cannot fully demonstrate that the proposed beyond-the-floor standard is achievable using commercially available technology.
In the proposal preamble, however, we also stated that we were retaining the option of setting the standard at the next lowest normalized emission value of 0.076g Hg/Mg Cl
The emissions estimates for the facility with normalized emissions of 0.076 g Hg/Mg Cl
For the by-product hydrogen stream for plants without end box ventilation systems and mercury thermal recovery unit vents, there were no questions raised regarding the availability of the control techniques used at the lowest emitting plants that formed the basis for the proposed emission limitations. Further, at proposal, we examined the data used to establish the emission limitations and determined that they were of adequate quality to be used to establish standards. Therefore, the final rule retains the proposed emission limitations for these emission sources.
We do not feel that it would be appropriate to apply a generic multiplier to the limit for mercury cell chlor-alkali plants to account for short-term variation. In addition, mercury cell emissions data were not available to assess the variability in emissions from these emission points. Therefore, we concluded that the emission limitation should reflect an annual average. This would be consistent with the data used to create the emission limitation and would allow for short-term variations in operations and control device performance.
The final rule is allowing weekly monitoring/testing as an alternative method to determine continuous compliance with the emission limitations. In order to be consistent with the continuous compliance approach, we concluded that the by-product hydrogen/end box ventilation emission limitation in the final rule should be annualized on a 52-week rolling basis. Specifically, the final rule requires that mercury emissions from all by-product hydrogen streams and end box ventilation system vents not exceed 0.076 grams Hg/Mg Cl
Another commenter, which submitted comments after the close of the comment period, expressed the view that the mercury consumed cannot be accounted for in material balances. This commenter asserted that the proposed rule failed to address the majority of the true annual mercury emissions from the mercury cell chlor-alkali industry. The commenter explained that the mercury used in this industry is not incorporated into final products or consumed in the process, so all mercury purchased is used to replenish mercury that has been lost from the manufacturing process. The commenter compared the amount of mercury purchased by the industry in 1994 (136 tons) to EPA's estimate of annual emissions (22,200 pounds or 11.1 tons) and concluded that the proposed rule fails to account for nearly 90 percent of the true mercury emissions from this industry. The commenter drew this conclusion based on the assumption that most of the mercury would be released to the air rather than transferred off-site as solid waste or accumulated in on-site tanks and ponds. The commenter noted that EPA's estimate of annual emissions was based on outdated and inadequate estimates of fugitive emissions which were based on short-term measurements taken when fugitive emissions were non-representatively low.
One of these commenters, who submitted comments after the comment period, recommended that EPA require both monitoring of fugitive emissions from cell rooms and waste storage areas and establish a reduction goal for such emissions. According to the commenter, technologies are available to quantify airborne mercury concentrations continuously, and in combination with estimates of air flow rates, estimates of fugitive loss rates under selected conditions could be made and could serve as the basis for reduction targets.
Even with this decrease in consumption, significant mercury remains unaccounted for by the industry. The mercury releases reported to the air, water, and solid wastes in the 2000 Toxics Release Inventory (TRI) totaled around 14 tons. This leaves around 65 tons of consumed mercury that is not accounted for in the year 2000.
While it may appear to the commenters that the discrepancy in the mercury material balance is the result of fugitive emissions, there is little empirical evidence to support this conclusion. The commenters did not provide any emissions data to support their assertion. Furthermore, industry personnel claim that mercury which condenses and accumulates in pipes, tanks, and other plant equipment makes up a large component of the unaccounted for mercury. While the commenters completely discount this claim by the industry, it is relevant to consider the very high density of mercury. For instance, the 65 tons of unaccounted for mercury in 2000 averages just over 7 tons per plant. One gallon of mercury weighs around 113 pounds, meaning that around 124 gallons of mercury would be unaccounted for per plant. This is a very small percentage (less than 2 percent) of the amount of mercury typically on site at most facilities. However, the industry is also unable to fully substantiate their theory. Therefore, the fate of all the mercury consumed at mercury cell chlor-alkali plants remains somewhat of an enigma.
We agree that work practice standards should only be set when it is not feasible to prescribe or enforce an emission standard. Indeed, our reasons for establishing work practices instead of numerical limits are based on factors associated with the practicality and feasibility of setting a realistic limit against which compliance can be measured and enforced.
First, data are not available to establish a numerical emission standard for fugitive emissions. As stated in the proposal preamble (67 FR 44680), emissions data for fugitives from cell rooms and waste storage areas are very limited. Second, we do not agree with the commenter's implication that available measurement technologies could support enforcing a numerical emission standard for the following reasons:
Therefore, the establishment of numerical emission limitations for fugitive emissions from the cell room and other areas is “not feasible,” as defined in CAA section 112(h)(2)(B). Thus, the final rule retains the work practice elements of the proposed rule.
However, in response to the concerns about unaccounted for mercury, we did add a provision in the final rule that requires each facility to record and report the mercury consumed each year. While there are no mercury consumption reduction targets in the final rule, we believe that reporting mercury consumption on a plant-specific basis will encourage additional action to identify unaccounted for mercury and reduce mercury consumption.
The commenter contrasted this with the proposed rule, which established numerical emission standards for by-product hydrogen streams, end box ventilation systems, and mercury thermal recovery unit vents, but not for cell room fugitive emissions. The commenter claimed that emissions from the cell room will be able to exceed 2,300 grams/day so long as the work practices are followed, when the rule as proposed prohibits such a result.
The commenter concluded that it is not sufficient to say that the work practices that have been proposed are more stringent than the existing requirements, because neither the existing nor proposed work practices by themselves require any given numeric level to be achieved. They argued that the existing numeric limit provides EPA and the public with an enforceable limit of performance to which owners and operators can be held. The commenter went on to indicate that such a numerical standard is particularly necessary, as plants are currently emitting far more than 2,300 grams per day of mercury. To support this assertion, the commenter provided information indicating that mercury cell plants add much more mercury to their cells than 2,300 grams per day, and they concluded that cell room emissions is a very likely way that mercury is lost. In conclusion, the commenter stated that it would be inappropriate for EPA to rely entirely on a work practice standard and eliminate stricter provisions that would enable the Agency to insist that facilities keep their emissions below a set level.
While the final rule does not retain the numerical emission limitation from the 40 CFR part 61 Mercury NESHAP, the requirements in the final rule for fugitive mercury emissions from the cell room are far more stringent than the design, maintenance, and housekeeping practices allowed by the Mercury NESHAP in lieu of meeting the numerical limit. In addition, the Mercury NESHAP contained only 18 work practice requirements as compared to the more than 80 design, operation, maintenance, inspection, and required actions for repair contained in tables 1 through 4 to the final rule. The work practice standards specify the equipment and areas to be inspected along with the frequency of the inspections and conditions that trigger corrective action. Response time intervals for when the corrective actions must occur are also specified. Furthermore, some types of inspections are required at more frequent intervals than required by the Mercury NESHAP (
Finally, the work practice standards contain a requirement for owners and operators to develop and implement a plan for the routine washdown of accessible surfaces in the cell room and other areas. The standards establish the duty for owners or operators to prepare and implement a written plan for washdowns and specify elements to be addressed in the plan. A requirement for washdowns is an important part of an overall approach to reducing cell room fugitive emissions.
Along with a floor-level periodic mercury monitoring program (discussed later), not only will the work practice standards in the final rule result in reduced mercury fugitive emissions (and, therefore, mercury consumption), but provide much more enforceable provisions so that an inspector can verify that they are being met.
In addition, we have calculated emission reductions for the final rule. Assuming that every facility is complying with the 1,000 grams per day limit from point sources (this value assumes that 1,300 grams per day of the 2,300 grams per day facility limit are being used for fugitive emissions), we estimate that baseline emissions from all nine existing facilities (relative to the Mercury NESHAP) are 3,285 kg/yr. We estimate that annual emissions after the application of MACT to be 217 kg/yr. Therefore, the final rule will result in emission reductions of 3,068 kg/yr, or approximately 93 percent from the existing Mercury NESHAP. This supports our position that we are not setting a standard that allows backsliding. Therefore, once the final rule compliance date ensues, sources subject to the provisions of the final rule will no longer be subject to the Mercury NESHAP.
In contrast, one commenter, which submitted comments after the close of the comment period, “enthusiastically” supported the proposed cell room monitoring program. Nonetheless, the commenter felt that it was unwise for the EPA to allow each owner/operator to set his/her own cell room action level.
Some commenters stated that cell room monitoring is redundant to the housekeeping requirements, and that the work practices required in Tables 1-5 to the proposed rule allow for sufficient opportunity to quickly detect abnormal sources of mercury emissions. Another commenter stated that the final rule should either require continuous monitoring or detailed work practice standards but not both. The commenter argued that cell room designs vary greatly. Given this variability, the commenter urged EPA to enable facilities to select the appropriate compliance strategy for individual circumstances.
We acknowledge that this success, which occurred in a limited and very controlled situation for a short time period, does not necessarily prove that similar monitoring at every mercury cell room would prove to be an effective long-term method to reduce mercury fugitive emissions. In fact, the design and operation of the Augusta facility probably represented the optimum circumstances for a mercury cell room monitoring program to be successful. We are aware that cell room designs vary greatly and recognize that the design affects the location and number of monitors necessary to accurately monitor each individual cell room. In addition, depending on the design of the roof, it may be possible that installation of monitors that adequately monitor mercury concentration would not even be possible.
Even with these limitations, a well designed and implemented cell room monitoring program can effectively reduce mercury fugitive emissions on a long-term basis. Therefore, we included this concept in the final rule.
However, we do agree with the commenters that a comprehensive continuous cell room monitoring program should be sufficient to reduce fugitive mercury emissions from the cell room without imposing the overlapping requirements of the detailed work practices. Therefore, we have concluded that it is appropriate to allow facilities to implement the continuous cell room monitoring program as an alternative to, and not in addition to, the work practice requirements. In the final rule, facilities are given the option to implement the cell room continuous monitoring program in lieu of the work practice requirements. We do, however, feel there is a need to outline more specifically the elements that must be included in the cell room monitoring program to ensure that it provides at least the same level of control as the work practices and cell room monitoring program would have provided together. Therefore, there are more prescriptive requirements in the final rule for the cell room monitoring plan option. The final rule dictates how the action level is to be established, what measures must be followed when the action level is exceeded, and what records must be kept.
Although the continuous cell room monitoring provisions are optional, some mercury monitoring to detect elevated mercury levels in the cell room is appropriate. Therefore, we have included a periodic monitoring program to be performed throughout the cell room as a substitute for continuous monitoring. The final rule contains a floor-level periodic monitoring program as part of the work practice standards.
The commenters indicated that variations around the concentrations, above and below, measured during the performance test can be expected. Treatment systems employed to obtain compliance (
Two of the commenters acknowledged that other MACT standards require the gathering of data for surrogate parameters (
One of the commenters argued that EPA's required installation of instruments directly in the vent stream to continuously monitor actual concentration of mercury and, therefore, actual mercury emissions, means that there is no need to rely on operating parameters which have been calculated for only one set of conditions.
One commenter was concerned about the cost-benefits of continuous
However, we do acknowledge that there is a difference in a mercury concentration operating limit and an operating limit based on surrogate parameters because the mercury concentration is obviously a direct measure of mercury emissions. In fact, we agree with the point made by the one commenter that there is no need to rely on operating parameters when a direct measurement of emissions is being required.
As discussed at length in the proposal preamble (67 FR 44690), we considered requiring mercury continuous emission monitors (CEM) that would directly measure in units of the standard. Although monitoring that directly measures compliance is preferred, we decided to propose mercury concentration operating limits based on the uncertainties associated with the cost and reliability of the mercury monitoring devices. Commenters did not provide any information to alleviate these concerns. In fact, they shared our basic concerns even if the monitoring devices were only used for operating limits.
We weighed the comments related to the mercury concentration operating limits against the concerns associated with using mercury concentration monitors as CEM. Our preference continues to be to require mercury CEM. With sufficient evaluation, analysis, and refinement, the industry will find these devices acceptable. However, we could not require these devices in the final rule without a fallback alternative if sources found that these monitoring devices were not acceptable for use within the industry.
During the development of the proposed standards, we learned that many mercury cell chlor-alkali facilities conducted periodic (
The most common final control device is (or will be) nonregenerative carbon adsorption. These fixed bed carbon devices can operate for long periods of time before a carbon change is needed. The carbon replacement frequency is often more than a year. Weekly testing would be more than sufficient to represent the emissions for the entire week and to indicate when breakthrough (
However, there is the possibility that non-carbon devices such as condensers, absorbers, or regenerative molecular sieves could be used as the final control device to comply with the emission limits in the final rule. Since improper operation of these devices could result in higher emissions for short periods, we had concerns about utilizing weekly testing for these devices. However, we concluded that if parametric monitoring of surrogate parameters (
Therefore, the final rule includes two options for continuous compliance for the by-product hydrogen stream, the end box ventilation system vent, and the mercury thermal recovery unit vent. The first option is continuous emissions monitoring using a mercury continuous emissions monitoring system. The second is periodic testing using Method 101, 101A, or 102 or an approved alternative method. Specifically, this second option requires that at least three acceptable test runs be conducted each week. As part of the periodic testing option, if the final control device is not a nonregenerative carbon adsorber, surrogate parameter monitoring is required.
The level of mercury emissions allowed by the Mercury NESHAP is 2,300 grams per day. If one assumes that all nine plants in the source category emit mercury at this level, and that each operates 365 days a year, total annual potential-to-emit baseline emissions would be 7,556 kg/yr (16,658 lb/yr). Annual potential-to-emit baseline emissions for fugitive emission sources would be 4,271 kg/yr (9,416 lb/yr), based on 1,300 grams per day assumed for each plant's cell room ventilation system when the 18 design, maintenance, and housekeeping practices referenced in the Mercury NESHAP are followed. Annual potential-to-emit baseline emissions for by-product hydrogen streams, end box ventilation system vents, and mercury thermal recovery unit vents would be 3,285 kg/yr (7,242 lb/yr), based on the remaining 1,000 grams per day allowed. We estimate that the final rule will reduce industrywide mercury emissions for by-product hydrogen streams, end box ventilation system vents, and mercury thermal recovery unit vents from this annual potential-to-emit baseline to around 217 kg/yr (478 lb/yr), which is equivalent to about 93 percent reduction.
While the level of mercury emissions allowed by the Mercury NESHAP defines the potential-to-emit baseline, the sum of annual mercury emission releases from by-product hydrogen streams, end box ventilation system vents, and mercury thermal recovery vents, as estimated by mercury cell chlor-alkali plants, defines an annual actual baseline for vents of about 800 kg/yr (1,764 lb/yr). We estimate that the final rule will reduce industrywide mercury emissions for vents from this annual actual baseline to around 217 kg/yr (478 lb/yr), which is equivalent to about 73 percent reduction.
We estimate that secondary air pollution emissions will result from the production of electricity required to operate new control devices and new monitoring equipment assumed for plant vents. Assuming electricity production as based entirely on coal combustion for a worst-case scenario, we estimated plant-specific impacts for sulfur dioxide, nitrogen oxides, particulate matter, and carbon monoxide emissions. The total estimated secondary air impacts of the final requirements for point sources at the nine mercury cell chlor-alkali plants is around 2.12 mg/yr (4.67 tpy) for all pollutants combined.
We are unable to quantify the primary air emission impacts associated with the final work practice standards, so no mercury emission reduction is assumed for fugitive emission sources. However, we feel strongly that the new and more explicit requirements contained in the final standards will in fact result in mercury emission reductions beyond baseline levels. Relative to secondary impacts, we expect that secondary air pollution emissions will result from the production of electricity required to operate new monitoring equipment assumed for plant cell rooms. We estimate the secondary air impacts of the final rule for fugitive emission sources to be 0.112 mg/yr (0.124 tpy).
We do not expect that there will be any significant adverse non-air health impacts associated with the final standards for mercury-cell chlor-alkali plants.
We estimate that an increase in the amount of mercury-containing waters will result from the heightened use of packed tower scrubbing assumed for several plant vents. The total estimated water pollution impact of the final rule for point sources is about 1.5 million liters (404 thousand gallons) of additional wastewater per year. We estimate that an increase in the amount of mercury-containing solid wastes will result with the heightened use of carbon adsorption assumed for several plant vents. The total estimated solid waste impact of the final rule for point sources is about 8.8 mg/yr (9.7 tpy) of additional mercury-containing spent carbon.
We are unable to quantify non-air environmental impacts associated with the final work practice standards, so no wastewater and solid waste impacts are assumed for fugitive emission sources.
We estimate that the final requirements for point sources will result in increased energy consumption, specifically additional fan power in conveying gas streams through new carbon adsorbers and new packed scrubbers assumed for certain plant vents and additional power consumed by new vent monitoring equipment. The total estimated energy impacts of the final requirements for point sources is about 772 thousand kW-hr/yr.
We estimate that the final requirements for fugitive emission sources will result in increased energy consumption required to operate new monitoring equipment assumed for plant cell rooms. The total estimated energy impacts of the final requirements for fugitive emission sources is about 39 thousand kW-hr/yr.
For projecting cost impacts of the final rule on the mercury cell chlor-alkali industry, we estimate that all nine plants will incur costs to meet the final work practice standards and the final monitoring, recordkeeping, and reporting requirements. We estimate that seven plants will incur costs to meet the final emission limits for by-product hydrogen streams and end box ventilation system vents, and two plants will incur costs to meet the final emission limits for mercury thermal recovery units. The total estimated capital cost of the final rule for the nine mercury cell chlor-alkali plants is around $1.6 million, and the total estimated annual cost is about $1.4 million per year. Plant-specific annual costs in our estimate range from about $130,000 for the least-impacted plant to about $260,000 for the worst-impacted plant.
The purpose of the economic impact analysis is to estimate the market response of chlor-alkali production facilities to the final standards and to determine the economic effects that may result due to the final NESHAP. Chlor-alkali production jointly creates both chlorine and caustic, usually sodium hydroxide, in fixed proportions. Being joint commodities, the economic analysis considers the impacts of the final NESHAP on both the chlorine and sodium hydroxide markets.
The chlor-alkali production source category contains 43 facilities, but only nine facilities using mercury cells are directly affected by the final standards. These nine facilities are located at nine plants that are owned by seven companies.
Chlor-alkali production in mercury cells leads to potential mercury emissions from hydrogen streams, end box ventilation system vents, mercury thermal recovery units, and fugitive emission sources. The compliance costs for the final standards, therefore, relate to the purchase, installation, operation, and maintenance of pollution control equipment at the point sources, as well as the labor costs and overheads associated with observing work practices addressing fugitive emissions. The estimated total annual costs for the final NESHAP are $1.8 million. This cost estimate represents about 0.30 percent of the 1997 chlorine sales revenue for the mercury cell chlor-alkali production facilities. Furthermore, the total annual costs represent less than 0.01 percent of the revenues of owning the directly affected mercury cell chlor-alkali plants.
The economic analysis predicts minimal changes in industry outputs and the market prices of chlorine and sodium hydroxide as a result of the estimated control costs. The new market equilibrium quantities of chlorine and sodium hydroxide decrease by less than 0.1 percent. Equilibrium prices of chlorine and sodium hydroxide both rise by less than 0.1 percent due to the final standards. Based on these estimates, we conclude that the final standards are not likely to have a significant economic impact on the chlorine production industry as a whole or on secondary markets such as the labor market and foreign trade.
We performed an economic analysis to determine facility- and company-specific impacts. These economic impacts are measured by calculating the ratio of the estimated annualized compliance costs of emissions control for each entity to its revenues (
The share of compliance costs to company sales are calculated to determine company level impacts. Since seven companies own the nine affected facilities, all seven firms face positive compliance costs from the final NESHAP. The ratio of costs to estimated revenues range from a low of less than 0.01 percent to a high of 0.22 percent, and the average ratio of costs to company revenues is 0.06 percent. Again, more detailed economic analysis at the company level predicts little change in company output or revenues. So, at the company level, the final standards are not anticipated to have a significant economic impact on companies that own and operate the chlorine production facilities.
No facility or company is expected to close as a result of the final standards, and the economic impacts to consumers are anticipated to be minimal. The generally small scale of the impacts suggests that there will also be no significant impacts on markets for the products made using chlorine or sodium hydroxide. For more information, consult the economic impact analysis report entitled “Economic Impact Analysis for the Final Mercury Cell Chlor-Alkali Production NESHAP,” which is available in the docket for this rulemaking.
Under Executive Order 12866 (58 FR 51735, October 4, 1993), the Agency must determine whether the regulatory action is “significant” and therefore subject to Office of Management and Budget (OMB) review and the requirements of the Executive Order. The Executive Order defines “significant regulatory action” as one that is likely to result in a rule that may:
(1) Have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities;
(2) create a serious inconsistency or otherwise interfere with an action taken or planned by another agency;
(3) materially alter the budgetary impact of entitlements, grants, user fees, or loan programs, or the rights and obligation of recipients thereof; or
(4) raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the Executive Order.
It has been determined that the final rule is not a “significant regulatory action” under the terms of Executive Order 12866 and is, therefore, not subject to OMB review.
The information collection requirements in the final rule have been submitted for approval to OMB under the requirements of the Paperwork Reduction Act, 44 U.S.C. 3501
The information requirements are based on notifications, records, and reports required by the General Provisions (40 CFR part 63, subpart A), which are mandatory for all operators subject to national emission standards. These recordkeeping and reporting requirements are specifically authorized under section 114 of the CAA (42 U.S.C. 7414). All information submitted to the EPA pursuant to the recordkeeping and reporting requirements for which a claim of confidentiality is made will be safeguarded according to Agency policies in 40 CFR part 2, subpart B, Confidentiality of Business Information.
According to the ICR, the total 3-year monitoring, reporting, and recordkeeping burden for this collection is 6,692 labor hours, and the annual average burden is 2,231 labor hours. The total annualized cost of monitoring, reporting, and recordkeeping is approximately $628,212. The labor cost over the 3-year period is $295,928 or $98,643 per year. The annualized capital cost for monitoring equipment is $262,458. Annual operation and maintenance costs are $365,754 over 3 years, averaging $121,918 per year. This estimate includes a one-time plan for demonstrating compliance, annual compliance certificate reports, notifications, and recordkeeping.
Burden means the total time, effort, or financial resources expended by persons to generate, maintain, retain, or disclose or provide information to or for a Federal agency. This includes the time needed to review instructions; develop, acquire, install, and utilize technology and systems for the purpose of collecting, validating, and verifying information; process and maintain information and disclose and provide information; adjust the existing ways to comply with any previously applicable instructions and requirements; train personnel to respond to a collection of information; search existing data sources; complete and review the collection of information; and transmit or otherwise disclose the information.
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number. The OMB control numbers for EPA's regulations are listed in 40 CFR part 9 and 48 CFR chapter 15. The OMB control number(s) for the information collection requirements in the final rule will be listed in an amendment to 40 CFR part 9 or 48 CFR chapter 15 in a subsequent
The EPA has determined that it is not necessary to prepare a regulatory flexibility analysis in connection with the final rule. The EPA has also determined that the final rule will not have a significant economic impact on a substantial number of small entities. For purposes of assessing the impacts of today's final rule on small entities, small entity is defined as: (1) A small business according to the Small Business Administration (SBA) size standards by NAICS code, a maximum of 1,000 employees for the alkalies and chlorine manufacturing industry; (2) a small governmental jurisdiction that is a government of a city, county, town, school district or special district with a population of less than 50,000; and (3) a small organization that is any not-for-profit enterprise which is independently owned and operated and is not dominant in its field.
After considering the economic impacts of today's final rule on small entities, EPA has concluded that this action will not have a significant economic impact on a substantial number of small entities. We have determined that two of the seven companies that own mercury chlor-alkali plants are small entities. Although small businesses represent 30 percent of the companies within the source category, they are expected to incur 18 percent of the total industry annual compliance costs. There are no companies with compliance costs equal to or greater than 1 percent of their sales. No firms are expected to close rather than incur the costs of compliance with the final rule.
Although the final rule will not have significant economic impact on a substantial number of small entities, we have nonetheless worked aggressively to minimize the impact of the final rule on small entities, consistent with our obligation under the CAA. The two companies have been active participants in the rulemaking process through their association with the industry trade organization, the Chlorine Institute. Therefore, we met with representatives of these small entities on numerous occasions. In addition, we conducted an extended visit to a mercury cell chlor-alkali plant owned by one of these companies to understand their process and emission control techniques, along with any unique impacts that might occur due to the fact that their company was a small entity. In general, the provisions of the rule were deigned to achieve the maximum emission reduction while also incorporating as many of the existing practices currently being employed by the industry. The input received from these small entities was duly considered in this evaluation.
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public Law 104-4, establishes requirements for Federal agencies to assess the effects of their regulatory actions on State, local, and tribal governments and the private sector. Under section 202 of the UMRA, we generally must prepare a written statement, including cost-benefit analysis, for proposed and final rules with “Federal mandates” that may result in expenditures to State, local, and Tribal governments, in the aggregate, or to the private sector, of $100 million or more in any 1 year. Before promulgating an EPA rule for which a written statement is needed, section 205 of the UMRA generally requires us to identify and consider a reasonable number of regulatory alternatives and adopt the least costly, most cost-effective, or least burdensome alternative that achieves the objectives of the rule. The provisions of section 205 do not apply when they are inconsistent with applicable law. Moreover, section 205 allows us to adopt an alternative other than the least costly, most cost-effective, or least burdensome alternative if we publish with the final rule an explanation why that alternative was not adopted.
Before we establish any regulatory requirements that may significantly or uniquely affect small governments, including Tribal governments, we must have developed under section 203 of the UMRA a small government agency plan. The plan must provide for notifying potentially affected small governments, enabling officials of affected small governments to have meaningful and timely input in the development of our regulatory proposals with significant Federal intergovernmental mandates, and informing, educating, and advising small governments on compliance with the regulatory requirements.
We have determined that the final rule does not contain a Federal mandate that may result in expenditures of $100 million or more for State, local, or tribal governments, in the aggregate, or the private sector in any 1 year. The total annualized cost of the final rule has been estimated to be $1,390,000. Thus, today's final rule is not subject to the requirements of sections 202 and 205 of the UMRA. In addition, we have determined that the final rule contains no regulatory requirements that might significantly or uniquely affect small governments because it contains no regulatory requirements that apply to such governments or impose obligations upon them. Therefore, the final rule is not subject to the requirements of section 203 of the UMRA.
Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999), requires EPA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” are defined in the Executive Order to include regulations that have “substantial direct effects on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of Government.”
The final rule does not have federalism implications. It will not have substantial direct effects on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of Government, as specified in Executive Order 13132. The standards apply only to mercury cell chlor-alkali plants and do not pre-exempt States from adopting more stringent standards or otherwise regulate State or local governments. Thus, Executive Order 13132 does not apply to the final rule.
Although section 6 of Executive Order 13132 does not apply to the final rule, EPA did consult with State and local officials in developing the final rule. No concerns were raised by these officials during this consultation.
Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 6, 2000), requires EPA to develop an accountable process to ensure “meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications.” “Policies that have tribal implications” are defined in the Executive Order to include regulations that have “substantial direct effects on one or more Indian tribes, on the relationship between the Federal government and the Indian tribes, or on the distribution of power and responsibilities between the Federal government and Indian tribes.”
The final rule does not have tribal implications. It will not have substantial direct effects on tribal governments, on the relationship between the Federal government and Indian tribes, or on the distribution of power and responsibilities between the Federal government and Indian tribes, as specified in Executive Order 13175. This is because no tribal governments own or operate a mercury cell chlor-alkali plant. Thus, Executive Order 13175 does not apply to the final rule.
Executive Order 13045, “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997) applies to any rule that (1) is determined to be “economically significant” as defined under Executive Order 12866, and (2) concerns an environmental health or safety risk that EPA has reason to believe may have a disproportionate effect on children. If the regulatory action meets both criteria, the Agency must evaluate the environmental health or safety effects of the planned rule on children and explain why the planned rule is preferable to other potentially effective and reasonably feasible alternatives that we considered.
The final rule is not subject to Executive Order 13045 because it is not an economically significant regulatory action as defined by Executive Order 12866. In addition, EPA interprets Executive Order 13045 as applying only to those regulatory actions that are based on health and safety risks, such that the analysis required under section
As with most rulemakings developed under section 112(d) of the CAA, the final rule is based on MACT. Risks to public health and impacts on the environment are not typically considered in the development of emissions standards under section 112(d). Rather, these risks and impacts are considered later (within 8 years after promulgation of the MACT rule) under the residual risk program as required by section 112(f) of the CAA. While we do not believe the final rule to be “economically significant,” as defined under Executive Order 12866, we do believe that it addresses environmental health or safety risks that may have a disproportionate effect on children.
Mercury has been identified as a priority pollutant under EPA's National Agenda to Protect Children's Health from Environmental Threats and by the Federal Children's Health Protection Advisory Committee (CHPAC). The CHPAC was formed to advise, consult with, and make recommendations to EPA on issues associated with the development of regulations to address the prevention of adverse health effects to children. One of the CHPAC's primary missions was to identify five existing EPA regulations, which if reevaluated, could lead to better protection for children. The CHPAC recommended the Mercury NESHAP for chlor-alkali plants as one of the regulations to be reevaluated considering impacts on children. We adopted the CHPAC recommendation. Therefore, we considered the impacts on children in the development of the final rule. A qualitative assessment of the potential impacts on children's health due to mercury emissions from chlor-alkali plants was presented in the preamble to the proposed rule (67 FR 44693).
Because the final rule does not meet both criteria for applicability, it is not subject to Executive Order 13045. However, based on our assessment, the final rule will help reduce the mercury exposures to humans, including children.
The final rule is not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001) because it is not a significant regulatory action under Executive Order 12866.
Section 12(d) of the National Technology Transfer and Advancement Act (NTTAA) of 1995 (Public Law No. 104-113; 15 U.S.C. 272 note) directs EPA to use voluntary consensus standards in their regulatory and procurement activities unless to do so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (
The final rule involves technical standards. The EPA cites in the final rule EPA Methods 1, 1A, 2, 2A, 2C, 2D, 3, 3A, 3B, 4, 5, 101, 101A, 102, and any method to measure mercury (validated with EPA Method 301). Consistent with the NTTAA, EPA conducted searches to identify voluntary consensus standards in addition to these EPA methods. No applicable voluntary consensus standards were identified for EPA Methods 1A, 2A, 2D, and 102. The search and review results have been documented and are placed in the docket (OAR-2002-0017 or A-2000-32) for the final rule.
This search for emissions monitoring procedures identified 14 voluntary consensus standards and five draft standards. The EPA determined that the 14 standards were impractical alternatives to EPA test methods for the purposes of this rulemaking. Therefore, EPA will not adopt these standards today. The reasons for this determination for these 14 standards are in the docket.
The 14 voluntary consensus standards are as follows: ASME C00031 or PTC 19-10-1981, “Part 10 Flue and Exhaust Gas Analyses,” for EPA Method 3; ASME PTC-38-80 R85 or C00049, “Determination of the Concentration of Particulate Matter in Gas Streams,” for EPA Method 5; ASTM D3154-91 (1995), “Standard Method for Average Velocity in a Duct (Pitot Tube Method),” for EPA Methods 1, 2, 2C, 3, 3B, and 4; ASTM D3464-96, “Standard Test Method Average Velocity in a Duct Using a Thermal Anemometer,” for EPA Method 2; ASTM D3685/D3685M-98, “Test Methods for Sampling and Determination of Particulate Matter in Stack Gases,” for EPA Method 5; ASTM D3796-90 (1998), “Standard Practice for Calibration of Type S Pitot Tubes,” for EPA Method 2; ASTM D5835-95, “Standard Practice for Sampling Stationary Source Emissions for Automated Determination of Gas Concentration,” for EPA Methods 3A; ASTM E337-84 (Reapproved 1996), “Standard Test Method for Measuring Humidity with a Psychrometer (the Measurement of Wet- and Dry-Bulb Temperatures),” for EPA Method 4; CAN/CSA Z223.1-M1977, “Method for the Determination of Particulate Mass Flows in Enclosed Gas Streams,” for EPA Method 5; CAN/CSA Z223.2-M86 (1986), “Method for the Continuous Measurement of Oxygen, Carbon Dioxide, Carbon Monoxide, Sulphur Dioxide, and Oxides of Nitrogen in Enclosed Combustion Flue Gas Streams,” for EPA Methods 3A; CAN/CSA Z223.26-M1987, “Measurement of Total Mercury in Air Cold Vapour Atomic Absorption Spectrophotometeric Method,” for EPA Methods 101 and 101A; ISO 9096:1992 (in review 2000), “Determination of Concentration and Mass Flow Rate of Particulate Matter in Gas Carrying Ducts—Manual Gravimetric Method,” for EPA Method 5; ISO 10396:1993, “Stationary Source Emissions: Sampling for the Automated Determination of Gas Concentrations,” for EPA Method 3A; ISO 10780:1994, “Stationary Source Emissions—Measurement of Velocity and Volume Flowrate of Gas Streams in Ducts,” for EPA Method 2.
The following five standards identified in this search were not available at the time the review was conducted for the purposes of this rulemaking because they are under development by a voluntary consensus body: ASME/BSR MFC 12M, “Flow in Closed Conduits Using Multiport Averaging Pitot Primary Flowmeters,” for EPA Method 2; ASME/BSR MFC 13M, “Flow Measurement by Velocity Traverse,” for EPA Method 2 (and possibly 1); ISO/DIS 12039, “Stationary Source Emissions—Determination of Carbon Monoxide, Carbon Dioxide, and Oxygen—Automated Methods,” for EPA Method 3A; PREN 13211 (1998), “Air Quality—Stationary Source Emissions—Determination of the Concentration of Total Mercury,” for EPA Methods 101, 101A (and mercury portion of EPA Method 29); and ASTM Z6590Z, “Manual Method for Both Speciated and Elemental Mercury” is a potential alternative for portions of EPA Methods 101A and Method 29 (mercury portion only).
Section 63.8232 of the final rule lists the EPA testing methods included in the final rule. Under 40 CFR 63.7(f) and 63.8(f), a source may apply to EPA for
The Congressional Review Act, 5 U.S.C. 801
Environmental protection, Administrative practice and procedure, Air pollution control, Hazardous substances, Intergovernmental relations, Recordkeeping and reporting requirements.
42 U.S.C. 7401,
This subpart establishes national emission standards for hazardous air pollutants (NESHAP) for affected sources of mercury emissions at mercury cell chlor-alkali plants. This subpart also establishes requirements to demonstrate initial and continuous compliance with all applicable emission limitations and work practice standards in this subpart.
(a) You are subject to this subpart if you own or operate a mercury cell chlor-alkali plant.
(b) You are required to obtain a title V permit, whether your affected source is a part of a major source of hazardous air pollutant (HAP) emissions or a part of an area source of HAP emissions. A major source of HAP is a source that emits or has the potential to emit any single HAP at a rate of 10 tons or more per year or any combination of HAP at a rate of 25 tons or more per year. An area source of HAP is a source that has the potential to emit HAP but is not a major source. Nothing in this subpart revises how affected sources are aggregated for purposes of determining whether an affected source is a part of an area, nonmajor, or major source under any provisions of the Clean Air Act (CAA) or EPA's regulations. For information on aggregating affected sources to determine what is a source under title V, see the definition of major source in 40 CFR 70.2, 71.2 and 63.2.
(c) Beginning on December 19, 2006, the provisions of subpart E of 40 CFR part 61 that apply to mercury chlor-alkali plants, which are listed in paragraphs (c)(1) through (3) of this section, are no longer applicable.
(1) § 61.52(a);
(2) § 61.53(b) and (c); and
(3) § 61.55(b), (c) and (d).
(a) This subpart applies to each affected source at a plant site where chlorine and caustic are produced in mercury cells. This subpart applies to two types of affected sources: the mercury cell chlor-alkali production facility, as defined in paragraph (a)(1) of this section; and the mercury recovery facility, as defined in paragraph (a)(2) of this section.
(1) The mercury cell chlor-alkali production facility designates an affected source consisting of all cell rooms and ancillary operations used in the manufacture of product chlorine, product caustic, and by-product hydrogen at a plant site. This subpart covers mercury emissions from by-product hydrogen streams, end box ventilation system vents, and fugitive emission sources associated with cell rooms, hydrogen systems, caustic systems, and storage areas for mercury-containing wastes.
(2) The mercury recovery facility designates an affected source consisting of all processes and associated operations needed for mercury recovery from wastes at a plant site. This subpart covers mercury emissions from mercury thermal recovery unit vents and fugitive emission sources associated with storage areas for mercury-containing wastes.
(b) An affected source at your mercury cell chlor-alkali plant is existing if you commenced construction of the affected source before July 3, 2002.
(c) A mercury recovery facility is a new affected source if you commence construction or reconstruction of the affected source after July 3, 2002. An affected source is reconstructed if it meets the definition of “reconstruction” in § 63.2.
(a) If you have an existing affected source, you must comply with each emission limitation, work practice standard, and recordkeeping and reporting requirement in this subpart that applies to you no later than December 19, 2006.
(b) If you have a new or reconstructed mercury recovery facility and its initial startup date is on or before December 19, 2003, you must comply with each emission limitation, work practice standard, and recordkeeping and reporting requirement in this subpart that applies to you by December 19, 2003.
(c) If you have a new or reconstructed mercury recovery facility and its initial startup date is after December 19, 2003, you must comply with each emission limitation, work practice standard, and recordkeeping and reporting requirement in this subpart that applies to you upon initial startup.
(d) You must meet the notification and schedule requirements in § 63.8252. Several of these notifications must be submitted before the compliance date for your affected source(s).
(a)
(1) New or reconstructed mercury cell chlor-alkali production facility. Emissions of mercury are prohibited from a new or reconstructed mercury cell chlor-alkali production facility.
(2) Existing mercury cell chlor-alkali production facility. During any consecutive 52-week period, you must not discharge to the atmosphere total mercury emissions in excess of the applicable limit in paragraph (a)(2)(i) or (ii) of this section calculated using the procedures in § 63.8243(a).
(i) 0.076 grams of mercury per megagram of chlorine produced (1.5 × 10
(ii) 0.033 grams of mercury per megagram of chlorine produced (6.59 × 10
(3) New, reconstructed, or existing mercury recovery facility. You must not discharge to the atmosphere mercury emissions in excess of the applicable limit in paragraph (a)(3)(i) or (ii) of this section.
(i) 23 milligrams per dry standard cubic meter from each oven type mercury thermal recovery unit vent.
(ii) 4 milligrams per dry standard cubic meter from each non-oven type mercury thermal recovery unit vent.
(b) [Reserved]
You must meet the work practice requirements specified in paragraphs (a) through (f) of this section. As an alternative to the requirements specified in paragraphs (a) through (d) of this section, you may choose to comply with paragraph (g) of this section.
(a) You must meet the work practice standards in Tables 1 through 4 to this subpart, except as specified in paragraph (g) of this section.
(b) You must adhere to the response intervals specified in Tables 1 through 4 to this subpart at all times. Nonadherence to the intervals in Tables 1 through 4 to this subpart constitutes a deviation and must be documented and reported in the compliance report, as required by § 63.8254(b), with the date and time of the deviation, cause of the deviation, a description of the conditions, and time actual compliance was achieved.
(c) As provided in § 63.6(g), you may request to use an alternative to the work practice standards in Tables 1 through 4 to this subpart.
(d) You must institute a floor-level mercury vapor measurement program to limit the amount of mercury vapor in the cell room environment through periodic measurement of mercury vapor levels and actions to be taken when a floor-level mercury concentration action level is exceeded. The program must meet the requirements listed in paragraphs (d)(1) through (4) of this section. As specified in § 63.8252(e)(1)(i) to implement this program, you must prepare and submit to the Administrator a floor-level mercury vapor measurement plan which must contain the elements listed in Table 5 to this subpart.
(1) You must utilize a mercury measurement device described in of Table 6 to this subpart to measure the level of mercury vapor in the cell room at floor-level.
(2) You must conduct at least one floor-level mercury vapor measurement evaluation each half day. This evaluation must include three measurements of the mercury concentration at locations representative of the entire cell room floor area. The average of these measurements must be recorded as specified in § 63.8156(c)(1). At a minimum, you must measure the level of mercury vapor above mercury-containing cell room equipment, as well as areas around the cells, decomposers, or other mercury-containing equipment.
(3) You must establish a floor-level mercury concentration action level that is no higher than 0.05 milligrams per cubic meter (mg/m
(4) If a mercury concentration greater than the action level is measured during any floor-level mercury vapor measurement evaluation, you must meet the requirements in either paragraph (d)(4)(i) or (ii) of this section.
(i) If you determine that the cause of the elevated mercury concentration is an open electrolyzer, decomposer, or
(A) A description of the maintenance activity resulting in elevated mercury concentration;
(B) The time the maintenance activity was initiated and completed; and
(C) A detailed explanation how all the applicable requirements of Table 1 to this subpart were met during the maintenance activity.
(ii) If you determine that the cause of the elevated mercury concentration is not an open electrolyzer, decomposer, or other maintenance activity, you must follow the procedures specified in paragraphs (d)(4)(ii)(A) and (B) of this section until the floor-level mercury concentration falls below the floor-level mercury concentration action level. You must also keep all the associated records for these procedures as specified in Table 9 to this subpart.
(A) Within 1 hour of the time the floor-level mercury concentration action level was exceeded, you must conduct each inspection specified in Table 2 to this subpart in the area where the concentration higher than the floor-level mercury concentration action level was measured, with the exception of the cell room floor and the pillars and beam inspections. (B) You must also inspect all decomposers, hydrogen system piping up to the hydrogen header, and other potential locations of mercury vapor leaks in the area using a technique specified in Table 6 to this subpart. You must correct any problem identified during these inspections according to the requirements in Tables 2 and 3 to this subpart.
(e) You must prepare, submit, and operate according to a written washdown plan designed to minimize fugitive mercury emissions through routine washing of surfaces where liquid mercury could accumulate. The written plan must address the elements contained in Table 7 to this subpart.
(f) You must keep records of the mass of all virgin mercury added to cells on an annual basis.
(g) As an alternative to the work practice standards in paragraphs (a) through (d) of this section, you may institute a cell room monitoring program to continuously monitor the mercury vapor concentration in the upper portion of each cell room and to take corrective actions as quickly as possible when elevated mercury vapor levels are detected. As specified in § 63.8252(e)(1)(iv), if you choose this option, you must prepare and submit to the Administrator, a cell room monitoring plan containing the elements listed in Table 5 to this subpart and meet the requirements in paragraphs (g)(1) through (4) of this section.
(1) You must utilize mercury monitoring systems that meet the requirements of Table 8 to this subpart.
(2) You must establish an action level according to the requirements in paragraphs (g)(2)(i) through (iii) of this section.
(i) Beginning on the compliance date specified for your affected source in § 63.8186, measure and record the mercury concentration for at least 30 days using a system that meets the requirements of paragraph (g)(1) of this section.
(ii) Using the monitoring data collected according to paragraph (g)(1)(i) of this section, establish your action level at the 75th percentile of the data set.
(iii) Submit your action level as part of your Notification of Compliance Status report according to § 63.8252(e)(1).
(3) Beginning on the compliance date specified for your affected source in § 63.8186, you must continuously monitor the mercury concentration in the cell room. Failure to monitor and record the data according to § 63.8256(c) (4)(ii) for 75 percent of the time in any 6-month period constitutes a deviation.
(4) If the average mercury concentration for any 1-hour period exceeds the action level established according to paragraph (g)(2) of this section, you must meet the requirements in either paragraph (g)(4)(i) or (ii) of this section.
(i) If you determine that the cause of the elevated mercury concentration is an open electrolyzer, decomposer, or other maintenance activity, you must record the information specified in paragraphs (g)(4)(i)(A) through (C) of this section.
(A) A description of the maintenance activity resulting in elevated mercury concentration;
(B) The time the maintenance activity was initiated and completed; and
(C) A detailed explanation how all the applicable requirements of Table 1 to this subpart were met during the maintenance activity.
(ii) If you determine that the cause of the elevated mercury concentration is not an open electrolyzer, decomposer, or other maintenance activity, you must follow the procedures specified in paragraphs (g)(4)(ii)(A) and (B) of this section until the mercury concentration falls below the action level. You must also keep all the associated records for these procedures as specified in Table 9 to this subpart.
(A) Within 1 hour of the time the action level was exceeded, you must conduct each inspection specified in Table 2 to this subpart, with the exception of the cell room floor and the pillars and beam inspections. You must correct any problem identified during these inspections in accordance with the requirements in Table 2 and 3 to this subpart.
(B) If the Table 2 inspections and subsequent corrective actions do not reduce the mercury concentration below the action level, you must inspect all decomposers, hydrogen system piping up to the hydrogen header, and other potential locations of mercury vapor leaks using a technique specified in Table 6 to this subpart. If a mercury vapor leak is identified, you must take the appropriate action specified in Table 3 to this subpart.
As required by § 63.6(e)(1)(i), you must always operate and maintain your affected source(s), including air pollution control and monitoring equipment, in a manner consistent with safety and good air pollution control practices for minimizing emissions.
(a) You must be in compliance with the applicable emission limitations for by-product hydrogen streams, end box ventilation system vents, and mercury thermal recovery unit vents in § 63.8190 at all times, except during periods of startup, shutdown, and malfunction. You must be in compliance with the applicable work practice standards in § 63.8192 at all times, except during periods of startup, shutdown, and malfunction.
(b) You must develop and implement a written startup, shutdown, and malfunction plan (SSMP) according to the provisions in § 63.6(e)(3).
(a) You must conduct a performance test no later than the compliance date that is specified in § 63.8186 for your affected source to demonstrate initial compliance with the applicable emission limit in § 63.8190(a)(2) for by-product hydrogen streams and end box ventilation system vents and the
(b) For the applicable work practice standards in § 63.8192, you must demonstrate initial compliance within 30 calendar days after the compliance date that is specified for your affected source in § 63.8186.
You must conduct a performance test for each by-product hydrogen stream, end box ventilation system vent, and mercury thermal recovery unit vent according to the requirements in § 63.7(e)(1) and the conditions detailed in paragraphs (a) through (d) of this section.
(a) You may not conduct performance tests during periods of startup, shutdown, or malfunction, as specified in § 63.7(e)(1).
(b) For each performance test, you must develop a site-specific test plan in accordance with § 63.7(c)(2).
(c) You must conduct at least three test runs to comprise a performance test, as specified in § 63.7(e)(3) and in either paragraph (c)(1) or (2) of this section.
(1) The sampling time and sampling volume for each run must be at least 2 hours and 1.70 dry standard cubic meters (dscm). Mercury results below the analytical laboratory's detection limit must be reported using the reported analytical detection limit to calculate the sample concentration value and, in turn, the emission rate in the units of the standard; or
(2) The sampling time for each test run must be at least 2 hours and the mercury concentration in each field sample analyzed must be at least two times the reported analytical detection limit.
(d) You must use the test methods specified in paragraphs (d)(1) through (4) of this section and the applicable test methods in paragraphs (d)(5) through (7) of this section.
(1) Method 1 or 1A in appendix A of 40 CFR part 60 to determine the sampling port locations and the location and required number of sampling traverse points.
(2) Method 2, 2A, 2C, or 2D in appendix A of 40 CFR part 60 to determine the stack gas velocity and volumetric flow rate.
(3) Method 3, 3A, or 3B in appendix A of 40 CFR part 60 to determine the stack gas molecular weight.
(4) Method 4 in appendix A of 40 CFR part 60 to determine the stack gas moisture content.
(5) For each by-product hydrogen stream, Method 102 in appendix A of 40 CFR part 61 to measure the mercury emission rate after the last control device.
(6) For each end box ventilation system vent, Method 101 or 101A in appendix A of 40 CFR part 61 to measure the mercury emission rate after the last control device.
(7) For each mercury thermal recovery unit vent, Method 101 or 101A in appendix A of 40 CFR part 61 to measure the mercury emission rate after the last control device.
(e) During each test run for a by-product hydrogen stream and each test run for an end box ventilation system vent, you must continuously measure the electric current through the operating mercury cells and record a measurement at least once every 15 minutes.
(f) If the final control device is not a nonregenerable carbon adsorber and if you are demonstrating compliance using periodic monitoring under § 63.8240(b), you must continuously monitor the parameters listed in paragraph (f)(1) of this section and establish your maximum or minimum monitoring value (as appropriate for your control device) using the requirements in paragraph (f)(2) of this section.
(1) During the performance test specified in paragraphs (a) through (d) of this section, you must continuously monitor the control device parameters in paragraphs (f)(1)(i) through (vii) of this section and record a measurement at least once every 15 minutes.
(i) The exit gas temperature from uncontrolled streams;
(ii) The outlet temperature of the gas stream for the final (
(iii) The outlet temperature of the gas stream from the final cooling system when the cooling system is followed by a molecular sieve or regenerative carbon adsorber;
(iv) Outlet concentration of available chlorine, pH, liquid flow rate, and inlet gas temperature of chlorinated brine scrubbers and hypochlorite scrubbers;
(v) The liquid flow rate and exit gas temperature for water scrubbers;
(vi) The inlet gas temperature of regenerative carbon adsorption systems; and
(vii) The temperature during the heating phase of the regeneration cycle for carbon adsorbers or molecular sieves.
(2) To establish a maximum monitoring value or minimum monitoring value, as appropriate for your final control device, you must average the recorded parameters in paragraphs (f)(1)(i) through (vi) of this section over the test period. If your final control device is a regenerative carbon adsorber, you must use the highest temperature reading measured in paragraph (f)(1)(vii) as the reference temperature in § 63.8244(b)(2)(v).
(a)
(1) Determine the mercury emission rate for each test run in grams per day for each by-product hydrogen stream and for each end box ventilation system vent, if applicable, from Method 101, 101A, or 102 (40 CFR part 61, appendix A).
(2) Calculate the average measured electric current through the operating mercury cells during each test run for each by-product hydrogen stream and for each end box ventilation system vent, if applicable, using Equation 1 of this section as follows:
(3) Calculate the amount of chlorine produced during each test run for each by-product hydrogen stream and for each end box ventilation system vent, if applicable, using Equation 2 of this section as follows:
(4) Calculate the mercury emission rate in grams of mercury per megagram of chlorine produced for each test run for each by-product hydrogen stream and for each end box ventilation system vent, if applicable, using Equation 3 of this section as follows:
(5) Calculate the average mercury emission rate for each by-product hydrogen stream and for each end box ventilation system vent, if applicable, using Equation 4 of this section as follows:
(6) Calculate the total mercury emission rate from all by-product hydrogen streams and all end box ventilation system vents, if applicable, at the mercury cell chlor-alkali production facility using Equation 5 of this section as follows:
(b)
(1) Calculate the concentration of mercury in milligrams of mercury per dscm of exhaust for each test run for each mercury thermal recovery unit vent using Equation 6 of this section as follows:
(2) Calculate the average concentration of mercury in each mercury thermal recovery unit vent exhaust using Equation 7 of this section as follows:
(a) For each mercury cell chlor-alkali production facility, you have demonstrated initial compliance with the applicable emission limit for by-product hydrogen streams and end box ventilation system vents in § 63.8190(a)(2) if you comply with paragraphs (a)(1) and (2) of this section:
(1) Total mercury emission rate from all by-product hydrogen streams and all end box ventilation system vents, if applicable, at the affected source, determined according to §§ 63.8232 and 63.8234(a), did not exceed the applicable emission limit in § 63.8190(a)(2)(i) or (ii); and
(2) If you have chosen the periodic monitoring option specified in § 63.8240(b) and your final control device is not a nonregenerable carbon adsorber, you have established a parameter value according to § 63.8232(f)(2).
(b) For each mercury recovery facility, you have demonstrated initial compliance with the applicable emission limit for mercury thermal recovery unit vents in § 63.8190(a)(3) if you comply with paragraphs (b)(1) and (2) of this section.
(1) Mercury concentration in each mercury thermal recovery unit vent exhaust, determined according to §§ 63.8232 and 63.8234(b), did not exceed the applicable emission limit in § 63.8190(a)(3)(i) or (ii); and
(2) If you have chosen the periodic monitoring option in § 63.8240(b) and have a final control device that is not a nonregenerable carbon adsorber, you
(c) For each affected source, you have demonstrated initial compliance with the applicable work practice standards in § 63.8192 if you comply with paragraphs (c)(1) through (7) of this section.
(1) You certify in your Notification of Compliance Status that you are operating according to the work practice standards in § 63.8192(a) through (d).
(2) You choose the continuous cell room monitoring program option, you certify in your Notification of Compliance Status that you are operating according to the continuous cell room monitoring program under § 63.8192(g) and you have established your action level according to § 63.8192(g)(2).
(3) You certify in your Notification of Compliance Status that you are operating according to your washdown plan.
(4) You have submitted your washdown plan as part of your Notification of Compliance Status.
(5) You have submitted your continuous cell room monitoring plan, if applicable, as part of your Notification of Compliance Status.
(6) You have submitted your floor-level cell room monitoring plan, if applicable, as part of your Notification of Compliance Status.
(7) You have submitted records of the mass of virgin mercury added to cells for the 5 years preceding the applicable compliance date for your affected source as a part of the Notification of Compliance Status.
(d) You must submit the Notification of Compliance Status containing the results of the initial compliance demonstration according to the requirements in § 63.8252(e).
For each by-product hydrogen stream, each end box ventilation system vent, and each mercury thermal recovery unit vent, you must monitor the mercury emissions using the procedures in paragraph (a) or (b) of this section.
(a) You must continuously monitor the mercury concentration using a mercury continuous emissions monitor according to the requirements in §§ 63.8242(a) and 63.8244(a); or
(b) You must periodically monitor the mercury emissions according to the requirements in §§ 63.8242(b) and 63.8244(b).
(a) If you choose the continuous mercury monitoring option under § 63.8240(a), you must install, operate, and maintain each mercury continuous emissions monitor according to paragraphs (a)(1) through (5) of this section.
(1) Each mercury continuous emissions monitor must sample, analyze, and record the concentration of mercury at least once every 15 minutes.
(2) Each mercury continuous emissions monitor analyzer must have a detector with the capability to detect a mercury concentration at or below 0.5 times the mercury concentration level measured during the performance test conducted according to § 63.8232.
(3) In lieu of a promulgated performance specification as required in § 63.8(a)(2), you must develop a site-specific monitoring plan that addresses the elements in paragraphs (a)(3)(i) through (vi) of this section.
(i) Installation and measurement location downstream of the final control device for each by-product hydrogen stream, end box ventilation system vent, and mercury thermal recovery unit vent.
(ii) Performance and equipment specifications for the sample interface, the pollutant concentration analyzer, and the data collection and reduction system.
(iii) Performance evaluation procedures and acceptance criteria (
(iv) Ongoing operation and maintenance procedures according to the requirements of § 63.8(c)(1), (3), and (4)(ii).
(v) Ongoing data quality assurance procedures according to the requirements of § 63.8(d).
(vi) Ongoing recordkeeping and reporting procedures in accordance with the general requirements of § 63.10(c), (e)(1), and (e)(2)(i).
(4) You must conduct a performance evaluation of each mercury continuous emissions monitor according to your site-specific monitoring plan.
(5) You must operate and maintain each mercury continuous emissions monitor in continuous operation according to the site-specific monitoring plan.
(b) If you choose the periodic monitoring option and your final control device is not a nonregenerable carbon adsorber, you must install, operate, and maintain a continuous parameter monitoring system (CPMS) for each parameter specified in § 63.8232(f)(1), according to § 63.8(c).
(a)
(1) Each week, you must determine the weekly mercury emission rate in grams per week for each by-product hydrogen stream and for each end box ventilation system vent, if applicable, using one of the monitoring options in paragraph (a)(1)(i) or (ii) of this section.
(i) Continuous mercury monitoring according to §§ 63.8242 and 63.8244(a).
(ii) Periodic monitoring according to § 63.8244(b).
(2) Each week, you must determine the chlorine production and keep records of the production rate as required under § 63.8256(b)(6).
(3) Beginning 52 weeks after the compliance date specified in § 63.8186 for your affected source, you must calculate the 52-week average mercury emission rate from all by-product hydrogen steam and all end box ventilation system vents, if applicable, using Equation 1 of this section as follows:
(b)
(1) You must calculate the daily average mercury concentration using Equation 2 of this section as follows:
(2) You must calculate the daily average mercury concentration using the procedures in § 63.8234(b).
(a)
(1) Except for monitor malfunctions, associated repairs, and required quality assurance or control activities (including, as applicable, calibration checks and required zero and span adjustments), you must monitor mercury emissions continuously (or collect data at all required intervals) at all times that the affected source is operating. A monitoring malfunction is any sudden, infrequent, not reasonably preventable failure of the monitoring to provide valid data. Monitoring failures that are caused in part by poor maintenance or careless operation are not malfunctions.
(2) You may not use data recorded during monitoring malfunctions, associated repairs, and required quality assurance or control activities in data averages and calculations used to report emission or operating levels or to fulfill a minimum data availability requirement, if applicable. You must use all the data collected during all other periods in assessing compliance.
(b)
(1) If your final control device is a nonregenerable carbon adsorber, then you must conduct at least three test runs per week meeting the criteria specified in § 63.8232(c)(1) and (2) to measure mercury emissions using the test methods specified in § 63.8232(d). Alternatively, you may use any other method that has been validated using the applicable procedures in Method 301, 40 CFR part 63, appendix A.
(2) If your final control device is anything other than a nonregenerable carbon adsorber, you must monitor according to the requirements of paragraphs (b)(2)(i) through (v) of this section.
(i) You must conduct at least three test runs per week meeting the criteria specified in § 63.8232(c)(1) and (2) to measure mercury emissions using the test methods specified in § 63.8232(d). Alternatively, you may use any other method that has been validated using the applicable procedures in Method 301, 40 CFR part 63, appendix A.
(ii) Except as specified in paragraph (b)(2)(iii) of this section, you must continuously collect data at least once every 15 minutes using a CPMS installed and operated according to § 63.8242(b) and record each 1-hour average from all measured data values during each 1-hour period for the applicable parameter identified in § 63.8232(f)(1) using the methods specified in § 63.8244(a).
(iii) As appropriate, you must continuously monitor the temperature specified in § 63.8232(f)(1)(vii) during each heating phase of the regeneration cycle of your carbon adsorber.
(iv) If the hourly average monitoring value of any applicable parameter recorded under paragraph (b)(2)(ii) of this section is below the minimum monitoring value or above the maximum monitoring value of that same parameter established under § 63.8232(f)(2) for 24 consecutive hours, your monitoring value is out of range and you must take corrective action as soon as practicable. The hourly average monitoring value must be above the minimum monitoring value or below the maximum monitoring value as appropriate for that parameter, within 48 hours of the period that the monitoring value is out of range.
(v) If your final control device is a regenerative carbon adsorber, when the maximum hourly value of the temperature measured according to paragraph (b)(2)(iii) of this section is below the reference temperature determined according to § 63.8232(f)(2) for three consecutive regeneration cycles, your monitoring value is out of range and you must take corrective action as soon as practicable. During the first regeneration cycle following the period that your monitoring value is out of range, the maximum hourly value must be above the reference temperature recorded according to § 63.8232(f)(2).
(a)
(i)
(ii)
(2) You must maintain records of mercury emissions and 52-week average values, as required in § 63.8256(b)(3) and (4). If your final control device is not a nonregenerable carbon adsorber, you must maintain records according to § 63.8256(d).
(b)
(i)
(ii)
(2) You must maintain records of mercury emissions and daily average values as required in § 63.8256(b)(3). If your final control device is not a nonregenerable carbon adsorber, you must maintain records according to § 63.8256(d).
(c) You must demonstrate continuous compliance with the applicable work practice standards in § 63.8192 by maintaining records in accordance with § 63.8256(c).
(a)
(1) You must report each instance in which you did not meet each emission limitation in § 63.8190 that applies to you. This includes periods of startup, shutdown, and malfunction.
(2) You must report each instance in which you did not meet each work practice standard in § 63.8192 that applies to you. This includes periods of startup, shutdown, and malfunction.
(3) You must report each instance in which the corrective actions taken according to § 63.8244(b)(2)(iv) did not result in average monitoring values being within range within 48 hours of the period that the monitoring value is out of range.
(4) You must report each instance in which the corrective action taken according to § 63.8244(b)(2)(v) did not result in the maximum hourly temperature being above the reference temperature during the first regeneration cycle following the period that the monitoring value was out of range.
(b)
(1) Consistent with §§ 63.6(e) and 63.7(e)(1), deviations that occur during a period of startup, shutdown, or malfunction are not violations if you demonstrate to the Administrator's satisfaction that you have an adequate startup, shutdown, or malfunction plan that satisfies the requirements of § 63.6(e), and you have complied with the startup, shutdown, and malfunction plan.
(2) The Administrator will determine whether deviations that occur during a period of startup, shutdown, or malfunction are violations, according to the provisions in § 63.6(e).
(3) By-passing the control device for maintenance activities is not considered a startup, shutdown, or malfunction event.
(a) You must submit all of the notifications in §§ 63.7(b) and (c), 63.8(e) and (f) and 63.9(b) through (h) that apply to you by the dates specified.
(b) As specified in § 63.9(b)(2), if you start up your affected source before December 19, 2003, you must submit your initial notification not later than April 19, 2004.
(c) As specified in § 63.9(b)(3), if you start up your new or reconstructed mercury recovery facility on or after December 19, 2003, you must submit your initial notification not later than 120 days after you become subject to this subpart.
(d) For each performance test that you are required to conduct for by-product hydrogen streams and end box ventilation system vents and for mercury thermal recovery unit vents, you must submit a notification of intent to conduct a performance test at least 60 calendar days before the performance test is scheduled to begin as required in § 7(b)(1).
(e) You must submit a Notification of Compliance Status according to paragraphs (e)(1) and (2) of this section.
(1) For each initial compliance demonstration that does not include a performance test, you must submit the Notification of Compliance Status before the close of business on the 30th calendar day following the completion of the initial compliance demonstration. The Notification of Compliance Status must contain the items in paragraphs (e)(1)(i) through (iv) of this section:
(i) If you choose not to implement a cell room monitoring program according to § 63.8192(g), a certification that you are operating according to the applicable work practice standards in § 63.8192(a) through (d) and your floor-level mercury vapor measurement plan required by § 63.8192(d).
(ii) The washdown plan, and you must certify that you are operating according to the washdown plan specified in § 63.8192(f).
(iii) The mass of virgin mercury added to cells for the 5 years preceding the compliance date.
(iv) If you choose to implement a cell room monitoring program according to § 63.8192(g), your cell room monitoring plan.
(2) For each initial compliance demonstration that does include a performance test, you must submit the Notification of Compliance Status, including the performance test results, before the close of business on the 60th calendar day following the completion of the performance test according to § 63.10(d)(2). The Notification of Compliance Status must contain the information in § 63.9(h)(2)(ii)(A) through (G). The site-specific monitoring plan required in § 63.8242(a)(3) must also be submitted.
(a)
(1) The first compliance report must cover the period beginning on the compliance date that is specified for your affected source in § 63.8186 and ending on June 30 or December 31, whichever date comes first after the compliance date that is specified for your affected source in § 63.8186.
(2) The first compliance report must be postmarked or delivered no later than July 31 or January 31, whichever date comes first after your first compliance reporting period.
(3) Each subsequent compliance report must cover the semiannual reporting period from January 1 through June 30 or the semiannual reporting period from July 1 through December 31.
(4) Each subsequent compliance report must be postmarked or delivered no later than July 31 or January 31, whichever date comes first after the end of the semiannual reporting period.
(b)
(1) Company name and address.
(2) Statement by a responsible official, with that official's name, title, and signature, certifying the truth, accuracy, and completeness of the report.
(3) Date of report and beginning and ending dates of the reporting period.
(4) If you had a startup, shutdown or malfunction during the reporting period and you took actions consistent with your startup, shutdown, and malfunction plan, the compliance report must include the information in § 63.10(d)(5)(i).
(5) If there were no deviations from the continuous compliance requirements in § 63.8246 that apply to you, a statement that there were no deviations from the emission limitations, work practice standards, and operation and maintenance standards during the reporting period.
(6) If there were no periods during which the mercury continuous emission monitor or CPMS (if applicable) were out-of-control as specified in § 63.8(c)(7), a statement that there were no periods during the which the mercury continuous emissions monitor or CPMS (if applicable) were out-of-control during the reporting period.
(7) For each deviation from the requirements for work practice standards in Tables 1 through 4 to this subpart that occurs at an affected source (including deviations where the response intervals were not adhered to as described in § 63.8192(b)), the compliance report must contain the information in paragraphs (b)(1) through (4) of this section and the information in paragraphs (b)(7)(i) and (ii) of this section. This includes periods of startup, shutdown, and malfunction.
(i) The total operating time of each affected source during the reporting period.
(ii) Information on the number, duration, and cause of deviations (including unknown cause, if applicable), as applicable, and the corrective action taken.
(8) For each deviation from an emission limitation occurring at an affected source where you are using a mercury continuous emission monitor, according to the site-specific monitoring plan required in § 63.8242(a)(3), to comply with the emission limitation in this subpart, you must include the information in paragraphs (b)(1) through (4) of this section and the information in paragraphs (b)(8)(i) through (xii) of this section. This includes periods of startup, shutdown, and malfunction.
(i) The date and time that each malfunction started and stopped.
(ii) The date and time of each instance in which a continuous monitoring system was inoperative, except for zero (low-level) and high-level checks.
(iii) The date, time, and duration of each instance in which a continuous monitoring system was out-of-control, including the information in § 63.8(c)(8).
(iv) The date and time that each deviation started and stopped, and whether each deviation occurred during a period of startup, shutdown, or malfunction or during another period.
(v) A summary of the total duration of the deviation during the reporting period and the total duration as a percent of the total source operating time during that reporting period.
(vi) A breakdown of the total duration of the deviations during the reporting period including those that are due to startup, shutdown, control equipment problems, process problems, other known causes, and other unknown causes.
(vii) A summary of the total duration of continuous monitoring system downtime during the reporting period and the total duration of monitoring system downtime as a percent of the total source operating time during the reporting period.
(viii) An identification of each hazardous air pollutant that was monitored at the affected source.
(ix) A brief description of the process units.
(x) A brief description of the continuous monitoring system.
(xi) The date of the latest continuous monitoring system certification or audit.
(xii) A description of any changes in monitoring system, processes, or controls since the last reporting period.
(9) For each deviation from an operation and maintenance standard occurring at an affected source where you are using the periodic monitoring option specified in § 63.8240(b) and your final control device is not a nonregenerable carbon adsorber, the compliance report must include the information in paragraphs (b)(1) through (4) of this section and the information in paragraphs (b)(9)(i) through (x) of this section. This includes periods of startups, shutdowns and malfunctions.
(i) The total operating time of each affected source during the reporting period.
(ii) Information on the number, duration, and cause of deviations (including unknown cause, if applicable), as applicable, whether the deviation occurred during a period of startup, shutdown, or malfunction, or other period, and the corrective action taken.
(iii) The date and time of each instance in which a CPMS was inoperative, except for zero (low-level) and high-level checks.
(iv) The date, time, and duration of each instance in which a CPMS was out-of-control, including the information specified in § 63.8(c)(8).
(v) A summary of the total duration of the deviation during the reporting period and the total duration as a percent of the total source operating time during that reporting period.
(vi) A breakdown of the total duration of the deviations during the reporting period including those that are due to startup, shutdown, control equipment problems, process problems, other known causes, and other unknown causes.
(vii) A summary of the total duration of continuous monitoring system downtime during the reporting period and the total duration of monitoring system downtime as a percent of the total source operating time during the reporting period.
(viii) A brief description of the CPMS.
(ix) The date of the latest CPMS certification or audit.
(x) A description of any changes in monitoring system, processes, or controls since the last reporting period.
(10) The compliance report must contain the mass of virgin mercury added to cells for the reporting period.
(11) The compliance report must contain each instance in which corrective actions taken under § 63.8244(b)(2)(iv) did not result in average monitoring values being within range within 48 hours of the period that the monitoring value is out of range.
(12) The compliance report must contain each instance in which corrective action taken according to § 63.8244(b)(2)(v) did not result in the maximum hourly temperature being above the reference temperature during the first regeneration cycle following the period that the monitoring value was out of range.
(c)
(d)
(a)
(1) A copy of each notification and report that you submitted to comply with this subpart, including all documentation supporting any initial notification or Notification of Compliance Status that you submitted, according to the requirements in § 63.10(b)(2)(xiv).
(2) The records in § 63.6(e)(3)(iii) through (v) related to startup, shutdown, and malfunction.
(b) Records associated with the by-product hydrogen stream and end box ventilation system vent emission limitations and the mercury thermal recovery unit vent emission limitations. You must keep the records in paragraphs (b)(1) through (5) of this section related to the emission limitations in § 63.8190(a)(2) through (3) and (b).
(1) Records of performance tests as required in § 63.10(b)(2)(viii).
(2) Records of the mercury emissions monitoring conducted during the performance tests.
(3) Records of the continuous or periodic mercury emissions monitoring data.
(4) Records of the 52-week rolling average mercury emissions.
(5) Records associated with your site-specific monitoring plan required in § 63.8242(a)(3) (
(6) Records of chlorine production on a weekly basis.
(c) Records associated with the work practice standards.
(1) If you choose not to institute a cell room monitoring program according to § 63.8192(g) of this subpart, you must keep the records specified in paragraphs (c)(1)(i) through (v) of this section.
(i) Records specified in Table 9 to this subpart related to the work practice standards in Tables 1 through 4 of this subpart.
(ii) Your current floor-level mercury vapor measurement plan.
(iii) Records of the average value calculated from at least three measurements taken according to your floor-level mercury vapor measurement plan.
(iv) Records indicated in § 63.8192(d)(4)(i) for maintenance activities that cause the floor-level mercury concentration to exceed the action level.
(v) Records of all inspections and corrective actions taken in response to a non-maintenance related situation in which the mercury vapor concentration exceeds the floor-level mercury concentration action level.
(2) You must maintain a copy of your current washdown plan and records of when each washdown occurs.
(3) You must maintain records of the mass of virgin mercury added to cells for each reporting period.
(4) If you choose to institute a cell room monitoring program according to § 63.8192(g) of this subpart, you must keep your current cell room monitoring plan and the records specified in paragraphs (c)(4)(i) through (v) of this section.
(i) Records of the monitoring conducted in accordance with § 63.8192(g)(2)(i) to establish your action level, and records demonstrating the development of this action level.
(ii) Records of the cell room mercury concentration monitoring data collected.
(iii) Instances when the action level is exceeded.
(iv) Records specified in § 63.8192(g)(4)(i) for maintenance activities that cause the mercury vapor concentration to exceed the action level.
(v) Records of all inspections and corrective actions taken in response to a non-maintenance related situation in which the mercury vapor concentration exceeds the action level.
(d) Records associated with the periodic monitoring option if your final control device is not a nonregenerable carbon adsorber. You must keep the records in paragraph (d)(1) through (3) of this section.
(1) Records of the CPMS data collected during the performance test as specified in § 63.8232(f)(1).
(2) Records documenting the development of the maximum monitoring value or minimum monitoring value, as appropriate, according to § 63.8232(f)(2).
(3) Records of hourly average values of applicable parameters monitored as specified in § 63.8244(b)(2)(ii) or (iii).
(a) Your records must be in a form suitable and readily available for expeditious inspection and review, according to § 63.10(b)(1).
(b) As specified in § 63.10(b)(1), you must keep each record for 5 years following the date of each occurrence, measurement, maintenance, corrective action, report, or record.
(c) You must keep each record on site for at least 2 years after the date of each occurrence, measurement, maintenance, corrective action, report, or record, according to § 63.10(b)(1). You can keep the records offsite for the remaining 3 years.
Table 10 to this subpart shows which parts of the General Provisions in §§ 63.1 through 63.13 apply to you.
(a) This subpart can be implemented and enforced by us, the United States Environmental Protection Agency (U.S. EPA), or a delegated authority such as your State, local, or tribal agency. If the EPA Administrator has delegated authority to your State, local, or tribal agency, then that agency has the authority to implement and enforce this subpart. You should contact your EPA Regional Office to find out if this subpart is delegated to your State, local, or tribal agency.
(b) In delegating implementation and enforcement authority of this subpart to a State, local, or tribal agency under subpart E of this part, the authorities contained in paragraph (c) of this section are retained by the EPA Administrator and are not transferred to the State, local, or tribal agency.
(c) The authorities in paragraphs (c)(1) through (4) of this section will not be delegated to State, local, or tribal agencies.
(1) Approval of alternatives under § 63.6(g) to the non-opacity emission limitations in § 63.8190 and work practice standards in § 63.8192.
(2) Approval of major alternatives to test methods under § 63.7(e)(2)(ii) and (f) and as defined in § 63.90.
(3) Approval of major alternatives to monitoring under § 63.8(f) and as defined in § 63.90.
(4) Approval of major alternatives to recordkeeping and reporting under § 63.10(f) and as defined in § 63.90.
Terms used in this subpart are defined in the CAA, in § 63.2, and in this section as follows:
(1) Fails to meet any requirement or obligation established by this subpart including, but not limited to, any emission limitation (including any operating limit) or work practice standard;
(2) Fails to meet any term or condition that is adopted to implement an applicable requirement in this subpart and that is included in the title V operating permit for any affected source required to obtain such a permit;
(3) Fails to meet any emission limitation (including any operating limit) or work practice standard in this subpart during startup, shutdown, or malfunction, regardless of whether or not such failure is allowed by this subpart; or
(4) Fails to take corrective actions within 48 hours that result in parameter monitoring values being within range.
Environmental Protection Agency (EPA).
Final decision to delete subcategory.
This final action deletes the subcategory of sources that do not utilize mercury cells to produce chlorine and caustic. We have determined that this non-mercury cell chlorine production subcategory should be deleted because chlorine and hydrochloric acid (HCl), the only hazardous air pollutants (HAP) emitted, are not carcinogenic, have well-defined health thresholds, and chlorine and HCl air emissions from each non-mercury cell chlorine subcategory source do not exceed a level which is adequate to protect public health with an ample margin of safety. In addition, the emissions of chlorine and HCl will not result in any adverse environmental effects. This final action does not address chlorine and HCl emissions from mercury cell chlor-alkali plants. The final rulemaking for the mercury cell chlor-alkali plant subcategory is contained elsewhere in this issue of the
December 19, 2003.
Mr. Iliam Rosario, Metals Group, Emission Standards Division (C439-02), U.S. EPA, Research Triangle Park, North Carolina 27711, telephone number: (919) 541-5308, facsimile: (919) 541-5600, electronic mail address: rosario.iliam@epa.gov.
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
This description is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be affected by this final action. If you have questions regarding the applicability of this final action to a particular entity, consult the person listed in the preceding
Section 112 of the Clean Air Act (CAA) contains our authorities for reducing emissions of HAP. Section 112(c)(1) of the CAA requires us to list categories and subcategories of major sources and area sources of HAP and to establish national emission standards for hazardous air pollutants (NESHAP) for the listed source categories and subcategories. Section 112(c)(9) of the CAA contains provisions that allow the deletion of source categories listed under CAA section 112(c)(1) provided that certain conditions are met. For chemicals that may result in cancer in humans, the condition is that no source in the category emit HAP in quantities that result in a lifetime cancer risk of greater than one in a million to the individual in the population who is most exposed. For chemicals that result in adverse health effects other than cancer or adverse environmental effects, the conditions are that no source in the category emit HAP that exceed a level “adequate to protect public health with an ample margin of safety” and that no source emit HAP in quantities to cause adverse environmental effects.
Section 112(d) of the CAA requires us to promulgate regulations establishing emission standards for each category or subcategory of major sources and area sources of HAP listed pursuant to CAA section 112(c). Section 112(d)(2) of the CAA specifies that emission standards promulgated under the section shall require the maximum degree of reductions in emissions of the HAP subject to CAA section 112 that are deemed achievable considering cost and any non-air quality health and environmental impacts and energy requirements.
Each of the NESHAP established reflects the maximum degree of reduction in emissions of HAP that is achievable. This level of control is commonly referred to as maximum achievable control technology (MACT).
The CAA includes exceptions to the general statutory requirement to establish emission standards based on MACT. For pollutants for which a threshold has been established, CAA section 112(d)(4) allows us “. . . to consider such threshold level, with an ample margin of safety, when establishing emissions standards. . . .”
The chlorine production source category was initially listed as a category of major sources of HAP pursuant to section 112(c)(1) of the CAA on July 16, 1992 (57 FR 31576). At the time of the initial listing, we defined the chlorine production source category as follows: “The Chlorine Production Source Category includes any facility engaged in the production of chlorine. The category includes, but is not limited to, facilities producing chlorine by the following production methods: diaphragm cell, mercury cell, membrane cell, hybrid fuel cell, Downs cell, potash manufacture, hydrochloric acid decomposition, nitrosyl chloride process, nitric acid/salt process, Kel-Chlor process, and sodium chloride/sulfuric acid process.”
In our subsequent analysis of the chlorine production source category, we did not identify any facilities that produce chlorine using hybrid fuel cells, the nitrosyl chloride process, the Kel-Chlor process, the sodium chloride/sulfuric acid process, or as a by-product from potash manufacturing. The majority of the source category is made up of chlor-alkali plants that produce chlorine and caustic (sodium hydroxide) using mercury cells, diaphragm cells, or membrane cells. We also identified operating plants that produce chlorine as a by-product: one from the production of sodium metal in Down cells, another from the production of potassium nitrate fertilizer that uses the nitric acid/salt process, and a third that produces chlorine as a by-product from primary magnesium refining (magnesium refining is a separately listed source category, and is being addressed on its own in a separate rulemaking). In addition, at a site where a membrane cell process is located, we have identified a process that produces chlorine through the decomposition of HCl. Our analysis shows that the only HAP emitted from sources within the chlorine production source category are chlorine, HCl, and mercury, and mercury is only emitted from mercury cell chlor-alkali plants.
Because of the differences in the production methods and the HAP emitted, we decided to divide the chlorine production category into two subcategories: (1) Mercury cell chlor-alkali plants, and (2) chlorine production plants that do not rely upon mercury cells for chlorine production (diaphragm cell chlor-alkali plants, membrane cell chlor-alkali plants, etc). Thus, on July 3, 2002, we issued different proposals to address the emissions of mercury from the mercury cell chlorine production subcategory sources (67 FR 44672) and the emissions of chlorine and HCl from both the non-mercury cell chlorine production subcategory and the mercury cell chlorine production subcategory sources (67 FR 44713). This final action deletes the non-mercury cell chlorine production subcategory. Elsewhere in today's
In the non-mercury cell chlorine production subcategory, we identified 20 major source plant sites where diaphragm or membrane cell chlor-alkali chlorine production plants are located. None of the non-mercury cell chlorine production processes at these sites emit HAP greater than 10 tons per year (tpy) of one HAP or 25 tpy of all HAP (that is, they would not be major source if they were not collocated with other HAP emission sources), but the total emissions from the entire contiguous plant site make each a major source.
Prior to proposal, we met with industry representatives to discuss the data and information used to develop the proposed action. In addition, these and other potential stakeholders, including equipment vendors and environmental groups, had opportunity to comment on the proposed action.
The proposed action was published in the
We received eight public comment letters on the proposed action. The commenters represent the following affiliations: industry representatives, governmental entities, and environmental groups during the public comment. In the post-proposal period, we had discussions with commenters and other stakeholders to clarify comments and to assist in our analysis of the comments. Records of these contacts are found in Docket No. A-2002-09 or OAR-2002-0016.
This final action deletes the subcategory of the Chlorine Production Source Category for facilities that do not utilize mercury cells to produce chlorine and caustic. This action is
On July 3, 2002 (67 FR 44713), we proposed not to regulate chlorine and HCl emissions from all chlorine production processes (mercury and non-mercury cell) under the authority of CAA section 112(d)(4). We based that decision on our determination that no further control is necessary because chlorine and HCl are health threshold pollutants, and chlorine and HCl levels emitted from chlorine production processes are below their threshold values within an ample margin of safety, and they do not result in adverse environmental effects.
For a complete summary of all the comments received on the proposed rule and our responses to them, refer to the “National Standards for Hazardous Air Pollutants: Chlorine and Hydrochloric Acid Emissions from Chlorine Production: Summary of Public Comments and Responses” in Docket No. A-2002-09 or OAR-2002-0016.
Several commenters supported the decision not to regulate chlorine and HCl emissions from chlorine production plants under the authority of CAA section 112(d)(4). One commenter stated that EPA conducted an appropriate analysis to determine that human exposures from ambient concentrations are well below threshold values with an ample margin of safety. According to another commenter, any further regulation of chlorine and HCl emissions from the chlorine production industry would have no environmental benefits, but would result in costs for monitoring, recordkeeping, and reporting efforts to certify compliance with any requirements. The commenter was concerned that a rulemaking would also stretch EPA's limited resources in monitoring for compliance. Three commenters stated that EPA's interpretation of their authority under CAA section 112(d)(4) was supported by the legislative history, which emphasizes that Congress included section 112(d)(4) in the CAA to prevent unnecessary regulation of source categories. The commenter agreed that under CAA section 112(d)(4), once EPA establishes that a pollutant has a health threshold and that exposure to that pollutant's emissions are below the health threshold, EPA should refrain from setting MACT standards for that pollutant. The commenter further suggested that EPA should use CAA section 112(d)(4) whenever setting emission standards under CAA section 112(d).
Three commenters disagreed with EPA's interpretation of CAA section 112(d)(4). They did not believe that CAA section 112(d)(4) could be used as an alternative to setting MACT standards under CAA section 112(d)(3). One commenter noted that the phrase “in lieu of” was not included in the CAA section 112(d)(4) provisions, and that its absence was intentional. In support of their claim, the commenter pointed to CAA section 112(d)(5), which does contain the phrase “in lieu of.” The commenter interpreted CAA section 112(d)(4) to mean that health based thresholds can be considered when establishing the degree of MACT requirements, but not in place of the requirement to establish a MACT floor pursuant to CAA section 112(d)(3).
The commenter also pointed to the provisions of CAA section 112(c)(2) which require the Administrator to establish NESHAP for listed source categories and subcategories. The commenter was concerned that EPA evaluated emissions from chlorine production plants and concluded that since they do not pose a threat to human health and the environment, the Administrator is relieved of her responsibilities to establish a MACT standard. The commenter maintained that this position is not supported by CAA section 112(c)(2).
The commenter also referred to CAA section 112(d)(1) which states “. . . the Administrator shall promulgate regulations establishing emission standards for each category or subcategory of major sources and area sources of hazardous air pollutants listed for regulation pursuant to subsection (c) of this section. . . .” Thus, the commenter stated that EPA did not have the authority to “make a determination of no regulation for a listed source category or pollutant.”
Finally, the commenter referred to CAA section 112(d)(3), which contains the MACT floor provisions. According to the commenter, the intent of the NESHAP program is to develop a MACT floor, and EPA is not fulfilling the requirements of the CAA by not performing such an analysis. The commenter stated that a majority of facilities identified in the analysis have adequate controls due to State regulations and these controls should be incorporated into the MACT floor evaluation. The commenter was particularly concerned that by not developing a MACT floor, no new source MACT standards were created. The commenter requested that EPA perform a MACT floor analysis, and develop a NESHAP for new sources.
Two commenters that stated that they believe that EPA should support their decision not to regulate the chlorine production source category by citing the provisions of CAA section 112(c)(9)(B)(ii) in addition to the provisions of CAA section 112(d)(4). The commenters stated that the evaluation performed by EPA would also be sufficient for deleting sources under CAA section 112(c)(9)(B)(ii), and that EPA's proposal to not regulate chlorine production is similar to deleting a subcategory of the chlorine production source category (
We agree with those two commenters who suggested that exercising our authority under CAA section 112(c)(9)(B)(ii) is appropriate for this subcategory for a number of reasons. First, CAA section 112(c)(9)(B)(ii) permits the deletion of subcategories, and that is what is at issue here. We are not deleting the entire chlorine production category; neither are we deleting the mercury cell subcategory, the emissions from which and production methodology are different from those facilities that produce chlorine using diaphragm cells, membrane cells, and the various processes that produce chlorine as a by-product. Second, the only HAP emitted in significant quantities from the facilities in this subcategory are chlorine and HCl. Chlorine and HCl are not carcinogens (
We have reviewed in some detail the comments which have questioned our proposed use of CAA section 112(d)(4) to not establish NESHAP for chlorine and HCl emissions from facilities within the non-mercury cell chlorine production subcategory. We do not agree with these comments, and we are exercising our authority under CAA section 112(d)(4) to not regulate chlorine and HCl emissions from the mercury cell chlorine production source category. The NESHAP for the mercury cell chlorine subcategory is being promulgated in a separate action listed elsewhere in today's
The Reference Concentration (RfC) is a long-term threshold, defined as an estimate of a daily inhalation exposure that, over a lifetime, would not likely result in the occurrence of noncancer health effects in humans. We have determined that the RfC for HCl of 20 microgram per cubic meter (μg/m
In cases where we have not studied a chemical itself, we rely on the studies of other governmental agencies, such as the Agency for Toxic Substances and Disease Registry (ATSDR) or the Office of Health Hazard Assessment of California's Environmental Protection Agency (CAL EPA), for RfC values. The CAL EPA developed an RfC value of 0.2 μg/m
Acute exposure guideline level (AEGL) toxicity values are estimates of adverse health effects due to a single exposure lasting eight hours or less. The confidence in the AEGL (a qualitative rating or either low, medium, or high) is based on the number of studies available and the quality of the data. Consensus toxicity values for effects of acute exposures have been developed by several different organizations, and we are beginning to develop such values. A national advisory committee organized by EPA has developed AEGL's for priority chemicals for 30-minute, 1-hour, 4-hour, and 8-hour airborne exposures. They have also determined the levels of these chemicals at each exposure duration that will protect against discomfort (AEGL1), serious effects (AEGL2), and life-threatening effects or death (AEGL3). Hydrogen chloride has been assigned AEGL values (65 FR 39264, June 23, 2000), including the 1-hour, AEGL1 of 2,700 μg/m
We maintain that the listing of health thresholds by EPA and other organizations in the public domain as discussed above has established health thresholds for HCl and chlorine. Further, we believe that the recognition of these levels by EPA, ATSDR, and CAL EPA indicates that chlorine and HCl are threshold pollutants.
Moreover, we provided the public an opportunity to comment on the thresholds for chlorine and HCl that we used in our original analysis for the proposed action. We used the same threshold level for HCl for both the proposed and final NESHAP for the pulp and paper mill category. (Although there is no mention of the HCl threshold in the final rule preamble for the pulp and paper mill NESHAP, we received no comment on the use of the threshold and used it in deciding not to set a limitation for HCl in the final NESHAP). We have also used the same threshold for HCl in the proposed NESHAP for lime production (67 FR 78046). There is no requirement in either CAA section 112(d)(4) or CAA section 112(c)(9)(B)(ii)
Two commenters requested that we reevaluate collocated chlorine and HCl production sources and provide guidance so that the facilities can easily determine to which source category they belong. According to the commenters, collocated chlorine and HCl production sources may share transfer operations and storage tanks, and where appropriate, we should remove all facilities from the HCl acid production source category that meet the logical test outlined in the proposed action. The commenters stated that they believe the collocated integrated chlorine and HCl acid production facilities should be placed in the non-mercury cell chlorine production source category and removed from the HCl production source category.
The clarifications we made in subpart NNNNN provide guidance for sources to determine to which source category their operations belong. As stated above, all HCl production facilities at chlor-alkali plants that produce HCl through direct synthesis are part of the non-mercury cell chlorine production subcategory. All other HCl production facilities (
In contrast, two other commenters did not agree with our use of the HCl RfC as a threshold level for chlorine. The commenters stated that not all of the annual chlorine emissions can be considered as HCl and, therefore, the chlorine exposure was underestimated. The commenters argued that chlorine emissions will not undergo photolysis to convert to HCl when there is not bright sunshine (
The additional information obtained from the literature confirmed our earlier information. There are several different pathways that molecular chlorine can take, including photolysis (reaction with light), reactions with hydroxyl radicals (OH), reactions with oxygen atoms (O), and reactions with water vapor (H
Therefore, this information did not fundamentally change the assumption made in the original risk assessment, which was that on a long-term basis, individuals will be exposed more to hydrochloric acid formed from the photolysis of chlorine than to chlorine. However, the commenters are correct that there will be situations where individuals will be exposed to chlorine. Therefore, in addition to the assessment where we considered only acute exposure to chlorine, we concluded that it was appropriate to consider the effects of chronic exposure to chlorine emissions from chlor-alkali plants. In order to provide an upper bound estimate of the chronic risks to compare with the lower bound estimates assuming that all chlorine was converted to HCl, we conducted modeling assuming that no chlorine is photolyzed.
In general, we consider an exposure concentration which is below the RfC concentration (what we call a hazard quotient of less than 1) to be safe. This is based on the definition of RfC. The RfC is a peer reviewed value defined as an estimate (with uncertainty spanning perhaps an order of magnitude) of a daily inhalation exposure to the human population (including sensitive subgroups) that is likely to be without appreciable risk of deleterious noncancer effects during a life time (i.e., 70 years).
We conducted additional modeling for all facilities within the subcategory using the same model used for the proposed action (ISCST3) to estimate chronic chlorine exposure using the assumption that no chlorine is photolyzed to HCl. The hazard quotients resulting from this additional modeling defined the upper bound of our risk assessment. The highest upper-bound hazard quotient estimated by the model is just over 0.3. (For more details regarding this revised risk assessment, refer to table 2 of the responses to
The AEGL2 level is defined as follows: AEGL2 is the airborne concentration of a substance at or above which it is predicted that the general population, including susceptible, but excluding hypersusceptible individuals, could experience irreversible or other serious, long-lasting effects or impaired ability to escape. Airborne concentrations below the AEGL2, but at or above AEGL1 represent exposure levels that may cause notable discomfort.
As utilized in the proposed action, the AEGL2 1-hour concentrations for chlorine and HCl are 5,800 μg/m
The AEGL1 level is defined as follows: AEGL-1 is the airborne concentration of a substance at or above which it is predicted that the general population, including “susceptible” but excluding “hypersusceptible” individuals, could experience notable discomfort. Airborne concentrations below AEGL-1 represent exposure levels that could produce mild odor, taste, or other sensory irritations.
The 1-hour AEGL1 concentration for chlorine is 2,900 μg/m
Although we stand by our original analysis, which used the AEGL2 level, we have referenced the commenter's suggested use of the AEGL1 values (possibly with a safety factor) for determining whether an ample margin of safety has been obtained. Therefore, we simply compared the short-term (1-hour average) modeling results from the original acute risk assessment to the AEGL1 values. These results were obtained by modeling the maximum allowable hourly emissions reported in the CAA section 114 responses for each of the sources. For plants that did not report fugitive emissions, fugitive emissions were estimated using worst-case emission factors.
The maximum modeled 1-hour chlorine concentration for 16 of the 20 plants is less than 5 percent of the AEGL-1 (and ACGIH) value for chlorine. Further, the highest modeled concentration for any plant, 346 μg/m
Based on that comparison, we conclude that the chlorine and HCl emissions from non-mercury cell chlorine production plants do not represent an unsafe level of acute exposure. Further, we maintain, along with the chlorine exposure assessment, that proves that an ample margin of safety is provided with no additional control.
In contrast, one commenter stated that the risk assessment fell short of the Agency's prior practice. According to the commenter, whenever EPA has made determinations to regulate a specific pollutant based on health considerations (
In this assessment, the predicted health effects estimated, using very conservative inputs and assumptions, were well below the recognized health
According to the commenter, the inconsistencies between the reports undermine the credibility of the risk assessment to support a decision to not regulate this source category. Furthermore, the commenter stated that they believe that the emission inventory information provides justification for a need to establish a MACT floor. The commenter concluded that the risk assessment was flawed because the potential impacts on health and the environment were underestimated.
The commenter compared the emissions used in the assessment to 1991/1992 base year emissions in an earlier report on this industry, the 1996 Chlorine Production Summary Report, and correctly noted that there is a large discrepancy between the emissions levels for Dow Chemical's plant in Freeport, Texas. As a result of that comment, we made a comparison of the emissions from all plants between these two sources of information.
The comparison revealed that the Dow Freeport facility is only one of only two plants whose emissions used in the risk assessment were lower than the 1991/1992 base year emissions in the 1996 summary report. In fact, the 2000/2001 emissions used in the risk assessment for the other facilities with reported emissions in both documents averaged five times HIGHER than those reported in the 1996 summary document. Clearly, the comparison does not lead to the conclusion that the risk assessment was based on grossly underestimated emissions. A review of the data submitted by the two facilities whose 2000/2001 emissions were substantially lower than their 1991/1992 emissions did not result in any obvious errors or questionable assumptions that could be disputed with the available information. Furthermore, according to the facility, the chlorine and HCl emissions reported in the 1996 summary document included emissions from processes within the plant not related to chlorine production. That was corrected for the 2000/2001 emissions data submittal. Therefore, no changes were made as a result of the review of the reported emissions data.
The comparison did result in the concern that the emissions, particularly
There are instances where non-mercury chlorine production facilities are collocated with other source categories. However, based on the risk assessment for chlorine and HCl emissions from chlor-alkali plants, the predicted impacts from chlorine and HCl at these chlor-alkali plants are extremely low. We believe that the human health and environmental impacts from all sources in the category even when collocated with other chlorine and HCl emissions will still be within an ample margin of safety to protect the public health, and will not cause adverse environmental effects. Moreover, as indicated in the preamble to the proposed rule, most major processes at the sites where non-mercury cell chlorine production facilities are located are subject to, or will be subject to, NESHAP to reduce HAP emissions (67 FR 44714, July 3, 2002). Therefore, it would not be appropriate to include emissions from those sources in an assessment for the non-mercury cell chlorine production source category conducted under the authority of CAA section 112(d)(4).
The commenter concluded that although EPA acknowledged that it had an obligation to ensure that any standards set under CAA section 112(d)(4) did not have any adverse environmental effects, the Agency did not properly consider the issue. Therefore, commenter stated that they believed that EPA could not promulgate standards under CAA section 112(d)(4) without contravening the CAA.
The level of our analysis at proposal was adequate to satisfy the requirements of CAA section 112(c)(9)(B)(ii). The commenters did not suggest that they believed there was the potential for adverse environmental effects from HCl or chlorine emissions from non-mercury cell chlorine production plants. Were there any evidence that such adverse effects were likely, or even possible, we would have conducted a more intensive ecological risk assessment.
The commenters are correct, however, that we did not discuss the ecological effects of chlorine. That was because, as was stated in the proposal preamble, we did not perform a separate evaluation of chronic chlorine exposure because chlorine is converted to HCl in the atmosphere so rapidly. Following is a brief summary of the environmental effect of chlorine.
Atmospheric exposure is the primary pathway for environmental effects from chlorine emissions. However, since most chlorine is converted to HCl, studies have focused on the effects of HCl on vegetation. Although plant exposures to elevated levels of chlorine can cause plant injury, it tends to be converted to other, less toxic forms rather rapidly in plants, and may not result in the direct accumulation of toxic pollutant residuals important in the food chain.
Plant studies have found foliar damage due to chlorine emissions and foliar damage, decreased levels of chlorophyl a and b, decreased leaf areas, obvious chlorosis, and a decline in fruit production due to chlorine emissions.
There is evidence of effects to animals due to accidental and/or catastrophic exposures, but the chlorine concentrations of these exposures are unknown. However, there is no data on exposure to historic or atmospheric concentrations.
More information is available on the effects of chlorine from aquatic exposures. However, there is no evidence that suggests that emissions of chlorine from industrial sources in the air contribute significantly to aquatic concentrations of chlorine.
One study reported a significant decrease in phytoplankton activity following exposure to 0.1 ppm chlorine in cooling tower water. Additional laboratory studies showed that continuous exposure to 0.002 milligram per liter (mg/L) total residual chlorine (TRC) resulted in depressed algal biomass in naturally-derived microcosms.
When exposed continuously for 96 hours to 0.05 mg/L TRC, the Eurasian water milfoil showed a significant reduction in shoot and dry weights, shoot length, and chlorophyll content.
Aquatic invertebrates are very sensitive to chlorine and reaction products of chlorine, with early life stages showing the most sensitivity. For example, free chlorine, monochloramine, and dichloroamine have been shown to reduce the rate of oyster larvae survival. Many studies have been performed, and the results are highly variable depending on the chlorine species, the lifestage of the invertebrate, and other factors such as salinity. The most sensitive aquatic species appears to be molluscan larvae, with LC
The effects on fish also vary depending on the life stage and fish species, and environmental factors, such as the pH, temperature, and type of chlorine species. Larval stages are more susceptible to effects, and freshwater species are more sensitive than marine species. Free chlorine is generally more toxic than residual chlorine; where the form of chlorine is dependent on the pH of the water. Sublethal effects such as avoidance, reduction of diversity in chlorinated effluents, reduction or elimination of spawning, abnormal larvae, reduced oxygen consumption, and gill damage have been noted. Many LC
Acute and chronic exposures to predicted chlorine and HCl concentrations around the sources are not expected to result in adverse toxicity effects. These pollutants are not persistent in the environment. The chlorine and HCl emitted should not significantly contribute to aquatic chlorine concentrations, and are not likely to accumulate in the soil. Chlorine rapidly converts to HCl in the atmosphere, and chlorine and HCl are not believed to result in biomagnification or bioaccumulation in the environment. Therefore, we do not believe there will be adverse ecological effects due to chlorine and HCl emissions from non-mercury cell chlorine production plants.
Under Executive Order 12866 (58 FR 51735, October 4, 1993) the Agency must determine whether the regulatory action is “significant” and, therefore, subject to Office of Management and Budget (OMB) review and the requirements of the Executive Order. The Executive Order defines “significant regulatory action” as one that is likely to result in a rule that may:
(1) Have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or Tribal governments or communities;
(2) create a serious inconsistency or otherwise interfere with an action taken or planned by another agency;
(3) materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or
(4) raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in this Executive Order.
It has been determined that this final action is not a “significant regulatory action” under the terms of Executive Order 12866 and is, therefore, not subject to OMB review.
Since there is no rule associated with this final action, there are no information collection requirements.
The RFA generally requires that an agency conduct a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements under the Administrative Procedure Act or any other statute unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small organizations, and small governmental jurisdictions.
For purposes of assessing the impacts of today's rule on small entities, small entity is defined as: (1) A small business as defined by the Small Business Administrations' regulations at 13 CFR 121.201; (2) a small governmental jurisdiction that is a government of a city, county, town, school district or special district with a population of less than 50,000; and (3) a small organization that is any not-for-profit enterprise which is independently owned and operated and is not dominant in its field.
After considering the economic impacts of today's final rule on small entities, I certify that this action will not have a significant economic impact on a substantial number of small entities. This final action deletes the subcategory of sources that do not utilize mercury cells to produce chlorine and caustic. We conclude that no further control or regulation is necessary.
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public Law 104-4, establishes requirements for Federal agencies to assess the effects of their regulatory actions on State, local, and Tribal governments and the private sector. Under section 202 of the UMRA, the EPA generally must prepare a written statement, including a cost-benefit analysis, for proposed and final rules with “Federal mandates” that may result in expenditures by State, local, and Tribal governments, in aggregate, or to the private sector, of $100 million or more in any 1 year. Before promulgating an EPA rule for which a written statement is needed, section 205 of the UMRA generally requires us to identify and consider a reasonable number of regulatory alternatives and adopt the least costly, most cost-effective, or least burdensome alternative that achieves the objectives of the rule. The provisions of section 205 do not apply when they are inconsistent with applicable law. Moreover, section 205 allows us to adopt an alternative other than the least costly, most cost-effective, or least burdensome alternative if we publish with the final rule an explanation as to why that alternative was not adopted.
Before we establish any regulatory requirements that may significantly or uniquely affect small governments, including Tribal governments, we must have developed under section 203 of the UMRA, a small government agency plan. The plan must provide for notifying potentially affected small governments, enabling officials of affected small governments to have meaningful and timely input in the
We have determined that this final action does not contain a Federal mandate that may result in expenditures of $100 million or more for State, local, and Tribal governments, in the aggregate, or the private sector in any 1 year. Thus, today's final action is not subject to the requirements of sections 202 and 205 of the UMRA. In addition, this final action contains no regulatory requirements. Therefore, the final action is not subject to the requirements of section 203 of the UMRA.
Executive Order 13132 (64 FR 43255, August 10, 1999) requires EPA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” is defined in the Executive Order to include regulations that have “substantial direct effects on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of Government.”
The final action does not have federalism implications. It will not have substantial direct effects on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of Government, as specified in Executive Order 13132. Thus, Executive Order 13132 does not apply to the final action.
Executive Order 13175 (65 FR 67249, November 6, 2000) requires EPA to develop an accountable process to ensure “meaningful and timely input by Tribal officials in the development of regulatory policies that have tribal implications.” “Policies that have Tribal implications” is defined in the Executive Order to include regulations that have “substantial direct effects on one or more Indian tribes, on the relationship between the Federal government and the Indian tribes, or on the distribution of power and responsibilities between the Federal government and Indian tribes.”
The final action does not have Tribal implications. It will not have substantial direct effects on Tribal governments, on the relationship between the Federal government and Indian tribes, or on the distribution of power and responsibilities between the Federal government and Indian tribes, as specified in Executive Order 13175. Thus, Executive Order 13175 does not apply to the final action.
The Executive Order 13045 applies to any rule (1) that OMB determines is “economically significant,” as defined under Executive Order 12866, and (2) the EPA determines that the environmental health or safety risk addressed by the rule has a disproportionate effect on children. If the regulatory action meets both criteria, the EPA must evaluate the environmental, health, or safety aspects relevant to children and explain why the rule is preferable to other potentially effective and reasonably feasible alternatives considered by the EPA. Since there is no rule associated with this final action, Executive Order 13045 does not apply.
The final action is not subject to Executive Order 13211 (66 FR 28355, May 22, 2001) because it is not a significant regulatory action under Executive Order 12866.
Section 12(d) of the National Technology Transfer Advancement Act (NTTAA) of 1995 (Public Law 104-113; 15 U.S.C. 272 note) directs EPA to use voluntary consensus standads in their regulatory and procurement activities unless to do so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (
The final action does not involve technical standards, therefore, the NTTAA does not apply.
The Congressional Review Act, 5 U.S.C. 801
Environmental protection, Air emissions control, Hazardous air pollutants.
Environmental Protection Agency (EPA).
Final rule; amendments.
On August 18, 1983, we promulgated Standards of Performance for Bulk Gasoline Terminals (48 FR 37590). The 1983 standards of performance limit and control emissions of volatile organic compounds (VOC) that react with other pollutants to form ozone (or smog) which has been linked to respiratory impairment and eye irritation, and negatively affects vegetation and ecosystems. On December 14, 1994, we promulgated National Emission Standards for Gasoline Distribution Facilities (Bulk Gasoline Terminals and Pipeline Breakout Stations) (59 FR 64318). The 1994 national emission standards limit and control hazardous air pollutants (HAP) that are known or suspected to cause cancer or have other serious health or environmental effects.
On September 20, 2002, we proposed amendments to the 1983 standards of performance and 1994 national emission standards to provide for the use of alternative leak test procedures for railcars under the 1994 national emission standards, a clarification on monitoring flares and thermal oxidation systems used to comply with the 1994 national emission standards, alternative recordkeeping requirements for tank trucks and railcars under the 1983 standards of performance and 1994 national emission standards, and the use of flare design specifications under the 1983 standards of performance by incorporating the allowance in the text of that final rule. This document takes final action on those proposed amendments. The amendments do not change the level of control or compromise the environmental protection achieved by the 1983 standards of performance and 1994 national emission standards, but provide clarification and alternatives that enhance the flexibility of the recordkeeping and testing requirements of the two final rules.
This rule is effective December 19, 2003. The incorporation by reference of certain publications listed in today's final amendments is approved by the Director of the Federal Register as of December 19, 2003.
Docket Nos. OAR-2002-0029 and A-92-38 contain supporting information used in developing the standards. The docket is located at the EPA Docket Center (Air Docket), Public Reading Room, Room B102, EPA West Building, 1301 Constitution Avenue, NW., Washington, DC, and may be inspected from 8:30 a.m. to 4:30 p.m., Monday through Friday, except for legal holidays.
For further information concerning applicability to a facility, contact the appropriate State or local agency representative. If no State or local agency representative is available, contact the appropriate EPA Regional Office Director listed in 40 CFR 63.13. For further information on compliance issues, contact Ms. Julie Tankersley, U.S. EPA, Office of Enforcement and Compliance Assurance, 2223A, Ariel Rios Building, 1200 Pennsylvania Avenue, NW., Washington, DC 20460, telephone (202) 564-7002, electronic mail (e-mail) address:
This table is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be regulated by this action. To determine whether your facility would be regulated by this action, you should examine the applicability criteria in 40 CFR 60.500 and 40 CFR 63.420. If you have any questions regarding the applicability of this action to a particular entity, consult either the air permit authority for the entity or the person listed in the preceding
We received eight public comment letters on the September 20, 2002 proposed amendments. Six of the comment letters were from industry representatives, one was from a control device manufacturer, and one was from a State air pollution control agency. The commenters addressed the alternative leak test procedures for railcars, the definitions and monitoring requirements for flares and thermal oxidation systems, and the alternative recordkeeping requirements for tank trucks. The commenters expressed support for certain provisions of the amendments, disagreed with one provision, and requested an additional alternative to one that was proposed. This preamble summarizes the comments, presents our responses to the comments, and identifies changes made to the amendments as proposed.
The commenters offered several reasons why continuous temperature monitoring would not be appropriate for enclosed flares. They claimed that vapor oxidation efficiency does not directly correlate with combustion zone temperature in these systems. They said that temperature monitoring is most appropriate for thermal incinerators where relatively constant flow rates and compositions and, thus, a constant temperature, are maintained. They explained that most enclosed flares operate on a cyclic, on-off basis and, when designed and operated properly, provide for energy conservation and maximum emissions reductions. The commenters noted that enclosed flares are designed and operated just like other flares, using the same technology and installed in the same applications.
Additionally, the commenters pointed out that enclosed flares may have to use additional supplemental fuel to achieve and maintain a specific temperature, which would lead to increased emissions of VOC, carbon monoxide, nitrogen oxides, and carbon dioxide. The amendments as proposed also could inadvertently promote the use of less desirable and less efficient open flame flares at facilities wishing to avoid the increased testing and monitoring requirements associated with the thermal oxidation definition. One commenter recommended that the parametric continuous monitoring requirements not be limited exclusively to firebox or stack temperature, and that no parametric monitoring methods be prohibited on a general basis as long as the parameter can be demonstrated to be reliable. Other commenters also requested that facilities continue to have the option of applying for an alternative operating parameter as provided in 40 CFR 63.427(a)(5).
While it may be possible that the types of devices described by the commenters are capable of operating as efficiently as open flares, the commenters did not provide any data or other information to demonstrate that a presence-of-flame indicator installed in a thermal oxidation system would ensure compliance with emission standards. They also did not describe alternate ways of ensuring that these systems are designed and operated properly if they were allowed to use presence-of-flame indicators. For compliance to be assured, the system needs to be properly designed, source tested initially to demonstrate compliance and to establish operating parameter values, and continuously monitored to ensure proper operation and continued compliance with the emission standards. We do not, however, mandate that the owner or operator adhere to a specific set of operating parameters to ensure continuing compliance. In fact, § 63.427(a)(5) of the final rule allows the owner or operator the flexibility of monitoring any parameters that can be demonstrated to ensure compliance with the emission standards. Commenters have stated that alternative parameters (other than temperature) for enclosed flares have already been approved by States and EPA. Those alternatives are acceptable under the national emission standards, as long as they have been properly demonstrated and approved as provided under § 63.427(a)(5).
As to the impacts of maintaining a specific temperature, we do not specify any certain temperature, averaging time, or monitoring frequency. Thus, if the owner or operator chooses to monitor temperature, they would develop and demonstrate (while considering the impacts on energy and other operating costs) the most appropriate maximum and minimum temperature values, averaging times, and monitoring frequency to indicate that the device is continuously achieving the emission standards.
Due to these considerations, we have retained the proposed definitions for “flare” and “thermal oxidation system”. Further, § 63.427(a)(5) of the final rule still allows the monitoring of alternative operating parameters for thermal oxidation systems, flares, or any other type of control device upon demonstration that the parameter demonstrates continuous compliance with the standards of performance or national emission standards.
Under Executive Order 12866 (58 FR 51735, October 4, 1993), EPA must determine whether a regulation is
(1) Have an annual effect on the economy of $100 million or more, or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal government communities;
(2) create a serious inconsistency or otherwise interfere with an action taken or planned by another agency;
(3) materially alter the budgetary impact of entitlements, grants, user fees, or loan programs, or the rights and obligations of recipients thereof; or
(4) raise novel or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the Executive Order.
Today's final amendments to the 1983 standards of performance and 1994 national emission standards will reduce the recordkeeping and testing burden for some terminals, but we do not have an estimate of the number of terminals affected. Therefore, the cost impacts of the subject standards are less than previously estimated, but our estimates have not been revised. The OMB evaluated the action and determined it to be nonsignificant; therefore, the action did not require OMB review.
The information collection requirements in the subject standards have been previously submitted to OMB under the Paperwork Reduction Act, 44 U.S.C. 3501
Today's final amendments will reduce the recordkeeping and testing burden for some terminals. We do not have an estimate of the number of terminals affected by today's final amendments. Therefore, the ICR burden is less than previously estimated but the ICR has not been revised.
The EPA has determined that it is not necessary to prepare a regulatory flexibility analysis in connection with the final amendments. The EPA has also determined that the final amendments will not have a significant economic impact on a substantial number of small entities.
For purposes of assessing the impacts of today's final amendments on small entities, small entity is defined as: (1) A small business whose parent company has fewer than 100 or 1,500 employees, or a maximum of $5 million to $18.5 million in revenues, depending on the size definition for the affected North American Industry Classification System (NAICS) code; (2) a small governmental jurisdiction that is a government of a city, county, town, school district or special district with a population of less than 50,000; and (3) a small organization that is any not-for-profit enterprise which is independently owned and operated and is not dominant in its field. It should be noted that the small business definition applied to each industry by NAICS code is that listed in the Small Business Administration (SBA) size standards (13 CFR 121). For more information on size standards for particular industries, please refer to the economic impact analysis in the docket.
When EPA promulgated the 1994 national emission standards, it analyzed the potential impacts on small businesses, discussed the results of the analysis in the
After considering the economic impacts of today's final amendments on small entities, EPA has concluded that this action will not have a significant economic impact on a substantial number of small entities. Today's final amendments will minimize the impact on small entities by adding two alternatives to provide facilities with the flexibility to comply in the least costly manner while maintaining a workable and enforceable rule. Both alternatives were requested by impacted bulk terminal and railcar owners and operators, and we worked with them to develop the alternatives.
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public Law 104-4, establishes requirements for Federal agencies to assess the effects of their regulatory actions on State, local, and tribal governments and the private sector. Under section 202 of the UMRA, EPA generally must prepare a written statement, including a cost-benefit analysis, for proposed and final rules with “Federal mandates” that may result in expenditures by State, local, and tribal governments, in aggregate, or by the private sector, of $100 million or more in any 1 year. Before promulgating an EPA rule for which a written statement is needed, section 205 of the UMRA generally requires EPA to identify and consider a reasonable number of regulatory alternatives and adopt the least costly, most cost-effective, or least burdensome alternative that achieves the objectives of the rule. The provisions of section 205 do not apply when they are inconsistent with applicable law. Moreover, section 205 allows EPA to adopt an alternative other than the least costly, most cost-effective, or least burdensome alternative if the Administrator publishes with the final rule an explanation of why that alternative was not adopted.
Before EPA establishes any regulatory requirements that may significantly or uniquely affect small governments, including tribal governments, it must have developed under section 203 of the UMRA a small government agency plan. The plan must provide for notifying potentially affected small governments, enabling officials of affected small governments to have meaningful and timely input in the development of EPA regulatory proposals with significant Federal intergovernmental mandates, and informing, educating, and advising small governments on compliance with the regulatory requirements.
The EPA has determined that today's final amendments do not contain a Federal mandate that may result in expenditures of $100 million or more to State, local, and tribal governments in the aggregate, or to the private sector in any 1 year. Thus, today's final action is not subject to the requirements of sections 202 and 205 of the UMRA.
Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999), requires EPA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism
Today's final amendments do not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132. Thus, the requirements of section 6 of the Executive Order do not apply to today's amendments.
Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 6, 2000), requires EPA to develop an accountable process to ensure “meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications.” “Policies that have tribal implications” is defined in the Executive Order to include regulations that have “substantial direct effects on one or more Indian tribes, on the relationship between the Federal government and the Indian tribes, or on the distribution of power and responsibilities between the Federal government and Indian tribes.”
Today's final amendments do not have tribal implications. They will not have substantial direct effects on tribal governments, on the relationship between the Federal government and Indian tribes, or on the distribution of power and responsibilities between the Federal government and Indian tribes, as specified in Executive Order 13175. Thus, Executive Order 13175 does not apply to today's final amendments.
Executive Order 13045 (62 FR 19885, April 23, 1997) applies to any rule that: (1) Is determined to be “economically significant” as defined under Executive Order 12866, and (2) concerns an environmental health or safety risk that EPA has reason to believe may have a disproportionate effect on children. If the regulatory action meets both criteria, EPA must evaluate the environmental health or safety effects of the planned rule on children, and explain why the planned regulation is preferable to other potentially effective and reasonably feasible alternatives considered by EPA.
We interpret Executive Order 13045 as applying only to those regulatory actions that are based on health or safety risks, such that the analysis required under section 5-501 of the Executive Order has the potential to influence the regulation. Today's final amendments are not subject to Executive Order 13045 because they are based on technology performance and not on health and safety risks.
Today's final amendments are not subject to Executive Order 13211 (66 FR 28355, May 22, 2001) because they are not a significant regulatory action under Executive Order 12866.
Under section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA), Public Law 104-113, all Federal agencies are required to use voluntary consensus standards (VCS) in their regulatory and procurement activities unless to do so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (
The final amendments involve technical standards. The EPA cites DOT railcar procedures that reference the AAR Tank Car Manual bubble test. Consistent with the NTTAA, EPA conducted searches to identify VCS in addition to that method. The search and review results have been documented and are placed in the docket for the final amendments, Docket Nos. A-92-38 and OAR-2002-0029.
Two VCS are cited in the final amendments as alternatives to DOT's bubble test. The two standards are British Standard (BS) EN-1593:1999, “Non-destructive Testing: Leak Testing-Bubble Emission Techniques,” and ASTM E515-95 (Reapproved 2000), “Standard Test Method for Leaks Using Bubble Emission Techniques.” These two standards are discussed below.
The VCS BS EN-1593 cited in the final amendments is a detailed method that contains procedures that are either equivalent to those of DOT bubble test specifications or that provide additional quality control, including: certification of personnel, creating a pressure differential, type of liquids to be used, preparation of the surface, dwell time appropriate for the establishment of bubble emissions, required surface temperature range, and specifications for direct and indirect visual examination procedures.
The VCS ASTM E515 cited in the final amendments is also an acceptable method that contains procedures that are either equivalent to those of DOT bubble test specifications or provide additional quality control, including: the type of liquids to be used; application of fluid; creating a pressure differential; applying pressure before liquid is applied; and accuracy, repeatability, and reproducibility of locating leaks of 0.0001 standard cubic centimeters per second or greater.
The methods that are included in the final amendments are listed in 40 CFR 63.425(i)(2). Under 40 CFR 63.7(f) of subpart A (General Provisions), a source may apply to EPA for permission to use alternative test methods in place of any EPA testing methods.
The Congressional Review Act, 5 U.S.C. 801
Environmental protection, Administrative practice and procedures, Air pollution control, Intergovernmental relations, Reporting and recordkeeping requirements.
Environmental protection, Administrative practice and procedures,
42 U.S.C. 7401,
(e) The performance test requirements of paragraph (c) of this section do not apply to flares defined in § 60.501 and meeting the requirements in § 60.18(b) through (f). The owner or operator shall demonstrate that the flare and associated vapor collection system is in compliance with the requirements in §§ 60.18(b) through (f) and 60.503(a), (b), and (d).
(f) The owner or operator shall use alternative test methods and procedures in accordance with the alternative test method provisions in § 60.8(b) for flares that do not meet the requirements in § 60.18(b).
(e) As an alternative to keeping records at the terminal of each gasoline cargo tank test result as required in paragraphs (a), (c), and (d) of this section, an owner or operator may comply with the requirements in either paragraph (e)(1) or (2) of this section.
(1) An electronic copy of each record is instantly available at the terminal.
(i) The copy of each record in paragraph (e)(1) of this section is an exact duplicate image of the original paper record with certifying signatures.
(ii) The permitting authority is notified in writing that each terminal using this alternative is in compliance with paragraph (e)(1) of this section.
(2) For facilities that utilize a terminal automation system to prevent gasoline cargo tanks that do not have valid cargo tank vapor tightness documentation from loading (
(i) The copy of each record in paragraph (e)(2) of this section is an exact duplicate image of the original paper record with certifying signatures.
(ii) The permitting authority is notified in writing that each terminal using this alternative is in compliance with paragraph (e)(2) of this section.
42 U.S.C. 7401,
(b) * * *
(30) ASTM E 515-95 (Reapproved 2000), Standard Test Method for Leaks Using Bubble Emission Techniques, IBR approved for § 63.425(i)(2).
(j) The following material is available for purchase from: British Standards Institute, 389 Chiswick High Road, London W4 4AL, United Kingdom.
(1) BS EN 1593:1999, Non-destructive Testing: Leak Testing—Bubble Emission Techniques, IBR approved for § 63.425(i)(2).
(2) [Reserved]
(c) * * *
(2) * * *
(i) The tank truck or railcar gasoline cargo tank meets the test requirements in § 63.425(e), or the railcar gasoline cargo tank meets applicable test requirements in § 63.425(i);
(e) As an alternative to 40 CFR 60.502(h) and (i) as specified in paragraph (a) of this section, the owner or operator may comply with paragraphs (e)(1) and (2) of this section.
(1) The owner or operator shall design and operate the vapor processing system, vapor collection system, and liquid loading equipment to prevent gauge pressure in the railcar gasoline cargo tank from exceeding the applicable test limits in § 63.425(e) and (i) during product loading. This level is not to be exceeded when measured by the procedures specified in 40 CFR 60.503(d) of this chapter.
(2) No pressure-vacuum vent in the bulk gasoline terminal's vapor processing system or vapor collection system may begin to open at a system pressure less than the applicable test limits in § 63.425(e) or (i).
(a) Each owner or operator subject to the emission standard in § 63.422(b) or 40 CFR 60.112b(a)(3)(ii) shall comply with the requirements in paragraphs (a)(1) and (2) of this section.
(1) Conduct a performance test on the vapor processing and collection systems according to either paragraph (a)(1)(i) or (ii) of this section.
(i) Use the test methods and procedures in 40 CFR 60.503 of this chapter, except a reading of 500 ppm shall be used to determine the level of
(ii) Use alternative test methods and procedures in accordance with the alternative test method requirements in § 63.7(f).
(2) The performance test requirements of 40 CFR 60.503(c) do not apply to flares defined in § 63.421 and meeting the flare requirements in § 63.11(b). The owner or operator shall demonstrate that the flare and associated vapor collection system is in compliance with the requirements in § 63.11(b) and 40 CFR 60.503(a), (b), and (d), respectively.
(i)
(1) Comply with the requirements of 49 CFR 173.31(d), 179.7, 180.509, and 180.511 for the testing of railcar gasoline cargo tanks.
(2) The leakage pressure test procedure required under 49 CFR 180.509(j) and used to show no indication of leakage under 49 CFR 180.511(f) shall be ASTM E 515-95 (incorporated by reference,
(3) The alternative requirements in this paragraph (i) may not be used for any railcar gasoline cargo tank that collects gasoline vapors from a vapor balance system permitted under or required by a Federal, State, local, or tribal agency. A vapor balance system is a piping and collection system designed to collect gasoline vapors displaced from a storage vessel, barge, or other container being loaded, and routes the displaced gasoline vapors into the railcar gasoline cargo tank from which liquid gasoline is being unloaded.
10. Section 63.427 is amended by revising paragraphs (a)(3) and (4) to read as follows:
(a) * * *
(3) Where a thermal oxidation system other than a flare is used, a CPMS capable of measuring temperature must be installed in the firebox or in the ductwork immediately downstream from the firebox in a position before any substantial heat exchange occurs.
(4) Where a flare meeting the requirements in § 63.11(b) is used, a heat-sensing device, such as an ultraviolet beam sensor or a thermocouple, must be installed in proximity to the pilot light to indicate the presence of a flame.
(b) * * *
(1) Annual certification testing performed under § 63.425(e) and railcar bubble leak testing performed under § 63.425(k); and
(3) * * *
(i) Name of test: Annual Certification Test—Method 27 (§ 63.425(e)(1)); Annual Certification Test—Internal Vapor Valve (§ 63.425(e)(2)); Leak Detection Test (§ 63.425(f)); Nitrogen Pressure Decay Field Test (§ 63.425(g)); Continuous Performance Pressure Decay Test (§ 63.425(h)); or Railcar Bubble Leak Test Procedure (§ 63.425(i)).
(viii) Test results: test pressure; pressure or vacuum change, mm of water; time period of test; number of leaks found with instrument; and leak definition.
(k) As an alternative to keeping records at the terminal of each gasoline cargo tank test result as required in paragraph (b) of this section, an owner or operator may comply with the requirements in either paragraph (k)(1) or (2) of this section.
(1) An electronic copy of each record is instantly available at the terminal.
(i) The copy of each record in paragraph (k)(1) of this section is an exact duplicate image of the original paper record with certifying signatures.
(ii) The permitting authority is notified in writing that each terminal using this alternative is in compliance with paragraph (k)(1) of this section.
(2) For facilities that utilize a terminal automation system to prevent gasoline cargo tanks that do not have valid cargo tank vapor tightness documentation from loading (
(i) The copy of each record in paragraph (k)(2) of this section is an exact duplicate image of the original paper record with certifying signatures.
(ii) The permitting authority is notified in writing that each terminal using this alternative is in compliance with paragraph (k)(2) of this section.
Office of the Assistant Secretary for Fair Housing and Equal Opportunity, HUD.
Notice.
HUD is publishing proposed “Guidance to Federal Financial Assistance Recipients Regarding Title VI Prohibition Against National Origin Discrimination Affecting Limited English Proficient Persons” (Guidance) as required by Executive Order 13166, which addresses assistance to recipients of federal financial assistance who have limited English proficiency.
Interested persons are invited to submit comments regarding this notice to the Regulations Division, Office of the General Counsel, Department of Housing and Urban Development, Room 10276, 451 Seventh Street, SW., Washington, DC 20410-0500. Communications should refer to the above docket number and title. Facsimile (FAX) comments are not acceptable. A copy of each communication submitted will be available for public inspection and copying between 8 a.m. and 5 p.m. weekdays at the above address.
Pamela D. Walsh, Director, Program Standards Division, Office of Fair Housing and Equal Opportunity, Department of Housing and Urban Development, Room 5226, 451 Seventh Street SW., Washington, DC 20410-2000, telephone (202) 708-2904 (this is not a toll-free number). Hearing- or speech-impaired individuals may access the telephone number listed in this section through TTY by calling the toll-free Federal Information Relay Service at (800) 877-8339.
Under Title VI of the Civil Rights Act of 1964 (Title VI) and implementing regulations, recipients of federal financial assistance have a responsibility to ensure meaningful access to their programs and activities by persons with limited English proficiency (LEP). Executive Order 13166, reprinted at 65 FR 50121 (August 16, 2000), directs each federal agency that extends assistance subject to the requirements of Title VI to publish guidance for its respective recipients clarifying that obligation. Because this guidance (42 U.S.C. 2000d) (Title VI) must adhere to the federal-wide compliance standards and framework detailed in the model LEP Guidance of the Department of Justice (DOJ) issued on June 18, 2002, HUD specifically solicits comments on the nature, scope, and appropriateness of the HUD-specific examples set out in this guidance explaining and/or highlighting how those consistent federal-wide compliance standards are applicable to recipients of federal financial assistance through HUD.
Most individuals living in the United States read, write, speak, and understand English. There are many individuals, however, for whom English is not their primary language. For instance, based on the 2000 census, over 26 million individuals speak Spanish and almost seven million individuals speak an Asian or Pacific Island language at home. If these individuals have a limited ability to read, write, speak, or understand English, they are limited English proficient, or “LEP.” While detailed data from the 2000 census has not yet been released, 26 percent of all Spanish speakers, 29.9 percent of all Chinese speakers, and 28.2 percent of all Vietnamese speakers reported that they spoke English “not well” or “not at all” in response to the 1990 census.
Language for LEP persons can be a barrier to accessing important benefits or services, understanding and exercising important rights, complying with applicable responsibilities, or understanding other information provided by federally-funded programs and activities. The federal government funds an array of programs, services, and activities that can be made accessible to otherwise eligible LEP persons. The federal government is committed to improving the accessibility of these programs and activities to eligible LEP persons, a goal that reinforces its equally important commitment to promoting programs and activities designed to help individuals learn English. Recipients should not overlook the long-term positive impacts of incorporating or offering English as a Second Language (ESL) programs in parallel with language assistance services. ESL courses can serve as an important adjunct to a proper LEP plan. However, the fact that ESL classes are made available does not obviate the statutory and regulatory requirement to provide meaningful access for those who are not yet English proficient. Recipients of federal financial assistance have an obligation to reduce language barriers that can preclude meaningful access by LEP persons to important government programs, services, and activities. HUD recognizes that many recipients had language assistance programs in place prior to the issuance of Executive Order 13166. This Guidance provides a uniform framework for a recipient to integrate, formalize, and assess the continued vitality of these existing and possibly additional reasonable efforts based on the nature of its program or activity, the current needs of the LEP populations it encounters, and its prior experience in providing language services in the community it serves.
In certain circumstances, failure to ensure that LEP persons can effectively participate in or benefit from federally-assisted programs and activities may violate the prohibition under Title VI and Title VI regulations against national origin discrimination. The purpose of this policy guidance is to assist recipients in fulfilling their responsibilities to provide meaningful access to LEP persons under existing law. This guidance clarifies existing legal requirements for LEP persons by providing a description of the factors recipients should consider in fulfilling their responsibilities to LEP persons. The policy guidance is not a regulation but rather a guide. Title VI and its implementing regulations require that recipients take responsible steps to ensure meaningful access by LEP persons. This guidance provides an analytical framework that recipients may use to determine how best to comply with statutory and regulatory obligations to provide meaningful access to the benefits, services, information, and other important portions of their programs and activities for LEP individuals. These are the same criteria HUD will use in evaluating whether recipients are in compliance with Title VI and Title VI regulations.
As with most government initiatives, guidance on LEP requires balancing several principles. While this Guidance discusses that balance in some detail, it is important to note the basic principles behind that balance. First, HUD must ensure that federally-assisted programs aimed at the American public do not leave some behind simply because they face challenges communicating in English. This is of particular importance because, in many cases, LEP individuals form a substantial portion of those encountered in federally-assisted programs. Second, HUD must achieve this goal while finding constructive methods to reduce the costs of LEP
There are many productive steps that the federal government, either collectively or as individual grant agencies, can take to help recipients reduce the costs of language services without sacrificing meaningful access for LEP persons. Without these steps, certain smaller grantees may well choose not to participate in federally-assisted programs, threatening the critical functions that the programs strive to provide. To that end, HUD plans to continue to provide assistance and guidance in this important area. In addition, HUD plans to work with representatives of state and local governments, public housing agencies, assisted housing providers, fair housing assistance programs, and other HUD recipients, and LEP persons to identify and share model plans, examples of best practices, and cost-saving approaches. Moreover, HUD intends to explore how language assistance measures, resources, and cost-containment approaches developed with respect to its own federally-conducted programs and activities can be effectively shared or otherwise made available to recipients, particularly small businesses, small local governments, and small nonprofits. An interagency working group on LEP has developed a Web site,
Many persons who commented on the DOJ's proposed LEP guidance which was published January 16, 2001 (66 FR 3834), later published for additional public comment on January 18, 2002 (67 FR 2671), and published in final form on June 18, 2002 (67 FR 41455), have noted that some in the public have interpreted the case of
Section 601 of Title VI provides that no person shall “on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.” Section 602 authorizes and directs federal agencies that are empowered to extend federal financial assistance to any program or activity “to effectuate the provisions of [section 601] * * * by issuing rules, regulations, or orders of general applicability” (42 U.S.C. 2000d-1).
HUD regulations promulgated pursuant to section 602 forbid recipients from “utiliz[ing] criteria or methods of administration which have the effect of subjecting individuals to discrimination because of their race, color, or national origin, or have the effect of defeating or substantially impairing accomplishment of the objectives of the program as respects individuals of a particular race, color, or national origin” (24 CFR 1.4).
The U.S. Supreme Court, in
On August 11, 2000, Executive Order 13166, “Improving Access to Services for Persons with Limited English Proficiency,” was issued and published on August 16, 2000, at 65 FR 50121. Under that order, every federal agency that provides financial assistance to non-federal entities must publish guidance on how their recipients can provide meaningful access to LEP persons and thus comply with Title VI regulations forbidding funding recipients from “restrict[ing] an individual in any way in the enjoyment of any advantage or privilege enjoyed by others receiving any service, financial aid, or other benefit under the program” or from “utiliz[ing] criteria or methods of administration which have the effect of subjecting individuals to discrimination because of their race, color, or national origin, or have the effect of defeating or substantially impairing accomplishment of the objectives of the program as respects individuals of a particular race, color, or national origin.”
On that same day, DOJ issued a general guidance document addressed to “Executive Agency Civil Rights Officers” setting forth general principles for agencies to apply in developing guidance documents for recipients pursuant to the Order. The DOJ document is titled, “Enforcement of Title VI of the Civil Rights Act of 1964 National Origin Discrimination Against Persons With Limited English Proficiency,” (DOJ LEP Guidance) published on August 16, 2000, at 65 FR 50123.
Subsequently, federal agencies raised questions regarding the requirements of the Order, especially in light of the U.S. Supreme Court's decision in
This HUD policy is published pursuant to Title VI, Title VI regulations, and Executive Order 13166. It is consistent with the DOJ's, “Policy Guidance Document on Enforcement of National Origin Discrimination Against
HUD's regulation, 24 CFR part 1, “Nondiscrimination in Federally Assisted Programs of the Department of Housing and Urban Development—Effectuation of Title VI of the Civil Rights Act of 1964,” requires all recipients of federal financial assistance from HUD to provide meaningful access to LEP persons. Pursuant to Executive Order 13166, the meaningful access requirement of the Title VI regulations and the four-factor analysis set forth in this LEP Guidance are to additionally apply to the programs and activities of federal agencies, including HUD. Federal financial assistance includes grants, training, use of equipment, donations of surplus property, and other assistance. Recipients of HUD assistance include, for example:
• State and local governments;
• Public housing authorities;
• Assisted housing providers;
• Profit and nonprofit organizations; and
• Other entities receiving funds directly or indirectly from HUD.
Subrecipients likewise are covered when federal funds are passed through from one recipient to a subrecipient (
Coverage extends to a recipient's entire program or activity, (
Persons who do not speak English as their primary language and who have a limited ability to read, write, speak, or understand English can be LEP, entitled to language assistance with respect to a particular type of service, benefit, or encounter. Examples of populations likely to include LEP persons who are encountered and/or served by HUD recipients and should be considered when planning language services include, but are not limited to:
• Persons who are seeking housing assistance from a public housing agency or assisted housing provider or are current tenants in such housing;
• Persons seeking assistance from a state or local government for a rehabilitation grant for their home;
• Persons who are attempting to file a housing discrimination complaint with a local Fair Housing Assistance Program grantee;
• Persons who are seeking supportive services to become first-time homebuyers;
• Persons seeking housing related social services, training, or any other assistance from HUD recipients; and
• Parents and family members of the above.
Recipients are required to take reasonable steps to ensure meaningful access to their programs and activities by LEP persons. While designed to be a flexible and fact-dependent standard, the starting point is an individualized assessment that balances the following four factors: (1) The number or proportion of LEP persons eligible to be served or likely to be encountered by the program or grantee; (2) the frequency with which LEP persons come into contact with the program; (3) the nature and importance of the program, activity, or service provided by the program to people's lives; and (4) the resources available to the grantee/recipient and costs. As indicated above, the intent of this Guidance is to suggest a balance that ensures meaningful access by LEP persons to critical services while not imposing undue burdens on small business, small local governments, or small nonprofits.
After applying the four-factor analysis, a recipient may conclude that different language assistance measures are sufficient for the different types of programs or activities in which it engages. For instance, some of a recipient's activities will be more important than others and/or have greater impact on or contact with LEP persons, and thus may require more in the way of language assistance. The flexibility that recipients have in addressing the needs of the LEP populations they serve does not diminish, and should not be used to minimize, the obligation that those needs be addressed. HUD recipients should apply the following four factors to the various kinds of contacts that they have with the public to assess language needs and decide what reasonable steps they should take to ensure meaningful access for LEP persons.
One factor in determining what language services recipients should provide is the number or proportion of LEP persons from a particular language group served or encountered in the eligible service population. The greater the number or proportion of these LEP persons, the more likely language services are needed. Ordinarily, persons “eligible to be served, or likely to be directly affected, by” a recipient's program or activity are those who are served or encountered in the eligible service population. This population will be program-specific, and includes persons who are in the geographic area that has been approved by HUD as the recipient's jurisdiction or service area. However, where, for instance, a public housing project serves a large LEP population, the appropriate service area for LEP services is most likely the public housing project neighborhood, and not the entire population served by the public housing agency. Where no service area has previously been approved, the relevant service area may be that which is approved by state or local authorities or designated by the recipient itself, provided that these designations do not themselves discriminatorily exclude certain populations. Appendix A provides examples to assist in determining the relevant service area. When considering the number or proportion of LEP persons in a service area, recipients should consider LEP parent(s) when their English-proficient or LEP minor children and dependents encounter the recipient.
Recipients should first examine their prior experiences with LEP encounters and determine the breadth and scope of language services that were needed. In conducting this analysis, it is important to include language minority
Recipients should assess, as accurately as possible, the frequency with which they have or should have contact with an LEP individual from different language groups seeking assistance. The more frequent the contact with a particular language group, the more likely that enhanced language services in that language are needed. The steps that are reasonable for a recipient that serves an LEP person on a one-time basis will be very different than those expected from a recipient that serves LEP persons daily. It is also advisable to consider the frequency of different types of language contacts. For example, frequent contacts with Spanish-speaking people who are LEP may require certain assistance in Spanish. Less frequent contact with different language groups may suggest a different and less intensified solution. If an LEP individual accesses a program or service on a daily basis, a recipient has greater duties than if the same individual's program or activity contact is unpredictable or infrequent. But even recipients that serve LEP persons on an unpredictable or infrequent basis should use this balancing analysis to determine what to do if an LEP individual seeks services under the program in question. This plan need not be intricate. It may be as simple as being prepared to use one of the commercially available telephonic interpretation services to obtain immediate interpreter services. In applying this standard, recipients should take care to consider whether appropriate outreach to LEP persons could increase the frequency of contact with LEP language groups.
The more important the activity, information, service, or program, or the greater the possible consequences of the contact to the LEP persons, the more likely language services are needed. The obligations to communicate rights to a person who is being evicted differ, for example, from those to provide recreational programming. A recipient needs to determine whether denial or delay of access to services or information could have serious or even life-threatening implications for the LEP individual. Decisions by HUD, another federal, state, or local entity, or the recipient to make a specific activity compulsory in order to participate in the program, such as filling out particular forms, participating in administrative hearings, or other activities, can serve as strong evidence of the program's importance.
A recipient's level of resources and the costs that would be imposed on it may have an impact on the nature of the steps it should take. Smaller recipients with more limited budgets are not expected to provide the same level of language services as larger recipients with larger budgets. In addition, “reasonable steps” may cease to be reasonable where the costs imposed substantially exceed the benefits.
Resource and cost issues, however, can often be reduced by technological advances; the sharing of language assistance materials and services among and between recipients, advocacy groups, and federal grant agencies; and reasonable business practices. Where appropriate, training bilingual staff to act as interpreters and translators, information sharing through industry groups, telephonic and video conferencing interpretation services, pooling resources and standardizing documents to reduce translation needs, using qualified translators and interpreters to ensure that documents need not be “fixed” later and that inaccurate interpretations do not cause delay or other costs, centralizing interpreter and translator services to achieve economies of scale, or the formalized use of qualified community volunteers, for example, may help reduce costs. Recipients should carefully explore the most cost-effective means of delivering competent and accurate language services before limiting services due to resource concerns. Small recipients with limited resources may find that entering into a bulk telephonic interpretation service contract will prove cost effective. Large entities and those entities serving a significant number or proportion of LEP persons should ensure that their resource limitations are well-substantiated before using this factor as a reason to limit language assistance. Such recipients may find it useful to be able to articulate, through documentation or in some other reasonable manner, their process for determining that language services would be limited based on resources or costs.
This four-factor analysis necessarily implicates the “mix” of LEP services required. Recipients have two main ways to provide language services: oral interpretation either in person or via telephone interpretation service (hereinafter “interpretation”); and written translation (hereinafter “translation”). Oral interpretation can range from on-site interpreters for critical services provided to a high volume of LEP persons to access through commercially available telephonic interpretation services. Written translation, likewise, can range from translation of an entire document to translation of a short description of the document. In some cases, language services should be made available on an expedited basis while in others the LEP individual may be referred to another office of the recipient for language assistance.
The correct mix should be based on what is both necessary and reasonable in light of the four-factor analysis. For instance, a public housing provider in a largely Hispanic neighborhood may need immediate oral interpreters available and should give serious consideration to hiring some bilingual staff. (Of course, many have already made such arrangements.) In contrast, there may be circumstances where the importance and nature of the activity and number or proportion and frequency of contact with LEP persons may be low and the costs and resources needed to provide language services may be high—such as in the case of a voluntary public tour of a recreational
Recipients have two main ways to provide language services: oral, and written language services. Quality and accuracy of the language service is critical in order to avoid serious consequences to the LEP person and to the recipient.
Interpretation is the act of listening to something in one language (source language) and orally translating it into another language (target language). Where interpretation is needed and is reasonable, recipients should consider some or all of the following options for providing competent interpreters in a timely manner:
When providing oral assistance, recipients should ensure competency of the language service provider, no matter which of the strategies outlined below are used. Competency requires more than self-identification as bilingual. Some bilingual staff and community volunteers, for instance, may be able to communicate effectively in a different language when communicating information directly in that language, but not be competent to interpret in and out of English. Likewise, they may not be able to do written translations.
Competency to interpret, however, does not necessarily mean formal certification as an interpreter, although certification is helpful. When using interpreters, recipients should ensure that they:
• Demonstrate proficiency in and ability to communicate information accurately in both English and in the other language and identify and employ the appropriate mode of interpreting (
• Have knowledge in both languages of any specialized terms or concepts peculiar to the entity's program or activity and of any particularized vocabulary and phraseology used by the LEP person and understand and follow confidentiality and impartiality rules to the same extent the recipient employee for whom they are interpreting or to the extent their position requires or both. Many languages have “regionalisms,” or differences in usage. For instance, a word that may be understood to mean something in Spanish for someone from Cuba may not be so understood by someone from Mexico. In addition, because there may be languages which do not have an appropriate direct interpretation of some courtroom or legal terms and the interpreter should be so aware and be able to provide the most appropriate interpretation. The interpreter should likely make the recipient aware of the issue and the interpreter and recipient can then work to develop a consistent and appropriate set of descriptions of these terms in that language that can be used again, when appropriate; and
• Understand and adhere to their role as interpreters without deviating into a role as counselor, legal advisor, or other roles (particularly in court, administrative hearings, or law enforcement contexts).
Some recipients may have additional self-imposed requirements for interpreters. Where individual rights depend on precise, complete, and accurate interpretation or translations, the use of certified interpreters is strongly encouraged. For those languages in which no formal accreditation or certification currently exists, recipients should consider a formal process for establishing the credentials of the interpreter. Where such proceedings are lengthy, the interpreter will likely need breaks and team interpreting may be appropriate to ensure accuracy and to prevent errors caused by mental fatigue of interpreters.
While quality and accuracy of language services is critical, the quality and accuracy of language services is nonetheless part of the appropriate mix of LEP services required. The quality and accuracy of language services in an abused woman's shelter, for example, must be extraordinarily high, while the quality and accuracy of language services in a recreational program need not meet the same exacting standards.
Finally, when interpretation is needed and is reasonable, it should be provided in a timely manner. To be meaningfully effective, language assistance should be timely. While there is no single definition for “timely” applicable to all types of interactions at all times by all types of recipients, one clear guide is that the language assistance should be provided at a time and place that avoids the effective denial of the service, benefit, or right at issue or the imposition of an undue burden on or delay in important rights, benefits, or services to the LEP person. For example, when the timeliness of services is important, such as with certain activities of HUD recipients providing housing, health, and safety services, and when important legal rights are at issue, a recipient would likely not be providing meaningful access if it had one bilingual staff person available one day a week to provide the service. Such conduct would likely result in delays for LEP persons that would be significantly greater than those for English proficient persons. Conversely, where access to or exercise of a service, benefit, or right is not effectively precluded by a reasonable delay, language assistance can likely be delayed for a reasonable period.
When particular languages are encountered often, hiring bilingual staff offers one of the best, and often most economical, options. Recipients can, for example, fill public contact positions, such as persons who take public housing or Section 8 applications, with staff who are bilingual and competent to communicate directly with LEP persons in their own language. If bilingual staff is also used to interpret between English speakers and LEP persons, or to orally interpret written documents from English into another language, they should be competent in the skill of interpreting. Being bilingual does not necessarily mean that a person has the ability to interpret. In addition, there may be times when the role of the bilingual employee may conflict with the role of an interpreter (for instance, a bilingual intake specialist would probably not be able to perform effectively the role of an administrative hearing interpreter and intake specialist at the same time, even if the intake specialist were a qualified interpreter). Effective management strategies, including any appropriate adjustments in assignments and protocols for using bilingual staff, can ensure that bilingual staff is fully and appropriately utilized. When bilingual staff cannot meet all of the language service obligations of the recipient, the recipient should turn to other options.
Hiring interpreters may be most helpful where there is a frequent need for interpreting services in one or more languages. Depending on the facts, sometimes it may be necessary and reasonable to provide on-site interpreters to provide accurate and meaningful communication with an LEP person.
Contract interpreters may be a cost-effective option when there is no regular need for a particular language skill. In addition to commercial and other private providers, many community-based organizations and mutual assistance associations provide interpretation services for particular languages. Contracting with and providing training regarding the recipient's programs and processes to these organizations can be a cost-effective option for providing language services to LEP persons from those language groups.
Telephone interpreter service lines often offer speedy interpreting assistance in many different languages. They may be particularly appropriate where the mode of communicating with an English proficient person would also be over the phone. Although telephonic interpretation services are useful in many situations, it is important to ensure that, when using such services, the interpreters used are competent to interpret any technical or legal terms specific to a particular program that may be important parts of the conversation. Nuances in language and non-verbal communication can often assist an interpreter and cannot be recognized over the phone. Video teleconferencing may sometimes help to resolve this issue where necessary. In addition, where documents are being discussed, it is important to give telephonic interpreters adequate opportunity to review the document prior to the discussion and any logistical problems should be addressed.
In addition to consideration of bilingual staff, staff interpreters, or contract interpreters (either in-person or by telephone) as options to ensure meaningful access by LEP persons, use of recipient-coordinated community volunteers, working with, for instance, community-based organizations may provide a cost-effective supplemental language assistance strategy under appropriate circumstances. They may be particularly useful in providing language access for a recipient's less critical programs and activities. To the extent the recipient relies on community volunteers, it is often best to use volunteers who are trained in the information or services of the program and can communicate directly with LEP persons in their language. Just as with all interpreters, community volunteers used to interpret between English speakers and LEP persons, or to orally translate documents, should be competent in the skill of interpreting and knowledgeable about applicable confidentiality and impartiality rules. Recipients should consider formal arrangements with community-based organizations that provide volunteers to address these concerns and to help ensure that services are available more regularly.
Although recipients should not plan to rely on an LEP person's family members, friends, or other informal interpreters to provide meaningful access to important programs and activities, where LEP persons so desire, they should be permitted to use, at their own expense, an interpreter of their own choosing (whether a professional interpreter, family member, or friend) in place of or as a supplement to the free language services expressly offered by the recipient. LEP persons may feel more comfortable when a trusted family member or friend acts as an interpreter. In addition, in exigent circumstances that are not reasonably foreseeable, temporary use of interpreters not provided by the recipient may be necessary. However, with proper planning and implementation, recipients should be able to avoid most such situations.
Recipients, however, should take special care to ensure that family, legal guardians, caretakers, and other informal interpreters are appropriate in light of the circumstances and subject matter of the program, service or activity, including protection of the recipient's own administrative or enforcement interest in accurate interpretation. In many circumstances, family members (especially children) or friends are not competent to provide quality and accurate interpretations. Issues of confidentiality, privacy, or conflict of interest may also arise. LEP persons may feel uncomfortable revealing or describing sensitive, confidential, or potentially embarrassing medical, law enforcement (
An example of such a case is when a property manager/or housing authority security or local police respond to a domestic disturbance. In such a case, use of family members or neighbors to interpret for the alleged victim, perpetrator, or witnesses may raise serious issues of competency, confidentiality, and conflict of interest and is thus inappropriate. While issues of competency, confidentiality, and conflict of interest in the use of family members (especially children) or friends often make their use inappropriate, the use of these individuals as interpreters may be an appropriate option where proper application of the four factors would lead to a conclusion that recipient-provided services are not necessary. An example of this is a voluntary tour of a community recreational facility built with Community Development Block Grant (CDBG) funds offered to the public. There, the importance and nature of the activity may be relatively low and unlikely to implicate issues of confidentiality, conflict of interest, or the need for accuracy. In addition, the resources needed and costs of providing language services may be high. In such a setting, an LEP person's use of family, friends, or others may be appropriate.
If the LEP person voluntarily chooses to provide his/her own interpreter, a recipient should consider whether a record of that choice and of the recipient's offer of assistance is appropriate. Where precise, complete, and accurate interpretations or translations of information and/or testimony are critical for legal reasons,
Translation is the replacement of a written text from one language (source language) into an equivalent written text in another language (target language). It should be kept in mind that many LEP persons may not be able to read their native languages and back-up availability of oral interpretation is always advantageous.
After applying the four-factor analysis, a recipient may determine that an effective LEP plan for its particular program or activity includes the translation of vital written materials into the language of each frequently encountered LEP group eligible to be served and/or likely to be affected by the recipient's program.
Such written materials could include, for example:
• Consent and complaint forms;
• Intake forms with the potential for important consequences;
• Written notices of rights, denial, loss, or decreases in benefits or services, and other hearings;
• Notices of eviction;
• Notices advising LEP persons of free language assistance;
• Leases and tenant rules; and/or
• Applications to participate in a recipient's program or activity or to receive recipient benefits or services.
Whether or not a document (or the information it solicits) is “vital” may depend upon the importance of the program, information, encounter, or service involved, and the consequence to the LEP person if the information in question is not provided accurately or in a timely manner. For instance, applications for certain recreational activities should not generally be considered vital documents, whereas applications for housing could be considered vital. Where appropriate, recipients are encouraged to create a plan for consistently determining, over time and across its various activities, what documents are “vital” to the meaningful access of the LEP populations they serve.
Classifying a document as vital or non-vital is sometimes difficult, especially in the case of outreach materials like brochures or other information on rights and services. Awareness of rights or services is an important part of “meaningful access.” Lack of awareness that a particular program, right, or service exists may effectively deny LEP persons meaningful access. Thus, where a recipient is engaged in community outreach activities in furtherance of its activities, it should regularly assess the needs of the populations frequently encountered or affected by the program or activity to determine whether certain critical outreach materials should be translated. Community organizations may be helpful in determining what outreach materials may be most helpful to translate. In addition, the recipient should consider whether translations of outreach material may be made more effective when done in tandem with other outreach methods, including utilizing the ethnic media, schools, grassroots and faith-based organizations, and community organizations to spread a message.
Sometimes a document includes both vital and non-vital information. This may be the case when the document is very large. It may also be the case when the title and a phone number for obtaining more information on the contents of the document in frequently encountered languages other than English is critical, but the document is sent out to the general public and cannot reasonably be translated into many languages. Thus, vital information may include, for instance, the provision of information in appropriate languages other than English regarding where a LEP person might obtain an interpretation or translation of the document.
The languages spoken by the LEP persons with whom the recipient has contact determine the languages into which vital documents should be translated. A distinction should be made, however, between languages that are frequently encountered by a recipient and less commonly encountered languages. Many recipients serve communities in large cities or across the country. They regularly serve LEP persons who speak dozens and sometimes over 100 different languages. To translate all written materials into all of those languages is unrealistic. Although recent technological advances have made it easier for recipients to store and share translated documents, such an undertaking would incur substantial costs and require substantial resources. Nevertheless, well-substantiated claims of lack of resources to translate all vital documents into dozens of languages do not necessarily relieve the recipient of the obligation to translate those documents into at least several of the more frequently-encountered languages and to set benchmarks for continued translations into the remaining languages over time. As a result, the extent of the recipient's obligation to provide written translations of documents should be determined by the recipient on a case-by-case basis, looking at the totality of the circumstances in light of the four-factor analysis. Because translation is a one-time expense, consideration should be given to whether the upfront cost of translating a document (as opposed to oral interpretation) should be amortized over the likely lifespan of the document when applying this four-factor analysis.
Many recipients would like to ensure with greater certainty that they comply with their obligations to provide written translations in languages other than English. Paragraphs (a) and (b) outline the circumstances that can provide a “safe harbor” for recipients regarding the requirements for translation of written materials. A “safe harbor” means that if a recipient provides written translations under these circumstances, such action will be considered strong evidence of compliance with the recipient's written-translation obligations. The failure to provide written translations under the circumstances outlined in paragraphs (a) and (b) does not mean there is non-compliance. Rather, they provide a common starting point for recipients to consider: whether and at what point the importance of the service, benefit, or activity involved; the nature of the information sought; and the number or proportion of LEP persons served call for written translations of commonly-used forms into frequently-encountered languages other than English. Therefore, these paragraphs merely provide a guide for recipients that would like greater certainty of compliance than can be
The following actions will be considered strong evidence of compliance with the recipient's written-translation obligations:
(a) The HUD recipient provides written translations of vital documents for each eligible LEP language group that constitutes 5 percent or 1,000 persons, whichever is less, of the population of persons eligible to be served or likely to be affected or encountered. Translation of other documents, if needed, can be provided orally; or
(b) If there are fewer than 50 persons in a language group that reaches the 5 percent trigger in (a), the recipient does not translate vital written materials, but provides written notice in the primary language of the LEP language group of the right to receive competent oral interpretation of those written materials, free of cost.
These safe harbor provisions apply to the translation of written documents only. They do not affect the requirement to provide meaningful access to LEP persons through competent oral interpreters where oral language services are needed and are reasonable. For example, housing facilities should, where appropriate, ensure that leases have been explained to LEP residents, at intake meetings, for instance, prior to taking adverse action against them.
As with oral interpreters, translators of written documents should be competent. Many of the same considerations apply. However, the skill of translating is very different from the skill of interpreting, and a person who is a competent interpreter may or may not be competent to translate.
Particularly where legal or other vital documents are being translated, competence can often be achieved by use of certified translators. Certification or accreditation may not always be possible or necessary. For those languages in which no formal accreditation currently exists, a particular level of membership in a professional translation association can provide some indicator of professionalism. Competence can often be ensured by having a second, independent translator “check” the work of the primary translator. Alternatively, one translator can translate the document, and a second, independent translator could translate it back into English to check that the appropriate meaning has been conveyed. This is called “back translation.”
Translators should understand the expected reading level of the audience and, where appropriate, have fundamental knowledge about the target language group's vocabulary and phraseology. Sometimes direct translation of materials results in a translation that is written at a much more difficult level than the English language version or has no relevant equivalent meaning. For instance, there may be languages that do not have an appropriate direct translation of some English language terms and the translator should be able to provide an appropriate translation. The translator should likely also make the recipient aware of this. Recipients can then work with translators to develop a consistent and appropriate set of descriptions of these terms in that language that can be used again, when appropriate. Recipients will find it more effective and less costly if they try to maintain consistency in the words and phrases used to translate terms of art and legal or other technical concepts. Creating or using already-created glossaries of commonly used terms may be useful for LEP persons and translators and cost-effective for the recipient. Providing translators with examples of previous translations of similar material by the recipient, other recipients, or federal agencies may be helpful. Community organizations may be able to help consider whether a document is written at a good level for the audience. Likewise, consistency in the words and phrases used to translate terms of art, legal, or other technical concepts helps avoid confusion by LEP persons and may reduce costs.
While quality and accuracy of translation services is critical, the quality and accuracy of translation services is nonetheless part of the appropriate mix of LEP services required. For instance, documents that are simple and have no legal or other consequence for LEP persons who rely on them may require translators that are less skilled than important documents with legal or other information upon which reliance has important consequences (including,
After completing the four-factor analysis and deciding what language assistance services are appropriate, a recipient should develop an implementation plan to address the identified needs of the LEP populations they serve. Recipients have considerable flexibility in developing this plan. The development and maintenance of a periodically-updated written plan on language assistance for LEP persons (“LEP plan”) for use by recipient employees serving the public will likely be the most appropriate and cost-effective means of documenting compliance and providing a framework for the provision of timely and reasonable language assistance. Moreover, such written plans would likely provide additional benefits to a recipient's managers in the areas of training, administration, planning, and budgeting. These benefits should lead most recipients to document in a written LEP plan their language assistance services, and how staff and LEP persons can access those services. Despite these benefits, certain HUD recipients, such as recipients serving very few LEP persons and recipients with very limited resources, may choose not to develop a written LEP plan. However, the absence of a written LEP plan does not obviate the underlying obligation to ensure meaningful access by LEP persons to a recipient's program or activities. Accordingly, in the event that a recipient elects not to develop a written plan, it should consider alternative ways to articulate in some other reasonable manner a plan for providing meaningful access. Entities having significant contact with LEP persons, such as schools, grassroots and faith-based organizations, community groups, and groups working with new immigrants can be very helpful in providing important input into this planning process from the beginning.
The following five steps may be helpful in designing an LEP plan and are typically part of effective implementation plans.
The first two factors in the four-factor analysis require an assessment of the number or proportion of LEP
An effective LEP plan would likely include information about the ways in which language assistance will be provided. For instance, recipients may want to include information on at least the following:
• Types of language services available;
• How staff can obtain those services;
• How to respond to LEP callers;
• How to respond to written communications from LEP persons;
• How to respond to LEP persons who have in-person contact with recipient staff; and
• How to ensure competency of interpreters and translation services.
Staff should know their obligations to provide meaningful access to information and services for LEP persons. An effective LEP plan would likely include training to ensure that:
• Staff know about LEP policies and procedures; and
• Staff having contact with the public is trained to work effectively with in-person and telephone interpreters.
Recipients may want to include this training as part of their orientation for new employees. It is important to ensure that all employees in public contact positions (or having contact with those in a recipient's custody) are properly trained. Recipients have flexibility in deciding the manner in which the training is provided. The more frequent the contact with LEP persons, the greater the need will be for in-depth training. Staff with little or no contact with LEP persons may only have to be aware of an LEP plan. However, management staff, even if they do not interact regularly with LEP persons, should be fully aware of and understand the plan so they can reinforce its importance and ensure its implementation by staff.
Once an agency has decided, based on the four factors, that it will provide language services, it is important for the recipient to let LEP persons know that those services are available and that they are free of charge. Recipients should provide this notice in a language that LEP persons will understand. Examples of notification that recipients should consider include:
• Posting signs in common areas, offices, and anywhere applications are taken. When language assistance is needed to ensure meaningful access to information and services, it is important to provide notice in appropriate languages in initial points of contact so that LEP persons can learn how to access those language services. This is particularly true in geographic areas with high volumes of LEP persons seeking access to the recipient's major programs and activities. For instance, signs in offices where applications are taken could state that free language assistance is available. The signs should be translated into the most common languages encountered. The signs should explain how to receive language assistance. The Social Security Administration has made such signs available at
• Stating in outreach documents that language services are available from the agency. Announcements could be in, for instance, brochures, booklets, and in outreach and recruitment information. These statements should be translated into the most common languages and could be “tagged” onto the front of common documents;
• Working with grassroots and faith-based community organizations and other stakeholders to inform LEP individuals of the recipients' services, including the availability of language assistance services;
• Using a telephone voice mail menu. The menu could be in the most common languages encountered. It should provide information about available language assistance services and how to get them;
• Including notices in local newspapers in languages other than English;
• Providing notices on non-English-language radio and television stations about the available language assistance services and how to get them; and
• Presentations and/or notices at schools and grassroots and faith-based organizations.
Recipients should, where appropriate, have a process for determining, on an ongoing basis, whether new documents, programs, services, and activities need to be made accessible for LEP persons, and they may want to provide notice of any changes in services to the LEP public and to employees. In addition, recipients should consider whether changes in demographics, types of services, or other needs require annual reevaluation of their LEP plan. Less frequent reevaluation may be more appropriate where demographics, services, and needs are more static. One good way to evaluate the LEP plan is to seek feedback from the community that the plan serves.
In their reviews, recipients may want to consider assessing changes in:
• Current LEP populations in the housing jurisdiction geographic area or population affected or encountered;
• Frequency of encounters with LEP language groups;
• Nature and importance of activities to LEP persons;
• Availability of resources, including technological advances and sources of additional resources, and the costs imposed;
• Whether existing assistance is meeting the needs of LEP persons;
• Whether staff knows and understands the LEP plan and how to implement it; and
• Whether identified sources for assistance are still available and viable.
In addition to these five elements, effective plans set clear goals, management accountability, and opportunities for community input and planning throughout the process.
The goal for Title VI and Title VI regulatory enforcement is to achieve voluntary compliance. The requirement to provide meaningful access to LEP persons is enforced and implemented by HUD through the procedures identified in the Title VI regulations. These procedures include complaint
The Title VI regulations provide that HUD will investigate whenever it receives a complaint, report, or other information that alleges or indicates possible noncompliance with Title VI or its regulations. The Office of Fair Housing and Equal Opportunity is responsible for conducting the investigation to ensure that recipients are in compliance with civil rights related programs requirements. If the investigation results in a finding of compliance, HUD will inform the recipient in writing of this determination, including the basis for the determination. HUD uses voluntary methods to resolve most complaints. However, if a case is fully investigated and results in a finding of noncompliance, HUD must inform the recipient of the noncompliance through a “Letter of Findings” that sets out the areas of noncompliance and the steps that must be taken to correct the noncompliance. It must attempt to secure voluntary compliance through informal means. If the matter cannot be resolved informally, HUD must secure compliance through the termination of federal assistance after the HUD recipient has been given an opportunity for an administrative hearing and/or by referring the matter to a DOJ litigation section to seek injunctive relief or pursue other enforcement proceedings. HUD engages in voluntary compliance efforts and provides technical assistance to recipients at all stages of an investigation. During these efforts, HUD proposes reasonable timetables for achieving compliance and consults with and assists recipients in exploring cost-effective ways of coming into compliance. In determining a recipient's compliance with the Title VI regulations, HUD's primary concern is to ensure that the recipient's policies and procedures provide meaningful access for LEP persons to the recipient's programs and activities.
While all recipients must work toward building systems that will ensure access for LEP persons, HUD acknowledges that the implementation of a comprehensive system to serve LEP persons is a process and that a system will evolve over time as it is implemented and periodically reevaluated. As recipients take reasonable steps to provide meaningful access to federally-assisted programs and activities for LEP persons, HUD will look favorably on intermediate steps recipients take that are consistent with this Guidance, and that, as part of a broader implementation plan or schedule, move their service delivery system toward providing full access to LEP persons. This does not excuse noncompliance but instead recognizes that full compliance in all areas of a recipient's activities and for all potential language minority groups may reasonably require a series of implementing actions over a period of time. However, in developing any phased implementation schedule, HUD recipients should ensure that the provision of appropriate assistance for significant LEP populations or with respect to activities having a significant impact on the housing, health, safety, legal rights, or livelihood of beneficiaries is addressed first. Recipients are encouraged to document their efforts to provide LEP persons with meaningful access to federally-assisted programs and activities.
Appendix A of this Guidance provides examples of how the meaningful access requirement of the Title VI regulations applies to HUD-funded recipients. It further explains how recipients can apply the four factors to a range of situations to determine their responsibility for providing language services in each of these situations. This Guidance helps recipients identify the population they should consider when determining the extent and types of services to provide. For instance, it gives examples on how to apply this guidance in situations like:
• Holding public meetings on the Consolidated Plans for Community Planning and Development Programs (CDBG, HOME, Housing Opportunity for Persons With AIDS (HOPWA), and Emergency Shelter Grants (ESG));
• Interviewing victims of housing discrimination;
• Helping applicants to apply for public housing units;
• Explaining lease provisions; and
• Providing affirmative marketing housing counseling services.
A wide range of entities receives federal financial assistance through HUD. HUD provides assistance to the following types of recipients, among others: assisted housing providers; public housing agencies; state and local governments; nonprofit organizations, including housing counseling agencies and grassroots community-based and faith-based organizations; state and local fair housing agencies; and providers of a variety of services. All HUD-funded recipients are required to certify to nondiscrimination and affirmatively furthering fair housing, either through the Office of Community Planning and Development's (CPD's) Consolidated Plan, (24 CFR 91.225 (a)(1) and (b)(6), 91.325(a)(1), 91.425(a)(i)); the public housing agency plans processes (24 CFR 903.7(o)); or the certifications required in the competitive programs funded through the Super Notice of Funding Availability (SuperNOFA). [Note: HUD publishes the SuperNOFA on an annual basis. The non-discrimination and the affirmative furthering fair housing requirements are found in the General Section of the SuperNOFA]. The website for the SuperNOFA is:
This Appendix provides examples of how HUD recipients might apply the four-factor analysis described in the general guidance. The Guidance and examples in this Appendix are not meant to be exhaustive and may not apply in some situations. CPD's citizen participation plan requirement, in particular, specifically instructs jurisdictions that receive funds through the Consolidated Plan process to take appropriate actions to encourage the participation of “* * * non-English speaking persons * * *” (24 CFR 91.105(a)(2)(ii), 91.115(a)(2)). Such recipients may, therefore, have processes in place to address the needs of their LEP beneficiaries that already take into consideration the four-factor analysis and meet the Title VI and regulatory requirements described in this Guidance.
This Guidance does not supplant any constitutional, statutory, or regulatory provisions that may require LEP services. Rather, this Guidance clarifies the Title VI and regulatory obligation to address, in appropriate circumstances and in a reasonable manner, the language assistance needs of LEP persons beyond those required by the Constitution or by statutes and regulations other than Title VI and the Title VI regulations.
Tribes and tribally-designated housing entities (TDHEs) are authorized to use federal housing assistance made available under the Native American Housing Assistance and Self-Determination Act of 1996 (NAHASDA, 25 U.S.C. 4101-4212) for low-income housing programs or activities for the specific benefit of tribal members or other Native Americans. Programs or activities funded in whole or in part with federal assistance made available under NAHASDA are exempt from Title VI and Title VIII of the Civil Rights Act of 1968. Although Title VI may not apply to housing programs undertaken by these entities under NAHASDA, this Guidance may be a helpful technical assistance tool in determining whether and to what degree language assistance may be appropriate to ensure meaningful access by otherwise eligible low-income Native Americans.
For many members of the public, exposure to housing and social service programs
Many recipients already provide language services in a wide variety of circumstances to obtain information effectively and help applicants obtain suitable housing or support services. For example, public housing agencies may have leases available in languages other than English as well as interpreters available to inform LEP persons of their rights and responsibilities. In areas where significant LEP populations reside, agencies may have forms and notices in languages other than English or they may employ bilingual intake personnel, housing counselors, and support staff. Such recipients may therefore have processes in place to address the needs of their LEP beneficiaries that meet the Title VI and regulatory requirements described in this Guidance. Such existing processes and their observed results can form a strong basis for applying the four-factor analysis and complying with the Title VI regulations.
The touchstone of the four-factor analysis is reasonableness based upon: (a) The specific needs and capabilities of the LEP population among the beneficiaries of HUD programs (tenants, applicants, community residents, complainants,
Before giving specific program examples, several general points should assist the wide variety of HUD recipients in applying this analysis.
In evaluating the target audience, the recipient should take into account the number and proportion of LEP persons served or to be served in the target population as well as the frequency with which this target audience will or should be served.
HUD recipients are required to reach out to, educate, and affirmatively market their services to potential beneficiaries in the geographic area who are least likely to apply for or receive the benefits of the program without such affirmative marketing (24 CFR 200.625, 24 CFR 92.351, 24 CFR 903. 2(d)(1) and (2)). In many cases, those least likely to apply for a benefit are LEP persons. In addition, in some cases where there are few LEP persons in the immediate geographic area, affirmative marketing may require marketing to residents of adjoining areas, communities, or neighborhoods (24 CFR 200.625, 24 CFR 92.351, 903.2(d)(1) and (2)).
The programs of many recipients require public meetings and input (24 CFR 91, subpart B; 24 CFR 903.13 (a); 24 CFR, part 964). Even within the large geographic area covered by a city government, certain target areas may have concentrations of LEP persons. These persons may be those who might be most affected by the issue being discussed.
In addition, some programs are specifically targeted to reach a particular audience (
Given the critical role housing plays in maintaining quality of life, housing and complementary housing services rank high on the critical/non-critical continuum. However, this does not mean that all services and activities provided by HUD recipients must be equally accessible in languages other than English. For example, while clearly important to the quality of life in the community, certain recreational programs provided by a HUD recipient may not require the same level of interpretive services as does the recipient's underlying housing service. Nevertheless, the need for language services with respect to these programs should be considered in applying the four-factor analysis.
The final factor that must be taken into account is the cost of providing various services as opposed to the resources available to the HUD recipient providing the service.
Similarly, there may be situations where a HUD recipient's own interests justify program provision of an interpreter regardless of whether the LEP individual also provides his or her own interpreter. For example, where precise, complete, and accurate interpretation of information is critical for lease enforcement, or at group meetings dealing with vital issues, such as pending displacement, a recipient might provide its own, independent interpreters, regardless of what recipients choose. This should ensure that information has been interpreted completely and is legally accurate.
In emergency situations that are not reasonably foreseeable, the recipient may have to rely temporarily on non-professional language services. However, reliance on children is especially discouraged unless there is an extreme emergency and no language proficient adults are available.
While all language services need to be competent, the greater the potential consequences, the greater the need to monitor interpretation services for quality. For example, it is important that interpreters of legal concepts be highly competent to translate legal and lease enforcement concepts as well as be extremely accurate in their interpretation when discussing relocation and displacement issues. It may be sufficient, however, for a desk clerk who is fully bilingual, but not skilled at interpreting, to help an LEP person complete an application in the language the LEP person and bilingual person have in common.
While all beneficiaries are important, the four-factor analysis requires prioritizing so that language services are targeted where most needed because of the nature and importance of the particular activity involved in relation to the costs of providing the service.
This section provides examples of promising practices in which recipients may engage. Grantees or funded recipients are responsible for ensuring meaningful access to all portions of their program or activity, not just the portions to which HUD funds are targeted. So long as the language services are accurate, timely, and appropriate in the manner outlined in this guidance, the types of promising practices summarized below can assist recipients in meeting the meaningful access requirements of Title VI and the Title VI regulations.
A local FHAP serves a small metropolitan area that has a population that is 3 percent Korean speaking, 25 percent Spanish-speaking, and 72 percent English speaking. One of the FHAP agency's primary responsibilities is to process fair housing discrimination complaints. The FHAP office has many Hispanic complainants who are LEP and Spanish-speaking; therefore, it has hired a Hispanic intake clerk who is bilingual in Spanish and English. The Fair Housing Poster and the complaint form have been translated into Spanish. The office has a contract with a nonprofit Hispanic organization for interpreters on an as-needed basis its education and outreach activities to the Hispanic community. FHAP organizations are small and have limited resources. In competing for the available resources, the FHAP chose not to translate the material into the language of the Korean population this year. However, it has plans to translate material into the Korean language in coming years to address the accessibility needs of the LEP population.
A community organization in a large metropolitan area had received FHIP funds to develop an education curriculum to assist newly arrived immigrants. Data showed that non-English speaking persons were having difficulty in applying and securing housing in the area. The organization had identified a large Hispanic clientele in the area that needed this service. It had a well-developed program for this LEP population. However, the community's population was changing. The recipient found that there was also a large community of recent immigrants from Cambodia who were also in need of language services. To address this need, the FHIP partnered with Asian Action Network, a community-based social service agency, to translate materials and to present free seminars at the local public library. In addition, if needed, the Asian Action Network had on its staff a Cambodian-speaking counselor who was able to provide interpretation services.
A PHA is planning to demolish a 400-unit public housing project and construct a 375-unit HOPE VI mixed-finance development and other amenities on the site. The 400-unit building is still occupied by a tenant population of which 55 percent are Spanish-speaking families. For a number of years, the PHA had in place bilingual employees in its occupancy office, as well as leases and other written documents translated into Spanish. Under the new requirements, the PHA now needs to translate public notices and other documents into Spanish, since many of the families are newly arrived immigrants from Latin America.
For example, a PHA administers a Housing Choice Voucher Program and has recently received an additional 100 vouchers. The PHA affirmatively markets the availability of the housing choice vouchers to all families living in its jurisdiction. It places a public service announcement in English, Spanish, Chinese, or Vietnamese in the local general circulation, Spanish, Chinese, or Vietnamese newspapers and radio and TV stations, as applicable.
All eligible activities in the State CDBG program must meet one of three statutory objectives specified in the CDBG authorizing legislation: principally benefit low- and moderate-income persons, aid in the prevention of elimination of slums or blight, or meet other community development needs having a particular urgency.
State CDBG grant recipients are encouraged to reach out to LEP persons through local alternative language newspapers. In addition, expenses associated with providing interpretive services to LEP persons may be considered program delivery or administration costs and, therefore, may be paid with CDBG funds. For instance, one state CDBG grant recipient chooses to provide case management services to homeless families and individuals, and allocates part of these funds to provide advocacy and interpretative services for LEP persons.
A small HOME participating jurisdiction is using its HOME funds to implement a tenant-based rental assistance (TBRA) program. Under TBRA, the assisted tenant may move from a dwelling unit, but retains the right to continued assistance. The TBRA assistance also includes the security deposit. The HOME PJ, as part of its affirmative marketing strategy, has submitted advertising to the local Spanish language newspapers and radio station that serve the community's small but growing Hispanic population. Since the costs of implementing the affirmative marketing strategy are eligible costs under the program regulations, the PJ is increasing its budget to train occupancy staff to address issues faced by LEP applicants and to hire a bilingual staff member.
In a majority-Hispanic community,
The sponsor of a Section 202 Supportive Housing for the Elderly project identifies in its Affirmative Fair Housing Marketing Plan the city's large numbers of East and South Asian immigrants as least likely to apply for the new housing without special outreach. After examining census and other data and consulting with the city's Office of Immigrant Affairs, the sponsor learns that the 1,000 of the 5,000 South and East Asian families have at least one elderly relative that may be eligible for the new units. The sponsor hires translators fluent in Hindi, Urdu, Dari, Vietnamese, and Chinese to translate written materials and advertising for the local press in those languages. The recipient also partners with community-based organizations that serve the city's East and South Asian immigrants to arrange for interpreters at meetings.
Office of the Secretary, HUD.
Notice.
This document designates “Difficult Development Areas” and “Qualified Census Tracts” for purposes of the Low-Income Housing Tax Credit (LIHTC) under section 42 of the Internal Revenue Code of 1986 (the Code). The United States Department of Housing and Urban Development (HUD) makes new Difficult Development Area designations annually and makes Qualified Census Tract Designations at this time due to the recent release of relevant data from the 2000 Census.
For questions on how areas are designated and on geographic definitions: Kurt G. Usowski, Associate Deputy Assistant Secretary for Economic Affairs, Office of Policy Development and Research, Department of Housing and Urban Development, 451 Seventh Street, SW., Washington, DC 20410-6000, telephone (202) 708-2770, e-mail
The designations of Difficult Development Areas in this notice are based on fiscal year (FY) 2003 Fair Market Rents (FMRs), FY 2003 income limits, and 2000 Census population counts as explained below. This notice designates Difficult Development Areas for each of the 50 states, the District of Columbia, Puerto Rico, American Samoa, Guam, the Northern Mariana Islands, and the Virgin Islands. The designations of Qualified Census Tracts in this notice are based on 2000 Census data. This notice designates Qualified Census Tracts for American Samoa, Guam, and the Northern Mariana Islands. The 2003 Qualified Census Tracts designated for the 50 states, the District of Columbia, Puerto Rico, and the Virgin Islands published December 12, 2002, at 67 FR 76452 are unchanged by this notice.
Data from the 2000 Census on total population of metropolitan areas and nonmetropolitan counties are used in the designation of Difficult Development Areas. The Census Bureau has recently released the data needed to update Qualified Census Tract designations for American Samoa, Guam, and the Northern Mariana Islands, so this notice makes new qualified Census Tract designations in these areas based on 2000 Census data. The Office of Management and Budget (OMB) published new metropolitan area definitions incorporating 2000 Census data in OMB Bulletin No. 03-04 on June 6, 2003. The Census Bureau has not yet released official data on 1999 median incomes in the newly defined metropolitan areas and nonmetropolitan areas of states. Also, the FY 2003 FMRs and 2003 income limits used to designate Difficult Development Areas are based on the Metropolitan Statistical Areas (MSA) and Primary Metropolitan Statistical Areas (PMSA) definitions established by OMB in OMB Bulletin No. 99-04 on June 30, 1999. Therefore, for the purposes of designating Difficult Development Areas and Qualified Census Tracts “metropolitan areas” will continue to be defined according to the MSA/PMSA definitions established by the OMB in OMB Bulletin No. 99-04 on June 30, 1999, until further notice.
The U.S. Treasury Department and the Internal Revenue Service thereof are authorized to interpret and enforce the provisions of the Code, including the LIHTC found at section 42 of the Code (26 U.S.C. 42). The Secretary of HUD is required to designate Difficult Development Areas and Qualified Census Tracts by section 42(d)(5)(C) of the Code.
In order to assist in understanding HUD's mandated designation of Difficult Development Areas and Qualified Census Tracts for use in administering section 42 of the Code, a summary of section 42 is provided. The following summary does not purport to bind the Treasury or the IRS in any way, nor does it purport to bind HUD, as HUD has no authority to interpret or administer the Code, except in those instances where it has a specific delegation.
The LIHTC is a tax incentive intended to increase the availability of low-income housing. Section 42 provides an income tax credit to owners of newly constructed or substantially rehabilitated low-income rental housing projects. The dollar amount of the LIHTC available for allocation by each state (credit ceiling) is limited by population. Each state is allocated credit based on a statutory formula indicated at section 42(h)(3). States may carry forward unallocated credit derived from the credit ceiling for one year; if a certain portion of this unallocated credit is not used by then, this portion goes into a national pool to be allocated to states as additional credit. State and local housing agencies allocate the state's credit ceiling among low-income housing buildings whose owners have applied for the credit. Besides section 42 credits derived from the credit ceiling, states may also provide section 42 credits to owners of buildings based upon the percentage of certain building costs financed by tax-exempt bond proceeds. Credits provided under the tax-exempt bond “volume cap” do not reduce the credit available from the credit ceiling.
The credit allocated to a building is based on the cost of units placed in service as low-income units under certain minimum occupancy and maximum rent criteria. In general, a building must meet one of two thresholds to be eligible for the LIHTC: either 20 percent of units must be rent-restricted and occupied by tenants with incomes no higher than 50 percent of the area median gross income (AMGI), or 40 percent of units must be rent restricted and occupied by tenants with incomes no higher than 60 percent of AMGI. The term “rent-restricted” means that gross rent, including an allowance for utilities, cannot exceed 30 percent of the tenant's imputed income limitation
The LIHTC reduces income tax liability dollar for dollar. It is taken annually for a term of ten years and is intended to yield a present value of either (1) 70 percent of the “qualified basis” for new construction or substantial rehabilitation expenditures that are not federally subsidized (
The qualified basis represents the product of the “applicable fraction” of the building and the “eligible basis” of the building. The applicable fraction is based on the number of low-income units in the building as a percentage of the total number of units, or based on the floor space of low income-units as a percentage of the total floor space of residential units in the building. The eligible basis is the adjusted basis attributable to acquisition, rehabilitation, or new construction costs (depending on the type of LIHTC involved). These costs include amounts chargeable to capital account incurred prior to the end of the first taxable year in which the qualified low-income building is placed in service or, at the election of the taxpayer, the end of the succeeding taxable year. In the case of buildings located in designated Qualified Census Tracts or designated Difficult Development Areas, eligible basis can be increased up to 130 percent of what it would otherwise be. This means that the available credit also can be increased by up to 30 percent. For example, if a 70 percent credit is available, it effectively could be increased up to 91 percent.
Section 42 of the Code defines a Difficult Development Area as any area designated by the Secretary of HUD as an area that has high construction, land, and utility costs relative to the AMGI. All designated Difficult Development Areas in MSAs/PMSAs may not contain more than 20 percent of the aggregate population of all MSAs/PMSAs, and all designated areas not in metropolitan areas may not contain more than 20 percent of the aggregate population of all nonmetropolitan counties.
Under section 42(d)(5)(C) of the Code, a Qualified Census Tract is any census tract (or equivalent geographic area defined by the Bureau of the Census) in which at least 50 percent of households have an income less than 60 percent of the AMGI or in which the poverty rate is at least 25 percent. There is a limit on the number of Qualified Census Tracts in any MSA or PMSA that may be designated to receive an increase in eligible basis: all of the designated census tracts within a given MSA/PMSA may not together contain more than 20 percent of the total population of the MSA/PMSA. For purposes of HUD designations of Qualified Census Tracts, all nonmetropolitan areas in a state are treated as if they constituted a single metropolitan area.
In developing this list of LIHTC Qualified Census Tracts, HUD used 2000 Census data and the MSA/PMSA definitions established by the Office of Management and Budget in OMB Bulletin No. 99-04 on June 30, 1999. The LIHTC Qualified Census Tracts were determined as follows:
1. A census tract must have 50 percent of its households with incomes below 60 percent of the AMGI or have a poverty rate of 25 percent or more to be “eligible.” In metropolitan areas, HUD calculates 60 percent of AMGI by multiplying the MSA/PMSA median family income for 1999, as reported by the 2000 Census, by a factor of 0.6. Outside of metropolitan areas, HUD calculates 60 percent of AMGI by multiplying the state-specific, nonmetropolitan balance median family income by a factor of 0.6.
2. For each census tract, the percentage of households below the 60 percent income standard (the income criterion) was determined by (a) calculating the average household size of the census tract, (b) applying the income standard after adjusting it to match the average household size, and (c) calculating the number of households with incomes below the income standard.
3. For each census tract, the poverty rate was determined by dividing the population with incomes below poverty by the population for whom poverty status has been determined.
4. Qualified Census Tracts are those in which 50 percent or more of the households meet the income criterion or 25 percent or more of the population is in poverty, such that the population of all census tracts that satisfy either one or both of these criteria does not exceed 20 percent of the total population of the respective area.
5. In areas where more than 20 percent of the population resides in eligible census tracts, census tracts are designated as QCTs in accordance with the following procedure:
a. Eligible tracts are placed in one of two groups. The first group includes tracts that satisfy both the income and poverty criteria. The second group includes tracts that satisfy either the income criterion or the poverty criterion, but not both.
b. Tracts in the first group are ranked from lowest to highest on the income criterion. Then tracts in the first group are ranked from lowest to highest on the poverty criterion. The two ranks are averaged to yield a combined rank. The tracts are then sorted on the combined rank, with the census tract with the highest combined rank being placed at the top of the sorted list. In cases of tied combined ranks, more populous tracts are ranked above less populous ones.
c. Tracts in the second group are ranked from lowest to highest on the income criterion. Then tracts in the second group are ranked from lowest to highest on the poverty criterion. The two ranks are then averaged to yield a combined rank. The tracts are then sorted on the combined rank, with the census tract with the highest combined rank being placed at the top of the sorted list. In cases of tied combined ranks, more populous tracts are ranked above less populous ones.
d. The ranked first group is stacked on top of the ranked second group to yield a single, concatenated, ranked list of eligible census tracts.
e. Working down the single, concatenated, ranked list of eligible tracts, census tracts are designated until the designation of an additional tract would cause the 20 percent limit to be exceeded. If a census tract is not designated because doing so would raise the percentage above 20 percent, then subsequent census tracts are considered to determine if one or more census tract(s) with smaller population(s) could
In developing the list of Difficult Development Areas, HUD compared incomes with housing costs. HUD used 2000 Census population data and the MSA/PMSA definitions as published by the Office of Management and Budget in OMB Bulletin No. 99-04 on June 30, 1999, with the exceptions described in section D., below. The basis for these comparisons was the FY 2003 HUD income limits for Very Low-Income households and FMRs used for the section 8 Housing Assistance Payments program. The procedure used in making the Difficult Development Area calculations follows:
1. For each MSA/PMSA and each nonmetropolitan county, a ratio was calculated. This calculation used the FY 2003 two-bedroom FMR and the FY 2003 four-person VLIL.
a. The numerator of the ratio was the area's FY 2003 FMR. In general the FMR is based on the 40th percentile rent paid by recent movers for a two-bedroom apartment. In metropolitan areas granted a FMR based on the 50th percentile rent for purposes of improving the administration of HUD's Housing Choice Voucher program (see 66 FR 162) the 40th percentile rent is used for nationwide consistency of comparisons.
b. The denominator of the ratio was the monthly LIHTC income-based rent limit calculated as 1/12 of 30 percent of 120 percent of the area's VLIL (where 120 percent of the VLIL was rounded to the nearest $50 and not allowed to exceed 80 percent of the AMGI in areas where the VLIL is adjusted upward from its 50 percent of AMGI base).
2. The ratios of the FMR to the LIHTC income-based rent limit were arrayed in descending order, separately, for MSAs/PMSAs and for nonmetropolitan counties.
3. The Difficult Development Areas are those with the highest ratios cumulative to 20 percent of the 2000 population of all metropolitan areas and of all nonmetropolitan counties.
In identifying Difficult Development Areas and Qualified Census Tracts, HUD applied various caps, or limitations, as noted above. The cumulative population of metropolitan Difficult Development Areas cannot exceed 20 percent of the cumulative population of all metropolitan areas and the cumulative population of nonmetropolitan Difficult Development Areas cannot exceed 20 percent of the cumulative population of all nonmetropolitan counties.
In applying these caps, HUD established procedures to deal with how to treat small overruns of the caps. The remainder of this section explains the procedure. In general, HUD stops selecting areas when it is impossible to choose another area without exceeding the applicable cap. The only exceptions to this policy are when the next eligible excluded area contains either a large absolute population or a large percentage of the total population, or the next excluded area's ranking ratio as described above was identical (to four decimal places) to the last area selected, and its inclusion resulted in only a minor overrun of the cap. Thus for both the designated metropolitan and nonmetropolitan Difficult Development Areas there may be a minimal overrun of the cap. HUD believes the designation of these additional areas is consistent with the intent of the legislation. Some latitude is justifiable because it is impossible to determine whether the 20 percent cap has been exceeded, as long as the apparent excess is small, due to measurement error. Despite the care and effort involved in a decennial census, it is recognized by the Census Bureau, and all users of the data, that the population counts for a given area and for the entire country are not precise. The extent of the measurement error is unknown. Thus, there can be errors in both the numerator and denominator of the ratio of populations used in applying a 20 percent cap. In circumstances where a strict application of a 20 percent cap results in an anomalous situation, recognition of the unavoidable imprecision in the census data justifies accepting
As stated in OMB Bulletin 99-04 defining metropolitan areas:
The following counties are assigned their own FMRs and VLILs and evaluated as if they were separate metropolitan areas for purposes of designating Difficult Development Areas.
In the New England states (Connecticut, Maine, Massachusetts, New Hampshire, Rhode Island, and Vermont) OMB defines MSAs/PMSAs according to county subdivisions or Minor Civil Divisions (MCDs) rather than county boundaries. Thus, when a New England county is designated as a Nonmetropolitan Difficult Development Area, only that part of the county (the group of MCDs) not included in any MSA/PMSA is the Nonmetropolitan Difficult Development Area. Affected counties are assigned the indicator “(part)” in the list of Nonmetropolitan Difficult Development Areas. Also in the New England states, census tracts may be cut by MSA/PMSA boundaries. Only those LIHTC projects located in the part of the tract in the listed MSA/PMSA or nonmetropolitan area may be allowed the increase in basis. Affected tracts are marked with an asterisk (*) in the list of Qualified Census Tracts.
For the convenience of readers of this notice, the geographic definitions of designated Metropolitan Difficult Development Areas and the MCDs included in Nonmetropolitan Difficult Development Areas in the New England states are included in the list of Difficult Development Areas.
Certain nonmetropolitan county equivalent areas in Alaska for which FMRs and VLILs are calculated and thus form the basis of Difficult Development Area designations are no longer recognized as geographic entities by the Census Bureau. Therefore, no 2000 Census population counts are produced
1. The 2000 Population of Denali Borough (1,893) was allocated entirely to the Yukon-Koyukuk Census Area. The part of Denali Borough created from the Southeast Fairbanks Census Area was deemed uninhabited after examination of Census Block data for, and maps of, the area of Denali Borough formerly in the Southeast Fairbanks Census Area.
2. The population of Yakutat City and Borough (808) was allocated to the former Skagway-Yakutat-Angoon Census Area (680) and the Valdez-Cordova Census Area (128). The populations of Yakutat City and Borough Census Blocks located east of 141° longitude were allocated to the Skagway-Yakutat-Angoon Census Area. The populations of Yakutat City and Borough Census Blocks located west of 141° longitude were allocated to the Valdez-Cordova Census Area.
Difficult Development Areas are designated annually as updated income and FMR data become available. Qualified Census Tracts are updated periodically to reflect changes in OMB's designations of metropolitan areas. Qualified Census Tracts are not being updated at this time to reflect the recent change in metropolitan area definitions (OMB Bulletin N0. 03-04, June 6, 2003) because the Census Bureau has not yet released official data on median incomes in the newly defined metropolitan areas and nonmetropolitan parts of states. This notice designates Qualified Census Tracts for American Samoa, Guam, and the Northern Mariana Islands based on 2000 Census data. The 2003 Qualified Census Tracts designated for the 50 states, the District of Columbia, Puerto Rico, and the Virgin Islands published December 12, 2002, at 67 FR 76452 are unchanged by this notice.
The lists of Difficult Development Areas and the list of Qualified Census Tracts are effective for allocations of credit made after December 31, 2003. In the case of a building described in section 42(h)(4)(B) of the Code, the lists are effective if the bonds are issued and the building is placed in service after December 31, 2003.
For the convenience of readers of this notice, interpretive examples are provided below to illustrate the consequences of the effective date in areas that gain or lose Difficult Development Area status with respect to projects described in section 42(h)(4)(B) of the Code. The examples are equally applicable to Qualified Census Tract designations.
(Case A) Project “A” is located in a newly designated 2004 Difficult Development Area. Bonds are issued for Project “A” on November 1, 2003, and Project “A” is placed in service March 1, 2004. Project “A” IS NOT eligible for the increase in basis otherwise accorded a project in this location because the bonds were issued BEFORE January 1, 2004.
(Case B) Project “B” is located in a newly designated 2004 Difficult Development Area. Project “B” is placed in service November 15, 2003. The bonds that will support the permanent financing of Project “B” are issued January 15, 2004. Project “B” IS NOT eligible for the increase in basis otherwise accorded a project in this location because the project was placed in service BEFORE January 1, 2004.
(Case C) Project “C” is located in an area that is a Difficult Development Area in 2003, but IS NOT a Difficult Development Area in 2004. Bonds are issued for Project “C” on October 30, 2003, but Project “C” is not placed in service until March 30, 2004. Project “C” is eligible for the increase in basis available to projects located in 2003 Difficult Development Areas because the first of the two events necessary for triggering the effective date for buildings described in section 42(h)(4)(B) of the Code (the two events being bonds issued and buildings placed in service) took place on October 30, 2003, a time when project “C” was located in a Difficult Development Area.
In accordance with 40 CFR 1508.4 of the CEQ regulations and 24 CFR 50.19(c)(6) of the HUD regulations, the policies and procedures contained in this notice provide for the establishment of fiscal requirements or procedures which do not constitute a development decision that affects the physical condition of specific project areas or building sites and therefore, are categorically excluded from the requirements of the National Environmental Policy Act, except for extraordinary circumstances, and no FONSI is required.
The Secretary, in accordance with 5 U.S.C. section 605(b) (the Regulatory Flexibility Act), has reviewed and approved this notice, and in so doing certifies that this notice does not have a significant economic impact on a substantial number of small entities. The notice involves the designation of “Difficult Development Areas” and “Qualified Census Tracts” as required by section 42 of the Code, as amended, for use by political subdivisions of the states in allocating the Low-Income Housing Tax Credit. This notice places no new requirements on the states, their political subdivisions, or the applicants for the credit. This notice also details the technical methodology used in making such designations.
Executive Order 13132 (entitled “Federalism”) prohibits an agency from publishing any rule that has federalism implications if the notice either imposes substantial direct compliance costs on state and local governments and is not required by statute, or the rule preempts state law, unless the agency meets the consultation and funding requirements of section 6 of the Executive Order. As a result, the notice is not subject to review under the order. The notice merely designates “Difficult Development Areas” and “Qualified Census Tracts” as required under section 42 of the Internal Revenue Code, as amended, for the use by political subdivisions of the states in allocating the Low-Income Housing Tax Credit. The notice also details the technical methodology used in making such designations.