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Federal Aviation Administration, DOT.
Final rule.
This amendment supersedes an existing airworthiness directive (AD), that is applicable to Pratt & Whitney PW4000 series turbofan engines. That AD requires operators to perform initial and repetitive inspections for cracking of high pressure compressor (HPC) front drum rotors based on cycle usage. That AD also requires the removal from service of any cracked HPC front drum rotors. This amendment clarifies inspection requirements for cracking of HPC front drum rotors that have fewer than 1,000 cycles-since-new (CSN). This amendment is prompted by comments from operators seeking more clarity about the inspection requirements of paragraph (a)(1) of that AD. The actions specified by this AD are intended to prevent HPC drum rotor failure from cracks that could result in an uncontained engine failure and damage to the airplane.
Effective date July 31, 2002. The incorporation by reference of certain publications listed in the regulations is approved by the Director of the Federal Register as of July 31, 2002.
The service information referenced in this AD may be obtained from Pratt & Whitney, 400 Main Street, East Hartford, CT 06108. This information may be examined, by appointment, at the FAA, New England Region, Office of the Regional Counsel, 12 New England Executive Park, Burlington, MA. This information may be examined, by appointment, at the Federal Aviation Administration (FAA), New England Region, Office of the Regional Counsel, 12 New England Executive Park, Burlington, MA; or at the Office of the Federal Register, 800 North Capitol Street, NW., suite 700, Washington, DC.
Tara Goodman, Aerospace Engineer, Engine Certification Office, FAA, Engine and Propeller Directorate, 12 New England Executive Park, Burlington MA 01803–5299; telephone: (781) 238–7130, fax: (781) 238–7199.
A proposal to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) by superseding AD 2001–20–13, Amendment 39–12461 (66 FR 52023, October 12, 2001), which is applicable to Pratt & Whitney PW4000 series turbofan engines, was published in the
Interested persons have been afforded an opportunity to participate in the making of this amendment. Due consideration has been given to the comments received.
Two commenters state that in proposed paragraph (a), the inspection requirements are not clear for HPC front drum rotors with fewer than 1,000 cycles-since-new (CSN). One of the commenters states that the requirements are not clear on how to fulfill the initial inspection for HPC front drum rotors with less than 1,000 CSN. The commenter states that proposed paragraph (a)(1) refers to an HPC front drum rotor with less than 1,000 CSN, but the front drum must have accumulated at least 1,000 CSN before an initial inspection can be carried out. Therefore, it is not possible to fulfill the AD. The commenter suggests changing the wording of paragraph (a)(1) to say that HPC front drum rotors must have accumulated at least 1,000 CSN before an inspection can be carried out as an initial inspection.
The FAA does not agree. Proposed paragraph (a)(1) states that HPC front drum rotors may have fewer than 1,000 cycles-since-new on the effective date of the AD, and further states that after the front drum rotors accumulate 1,000 cycles-since-new (CSN), the initial inspection must be done within 500 cycles-in-service. This is consistent with the requirements of Pratt & Whitney ASB PW4ENG A72–722, dated September 29, 2000 and ASB PW4ENG A72–722, Revision 1, dated June 7, 2001. Proposed paragraph (a)(1) addresses front drum rotors that have fewer than 1,000 cyles-since-new on the effective date of the AD in order to include them in the inspection program. Therefore, no changes are necessary and the proposed paragraph (a) is adopted without change.
One commenter requests that the effective date of the superseding AD be the same as the effective date of ASB PW4ENG A72–722, Revision 1, dated June 7, 2001. The commenter expresses concern that the effective date of the superseding AD would require changing the operators' ongoing inspection program.
The FAA does not agree that the effective date of the superseding AD must be the same as the effective date of Revision 1 of the ASB. The actions in the AD are required unless already done. Also, the inspections are based on the number of cycles the HPC front drum rotor has accumulated since new. An on-going inspection program is not affected by a change in the effective date of the AD.
One commenter notes that the proposal differs from the ASB, by not including the off-wing repetitive inspection program. The commenter states that when an engine is removed in accordance with another AD, AD 2001–25–11, the engine may be returned to service without HPC disassembly. Therefore, the off-wing borescope inspection program is necessary in this
The FAA partially agrees. The FAA does not agree that the off-wing borescope inspection program must be incorporated in the AD. In the discussion of comments section of AD 2001–20–13, published in the
One commenter expresses concern that the proposal does not address engines that have met the requirements of the ASB before the effective date of the AD. Another commenter expresses concern that the proposal does not reference engines that have complied with the ASB during a shop visit before the effective date of the AD. The commenters request that paragraph (a) of the AD reference the off-wing borescope inspection in accordance with off-wing inspection paragraphs of ASB PW4ENG A72–722. The commenters also request that a paragraph be added to the AD to state that HPC drum rotors previously inspected in accordance with the on-wing and off-wing accomplishment instructions of the ASB's before the effective date of the AD, satisy the initial inspection requirements of the AD.
The FAA partially agrees. The FAA does not agree that the off-wing borescope inspection program must be incorporated in the AD, as explained previously in the third comment response. The FAA agrees that inspection of HPC front drum rotors in accordance with the off-wing inspection instructions of the ASB before the effective date of the AD, satisfies the initial inspection requirements of the AD. Therefore, a new sub-paragraph (7) is added to paragraph (a) of the AD to allow the use of off-wing inspections of the HPC front drum rotors to satisfy the initial inspection requirement.
One commenter states that the repetitive inspection program is not at part level and requests that the repetitive inspection program be at part level.
The FAA disagrees that a part level inspection program should be added to the AD. Because the actions required by this AD are on-wing borescope inspections, the engine does not need to be disassembled to the part level in order to do the required actions.
Two commenters approve of the proposal as written. After careful review of the available data, including the comments noted above, the FAA has determined that air safety and the public interest require the adoption of the rule with the changes described previously. The FAA has determined that these changes will neither increase the economic burden on any operator nor increase the scope of the AD.
The FAA estimates that this superseding AD will result in no additional costs to operators beyond those already incurred to comply with the current AD.
This final rule does not have federalism implications, as defined in Executive Order 13132, because it would not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. Accordingly, the FAA has not consulted with state authorities prior to publication of this final rule.
For the reasons discussed above, I certify that this action (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and (3) will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. A final evaluation has been prepared for this action and it is contained in the Rules Docket. A copy of it may be obtained by contacting the Rules Docket at the location provided under the caption
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
49 U.S.C. 106(g), 40113, 44701.
This AD applies to each engine identified in the preceding applicability provision, regardless of whether it has been modified, altered, or repaired in the area subject to the requirements of this AD. For engines that have been modified, altered, or repaired so that the performance of the requirements of this AD is affected, the owner/operator must request approval for an alternative method of compliance in accordance with paragraph (d) of this AD. The request should include an assessment of the effect of the modification, alteration, or repair on the unsafe condition addressed by this AD; and, if the unsafe condition has not been eliminated, the request should include specific proposed actions to address it.
To prevent failure of the high pressure compressor (HPC) front drum rotor from cracks, that could result in an uncontained engine failure and damage to the airplane, do the following:
(a) Perform an initial borescope inspection for cracks in accordance with the Accomplishment Instructions, On-Wing paragraphs 1 through 13, of Pratt & Whitney (PW) Alert Service Bulletin (ASB) No. PW4ENG A72–722, dated September 29, 2000 or Revision 1, dated June 7, 2001, as follows:
(1) For HPC front drum rotors with fewer than 1,000 cycles-since-new (CSN) on the effective date of this AD, perform an initial inspection within 500 cycles-in-service (CIS) after accumulating 1,000 CSN.
(2) For HPC front drum rotors with 1,000 CSN or more after the effective date of this AD, perform an initial inspection within 500 CIS after the effective date of this AD.
(3) If the presence of a crack needs to be confirmed, perform an eddy current inspection (ECI) within five flight cycles of the on-wing borescope inspection.
(4) If the presence of a crack needs to be confirmed and the suspect crack indication extends from the knife edges to the disk radius directly adjacent to the spacer wall of the sixth or seventh stage as shown in Figures 2 and 3 of PW ASB No. PW4ENG A72–722, dated September 29, 2000, or Revision 1, dated June 7, 2001, the ECI inspection must be done before further flight.
(5) If the presence of a crack is confirmed, remove and replace the HPC front drum rotor with a serviceable part before further flight.
(6) HPC front drum rotors fluorescent penetrant inspected at the last shop visit, as cited in the compliance section of the ASB, within 500 cycles of the effective date of this AD, satisfy the initial inspection requirement.
(7) HPC front drum rotors inspected at the last shop visit, in accordance with Off-Wing paragraphs 1 through 13 of PW4ENG A72–722, dated September 29, 2000, or Revision 1, dated June 7, 2001, within 500 cycles of the effective date of this AD, satisfy the initial inspection requirement.
(b) Thereafter, perform borescope inspections within 2,200 cycles-since-last-inspection, in accordance with the Accomplishment Instructions, On-Wing paragraphs 1 through 13, or Off-Wing paragraphs 1 through 13, of PW ASB No. PW4ENG A72–722, dated September 29, 2000, or Revision 1, dated June 7, 2001.
(1) If the presence of a crack needs to be confirmed, perform an ECI within five flight cycles.
(2) If the presence of a crack needs to be confirmed and the suspect crack indication extends from the knife edges to the disk radius directly adjacent to the spacer wall of the sixth or seventh stage as shown in Figures 2 and 3 of PW ASB No. PW4ENG A72–722, dated September 29, 2000, or Revision 1, dated June 7, 2001, the ECI inspection must be done before further flight.
(3) If the presence of a crack is confirmed, remove and replace with a serviceable HPC front drum rotor before further flight.
(c) For the purposes of this AD, a suspect crack indication is defined as a response from the visual borescope inspection procedure that denotes the possible presence of a material discontinuity and requires interpretation to determine its significance.
(d) An alternative method of compliance or adjustment of the compliance time that provides an acceptable level of safety may be used if approved by the Manager, Engine Certification Office (ECO). Operators must submit their request through an appropriate FAA Principal Maintenance Inspector, who may add comments and then send it to the Manager, ECO.
Information concerning the existence of approved alternative methods of compliance with this airworthiness directive, if any, may be obtained from the ECO.
(e) Special flight permits may be issued in accordance with §§ 21.197 and 21.199 of the Federal Aviation Regulations (14 CFR 21.197 and 21.199) to operate the airplane to a location where the requirements of this AD can be done.
(f) The inspections must be done in accordance with the following Pratt & Whitney Alert Service Bulletins (ASB's):
This incorporation by reference was approved by the Director of the Federal Register in accordance with 5 U.S.C. 552(a) and 1 CFR part 51. Copies may be obtained from Pratt & Whitney, 400 Main Street, East Hartford, CT 06108. Copies may be inspected, by appointment, at the FAA, New England Region, Office of the Regional Counsel, 12 New England Executive Park, Burlington, MA; or at the Office of the Federal Register, 800 North Capitol Street, NW, suite 700, Washington, DC.
(g) This amendment becomes effective on July 31, 2002.
Federal Aviation Administration, DOT.
Final rule.
This amendment adopts a new airworthiness directive (AD), applicable to certain McDonnell Douglas Model MD–90–30 airplanes, that requires an inspection of the galley
Effective July 31, 2002.
The incorporation by reference of certain publications listed in the regulations is approved by the Director of the Federal Register as of July 31, 2002.
The service information referenced in this AD may be obtained from Boeing Commercial Aircraft Group, Long Beach Division, 3855 Lakewood Boulevard, Long Beach, California 90846, Attention: Data and Service Management, Dept. C1-L5A (D800–0024). This information may be examined at the Federal Aviation Administration (FAA), Transport Airplane Directorate, Rules Docket, 1601 Lind Avenue, SW., Renton, Washington; or at the FAA, Los Angeles Aircraft Certification Office, 3960 Paramount Boulevard, Lakewood, California; or at the Office of the Federal Register, 800 North Capitol Street, NW., suite 700, Washington, DC.
George Y. Mabuni, Aerospace Engineer, Systems and Equipment Branch, ANM–130L, FAA, Los Angeles Aircraft Certification Office, 3960 Paramount Boulevard, Lakewood, California 90712–4137; telephone (562) 627–5341; fax (562) 627–5210.
A proposal to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) to include an airworthiness directive (AD) that is applicable to certain McDonnell Douglas Model MD–90–30 airplanes was published in the
Interested persons have been afforded an opportunity to participate in the making of this amendment. No comments were submitted in response to the proposal or the FAA's determination of the cost to the public.
For clarification, the FAA has revised the definition of a “general visual inspection” in this final rule. We also have corrected a typographical error in the docket number specified in the proposed rule in the section containing the manufacturer's name.
The FAA has determined that air safety and the public interest require the adoption of the rule with the changes described above. The FAA has determined that these changes will neither increase the economic burden on any operator nor increase the scope of the AD.
The FAA estimates that 17 airplanes of U.S. registry will be affected by the requirement to accomplish McDonnell Douglas Alert Service Bulletin MD90–24A046, Revision 02, dated March 26, 2001. We estimate that 22 airplanes of U.S. registry will be affected by the requirement to accomplish McDonnell Douglas Alert Service Bulletin MD90–24A047, Revision 01, dated July 31, 2000.
It will take approximately 1 work hour per airplane to accomplish the required inspection, at an average labor rate of $60 per work hour. Based on these figures, the cost impact of the inspection on U.S. operators is estimated to be $1,020, or $60 per airplane.
It will take approximately 2 work hours per airplane to accomplish the required installation of sleeving along a portion of the cable, at an average labor rate of $60 per work hour. Based on these figures, the cost impact of the installation of sleeving on U.S. operators is estimated to be $2,040, or $120 per airplane.
It will take approximately 5 work hours per airplane to accomplish the required modification of the installation of the galley power feeder cables and re-routing of the cables, at an average labor rate of $60 per work hour. Based on these figures, the cost impact of the modification and re-routing of the cable on U.S. operators is estimated to be $6,600, or $300 per airplane.
The cost impact figures discussed above are based on assumptions that no operator has yet accomplished any of the requirements of this AD action, and that no operator would accomplish those actions in the future if this AD were not adopted. The cost impact figures discussed in AD rulemaking actions represent only the time necessary to perform the specific actions actually required by the AD. These figures typically do not include incidental costs, such as the time required to gain access and close up, planning time, or time necessitated by other administrative actions.
The regulations adopted herein will not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, it is determined that this final rule does not have federalism implications under Executive Order 13132.
For the reasons discussed above, I certify that this action (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and (3) will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. A final evaluation has been prepared for this action and it is contained in the Rules Docket. A copy of it may be obtained from the Rules Docket at the location provided under the caption
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
49 U.S.C. 106(g), 40113, 44701.
This AD applies to each airplane identified in the preceding applicability provision, regardless of whether it has been modified, altered, or repaired in the area subject to the requirements of this AD. For airplanes that have been modified, altered, or repaired so that the performance of the requirements of this AD is affected, the owner/operator must request approval for an alternative method of compliance in accordance with paragraph (c) of this AD. The request should include an assessment of the effect of the modification, alteration, or repair on the unsafe condition addressed by this AD; and, if the unsafe condition has not been eliminated, the request should include specific proposed actions to address it.
To prevent future damage to the galley power feeder cable as well as to detect and correct existing damage to the galley power feeder cable, which could result in electrical arcing, possibly leading to damage to adjacent structures and to fire in the airplane, accomplish the following:
(a) For McDonnell Douglas Model MD–90–30 airplanes as identified in McDonnell Douglas Alert Service Bulletin MD90–24A046, Revision 02, dated March 26, 2001: Within 90 days after the effective date of this AD, do a one-time general visual inspection of the galley power feeder cable located above the main cabin ceiling supports in the overwing area on the left side for damage caused by chafing—particularly near the ends of the ceiling supports—per the Accomplishment Instructions of McDonnell Douglas Alert Service Bulletin MD90–24A046, Revision 02, dated March 26, 2001.
For the purposes of this AD, a general visual inspection is defined as: “A visual examination of an interior or exterior area, installation, or assembly to detect obvious damage, failure, or irregularity. This level of inspection is made from within touching distance unless otherwise specified. A mirror may be necessary to enhance visual access to all exposed surfaces in the inspection area. This level of inspection is made under normally available lighting conditions such as daylight, hangar lighting, flashlight, or droplight and may require removal or opening of access panels or doors. Stands, ladders, or platforms may be required to gain proximity to the area being checked.”
(1) If any damage to the outer cable jacket or the primary insulation is found, prior to further flight, repair the scuffed jacket or insulation and modify the galley power feeder cable installation by installing sleeving over the wire assembly per the alert service bulletin.
(2) If any damage to the power feeder cable conductor is found, prior to further flight, repair the damaged cable by installing a splice at the damaged location, modify the galley power feeder cable installation by installing sleeving over the cable assembly, and do a functional test of the galley equipment per the alert service bulletin.
(3) If no damage is found, prior to further flight, modify the galley power feeder cable installation by installing sleeving over the cable assembly per the alert service bulletin.
Accomplishment of the applicable actions prior to the effective date of this AD per McDonnell Douglas Alert Service Bulletin MD90–24A046, dated July 31, 1997; or Revision 01, dated February 16, 1998; is acceptable for compliance with the requirements of paragraph (a) of this AD.
(b) For McDonnell Douglas Model MD–90–30 airplanes, as identified in McDonnell Douglas Alert Service Bulletin MD90–24A047, Revision 01, dated July 31, 2000: Within one year after the effective date of this AD, modify the installation of the galley power feeder cables by installing standoffs and re-route the galley power feeder cable, as shown in Figure 1 of McDonnell Douglas Alert Service Bulletin MD90–24A047, Revision 01, dated July 31, 2000, per the alert service bulletin.
Accomplishment of the applicable actions prior to the effective date of this AD per McDonnell Douglas Service Bulletin MD90–24–047, dated September 15, 1997, is acceptable for compliance with the requirements of paragraph (b) of this AD.
(c) An alternative method of compliance or adjustment of the compliance time that provides an acceptable level of safety may be used if approved by the Manager, Los Angeles Aircraft Certification Office (ACO), FAA. Operators shall submit their requests through an appropriate FAA Principal Maintenance Inspector, who may add comments and then send it to the Manager, Los Angeles ACO.
Information concerning the existence of approved alternative methods of compliance with this AD, if any, may be obtained from the Los Angeles ACO.
(d) Special flight permits may be issued in accordance with sections 21.197 and 21.199 of the Federal Aviation Regulations (14 CFR 21.197 and 21.199) to operate the airplane to a location where the requirements of this AD can be accomplished.
(e) The actions shall be done in accordance with McDonnell Douglas Alert Service Bulletin MD90–24A046, Revision 02, dated March 26, 2001; and McDonnell Douglas Alert Service Bulletin MD90–24A047, Revision 01, dated July 31, 2000; as applicable. This incorporation by reference was approved by the Director of the Federal Register in accordance with 5 U.S.C. 552(a) and 1 CFR part 51. Copies may be obtained from Boeing Commercial Aircraft Group, Long Beach Division, 3855 Lakewood Boulevard, Long Beach, California 90846, Attention: Data and Service Management, Dept. C1–L5A (D800–0024). Copies may be inspected at the FAA, Transport Airplane Directorate, 1601 Lind Avenue, SW., Renton, Washington; or at the FAA, Los Angeles Aircraft Certification Office, 3960 Paramount Boulevard, Lakewood, California; or at the Office of the Federal Register, 800 North Capitol Street, NW., suite 700, Washington, DC.
(f) This amendment becomes effective on July 31, 2002.
Federal Aviation Administration, DOT.
Final rule.
This amendment adopts a new airworthiness directive (AD), applicable to all Boeing Model 727 series airplanes, that requires a review of maintenance records or a one-time test to determine if elevator hinge support ribs on the trailing edge of the horizontal stabilizer are made from a certain material, and follow-on repetitive inspections for corrosion or cracking of the elevator hinge support ribs, if necessary. For airplanes with the affected ribs installed, this AD eventually requires replacement of all affected ribs with new, improved ribs.
Effective July 31, 2002.
The incorporation by reference of certain publications listed in the regulations is approved by the Director of the Federal Register as of July 31, 2002.
The service information referenced in this AD may be obtained from Boeing Commercial Airplane Group, P.O. Box 3707, Seattle, Washington 98124–2207. This information may be examined at the Federal Aviation Administration (FAA), Transport Airplane Directorate, Rules Docket, 1601 Lind Avenue, SW., Renton, Washington; or at the Office of the Federal Register, 800 North Capitol Street, NW., suite 700, Washington, DC.
A proposal to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) to include an airworthiness directive (AD) that is applicable to all Boeing Model 727 series airplanes was published in the
Interested persons have been afforded an opportunity to participate in the making of this amendment. Due consideration has been given to the comments received.
One commenter, an operator, notes how the proposed AD will affect its fleet but makes no request for any change to the proposed AD.
One commenter believes that the adoption of the proposed AD at this stage would be premature. The commenter states that it is not aware of any instance of in-service or operational problems related to stress corrosion cracking in the elevator hinge support ribs. The commenter acknowledges the inherent potential for stress corrosion cracking of 7079-T6 material, as well as the potential for airframe vibration if the hinge support ribs no longer provide the required stiffness for the elevator support. However, the commenter points to the fact that, in more than 30 years of service of Model 727 series airplanes, “no major irregularities” have been found on airplanes with the subject ribs installed. The commenter states that, if the FAA determines that rulemaking is indeed necessary at this time, the proposed AD should be revised to require only repetitive inspections, with no requirement for replacement of the subject ribs with improved ribs. The commenter goes on to suggest that, if the FAA decides to require replacement of the subject ribs, the compliance time for such replacement should be extended from 48 months to 60 months after the effective date of this AD. The commenter explains that a compliance time of 60 months would be more consistent with the manufacturer's ability to deliver the necessary replacement part, and would allow the majority of operators to accomplish the rib replacement during a regularly scheduled “D” check, which would reduce the cost impact of the proposed AD on affected operators.
The FAA partially concurs. We do not concur that repetitive inspections alone will provide an acceptable level of safety for the affected airplane fleet. Mandating the replacement of subject elevator hinge support ribs is based on our determination that, in this case, long-term continued operational safety will be better assured by design changes to remove the source of the problem, rather than repetitive inspections. Repetitive inspections alone may not provide the degree of safety assurance necessary for the transport airplane fleet. This, coupled with a better understanding of the human factors associated with numerous continual inspections, has led us to consider placing less emphasis on inspections and more emphasis on design improvements. The replacement of elevator hinge support ribs required by this AD is consistent with these conditions.
However, we do concur with the commenter's request to extend the compliance time for the rib replacement from 48 months to 60 months. We find that the justification provided by the commenter is reasonable. Further, we find that repetitive inspections at the intervals required by this AD, along with adequate maintenance, will provide an acceptable level of safety over the 60-month compliance period. We have revised paragraph (d) of this final rule accordingly.
Two commenters request that we extend the 180-day compliance time for the proposed inspection for corrosion or cracking of elevator hinge support ribs made from 7079-T6 material. Both commenters request extension of the compliance time to coincide with a regularly scheduled “C” check. One commenter states that a 180-day compliance time would be appropriate for airplanes on which the subject ribs have never been inspected, but requests a compliance time of 18 months or 4,000 flight hours (which would correspond to the industry standard for “C” checks) for airplanes on which the subject ribs have been inspected previously. This commenter concludes that previous zonal inspections, which many operators have been performing at three to six year intervals, have been adequate to ensure some degree of safety. The commenter bases its conclusion on the low incidence of cracked ribs with no flight control anomalies attributed to cracked ribs. The commenter also notes that the proposed AD would mandate inspections of the subject ribs significantly more frequently than specified by current maintenance programs. The second commenter also considers the proposed 180-day compliance time unduly restrictive considering the service history of the affected airplanes. The second commenter asserts that the proposed compliance time would add a significant cost burden for operators in the form of out-of-service costs and costs associated with gaining access and
We partially concur with the commenters' request. We do not concur that it is appropriate to extend the initial compliance time for the inspection for cracking or corrosion on all airplanes. In developing an appropriate compliance time for this AD, we considered not only the manufacturer's recommendation, as presented in the referenced service bulletin, but the degree of urgency associated with addressing the subject unsafe condition, as well as the nature of the unsafe condition. Given the potential hazards associated with stress corrosion cracking of multiple elevator hinge support ribs, we find that it is important for the subject ribs to be inspected in a timely manner, so that any cracks may be found and fixed. Therefore, for airplanes with multiple ribs made from 7079-T6 material, we find that the 180-day compliance time for the initial inspection is warranted, in that it represents an appropriate interval of time allowable for affected airplanes to continue to operate without compromising safety.
However, we find that the compliance time may be extended somewhat for the initial inspection for cracking or corrosion on airplanes with no more than one rib made of 7079-T6 material per side of the horizontal stabilizer. For these airplanes, the potential for cracking of multiple ribs is low. Thus, we have determined that the initial inspection for cracking or stress corrosion may be deferred until 18 months after the effective date of this AD without jeopardizing the continued safety of the airplane fleet. Accordingly, paragraph (b) has been revised and paragraphs (b)(1) and (b)(2) have been added in this final rule.
Two commenters request that we extend the interval for the repetitive inspections for corrosion or cracking of all elevator hinge support ribs made from 7079-T6 material from every 180 days to every “C” check (i.e., approximately every 18 months). One commenter states that a previous AD, AD 77–18–06 R1, amendment 39–3048, requires repetitive inspections every 3,200 flight hours or 18 months for parts made from 7079-T6 material on the center section of the front spar fitting of the horizontal stabilizer. The commenter also refers to AD 75–09–04 R1, amendment 39–2142, stating that it requires repetitive inspections every 3,000 flight hours of the center section of the rear spar fitting of the horizontal stabilizer (which is made from 7079-T6 material). The other commenter refers to the satisfactory service history of Model 767 series airplanes with hinge support ribs made from 7079-T6 material as justification for extending the proposed inspection interval to correspond to the “C” check interval of the majority of operators. That commenter states that the proposed 180-day repetitive interval would necessitate special maintenance visits and increase the cost impact on affected operators.
We partially concur. With regard to the ADs that the commenter refers to as justification for extending the repetitive interval of this AD, we note that the repetitive intervals to which the commenter refers are only applicable under certain conditions. In this AD, we find that the proposed repetitive interval of 180 days is important to ensure that any crack on an affected rib will be found and fixed in a timely manner. If not found and fixed in a timely manner, propagation of cracks on multiple ribs could decrease the stiffness of the elevator support, resulting in vibration of the airframe during flight and consequent damage to the elevator and horizontal stabilizer, which could result in loss of controllability of the airplane.
However, we find that the repetitive interval may be extended somewhat for airplanes with no more than one rib made of 7079-T6 per side of the horizontal stabilizer. As discussed previously, for these airplanes, the potential for cracking of multiple ribs is low. Thus, we have determined that the repetitive inspections for cracking or stress corrosion may be performed on these airplanes at 18-month intervals without jeopardizing the continued safety of the airplane fleet. Paragraphs (b), (b)(1), and (b)(2) of this final rule have been revised accordingly.
One commenter requests that we revise paragraph (c) of the proposed AD, which specifies that any discrepancy must be repaired before further flight according to a method approved by the Manager of the FAA's Seattle Aircraft Certification Office (ACO) or an authorized Boeing Designated Engineering Representative (DER). The commenter states that the current Boeing 727 Structural Repair Manual (SRM) contains appropriate repair data for certain cracks of the hinge support ribs, and requests that we clarify that applicable repairs per the SRM are acceptable for compliance with paragraph (c) of the proposed AD. The commenter also states that Boeing should provide additional repairs for small flange or web cracks that will be acceptable in the interim until subject ribs are replaced.
We partially concur with the commenter's request. The Accomplishment Instructions of Boeing Alert Service Bulletin 727–55A0091, including Appendix A, dated August 16, 2001, refer to Boeing 727 SRM Chapter 55, Subject 55–10–4, as an acceptable source of service information for repair of “some” cracks. We find that repairs included in that chapter of the SRM are acceptable for compliance with this AD. However, for necessary repairs not included in that section, the repair must be accomplished according to a method approved by the Manager, Seattle ACO, or an authorized DER. Paragraph (c) of this AD has been revised accordingly, and a new Note 3 has been added to this final rule (and subsequent notes reidentified accordingly) to specify that the service bulletin refers to Boeing 727 SRM Chapter 55, Subject 55–10–4, as an acceptable source of service information for certain repairs.
With regard to the commenter's concern about flange and web cracks, the manufacturer has not provided us with any procedures for repair of such cracks, so we cannot evaluate such repairs. If procedures for such repairs are submitted to us as provided by paragraph (f) of this AD, we will consider approving them as an alternative method of compliance for paragraph (c) of this AD. No further change to the final rule is necessary in this regard.
One commenter requests that we revise the proposed AD to make the repetitive inspection and replacement requirements applicable only to airplanes listed in Group 1 in the referenced service bulletin. The commenter notes that airplanes in Group 1, which were delivered with elevator hinge support ribs made from 7079–T6 material installed at all 14 elevator station locations, are at a significantly higher risk to have multiple cracked ribs and consequent damage than are airplanes in Groups 2 and 3, which have only one or two subject ribs. The commenter concludes that there is no airworthiness concern for airplanes in Groups 2 and 3; thus, there is no justification for including them in the proposed AD.
We do not concur. As explained in the preamble of the proposed AD, airplanes in Groups 2 and 3 may have had ribs replaced after delivery with ribs made from 7079–T6 material, so
For clarification, we have made minor revisions to the service information citations in paragraph (a) of this final rule. These revisions are strictly editorial; no substantive change has been made.
After careful review of the available data, including the comments noted above, the FAA has determined that air safety and the public interest require the adoption of the rule with the changes previously described. We have determined that these changes will neither increase the economic burden on any operator nor increase the scope of the AD.
There are approximately 1,383 Model 727 series airplanes of the affected design in the worldwide fleet. The FAA estimates that 915 airplanes of U.S. registry will be affected by this AD.
This AD offers two alternatives for compliance with the requirement for an initial inspection to determine whether elevator hinge support ribs made from 7079–T6 material are installed. Estimates of the cost of these actions are provided below.
The review of maintenance records, which is one alternative for compliance, will take approximately 1 work hour per airplane, at an average labor rate of $60 per work hour. Based on these figures, the cost impact of this review is estimated to be $60 per airplane.
In lieu of the review of maintenance records (i.e., if the review of maintenance records is not sufficient to make a determination), the inspection of the ribs to determine if they are made from 7079–T6 material will take approximately 1 work hour per airplane, at an average labor rate of $60 per work hour. Based on these figures, the cost impact of this inspection is estimated to be $60 per airplane.
The cost impact figures discussed above are based on assumptions that no operator has yet accomplished any of the requirements of this AD action, and that no operator would accomplish those actions in the future if this AD were not adopted. The cost impact figures discussed in AD rulemaking actions represent only the time necessary to perform the specific actions actually required by the AD. These figures typically do not include incidental costs, such as the time required to gain access and close up, planning time, or time necessitated by other administrative actions.
Should an operator be required to accomplish the repetitive detailed inspections, these inspections will take approximately 13 work hours per airplane, at an average labor rate of $60 per work hour. Based on these figures, the cost impact of this inspection, if required, will be $780 per airplane, per inspection cycle.
Should an operator be required to accomplish the replacement of the elevator hinge support ribs, it will take approximately 722 work hours per airplane for replacement of all ribs (on both the left- and right-hand sides of the airplane, excluding the time for gaining access and closing up), at an average labor rate of $60 per work hour. Required parts will cost approximately $70,000 per airplane. Based on these figures, the cost impact of the replacement, if required, will be $113,320 per airplane.
The regulations adopted herein will not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, it is determined that this final rule does not have federalism implications under Executive Order 13132.
For the reasons discussed above, I certify that this action (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and (3) will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. A final evaluation has been prepared for this action and it is contained in the Rules Docket. A copy of it may be obtained from the Rules Docket at the location provided under the caption
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
49 U.S.C. 106(g), 40113, 44701.
2. Section 39.13 is amended by adding the following new airworthiness directive:
This AD applies to each airplane identified in the preceding applicability provision, regardless of whether it has been modified, altered, or repaired in the area subject to the requirements of this AD. For airplanes that have been modified, altered, or repaired so that the performance of the requirements of this AD is affected, the owner/operator must request approval for an alternative method of compliance in accordance with paragraph (f) of this AD. The request should include an assessment of the effect of the modification, alteration, or repair on the unsafe condition addressed by this AD; and, if the unsafe condition has not been eliminated, the request should include specific proposed actions to address it.
To prevent cracking of the elevator hinge support ribs, which could lead to vibration of the airframe during flight and consequent damage to the elevators and horizontal stabilizer, potentially resulting in loss of controllability of the airplane, accomplish the following:
(a) Within 180 days after the effective date of this AD, review the airplane's maintenance records to determine whether any elevator hinge support rib on the trailing edge of the horizontal stabilizer is made from 7079–T6 material; OR, if the material cannot be conclusively determined from the maintenance records, do a one-time electrical conductivity test of the elevator hinge support ribs to determine whether any are made from 7079–T6 material; according to Part 6, Section 51–00–00, Figure 20, of Boeing Document D6–48875, Boeing 727 Non Destructive Test Manual, dated December 5,
(1) If no ribs are made from 7079–T6 material, no further action is required by this AD.
(2) If any ribs are made from 7079–T6 material, do paragraph (b) of this AD.
(b) At the applicable times specified in paragraph (b)(1) or (b)(2) of this AD: Perform a detailed inspection for corrosion or cracking of all elevator hinge support ribs made from 7079–T6 material, according to Boeing Alert Service Bulletin 727–55A0091, including Appendix A, dated August 16, 2001.
For the purposes of this AD, a detailed inspection is defined as: “An intensive visual examination of a specific structural area, system, installation, or assembly to detect damage, failure, or irregularity. Available lighting is normally supplemented with a direct source of good lighting at intensity deemed appropriate by the inspector. Inspection aids such as mirror, magnifying lenses, etc., may be used. Surface cleaning and elaborate access procedures may be required.”
(1) For airplanes with no more than one elevator hinge support rib made of 7079–T6 material on each side of the horizontal stabilizer: Do the initial inspection for cracking or stress corrosion within 18 months after the effective date of this AD, and repeat this inspection every 18 months, until paragraph (d) of this AD has been done.
(2) For airplanes with more than one elevator hinge support rib made of 7079–T6 material on either side of the horizontal stabilizer: Do the initial inspection for corrosion or cracking within 180 days after the effective date of this AD, and repeat this inspection every 180 days, until paragraph (d) of this AD has been done.
(c) If any corrosion or cracking is found during any inspection required by paragraph (b) of this AD: Before further flight, repair according to Boeing Alert Service Bulletin 727–55A0091, including Appendix A, dated August 16, 2001, as applicable; or according to a method approved by the Manager, Seattle Aircraft Certification Office (ACO), FAA; or according to data meeting the type certification basis of the airplane approved by a Boeing Company Designated Engineering Representative (DER) who has been authorized by the Manager, Seattle ACO, to make such findings. Where applicable repair procedures are not included in the section of the Boeing Structural Repair Manual referred to in the service bulletin, and the service bulletin specifies to write to Boeing for repair instructions, repair according to a method approved by the Manager, Seattle ACO, or according to data meeting the type certification basis of the airplane approved by a Boeing Company DER who has been authorized by the Manager, Seattle ACO, to make such findings. For a repair method to be approved as required by this paragraph, the approval letter must specifically reference this AD.
Boeing Alert Service Bulletin 727–55A0091, including Appendix A, dated August 16, 2001, refers to Boeing 727 Structural Repair Manual Chapter 55, Subject 55–10–4, as a source of service information for repair of certain cracks.
(d) For airplanes on which any ribs made from 7079–T6 material are found: Within 60 months after the effective date of this AD, replace all elevator hinge support ribs made from 7079–T6 material with new, improved ribs, according to a method approved by the Manager, Seattle ACO, or according to data meeting the type certification basis of the airplane approved by a Boeing Company DER who has been authorized by the Manager, Seattle ACO, to make such findings. For a repair method to be approved by the Manager, Seattle ACO, as required by this paragraph, the Manager's approval letter must specifically reference this AD. Such replacement terminates the repetitive inspections required by paragraph (b) of this AD.
(e) After the effective date of this AD, no one may install an elevator hinge support rib made from 7079–T6 material on any airplane.
(f) An alternative method of compliance or adjustment of the compliance time that provides an acceptable level of safety may be used if approved by the Manager, Seattle ACO. Operators shall submit their requests through an appropriate FAA Principal Maintenance Inspector, who may add comments and then send it to the Manager, Seattle ACO.
Information concerning the existence of approved alternative methods of compliance with this AD, if any, may be obtained from the Seattle ACO.
(g) Special flight permits may be issued in accordance with sections 21.197 and 21.199 of the Federal Aviation Regulations (14 CFR 21.197 and 21.199) to operate the airplane to a location where the requirements of this AD can be accomplished.
(h) Except as provided by paragraphs (c) and (d) of this AD, the actions shall be done in accordance with Part 6, Section 51–00–00, Figure 20, of Boeing Document D6–48875, Boeing 727 Non Destructive Test Manual, dated December 5, 1999; Table I, page 12 of Boeing Process Specification BAC 5946, Revision (AA), dated July 9, 2001; and Boeing Alert Service Bulletin 727–55A0091, including Appendix A, dated August 16, 2001; as applicable. Boeing Document D6–48875, Boeing 727 Non Destructive Test Manual, contains the following list of effective pages:
(i) This amendment becomes effective on July 31, 2002.
Federal Aviation Administration, DOT.
Final rule.
This amendment adopts a new airworthiness directive (AD), applicable to certain Bombardier Model DHC–8–100, –200, and –300 series airplanes, that requires revision of the applicable maintenance program manual, repetitive inspections for corrosion or cracking of the hook roller shafts of the flap carriage, and eventual replacement of the hook roller shafts with new or serviceable hook roller shafts. This replacement extends the interval for the repetitive inspections. This action is necessary to prevent cracking of the hook roller shafts of the flap carriage and consequent reduced structural integrity of the flap, which could result in jamming of the flap. This
Effective July 31, 2002.
The incorporation by reference of certain publications listed in the regulations is approved by the Director of the Federal Register as of July 31, 2002.
The service information referenced in this AD may be obtained from Bombardier, Inc., Bombardier Regional Aircraft Division, 123 Garratt Boulevard, Downsview, Ontario M3K 1Y5, Canada. This information may be examined at the Federal Aviation Administration (FAA), Transport Airplane Directorate, Rules Docket, 1601 Lind Avenue, SW., Renton, Washington; or at the FAA, New York Aircraft Certification Office, 10 Fifth Street, Third Floor, Valley Stream, New York; or at the Office of the Federal Register, 800 North Capitol Street, NW., suite 700, Washington, DC.
Dan Parrillo, Aerospace Engineer, Airframe and Propulsion Branch, ANE–172, FAA, New York Aircraft Certification Office, 10 Fifth Street, Third Floor, Valley Stream, New York 11581; telephone (516) 256–7505; fax (516) 568–2716.
A proposal to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) to include an airworthiness directive (AD) that is applicable to certain Bombardier Model DHC–8–100, –200, and –300 series airplanes was published in the
Interested persons have been afforded an opportunity to participate in the making of this amendment. No comments were submitted in response to the proposal or the FAA's determination of the cost to the public.
The FAA has revised paragraph (a) of the final rule to clarify that the maintenance manual revision must be accomplished according to the applicable temporary revision listed in paragraph (a)(1), (a)(2), or (a)(3) of the AD.
After careful review of the available data, the FAA has determined that air safety and the public interest require the adoption of the rule with the change described previously. The FAA has determined that this change will neither increase the economic burden on any operator nor increase the scope of the AD.
The FAA estimates that 183 airplanes of U.S. registry will be affected by this AD.
It will take approximately 4 work hours per airplane to accomplish the required inspection, at an average labor rate of $60 per work hour. Based on these figures, the cost impact of the required inspection on U.S. operators is estimated to be $43,920, or $240 per airplane, per inspection cycle.
It will take approximately 4 work hours per airplane to accomplish the required replacement, at an average labor rate of $60 per work hour. Required parts will cost approximately $460 per airplane. Based on these figures, the cost impact of the required replacement on U.S. operators is estimated to be $128,100, or $700 per airplane.
The cost impact figures discussed above are based on assumptions that no operator has yet accomplished any of the requirements of this AD action, and that no operator would accomplish those actions in the future if this AD were not adopted. The cost impact figures discussed in AD rulemaking actions represent only the time necessary to perform the specific actions actually required by the AD. These figures typically do not include incidental costs, such as the time required to gain access and close up, planning time, or time necessitated by other administrative actions.
The regulations adopted herein will not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, it is determined that this final rule does not have federalism implications under Executive Order 13132.
For the reasons discussed above, I certify that this action (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and (3) will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. A final evaluation has been prepared for this action and it is contained in the Rules Docket. A copy of it may be obtained from the Rules Docket at the location provided under the caption
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
49 U.S.C. 106(g), 40113, 44701.
This AD applies to each airplane identified in the preceding applicability provision, regardless of whether it has been modified, altered, or repaired in the area subject to the requirements of this AD. For airplanes that have been modified, altered, or repaired so that the performance of the requirements of this AD is affected, the owner/operator must request approval for an alternative method of compliance in accordance with paragraph (e) of this AD. The request should include an assessment of the effect of the modification, alteration, or repair on the unsafe condition addressed by this AD; and, if the unsafe condition has not been eliminated, the request should include specific proposed actions to address it.
To prevent cracking of the hook roller shafts of the flap carriage and consequent reduced structural integrity of the flap, which could result in jamming of the flap, accomplish the following:
(a) Within 30 days after the effective date of this AD, accomplish paragraph (a)(1), (a)(2), or (a)(3) of this AD according to the service information specified, as applicable.
(1) For Model DHC–8–100 series airplanes: Insert de Havilland Inc. Dash 8 Airworthiness Limitations List Temporary Revisions (TRs) AWL–75 and AWL–76, both dated July 14, 2000, into de Havilland Inc. Dash 8 Series 100 Maintenance Program Manual PSM 1–8–7.
(2) For Model DHC–8–200 series airplanes: Insert de Havilland Inc. Airworthiness Limitations List TR AWL 2–19, dated July 14, 2000, into de Havilland Inc. Dash 8 Series 200 Maintenance Program Manual PSM 1–82–7.
(3) For Model DHC–8–300 series airplanes: Insert de Havilland Inc. Airworthiness Limitations List TR AWL 3–83, dated July 14, 2000, into de Havilland Inc. Dash 8 Series 300 Maintenance Program Manual PSM 1–83–7.
(b) Do a detailed inspection for corrosion or cracking of the hook roller shafts of the flap carriage, at the times specified in paragraph (b)(1), (b)(2), or (b)(3) of this AD, as applicable; and according to the service information in paragraph (b)(1), (b)(2), or (b)(3) of this AD, as applicable.
For the purposes of this AD, a detailed inspection is defined as: “An intensive visual examination of a specific structural area, system, installation, or assembly to detect damage, failure, or irregularity. Available lighting is normally supplemented with a direct source of good lighting at intensity deemed appropriate by the inspector. Inspection aids such as mirror, magnifying lenses, etc., may be used. Surface cleaning and elaborate access procedures may be required.”
(1) For Model DHC–8–100 series airplanes: For Pre Mod 8Q101103 roller shafts having part number (P/N) 85750362–103 or 85750362–105, do the initial inspection at the compliance time specified in the “Threshold” column of the table in de Havilland Inc. Airworthiness Limitations List TRs AWL–75 and AWL–76, both dated July 14, 2000, or within 12 months after the effective date of this AD, whichever occurs later; according to de Havilland Inc. Dash 8 Series 100 Maintenance Program Manual PSM 1–8–7. Thereafter, repeat the inspection at the applicable interval specified in the “Initial Interval” column of the table in TR AWL–75 and AWL –76, until the airplane reaches the applicable threshold listed in the “Repeat Cut-In” column of the table in TR AWL–75 and AWL–76. Thereafter, repeat the inspections at the applicable interval listed in the “Repeat Interval” column of the table in TR AWL–75 and AWL –76, until paragraph (c) of this AD has been accomplished on all affected hook roller shafts. Where the TR specifies compliance intervals in “flights,” for the purposes of this AD, “flights” means “flight cycles.”
(2) For Model DHC–8–200 series airplanes: For Pre Mod 8Q101103 hook roller shafts having part number (P/N) 85750362–103 or 85750362–105, do the initial inspection at the compliance time specified in the “Threshold” column of the table in de Havilland Inc. Airworthiness Limitations List TR AWL 2–19, dated July 14, 2000, or within 12 months after the effective date of this AD, whichever occurs later; according to de Havilland Inc. Dash 8 Series 200 Maintenance Program Manual PSM 1–82–7. Thereafter, repeat the inspection at the applicable interval specified in the “Initial Interval” column of the table in TR AWL 2–19, until the airplane reaches the applicable threshold listed in the “Repeat Cut-In” column of the table in TR AWL 2–19. Thereafter, repeat the inspections at the applicable interval listed in the “Repeat Interval” column of the table in TR AWL 2–19, until paragraph (c) of this AD has been accomplished on all affected hook roller shafts. Where the TR specifies compliance intervals in “flights,” for the purposes of this AD, “flights” means “flight cycles.”
(3) For Model DHC–8–300 series airplanes: For Pre Mod 8Q101103 hook roller shafts having part number (P/N) 85750362–103 or 85750362–105, do the initial inspection at the compliance time specified in the “Threshold” column of the table in de Havilland Inc. Airworthiness Limitations List TR AWL 3–83, or within 12 months after the effective date of this AD, whichever occurs later; according to de Havilland Inc. Dash 8 Series 300 Maintenance Program Manual PSM 1–83–7, dated July 14, 2000. Thereafter, repeat the inspection at the applicable interval specified in the “Initial Interval” column of the table in TR AWL 3–83, until the airplane reaches the applicable threshold listed in the “Repeat Cut-In” column of the table in TR AWL 3–83. Thereafter, repeat the inspections at the applicable interval listed in the “Repeat Interval” column of the table in TR AWL 3–83 until paragraph (c) of this AD has been accomplished on all affected hook roller shafts. Where the TR specifies compliance intervals in “flights,” for the purposes of this AD, “flights” means “flight cycles.”
(c) At the applicable time specified in paragraph (c)(1) or (c)(2) of this AD, replace hook roller shafts having P/N 85750362–103 or 85750362–105 with new or serviceable hook roller shafts having P/N 85750362–107, according to Sections 57–50–44 and 57–50–53 of the de Havilland Inc. Dash 8 Aircraft Maintenance Manual, as applicable. Replacement of all hook roller shafts, P/N 85750362–103 or 85750362–105, with new hook roller shafts, P/N 85750362–107, ends the repetitive inspections at the intervals required by paragraph (b) of this AD.
(1) For hook roller shafts on which any corrosion or crack is found during any inspection per paragraph (b) of this AD: Do the replacement before further flight.
(2) For uncracked or uncorroded hook roller shafts: Do the replacement within 20,000 flight cycles or 5 years after the effective date of this AD, whichever is first.
(d) Following the replacement of hook roller shafts according to paragraph (c) of this AD, do the Structural Inspection Program for the hook roller shafts of the flap carriage, as specified in paragraph (d)(1), (d)(2), or (d)(3) of this AD, as applicable.
(1) For Model DHC–8–100 series airplanes: Using the criteria for Mod 8Q101103 hook roller shafts having P/N 85750362–107, do the initial inspection at the compliance time specified in the “Threshold” column of the table in de Havilland Inc. Airworthiness Limitations List TR AWL–75 and AWL “76, both dated July 14, 2000, according to de Havilland Inc. Dash 8 Series 100 Maintenance Program Manual PSM 1–8–7. Thereafter, repeat the inspection at the applicable interval specified in the “Initial Interval” column of the table in TRs AWL–75 and AWL–76, until the airplane reaches the applicable threshold listed in the “Repeat Cut-In” column of the table in TRs AWL–75 and AWL–76. Thereafter, repeat the inspections at the applicable interval listed in the “Repeat Interval” column of the table in TRs AWL–75 and AWL–76. Where the TR specifies compliance intervals in “flights,” for the purposes of this AD, “flights” means “flight cycles.”
(2) For Model DHC–8–200 series airplanes: Using the criteria for Mod 8Q101103 hook roller shafts having P/N 85750362–107, do the initial inspection at the compliance time specified in the “Threshold” column of the table in de Havilland Inc. Airworthiness Limitations List TR AWL 2–19, dated July 14, 2000, according to de Havilland Inc. Dash 8 Series 200 Maintenance Program Manual PSM 1–82–7. Thereafter, repeat the inspection at the applicable interval specified in the “Initial Interval” column of the table in TR AWL 2–19, until the airplane reaches the applicable threshold listed in the “Repeat Cut-In” column of the table in TR AWL 2–19. Thereafter, repeat the inspections at the applicable interval listed in the “Repeat Interval” column of the table in TR AWL 2–19. Where the TR specifies compliance intervals in “flights,” for the purposes of this AD, “flights” means “flight cycles.”
(3) For Model DHC–8–300 series airplanes: Using the criteria for Mod 8Q101103 hook roller shafts having P/N 85750362–107, do the initial inspection at the compliance time specified in the “Threshold” column of the table in de Havilland Inc. Airworthiness Limitations List TR AWL 3–83, dated July 14, 2000, according to de Havilland Inc. Dash 8 Series 300 Maintenance Program Manual PSM 1–83–7. Thereafter, repeat the inspection at the applicable interval specified in the “Initial Interval” column of the table in TR AWL 3–83, until the airplane reaches the applicable threshold listed in the “Repeat Cut-In” column of the table in TR AWL 3–83. Thereafter, repeat the inspections at the applicable interval listed in the “Repeat Interval” column of the table in TR AWL 3–83. Where the TR specifies compliance intervals in “flights,” for the purposes of this AD, “flights” means “flight cycles.”
(e) An alternative method of compliance or adjustment of the compliance time that provides an acceptable level of safety may be used if approved by the Manager, New York Aircraft Certification Office (ACO), FAA. Operators shall submit their requests through an appropriate FAA Principal Maintenance Inspector, who may add comments and then send it to the Manager, New York ACO.
Information concerning the existence of approved alternative methods of
(f) Special flight permits may be issued in accordance with sections 21.197 and 21.199 of the Federal Aviation Regulations (14 CFR 21.197 and 21.199) to operate the airplane to a location where the requirements of this AD can be accomplished.
(g) The maintenance program manual revision shall be done in accordance with de Havilland Inc. Dash 8 Airworthiness Limitations List Temporary Revision AWL–75, dated July 14, 2000; de Havilland Inc. Dash 8 Airworthiness Limitations List Temporary Revision AWL–76, dated July 14, 2000; de Havilland Inc. Airworthiness Limitations List Temporary Revision AWL 2–19, dated July 14, 2000; and de Havilland Inc. Airworthiness Limitations List Temporary Revision AWL 3–83, dated July 14, 2000; as applicable. This incorporation by reference was approved by the Director of the Federal Register in accordance with 5 U.S.C. 552(a) and 1 CFR part 51. Copies may be obtained from Bombardier, Inc., Bombardier Regional Aircraft Division, 123 Garratt Boulevard, Downsview, Ontario M3K 1Y5, Canada. Copies may be inspected at the FAA, Transport Airplane Directorate, 1601 Lind Avenue, SW., Renton, Washington; or at the FAA, New York Aircraft Certification Office, 10 Fifth Street, Third Floor, Valley Stream, New York; or at the Office of the Federal Register, 800 North Capitol Street, NW., suite 700, Washington, DC.
The subject of this AD is addressed in Canadian airworthiness directive CF–1999–10R2, dated September 12, 2000.
(h) This amendment becomes effective on July 31, 2002.
Food and Drug Administration, HHS.
Final rule.
The Food and Drug Administration (FDA) is revoking the regulation establishing conditions for marketing digoxin products for oral use. This regulation is no longer necessary because the products, which are new drugs, can be regulated under the approval process for new drug applications (NDAs) and abbreviated new drug applications (ANDAs) as set forth in the Federal Food, Drug, and Cosmetic Act (the act).
This rule is effective July 26, 2002. FDA does not plan to take regulatory action against currently marketed unapproved digoxin elixir products before June 28, 2004. Any unapproved digoxin elixir introduced after June 26, 2002, will be subject to regulatory action on July 26, 2002. Any unapproved digoxin tablet will be subject to regulatory action on July 26, 2002.
Mary E. Catchings, Center for Drug Evaluation and Research (HFD–7), Food and Drug Administration, 5600 Fishers Lane, Rockville, MD 20857, 301–594–2041.
In the
In the preamble to the proposed rule, FDA described actions that have occurred since § 310.500 was published that render the regulation unnecessary. The agency discussed the 1997 approval of NDA 20–405 for Lanoxin (digoxin) Tablets and described the indications for the tablets, which differ from the indications for oral digoxin drug products set forth in § 310.500. The agency explained that because of the approval of NDA 20–405, digoxin tablets are now eligible for ANDAs under section 505 of the act (21 U.S.C. 355).
The agency also noted that the dissolution requirements specified in § 310.500 are no longer used as standards in the certification program and are therefore obsolete. The agency concluded that regulation of these products under batch certification was no longer warranted.
The proposed rule referenced a companion notice published elsewhere in the
Interested persons were given until February 22, 2001, to submit comments on the proposal. FDA received comments from four manufacturers of drug products subject to the proposal.
(Comment 1) Three of the four submitted comments agreed that the agency should revoke § 310.500. One comment identified several public health reasons to revoke § 310.500. Those reasons are described in section II of this document and incorporated into the agency's response to the one comment that opposed revocation of § 310.500.
(Comment 2) One comment opposed the agency's proposed rule to revoke § 310.500, contending that the batch certification procedure is sufficient for FDA to regulate digoxin tablets and that the proposed rule is inadequate because FDA failed to identify a public health reason or change of facts or circumstances to justify revoking its regulation of digoxin tablets under batch certification.
FDA disagrees with this comment. The integrity of the batch certification process, the principal concern of the comment, is not the relevant issue. The relevant issue is whether the certification procedure is still warranted in light of new information or changing circumstances. FDA concludes it is not warranted and, as explained in section II of this document, has determined that revocation of § 310.500 is rationally related to FDA's statutory obligation to ensure that marketed oral digoxin drug products are safe, effective, and properly labeled as reflected by current scientific knowledge and information.
In its November 2000 proposed rule and a companion notice published in the same issue of the
As noted in the proposed rule and companion notice, along with other prior notices referenced in the proposed rule, in 1974 FDA established the conditions for marketing oral digoxin drug products in § 310.500 because of safety concerns with digoxin products on the market. Studies had shown clinically significant differences in bioavailability of certain oral digoxin products. This variability was a major concern because of the drug's narrow therapeutic index and the potential risk presented to patients using digoxin products of varying bioavailability. Therefore, FDA established the regulations to provide a systematic regulatory approach to ensure uniformity of marketed oral digoxin products.
The conditions for marketing included, among other things, requirements for submission of ANDAs, a batch certification program for digoxin tablets based on dissolution testing, and labeling requirements for all oral digoxin drug products. The requirement for ANDAs was later stayed pending resolution of the agency's ANDA policy. Absent submission of ANDAs, the batch certification program was the only preclearance requirement for digoxin tablets. The batch certification program was not intended to be a permanent solution to the problem of digoxin variability, but a stopgap measure to bring the potential for a serious health problem under control.
In that 1974 regulation, the agency also announced its determination that digoxin products for oral use are new drugs within the meaning of section 201(p) of the act (21 U.S.C. 321(p)). Because of the need for an optimal regulatory program to ensure the uniformity of oral digoxin drug products, FDA has, over the years, considered various approaches to bring digoxin into the new drug approval system.
The approval of NDA 20-405 for Lanoxin Tablets represented the first step in regulating all oral digoxin products under the requirements of section 505 of the act and the corresponding regulations. Approval of that NDA was also important because it provided data to help establish in vivo bioavailability and bioequivalence standards for oral digoxin drug products.
The approval of NDA 20–405 and the new information that emerged from the agency's review of the NDA provide a rational basis for the agency's actions to revoke § 310.500. Because the agency has approved an NDA for digoxin tablets, oral digoxin drug products are no longer covered by the exemptions set forth in Compliance Policy Guide (CPG) 7132c.02. That CPG provides priorities for regulating marketed new drugs without approved NDAs or ANDAs, such as oral digoxin products regulated under § 310.500.
As noted in one comment, FDA's decision to revoke § 310.500 is also supported by safety concerns related to the differences in labeling of the Lanoxin drug product and the labeling required under § 310.500. FDA approved NDA 20–405 for treatment of mild to moderate heart failure and for atrial fibrillation. The labeling of § 310.500 provides for use of digoxin in congestive heart failure (all degrees), atrial fibrillation, atrial flutter, paroxysmal atrial tachycardia, and cardiogenic shock.
The labeled indications for new drugs, such as oral digoxin drug products, must be supported by substantial evidence derived from adequate and well-controlled investigations, including clinical investigations. (See section 505(d) of the act (21 U.S.C. 355(d) and §§ 314.126, 201.56, and 201.57 (21 CFR 314.126, 201.56, and 201.57).) Labeling indications that are not supported by adequate and well-controlled studies are false and misleading, in violation of section 502(a) of the act (21 U.S.C. 352(a)).
Except for the data to support the two indications approved in NDA 20-405, the agency is not aware of any adequate and well-controlled studies to support the indications for use in § 310.500. Thus, the labeling of oral digoxin as set forth in § 310.500 is outdated and does not reflect current scientific and medical information about oral digoxin. Moreover, marketing of oral digoxin drug products with labeling described in § 310.500 could present a risk to patients because substantial scientific evidence to establish the safety and effectiveness of all of the indications in that labeling has not been established.
In addition, the criteria in § 310.500 are not current because the dissolution requirements specified in that regulation are no longer used as standards in the certification program. The dissolution requirements in § 310.500 differ from those in the current official U.S.P. monograph for oral digoxin tablets that FDA considers scientifically appropriate. Therefore, the dissolution requirements specified in § 310.500 for digoxin tablets are obsolete.
Furthermore, as described in a comment, § 310.500 lacks the uniform standards of the new drug approval system that ensure predictable bioavailability for oral digoxin products. Digoxin is a potent drug with a narrow therapeutic index. Slight variations in bioavailability can result in toxicity or loss of effect. Formulation and manufacturing controls are critical to the safe and effective use of oral digoxin drug products. Review of oral digoxin through the new drug approval process is necessary to provide adequate evidence of safety and substantial evidence of effectiveness, as well as adequate information about formulation and manufacturing procedures.
In addition to approval requirements under the new drug approval system, all oral digoxin products must be subject to the same postmarketing requirements so that changes that may affect the safety or effectiveness of the products can be monitored. Sponsors of products not approved through the new drug approval process, such as oral digoxin products under § 310.500, may reformulate their products or make manufacturing changes without seeking FDA approval. Such changes may affect bioavailability and hence may affect the safety or effectiveness of the products.
Additionally, although manufacturers of such unapproved products are required under 21 CFR 310.305 to report adverse events that are serious and unexpected, they are not required to report all adverse events associated with drug use. In contrast, manufacturers of approved new drug products are required to report all adverse events under 21 CFR 314.80. Consequently, adverse drug events that may reflect problems with the safety or effectiveness of oral digoxin products may not be reported.
Moreover, allowing oral digoxin products to be marketed under § 310.500 and the new drug approval process creates confusion in the marketplace regarding the substitutability or interchangeability of the drug products. Products marketed under § 310.500 and those approved under the new drug approval system may have differences in bioavailability. Furthermore, marketed oral digoxin products cannot be considered to be therapeutically equivalent, and therefore substitutable, unless equivalence is demonstrated through appropriate bioequivalence studies. Regulating all oral digoxin drug products under the same approval
As discussed in section I of this document and in the November 24, 2000, proposed rule and its companion notice published in the same issue of the
As proposed, the final rule would become effective 30 days after its date of publication in the
(Comment 3) Three comments stated that additional time is needed to prepare, submit, and obtain approval of an NDA.
Two comments from manufacturers of digoxin elixir requested a 2-year compliance period. One comment, characterizing digoxin elixir as medically necessary, noted that there are only two manufacturers of digoxin elixir drug products and expressed concern that a shortage of digoxin elixir drug products may occur if such products were removed from the market 30 days after publication of the final rule in the
Digoxin elixir is a medically necessary dosage form. It is used primarily in the pediatric population for the treatment of atrial fibrillation and congestive heart failure, both serious and potentially life-threatening diseases/conditions. Available alternative therapies are not approved for treating atrial fibrillation and congestive heart failure in the pediatric population. Such therapies are limited in their use because of toxicities, lack of safety and efficacy data in the pediatric population, and/or lack of a pediatric formulation allowing for consistent administration to children. There should not be a disruption in the marketplace for patients who need digoxin elixir. In order to protect the public health, FDA plans to exercise its enforcement discretion and not take regulatory action against currently marketed unapproved digoxin elixir products before June 28, 2004. This should allow sufficient time for a manufacturer to conduct the required tests, evaluate the data, and prepare and submit a new drug application to FDA. After that date, any digoxin elixir drug product on the market without an approved NDA or ANDA will be subject to regulatory action.
A manufacturer of digoxin tablets contends that FDA must extend the effective date of the final rule for at least 2 years to allow current producers and marketers of the drug products subject to the certification program to prepare, submit, and obtain an approved new drug application.
a.
The proposed rule itself provides reasonable notice of the agency's intent. The manufacturer has had more than a year in which to continue marketing under § 310.500 and, at the same time, pursue approval of an ANDA.
Moreover, a reasonably observant member of the drug industry would have known for a number of years that FDA intended to revoke § 310.500 and that applications approved through the new drug approval process would be required. For example, articles in the trade press have announced the agency's intention to require approval of oral digoxin through the new drug approval process. (See e.g., F–D–C Reports, July 6, 1992 at 7.) NDA 20–405 for Lanoxin (digoxin) Tablets was approved in September 1997. The approval was published in FDA's “Approved Drug Products with Therapeutic Equivalence Evaluations,” and also was reported in the trade press. (See e.g.,
b.
FDA disagrees that this final rule effects a taking in violation of the fifth amendment of the United States Constitution. The Supreme Court has developed three factors to consider in assessing whether a regulatory taking has occurred: (1) The character of the governmental action, (2) its economic impact, and (3) its interference with reasonable investment-backed expectations. (See
The force of any one of these factors may be “so overwhelming * * * that it disposes of the taking question” (
i.
In this case the governmental action is associated with a regulatory program designed to protect the health and safety of the public. Revocation of § 310.500 is intended to ensure that digoxin drug products on the market meet the current safety and efficacy product approval standards and are regulated in the same manner as other drug products under the act. As such, it does not constitute governmental action that would be considered a taking.
ii.
In assessing whether a regulation effects a taking, the Supreme Court has considered whether the regulation denies an owner the “economically viable” use of its property. See, e.g.,
By revoking the regulation, the agency is not taking away the ability of manufacturers to market digoxin drug products. The one manufacturer that might be affected does not complain in its comments that it would be unable to produce digoxin, but that it would face “severe difficulty re-entering the market and re-establishing its position after an absence which could span a year or more while waiting for FDA to approve an NDA or ANDA.” The manufacturer may submit an NDA or ANDA and then market its digoxin drug product after approval. It is possible that this could be done with little or no interruption in marketing. Therefore, the manufacturer has “remaining uses” of its property and does not suffer loss of “economically viable use” of property. (
iii.
The manufacturer is a regulated body and, as such, has been aware from the time it began manufacturing digoxin that the regulatory scheme could be modified. As described in section II.B.2.a of this document, the manufacturer has had notice for many years that the regulatory scheme in § 310.500 would be changed. As with the other factors, analysis of this factor establishes that revoking § 310.500 is not a taking under the fifth amendment.
When examined in light of these three factors, FDA's revocation of § 310.500 clearly does not effect a compensable taking under the fifth amendment of the Constitution.
c.
d.
The agency's handling of levothyroxine sodium does not provide a necessary precedent for setting an effective date for approval of digoxin tablet drug products. The facts involving digoxin tablets and levothyroxine sodium differ in at least two significant ways. First, the
To summarize, the comment has set forth no sufficient reason to justify an extension. Industry has been on notice for a number of years that § 310.500 would be revoked and that applications approved through the new drug
In order to protect the public health, FDA plans to exercise its enforcement discretion and not take regulatory action against currently marketed unapproved digoxin elixir products before June 28, 2004. Any unapproved digoxin elixir introduced after June 26, 2002, will be subject to regulatory action when this rule becomes effective on July 26, 2002.
Any unapproved digoxin tablet will be subject to regulatory action when this rule becomes effective on July 26, 2002.
FDA has examined the impacts of the final rule under Executive Order 12866 and the Regulatory Flexibility Act (5 U.S.C. 601–612), and the Unfunded Mandates Reform Act of 1995 (Public Law 104–4). Executive Order 12866 directs agencies to assess all costs and benefits of available regulatory alternatives and, when regulation is necessary, to select regulatory approaches that maximize the benefits (including potential economic, environmental, public health and safety, and other advantages; distributive impacts; and equity). Section 202(a) of the Unfunded Mandates Reform Act of 1995 requires that agencies prepare a written statement of anticipated costs and benefits before proposing any rule that may result in an expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100 million in any one year (adjusted annually for inflation). Under the Regulatory Flexibility Act, unless an agency certifies that a rule will not have a significant economic impact on a substantial number of small entities, the agency must analyze regulatory options that would minimize any significant impact of a rule on small entities.
The agency has reviewed this final rule and determined that it is consistent with the regulatory philosophy and principles identified in the Executive order and these two statutes. The Unfunded Mandates Reform Act of 1995 does not require FDA to prepare a statement of costs and benefits for the final rule because the final rule is not expected to result in any 1-year expenditure that would exceed $100 million adjusted for inflation. The current inflation-adjusted statutory threshold is $110 million. No further analysis is required under the Regulatory Flexibility Act because the agency has determined that this final rule will not have a significant effect on a substantial number of small entities.
As mentioned in the proposed rule, several studies have indicated a significant variation in the bioavailability of digoxin products for oral use. FDA published the January 1974 regulation that established conditions for marketing such products, including a mandatory batch certification program for digoxin tablets. In the proposed rule, FDA described actions that have occurred since that regulation was published that render the January 1974 regulation unnecessary. Therefore, under this final rule, manufacturers of digoxin products will be required to obtain an approved marketing application to enter or remain on the market.
In the proposed rule, FDA noted that one of the manufacturers of digoxin tablets had not already obtained an NDA or ANDA and would need to obtain an ANDA to remain on the market. In addition, the two manufacturers of digoxin elixir would need to obtain approved applications. In the proposed rule, the agency calculated a cost of submitting either an ANDA or 505(b)(2) application, based on an estimate of 480 hours to complete the necessary paperwork.
One comment disagreed with the estimate of 480 hours, contending it to be a gross underestimate of the actual time required. The comment did not provide an alternate estimate. It should be noted that the estimate in the proposed rule considered that the three manufacturers in question would be submitting an application to market a dosage form they were already producing. Nevertheless, the agency acknowledges that the 480-hour figure may underestimate the actual time required. Accordingly, for this final rule, the agency estimates the time to complete an ANDA or 505(b)(2) application to be between 480 and 720 hours.
Using a 2001 labor rate of $49 per hour
As stated in the proposed rule, FDA recognizes there will be future submission costs for new manufacturers of digoxin for oral use, and estimates two manufacturers will enter the market per decade. Some additional annual costs may also be incurred over the life of the application. While there may be some cost savings from the elimination of the batch certification requirement, the savings will be negligible.
According to the Small Business Administration, manufacturers of pharmaceutical preparations with 750 or fewer employees are considered small entities. Applying this definition, only one of the four current manufacturers that will incur submission costs is a small entity. In addition, these costs are likely to represent less than 1 percent of gross revenue. Therefore, the agency certifies that this action will not have a significant economic effect on a substantial number of small entities.
The agency has determined under 21 CFR 25.30(h) 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 final rule does not require information collection subject to review by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (Public Law 104–13). The information collection consists of the submission of NDAs or ANDAs for digoxin products for oral use. The information collection requirements for the submission of NDAs and ANDAs are contained in 21 CFR part 314 and have been approved under OMB control number 0910–0001, which expires on March 31, 2005.
Administrative practice and procedure, Drugs, Labeling, Medical devices, Reporting and recordkeeping requirements.
21 U.S.C. 321, 331, 351, 352, 353, 355, 360b–360f, 360j, 361(a), 371, 374, 375, 379e; 42 U.S.C. 216, 241, 242(a), 262, 263b–263n.
2. Section 310.500
Food and Drug Administration, HHS.
Final rule.
The Food and Drug Administration (FDA) is amending the animal drug regulations to reflect a change of sponsor's name from MoorMan's, Inc., to ADM Alliance Nutrition, Inc.
This rule is effective June 26, 2002.
Lonnie W. Luther, Center for Veterinary Medicine (HFV–101), Food and Drug Administration, 7500 Standish Pl., Rockville, MD 20855, 301–827–0209, e-mail: lluther@cvm.fda.gov.
MoorMan's, Inc., 1000 North 30th St., Quincy, IL 62305–3115, has informed FDA of a change of sponsor's name to ADM Alliance Nutrition, Inc. Accordingly, the agency is amending the regulations in 21 CFR 510.600(c) to reflect the change of sponsor's name.
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.
Administrative practice and procedure, Animal drugs, Labeling, Reporting and recordkeeping requirements.
21 U.S.C. 321, 331, 351, 352, 353, 360b, 371, 379e.
2. Section 510.600 is amended in the table in paragraph (c)(1) by removing the entry for “MoorMan's, Inc.” and by alphabetically adding an entry for “ADM Alliance Nutrition, Inc.”; and in the table in paragraph (c)(2) by revising the entry for “021930” to read as follows.
(c) * * *
(1) * * *
(2) * * *
Coast Guard, DOT.
Temporary final rule.
The Coast Guard is establishing a temporary final rule governing the operation of the Route 7 (Rutgers Street) Bridge, at mile 8.9, across the Passaic River at Belleville, New Jersey. This rule allows the bridge to remain in the closed position from June 15, 2002 through September 3, 2002. This action is necessary to facilitate structural work at the bridge.
This temporary final rule is effective from June 15, 2002 through September 3, 2002.
Material received from the public, as well as documents indicated in this preamble as being available in the docket, are part of docket (CGD01–02–060) and are available for inspection or copying at the First Coast Guard District, Bridge Branch Office, 408 Atlantic Avenue, Boston, Massachusetts, 02110, 6:30 a.m. to 3
Mr. Joe Arca, Project Officer, First Coast Guard District, (212) 668–7165.
The Coast Guard has determined that good cause exists under the Administrative Procedure Act (5 U.S.C. 553) for not publishing a NPRM with comment and for making this rule effective in less than thirty days after publication in the
The Route 7 (Rutgers Street) Bridge, at mile 8.9, across the Passaic River, has a vertical clearance of 8 feet at mean high water, and 13 feet at mean low water in the closed position. The existing drawbridge operating regulations are listed at 33 CFR 117.739(k) require the bridge to open on signal if at least four-hours notice is given.
The Route 7 Bridge has been replaced with a new Route 7 Bridge located at the same alignment on the waterway and with the same vertical clearance as the old structure. The final phase of bridge construction involves installation of the roadway deck. During this installation the bridge will not be able to open for vessel traffic. Presently there is only one vessel operator upstream from this bridge and that vessel can pass under the bridge without a bridge opening.
The bridge owner, New Jersey Department of Transportation, requested a temporary regulation to facilitate final structural work at the bridge. The Coast Guard believes this rule is reasonable because no vessel traffic will be precluded from transiting this bridge as a result of this bridge closure.
This rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866 and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order. It is not “significant” under the regulatory policies and procedures of the Department of Transportation (DOT) (44 FR 11040; February 26, 1979). This conclusion is based on the fact that no known vessel traffic will be prevented from transiting the bridge as a result of this bridge closure.
Under the Regulatory Flexibility Act (5 U.S.C. 601–612) we considered whether this rule would have a significant economic impact on a substantial number of small entities. “Small entities” comprises small businesses, not-for profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations less than 50,000.
The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities. This conclusion is based on the fact that no known vessels will be prevented from transiting this bridge as a result of this bridge closure.
Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104–121), we offered to assist small entities in understanding the rule so that they could better evaluate its effects on them and participate in the rulemaking process. Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1–888–REG–FAIR (1–888–734–3247).
This rule calls for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501–3520).
We have analyzed this rule under Executive Order 13132 and have determined that this rule does not have implications for federalism under that Order.
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531–1538) governs the issuance of Federal regulations that require unfunded mandates. An unfunded mandate is a regulation that requires a State, local, or tribal government or the private sector to incur direct costs without the Federal Government's having first provided the funds to pay those unfunded mandate costs. This rule will not impose an unfunded mandate.
This rule will not effect a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.
This rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.
We have analyzed this rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and does not concern an environmental risk to health or risk to safety that may disproportionately affect children.
The Coast Guard considered the environmental impact of this rule and concluded that under figure 2–1, paragraph (32)(e) of Commandant Instruction M16475.1C, this rule is categorically excluded from further environmental documentation because promulgation of changes to drawbridge regulations have been found to not have a significant effect on the environment. A written “Categorical Exclusion Determination” is not required for the temporary final rule.
This final rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.
We have analyzed this rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a “significant
Bridges.
33 U.S.C. 499; 49 CFR 1.46; 33 CFR 1.05–1(g); section 117.255 also issued under the authority of Pub. L. 102–587, 106 Stat. 5039.
(q) The draw of the Route 7 (Rutgers Street) Bridge, mile 8.9, need not open for the passage of vessel traffic from June 15, 2002 through September 3, 2002.
Environmental Protection Agency (EPA).
Direct final rule.
EPA is taking direct final action to approve revisions to the San Joaquin Valley Unified Air Pollution Control District (SJVUAPCD) portion of the California State Implementation Plan (SIP). These revisions concern volatile organic compound (VOC) emissions from motor vehicle and mobile equipment, can and coil, and wood products coating operations, as well as, VOC emissions from graphic arts and polyester resin operations. We are approving local rules that regulate these emission sources under the Clean Air Act as amended in 1990 (CAA or the Act).
This rule is effective on August 26, 2002, without further notice, unless EPA receives adverse comments by July 26, 2002. If we receive such comment, we will publish a timely withdrawal in the
Mail comments to Andy Steckel, Rulemaking Office Chief (AIR–4), U.S. Environmental Protection Agency, Region IX, 75 Hawthorne Street, San Francisco, CA 94105–3901.
You can inspect copies of the submitted SIP revisions and EPA's technical support documents (TSDs) at our Region IX office during normal business hours. You may also see copies of the submitted SIP revisions at the following locations:
Jerald S. Wamsley, Rulemaking Office (AIR–4), U.S. Environmental Protection Agency, Region IX, (415) 947–4111.
Throughout this document, “we,” “us” and “our” refer to EPA.
Table 1 lists the rules we are approving with the dates that they were adopted by the SJVUAPCD and submitted by the California Air Resources Board (CARB).
On March 15, 2002, these rule submittals were found to meet the completeness criteria in 40 CFR part 51 Appendix V, which must be met before formal EPA review.
We approved earlier versions of the above listed rules into the SIP on the following dates: Rule 4602, November 13, 1998; Rule 4604, November 18, 1994; Rule 4606, March 22, 2000; Rule 4607, November 13, 1998; and, Rule 4684, June 13, 1995. Between these SIP incorporations and today, CARB made no intervening submittals of these rules.
The majority of changes to these rules result from adding organic solvent use, disposal, and storage requirements. The changes related to these additions are
Rule 4602 included the following significant changes to its 1998 SIP approved version.
Rule 4604 included the following significant changes to its 1994 SIP-approved version.
SJVUAPCD's December 20, 2001 amendments to Rule 4606 included the following significant changes to its 2000 SIP approved version.
SJVUAPCD's December 20, 2001 amendments to Rule 4607 included the following significant changes to its 1998 SIP approved version.
SJVUAPCD's December 20, 2001 amendments to Rule 4684 included the following significant changes to its 1995 SIP approved version.
The TSD for a given rule has more information about these rule revisions.
Generally, SIP rules must be enforceable (
Guidance and policy documents that we used to help evaluate specific enforceability and RACT requirements consistently include the following:
“Guideline Series, Control of Volatile Organic Compound Emissions from Offset Lithographic Printing,” Draft. USEPA, OAQPS, September 1993; and “Alternative Control Techniques Document: Offset Lithographic
We believe these rules are consistent with the relevant policy and guidance regarding enforceability, RACT, and SIP relaxations. The TSD has more information on our evaluation.
For Rules 4602, 4606, and 4607, the respective TSD describes additional rule revisions that do not affect EPA's current action but are recommended for the next time the local agency modifies the rules.
As authorized in section 110(k)(3) of the Act, EPA is fully approving the submitted rules because we believe they fulfill all relevant requirements. We do not think anyone will object to this approval, so we are finalizing it without proposing it in advance. However, in the Proposed Rules section of this
Please note that if EPA receives any adverse comment on an amendment, paragraph, or section of this rule and if that provision may be severed from the remainder of the rule, EPA may adopt as final those provisions of the rule that are not the subject of an adverse comment.
VOCs help produce ground-level ozone and smog, which harm human health and the environment. Section 110(a) of the CAA requires states to submit regulations that control VOC emissions. Table 2 lists some of the national milestones leading to the submittal of these local agency VOC rules.
Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). This action merely approves state law as meeting federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
This rule also does not have tribal implications because it will not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified by Executive Order 13175 (65 FR 67249, November 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 merely approves a state rule implementing a Federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. This rule also is not subject to Executive Order 13045, “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), because it is not economically significant.
In reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. In this context, in the absence of a prior existing requirement for the State to use voluntary consensus standards (VCS), EPA has no authority to disapprove a SIP submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a SIP submission, to use VCS in place of a SIP submission that otherwise satisfies the provisions of the Clean Air Act. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
The Congressional Review Act, 5 U.S.C. section 801
Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by August 26, 2002. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (
Environmental protection, Air pollution control, Hydrocarbons, Incorporation by reference, Intergovernmental relations, Ozone, Reporting and recordkeeping requirements, Volatile organic compounds.
42 U.S.C. 7401
(c) * * *
(294) * * *
(i) * * *
(A) * * *
(
Environmental Protection Agency (EPA).
Direct final rule.
EPA is taking direct final action to approve a revision to the Commonwealth of Pennsylvania's State Implementation Plan (SIP). The revision was submitted by the Pennsylvania Department of Environmental Protection (PADEP) to establish and require reasonably available control technology (RACT) for Hershey Chocolate USA and the Pennsylvania Power Company, New Castle Plant. Hershey Chocolate USA is located in Dauphin County, Pennsylvania and is a major source of nitrogen oxides (NO
This rule is effective on August 26, 2002, without further notice, unless EPA receives adverse written comment by July 26, 2002. If EPA receives such comments, it will publish a timely withdrawal of the direct final rule in the
Written comments should be mailed to David L. Arnold, Branch Chief, Air Quality Planning & Information Services Branch, Air Protection Division, Mailcode 3AP21, U.S. Environmental Protection Agency, Region III, 1650 Arch Street, Philadelphia, Pennsylvania 19103. Copies of the documents relevant to this action are available for public inspection during normal business hours at the Air Protection Division, U.S. Environmental Protection Agency, Region III, 1650 Arch Street, Philadelphia, Pennsylvania 19103; the Air and Radiation Docket and Information Center, U.S. Environmental Protection Agency, 401 M Street, SW., Washington, DC 20460; and the Pennsylvania Department of Environmental Protection, Bureau of Air Quality Control, P.O. Box 8468, 400 Market Street, Harrisburg, Pennsylvania 17105.
Janice Lewis at (215) 814–2185 or Betty Harris at (215) 814–2168 or via e-mail at
Pursuant to sections 182(b)(2) and 182(f) of the Clean Air Act (CAA), the Commonwealth of Pennsylvania (the Commonwealth or Pennsylvania) is required to establish and implement RACT for all major VOC and NO
On December 21, 2001, PADEP submitted formal revisions to its SIP to establish and impose RACT for several major sources of VOC and NO
(1) Hershey Chocolate USA (Hershey) is a chocolate candy and confectionery manufacturing facility. This facility is located in Dauphin County, Pennsylvania and is a major NO
(2) Pennsylvania Power Company (PPC), New Castle Plant, is a utility facility. This facility is located in Lawrence County, Pennsylvania and is a major VOC and NO
EPA is approving these SIP submittals because the Commonwealth established and imposed requirements in accordance with the criteria set forth in SIP-approved regulations for imposing RACT or for limiting a source's potential to emit. The Commonwealth has also imposed recordkeeping, monitoring, and testing requirements on these sources sufficient to determine compliance with these requirements.
EPA is approving revisions to the Commonwealth of Pennsylvania's SIP which establishes and requires RACT for Hershey Chocolate USA located in Dauphin County, Pennsylvania and Pennsylvania Power Company's New Castle Plant, located in Lawrence County, Pennsylvania. EPA is publishing this rule without prior proposal because we view this as a noncontroversial amendment and anticipate no adverse comment. However, in the “Proposed Rules” section of today's
Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). This action merely approves state law as meeting Federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
In reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. In this context, in the absence of a prior existing requirement for the State to use voluntary consensus standards (VCS), EPA has no authority to disapprove a SIP submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a SIP submission, to use VCS in place of a SIP submission that otherwise satisfies the provisions of the Clean Air Act. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply.
This rule does not impose an information collection burden under the
The Congressional Review Act, 5 U.S.C. 801
Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by August 26, 2002. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action approving the Commonwealth's source-specific RACT requirements to control VOC and NO
Environmental protection, Air pollution control, Incorporation by reference, Nitrogen dioxide, Ozone, Reporting and recordkeeping requirements.
40 CFR part 52 is amended as follows:
42 U.S.C. 7401
(c) * * *
(194) Revisions pertaining to VOC and NO
(i) Incorporation by reference.
(A) A letter submitted on December 21, 2001 by the Pennsylvania Department of Environmental Protection transmitting source-specific VOC and NO
(B) Operating permit (OP) :
(
(
(ii) Additional Material—Other materials submitted by the Commonwealth of Pennsylvania in support of and pertaining to the RACT determinations for the source listed in paragraph (c)(194)(i)(B) of this section.
Environmental Protection Agency (EPA).
Final rule.
EPA is finalizing a limited approval and limited disapproval of revisions to the South Coast Air Quality Management District (SCAQMD) portion of the California State Implementation Plan (SIP). This action was proposed in the
This rule is effective on July 26, 2002.
You can inspect copies of the administrative record for this action at EPA's Region IX office during normal business hours. You can inspect copies of the submitted SIP revisions at the following locations:
Jerald S. Wamsley, Rulemaking Office (AIR–4), U.S. Environmental Protection Agency, Region IX, (415) 947–4111.
Throughout this document, “we,” “us” and “our” refer to EPA.
On February 25, 2002 (67 FR 8493), EPA proposed a limited approval and limited disapproval of the following rule that was submitted for incorporation into the California SIP.
We proposed a limited approval because we determined that this rule improves the SIP and is largely consistent with the relevant CAA requirements. We simultaneously proposed a limited disapproval because some rule provisions conflict with section 110 and part D of the Act. Rule 1131's subsection (c)(1)(C) allows for an alternative compliance plan subject to review by the Executive Officer without specifying the criteria and emission estimation protocols for determining compliance. This deficiency is inconsistent with the CAA Section 110(a) requirement that rules be federally enforceable.
Our proposed action contains more information on the basis for this rulemaking and on our evaluation of the submittal.
EPA's proposed action provided a 30-day public comment period. During this period, we received no comments concerning our proposed action on Rule 1131.
No comments were submitted that change our assessment of the rule as described in our proposed action. Therefore, as authorized in sections 110(k)(3) and 301(a) of the Act, EPA is finalizing a limited approval of the submitted rule. This action incorporates the submitted rule into the California SIP, including those provisions identified as deficient. As authorized under section 110(k)(3), EPA is simultaneously finalizing a limited disapproval of the rule. As a result, sanctions will be imposed unless EPA approves subsequent SIP revisions that correct the rule deficiencies within 18 months of the effective date of this action. These sanctions will be imposed under section 179 of the Act according to 40 CFR 52.31. In addition, EPA must promulgate a federal implementation plan (FIP) under section 110(c) unless we approve subsequent SIP revisions that correct the rule deficiencies within 24 months. Note that the submitted rule has been adopted by the SCAQMD, and EPA's final limited disapproval does not prevent the local agency from enforcing it.
The Office of Management and Budget has exempted this regulatory action from Executive Order 12866, entitled “Regulatory Planning and Review.”
Executive Order 13045, entitled Protection of Children from Environmental Health Risks and Safety Risks (62 FR 19885, April 23, 1997), applies to any rule that: (1) Is determined to be “economically significant” as defined under Executive Order 12866, and (2) concerns an environmental health or safety risk that EPA has reason to believe may have a disproportionate effect on children. If the regulatory action meets both criteria, the Agency must evaluate the environmental health or safety effects of the planned rule on children, and explain why the planned regulation is preferable to other potentially effective and reasonably feasible alternatives considered by the Agency.
This rule is not subject to Executive Order 13045 because it does not involve decisions intended to mitigate environmental health or safety risks.
Executive Order 13132, entitled Federalism (64 FR 43255, August 10, 1999) revokes and replaces Executive Orders 12612, Federalism and 12875, Enhancing the Intergovernmental Partnership. Executive Order 13132 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.” Under Executive Order 13132, EPA may not issue a regulation that has federalism implications, that imposes substantial direct compliance costs, and that is not required by statute, unless the Federal government provides the funds necessary to pay the direct compliance costs incurred by State and local governments, or EPA consults with State and local officials early in the process of developing the proposed regulation. EPA also may not issue a regulation that has federalism implications and that preempts State law unless the Agency consults with State and local officials early in the process of developing the proposed regulation.
This rule 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, because it merely acts on a state rule implementing a federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. Thus, the requirements of section 6 of the Executive Order do not apply to this rule.
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.”
This 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. Thus, Executive Order 13175 does not apply to this rule.
This rule is not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 Fed. Reg. 28355 (May 22, 2001)) because it is not a significant regulatory action under Executive Order 12866.
The Regulatory Flexibility Act (RFA) generally requires an agency to conduct a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements 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 not-for-profit enterprises, and small governmental jurisdictions.
This final rule will not have a significant impact on a substantial number of small entities because SIP approvals under section 110 and
EPA's disapproval of the state request under section 110 and subchapter I, part D of the Clean Air Act does not affect any existing requirements applicable to small entities. Any pre-existing federal requirements remain in place after this disapproval. Federal disapproval of the state submittal does not affect state enforceability. Moreover, EPA's disapproval of the submittal does not impose any new Federal requirements. Therefore, I certify that this action will not have a significant economic impact on a substantial number of small entities.
Moreover, due to the nature of the Federal-State relationship under the Clean Air Act, preparation of flexibility analysis would constitute Federal inquiry into the economic reasonableness of state action. The Clean Air Act forbids EPA to base its actions concerning SIPs on such grounds.
Under section 202 of the Unfunded Mandates Reform Act of 1995 (“Unfunded Mandates Act”), signed into law on March 22, 1995, EPA must prepare a budgetary impact statement to accompany any proposed or final rule that includes a Federal mandate that may result in estimated costs to State, local, or tribal governments in the aggregate; or to private sector, of $100 million or more. Under section 205, EPA must select the most cost-effective and least burdensome alternative that achieves the objectives of the rule and is consistent with statutory requirements. Section 203 requires EPA to establish a plan for informing and advising any small governments that may be significantly or uniquely impacted by the rule.
EPA has determined that the approval action promulgated does not include a Federal mandate that may result in estimated costs of $100 million or more to either State, local, or tribal governments in the aggregate, or to the private sector. This Federal action acts on pre-existing requirements under State or local law, and imposes no new requirements. Accordingly, no additional costs to State, local, or tribal governments, or to the private sector, result from this action.
Section 12 of the National Technology Transfer and Advancement Act (NTTAA) of 1995 requires Federal agencies to evaluate existing technical standards when developing a new regulation. To comply with NTTAA, EPA must consider and use “voluntary consensus standards” (VCS) if available and applicable when developing programs and policies unless doing so would be inconsistent with applicable law or otherwise impractical.
EPA believes that VCS are inapplicable to today's action because it does not require the public to perform activities conducive to the use of VCS.
The Congressional Review Act, 5 U.S.C. 801
Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by August 26, 2002. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)
Environmental protection, Air pollution control, Carbon monoxide, Incorporation by reference, Intergovernmental relations, Ozone, Reporting and recordkeeping requirements, Volatile organic compounds.
42 U.S.C. 7401
(c) * * *
(284) * * *
(i) * * *
(B) * * *
(
Environmental Protection Agency (EPA).
Direct final rule.
The Environmental Protection Agency is taking direct final action to approve a State Implementation Plan (SIP) revision submitted by the Governor's designee for the Sandpoint nonattainment area in the State of Idaho.
Sandpoint was classified as nonattainment for particulate matter with an aerodynamic diameter less than or equal to a nominal 10 micrometers (PM
This direct final rule will be effective August 26, 2002, unless EPA receives adverse comment by July 26,
Mail written comments to Donna Deneen, EPA, Region 10, Office of Air Quality (OAQ–107), 1200 Sixth Avenue, Seattle, Washington 98101. Copies of the State's request and other information supporting this action are available for inspection during normal business hours at the following locations: EPA, Office of Air Quality (OAQ–107), 1200 Sixth Avenue, Seattle, Washington 98101, and State of Idaho Department of Environmental Quality, 1445 North Orchard, Boise, ID 83706–2239.
Donna Deneen, EPA Region 10, Office of Air Quality, at (206) 553–6706.
Throughout this document, the words “we,” “us,” or “our” mean the Environmental Protection Agency (EPA). Please note that if EPA receives adverse comment on an amendment, paragraph, or section of this rule and if that provision may be severed from the remainder of the rule, EPA may adopt as final those provisions of the rule that are not the subject of an adverse comment.
In this action, we are approving the Sandpoint SIP revision submitted by the State of Idaho, Department of Health and Welfare, Division of Environmental Quality (IDEQ, Idaho, or State) on August 16, 1996.
Idaho began monitoring PM
Idaho initially submitted a PM
On August 16, 1996, the State of Idaho submitted a revised PM
EPA's approval of this SIP revision brings Sandpoint a step closer to becoming an attainment area for PM
Although the SIP revision contains emission reduction control measures that impact residential wood combustion, roadways, and industrial facilities, these control measures have been in place and have been enforceable by the State since 1996. Therefore, our approval of these measures now has little or no additional impact on the Sandpoint community.
Section 172(c)(3) of the Act requires that a nonattainment plan include a comprehensive, accurate, and current inventory of actual emissions from all sources of relevant pollutants in the nonattainment area. The emissions inventory should also include a comprehensive, accurate, and current inventory of allowable emissions in the area.
An emissions inventory provides information about the relative contribution of pollution sources within an airshed. It forms the basis for evaluating control strategies, tracking emission reductions, and measuring growth. Because this information is required for an area's attainment demonstration (or its demonstration that it cannot practicably attain) an accurate emissions inventory must accompany each attainment plan submission (57 FR 13539).
The emissions inventory for the 1996 Sandpoint SIP consists of the actual emissions from industrial sources in 1993 and the projected emissions from area sources in 1994. The reason the inventory covers two different years is because it uses some, but not all, of the inventory prepared for the SIP originally submitted by Idaho in 1993. For the 1993 SIP, emissions inventories were developed for two separate time periods: 1990 (actual emissions) and 1994 (projected emissions). When the State began preparing the 1996 SIP using the same data, concerns were raised about using the values in the 1990 inventory for industrial sources because they might not accurately reflect projected growth at the sources. To address these concerns, the State updated the base-year inventory to reflect actual emissions from industry in 1993. It did not, however, update the area source inventory because there was no indication that the area source inventories were not representative. In order to work with an area source inventory that covered a similar time period as the industrial inventory, the State used the 1994 projected area source inventory instead of the 1990 actual area source inventory for its baseline area source inventory.
As shown below in Table I, the three largest daily wintertime PM
Table II shows the State projects the three largest daily wintertime PM
EPA is approving the emissions inventory in the Sandpoint SIP revision because it generally appears to be accurate and comprehensive, and provides a sufficient basis for determining the adequacy of the attainment demonstration for this area consistent with the requirements of section 172(c)(3) of the Clean Air Act.
For approval, the Sandpoint SIP revision must assure that Reasonably Available Control Measures (RACM) to reduce PM
a. Public Awareness Program. Sandpoint's public awareness program informs and educates citizens about stove sizing, installation, proper operation and maintenance, general health risks of wood smoke, new technology stoves, and alternatives to wood heating. It uses a wide variety of media, including brochures, radio advisories, newspaper advertisements, TV PSA's, TV advertisements, pay stub inserts, and utility inserts, to educate citizens on these topics. In addition, the Greater Sandpoint Chamber of Commerce developed and implemented an aggressive public awareness campaign in 1995 to initially kick-off its wood smoke reduction efforts. Appendix F–3 of the SIP contains an outline of this campaign.
Sandpoint's public awareness program qualifies as a RACM because it falls within the description of a qualifying public awareness program, as described in Appendix C2 of the General Preamble. 57 FR 18072. (See List of Available Control Measures no. 2.)
b. Uncertified Wood Stove Replacement Program. Sandpoint's uncertified woodstove replacement program is a temporary program that offered homeowners incentive grants to replace their old wood stoves with cleaner burning heating systems. By the time it ended in September 1995, the replacement program had resulted in the removal of 84 wood stoves. These were replaced by 64 natural gas devices, 18 new wood stoves and 2 pellet stoves.
Sandpoint's uncertified wood stove replacement program meets the requirements of RACM because it encourages improved performance of woodburning devices by subsidizing stove purchases. (
c. Tax Reduction Program. Idaho revised its State tax code to allow taxpayers to receive a tax reduction if they replace their uncertified wood stoves with cleaner burning units. As of September 1999, 90 taxpayers in the Sandpoint NAA qualified for this tax deduction.
This program meets the requirements of RACM because it gives a financial incentive for replacing old, uncertified wood stoves with cleaner burning heating units. (
d. Limits on Growth of Uncertified Wood Stoves. In 1995, the City of Sandpoint adopted Ordinance No. 965, which, among other things, restricts the sale and installation of uncertified solid fuel heating appliances in the City of Sandpoint. More specifically, the ordinance prohibits any person in the City to advertise for sale, offer for sale, sell, or install in any new or existing building a solid fuel heating device that has not been certified by EPA. The ordinance also prohibits any person in the City of Sandpoint from installing a solid fuel heating appliance in any new or existing structure before first procuring a permit from the building department, which requires payment of a fee.
Because these measures slow the growth of non-certified woodburning devices by restricting their sale and the growth of all woodburning devices by imposing installation permit fees, the measures qualify as RACM. (
e. Episodic Curtailment Program. In 1995, the City of Sandpoint passed Ordinance No. 965, which, among other things, lays out a two-stage approach for wood smoke curtailment. The first stage calls for voluntary curtailment of the use of woodburning appliances if the PM
IDEQ provides the City of Sandpoint with the daily air quality advisory status. Notification of a voluntary or mandatory curtailment is announced during regularly scheduled broadcasts on radio and television. There is also a toll-free hotline and a phone tree run by the Sandpoint Chamber of Commerce to spread the notification throughout the community.
Because this measure establishes a mandatory episode curtailment program, includes a plan, a communication strategy, a trigger level, and is enforceable, the measure qualifies as a RACM. (
Winter road sanding has been shown to adversely affect PM
a. Improved quality of anti-skid materials. In 1994, the City of Sandpoint adopted Ordinance 939:
While this ordinance technically only applies to city-maintained roads in Sandpoint, it also impacts State highways that are under the Idaho Transportation Department's (ITD's) jurisdiction as well. ITD, in order to avoid having to maintain separate stockpiles of anti-skid materials, has agreed to adhere to the City's standard on all its highways within the nonattainment area boundaries.
Ordinance 939 qualifies as RACM because it requires improved material specification requirements for skid control materials. (
b. Reduced volume of anti-skid materials. Compared to the baseline year, both the ITD and Sandpoint Independent Highway District (SIHD) are using less anti-skid material on State highways and roadways in the City of Sandpoint. There are a number of reasons for this change. First, the adoption of sanding material specifications has increased the cost of material from $0.50/yard to approximately $12.00/yard. This gives ITD and SIHD a strong incentive to apply the materials as efficiently as possible. The regional ITD office has also developed a policy to establish portions of state highways in downtown Sandpoint as an “anti-skid free zone.” In this zone, a liquid de-icer is used instead of sand when weather conditions are appropriate. Finally, ITD has made improvements in the application of sand by installing ground
These measures qualify as RACM because they result in a reduction of usage of skid control sand or salt. (See Appendix C1 of the General Preamble, List of Available Control Measures no. 8.)
c. Use of alternative materials—liquid de-icer. SIHD and ITD have acquired equipment to apply liquid de-icer as an alternative to anti-skid material. Between November 1994 and January 1995, SIHD used 8750 gallons of liquid de-icer. Use of a combination of liquid de-icer and anti-skid material also proved effective, with the de-icer acting as a binder and dust suppressant.
This measure qualifies as RACM because it results in a reduction of usage of skid control sand or salt. (
d. Increased frequency of street sweeping. Vacuum sweeping streets reduces the silt loading on vehicle travel lanes and reduces re-entrained road dust. This practice is particularly important after there is no longer a need for sanding material, such as after the snow melts. SIHD purchased and is using a new regenerative air vacuum sweeper, which has a higher collection efficiency than the vacuum sweeper it used previously. Approximately 20% of the local and highway lane miles and approximately 40% of the collector lane miles are swept. In addition, re-surfacing projects are planned to provide uniform road surfaces so that the effectiveness of the new vacuum sweeper is maintained.
This measure qualifies as RACM because it provides for rapid clean up of temporary sources of dust, such as skid control sand, on paved roads. (
In the inventory, IDEQ identified five industrial facilities in the Sandpoint nonattainment area that had the potential to emit over 1 ton/year of PM
Table III below shows the reductions that resulted from this control strategy. In particular, it shows that, in 1997, the amount of PM
EPA has defined RACT for PM
To demonstrate attainment of the 24-hour PM
Supporting these results, monitoring data for Sandpoint show no exceedences of the standard since January 26, 1994. Based on these data, Sandpoint is attaining the 24-hour PM
As provided in section 172(c)(9) of the Act, all moderate nonattainment area SIP's that demonstrate attainment must include contingency measures (see generally 57 FR 13510–13512 and 13543–13544). Contingency measures must provide for additional emissions reductions beyond the control strategy that is used to attain the ambient standard. A State may rely on “over control” as a contingency measure, that is, rely on control measures that are part of the core control strategy in the SIP. EPA has stated that, in general, reductions equal to at least 25 percent of the total reductions for the control strategy would be appropriate for a moderate nonattainment area.
The Sandpoint SIP revision uses over control to meet the contingency requirements. Emissions reductions from over control are achieved primarily by the mandatory residential wood burning curtailment program adopted by the City of Sandpoint in February 1995. Modeling of the core control measures in the SIP for the Sandpoint nonattainiment area indicates a 63 μg/m
The control requirements which are applicable to major stationary sources of PM
Because the emission inventory for the Sandpoint nonattainment area did not reveal any major stationary sources, including any major stationary sources of PM
The Sandpoint SIP revision must contain quantitative milestones that demonstrate RFP in maintaining the standard. These must be met until the area is redesignated attainment.
RFP is demonstrated in the Sandpoint nonattainment area by programs in the Sandpoint nonattainment area that continue to reduce PM
All measures and other elements in the SIP must be enforceable by IDEQ and EPA (see section 172(c)(6) and 110(a)(2)(A) of the Act and 57 FR 13556). Our criteria addressing the enforceability of SIP's and SIP revisions are set forth in a September 23, 1987 memorandum (with attachments) from J. Craig Potter, Assistant Administrator for Air and Radiation, et al. (
The State submitted to EPA documentation that describes, for each control measure implemented in Sandpoint, how compliance will be assured, the frequency of the assurance, and the enforcement mechanisms to be used. IDEQ's role, as well as other entities' roles in assuring adequate implementation of the RACT/RACM attainment strategy in the Sandpoint SIP, are also identified.
Based on the ordinances IDEQ submitted (City of Sandpoint Ordinances Nos. 965 and 939) and IDEQ's explanation of how those ordinances and other control measures will be tracked and enforced, EPA believes that the enforceability requirements are met. This is consistent with section 110(a)(2)(A) of the Act which requires all emission limits, control measures and other elements of the SIP to be enforceable.
States with initial moderate PM
The Clean Air Act Amendments of 1990 included revisions to the new source review (NSR) program requirements of the construction and operation of new and modified major stationary sources located in nonattainment areas. The Act requires states to amend their SIPs to reflect these revisions, but it did not require submittal of this element along with the other SIP elements. The Act established June 30, 1992 as the submittal date for the revised NSR programs.
In the “General Preamble,” EPA issued guidance for states to follow in the development of revised NSR programs to meet the requirements of the 1990 Amendments. 57 FR 13552–13556. EPA guidance calls for states to implement their existing NSR programs during the interval preceding EPA's formal approval of their revised NSR program.
Idaho did not submit a permit program for the construction and operation of new and modified major stationary sources of PM
The Act requires states to observe certain procedural requirements in developing implementation plans and plan revisions for submission to EPA. Section 110(a)(2) of the Act provides that each implementation plan submitted by a state must be adopted after reasonable notice and public hearing.
IDEQ held a public hearing on the SIP revision on June 13, 1995 and, after IDEQ reviewed the oral testimony, the IDEQ Administrator adopted the final plan and submitted it to EPA on August 16, 1996 as a proposed revision to the SIP.
EPA reviewed the SIP revision to determine completeness in accordance with the completeness criteria set out at 40 CFR part 51, appendix V. We sent a letter dated December 8, 1997 to the Administrator of the Idaho Division of Environmental Quality indicating the submittal was complete and the next steps to be taken in the review process.
Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). This action merely approves state law as meeting Federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
This rule also does not have tribal implications because it will not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified by Executive Order 13175 (65 FR 67249, November 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 merely approves a state rule implementing a Federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. This rule also is not subject to Executive Order 13045 “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), because it is not economically significant.
In reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. In this context, in the absence of a prior existing requirement for the State to use voluntary consensus standards (VCS), EPA has no authority to disapprove a SIP submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a SIP submission, to use VCS in place of a SIP submission that otherwise satisfies the provisions of the Clean Air Act. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
The Congressional Review Act, 5 U.S.C. 801
Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by August 26, 2002. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (
Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Particulate matter, Reporting and recordkeeping requirements.
Part 52, chapter I, title 40 of the Code of Federal Regulations is amended as follows:
42 U.S.C. 7401
(c) * * *
(35) On August 16, 1996, the State of Idaho adopted and submitted a revision to the SIP for Sandpoint, Idaho, for the purpose of bringing about the attainment of the national ambient air quality standards for particulate matter with an aerodynamic diameter less than or equal to a nominal 10 micrometers.
(i) Incorporation by reference.
(A) Ordinance No. 939, Material Specifications for Street Sanding Material, as adopted by the City of Sandpoint on February 22, 1994.
(B) Ordinance No. 965, Solid Fuel Heating Appliance Ordinance, as adopted by the City of Sandpoint on February 21, 1995.
(C) The following terms and conditions limiting particulate matter emissions in the following permits:
(
(
(3) State of Idaho Department of Environmental Quality Air Quality Tier II Operating Permit for Louisiana-Pacific Corporation, Permit No. 017–00003, issued October 31, 2001, the following conditions: for the Kipper and Sons Hog Fuel Boiler, 2.3 (as it applies to PM
(ii) Additional Materials.
(A) Sandpoint PM
Environmental Protection Agency (EPA).
Direct final rule.
EPA is approving the moderate area plan and maintenance plan for the Payson area in Arizona and granting a request submitted by the State to redesignate the area from nonattainment to attainment for the National Ambient Air Quality Standards (NAAQS) for particulate matter with an aerodynamic diameter less than or equal to a nominal 10 micrometers (PM
This direct final rule is effective August 26, 2002, without further notice, unless we receive adverse comments by July 26, 2002. If we receive such comments, we will publish a timely withdrawal in the
Please address your comments to Dave Jesson, Air Planning Office (AIR–2), Air Division, U.S. EPA, Region 9, 75 Hawthorne Street, San Francisco, CA 94105–3901. You may inspect and copy the rulemaking docket for this notice at the following location during normal business hours. We may charge you a reasonable fee for copying parts of the docket.
Copies of the SIP materials are also available for inspection at the address listed below: Arizona Department of Environmental Quality, Library, First Floor, 3033 N. Central Avenue, Phoenix, AZ 85012–2809.
Dave Jesson, Air Planning Office (AIR–2), EPA Region 9, at (415) 972–3957 or:
We are approving the moderate area plan and the maintenance plan for the Payson PM
On March 29, 2002, the Arizona Department of Environmental Quality (ADEQ) submitted the plan for the Payson PM
Particulate matter with an aerodynamic diameter of less than 10 micrometers (PM
PM
On July 1, 1987 (52 FR 24634), we revised the NAAQS for particulate matter with an indicator that includes only those particles with an aerodynamic diameter less than or equal to a nominal 10 micrometers. (
The annual primary PM
The Clean Air Act requires States to attain and maintain ambient air quality equal to or better than the NAAQS. The State's commitments for attaining and maintaining the NAAQS are outlined in the State Implementation Plan (or SIP) for that State. The SIP is a planning document that, when implemented, is designed to ensure the achievement of the NAAQS. Each State currently has a SIP in place, and the Act requires that SIP revisions be made periodically as necessary to provide continued compliance with the standards.
SIPs include, among other things, the following: (1) An inventory of emission sources; (2) statutes and regulations adopted by the State legislature and executive agencies; (3) air quality analyses that include demonstrations that adequate controls are in place to meet the NAAQS; and (4) contingency measures to be undertaken if an area fails to attain the standard or make reasonable progress toward attainment by the required date.
The State must make the SIP available for public review and comment through a public hearing, it must be adopted by the State, and submitted to EPA by the Governor or her designee. EPA takes Federal action on the SIP submittal thus rendering the rules and regulations Federally enforceable. The approved SIP serves as the State's commitment to take actions that will reduce or eliminate air quality problems. Any subsequent revisions to the SIP must go through the formal SIP revision process specified in the Act.
Upon enactment of the 1990 Clean Air Act Amendments (Act), PM
In January and February of 1991, we notified the Governors of those States which recorded violations of the PM
The air quality planning requirements for moderate PM
States with initial moderate PM
(a) Provisions to assure that reasonably available control measures (RACM) (including such reductions in emissions from existing sources in the area as may be obtained through the adoption, at a minimum, of reasonably available control technology (RACT)) shall be implemented no later than December 10, 1993;
(b) Either a demonstration (including air quality modeling) that the plan will provide for attainment as expeditiously as practicable but no later than December 31, 1994, or a demonstration that attainment by that date is impracticable;
(c) Pursuant to section 189(c)(1), for plan revisions demonstrating attainment, quantitative milestones which are to be achieved every 3 years and which demonstrate reasonable further progress (RFP) toward attainment by December 31, 1994; and
(d) Provisions to assure that the control requirements applicable to major stationary sources of PM
In addition, States must submit a permit program for the construction of new and modified major stationary sources in 1992 and contingency measures in 1993. See sections 189(a) and 172(c)(9).
The clean data areas approach applies the clean data policy concept already in place for ozone to selected PM
(a) The area must be attaining the PM
(b) The State must continue to operate an appropriate PM
(c) The control measures for the area, which were responsible for bringing the area into attainment, must be approved by EPA. EPA would also need to find that the area has adopted RACM/RACT, and make a finding that the area attained the 24-hour and annual PM
(d) An emissions inventory must be completed for the area. In addition to the above requirements for the use of the clean data areas approach, any requirements that are connected solely to designation or classification, such as new source review (NSR) and RACM/RACT, will remain in effect. However, the requirements under CAA section 172(c) for developing attainment demonstrations, RFP demonstrations and contingency measures are waived due to the fact that the areas which are eligible under this approach have already attained the PM
Any sanctions clocks that may be running for an area due to failure to submit, or disapproval of any attainment demonstration, RFP or contingency measure requirements, are stopped. In addition, areas are still required to demonstrate transportation conformity using the build/no-build test, or the no-greater-than-1990 test. 40 CFR 93.119. The emissions budget test would not be required, because the requirements for an attainment demonstration and RFP, which establish the budgets, no longer apply. The applicable tests for general conformity still apply. The use of the clean data areas approach does not constitute a CAA section 107(d) redesignation, but only serves to approve nonattainment area SIPs required under Part D of the CAA.
CAA section 175A provides the general framework for maintenance plans. The maintenance plan must provide for maintenance of the NAAQS for at least 10 years after redesignation, and must include any additional control measures as may be necessary to ensure such maintenance. In addition, maintenance plans are to contain such contingency provisions as we deem necessary to assure the prompt correction of a violation of the NAAQS that occurs after redesignation. The contingency measures must include, at a minimum, a requirement that the State will implement all control measures contained in the nonattainment SIP prior to redesignation. Beyond these provisions, however, CAA section 175A does not define the content of a maintenance plan. Our primary guidance on maintenance plans and redesignation requests is a September 4, 1992 memo from John Calcagni, entitled “Procedures for Processing Requests to Redesignate Areas to Attainment” (“Calcagni memo”).
On August 9, 2001, EPA issued new guidance on streamlined maintenance plan provisions for certain moderate PM
To qualify for the LMP option, the area should be maintaining the NAAQS, and the average PM
As discussed below in Section III.B.1, the State has demonstrated that the LMP option is appropriate for the Payson nonattainment area.
The 1990 CAA Amendments revised section 107(d)(3)(E) to provide five specific requirements that an area must meet in order to be redesignated from nonattainment to attainment:
(1) the area must have attained the applicable NAAQS;
(2) the area has met all relevant requirements under section 110 and Part D of the Act;
(3) the area has a fully approved SIP under section 110(k) of the Act;
(4) the air quality improvement must be due to permanent and enforceable reductions; and,
(5) the area must have a fully approved maintenance plan pursuant to section 175A of the Act.
Prior to adoption by the State, the plan received proper public notice and was the subject of a public hearing in Payson on February 19, 2002.
a.
The Payson area has one PM
b.
c.
1. Arizona Department of Transportation (ADOT) installed 2 miles of curbs and gutters on Arizona State Highway 87 from the intersection of Highways 87 and 260 to Roundup Road in 1992.
2. ADOT installed 5 miles of paved shoulders on Highway 87 North and Highway 260 East when those stretches were widened to 4 lanes in 1992.
3. The Town of Payson paved 4 miles of unpaved roads that were unpaved in 1990.
4. Gila County paved nearly 18 miles of previously unpaved roads starting in 1989.
5. ADEQ implemented Arizona Administrative Code R18–2–607 that requires control of storage piles to minimize fugitive emissions.
6. In 1988, EPA implemented New Source Performance Standards for woodstoves.
Implementation of these measures helped bring the area into timely attainment of both the 24-hour and annual PM
In addition to these permanent or SIP enforceable controls, the Town of Payson implemented an ordinance requiring the paving of commercial parking facilities and the paving of unpaved roads as condition of minor land divisions. Kaibab Industries' lumber and sawmill operation closed and the facility was dismantled in June 1993, and the Lewis M. Pyle Memorial Hospital's medical waste incinerator was shutdown and removed in 1993. Smoke management plan requirements were implemented by the Forest Service, Bureau of Land Management, and Arizona Department of State Lands, in cooperation with ADEQ. These supplemental strategies contributed still further PM–10 emission reductions and public health protection. Continued implementation of the measures will help ensure that the Payson area maintains the 24-hour and annual PM
The Payson plan includes emission inventories for 1999 to show emission levels in a recent, representative year during which there were no violations of the PM
The measures listed above in Section III.A.2.c. reflect effective control for an important emissions category in the Payson area: Reentrained dust from traffic on paved and unpaved roads. These measures were implemented expeditiously and have proven sufficient to prevent violations of the NAAQS over the past 10 years. We therefore conclude that the controls reflect RACM and we approve the plan as meeting the RACM provisions of CAA Section 189(a)(1)(C).
CAA Section 189(e) requires RACT provisions for gaseous precursors of PM
For the Payson nonattainment area, ADEQ administers the preconstruction review and permitting provisions of Arizona Administrative Code, Title 18, Chapter 2, Articles 1, 3, 4, and 5. All new major sources and modifications to existing major sources are subject to the new source review (NSR) and prevention of significant deterioration (PSD) requirements of these rules. We have not yet fully approved the State's NSR rules but, for major sources and modifications of PM
Section 172(c)(5) requires NSR permits for the construction and operation of new and modified major stationary sources anywhere in nonattainment areas. We have determined that areas being redesignated from nonattainment to attainment do not need to comply with the requirement that an NSR program be approved prior to redesignation provided that the area demonstrates maintenance of the standard without part D nonattainment NSR in effect. The rationale for this decision is described in a memorandum from Mary Nichols dated October 14, 1994 (“Part D New Source Review (part D NSR) Requirements for Areas Requesting Redesignation to Attainment”). We have determined that the ADEQ maintenance demonstration for Payson does not rely on nonattainment NSR and, therefore, the State need not have a fully approved nonattainment NSR program prior to approval of the redesignation request. The ADEQ's PSD program at 40 CFR 52.21 will become effective in the area with respect to PM–10 upon redesignation of the area to attainment, pursuant to the delegation agreement between EPA and ADEQ dated March 12, 1999.
Section II.E. of the plan discusses how the area meets each of the LMP option criteria for use of this option.
First, the area should be attaining the NAAQS. Table III–3 of the plan summarizes quality assured ambient data showing that the Payson area has continued to meet both the 24-hour and annual PM
Second, the design values for the past 5 years must be at or below the margin of safety levels identified in the LMP option. The annual average PM
Third, the area must meet the motor vehicle regional emissions analysis test in the LMP option. The calculated value is 28.3 ug/m
Therefore, the State has shown that the area qualifies for the streamlined maintenance plan provisions under the LMP option. We have concluded in Section III.A. that the plan submittal meets the moderate area plan provisions for emissions inventories, permanent and enforceable control measures, and maintenance of adequate monitoring. There is one remaining maintenance plan provision under the LMP option not previously discussed: contingency measures.
The maintenance plan must include contingency control measures which will go into effect automatically to correct any future violation of the NAAQS. These provisions must include a requirement that the State will implement all measures contained in the nonattainment area SIP. The August 9, 2000 LMP option memo states that the contingency measures do not have to be fully adopted at the time of redesignation.
ADEQ has included 6 contingency measures in the maintenance plan (see table below entitled “Payson Area Contingency Measures”).
The State also committed to determine whether or not violations have been recorded within 6 months of the close of each calendar year, and to review and determine the appropriate contingency measure(s) by the end of the same calendar year. Finally, the State committed to implement the selected contingency measure(s) within 1 year of determining that a violation has occurred. We conclude that these measures and commitments meet the contingency measure provision of CAA Section 175A(d).
The area has attained the 24-hour standard when the average number of expected exceedances per year is less than or equal to one, when averaged over a three-year period. (40 CFR 50.6) To make this determination, three consecutive years of complete ambient air quality data were collected in accordance with Federal requirements (40 CFR part 58, including appendices).
As discussed above, there have been no recorded exceedances of either the annual or 24-hour PM
The Calcagni memo directs States to meet all of the applicable section 110 and part D planning requirements for redesignation purposes. EPA interprets the Act to require State adoption and EPA approval of the applicable programs under section 110 and part D that were due prior to the submittal of a redesignation request, before EPA may approve a redesignation request.
Section 110(a)(2) of the Act contains general requirements for nonattainment plans. These requirements include, but are not limited to, submittal of a SIP that has been adopted by the State after reasonable notice and public hearing, provisions for establishment and operation of appropriate apparatus, methods, systems, and procedures necessary to monitor ambient air quality, implementation of a permit program, provisions for Part C—Prevention of Significant Deterioration (PSD) and Part D—New Source Review (NSR) permit programs, criteria for stationary source emission control measures, monitoring and reporting, provisions for modeling, and provisions for public and local agency participation.
Part D includes additional provisions for nonattainment areas, listed generally in CAA section 172(c) and specifically for PM
For purposes of redesignation, the Arizona SIP was reviewed to ensure that all requirements under the Act were satisfied. The Arizona SIP was approved under section 110 of the Act as satisfying all applicable section 110 and Part D provisions. These approvals are codified in 40 CFR 52.123. We are approving the SIP with respect to the special Part D provisions for PM
We are approving in today's action the moderate area and maintenance plan for the Payson Area, and confirming that the SIP meets other applicable provisions of the CAA.
The submittal shows that the improvements in air quality were not due to temporary economic downturn or unusually favorable meteorology (p. 12). On the contrary, economic growth has continued over the past 10 years since the area attained the NAAQS, and the area has experienced the full range of weather conditions in that period. As discussed above, attainment is the result of the establishment of permanent and enforceable controls on fugitive dust emissions.
We are fully approving the maintenance plan, as allowed by the LMP guidance, in Section III.B. above.
The transportation conformity rule and the general conformity rule apply to nonattainment areas and attainment areas with maintenance plans. Both rules provide that conformity can be demonstrated by showing that the expected emissions from planned actions are consistent with the emissions budget for the area.
Under the limited maintenance plan option, emissions budgets are treated as essentially not constraining for the length of the maintenance period because it is unreasonable to expect that qualifying areas would experience so much growth in that period that a NAAQS violation would result.
While areas with maintenance plans approved under the limited maintenance plan option are not subject to the budget test, the areas remain subject to other transportation conformity requirements of 40 CFR Part 93, Subpart A. Thus, the metropolitan planning organization (MPO) in the area or the State will still need to document and ensure that: (1) Transportation plans and projects provide for timely implementation of SIP transportation control measures (TCMs) in accordance with 40 CFR 93.113; (2) transportation plans and projects comply with the fiscal constraint element per 40 CFR 93.108; (3) the MPO's interagency consultation procedures meet applicable requirements of 40 CFR 93.105; (4) conformity of transportation plans is determined no less frequently than every three years, and conformity of plan amendments and transportation projects is demonstrated in accordance with the timing requirements specified in 40 CFR 93.104; (5) the latest planning assumptions and emissions model are used as set forth in 40 CFR 93.110 and 40 CFR 93.111; (6) projects do not cause or contribute to any new localized carbon monoxide or particulate matter violations, in accordance with procedures specified in 40 CFR 93.123; and (7) project sponsors and/or operators provide written commitments as specified in 40 CFR 93.125.
The adequacy review period for these SIP submissions is concurrent with the public comment period on this direct final rule. Because limited maintenance plans do not contain budgets, the adequacy review period for these maintenance plans serves to allow the public to comment on whether limited maintenance is appropriate for these areas. Interested parties may comment on the adequacy and approval of the limited maintenance plans by submitting their comments on the proposed rule published concurrently with this direct final rule.
Our action on the limited maintenance plans for these areas has been announced on EPA's conformity Web site:
For Federal actions which are required to address the specific requirements of the general conformity rule, one set of requirements applies particularly to ensuring that emissions from the action will not cause or contribute to new violations of the NAAQS, exacerbate current violations, or delay timely attainment. One way that this requirement can be met is to demonstrate that “the total of direct and indirect emissions from the action (or portion thereof) is determined and documented by the State agency primarily responsible for the applicable SIP to result in a level of emissions which, together with all other emissions in the nonattainment area, would not exceed the emissions budgets specified in the applicable SIP.” 40 CFR 93.158(a)(5)(i)(A).
The decision about whether to include specific allocations of allowable emissions increases to sources is one made by the State and local air quality agencies. Such emissions budgets are unlike and not to be confused with those used in transportation conformity. Emissions budgets in transportation conformity are required to limit and restrain emissions. Emissions budgets in general conformity allow increases in emissions up to specified levels.
ADEQ has not chosen to include any specific emissions allocations for Federal projects that would be subject to the provisions of general conformity.
We are approving the moderate area plan, and the maintenance plan for the Payson Area, and we are redesignating the area from nonattainment to attainment for the 24-hour and annual PM
Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). This action merely approves State law as meeting Federal requirements and imposes no additional requirements beyond those imposed by State law.
Accordingly, the Administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because this rule approves pre-existing requirements under State law and does not impose
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 merely approves a State rule implementing a Federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. This rule also is not subject to Executive Order 13045, “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), because it is not economically significant.
In reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. In this context, in the absence of a prior existing requirement for the State to use voluntary consensus standards (VCS), EPA has no authority to disapprove a SIP submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a SIP submission, to use VCS in place of a SIP submission that otherwise satisfies the provisions of the Clean Air Act. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
The Congressional Review Act, 5 U.S.C. section 801
Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by (insert date 60 days after date of publication). Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (
Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Particulate matter, Reporting and recordkeeping requirements.
Environmental protection, Air pollution control, National parks, Wilderness areas.
42 U.S.C. 7401
(c) * * *
(104) The following plan was submitted on March 29, 2002, by the Governor's designee.
(i) Incorporation by reference.
(A) Arizona Department of Environmental Quality.
(1) Payson Moderate Area PM
42 U.S.C. 7401,
Environmental Protection Agency (EPA).
Direct final rule.
EPA is approving the moderate area plan and maintenance plan for the Bullhead City area in Arizona and granting a request submitted by the State to redesignate the area from nonattainment to attainment for the National Ambient Air Quality Standards (NAAQS) for particulate matter with an aerodynamic diameter less than or equal to a nominal 10 micrometers (PM
This direct final rule is effective August 26, 2002, without further notice, unless we receive adverse comments by July 26, 2002. If we receive such comments, we will publish a timely withdrawal in the
Please address your comments to Dave Jesson, Air Planning Office (AIR–2), Air Division, U.S. EPA, Region 9, 75 Hawthorne Street, San Francisco, CA 94105–3901. You may inspect and copy the rulemaking docket for this notice at the following location during normal business hours. We may charge you a reasonable fee for copying parts of the docket. Environmental Protection Agency, Region 9, Air Division, Air Planning Office (AIR–2), 75 Hawthorne Street, San Francisco, CA 94105–3901.
Copies of the SIP materials are also available for inspection at the address listed below: Arizona Department of Environmental Quality, Library, First Floor, 3033 N. Central Avenue, Phoenix, AZ 85012–2809.
Dave Jesson, Air Planning Office (AIR–2), EPA Region 9, at (415) 972–3957 or:
We are approving the moderate area plan and the maintenance plan for the Bullhead City PM
On February 7, 2002, the Arizona Department of Environmental Quality (ADEQ) submitted the plan for the Bullhead City PM
Particulate matter with an aerodynamic diameter of less than 10 micrometers (PM
PM
On July 1, 1987 (52 FR 24634), we revised the NAAQS for particulate matter with an indicator that includes only those particles with an aerodynamic diameter less than or equal to a nominal 10 micrometers. (
The annual primary PM
The Clean Air Act requires States to attain and maintain ambient air quality equal to or better than the NAAQS. The State's commitments for attaining and maintaining the NAAQS are outlined in the State Implementation Plan (or SIP) for that State. The SIP is a planning document that, when implemented, is designed to ensure the achievement of the NAAQS. Each State currently has a SIP in place, and the Act requires that SIP revisions be made periodically as necessary to provide continued compliance with the standards.
SIPs include, among other things, the following: (1) An inventory of emission sources; (2) statutes and regulations adopted by the State legislature and executive agencies; (3) air quality analyses that include demonstrations that adequate controls are in place to meet the NAAQS; and (4) contingency measures to be undertaken if an area fails to attain the standard or make reasonable progress toward attainment by the required date.
The State must make the SIP available for public review and comment through a public hearing, it must be adopted by the State, and submitted to EPA by the Governor or her designee. EPA takes Federal action on the SIP submittal thus rendering the rules and regulations Federally enforceable. The approved SIP serves as the State's commitment to take actions that will reduce or eliminate air quality problems. Any subsequent revisions to the SIP must go through the formal SIP revision process specified in the Act.
Upon enactment of the 1990 Clean Air Act Amendments (Act), PM
In January and February of 1991, we notified the Governors of those States which recorded violations of the PM
The air quality planning requirements for moderate PM
States with initial moderate PM
(a) Provisions to assure that reasonably available control measures (RACM) (including such reductions in emissions from existing sources in the area as may be obtained through the adoption, at a minimum, of reasonably available control technology (RACT)) shall be implemented no later than December 10, 1993;
(b) Either a demonstration (including air quality modeling) that the plan will provide for attainment as expeditiously as practicable but no later than December 31, 1994, or a demonstration that attainment by that date is impracticable;
(c) Pursuant to section 189(c)(1), for plan revisions demonstrating attainment, quantitative milestones which are to be achieved every 3 years and which demonstrate reasonable further progress (RFP) toward attainment by December 31, 1994; and
(d) Provisions to assure that the control requirements applicable to major stationary sources of PM
In addition, States must submit a permit program for the construction of new and modified major stationary sources in 1992 and contingency measures in 1993.
The clean data areas approach applies the clean data policy concept already in place for ozone to selected PM
(a) The area must be attaining the PM
(b) The State must continue to operate an appropriate PM
(c) The control measures for the area, which were responsible for bringing the area into attainment, must be approved by EPA. EPA would also need to find that the area has adopted RACM/RACT, and make a finding that the area attained the 24-hour and annual PM
(d) An emissions inventory must be completed for the area. In addition to the above requirements for the use of the clean data areas approach, any requirements that are connected solely to designation or classification, such as new source review (NSR) and RACM/RACT, will remain in effect. However, the requirements under CAA section 172(c) for developing attainment demonstrations, RFP demonstrations and contingency measures are waived due to the fact that the areas which are eligible under this approach have already attained the PM
Any sanctions clocks that may be running for an area due to failure to submit, or disapproval of any attainment demonstration, RFP or contingency measure requirements, are stopped. In addition, areas are still required to demonstrate transportation conformity using the build/no-build test, or the no-greater-than-1990 test. 40 CFR 93.119. The emissions budget test would not be required, because the requirements for an attainment demonstration and RFP, which establish the budgets, no longer apply. The applicable tests for general conformity still apply. The use of the clean data areas approach does not constitute a CAA section 107(d) redesignation, but only serves to approve nonattainment area SIPs required under Part D of the CAA.
CAA section 175A provides the general framework for maintenance plans. The maintenance plan must provide for maintenance of the NAAQS for at least 10 years after redesignation, and must include any additional control measures as may be necessary to ensure such maintenance. In addition, maintenance plans are to contain such contingency provisions as we deem necessary to assure the prompt correction of a violation of the NAAQS that occurs after redesignation. The contingency measures must include, at a minimum, a requirement that the State will implement all control measures contained in the nonattainment SIP prior to redesignation. Beyond these provisions, however, CAA section 175A does not define the content of a maintenance plan. Our primary guidance on maintenance plans and redesignation requests is a September 4, 1992 memo from John Calcagni, entitled “Procedures for Processing Requests to Redesignate Areas to Attainment” (“Calcagni memo”).
On August 9, 2001, EPA issued new guidance on streamlined maintenance plan provisions for certain moderate PM
To qualify for the LMP option, the area should be maintaining the NAAQS, and the average PM
As discussed below in Section IV.B.1, the State has demonstrated that the LMP option is appropriate for the Bullhead City nonattainment area.
The 1990 CAA Amendments revised section 107(d)(3)(E) to provide five specific requirements that an area must meet in order to be redesignated from nonattainment to attainment:
(1) The area must have attained the applicable NAAQS;
(2) The area has met all relevant requirements under section 110 and Part D of the Act;
(3) The area has a fully approved SIP under section 110(k) of the Act;
(4) The air quality improvement must be due to permanent and enforceable reductions; and,
(5) The area must have a fully approved maintenance plan pursuant to section 175A of the Act.
The Bullhead City nonattainment area contains the equivalent of about six townships within more than 200 square miles (40 CFR 81.303). Bullhead City is located in the east-central part. The existing Bullhead City nonattainment area is defined by the following townships:
Although the modeling domain of the nonattainment area extends into eastern portions of Clark County, Nevada, the actual nonattainment area only includes portions of Mohave County, Arizona.
The ADEQ has proposed shrinking the area to exclude the following 3 townships (108 square miles) in the east and south of the nonattainment area as defined in 40 CFR 81.303: T21N, R20W; T20N, R20W; and T19N, R21W. As a result, the nonattainment and maintenance area would be:
The State's rationale for shrinking the nonattainment area is that the land proposed for exclusion is undisturbed desert terrain, without industrial or commercial activity. A July 2001 field study confirmed this to be the case, and no development is anticipated in the foreseeable future. The majority of the three townships is Federal land managed by the Bureau of Land Management and State land managed by the Arizona State Land Department.
CAA Section 107(d)(3)(D) authorizes states to submit revised designations, and gives us authority to approve such redesignations if they do not interfere with the effectiveness or enforceability of the applicable SIP. Since the State has provided evidence that the excluded area will remain undisturbed desert for the foreseeable future, EPA approves the boundary revision.
Prior to adoption by the State, the plan received proper public notice and was the subject of a public hearing in Bullhead City on December 18, 2001.
a.
The Bullhead City area has one PM
b.
c.
1. During active construction projects on State roads, the Arizona Department of Transportation (ADOT) paved intersecting unpaved roads up to the State road alignment.
2. Mohave County paved unpaved parking areas and roadways, and added sidewalks, curbs, and gutters in Davis Camp Park.
3. ADOT paved shoulders and installed curbs along Arizona State Highway 95.
4. Mohave County paved 8.85 miles of roads that were unpaved in 1989. Bullhead City paved more than 12 miles of roads that were unpaved in 1989.
5. Bullhead City paved more than 12 miles of previously unpaved roads in 1989.
6. ADEQ implemented Arizona Administrative Code R18–2–607 that requires control of storage piles to minimize fugitive emissions.
Implementation of these measures helped bring the area into timely attainment of both the 24-hour and annual PM
In addition to these permanent or SIP enforceable controls, the following strategies are also employed in the Bullhead City area: ADOT established contract specifications requiring erosion control plans for State construction projects in PM
The Bullhead City plan includes emission inventories for 1999 to show emission levels in a recent, representative year during which there were no violations of the PM
The measures listed above in Section IV.A.2.c. reflect effective control for an important emissions category in the Bullhead City area: reentrained dust from traffic on paved and unpaved roads. These measures, along with the cessation of a singular construction project more than 10 years ago, were implemented expeditiously and have proven sufficient to prevent violations of the NAAQS over the past 10 years. We therefore conclude that the controls reflect RACM and we approve the plan as meeting the RACM provisions of CAA Section 189(a)(1)(C).
CAA Section 189(e) requires RACT provisions for gaseous precursors of PM
For the Bullhead City nonattainment area, ADEQ administers the preconstruction review and permitting provisions of Arizona Administrative Code, Title 18, Chapter 2, Articles 1, 3, 4, and 5. All new major sources and modifications to existing major sources are subject to the new source review (NSR) and prevention of significant deterioration (PSD) requirements of these rules. We have not yet fully approved the State's NSR rules but, for major sources and modifications of PM
Section 172(c)(5) requires NSR permits for the construction and operation of new and modified major stationary sources anywhere in nonattainment areas. We have determined that areas being redesignated from nonattainment to attainment do not need to comply with the requirement that an NSR program be approved prior to redesignation provided that the area demonstrates maintenance of the standard without part D nonattainment NSR in effect. The rationale for this decision is described in a memorandum from Mary Nichols dated October 14, 1994 (“Part D New Source Review (part D NSR) Requirements for Areas Requesting Redesignation to Attainment”). We have determined that the ADEQ maintenance demonstration for Bullhead City does not rely on nonattainment NSR and, therefore, the State need not have a fully approved nonattainment NSR program prior to approval of the redesignation request. The ADEQ's PSD program at 40 CFR 52.21 will become effective in the area with respect to PM
Section II.E. of the plan discusses how the area meets each of the LMP option criteria for use of this option.
First, the area should be attaining the NAAQS. Table III–2 of the plan summarizes quality assured ambient data showing that the Bullhead City area has continued to meet both the 24-hour and annual PM
Second, the design values for the past 5 years must be at or below the margin of safety levels identified in the LMP option. The annual average PM
Third, the area must meet the motor vehicle regional emissions analysis test in the LMP option. The calculated value is 18 ug/m
Therefore, the State has shown that the area qualifies for the streamlined maintenance plan provisions under the LMP option. We have concluded in Sections IV.A. that the plan submittal meets the moderate area plan provisions for emissions inventories, permanent and enforceable control measures, and maintenance of adequate monitoring. There is one remaining maintenance plan provision under the LMP option not previously discussed: contingency measures.
The maintenance plan must include contingency control measures which will go into effect automatically to correct any future violation of the NAAQS. These provisions must include a requirement that the State will implement all measures contained in the nonattainment area SIP. The August 9, 2000 LMP option memo states that the contingency measures do not have to be fully adopted at the time of redesignation.
ADEQ has included 9 contingency measures in the maintenance plan (
The State also committed to determine whether or not violations have been recorded within 6 months of the close of each calendar year, and to review and determine the appropriate contingency measure(s) by the end of the same calendar year. Finally, the State committed to implement the selected contingency measure(s) within 1 year of determining that a violation has occurred. We conclude that these measures and commitments meet the contingency measure provision of CAA Section 175A(d).
The area has attained the 24-hour standard when the average number of expected exceedances per year is less than or equal to one, when averaged over a three-year period. (40 CFR 50.6) To make this determination, three consecutive years of complete ambient air quality data were collected in accordance with Federal requirements (40 CFR part 58, including appendices).
As discussed above, there have been no recorded exceedances of either the annual or 24-hour PM
The Calcagni memo directs States to meet all of the applicable section 110 and part D planning requirements for redesignation purposes. EPA interprets the Act to require State adoption and EPA approval of the applicable programs under section 110 and part D that were due prior to the submittal of a redesignation request, before EPA may approve a redesignation request.
Section 110(a)(2) of the Act contains general requirements for nonattainment plans. These requirements include, but are not limited to, submittal of a SIP that has been adopted by the State after reasonable notice and public hearing, provisions for establishment and operation of appropriate apparatus, methods, systems, and procedures necessary to monitor ambient air quality, implementation of a permit program, provisions for Part C—Prevention of Significant Deterioration (PSD) and Part D—New Source Review (NSR) permit programs, criteria for stationary source emission control measures, monitoring and reporting, provisions for modeling, and provisions for public and local agency participation.
Part D includes additional provisions for nonattainment areas, listed generally in CAA section 172(c) and specifically for PM
For purposes of redesignation, the Arizona SIP was reviewed to ensure that all requirements under the Act were satisfied. The Arizona SIP was approved under section 110 of the Act as satisfying all applicable section 110 and Part D provisions. These approvals are codified in 40 CFR 52.123. We are approving the SIP with respect to the special Part D provisions for PM
We are approving in today's action the moderate area and maintenance plan for the Bullhead City Area, and confirming that the SIP meets other applicable provisions of the CAA.
The submittal shows that the improvements in air quality were not due to temporary economic downturn or unusually favorable meteorology (p. 14). On the contrary, economic growth has continued over the past 10 years since the area attained the NAAQS, and the area has experienced the full range of weather conditions in that period. As discussed above, attainment is the result of the cessation of unusual construction activities and the establishment of permanent and enforceable controls on fugitive dust emissions.
We are fully approving the maintenance plan, as allowed by the LMP guidance, in Section IV.B. above.
The transportation conformity rule and the general conformity rule apply to nonattainment areas and attainment areas with maintenance plans. Both rules provide that conformity can be demonstrated by showing that the expected emissions from planned actions are consistent with the emissions budget for the area.
Under the limited maintenance plan option, emissions budgets are treated as essentially not constraining for the length of the maintenance period because it is unreasonable to expect that qualifying areas would experience so much growth in that period that a NAAQS violation would result.
While areas with maintenance plans approved under the limited maintenance plan option are not subject to the budget test, the areas remain subject to other transportation conformity requirements of 40 CFR part 93, subpart A. Thus, the metropolitan planning organization (MPO) in the area or the State will still need to document and ensure that: (1) Transportation plans and projects provide for timely implementation of SIP transportation control measures (TCMs) in accordance with 40 CFR 93.113; (2) transportation plans and projects comply with the fiscal constraint element per 40 CFR 93.108; (3) the MPO's interagency consultation procedures meet applicable requirements of 40 CFR 93.105; (4) conformity of transportation plans is determined no less frequently than every three years, and conformity of plan amendments and transportation projects is demonstrated in accordance with the timing requirements specified in 40 CFR 93.104; (5) the latest planning assumptions and emissions model are used as set forth in 40 CFR 93.110 and 40 CFR 93.111; (6) projects do not cause or contribute to any new localized carbon monoxide or particulate matter violations, in accordance with procedures specified in 40 CFR 93.123; and (7) project sponsors and/or operators provide written commitments as specified in 40 CFR 93.125.
The adequacy review period for these SIP submissions is concurrent with the public comment period on this direct final rule. Because limited maintenance plans do not contain budgets, the adequacy review period for these maintenance plans serves to allow the public to comment on whether limited maintenance is appropriate for these areas. Interested parties may comment on the adequacy and approval of the limited maintenance plans by submitting their comments on the proposed rule published concurrently with this direct final rule.
Our action on the limited maintenance plans for these areas will also be announced on EPA's conformity Web site:
For Federal actions which are required to address the specific requirements of the general conformity rule, one set of requirements applies particularly to ensuring that emissions from the action will not cause or contribute to new violations of the NAAQS, exacerbate current violations, or delay timely attainment. One way that this requirement can be met is to demonstrate that “the total of direct and indirect emissions from the action (or portion thereof) is determined and
The decision about whether to include specific allocations of allowable emissions increases to sources is one made by the State and local air quality agencies. Such emissions budgets are unlike and not to be confused with those used in transportation conformity. Emissions budgets in transportation conformity are required to limit and restrain emissions. Emissions budgets in general conformity allow increases in emissions up to specified levels.
ADEQ has not chosen to include any specific emissions allocations for Federal projects that would be subject to the provisions of general conformity.
We are approving the boundary revision, the moderate area plan, and the maintenance plan for the Bullhead City Area, and we are redesignating the area from nonattainment to attainment for the 24-hour and annual PM
Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). This action merely approves State law as meeting Federal requirements and imposes no additional requirements beyond those imposed by State law.
Accordingly, the Administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
This rule also does not have tribal implications because it will not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified by Executive Order 13175 (65 FR 67249, November 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 merely approves a State rule implementing a Federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. This rule also is not subject to Executive Order 13045, “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), because it is not economically significant.
In reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. In this context, in the absence of a prior existing requirement for the State to use voluntary consensus standards (VCS), EPA has no authority to disapprove a SIP submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a SIP submission, to use VCS in place of a SIP submission that otherwise satisfies the provisions of the Clean Air Act. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
The Congressional Review Act, 5 U.S.C. section 801
Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by August 26, 2002. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (
Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Particulate matter, Reporting and recordkeeping requirements.
Environmental protection, Air pollution control, National parks, Wilderness areas.
42 U.S.C. 7401
(c) * * *
(103) The following plan was submitted on February 7, 2002, by the Governor's designee.
(i) Incorporation by reference.
(A) Arizona Department of Environmental Quality.
(1) Bullhead City Moderate Area PM
42 U.S.C. 7401
Environmental Protection Agency (EPA).
Final rule.
The EPA is granting Wisconsin final authorization of revisions to their hazardous waste program under the Resource Conservation and Recovery Act (RCRA). The Agency published a proposed rule on March 1, 2002 at 67 FR 9427 and provided for public comment. The public comment period ended on April 1, 2002. We received two comments, addressed below. The Agency had also published an immediate final rule on March 1, 2002, granting Wisconsin authorization for the revisions to their RCRA Program, subject to public comment; but withdrew that immediate final rule on April 22, 2002, so that it could respond to the comments before the rule went into effect. EPA is authorizing the State's changes through this final action. After reviewing the comments, we hereby determine that Wisconsin's hazardous waste program revisions satisfies all requirements necessary to qualify for final authorization. No further opportunity for comment will be provided.
Final authorization for the revisions to Wisconsin's hazardous waste management program shall be effective on June 26, 2002.
Ms. Jean Gromnicki, Wisconsin Regulatory Specialist, U.S. Environmental Protection Agency, Waste, Pesticides and Toxics Division (DM–7J), 77 West Jackson Boulevard, Chicago, Illinois 60604, phone number: (312) 886–6162; or Ms. Patricia Chabot, Wisconsin Department of Natural Resources, 101 North Webster, Madison, Wisconsin, 53707, phone: (608) 264–6015.
States which have received final authorization from EPA under RCRA section 3006(b), 42 U.S.C. 6926(b), must maintain a hazardous waste program that is equivalent to, consistent with and no less stringent than the Federal Program. As the Federal program changes, States must change their programs and ask EPA to authorize the changes. Changes to State programs may be necessary when Federal or State statutory or regulatory authority is modified or when certain other changes occur. Most commonly, States must change their programs because of changes to EPA's regulations in 40 Code of Federal Regulations (CFR) parts 124, 260 through 266, 268, 270, 273 and 279.
A commenter from the State of Washington submitted a comment alleging that EPA: (1) Should have hosted a public hearing; and (2) should have reviewed Wisconsin Chapter NR 538 on land application of nonhazardous waste. Noting that RCRA covers both solid and hazardous waste management, the commenter asks EPA to “include a review of Chapter NR 538 for consistency with Wisconsin's statutes prior to approval of Wisconsin's application for final RCRA authorization.” For the reasons discussed below, this authorization action is not the appropriate forum for these comments.
EPA is authorizing Wisconsin for a revision to its program, and is not required to hold a hearing for a revision. Wisconsin, which received final authorization for its RCRA program on January 31, 1986, is applying for a revision to its already authorized program to reflect revisions that have been made to the Federal RCRA Subtitle C program. The regulations governing review of program revisions at 40 CFR part 271 do not require a hearing for authorization of revisions. On March 4, 1986, EPA promulgated amendments to 40 CFR 271.21 that eliminated public hearing requirements for revisions. In the preamble, the Agency discussed this change:
As discussed in the proposal, the new procedures do not require public
51
The comment regarding Chapter NR 538 of the Wisconsin Administrative Code is not relevant to this action because: (1) EPA is not authorizing Chapter NR 538, which explicitly excludes hazardous wastes from its application; (2) that Chapter does not affect the hazardous waste regulations, and (3) EPA's review of this application does not extend to that Chapter's consistency with Wisconsin law.
This action authorizes certain state hazardous waste regulations under subchapter III of RCRA. The regulations EPA is authorizing in this action do not include Chapter NR 538, which pertains to land application of non-hazardous waste.
Chapter NR 538 does not affect the regulations EPA is authorizing in this action. By its terms, that chapter does not apply to hazardous wastes:
NR 538.02 Applicability. (1) Except as otherwise provided, this chapter governs the beneficial use of industrial byproducts,
While both solid waste and its subset hazardous waste are regulated under the umbrella of the Resource Conservation and Recovery Act (RCRA), that statute contains different subchapters for governing the content, criteria and administration of hazardous waste programs and solid waste plans. Subchapter III of RCRA governs hazardous waste management. EPA's authority to “authorize” a state to administer and enforce a “hazardous waste program” under subchapter III of RCRA (
For the reasons set forth above the comment on Wisconsin Administrative Code Chapter NR 538 is not relevant to this action.
We conclude that Wisconsin's application to revise its authorized program meets all of the statutory and regulatory requirements established by RCRA. Therefore, we are granting Wisconsin Final authorization to operate its hazardous waste program with the changes described in the authorization application. Wisconsin has responsibility for permitting Treatment, Storage and Disposal Facilities (TSDFs) within its borders (except in Indian Country) and for carrying out the aspects of the RCRA program described in its revised program application, subject to the limitations of the Hazardous and Solid Waste Amendments of 1984 (HSWA). New Federal requirements and prohibitions imposed by Federal regulations that EPA promulgates under the authority of HSWA take effect in authorized States before they are authorized for the requirements. Thus, EPA will implement those requirements and prohibitions in Wisconsin, including issuing permits, until the State is granted authorization to do so.
The effect of this decision is that a facility in Wisconsin subject to RCRA will now have to comply with the authorized State requirements instead of the equivalent Federal requirements in order to comply with RCRA. Additionally, such persons must comply with any applicable Federally-issued requirements, such as, for example, HSWA regulations issued by EPA for which the State has not received authorization, and RCRA requirements that are not supplanted by authorized state-issued requirements. Wisconsin continues to have enforcement responsibilities under its state hazardous waste program for violation of such program, but EPA retains its authority under RCRA sections 3007, 3008, 3013, and 7003, which include among others, authority to:
A. Do inspections, and require monitoring, tests, analyses or reports.
B. Enforce RCRA requirements and suspend or revoke permits.
C. Take enforcement actions regardless of whether the State has taken its own actions.
This action does not impose additional requirements on the regulated community because the regulations for which Wisconsin is being authorized by today's action are already effective, and are not changed by today's action.
Wisconsin initially received Final Authorization on January 30, 1986, effective January 31, 1986 (51
On November 5, 2001, Wisconsin submitted a final complete program revision application seeking authorization of their changes in accordance with 40 CFR 271.21. We now make a final decision, that Wisconsin's hazardous waste program revisions satisfies all of the requirements necessary to qualify for Final authorization. Therefore we grant Wisconsin Final authorization for the following program changes:
Wisconsin has proposed specific parts of Federal Regulation to be more stringent than Federal requirements. These requirements are part of Wisconsin's authorized program and are federally enforceable.
Wisconsin will issue permits for all the provisions for which it is authorized and will administer the permits it issues. EPA will continue to administer any RCRA hazardous waste permits or portions of permits which we issued prior to the effective date of this authorization until they expire or are terminated. We will not issue any more new permits or new portions of permits for the provisions listed in the Table above after the effective date of this authorization. EPA will continue to implement and issue permits for HSWA requirements for which Wisconsin is not yet authorized.
Wisconsin is not authorized to carry out its hazardous waste program in Indian country within the State, as defined in 18 U.S.C. 1151. This includes:
1. All lands within the exterior boundaries of Indian reservations within or abutting the State of Wisconsin;
2. Any land held in trust by the U.S. for an Indian tribe; and
3. Any other land, whether on or off an Indian reservation that qualifies as Indian country. Therefore, this action has no effect on Indian country. EPA will continue to implement and administer the RCRA program in Indian country.
Codification is the process of placing the State's statutes and regulations that comprise the State's authorized hazardous waste program into the Code of Federal Regulations. We do this by referencing the authorized State Rules in 40 CFR part 272. We reserve the amendment of 40 CFR part 272, subpart YY for this authorization of Wisconsin's program changes until a later date.
The Office of Management and Budget (OMB) has exempted RCRA authorizations from the requirements of Executive Order 12866 (58 FR 51735, October 4, 1993), and therefore, a decision to authorize Wisconsin for these revisions is not subject to review by OMB. Furthermore, this rule is not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001) because it is not a significant regulatory action under Executive Order 12866. This action authorizes State requirements for the purpose of RCRA 3006 and imposes no additional requirements beyond those imposed by State law. This authorization will effectively suspend the applicability of certain Federal regulations in favor of Wisconsin's program, thereby eliminating duplicative requirements for handlers of hazardous waste in the State. Authorization will not impose any new burdens on small entities. Accordingly, I certify that these revisions will not have a significant economic impact on a substantial number of small entities under the Regulator Flexibility Act (5 U.S.C. 601
Under RCRA 3006(b), EPA grants a State's application for authorization as long as the State meets the criteria required by RCRA. It would thus be inconsistent with applicable law for EPA, when it reviews a State authorization application, to require the use of any particular voluntary consensus standard in place of another standard that otherwise satisfies the requirements of RCRA. 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. As required by section 3 of Executive Order 12988 (61 FR 4729, February 7, 1996) in issuing this rule, EPA has taken the necessary steps to eliminate drafting errors and ambiguity, minimize potential litigation, and provide a clear legal standard for affected conduct. EPA has complied with Executive Order 12630 (53 FR 8859, March 15, 1988) by examining the takings implications of the rule in accordance with any Attorney General's Supplemental Guidelines for the Evaluation of Risk and Avoidance of Unanticipated Takings issued under the Executive Order. A decision to authorize Wisconsin's revisions will 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
Environmental protection, Administrative practice and procedure, Confidential business information, Hazardous waste, Hazardous waste transportation, Indian lands, Intergovernmental relations, Penalties, Reporting and recordkeeping requirements.
This Action is issued under the authority of sections 2002(a), 3006 and 7004(b) of the Solid Waste Disposal Act as amended 42 U.S.C. 6912(a), 6926, 6974(b).
Federal Communications Commission.
Final rule.
In this document, the Commission addresses petitions for reconsideration and establishes technical, service and licensing rules for Multichannel Video Distribution and Data Service (MVDDS) in the 12 GHz band. MVDDS will facilitate the delivery of new communications services, such as video and broadband
Effective August 26, 2002, except for §§ 25.139, 101.103, 101.1403, 101.1413, 101.1417 and 101.1440 which contain information collection requirements that have not been approved by OMB. Written comments by the public on the new or modified information collections are due August 26, 2002. Written comments must be submitted by the OMB on the new or modified information collections on or before October 25, 2002. The Federal Communications Commission will publish a document in the
For MVDDS/Direct Broadcast Satellite (DBS) and MVDDS/non-geostationary satellite orbit (NGSO) fixed-satellite services (FSS) sharing issues, contact the Office of Engineering and Technology “ Thomas Derenge at (202) 418–2451, Gary Thayer at (202) 418–2290 or Ira Keltz at (202) 418–0616. For MVDDS service rules, contact the Wireless Telecommunications Bureau “ Michael Pollak, Jennifer Burton, or Brian Wondrack at (202) 418–0680, TTY (202) 418–7233.
This is a summary of the Federal Communications Commission's
1. This
• Whether the new or modified collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility.
• The accuracy of the Commission's burden estimates.
• Ways to enhance the quality, utility, and clarity of the information collected.
• Ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology.
Written comments by the public on the new or modified information collections are due August 26, 2002. Written comments must be submitted by the OMB on the new or modified information collections on or before October 25, 2002. In addition to filing comments with the Secretary, a copy of any comments on the information collections contained herein should be submitted to Judith B. Herman, Federal Communications Commission, Room 1–C804, 445 12th Street, SW., Washington, DC 20554, or via the Internet to
1. In this
• We find that the Commission provided clear notice that the Commission was considering authorizing MVDDS in the 12 GHz band in the
• The MVDDS authorization complies with the provisions, and fosters the goals, of the
• The technical rules and regulatory safeguards we are adopting in the
• The Commission's decision to authorize MVDDS in the 12 GHz band was carefully considered and rationally explained based upon all of the available information in the record.
• The technical rules we are establishing for MVDDS operation are technologically neutral because they do not specify a particular equipment configuration or methodology, proprietary or not, that must be used within the fixed terrestrial MVDDS service.
• The Commission's decision to authorize MVDDS in the 12 GHz band does not violate International Telecommunication Union (ITU) recommendations and constitutes an appropriate exercise of domestic regulatory authority.
• We deny the petitions for reconsideration with respect to the Commission's decision to authorize MVDDS in the 12 GHz band.
• We find to be substantively without merit, and dismiss on our own motion as procedurally untimely, a “Petition for Consolidation of Rulemaking Proceedings and for a Declaration that Alternative Spectrum is Suitable for the Proposed Multichannel Video Distribution and Data Service,” which seeks to disallow MVDDS operation in the 12.2–12.7 GHz band and instead seeks consideration of alternative spectrum in the 12.7–13.25 GHz Cable Television Relay Service (CARS) band or the 2500–2690 MHz Multichannel Multipoint Distribution Service (MMDS) in the context of two other rule making proceedings.
• We will require an MVDDS operator to operate with a maximum power limit of 14 dBm per 24 megahertz Effective Isotropic Radiated Power (EIRP).
• We specify an equivalent power flux density (EPFD) limit for each of four regions across the United States. The regions and corresponding EPFD limits are: East: –168.4 dBW/m
• Using a prescribed methodology and a predictive model to calculate EPFD values, we used a criterion that would limit the amount of increased BSS unavailability due to the presence of MVDDS to ten percent over a baseline level of BSS unavailability. The unavailability allowance ascribed to MVDDS is in addition to the unavailability allowance ascribed to NGSO FSS operations in the 12.2–12.7 GHz band.
• MVDDS must site and design its transmitting antennas to avoid causing harmful interference to existing DBS customers.
• We will require the MVDDS operator to ensure that the prescribed EPFD limits are not exceeded at any DBS customer of record location. If the EPFD limits are exceeded, the MVDDS operator will be required to discontinue service until such time that the limits can be met.
• To promote MVDDS and NGSO FSS band sharing, MVDDS signals shall not exceed a power flux density (PFD) of −135dBW/m
• We adopt a minimum MVDDS transmitting antenna spacing of 10 km from pre-existing NGSO FSS receive antennas with the option for NGSO FSS licensee agreement to accept shorter spacing. We also conclude that NGSO FSS receivers must accept any interference from pre-existing MVDDS transmitting antennas.
• We adopt basic information sharing and coordination requirements that MVDDS and NGSO FSS operators must follow to facilitate mutual sharing of the 12 GHz band as co-primary services.
• We adopt MVDDS emission mask values for protecting NGSO FSS operations in the adjacent 11.7–12.2 GHz band and CARS and Broadcast Auxiliary Service (BAS) operations in the adjacent 12.7–13.25 GHz band from out-of-band MVDDS emissions.
• We adopt low elevation angle PFD radiation limits on NGSO FSS operations that will afford protection to MVDDS receivers from NGSO FSS interference for the portion of the non-geostationary orbital path near the horizon.
• We dismiss, without prejudice, all applications for terrestrial use of the 12 GHz band. All interested parties may reapply under the new licensing rules established in this proceeding.
• We adopt a geographic area licensing scheme that permits the filing of mutually exclusive applications. Consistent with our statutory mandate to resolve such applications through the use of auctions, any mutually exclusive initial applications for the MVDDS service will be resolved by competitive bidding.
• We find that the ORBIT Act does not bar the assignment of licenses for MVDDS in the 12.2–12.7 GHz band by competitive bidding.
• We adopt our proposal to auction MVDDS licenses in conformity with the general competitive bidding rules set forth in Part 1, Subpart Q, of the Commission's Rules.
• We adopt three small business definitions and three levels of bidding credits for MVDDS. We define a very small business as an entity with average annual gross revenues not exceeding $3 million for the preceding three years; a small business as an entity with average annual gross revenues not exceeding $15 million for the preceding three years; and an entrepreneur as an entity with average annual gross revenues not exceeding $40 million for the preceding three years. Very small businesses will receive a bidding credit of 35 percent, small businesses will receive a bidding credit of 25 percent, and entrepreneurs will receive a bidding credit of 15 percent.
• We decline to adopt a set-aside of MVDDS spectrum or special bidding credits for DBS licensees.
• We decline to adopt a prohibition against transfers of MVDDS licenses.
• We adopt geographic license service areas for MVDDS on the basis of Component Economic Areas (CEAs).
• We adopt a channel plan consisting of one spectrum block of 500 megahertz per service area.
• We permit fixed one-way operations, but exclude mobile and aeronautical operations. Permissible operations include the flexibility for two-way services whereby the 12 GHz band could be used for the downstream path, and any upstream (or return) path could be located in other spectrum or over a wireline.
• We decline to adopt must-carry rules.
• We require incumbent non-public safety Private Operational Fixed Service (POFS) licensees in the 12 GHz band to protect MVDDS and NGSO FSS operations.
• We require MVDDS and NGSO FSS operations to protect incumbent traditional public safety POFS licensees in the 12 GHz band.
• We suspend the acceptance of POFS applications for new licenses, amendments to applications for new and modified licenses and major modifications to existing licenses.
• We decline to permit dominant cable operators from acquiring an attributable interest in an MVDDS license for a service area where significant overlap is present.
• We adopt a ten-year license term for MVDDS, beginning on the date of the initial authorization grant, and adopt a renewal expectancy based on the substantial service requirement.
• We restrict the placement of transmitting systems near the Canadian and Mexican borders.
2. As required by the Regulatory Flexibility Act of 1980, as amended (RFA), an Initial Regulatory Flexibility Analysis (IRFA) was incorporated in the Amendment of Parts 2 and 25 of the Commission's Rules to Permit Operation of NGSO FSS Systems Co-Frequency with GSO and Terrestrial Systems in the Ku-Band Frequency Range; Amendment of the Commission's Rules to Authorize Subsidiary Terrestrial Use of the 12.2–12.7 GHz Band by Direct Broadcast Satellite Licensees and Their Affiliates; and Applications of Broadwave USA, PDC Broadband Corporation, and Satellite Receivers, Ltd. to Provide A Fixed Service in the 12.2–12.7 GHz Band,
3. By this action, Multichannel Video Distribution and Data Service (MVDDS) providers will share the 12.2–12.7 GHz band with new NGSO FSS operators on a co-primary basis and on a non-harmful interference basis with incumbent direct broadcast satellite (DBS) providers. The objective of this
4. Although we did not receive any comments in direct response to the IRFA, commenters suggested approaches that would foster participation in the MVDDS service by smaller entities. For instance, several commenters favored allowing MVDDS licensees to partition their geographic service areas into smaller areas. In addition, the Rural Telecommunications Group (RTG) suggested the use of smaller service areas—Metropolitan Statistical Areas (MSAs), Rural Service Areas (RSAs) or Component Economic Areas (CEAs)—to facilitate opportunities for small and rural carriers to obtain MVDDS licenses and to ensure that rural regions benefit from the 12.2–12.7 GHz band. Likewise, Pegasus supported licensing MVDDS on the basis of basic trading areas (BTAs) and major trading areas (MTAs) because the population served would be smaller and the cost of licenses likely lower, thus providing greater economic opportunity for a wider variety of applicants. Thus, the need to establish opportunities for smaller entities to have access to MVDDS spectrum was a sentiment expressed by various commenters in the MVDDS rule making proceeding.
5. The RFA directs agencies to provide a description of, and, where feasible an estimate of, the number of small entities that may be affected by the rules adopted herein. The RFA generally defines the term “small entity” as having the same meaning as the terms “small business,” “small organization,” and “small governmental jurisdiction.” In addition, the term “small business” has the same meaning as the term “small business concern” under the Small Business Act. A small business concern is one which: (1) is independently owned and operated; (2) is not dominant in its field of operation; and (3) satisfies any additional criteria established by the Small Business Administration (SBA).
6.
7.
8. The Communications Act defines a small cable system operator as “a cable operator that, directly or through an affiliate, serves in the aggregate fewer than one percent of all subscribers in the United States and is not affiliated with any entity or entities whose gross annual revenues in the aggregate exceed $250,000,000.” The Commission has determined that there are 61,700,000 subscribers in the United States. Therefore, an operator serving fewer than 617,000 subscribers shall be deemed a small operator under the Communications Act definition, if its annual revenues, when combined with the total annual revenues of all of its affiliates, do not exceed $250 million in the aggregate. Based on available data, we find that the number of cable operators serving 617,000 subscribers or less totals approximately 1450. Although it seems certain that some of these cable system operators are affiliated with entities whose gross annual revenues exceed $250,000,000, we are unable at this time to estimate with greater precision the number of cable system operators that would qualify as small cable operators under the definition in the Communications Act.
9.
10.
11.
12. The rules set forth in this
13. Additionally, in the
14. Applicants for MVDDS licenses are required to submit an FCC Form 175 short-form application prior to the auction, and auction winners will be required to file an FCC Form 601 license application. Additionally, we will apply the Part 101 rules governing reporting requirements to MVDDS systems. Specifically, each MVDDS licensee is required to file with the Commission two copies of a report no later than March 1 of each year for the preceding calendar year, which must include the following: (a) name and address of licensee; (b) station(s) call letters and primary geographic service area(s); and (c) the following statistical information for the licensee's station (and each channel thereof): (i) the total number of separate subscribers served during the calendar year; (ii) the total hours of transmission service rendered during the calendar year to all subscribers; (iii) the total hours of transmission service rendered during the calendar year involving the transmission of local broadcast signals; and (iv) a list of each period of time during the calendar year in which the station rendered no service as authorized, if the time period was a consecutive period longer than forty-eight hours. In addition, we require each MVDDS licensee to file actual data on cases of harmful interference to DBS operations and measures taken to alleviate such interference. We believe that the information compiled in this report will assist us in analyzing trends and competition in the marketplace.
15. The RFA requires an agency to describe any significant alternatives that it has considered in reaching its approach, which may include the following four alternatives: (1) The establishment of differing compliance or reporting requirements or timetables that take into account the resources available to small entities; (2) the clarification, consolidation, or simplification of compliance or reporting requirements under the rule for small entities; (3) the use of performance, rather than design, standards; and (4) an exemption from coverage of the rule, or any part thereof, for small entities.
16. We have taken significant steps to reduce burdens on small entities wherever possible. To provide opportunities for small entities to participate in any auction that is held, we provide bidding credits for entrepreneurs, small businesses, and very small businesses as defined in section C of this FRFA. The bidding credits adopted are 15 percent for entrepreneurs, 25 percent for small businesses, and 35 percent for very small businesses. Our decision to adopt CEAs as service areas for MVDDS and to permit the partitioning of these service areas is also intended to provide small entities an opportunity to acquire licenses. There are currently 348 CEAs and we believe that the use of these service areas will encourage smaller business entities to participate in the MVDDS auction. Participation in the MVDDS auction by smaller business entities would foster the buildout of services to local and/or rural areas which are traditionally deemed underserved or unserved. The regulatory burdens we have retained are necessary in order to ensure that the public receives the benefits of innovative new services in a prompt and efficient manner. We will continue to examine alternatives in the future with the objectives of eliminating unnecessary regulations and minimizing any significant economic impact on small entities.
17. None.
18.
19.
20.
21.
22.
23.
24.
25.
26.
27.
28.
Communications common carriers, Communications equipment, Radio, Reporting and recordkeeping requirements, Satellites, Securities, and Telecommunications.
Communications equipment, Radio, and Reporting and recordkeeping requirements.
47 U.S.C. 701–744. Interprets or applies sec. 303.47 U.S.C. sections 154, 301, 302, 303, 307, 309, and 332, unless otherwise noted.
(a) NGSO FSS licensees shall maintain a subscriber database in a format that can be readily shared with MVDDS licensees for the purpose of determining compliance with the MVDDS transmitting antenna spacing requirement relating to qualifying existing NGSO FSS subscriber receivers set forth in § 101.129 of this chapter.
(b) Within ten business days of receiving notification of the location of a proposed MVDDS transmitting antenna, the NGSO FSS licensee shall provide sufficient information from the database to enable the MVDDS licensee to determine whether the proposed MVDDS transmitting site meets the minimum spacing requirement.
(c) If the location of the proposed MVDDS transmitting antenna site does not meet the separation requirements of § 101.129 of this chapter, then the NGSO FSS licensee shall also indicate to the MVDDS licensee within the same ten day period specified in paragraph (b) of this section whether the proposed MVDDS transmitting site is acceptable at the proposed location.
(d) Nothing in this section shall preclude NGSO FSS and MVDDS licensees from entering into an agreement to accept MVDDS transmitting antenna locations that are shorter-spaced from existing NGSO FSS subscriber receivers than the distance set forth in § 101.129 of this chapter.
(n) In the band 12.2–12.7 GHz, for NGSO FSS space stations, the low-angle power flux-density at the Earth's surface produced by emissions from a space station for all conditions and for all methods of modulation shall not exceed the lower of the following values:
(1) 158 dB(W/m
(2) 158+ 3.33(δ-2) dB(W/m
These limits relate to the power flux density, which would be obtained under assumed free-space propagation conditions.
47 U.S.C. 154, 303.
(f) (1)
(i) Name of MVDDS licensee;
(ii) Geographic location (including NAD83 coordinates) of proposed MVDDS transmitting antenna;
(iii) Maximum EIRP per 24 MHz;
(iv) Height above average terrain of the transmitting antenna;
(v) Type of antenna to be utilized;
(vi) Main beam azimuth and altitude orientation for the proposed transmitting antenna;
(vii) Theoretically modeled antenna radiation pattern;
(viii) Type(s) of emissions, and;
(ix) Description of the proposed service area.
(2) If the proposed MVDDS antenna site does not meet the minimum spacing requirements on the date of original notification or on subsequent annual anniversary dates of non-operation as set forth in § 101.129, then the MVDDS licensee shall not construct the proposed transmission facility unless all NGSO FSS licensees having active subscribers within the minimum separation distance agree to a shorter spacing. Nothing in this section shall preclude MVDDS and NGSO FSS licensees from agreeing to accept the siting of new MVDDS transmitting antennas that do no meet the minimum distance set forth in § 101.129. Incumbent point-to-point licensees'
(a) * * *
(4) 12.2–12.7 GHz band.
(i) To accommodate co-primary NGSO FSS earth stations in the 12.2–12.7 GHz band, the PFD of an MVDDS transmitting system must not exceed −135 dBW/m
(ii) To accommodate co-primary Direct Broadcast Satellite Service earth stations, an MVDDS transmitting system must not exceed the EPFD levels specified in the appropriate region below at any DBS subscriber location in accordance with the procedures listed in § 101.1440.
(A) 168.4 dBW/m
(B) 169.8 dBW/m
(C) 171.0 dBW/m
(D) 172.1 dBW/m
(iii) Except for public safety entities, harmful interference protection from MVDDS stations to incumbent point-to-point 12 GHz fixed stations is not required. Incumbent point-to-point private operational fixed 12 GHz stations, except for public safety entities, are required to protect MVDDS stations under the process described in § 101.103(d).
(5) All stations operating under this part must protect the radio quiet zones as required by § 1.924 of this chapter. Stations authorized by competitive bidding are cautioned that they must receive the appropriate approvals directly from the relevant quiet zone entity prior to operating.
(a) * * *
(c) * * *
B = Authorized bandwidth in MHz. MVDDS operations in the 12.2–12.7 GHz band shall use 24 megahertz for the value of B in the emission mask equation set forth in this section.
(a) * * *
(c) ***
(b) In the 12.2–12.7 GHz band, licensees must not locate MVDDS transmitting antennas within 10 km of
(1) A qualifying NGSO FSS receiver, for the purposes of this section, is deemed to be one that is in regular use by an NGSO FSS subscriber for normal reception purposes in the 12.2–12.7 GHz band and not one for monitoring or testing purposes. In addition, qualifying receivers must either be in operation on the date or already be under construction and then operating within thirty days of the date that the MVDDS licensee notifies the NGSO FSS licensee of its intent to construct a new MVDDS transmitting antenna at a specified location.
(2) Except as provided in paragraph (b)(3) of this section, the 10 kilometer spacing requirement for each MVDDS transmitting antenna site shall not apply with respect to NGSO FSS receivers that might be installed or become operational (except for those under construction and operating within thirty days as specified in paragraph (b)(1) of this section) subsequent to the original date that the MVDDS licensee provided notice of its intention to construct a given transmission facility.
(3) In the event that a proposed MVDDS transmitting antenna for which notice has been duly given to the NGSO FSS licensees has not been placed in normal operation within one calendar year of the date of notice, then the MVDDS licensee loses the benefit of the original notice. Upon such anniversary, the MVDDS licensee must re-determine compliance with the minimum 10 kilometer spacing requirement based upon locations of qualifying NGSO FSS receivers on that anniversary date. A new determination of compliance with the spacing requirement shall be made for each succeeding anniversary of non-operation for each proposed MVDDS transmission site or additional antenna. This provision contemplates that failure to commence normal operation at a given MVDDS transmitting antenna site within one year of the date of NGSO FSS notification may require successive relocations of the proposed transmitter site in order to meet the minimum spacing distance as determined on each anniversary of non-operation.
(a) * * * Transmitters designed for use in the 31.0–31.3 GHz band and transmitters designed for MVDDS use in the 12,200–12,700 MHz band will be authorized under the verification procedure.
(a) Microwave transmitters employing digital modulation techniques and operating below 19.7 GHz (except for MVDDS stations in the 12,200–12,700 MHz band) must, with appropriate multiplex equipment, comply with the following additional requirements:
(a) * * *
(31) This frequency band can be used for Multichannel Video Distribution and Data Service (MVDDS) shared with Direct Broadcast Satellite (DBS) Services on a co-primary non-harmful interference basis and on a co-primary basis with NGSO FSS satellite earth stations. Incumbent private operational fixed point-to-point licensees can also use these frequencies on a site by site basis.
(p) 12,000–12,700 MHz. The Commission has allocated the 12.2–12.7 GHz band for use by the Direct Broadcast Satellite Service (DBS), the Multichannel Video Distribution and Data Service (MVDDS), and the Non-Geostationary Satellite Orbit Fixed Satellite Service (NGSO FSS). MVDDS shall be licensed on a non-harmful interference co-primary basis to existing DBS operations and on a co-primary basis with NGSO FSS stations in this band. MVDDS use can be on a common carrier and/or non-common carrier basis and can use channels of any desired bandwidth up to the maximum of 500 MHz provided the EIRP does not exceed 14 dBm per 24 megahertz. Private operational fixed point-to-point microwave stations authorized after September 9, 1983, are licensed on a non-harmful interference basis to DBS and are required to make any and all adjustments necessary to prevent harmful interference to operating domestic DBS receivers. Incumbent public safety licensees shall be afforded protection from MVDDS and NGSO FSS licensees, however all other private operational fixed licensees shall be secondary to DBS, MVDDS and NGSO FSS licensees. As of May 23, 2002, the Commission no longer accepts applications for new licenses for point-to-point private operational fixed stations in this band, however, incumbent licensees and previously filed applicants may file applications for minor modifications and amendments (as defined in § 1.929 of this chapter) thereto, renewals, transfer of control, or assignment of license. Notwithstanding any other provisions, no private operational fixed point-to-point microwave stations are permitted to cause harmful interference to broadcasting-satellite stations of other countries operating in accordance with the Region 2 plan for the Broadcasting-Satellite Service established at the 1983 WARC.
(q) Special provisions for incumbent low power, limited coverage systems in the band segments 12.2–12.7 GHz.
(1) As of May 23, 2002, the Commission no longer accepts applications for new stations in this service and incumbent stations may remain in service provided they do not cause harmful interference to any other primary services licensed in this band as described in paragraph (p) of this section. However, incumbent licensees and previously filed applicants may file applications for minor modifications and amendments (as defined in § 1.929 of this chapter) thereto, renewals, transfer of control, or assignment of license.
(2) Prior to December 8, 2000, notwithstanding any contrary provisions in this part, the frequency pairs 12.220/12.460 GHz, 12.260/12.500 GHz, 12.300/12.540 GHz and 12.340/12.580 GHz, were authorized for low power, limited coverage systems subject to the following provisions:
(i) Maximum equivalent isotropically radiated power (EIRP) shall be 55 dBm;
(ii) The rated transmitter output power shall not exceed 0.5 watts;
(iii) Frequency tolerance shall be maintained to within 0.01 percent of the assigned frequency;
(iv) Maximum beamwidth shall not exceed 4 degrees. However, the sidelobe suppression criteria contained in § 101.115 shall not apply, except that a minimum front-to-back ratio of 38 dB shall apply;
(v) Upon showing of need, a maximum bandwidth of 12 MHz may be authorized per frequency assigned;
(vi) Radio systems authorized under the provisions of this section shall have
(vii) Interfering signals at the receiver antenna terminals of stations authorized under this section shall not exceed –90 dBm and –70 dBm respectively, for co-channel and adjacent channel interfering signals, and
(viii) Stations authorized under the provisions of this section shall provide the protection from interference specified in § 101.105 to stations operating in accordance with the provisions of this part.
* * * This subpart shall not apply to stations offering MVDDS in the 12.2–12.7 GHz band.
Multichannel Video Distribution and Data Service (MVDDS) is licensed on the basis of Component Economic Areas (CEAs). CEAs are based on Economic Areas delineated by the United States Department of Commerce. Each CEA consists of a single economic node and the surrounding counties that are economically related to the node. The United States has a total of 348 CEAs, and each CEA shall be licensed by auction to one licensee.
MVDDS licensees are not required to provide all local television channels to subscribers within its area and thus are not required to comply with the must-carry rules, nor the local signal carriage requirements of the
Each license shall have one spectrum block of 500 megahertz per geographic area that can be divided into any size channels. Disaggregation is not allowed.
MVDDS licensees must use spectrum in the 12.2–12.7 GHz band for any digital fixed non-broadcast service (broadcast services are intended for reception of the general public and not on a subscribership basis) including one-way direct-to-home/office wireless service. Mobile and aeronautical services are not authorized. Two-way services may be provided by using other spectrum or media for the return or upstream path.
Terrestrial private operational fixed point-to-point licensees in the 12.2–12.7 GHz band which were licensed prior to MVDDS or NGSO FSS satellite stations are incumbent point-to-point stations and are not entitled to protection from harmful interference caused by later MVDDS or NGSO FSS entrants in the 12.2–12.7 GHz band, except for public safety stations which must be protected. MVDDS and NGSO FSS operators have the responsibility of resolving any harmful interference problems that their operations may cause to these public safety incumbent point-to-point operations in the 12.2–12.7 GHz band. Incumbent public safety terrestrial point-to-point licensees may only make minor changes to their stations without losing this protection. This does not relieve current point-to-point licensees of their obligation to protect BSS operations in the subject frequency band. All point-to-point applications, including low-power operations, for new licenses, major amendments to pending applications, or major modifications to existing licenses for the 12.2–12.7 GHz band are no longer accepted except for renewals and changes in ownership. See § 1.929 of this chapter for definitions of major and minor changes.
(a) MVDDS licensees are permitted to provide one-way video programming and data services on a non-common carrier and/or on a common carrier basis. MVDDS is not required to be treated as a common carrier service unless it is providing non-Internet voice and data services through the public switched network.
(b) MVDDS licensees in the 12.2–12.7 GHz band are subject to the requirements set forth in § 101.7.
(c) Any entity, other than one precluded by §§ 101.7 and 101.1412, is eligible for authorization to provide MVDDS under this part. Authorization will be granted upon proper application filing in accordance with the Commission's rules.
(a) Eligibility for MVDDS license. No cable operator, nor any entity owning an attributable interest in a cable operator, shall have an attributable interest in an MVDDS license whose geographic service area significantly overlaps such cable operator's service area, as defined in paragraph (d) of this section.
(b) Definition of cable operator. For the purposes of paragraph (a) of this section, the term “cable operator” means a company that is franchised to provide cable service.
(c) Waiver of restriction. Upon completion of the initial award of MVDDS licenses, a cable operator may petition for a waiver of the restriction on eligibility based upon a showing that the petitioner no longer has market power in its service area as the result of the entry of new competitors, other than an MVDDS licensee, into such service area.
(d) Significant overlap with service area. For purposes of paragraph (a) of this section, significant overlap occurs when cable operator's subscribers in a CEA make up thirty-five percent or more of the households in that CEA.
(e) Definition of attributable interest. For purposes of paragraph (a) of this
(1) A controlling interest shall constitute an attributable interest. Controlling interest means majority voting equity ownership, any general partnership interest, or any means of actual working control (including negative control) over the operation of the entity, in whatever manner exercised.
(2) Any general partnership interest in a partnership;
(3) Partnership and similar ownership interests (including limited partnership interests) amounting to 20 percent or more of the total partnership interests, calculated according to both the percentage of equity paid in and the percentage of distribution of profits and losses;
(4) Any stock interest amounting to 20 percent or more of the outstanding voting stock of an entity;
(5) Any stock interest, (including non-voting stock) amounting to 20 percent or more of the total outstanding stock of an entity;
(6) Stock interests held in trust that exceed the limit set forth in paragraph (e) of this section shall constitute an attributable interest of any person who holds or shares the power to vote such stock, of any person who has the sole power to sell such stock, and, in the case of stock held in trust, of any person who has the right to revoke the trust at will or to replace the trustee at will. If the trustee has a familial, personal, or extra-trust business relationship to the grantor or the beneficiary, the stock interests held in trust shall constitute an attributable interest of such grantor or beneficiary, as appropriate.
(7) Debt and interests such as warrants and convertible debentures, options, or other interests (except non-voting stock) with rights of conversion to voting interests shall not constitute attributable interests unless and until conversion is effected.
(8) An interest in a Limited Liability Company (LLC) or Registered Limited Liability Partnership (RLLP) amounting to 20 percent or more, shall constitute an attributable interest of each such limited partner.
(9) Officers and directors of a cable operator, an MVDDS licensee, or an entity that controls such cable operator or MVDDS licensee, shall be considered to have an attributable interest in such cable operator or MVDDS licensee.
(10) Ownership interests that are held indirectly by any party through one or more intervening corporations or other entities shall be determined by successive multiplication of the ownership percentages for each link in the vertical ownership chain and application of the relevant attribution benchmark to the resulting product, except that, if the ownership for any interest in any link in the chain exceeds 50 percent or represents actual control, it shall be treated as if it were a 100 percent interest.
(11) Any person who manages the operations of a cable operator or an MVDDS licensee pursuant to a management agreement shall be considered to have an attributable interest in such cable operator or MVDDS licensee, if such person or its affiliate has authority to make decisions or otherwise engage in practices or activities that determine, or significantly influence:
(i) The nature or types of services offered by such entity;
(ii) The terms upon which such services are offered; or
(iii) The prices charged for such services.
(12) Any person or its affiliate who enters into a joint marketing arrangement with a cable operator, an MVDDS licensee, or an affiliate of such entity, shall be considered to have an attributable interest in such cable operator, MVDDS licensee, or affiliate, if such person or its affiliate has authority to make decisions or otherwise engage in practices or activities that determine:
(i) The nature or types of services offered by such entity;
(ii) The terms upon which such services are offered; or
(iii) The prices charged for such services.
(f) Divestiture. Any cable operator, or any entity owning an attributable interest in a cable operator, that would otherwise be barred from acquiring an attributable interest in an MVDDS license by the eligibility restriction in paragraph (a) of this section, may be a party to an MVDDS application (i.e., have an attributable interest in the applicant), and such applicant will be eligible for an MVDDS license, pursuant to the divestiture procedures set forth in paragraphs (f)(1) through (f)(6) of this section.
(1) Divestiture shall be limited to the following prescribed means:
(i) An MVDDS applicant holding an attributable interest in a cable operator may divest such interest in the cable company.
(ii) Other MVDDS applicants disqualified under paragraph (a) of this section, will be permitted to:
(A) Partition and divest that portion of the existing service area that causes it to exceed the overlap restriction in paragraph (a) of this section, subject to applicable regulations of state and local governments; or
(B) Partition and divest that portion of the MVDDS geographic service area that exceeds the overlap restriction in paragraph (a) of this section.
(iii) Divestiture may be to an interim trustee if a buyer has not been secured in the required period of time, as long as the MVDDS applicant has no interest in or control of the trustee and the trustee may dispose of the license as it sees fit.
(2) The MVDDS applicant shall certify as an exhibit to its short form application that it and all parties to the application will come into compliance with paragraph (a) of this section.
(3) If such MVDDS applicant is a successful bidder in an auction, it must submit with its long-form application a signed statement describing its efforts to date and future plans to come into compliance with the eligibility restrictions in paragraph (a) of this section.
(4) If such an MVDDS applicant is otherwise qualified, its application will be granted subject to a condition that the applicant shall come into compliance with the eligibility restrictions in paragraph (a) of this section, within ninety (90) days of final grant of such MVDDS license.
(5) An MVDDS applicant will be considered to have come into compliance with paragraph (a) of this section if:
(i) In the case of the divestiture of a portion of an MVDDS license, it has successfully completed the assignment or transfer of control of the requisite portion of the MVDDS geographic service area.
(ii) In all other cases, it has submitted to the Commission a signed certification that it has come into compliance with paragraph (a) of this section by the following means, identified in such certification:
(A) By divestiture of a disqualifying interest in a cable operator, identified in terms of the interest owned, the owner of such interest (and, if such owner is not the applicant itself, the relationship of the owner to the applicant), the name of the party to whom such interest has been divested, and the date such divestiture was executed; or
(B) By divestiture of the requisite portion of the cable operator's existing service area, identified in terms of the name of the party to whom such interest has been divested, the date such divestiture was executed, the name of any regulatory agency that must approve such divestiture, and the date on which
(6) If no such certification or application is tendered to the Commission within ninety (90) days of final grant of the initial license, the Commission may cancel or rescind the license automatically, shall retain all monies paid to the Commission, and, based on the facts presented, shall take any other action it may deem appropriate.
Waivers of § 101.1014(e) may be granted upon an affirmative showing: that the interest holder has less than a fifty percent voting interest in the licensee and there is an unaffiliated single holder of a fifty percent or greater voting interest; that the interest holder is not likely to affect the local market in an anticompetitive manner; that the interest holder is not involved in the operations of the licensee and does not have the ability to influence the licensee on a regular basis; and that grant of a waiver is in the public interest because the benefits to the public of common ownership outweigh any potential anticompetitive harm to the market.
(a) The MVDDS license term is ten years, beginning on the date of the initial authorization grant.
(b) Application of a renewal expectancy is based on the substantial service requirement which is defined as a service that is sound, favorable, and substantially above a level of mediocre service which might minimally warrant renewal. At the end of the license term, the Commission will consider factors such as:
(1) Whether the licensee's operations service niche markets or focus on serving populations outside of areas serviced by other MVDDS licensees;
(2) Whether the licensee's operations serve populations with limited access to telecommunications services; and
(3) A demonstration of service to a significant portion of the population or land area of the licensed area.
(c) The renewal application of an MVDDS licensee must include the following showings in order to claim a renewal expectancy:
(1) A coverage map depicting the served and unserved areas;
(2) A corresponding description of current service in terms of geographic coverage and population served or transmitter locations in the served areas; and
(3) Copies of any Commission Orders finding the licensee to have violated the Communications Act or any Commission rule or policy and a list of any pending proceedings that relate to any matter described by the requirements for the renewal expectancy.
(a) MVDDS licensees are permitted to partition licensed geographic areas along county borders (Parishes in Louisiana or Territories in Alaska). Disaggregation will not be permitted by MVDDS licensees in the 12.2–12.7 GHz band. “Partitioning” is the assignment of geographic portions of a license along geopolitical or other boundaries. “Disaggregation” is the assignment of discrete portions or “blocks” of spectrum licensed to a geographic licensee or qualifying entity.
(b)
(2) MVDDS licensees may apply to the Commission to partition their licensed geographic service areas to eligible entities and are free to partition their licensed spectrum at any time following the grant of a license.
(3) Any existing frequency coordination agreements shall convey with the assignment of the geographic area or spectrum, and shall remain in effect for the term of the agreement unless new agreements are reached.
(c)
(2) The geographic coordinates must be specified in degrees, minutes, and seconds to the nearest second of latitude and longitude and must be based upon the 1983 North American Datum (NAD83).
(d)
(e)
(f)
Each MVDDS licensee shall file with the Public Safety & Private Wireless Division of the Wireless Telecommunications Bureau of the Commission two copies of a report by March 1 of each year for the preceding calendar year. This report must include the following:
(a) Name and address of licensee;
(b) Station(s) call letters and primary geographic service area(s); and
(c) The following statistical information for the licensee's station (and each channel thereof):
(1) The total number of separate subscribers served during the calendar year;
(2) The total hours of transmission service rendered during the calendar year to all subscribers;
(3) The total hours of transmission service rendered during the calendar year involving the transmission of local broadcast signals; and
(4) A list of each period of time during the calendar year in which the station rendered no service as authorized, if the time period was a consecutive period longer than 48 hours, and
(a) MVDDS licensees in the 12.2–12.7 GHz band are required to develop sharing and protection agreements based on the design and architecture of their systems, in order to ensure that no harmful interference occurs between adjacent geographical area licensees. MVDDS licensees shall:
(1) Engineer systems to be reasonably compatible with adjacent and co-channel operations in the adjacent areas on all its frequencies; and
(2) Cooperate fully and in good faith to resolve interference and transmission problems that are present on adjacent and co-channel operations in adjacent areas.
(b) Harmful interference to public safety stations, co-channel MVDDS stations operating in adjacent geographic areas, and stations operating on adjacent channels to MVDDS stations is prohibited. In areas where the CEAs are in close proximity, careful consideration should be given to power requirements and to the location, height, and radiation pattern of the transmitting and receiving antennas. Licensees are expected to cooperate fully in attempting to resolve problems of potential interference before bringing
(c) Licensees shall coordinate their facilities whenever the facilities have optical line-of-sight into other licensees' areas or are within the same geographic area. Licensees are encouraged to develop operational agreements with relevant licensees in the adjacent geographic areas. Incumbent public safety POFS licensee(s) shall retain exclusive rights to its channel(s) within the relevant geographical areas and must be protected in accordance with the procedures in § 101.103. A list of public safety incumbents is attached as Appendix I to the Memorandum Opinion and Order and Second Report and Order, Docket 98–206 (released May 23, 2002). Please check with the Commission for any updates to that list.
Pursuant to § 2.301 of this chapter, MVDDS systems in the United States within 56 km (35 miles) of the Canadian and Mexican border will be granted conditional licenses, until final international agreements are approved. These systems may not cause harmful interference to stations in Canada or Mexico. MVDDS stations must comply with the procedures outlined under § 101.147(p) and § 1.928(f)(1) and (2) of this chapter until final international agreements concerning MVDDS are signed. Section 1.928(f) of this chapter states that transmitting antennas can be located as close as five miles (eight kilometers) of the border if they point within a sector of 160 degrees away from the border, and as close as thirty-five miles (fifty-six kilometers) of the border if they point within a sector of 200 degrees toward the border without coordination with Canada. MVDDS licensees shall apply this method near the Canadian and Mexican borders. No stations are allowed within 5 miles of the borders.
MVDDS stations in the 12.2–12.7 GHz frequency band do not operate with output powers that equal or exceed 1640 watts EIRP and therefore will not be subject to the routine environmental evaluation rules for radiation hazards, as set forth in § 1.1307 of this chapter.
Mutually exclusive initial applications for MVDDS licenses in the 12.2–12.7 GHz band are subject to competitive bidding. The general competitive bidding procedures set forth in part 1, subpart Q of this chapter will apply unless otherwise provided.
(a)
(2) A small business is an entity that, together with its controlling interests and affiliates, has average annual gross revenues not exceeding $15 million for the preceding three years.
(3) An entrepreneur is an entity that, together with its controlling interests and affiliates, has average annual gross revenues not exceeding $40 million for the preceding three years.
(4) A consortium of very small businesses is a conglomerate organization formed as a joint venture between or among mutually independent business firms, each of which individually satisfies the definition in paragraph (a)(1) of this section. A consortium of small businesses is a conglomerate organization formed as a joint venture between or among mutually independent business firms, each of which individually satisfies the definition in paragraph (a)(2) of this section. A consortium of entrepreneurs is a conglomerate organization formed as a joint venture between or among mutually independent business firms, each of which individually satisfies the definition in paragraph (a)(3) of this section.
(5) For purposes of determining whether an entity meets any of the definitions set forth in paragraphs (a)(1), (a)(2), (a)(3), or (a)(4) of this section, the gross revenues of the entity, its controlling interests and affiliates shall be considered in the manner set forth in §§ 1.2110(b) and (c) of this chapter.
(b)
(a) An MVDDS licensee shall not begin operation unless it can ensure that the EPFD from its transmitting antenna at all DBS customers of record locations is below the values listed for the appropriate region in § 101.105(a)(4)(ii). Alternatively, MVDDS licensees may obtain a signed written agreement from DBS customers of record stating that they are aware of and agree to their DBS system receiving MVDDS signal levels in excess of the appropriate EFPD limits specified in § 101.105(a)(4)(ii). DBS customers of record are those who had their DBS receive antennas installed prior to or within the 30 day period after notification to the DBS operator by the MVDDS licensee of the proposed MVDDS transmitting antenna site.
(b) MVDDS licensees are required to conduct a survey of the area around its proposed transmitting antenna site to determine the location of all DBS customers of record that may potentially be affected by the introduction of its MVDDS service. The MVDDS licensee must assess whether the signal levels from its system, under its deployment plans, would exceed the appropriate EPFD levels in § 101.105(a)(4)(ii) at any DBS customer of record location. Using EPFD calculations, terrain and building structure characteristics, and the survey results, an MVDDS licensee must make a determination of whether its signal level(s) will exceed the EPFD limit at any DBS customer of record sites. To assist in making this determination, the MVDDS provider can use the EPFD contour model developed by the Commission and described in Appendix J of the
(c) If the MVDDS licensee determines that its signal level will exceed the EPFD limit at any DBS customer site, it shall take whatever steps are necessary, up to and including finding a new transmit site, to ensure that the EPFD limit will not be exceeded at any DBS customer location.
(d) Coordination between MVDDS and DBS licensees. (1) At least 90 days prior to the planned date of MVDDS commencement of operations, the MVDDS licensee shall provide the following information to the DBS licensee(s):
(i) Geographic location (including NAD 83 coordinates) of its proposed station location;
(ii) Maximum EIRP of each transmitting antenna system;
(iii) Height above ground level for each transmitting antenna;
(iv) Antenna type along with main beam azimuth and altitude orientation information, and description of the antenna radiation pattern;
(v) Description of the proposed service area; and
(vi) Survey results along with a technical description of how it determined compliance with the appropriate EPFD level at all DBS subscriber locations.
(2) No later than forty-five days after receipt of the MVDDS system information in paragraph (d)(1) of this section, the DBS licensee(s) shall provide the MVDDS licensee with a list of any new DBS customer locations that have been installed in the 30-day period following the MVDDS notification. In addition, the DBS licensee(s) could indicate agreement with the MVDDS licensee's technical assessment, or identify DBS customer locations that the MVDDS licensee failed to consider or DBS customer locations where they believe the MVDDS licensee erred in its analysis and could exceed the prescribed EPFD limit.
(3) Prior to commencement of operation, the MVDDS licensee must take into account any new DBS customers or other relevant information provided by DBS licensees in response to the notification in paragraph (d)(1) of this section.
(e) Beginning thirty days after the DBS licensees are notified of a potential MVDDS site under paragraph (d)(1) of this section, the DBS licensees have the responsibility of ensuring that all future installed DBS receive antennas on its system are located in such a way as to avoid the MVDDS signal. These later installed receive antennas shall have no further rights of complaint against the notified MVDDS transmitting antenna(s).
(f) In the event of a major modification as defined in § 1.929 of this chapter, such as the addition of an antenna, to an MVDDS station, the procedures of paragraphs (d) and (e) of this section and rights of complaint begin anew. Exceptions to this are renewal, transfer of control, and assignment of license applications.
(g)
Agricultural Marketing Service, USDA.
Notice of public hearing on proposed marketing agreement and order.
Notice is hereby given of a public hearing to consider a proposed marketing agreement and order under the Agricultural Marketing Agreement Act of 1937 to cover pistachios grown in California. The proposal was submitted on behalf of the California pistachio industry by the Proponents Committee for a Federal Marketing Order for Pistachios. The proposed order would set standards for the quality of pistachios produced and handled in California by establishing a maximum aflatoxin tolerance level, maximum limits for defects, a minimum size requirement, and mandatory inspection and certification. The program would be financed by assessments on pistachio handlers and would be administered by a committee of growers and handlers nominated by the industry and appointed by the Department of Agriculture (USDA).
The hearing will be held in Fresno, California, from July 23 to July 25, 2002. The hearing session on Tuesday, July 23, will begin at 8:00 a.m. and end at 5:00 p.m. The hearing session on Wednesday, July 25, will begin at 8:00 a.m. and end at 4:00 p.m. If an additional hearing session is necessary, the hearing will continue at 8:00 a.m. on Thursday, July 25, 2002.
The hearing location is: The Fresno Metropolitan Flood Control District, Board of Directors' Chambers, 5469 East Olive Street, Fresno, California, 93727.
Melissa Schmaedick, Marketing Order Administration Branch, Fruit and Vegetable Programs, Agricultural Marketing Service (AMS), USDA, Post Office Box 1035, Moab, UT 84532, telephone: (435) 259–7988, fax: (435) 259–4945; or Anne M. Dec, 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 this proceeding 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.
This administrative action is instituted pursuant to the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601–674), hereinafter referred to as the “Act.” This action is governed by the provisions of sections 556 and 557 of title 5 of the United States Code and, therefore, is excluded from the requirements of Executive Order 12866.
The Regulatory Flexibility Act (5 U.S.C. 601
The marketing agreement and order proposed herein have been reviewed under Executive Order 12988, Civil Justice Reform. They are not intended to have retroactive effect. If issued, the proposed amendments would 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 the Secretary 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. A handler is afforded the opportunity for a hearing 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 the Secretary's ruling on the petition, provided an action is filed not later than 20 days after the date of the entry of the ruling.
The hearing is called pursuant to the provisions of the Act and the applicable rules of practice and procedure governing the formulation of marketing agreements and orders (7 CFR part 900).
This proposal is the result of nearly three years of efforts undertaken by the Proponents Committee (committee), a committee representing producers and handlers of pistachios in California. The committee was established in 2000 as a result of renewed industry interest in a Federal marketing order. An earlier attempt to establish a Federal marketing order in 1996 on behalf of the pistachio industry by the California Pistachio Commission (Commission) and the Western Pistachio Association (Association) was terminated in 2000 due to lack of industry support for certain proposed provisions. The current proposal is different from that which was previously proposed since many controversial issues have either been removed or resolved through more exacting specification in the proposed regulations. The Proponents Committee is independent of the Commission and the Association.
The proponent group contends that the proposed marketing order program would ensure consistency in the quality of California pistachios, thereby increasing consumer demand and confidence in the product, and enhancing producer returns.
Presently, industry quality control practices are limited to voluntary testing for aflatoxin and other quality requirements under a California Pistachio Marketing Agreement (agreement) entered into by a number of pistachio handlers under authority of the California Department of Food and Agriculture. The agreement is limited to issues relating to the blending of artificially opened pistachios with those naturally opened, and the bleaching of pistachios. Aflatoxin testing and
The proposal for an order has been widely discussed within the California pistachio industry for at least 10 years, including discussions related to the 1996 proposal. None of the recommendations or proposals discussed herein have received approval by the Secretary of Agriculture.
Testimony is invited at the hearing on the proposed marketing agreement and order (hereinafter referred to as the order) and all of its provisions, as well as any appropriate modifications or alternatives.
The public hearing is held for the purpose of:
(a) Receiving evidence about the economic and marketing conditions that relate to the proposed order and to appropriate modifications thereof;
(b) Determining whether the handling of pistachios produced in the production area is in the current of interstate commerce or directly burdens, obstructs, or affects interstate commerce and foreign commerce;
(c) Determining whether there is a need for a marketing agreement and order for pistachios;
(d) Determining the economic impact of the proposed order on the industry in the proposed production area and on the public affected by such program; and
(e) Determining whether the proposed order or any appropriate modification thereof would tend to effectuate the declared policy of the Act.
All persons wishing to submit written material as evidence at the hearing should be prepared to submit four copies of such material at the hearing and should have prepared testimony available for presentation at the hearing.
From the time the notice of hearing is issued and until the issuance of a final decision in this proceeding, USDA employees involved in the decisional process are prohibited from discussing the merits of the hearing issues on an ex-parte basis with any person having an interest in the proceeding. The prohibition applies to employees in the following organizational units: Office of the Secretary of Agriculture; Office of the Administrator, AMS; Office of the General Counsel; and the Fruit and Vegetable Programs, AMS.
Procedural matters are not subject to the above prohibition and may be discussed at any time.
Provisions of the proposed marketing agreement and order follow. Those sections identified with an asterisk (*) apply only to the proposed marketing agreement.
Marketing agreements, Pistachios, Reporting and recordkeeping requirements.
The marketing agreement and order proposed by the Proponents Committee for a Federal Marketing Order for Pistachios Grown in California would add a new part 983 to read as follows:
7 U.S.C. 601–674
An
(a)
(1)
(2)
(3)
(b) With the approval of the Secretary, the boundaries of any district may be changed by a two-thirds vote of the committee, to ensure proper representation. The boundaries need not coincide with county lines. In addition, the boundaries in the production area may be adjusted to conform to changes to the boundaries of the districts established for those of the California Pistachio Commission upon the recommendation of the committee and approval of the Secretary.
(a) Receiving pistachios;
(b) Hulling and drying pistachios; and/or
(c) Further preparing pistachios by sorting, sizing, shelling, roasting, cleaning, salting, and/or packaging for marketing in or transporting to any and all markets in the current of interstate or foreign commerce:
There is hereby established an administrative committee for pistachios to administer the terms and provisions of this part. This committee, consisting of eleven (11) member positions, each of whom shall have an alternate, shall be allocated as follows:
(a)
(1) One handler member nominated by one vote for each handler; and
(2) One handler member nominated by voting based on each handler casting one vote for each ton of the assessed weight of pistachios processed by such handler during the two production years preceding the production year in which the nominations are made.
(b)
(c)
Nomination of committee members and alternates shall follow the procedure set forth in this section or as may be changed as recommended by the committee and approved by the Secretary.
(a)
(b)
(c)
(1) For one handler member nomination, each handler entity shall be entitled to one vote;
(2) For the second handler member nomination, each handler entity shall be entitled to cast one vote respectively for each ton of assessed weight of pistachios processed by that handler during the two production years preceding the production year in which the nominations are made. For the purposes of nominating handler members and alternates by volume, the assessed weight of pistachios shall be credited to the handler responsible under the order for the payment of assessments of those pistachios. The committee with the approval of the Secretary, may revise the handler representation on the committee if the committee ceases to be representative of the industry.
(d)
(e)
(f)
(g)
(h)
(i)
(j)
(k)
(l)
(2) Each handler member and alternate shall be, at the time of selection and during the term of office, a handler or an officer, employee, or agent of a handler.
(3) Any member or alternate member who at the time of selection was employed by or an agent of a person or affiliated with the person who is nominated, that member shall, upon termination of that relationship, become disqualified to serve further as a member and that position shall be deemed vacant.
(4) No person nominated to serve as a public member or alternate public member shall have a financial interest in any pistachio growing or handling operation.
(5) The committee, with the approval of the Secretary, may issue rules and regulations covering the qualifications for members or alternate members.
(m)
(a)
(1) Minimum quality levels;
(2) Aflatoxin levels;
(3) Inspection programs;
(4) The establishment of the committee.
(b)
(c)
The committee shall have the following powers:
(a) To administer the provisions of this part in accordance with its terms;
(b) To make and adopt bylaws, rules and regulations to effectuate the terms and provisions of this part with the approval of the Secretary;
(c) To receive, investigate, and report to the Secretary complaints of violations of this part; and
(d) To recommend to the Secretary amendments to this part.
The committee shall have, among others, the following duties:
(a) To adopt bylaws and rules for the conduct of its meetings and the selection of such officers from among its membership, including a chairperson and vice-chairperson, as may be necessary, and define the duties of such officers; and adopt such other bylaws, regulations and rules as may be necessary to accomplish the purposes of the Act and the efficient administration of this part;
(b) To employ or contract with such persons or agents as the committee deems necessary and to determine the duties and compensation of such persons or agents;
(c) To select such subcommittees as may be necessary;
(d) To submit to the Secretary a budget for each fiscal period, prior to the beginning of such period, including a report explaining the items appearing therein and a recommendation as to the rates of assessments for such period;
(e) To keep minutes, books, and records which will reflect all of the acts and transactions of the committee and which shall be subject to examination by the Secretary;
(f) To prepare periodic statements of the financial operations of the committee and to make copies of each statement available to producers and handlers for examination at the office of the committee;
(g) To cause its financial statements to be audited by a certified public accountant at least once each fiscal year and at such times as the Secretary may request. Such audit shall include an examination of the receipt of assessments and the disbursement of all funds. The committee shall provide the Secretary with a copy of all audits and shall make copies of such audits, after the removal of any confidential individual or handler information that may be contained in them, available for
(h) To act as intermediary between the Secretary and any producer or handler with respect to the operations of this part;
(i) To investigate and assemble data on the growing, handling, shipping and marketing conditions with respect to pistachios;
(j) To apprize the Secretary of all committee meetings in a timely manner;
(k) To submit to the Secretary such available information as the Secretary may request;
(l) To investigate compliance with the provisions of this part;
(m) To provide, through communication to producers and handlers, information regarding the activities of the committee and to respond to industry inquiries about committee activities;
(n) To oversee the collection of assessments levied under this part;
(o) To borrow such funds, subject to the approval of the Secretary and not to exceed the expected expenses of one fiscal year, as are necessary for administering its responsibilities and obligations under this part.
Prior to August 1st each year, the committee shall prepare and submit to the Secretary a report setting forth its recommended marketing policy covering quality regulations for the pending crop. In the event it becomes advisable to modify such policy, because of changed crop conditions, the committee shall formulate a new policy and shall submit a report thereon to the Secretary. In developing the marketing policy, the committee shall give consideration to the production, harvesting, processing and storage conditions of that crop. The committee may also give consideration to current prices being received and the probable general level of prices to be received for pistachios by producers and handlers. Notice of the committee's marketing policy, and of any modifications thereof, shall be given promptly by reasonable publicity, to producers and handlers.
(a)
(b)
(c)
(d)
(1)
(2)
(3)
(4)
(5)
(6)
(a)
(b)
(1)
(2)
(3)
(i)
(ii)
(iii)
(iv)
(4)
(i)
(A)
(B)
(ii)
(A)
(B)
(C)
(D)
(E)
(5)
(i)
(ii)
(iii)
(iv)
(v)
(c)
(d)
(e)
(1)
(2)
(f)
(a)
(b)
(c)
(d)
(e)
(a)
(1) The handler may have an inspector sample and test all of the hulled and dried pistachios before testing for aflatoxin certification.
(2) The handler may segregate receipts into various lots at the handler's discretion and have an inspector sample and test specific lots. Any lots that have less than 15.0 ppb aflatoxin can be certified by an inspector to be negative as to aflatoxin. Any lots that are found to be above 15.0 ppb may be tested after reworking in the same manner as specified in § 983.40.
(b)
After a lot is issued an aflatoxin inspection certificate and minimum quality certificate, it may be commingled with other certified lots.
Whenever the committee has reason to believe that pistachios may have been damaged or deteriorated while in storage, the committee may reject the then effective inspection certificate and require the owner of the pistachios to have a reinspection to establish whether or not such pistachios may be shipped for human consumption.
Upon recommendation of the committee and approval of the Secretary, all pistachios that are required to be inspected and certified in accordance with this part, shall be identified by appropriate seals, stamps, tags, or other identification to be furnished by the committee and affixed to the containers by the handler under the direction and supervision of an inspector. All inspections shall be at the expense of the handler.
The committee shall, with the approval of the Secretary, establish such reporting and disposition procedures as it deems necessary to ensure that pistachios which do not meet the outgoing maximum aflatoxin tolerance and minimum quality requirements prescribed by § 983.39 shall not be shipped for domestic human consumption.
(a) In the event that the committee, at any time, finds that, by reason of changed conditions, the regulations contained in § 983.38 through § 983.45 should be modified or suspended, it shall, by a vote of at least seven members, so recommend to the Secretary.
(b) Whenever the Secretary finds from the recommendations and information submitted by the committee or from other available information, that the aflatoxin or minimum quality regulations (§ 983.38 or § 983.39) should be modified, suspended, or terminated with respect to any or all shipments of pistachios in order to effectuate the declared policy of the Act, the Secretary shall modify or suspend such regulation. If the Secretary finds that a regulation obstructs or does not tend to effectuate the declared policy of the Act, the Secretary shall suspend or terminate such regulation.
Upon the request of the committee, with the approval of the Secretary, each handler shall furnish such reports and information on such forms as are needed to enable the Secretary and the committee to perform their functions and enforce the regulations under this part. The committee shall provide a uniform report format for the handlers.
All reports and records furnished or submitted by handlers to the committee which include confidential data or information constituting a trade secret or disclosing the trade position, financial condition, or business operations of the particular handler or their customers shall be received by, and at all times kept in the custody and under the control of, one or more employees of the committee, who shall disclose such data and information to no person except the Secretary. However, such data or information may be disclosed only with the approval of the Secretary, to the committee when reasonably necessary to enable the committee to carry out its functions under this part.
Each handler shall maintain such records of pistachios received, held and shipped by him, as will substantiate any required reports and will show performance under this part. With the exception of records required to be retained under § 983.38(d)(5), such records shall be retained for at least 2 years beyond the crop year of their applicability.
(a) All handlers' pistachio inventory shall be subject to random verification audits by the committee to ensure compliance with the terms of the order, and regulations adopted pursuant thereto.
(b) Committee staff or agents of the committee, based on information from the industry or knowledge of possible violations, may make buys of handler product in retail locations. If it is determined that violations of the order have occurred as a result of the buys, the matter will be referred to the Secretary for appropriate action.
For the purpose of checking and verifying reports filed by handlers or the operation of handlers under the provisions of this part, the Secretary and the committee, through their duly authorized agents, shall have access to any premises where pistachios and records relating thereto may be held by any handler and at any time during reasonable business hours, shall be permitted to inspect any pistachios so held by such handler and any and all records of such handler with respect to the acquisition, holding, or disposition of all pistachios which may be held or which may have been shipped by him.
The committee is authorized to incur such expenses as the Secretary finds are reasonable and likely to be incurred by it during each production year for the maintenance and functioning of the committee and for such other purposes as the Secretary may, pursuant to the provisions of this part, determine to be appropriate.
(a) Each handler who receives pistachios for processing in each production year shall pay the committee on demand, an assessment based on the pro rata share of the expenses authorized by the Secretary for that year attributable to the assessed weight of pistachios received by that handler in that year.
(b) The committee, prior to the beginning of each production year, shall recommend and the Secretary shall set the assessment for the following production year, which shall not exceed one-half of one percent of the average price received by producers in the preceding production year. The committee, with the approval of the Secretary, may revise the assessment established prior to October 1 of each year if it determines, based on information including crop volume, that the action is necessary, and if the revision does not exceed the assessment limitations specified in this section and the modification is made prior to the date established for payment of the assessment.
The committee may accept voluntary contributions but these shall only be used to pay for committee expenses.
(a) Any handler who fails to file a return or pay any assessment within the time required by the committee shall
(b) In addition to any other penalty imposed, the committee may require any person who fails to pay any assessment or related charge pursuant to this section to furnish and maintain a surety bond in a form and amount and for a period of time specified by the committee as assurance that all payments to the committee will be made when due.
(a) If, at the end of a production year, the assessments collected are in excess of expenses incurred, such excess shall be accounted for in accordance with one of the following:
(1) If such excess is not retained in a reserve, as provided in paragraph (a)(2) of this section, it shall be refunded proportionately to the persons from whom it was collected in accordance with § 983.53:
(2) The committee, with the approval of the Secretary, may carry over such excess into subsequent production years as a reserve:
(i) To defray expenses, during any production year, prior to the time assessment income is sufficient to cover such expenses;
(ii) To cover deficits incurred during any production year when assessment income is less than expenses;
(iii) To defray expenses incurred during any period when any or all provisions of this part are suspended or are inoperative; and
(iv) To cover necessary expenses of liquidation in the event of termination of this part. Upon such termination, any funds not required to defray the necessary expenses of liquidation shall be disposed of in such manner as the Secretary may determine to be appropriate:
(b) All funds received by the committee pursuant to the provisions of this part shall be used solely for the purpose specified in this part and shall be accounted for in the manner provided in this part. The Secretary may at any time require the committee and its members to account for all receipts and disbursements; and
(c) Upon the removal or expiration of the term of office of any member of the committee, such member shall account for all receipts and disbursements for which that member was personally responsible, deliver all committee property and funds in the possession of such member to the committee, and execute such assignments and other instruments as may be necessary or appropriate to vest in the committee full title to all of the committee property, funds, and claims vested in such member pursuant to this part.
Except as provided in this part, no handler shall handle pistachios, the handling of which has been prohibited or otherwise limited by the Secretary in accordance with provisions of this part; and no handler shall handle pistachios except in conformity to the provision of this part.
The members of the committee (including successors or alternates) and any agent or employee appointed or employed by the committee, shall be subject to removal or suspension at the discretion of the Secretary, at any time. Each and every decision, determination, or other act of the committee shall be subject to the continuing right of the Secretary to disapprove of the same at any time, and upon such disapproval, shall be deemed null and void.
No member or alternate member of the committee, nor any employee, representative, or agent of the committee shall be held personally responsible to any handler, either individually, or jointly with others, in any way whatsoever, to any person, for errors in judgment, mistakes, or other acts, either of commission or omission, as such member, alternate member, employee, representative, or agent, except for acts of dishonesty, willful misconduct, or gross negligence.
If any provision of this part is declared invalid, or the applicability thereof to any person, circumstance, or thing is held invalid, the validity of the remainder, or the applicability thereof to any other person, circumstance, or thing, shall not be affected thereby.
Nothing contained in this part is, or shall be construed to be, in derogation or in modification of the rights of the Secretary or of the United States to exercise any powers granted by the Act or otherwise, or, in accordance with such powers, to act in the premises whenever such action is deemed advisable.
The benefits, privileges, and immunities conferred upon any person by virtue of this part shall cease upon its termination, except with respect to acts done under and during the existence thereof.
The Secretary may, by a designation in writing, name any person, including any officer or employee of the United States Government, or name any service, division or branch in the United States Department of Agriculture, to act as agent or representative of the Secretary in connection with any of the provisions of this part.
The provisions of this part, as well as any amendments, shall become effective at such time as the Secretary may declare, and shall continue in force until terminated or suspended in one of the ways specified in § 983.66 or § 983.67.
The Secretary shall terminate or suspend the operation of any or all of the provisions of this part, whenever he finds that such provisions do not tend to effectuate the declared policy of the Act.
(a) The Secretary may at any time terminate the provisions of this part.
(b) The Secretary shall terminate or suspend the operations of any or all of the provisions of this part whenever it is found that such provisions do not tend to effectuate the declared policy of the act.
(c) The Secretary shall terminate the provisions of this part at the end of any fiscal period whenever it is found that such termination is favored by a majority of producers who, during a representative period, have been engaged in the production of pistachios:
(d) Within six years of [the effective date of this part] the Secretary shall conduct a referendum to ascertain whether continuance of this part is favored by producers. Subsequent referenda to ascertain continuance shall be conducted every six years thereafter. The Secretary may terminate the provisions of this part at the end of any fiscal period in which the Secretary has found that continuance of this part is not favored by a two thirds (
(e) The provisions of this part shall, in any event, terminate whenever the provisions of the Act authorizing them cease.
Upon the termination of this part, the members of the committee then functioning shall continue as joint trustees, for the purpose of liquidating the affairs of the committee. Action by such trustees shall require the concurrence of a majority of said trustees. Such trustees shall continue in such capacity until discharged by the Secretary, and shall account for all receipts and disbursements and deliver all property on hand, together with all books and records of the committee and the joint trustees, to such persons as the Secretary may direct; and shall upon the request of the Secretary, execute such assignments or other instruments necessary or appropriate to vest in such person full title and right to all the funds, properties, and claims vested in the committee or the joint trustees, pursuant to this part. Any person to whom funds, property, or claims have been transferred or delivered by the committee or the joint trustees, pursuant to this section, shall be subject to the same obligations imposed upon the members of said committee and upon said joint trustees.
Unless otherwise expressly provided by the Secretary, the termination of this part or of any regulation issued pursuant thereto, or the issuance of any amendment to either thereof, shall not:
(a) Affect or waive any right, duty, obligation, or liability which shall have arisen or which may thereafter arise, in connection with any provisions of this part or any regulation issued thereunder,
(b) Release or extinguish any violation of this part or any regulation issued thereunder, or
(c) Affect or impair any rights or remedies of the Secretary, or of any other persons, with respect to such violation.
Any handler may handle pistachios within the production area free of the regulatory and assessment provisions of this part if such pistachios are handled in quantities not exceeding 1,000 dried pounds during any marketing year. This subpart may be changed as recommended by the committee and approved by the Secretary.
In conducting committee activities and other objectives under this part, the committee may deliberate, consult, cooperate and exchange information with the California Pistachio Commission. Any sharing of information gathered under this subpart shall be kept confidential in accordance with provisions under section 10(i) of the Act.
Handlers may sign an agreement with the Secretary indicating their support for this marketing order. This agreement may be executed in multiple counterparts by each handler. If more than fifty percent of the handlers, weighted by the volume of pistachios handled during a representative period, enter into such an agreement, then a marketing agreement shall exist for the pistachio marketing order. This marketing agreement shall not alter the terms of this part. Upon the termination of this part, the marketing agreement has no further force or effect.
After this part becomes effective, any handler may become a party to the marketing agreement if a counterpart is executed by the handler and delivered to the Secretary.
Each signatory handler hereby requests the Secretary to issue, pursuant to the Act, an order for regulating the handling of pistachios in the same manner as is provided for in this agreement.
Federal Aviation Administration, DOT.
Notice of proposed rulemaking (NPRM).
This document proposes to adopt a new airworthiness directive (AD) that would apply to all Cessna Aircraft Company (Cessna) Models 208 and 208B airplanes. This proposed AD would require you to repetitively inspect the inboard forward flap bellcranks for cracks or replace bellcranks depending on the amount of usage. This proposed AD is the result of Cessna re-evaluating the bellcrank life limit analysis and determining that the original estimate is too high. The actions specified by this proposed AD are intended to detect, correct, and prevent future cracks in the bellcrank, which could result in failure of this part. Such failure could lead to damage to the flap system and surrounding structure and result in reduced or loss of control of the airplane.
The Federal Aviation Administration (FAA) must receive any comments on this proposed rule on or before August 28, 2002.
Submit comments to FAA, Central Region, Office of the Regional Counsel, Attention: Rules Docket No. 2002–CE–23–AD, 901 Locust, Room 506, Kansas City, Missouri 64106. You may view any comments at this location between 8 a.m. and 4 p.m., Monday
You may get service information that applies to this proposed AD from Cessna Aircraft Company, Product Support, P.O. Box 7706, Wichita, Kansas 67277; telephone: (316) 517–5800; facsimile: (316) 942–9006. You may also view this information at the Rules Docket at the address above.
Paul Nguyen, Aerospace Engineer, FAA, Aircraft Certification Office, 1801 Airport Road, Room 100, Wichita, Kansas 67209; telephone: 316–946–4125; facsimile: 816–946–4407.
The FAA invites comments on this proposed rule. You may submit whatever written data, views, or arguments you choose. You need to include the rule's docket number and submit your comments to the address specified under the caption
The FAA specifically invites comments on the overall regulatory, economic, environmental, and energy aspects of this proposed rule that might suggest a need to modify the rule. You may view all comments we receive before and after the closing date of the rule in the Rules Docket. We will file a report in the Rules Docket that summarizes each contact we have with the public that concerns the substantive parts of this proposed AD.
If you want FAA to acknowledge the receipt of your mailed comments, you must include a self-addressed, stamped postcard. On the postcard, write “Comments to Docket No. 2002–CE–23–AD.” We will date stamp and mail the postcard back to you.
A search by the FAA of the service difficulty database has revealed 10 cracked bellcrank incidents on Cessna Models 208 and 208B airplanes. As a result, Cessna has re-evaluated the bellcrank life limit analysis and detemined 7,000 landings is more accurate than the original estimate of 9,000 landings. Cessna has revised the Models 208 and 208B Maintenance Manual and developed a service bulletin to notify the public that the inboard forward flap bellcrank life limit has been reduced to 7,000 landings. Since some Model 208 airplanes have exceeded 7,000 landings, we have determined that an AD is necessary to require replacement of the bellcrank in those airplanes.
If not detected and corrected, a cracked bellcrank could fail. Such failure could lead to damage to the flap system and surrounding structure and result in reduced or loss of control of the airplane.
Cessna has issued Service Bulletin No. CAB02–1, dated February 11, 2002.
The service bulletin includes procedures for:
After examining the circumstances and reviewing all available information related to the incidents described above, we have determined that:
This proposed AD would require you to incorporate the actions in the previously-referenced service bulletin.
We estimate that this proposed AD affects 1,300 airplanes in the U.S. registry.
We estimate the following costs to accomplish the proposed inspection:
We estimate the following costs to accomplish any necessary replacements that would be required based on the reduced life limits:
The regulations proposed herein would not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, it is determined that this proposed rule would not have federalism implications under Executive Order 13132.
For the reasons discussed above, I certify that this proposed action (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and (3) if promulgated, will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. A copy of the draft regulatory evaluation prepared for this action has been placed in the Rules Docket. A copy of it may be obtained by contacting the Rules Docket at the location provided under the caption
Air transportation, Aircraft, Aviation safety, Safety.
49 U.S.C. 106(g), 40113, 44701.
(a)
(b)
(c)
(d)
Inboard forward flap bellcranks with 7,000 landings or more do not have to be replaced until 75 landings after the effective date of this AD.
The compliance times of this AD are presented in landings instead of hours. If the number of landings is unknown, hours TIS may be used by multiplying the number of hours TIS by 1.25.
(e)
(1) Your alternative method of compliance provides an equivalent level of safety; and
(2) The Manager, Wichita Aircraft Certification Office, approves your alternative. Submit your request through an FAA Principal Maintenance Inspector, who may add comments and then send it to the Manager, Wichita Aircraft Certification Office.
This AD applies to each airplane identified in paragraph (a) of this AD, regardless of whether it has been modified, altered, or repaired in the area subject to the requirements of this AD. For airplanes that have been modified, altered, or repaired so that the performance of the requirements of this AD is affected, the owner/operator must request approval for an alternative method of compliance in accordance with paragraph (e) of this AD. The request should include an assessment of the effect of the modification, alteration, or repair on the unsafe condition addressed by this AD; and, if you have not eliminated the unsafe condition, specific actions you propose to address it.
(f)
(g)
(h)
Federal Aviation Administration, DOT.
Notice of proposed rulemaking (NPRM).
This document proposes the adoption of a new airworthiness directive (AD) that is applicable to various Boeing and McDonnell Douglas transport category airplanes. This proposal would require revising the Airplane Flight Manual (AFM) to advise the flightcrew to don oxygen masks as a first and immediate step when the cabin altitude warning horn sounds. This action is necessary to prevent incapacitation of the flightcrew due to lack of oxygen, which could result in loss of control of the airplane. This action is intended to address the identified unsafe condition.
Comments must be received by August 12, 2002.
Submit comments in triplicate to the Federal Aviation Administration (FAA), Transport Airplane Directorate, ANM–114, Attention: Rules Docket No. 2002–NM–43–AD, 1601 Lind Avenue, SW., Renton, Washington 98055–4056. Comments may be inspected at this location between 9:00 a.m. and 3:00 p.m., Monday through Friday, except Federal holidays. Comments may be submitted via fax to (425) 227–1232. Comments may also be sent via the Internet using the following address:
This information referenced in the proposed rule may be examined at the FAA, Transport Airplane Directorate, 1601 Lind Avenue, SW., Renton, Washington; or at the FAA, Los Angeles Aircraft Certification Office, 3960 Paramount Boulevard, Lakewood, California.
Interested persons are invited to participate in the making of the proposed rule by submitting such written data, views, or arguments as they may desire. Communications shall identify the Rules Docket number and be submitted in triplicate to the address specified above. All communications received on or before the closing date for comments, specified above, will be considered before taking action on the proposed rule. The proposals contained in this action may be changed in light of the comments received.
Submit comments using the following format:
• Organize comments issue-by-issue. For example, discuss a request to change the compliance time and a request to change the service bulletin reference as two separate issues.
• For each issue, state what specific change to the proposed AD is being requested.
• Include justification (
Comments are specifically invited on the overall regulatory, economic, environmental, and energy aspects of the proposed rule. All comments submitted will be available, both before and after the closing date for comments, in the Rules Docket for examination by interested persons. A report summarizing each FAA-public contact concerned with the substance of this proposal will be filed in the Rules Docket.
Commenters wishing the FAA to acknowledge receipt of their comments submitted in response to this action must submit a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket Number 2002–NM–43–AD.” The postcard will be date stamped and returned to the commenter.
Any person may obtain a copy of this NPRM by submitting a request to the FAA, Transport Airplane Directorate, ANM–114, Attention: Rules Docket No. 2002–NM–43–AD, 1601 Lind Avenue, SW., Renton, Washington 98055–4056.
On October 25, 1999, a Learjet Model 35 airplane operating under part 135 of the Federal Aviation Regulations (14 CFR 135) departed Orlando International Airport en route to Dallas, Texas. Air traffic control lost communication with the airplane near Gainesville, Florida. Air Force and National Guard airplanes intercepted the airplane, but the flightcrews of the chase airplanes indicated that the windows of the Model 35 airplane were apparently frosted over, which prevented the flightcrews of the chase airplanes from observing the interior of the Model 35 airplane. The flightcrews of the chase airplanes reported that they did not observe any damage to the airplane. Subsequently, the Model 35 airplane ran out of fuel and crashed in South Dakota. To date, causal factors of the accident have not been determined. However, lack of the Learjet flightcrew's response to air traffic control poses the possibility of flightcrew incapacitation and raises concerns with the pressurization and oxygen systems.
Recognizing these concerns, the FAA initiated a special certification review (SCR) to determine if pressurization and oxygen systems on Model 35 airplanes were certificated properly, and to determine if any unsafe design features exist in the pressurization and oxygen systems.
The SCR team found that there have been several accidents and incidents that may have involved incapacitation of the flightcrews during flight. In one case, the airplane flightcrew did not activate the pressurization system or don their oxygen masks and the airplane flew in excess of 35,000 feet altitude. In another case, the airplane flightcrews did not don their oxygen masks when the cabin aural warning was activated. Further review by the SCR team indicates that the Airplane Flight Manual (AFM) of Learjet Model 35 and 36 airplanes does not have an emergency procedure that requires donning the flightcrew oxygen masks when the cabin altitude aural warning is activated. Additional review has found that the AFMs of Learjet Model 35A and 36A airplanes also do not contain appropriate flightcrew actions when the cabin altitude aural warning is activated. However, the AFMs do contain an abnormal procedure that allows the flightcrew to troubleshoot the pressurization system prior to donning the oxygen masks after the cabin altitude warning sounds. Troubleshooting may delay donning of the oxygen masks to the point that
The SCR findings indicated that the most likely cause for incapacitation was hypoxia (lack of oxygen). The only other plausible cause of incapacitation is exposure to toxic substances. However, no evidence was found to support the existence of toxic substances.
Delayed response of the flightcrew in donning oxygen masks as a first and immediate action upon the activation of the cabin altitude warning horn could lead to incapacitation of the flightcrew and loss of control of the airplane.
A review of the emergency procedures in the AFMs for various Boeing and McDonnell Douglas transport category airplanes revealed that those AFMs do not contain the requirement for the flightcrew to immediately don emergency oxygen masks. Therefore, various Boeing and McDonnell Douglas transport category airplanes may be subject to the same unsafe condition as described above.
The FAA has determined that the AFMs for Boeing Model 737–600, 737–700, 737–800, 737–900, 747–400, 747–400D, 747–400F, 757, 767, and 777 series airplanes, and McDonnell Douglas Model 717–200 airplanes, already contain appropriate instructions for the donning of emergency oxygen masks. Therefore, these airplanes would not be subject to this proposed AD.
We have previously issued AD 2000–23–10, amendment 39–11980 (65 FR 70294, November 22, 2000), which applies to all Lockheed Model 188A and 188C series airplanes. That AD requires a revision of the AFM to add procedures for donning the flightcrew oxygen masks when the cabin altitude warning horn is activated. The requirements of that AD are intended to prevent incapacitation of the flightcrew as a result of lack of oxygen and consequent loss of control of the airplane.
We have also previously issued AD 2001–22–10, amendment 39–12489 (66 FR 54425, October 29, 2001), which applies to all Dassault Model Mystere-Falcon 50, Mystere-Falcon 900, and Falcon 900EX series airplanes. That AD requires revising the Emergency Procedures and Abnormal Procedures sections of the AFM to advise the flightcrew to immediately don oxygen masks in the event of significant pressurization or oxygen level changes. The requirements of that AD are intended to prevent incapacitation of the flightcrew due to lack of oxygen, which could result in their inability to continue to control the airplane.
We are continuing to review emergency procedures in the AFMs for other airplane models to ensure that the AFMs contain appropriate instructions for donning the flightcrew oxygen masks. We may consider further rulemaking based on the results of these reviews.
Since an unsafe condition has been identified that is likely to exist or develop on other products of these same type designs, the proposed AD would require revising the Emergency Procedures Section of the AFM to advise the flightcrew to don oxygen masks as a first and immediate step when the cabin altitude warning horn sounds.
There are approximately 7,077 airplanes (5,178 Boeing airplanes and 1,899 McDonnell Douglas airplanes) of the affected designs in the worldwide fleet. The FAA estimates that 3,479 airplanes (2,392 Boeing airplanes and 1,087 McDonnell Douglas airplanes) of U.S. registry would be affected by this proposed AD. It would take approximately 1 work hour per airplane to accomplish the proposed AFM revision, at an average labor rate of $60 per work hour. Based on these figures, the cost impact of the proposed AD on U.S. operators is estimated to be $208,740, or $60 per airplane.
The cost impact figure discussed above is based on assumptions that no operator has yet accomplished any of the proposed requirements of this AD action, and that no operator would accomplish those actions in the future if this proposed AD were not adopted. The cost impact figures discussed in AD rulemaking actions represent only the time necessary to perform the specific actions actually required by the AD. These figures typically do not include incidental costs, such as the time required to gain access and close up, planning time, or time necessitated by other administrative actions.
The regulations proposed herein would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, it is determined that this proposal would not have federalism implications under Executive Order 13132.
For the reasons discussed above, I certify that this proposed regulation (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and (3) if promulgated, will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. A copy of the draft regulatory evaluation prepared for this action is contained in the Rules Docket. A copy of it may be obtained by contacting the Rules Docket at the location provided under the caption
Air transportation, Aircraft, Aviation safety, Safety.
Accordingly, pursuant to the authority delegated to me by the Administrator, the Federal Aviation Administration proposes to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) as follows:
1. The authority citation for part 39 continues to read as follows:
49 U.S.C. 106(g), 40113, 44701.
2. Section 39.13 is amended by adding the following new airworthiness directive:
To prevent incapacitation of the flightcrew due to lack of oxygen, which could result in loss of control of the airplane, accomplish the following:
(a) Within 90 days after the effective date of this AD: For the applicable airplane models listed in the “For—” column of Table 2 of this AD, revise the procedures regarding donning oxygen masks in the event of rapid depressurization, as contained in the Emergency Procedures section of the FAA-approved Airplane Flight Manual (AFM), by replacing the text in the “Replace—” column of Table 2 of this AD with the information in the applicable figure referenced in the “With the Information In—” column of Table 2 of this AD. This may be accomplished by recording the AD number of this AD on the applicable figure and inserting it into the AFM. Table 2 and Figures 1 through 9 follow:
(b) An alternative method of compliance or adjustment of the compliance time that provides an acceptable level of safety may be used if approved by the Manager, Seattle Aircraft Certification Office (ACO), FAA; or the Manager, Los Angeles ACO, FAA; as applicable. Operators shall submit their requests through an appropriate FAA Principal Operations Inspector, who may add comments and then send it to the Manager, Seattle ACO, or Los Angeles ACO, as applicable.
Information concerning the existence of approved alternative methods of compliance with this AD, if any, may be obtained from the Seattle ACO or the Los Angeles ACO, as applicable.
(c) Special flight permits may be issued in accordance with sections 21.197 and 21.199 of the Federal Aviation Regulations (14 CFR 21.197 and 21.199) to operate the airplane to a location where the requirements of this AD can be accomplished.
Food and Drug Administration, HHS.
Notice of public meeting; correction.
The Food and Drug Administration (FDA) is correcting a document that appeared in the
The public meeting will be held on July 26, 2002, from 9 a.m. to 5 p.m. Registration to attend the meeting must be received by July 12, 2002. Submit written or electronic comments for consideration during the meeting by July 12, 2002.
The meeting will be held at the Natcher Auditorium, Bldg. 45, National Institutes of Health (NIH), Bethesda, MD. Parking will be limited and there may be delays entering the NIH campus due to increased security. We recommend arriving by Metro if possible. NIH is accessible from the Metro's red line at the Medical Center/NIH stop.
Doris Tucker, Office of Policy, Planning, and Legislation (HF–27), Food and Drug Administration, 5600 Fishers Lane, Rockville, MD 20857, 301–827–7010.
In FR Doc. 02–15208 appearing on page 41360 in the
1. On page 41360 in the second column, in the eighth and ninth lines, the Internet site is corrected to read: http://www.fda.gov/oc/meetings/barcodemtg.html.
2. On page 41361 in the first column, under
3. On page 41361 in the third column, under
National Archives and Records Administration (NARA).
Proposed rule.
This proposed rule will amend the regulations for the transfer of permanent records to NARA by permitting two additional electronic records transfer methods, File Transfer Protocol (FTP) and Digital Linear Tape IV (DLTtape IV). NARA is introducing these transfer methods to reduce the media and shipping costs of electronic records transferred from Government agencies, improve record and file integrity, and expand the options for transfer methods. This rule will affect Government agencies transferring permanent electronic records to the National Archives of the United States.
Comments are due by August 26, 2002.
Comments must be sent to Regulation Comment Desk (NPOL), Room 4100, Policy and Communications Staff, National Archives and Records Administration, 8601 Adelphi Road, College Park, MD 20740–6001. They may be faxed to 301–837–0319. You may also comment via the Internet to
Jennifer Davis Heaps at telephone number 301–837–1801, or fax number 301–837–0319.
NARA currently accepts magnetic tape and compact-disk, read only memory (CD–ROM) as transfer media for records scheduled for permanent retention in the National Archives of the United States. DLTtape IV is a kind of magnetic tape cartridge. NARA has only used media-based transfer methods in the past, but has been testing other methods as well as additional media. With this rule, NARA proposes the addition of FTP transfer methods and DLT transfer media.
FTP is a media-less transfer method that can be used to transfer electronic records. FTP operates by using special software located at the sending and receiving sites. This software, in combination with a telecommunications network, provides the means for transferring electronic records. The agency may send any documentation in electronic format to NARA via FTP as part of the transfer of the electronic records or through any other acceptable method of transfer as specified in 36 CFR 1228.270.
DLTtape IV cartridge tape is a high-density magnetic cartridge tape that can store up to 40 gigabytes of information on each cartridge. DLTtape IV tapes are used by selected tape drive units produced by several companies. DLTtape IV preparation will follow existing cartridge tape specifications.
Paragraphs (a) and (b) in § 1228.270 have been rewritten for clarity and consistency with the new information in paragraph (c) of the same section.
Although this proposed rule does not address the format of electronic records described in paragraph (d), NARA is exploring the acceptance of formats other than ASCII and EBCDIC as part of its E-Government initiative. Any proposed changes in this area will be addressed in a separate rulemaking.
Please submit Internet comments within the body of your email message or as an attachment. Please also include “Attn: 3095–AB03” and your name and return address in your Internet message. If you do not receive a confirmation from the system that we have received your Internet message, contact the Regulation Comment Desk at 301–837–1801.
This proposed rule is a significant regulatory action for the purposes of Executive Order 12866 and has been reviewed by the Office of Management and Budget. As required by the Regulatory Flexibility Act, I certify that this rule will not have a significant impact on a substantial number of small entities because it applies only to Federal agencies.
This regulation does not have any federalism implications.
Archives and records.
44 U.S.C. chs. 21, 29, and 33.
(a)
(b)
(c)
(1)
(i) Open-reel magnetic tape must be on
(ii) Tape cartridges may be 18-track 3480-class cartridges. The 3480-class cartridge must be recorded at 37,871 bpi that meet ANSI X3.180–1990, American National Standard: Magnetic Tape and Cartridge for Information Interchange—18-Track, Parallel,
(iii) Tape cartridges may be DLTtape IV cartridges that must be recorded in an uncompressed format and written to the tape using a Tape Archive (TAR) utility. The data must be blocked at no more than 32,760 bytes per block and must conform to the standards cited in the table as follows:
(2) * * *
(i) CD–ROMs used for this purpose must conform to ANSI/NISO/ISO 9660–1990, American National Standard for Volume and File Structure of CD–ROM for Information Exchange.
(ii) Permanent electronic records must be stored in discrete files. The CD–ROMs transferred may contain other files, such as software or temporary records, but all permanent records must be in files that contain only permanent records. Agencies must indicate at the time of transfer if a CD–ROM contains temporary records and, if so, where those records are located on the CD–ROM. The agency must also specify whether NARA should return the CD–ROM to the agency or dispose of it after copying the permanent records to an archival medium.
(iii) If permanent electronic records that an agency disseminates on CD–ROM exist on other media, such as magnetic tape, the agency and NARA will mutually agree on the most appropriate medium for transfer of the records to the National Archives of the United States.
(3)
(i) FTP file structure must conform to an 8.3 file naming convention and file directory structure as cited in ANSI/NISO/ISO 9660–1990, American National Standard for Volume and File Structure of CD–ROM for Information Exchange.
(ii) Permanent electronic records must be stored in discrete files, separate from temporary files. All permanent records must be transferred in files that contain only permanent records.
(iii) When permanent electronic records may be disseminated through other types of mechanisms (e.g., magnetic tape, CD–ROM), the agency and NARA will mutually agree on the most appropriate medium for transfer of the records to the National Archives and will select the appropriate files for FTP transfer. Several important factors may limit the use of FTP as a transfer method, including the number of records, record file size, and available bandwidth. NARA will retain approval for appropriateness of FTP as the selected mechanism for each scheduled records transfer based on certain criteria (file size, FTP transfer rate, record classification, etc.). Agencies interested in sending electronic records scheduled for transfer to NARA through FTP must contact NARA's Electronic and Special Media Records Services Division (NWME), 8601 Adelphi Rd., College Park, MD 20740–6001 or by email to
(iv) Each permanent electronic records transfer must be preceded with a signed Agreement to Transfer Records to the National Archives of the United States (Standard Form 258) sent to the Office of Records Services—Washington, DC (NWME), 8601 Adelphi Road, College Park, MD 20740–6001.
(4)
Environmental Protection Agency (EPA).
Proposed rule.
EPA is proposing to approve revisions to the San Joaquin Valley Unified Air Pollution Control District (SJVUAPCD) portion of the California State Implementation Plan (SIP). These revisions concern volatile organic compound (VOC) emissions from motor vehicle and mobile equipment, can and coil, and wood products coating operations, as well as, VOC emissions from graphic arts and polyester resin operations. We are proposing to approve local rules to regulate these emission sources under the Clean Air Act as amended in 1990 (CAA or the Act).
Any comments on this proposal must arrive by July 26, 2002.
Mail comments to Andy Steckel, Rulemaking Office Chief (AIR–4), U.S. Environmental Protection Agency, Region IX, 75 Hawthorne Street, San Francisco, CA 94105–3901.
You can inspect copies of the submitted SIP revisions and EPA's technical support documents (TSDs) at our Region IX office during normal business hours. You may also see copies of the submitted SIP revisions at the following locations:
Jerald S. Wamsley, Rulemaking Office (AIR–4), U.S. Environmental Protection Agency, Region IX, (415) 749–4111.
This proposal concerns the following SJVUAPCD rules: Rule 4602—Motor Vehicle and Mobile Equipment Coating Operations; Rule 4604—Can and Coil Coating Operations; Rule 4606—Wood Products Coating Operations; Rule 4607—Graphic Arts; and, Rule 4684—Polyester Resin Operations. 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.
Environmental Protection Agency (EPA).
Proposed rule.
EPA proposes to approve the State Implementation Plan (SIP) revision submitted by the Commonwealth of Pennsylvania to establish and require reasonably available control technology (RACT) for Hershey Chocolate USA and Pennsylvania Power Company, New Castle Plant. Hershey Chocolate USA is located in Dauphin County, Pennsylvania and is a major source of nitrogen oxides (NO
Comments must be received in writing by July 26, 2002.
Written comments should be addressed to David L. Arnold, Chief, Air Quality Planning and Information Services Branch, Mailcode 3AP21, U.S. Environmental Protection Agency, Region III, 1650 Arch Street, Philadelphia, Pennsylvania 19103. Copies of the documents relevant to this action are available for public inspection during normal business hours at the Air Protection Division, U.S. Environmental Protection Agency, Region III, 1650 Arch Street, Philadelphia, Pennsylvania 19103; and the Pennsylvania Department of Environmental Resources, Bureau of Air Quality Control, P.O. Box 8468, 400 Market Street, Harrisburg, Pennsylvania 17105.
Janice Lewis at (215) 814–2185 or Betty Harris at (215) 814–2168, the EPA Region III address above or by e-mail at
For further information, please see the information provided in the direct final action for Pennsylvania's VOC and NO
Environmental Protection Agency (EPA or “we”).
Proposed rule.
The Environmental Protection Agency proposes to approve a State Implementation Plan (SIP) revision submitted for the Sandpoint nonattainment area in the State of Idaho.
Sandpoint was classified as nonattainment for particulate matter with an aerodynamic diameter less than or equal to a nominal 10 micrometers (PM
In the Final Rules section of this
Written comments must be received on or before July 26, 2002.
Send written comments to: Donna Deneen (OAQ–107), Office of Air Quality, at the EPA Regional Office listed below. Copies of the State's request and other information supporting this action are available for inspection during normal business hours at the following locations: Environmental Protection Agency, Region 10, Office of Air Quality, 1200 6th Avenue, Seattle, WA 98101 and the Idaho Department of Environmental Quality, 1420 North Hilton, Boise, Idaho 83706–1255. Interested persons wanting to examine these documents should make an appointment with the appropriate office at least 24 hours before the visiting day.
Ms. Donna Deneen (OAQ–107), Office of Air Quality, EPA, 1200 6th Avenue, Seattle, WA 98101, (206) 553–6706.
In the Final Rules section of this
Environmental Protection Agency (EPA).
Proposed rule.
EPA is proposing to approve the moderate area plan and maintenance plan for the Payson area in Arizona and grant a request submitted by the State to redesignate the area from nonattainment to attainment for the air quality standards for particulate matter with an aerodynamic diameter less than or equal to a nominal 10 micrometers (PM10).
Comments on this proposal must be received by July 26, 2002.
Please address your comments to Dave Jesson, Air Planning Office (AIR–2), Air Division, U.S. EPA, Region 9, 75 Hawthorne Street, San Francisco, CA 94105–3901. You may inspect and copy the rulemaking docket for this document at the EPA Region IX office. We may charge you a reasonable fee for copying parts of the docket.
Copies of the SIP materials are also available for inspection at the address listed below: Arizona Department of Environmental Quality, Office of Outreach and Information, First Floor, 3033 N. Central Avenue, Phoenix, AZ 85012–2809
Dave Jesson, Air Planning Office (AIR–2), EPA Region 9, at (415) 972–3957 or:
In the Rules and Regulations section of this
Environmental Protection Agency (EPA).
Proposed rule.
EPA is proposing to approve the moderate area plan and maintenance plan for the Bullhead City area in Arizona and grant a request submitted by the State to revise the boundaries and redesignate the area from nonattainment to attainment for the air quality standards for particulate matter with an aerodynamic diameter less than or equal to a nominal 10 micrometers (PM10).
Comments on this proposal must be received by July 26, 2002.
Please address your comments to Dave Jesson, Air Planning Office (AIR–2), Air Division, U.S. EPA, Region 9, 75 Hawthorne Street, San Francisco, CA 94105–3901. You may inspect and copy the rulemaking docket for this document at the EPA Region IX office. We may charge you a reasonable fee for copying parts of the docket.
Copies of the SIP materials are also available for inspection at the address listed below: Arizona Department of Environmental Quality, Office of Outreach and Information, First Floor, 3033 N. Central Avenue, Phoenix, AZ 85012–2809.
Dave Jesson, Air Planning Office (AIR–2), EPA Region 9, at (415) 972–3957 or:
In the Rules and Regulations section of this
Federal Emergency Management Agency (FEMA).
Proposed rule.
Technical information or comments are requested on the proposed Base (1% annual-chance) Flood Elevations (BFEs) and proposed BFE modifications for the communities listed below. The BFEs and modified BFEs are the basis for the floodplain management measures that the community is required either to adopt or to show evidence of being already in effect in order to qualify or remain qualified for participation in the National Flood Insurance Program (NFIP).
The comment period is ninety (90) days following the second publication of this proposed rule in a newspaper of local circulation in each community.
The proposed BFEs for each community are available for inspection at the office of the Chief Executive Officer of each community. The respective addresses are listed in the following table.
Matthew B. Miller, P.E., Chief, Hazards Study Branch, Federal Insurance and Mitigation Administration, FEMA, 500 C Street, SW., Washington, DC 20472, (202) 646–3461 or (e-mail)
FEMA proposes to make determinations of BFEs and modified BFEs for each community listed below, in accordance with section 110 of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4104, and 44 CFR 67.4(a).
These proposed BFEs and modified BFEs, together with the floodplain management criteria required by 44 CFR 60.3, are the minimum that are required. They should not be construed to mean that the community must change any existing ordinances that are more stringent in their floodplain management requirements. The community may at any time enact stricter requirements of its own, or pursuant to policies established by other Federal, State, or regional entities. These proposed elevations are used to meet the floodplain management requirements of the NFIP and are also used to calculate the appropriate flood insurance premium rates for new buildings built after these elevations are made final, and for the contents in these buildings.
This proposed rule is categorically excluded from the requirements of 44 CFR part 10, Environmental Consideration. No environmental impact assessment has been prepared.
The Acting Administrator for Federal Insurance and Mitigation Administration certifies that this proposed rule is exempt from the requirements of the Regulatory Flexibility Act because proposed or modified BFEs are required by the Flood Disaster Protection Act of 1973, 42 U.S.C. 4104, and are required to establish and maintain community eligibility in the NFIP. No regulatory flexibility analysis has been prepared.
This proposed rule is not a significant regulatory action under the criteria of Section 3(f) of Executive Order 12866 of September 30, 1993, Regulatory Planning and Review, 58 FR 51735.
This proposed rule involves no policies that have federalism implications under Executive Order 12612, Federalism, dated October 26, 1987.
This proposed rule meets the applicable standards of Section 2(b)(2) of Executive Order 12778.
Administrative practice and procedure, Flood insurance, Reporting and record keeping requirements.
Accordingly, 44 CFR part 67 is proposed to be amended as follows:
1. The authority citation for part 67 continues to read as follows:
42 U.S.C. 4001
2. The tables published under the authority of § 67.4 are proposed to be amended as follows:
National Highway Traffic Safety Administration (NHTSA), Department of Transportation (DOT).
Notice of proposed rulemaking.
Pursuant to the Motor Vehicle Theft Law Enforcement Act of 1984, NHTSA issued the Federal Motor Vehicle Theft Prevention Standard requiring specified parts of high-theft vehicles to be marked with an identifying number. The Anti Car Theft Act of 1992 requires NHTSA to conduct a rulemaking to extend the parts marking requirements of that Standard to all passenger cars and multipurpose passenger vehicles with a gross vehicle weight rating of 6,000 pounds or less, regardless of theft rate, unless the Attorney General finds that such a requirement would not substantially inhibit chop shop operations and motor vehicle thefts. The Attorney General has examined the evidence and concluded that the standard should be extended. Therefore, NHTSA is required to issue this proposal to extend the parts marking requirements to all passenger cars and multipurpose passenger vehicles with a gross vehicle weight rating of 6,000 pounds or less, and to light duty trucks with major parts that are interchangeable with a majority of the covered major parts of multipurpose passenger vehicles.
Comments must be received on or before August 26, 2002.
You may submit your comments in writing to: Docket Section, National Highway Traffic Safety Administration, 400 Seventh Street, SW., Washington, DC 20590. Alternatively, you may submit your comments electronically by logging onto the Docket Management System (DMS) website at
For technical and policy issues, you may call Deborah Mazyck, Office of Planning and Consumer Programs, (Telephone: 202–366–0846) (Fax: 202–493–2290).
For legal issues, you may call Dion Casey, Office of Chief Counsel (Telephone: 202–366–2992) (Fax: 202–366–3820).
You may send mail to both of these officials at National Highway Traffic Safety Administration, 400 Seventh Street, SW., Washington, DC 20590.
You may call Docket Management at 202–366–9324. You may visit the Docket from 10 a.m. to 5 p.m., Monday through Friday.
A copy of the draft justification statement for the proposed collection of information associated with this rulemaking may be obtained by contacting Walter Culbreath, NHTSA Information Collection Clearance Officer, Office of Administration (Telephone: 202–366–1566). Please identify the relevant collection of information by referring to OMB Clearance No. 2127–0510. A copy of the draft justification statement will also be available in the docket. The docket number is in the heading of this notice.
In 1984, Congress enacted the Motor Vehicle Theft Law Enforcement Act (the 1984 Theft Act) in response to escalating motor vehicle thefts.
In response, NHTSA issued the Federal Motor Vehicle Theft Prevention Standard (49 CFR part 541). (50 FR 43166, October 24, 1985). The standard applies only to those motor vehicle lines that the agency has designated as high-theft.
Manufacturers can meet the parts marking requirements with indelibly marked labels that cannot be removed without becoming torn or rendering the number on the label illegible. If removed, the labels must leave a residue on the part after being removed so that investigators will have evidence that a label was originally present. Alteration of the number on the label must leave traces of the original number or otherwise visibly alter the appearance of the label material. A replacement major part must be marked with the registered trademark of the manufacturer of the replacement part, or some other unique identifier, and the letter “R”.
The 1984 Theft Act allowed for an exemption from the parts marking requirements for certain vehicle lines in which antitheft devices were installed as standard equipment. The 1984 Theft Act limited each manufacturer to two new exemptions per model year.
In 1991, NHTSA submitted a report to Congress assessing the motor vehicle theft problem and evaluating the effectiveness of parts marking.
Nevertheless, the agency found wide support for parts marking in the law enforcement community. Investigators stated that parts marking provided them with a valuable tool for detecting, apprehending, and prosecuting vehicle thieves. After considering the evidence and public comments obtained during the preparation of the 1991 report, the agency recommended that the theft prevention standard be continued with minor changes.
As a result of the agency's recommendations and other information, Congress enacted the Anti Car Theft Act of 1992 (the 1992 Theft Act). The 1992 Theft Act extended the parts marking requirements to multipurpose passenger vehicles (MPVs) (i.e., passenger vans and sport-utility vehicles) and light duty trucks (pickup trucks and cargo vans) with a gross vehicle weight rating (GVWR) of 6,000 pounds or less that NHTSA designated as high-theft. The 1992 Theft Act also extended the parts marking requirements to selected motor vehicle lines that were below the 1990/1991 median theft rate.
As in the 1984 Theft Act, the 1992 Theft Act required NHTSA to report to Congress on the effects of the Act on trends in motor vehicle thefts and recovery by 1997.
Under the 1992 Theft Act, the Secretary of Transportation is required to apply the parts marking requirements to the remaining lines of passenger motor vehicles (except light duty trucks) if the Attorney General finds in the initial review that they should be so applied.
On July 21, 2000, the Attorney General submitted the initial review to NHTSA. The Attorney General has not yet completed the long-range review.
In the July 21, 2000 initial review, the Attorney General reported to the Secretary of Transportation on the effectiveness of the parts marking requirements.
After conducting an initial review of the effectiveness of the vehicle theft prevention standard as required by the Act, I have determined that the available evidence warrants application of the vehicle theft prevention standard to the remaining motor vehicle lines. That is, the evidence does not support a finding that requiring motor vehicle manufacturers to mark major parts in all motor vehicle lines will not substantially inhibit chop shop operations and motor vehicle thefts. Therefore, the parts marking requirement should be expanded.
The Attorney General based this conclusion on information from several sources, including data from the Federal Bureau of Investigation (FBI), which reported automobile thefts by model, model year, state, and registration year from 1981 through 1995, and R.J. Polk, Inc., which provided data on car registrations for that time period. The Department of Justice (DOJ) also contracted with Abt Associates to report on the effectiveness of automobile parts marking.
Motor vehicle thefts occur for a variety of reasons that can generally be used to group thefts into two categories: professional and non-professional.
Chop shop operations are businesses that acquire stolen vehicles or hire thieves to provide vehicles so that parts can be removed and sold for profit. These parts may eventually be bought by others to repair damaged vehicles since they sell for substantially less than original equipment parts.
Theft and retag occurs when vehicles are stolen and sold for profit to be registered under another VIN. The new VIN and title are obtained by purchasing a junked vehicle of the same make and model. The VIN plate is transferred from the junked vehicle to the stolen vehicle, and the title is altered to match the stolen vehicle.
Thefts for export occur when vehicles are stolen and illegally shipped out of the United States to be sold for profit.
Non-professionals steal vehicles primarily for three purposes: insurance fraud, concealing one's identity while committing another crime, and joyriding or temporary transportation.
An individual commits insurance fraud by “stealing” his or her own vehicle, or having somebody else “steal” and hide it, so he or she can collect its insured value. After the insurance company pays, the vehicle may be abandoned by the thieves, eventually recovered, and end up as the property of the insurance company. Insurance fraud usually occurs when the owner is in financial distress or the actual value of a vehicle is much lower than its insured value.
Non-professional vehicle thieves also steal vehicles to conceal their identity while committing another crime, since the stolen vehicle cannot easily be traced to the criminal. These thieves usually use stolen vehicles for transportation to and from the scene of the crime. Such vehicles usually are abandoned soon afterward and eventually recovered.
Finally, non-professionals steal vehicles for joyriding or temporary transportation. Such vehicles are usually abandoned and recovered after a matter of hours or days.
According to data from the FBI's National Crime Information Center (NCIC), almost 1.2 million motor vehicles were stolen in 1995. Passenger cars accounted for 71 percent of all motor vehicle thefts in 1995. Light duty trucks and MPVs accounted for 24 percent. The remaining five percent were thefts of motorcycles, buses, and heavy trucks.
Of the more than 1 million vehicles stolen each year, approximately 200,000 are never recovered. Chop shop operations, theft and retagging, thefts for export, and insurance fraud are believed to account for most of the unrecovered vehicles.
The overall cost of motor vehicle thefts to the United States economy is difficult to estimate. Not all thefts are reported. The precise value of stolen and recovered vehicles may be unknown. Moreover, ancillary costs, such as insurance administration, police work, and the loss of victims' time (i.e., filling out reports, appearing in court, acquiring substitute transportation, etc.) are difficult to gauge.
However, motor vehicle theft is the number one property crime in the United States. The FBI estimates that in calendar year 2000, there were 1,165,559 reported stolen vehicles with an average value of $6,682; thus, the total value of vehicles stolen was almost $7.8 billion.
Parts marking deters motor vehicle theft and aids theft investigators in several ways. First, when a car is stolen, as long as the marking on at least one part remains intact, investigators can more easily trace the car to its owner, prove it was stolen, and make an arrest. Second, motor vehicle theft investigators in many jurisdictions have been given the authority to seize parts or vehicles when markings have been damaged or removed. Third, investigators in most jurisdictions treat the absence of intact markings as a “red flag” indicating a need for further investigation. Fourth, in those jurisdictions requiring inspections of restored cars before they can be re-titled, parts marking assists officers in identifying vehicles that have been reassembled using stolen parts.
Parts marking also aids in prosecuting chop shop owners and dealers in stolen vehicles and parts. The ease with which thieves, operators of chop shops, and dealers in stolen parts can be prosecuted is a significant deterrent to motor vehicle theft and the operation of chop shops.
NHTSA believes that parts marking deters professional rather than non-professional motor vehicle thieves. Parts marking allows law enforcement agencies to identify stolen vehicles or parts removed from stolen vehicles. This makes it more difficult for professional thieves to market stolen vehicles and parts, and aids officials in apprehending and prosecuting professional thieves.
Parts marking probably does not deter non-professional thieves who steal motor vehicles to use for joyriding or temporary transportation since these thieves do not intend to re-sell the vehicles or their parts. Non-professional thieves probably are deterred more by anti-theft devices (e.g., car alarms) that make vehicles more difficult to steal.
Abt Associates conducted an analysis of auto theft data to determine the effectiveness of parts marking. NHTSA provided Abt Associates with theft and recovery data. NHTSA's data came from two principal sources: the FBI, which reported automobile thefts, and R.J. Polk, Inc., which provided data on car registrations. Both data sets were classified by model, model year, state, and registration year from 1984 through 1995. Taken together, these two sets of data yielded estimates of the automobile theft rates for that time period.
NHTSA also provided Abt Associates with information indicating which cars were subject to the parts marking requirements. Abt Associates augmented these data by adding information based on Census statistics and FBI Uniform Crime Reports, and analyzing data on automobile theft from the National Crime Victimization Survey (NCVS.)
Abt Associates' best estimate is that between 33 and 158 fewer cars are stolen by professional thieves per 100,000 cars that were marked between 1987 and 1995. Abt Associates stated that they were not confident that the statistical analysis accurately estimated the effect of parts marking for various reasons. Nevertheless, Abt Associates stated that the available evidence is consistent with the conclusion that parts marking does reduce automobile theft, even if the size of the effect is uncertain.
This finding is consistent with the findings in NHTSA's 1998 Report to Congress. The agency was unable to generate reliable quantitative estimates of the effectiveness of parts marking. However, the agency's analysis found several indications that parts marking was having beneficial effects. For example, the agency noted that for model years 1986 and 1987, when the parts marking requirements were introduced, cars with marked parts had lower theft rates than expected, while those with unmarked parts had higher rates than expected.
The 1984 Theft Act limits the cost that may be imposed by the parts marking requirements to $15 per vehicle (in 1984 dollars).
Based on a 1988 NHTSA study, the agency estimated that the average cost of parts marking was $4.14 per vehicle in 1988 dollars.
In its 1998 Report to Congress, discussed in greater detail below, NHTSA estimated that in order to be cost effective, parts marking would have to reduce by two percent theft among vehicles that were up to three years old.
As noted above, the 1992 Theft Act requires the Secretary of Transportation to apply the parts marking requirements to the remaining lines of passenger motor vehicles (except light duty trucks) unless the Attorney General finds in the initial review that such a requirement would not substantially inhibit chop shop operations and motor vehicle thefts. As noted above, after studying the available evidence, the Attorney General concluded that the evidence does not support a finding that requiring motor vehicle manufacturers to mark major parts in all motor vehicle lines would not substantially inhibit chop shop operations and motor vehicle thefts and therefore found that the standard should be extended.
Accordingly, the agency is proposing that the parts marking requirement be applied to all “remaining lines,” which includes passenger cars and MPVs, but not light duty trucks, with a GVWR of 6,000 pounds or less. Light duty trucks, i.e., pickup trucks and cargo vans, would continue to be subject to the current procedures for selecting high-theft lines to be covered by the theft prevention standard.
NHTSA notes that 49 CFR 542.2 provides procedures for selecting new low theft vehicle lines with major parts that are interchangeable with a majority of the major parts of a high theft vehicle line. These low theft vehicle lines with interchangeable parts are subject to the parts marking requirements.
The agency specified this requirement in a final rule mandated by the 1984 Theft Act, which provided:
Lines whose theft rate is or is likely to be below the median theft rate, but whose major component parts are interchangeable with a majority of the major component parts of a line that is subject to the theft prevention standard * * *, are high theft lines * * * However, car lines whose theft rate is or is likely to be below the median theft rate will not be treated as high theft lines * * * if such low theft or likely low theft lines account for greater than 90 percent of total production of all lines containing such interchangeable parts. (50 FR 34831, August 28, 1985).
In explaining the purpose of this requirement, NHTSA stated:
Congress determined that, although certain vehicles are not themselves from a high theft line, the high degree of interchangeability of their parts with those of a high theft line would make these otherwise low theft vehicles likely targets for car thieves. As likely targets for car thieves, Congress determined that all covered major parts on these vehicles should be marked, not just those that were interchangeable with the covered major parts of the high theft line. This will serve as an additional deterrent to the theft of these vehicles. (50 FR 34835, August 28, 1985).
NHTSA believes that under the changes proposed in this document, a similar situation could arise with MPV
An example of this is the General Motors Savana Van. There are two classes of the Savana Van, a passenger van version, which is classified as an MPV, and a cargo van version, which is classified as a light duty truck. Under the agency's proposal, the passenger van version would have to be marked because it is an MPV, while the cargo van version would not have to be marked, unless General Motors or NHTSA designated it as a high theft line.
Many of the major parts of these two vans are identical. If the agency does not require both versions to be marked, law enforcement could be compromised. For example, if police officers found a fender from a Savana Van at a chop shop, they would not be able to determine whether it should have been marked.
To address this problem, NHTSA is proposing to add a new §542.3, modeled on § 542.2.
The agency is proposing to exclude low theft light duty truck lines that have major parts that are interchangeable with a majority of the covered major parts of multipurpose passenger vehicles if those light duty trucks account for more than 90 percent of the total production of all lines containing those interchangeable parts. As noted above, in the 1984 Theft Act Congress specifically excluded vehicle lines that are low theft but have major parts that are interchangeable with a majority of the covered parts of a high theft vehicle line if the low theft line accounted for more than 90 percent of the total production of all lines containing those interchangeable parts, and NHTSA specifically excluded such vehicle lines in the 1985 final rule establishing 49 CFR part 542.
NHTSA requests comment on the number of light duty truck lines that would have to be marked under this proposal because they have major parts that are interchangeable with a majority of the covered parts of a MPV. The agency also requests comment on the cost of extending the parts marking requirements to all the vehicle lines discussed above, and on the potential effectiveness of parts marking in deterring thefts of these vehicles.
NHTSA is proposing September 1, 2005 as the effective date for the new rule. The agency believes that this would provide enough lead-time to allow manufacturers to mark new vehicle lines and those vehicle lines previously determined to be low-theft, and thus not subject to the parts marking requirements. Although NHTSA believes that marking parts on additional vehicle lines would not be difficult, the agency believes that manufacturers may need this lead-time to buy additional parts-marking equipment, determine vehicles' target areas for parts marking, and decide whether to submit a petition for exemption from the parts marking requirements. The agency requests comment on whether this is sufficient lead-time for manufacturers.
When labels are used to comply with the parts marking requirements, 49 CFR Part 541 requires that the VIN or VIN derivative be printed indelibly on the label, and that the label be permanently affixed to the part. If the label is removed, it must self-destruct by tearing or making the VIN illegible. Removing the label also must alter the appearance of the area where the label was affixed so that evidence remains that a label was originally there. Any attempts to alter the number on a label must leave traces of the original number.
NHTSA adopted these performance requirements in the final rule establishing the theft prevention standard. (50 FR 43166, October 24, 1984). In the final rule, NHTSA noted that several commenters, including law enforcement agencies, suggested that the agency mandate the use of a particular marking system, such as stamping or glass etching. The commenters asserted that the use of a particular marking system would ensure the greatest effectiveness for the theft prevention standard.
In response, the agency noted that it did not have the authority to mandate the use of any particular marking system. Under the 1984 Theft Act, the agency had authority only to establish performance criteria that would accomplish the purposes of the 1984 Theft Act. This conclusion was based on the legislative history of the 1984 Theft Act. The agency quoted from page 10 of the House Committee Report accompanying the 1984 Theft Act:
The DOT will establish the tests or general criteria which the identification must meet, but not how it is to be inscribed or affixed. That is the choice of each manufacturer. For example, we understand that a tamper-resistant label exists. If it can meet the performance tests or general criteria prescribed by the standard, the manufacturer may choose to use it to comply with the standard. (H.R. Rep. No. 1087, 98th Cong., 2d Sess., at 10 (1984), hereinafter cited as H. Rept.). (50 FR 43166).
The House Committee Report identified the following three essential purposes for the 1984 Theft Act:
(1) To prevent thefts and reduce the ease with which certain stolen vehicles and their major parts can be fenced;
(2) To try to minimize regulation of the domestic and foreign motor vehicle manufacturing industry; and
(3) To give law enforcement officers at all levels of government the much-needed prosecutory tools to crack criminal theft rings and related racketeering activities. H. Rept. at 2.
The agency believed that the requirements of the theft prevention standard, as written in the final rule, would serve all of these purposes. The standard required any markings affixed to a part to be permanent, and removal of the markings to discernibly alter the appearance of that area of the part where the label was affixed. In addition, the agency noted that the 1984 Theft Act made it a crime to possess a part from which the identification number had been removed,
The agency also addressed this issue in its response to petitions for reconsideration of the final rule. In their petitions, three law enforcement groups objected to the absence of a requirement
The agency responded:
With respect to the request that the markings be required to be stamped into some covered major parts, NHTSA again concludes that the clearly-expressed Congressional intent would not allow the agency to require explicitly that markings be stamped into the parts. However, NHTSA acknowledges that it could indirectly require markings to be inscribed into some parts by setting higher performance standards for those parts. For instance, NHTSA could add a performance standard for some parts that the marking must be capable of being restored to its original form by chemical means, if the marking is altered or obliterated. Such a requirement would force manufacturers to inscribe the markings into those parts, by etching, sandblasting, stamping, and the like. However, NHTSA has concluded that it would be premature to impose such a requirement. (51 FR 8831, March 14, 1986).
The agency concluded that it would be premature to impose such a requirement because there was not any empirical evidence that affixed markings complying with the performance requirements in the final rule would not adequately serve the needs of law enforcement. However, the agency stated, “If it becomes clear that affixed markings are, in fact, not serving the legitimate needs of law enforcement, NHTSA will consider amending the performance requirements of this theft prevention standard.” (51 FR 8831, March 14, 1986).
On June 26, 1997, NHTSA published a preliminary version of its 1998 Report to Congress on the effectiveness of the parts marking requirements in the
Vehicle manufacturers opposed more permanent methods of parts marking. The American Automobile Manufacturer's Association (AAMA), whose members were Chrysler Corporation, Ford Motor Company, and General Motors Corporation, claimed that requiring the stamping or inscribing of the VIN into major vehicle parts would result in a “substantial increase in costs.” However, AAMA stated that it had not had time to develop cost estimates.
As part of its 1999 report to the Attorney General, Abt Associates conducted a survey of auto theft investigators from 47 jurisdictions, including 31 of the 32 largest cities in the U.S. (plus Miami), six smaller municipalities, and nine State agencies. These jurisdictions include the majority of jurisdictions with the highest auto theft rates in the U.S. The investigators reported that the most serious obstacle to making more effective use of the parts marking labels is that they are easy to remove and, once removed, it is impossible to prove that the parts are stolen because the owner cannot be traced.
The DOJ published the Abt Associates' report in the
The investigators surveyed overwhelmingly supported more permanent markings, as did those who commented in response to the DOJ Notice * * * In fact, investigators identified the lack of permanence as the most significant obstacle to increasing the effective use of markings.
Based on the Abt Associates survey and these comments, the Attorney General stated in the July 21, 2000 initial review, “I have concluded that permanence is at the heart of any effective marking system, and therefore I urge DOT to require permanent, non-removable markings.” However, the Attorney General did not suggest any specific requirements or methods for more permanent markings.
Based on the comments of law enforcement agencies to both NHTSA's preliminary version of its 1998 Report to Congress,
The first several questions are similar to questions that the agency asked when it published the preliminary version of its 1998 Report to Congress.
1. Are there more permanent methods of parts marking that can be accomplished within the Congressionally mandated cost limit of $24.86 (in 2000 dollars) per vehicle?
2. Please include documentation on the markings method, how permanent the markings are (how difficult it is to remove the markings and what evidence is likely to remain after removal that there were markings), and cost estimates, including the cost of any materials, equipment, tooling, and labor. If the application of performance requirements necessitating the use of more permanent methods were limited so that they applied to only some of the parts required to be marked, which parts should be marked by those methods and how much cost could be saved.
3. Please identify the economic year for the cost estimates.
4. Please describe how the markings are applied using the more permanent
In addition, the agency requests answers to the following new questions:
5. Are more permanent methods of parts marking necessary?
6. As discussed above, NHTSA does not have the authority to adopt a requirement that expressly identifies a specific method of parts marking, such as stamping or etching, and mandate it. However, it can adopt performance requirements that have the effect of requiring a particular method or methods. With that in mind, what objective performance requirements and test procedures would be effective and appropriate for requiring more permanent methods of parts marking?
7. How would these performance requirements and test procedures ensure that insufficiently permanent parts marking methods would be disallowed?
NHTSA will use the answers to these questions in deciding whether to issue a separate proposal for new performance requirements and test procedures.
Currently, air bags and window glazing are not classified as major parts subject to the parts marking requirements.
The agency's latest data show that 65.5 million passenger cars are equipped with frontal air bags (51.6 million with dual air bags, and 13.9 million with only a driver-side air bag); 40.3 million light trucks and MPVs are equipped with frontal air bags (28.7 million with dual air bags, and 11.6 million with only a driver-side air bag); 3.2 million passenger cars are equipped with side air bags; and 1.3 million light trucks and MPVs are equipped with side air bags.
The National Insurance Crime Bureau reports that approximately 50,000 air bags are stolen each year, resulting in an annual loss of more than $50 million to vehicle owners and their insurers. The cost to replace air bag modules ranges from $500 to $1,500. The agency is particularly concerned by thefts of air bags because they are an important piece of safety equipment. The agency believes that marking air bags could aid in parts recovery and for use as evidence of vehicle theft.
The agency does not believe that window glazing theft is a widespread problem. Window glazing markings are not for the purpose of preventing glazing from being stolen, but for the purpose of deterring vehicle theft, especially theft and retag operations. The agency believes that marking glazing could provide additional identification of motor vehicles and their replacement parts, as well as providing an additional deterrent to theft of the entire vehicle.
Both the 1998 NHTSA Report to Congress and the 1999 Abt Associates report addressed the issue of expanding the parts marking requirements to cover additional parts. Results of Abt's survey of auto theft investigators indicate that almost all investigators would like the parts marking requirements expanded to cover additional parts. Several commenters on NHTSA's preliminary version of its 1998 Report to Congress supported extending parts marking to air bags and window glazing. Law enforcement agencies and consumer organizations favored subjecting air bags and window glazing to the parts marking requirements. The Florida Motor Vehicle Theft Prevention Authority stated:
Theft of air bags is a significant problem, and there are few tools that exist to assist the auto theft investigator in identifying stolen air bags, and more importantly, in being able to prosecute individuals for the purchase and sale of stolen air bags.
The Metropolitan Dade County (Florida) Police Department asserted:
Window etching is another visible marking that needs to be placed on all vehicles at the factory. Window etching acts as a deterrent and an investigative tool. Chop shop operations have had to replace all of the glass on stolen vehicles. Many times this changing of glass is readily identifiable to auto theft investigators. Numerous times, thieves have left windows with the original VIN etched on while altering the rest of the vehicle.
Vehicle manufacturers opposed subjecting air bags and window glazing to the parts marking requirements. Toyota claimed that requiring window glazing to be marked would result in “additional and unreasonable labor costs to coordinate the marking numbers of the glazing materials with their respective vehicles, all without any demonstrable benefit.” The AAMA stated that there are serious problems with marking air bag modules for the following reasons:
Modules are not designated for a specific vehicle prior to installation in the vehicle. Stamping of the air bag housing as a separate part prior to assembly of the air bag is not practicable. In addition, stamping the air bag module at the vehicle assembly plant is also not practicable due to the inherent risk of damage to the module, plus the risk of accidental deployment.
Based on the effectiveness of parts marking in reducing thefts of vehicles and major parts, NHTSA believes that classifying air bags and glazing as major parts subject to the parts marking requirements could deter air bag and vehicle thefts and aid law enforcement agencies in apprehending and prosecuting the thieves. However, the agency currently does not have the statutory authority to subject air bags and window glazing to the parts marking requirements.
8. What information exists regarding the frequency with which the absence of marking requirements for air bags and glazing compromises law enforcement?
9. Assuming that the agency had the necessary authority, would it be sufficient if the agency required the marking of only specified glazing, e.g., the front and rear windshield glazing, instead of all glazing in a vehicle? If so, which glazing should be specified?
10. How would such a limitation affect the costs of glazing marking?
11. Would marking air bags with the VIN of a specific vehicle be practicable given that they are not designated for a specific vehicle prior to installation?
12. Assuming that the agency had the necessary authority, should the agency require the marking of only frontal air bags, or all air bags, i.e., frontal, side, and side head air bags?
Please provide a rationale with evidence to support any recommendations.
The agency notes that this proposed rule would have no effect on exemptions from the parts marking
Under section 33106(2), manufacturers were permitted up to two new exemptions per model year for the model years 1988–1996. For the model years 1997–2000, manufacturers were permitted only one new exemption per model year. After the model year 2000, the number of new exemptions is contingent on findings by the Attorney General.
As discussed earlier in this document, the statute requires the Attorney General to submit two reports, an initial review of the effectiveness of parts marking,
To date, the Attorney General has submitted only the initial review, not the long-range review.
In the absence of this review, NHTSA faced the question of whether Congress intended to terminate the exemption authority after model year 2000, or whether it intended the exemptions to be continued pending the Attorney General's decision. After consulting with the Department of Justice, the agency determined that the appropriate reading of the statute is that NHTSA may continue to grant one new exemption per model year as specified by the statute for model years 1997–2000, pending the Attorney General's decision. Thus, the agency has continued to such exemptions.
This proposed rule would not affect these exemptions. Manufacturers would still be allowed to petition the agency to exempt one new line each model year, if the line is equipped with an anti-theft device as standard equipment. NHTSA will revisit this issue when the Attorney General submits the long-range review to the agency.
Currently, there are approximately 4 vehicle manufacturers that qualify as small businesses under the Small Business Administration's regulations. Because of their small sales volumes, these manufacturers' vehicles have not been subject to the theft prevention standard. Extending the theft prevention standard to all passenger cars and MPVs will require these manufacturers to comply with the standard for the first time.
There are fixed costs associated with parts marking. With large vehicle manufacturers, these fixed costs are spread out over such large numbers of vehicles as to be insignificant. However, with small vehicle manufacturers, these fixed costs would be spread out over a much smaller number of vehicles.
The agency estimates that the total costs for any vehicle manufacturer that makes fewer than 373 vehicles for sale in the U.S. per year would exceed the statutory limit of $24.86 per vehicle. Thus, the agency is proposing to exclude small volume manufacturers, i.e., those who make fewer than 500 vehicles for sale in the U.S. each year, from the expansion of the theft prevention standard proposed in this document.
The agency requests comment on this issue.
Following is a summary of the estimated costs and benefits associated with this proposed rule. For a more detailed analysis, see the agency's Preliminary Regulatory Evaluation (PRE). A copy of the PRE has been placed in the docket.
NHTSA estimates that the cost of parts marking in 2000 dollars is $6.03 per vehicle. The agency estimates that the proposed rule would subject an additional 3.25 million vehicles per year
In addition, the agency notes that each replacement part for a part required to be marked must be marked with the manufacturer's registered trademark, or some other unique identifier, and the letter “R.” Under this proposal, the parts of 3.25 million additional vehicles would have to be marked. NHTSA does not know the number of replacement parts sold each year for 3.25 million vehicles. However, the agency estimates the cost of marking a replacement part to be $0.50 per part.
In calendar year 2000, there were 1,165,559 reported stolen vehicles with an average value of $6,682; thus, the total value of vehicles stolen was almost $7.8 billion.
Executive Order 12866, “Regulatory Planning and Review” (58 FR 51735, October 4, 1993), provides for making determinations whether a regulatory action is “significant” and therefore subject to Office of Management and Budget (OMB) review and to the requirements of the Executive Order. The Order defines a “significant regulatory action” as one that is likely to result in a rule that may:
(1) Have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or Tribal governments or communities;
(2) Create a serious inconsistency or otherwise interfere with an action taken or planned by another agency;
(3) Materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or
(4) Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the Executive Order.
This rulemaking document was not reviewed under Executive Order 12866. It is not significant within the meaning of the DOT's Regulatory Policies and Procedures. However, the agency has prepared a Preliminary Regulatory Evaluation (PRE) for this proposed rule. A copy of the PRE has been placed in the docket.
This mandated regulatory action would extend the parts marking requirements to all passenger cars and multipurpose passenger vehicles (but not light duty trucks) with a GVWR of 6,000 pounds or less. The agency estimates that this regulatory action would extend the parts marking requirements to approximately 3.25 million vehicles each year, and the replacement parts for those vehicles. The agency estimates that the cost of parts marking is $6.03 per vehicle (in 2000 dollars). Thus, the annual cost would be $19.6 million.
The agency also estimates that the cost of marking replacement parts is $0.50 per part. The agency does not know how many replacement parts are sold each year for 3.25 million vehicles. However, since the cost of marking replacement parts is only $0.50, the agency does not believe that the total cost of marking replacement parts would be substantial. Thus, the agency tentatively concludes that this regulatory action would have less than a $100 million annual effect on the economy.
Pursuant to the Regulatory Flexibility Act (5 U.S.C. 601
NHTSA has considered the effect of this proposed rule under the Regulatory Flexibility Act. As noted above, this proposed rule would extend the parts marking requirements to approximately 3.25 million additional vehicles per year, and to the replacement parts for those vehicles. This proposed requirement would affect manufacturers of vehicles and replacement parts.
As noted above, the agency is proposing to exclude manufacturers that make fewer than 500 vehicles for sale in the U.S. each year from the theft prevention standard.
The agency has no information on the number of small manufacturers of replacement parts. However, since NHTSA estimates that the cost of marking replacement parts is only $0.50 per part, the agency believes that this proposed rule would not have a significant impact on these manufacturers.
Based on this analysis, I certify that this proposed rule would not have a significant economic impact on a substantial number of small entities.
NHTSA has analyzed this rulemaking action for the purposes of the National Environmental Policy Act. The agency has determined that implementation of this proposed rule would not have any significant impact on the quality of the human environment.
Executive Order 13132 requires NHTSA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” is defined in the Executive Order to include regulations that have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.” Under Executive Order 13132, the agency may not issue a regulation with Federalism implications, that imposes substantial direct compliance costs, and that is not required by statute, unless the Federal government provides funds necessary to pay the direct compliance costs incurred by State and local governments, the agency consults with State and local governments, or the agency consults with State and local officials early in the process of developing the proposed regulation. NHTSA also may not issue a regulation with Federalism implications and that preempts State law unless the agency consults with State and local officials early in the process of developing the proposed regulation.
The agency has analyzed this proposed rule in accordance with the principles and criteria set forth in Executive Order 13132 and has determined that it would not have sufficient federalism implications to warrant consultation with State and local officials or the preparation of a federalism summary impact statement. The proposal would not have any substantial effects on the States, or on the current Federal-State relationship, or on the current distribution of power and responsibilities among the various local officials.
This proposed amendment would not have any retroactive effect. Under 49 U.S.C. 33118, whenever a Federal motor vehicle theft prevention standard is in effect, a State or political subdivision of a State may not adopt or maintain a different theft prevention standard for a motor vehicle or replacement part. 49 U.S.C. 32909 sets forth a procedure for judicial review of final rules establishing, amending, or revoking Federal motor vehicle theft prevention standards. That section does not require submission of a petition for reconsideration or other administrative proceedings before parties may file suit in court.
Under the Paperwork Reduction Act of 1995 (PRA), a person is not required to respond to a collection of information by a Federal agency unless the collection displays a valid OMB control number. The current parts marking requirements in 49 CFR part 541 are considered a “collection of information,” as that term is defined by OMB in 5 CFR part 1320. The OMB control number for those information collection requirements is 2127–0510. If adopted, this proposed rule would expand the parts marking requirements in 49 CFR part 541 to all passenger cars and multipurpose passenger vehicle lines with a GVWR of 6,000 pounds or
NHTSA has determined that, if made final, this proposed rule would impose new collection of information burdens within the meaning of the Paperwork Reduction Act of 1995 (PRA). Under the PRA, before an agency submits a proposed collection of information to OMB for approval, it must publish a document in the
(i) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(ii) the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
(iii) how to enhance the quality, utility, and clarity of the information to be collected; and
(iv) how to minimize the burden of the collection of information on those who are to respond, including the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, e.g., permitting electronic submission of responses.
In compliance with these requirements, NHTSA asks public comment on the collection of information proposed in this notice of proposed rulemaking. Interested persons may obtain a copy of the draft justification statement by contacting Walter Culbreath, NHTSA Information Collection Clearance Officer at (202) 366–1566. A copy of the draft justification statement will also be available at the docket number cited in the heading of this notice. Comments must be received on or before August 26, 2002.
If the information were not available, the legislative goal of a comprehensive scheme against automobile theft would be frustrated. The Theft Prevention Standard would not effectively deter “chop shop” operators because law enforcement officials could not readily identify parts in the operators' possession as stolen. Also, without parts marking, when stolen parts are recovered, the parts could not be easily traced back to the owner and returned to the owner or insurer.
If this proposed rule is made final, the part 542 procedure for manufacturers to make high theft/low theft
Thus, NHTSA estimates that if this proposed rule is made final, the collection of information burden associated with part 542 would be reduced by 75 percent (since new passenger cars and multipurpose passenger vehicles would be excluded), and would decline from 640 hours to 160 hours. NHTSA estimates that if this proposed rule is made final, the collection of information burden associated with part 543 would be reduced by 75 percent, and would decline from 64 hours to 26 hours.
Section 12(d) of the National Technology Transfer and Advancement Act (NTTAA) of 1995 (15 U.S.C. 272) directs NHTSA to use voluntary consensus standards in regulatory activities unless doing so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., materials specifications, test methods, sampling procedures, and business practices) that are developed or adopted by voluntary consensus standards bodies, such as the Society of Automotive Engineers (SAE). The NTTAA directs NHTSA to provide Congress, through OMB, explanations when the agency decides not to use available and applicable voluntary consensus standards.
There are no applicable voluntary consensus standards available at this time.
Section 202 of the Unfunded Mandates Reform Act of 1995 (UMRA) requires Federal agencies to prepare a written assessment of the costs, benefits, and other effects of proposed or final rules that include a Federal mandate likely to result in the expenditure by State, local, or tribal governments, in the aggregate, or by the private sector, of more than $100 million in any one year (adjusted for inflation with base year of 1995). Before promulgating a rule for which a written statement is needed, section 205 of the UMRA generally requires NHTSA 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 objective of the rule. The provisions of section 205 do not apply when they are inconsistent with applicable law. Moreover, section 205 allows NHTSA to adopt an alternative other than the least costly, most cost-effective, or least burdensome alternative if the agency publishes with the final rule an explanation why that alternative was not adopted.
If adopted, this proposed rule would not result in the expenditure by State, local, or tribal governments, in the aggregate, or by the private sector, of more than $100 million annually.
Executive Order 12866 requires each agency to write all rules in plain language. Application of the principles of plain language includes consideration of the following questions:
If you have any responses to these questions, please include them in your comments on this NPRM.
The Department of Transportation assigns a regulation identifier number (RIN) to each regulatory action listed in the Unified Agenda of Federal Regulations. The Regulatory Information Service Center publishes the Unified Agenda in April and October of each year. You may use the RIN contained in the heading at the beginning of this document to find this action in the Unified Agenda.
Your comments must be written and in English. To ensure that your comments are correctly filed in the Docket, please include the docket number of this document in your comments.
Your comments must not be more than 15 pages long. (49 CFR 553.21). NHTSA established this limit to encourage you to write your primary comments in a concise fashion. However, you may attach necessary additional documents to your comments. There is no limit on the length of the attachments.
Please submit two copies of your comments, including the attachments, to Docket Management at the address given above under
You may also submit your comments to the docket electronically by logging onto the Dockets Management System website at
If you wish Docket Management to notify you upon its receipt of your comments, enclose a self-addressed, stamped postcard in the envelope containing your comments. Upon receiving your comments, Docket Management will return the postcard by mail.
If you wish to submit any information under a claim of confidentiality, you should submit three copies of your complete submission, including the information you claim to be confidential business information, to the Chief Counsel, NHTSA, at the address given above under
NHTSA will consider all comments that Docket Management receives before the close of business on the comment closing date indicated above under
You may read the comments received by Docket Management at the address given above under
You may also see the comments on the Internet. To read the comments on the Internet, take the following steps:
1. Go to the Docket Management System (DMS) Web page of the Department of Transportation (
2. On that page, click on “search.”
3. On the next page (
4. On the next page, which contains docket summary information for the docket you selected, click on the desired comments. You may download the comments. Although the comments are imaged documents, instead of word processing documents, the “pdf” versions of the documents are word searchable.
Please note that even after the comment closing date, NHTSA will continue to file relevant information in the Docket as it becomes available. Further, some people may submit late comments. Accordingly, the agency recommends that you periodically check the Docket for new material.
Administrative practice and procedure, Labeling, Motor vehicles, Reporting and recordkeeping requirements.
Administrative practice and procedure, National Highway Traffic Safety Administration, Reporting requirements.
In consideration of the foregoing, NHTSA proposes to amend 49 CFR Chapter V as follows:
1. The authority citation for part 541 would continue to read as follows:
49 U.S.C. 33101, 33102, 33103, 33105; delegation of authority at 49 CFR 1.50.
2. Section 541.3 would be revised to read as follows:
This standard applies to the following:
(a) Passenger motor vehicle parts identified in § 541.5(a) that are present:
(1) In passenger cars and multipurpose passenger vehicles with a gross vehicle weight rating of 6,000 pounds or less; and
(2) In light duty trucks that NHTSA has finally determined, pursuant to 49 CFR part 542, to be high theft based on the 1990/91 median theft rate.
(b) Replacement parts for passenger motor vehicles described in § 541.3(a)(1) and (2), if the part is identified in § 541.5(a).
(c) This standard does not apply to passenger motor vehicle parts that are present in passenger cars, multipurpose passenger vehicles, and light duty trucks manufactured by a motor vehicle manufacturer that manufactures fewer than 500 vehicles for sale in the United States each year.
3. Appendix A to Part 541—Lines Subject to the Requirements of This Standard would be removed.
4. Section 541.5 would be amended by revising the first sentence of paragraph (e)(2) as follows:
(e) * * *
(2) Each manufacturer subject to paragraph (e)(1) of this section shall, not later than 30 days before the line is introduced into commerce, inform NHTSA in writing of the target areas designated for each line subject to this standard. * * *
5. The authority citation for part 542 would continue to read as follows:
15 U.S.C. 2021, 2022, and 2023; delegation of authority at 49 CFR 1.50.
6. Section 542.3 would be added to read as follows:
(a)
(b)
(1) Each manufacturer that produces—
(i) At least one multipurpose passenger vehicle line that has been or will be introduced into commerce in the United States, and
(ii) At least one light duty truck line that has been or will be introduced into commerce in the United States and that the manufacturer identifies as likely to have a theft rate below the median theft rate; and
(2) Each of those likely submedian theft rate light duty truck lines.
(c)
(2) If the manufacturer concludes that a light duty truck line that has or is likely to have a theft rate below the median theft rate has major parts that are interchangeable with a majority of the covered major parts of a multipurpose passenger vehicle line, the manufacturer determines whether all the vehicles of those lines with submedian or likely submedian theft rates and interchangeable parts will account for more than 90 percent of the total annual production of all of the manufacturer's lines with those interchangeable parts.
(3) The manufacturer submits its evaluations and conclusions made under paragraphs (c)(1) and (2) of this section, together with the underlying factual information, to NHTSA not less than 15 months before the date of introduction. During this period, the manufacturer may request a meeting with the agency to further explain the bases for its evaluations and conclusions.
(4) Within 90 days after its receipt of the manufacturer's submission under paragraph (c)(3) of this section, NHTSA considers that submission, if any, and
(5) The manufacturer may request the agency to reconsider any of its preliminary determinations made under paragraph (c)(4) of this section. The manufacturer must submit its request to the agency within 30 days of its receipt of the letter under paragraph (c)(4) of this section informing it of the agency's evaluations and preliminary determinations. The request must include the facts and arguments underlying the manufacturer's objections to the agency's preliminary determinations. During this 30-day period, the manufacturer may also request a meeting with the agency to discuss those objections.
(6) Each of the agency's preliminary determinations made under paragraph (c)(4) of this section becomes final 45 days after the agency sends the letter specified in that paragraph unless a request for reconsideration has been received in accordance with paragraph (c)(5) of this section. If such a request has been received, the agency makes its final determinations within 60 days of its receipt of the request. NHTSA informs the manufacturer by letter of those determinations and its response to the request for reconsideration.
Food and Nutrition Service, USDA.
Notice.
In accordance with the Paperwork Reduction Act of 1995, this notice invites the general public and other public agencies to comment on proposed information collections. Sections 11, 13, and 16 of the Food Stamp Act of 1977 (the Act) are the bases for the information collected on Form FNS–209, Status of Claims Against Households. Section 11 of the Act requires that State agencies submit reports and other information that are necessary to determine compliance with the Act and its implementing regulations. Section 13 of the Act requires State agencies to establish claims and collect overpayments to households. Section 16 of the Act authorizes State agencies to retain a portion of what is collected. The FNS–209 is used as the mechanism for State agencies to report the claim establishment, collection and retention amounts.
Written comments must be submitted on or before August 26, 2002, to be assured consideration.
Send comments to Barbara Hallman, Chief, State Administration Branch, Food and Nutrition Service, USDA, 3101 Park Center Drive, Alexandria, Virginia, 22302.
Comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (b) the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on those who are to respond, including through the use of appropriate, automated, electronic, mechanical, or other technological collection techniques or other forms of information technology.
All comments will be summarized and included in the request for Office of Management and Budget approval of the information collection. All comments will become a matter of public record.
Leslie C. Byrd, (703) 305–2472.
The estimated annual burden is 742 hours. This is the same as the currently approved burden. This estimate includes the time it takes each State agency to accumulate and tabulate the data necessary to complete the report four times per year.
Forest Service, USDA.
Notice of meeting.
The Flathead County Resource Advisory Committee will meet in Kalispell, Montana July 16 and July 29. The purpose of the meeting is to discuss potential Title II projects for fiscal year 2003 funded by the Secure Rural Schools and Community Self Determination Act.
The meetings will be held July 16 from 3 pm until 6 pm. and July 29 from 3 pm until 6 pm.
The meeting will be held at the Flathead National Forest Supervisors Office, Conference Rooms A & B, 1935 Third Ave East, Kalispell, Montana, 59901.
Allen Rowley, Flathead National Forest Public Affairs Specialist, (406) 758–5252.
The meeting is open to the public. These are the first two meetings of the Flathead County Resource Advisory Committee. Time will be allocated for public input
The Department of Commerce has submitted to the Office of Management and Budget (OMB) for clearance the following proposal for collection of information under the provisions of the Paperwork Reduction Act (44 U.S.C. Chapter 35).
Copies of the above information collection proposal can be obtained by calling or writing Madeleine Clayton, Departmental Paperwork Clearance Officer, (202) 482–3129, Department of Commerce, Room 6608, 14th and Constitution Avenue, NW., Washington, DC 20230 (or via the Internet at
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to David Rostker, OMB Desk Officer, Room 10202, New Executive Office Building, Washington, DC 20503.
Proposed collection: comment request.
The Department of Commerce 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 or continuing information collections, as required by the Paperwork Reduction Act of 1994, Public Law 104–13 (44 U.S.C. 3506(c)(2)(A)).
Written comments must be submitted on or before August 26, 2002.
Direct all written comments to Madeleine Clayton, Departmental Paperwork Clearance Officer, Department of Commerce, Room 6608, 14th and Constitution Avenue, NW., Washington DC 20230 or via Internet at
Requests for additional information or copies of the information collection instruments and instructions should be directed to Patricia Flynn, Director, Operations Review and Analysis Division, Economic Development Administration, Room 7015, Washington, DC 20230, telephone 202–482–5353.
The Economic Development Administration (EDA) helps our partners across the nation (states, regions, and communities) create wealth and minimize poverty by promoting a favorable business environment to attract private capital investment and jobs through world-class capacity building, planning, infrastructure, research grants, and strategic initiatives.
The Comprehensive Economic Development Strategy (CEDS) is needed by EDA to ensure that areas served by an EDA-supported planning organization have or are developing a continuous community-based planning process and have thoroughly thought out what type of economic development is needed in the area. The process addresses both the assets of the area in terms of natural resources, labor skills, educational and research facilities, transportation, infrastructure, financial resources, proximity to major economic hubs, or any other positive influences that can be identified, and also the liabilities of the area in terms of unemployment, underemployment, low incomes, threatened closure of industry or other employment centers, out-migration, denigration of natural resources or other negatives. The CEDS process is designed to bring about consensus on long-term goals and specific activities to reach those goals with the overall purpose of alleviating economic decline and in fact, developing an environment conducive to economic development.
This information is required under the Public Works and Economic Development Act of 1965, as amended, including the comprehensive amendments by the Economic Development Administration Reform Act of 1998, Public Law 105–393, (PWEDA). The information is used by EDA to determine: if statutory requirements are met on eligibility for projects for public works and economic adjustment (except for strategy/planning); district designation requirements; and if planning requirements are met. The CEDS has been revised to include EDA's Investment Policy Guidelines which are intended to further define the criteria used to evaluate proposals for EDA funding which are provided at 13 CFR 304.2.
Comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the
Comments submitted in response to this notice will be summarized and/or included in the request for OMB approval of this information collection; they also will become a matter of public record.
Notice and request for comments.
The Department of Commerce, 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 (44U.S.C. 3506(c)(2)(A)).
Written comments must be submitted on or before August 26, 2002.
Direct all written comments to Madeleine Clayton, DOC Paperwork Clearance Officer, (202) 482–3129, Department of Commerce, Room 6608, 14th and Constitution Avenue, NW, Washington, DC 20230.
Requests for additional information or copies of the information collection instrument(s) and instructions should be directed to Marna Dove, BIS ICB Liaison, (202) 482–5211, Department of Commerce, Room 6622, 14th and Constitution Avenue, NW., Washington, DC, 20230.
The Chemical Weapons Convention (CWC) bans the development, production, acquisition, stockpiling, retention and direct or indirect transfer of chemical weapons. Under the CWC, companies that produce, process, consume, utilize, or transfer certain chemicals must file initial and annual declarations. This information will be submitted to the Organization for the prohibition of Chemical Weapons (OPCW), the treaty's international body. The collection of this information is required to comply with the treaty.
Submitted on BXA Declaration forms.
Comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden (including hours and cost) of the proposed collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology.
Comments submitted in response to this notice will be summarized and/or included in the request for OMB approval of this information collection; they will also become a matter of public record.
Notice.
The Department of Commerce, 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)).
Written comments must be submitted on or before August 26, 2002.
Direct all written comments to Madeleine Clayton, Departmental Paperwork Clearance Officer, Department of Commerce, Room 6608, 1401 Constitution Avenue, NW., Washington, DC 20230 or via the Internet at
Requests for additional information or copies of the information collection instrument(s) and instructions should be directed to Phyllis Boyd, National Institute of Standards and Technology, 100 Bureau Drive, Stop 3220, Gaithersburg, MD, 20899–3220, (301) 975–4062.
In accordance with Executive Order 12862, the National Institute of Standards and Technology (NIST), a non-regulatory agency of the Department of Commerce, proposes to conduct a number of surveys—both quantitative and qualitative. The surveys will be designed to determine the kind and the quality of products, services, and information our key customers want and expect, as well as their satisfaction with and awareness of existing products, services, and information. In addition, NIST proposes other customer service satisfaction data collection that include, but may not be limited to focus groups, reply cards that accompany product distributions, and web-based surveys and dialogue boxes that offer customers the opportunity to express their level of satisfaction with NIST products, services, and information and for ongoing dialogue with NIST. NIST will limit its inquiries to data collections that solicit strictly
NIST will collect this information by electronic means, as well as by mail, fax, telephone, and person-to-person interaction.
Comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden (including hours and cost) of the proposed collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including automated collection techniques or other forms of information technology.
Comments submitted in response to this notice will be summarized and included in the request for OMB approval of this information collection. They also will become a matter of public record.
Commodity Futures Trading Commission.
10 a.m., Tuesday, July 2, 2002.
1155 21st St., NW., Washington, DC, Lobby Level Hearing Room.
Open.
Jean A. Webb, 202–418–5100.
Department of the Army, Department of Defense.
Notice of Availability.
This ROD has been prepared by the Department of the Army in compliance with the National Environmental Policy Act of 1969, President's Council on Environmental Quality regulation (40 CFR 1500–1508), and Army Regulation 200–2. This decision is based on the analyses contained in the February 2001 Final PEIS on Transportable Treatment Systems for Non-Stockpile Chemical Warfare Materiel, the associated public and other input received in response to coordination of this document, and other considerations. The primary decisions reached in the ROD on transportable treatment systems are to: (1) Proceed with development and testing of the Rapid Response System and the Explosive Destruction System and make these systems available for deployment and (2) suspend further development and testing of the Munitions Management Device Versions One and Two (based on current program needs),; however, the Munitions Management Device technologies were determined to be environmentally safe and subsystems could be used in the future.
Questions on the ROD or requests for copies of the document should be directed to: Program Manager for Chemical Demilitarization, ATTN: SFAE–CD–NP (Mr. John Gieseking/Programmatic Environmental Impact Statement), Aberdeen Proving Ground, Maryland 21010–4005 or via e-mail at
Mr. John Gieseking at (410) 436–3768 or by fax at (410) 436–8737.
The PEIS was used to help the Army make this program-level decision with input from the public. The Army's Product Manager for Non-Stockpile Chemical Materiel has analyzed the potential environmental and socioeconomic consequences of two alternative courses of action in the Final PEIS with Respect to the Army's chemical demilitarization responsibilities. These alternatives are: (1) Completing development and testing of the transportable chemical treatment systems and making them available to be used where needed and appropriate to process non-stockpile chemical warfare materiel and (2) the no-action alternative, under which the Army would discontinue the development of the transportable treatment systems and continue to store non-stockpile chemical warfare materiel until other suitable technologies are developed.
Copies of the ROD can also be obtained by calling Ms. Louise Dyson, Public outreach and Information Office, Office of the Program Manager for Chemical Demilitarization, at 1–800–488–0648 or (410) 436–3445; fax (410) 436–8737; or e-mail at
Department of Education.
Notice of proposed information collection requests.
The Leader, Regulatory Information Management, Office of the Chief Information Officer, invites comments on the proposed information collection requests as required by the Paperwork Reduction Act of 1995.
An emergency review has been requested in accordance with the Act (44 U.S.C. chapter 3507 (j)), since public harm is reasonably likely to result if normal clearance procedures are followed. Approval by the Office of Management and Budget (OMB) has been requested by July 12, 2002.
Written comments regarding the emergency review should be addressed to the Office of Information and Regulatory Affairs, Attention: Karen Lee, Desk Officer: Department of Education, Office of Management and Budget; 725 17th Street, NW., Room 10235, New Executive Office Building, Washington, DC 20503.
Section 3506 of the Paperwork Reduction Act of 1995 (44 U.S.C. chapter 35) requires that the Director of OMB provide interested Federal agencies and the public an early opportunity to comment on information collection requests. The Office of Management and Budget (OMB) may amend or waive the requirement for public consultation to the extent that public participation in the approval process would defeat the purpose of the information collection, violate State or Federal law, or substantially interfere with any agency's ability to perform its statutory obligations. The Leader, Regulatory Information Management, Office of the Chief Information Officer, publishes this notice containing proposed information collection requests at the beginning of the Departmental review of the information collection. Each proposed information collection, grouped by office, contains the following: (1) Type of review requested, e.g., new, revision, extension, existing or reinstatement; (2) Title; (3) Summary of the collection; (4) Description of the need for, and proposed use of, the information; (5) Respondents and frequency of collection; and (6) Reporting and/or Recordkeeping burden. ED invites public comment.
The Department of Education is especially interested in public comment addressing the following issues: (1) Is this collection necessary to the proper functions of the Department; (2) will this information be processed and used in a timely manner, (3) is the estimate of burden accurate; (4) how might the Department enhance the quality, utility, and clarity of the information to be collected, and (5) how might the Department minimize the burden of this collection on respondents, including through the use of information technology.
An emergency clearance is necessary to enable the Department to allow potential grantees the opportunity to apply for funding this fiscal year under these discretionary grant programs and begin funded programs early in the coming school year. The regulations for the program are being published as a final rule with request for comments. This allows the Department to implement the programs without delay, but still provides the public with an opportunity to comment on the regulatory provisions. A delay in the clearance of these information collection requirements will mean that the program will be unable to make awards this year and funds would lapse. Further the selected funded projects will be unable to recruit the most qualified staff or training participants and successfully begin implementation of their programs early in the 2002–03 school year. In our view harm to the public would occur if this clearance is not approved.
Although OMB will provide provisional clearance of this information collection in order to get awards out this year, the public will have another chance to comment on the information collection requirements of the final rule when the final regulation is published in mid-July, 2002.
Responses: 100.
Burden Hours: 5840.
Requests for copies of the proposed information collection request may be accessed from
Comments regarding burden and/or the collection activity requirements, contact Katrina Ingalls at her internet address
Take notice that on June 14, 2002, ANR Pipeline Company (ANR) filed amendments to three service agreements between ANR and Baltimore Gas & Electric Company in compliance with the Commission?s May 16, 2002 Letter Order in Docket No. RP99–301–038.
Any person desiring to protest said filing should file a protest with the Federal Energy Regulatory Commission, 888 First Street, NE, Washington, DC 20426, in accordance with Section 385.211 of the Commission's Rules and Regulations. All such protests must be filed in accordance with Section 154.210 of the Commission's Regulations. Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceedings. Copies of this filing are
Take notice that on June 17, 2002, Florida Gas Transmission Company (FGT) tendered for filing as part of its FERC Gas Tariff, Third Revised Volume No. 1, the following tariff sheets:
FGT states On February 9, 2000, the Commission issued its final rule regarding the regulation of interstate natural gas transportation services in Docket Nos. RM98–10–000 and RM98–12–000 (Order No. 637). Among other things, Order No. 637 required pipelines to demonstrate compliance or make conforming tariff changes related to scheduling equality, released capacity, capacity segmentation, pipeline imbalance services, operational flow orders (OFOs) and penalties. The Commission further clarified these requirements in Order Nos. 637–A and 637–B.
On July 14, 2000, FGT submitted pro forma tariff sheets proposing changes to comply with Order No. 637 (July 14, 2000 Filing). Subsequently, on May 16, 2002 the Commission issued its order on FGT's July 14, 2000 Filing. The May 16 Order accepted FGT's proposal on several issues while requiring FGT to make tariff revisions and to file actual tariff sheets within thirty (30) days consistent with the discussion in such order. Additionally, the May 16 Order directed that such tariff sheets not be placed into effect before further order of the Commission.
FGT states that in the instant filing, FGT addresses each of the Commission's directives and is proposing corresponding tariff changes. However, FGT requests that the Commission defer acting on certain tariff sheets related to issues for which FGT has requested rehearing. With respect to those tariff sheets, FGT reserves the right to propose modifications to the tariff provisions proposed herein as a result of future Commission orders resulting from FGT's Request for Rehearing and Clarification of the Commission's May 16 Order. In addition, FGT reserves the right to propose modifications to these tariff sheets as a result of Commission orders which are a result of underlying challenges to Order No. 637 in Interstate Natural Gas Association of America v. F.E.R.C., No. 98–1333, et al., 2002 WL 506850 (D.C. Cir. April 5, 2002).
Any person desiring to protest said filing should file a protest with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, in accordance with Section 385.211 of the Commission's Rules and Regulations. All such protests must be filed in accordance with Section 154.210 of the Commission's Regulations. Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceedings. Copies of this filing are on file with the Commission and are available for public inspection. This filing may also be viewed on the web at
Take notice that on June 17, 2002, Great Lakes Gas Transmission Limited Partnership (Great Lakes) tendered for filing as part of its FERC Gas Tariff, Second Revised Volume No. 1, the following tariff sheets, proposed to be effective June 1, 2002:
Great Lakes states that these tariff sheets are being filed to add clarifying language to its tariff sheets as directed in the Commission's May 31, 2002 Letter Order in Docket No. RP02–232–000, wherein Great Lakes had filed to (1) add generally applicable tariff provisions setting forth the conditions under which contract demand reductions or termination provisions will be made available to all customers seeking firm capacity on a non-discriminatory basis, and (2) add tariff provisions to permit negotiation of a contractual right of first refusal between Great Lakes and its shippers in instances where a regulatory right is not available.
Any person desiring to protest said filing should file a protest with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, in accordance with Section 385.211 of the Commission's Rules and Regulations. All such protests must be filed in accordance with Section 154.210 of the Commission's Regulations. Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceedings. Copies of this filing are on file with the Commission and are available for public inspection. This filing may also be viewed on the web at
Take notice that on June 18, 2002, Gulf South Pipeline Company, LP (Gulf South) tendered for filing as part of its FERC Gas Tariff, Sixth Revised Volume No. 1, the following tariff sheet, to become effective February 25, 2002.
Gulf South states that the above tariff sheet has been filed to comply with the Order issued June 3, 2002, 99 FERC ¶61,256. The Commission directed Gulf South to provide that the effective date of a contract demand reduction to be the latter of the effective date of the bypass or the end of the 60-day notice period. The compliance filing incorporates this change.
Any person desiring to protest said filing should file a protest with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, in accordance with Section 385.211 of the Commission's Rules and Regulations. All such protests must be filed in accordance with Section 154.210 of the Commission's Regulations. Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceedings. Copies of this filing are on file with the Commission and are available for public inspection. This filing may also be viewed on the web at
Take notice that on June 18, 2002, Kinder Morgan Interstate Gas Transmission LLC (KMIGT) tendered for filing as part of its FERC Gas Tariff, Fourth Revised Volume No. 1–A, Eighth Revised Sheet No. 4G and Second Revised Sheet No. 4J, to be effective July 1, 2002.
KMIGT states that the above-referenced tariff sheets reflect a negotiated rate contract effective July 1, 2002. The tariff sheets are being filed pursuant to Section 36 of KMIGT's FERC Gas Tariff Fourth Revised Volume No. 1–B, and the procedures prescribed by the Commission in its December 31, 1996 “Order Accepting Tariff Filing Subject to Conditions”, in Docket No. RP97–81 (77 FERC ¶ 61,350) and the Commission's Letter Orders dated March 28, 1997 and November 30, 2000 in Docket Nos. RP97–81–001, and RP01–70–000, respectively.
KMIGT states that a copy of this filing has been served upon all parties to this proceeding, KMIGT's customers and affected state commissions.
Any person desiring to be heard or to protest said filing should file a motion to intervene or a protest with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, in accordance with sections 385.214 or 385.211 of the Commission's Rules and Regulations. All such motions or protests must be filed in accordance with section 154.210 of the Commission's Regulations. Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceedings. Any person wishing to become a party must file a motion to intervene. Copies of this filing are on file with the Commission and are available for public inspection. This filing may also be viewed on the web at
Take notice that on June 14, 2002, National Fuel Gas Supply Corporation (National Fuel) tendered for filing as part of its FERC Gas Tariff, Fourth Revised Volume No. 1, the tariff sheets listed on Appendix A to the filing.
National Fuel states that the purpose of the instant filing is to comply with the requirements of Order No. 637 concerning segmentation and on-the-path secondary priority. National Fuel?s filing indicates that the tariff sheets implementing all other requirements of Order No. 637 are already in effect.
National Fuel states that copies of this filing were served upon its customers, interested state commissions and the parties on the official service list compiled by the Secretary in this proceeding.
Any person desiring to protest said filing should file a protest with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, in accordance with Section 385.211 of the Commission's Rules and Regulations. All such protests must be filed in accordance with Section 154.210 of the Commission's Regulations. Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceedings. Copies of this filing are on file with the Commission and are available for public inspection. This filing may also be viewed on the web at
Take notice that on June 7, 2002, National Fuel Gas Supply Corporation (National Fuel), 10 Lafayette Square, Buffalo, New York 14203, filed in Docket No. CP02–383–000 an application pursuant to Sections 7(b) and (c) of the Natural Gas Act (NGA) for authorization to abandon certain pipeline facilities in New York, and for a certificate of public convenience and necessity authorizing the construction and operation of certain pipeline replacement facilities in New York, all as more fully set forth in the application which is on file with the Commission and open to public inspection. Copies of this filing are on file with the Commission and are available for public inspection. This filing may be viewed on the web at
National Fuel proposes to abandon approximately 5.44 miles of 10-inch steel pipeline in Allegany County, New York, and to abandon approximately 27.35 miles of pipeline, also in Allegany County, New York, both segments of its Line PY–10. It is stated that the pipeline facilities would be abandoned in place except for those sections where the landowner specifically requests National Fuel to remove the pipe. National Fuel proposes to construct and operate approximately 5.44 miles of 8-inch plastic pipeline to replace the 5.44 miles being abandoned, with the new pipeline located in a new trench adjacent to the existing pipeline. It is stated that a portion of the new line will be located in a new right-of-way to avoid a house that has been constructed on the right-of-way. It is asserted that this portion of the line will be located 75 west of the existing line. National Fuel explains that the reason for the abandonment and replacement is that the existing line has deteriorated, and the cost of upgrading it would be substantial. The cost of the new construction is estimated at $1.1 million, and the cost of abandonment is estimated at approximately $505,607.
Any questions regarding this amendment should be directed to David N. Reitz, Assistant General Counsel, National Fuel Gas Supply Corporation, 10 Lafayette Square, Buffalo, New York 14203, at (716) 857–7949.
There are two ways to become involved in the Commission's review of this project. First, any person wishing to obtain legal status by becoming a party to the proceedings for this project should, on or before July 10, 2002, file with the Federal Energy Regulatory Commission, 888 First Street, NE, Washington, DC 20426, a motion to intervene in accordance with the requirements of the Commission's Rules of Practice and Procedure (18 CFR 385.214 or 385.211) and the Regulations under the NGA (18 CFR 157.10). A person obtaining party status will be placed on the service list maintained by the Secretary of the Commission and will receive copies of all documents filed by the applicant and by all other parties. A party must submit 14 copies of filings made with the Commission and must mail a copy to the applicant and to every other party in the proceeding. Only parties to the proceeding can ask for court review of Commission orders in the proceeding.
However, a person does not have to intervene in order to have comments considered. The second way to participate is by filing with the Secretary of the Commission, as soon as possible, an original and two copies of comments in support of or in opposition to this project. The Commission will consider these comments in determining the appropriate action to be taken, but the filing of a comment alone will not serve to make the filer a party to the proceeding. The Commission's rules require that persons filing comments in opposition to the project provide copies of their protests only to the party or parties directly involved in the protest.
Persons who wish to comment only on the environmental review of this project should submit an original and two copies of their comments to the Secretary of the Commission. Environmental commenters will be placed on the Commission's environmental mailing list, will receive copies of the environmental documents, and will be notified of meetings associated with the Commission's environmental review process. Environmental commenters will not be required to serve copies of filed documents on all other parties. However, the non-party commenters will not receive copies of all documents filed by other parties or issued by the Commission (except for the mailing of environmental documents issued by the Commission) and will not have the right to seek court review of the Commission's final order.
The Commission may issue a preliminary determination on non-environmental issues prior to the completion of its review of the environmental aspects of the project. This preliminary determination typically considers such issues as the need for the project and its economic effect on existing customers of the applicant, on other pipelines in the area, and on landowners and communities. For example, the Commission considers the extent to which the applicant may need to exercise eminent domain to obtain rights-of-way for the proposed project and balances that against the non-environmental benefits to be provided by the project. Therefore, if a person has comments on community and landowner impacts from this proposal, it is important either to file comments or to intervene as early in the process as possible.
Comments, protests and interventions may be filed electronically via the Internet in lieu of paper. See, 18 CFR 385.2001(a)(1)(iii) and the instructions on the Commission's web site under the “e-Filing” link.
If the Commission decides to set the application for a formal hearing before an Administrative Law Judge, the Commission will issue another notice describing that process. At the end of the Commission's review process, a final Commission order approving or denying a certificate will be issued.
Take notice that on June 14, 2002, Reliant Energy Gas Transmission Company (REGT) tendered for filing its report of activities during the first year of service under Rate Schedule PHS.
REGT states that copies of the filing have been mailed to each of REGT's customers and interested state commissions.
Any person desiring to protest said filing should file a protest with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, in accordance with Section 385.211 of the Commission's Rules and
Take notice that on June 4, 2002, Tennessee Gas Pipeline Company (Tennessee), tendered for filing its Negotiated Rate Tariff Filing.
Tennessee's filing requests that the Commission approve a negotiated rate arrangement between Tennessee and Ocean State Power II. Tennessee requests that the Commission grant such approval effective July 1, 2002.
Any person desiring to be heard or to protest said filing should file a motion to intervene or a protest with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, in accordance with sections 385.214 or 385.211 of the Commission's Rules and Regulations. All such motions or protests must be filed in accordance with section 154.210 of the Commission's Regulations. Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceedings. Any person wishing to become a party must file a motion to intervene. Copies of this filing are on file with the Commission and are available for public inspection. This filing may also be viewed on the web at
Take notice that on June 6, 2002, Tennessee Gas Pipeline Company (Tennessee), tendered for filing an amended service agreement to replace an incorrect service agreement that was filed on June 4, 2002 as part of a May 31, 2002, Negotiated Rate Arrangement with Ocean State Power II.
Any person desiring to be heard or to protest said filing should file a motion to intervene or a protest with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, in accordance with sections 385.214 or 385.211 of the Commission's Rules and Regulations. All such motions or protests must be filed in accordance with section 154.210 of the Commission's Regulations. Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceedings. Any person wishing to become a party must file a motion to intervene. Copies of this filing are on file with the Commission and are available for public inspection. This filing may also be viewed on the web at
Take notice that on June 6, 2002, Tennessee Gas Pipeline Company (Tennessee), tendered for filing an amended service agreement to replace an incorrect service agreement that was filed on June 4, 2002 as part of a May 31, 2002 Negotiated Rate Arrangement with Ocean State Power.
Any person desiring to protest said filing should file a protest with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, in accordance with section 385.211 of the Commission's Rules and Regulations. All such protests must be filed in accordance with section 154.210 of the Commission's Regulations. Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceedings. Copies of this filing are on file with the Commission and are available for public inspection. This filing may also be viewed on the web at
Take notice that on June 14, 2002, Transwestern Pipeline Company (TW) tendered for filing as part of its FERC Gas Tariff, Second Revised Volume No. 1, the following tariff sheets to become effective June 15, 2002:
TW states that the above sheets are being filed to implement specific negotiated rate agreements with Frito Lay (2), Western Gas Resources, BP Energy Company, United States Gypsum Company, PPL Energy Plus, LLC (2), and OneOK Energy Marketing and Trading Company in accordance with the Commission's Policy Statement on Alternatives to Traditional Cost-of-Service Ratemaking for Natural Gas Pipelines.
Any person desiring to be heard or to protest said filing should file a motion to intervene or a protest with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, in accordance with sections 385.214 or 385.211 of the Commission's Rules and Regulations. All such motions or protests must be filed in accordance with Section 154.210 of the Commission's Regulations. Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceedings. Any person wishing to become a party must file a motion to intervene. Copies of this filing are on file with the Commission and are available for public inspection. This filing may also be viewed on the web at
The following filings have been made with the Commission. The filings are listed in ascending order within each docket classification.
Take notice that on June 14, 2002, Conectiv Bethlehem, Inc. (CBI) and Conectiv Energy Holding Company (CEH) (collectively, Applicants) tendered for filing with the Federal Energy Regulatory Commission (Commission) pursuant to Section 203 of the Federal Power Act and Part 33 of the Commission's regulations, a request for authorization and approval to engage in an internal restructuring whereby CEH transfers to one of its wholly owned subsidiaries all of CEH's shareholder interest CBI.
Copies of the filing were served on the Delaware Public Service Commission.
Take notice that on June 17, 2002, Cabazon Wind Partners, LLC (Cabazon), Cannon Power Corporation (Cannon) and Shell WindEnergy Inc. (Shell WindEnergy) (collectively, the Applicants) filed with the Federal Energy Regulatory Commission (Commission), an application pursuant to Section 203 of the Federal Power Act for authorization of a disposition of jurisdictional facilities whereby Shell WindEnergy will acquire 100% of the membership interests in Cabazon. Cabazon is constructing a 41 MW wind power generating plant (Project) located in Riverside County, California (the Project).
Cabazon is currently wholly-owned by Cannon. Pursuant to an acquisition agreement, the Transaction would be consummated after the Project commences commercial operation, which is expected to occur by August 25, 2002. The Transaction is expected to result in the disposition of Commission jurisdictional facilities consisting of Cabazon's market-based rate tariff and minor interconnection facilities connecting the Project to the California grid. Applicants have requested privileged treatment for the Acquisition Agreement between Cannon and Shell WindEnergy.
Take notice that on June 14, 2002, Pajaro Energy Center, LLC (Pajaro) filed with the Federal Energy Regulatory Commission (Commission) an application for determination of exempt wholesale generator status pursuant to Part 365 of the Commission's regulations.
Pajaro, a Delaware limited liability company, proposes to own and operate a nominally rated 45 MW natural gas-fired, simple cycle electric generating facility to be located in Monterey County, California. Pajaro intends to sell the output at wholesale to an affiliated marketer.
Take notice that on June 14, 2002, Rhode Island State Energy Statutory Trust 200, c/o State Street Bank and Trust Company of Connecticut, National Association, c/o State Street Bank and Trust Company of Connecticut, National Association, c/o LaFayette, Boston, Massachusetts 02102, filed with the Federal Energy Regulatory Commission (Commission), an application for determination of exempt wholesale generator status pursuant to Part 365 of the Commission's regulations. The applicant is a Connecticut statutory trust that states it will engage directly or indirectly and exclusively in the business of owning and/or operating eligible facilities in the United States and selling electric energy at wholesale. The applicant proposes to own a 535 MW electric generating facility located near Johnston, Rhode Island, The applicant seeks a determination of its exempt wholesale generator status. All electric energy sold by the applicant will be sold exclusively at wholesale by leasing the facility.
Take notice that on June 13, 2002, Boston Edison Company (Boston Edison) tendered for filing a new First Revised Rate Schedule FERC No. 167 in compliance with the directives of the Commission in its Order Denying Rehearing, issued on March 15, 2002, in Docket No. ER02–170–001 98 FERC ¶ 61,292 (2002).
Boston Edison requests that the new First Revised Rate Schedule FERC No. 167 become effective on June 1, 2002.
Take notice that Virginia Electric and Power Company (the Company) on June 13, 2002, respectfully tendered for filing the following Service Agreement by Virginia Electric and Power Company to PSEG Energy Resources & Trade LLC
Copies of the filing were served upon PSEG Energy Resources & Trade LLC, the Virginia State Corporation Commission, and the North Carolina Utilities Commission.
Take notice that on June 13, 2002, Ameren Energy, Inc. (Ameren Energy), on behalf of Union Electric Company d/b/a AmerenUE and Ameren Energy Generating Company (collectively, the Ameren Parties), pursuant to section 205 of the Federal Power Act, 16 USC 824d, and the market rate authority granted to the Ameren Parties, submitted for filing umbrella power sales service agreements under the Ameren Parties' market rate authorizations entered into with American Electric Power Service Corporation.
Ameren Energy seeks Commission acceptance of these service agreements effective June 1, 2002. Copies of this filing were served on the public utilities commissions of Illinois and Missouri and the counterparty.
Take notice that on June 13, 2002, Bonnie Mine Energy, LLC (Bonnie Mine) filed with the Federal Energy Regulatory Commission that FERC Electric Tariff, Original Volume No. 1 in Docket No. ER00–1502–000 on February 3, 2000 is to be cancelled.
Take notice that on June 13, 2002, Dominion Energy Marketing, Inc. (the Company) respectfully tendered for filing the following Service Agreement by Dominion Energy Marketing, Inc. to PSEG Energy Resources & Trade LLC designated as Service Agreement No 3 under the Company's Market-Based Sales Tariff, FERC Electric Tariff, Original Volume No. 1, effective on December 15, 2000.
The Company requests an effective date of May 14, 2002, as requested by the customer. Copies of the filing were served upon the PSEG Energy Resources & Trade LLC, the Virginia State Corporation Commission, and the North Carolina Utilities Commission.
Take notice that on June 13, 2002, Duke Electric Transmission (Duke) a division of Duke Energy Corporation, tendered for filing with the Federal Energy Regulatory Commission (Commission) a Service Agreement with Duke Energy Trading and Marketing, L.L.C., for Non-Firm Transmission Service under Duke's Open Access Transmission Tariff. Duke requests that the proposed Service Agreement be permitted to become effective on May 23, 2002. Duke states that this filing is in accordance with Part 35 of the Commission's regulations and that a copy has been served on the North Carolina Utilities Commission.
Take notice that on June 13, 2002, Duke Electric Transmission (Duke) a division of Duke Energy Corporation, tendered for filing with the Federal Energy Regulatory Commission (Commission) a Service Agreement with Dominion Energy Marketing, Inc., for Firm Transmission Service under Duke's Open Access Transmission Tariff. Duke requests that the proposed Service Agreement be permitted to become effective on May 24, 2002. Duke states that this filing is in accordance with Part 35 of the Commission's regulations and that a copy has been served on the North Carolina Utilities Commission.
Take notice that on June 13, 2002, Duke Electric Transmission (Duke) a division of Duke Energy Corporation, tendered for filing with the Federal Energy Regulatory Commission (Commission) a Service Agreement with Western Resources, Inc., dba Westar Energy, for Firm Transmission Service under Duke's Open Access Transmission Tariff. Duke requests that the proposed Service Agreement be permitted to become effective on May 23, 2002. Duke states that this filing is in accordance with Part 35 of the Commission's regulations and that a copy has been served on the North Carolina utilities Commission.
Take notice that on June 13, 2002, Duke Electric Transmission (Duke) a division of Duke Energy Corporation, tendered for filing with the Federal Energy Regulatory Commission (Commission) a Service Agreement with Dominion Energy Marketing, Inc., for Non-Firm Transmission Service under Duke's Open Access Transmission Tariff. Duke requests that the proposed Service Agreement be permitted to become effective on May 23, 2002. Duke states that this filing is in accordance with Part 35 of the Commission's regulations and that a copy has been served on the North Carolina utilities Commission.
Take notice that on June 13, 2002, Duke Electric Transmission (Duke) a division of Duke Energy Corporation, tendered for filing with the Federal Energy Regulatory Commission (Commission) a Service Agreement with Western Resources, Inc., dba Westar Energy, for Non-Firm Transmission Service under Duke's Open Access Transmission Tariff. Duke requests that the proposed Service Agreement be permitted to become effective on May 22, 2002. Duke states that this filing is in accordance with Part 35 of the Commission's regulations and that a copy has been served on the North Carolina utilities Commission.
Take notice that on June 13, 2002, PJM Interconnection, L.L.C. (PJM) tendered for filing a revised page to the PJM Open Access Transmission Tariff to correct a subpart reference in Attachment M to such tariff.
Copies of this filing have been served on all PJM members and the state electric utility regulatory commissions in the PJM region.
Take notice that on June 14, 2002, American Transmission Systems, Inc. filed a Service Agreement to provide Non-Firm Point-to-Point Transmission Service for NSP Energy Marketing, the Transmission Customer. Services are being provided under the American
Take notice that on June 14, 2002, American Transmission Systems, Inc. filed a Service Agreement to provide Firm Point-to-Point Transmission Service for NSP Energy Marketing, the Transmission Customer. Services are being provided under the American Transmission Systems, Inc. Open Access Transmission Tariff submitted for filing by the Federal Energy Regulatory Commission in Docket No. ER99–2647–000. The proposed effective date under the Service Agreement is June 13, 2002 for the above mentioned Service Agreement in this filing.
Take notice that on June 14, 2002, DeSoto County Generating Company, LLC (DeSoto) tendered for filing an executed Service Agreement between DeSoto and the following eligible buyer, Florida Power & Light Company. Service to this eligible buyer will be in accordance with the terms and conditions of DeSoto's Cost-Based Rates “Up To” Tariff, FERC Electric Tariff No. 1.
DeSoto requests an effective date of May 20, 2002 for this Service Agreement. Copies of the filing were served upon the North Carolina Utilities Commission, the South Carolina Public Service Commission, the Florida Public Service Commission and the Georgia Public Service Commission.
Take notice that on June 14, 2002, Central Hudson Gas & Electric Corporation (Central Hudson) tendered for filing proposed changes in its Rate Schedule FERC No. 202 which sets forth the terms and charges for substation service provided by Central Hudson to Consolidated Edison Company of New York, Inc.
Central Hudson requests waiver on the notice requirements set forth in 18 CFR 35.11 of the Regulations to permit charges to become effective January 1, 2002 as agreed to by the parties.
Central Hudson states that a copy of its filing was served on Con Edison and the State of New York Public Service Commission.
Take notice that on June 14, 2002, PJM Interconnection L.L.C. (PJM), tendered for filing two executed umbrella service agreements for firm point-to-point transmission service and non-firm point-to-point transmission service with UBS AG, acting through its London Branch and care of UBS Warburg Energy, LLC (UBS AG).
PJM requested a waiver of the Commission's notice regulations to permit effective date of May 15m 2002 for the agreements, the date that the agreements were executed.
Copies of this filing were served upon UBS AG, as well as the state utility regulatory commissions within the PJM region.
E. Any person desiring to intervene or to protest this filing should file with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214). Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Any person wishing to become a party must file a motion to intervene. All such motions or protests should be filed on or before the comment date, and, to the extent applicable, must be served on the applicant and on any other person designated on the official service list. This filing is available for review at the Commission or may be viewed on the Commission's web site at
Take notice that on June 18, 2002, Public Utility District No. 1 of Snohomish County, Washington (Snohomish) filed a complaint against American Electric Power Service Corporation (AEP), as agent for the Operating Companies of American Electric Power Company, Inc., concerning a long-term power supply contract executed by AEP with Snohomish in January 2001, when the Western energy markets allegedly were dysfunctional. Snohomish requests that the Commission: (i) revoke AEP's market-based rate authority; and (2) terminate the contract or, in the alternative, reform the price to the $24/MWh historical average in the Pacific Northwest. Snohomish also requests that the Commission set a refund effective date as early as July 2, 2001, and not later than 60 days from the date of filing of its complaint. A copy of the complaint was served on AEP.
Snohomish has requested privileged treatment of certain information in the complaint, and has filed privileged and public copies of the complaint, a request for privileged treatment, and a protective agreement.
Any person desiring to be heard or to protest this filing should file a motion to intervene or protest with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214). All such motions or protests must be filed on or before July 8, 2002. Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Any person wishing to become a party must file a motion to intervene. Answers to the complaint shall also be due on or before July 8, 2002. Copies of this filing are on file with the Commission and are available for public inspection. This filing may also be viewed on the web at
The staffs of the Federal Energy Regulatory Commission (FERC or Commission) and the California State Lands Commission (CSLC) have prepared a final environmental impact statement/report (EIS/EIR) to address natural gas pipeline facilities proposed by Kern River Gas Transmission Company (KRGT).
The final EIS/EIR was prepared as required by the National Environmental Policy Act and the California Environmental Quality Act (CEQA). Its purpose is to inform the public and the permitting agencies about the potential adverse and beneficial environmental impacts of the proposed project and its alternatives, and recommend mitigation measures that would reduce any significant adverse impacts to the maximum extent possible and, where feasible, to a less than significant level. With one exception, the EIS/EIR concludes that the potentially significant adverse environmental impacts of the proposed project can be mitigated to a level of insignificance with appropriate mitigation measures. As discussed in the EIS/EIR, a long-term reduction in the special concern vegetation communities of yucca, cactus, and agave cannot be ruled out and, therefore, potential impacts on these species could be significant. Accordingly, the CSLC's approval of the project would be subject to a Statement of Overriding Considerations under the CEQA due to this significant unavoidable impact that could remain after mitigation is applied.
The Bureau of Land Management (BLM) is participating as a cooperating agency in the preparation of the EIS/EIR because the project would cross Federal land under the jurisdiction of seven field offices in Wyoming, Utah, and Nevada, and one district office and three field offices in California. The U.S. Department of Agriculture, Forest Service (FS) is also a cooperating agency in the preparation of this document because the Dixie National Forest and the Humboldt-Toiyabe National Forest/Spring Mountains National Recreation Area would be crossed by the project. The EIS/EIR will be used by the BLM to consider issuance of a new or amended right-of-way grant for the portion of the project on Federal lands.
The final EIS/EIR addresses the potential environmental effects of the construction and operation of the following facilities in Wyoming, Utah, Nevada, and California:
• 634.5 miles of 36-inch-diameter pipeline adjacent to KRGT's existing pipeline in Wyoming (Lincoln and Uinta Counties), Utah (Summit, Morgan, Salt Lake, Utah, Juab, Millard, Beaver, Iron, and Washington Counties), Nevada (Lincoln and Clark Counties), and California (San Bernardino County);
• 82.2 miles of 42-inch-diameter pipeline adjacent to the portion of KRGT's existing pipeline that it jointly owns with Mojave Pipeline Company in California (San Bernardino and Kern Counties);
• 0.8 mile of 12-inch-diameter pipeline in Uinta County, Wyoming;
• Three new compressor stations, one each in Wyoming (Uinta County), Utah (Salt Lake County), and Nevada (Clark County) for a total of 60,000 horsepower (hp) of compression;
• Modifications to six existing compressor stations, one in Wyoming (Lincoln County), three in Utah (Utah, Millard, and Washington Counties), one in Nevada (Clark County), and one in California (San Bernardino County) for a total of 103,700 hp of new compression;
• Modifications to one existing meter station in Wyoming (Lincoln County) and four existing meter stations in California (two each in San Bernardino and Kern Counties); and
• Various mainline block valves, internal inspection tool launcher/receiver facilities, and other appurtenances.
The final EIS/EIR has been placed in the public files of the FERC and the CSLC and is available for public inspection at:
The final EIS/EIR was filed with the U.S. Environmental Protection Agency and submitted to the California State Clearinghouse. The document was also mailed to appropriate Federal, state, and local agencies; elected officials, Native American groups; newspapers; public libraries; intervenors to the FERC's proceeding; and other interested parties who provided scoping comments, commented on the draft EIS/EIR, or wrote to the FERC, the CSLC, or the BLM asking to receive a copy of the document. A formal notice indicating that the final EIS/EIR is available was published in the
A limited number of copies of the final EIS/EIR are available from the FERC's Public Reference and Files Maintenance Branch identified above. Copies may also be obtained from Cy Oggins, CSLC, at the address above. The final EIS/EIR is available for viewing on the project web site at
Additional information about the proposed project is available from Cy Oggins at the CSLC at (916) 574–1884, or on the CSLC web site at
Information concerning the involvement of the BLM is available from Jerry Crockford, BLM Project Manager, at (505) 599–6333. Information concerning the involvement of the FS is available from Kathy Slack, Supervisor's Office, at (435) 865–3742.
The CSLC will meet to consider certification of the final EIS/EIR and take action on the proposed project at a public meeting in 2002. Interested parties will be notified of the date, time, and place of the meeting 10 to 15 days in advance. If you have any questions regarding the CSLC meeting, or wish to testify, please contact Cy Oggins at the number above.
In accordance with the National Environmental Policy Act of 1969 and the Federal Energy Regulatory Commission's (Commission) regulations, 18 CFR part 380 (Order No. 486, 52 FR 47897), the Office of Energy Projects has reviewed the application for new license for the Lower Tule Hydroelectric Project, located on the Middle Fork of the Tule River in Tulare County, California, and has prepared a final Environmental Assessment (EA) for the project. The project is partially located within the Sequoia National Forest and the Giant Sequoia National Monument. In the final EA, the Commission's staff has analyzed the potential environmental impacts of the existing project and has concluded that approval of the project, with appropriate environmental protection measures, would not constitute a major federal action significantly affecting the quality of the human environment.
On January 15, 2002, the Commission staff issued a draft EA for the project, and requested that comments be filed with the Commission within 30 days. Comments were filed by four entities and are addressed in this final EA for this project.
Copies of the draft and final EA can be viewed at the Commission's Reference and Information Center, Room 2A, 888 First Street, NE, Washington, DC, 20426, or by calling 202–208–1371. Copies of the EA are on file with the Commission and are available for public inspection. The EA may also be viewed on the web at
In accordance with the National Environmental Policy Act of 1969 and the Federal Energy Regulatory Commission's (Commission) regulations, 18 CFR part 380 (Order No. 486, 52 FR 47897), the Office of Energy Projects has reviewed the application for new license for the Lower Tule Hydroelectric Project, located on the Middle Fork of the Tule River in Tulare County, California, and has prepared a final Environmental Assessment (EA) for the project. The project is partially located within the Sequoia National Forest and the Giant Sequoia National Monument. In the final EA, the Commission's staff has analyzed the potential environmental impacts of the existing project and has concluded that approval of the project, with appropriate environmental protection measures, would not constitute a major federal action significantly affecting the quality of the human environment.
On January 15, 2002, the Commission staff issued a draft EA for the project, and requested that comments be filed with the Commission within 30 days. Comments were filed by four entities and are addressed in this final EA for this project.
Copies of the draft and final EA can be viewed at the Commission's Reference and Information Center, Room 2A, 888 First Street, NE, Washington, DC, 20426, or by calling 202–208–1371. Copies of the EA are on file with the Commission and are available for public inspection. The EA may also be viewed on the web at
Take notice that the following hydroelectric application has been filed with the Commission and is available for public inspection:
a. Type of Application: New Major License
b. Project No.: 2180–007
c. Date Filed: June 26, 2001
d. Applicant: PCA Hydro Inc.
e. Name of Project: Grandmother Falls Hydroelectric Project
f. Location: On the Wisconsin River near the town of Bradley, Lincoln County, Wisconsin.
g. Filed Pursuant to: Federal Power Act 16 U.S.C. 791 (a)-825(r).
h. Applicant Contact: Mr. Kenneth Schulz, Packaging Company of America, N9090 County Road E, Tomahawk, Wisconsin. 54487 (715) 453–2131 Ext. 499.
i. FERC Contact: Michael Spencer, michael.spencer@FERC.fed.us, (202) 219–2846.
j. Deadline for filing motions to intervene and protests: 60 days from the issuance date of this notice.
All documents (original and eight copies) should be filed with: Magalie Salas, Secretary, Federal Energy Regulatory Commission, 888 First Street, NE, Washington, DC 20426. Comments, protests and interventions may be filed electronically via the Internet in lieu of paper; see 18 CFR 385.2001(a)(1)(iii) and the instructions on the Commission's web site under the “e-Filing” link.
The Commission's Rules of Practice and Procedure require all intervenors filing documents with the Commission to serve a copy of that document on each person whose name appears on the official service list for the project. Further, if an intervenor files comments or documents with the Commission relating to the merits of an issue that may affect the responsibilities of a particular resource agency, they must also serve a copy of the document on that resource agency.
Protests or Motions to Intervene—Anyone may submit a protest or a motion to intervene in accordance with the requirements of Rules of Practice and Procedure, 18 CFR 385.210, 385.211, and 385.214. In determining the appropriate action to take, the Commission will consider all protests filed, but only those who file a motion to intervene in accordance with the Commission's Rules may become a party to the proceeding. Any protests or motions to intervene must be received on or before the specified deadline date for the particular application.
Filing and Service of Responsive Documents—All filings must (1) bear in all capital letters the title “PROTEST” or “MOTION TO INTERVENE;” (2) set forth in the heading the name of the applicant and the project number of the application to which the filing responds; (3) furnish the name, address, and telephone number of the person protesting or intervening; and (4) otherwise comply with the requirements of 18 CFR 385.2001 through 385.2005. Agencies may obtain copies of the application directly from the applicant. A copy of any protest or motion to intervene must be served upon each representative of the applicant specified in the particular application.
Take notice that the following application has been filed with the Commission and is available for public inspection:
All documents (original and eight copies) should be filed with Magalie R. Salas, Secretary, Federal Energy Regulatory Commission, 888 First Street, NE., Washington DC 20426. Please include the project number (2232–445) on any comments or motions filed.
Comments, protests and interventions may be filed electronically via the Internet in lieu of paper. See, 18 CFR 385.2001(a)(1)(iii) and the instructions on the Commission's web site under the “e-Filing” link.
m. Individuals desiring to be included on the Commission's mailing list should so indicate by writing to the Secretary of the Commission.
n. Comments, Protests, or Motions to Intervene—Anyone may submit comments, a protest, or a motion to intervene in accordance with the requirements of Rules of Practice and Procedure, 18 CFR 385.210, .211, .214. In determining the appropriate action to take, the Commission will consider all protests or other comments filed, but only those who file a motion to intervene in accordance with the Commission's Rules may become a party to the proceeding. Any comments, protests, or motions to intervene must be received on or before the specified comment date for the particular application.
o. Filing and Service of Responsive Documents—Any filings must bear in all capital letters the title “COMMENTS”, “RECOMMENDATIONS FOR TERMS AND CONDITIONS”, “PROTEST”, OR “MOTION TO INTERVENE”, as applicable, and the Project Number of the particular application to which the filing refers. A copy of any motion to intervene must also be served upon each representative of the Applicant specified in the particular application.
p. Agency Comments—Federal, state, and local agencies are invited to file comments on the described application. A copy of the application may be obtained by agencies directly from the Applicant. If an agency does not file comments within the time specified for
Take notice that the following hydroelectric application has been filed with the Commission and is available for public inspection:
All documents (original and eight copies) should be filed with: Magalie R. Salas, Secretary, Federal Energy Regulatory Commission, 888 First Street, NE, Washington, DC 20426. Comments, protests and interventions may be filed electronically via the Internet in lieu of paper; see 18 CFR 385.2001(a)(1)(iii) and the instructions on the Commission's web site under the “e-Filing” link.
Please include the project number (P–4021) on any comments or motions filed.
n. Individuals desiring to be included on the Commission's mailing list should so indicate by writing to the Secretary of the Commission.
o. Comments, Protests, or Motions to Intervene—Anyone may submit comments, a protest, or a motion to intervene in accordance with the requirements of Rules of Practice and Procedure, 18 CFR 385.210, .211, .214. In determining the appropriate action to take, the Commission will consider all protests or other comments filed, but only those who file a motion to intervene in accordance with the Commission's Rules may become a party to the proceeding. Any comments, protests, or motions to intervene must be received on or before the specified comment date for the particular application.
p. Agency Comments—Federal, state, and local agencies are invited to file comments on the described application. A copy of the application may be obtained by agencies directly from the Applicant. If an agency does not file comments within the time specified for filing comments, it will be presumed to have no comments. One copy of an agency's comments must also be sent to the Applicant's representatives.
Take notice that the following hydroelectric application has been filed with the Commission and is available for public inspection:
a.
b.
c.
d.
e.
f.
g.
h.
i.
j.
All documents (original and eight copies) should be filed with: Magalie R. Salas, Secretary, Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426. Comments, protests and interventions may be filed electronically via the Internet in lieu of paper; see 18 CFR 385.2001(a)(1)(iii) and the instructions on the Commission's web site under the “e-Filing” link.
The Commission's Rules of Practice and Procedure require all interveners filing documents with the Commission to serve a copy of that document on each person on the official service list for the project. Further, if an intervener files comments or documents with the Commission relating to the merits of an issue that may affect the responsibilities of a particular resource agency, they must also serve a copy of the document on that resource agency.
Scoping comments may be filed electronically via the Internet in lieu of paper. See 18 CFR 385.2001(a)(1)(iii) and the instructions on the Commission's web site (http://www.ferc.gov) under the “e-Filing” link.
k. This application is not ready for environmental analysis at this time.
l. The existing Ford Lake Hydroelectric Project consists of: (1) A 1,050 acre reservoir; (2) a 110-foot-long earth embankment dam; (3) a 46.5-foot powerhouse with 2 hydroelectric turbines; (4) a 172-foot-long spillway with six bays, each with a 6-foot by 8-foot sluice gate; (5) a 380-foot-long earth embankment; (6) a 175-foot-long emergency spillway; (7) two vertical shaft turbine/generator units with an installed capacity of 1,920 kilowatts at normal pool elevation; and (8) appurtenant facilities. The project operates run-of-river with a normal reservoir elevation maintained between 684.4 and 684.9 feet M.S.L. Average annual generation between 1995 and 2000 has been 8,664 megawatthours. Generated power is sold to Detroit Power. No new facilities are proposed.
m. A copy of the application is on file with the Commission and is available for public inspection. This filing may also be viewed on the web at http://www.ferc.gov using the “RIMS” link—select “Docket #” and follow the instructions (call 202–208–2222 for assistance). A copy is also available for inspection and reproduction at the address in item g above.
n. Scoping Process—Scoping is intended to advise all parties regarding the proposed scope of the EA and to seek additional information pertinent to this analysis. The Commission intends to prepare one Environmental Assessment (EA) on the project in accordance with the National Environmental Policy Act. The EA will consider both site-specific and cumulative environmental impacts and reasonable alternatives to the proposed action. Should substantive comments requiring reanalysis be received on the NEPA document, we would consider preparing a subsequent NEPA document.
At this time, the Commission staff does not anticipate holding formal public or agency scoping meetings near the project site. Instead, staff will conduct paper scoping.
A Scoping Document (SD) outlining the subject areas to be addressed in the EA were distributed to the parties on the Commission's mailing list. Copies of the SD may be viewed on the web at http://www.ferc.gov using the “RIMS” link, select “Docket #” and follow the instructions (call 202–208–2222 for assistance).
As part of scoping the staff will: (1) Summarize the environmental issues tentatively identified for analysis in the EA; (2) solicit from comments all available information, especially quantifiable data, on the resources at issue; (3) encourage comments from experts and the public on issues that should be analyzed in the EA, including viewpoints in opposition to, or in support of, the staff's preliminary views; (4) determine the resource issues to be addressed in the EA; and (5) identify those issues that require a detailed analysis, as well as those issues that do not require a detailed analysis. Consequently, interested entities are requested to file with the Commission any data and information concerning environmental resources and land uses in the project area and the subject project's impacts to the aforementioned.
o. The preliminary schedule for preparing the subject EA is as follows:
Take notice that the following hydroelectric application has been filed with the Commission and is available for public inspection:
a.
b.
c.
d.
e.
f.
g.
h.
i.
j. Deadline for filing motions to intervene, protests and comments: 60 days from the issuance date of this notice.
All documents (original and eight copies) should be filed with: Magalie R. Salas, Secretary, Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426. Comments, protests and interventions may be filed electronically via the Internet in lieu of paper; see 18 CFR 385.2001(a)(1)(iii) and the instructions on the Commission's web site under the “e-Filing” link.
Please include the project number (P–12179–000) on any comments or motions filed.
The Commission's Rules of Practice and Procedure require all interveners filing documents with the Commission to serve a copy of that document on each person in the official service list for the project. Further, if an intervener files comments or documents with the Commission relating to the merits of an issue that may affect the responsibilities of a particular resource agency, they must also serve a copy of the document on that resource agency.
k.
Applicant estimates that the average annual generation would be 50,000 MWh and would be sold to a local utility
l. A copy of the application is available for inspection and reproduction at the Commission's Public Reference Room, located at 888 First Street, NE, Room 2A, Washington, DC 20426, or by calling (202) 208–1371. This filing is also available for review at the Commission or may be viewed on the Commission's web site at
m.
n.
o.
p.
q.
r.
s.
Take notice that the following hydroelectric application has been filed with the Commission and is available for public inspection:
a.
b.
c.
d.
e.
f.
g.
h.
i.
j.
All documents (original and eight copies) should be filed with: Magalie R. Salas, Secretary, Federal Energy Regulatory Commission, 888 First Street, NE, Washington, DC 20426. Comments, protests and interventions may be filed electronically via the Internet in lieu of paper; see 18 CFR 385.2001(a)(1)(iii) and the instructions on the Commission's web site under the “e-Filing” link.
Please include the project number (P–12184–000) on any comments or motions filed.
The Commission's Rules of Practice and Procedure require all interveners filing documents with the Commission to serve a copy of that document on each person in the official service list for the project. Further, if an intervener files comments or documents with the Commission relating to the merits of an issue that may affect the responsibilities of a particular resource agency, they must also serve a copy of the document on that resource agency.
k.
Applicant estimates that the average annual generation would be 4.496 GWh and would be sold to a local utility.
l. A copy of the application is available for inspection and reproduction at the Commission's
m. Preliminary Permit—Anyone desiring to file a competing application for preliminary permit for a proposed project must submit the competing application itself, or a notice of intent to file such an application, to the Commission on or before the specified comment date for the particular application (see 18 CFR 4.36). Submission of a timely notice of intent allows an interested person to file the competing preliminary permit application no later than 30 days after the specified comment date for the particular application. A competing preliminary permit application must conform with 18 CFR 4.30(b) and 4.36.
n. Preliminary Permit—Any qualified development applicant desiring to file a competing development application must submit to the Commission, on or before a specified comment date for the particular application, either a competing development application or a notice of intent to file such an application. Submission of a timely notice of intent to file a development application allows an interested person to file the competing application no later than 120 days after the specified comment date for the particular application. A competing license application must conform with 18 CFR 4.30(b) and 4.36.
o. Notice of Intent—A notice of intent must specify the exact name, business address, and telephone number of the prospective applicant, and must include an unequivocal statement of intent to submit, if such an application may be filed, either a preliminary permit application or a development application (specify which type of application). A notice of intent must be served on the applicant(s) named in this public notice.
p. Proposed Scope of Studies under Permit—A preliminary permit, if issued, does not authorize construction. The term of the proposed preliminary permit would be 36 months. The work proposed under the preliminary permit would include economic analysis, preparation of preliminary engineering plans, and a study of environmental impacts. Based on the results of these studies, the Applicant would decide whether to proceed with the preparation of a development application to construct and operate the project.
q. Comments, Protests, or Motions to Intervene—Anyone may submit comments, a protest, or a motion to intervene in accordance with the requirements of Rules of Practice and Procedure, 18 CFR 385.210, 385.211, 385.214. In determining the appropriate action to take, the Commission will consider all protests or other comments filed, but only those who file a motion to intervene in accordance with the Commission's Rules may become a party to the proceeding. Any comments, protests, or motions to intervene must be received on or before the specified comment date for the particular application.
r. Filing and Service of Responsive Documents—Any filings must bear in all capital letters the title “COMMENTS”, “NOTICE OF INTENT TO FILE COMPETING APPLICATION”, “COMPETING APPLICATION”, “PROTEST”, “MOTION TO INTERVENE”, as applicable, and the Project Number of the particular application to which the filing refers. Any of the above-named documents must be filed by providing the original and the number of copies provided by the Commission's regulations to: The Secretary, Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426. An additional copy must be sent to Director, Division of Hydropower Administration and Compliance, Federal Energy Regulatory Commission, at the above-mentioned address. A copy of any notice of intent, competing application or motion to intervene must also be served upon each representative of the Applicant specified in the particular application.
s. Agency Comments—Federal, state, and local agencies are invited to file comments on the described application. A copy of the application may be obtained by agencies directly from the Applicant. If an agency does not file comments within the time specified for filing comments, it will be presumed to have no comments. One copy of an agency's comments must also be sent to the Applicant's representatives.
The following notice of meeting is published pursuant to Section 3(a) of the Government in the Sunshine Act (Pub. L. No. 94–409), 5 U.S.C. 552b:
Federal Energy Regulatory Commission.
June 26, 2002 (30 Minutes Following Regular Commission Meeting).
Hearing Room 5, 888 First Street, NE., Washington, DC 20426.
Closed.
Non-Public Investigations and Inquiries and Enforcement Related Matters.
Magalie R. Salas, Secretary. Telephone (202) 208–0400.
Environmental Protection Agency (EPA).
Notice.
In compliance with the Paperwork Reduction Act (44 U.S.C. 3501
Comments must be submitted on or before August 26, 2002.
Commenters must send an original and two copies of their comments referencing EDocket number RCRA–2002–0023 to: RCRA Docket Information Center, Office of Solid Waste (5305G), U.S. Environmental Protection Agency, 1200 Pennsylvania Avenue, NW., Washington, DC, 20460. Hand deliveries of comments should be made to the Arlington, VA, address below. Comments may also be submitted electronically through the Internet to:
Commenters should not submit electronically any confidential business information (CBI). An original and two copies of CBI must be submitted under separate cover to: RCRA CBI Document Control Officer, Office of Solid Waste (5302W), U.S. Environmental Protection Agency, 1200 Pennsylvania Avenue NW., Washington, DC 20460.
Public comments and supporting materials are available for viewing in the RCRA Information Center (RIC), located at Crystal Gateway 1, First Floor, 1235 Jefferson Davis Highway, Arlington, VA. The RIC is open from 9 a.m. to 4 p.m., Monday through Friday, excluding federal holidays. To review docket materials, it is recommended that the public make an appointment by calling (703) 603–9230. The public may copy a maximum of 100 pages from any regulatory docket at no charge. Additional pages cost $0.15/page. This notice and the supporting documents that detail the National Waste Minimization Partnership Program ICR are also available electronically. See the
For general information, call the RCRA Call Center 1–800/424–9346. For specific information regarding this notice, call Margaret R. Bailey, 703/308–4043, fax number 703/308–8433, e-mail “
Affected entities: Entities potentially affected by this action are those which generate, treat and store hazardous waste. The URL for the Waste Minimization Partnership Program ICR is <
1. Docket. EPA has established an official public docket for this action under EDocket No. RCRA–2002–0023. The official public docket is the collection of materials that is available for public viewing at RCRA Docket Information Center, Office of Solid Waste (5305G), U.S. Environmental Protection Agency, 1200 Pennsylvania Avenue, NW., Washington, DC. 20460. This Docket Facility is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The Docket telephone number is (703) 603–9230. The public may copy a maximum of 100 pages from any regulatory docket at no charge. Additional pages cost $0.15/page. This notice and the supporting documents that detail the National Waste Minimization Partnership Program ICR are also available electronically.
2. Electronic Access. You may access this
An electronic version of the public docket is available through EPA's electronic public docket and comment system. EPA Dockets. You may use EPA Dockets at
Certain types of information will not be placed in the EPA Dockets. Information claimed as CBI and other information whose disclosure is restricted by statute, which is not included in the official public docket, will not be available for public viewing in EPA's electronic public docket. EPA's policy is that copyrighted material will not be placed in EPA's electronic public docket but will be available only in printed, paper form in the official public docket. Although not all docket materials may be available electronically, you may still access any of the publicly available docket materials through the docket facility identified in Unit 1.B.
For public commenters, it is important to note that EPA's policy is that public comments, whether submitted electronically or in paper, will be made available for public viewing in EPA's electronic public docket as EPA receives them and without change, unless the comment contains copyrighted material, CBI, or other information whose disclosure is restricted by statute. When EPA identifies a comment containing copyrighted material, EPA will provide a reference to that material in the version of the comment that is placed in EPA's electronic public docket. The entire printed comment, including the copyrighted material, will be available in the public docket.
Public comments submitted on computer disks that are mailed or delivered to the docket will be transferred to EPA's electronic public docket. Public comments that are mailed or delivered to the Docket will be scanned and placed in EPA's electronic public docket. Where practical, physical objects will be photographed, and the photograph will be placed in EPA's electronic public docket along with a brief description written by the docket staff.
You may submit comments electronically, by mail, by facsimile, or through hand delivery/courier. To ensure proper receipt by EPA, identify the appropriate docket identification number in the subject line on the first page of your comment. Please ensure that your comments are submitted within the specified comment period. Comments received after the close of the comment period will be marked “late.” EPA is not required to consider these late comments.
1. Electronically. If you submit an electronic comment as prescribed below, EPA recommends that you include your name, mailing address, and an e-mail address or other contact information in the body of your comment. Also include this contract information on the outside of any disk or CD ROM you submit, and in any cover letter accompanying the disk or CD ROM. This ensures that you can be identified as the submitter of the comment and allows EPA to contact you in case EPA cannot read your comment due to technical difficulties or needs further information on the substance of your comment. EPA's policy is that EPA will not edit your comment, and any identifying or contact information provided in the body of a comment will be included as part of the comment that is placed in the official public docket, and made available in EPA's electronic public docket. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification,
Your use of EPA's electronic public docket to submit comments to EPA electronically is EPA's preferred method for receiving comments. Go directly to EPA Dockets at
Comments may be sent by electronic mail (e-mail) to
You may submit comments on a disk or CD ROM that you mail to the mailing address identified. These electronic submissions will be accepted in WordPerfect or ASCII file format. Avoid the use of special characters and any form of encryption.
2.
3.
4.
Do not submit information that you consider to be CBI electronically through EPA's electronic public docket or by e-mail. You may claim information that you submit to EPA as CBI by marking any part or all of that information as CBI (if you submit CBI on disk or CD ROM, mark the outside of the disk or CD ROM as CBI and then identify electronically within the disk or CD ROM the specific information that is CBI). Information so marked will not be disclosed except in accordance with procedures set forth in 40 CFR part 2.
In addition to one complete version of the comment that includes any information claimed as CBI, a copy of the comment that does not contain the information claimed as CBI must be submitted for inclusion in the public docket and EPA's electronic public docket. If you submit the copy that does not contain CBI on disk or CD ROM, mark the outside of the disk or CD ROM clearly that it does not contain CBI. Information not marked as CBI will be included in the public docket and EPA's electronic public docket without prior notice. If you have any questions about CBI or the procedures for claiming CBI, please consult the person identified in the
You may find the following suggestions helpful for preparing your comments:
1. Explain your views as clearly as possible.
2. Describe any assumptions that you used.
3. Provide any technical information and/or data you used that support your views.
4. If you estimate potential burden or costs, explain how you arrived at your estimate.
5. Provide specific examples to illustrate your concerns.
6. Offer alternatives.
7. Make sure to submit your comments by the comment period deadline identified.
8. To ensure proper receipt by EPA, identify the appropriate docket identification number in the subject line on the first page of your response. It would also be helpful if you provided the name, date, and
At this time the Agency wishes to renew the ICR and incorporate any changes to burden from the rule amendments. The burden the Agency is taking comment on today, however, is the current OMB inventory burden, which was approved in October 1999.
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number. The OMB control numbers for EPA's regulations are listed in 40 CFR part 9 and 48 CFR chapter 15.
The EPA would like to solicit comments to:
(i) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(ii) Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
(iii) Enhance the quality, utility, and clarity of the information to be collected; and
(iv) Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated electronic, mechanical, or other technological collection techniques or other forms of information technology, e.g., permitting electronic submission of responses.
Environmental Protection Agency (EPA).
Notice.
In compliance with the Paperwork Reduction Act (44 U.S.C. 3501
Comments must be submitted on or before July 26, 2002.
Send comments, referencing EPA ICR No. 1100.11 and OMB Control No. 2060–0191, to the following addresses: Susan Auby, U.S. Environmental Protection Agency, Collection Strategies Division (Mail Code 2822T), 1200 Pennsylvania Avenue, NW., Washington, DC 20460–0001; and to Office of Information and Regulatory Affairs, Office of Management and Budget, Attention: Desk Officer for EPA, 725 17th Street, NW., Washington, DC 20503.
For a copy of the ICR, contact Susan Auby at EPA by phone at (202) 566–1672, by e-mail at
Information collected is used by EPA to ensure that public health continues to be protected from the hazards of airborne radionuclides by compliance with these standards. If the information were not collected, it is unlikely that a violation of these standards would be identified and, thus, there would be no corrective action initiated to bring the facilities back into compliance. Compliance is demonstrated through emission testing and/or dose calculation. All facilities are required to calculate, monitor, and maintain their records for 5 years. The rationale for the 5 year recordkeeping requirement is from the Code of Federal Regulations (CFR), 40 CFR part 61, Section 61.95. In some cases, they also report their results to EPA.
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
Send comments on the Agency's need for this information, the accuracy of the provided burden estimates, and any suggested methods for minimizing respondent burden, including through the use of automated collection techniques to the addresses listed above. Please refer to EPA ICR No. 1100.11 and OMB Control No. 2060–0191 in any correspondence.
Environmental Protection Agency (EPA).
Notice.
In compliance with the Paperwork Reduction Act (44 U.S.C. 3501
Comments must be submitted on or before July 26, 2002.
Send comments, referencing EPA ICR No.2067.02 and OMB Control No. 2040–0246, to the following addresses: Susan Auby, U.S. Environmental Protection Agency, Collection Strategies Division (Mail Code 2822T), 1200 Pennsylvania Avenue, NW., Washington, DC 20460; and to Office of Information and Regulatory Affairs, Office of Management and Budget (OMB), Attention: Desk Officer for EPA, 725 17th Street, NW., Washington, DC 20503.
For a copy of the ICR contact Susan Auby at EPA by phone at (202) 566–1672, by E-mail at
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
Comments requested further information on the details of the Laboratory Quality Assurance Program. In response, EPA has added supplementary information to the ICR and also developed a webpage to provide further information on the program; the website can be accessed at
Commentors expressed concern about identifying adequate laboratory capacity to implement LT2ESWTR, the burden costs, training opportunities, and grandfathered data, EPA has addressed all of these comments in the ICR supporting statement.
Send comments on the Agency's need for this information, the accuracy of the provided burden estimates, and any suggested methods for minimizing respondent burden, including through the use of automated collection techniques to the addresses listed above. Please refer to EPA ICR No. 2067.02 and OMB Control No. 2040–0246 in any correspondence.
Environmental Protection Agency (EPA).
Notice.
In compliance with the Paperwork Reduction Act (44 U.S.C. 3501
Comments must be submitted on or before July 26, 2002.
Send comments, referencing EPA ICR No. 2081.01, to the following addresses: Susan Auby, U.S. Environmental Protection Agency, Collection Strategies Division (Mail Code 2822T), 1200 Pennsylvania Avenue, NW., Washington, DC 20460–0001; and to Office of Information and Regulatory Affairs, Office of Management and Budget (OMB), Attention: Desk Officer for EPA, 725 17th Street, NW., Washington, DC 20503.
For a copy of the ICR contact Susan Auby at EPA by phone at (202) 566–1672, by E-mail at
This information is being collected as part of a research program consistent with the section 3(a) (v) (1) of the Beaches Environmental Assessment and Coastal Health Act of 2000 and the strategic plan for EPA's Office of Research and Development (ORD) and the Office of Water entitled “Action Plan for Beaches and Recreational Water.” The Beaches Act and ORD's strategic plan have identified research on effects of microbial pathogens in recreational waters as a high-priority research area with particular emphasis on developing new water quality indicator guidelines for recreational waters. EPA has broad legislative authority to establish water quality criteria and to conduct research to support these criteria. This data collection is for a series of epidemiological studies to evaluate exposure to and effects of microbial pathogens in marine and fresh (Great Lakes) recreational waters as part of EPA's research program on exposure and health effects of microbial pathogens in recreational waters. The results of these health effects studies will be used to document human health effects associated with recreational water use and correlate these health effects with ongoing EPA studies to identify a new generation of indicators for detection of human pathogens in recreational water and appropriate, effective, and expeditious testing methods for these indicators (addressed separately under section 3(a) (v) (2 & 3) of the Beaches Environmental Assessment and Coastal Health Act of 2000). The results will be used to develop mathematical relationships that will be used for the generation of new national water quality guidelines and appropriate monitoring guidelines.
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
Send comments on the Agency's need for this information, the accuracy of the provided burden estimates, and any suggested methods for minimizing respondent burden, including through the use of automated collection techniques to the following addresses. Please refer to EPA ICR No. 2081.01 in any correspondence.
Environmental Protection Agency (EPA).
Notice.
In compliance with the Paperwork Reduction Act (44 U.S.C. 3501
Comments must be submitted on or before July 26, 2002.
Send comments on the Agency's need for this information, the accuracy of the provided burden estimates, and any suggested methods for minimizing a respondent burden, including through the use of automated collection techniques to Susan Auby, Collection Strategies Division (Mail Code 2822T), Office of Environmental Information, United States Environmental Protection Agency, 1200 Pennsylvania Avenue, NW., Washington, DC 20460–0001; and to the Office of Information and Regulatory Affairs, Office of Management and Budget, 725 17th Street, NW., Washington, DC 20503, Attention: Desk Officer for EPA. Include the EPA ICR number 1788.03 and OMB Control Number 2060–0417 in any correspondence.
For a copy of the ICR contact Susan Auby at EPA by phone at (202) 566–1672 by email at
Any owner or operator subject to the provisions of this part shall maintain a file of these records, and retain the file for at least 5 years following the date of such occurrences, maintenance reports, and records. All reports are sent to the delegated State or local authority. In the event that there is no such delegated authority, the reports are sent directly to the EPA Regional Office.
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
Send comments on the Agency's need for this information, the accuracy of the provided burden estimates, and any suggested methods for minimizing respondent burden, including through the use of automated collection techniques, to the addresses listed above. Please refer to EPA ICR No. 1788.03 and OMB Control No. 2060–0417 in any correspondence.
Environmental Protection Agency (EPA).
Notice of revisions to the area source category list under the Integrated Urban Air Toxics Strategy.
This notice adds 18 area source categories of hazardous air pollutants (HAP) to the list developed under the Integrated Urban Air Toxics Strategy (Strategy). Required under section 112(c)(3) and 112(k)(3)(B)(ii) of the Clean Air Act (CAA), the Strategy's area source category list constitutes an important part of EPA's agenda for regulating stationary sources of air toxics emissions. The revisions to the list of area sources have not been reflected in any previous notices and are being made without public comment on the Administrator's own motion. Such revisions are deemed by EPA to be without need for public comment based on the nature of the actions.
June 26, 2002.
Docket No. A–97–44 contains supporting information used in development of this notice. The docket is available for public inspection and copying between 8:00 a.m. and 5:30 p.m., Monday through Friday, excluding legal holidays. The docket is located in EPA's Air and Radiation Docket and Information Center (6102), Room M–1500, 401 M Street, SW, Washington, DC 20460, or by calling (202) 260–7548. A reasonable fee may be charged for copying docket materials.
Ms. Barbara B. Driscoll, Policy, Planning and Standards Group, Emission Standards Division (C439–04), EPA, Research Triangle Park, North Carolina 27711, facsimile number (919) 541–0942 telephone number (919) 541–1051, electronic mail (e-mail):
The CAA includes two provisions, section 112(c)(3) and 112(k)(3)(B)(ii), that instruct EPA to identify and list area source categories representing at least 90 percent of the emissions of the 30 “listed” (or area source) HAP (see July 19, 1999, The Integrated Urban Air Toxics Strategy, 64 FR 38706), and that are, or will be, subject to standards under section 112(d) of the CAA. For this effort we used urban area source information from the 112(k) inventory which represents a baseline year of 1990. In the July 1999 Strategy, we identified 16 area source categories that had already been listed for regulation under the CAA, and 13 area source categories that were being listed under section 112(c)(3) for the first time. These 29 area source categories are:
• Cyclic Crude and Intermediate Production
• Flexible Polyurethane Foam Fabrication Operations
• Hospital Sterilizers
• Industrial Inorganic Chemical Manufacturing
• Industrial Organic Chemical Manufacturing
• Mercury Cell Chlor-Alkali Plants
• Gasoline Distribution Stage 1
• Municipal Landfills
• Oil and Natural Gas Production
• Paint Stripping Operations
• Plastic Materials and Resins Manufacturing
• Publicly Owned Treatment Works
• Synthetic Rubber Manufacturing
• Chromic Acid Anodizing
• Commercial Sterilization Facilities
• Other Solid Waste Incinerators (Human/Animal Cremation)
• Decorative Chromium Electroplating
• Dry Cleaning Facilities
• Halogenated Solvent Cleaners
• Hard Chromium Electroplating
• Hazardous Waste Combustors
• Industrial Boilers
• Institutional/Commercial Boilers
• Medical Waste Incinerators
• Municipal Waste Combustors
• Open Burning Scrap Tires
• Portland Cement
• Secondary Lead Smelting
• Stationary Internal Combustion Engines.
Each of the source categories that were listed for the first time (the first 13 area source categories on the list above) contributed at least 15 percent of the total area source urban emissions of at least one of the 30 area source HAP. We also took credit for the percentage of emission contribution from the 16 area source categories that had already been listed (the last 16 area source categories on the list above). Since then, we added Secondary Aluminum Production to our list of major and area source categories (66 FR 8220, January 30, 2001). The listing of all these categories, however, does not meet the requirement to list area sources representing 90 percent of the area source emissions of the 30 area source HAP. In the Strategy, we indicated that we would be adding additional area source categories as necessary to meet the 90 percent requirement and would complete our listing by 2003.
Under provisions of section 112(c)(3) and 112(k)(3)(B)(ii), this notice announces the addition of 18 area source categories to those we listed in July 1999 (64 FR 38721) and, as modified in January 2001 (66 FR 8220). While this listing is again based on the 112(k) inventory which represents urban area information for 1990, current information will be used for any type of regulatory development. Each of the source categories contributes between 4 and 16 percent of the total area source emissions for at least one of the 30 area source HAP and makes progress toward meeting our requirement to address 90 percent of the emissions of each of the 30 area source HAP. The additional area source categories being listed pursuant to section 112(c)(3) and 112(k)(3)(B)(ii) are:
• Acrylic Fibers/Modacrylic Fibers Production
• Plating and Polishing
• Agriculture Chemicals & Pesticides Manufacturing
• Autobody Refinishing Paint Shops
• Cadmium Refining & Cadmium Oxide Production
• Flexible Polyurethane Foam Production
• Iron Foundries
• Lead and Acid Battery Manufacturing
• Miscellaneous Organic Chemical Manufacturing (MON)
• Pharmaceutical Production
• Polyvinyl Chloride & Copolymers Production
• Pressed and Blown Glass & Glassware Manufacturing
• Secondary Copper Smelting
• Secondary Nonferrous Metals
• Sewage Sludge Incineration
• Stainless and Nonstainless Steel Manufacturing Electric Arc Furnaces (EAF)
• Steel Foundries
• Wood Preserving.
Today's notice is not a rule; it is essentially an information-sharing activity which does not impose regulatory requirements or costs. Therefore, the requirements of Executive Order 13045 (Protection of Children from Environmental Health Risks and Safety Risks), Executive Order 13175 (Consultation and Coordination with Indian Tribal Governments), Executive Order 13132 (Federalism), Executive Order 13211 (Actions Concerning Regulations that Significantly Affect Energy Supply, Distribution, or Use), the Regulatory Flexibility Act, the National Technology Transfer and Advancement Act, and the Unfunded Mandates Reform Act do not apply to today's notice. Also, this notice does not contain any information collection requirements and, therefore, is not subject to the Paperwork Reduction Act, 44 U.S.C. 3501
Under Executive Order 12866 (58 FR 51735, October 4, 1993), a regulatory action determined to be “significant” is subject to the 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 lead to a rule that may either (1) have an annual effect on the economy of $100 million or more, or adversely affect a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local or tribal governments or communities; (2) create a serious inconsistency or otherwise interfere with an action taken or planned by another agency; (3) materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or (4) raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the Executive Order. The OMB has determined that this action is not significant under the terms of Executive Order 12866.
Environmental Protection Agency (EPA).
Notice of request for nominations.
The U.S. Environmental Protection Agency (EPA) is inviting nominations of qualified candidates to be considered for appointment to fill vacancies on the National and Governmental Advisory Committees to the U.S. Representative to the North American Commission for Environmental Cooperation. Current vacancies on these committees are scheduled to be filled by October 1, 2002.
Submit nominations to: Mark Joyce, Designated Federal Officer, Office of Cooperative Environmental Management, U.S. Environmental Protection Agency (1601A), 1200 Pennsylvania Avenue NW., Washington, DC 20004.
Mark Joyce, Designated Federal Officer, U.S. Environmental Protection Agency (1601A), 1200 Pennsylvania Avenue NW., Washington, DC 20004; telephone 202–564–9802; fax 202–501–0661; e-mail
The National and Governmental Advisory Committees advise the Administrator of the EPA in the Administrator's capacity as the U.S. Representative to the Council of the North American Commission for Environmental Cooperation (CEC). The Committees are authorized under Articles 17 and 18 of the North American Agreement on Environmental Cooperation (NAAEC), North American Free Trade Agreement (NAFTA) Implementation Act, P.L. 103–182 and as directed by Executive Order 12915, entitled “Federal Implementation of the North American Agreement on Environmental Cooperation.” The Committees are responsible for providing advice to the United States Representative on a wide range of strategic, scientific, technological, regulatory and economic issues related to implementation and further elaboration of the NAAEC. The National Advisory Committee consists of 12 representatives of environmental groups and non-profit entities, business and industry, and educational institutions. The Governmental Advisory Committee consists of 12 representatives from state, local and tribal governments.
Members are appointed by the Administrator of EPA for a two year term with the possibility of reappointment. The Committees usually meet 3 times annually and the average workload for Committee members is approximately 10 to 15 hours per month. Members serve on the Committees in a voluntary capacity, but EPA does provide reimbursement for travel expenses associated with official government business.
The following criteria will be used to evaluate nominees:
• They have extensive professional knowledge of the subjects the Committees examine, including trade and the environment, the NAFTA, the NAAEC, and the CEC.
• They represent a sector or group that is involved in the issues the Committees evaluate.
• They have senior level experience that will fill a need on the Committees for their particular expertise.
• They have a demonstrated ability to work in a consensus building process with a wide range of representatives from diverse constituencies.
Nominees will also be considered with regard to the mandates of the Federal Advisory Committee Act that require the Committees to maintain diversity across a broad range of constituencies, sectors, and groups.
Nominations for membership must include a resume describing the professional and educational qualifications of the nominee and the nominee's current business address and daytime telephone number.
Environmental Protection Agency (EPA).
Notice.
This notice announces receipt of an application to register a pesticide product containing a new active ingredient not included in any previously registered products pursuant to the provisions of section 3(c)(4) of the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), as amended.
Written comments, identified by the docket ID number OPP–2002–0108, must be received on or before July 26, 2002.
Comments may be submitted by mail, electronically, or in person. Please follow the detailed instructions for each method as provided in Unit I. of the
By Mail: Regulatory Action Leader, Susanne Cerrelli, Biopesticides and Pollution Prevention Division (7511C), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460; telephone number: (703) 308–8077 and e-mail address: cerrelli.susanne@epa.gov.
You may be affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. Potentially affected categories and entities may include, but are not limited to:
This listing is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be affected by this action. Other types of entities not listed in the table could also be affected. The North American Industrial Classification System (NAICS) codes have been provided to assist you and others in determining whether or not this action might apply to certain entities. If you have questions regarding the applicability of this action to a particular entity, consult the person listed under
1.
2.
You may submit comments through the mail, in person, or electronically. To ensure proper receipt by EPA, it is imperative that you identify docket ID number OPP–2002–0108 in the subject line on the first page of your response.
1.
2.
3.
Do not submit any information electronically that you consider to be CBI. You may claim information that you submit to EPA in response to this document as CBI by marking any part or all of that information as CBI. Information so marked will not be disclosed except in accordance with procedures set forth in 40 CFR part 2. In addition to one complete version of the comment that includes any information claimed as CBI, a copy of the comment that does not contain the information claimed as CBI must be submitted for inclusion in the public version of the official record. Information not marked confidential will be included in the public version of the official record without prior notice. If you have any questions about CBI or the procedures for claiming CBI, please consult the person identified under
You may find the following suggestions helpful for preparing your comments:
1. Explain your views as clearly as possible.
2. Describe any assumptions that you used.
3. Provide copies of any technical information and/or data you used that support your views.
4. If you estimate potential burden or costs, explain how you arrived at the estimate that you provide.
5. Provide specific examples to illustrate your concerns.
6. Offer alternative ways to improve the registration activity.
7. Make sure to submit your comments by the deadline in this notice.
8. To ensure proper receipt by EPA, be sure to identify the docket control number assigned to this action in the subject line on the first page of your response. You may also provide the name, date, and
EPA received an application as follows to register a pesticide product containing an active ingredient not included in any previously registered products pursuant to the provision of section 3(c)(4) of FIFRA. Notice of receipt of this application does not imply a decision by the Agency on the application.
Environmental protection, Pesticides and pest.
Environmental Protection Agency (EPA).
Notice.
EPA has granted experimental use permits (EUPs) to the following pesticide applicants. An EUP permits use of a pesticide for experimental or research purposes only in accordance with the limitations in the permit.
This action is directed to the public in general. Although this action may be of particular interest to those persons who conduct or sponsor research on pesticides, the Agency has not attempted to describe all the specific entities that may be affected by this action. If you have any questions regarding the information in this action, consult the designated contact person listed for the individual EUP.
You may obtain electronic copies of this document from the EPA Internet home page at
EPA has issued the following EUPs:
The EUP issued to Pioneer Hi-Bred allowed the planting of 140 acres of field corn to conduct insect resistance management, agronomic observation, breeding and observation nursery, demonstration, efficacy, hybrid production plot, non-target organism, herbicide residue, and herbicide tolerance trials as well as grain and plant tissue production for feeding trials and regulatory studies. The Pioneer Hi-Bred program is authorized in the States of California, Georgia, Hawaii, Illinois, Indiana, Iowa, Kansas, Michigan, Minnesota, Missouri, Nebraska, North Dakota, Ohio, Pennsylvania, Tennessee, Texas, Wisconsin, and the Commonwealth of Puerto Rico.
The EUP amendment for Monsanto lifted the crop destruct requirement of the Agency's April 27, 2001 4,000 acre EUP approval. The EUP amendment/extension for Monsanto allowed the planting of 9,400 acres of field corn to conduct insect resistance management, breeding and observation nursery, efficacy, non-target organism and benefit, seed treatment, inbred seed increase production for further testing and product development, and line per se and hybrid yield trials, as well as grain and plant tissue production for regulatory studies. The Monsanto program is authorized in the States of Alabama, Arkansas, California, Colorado, Delaware, Florida, Georgia, Hawaii, Idaho, Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maryland, Michigan, Minnesota, Mississippi, Missouri, Montana, Nebraska, New Mexico, New York, North Carolina, North Dakota, Ohio, Oklahoma, Pennsylvania, South Dakota, Tennessee, Texas, Utah, Virginia, Wisconsin, and the Commonwealth of Puerto Rico.
These EUPs are effective from April 5, 2002 to April 30, 2002 for Monsanto's amendment lifting the crop destruct provision for the 4,000 acre EUP, from April 10, 2002 to February 28, 2003 for Monsanto's 9,400 acre EUP amendment/extension, April 10, 2002 to March 31, 2003 for Mycogen Seeds, and April 10, 2002 to April 30, 2003 for Pioneer Hi-Bred. Tolerance exemptions have been established for residues of the active ingredients in or on field corn, sweet corn, or popcorn in 40 CFR 180.1214 and 180.1217. The Pioneer Hi-Bred and Mycogen Seeds moCry1F EUPs notice of receipt elicited a comment concerning issues related to the testing of plant-incorporated protectants not covered by a tolerance exemption. The corn grown under their EUPs is covered by a tolerance exemption. The 9,400 acre Monsanto EUP notice of receipt elicited a number of comments from farmers, seed dealers, and academicians supporting approval of the permit extension/amendment.
Further information regarding these EUPs are found with the
Persons wishing to review these EUPs are referred to the designated contact person. Inquiries concerning these permits should be directed to the persons cited above. It is suggested that interested persons call before visiting the EPA office, so that the appropriate file may be made available for inspection purposes from 8 a.m. to 4 p.m., Monday through Friday, excluding legal holidays.
7 U.S.C. 136.
Environmental protection, Experimental use permits.
Environmental Protection Agency (EPA).
Notice.
This notice announces the availability of the tolerance reassessment decision document for linuron. The linuron overview and decision document have been developed as part of the public participation process that EPA and the
Comments, identified by docket ID number OPP–2002–0079, must be received by EPA on or before July 26, 2002.
Comments may be submitted by mail, electronically, or in person. Please follow the detailed instructions for each method as provided in Unit III. of the
Dirk Helder, Special Review and Reregistration Division (7508W), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460; telephone number: (703) 305–4610; e-mail address:
This action is directed to the public in general, nevertheless, a wide range of stakeholders will be interested in obtaining the tolerance reassessment decision document for linuron, including environmental, human health, and agricultural advocates; the chemical industry; pesticide users; and members of the public interested in the use of pesticides on food. Since other entities also may be interested, the Agency has not attempted to describe all the specific entities that may be affected by this action. If you have any questions regarding the applicability of this action to a particular entity, consult the person listed under
1.
2.
You may submit comments through the mail, in person, or electronically. To ensure proper receipt by EPA, it is imperative that you identify docket ID number OPP–2002–0079 in the subject line on the first page of your response.
1.
2.
3.
Do not submit any information electronically that you consider to be CBI. You may claim information that you submit to EPA in response to this document as CBI by marking any part or all of that information as CBI. Information so marked will not be disclosed except in accordance with procedures set forth in 40 CFR part 2. In addition to one complete version of the comment that includes any information claimed as CBI, a copy of the comment that does not contain the information claimed as CBI must be submitted for inclusion in the public version of the official record. Information not marked confidential will be included in the public version of the official record without prior notice. If you have any questions about CBI or the procedures for claiming CBI, please consult the person listed under
EPA has assessed the risks of linuron and is reporting on the FQPA Tolerance Reassessment Decision for this pesticide. EPA completed the Linuron Reregistration Eligibility Decision (RED) prior to the 1996 enactment of the Food and Quality Protection Act; therefore, while no reregistration decision is required at present, risks from non-occupational exposure to linuron through food, drinking water, and residential uses must be reassessed. There are no residential uses of linuron. The Agency has reassessed the 40 tolerances for linuron and determined that residues in food and drinking water are not expected to pose risk concerns. In addition, three new tolerances are proposed for use on cotton gin by-products (9.0 parts per million (ppm)), celeriac (1.0 ppm), and rhubarb (0.5 ppm). Final tolerances are being proposed as part of this Tolerance Reassessment Decision (TRED). Some tolerances may be revised once additional confirmatory field trial data have been submitted to and reviewed by the Agency. In addition, occupational and ecological risk management
EPA works extensively with affected parties to reach the decisions presented in the FQPA tolerance reassessment decision documents. This Notice announces the availability of the linuron overview and decision document which report on FQPA tolerance reassessment and risk management decisions. These and additional supporting documents are available on the internet at
Environmental protection, Chemicals, Pesticides and pests.
Federal Accounting Standards Advisory Board.
Notice of Meeting for July 2002.
The purpose of the meeting is an educational program designed to cover federal financial management issues for three newly appointed Board members.
Following the July meeting, the schedule for the next three meetings of the Board is as follows:
The purpose of these meetings will be to discuss issues related to:
A more detailed agenda for each Board meeting can be seen on the FASAB Web site
Any interested person may attend the meetings as an observer. Board discussion and reviews are open to the public. GAO Building security requires advance notice of your attendance. For the July meeting, please notify FASAB by July 22 of your planned attendance by calling 202–512–7350, and for the subsequent meetings one day prior to the respective meeting.
Wendy Comes, Executive Director, 441 G St., NW., Mailstop 6K17V, Washington, DC 20548, or call (202) 512–7350.
Federal Advisory Committee Act. Pub. L. No. 92–463.
Federal Communications Commission.
Notice.
This document announces the auction of licenses in the paired 1392–1395 and 1432–1435 MHz bands and in the unpaired 1390–1392 MHz, 1670–1675 MHz, and the 2385–2390 MHz bands (“Auction No. 46”) scheduled to commence on September 18, 2002. Auction No. 46 will include 66 licenses. This document also seeks comment on reserve prices or minimum opening bids and other auction procedural issues.
Comments are due on or before June 6, 2002, and reply comments are due on or before June 13, 2002.
Comments and reply comments must be sent by electronic mail to the following address:
For legal questions: David Hu (202) 418–0660. For general auction questions: Lyle Ishida (202) 418–0660 or Lisa Stover (717) 338–2888. For service rule questions: Brian Marenco (202) 418–0838.
This is a summary of the
1. The
2. The following table describes the licenses that will be auctioned:
3. The Commission recently adopted service rules for the paired 1392–1395 and 1432–1435 MHz bands and the unpaired 1390–1392 MHz, 1670–1675 MHz, and 2385–2390 MHz bands. Of the five frequency bands included in Auction No. 46, only the 1432–1435 MHz and 2385–2390 MHz bands are subject to the reimbursement provisions of the National Telecommunications and Information Administration Organization Act (NTIA Organization Act), as added by the Strom Thurmond National Defense Authorization Act for Fiscal Year 1999 (NDAA–99). Section 113(g) of the NTIA Organization Act requires certain non-Government licensees to reimburse incumbent Federal entities for the relocation costs such Federal entities incur. It also requires the Federal entity to notify the National Telecommunications and Information Administration (NTIA) prior to auction of the “marginal costs anticipated to be associated with such relocation or with modifications necessary to accommodate prospective licensees,” and requires NTIA to provide the Commission with that information prior to auction. The NDAA–99 also directs the NTIA and the Commission to develop reimbursement procedures. The Commission's implementation of NDAA–99 is heavily dependent on reimbursement procedures being promulgated by the NTIA, which have not yet been released. Following the release of such reimbursement procedures, in a separate proceeding the Commission will adopt any additional rules or procedures necessary to supplement NTIA's reimbursement procedures.
4. Licensees will be required to file an application through ULS to request FAS coordination of any fixed station located within the protection radii of a co-primary Government incumbent or any mobile unit which would operate within the protection radii of the co-primary Government incumbent. FAS coordination will be required prior to activation of any fixed or mobile station within the co-primary Government incumbent's protection radii. Additionally, the licensee in the 2385–2390 MHz band will be required to coordinate fixed and mobile operations within the protection radii of non-Government aeronautical flight test sites with the Aerospace and Flight Test Radio Coordinating Council (AFTRCC) prior to filing an application for an individual station license with the Commission. An individual station license will be issued for each coordinated operation.
5. The Balanced Budget Act of 1997 requires the Commission to “ensure that, in the scheduling of any competitive bidding under this subsection, an adequate period is allowed * * * before issuance of bidding rules, to permit notice and comment on proposed auction procedures * * *.” Consistent with the provisions of the Balanced Budget Act and to ensure that potential bidders have adequate time to familiarize themselves with the specific rules that will govern the day-to-day conduct of an auction, the Commission directed the Bureau, under its existing delegated authority, to seek comment on a variety of auction-specific procedures prior to the start of each auction. The Commission therefore seeks comment on the following issues relating to Auction No. 46.
6. The Commission proposes to award all licenses included in Auction No. 46 in a single, simultaneous multiple-round auction. As described further, this methodology offers every license for bid at the same time with successive bidding rounds in which bidders may place bids. The Commission seeks comment on this proposal.
7. The Bureau has delegated authority and discretion to determine an appropriate upfront payment for each license being auctioned, taking into account such factors as the population in each geographic license area, and the value of similar spectrum. As described further, the upfront payment is a refundable deposit made by each bidder to establish eligibility to bid on licenses. Upfront payments related to the specific spectrum subject to auction protect against frivolous or insincere bidding and provide the Commission with a source of funds from which to collect payments owed at the close of the auction.
8. With these guidelines in mind for Auction No. 46, the Bureau proposes that different formulae be utilized in setting upfront payments for the Nationwide licenses than those used for the MEA and EAG licenses. The Bureau anticipates that values between nationwide and regional licenses will vary, and, accordingly propose the following license-by-license formulae for calculating upfront payments:
$0.005 * MHz * License Area Population with a minimum of $1,000 per license.
$0.01 * MHz * License Area Population with a minimum of $1,000 per license.
9. Accordingly, the Bureau lists all licenses, including the related license area population and proposed upfront payment for each, in Attachment A of the
10. The Bureau further proposes that the amount of the upfront payment submitted by a bidder will determine
11. In order to ensure that the auction closes within a reasonable period of time, an activity rule requires bidders to bid actively on a percentage of their maximum bidding eligibility during each round of the auction rather than wait until the end to participate. A bidder that does not satisfy the activity rule will either lose bidding eligibility in the next round or must use an activity rule waiver (if any remain).
12. The Bureau proposes to divide the auction into three stages, each characterized by an increased activity requirement. The auction will start in Stage One. The Bureau proposes that the auction generally will advance to the next stage (i.e., from Stage One to Stage Two, and from Stage Two to Stage Three) when the auction activity level, as measured by the percentage of bidding units receiving new high bids, is approximately twenty percent or below for three consecutive rounds of bidding. However, the Bureau further proposes that it retain the discretion to change stages unilaterally by announcement during the auction. In exercising this discretion, the Bureau will consider a variety of measures of bidder activity, including, but not limited to, the auction activity level, the percentage of licenses (as measured in bidding units) on which there are new bids, the number of new bids, and the percentage increase in revenue. The Bureau seeks comment on these proposals.
13. For Auction No. 46, the Bureau proposes the following activity requirements:
14. The Bureau seeks comment on these proposals. If commenters believe that these activity rules should be changed, they should explain their reasoning and comment on the desirability of an alternative approach. Commenters are advised to support their claims with analyses and suggested alternative activity rules.
15. Use of an activity rule waiver preserves the bidder's current bidding eligibility despite the bidder's activity in the current round being below the required minimum level. An activity rule waiver applies to an entire round of bidding and not to a particular license. Activity waivers are principally a mechanism for auction participants to avoid the loss of auction eligibility in the event that exigent circumstances prevent them from placing a bid in a particular round.
16. The FCC Automated Auction System assumes that bidders with insufficient activity would prefer to use an activity rule waiver (if available) rather than lose bidding eligibility. Therefore, the system will automatically apply a waiver (known as an “automatic waiver”) at the end of any bidding period where a bidder's activity level is below the minimum required unless: (1) There are no activity rule waivers available; or (2) the bidder overrides the automatic application of a waiver by reducing eligibility, thereby meeting the minimum requirements.
17. A bidder with insufficient activity may wish to reduce its bidding eligibility rather than use an activity rule waiver. If so, the bidder must affirmatively override the automatic waiver mechanism during the bidding period by using the reduce eligibility function in the bidding system. In this case, the bidder's eligibility is permanently reduced to bring the bidder into compliance with the activity rules as described. Once eligibility has been reduced, a bidder will not be permitted to regain its lost bidding eligibility.
18. A bidder may proactively use an activity rule waiver as a means to keep the auction open without placing a bid. If a bidder submits a proactive waiver (using the proactive waiver function in the bidding system) during a bidding period in which no bids or withdrawals are submitted, the auction will remain open and the bidder's eligibility will be preserved. An automatic waiver invoked in a round in which there are no new valid bids or withdrawals will not keep the auction open.
19. The Bureau proposes that each bidder be provided with five activity rule waivers that may be used at the bidder's discretion during the course of the auction as set forth. The Bureau seeks comment on this proposal.
20. For Auction No. 46, the Bureau proposes that, by public notice or by announcement during the auction, it may delay, suspend, or cancel the auction in the event of natural disaster, technical obstacle, evidence of an auction security breach, unlawful bidding activity, administrative or weather necessity, or for any other reason that affects the fair and efficient conduct of competitive bidding. In such cases, the Bureau, in its sole discretion, may elect to resume the auction starting from the beginning of the current round, resume the auction starting from some previous round, or cancel the auction in its entirety. Network interruption may cause the Bureau to delay or suspend the auction. The Bureau emphasizes that exercise of this authority is solely within the discretion of the Bureau, and its use is not intended to be a substitute for situations in which bidders may wish to apply their activity rule waivers. The Bureau seeks comment on this proposal.
21. The Commission will conduct Auction No. 46 over the Internet. Telephonic Bidding will also be available. As a contingency, the FCC Wide Area Network, which requires access to a 900 number telephone service, will be available as well. Full information regarding how to establish such a connection, and related charges, will be provided in the public notice announcing details of auction procedures.
22. The initial bidding schedule will be announced in a public notice to be released at least one week before the start of the auction, and will be included in the registration mailings. The simultaneous multiple round format will consist of sequential bidding rounds, each followed by the release of round results. Details regarding the location and format of round results will be included in the same public notice.
23. The Bureau has discretion to change the bidding schedule in order to foster an auction pace that reasonably balances speed with the bidders' need to study round results and adjust their bidding strategies. The Bureau may increase or decrease the amount of time for the bidding rounds and review periods, or the number of rounds per day, depending upon the bidding activity level and other factors. The Bureau seeks comment on this proposal.
24. The Balanced Budget Act calls upon the Commission to prescribe methods for establishing a reasonable reserve price or a minimum opening bid when FCC licenses are subject to auction unless the Commission determines that a reserve price or minimum opening bid is not in the public interest. Consistent with this mandate, the Commission has directed the Bureau to seek comment on the use of a minimum opening bid and/or reserve price prior to the start of each auction.
25. Normally, a reserve price is an absolute minimum price below which an item will not be sold in a given auction. Reserve prices can be either published or unpublished. A minimum opening bid, on the other hand, is the minimum bid price set at the beginning of the auction below which no bids are accepted. It is generally used to accelerate the competitive bidding process. Also, the auctioneer often has the discretion to lower the minimum opening bid amount later in the auction. It is also possible for the minimum opening bid and the reserve price to be the same amount.
26. In light of the Balanced Budget Act's requirements, the Bureau proposes to establish minimum opening bids for Auction No. 46. The Bureau believes a minimum opening bid, which has been utilized in other auctions, is an effective bidding tool.
27. For Auction No. 46, the Commission proposes that different formulae be utilized in setting minimum opening bids for Nationwide licenses that those used for MEA and EAG licenses. Specifically, the following license-by-license formulae for calculating minimum opening bids are as follows:
28. The specific minimum opening bid for each license available in Auction No. 46 is set forth in Attachment A of the
29. If commenters believe that these minimum opening bids will result in substantial numbers of unsold licenses, or are not reasonable amounts, or should instead operate as reserve prices, they should explain why this is so, and comment on the desirability of an alternative approach. Commenters are advised to support their claims with valuation analyses and suggested reserve prices or minimum opening bid levels or formulas. In establishing the minimum opening bids, the Bureau particularly seeks comment on such factors as the amount of spectrum being auctioned, levels of incumbency, the availability of technology to provide service, the size of the geographic service areas, issues of interference with other spectrum bands and any other relevant factors that could reasonably have an impact on valuation of the spectrum in the 1392–1395 and 1432–1435 MHz, 1390–1392 MHz, 1670–1675 MHz, and 2385–2390 MHz bands. Alternatively, comment is sought on whether, consistent with the Balanced Budget Act, the public interest would be served by having no minimum opening bid or reserve price.
30. In each round, eligible bidders will be able to place bids on a given license in any of nine different amounts. The Automated Auction System interface will list the nine acceptable bid amounts for each license.
31. Once there is a standing high bid on a license, the Automated Auction System will calculate a minimum acceptable bid for that license for the following round, as described. The difference between the minimum acceptable bid and the standing high bid for each license will define the bid increment. The nine acceptable bid amounts for each license consist of the minimum acceptable bid (the standing high bid plus one bid increment) and additional amounts calculated using multiple bid increments (i.e., the second bid amount equals the standing high bid plus two times the bid increment, the third bid amount equals the standing high bid plus three times the bid increment, etc.).
32. Until a bid has been placed on a license, the minimum acceptable bid for that license will be equal to its minimum opening bid. The additional bid amounts for licenses that have not yet received a bid will be calculated differently, as explained.
33. For Auction No. 46, the Bureau proposes to calculate minimum acceptable bids by using a smoothing methodology, as it has done in several other auctions. The smoothing formula calculates minimum acceptable bids by first calculating a percentage increment, not to be confused with the bid increment. The percentage increment for each license is based on bidding activity on that license in all prior rounds; therefore, a license which has received many bids throughout the auction will have a higher percentage increment than a license which has received few bids.
34. The calculation of the percentage increment used to determine the minimum acceptable bids for each license for the next round is made at the end of each round. The computation is based on an activity index, which is a weighted average of the number of bids in that round and the activity index from the prior round. The activity index at the start of the auction (round 0) will be set at 0. The current activity index is equal to a weighting factor times the number of new bids received on the license in that round plus one minus the weighting factor times the activity index from the prior round. The percentage increment is then calculated as the smaller of (a) a minimum percentage increment multiplied by one plus the activity index and (b) a specified maximum percentage increment. The Commission will initially set the weighting factor at 0.5, the minimum percentage increment at 0.1 (10%), and the maximum percentage increment at 0.2 (20%). Hence, at these initial settings, the percentage increment will
35. Under the smoothing methodology, once a bid has been received on a license, the minimum acceptable bid for that license in the following round will be the high bid from the current round plus the dollar amount associated with the percentage increment, with the result rounded to the nearest thousand if it is over ten thousand or to the nearest hundred if it is under ten thousand.
License 1
C = 0.5, N = 0.1, M = 0.2
i. Calculation of percentage increment for round 2 using the smoothing formula:
A
I
ii. Calculation of dollar amount associated with the percentage increment for round 2 (using I
X
iii. Minimum acceptable bid for round 2 = $1,200,000
i. Calculation of percentage increment for round 3 using the smoothing formula:
A
I
ii. Calculation of dollar amount associated with the percentage increment for round 3 (using I
X
iii. Minimum acceptable bid for round 3 = $2,400,000
i. Calculation of percentage increment for round 4 using the smoothing formula:
A
I
ii. Calculation of dollar amount associated with the percentage increment for round 4 (using I
X
iii. Minimum acceptable bid for round 4 = $2,880,000
36. As stated, until a bid has been placed on a license, the minimum acceptable bid for that license will be equal to its minimum opening bid. The additional bid amounts are calculated using the difference between the minimum opening bid times one plus the minimum percentage increment, rounded as described, and the minimum opening bid. That is, I = (minimum opening bid)(1 + N){rounded}−(minimum opening bid). Therefore, when N equals 0.1, the first additional bid amount will be approximately ten percent higher than the minimum opening bid; the second, twenty percent; the third, thirty percent; etc.
37. In the case of a license for which the standing high bid has been withdrawn, the minimum acceptable bid will equal the second highest bid received for the license. The additional bid amounts are calculated using the difference between the second highest bid times one plus the minimum percentage increment, rounded, and the second highest bid.
38. The Bureau retains the discretion to change the minimum acceptable bids and bid increments if it determines that circumstances so dictate. The Bureau will do so by announcement in the Automated Auction System. The Bureau seeks comment on these proposals.
39. At the end of a bidding round, the Automated Auctions System will determine the high bid on each license. In the event of identical high bids on a license in a given round (
40. A high bid will remain the high bid until there is a higher bid on the same license at the close of a subsequent round. A high bid from a previous round is sometimes referred to as a “standing high bid.” Bidders are reminded that standing high bids confer activity credit.
41. For Auction No. 46, the Bureau proposes the following bid removal and bid withdrawal procedures. Before the close of a bidding period, a bidder has the option of removing any bid placed in that round. By using the remove selected bids function in the bidding system, a bidder may effectively “unsubmit” any bid placed within that round. A bidder removing a bid placed in the same round is not subject to a withdrawal payment. Once a round closes, a bidder may no longer remove a bid.
42. A high bidder may withdraw its standing high bids from previous rounds using the withdraw function in the bidding system. A high bidder that withdraws its standing high bid from a previous round is subject to the bid withdrawal payment provisions of the Commission's rules. The Bureau seeks comment on these bid removal and bid withdrawal procedures.
43. In the
44. Applying this reasoning, the Bureau proposes to limit each bidder in Auction No. 46 to withdrawing standing high bids in no more than two rounds during the course of the auction. To permit a bidder to withdraw bids in more than two rounds would likely encourage insincere bidding or the use of withdrawals for anti-competitive purposes. The two rounds in which withdrawals are utilized will be at the bidder's discretion; withdrawals otherwise must be in accordance with the Commission's rules. There is no limit on the number of standing high bids that may be withdrawn in either of the rounds in which withdrawals are utilized. Withdrawals will remain subject to the bid withdrawal payment provisions specified in the Commission's rules. The Bureau seeks comment on this proposal.
45. The Bureau has discretion “to establish stopping rules before or during multiple round auctions in order to
46. Bidding will close simultaneously on all licenses after the first round in which no new acceptable bids, proactive waivers, or withdrawals are received. Thus, unless circumstances dictate otherwise, bidding will remain open on all licenses until bidding stops on every license.
47. However, the Bureau proposes to retain the discretion to exercise any of the following options during Auction No. 46:
i. Utilize a modified version of the simultaneous stopping rule. The modified stopping rule would close the auction for all licenses after the first round in which no bidder submits a proactive waiver, withdrawal, or a new bid on any license on which it is not the standing high bidder. Thus, absent any other bidding activity, a bidder placing a new bid on a license for which it is the standing high bidder would not keep the auction open under this modified stopping rule. The Bureau further seeks comment on whether this modified stopping rule should be used at any time or only in stage three of the auction.
ii. Keep the auction open even if no new acceptable bids or proactive waivers are submitted and no previous high bids are withdrawn. In this event, the effect will be the same as if a bidder had submitted a proactive waiver. The activity rule, therefore, will apply as usual, and a bidder with insufficient activity will either lose bidding eligibility or use a remaining activity rule waiver.
iii. Declare that the auction will end after a specified number of additional rounds (“special stopping rule”). If the Bureau invokes this special stopping rule, it will accept bids in the specified final round(s) only for licenses on which the high bid increased in at least one of a specified preceding number of rounds.
48. The Bureau proposes to exercise these options only in certain circumstances, such as, for example, where the auction is proceeding very slowly, there is minimal overall bidding activity, or it appears likely that the auction will not close within a reasonable period of time. Before exercising these options, the Bureau is likely to attempt to increase the pace of the auction by, for example, increasing the number of bidding rounds per day, and/or increasing the amount of the minimum bid increments for the limited number of licenses where there is still a high level of bidding activity. The Bureau seeks comment on these proposals.
49. Comments are due on or before June 6, 2002, and reply comments are due on or before June 13, 2002. Because of the disruption of regular mail and other deliveries in Washington, DC, the Bureau requires that all comments and reply comments be filed electronically. Comments and reply comments must be sent by electronic mail to the following address:
50. This proceeding has been designated as a “permit-but-disclose” proceeding in accordance with the Commission's
Federal Communications Commission.
Notice.
In this document, the Commission grants the section 271 application of Verizon New England Inc.,
Effective July 1, 2002.
Christine Newcomb, Attorney, Wireline Competition Bureau (WCB), at (202) 418–1573 or via the Internet at
This is a summary of the Commission's Memorandum Opinion and Order (MO&O) in CC Docket No. 02–61, FCC 02–187, adopted June 18, 2002, and released June 19, 2002. This full text may 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
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5. After carefully reviewing these comments, we conclude that, with respect to switching rates, the Maine Commission followed basic TELRIC principles and that the record does not support a finding that the Maine Commission committed clear error in adopting switching rates using the default cost allocation contained in the Synthesis Model. We also conclude that claims concerning Verizon's DUF rate are without merit or premature, and that a DUF rate of zero is an appropriate interim rate. For other rates, because the Maine Commission did not conduct a TELRIC analysis in all circumstances, we compared Verizon's Maine loop and non-loop rates to recently adopted New York rates and find that these rates satisfy our benchmark analysis. Thus, we conclude that Verizon's Maine UNE rates satisfy the requirements of checklist item 2.
6. The Commission also concludes that Verizon meets its obligation to provide access to its operations support systems (OSS)—the systems, databases, and personnel necessary to support the network elements or services. Nondiscriminatory access to OSS ensures that new entrants have the ability to order service for their customers and communicate effectively with Verizon regarding basic activities such as placing orders and providing maintenance and repair services for customers. The Commission finds that, for each of the primary OSS functions (pre-ordering, ordering, provisioning, maintenance and repair, and billing, as well as change management and technical assistance), Verizon provides access that enables competing carriers to perform the functions in substantially the same time and manner as Verizon or, if there is not an appropriate retail analogue in Verizon's systems, in a manner that permits an efficient competitor a meaningful opportunity to compete.
7. Pursuant to this checklist item, Verizon must also provide nondiscriminatory access to network elements in a manner that allows other carriers to combine such elements. Based on the evidence in the record, and upon Verizon's legal obligations under interconnection agreements, Verizon demonstrates that it provides to competitors combinations of already-combined network element as well as nondiscriminatory access to unbundled network elements in a manner that allows competing carriers to combine those elements themselves.
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9. In the Commission's overview of Verizon's performance data, it relies primarily on Maine performance data (supplemented with Massachusetts data) collected and submitted by Verizon under the state-adopted carrier-to-carrier standards. Verizon provides evidence and performance data establishing that it can efficiently furnish unbundled loops, for the provision of both traditional voice services and various advanced services, to other carriers in a nondiscriminatory manner.
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14. The Commission finds that, consistent with its extensive review of the competitive checklist, barriers to competitive entry in the local market have been removed and the local exchange market today is open to competition. The Commission also finds that the record confirms its view that a BOC's entry into the long distance market will benefit consumers and competition if the relevant local exchange market is open to competition consistent with the competitive checklist. The Commission also finds that the performance monitoring and enforcement mechanisms developed in Maine, in combination with other factors, provide meaningful assurance that Verizon will continue to satisfy the requirements of section 271 after entering the long distance market.
15.
Office of Governmentwide Policy, General Services Administration.
Notice of Federal Advisory Committee meeting.
The President's Homeland Security Advisory Council (PHSAC or Council) will meet in closed session on Tuesday, July 2, 2002, in Washington, DC. The PHSAC will meet to receive law enforcement and intelligence briefings by senior government officials related to homeland security, and to review and discuss the draft national strategy for homeland security. Due to critical mission and schedule requirements, there is insufficient time to provide the full 15 calendar days notice in the
The President's Homeland Security Advisory Council was established by Executive Order 13260 (67 FR 13241, March 21, 2002). The objectives of the PHSAC are to provide advice and recommendations to the President of the United States through the Assistant to the President for Homeland Security on matters relating to homeland security.
In accordance with Section 10(d) of the Federal Advisory Committee Act, Public Law 92–463, as amended (5 U.S.C. App.), it has been determined that this PHSAC meeting concerns matters sensitive to homeland security within the meaning of 5 U.S.C. 552b(c)(7) and (9)(B) and that, accordingly, the meeting will be closed to the public.
Members of the public who wish to file a written statement with the PHSAC may do so by mail to Mr. Fred Butterfield at the following address: President's Homeland Security Advisory Council, U.S. General Services Administration (GSA/MC, Room G230), 1800 F St., NW., Washington, DC 20405. Comments may also be sent to Fred Butterfield by e-mail at
The Agency for Toxic Substances and Disease Registry (ATSDR) announces the availability of fiscal year (FY) 2002 funds for a cooperative agreement program for Environmental Exposure to Diisocyanate. This program addresses the “Healthy People 2010” priority area of Environmental Health.
The purpose of the program is to conduct exposure assessment(s), biomonitoring, and evaluations of respiratory effects in communities at risk for environmental diisocyanate exposure.
Measurable outcomes of the program will be in alignment with the following performance goals for ATSDR: (1) Develop and provide reliable, understandable information for people in affected communities and tribes and for stakeholders and (2) Build and enhance effective partnerships.
This program is authorized under section 104 (i)(7), (9) and (15) of the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) of 1980 as amended by the Superfund Amendments and Reauthorization Act (SARA) of 1986 (42 U.S.C. 9604 (i)(7), (9) and (15)). The Catalog of Federal Domestic Assistance number is 93.206.
Assistance will be provided to the health departments of States or their bona fide agents or instrumentalities. This includes the District of Columbia, American Samoa, the Commonwealth of Puerto Rico, the Virgin Islands, the Federated States of Micronesia, Guam, the Northern Mariana Islands, the Republic of the Marshall Islands, the Republic of Palau, and federally recognized Indian Tribal governments.
Title 2 of the United States Code, Chapter 26, Section 1611 states that an organization described in section 501(c)(4) of the Internal Revenue Code of 1986 that engages in lobbying activities is not eligible to receive federal funds constituting an award, grant, cooperative agreement, contract, loan, or any other form.
Approximately $100,000 is available in FY 2002 to fund one award. It is expected that the award will begin on or about September 1, 2002, and will be made for a 12-month budget period within a project period of up to two years. Funding estimates may change.
Continuation awards within an approved project period will be made on the basis of satisfactory progress as evidenced by required reports and the availability of funds.
Funds may be expended for reasonable program purposes, such as personnel, travel, supplies, and services. Funds for contractual services may be requested; however, the grantee, as the direct and primary recipient of grant funds, must perform a substantive role in carrying out project activities and not merely serve as a conduit for an award to another party or provide funds to an ineligible party. Equipment may be purchased with grant funds, however, justification must be provided which should include a cost comparison of purchase versus lease, and title will be retained by ATSDR.
This program does not require in-kind support or matching funds, however, the applicant should describe any in-kind support in the application.
In conducting activities to achieve the purpose of this program, the recipient will be responsible for activities under 1. Recipient Activities, and ATSDR will be responsible for the activities listed under 2. ATSDR Activities.
a. Evaluate existing air emissions data and other information to identify communities at risk for diisocyanate exposures.
b. Model the dispersion of diisocyanate releases and define potentially exposed populations.
c. Identify comparable non-exposed comparison communities for each selected exposed community.
d. Establish air monitoring and sampling methodology.
e. Develop the study protocol.
f. Coordinate local Institutional Review Board approval of study protocol.
g. Conduct ambient air monitoring, sampling, and analysis in both exposed and non-exposed communities.
h. Implement the study protocol to include exposure assessments, biomonitoring, and respiratory health evaluations of the community residents in collaboration with ATSDR.
a. Collaborate in all activities listed above, including development of sampling methodology and study protocol.
b. Provide epidemiologic and environmental technical support.
c. Facilitate external peer review of the protocol and the final report(s).
d. Prepare and submit protocol and supporting materials to the CDC Institutional Review Board (IRB). The CDC IRB will review and approve the protocol initially and on at least an annual basis until the research project is completed.
e. Collaborate with recipient in all phases of data analysis and interpretation.
f. Conduct technical review and facilitate peer review of all reports.
The Program Announcement title and number must appear in the application. Use the information in the Program Requirements, Other Requirements, and Evaluation Criteria sections to develop the application content.
Your application will be evaluated on the criteria listed, so it is important to follow them in laying out your program plan.
The narrative should be no more than 20 pages, double-spaced, printed on one-side, with one-inch margins, and unreduced fonts.
The narrative should consist of, at a minimum, a Plan, Objectives, Methods, Evaluation and Budget.
Submit the original and two copies of PHS 5161–1 (OMB Number 0920–0428). Forms are available at the following Internet address:
On or before 5 p.m. Eastern Time July 30, 2002, submit the application to: Technical Information Management Section, Procurement and Grants Office, Centers for Disease Control and Prevention, 2920 Brandywine Road, Suite 3000, Atlanta, GA 30341.
Applications which do not meet the above criteria will not be eligible for competition and will be discarded. Applicants will be notified of their failure to meet submission requirements.
Applicants are required to provide Measures of Effectiveness that will demonstrate the accomplishment of the various identified objectives of the grant. Measures of Effectiveness must relate to the performance goals as stated in section “A. Purpose” of this announcement. Measures must be objective and quantitative and must measure the intended outcome. These Measures of Effectiveness will be submitted with the application and will be an element of evaluation.
Each application will be evaluated individually against the following criteria by an independent review group appointed by ATSDR.
The extent to which the applicant's protocol addresses (a) the approach, feasibility, adequacy, and rationale of the proposed project design; (b) the technical merit of the proposed project, including the degree to which the project can be expected to yield results that meet the program objective (including quality assurance and quality control procedures) for the proposed project; (c) the proposed project timeline, including clearly established project objectives for which progress toward attainment can and will be measured. Applicants are required to provide Measures of Effectiveness that will demonstrate the accomplishment of the various identified objectives of the cooperative agreement. Measures must be objective/quantitative and must measure the intended outcome. These Measures of Effectiveness shall be submitted with the application and shall be an element of evaluation; (d) the proposed method to disseminate study results; and (e) the degree to which the applicant has met the CDC Policy requirements regarding the
(1) The proposed plan for the inclusion of both sexes and racial and ethnic minority populations for appropriate representation.
(2) The proposed justification when representation is limited or absent.
(3) A statement as to whether the design of the study is adequate to measure differences when warranted.
(4) A statement as to whether the plans for recruitment and outreach for study participants include the process of establishing partnerships with community(ies) and recognition of mutual benefits.
The extent to which the applicant has described (a) the qualifications, experience, and commitment of the principal investigator (or project director) and their ability to devote adequate time and effort to provide effective leadership; and (b) the qualifications and experience of program personnel, including demonstrated capability and experience in conducting the air monitoring, sampling, and modeling activities described under the recipient activities.
The extent to which the proposal has described (a) the capability of the applicant's administrative structure to foster successful scientific and administrative management of a study; and (b) the capability of the applicant to demonstrate an appropriate plan for interaction with other public health and environmental agencies.
The extent to which the proposal has demonstrated the capability of the applicant to access records that will be helpful in identifying facilities that are currently using diisocyanates.
The extent to which the budget is reasonable, clearly justified, and consistent with intended use of cooperative agreement funds.
Does the application adequately address the requirements of Title 45 CFR Part 46 for the protection of human subjects?
Provide CDC with original plus two copies of:
1. Semi-annual progress reports (Attachment II)
2. Financial status report, no more than 90 days after the end of the budget period.
3. Final financial and performance reports, no more than 90 days after the end of the project period.
4. Applicants are required to provide Measures of Effectiveness that will demonstrate the accomplishment of the various identified objectives of the grant.
Send all reports to the Grants Management Specialist identified in the “Where to Obtain Additional Information” section of this announcement.
The following additional requirements are applicable to this program. For a complete description of each, see Attachment I in the application kit.
A complete copy of the announcement may be downloaded from CDC's home page on the Internet at:
If you have questions after reviewing the contents of all the documents, business management technical assistance may be obtained from: Edna Green, Grants Management Specialist, Grants Management Branch, Procurement & Grants Office, Centers for Disease Control and Prevention, Announcement 02166, Room 3000, 2920 Brandywine Road, Atlanta, GA 30341–4146, Telephone number (770) 488–2722, Email address: ecg4@cdc.gov.
For program technical assistance, contact: Curtis W. Noonan, PhD, Epidemiologist, Division of Health Studies, Agency for Toxic Substances and Disease Registry, Executive Park, Building 4, Suite 1300, Atlanta, GA 30305, Telephone (404) 498–0588, E-mail Address:
Semi-annual report should include:
1. A brief program description.
2. A listing of program goals and objectives accompanied by a comparison of the actual accomplishments related to the goals and objectives established for the period.
3. If established goals and objectives to be accomplished were delayed, describe both the reason for the deviation and anticipated corrective action or deletion of the activity from the project.
4. Other pertinent information, including the status of the program.
5. Measures of Effectiveness shall be a data requirement to be submitted with or incorporated into the semi-annual progress reports.
6. Financial recap of obligated dollars to date as a percentage of total available funds.
The Centers for Disease Control and Prevention(CDC) and the Agency for Toxic Substances and Disease Registry (ATSDR) announce the following meeting.
In addition, a memo was signed in October 1990 and renewed in November 1992 between the ATSDR and DOE. The MOU delineates the responsibilities and procedures for ATSDR's public health activities at DOE sites required under sections 104, 105, 107, and 120 of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA or Superfund). These activities include health consultations and public health assessments at DOE sites listed on, or proposed for, the Superfund National Priorities List and at sites that are the subject of petitions from the public; and other health-related activities such as epidemiologic studies, health surveillance, exposure and disease registries, health education, substance-specific applied research, emergency response, and preparation of toxicological profiles.
The Director, Management Analysis and Services Office, has been delegated the authority to sign
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) has determined the regulatory review period for BETAXON and is publishing this notice of that determination as required by law. FDA has made the determination because of the submission of an application to the Commissioner of Patents and Trademarks, Department of Commerce, for the extension of a patent which claims that human drug product.
Submit written comments and petitions to the Dockets Management Branch (HFA–305), Food and Drug Administration, 5630 Fishers Lane, rm. 1061, Rockville, MD 20852.
Claudia Grillo, Office of Regulatory Policy (HFD–007), Food and Drug Administration, 5600 Fishers Lane, Rockville, MD 20857, 301–827–3460.
The Drug Price Competition and Patent Term Restoration Act of 1984 (Public Law 98–417) and the Generic Animal Drug and Patent Term Restoration Act (Public Law 100–670) generally provide that a patent may be extended for a period of up to 5 years so long as the patented item (human drug product, animal drug product, medical device, food additive, or color additive) was subject to regulatory review by FDA before the item was marketed. Under these acts, a product's regulatory review period forms the basis for determining the amount of extension an applicant may receive.
A regulatory review period consists of two periods of time: A testing phase and an approval phase. For human drug products, the testing phase begins when the exemption to permit the clinical investigations of the drug becomes effective and runs until the approval phase begins. The approval phase starts with the initial submission of an application to market the human drug product and continues until FDA grants permission to market the drug product. Although only a portion of a regulatory review period may count toward the actual amount of extension that the Commissioner of Patents and Trademarks may award (for example, half the testing phase must be subtracted, as well as any time that may have occurred before the patent was issued), FDA's determination of the length of a regulatory review period for a human drug product will include all of the testing phase and approval phase as specified in 35 U.S.C. 156(g)(1)(B).
FDA recently approved for marketing the human drug product BETAXON (levobetaxolol). BETAXON is indicated for lowering intraocular pressure in patients with chronic open-angle glaucoma or ocular hypertension. Subsequent to this approval, the Patent and Trademark Office received a patent term restoration application for BETAXON (U.S. Patent No. 4,911,920) from Alcon Laboratories, and the Patent and Trademark Office requested FDA's assistance in determining this patent's eligibility for patent term restoration. In a letter dated January 17, 2001, FDA advised the Patent and Trademark Office that this human drug product had undergone a regulatory review period and that the approval of BETAXON represented the first permitted commercial marketing or use of the product. Shortly thereafter, the Patent and Trademark Office requested that FDA determine the product's regulatory review period.
FDA has determined that the applicable regulatory review period for BETAXON is 947 days. Of this time, 765 days occurred during the testing phase of the regulatory review period, while 182 days occurred during the approval phase. These periods of time were derived from the following dates:
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3.
This determination of the regulatory review period establishes the maximum potential length of a patent extension. However, the U.S. Patent and Trademark Office applies several statutory limitations in its calculations of the actual period for patent extension. In its application for patent extension, this applicant seeks 579 days of patent term extension.
Anyone with knowledge that any of the dates as published are incorrect may submit to the Dockets Management Branch (see
Comments and petitions should be submitted to the Dockets Management Branch. Three copies of any information are to be submitted, except that individuals may submit one copy. Comments are to be identified with the docket number found in brackets in the heading of this document. Comments and petitions may be seen in the Dockets Management Branch between 9 a.m. and 4 p.m., Monday through Friday.
Health Resources and Services Administration, HHS.
Notice of availability of funds.
The Health Resources and Services Administration (HRSA) announces that about $1.2 million in fiscal year (FY) 2002 funds is available for up to 11 State Grants for Traumatic Brain Injury (TBI). The purpose of the TBI program is to assist individuals who have sustained a traumatic brain injury in obtaining health care and other services. Awards will be made in three categories: (1) Planning Grants, to assist States in developing the infrastructure needed to implement a State TBI program; (2) Implementation Grants, to assist States in moving toward statewide systems that assure access to comprehensive and coordinated TBI services, and (3) Post Demonstration Grants, to assist States which have successfully completed a TBI Implementation Grant. HRSA expects to award two Planning Grants, one Implementation Grant, and eight Post-Demonstration Grants this fiscal year. All awards will be made under the program authority of the Public Health Service Act, Title XII, section 1252 (42 U.S.C. 300d–52), and will be administered by the Maternal and Child Health Bureau (MCHB), HRSA. Planning Grants may be approved for up to two years; with awards of up to $75,000. The Implementation Grant may be approved for up to 3 years; the award will be up to $200,000. Post Demonstration Grants will be approved for only one year; awards will be up to $100,000. Funding beyond FY 2002 is contingent upon the availability of funds.
Applicants are requested to notify MCHB of their intent to apply by July 19, 2002. The deadline for receipt of applications is August 2, 2002. Applications will be considered “on time” if they are either received on or before the deadline date or postmarked on or before the deadline date. The projected award date is September 29, 2002.
To receive a complete application kit, applicants may telephone the HRSA Grants Application Center at 1–877–477–2123 (1–877–HRSA–123) or register on-line at:
Necessary application forms and an expanded version of this
This notice will appear on the HRSA Home Page at
Letter of Intent: Notification of intent to apply should be directed to Betty Hastings, M.S.W., by email,
Betty Hastings, M.S.W., 301–443–5599, or email:
Traumatic brain injury (TBI) is sudden physical damage to the brain, often caused by motor vehicle accidents, falls, sports injuries, violent crimes, or child abuse. TBI can result in physical, behavioral, and/or mental changes, depending on the areas of the brain that are injured. TBI is the leading cause of death and disability among young people in the United States. Approximately 200,000 Americans die each year from traumatic injuries. An additional half million are hospitalized. About 10 percent of the surviving individuals have mild to moderate problems that threaten their ability to live independently. Another 200,000 have serious problems that may require institutionalization or some other form of close supervision.
The number of people surviving TBI has increased significantly in recent
Although TBI can cause chronic physical impairments, often the individual has more disability due to problems with cognition, emotional functioning, and behavior in connection with interpersonal relationships, school, or work. The result is frequently a dramatic change in the individual's life-course, profound disruption of the family, and huge medical and related expenses over a lifetime. Rehabilitation efforts can require years of treatment, starting in the hospital, and extending through formal inpatient and outpatient rehabilitation to a variety of day treatment or residential programs.
The cognitive and communication problems of TBI are best treated early; often beginning while the individual is still in the hospital. Longer-term rehabilitation may be performed individually, in groups, or both, depending on the needs of the individual. This therapy often occurs in a rehabilitation facility designed specifically for the treatment of individuals with TBI. The goal of rehabilitation is to help affected individuals progress to the most independent level of functioning possible. Therapy focuses on regaining lost skills, as well as learning ways to compensate for abilities that have been permanently changed because of TBI.
According to a recent GAO study of services, adults with TBI often have permanent disability that requires long-term supportive services to remain in the community. In an analysis of eleven States, the gap between the number of individuals with TBI receiving long-term services and the estimated number of disabled adults with TBI remains wide.
Until FY 2002, two categories of TBI demonstration grants were available: (1) State TBI Planning Grants and (2) State TBI Implementation Grants. Thirty-three States and the District of Columbia received planning grants to develop an Action Plan to improve the State's TBI service system. Grantees developed four “core capacity” components: (1) A statewide TBI Advisory Board; (2) designated State agency and staff position(s) responsible for State TBI activities; (3) a statewide needs/resource assessment to address the full spectrum of services from initial acute treatment through rehabilitation and long-term community services for individuals with TBI; and (4) a statewide Action Plan outlining steps needed to develop a comprehensive, community-based system of care encompassing physical, psychological, educational, vocational, and social aspects of TBI services, and addressing the needs of individuals with TBI and their families.
Twenty-six States received Implementation Grants. States used these grants to focus on key priorities identified in their statewide action plans, including: (1) Leadership in integrating individuals with TBI and their families into the broader service delivery system; (2) human resources, personnel, training, and education on TBI issues; (3) data collection, evaluation, and information management to improve delivery of TBI services; (4) public information and education regarding TBI issues; (5) and coordination with other public health and disability community services.
The Children's Health Act of 2000, Public Law 106–310, established two additional grant categories: (1) Post Demonstration Grants for States that have successfully completed a TBI Implementation Grant, and (2) TBI Protection and Advocacy (P&A) grants. This Notice announces availability of funds only for TBI Planning Grants, TBI Implementation Grants and TBI Post Demonstration Grants.
Public Health Service Act, Title XII, section 1252, 42 U.S.C. 300d–52, as amended by Public Law 106–310, section 1304.
The purpose of the TBI grant program is to improve access, availability, appropriateness and the acceptability of health and other services for people who have sustained a traumatic brain injury (TBI) and their families, through funding systems change initiatives. Planning Grants provide funds to assist States in developing infrastructure in the four identified “core capacity” components identified above. Implementation grants provide funds to implement priority elements of the TBI State Plan. Post Demonstration Grants provide funds for capacity-building initiatives to contribute to sustainable change in their systems of community services and supports that reflect best practices.
For all TBI grants, State governments are the only eligible applicants for funding. It is understood that applications for a TBI Post-Demonstration Grant will come from the State agency designated as the lead for TBI services; the State must have completed a three-year State TBI Implementation Grant.
Approximately $150,000 is available in FY 2002 to support two State TBI State Planning awards, at up to $75,000 per award, for project periods of up to two years. Approximately $200,000 is available in FY 2002 to support one Implementation award for up to 3 years Approximately $800,000 is available in FY 2002 to support eight TBI State Post Demonstration awards, at $100,000 per award, for a one-year project period. For each award, the State must contribute, in cash or in kind (including plant, equipment and services), not less than $1 for each $2 of Federal funds provided under the TBI State Grants. Amounts provided by the Federal Government, or services assisted or subsidized to any significant extent by the Federal Government, may not be included in the amount of such contributions.
The initial budget period for TBI Planning Grants and Implementation Grants is expected to be 12 months, with any subsequent budget period being 12 months each. Continuation of any TBI project from one budget period to the next is subject to satisfactory performance, program priorities and the availability of funds.
An objective review panel will evaluate applications for TBI grants, using criteria and weights specific to each category of grant, which are outlined below.
(1) State Planning Grants:
a. The strength of the plan to develop a statewide Advisory Board (15 points).
b. The adequacy of the State's methodology to develop the four “core capacity” components (35 points).
c. The comprehensiveness of the approach to collaboration and partnership (25 points).
d. The adequacy of the organizational and management plan (25 points).
(2) Implementation Grants:
a. The capabilities of the designated Lead Agency (20 points).
b. The adequacy of the involvement of the Statewide Advisory Board (25 points).
c. The strength of the statewide TBI Action Plan in addressing community services and supports that reflect the best practice in the field of traumatic brain injury (25 points).
d. The State capacity building efforts (30 points).
(3) Post Demonstration Grants:
a. The capabilities of the designated State lead agency (20 points).
b. The adequacy of the involvement of the statewide Advisory Board (25 points).
c. The strength of the statewide TBI Action Plan in addressing community services and supports that reflect the best practice in the field of traumatic brain injury (25 points).
d. The State's capacity building efforts (30 points).
Additional criteria used to review and rank applications for this competition are included in the application kit. Applicants should pay strict attention to addressing these criteria, as they are the basis upon which their applications will be judged.
OMB approval for any data collection in connection with this cooperative agreement will be sought, as required under the Paperwork Reduction Act of 1995.
This program has been determined to be a program which is subject to the provisions of Executive Order 12372 concerning intergovernmental review of Federal programs by appropriate health planning agencies, as implemented by 45 CFR part 100. Executive Order 12372 allows States the option of setting up a system for reviewing applications from within their States for assistance under certain Federal programs. The application packages to be made available under this notice will contain a listing of States which have chosen to set up such a review system and will provide a single point of contact (SPOC) in the States for review. Applicants (other than federally-recognized Indian tribal governments) should contact their State SPOCs as early as possible to alert them to the prospective applications and receive any necessary instructions on the State process. For proposed projects serving more than one State, the applicant is advised to contact the SPOC of each affected State. The due date for State process recommendations is 60 days after the application deadline for new and competing awards. The granting agency does not guarantee to “accommodate or explain” for State process recommendations it receives after that date. (
Notice is hereby given of a change in the meeting of the Center for Scientific Review Special Emphasis Panel, June 27, 2002, 9 a.m. to June 27, 2002, 10 a.m., Melrose Hotel, 2430 Pennsylvania Avenue, NW., Washington, DC 20037 which was published in the
The meeting will be held on June 28, 2002. The time and location remain the same. The meeting is closed to the public.
Notice is hereby given of a change in the meeting of the National Cancer Institute Special Emphasis Panel, June 17, 2002, 8 a.m. to June 19, 2002, 6 p.m., Washington Terrace Hotel, 1515 Rhode Island Avenue, NW., Washington, DC, 20005 which was published in the
The meeting location has been changed to the Wyndham Washington Hotel. The meeting is closed to the public.
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
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552(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 552(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 confidental 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 meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. Appendix 2), notice is hereby given of the following 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.
(Catalogue of Federal Domestic Assistance Program Nos. 93.375, Minority Biomedical Research Support; 93.821, Cell Biology and Biophysics Research; 93.859, Pharmacology, Physiology, and Biological Chemistry Research; 93.862, Genetics and Developmental Biology Research; 93.88, Minority Access to Research Careers; 93.96, Special Minority Initiatives, National Institutes of Health, HHS)
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/or contract proposals 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 and/or contract proposals, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
This notice is being published less than 15 days prior to the meeting due to the timing limitations imposed by the review and funding cycle.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. Appendix 2), notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552(c)(6), Title 5 U.S.C., as amended. The contract proposals and the discussion could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the contract proposals, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
This notice is being published less than 15 days prior to the meeting due to the timing limitations imposed by the review and funding cycle.
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 contract proposals and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the contract proposals, 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 provision
This notice is being published less than 15 days prior to the meeting due to the timing limitations imposed by the review and funding cycle.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. Appendix 2), notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. Appendix 2), notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. Appendix 2), notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. Appendix 2), notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The contract proposals and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the contract proposals, 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 contract proposals and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the contract proposals, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. appendix 2), notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
This notice is being published less than 15 days prior to the meeting due to the timing limitations imposed by the review and funding cycle.
National Institutes of Health, Public Health Service, HHS.
Notice.
This is notice in accordance with 15 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 a limited field of use exclusive world-wide license to practice the invention embodied in U.S. Serial Number 09/763,260, filed February 20, 2001 (claiming priority to U.S. Provisional Patent Application Serial No. 60/097,446, filed August 21, 1998), entitled “Modified HCV Peptide Vaccine” to Intercell AG of Vienna, Austria. These patent rights are assigned to the United States as represented by the Department of Health and Human Services.
Only written comments and/or applications for a license which are received by NIH on or before September 24, 2002, will be considered.
Requests for a copy of this issued patent or applications, inquiries, comments, and other materials relating to the contemplated license should be directed to: Carol A. Salata, Technology Licensing Specialist, Office of Technology Transfer, National Institutes of Health, 6011 Executive Boulevard, Suite 325, Rockville, MD 20852–3821; Telephone: (301) 496–7735 ext 232; Facsimile: (301) 402–0220; E-mail:
The invention provides immunogenic peptides of HCV core protein that elicit an enhanced immune response, methods for making these peptides, and methods for using these peptides for a variety of therapeutic, diagnostic, and prognostic applications, including a vaccine.
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. It is anticipated that this license may be limited to the field of use as a prophylactic and/or therapeutic vaccine against HCV infection. Intercell AG will use an HCV peptide as a component of an HCV vaccine.
This prospective exclusive license may be granted unless, within 90 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.
Applications for a license filed in response to this notice will be treated as objections to the grant of 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.
Fish and Wildlife Service, Interior.
Notice of Finding of No Significant Impact (FONSI) and issuance of permit for incidental take of endangered species.
On November 20, 2001, a notice was published in the
Notice is hereby given that on April 4, 2002, the Proposed Action (Alternative 3) was selected and a Finding of No Significant Impact (FONSI) determination was made for the action as described in the final Environmental Assessment. As authorized by the provisions of the Act, the Service issued a permit (TE–048991) to the above named party subject to certain conditions set forth therein. The permit was granted only after the Service determined it was applied for in good faith, that granting the permit would not be to the disadvantage of the endangered species, and that it was consistent with the purposes and policy set forth in the Endangered Species Act, as amended.
Additional information on this permit may be requested by contacting Mr. Peter Fasbender, at (612) 713–5343, or
Bureau of Indian Affairs, Interior.
Notice.
In compliance with the Paperwork Reduction Act of 1995, the Bureau of Indian Affairs, Office of Indian Education Programs is submitting to the Office of Management and Budget an information collection request which requires renewal. The information collection, Data Elements for Student Enrollment in Bureau-funded Schools, is cleared under OMB Control Number 1076–0122 through June 30, 2002.
Comments must be received on or before July 26, 2002.
Send comments or suggestions directly to the Office of Management and Budget, Office of Regulatory Affairs, Attention: Desk Officer for the Department of the Interior, 725 17th Street NW, Washington, DC 20503.
Send a copy of your comments to William Mehojah, Director, Office of Indian Education Programs, Bureau of Indian Affairs, 1849 C Street, NW., Mail Stop 3512–MIB, Washington, DC 20240. Facsimile is 202–208–3312.
Glenn Allison, 202–208–3628 (This is not a toll-free number). Copies of this information collection document will be sent to you, free of charge, when you call and request them.
The Secretary of the Interior, through the Bureau of Indian Affairs, is required to provide educational services to federally recognized Indians and Alaska Natives. Beginning with the Snyder Act and continuing with Public Laws 93–638, 95–561, 100–297, 103–382, and 107–110, Congress has passed legislation to ensure Indians receive educational opportunities.
This collection is used to determine a Native American and Alaska Native individual's educational and/or residential service eligibility for enrollment in Bureau-funded schools. The data elements for enrollment information collection is for attendance in elementary and secondary schools operated and funded by the Bureau of Indian Affairs and to address the criteria for attendance that was changed by the passage of Public Law 99–228. This act allows for the tuition free attendance for any Indian student who is a member of a federally recognized tribe or is
On February 7, 2002, a notice of emergency clearance and request for comments to begin the renewal process was published in the
The Office of Management and Budget has up to 60 days to either renew or deny renewal of this application. However, a decision may be made after 30 days; therefore, your comments have a better chance of consideration the closer they are sent to the beginning of the comment period.
We specifically request your comments on the following:
(1) Whether the collection of information is necessary for the proper performance of the functions of the BIA, including whether the information will have practical utility;
(2) The accuracy of the BIA's estimate of the burden of the information collection, including the validity of the methodology and assumptions used;
(3) The quality, utility and clarity of the information to be collected; and,
(4) How to minimize the burden of the information collection on those who are to respond, including the use of appropriate automated electronic, mechanical or other forms of information technology.
Please note that 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. All comments received from the 60-day
Bureau of International Labor Affairs, Department of Labor.
Notice of availability of funds and solicitation for cooperative agreement applications (SGA 02–11).
This Notice contains all of the necessary information and forms needed to apply for cooperative agreement funding.
The U.S. Department of Labor (USDOL), Bureau of International Labor Affairs (ILAB), will award funds in one or more cooperative agreements to an organization or organizations to develop and implement HIV/AIDS/STI/TB
The closing date for receipt of applications is August 27, 2002. Applications must be received by 4:45 p.m. (Eastern Daylight Savings Time) at the address below. No exceptions to the mailing, delivery, and hand-delivery conditions set forth in this notice will be granted. Applications that do not meet the conditions set forth in this notice will not be honored.
Application forms will not be mailed. They are published in this
Lisa Harvey: E-mail address:
ILAB's Office of Foreign Relations (OFR) carries out a worldwide international technical assistance program in support of three objectives: (1) Expanding Economic Opportunity and Income Security for Workers; (2) Protecting the Basic Rights of Workers; and (3) Reducing the Prevalence of HIV/AIDS through Workplace Education. This SGA seeks one or more eligible and qualified organizations to develop and implement projects supporting objective three, reducing the prevalence of HIV/AIDS
The cooperative agreement(s) is to be actively managed by ILAB's Office of Foreign Relations to assure achievement of the stated objectives. Applicants are encouraged to be creative in proposing innovative and cost-effective interventions that will have a demonstrable impact on the HIV/AIDS infection rate and the level of discrimination in employment against individuals infected with HIV/AIDS.
According to UNAIDS,
Recent studies on HIV/AIDS in the workforce warn of the catastrophic consequences of HIV/AIDS/STI/TB for workers and employers worldwide, projecting a severe decline in the size and quality of the workforce in a number of countries over the next 20 years. Countries with the most infected populations in sub-Saharan Africa could lose 29–35% of their total labor force by 2020. Due to the disproportionate effect of HIV/AIDS on the 15–49 year age group, the most economically active segment of society is affected most severely. Moreover, the stigma and discrimination that surround those suffering from the disease contribute to the high prevalence rate by perpetuating misinformation and preventing people from seeking help. As a result, the International Labor Organization estimates that in the case of countries with HIV prevalence rates higher than 10% of the adult population, the labor force in the year 2020 will be an estimated 10–22% smaller than it would have been if there had been no HIV/AIDS. The impact has already eradicated the small gains in economic growth and stability that some sub-Saharan African countries had experienced.
The severity of the AIDS pandemic is generating orphans so quickly that family structures can no longer cope. Traditional safety nets are unraveling as more young adults die of AIDS related illnesses. Typically, half of the people with HIV become infected before they turn 25, acquiring AIDS and dying by the time they turn 35, leaving behind a generation of children to be raised by their grandparents or left on their own in child-headed households. More than 12,100,000 children have been orphaned by AIDS in Africa, accounting for more than 95% of the world's AIDS' orphan population. The extended family network in sub-Saharan Africa is an age-old social safety net for such children, which has long proved itself resilient even to major social changes. Capacity and resources, however, are now stretched to the breaking point. Those providing the necessary care in many cases are already impoverished, leaving behind vulnerable children and young adults who are forced to leave school to fend for themselves and often become child heads of households. The crisis directly impacts the workforce of the future.
USDOL is authorized to award and administer this program by the Department of Labor, Health and Human Services and Education, and Related Agencies Appropriations Act, 2002, Pub. L. 107–116, 115 Stat. 2177 (2001).
Any commercial, international, or non-profit organization capable of successfully implementing HIV/AIDS workplace prevention and education programs on a global scale, and successfully working with labor ministries, employers and labor groups to reduce the spread of HIV/AIDS and help eliminate discrimination in employment relating to HIV/AIDS is eligible for this cooperative agreement. Partnerships of more than one organization are also eligible, although in such a case a lead organization must be identified. The capability of an applicant and partners and co-applicants to perform necessary aspects of this solicitation will be determined under Section V.B Rating Criteria.
Please Note That Eligible Cooperative Agreement Applicants Must Not be Classified Under The Internal Revenue Code as a Section 501(c)(4) Entity.
One (1) ink-signed original, complete application plus two (2) copies of the proposal must be submitted to the U.S. Department of Labor, Procurement Services Center, 200 Constitution Avenue, NW, Room N–5416, Washington, DC 20210, not later than 4:45 p.m. EDT, August 27, 2002. To aid with review of applications, USDOL also encourages applicants to submit two additional paper copies of the application (five total). Applicants who do not provide additional copies will not be penalized.
The application must consist of two (2) separate parts. Part I of the application must contain the Standard Form (SF) 424, “Application for Federal Assistance” (Appendix A) (The entry on SF 424 for the Catalog of Federal Domestic Assistance Number (CFDA) is 17.700) and sections A–F of the Budget Information Form SF 424A (Appendix B). Part II must contain a technical
To be considered
Upon completion of negotiations, the individual signing the SF 424 on behalf of the applicant must be authorized to bind the applicant.
The grant application package must be received at the designated place by the date and time specified or it will not be considered. Any application received at the Office of Procurement Services after 4:45 pm ET August 27, 2002, will not be considered unless it is received before the award is made and:
1. It was sent by registered or certified mail not later than the fifth calendar day before August 27, 2002;
2. It is determined by the Government that the late receipt was due solely to mishandling by the Government after receipt at the U.S. Department of Labor at the address indicated; or
3. It was sent by U.S. Postal Service Express Mail Next Day Service-Post Office to Addressee, not later than 5:00 pm at the place of mailing two (2) working days, excluding weekends and Federal holidays, prior to August 27, 2002.
The only acceptable evidence to establish the date of mailing of a late application sent by registered or certified mail is the U.S. Postal Service postmark on the envelope or wrapper and on the original receipt from the U.S. Postal Service. If the postmark is not legible, an application received after the above closing time and date shall be processed as if mailed late. “Postmark” means a printed, stamped or otherwise placed impression (not a postage meter machine impression) that is readily identifiable without further action as having been applied and affixed by an employee of the U.S. Postal Service on the date of mailing. Therefore applicants should request that the postal clerk place a legible hand cancellation “bull's eye” postmark on both the receipt and the envelope or wrapper.
The only acceptable evidence to establish the date of mailing of a late application sent by U.S. Postal Service Express Mail Next Day Service-Post Office to Addressee is the date entered by the Post Office receiving clerk on the “Express Mail Next Day Service-Post Office to Addressee” label and the postmark on the envelope or wrapper and on the original receipt from the U.S. Postal Service. “Postmark” has the same meaning as defined above. Therefore, applicants should request that the postal clerk place a legible hand cancellation “bull's-eye” postmark on both the receipt and the envelope or wrapper.
Applications sent by e-mail, telegram, or facsimile (FAX) will not be accepted. Applications sent by other delivery services, such as Federal Express, UPS, etc., will be accepted, however, the applicant bears the responsibility for timely submission. Because of delay in the receipt of mail in the Washington, DC area, it is recommended that you confirm receipt of your application by contacting Lisa Harvey, U.S. Department of Labor, Procurement Services Center, telephone (202) 693–4570 (this is not a toll-free number), prior to the closing deadline. All inquires should reference SGA 02–11.
Approximately U.S. $8.3 million is budgeted for this program, to fund projects, one in West Africa (Benin, Ghana and Togo), one in the Caribbean (Guyana and Belize), and one each in Namibia, Mozambique, Cambodia and Malawi. Although USDOL reserves the right to award more than one cooperative agreement, a partnership of more than one organization may apply to implement the program. Applicants will submit one application for the implementation of all six projects and are encouraged to utilize local NGO's to implement much of the program in order to institutionalize and sustain project improvements and reduce costs. The award of any sub-contract to a local NGO will be subject to USDOL approval (See Section B above).
The duration of the project(s) funded by this SGA is four (4) years. The start date of project activities will be negotiated upon the awarding of the cooperative agreement.
In developing their proposals, potential cooperative agreement recipients should develop a strategy for implementation of the project objectives to reduce the spread of human immunodeficiency virus/acquired immune deficiency syndrome (HIV/AIDS) and eliminate discrimination in employment against individuals infected with HIV/AIDS/STI/TB through a global workplace prevention and education program. The strategy should take into account the implementing environment in the selected countries and incorporate innovative methodologies for targeting employers and employees. The strategy should also demonstrate how the applicant proposes to involve employer organizations, labor organizations, and Ministries of Labor in the implementation of the project. The applicant should draft a strategy demonstrating how it will meet the project objectives by the end of the grant period, and how the issue of sustainability will be integral to project implementation. The applicant must present a strategy to demonstrate that 80% of the target group exhibits an awareness of accurate information regarding HIV/AIDS/STI/TB prevention and methods of infection; at least 50% of the target group undertakes responsible behavior at the conclusion of the grant; and 60% of targeted employers have developed and implemented workplace policies aimed at decreasing discriminatory workplace practices in both public and private sectors.
The applicant should include a basis on which the target groups will be established (e.g. target industries, regions or age groups), outline the information, education, and communication (IEC) materials that will be used as well as a strategy for translating HIV/AIDS/STI/TB awareness to responsible behavior change. The strategy should seek to reduce the stigma of HIV/AIDS at the national, enterprise and community level. In addition, the applicant should develop sustainable innovative strategies for involving government, employers' and workers' organizations, and nongovernmental organizations, as appropriate, in the development, implementation and enforcement of appropriate workplace policies at the national and enterprise levels aimed at decreasing discriminatory workplace practices in both public and private sectors; and help ensure that at least 60% of targeted enterprises have such workplace policies and practices in place by the end of the grant period.
The applicant should reflect an understanding of the challenges facing Malawi with regard to workforce development and HIV/AIDS/STI/TB. The applicants will develop an approach that will meet the overall development needs of the identified target beneficiaries in order to facilitate entrance of skilled workers into the workforce. The applicant will propose innovative and cost-effective strategies working through existing local institutions to support the following objectives: (1) Enable young adults affected by HIV/AIDS to obtain job skills training and follow-up assistance with income generation; (2) Mobilize a wide array of stakeholders to improve and expand the workforce training infrastructure; (3) Encourage responsible behavior change through increased awareness and correct knowledge of HIV/AIDS/STI/TB and methods of infection among the target population; and (4) Provide psychosocial support for the identified target group. The application should also incorporate a strategy for collaborating with other donors to assist in the long-term sustainability of these efforts and illustrate methods for innovative behavior change interventions, as well as including young women in the workforce target group, with a framework for providing an enabling environment for women to obtain income generating skills.
The organization awarded the cooperative agreement(s) (hereinafter referred to as the “grantee”) will be required to work cooperatively with stakeholders in the countries, including Ministries/Departments of Education and Labor, trade unions, employer organizations, and other relevant partners to identify the number and location of target groups, gather and correlate knowledge, attitude, and behavior survey data, and assess level of capacity and infrastructure of targeted groups and geographic locations.
Following the award of the cooperative agreement(s), unless otherwise indicated, the applicant must submit copies of all required reports to USDOL by the specified due dates. Other documents, such as project designs, are to be submitted by mutually agreed-upon deadlines.
1. Project Designs. The grantee(s) will travel to each country with USDOL officials on a project design mission trip, draft the design, and submit a project document in the format established by USDOL, to include a background/justification section, project strategy (objectives, outputs, activities, indicators), project implementation timetable, project management organizational chart, project budget, logical framework and performance monitoring plan to systematically monitor project results. The document will also include sections, which cover coordination strategies, project management, and sustainability of project improvements involving government, employers' and workers' organizations as well as other nongovernmental organizations as appropriate. Each project design will be drawn, in part, from the proposal written in response to this solicitation.
2. Trip Reports. Within ten (10) days of the conclusion of each field mission, a two-page trip report (exclusive of contact information) will be submitted to USDOL, including purpose of trip, places and dates, list of meetings, site visits, problems encountered, accomplishments, next steps, and an appendix of names and contact information of persons met.
3. Technical Progress Reports. The grantee(s) must furnish a typed technical report to USDOL on a quarterly basis, no later than 15 days from the last date of each quarter,
a. For each project objective, an accurate account of activities carried out under that objective during the reporting period as it relates to the work plan;
b. Major trends in the project that note particular success with a particular activity or trends that indicate a need to re-adjust or expand the work plan;
c. An account of problems, proposed solutions, actions taken or required regarding implementation of the project;
d. New proposals for activities, staffing, funding, etc;
e. Lessons learned in project implementation;
f. Future actions planned in support of each project objective;
g. An accounting of staff and any sub-contractor hours expended;
h. Expenditures vs. Budget;
i. An accounting of travel performed under the cooperative agreement during the reporting period, including purpose of trip, persons or organizations contacted, and benefits derived; and
j. Aggregate amount of costs incurred during the reporting period.
4.
5.
6.
“Preparation of this item was funded by the United States Department of Labor under Cooperative Agreement No. [insert the appropriate cooperative agreement number].
When issuing statements, press releases, requests for proposals, bid solicitations, and other documents describing projects or programs funded in whole or in part with Federal money, all grantees receiving Federal funds, including State and local governments and recipients of research grants, must clearly state:
a. The percentage of the total costs of the program or project, which will be financed with Federal money;
b. The dollar amount of Federal funds for the project or program; and
c. The percentage and dollar amount of the total costs of the project or program that will be financed by non-governmental sources.
In consultation with USDOL, identification of USDOL's role will be determined to be one of the following:
a. The USDOL logo may be applied to USDOL-funded material prepared for world-wide distribution, including posters, videos, pamphlets, research documents, national survey results, impact evaluations, best practice reports, and other publications of global interest. The grantee(s) will consult with USDOL on whether the logo should be used on any such items prior to final draft or final preparation for distribution. In no event shall the USDOL logo be placed on any item until USDOL has given the grantee written permission to use the logo, after obtaining appropriate internal USDOL approval for use of the logo on the item.
b. If the USDOL determines the logo is not appropriate and does not give written permission, the following notice must appear on the document:
“This document does not necessarily reflect the views or policies of the U.S. Department of Labor, nor does mention of trade names, commercial products, or organizations imply endorsement by the U.S. Government.”
1.
29 CFR Part 36—Federal Standards for Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance.
29 CFR Part 93—New Restrictions on Lobbying.
29 CFR Part 95—Uniform Administrative Requirements for Grants and Agreements with Institutions of Higher Education, Hospitals and Other Non-Profit Organizations, and with Commercial Organizations, Foreign Governments, Organizations Under the Jurisdiction of Foreign Governments and International Organizations.
29 CFR Part 96—Federal Standards for Audit of Federally Funded Grants, Contracts and Agreements.
29 CFR Part 98—Federal Standards for Government wide Debarment and Suspension (Nonprocurement) and Governmentwide Requirements for Drug-Free Workplace (Grants).
29 CRF Part 99—Federal Standards for Audits of States, Local Governments, and Non-Profit Organizations.
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USDOL will screen all applications to determine whether all required elements are present and clearly identifiable. A technical panel will objectively rate each complete application against the criteria described in this announcement. The panel recommendations to the Grant Officer are advisory in nature. The Grant Officer may elect to select one or more
Selection of an organization as a cooperative agreement recipient does not constitute approval of the cooperative agreement application as submitted. Before the actual cooperative agreement is awarded, the Grant Officer will enter into negotiations concerning such items as program components, funding levels, and administrative systems. If the negotiations do not result in an acceptable submission, the Grant Officer reserves the right to terminate the negotiation and decline to fund the proposal.
The technical panel will review applicants against the criteria listed below on the basis of 100 points with up to additional five points available for non-federal or leveraged resources.
The criteria are presented in the order of emphasis that they will receive.
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(1) The applicant's proposed method for demonstrating that 80% of the targeted population exhibits knowledge of accurate information regarding HIV/AIDS/STI/TB prevention and methods of infection;
(2) The applicant's proposed method for achieving responsible behavior among 50% of the targeted population in support of reducing the spread of the HIV/AIDS virus;
(3) Development and implementation of workplace policies designed to reduce discrimination of HIV/AIDS infected workers in 60% of targeted worksites; and
(4) The other expected outcomes over the period of performance for each of the tasks.
The applicant must describe in detail the proposed approach to comply with each requirement in Section IV.A of this solicitation, including all tasks and methods to be utilized to implement the project. Also, the applicant must explain the rationale for using this approach. In addition, this section of the proposal must demonstrate the applicant's thorough knowledge and understanding of the impact of HIV/AIDS on the workplace, best-practice solutions to the problem, working with the tripartite partners, and work that has been done in the field as applied to the country or countries that are the focus of this program.
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(1) Describe the use of existing or potential infrastructure and use of qualified personnel, including qualified nationals, to implement the projects in West Africa (Benin, Ghana and Togo), the Caribbean (Guyana and Belize), Namibia, Mozambique, Cambodia and Malawi. One chart for the entire program is acceptable if the approach will be uniform in all project countries. The applicant also must include a project organizational chart, demonstrating management structure, key personnel positions and indicating proposed links with the relevant Government ministries, employer organizations, trade unions and other significant local actors.
(2) Develop a list of activities and explain how each relates to the overall development objective of reducing the rate of HIV/AIDS infection through workplace prevention and education programs and creating a supportive workplace environment for people living with HIV/AIDS.
(3) Explain how appropriate IEC materials and training curriculum will be developed.
(4) Explain the strategy for providing HIV/AIDS prevention and education program in the workplace. Outline how the tripartite partners will be involved in the implementation of this component.
(5) Explain the strategy for assisting business and labor to develop appropriate workplace policy statements to address issues stemming from the stigma and discrimination associated with HIV/AIDS.
(6) Demonstrate how the applicant will strengthen national institutions and policies on HIV/AIDS and discrimination in the workplace.
(7) Demonstrate how the applicant will systematically report on project performance to measure the achievement of the project objective(s).
(8) Demonstrate how the applicant will build the national and local capacity to ensure that project efforts to reduce the incidence of HIV/AIDS in the workplace are sustained after completion of the project.
(9) For Malawi only, describe the strategy to expand access to job skills training and employment for young adults affected by HIV/AIDS, work with local stakeholders to address the needs of young adults affected by HIV/AIDS in the workforce and prepare an HIV/AIDS prevention program for the target population in Malawi that results in responsible behavior change among the targeted population.
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(1) A project organization chart and accompanying narrative which differentiates between elements of the applicant's staff and sub-contractors or consultants who will be retained;
(2) A description of the functional relationship between elements of the project's organization; and (3)The identity of the individual responsible for project management and the lines of authority between this individual and other elements of the project.
The staff loading plan must identify all key tasks and the person-days required to complete each task. Labor estimates for each task must be broken down by individuals assigned to the task, including sub-contractors and consultants. All key tasks must be charted to show time required to perform them by months or weeks.
This section will be evaluated in accordance with applicable Federal laws and regulations. The budget must comply with Federal cost principles (which can be found in the applicable OMB Circulars) and with ILAB budget requirements contained in the application instructions in Section III of this solicitation.
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The evaluation criteria in this category are as follows:
a. The applicant, including any partners or co-applicants, must demonstrate experience with HIV/AIDS/STI/TB prevention; working directly with government Ministries, employers' organizations, trade unionists and other local organizations e.g. community based or faith based groups; analyzing labor law relating to discrimination; developing workplace policy statements addressing issues relating to discrimination; and implementing workplace education programs either in the country or countries in which it proposes project(s) or that it has broad experience of working with such entities, with experience in the above areas. Organizations applying in partnership or as co-applicants must submit a signed letter of agreement between the parties verifying the intention of the parties to work together to implement the program. The partnership agreement must include a designation for the lead organization.
b. The capability of the applicant(s) for the workforce development project may be demonstrated by one or more staff members assigned to oversee the project with experience in the following area:
(1) Workforce Development or Human Capacity Development;
(2) Coordinating with the Ministries of Labor and Education, Employer Organizations, non-governmental organizations and Trade Union officials; and
(3) Providing HIV/AIDS prevention and HIV/AIDS psychosocial services to young adults.
c. The applicant(s) must also demonstrate either that it has an international system of operations either by affiliates or by agreement in the regions identified in Section I.B or that it has an effective system of operations in each designated country. These contacts must enable the applicant(s) to demonstrate that it can perform in the above-mentioned countries.
d. The applicant must include information regarding previous grants, contracts or cooperative agreements. This information must include:
(1) The organization for whom the work was done;
(2) A contact person in that organization with his/her current phone number;
(3) The dollar value of the grant, contract or cooperative agreement for the project(s);
(4) The time frame and professional effort involved in the project(s);
(5) A brief summary of the work performed; and
(6) A brief summary of accomplishments.
This information on previous grants and contracts shall be provided in appendices and will
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This section of the application must include sufficient information for judging the quality and the competence of key staff proposed to be assigned to the project(s) proposed to assure that they meet the required qualifications. Successful performance of the proposed work depends heavily on the qualifications of the individuals committed to the program. Accordingly, in its evaluation of the applicant's proposal, USDOL will place emphasis on the applicant's commitment of key personnel qualified for the work involved in accomplishing the assigned tasks. Information provided on the experience and educational background of personnel must indicate the following:
a. The identity of key personnel assigned to the project. “Key personnel” are staff who are essential to the successful operation of the project and completion of the proposed work and, therefore, may not be replaced or have their hours reduced without the approval of the Grant Officer.
b. The educational background and experience of all staff to be assigned to the project.
c. The special capabilities of staff that demonstrate prior experience in organizing, managing and performing similar efforts.
d. The current employment status of staff and availability for this project. The applicant must also indicate whether the proposed work will be performed by persons currently employed or is dependent upon planned recruitment or sub-contracting.
Note that management and professional technical staff members comprising the applicant's proposed team should be individuals who have prior experience with organizations working in similar efforts, and are fully qualified to perform work specified in the Statement of Work. Where sub-contractors or outside assistance is proposed, organizational control should be clearly delineated to ensure responsiveness to the needs of USDOL. Key personnel must sign letters of agreement to serve on the project, and indicate availability to commence work within three weeks of grant award. The following information must be furnished:
a. The applicant must designate a Program Director to oversee the project(s) and other key personnel to perform the requirements for the International HIV/AIDS Workplace Education Program and Malawi workforce development program for young adults affected by HIV/AIDS. The Program Director must have a minimum of three years of professional experience in a leadership role in implementation of complex HIV/AIDS/STI/TB prevention and education programs in developing countries in areas such as behavior change intervention, development of IEC materials, HIV/AIDS policy development, and monitoring and evaluation of HIV/AIDS projects.
b. The applicant should specify other personnel proposed to carry out the requirements of this solicitation.
c. An organization chart showing the applicant's proposed organizational structure for performing task requirements for the project(s) proposed, along with a description of the roles and responsibilities of all key personnel proposed for this project(s). The chart should also differentiate between elements of the applicant's staff and sub-contractors or consultants who will be retained.
d. The applicant must identify all key tasks and the person-days required to complete each task. Labor estimates for each task must be broken down by individuals assigned to the task, including sub-contractors and consultants. All key tasks must be charted to show time required to perform them by months or weeks.
e. A resume for each of the key personnel to be assigned to the program. At a minimum, each resume must include: the individual's current employment status and previous work experience, including position title, duties performed, dates in position, employing organizations and educational background. Duties must be
f. The special capabilities of staff that demonstrate prior experience in organization, managing and performing similar efforts.
g. The current employment status of key personnel proposed for work under the cooperative agreement,
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This stated commitment will be incorporated into the text of the cooperative agreement with the selected applicant(s).
Office of Disability Employment Policy (ODEP), Department of Labor.
Notice of availability of funds and Solicitation for Grant Applications (SGA 02–13) for Customized Employment Grants.
The U.S. Department of Labor (DOL or the Department), Office of Disability Employment Policy (ODEP) announces the availability of $3.5 million to award up to seven competitive grants for strategic planning and implementation activities designed to improve the employment and career advancement of people with disabilities through enhanced availability and provision of customized employment services through the new One-Stop delivery system established under the Workforce Investment Act of 1998 (WIA) (Pub. L. 105–220, 29 U.S.C. 2801
This Customized Employment Grant program will provide funds to selected Local Workforce Investment Boards (Local Boards), or, if appropriate, the WIA grant recipient or fiscal agent for the local area on behalf of the Local Board. The Local Board will be the lead entity in a consortium/partnership of public and private entities, to build the capacity in local One-Stop Centers to provide customized employment services to those persons with disabilities who may not now be regularly targeted for services by the One-Stop Center system. Grants funded under this program will also provide a vehicle for Local Boards to systemically review their policy and practices in terms of service to persons with disabilities, and to incorporate new and innovative practices, as appropriate.
Grants are for a one-year period and may be renewed for a period of up to four additional years at varying funding levels (see Section V) depending upon the availability of funds and the efficacy of the project activities. All forms necessary to prepare an application are included in this SGA. If another copy of a Standard Form is needed, go online to http://www.whitehouse.gov/OMB/grants/forms.html.
One (1) blue ink-signed original, complete grant application plus two (2) copies of the Technical Proposal and two (2) copies of the Cost Proposal must be submitted to the U.S. Department of Labor, Procurement Services Center, Attention Grant Officer, Reference SGA 02–13, Room N–5416, 200 Constitution Avenue, NW., Washington, DC 20210, not later than 4:45 p.m. Eastern Daylight Savings Time (EDST) August 12, 2002. Hand-delivered applications must be received by the Procurement Services Center by that time.
Applications must be directed to the U.S. Department of Labor, Procurement Services Center, Attention: Grant Officer, Reference SGA 02–13, Room N–5416, 200 Constitution Avenue, NW., Washington, DC 20210.
Applications will not be mailed. The
The application package must be received at the designated place by the date and time specified or it will
1. It was sent by registered or certified mail not later than the fifth calendar day before August 12, 2002; or
2. It was sent by U.S. Postal Service Express Mail Next Day Service-Post Office to Addressee, not later than 5 p.m. at the place of mailing two (2) working days, excluding weekends and Federal holidays, prior to August 12, 2002; or
3. It is determined by the Government that the late receipt was due solely to mishandling by the Government after receipt at the U.S. Department of Labor at the address indicated.
The only acceptable evidence to establish the date of mailing of a late application sent by registered or certified mail is the U.S. Postal Service postmark on the envelope or wrapper and on the original receipt from the U.S. Postal Service. If the postmark is not legible, an application received after the above closing time and date shall be processed as if mailed late. “Postmark” means a printed, stamped or otherwise placed impression (
The only acceptable evidence to establish the time of receipt at the U. S. Department of Labor is the date/time stamp of the Procurement Services Center on the application wrapper or other documentary evidence or receipt maintained by that office.
Applications sent by other delivery services, such as Federal Express, UPS, etc., will also be accepted; however, the applicant bears the responsibility of timely submission.
All applicants are advised that U.S. mail delivery in the Washington, DC area has been erratic due to concerns involving anthrax contamination. All applicants must take this into consideration when preparing to meet the application deadline. Therefore, it is recommended that you confirm receipt of your application by contacting Cassandra Willis, U.S. Department of Labor, Procurement Services Center, telephone (202) 693–4570, (this is not a toll-free number), prior to the closing deadline. Persons who are deaf or hard of hearing may contact the Department via the Federal Relay Service, (800) 877–8339.
Consolidated Appropriations Act, 2001, Pub. L. 106–554, 114 Stat. 2763, A–10, 29 U.S.C. 557(b); DOL, HHS, Education & Related Agencies Appropriations Act, 2002, Pub. L. 107–116, 115 Stat. 2177.
The President's New Freedom Initiative is designed to increase the number of people with disabilities who enter, reenter, and remain in the workforce. It is dedicated to increasing investment in and access to assistive technologies, a quality education, and increasing the integration of Americans with disabilities into the workforce and community life. The Workforce Investment Act of 1998 (WIA) provides the infrastructure for streamlining services and securing employment through the One-Stop delivery system. WIA requires multiple programs and agencies (including state Vocational Rehabilitation agencies) to: (a) Form
In addition, One-Stop Centers may elect to become employment networks under the Ticket-to-Work Program (42 U.S.C. 1320b–19), thus making it more likely that they will require expertise in customized employment strategies in order to successfully facilitate employment for people with disabilities who are recipients of Supplemental Security Income (SSI) or Social Security Disability Insurance (SSDI). The Ticket-to-Work is providing increased employment opportunities for people with disabilities who receive SSI and/or SSDI benefits by addressing some of the major barriers encountered by these individuals as they attempt to gain or regain employment. Approximately eight million people with disabilities receive SSI and/or SSDI benefits. According to the U.S. General Accounting Office, less than one percent of these individuals leave the rolls each year as a result of paid employment. Of those who do leave, about one-third return within three years. The Ticket-to-Work program provides a variety of work incentives, including greater choices of needed employment services, the continuation of Medicare eligibility for SSDI recipients and, at state option, health coverage under the Medicaid program to certain workers with disabilities, either by permitting them to purchase Medicaid coverage or by extending Medicaid eligibility to them without charge. As a result, there is unprecedented opportunity for these individuals to enter, or return to the workforce. Increasing numbers of individuals with disabilities will be approaching their local One-Stop Centers for assistance.
Many strategies exist for securing integrated, competitive employment for people with disabilities, including people who previously might have been considered “nonfeasible” for employment, and people who have been segregated in institutions, nursing homes, and day activity programs. Attitudes are changing about the abilities of people with significant disabilities to work in a variety of jobs, industries, and levels. Many exemplary practices and promising strategies have emerged through decades of research and demonstration projects, and through other public and private activities promoting increased choice and self-determination for people with disabilities. These include a variety of approaches such as supported employment; supported entrepreneurship; individualized job development; job carving and restructuring; use of personal agents (including individuals with disabilities and family members); development of micro-boards, micro-enterprises, cooperatives and small businesses; and use of personal budgets and other forms of individualized funding that provide choice and control to the person and promote self-determination. These and other innovations hold the promise of dramatically increasing both employment and wages for people with disabilities, in part by increasing their choices for integrated, competitive employment, business ownership, micro-enterprise development, entrepreneurship, and other employment options that were previously seldom available. An important focus of these innovations has been on providing non-stereotypical jobs that provide increased earnings, benefits, and career advancement potential for people, with significant disabilities. There is a substantial need for a sustained and coordinated initiative to build professional competency within One-Stop Centers and their partners, including service providers and employers, about the use of customized employment strategies.
Additionally there is a need to: (1) Effectively expand the availability of personal agents, job development expertise, and other strategies for achieving customized employment for people with disabilities; (2) increase the number of eligible training providers who can provide customized employment assistance; (3) provide information, technical assistance, training and strategic planning that focuses on integrating customized employment strategies into the workforce investment system; (4) develop ongoing linkages with employers and professional and business service organizations and trade associations and market to employers the abilities of people with disabilities to work in a variety of jobs; (5) coordinate all necessary employment and related supports from WIA partners and other essential programs that are not required partners under WIA; and, (6) research and demonstrate alternative methods of determining effective performance by the workforce investment system in terms of service to people with disabilities.
This SGA is designed to award strategic planning and implementation grants for customized employment to develop and/or expand the capacity of local workforce systems to provide meaningful and effective opportunity through One-Stops for all persons with disabilities addresses the first of these activities.
The U.S. Department of Labor also offers Work Incentive Grants designed to enhance service delivery throughout the National One-Stop delivery system for people with disabilities. Recognizing that the One-Stop system generally has limited capacity to serve people with disabilities in the comprehensive nature envisioned under the WIA, the Work Incentive Grant program has multiple goals which include but are not limited to: (1) Establishing the capacity for
This SGA is designed to develop comprehensive models of direct service delivery in the context of a One-Stop setting for individuals with disabilities with the greatest barriers to employment, many of whom have never been employed, are limited to subsidized employment, underemployed, or may be considered unable to be employed. The Customized Employment grants will involve cutting edge approaches such as use of customized employment strategies and active involvement of essential programs of both mandated and non-mandated partners of the workforce system.
The purpose of this initiative is to maximize the capacity of, and outcomes from, One-Stop Centers and their partners to effectively serve people with disabilities through customized employment strategies, and to integrate those strategies into the policy and practice of the One-Stop and its partners in order to increase employment, choice and wages for people with disabilities.
For purposes of this solicitation the Department has chosen to specifically target the development and provision of customized employment to those people with disabilities identified in this section. However, the Department expects that once capacity for using customized employment strategies is developed or enhanced, the One-Stop Centers and their partners can expand use of these strategies to other groups of people with (and without) disabilities.
For purposes of this solicitation, the target groups are people with disabilities who are either unemployed or under-employed and are: (1) Receiving Supplementary Security Income (SSI) and/or Social Security Disability Insurance (SSDI); or (2) Participating in day programs (such as day habilitation, day activity or day health programs) or participating in facility-based or community employment and earning less than minimum wage; or (3) Participating in segregated employment and choosing to move to integrated, competitive employment; or (4) Awaiting employment services and supports following a move from a residential facility, or as part of a plan to move into a community under the Supreme Court decision in Olmstead v. L.C. by Zimring, 527 U.S. 581(1999); or (5) Transitioning from, or preparing to transition from, secondary school under a transition plan under part B of the Individuals with Disabilities Education Act, as amended (20 U.S.C. 1400
For purposes of this solicitation, customized employment means individualizing the employment relationship between employees and employers in ways that meet the needs of both. It is based on an individualized determination of the strengths, needs, and interests of the person with a disability, and is also designed to meet the specific needs of the employer. It may include employment developed through job carving, self-employment or entrepreneurial initiatives, or other job development or restructuring strategies that result in job responsibilities being customized and individually negotiated to fit the needs of individuals with a disability. Customized employment assumes the provision of reasonable accommodations and supports necessary for the individual to perform the functions of a job that is individually negotiated and developed
Eligible applicants for these grants are Local Workforce Investment Boards (Local Boards) or, if appropriate, the WIA grant recipient or fiscal agent for the local area on behalf of the Local Board under the Workforce Investment Act. The Local Board may enter into numerous partnerships with other public and private entities, consistent with the proposed activities of the grant.
Grantees must implement training and staff development activities and demonstration projects designed to develop organizational capacity to serve people with disabilities in One-Stop Centers. These projects must develop professional competency in customized employment strategies and serve targeted people with disabilities. Workforce investment system partners and other non-required but essential programs must be included in this effort. Grantees must integrate customized employment strategies with the existing services available through the One-Stop Center and its partners, including through demonstrating alternative methods of measuring performance within the Once-Stop environment. The result of these efforts will be an increase in employment, choice, and wages for people with disabilities through the use of customized employment, and the systemic evaluation and modification, as appropriate, of policies and practices to ensure that customized employment strategies for people with disabilities are systemically included in the services available through the One-Stop Center.
Grantees must demonstrate collaborative activities across relevant stakeholder groups, including both required and non-required One-Stop partners, persons with disabilities, their parents and other family members, advocates, employers, community rehabilitation agencies, and others as appropriate
Grantees must:
1. Develop professional competency and capacity for implementing a variety of innovative and promising practices through customized employment;
2. Mobilize needed services and supports;
3. Implement systems change demonstrations; and,
4. Implement other initiatives to ensure that these innovations and promising practices become part of the menu of services available through the workforce investment system.
Grantees must develop employment opportunities in a variety of jobs, industries and at a variety of levels, including self-employment and entrepreneurship, based on the strengths, needs and desires of the
It is expected that each grantee will become a “model” for both the state and the Nation in terms of demonstrating effective linkages and strategies through the One-Stop Center system. These models will demonstrate successful strategies for customized employment for people with disabilities which result in increased employment and wages. Each grantee must also review policy and practice as it relates to people with disabilities, including researching alternative methods for performance accountability that are relevant to the characteristics of this population.
Grantees must pursue the following objectives:
1. Develop and implement strategic planning and implementation activities across the One-Stop required partner programs as identified in the Workforce Investment Act, (WIA sec. 121(b), 29 USCA, 2841(b) (such as Vocational Rehabilitation and others as appropriate) as well as other essential programs (such as Medicaid, Medicare, Mental Health, Transportation, Small Business Development Centers, State Councils on Developmental Disabilities, community colleges, benefits counseling and assistance programs, lending and financial institutions), whose expertise, services, and/or funds could contribute to employment services and supports needed by people with disabilities in order to secure customized employment.
2. Develop local and statewide policy initiatives to ensure that customized employment and multiple innovative strategies and promising practices become part of the menu of services available to people with disabilities including investigating alternative methods for performance accountability that consider the characteristics of the population.
3. Develop and document the increased capacity of the One-Stop system, including WIA required partners, community providers of employment services, and other essential programs, to provide customized employment for persons with disabilities. Such capacity includes enhancing collaboration between required WIA partners and building new collaborative initiatives with other essential programs.
4. Develop and document the capacity of the One-Stop system to increase the wages of people with disabilities who are currently working at less than minimum wage through the use of customized employment strategies.
5. Develop an increased understanding by One-Stop Centers' staff about health care, work incentives, benefits planning, “tickets” and other provisions under the Ticket-to-Work and Work Incentives Improvement Act of 1999 (42 USC 1320b–19
6. Document the increasing use of resources from a number of system partners and other essential programs, including providing individual budgets (e.g., individual training accounts/contractual services; tickets; vouchers; and other sources of individualized funding or personal funding accounts) for persons with disabilities to obtain customized employment.
7. Develop and leverage linkages with other state and local initiatives that provide services and supports for people with disabilities (including, but not limited to, state systems change efforts which promote systems improvement and comprehensive coordination; initiatives involving health care; benefits planning and assistance; housing; transportation; education; supported employment; small business development; technology-related assistance; initiatives of private foundations; and faith-based programs and others as appropriate).
8. Educate relevant stakeholders, including state and local policymakers and systems personnel, about needed changes in policy and practice in order to increase customized employment and wages for people with disabilities.
9. Organize education activities to enable customized employment and personalized supports to become available and used in local communities, including (as appropriate) activities necessary to secure adoption of the Medicaid buy-in in the state.
10. Develop ongoing linkages with employers, and their professional business and service organizations and trade associations as appropriate;
11. Collaborate with the national technical assistance cooperative agreement funded by the ODEP to provide assistance and training on increasing employment for adults with disabilities.
12. Identify and pursue other activities, as appropriate, to achieving the goals of these grants.
13. Provide ongoing evaluation of project activities.
Funds must be used in a flexible manner, as determined appropriate by input from stakeholders and identified needs. However, grantees must spend grant funds on activities that meet the requirements delineated in this SGA, including the requirements for outcome and evaluation data. Moreover, the grantee must adhere to the allowable cost and administrative requirements of Federal statutes, regulations, administrative requirements, and OMB Circulars. Activities may include the following:
1. Necessary staffing across agencies to implement grantee activities and otherwise demonstrate effective partnerships and interactions necessary to effectively leverage resources and expertise from partnering systems and programs.
2. Outreach to relevant stakeholders.
3. Strategic planning.
4. Demonstration activities which provide methods to increase the employment, choice, and earning potential of people with disabilities that are designed for systemic inclusion (including but not limited to demonstrating the use of individual training accounts or contractual services, tickets, and individual budgeting initiatives; economic stimulus activities including low-interest loans for person-centered micro-boards focused on increasing economic prosperity for specific individuals with disabilities; entrepreneurial employment initiatives that are consumer-owned or operated; demonstrations of innovation and cutting-edge strategies providing personal control, choice and customized assistance resulting in employment, including business ownership, micro-enterprise development or development of cooperatives for persons with disabilities; and other supports needed by specific individuals with disabilities to increase choice and wages in employment).
5. Other activities necessary to address needs and achieve goals identified through strategic planning and implementation, including collection of necessary data and evaluation.
6. Collaboration with the education system, parents and families to ensure transition of young people with disabilities from school to customized employment or training, and documentation of the outcomes of such efforts.
7. Training and education activities (including training regarding Medicaid buy-in provisions and other policy implications for increasing employment through state activities) designed to further the goal of increasing customized employment for persons with disabilities. These training activities include the education of One-Stop and partner personnel; state systems personnel and policymakers; developing and disseminating educational information and materials; and otherwise promoting policy and practice to increase the wide spread community-based use of customized employment strategies and personalized supports.
8. Researching and demonstrating alternative methods of measuring WIA performance outcomes that consider the various characteristics of people with disabilities and developing demonstrations of performance measures that document new methods for measuring program effectiveness; and coordinating the availability of and access to assistive technology.
9. Establishing connections to and collaborating with other entities, including employers, lending and financial institutions, foundations, faith-based organizations, institutions of higher education, consumer and family organizations, small business development centers and others, as appropriate, to further customized employment opportunities for persons with disabilities in local communities.
10. Educating the media and the general public about successful strategies for and the benefits of securing employment for people with disabilities. This will assist in obtaining long-term support for continuation of grantee activities following completion of funding.
11. Increasing the availability of personal agents and job development personnel offering customized services through customer-controlled approaches that result in customized employment (including demonstrating effectiveness of paying family members and/or other individuals with disabilities to serve as personal agents when selected by the individual with a disability to assist in negotiating and implementing employment plans and services).
12. Assisting community providers of segregated employment services to develop integrated, competitive options for individuals with disabilities, including implementation of conversion and other organizational change initiatives conducted with segregated provider programs that wish to change their services to integrated employment.
Upon the award of a grant, grantees must begin a strategic planning and implementation process that will address multiple components of needed change. Planning, implementation and ongoing evaluation for continuous improvement are expected to be implemented from year one in recognition that dynamic planning will occur and evolve over time. By the end of year five, it is expected that a more long-term strategic plan will be in place for expanding the availability and provision of customized employment, and for systemically revising policies and practices consistent with this goal. All grantees must provide a detailed management plan for project goals, objectives and activities.
All grantees must collect and provide to the DOL information on the individuals with disabilities served under this grant who secure employment through use of customized strategies (including information on types of jobs, wages and benefits secured by specific individuals with disabilities, and other areas addressed through the linkages and networks facilitated by grant activities.) Grantees must support the travel cost associated with sending at least one representative to the annual ODEP Grantees' training conference, to be held in Washington, DC.
All grantees must agree to cooperate with an evaluation to be conducted by the Department of Labor. DOL will arrange for and conduct this evaluation of the outcomes, impacts, and accomplishments of each funded grant as a way to measure the overall effectiveness of ODEP's grant program. Grantees must agree to make available records on all parts of grant activity, including participant employment and wage data, and to provide access to personnel, as specified by the evaluator(s), under the direction of the Department. This independent evaluation is separate from the ongoing evaluation for continuous improvement required of the grantee for grant implementation.
The Department of Labor anticipates awarding up to seven grants with a range of between $400,000 and $750,000 each. These awards will be for a one-year period and may be renewed annually for up to four additional years for a total of five years depending upon the availability of funds and the efficacy of the grant activities, established through reviews conducted by the Department of Labor or its designee. Proposals must include budgetary information for a five-year period. The funding for Years Four and Five will be at successively lower levels, with funding during Year Four could be at up to 80 percent of third-year funds and during Year Five at 60 percent of the third years funds. Grantees are expected to use this grant as seed money to develop other public and private resources in order to ensure sustainability of grant activities following completion of the funding period.
Funds must not be used for modifying buildings or equipment for physical accessibility, although the strategic planning should address how resources will be leveraged for such purposes from other sources, as appropriate.
Eligible applicants for these grants are restricted to Local Workforce Investment Boards (Local Boards) or, if appropriate, the WIA grant recipient or fiscal agent for the local area on behalf of the Local Board as established under the Workforce Investment Act (WIA sec.117, U.S.C.A. 2832). The Local Board may coordinate numerous partnerships with other public and private entities, consistent with proposed activities of the grant and applicable administrative requirements.
The U.S. Department of Labor encourages Local Boards to join with other State/local entities and public/private non-profit organizations. Such entities and organizations could include state programs for Vocational Rehabilitation, Mental Health, Medicaid, Mental Retardation/Developmental Disabilities, Housing and/or Transportation; State Councils on Developmental Disabilities; Protection and Advocacy Programs; University Centers for Excellence in Developmental Disabilities; institutions of higher education; Centers for Independent Living (CIL's); disability advocacy and provider organizations; organizations of parents; federally-funded disability grant entities; Small Business Development Centers; cooperatives and micro-enterprises; lending and financial institutions; training programs; media and marketing agencies; employers; foundations; grass roots community, industry, and faith-based programs; and other organizations or programs which provide or support services and/or advocacy for people with disabilities. Letters of support and commitment from these programs must be included in the Appendix of the proposal. Indian and Native American Tribal entities, or consortia of Tribes, may apply for these grants. These grants could involve coordination of services and enhancement to a One-Stop system
According to section 18 of the Lobbying Disclosure Act of 1995, an organization, as described in section 501(c)(4) of the Internal Revenue Code of 1986, that engages in lobbying activities will not be eligible for the receipt of federal funds constituting an award, grant, or loan.
There are three required Parts and an Appendix of the application. Requirements for each Part are provided in this application package, as are all required forms.
A cover letter, one completed blue ink signed original SF 424 grant application with two (2) copies. Proposals must be submitted by the applicant only. Page limits do not apply to the Project Financial Plan, the Executive Summary, or the Appendices (assurances, resumes, bibliography or references as appropriate, and letters of support.) A font size of at least twelve (12) point is required throughout.
To be considered, applications must include a detailed financial plan which identifies by line item the budget plan designed to achieve the goals of this grant. The Project Financial Plan must contain the SF–424, Application for Federal Assistance, (Appendix A) and an SF–424A Budget Information Sheet (Appendix B). The Project Financial Plan (Budget) must include on a separate page a detailed cost analysis of each line item. Justification for administrative costs must be provided. Approval of a budget by DOL is not the same as the approval of actual costs. The individual signing the SF–424 on behalf of the applicant must represent and be able to bind the responsible financial and administrative entity for a grant should that application result in an award.
The application must contain an Executive Summary limited to no more than two (2) single-spaced, single-sided pages which are not included in the overall page limit. Each application must provide a grant synopsis which identifies the following:
1. The applicant;
2. The consortium partners; the organizations or systems they represent; and their role in grant implementation;
3. Data on people with disabilities in the area, including, to the extent it is available, information about the target group for this solicitation and other data relevant to the proposed grant;
4. The geographic service area of the Local Board;
5. The planned period of performance (projected annually through a five year cycle, assuming grant renewals awards);
6. The actions already taken by the One-Stop system in the local area to address the needs of people with disabilities, including activities related to increasing availability of customized employment and leveraging resources and expertise across non-required partners of the One-Stop Centers;
7. A brief statement of the goals of the proposal and how they will be achieved; and,
8. Assurances of commitment in support of this proposal from the fiscal agent and all partner agencies.
The Grant Narrative should provide complete information on how the applicant will address the requirements of this SGA and is limited to no more than 75 double-spaced, single-sided, numbered pages (not including Appendices). Each application must provide, in response to the objectives of this SGA, a comprehensive strategy and implementation plan for developing capacity and providing customized employment through the One Stop system.
A. Evaluation Criteria: The Project Narrative should address the following evaluation elements:
Applicants must include in their proposed plan the following items.
a. The current employment circumstances facing people with disabilities in the area to be served, including barriers, programs and resources, systems and activities that could be leveraged to address needed changes.
b. The number of persons with disabilities in the area who fit the other requirements of the defined target group of persons with disabilities who may be served under this grant.
c. Related issues that need to be addressed in order to develop and/or enhance capacity of the One-Stop system to use customized employment strategies to increase employment, choice and wages for persons with disabilities, including the contribution the proposed grant will make to influence systemic changes in the local workforce system.
Applicants must include in their proposed plan the following items.
a. The technical plan to implement the purpose and objectives of this SGA to enhance the capacity of the workforce investment system to increase employment, choice and wages for persons with disabilities through the use of customized employment strategies and to ensure that such strategies are systemically included in the policy and practice of the One-Stop Center(s).
b. The plan for developing, implementing and expanding the availability and use of customized employment strategies throughout the WIA system of required partners and non-required programs.
c. The plan for how the expertise of the State Vocational Rehabilitation program will be used.
d. The plan to involve appropriate private entities, including but not limited to community-based organizations and faith-based organizations, as appropriate.
e. The plan for reaching people with disabilities and their families, including their involvement in grant design and implementation.
f. The plan for gaining support and assistance of area employers.
g. The plan for meeting the needs of individuals with disabilities from diverse cultures and/or ethnic groups.
h. The plan for expanding the use of customized employment strategies over time to:
1. All groups of persons with disabilities targeted under this solicitation; and
2. Other groups of individuals with disabilities (such as individuals who are receiving TANF benefits) following completion of the grant;
i. The plan for leveraging resources over time in order to ensure grant sustainability upon completion of funding, including the plan for implementing grant activities during years four and five at 80% and 60% funding, respectively.
j. The plan for responding to the measures by which program success will be evaluated.
k. The plan for marketing to and involving employers, and professional and business service organizations, and trade associations as appropriate.
Applicants must include in their proposed plan the following items.
a. Demonstrations of support and commitment from key organizations and individuals who advocate through or on behalf of persons with disabilities to participate in this effort.
b. Demonstrations of support and commitment from One-Stop partners and non-required but essential programs.
c. Demonstrations of support from area employers and employer organizations and evidence of their interest in participating in this effort.
d. Demonstrations of support from persons with disabilities and their families for implementation of the proposed activities.
e. Commitment to cooperate with ODEP's planned technical assistance initiative in a joint effort to develop capacity and disseminate promising practices so that the national workforce system can profit from this experience.
Applicants must include in their proposed plan the following items.
a. The names and qualifications of staff and related technical experts and consultants to support the objectives of this project for grantee and key sub-contractors and consultants.
b. A resume of key staff and consultants must be included in the Appendix and must clearly indicate qualifications of each individual for designated role in project implementation.
Applicants must include in their proposed plan the following items.
a. A management plan adequate to achieve the objectives of the proposed grant on time and within budget, including clearly defined responsibilities, time lines, and milestones for accomplishing grant activities;
b. A plan demonstrating adequate procedures for ensuring feedback and continuous improvement in the operation of the proposed grant.
c. A plan demonstrating the time commitments of key grant personnel are appropriate and adequate to meet the objectives of the proposed grant.
d. How the applicant will insure that customized employment strategies become a part of the menu of services available in the local community.
Applicants must include in their proposed plan the following items:
a. All grantees must agree to participate in the DOL evaluation outlined in Section IV of this SGA.
b. In addition, all grantees must implement ongoing evaluation of grant activities in order to determine the effectiveness of grant implementation efforts for continuous improvement of the grant. In determining the quality of the evaluation for continuous improvement, the Department considers the following.
1. The extent to which the methods of evaluation are thorough, feasible, and appropriate to the goals, objectives and outcomes of the proposed grant.
2. The extent to which the methods of evaluation and continuous improvement are appropriate to the context within which the grant operates.
3. The extent to which the methods of evaluation include the use of objective performance measures that are clearly related to the intended outcomes of the grant and will produce quantitative and qualitative data to the extent possible (including data on wages, wage changes, benefits, types of jobs, customer satisfaction, resources leveraged from partner programs, systemic changes implemented to sustain grant over time.)
4. And, the extent to which the evaluation will provide guidance about effective strategies suitable for replication in other settings.
Applicants must include in their proposed plan the following items.
a. The adequacy of support for grant implementation, including facilities, equipment, supplies, and other resources.
b. The extent to which the budget is adequate to support the proposed grant.
B. Selection Criteria: Acceptance of a proposal and an award of federal funds to sponsor any program(s) does not provide a waiver of any grant requirement and/or procedures. Grantees must comply with all applicable Federal statutes, regulations, administrative requirements and OMB Circulars. For example, the OMB circulars require, and an entity's procurement procedures must require that all procurement transactions must be conducted, as practical, to provide open and free competition. If a proposal identifies a specific entity to provide the services, the DOL/ODEP's award does not provide the justification or basis to sole-source the procurement, i.e., avoid competition.
Applications will be reviewed by a panel using the criteria described in this SGA. Applications will be ranked based on the score assigned by the panel after careful evaluation by each panel member. The ranking will be the primary basis to identify applicants as potential grantees. Although the Government reserves the right to award on the basis of the initial proposal submissions, the Government may establish a competitive range, based upon the proposal evaluation, for the purpose of selecting qualified applicants. The panel's conclusions are advisory in nature and not binding on the Grant Officer. The Government reserves the right to ask for clarification or hold discussions, but is not obligated to do so. The Government further reserves the right to select applicants out of rank order if such a selection would, in its opinion, result in the most effective and appropriate combination considering factors such as:
1. Findings of the grant technical evaluation panel;
2. Geographic distribution of the competitive applications; and,
3. The Project's Financial Plan.
The submission of the same proposal from any prior year competition does not guarantee an award under this solicitation.
The Department of Labor is responsible for ensuring the effective implementation of each competitive grant project in accordance with the provisions of this announcement, the grant agreement and other applicable administrative requirements. Applicants should assume that Department staff or their designees will conduct at least one on-site project review. In addition, all grantees will be expected to provide information on individuals with disabilities securing employment through use of customized strategies (including information on types of jobs, wages and benefits secured by specific individuals with disabilities, and other areas addressed through the linkages and networks facilitated by project activities). Grantees will be required to submit periodic financial and participation reports under the
1. Quarterly progress reports, and upon completion of the grant period a final report. The quarterly report is estimated to take ten hours during the remainder of the grant. The final report is estimated to take 20 hours. The Department will work with the grantee to identify the requirements of the various reports, which will, among other things, include measures of ongoing analysis for continuous improvement and customer satisfaction;
2. Standard Form 269, Financial Status Report Form, on a quarterly basis;
3. Final Project Report, including an assessment of project performance and outcomes achieved. This report will be submitted in hard copy and on electronic disk using a format and instructions which will be provided by the Department. A draft of the final report is due to the Department 45 days before the termination of the grant.
DOL will arrange for and conduct an independent evaluation of the outcomes, impacts, and accomplishments of each funded project. Grantees must agree to make available records on all parts of project activity, including participant employment and wage data, and to provide access to personnel, as specified by the evaluator(s), under the direction of the Department. This independent evaluation is separate from the ongoing evaluation for continuous improvement required of the grantee for project implementation.
Applicants are strongly encouraged to read these regulations before submitting a proposal. Grants awarded under this SGA shall be subject to the following as applicable:
Determinations of allowable costs shall be made in accordance with the following applicable Federal cost principles:
Profit will not be considered an allowable cost in any case.
As a condition of the award, the applicant will comply fully with the nondiscrimination and equal opportunity provisions of the following laws:
The applicant must attach the aforementioned assurances and certifications.
1. Direct Costs for administration, plus any indirect charges claimed.
2. Indirect costs claimed by the applicant must be based on a federally approved rate. A copy of the negotiated, approved, and signed indirect cost negotiation agreement must be submitted with the application.
3. If the applicant does not presently have an approved indirect cost rate, a proposed rate with justification may be submitted. Successful applicants will be required to negotiate an acceptable and allowable rate with the appropriate DOL Regional Office of Cost Determination within 90 days of grant award.
4. Rates traceable and trackable through the State Workforce Agency's Cost Accounting System represent an acceptable means of allocating costs to DOL and, therefore, can be approved for use in grants to State Workforce Agencies.
Office of Disability Employment Policy, Labor.
Notice of Availability of Funds and Solicitation for Grant Applications of Innovative Demonstration Grants for Youth with Disabilities (SGA 02–12).
The U.S. Department of Labor (“DOL” or “Department”), Office of Disability Employment Policy (“ODEP”) announces the availability of $2.5 million to award competitive grants to fund model demonstration programs designed to enhance the capacity of youth programs working in coordination with the Workforce Investment Act (WIA) (Pub. L. 105–220, 29 U.S.C. 2801
Each grant must involve members of two specific groups in strategic planning and implementation activities: Youth with disabilities (including those with hidden disabilities such as psychiatric disabilities, substance addiction, mental retardation and learning disabilities), relevant experts in the field of young people with disabilities (such as disability organizations, researchers, policy makers, employers, family members and/or family organizations, independent living centers, or service providers). Each grant must also include a management and evaluation component. All forms necessary to prepare an application are included in this Solicitation for Grant Application (SGA.) If another copy of a Standard Form is needed, go online to
One (1) ink-signed original, complete grant application plus two (2) copies of the Technical Proposal and two (2) copies of the Cost Proposal must be submitted to the U.S. Department of Labor, Procurement Services Center, Attention Grant Officer, Reference SGA 02–12, Room N–5416, 200 Constitution Avenue, NW., Washington, DC 20210, not later than 4:45 p.m., Eastern Daylight Savings Time (EDST), August 12, 2002. Hand-delivered applications must be received by the Procurement Services Center by that time.
Applications must be directed to the U.S. Department of Labor, Procurement Services Center, Attention: Grant Officer, Reference SGA 02–12, Room N–5416, 200 Constitution Ave., NW., Washington, DC 20210.
All applicants are advised that U.S. mail delivery in the Washington, DC area has been erratic due to concerns involving anthrax contamination. All applicants must take this into consideration when preparing to meet the application deadline. It is recommended that you confirm receipt of your application by contacting Cassandra Willis, U.S. Department of Labor, Procurement Services Center, telephone (202) 693–4570 (this is not a toll-free number), prior to the closing deadline.
The application package must be received at the designated place by the date and time specified or it will
1. It was sent by registered or certified mail not later than the fifth calendar day before August 12, 2002; or
2. It was sent by U.S. Postal Service Express Mail Next Day Service-Post Office to Addressee, not later than 5:00 p.m. at the place of mailing two (2) working days, excluding weekends and Federal holidays, prior to August 12, 2002; or
3. It is determined by the Government that the late receipt was due solely to mishandling by the Government after receipt at the U.S. Department of Labor at the address indicated.
The only acceptable evidence to establish the date of mailing of a late application sent by registered or certified mail is the U.S. Postal Service postmark on the envelope or wrapper and on the original receipt from the U.S. Postal Service. If the postmark is not legible, an application received after the above closing time and date shall be processed as if mailed late. “Postmark” means a printed, stamped or otherwise placed impression (
The only acceptable evidence to establish the time of receipt at the U. S. Department of Labor is the date/time stamp of the Procurement Services Center on the application wrapper or other documentary evidence or receipt maintained by that office.
Applications sent by other delivery services, such as Federal Express, UPS, etc., will also be accepted; however, the applicant bears the responsibility of timely submission.
All applicants are advised that U.S. mail delivery in the Washington, DC area has been erratic due to concerns involving anthrax contamination. All applicants must take this into consideration when preparing to meet the application deadline. Therefore, it is recommended that you confirm receipt of your application by contacting Cassandra Willis, U.S. Department of Labor, Procurement Services Center, telephone (202) 693–4570, (this is not a toll-free number), prior to the closing deadline. Persons who are deaf or hard of hearing may contact the Department via the Federal Relay Service, (800) 877–8339.
Consolidated Appropriations Act, 2001, Pub. L. 106–554, 114 Stat. 2763, A–10, 29 U.S.C. 557(b); DOL, HHS, Education & Related Agencies Appropriations Act, 2002, Pub L. 107–116, 115 Stat. 2177.
The President's “New Freedom Initiative” is designed to increase the number of people with disabilities who enter, re-enter, and remain in the workforce. This initiative is dedicated to increasing investment in, and access to, assistive technologies and expanding educational opportunities in order to increase the ability of individuals with disabilities to integrate into the workforce; and to promote increased access into the community.
A key to increasing the employment of people with disabilities is to ensure that young people with disabilities are provided resources and assistance to move from school to work, as opposed to becoming dependent on welfare or other benefits programs. One way of accomplishing this is to increase the
According to the U.S. Department of Education, the national high school graduation rates (e.g. diplomas, GED, alternative certificates) for students with disabilities are below that of youth without disabilities. Nearly nine-tenths (88%) of students without disabilities graduate, compared to only 62% of youth with disabilities.
The federal/state vocational rehabilitation system is neither large enough to serve, nor solely responsible for serving, all youth with disabilities that depart the school system. According to the U.S. Department of Education, each year approximately 500,000 young people with disabilities leave our nation's schools. Vocational rehabilitation programs are able to serve less than 40,000 of these young people with disabilities. Many of the remaining 460,000 youth with disabilities are potentially eligible for youth programs supported under WIA. One of the most significant reforms under WIA section 129(c) [29 U.S.C. 2854(c)], is the consolidation of the year-round youth program and the summer youth program into a single formula-based funding stream. Under WIA, each local workforce investment area must have a year-round youth services strategy that incorporates summer youth employment opportunities as one of ten required program elements (WIA section 129(c)(2), 20 CFR 644.410). The ten program elements reflect successful youth development approaches and focus on the following four key themes:
1. Improving educational achievement (including such elements as tutoring, study skills training, and instruction leading to secondary school completion, drop-out prevention strategies, and alternative secondary school offerings);
2. Preparing for and succeeding in employment (including summer employment opportunities, paid and unpaid work experience, and occupational skills training);
3. Supporting youth (including supportive services needs, providing adult mentoring, follow-up services, and comprehensive guidance and counseling); and
4. Offering services intended to develop the potential of young people as citizens and leaders (including leadership development opportunities.)
WIA provides a variety of work preparation programs that can assist youth with disabilities in achieving their career ambitions. The potential is great for these programs to prepare eligible youth participants with disabilities for employment. These services need to be made available to young people with disabilities. Traditionally, however, they are not recruited to participate in these programs. WIA youth service providers may not be aware of the need to serve youth with disabilities in their communities and may lack the resources to develop strong partnerships and an equitable referral/assessment system.
Moreover, vocational rehabilitation agencies, special education agencies, and other agencies serving youth with disabilities may not be aware of the potential for coordinating resources with WIA-based programs. They may also be unaware of opportunities for creating mechanisms for such programs to cooperate and support young people with disabilities.
Currently, WIA-assisted youth programs report that difficulties in identifying the number of youth with non-visible disabilities who already participate in WIA-assisted youth programs hinders the long-term success of these young people. Because the disabilities of many youth go unidentified in WIA-assisted youth programs, the rate of their failure may be higher than for those whose disabilities are evident.
The U.S. Department of Labor has determined that youth programs must be strengthened to better serve young people with disabilities. ODEP's vision incorporates providing technical assistance and support designed to assist WIA-assisted youth programs to increase the capacity of those programs to serve people with disabilities.
In order to accomplish this goal, a two-pronged approach will be used. This approach includes:
1. Awarding grants designed to demonstrate and further develop the capacity of WIA-assisted youth programs to serve youth with disabilities; and,
2. Maintaining a technical assistance program to support capacity building for various youth programs.
In combination, these activities contribute to achieving the goals of the President's “New Freedom Initiative”.
This SGA is designed to further the first of these activities. The supporting national technical assistance program (the WIA Disability Technical Assistance Consortia for Adults and Youth) was established in October 2001 to help with the implementation of these demonstration grants.
This SGA supports model demonstration projects that develop, implement, evaluate, and disseminate new or improved approaches that generate knowledge, and promote best practices to WIA-assisted youth programs. Its purpose is to increase participation and improve results in those programs for young people with disabilities including those with hidden disabilities such as psychiatric disabilities, substance addiction, mental retardation, and learning disabilities.
For the purposes of this SGA, a youth with a disability is defined as a youth aged 14 to 21 years old who (1) has a physical or mental impairment that substantially limits one or more of his or her major life activities or; (2) has a record of such an impairment; or; (3) is regarded as having such an impairment.
The purpose of these demonstration projects is to help WIA-assisted youth programs develop their capacity to serve youth with disabilities. This capacity building will allow these programs to develop and further demonstrate strategies and techniques to increase the participation of youth with disabilities. These strategies and techniques can, in turn, serve as models for similar WIA-assisted youth programs. These projects will target youth both in- and out-of-school. As a result of these demonstrations, and associated technical assistance efforts, ODEP anticipates that all WIA-assisted youth programs will learn from and follow these examples. This should result in a system-wide increase in the successful participation of youth with disabilities in all WIA-assisted youth programs.
Included in the objectives of these model demonstration projects is a goal of building upon and enhancing the integrated youth development approach envisioned under WIA, by incorporating knowledge of best practices developed through 15 years of research from the fields of rehabilitation, special education, maternal and child health, school-to-work, and youth development as discussed in Section IV of this SGA.
Projects are required to collaborate with the WIA Disability Technical Assistance Consortia for Adults and Youth (described above in the Background Section) designed to provide assistance to other WIA-assisted youth programs, in order to catalyze the systems changes outlined in the SGA.
This SGA seeks proposals from organizations that will implement demonstration projects designed to develop their WIA-assisted youth program's capacity to increase its services to youth with disabilities including those with non-visible disabilities such as psychiatric disabilities, substance addiction, mental retardation, and learning disabilities. The ultimate goal is to allow these programs to become leaders in developing and further demonstrating strategies and techniques to increase both the participation of and results for youth with disabilities.
These grants are designed to enable WIA-assisted youth programs to support those needed efforts to achieve improved service to youth with disabilities in their existing programs. Grant funds may not be used to provide direct service payments for youth with disabilities; existing funding is to be used for this purpose. Rather, these funds are intended to be used in ways which create system change or overall program improvements to enable youth programs to more successfully serve youth with disabilities.
Under this grant, grantees must serve at least 40 youth with disabilities each year or, if the program has fewer than 200 participants, at least 20% of them must be participants with disabilities.
Proposals must demonstrate how the grantee would develop, implement, evaluate, and disseminate new or improved approaches to the youth programs that generate knowledge and promote best practices, to increase participation, and improve results in those programs for young people with disabilities. In addition, grantees must participate in technical assistance efforts designed to disseminate to other programs their successful strategies and techniques for serving greater numbers of youth with disabilities including those with non-visible disabilities.
All grantees must operate demonstration projects that integrate the four key themes and ten program elements of WIA-assisted youth programs, listed at WIA section 129(c)(2) (20 CFR 644.410) discussed above with one or more of the following best practice features:
1. Demonstrations focused on promoting effective structures, policies, and practices to improve results for youth with disabilities in WIA-assisted programs, including those with non-visible disabilities, in areas such as admission, enrollment, assessment, staff development, interagency coordination, etc.;
2. Demonstrations of effective service interventions and approaches that help young people with disabilities to overcome barriers to positive education and employment outcomes including such things as illicit drug use;
3. Demonstrations that focus on the link between academic and occupational skill standards; and on the integration of academic and applied learning in real work settings;
4. Demonstrations that focus on supporting and accommodating young people with disabilities in integrated, inclusive work, and work-preparation environments at all times, especially if their educational program has been delivered even partially in a segregated setting;
5. Demonstrations that focus on youth-centered planning and development (
6. Demonstrations that focus on promoting physical and mental health, substance abuse prevention, and the link between health and positive educational and employment outcomes;
7. Demonstrations that focus on increasing the type of involvement by business, family, and community, that create effective connections to intermediaries with strong links to the job market and to local and regional employers;
8. Demonstrations which develop and leverage linkages with other state and local initiatives that provide services and supports for young people with significant disabilities. Such initiatives may include, but are not limited to, systems change efforts promoting enduring systems improvement and comprehensive coordination; health care; substance abuse prevention; housing; transportation; education; supported employment; small business development; technology related assistance; private foundations; faith-based initiatives; and
9. Demonstrations that research alternative methods of measuring WIA performance outcomes that consider the various characteristics of people with disabilities, including those with non-visible disabilities.
Some examples of resources for information about WIA-assisted youth program components and these best practice features can be located on the following Web sites:
1. Employment and Training Administration (ETA) Office of Youth Services Web site:
2. National Transition Alliance for Youth with Disabilities:
3. The Department of Health and Human Services, Maternal and Child Health, “Healthy and Ready to Work” Web site:
4. National Youth Employment Coalition, Program and Effective Practices Network (PEPNET) Web site:
5. National Center on Secondary Education and Transition Web site:
6. The National Collaborative on Workforce and Disability Web site:
In addition, a model demonstration project must:
1. Provide a detailed management plan for project goals, objectives, and activities;
2. Describe how they plan to comply with the employment nondiscrimination and equal opportunity requirements of the various laws listed in the assurances section, and how they plan to meet the needs of individuals with disabilities from diverse cultures and/or racial and ethnic groups;
3. Use rigorous quantitative or qualitative evaluation methods and data;
4. Evaluate the model by using multiple measures of results to determine the effectiveness of the model and its components or strategies for continuous program improvements;
5. Produce detailed procedures and materials that would enable others to replicate the model;
6. Communicate with appropriate audiences through means such as technical assistance providers and disseminators, publications, conference presentations, and/or a web site. (If the project maintains a web site, it must include relevant information and documents in an accessible form); and
7. Collaborate with appropriate Federal and state agencies and
Grantees must support the travel cost associated with sending at least one representative to the annual ODEP Grantees' training conference, to be held in Washington, DC.
The Department will arrange for an independent evaluation of outcomes, impacts, and benefits of the demonstration projects. Grantees must make records available to evaluation personnel, as specified by the evaluator(s) under the direction of the Department.
The period of performance will be 24 months from the date of execution by the Government. Up to five (5) competitive grants will be awarded in the range of $350,000 to $500,000. It is expected that the funds used for this SGA will support the costs associated with the development, implementation, and evaluation of a model demonstration project for a youth program to significantly increase the numbers of young people with disabilities participating and benefiting from program activities. Projects can use the available funds to conduct a variety of activities to support these models, such as outreach, recruitment, staff training, strategic planning, assessment, curriculum/materials development, career development, student-focused planning, program alignment, partnership building, reasonable accommodations, etc. Youth programs are required to use existing funding to provide direct services to young people with disabilities.
To be eligible, applicants must be WIA grant recipients for a local area, fiscal agents for such grant recipients, Local Boards, and/or competitively selected eligible youth service providers. Each grantee must involve members of two specific groups in strategic planning and implementation activities: youth with disabilities, and relevant experts in the field of young people with disabilities (such as disability organizations, researchers, policy makers, employers, family members and/or family organizations, independent living centers, or service providers.)
According to section 18 of the Lobbying Disclosure Act of 1995, an organization, as described in section 501(c)(4) of the Internal Revenue Code of 1986, that engages in lobbying activities will not be eligible for the receipt of federal funds constituting an award, grant, or loan.
General Requirements—Two copies and an original of the proposal must be submitted, one of which must contain an original signature. Proposals must be submitted by the applicant only. There are three required sections of the application. Requirements for each section are provided in this application package.
The Executive Summary must be no more than 2 single-spaced pages in length giving a clear summary of the project narrative.
Applicants must include a project narrative that addresses the Statement of Work in Part IV of this notice and the selection criteria that are used by reviewers in evaluating the application.
You must limit the project narrative to the equivalent of no more than fifty (50) pages using the following standard. This page limit does not apply to Part I, the Executive Summary; Part III, the Project Financial Plan (Budget); and, the Appendices (the assurances and certifications, resumes, a bibliography or references, and the letters of support). A page is 8.5″ x 11″ (on one side only) with one-inch margins (top, bottom, and sides). All text in the application narrative, including titles, headings, footnotes, quotations, and captions, as well as all text in charts, tables, figures, and graphs must be double-spaced (no more than three lines per vertical inch); and, if using a proportional computer font, use no smaller than a 12-point font, and an average character density no greater than 18 characters per inch (if using a non-proportional font or a typewriter, do not use more than 12 characters per inch.)
Applicants must also include in Part II of the proposal a narrative that addresses all of the Evaluation Criteria (section VIII below) that will be used by reviewers in evaluating individual proposals.
Applicants shall collaborate with other research institutes, centers, and studies and evaluations that are supported by DOL and other relevant Federal agencies.
Applications must include a detailed financial plan that identifies by line item the budget plan designed to achieve the goals of this grant. The Financial Plan must contain the SF–424, Application for Federal Assistance, (Appendix A) and a Budget Information Sheet SF–424A (Appendix B).
In addition, the budget must include on a separate page a detailed cost analysis of each line item. Justification for administrative costs must be provided. Approval of a budget by DOL is not the same as the approval of actual costs. The individual signing the SF 424 on behalf of the applicant must represent and be able to legally bind the responsible financial and administrative entity for a grant should that application result in an award. The applicant must also include the Assurances and Certifications Signature Page (Appendix C).
The application must include appropriate information of the type described below.
In determining the significance of the proposed project, the Department considers the following factors:
a. The potential contribution of the proposed project to increase knowledge or understanding of problems, issues, or effective strategies for youth programs in serving young people with disabilities;
b. The extent to which the proposed project is likely to yield findings that may be used by other appropriate agencies and organizations;
c. The extent to which the proposed project involves the development or demonstration of promising new strategies that build on, or are alternatives to, existing strategies;
d. The likely utility of the products (such as information, materials, processes, or techniques) that will result from the proposed project, including the potential for the products' being used effectively in a variety of other settings;
e. The extent to which the promising practices of the proposed project are to be disseminated in ways that will enable others to use the information or strategies;
f. The potential replicability (national significance) of the proposed project or
g. The importance or magnitude of the results which are likely to be attained by the proposed project.
In evaluating the quality of the proposed project design, the Department considers the following factors:
a. The extent to which the goals, objectives, and outcomes to be achieved by the proposed project are clearly specified and measurable;
b. The extent to which the design of the proposed project is appropriate to, and will successfully address, the needs of the target population and other identified needs;
c. The extent to which the design of the proposed project can measure methods for recruiting and serving youth with disabilities each year;
d. The extent to which the proposal demonstration incorporates the four key themes identified in Part IV, Statement of Work;
e. The extent to which the proposed project is designed to build capacity and yield results that will extend beyond the period of this grant;
f. The extent to which the design of the proposed project reflects a review of disability related literature, up-to-date knowledge from research and effective practice of youth-centered planning and youth development principles and approaches, and the use of appropriate methodological tools to ensure successful achievement of project objectives;
g. The extent to which the proposed project will be coordinated with similar or related efforts, and with other appropriate community, state, and Federal resources;
h. The extent to which the applicant encourages involvement of young people with disabilities, relevant experts, and organizations in project activities; and,
i. The extent to which performance feedback and continuous improvement are integral to the design of the proposed project.
The Project Narrative must describe the proposed staffing of the project and must identify and summarize the qualifications of the personnel who will carry it out. The projects funded under this notice must make positive efforts to employ and advance in employment qualified individuals with disabilities in project activities. In addition, the Department considers the qualifications, including relevant education, training and experience of key project personnel as well as the qualifications, including relevant training and experience of project consultants or subcontractors. Resumes must be included in the Appendices.
In evaluating the adequacy of resources for the proposed project, the Department considers the following factors:
a. The adequacy of support, including facilities, equipment, supplies, and other resources, from the applicant organization or the lead applicant organization;
b. The relevance and demonstrated commitment of each partner in the proposed project to the implementation and success of the project;
c. The extent to which the budget is adequate to support the proposed project;
d. The extent to which the costs are reasonable in relation to the objectives, design, and potential significance of the proposed project; and
e. The extent to which the applicant proposes to leverage other resources and funds, or to use these funds to leverage other funds.
The applicant may include letters of commitment from proposed partners in the Appendix.
In evaluating the quality of the management plan for the proposed project, the Department considers the following factors:
a. The extent to which the management plan for project implementation achieves the objectives of the proposed project on time and within budget, including clearly defined staff responsibilities, and time allocated to project activities, time lines, milestones for accomplishing project tasks and project deliverables;
b. The adequacy of mechanisms for ensuring high-quality products and services from the proposed project; and,
c. The extent to which the time commitments of the project director and/or principal investigator and other key project personnel are appropriate and adequate to meet the objectives of the proposed project.
In evaluating the quality of the project's evaluation design, the Department considers the following factors:
a. The extent to which the methods of evaluation are thorough, feasible, and appropriate to the goals, objectives, context, and outcomes of the proposed project;
b. The extent to which the methods of evaluation provide for examining the effectiveness of project implementation strategies;
c. The extent to which the methods of evaluation include the use of objective performance measures that are clearly related to the intended outcomes of the project and will produce quantitative and qualitative data;
d. The extent to which the evaluation will provide information to other youth programs about effective strategies suitable for replication or testing in other settings; and,
e. The extent to which the methods of evaluation measure in both quantitative and qualitative terms, program results and satisfaction of youth with disabilities.
Acceptance of a proposal and an award of federal funds to sponsor any program(s) is not a waiver of any grant requirement and/or procedures. Grantees must comply with all applicable Federal statutes, regulations, administrative requirements and OMB Circulars. For example, the OMB circulars require, and an entity's procurement procedures must require, that all procurement transactions shall be conducted, as practical, to provide open and free competition. If a proposal identifies a specific entity to provide the services, the award does not provide the justification or basis to sole-source the procurement, i.e., to avoid competition.
Applications will be reviewed by a panel using the criteria described in this SGA. Applications will be ranked based on the score assigned by the panel after careful evaluation by each panel member. The ranking will be the primary basis to identify applicants as potential grantees. Although the Government reserves the right to award on the basis of the initial proposal submissions, the Government may establish a competitive range, based upon the proposal evaluation, for the purpose of selecting qualified applicants. The panel's conclusions are advisory in nature and not binding on the Grant Officer. The Government reserves the right to ask for clarification or hold discussions, but is not obligated to do so. The Government further reserves the right to select applicants out of rank order if such a selection would, in its opinion, result in the most effective and appropriate combination considering factors such as:
1. Findings of the grant technical evaluation panel
2. Geographic distribution of the competitive applications;
3. Assuring a variety of program designs; and,
4. The availability of funds.
Grantees must submit financial and participation reports under this program as prescribed by OMB Circulars A–102 and A–110 as applicable.
1. Financial Reports;
2. Quarterly and Final Program Results and Reports on the Satisfaction of Youth with Disabilities;
3. Other Reporting (to Technical Assistance Service Providers, etc.), as prescribed by DOL.
Grants awarded under this SGA are subject to the following:
• 29 CFR Part 95—Uniform Administrative Requirements for Grants and Cooperative Agreements with Institutions of Higher Education.
• 29 CFR Part 96—Federal Standards for Audit of Federally Funded Grants, Contracts, and Agreements
• 29 CFR Part 97—Uniform Administrative Requirements for Grants and Cooperative Agreements to State and Local Governments
The grant awarded under this SGA shall be subject to the following:
Determinations of allowable costs are made in accordance with the following applicable Federal cost principles:
• State and Local Government—OMB Circular A–87
• Nonprofit Organizations—OMB Circular A–122
• Profit-making Commercial Firms—48 CFR Part 31
Profit will
Each applicant must include an assurance that, as a condition of the award, the applicant will comply fully with the nondiscrimination and equal opportunity provisions of the following laws:
• 29 CFR part 31—Nondiscrimination in Federally-assisted programs of the Department of Labor, effectuation of Title VI of the Civil Rights Act of 1964. (Title VI of the Civil Rights Act of 1964)
• 29 CFR part 32—Nondiscrimination on the Basis of Disability in Programs and Activities Receiving or Benefiting from Federal Assistance. (Section 504 of the Rehabilitation Act)
• 29 CFR part 36—Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance. (Title IX of the Education Amendments of 1972)
• 29 CFR part 37 Implementation of the Nondiscrimination and Equal Opportunity Provisions of the Workforce Investment Act of 1998 (WIA)
The applicant must include the attached assurances and certifications.
1. Direct Costs for administration, plus any indirect charges claimed.
2. Indirect costs claimed by the applicant must be based on a federally approved rate. A copy of the negotiated, approved, and signed indirect cost negotiation agreement must be submitted with the application.
3. If the applicant does not presently have an approved indirect cost rate, a proposed rate with justification may be submitted. Successful applicants will be required to negotiate an acceptable and allowable rate with the appropriate DOL Regional Office of Cost Determination within 90 days of grant award.
4. Rates traceable and trackable through the State Workforce Agency's Cost Accounting System represent an acceptable means of allocating costs to DOL and, therefore, can be approved for use in grants to State Workforce Agencies.
National Aeronautics and Space Administration.
Notice of meeting.
In accordance with the Federal Advisory Committee Act, Public Law 92–463, as amended, the National Aeronautics and Space Administration announces a meeting of the NASA Advisory Council, Biological and Physical Research Advisory Committee, Space Station Utilization Advisory Subcommittee (SSUAS).
Tuesday, July 9, 2002, 8 a.m. to 5 p.m., and Wednesday, July 10, 2002, 8 a.m. to 5 p.m., and Friday, July 12, 2002, 8 a.m. to 5 p.m.
Center for Advanced Space Studies, 3600 Bay Area Boulevard, Houston, Texas.
Dr. Neal Pellis, Code UM, National Aeronautics and Space Administration, Houston, TX 77058, (202) 358–2022.
The meeting will be open to the public up to the seating capacity of the room. Advance notice of attendance to the Executive Secretary is requested. The agenda for the meeting will include the following topics:
The following items are not part of the SSUAS Summer Workshop, but are scheduled consecutively with it.
It is imperative that the meeting be held on this date to accommodate the scheduling priorities of the key participants. Visitors will be requested to sign a visitor's register.
Pursuant to Section 11A of the Securities Exchange Act of 1934 (“Act”),
The ITS Participants include the American Stock Exchange LLC (Amex”), the Boston Stock Exchange, Inc. (“BSE”), the Chicago Board Options Exchange, Inc. (“CBOE”), the Chicago Stock Exchange, Inc. (“CHX”), the Cincinnati Stock Exchange, Inc. (“CSE”), the National Association of Securities Dealers, Inc. (“NASD”), the New York Stock Exchange, Inc. (“NYSE”), the Pacific Exchange, Inc. (“PCX”), and the Philadelphia Stock Exchange, Inc. (“Phlx”) (“Participants”).
The ITSOC proposes to amend the ITS Plan to recognize the Phlx's implementation of its remote specialist program.
Interested persons are invited to submit written data, views and arguments concerning the foregoing, including whether the proposed Plan amendment is consistent with the Act. Persons making written submissions should file six copies thereof with the Secretary, Securities and Exchange Commission, 450 Fifth Street, NW, Washington, DC 20549–0609. Copies of the submission, all subsequent amendments, all written statements with respect to the proposed Plan amendment that are filed with the Commission, and all written communications relating to the proposed Plan amendment between the Commission and any person, other than those that may be withheld from the public in accordance with the provisions of 5 U.S.C. 552, will be available for inspection and copying in the Commission's Public Reference Room. Copies of such proposed Plan Amendment will also be available for inspection and copying at the principal office of the ITS. All submissions should refer to File No. 4–208 and should be submitted by July 17, 2002.
For the Commission, by the Division of Market Regulation, pursuant to delegated authority.
Securities and Exchange Commission (“Commission”).
Notice of application for exemption under section 6(c) of the Investment Company Act of 1940 (the “Act”) from section 15(a) of the Act and rule 18f–2 under the Act.
Applicants request an order that would permit applicants to enter into and materially amend subadvisory agreements without shareholder approval.
AXP Market Advantage Series, Inc.; AXP Partners Series, Inc.; AXP Partners International Series, Inc.; AXP Strategy Series, Inc. (collectively, the “AXP Funds,” and the series of the AXP Funds, the “AXP Portfolios”); AXP Variable Portfolio—Partners Series, Inc. (the “Life Fund,” and the series of the Life Fund, the “Life Portfolio”) (the AXP Funds and the Life Fund, the “Funds”) (the AXP Portfolios and the Life Portfolio, the “Portfolios”); American Express Financial Corporation (“AEFC”); and IDS Life Insurance Company (“IDS Life”).
The application was filed on July 20, 2001 and amended on June 19, 2002.
An order granting the application will be issued unless the Commission orders a hearing. Interested persons may request a hearing by writing to the Commission's Secretary and serving applicant with a copy of the request, personally or by mail. Hearing requests should be received by the Commission by 5:30 p.m. on July 16, 2002, and should be accompanied by proof of service on applicant in the form of an affidavit or, for lawyers, a certificate of service. Hearing requests should state the nature of the writer's interest, the reason for the request, and the issues contested. Persons who wish to be notified of a hearing may request notification by writing to the Commission's Secretary.
Secretary, Commission, 450 Fifth Street, NW, Washington, DC 20549–0609. Funds, 901 Marquette Avenue South, Suite 2810, Minneapolis, MN 55402–3268. AEFC and IDS Life, 200 AXP Financial Center, Minneapolis, MN 55474.
John L. Sullivan, Senior Counsel, at (202) 942–0681, or Nadya B. Roytblat, Assistant Director, at (202) 942–0564 (Office of Investment Company Regulation, Division of Investment Management).
The following is a summary of the application. The complete application may be obtained for a fee at the Commission's Public Reference Branch, 450 Fifth Street, NW, Washington, DC 20549–0102 (tel. 202–942–8090).
1. Each of the Funds is registered under the Act as an open-end management investment company and is organized as a Minnesota corporation. Each Fund is currently, or may be, composed of separate Portfolios, each with its own investment objectives and policies.
2. Each AXP Portfolio has entered into an investment advisory agreement with AEFC pursuant to which AEFC provides investment advice and management services to the AXP Portfolio (each, an “AXP Advisory Agreement”). IDS Life is the investment manager for the Life Portfolio, pursuant to an investment management agreement (the “Life Management Agreement”). IDS Life has entered, with respect to the Life Portfolio, into an advisory agreement with AEFC, pursuant to which AEFC furnishes investment advice to the Life Portfolio (the “Life Advisory Agreement,” and together with the AXP Advisory Agreements and the Life Management Agreement, the “Advisory Agreements”). The term “Adviser” is used to mean AEFC, with respect to the AXP Funds, and IDS Life and AEFC jointly, with respect to the Life Fund. Each Advisory Agreement has been approved by either the initial shareholder or the public shareholders of the relevant Portfolio
3. The Adviser seeks to achieve each Portfolio's objective by selecting one or more subadvisers (“Subadvisers”) who have demonstrated skill and experience in a particular area to manage part or all of a Portfolio's assets (“Adviser/Subadviser Structure”). The Adviser enters into investment subadvisory agreements (“Subadvisory Agreements”) with Subadvisers, under which each Subadviser, subject to the general supervision by the Adviser and the Board, is responsible for the purchase, retention and sale of securities for the applicable Portfolio. Each Subadviser will be registered or exempt from registration under the Advisers Act. For services under the Subadvisory Agreement, a Subadviser receives a fee from AEFC at an annual rate based on a percentage of the Portfolio's average daily net assets. The amount paid to the Subadviser originates from the fees paid to AEFC by the Portfolios (in the case of the Life Portfolio, from the fees paid to AEFC by IDS Life).
4. Applicants request relief to permit the Adviser, subject to the approval of the Board, to enter into and materially amend a Subadvisory Agreement with a Subadviser that is not an affiliated person of the Adviser or of the Portfolio within the meaning of Section 2(a)(3) of the Act, except by virtue of serving as a Subadviser to the Portfolio (a “Non-Affiliated Subadviser”), without such Subadvisory Agreement being approved by the shareholders of the applicable Portfolio.
1. Section 15(a) of the Act provides, in relevant part, that it is unlawful for any person to act as an investment adviser to a registered investment company except under a written contract that has been approved by the
2. Section 6(c) of the Act provides that the Commission may exempt any person, security, or transaction or any class or classes of persons, securities, or transactions from any provision of the Act, or from any rule thereunder, if such exemption is necessary or appropriate in the public interest and consistent with the protection of investors and the purposes fairly intended by policy and provisions of the Act. Applicants believe that their requested relief meets this standard for the reasons discussed below.
3. Applicants assert that the shareholders are relying on the Adviser's experience to select one or more Subadvisers best suited to achieve a Portfolio's investment objective. Applicants assert that, from the perspective of the investor, the role of the Subadvisers is comparable to that of individual portfolio managers employed by traditional investment advisory firms. Applicants contend that requiring shareholder approval of each Subadvisory Agreement would impose costs and unnecessary delays on the Portfolios, and may preclude the Adviser from acting promptly and efficiently according to the judgment of the Board and the Adviser. Applicants also note that each Advisory Agreement will remain subject to section 15(a) of the Act and rule 18f-2 under the Act, including the requirements of shareholder approval.
1. Before a Portfolio may rely on the order requested in the application, the operation of the Portfolio in the manner described in the application will be approved by a majority of the Portfolio's outstanding voting securities (or, if the Portfolio serves as a funding medium for any sub-account of a registered separate account, pursuant to voting instructions provided by the unitholders of the sub-account), as defined in the Act, or, in the case of a Portfolio whose public shareholders (or variable contract owners through a separate account) will purchase shares on the basis of a prospectus containing the disclosure contemplated by condition 2 below, by its initial shareholder before shares of the Portfolio are offered to the public (or the variable contract owners through a separate account).
2. The prospectus of each Portfolio relying on the requested relief will disclose the existence, substance and effect of any order granted pursuant to the application. In addition, each Portfolio will hold itself out to the public as employing the Adviser/Subadviser Structure described in the application. The prospectus will prominently disclose that the Adviser has ultimate responsibility to oversee the Subadvisers and recommend their hiring, termination, and replacement.
3. The Adviser will provide general management and administrative services to each of the Portfolios, including overall supervisory responsibility for the general management and investment of each Portfolio, and, subject to the review and approval by the Board will (i) set each Portfolio's overall investment strategies; (ii) evaluate, select and recommend Subadvisers to manage all or part of a Portfolio's assets; (iii) when appropriate, allocate and reallocate a Portfolio's assets among multiple Subadvisers; (iv) monitor and evaluate the investment performance of Subadvisers; and (v) implement procedures reasonably designed to ensure that the Subadvisers comply with the relevant Portfolio's investment objectives, policies, and restrictions.
4. At all times, a majority of the Board will be Independent Board Members, and the nomination of new or additional Independent Board Members will be placed within the discretion of the then-existing Independent Board Members.
5. The Adviser will not enter into a subadvisory agreement with any Subadviser that is an affiliated person of the Adviser or of the Portfolio within the meaning of section 2(a)(3) of the Act, other than by virtue of serving as a Subadviser to the Portfolio (“Affiliated Subadviser”), without that agreement, including the compensation to be paid thereunder, being approved by the shareholders of the applicable Portfolio (or, if the Portfolio serves as a funding medium for any sub-account of a registered separate account, pursuant to voting instructions provided by the unitholders of the sub-account).
6. When a Subadviser change is proposed for a Portfolio with an Affiliated Subadviser, the Board, including a majority of the Independent Board Members, will make a separate finding, reflected in the Board minutes, that the change is in the best interests of the applicable Portfolio and its shareholders (or, if the Portfolio serves as a funding medium for any sub-account of a registered separate account, in the best interests of the Portfolio and the unitholders of any sub-account) and does not involve a conflict of interest from which the Adviser or the Affiliated Subadviser derives an inappropriate advantage.
7. No Board member or officer of the Fund or director or officer of the Adviser will own directly or indirectly (other than through a pooled investment vehicle that is not controlled by the Board member, director or officer) any interest in a Subadviser, except for (i) ownership of interests in the Adviser or any entity that controls, is controlled by, or is under common control with the Adviser; or (ii) ownership of less than 1% of the outstanding securities of any class of equity or debt of a publicly traded company that is either a Subadviser or an entity that controls, is controlled by, or is under common control with a Subadviser.
8. Within ninety days of the hiring of a new Subadviser, the Adviser will furnish the shareholders of the applicable Portfolio (or, if the Portfolio serves as a funding medium for any sub-account of a registered separate account, the Adviser will furnish the unitholders of the sub-account) all the information about the new Subadviser that would be included in a proxy statement, including any change in such disclosure caused by the addition of a new Subadviser. To meet this obligation, the Adviser will provide shareholders (or, if the Portfolio serves as a funding medium for any sub-account of a registered separate account, then by providing unitholders of the sub-account) within ninety days of the hiring of a Subadviser with an information statement meeting the requirements of Regulation 14C, Schedule 14C, and Item 22 of Schedule 14A under the Securities Exchange Act of 1934.
For the Commission, by the Division of Investment Management, pursuant to delegated authority.
Securities and Exchange Commission (“Commission”).
Notice of application for an order pursuant to section 26(c) of the Investment Company Act of 1940 (the “Act”) approving certain substitutions of securities and for an order of
The Travelers Insurance Company (“Travelers Insurance”), The Travelers Life and Annuity Company (“Travelers L & A”), The Travelers Fund U for Variable Annuities (“Fund U”), The Travelers Separate Account TM for Variable Annuities (“Account TM”), The Travelers Separate Account TM II for Variable Annuities (“Account TM II”), Travelers Separate Account QP for Variable Annuities (“Account QP”), The Travelers Separate Account Five for Variable Annuities (“Account Five”), The Travelers Separate Account Six for Variable Annuities (“Account Six”), and The Travelers Fund UL III for Variable Life Insurance (“Fund UL III”).
The application was filed on August 31, 2001 and amended and restated on June 19, 2002.
Applicants request an order to permit the substitutions by Travelers Insurance and Travelers L & A of shares of securities of various portfolios (each a “Fund” or “Portfolio”) issued by certain management investment companies (each a “Management Company”) and held by one or more of Fund U, Account TM, Account TM II, Account QP, Account Five, Account Six, and Fund UL III, (the “Accounts”) to support variable annuity or variable life insurance contracts issued by Travelers or Travelers L & A (collectively, “Contracts”), as follows: (1) Shares of AIM Capital Appreciation Portfolio for shares of OCC Equity, (2) shares of AIM Capital Appreciation Portfolio for shares of Montgomery Growth Fund, (3) shares of TST U.S. Government Securities Portfolio for shares of Templeton Global Income Securities Fund Class I, (4) shares of TST Quality Bond Portfolio for shares of CitiStreet Diversified Bond Fund, (5) shares of Dreyfus Small Cap Portfolio for shares of Delaware Small Cap Value Series, (6) shares of TST U.S. Government Securities Portfolio for shares of Putnam Diversified Income Portfolio, and (6) shares of TST U.S. Government Securities Portfolio for shares of Smith Barney High Income Portfolio. Applicants also request an order exempting them from the provisions of section 17(a) of the Act to the extent necessary to permit Travelers Insurance and Travelers L & A to carry out certain of the substitutions by redeeming shares of: (1) CitiStreet Diversified Bond Fund in kind and using the redemption proceeds to purchase shares of TST Quality Bond Portfolio; (2) Montgomery Growth Fund and OCC Equity in kind and using the redemption proceeds to purchase shares of AIM Capital Appreciation Portfolio; and (3) Templeton Global Income Securities Fund Class I, Putnam Diversified Income Portfolio, and Smith Barney High Income Portfolio in kind and using the redemption proceeds to purchase shares of TST U.S. Government Securities Portfolio.
An order granting the amended and restated application will be issued unless the Commission orders a hearing. Interested person may request a hearing by writing to the Secretary of the Commission and serving Applicants with a copy of the request, personally or by mail. Hearing requests should be received by the Commission by 5:30 p.m. on July 11, 2002, and should be accompanied by proof of service on Applicants, in the form of an affidavit or, for lawyers, a certificate of service. Hearing requests should state the nature of the writer's interest, the reason for the request, and the issues contested. Persons may request notification of a hearing by writing to the Secretary of the Commission.
Secretary, Securities and Exchange Commission, 450 Fifth Street, NW, Washington, DC 20549–0506. Applicants, c/o Kathleen A. McGah,
Harry Eisenstein, Senior Counsel, at (202) 942–0670, or Zandra Bailes, Branch Chief, at (202) 942–0677, Office of Insurance Products, Division of Investment Management.
The following is a summary of the application; the complete application may be obtained for a fee from the Public Reference Branch of the Commission, 450 5th Street, NW, Washington, DC 20549 (tel. (202) 942–8090).
1. Travelers Insurance is a stock insurance company chartered in 1864 in Connecticut and continuously engaged in the insurance business since that time. It is licensed to conduct life insurance business in all fifty states, the District of Columbia, Puerto Rico, Guam, the U.S. and British Virgin Islands, and the Bahamas. Travelers Insurance is an indirect wholly-owned subsidiary of Citigroup, Inc. As of December 31, 2001, Travelers Insurance had consolidated assets of approximately $77 billion. For purposes of the Act, Travelers Insurance is the depositor and sponsor of the following variable annuity and variable life insurance separate accounts: Account TM, Fund U, Account QP, Account Five, and Fund UL III.
2. Travelers L & A is a stock life insurance company chartered in 1973 in Connecticut and continuously engaged in the insurance business since that time. It is licensed to conduct life insurance business in a majority of the states of the United States, the District of Columbia, and Puerto Rico. Travelers L & A is an indirect wholly-owned subsidiary of Citigroup, Inc. As of December 31, 2001, Travelers L & A had assets of approximately $12 billion. For purposes of the Act, Travelers L & A is the depositor and sponsor of the following variable annuity separate accounts: Account TM II and Account Six.
3. Under Connecticut law, the assets of each respective Account attributable to the Contracts are owned either by Travelers Insurance or Travelers L & A, but are held separately from the other assets of Travelers Insurance or Travelers L & A for the benefit of the owners of, and the persons entitled to payment under, those Contracts. To the extent so provided under the applicable Contracts, that portion of the assets of any such Account equal to the reserves and other contract liabilities with respect to that Account are not chargeable with liabilities arising out of any other business Travelers Insurance or Travelers L & A may conduct. Income, gains and losses, realized or unrealized, from the assets of each Account are credited to or charged against that Account without regard to the other income, gains, or losses of Travelers Insurance or Travelers L & A. Each Account is a “separate account” as defined by Rule 0–1(e) under the Act and is registered with the Commission as a unit investment trust. Each Account is comprised of a number of subaccounts, and each subaccount invests exclusively in a Portfolio or Fund.
4. The Contracts are flexible premium variable annuity and variable life insurance contracts. The variable annuity Contracts provide for the accumulation of values on a variable basis, fixed basis, or both, during the accumulation period, and provide settlement or annuity payment options on a variable or fixed basis. The variable life insurance Contracts provide for the accumulation of values on a variable basis, fixed basis, or both throughout the
5. A Contract owner may transfer all or any part of the Contract value from one subaccount to any other subaccount or a fixed account as long as the Contract remains in effect for variable life insurance contracts, and at any time up to 30 days before the due date of the first annuity payment for variable annuity contracts. For many of the variable annuity contracts, Travelers Insurance and Travelers L & A reserve the right to limit the number of transfers to one per six-month period.
6. Currently, there is no charge for transfers. However, Travelers Insurance and Travelers L & A both reserve the right under certain of their respective Contracts to assess a transfer charge of up to $10.00 on transfers in excess of twelve per year for variable annuity contracts and six per year for variable life insurance contracts.
7. Travelers Insurance and Travelers L & A, on behalf of themselves and their Accounts propose a series of substitutions of shares held in those Accounts. The table below summarizes the proposed substitutions.
8. Applicants believe that for each proposed substitution, the investment objectives and policies of the replacing Fund(s) or Portfolio(s) are sufficiently similar to those of the replaced Fund(s) or Portfolio(s) that Contract owners will have reasonable continuity in investment expectations. Applicants also believe that the proposed substitutions will better serve the interests of Contract owners because, in each case, the replacing Fund or Portfolio has lower fees or expenses, superior or comparable performance, and either a larger asset base than the replaced Fund or Portfolio or one that is growing rather than shrinking.
9. Each Management Company is registered as an open-end management investment company under the Act. Further, each is a series investment company as defined by Rule 18f–2 under the Act and issues separate series of shares of stock (for corporations) or of beneficial interest (for business trusts) in connection with each Fund or Portfolio. The shares of each Fund or Portfolio are registered under the 1933 Act on Form N–1A. The table below lists each Management Company, its type of business entity and the date established, 1940 Act file number, total number of Funds or Portfolios comprising the management company, the specific Funds or Portfolios involved in the proposed substitutions, and their 1933 Act file numbers.
10. The investment objective, investment strategy or key investments, investment advisers, and management fees for each Portfolio or Fund are described below. The Funds and Portfolios are grouped together by the proposed replacing Fund or Portfolio.
11. In each group, the first set of accompanying charts shows the approximate year-end size (in net assets), expense ratio (ratio of operating expenses as a percentage of average net assets), and annual total returns for each of the past three years for each of the Funds and Portfolios involved in the proposed substitutions. Funds and Portfolios marked with an asterisk in these charts have fiscal years ending on October 31st.
12. In each group, the second set of charts shows the approximate annual management fees, other expenses, and total expenses of each of the Funds or Portfolios involved in the proposed substitutions both before and after any expense reimbursement or fee waivers. The management fees and expenses shown are those for the 2001 fiscal year. Funds and Portfolios marked with an asterisk in these charts have fiscal years ending on October 31st.
13. The investment objective of the AIM Capital Appreciation Portfolio is capital appreciation. The Portfolio invests primarily in common stocks of companies the subadviser believes are likely to benefit from new or innovative products, services, or processes, as well as those that have experienced above-average, long-term growth in earnings and have excellent prospects for future growth. Travelers Investment Adviser, Inc. (“TIA”) serves as investment adviser to the Portfolio and AIM Capital Management serves as subadviser. AIM Capital Appreciation Portfolio pays a monthly investment management fee based on an annual rate of 0.80% of the average daily net assets of the Portfolio. Applicants propose to substitute shares of AIM Capital Appreciation Portfolio for shares of OCC Equity Portfolio and Montgomery Growth Portfolio.
14. The investment objective of the OCC Equity Portfolio is long-term capital appreciation. The Portfolio invests primarily in equity securities that the investment adviser believes are undervalued in the marketplace. OpCap Advisors serves as the investment adviser to the Portfolio and PIMCO serves as the Portfolio's subadviser. Equity Portfolio pays an investment management fee at the annual rate of 0.80% of the first $400 million of average daily net assets, 0.75% on the next $400 million of average daily net assets and 0.70% of assets in excess of $800 million of average daily net assets.
15. The investment objective of Montgomery Growth is long-term capital appreciation by investing in growth-oriented U.S. companies. The Fund may invest in U.S. companies of any size, but invests at least 65% of its total assets in those companies whose shares have a total stock market value of at least $1 billion. Montgomery Asset Management, LLC serves as investment adviser to the Fund. The Growth Fund pays a monthly investment management fee based on an annual rate of 1.00% of the average daily net assets of the Fund.
16. The investment objective of the TST U.S. Government Securities Portfolio is current income and total return by investing in debt securities of the highest quality. The Portfolio invests in U.S. Treasury notes and bonds and obligations of U.S. government instrumentalities and federal agencies. Travelers Asset Management Company LLC serves as investment adviser to the Portfolio. U.S. Government Securities Portfolio pays a monthly investment management fee based on an annual rate of 0.32% of the average daily net assets of the Portfolio. Applicants propose to substitute shares of TST U.S. Government Securities Portfolio for shares of the Templeton Global Income Securities Fund, shares of the Smith Barney High Income Portfolio, and those shares of Putnam Diversified Income Portfolio that fund contracts issued through the Fund U Account.
17. The investment objective of the Putnam Diversified Income Portfolio is high current income consistent with preservation of capital. The Portfolio invests primarily in debt securities of U.S. and foreign governments and corporations. The Portfolio may invest in securities with a wide range of credit qualities. The Portfolio's duration will generally vary from 3 to 7 years depending on market conditions and the subadviser's outlook for interest rates. Individual securities may be of any duration. TIA serves as investment adviser to the Portfolio, and Putnam Investment Management, Inc. serves as subadviser. Putnam Diversified Income Portfolio pays a monthly investment management fee based on an annual rate of 0.75% of the average daily net assets of the Portfolio.
18. The investment objective of the Templeton Global Income Securities Fund is high current income, consistent with preservation of capital with a secondary objective of capital appreciation. Under normal circumstances, the Fund invests at least 65% of its total assets in the debt securities of governments and their political subdivisions and agencies, supranational organizations, and companies located anywhere in the world, including emerging markets. This Fund may invest up to 35% of net assets in below investment grade debt (not rated lower than B). Average weighted maturity is generally 5 to 15 years. Franklin Advisers, Inc. serves as the investment adviser to the Fund and Templeton Investment Counsel, LLC serves as subadviser. Templeton Global Income Securities Fund pays a monthly investment management fee based on an annual rate of 0.60% of the average daily net assets of the Fund.
19. The investment objective of the Smith Barney High Income Portfolio is high current income and secondarily, capital appreciation. The Portfolio invests primarily in high-yielding, corporate debt obligations, and preferred stock of U.S. and foreign issuers. The Portfolio invests primarily in below investment grade securities, but may not invest more than 10% of its assets in securities rated lower than B, or in unrated securities of comparable quality. Although the Portfolio may invest in securities of any maturity, under current market conditions, it has an average remaining maturity of between 5 and 10 years. Smith Barney Fund Management LLC serves as investment adviser to the Portfolio. Smith Barney High Income Portfolio pays a monthly investment management fee based on an annual rate of 0.60% of the average daily net assets of the Portfolio.
20. The investment objective of the TST Quality Bond Portfolio is current income, moderate capital volatility, and total return. The Portfolio invests in investment-grade debt securities and generally maintains an average duration of 5 years or less. Travelers Asset Management International Company LLC serves as investment adviser to the Portfolio. Quality Bond Portfolio pays a monthly investment management fee based on an annual rate of 0.32% of the average daily net assets of the Portfolio. Applicants propose to substitute shares of TST Quality Bond Portfolio for shares of the CitiStreet Diversified Bond Fund.
21. The investment objective of the CitiStreet Diversified Bond Fund is maximum long-term total return (capital appreciation and income). The Fund invests in the following types of bonds, which are listed in order of importance, investment grade corporate debt, U.S. government bonds, foreign government bonds, mortgage-related securities, asset-backed securities and high-yield bonds. CitiStreet Funds Management LLC serves as investment adviser to the Fund. Western Asset Management Company, Salomon Brothers Asset Management and SsgA Funds Management each serve as a subadviser to the Fund. CitiStreet Diversified Bond Fund pays a monthly investment management fee based on an annual rate of 0.25% of the average daily net assets of the Fund and an additional subadvisory fee at a maximum rate of 0.35% (currently 0.20%) of the average daily net assets.
22. The investment objective of the Dreyfus Small Cap Portfolio is maximum capital appreciation. The Portfolio primarily invests in small cap companies with total market capitalizations of less than $2 billion at the time of purchase. The Portfolio invests in both growth stocks and value stocks and may include preferred stocks and convertible securities. Dreyfus serves as investment adviser to the Portfolio. Small Cap Portfolio pays a monthly management fee based on an annual rate of 0.75% of the average daily net assets of the Portfolio. Applicants propose to substitute shares of the Dreyfus Small Cap Portfolio for shares of the Delaware Small Cap Value Series.
23. The investment objective of the Delaware Small Cap Value Series is capital appreciation. The Portfolio invests in the common stocks of companies generally having a market capitalization of less than $1.5 billion and whose market value appears low relative to their underlying value or future earnings potential. Delaware Management Company serves as investment adviser to the Portfolio. Small Cap Value Series pays a monthly investment management fee based on an annual rate of 0.75% of the first $500 million of average daily net assets, 0.70% on the next $500 million of average daily net assets, 0.65% on the next $1.5 billion of average daily net assets and 0.60% on average daily net assets in excess of $2.5 billion.
24. Applicants propose to rationalize and consolidate their underlying Portfolio and Fund offerings among the Contracts. The rationalization and consolidation effort and resulting proposed substitutions arise from two factors. First, after the merger between Travelers Group Inc. and Citicorp, there were several asset management divisions/groups within the new company, Citigroup. Applicants state that a review process resulted in a plan to realign some of the underlying fund/portfolio offerings and/or to rationalize the offerings. Second, contemporaneously, Travelers Insurance and Travelers L & A conducted a reevaluation of the array of investment options offered within each Contract. The goal of the reevaluation was to identify and establish an updated, current array of investment options for the Contracts and respond to distributor feedback regarding offerings in various variable annuity and life insurance contracts. Travelers Insurance and Travelers L & A added several new options to the Contracts this past May 1 and, where possible, closed off the proposed replaced Portfolios and Funds to new investments as of that date. Applicants state that, in addition, as a result of the fund/portfolio rationalization, a number of mergers and liquidations of funds or portfolios managed by several Travelers Insurance affiliates have or will soon occur. Carrying out the proposed substitutions would complete the rationalization process.
25. Applicants believe that the rationalization will make the Contracts more competitive in both wholesale and retail markets and more efficient to administer and manage. Applicants believe that the proposed substitutions will improve Contract owner understanding of the investment options under the Contracts by reducing the potential for confusion arising from multiple underlying Portfolios or Funds of similar type and reduce the administrative burden of operating subaccounts by limiting the number that Applicants must maintain for each Contract.
26. Applicants believe that they have selected the proposed replaced Portfolios and Funds fairly. Applicants state that the Portfolios and Funds proposed for replacement, as well as the proposed replacing Portfolios and Funds, are a mix of affiliated and unaffiliated Portfolios and Funds. For each of the proposed substitutions the replacing Portfolio or Fund has a lower total expense ratios than the replaced Portfolio or Fund.
27. Also, Applicants note that the replacing Portfolio or Fund has average annual total returns that are better or comparable to the replacement Portfolio or Fund.
28. With respect to the Group 1 substitutions, Applicants also state that, although the AIM Capital Appreciation Portfolio (“AIM Capital”) and the OCC Equity Portfolio (“OCC Equity”) have
29. With respect to the Group 1 substitutions, Applicants further state that AIM Capital and the Montgomery Growth Fund (“Montgomery Growth”) have substantially identical investment objectives as well as very similar strategies for reaching their goals: Montgomery Growth invests in growth-oriented stocks and may invest in cash whereas AIM Capital invests primarily in common stocks and tries to select companies with new or innovative products, services, and processes. Applicants believe that, after the proposed substitution, Contract owners would continue to invest in a growth-oriented Portfolio that seeks domestic equity stocks of a wide variety of the companies with growth potential.
30. With respect to the Group 2 substitutions, Applicants state that one of the investment objectives of the TST U.S. Government Securities Portfolio (“TST Government”) is to have the highest credit quality in its portfolio, which is not an objective of the Templeton Global Income Securities Fund Class I (“Global Income”). Likewise, Global Income Securities has an objective of preservation of capital, not shared with TST Government. Both Portfolios, however, share the objective of seeking income as well as capital appreciation and both pursue these objectives by investing in debt securities.
31. As to the other Group 2 substitutions, Applicants contend that TST Government, Putnam Diversified Income Portfolio (“Putnam Diversified”), and Smith Barney High Income Portfolio (“Smith Barney Income”) have somewhat similar investment objectives in that they all seek current income; except that TST Government also seeks highest credit quality and total return, Putnam Diversified seeks preservation of capital, and Smith Barney Income has a secondary objective of capital appreciation. The Portfolios also have a similar strategy of achieving these objectives. Applicants state that, even though these three Portfolios focus their investments in different grades of debt securities, the proposed substitutions would not necessarily frustrate Contract owners' investment goals. Applicants believe that, after the proposed substitution, Contract owners will still have the ability to invest primarily in debt securities. Moreover, TST Government has a lower risk profile than Putnam Diversified or Smith Barney Income.
32. As to the Group 3 substitutions, Applicants contend that the investment objectives of the TST Quality Bond Portfolio (“Quality Bond”) are substantially similar to CitiStreet Diversified Bond Fund (“Diversified Bond”). Quality Bond and Diversified Bond both seek total return, which entails an element of capital appreciation along with income. Whereas Quality Bond invests only in investment-grade debt securities, Diversified Bond invests in a broad range of debt securities. Applicants believe that, after the proposed substitution, Contract owners would continue to invest in a Portfolio in which the primary component of its strategy is to seek current income by investing in debt securities.
33. As to the Group 4 substitutions, Applicants contend that the Dreyfus Small Cap Portfolio (“Dreyfus Small Cap”) and the Delaware Small Cap Value Series (“Delaware Small Cap”) have identical investment objectives. Applicants state that their investment strategies are similar except that Dreyfus Small Cap invests in growth stocks and stocks that cannot easily be categorized as either growth or value as well as value stocks. Applicants believe that, after the proposed substitution, Contract owners would still be invested in a Portfolio that invests in small cap companies that have prospects for future earnings.
34. Applicants state that, by supplements to the various May 1, 2001 prospectuses for the Contracts and the Accounts, all owners of the Contracts have been notified of Travelers Insurance's and Travelers L & A's intention to take the necessary actions, including seeking the order requested by the application, to substitute shares of the Portfolios and Funds as described therein. The supplements about the proposed substitutions advised Contract owners that from the date of the supplement, Travelers Insurance and Travelers L & A will not exercise any rights reserved under any Contract to impose restrictions on or charges for transfers until at least 30 days after the proposed substitutions. The supplements also advised Contract owners that if the proposed substitutions are carried out, then each Contract owner affected by a substitution will be sent a written notice (described below) informing them of the fact and details of the substitutions.
35. The proposed substitutions will take place at relative net asset value with no change in the amount of any Contract owner's account value or death benefit or in the dollar value of his or her investment in any of the Accounts. Contract owners will not incur any fees or charges as a result of the proposed substitutions, nor will their rights or Travelers Insurance's and Travelers L & A's obligations under the Contracts be altered in any way. All expenses incurred in connection with the proposed substitutions, including brokerage commissions and legal, accounting, and other fees and expenses, will be paid by Travelers Insurance or Travelers L & A. In addition, the proposed substitutions will not impose any tax liability on Contract owners. The proposed substitutions will not cause the Contract fees and charges currently being paid by existing Contract owners to be greater after the proposed substitutions than before the proposed substitutions. The proposed substitutions will not be treated as a transfer for the purpose of assessing transfer charges or for determining the number of remaining permissible transfers in a Contract year. Travelers Insurance and Travelers L & A will not exercise any right it may have under the Contracts to impose any restrictions on or charges for transfers (and will suspend any restrictions on transfers) under any of the Contracts for a period of at least 30 days following the substitutions.
36. In addition to the supplements distributed to owners of Contracts, within five days after the proposed substitutions, any Contract owners who are affected by a substitution will be sent a written notice informing them that the substitutions were carried out. The notice will also reiterate the fact that Travelers Insurance and Travelers L & A will not exercise any rights reserved by it under any of the Contracts to impose any restrictions on or charges for transfers (and will suspend any restrictions on transfers) until at least 30 days after the proposed substitutions. Current prospectuses for the new Funds or Portfolios will precede or accompany the notices.
37. As to all proposed substitutions, to the extent that the annualized expenses of a replacing Portfolio or Fund exceeds, for each fiscal period (such period being less than 90 days) during the twenty-four months following the substitutions, the 2001 net expense level of the Portfolio or Fund it replaces, Travelers Insurance and
38. Travelers Insurance and Travelers L & A are also seeking approval of the proposed substitutions from any state insurance regulators whose approval may be necessary or appropriate.
1. Section 26(c) of the Act requires the depositor of a registered unit investment trust holding the securities of a single issuer to receive Commission approval before substituting the securities held by the trust. Prior to the enactment of this provision in 1970, a depositor of a unit investment trust could substitute new securities for those held by the trust by notifying the trust's security holders of the substitution within five days of the substitution. In 1966, the Commission, concerned with the high sales charges then common to most unit investment trusts and the disadvantageous position in which such charges placed investors who did not want to remain invested in the substituted fund, recommended that the Act be amended to require that a proposed substitution of the underlying investments of a trust receive prior Commission approval.
2. Applicants state that all the Contracts, except one, expressly reserve for Travelers Insurance and Travelers L & A the right, subject to compliance with applicable law, to substitute shares of one Portfolio or Fund held by subaccount of an Account for another. Applicants state that the prospectuses for the Contracts and the Accounts contain appropriate disclosure of this right.
3. Applicants state that Travelers Insurance and Travelers L & A reserved this right of substitution both to protect themselves and their Contract owners in situations where either might be harmed or disadvantaged by circumstances surrounding the issuer of the shares held by one or more of their separate accounts and to afford the opportunity to replace such shares where to do so could benefit itself and Contract owners.
4. Applicants maintain that Contract owners will be better served by the proposed substitutions. Applicants anticipate that the replacement of certain unpopular Portfolios or Funds will result in a Contract that is administered and managed more efficiently, and one that is more competitive with other variable products in both wholesale and retail markets. For all of the proposed substitutions, the new Portfolio or Fund historically has had comparable or superior investment performance than the Portfolios or Funds that it would replace. More significantly, each new Portfolio or Fund has had lower expenses in recent years than the Portfolios or Funds that it would replace. Applicants state that for all of the proposed substitutions, the new Portfolios or Funds are either substantially the same or more conservative in their investment objective(s) or strategies or both, than the Portfolios or Funds that they would replace. Likewise, Applicants believe that a majority of the new Portfolios or Funds have a substantially similar or lower investment risk profile than the Portfolios or Funds each would replace.
5. In addition to the foregoing, Applicants generally submit that the proposed substitutions meet the standards that the Commission and its staff have applied to similar substitutions that have been approved in the past.
6. Applicants anticipate that Contract owners will be at least as well off with the proposed array of subaccounts to be offered after the proposed substitutions as they have been with the array of subaccounts offered before the substitutions. The proposed substitutions retain for Contract owners the investment flexibility which is a central feature of the Contracts. If the proposed substitutions are carried out, all Contract owners will be permitted to allocate purchase payments and transfer accumulated values and contract values between and among the remaining subaccounts as they could before the proposed substitutions.
7. Applicants assert that each of the proposed substitutions is not the type of substitution which Section 26(c) was designed to prevent. Unlike traditional unit investment trusts where a depositor could only substitute an investment security in a manner which permanently affected all the investors in the trust, the Contracts provide each Contract owner with the right to exercise his or her own judgment and transfer accumulation and contract values into other subaccounts. Moreover, the Contracts will offer Contract owners the opportunity to transfer amounts out of the affected subaccounts into any of the remaining subaccounts without cost or other disadvantage. The proposed substitutions, therefore, will not result in the type of costly forced redemption which Section 26(c) was designed to prevent.
8. Applicants maintain that the proposed substitutions also are unlike the type of substitution which Section 26(c) was designed to prevent in that by purchasing a Contract, Contract owners select much more than a particular investment company in which to invest their account values. They also select the specific type of insurance coverage offered by Travelers Insurance and Travelers L & A under their Contracts as well as numerous other rights and privileges set forth in the Contract. Contract owners may also have considered Travelers Insurance's and Travelers L & A's size, financial condition, type, and its reputation for service in selecting their Contract. These factors will not change because of the proposed substitutions.
9. Applicants submit that, for all the reasons stated above, the proposed substitutions are consistent with the protection of investors and the purposes fairly intended by the policy and provisions of the Act.
10. Section 17(a)(1) of the Act, in relevant part, prohibits any affiliated person of a registered investment company, or any affiliated person of such person, acting as principal, from knowingly selling any security or other property to that company. Section 17(a)(2) of the Act generally prohibits the persons described above, acting as principals, from knowingly purchasing any security or other property from the registered investment company. Section 17(b) of the Act provides that the Commission may, upon application, grant an order exempting any transaction from the prohibitions of Section 17(a) if the evidence establishes that: (1) The terms of the proposed transaction, including the consideration to be paid or received, are reasonable and fair and do not involve overreaching on the part of any person concerned; (2) the proposed transaction is consistent with the policy of each registered investment company concerned, as recited in its registration statement and records filed under the Act; and (3) the proposed transaction is consistent with the general purposes of the Act.
11. Applicants submit that the terms of the proposed substitutions by
12. Applicants maintain that the terms of the proposed transactions, including the consideration to be paid and received by each Portfolio or Fund involved, are reasonable, fair and do not involve overreaching principally because the transactions do not cause owners' interests under a Contract to be diluted and because the transactions will conform with all but one of the conditions enumerated in Rule 17a–7. The proposed transactions will take place at relative net asset value with no change in the amount of any Contract owner's Contract or cash value or death benefit or in the dollar value of his or her investment in any of the Accounts. Even though Travelers Insurance, Travelers L & A, TSF, TST and CitiStreet may not rely on Rule 17a–7, Applicants believe that the Rule's conditions outline the type of safeguards that result in transactions that are fair and reasonable to registered investment company participants and preclude overreaching in connection with an investment company by its affiliated persons.
13. Applicants state that the board of directors of TSF and CitiStreet and the board of trustees of TST have adopted or will adopt procedures, as required by paragraph (e)(1) of Rule 17a–7, pursuant to which the Portfolios or Funds of each may purchase and sell securities to and from their affiliates. Travelers Insurance, Travelers L & A, TSF, TST and CitiStreet will carry out the proposed substitutions in conformity with all of the conditions of Rule 17a–7 and TSF's, TST's and CitiStreet's procedures thereunder, except that the consideration paid for the securities being purchased or sold may not be entirely cash. Nevertheless, the circumstances surrounding the proposed substitutions will be such as to offer the same degree of protection to each Portfolio of TSF and the affected Funds of TST and CitiStreet from overreaching that Rule 17a–7 provides to them generally in connection with their purchase and sale of securities under that Rule in the ordinary course of their business. In particular, because of the circumstances surrounding the proposed Travelers Insurance and Travelers L & A substitutions, TSF, TST, CitiStreet and the other affected Portfolios could not “dump” undesirable securities on TST or TSF, or retain its desirable securities for themselves. Nor can Travelers Insurance and Travelers L & A effect the proposed transactions at a price that is disadvantageous to any TSF Portfolio, TST Fund or CitiStreet Fund. Although the transactions may not be entirely for cash, each will be effected based upon (1) the independent market price of the portfolio securities valued as specified in paragraph (b) of Rule 17a–7, and (2) the net asset value per share of each Portfolio or Fund involved valued in accordance with the procedures disclosed in the respective Management Company's registration statement and as required by Rule 22c–1 under the Act. No brokerage commission, fee, or other remuneration will be paid to any party in connection with the proposed transactions. In addition, the board of directors of TSF and the board of trustees of TST will subsequently review these proposed substitutions and make the determinations required by paragraph (e)(3) of Rule 17a–7.
14. Applicants state that the proposed redemption of shares of Putnam Diversified, Smith Barney Income, Montgomery Growth, OCC Equity, Diversified Bond and Global Income is consistent with the investment policy of each, as these are recited in its registration statement, provided that the shares are redeemed at their net asset value in conformity with Rule 22c–1 under the Act.
15. Applicants state that the sale of shares of Quality Bond, AIM Capital, and TST Government as contemplated by the proposed substitution, is consistent with the investment policy of each, as recited in its registration statement, provided that (1) the shares are sold at their net asset value, and (2) the portfolio securities are of the type and quality that the affected portfolios has acquired with the proceeds from share sales had the shares been sold for cash. To assure that the second of these conditions is met, Travelers Insurance and Travelers L & A will examine the portfolio securities being offered to Quality Bond, AIM Capital, and TST Government and accept only those securities as consideration for shares that it would have acquired for in a cash transaction.
16. Applicants assert that the proposed substitutions, as described herein, are each consistent with the general purposes of the Act as stated in the Findings and Declaration of Policy in section 1 of the Act. The proposed transactions do not present any of the conditions or abuses that the Act was designed to prevent. In particular, section 1(b)(2) and (3) of the Act state, among other things, that the national public interest and the interest of investors are adversely affected “when investment companies are organized, operated, managed, or their portfolio securities are selected in the interest of directors, officers, investment advisers, depositors, or other affiliated persons thereof, * * * or in the interests of other investment companies or persons engaged in other lines of business, rather than in the interest of all classes of such companies' security holders; * * * when investment companies issue securities containing inequitable or discriminatory provisions, or fail to protect the preferences and privileges of the holders of their outstanding securities.” Applicants assert that the conditions found in Rule 17a–7 prevent the abuses described in section 1(b)(2) and (3) of the Act. Applicants further assert that, for all the reasons stated in section IV of the application, the abuses described in section 1(b)(2) and (3) of the Act will not occur in connection with the proposed substitutions.
For the Commission, by the Division of Investment Management, pursuant to delegated authority.
Securities and Exchange Commission (“Commission”).
Notice of application under sections 6(c) and 17(b) of the Investment Company Act of 1940 (“Act”) for an exemption from section 17(a) of the Act, under section 6(c) for an exemption from sections 12(d)(3) and 17(e) of the Act and rule 17e–1 under the Act, and under section 10(f) of the Act for an exemption from section 10(f).
Applicants request an order to permit certain registered open-end management investment companies advised by several investment advisers to engage in principal and brokerage transactions with a broker-dealer affiliated with one of the investment advisers and to purchase securities in certain underwritings. The transactions would be between the broker-dealer and a portion of the investment company's
AXP Partners Series, Inc., AXP Partners International Series, Inc., AXP Strategy Series, Inc. (each, an “AXP Fund,” and each underlying series, an “AXP Portfolio”), AXP Variable Portfolio—Partners Series, Inc. (the “Life Fund,” and the underlying series, the “Life Portfolio”) (the AXP Funds and the Life Funds, the “Funds”) (the AXP Portfolios and the Life Portfolio, the “Portfolios”), American Express Financial Corporation (“AEFC”) and IDS Life Insurance Company (“IDS Life”).
Secretary, Commission, 450 Fifth Street, NW., Washington, DC 20549–0609. Funds, 901 Marquette Avenue South, Suite 2810, Minneapolis, MN 55402–3268. AEFC and IDS Life, 200 AXP Financial Center, Minneapolis, MN 55474.
John L. Sullivan, Senior Counsel, at (202) 942–0681, or Nadya B. Roytblat, Assistant Director, at (202) 942–0564 (Division of Investment Management, Office of Investment Company Regulation).
The following is a summary of the application. The complete application may be obtained for a fee at the Commission's Public Reference Branch, 450 Fifth Street, NW., Washington, DC 20549–0102 (tel. 202–942–8090).
1. Each Fund is a Minnesota corporation registered under the Act as an open-end management investment company. The Funds offer several Portfolios with different investment objectives and policies. Shares of the Life Portfolio are sold to IDS Life and its subsidiaries as a funding option for variable annuity contracts and variable life insurance policies issued by IDS Life and its subsidiaries.
2. AEFC is a Delaware corporation registered as an investment adviser under the Investment Advisers Act of 1940 and serves as investment adviser to the AXP Portfolios. A subsidiary of AEFC, IDS Life is a stock life insurance company organized under the laws of Minnesota and manages the Life Portfolio. IDS Life has entered into an advisory agreement with AEFC pursuant to which AEFC furnishes investment advice to the Life Portfolio.
3. Applicants request relief to permit: (a) Any broker-dealer registered under the Securities Exchange Act of 1934 that itself serves as a Subadviser to, or is an affiliated person of a Subadviser to a Portfolio (the broker-dealer, an “Affiliated Broker-Dealer'; the Subadviser, an “Affiliated Subadviser”) to engage in principal transactions with a portion of the Portfolio (“Portion”) that is advised by another Subadviser that is not an affiliated person of the Affiliated Broker-Dealer or the Affiliated Subadviser (the Subadviser, an “Unaffiliated Subadviser'; the Portion, an “Unaffiliated Portion”)
4. Applicants request that the requested relief apply to the Funds and any existing or future registered management investment company or its series advised by (a) AEFC or any entity controlling, controlled by, or under common control with AEFC, and (b) at least one Unaffiliated Subadviser registered under the Advisers Act or exempt from registration (such investment company or its series included in the term “Portfolio”). Applicants also request that the relief apply to any existing or future entity that serves as an Affiliated Subadviser, Affiliated Broker-Dealer or Affiliated Underwriter with respect to a Portfolio relying on the order. Any investment company that currently intends to rely on the order is named as an applicant. Any existing or future entity that relies on the order in the future will comply with the terms and conditions of the application.
1. Section 17(a) of the Act generally prohibits sales or purchases of securities between a registered investment company and an affiliated person of, promoter of, or principal underwriter for such company, or any affiliated person of an affiliated person (“second-
2. Applicants seek relief under sections 6(c) and 17(b) to exempt principal transactions prohibited by section 17(a) because an Affiliated Broker-Dealer is deemed to be an affiliated person or a second-tier affiliate of an Unaffiliated Portion as a result of the fact that an Affiliated Subadviser is the Subadviser to another Portion of the same Portfolio. The requested relief would not be available if the Affiliated Broker-Dealer (except by virtue of serving as a Subadviser to a Portion) is an affiliated person or a second-tier affiliate of the Adviser, the Unaffiliated Subadviser making the investment decision with respect to the Unaffiliated Portion, or any principal underwriter, promoter, officer, director or employee of the Portfolio.
3. Section 17(b) of the Act authorizes the Commission to grant an order permitting a transaction otherwise prohibited by section 17(a) if it finds that the terms of the proposed transaction, including the consideration to be paid or received, are fair and reasonable and do not involve overreaching on the part of any person concerned, and the proposed transaction is consistent with the policy of each registered investment company and the general purposes of the Act. Section 6(c) of the Act permits the Commission to exempt any person or transaction from any provision of the Act if the exemption is necessary or appropriate in the public interest and consistent with the protection of investors and the purposes fairly intended by the policies and provisions of the Act.
4. Applicants contend that section 17(a) is intended to prevent persons who have the power to control an investment company from using that power to the person's own financial advantage. Applicants assert that when the person acting on behalf of an investment company has no direct or indirect financial interest in a party to a principal transaction, the abuses that section 17(a) is designed to prevent are not present. Applicants state that if an Unaffiliated Subadviser purchases securities on behalf of an Unaffiliated Portion in a principal transaction with an Affiliated Broker-Dealer, any benefit that might inure to the Affiliated Broker-Dealer would not be shared by the Unaffiliated Subadviser. In addition, applicants state that Subadvisers are paid on the basis of a percentage of the value of the assets allocated to their management. The execution of a transaction to the disadvantage of the Unaffiliated Portion would disadvantage the Unaffiliated Subadviser to the extent that it diminishes the value of the Unaffiliated Portion. Applicants further submit that the Adviser's power to dismiss a Subadviser or to change the portion of a Portfolio's assets allocated to a Subadviser reinforces the Subadviser's incentive to maximize the investment performance of its own Portion.
5. Applicants state that each Subadviser's contract assigns it responsibility to manage a Portion. Each Subadviser is responsible for making independent investment and brokerage allocation decisions based on its own research and credit evaluations. Applicants represent that the Adviser does not dictate brokerage allocation or investment decisions nor does it have the contractual right to do so, except with respect to a Portion advised directly by the Adviser. Applicants contend that, in managing a Portion, each Subadviser acts for all practical purposes as though it is managing a separate investment company.
6. Applicants state that the proposed transactions will be consistent with the policies of the Portfolio involved, since each Unaffiliated Subadviser is required to manage its Portion in accordance with the investment objectives and policies described in the registration statement. Applicants also assert that permitting the transactions will be consistent with the general purposes of the Act and in the public interest because the ability to engage in the transactions increases the likelihood of a Portfolio achieving best price and execution on its principal transactions, while giving rise to none of the abuses that the Act was designed to prevent.
1. Section 17(e)(2) of the Act prohibits an affiliated person or a second-tier affiliate of a registered investment company from receiving compensation for acting as broker in connection with the sale of securities to or by the investment company if the compensation exceeds the limits prescribed by the section unless otherwise permitted by rule 17e–1 under the Act. Rule 17e–1 sets forth the conditions under which an affiliated person or a second-tier affiliate of an investment company may receive a commission which would not exceed the “usual and customary broker's commission” for purposes of section 17(e)(2). Rule 17e–1(b) requires the investment company's board of directors, including a majority of the directors who are not interested persons under section 2(a)(19) of the Act, to adopt certain procedures and to determine at least quarterly that all transactions effected in reliance on the rule during the preceding quarter complied with [the company's rule 17e–1] procedures. Rule 17e–1(d) specifies the records that must be maintained by each investment company with respect to any transaction effected pursuant to rule 17e–1.
2. As discussed above, applicants state that an Affiliated Broker-Dealer is either an affiliated person or a second-tier affiliate of an Unaffiliated Portion and thus subject to section 17(e). Applicants request an exemption under section 6(c) from section 17(e) and rule 17e–1 to the extent necessary to permit an Unaffiliated Portion to pay brokerage compensation to an Affiliated Broker-Dealer acting as broker in the ordinary course of business in connection with the sale of securities to or by such Unaffiliated Portion, without complying with the requirements of rule 17e–1(b) and (d). The requested exemption would apply only where an Affiliated Broker-Dealer is deemed to be an affiliated person or a second-tier affiliate of an Unaffiliated Portion solely because an Affiliated Subadviser is the Subadviser to another Portion of the same Portfolio. The relief would not apply if the Affiliated Broker-Dealer (except by virtue of serving as Subadviser to a Portion) is an affiliated person or a second-tier affiliate of the Adviser, the Unaffiliated Subadviser making the investment decision with respect to the Unaffiliated Portion, or any principal underwriter, promoter, officer, director or employee of the Portfolio.
3. Applicants believe that the proposed brokerage transactions involve no conflicts of interest or possibility of self-dealing and will meet the standards of section 6(c). Applicants assert that because the financial interests of an Unaffiliated Subadviser are directly aligned with the interests of the Unaffiliated Portion it advises, an Unaffiliated Subadviser will enter into brokerage transactions with Affiliated Broker-Dealers only if the fees charged are reasonable and fair compared to those charged by other brokers in connection with comparable transactions involving similar securities during a comparable period of time. Applicants also note that an Unaffiliated Subadviser has a fiduciary duty to obtain best price and execution for the Unaffiliated Portion.
1. Section 10(f) of the Act, in relevant part, prohibits a registered investment company from knowingly purchasing or otherwise acquiring, during the existence of any underwriting or selling syndicate, any security (except a security of which the company is the issuer) a principal underwriter of which is an officer, director, member of an advisory board, investment adviser or employee of the company, or an affiliated person of any of those persons. Section 10(f) also provides that the Commission may exempt by order any transaction or classes of transactions from any of the provisions of section 10(f), if and to the extent that such exemption is consistent with the protection of investors. Rule 10f–3 under the Act exempts certain transactions from the prohibitions of section 10(f) if specified conditions are met. Paragraph (b)(7) of rule 10f–3 limits the securities purchased by the investment company, or by two or more investment companies having the same investment adviser, to 25% of the principal amount of the offering of the class of securities.
2. Applicants state that each Subadviser to a Portfolio, although under contract to manage only a Portion, is considered an investment adviser to the Portfolio itself, not just the Portion it manages. Therefore, applicants believe that all purchases of securities by the Subadviser on behalf of the Portfolio from an underwriting syndicate, a principal underwriter of which is another Subadviser to the same Portfolio or a person of which such other Subadviser is an affiliated person, would be subject to section 10(f).
3. Applicants request relief under section 10(f) from that section to permit an Unaffiliated Portion to purchase securities during the existence of an underwriting or selling syndicate, a principal underwriter of which is an Affiliated Underwriter. Applicants request relief from section 10(f) only to the extent those provisions apply solely because an Affiliated Subadviser is an investment adviser to the Portfolio. The requested relief would not be available if the Affiliated Underwriter (except by virtue of serving as Subadviser to a Portion) is an affiliated person or a second-tier affiliate of the Adviser, the Unaffiliated Subadviser making the investment decision with respect to the Unaffiliated Portion, or any principal underwriter, promoter, officer, director or employee of the Portfolio. Applicants also seek relief from section 10(f) to permit an Affiliated Portion to purchase securities during the existence of an underwriting syndicate, a principal underwriter of which is an Affiliated Underwriter, provided that the purchase will be in accordance with the conditions of rule 10f–3, except that paragraph (b)(7) of the rule will not require the aggregation of purchases by the Affiliated Portion with purchases by an Unaffiliated Portion.
4. Applicants state that section 10(f) was adopted in response to concerns about the “dumping” of otherwise unmarketable securities on investment companies, either by forcing the investment company to purchase unmarketable securities from its underwriting affiliate, or by forcing or encouraging the investment company to purchase the securities from another member of the syndicate. Applicants submit that these abuses are not present in the context of the Portfolios because, in part, a decision by the Subadviser to a Portion to purchase securities from an underwriting syndicate, a principal underwriter of which is a Subadviser to a different Portion of the same Portfolio or a person of which such other Subadviser is an affiliated person, involves no potential for “dumping.” In addition, applicants assert that aggregating purchases would serve no purpose because there is no collaboration among Subadvisers to the same Portfolio, and any common purchases by an Affiliated Subadviser and an Unaffiliated Subadviser would be coincidence.
1. Section 12(d)(3) of the Act, in relevant part, generally prohibits a registered investment company from acquiring any security issued by any person who is a broker, dealer, investment adviser, or engaged in the business of underwriting. Rule 12d3–1 under the Act exempts certain transactions from the prohibitions of section 12(d)(3) if specified conditions are met. One of these conditions, paragraph (c) of rule 12d3–1 generally provides that the exemption provided by the rule is not available when the issuer of the securities is the investment company's investment adviser, promoter, or principal underwriter, or an affiliated person of the investment company's investment adviser, promoter, or principal underwriter.
2. Applicants state that each Subadviser to a portion of a Portfolio is considered to be an investment adviser to the entire Portfolio. Thus, an Unaffiliated Portion would not be able to purchase securities issued by a Securities Affiliate (which would include another Subadviser to the same Portfolio or an affiliated person of that Subadviser) in reliance on rule 12d3–1 because of paragraph (c). Applicants request relief under section 6(c) from section 12(d)(3) to allow any Unaffiliated Subadviser for an Unaffiliated Portion to acquire securities issued by a Securities Affiliate within the limits of rule 12d3–1. The requested relief would only apply where a Securities Affiliate is deemed to be an affiliated person or a second-tier affiliate of an Unaffiliated Portion within the meaning of rule 12d3–1(c) solely because an Affiliated Subadviser is the Subadviser to another portion of the same Portfolio.
3. Applicants state that the proposed transactions do not raise the conflicts of interest that rule 12d3–1(c) was designed to address because of the nature of the affiliation between a Securities Affiliate and the Unaffiliated Portion. Applicants submit that each Subadviser acts independently of the other Subadvisers in making investment decisions for the assets allocated to its portion of the Portfolio. Furthermore, applicants submit that prohibiting an Unaffiliated Portion from purchasing securities issued by a Securities Affiliate could harm the interests of a Portfolio's shareholders by preventing the Unaffiliated Subadviser from achieving optimal investment results.
Applicants agree that any order granting the requested relief will be subject to the following conditions:
1. Each Portfolio relying on the requested order will be advised by an Affiliated Subadviser and at least one Unaffiliated Subadviser and will be operated in the manner described in the application.
2. No Affiliated Subadviser, Affiliated Broker-Dealer, Affiliated Underwriter or Securities Affiliate (except by virtue of serving as Subadviser to a Portion) will be an affiliated person or a second-tier affiliate of the Adviser, any Unaffiliated Subadviser, or any principal underwriter, promoter, officer, director or employee of a Portfolio.
3. No Affiliated Subadviser will directly or indirectly consult with any Unaffiliated Subadviser concerning allocation of principal or brokerage transactions.
4. No Affiliated Subadviser will participate in any arrangement whereby the amount of its subadvisory fees will be affected by the investment performance of an Unaffiliated Subadviser.
5. With respect to purchases of securities by an Affiliated Portion during the existence of any underwriting or selling syndicate, a principal underwriter of which is an Affiliated Underwriter, the conditions of rule 10f–3 will be satisfied except that paragraph (b)(7) will not require the aggregation of purchases by the Affiliated Portion with purchases by an Unaffiliated Portion.
6. With respect to purchases by an Unaffiliated Portion of securities issued by a Securities Affiliate, the conditions of rule 12d3–1 will be satisfied except for paragraph (c) to the extent such paragraph is applicable solely because such issuer is an Affiliated Subadviser or an affiliated person of an Affiliated Subadviser.
For the Commission, by the Division of Investment Management, under delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The Amex proposes to amend Section 101 of the Amex Company Guide to revise and clarify its income-based original listing standard. The text of the proposed rule change appears below. New language is italicized.
No Change.
1. Size—Stockholders' equity of at least $4,000,000.
2. Income—Pre-tax income
Additional criteria applicable to various classes of securities and issuers are set forth below. Applicants should also consider the policies regarding conflicts of interest, independent directors and voting rights described in §§ 120–125.
In its filing with the Commission, the Amex included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item III below. The Exchange has prepared summaries, set forth in Sections A, B, and C below, of the most significant aspects of such statements.
Section 101 of the Amex Company Guide contains a number of quantitative guidelines under which listing applicants are evaluated. Pursuant to Section 101(a)(2) of the Amex Company Guide, a listing applicant is subject to a pre-tax income guideline of at least $750,000 in its last fiscal year, or in two of its last three fiscal years.
The Exchange believes that the proposed rule change is consistent with Section 6(b) of the Act
The Exchange believes that the proposed rule change will impose no burden on competition.
The Exchange has neither solicited nor received written comments on the proposed rule change.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Persons making written submissions should file six copies thereof with the Secretary, Securities and Exchange Commission, 450 Fifth Street, NW., Washington, DC 20549–0609. Copies of the submission, all subsequent amendments, all written statements with respect to the proposed rule change that are filed with the Commission, and all written communications relating to the proposed rule change between the Commission and any person, other than those that may be withheld from the public in accordance with the provisions of 5 U.S.C. 552, will be available for inspection and copying in the Commission's Public Reference Room. Copies of the filing will also be available for inspection and copying at the principal offices of the Exchange. All submissions should refer to File No. SR–Amex–2002–39 and should be submitted by July 17, 2002.
The Commission finds that the proposed rule change is consistent with the requirements of the Act and the rules and regulations thereunder applicable to a national securities exchange.
The Commission believes that by addressing the effects of discontinued operations, extraordinary items, and the cumulative effect of changes in accounting principles not incurred in the ordinary course of business, the proposal should permit the Amex to better evaluate a listing applicant's financial situation and performance. The Commission notes that the scope of the proposed rule change is limited by the requirement that compliance with the proposed changes be determinable in a manner consistent with Generally Accepted Accounting Principles. Further, the Commission notes that another self-regulatory organization recently changed its rules to establish a substantially similar standard
The Amex has requested that the Commission expedite review of, and grant accelerated approval to, this proposal, pursuant to Section 19(b)(2) of the Act.
For the Commission, by the Division of Market Regulation, pursuant to delegated authority.
On February 11, 2002, the Government Securities Clearing Corporation (“GSCC”) filed with the Securities and Exchange Commission (“Commission”) proposed rule change SR–GSCC–2002–02 pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”).
GSCC has proposed to amend its rules to alter trade data submission requirements for both Netting
In the course of its analysis, GSCC discovered that while comparison rates for repo transactions approached 97 percent, comparison rates for buy/sell transactions were consistently lower at 95 percent. GSCC determined that there were four main reasons for this trend. First, many trades submitted to GSCC are not submitted as originally executed between members. Many trades are either “bunched” or “broken down” resulting in some trades not being compared.
The second reason for uncompared trades is when GSCC members fail to notify GSCC of their intent to submit trades for Executing Firms.
A third reason for uncompared trades is that GSCC does not currently require its members to submit to it all types of trade data. As a result, some firms do not submit to GSCC for comparison trades that are executed and settled on the same day (cash trades). The fourth reason for uncompared trades occurs because Comparison-Only Members, who do not settle their trades through GSCC, do not submit their trade data to GSCC on a consistent basis.
The proposed rule changes would increase comparison rates by effectively eliminating the situations described above. Specific proposed rule changes would apply to both buy/sell and repo transactions as follows:
(i) Each Comparison-Only Member would be required to submit data to GSCC on all buy/sell or repo trades executed by such member with any other Comparison-Only Member or Netting Member of GSCC.
(ii) Each Netting Member would be required to submit data to GSCC on all buy/sell or repo trades executed by such member with any other Comparison-Only Member.
(iii) Each GSCC member would be required to submit data to GSCC on all trades with other GSCC members executed and settled on the same day.
(iv) Each GSCC member would be required to submit trade data exactly as executed up to a $50 million dollar cap. Trades for over $50 million could be submitted in $50 million pieces with a “tail” for any remainder.
(v) Each GSCC member would be required to inform GSCC of all Executing Firms on whose behalf they submit trade data for placement on GSCC's master list and to submit to GSCC all trades executed on behalf of an Executing Firm on GSCC's master list with the appropriate symbol. In addition, each GSCC member would be required to inform GSCC of those Executing Firms that should be deleted from the master list.
In the event that a member does not comply with the new trade submission rules, GSCC has certain rights to enforce compliance. In addition to automatically placing a Netting Member or a Comparison-Only Member on surveillance status, GSCC would have the right to increase the required Clearing Fund deposit of a Netting Member pursuant to GSCC Rule 4, Section 3 and at GSCC's discretion notify the Netting Member or Comparison-Only Member's appropriate regulatory authority of its non-compliance with GSCC's rules. GSCC expects to submit a rule filing at a later date giving GSCC the authority to assess fees to members who do not comply with the trade data submission requirements outlined in these rules.
Section 17A(b)(3)(F) of the Act requires that the rules of a clearing agency be designed to promote the prompt and accurate clearance and settlement of securities transactions.
On the basis of the foregoing, the Commission finds that the proposed rule change is consistent with the requirements of the Act and in particular Section 17A of the Act and the rules and regulations thereunder.
For the Commission by the Division of Market Regulation, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The NYSE proposes to amend Section 306 of the NYSE Listed Company Manual to remove separate NYSE requirements regarding the use of consent solicitations. The text of the proposed rule change is below. New language is italicized; deleted language is in brackets.
[The use of consents in lieu of special meetings as proper authorization for shareholder approval of corporate action may be appropriate under certain circumstances. When it appears that a special meeting of shareholders is not necessary, requests from listed companies to use consents will be reviewed and approved by the Exchange on an individual basis if they conform with these guidelines:
A record date is used.
Consent material is sent to all shareholders.
Corporate action is not to be taken until the solicitation period has expired—even if the required vote is received earlier.
A 30-day solicitation period is recommended and a minimum of 20 days is required.
Consent material conforms to normal proxy statement disclosure standards.
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. The NYSE has prepared summaries, set forth in Sections A, B, and C below, of the most significant aspects of such statements.
The Exchange has long required that listed companies solicit proxies in connection with all shareholder meetings. Section 306 of the Listed Company Manual specifies that companies are permitted to use shareholder consents in lieu of special meetings, although it provides that the corporate action should not be taken until the consent solicitation period has expired.
In 1964, the Exchange Act was amended to expand federal proxy regulation to cover “information statements,” which are disclosure documents used to inform shareholders of corporate action that has been taken without the general solicitation of their proxy, consent, or authorization. This can arise when a corporation is permitted under state law to take action without a meeting upon the written consent of a specified percentage of shareholders, and the corporation has an individual or a small group that holds a sufficient percentage to effect the action involved.
Since the Exchange permitted the listing of dual class capitalization companies, from time to time some Exchange-listed companies have been in a position to, and desired to, take action by written consent of the holders of a majority of their voting stock in lieu of a special meeting of shareholders. Such a company would be required by Section 14(c) of the Exchange Act and Regulation 14C thereunder to furnish to all shareholders an information statement that contains the same disclosure as would have been provided to those shareholders had they been sent a proxy or consent solicitation. Regulation 14C also specifies that the information statement must be sent at least 20 days prior to the earliest date the corporate action can be taken. Nonetheless, given the requirements of Section 306 of the Manual, at least in those situations where the shareholder vote is one required by Exchange rules (
The Exchange is now of the opinion that those objections are credible and that it is appropriate to align the Exchange with what has become an accepted corporate practice that has long been sanctioned by state and federal regulation. The federal proxy rules insure that shareholders are provided all the information material to the corporate action being taken, regardless of whether the corporation must solicit shareholder approval generally, or is able to proceed based on the written consent of a smaller group. Accordingly, the Exchange proposes to modify Section 306 to eliminate the separate Exchange requirements with respect to use of consents in lieu of special meetings. As a result, listed companies will be permitted to either (1) hold a special meeting of shareholders, or (2) use consents in lieu of special meetings when and as permitted by applicable law.
The Exchange would, however, retain its traditional policy that listed companies may not use written consents in lieu of the
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
The Exchange has neither solicited nor received written comments on the proposed rule change.
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 proposed rule change, as amended, is consistent with the Act. Persons making written submissions should file six copies thereof with the Secretary, Securities and Exchange Commission, 450 Fifth Street NW., Washington, DC 20549–0609. Copies of the submission, all subsequent amendments, all written statements with respect to the proposed rule change that are filed with the Commission, and all written communications relating to the proposed rule change between the Commission and any person, other than those that may be withheld from the public in accordance with the provisions of 5 U.S.C. 552, will be available for inspection and copying in the Commission's Public Reference Room. Copies of such filing will also be available for inspection and copying at the principal office of the NYSE. All submissions should refer to File No. SR–NYSE–2002–01 and should be submitted by July 17, 2002.
For the Commission, by the Division of Market Regulation, pursuant to delegated authority.
As a result of the President's major disaster declaration on June 19, 2002, I find that Adams, Alamosa, Arapahoe, Archuleta, Baca, Bent, Boulder, Broomfield, Chaffee, Cheyenne, Clear Creek, Conejos, Costilla, Crowley, Custer, Delta, Denver, Dolores, Douglas, Eagle, Elbert, El Paso, Fremont, Garfield, Gilpin, Grand, Gunnison, Hinsdale, Huerfano, Jefferson, Kiowa, Kit Carson, Lake, La Plata, Las Animas, Lincoln, Mesa, Mineral, Moffat, Montezuma, Montrose, Otero, Ouray, Park, Pitkin, Pueblo, Rio Blanco, Rio Grande, Routt, Saguache, San Juan, San Miguel, Summit, Teller, Washington and Yuma Counties and Broomfield City, Denver City, the Southern Ute Reservation and the Ute Mountain Reservation in the State of Colorado constitute a disaster area due to damages caused by wildfires occurring on April 23, 2002 and continuing. Applications for loans for physical damage as a result of this disaster may be filed until the close of business on August 18, 2002 and for economic injury until the close of business on March 19, 2003 at the address listed below or other locally announced locations: U.S. Small Business Administration, Disaster Area 3 Office, 4400 Amon Carter Blvd., Suite 102, Fort Worth, TX 76155.
In addition, applications for economic injury loans from small businesses located in the following contiguous counties may be filed until the specified date at the above location: Jackson, Larimer, Logan, Morgan, Phillips, Prowers and Weld Counties in the State of Colorado; Apache County in the State of Arizona; Cheyenne, Greeley, Hamilton, Morton, Sherman, Stanton and Wallace Counties in the State of Kansas; Chase and Dundy Counties in the State of Nebraska; Cimarron County in the State of Oklahoma; Colfax, Rio Arriba, San Juan, Taos and Union Counties in the State of New Mexico; Daggett, Grand, San Juan and Uintah Counties in the State of Utah; and Carbon and Sweetwater Counties in the State of Wyoming.
The interest rates are:
The number assigned to this disaster for physical damage is 342405. For economic injury the number is 9Q1900 for Colorado; 9Q2000 for Arizona; 9Q2100 for Kansas; 9Q2200 for Nebraska; 9Q2300 for Oklahoma; 9Q2400 for New Mexico; 9Q2500 for Utah; and 9Q2600 for Wyoming.
As a result of the President's major disaster declaration on June 19, 2002, I find that Allamakee, Benton, Buchanan, Cedar, Clayton, Clinton, Delaware, Dubuque, Fayette, Iowa, Jackson, Johnson, Jones, Linn, Muscatine, Scott and Winneshiek Counties in the State of Iowa constitute a disaster area due to damages caused by severe storms and flooding occurring on June 3, 2002 and continuing. Applications for loans for physical damage as a result of this disaster may be filed until the close of business on August 18, 2002 and for economic injury until the close of business on March 19, 2003 at the address listed below or other locally announced locations: U.S. Small Business Administration, Disaster Area 3 Office, 4400 Amon Carter Blvd., Suite 102, Ft. Worth, TX 76155.
In addition, applications for economic injury loans from small businesses located in the following contiguous counties may be filed until the specified date at the above location: Black Hawk, Bremer, Chickasaw, Howard, Keokuk, Louisa, Poweshiek, Tama and Washington Counties in the State of Iowa; Carroll, Jo Daviess, Rock Island
The interest rates are:
The number assigned to this disaster for physical damage is 342511. For economic injury the number is 9Q2700 for Iowa; 9Q2800 for Illinois; 9Q2900 for Minnesota; and 9Q3000 for Wisconsin.
In accordance with a notice received from the Federal Emergency Management Agency, dated June 17, 2002, the above numbered declaration is hereby amended to include Halifax, Pittsylvania, Prince George, Scott and Wise Counties and the Independent City of Emporia in the Commonwealth of Virginia as disaster areas due to damages caused by severe storms, tornadoes and flooding occurring on April 28, 2002 through May 3, 2002.
In addition, applications for economic injury loans from small businesses located in the following contiguous counties may be filed until the specified date at the previously designated location: Charles City, Chesterfield, Henry, Lee, Mecklenburg, Surry and Washington Counties in Virginia; Harlan and Letcher Counties in Kentucky; Caswell, Granville, Person and Rockingham County in North Carolina; and Hancock, Hawkins and Sullivan Counties in Tennessee.
The economic injury number assigned to Tennessee is 9Q1800.
All other information remains the same,
In accordance with Part 211 of Title 49 Code of Federal Regulations (CFR), notice is hereby given that the Federal Railroad Administration (FRA) received a request for a waiver of compliance with certain requirements of its safety standards. The individual petition is described below, including the party seeking relief, the regulatory provisions involved, the nature of the relief being requested, and the petitioner's arguments in favour of relief.
The Mount Rainier Scenic Railroad, on behalf of Mr. Chris Baldo, seeks a waiver of compliance number FRA–2002–12270, with the
Interested parties are invited to participate in these proceedings by submitting written views, data, or comments. FRA does not anticipate scheduling a public hearing in connection with these proceedings since the facts do not appear to warrant a hearing. If any interested party desires an opportunity for oral comment, they should notify FRA, in writing, before the end of the comment period and specify the basis for their request.
All communications concerning these proceedings should identify the appropriate docket number (
Federal Transit Administration (FTA), Department of Transportation (DOT).
Notice of intent to prepare a Supplemental Draft Environmental Impact Statement (SDEIS).
The Federal Transit Administration (FTA) as lead agency in cooperation with the Federal Highway Administration (FHWA), and the Central Florida Regional Transportation Authority (CFRTA, locally known as LYNX), in conjunction with METROPLAN ORLANDO, and the Florida Department of Transportation (FDOT) intend to conduct scoping meetings and prepare a Supplemental Draft Environmental Impact Statement (SDEIS) in accordance with the National
This Notice of Intent is being published at this time to notify interested parties and invite participation in the study due to the changes in the light rail transit alignment (including line, station locations and support facilities) that have occurred since the initial Notice of Intent (October 8, 1996), publication of the Central Florida Light Rail Transit System North/South Corridor Project DEIS (1997), and publication of the Central Florida Light Rail Transit System North/South Corridor Project FEIS as supplemented (1999). The new alignment is located generally within or adjacent to the Interstate 4 right-of-way and along the planned Kirkman Road extension (
The following alternatives will be evaluated in the SDEIS: (1) A baseline alternative consisting of measures to implement more efficient management of the current transit infrastructure, with an emphasis on operating improvements, in addition to those projects listed in the Long Range Cost Feasible Plan and/or the Transportation Improvement Plan, and (2) the locally preferred light rail transit alignment (including line, station locations and support facilities).
Scoping will be accomplished through correspondence with interested persons, organizations, and Federal, State and local agencies, and through public meetings.
Scoping Meetings: A series of public meetings will be held to receive comments on the scoping document for the project, including the following dates, locations and times:
July 9, 2002 4 p.m.–7 p.m., Altamonte Springs City Council Chambers, 225 Newburyport Ave., Altamonte Springs, FL 32701.
July 10, 2002 4 p.m.–7 p.m., Rosen Centre Hotel, 9840 International Drive, Orlando, FL 32819.
July 11, 2002 4 p.m.–7 p.m., Orlando City Council Chambers (2nd Floor), 400 S. Orange Avenue, Orlando, FL 32802.
July 16, 2002 4 p.m.–7 p.m., Maitland City Council Chambers, 1776 Independence Lane, Maitland, FL 32751.
July 17, 2002 4 p.m.–7 p.m., Orange County Public Works Building, 4200 South John Young Parkway, Orlando, FL 32839.
All meeting locations are accessible to persons with disabilities. In accordance with the Americans With Disabilities Act of 1990, persons needing a special accommodation at this meeting because of a disability or physical impairment should contact Ron Jones at LYNX, (407) 841–2279, at least 48 hours before the meeting. If hearing impaired, contact LYNX at (407) 423–0787(TDD).
Tony Walter, Project Manager for LYNX, (407) 841–2279, EXT. 3007. You may also contact Mr. Derek Scott, Community Planner, Federal Transit Administration, Region IV, 61 Forsyth Street, SW, Suite 17T50, Atlanta, Georgia 30303. Telephone: (404) 562–3500.
This Notice of Intent to prepare a Supplemental DEIS is being published at this time to notice interested parties due to the changes that have occurred since the initial Notice of Intent (October 8, 1996), publication of the Central Florida Light Rail Transit System North/South Corridor Project DEIS (1997), and publication of the Central Florida Light Rail Transit System North/South Corridor Project FEIS as supplemented (1999). The Central Florida Light Rail Transit System Project is re-examining light rail transit alignment alternatives within the study area (see Study Area below). FTA regulations and guidance will be used for the analysis and preparation of the Central Florida Light Rail Transit System Project SDEIS.
The FTA, LYNX, METROPLAN ORLANDO, and FDOT invite written comments for a period of 45 days after publication of this notice (see DATES above). During scoping, comments should focus on identifying specific social, economic, or environmental impacts to be evaluated. Comments should focus on the scope of alternatives and impacts to be considered, and not on a preference for a particular alternative. Individual preference for a particular alternative should be communicated during the comment period for the Supplemental DEIS, subsequent to the completion of the scoping document.
Persons who wish to receive information prior to a scoping meeting, or to be placed on the mailing list to receive further information as the project continues may contact Tony Walter at LYNX, 445 West Amelia Street, Suite 800, Orlando, Florida, 32801.
The proposed project consists of an approximately 20 mile total light rail transit system, linking the Central Parkway in Altamonte Springs to the north, through Downtown Orlando and central Orange County, to the proposed Canadian Court Intermodal Center in the south. The locally preferred light rail transit alignment, as adopted by the METROPLAN ORLANDO Board in May 2002, extends from Central Parkway in Altamonte Springs and crosses over I–4 from Altamonte Springs to Maitland. South of Maitland Center, it crosses over to the east side of I–4 at Fairbanks Avenue, south along Dade Avenue at-grade, on King Street and easterly on Sanitarium Road, south over CSX and Princeton Street. The alignment is at-grade along a reconstructed Alden Road to Orange Avenue to the Regional Intermodal Center (RIC) on Amelia Street.
The alignment from the RIC through Downtown Orlando is still under study. Option 1 extends to the west of Downtown Orlando and Option 2 extends south along Garland Avenue. Once the alignment leaves Downtown Orlando, it extends west in the median of I–4 and extends directly to Universal Studios, or extends directly south on Kirkman Road, over Sand Lake Road along the planned Kirkman Road extension, west to the proposed Canadian Court Intermodal Center.
Possible additional extensions along International Drive, to Sea World, and to Orlando International Airport will be considered.
Transportation improvements within the North/South corridor are needed to accommodate excess travel demand resulting from current and projected growth in population and employment. This light rail transit alignment provides the opportunity to connect the following proposed intermodal stations: the Altamonte Springs Intermodal Center, the Maitland Intermodal Center, the Regional Intermodal Center (RIC) in Downtown Orlando, the Belz Intermodal Center, and the Canadian Court Intermodal Center, at a minimum.
The alternatives proposed for evaluation include:
(1) A baseline alternative consisting of measures to implement more efficient management of the current transit infrastructure, with an emphasis on operating improvements, in addition to those projects listed in the Long Range Cost Feasible Plan and/or the Transportation Improvement Plan, and
(2) The locally preferred light rail transit alignment (including line, station locations and support facilities).
FTA, LYNX, METROPLAN ORLANDO and FDOT will evaluate the project's potential for significant adverse impacts during both construction and operation, and to identify feasible mitigation measures for those impacts. The specific analyses to be included are land use, neighborhood character, and social conditions, economic conditions and displacement, visual and aesthetic considerations, historic resources, archaeological resources, transit (ridership, operations and maintenance), traffic, parking, air quality, noise and vibration, energy, hazardous materials, water quality, natural resources (vegetation and wildlife), construction and construction impacts, cumulative impacts, and environmental justice (disproportionate adverse impacts on minority and low-income populations). Additional potential effects will be solicited during scoping activities and considered for inclusion in the SDEIS.
Financial Management Service, Fiscal Service, Department of the Treasury.
Notice.
This is Supplement No. 26 to the Treasury Department Circular 570; 2001 Revision, published July 2, 2001 at 66 FR 35024.
Surety Bond Branch at (202) 874–6507.
Notice is hereby given that the Certificate of Authority issued by the Treasury to the above named Company, under the United States Code, Title 31, Sections 9304–9808, to qualify as an acceptable surety on Federal bonds is terminated effective today.
The Company was last listed as an acceptable surety on Federal bonds at 66 FR 35052, July 2, 2001.
With respect to any bonds, including continuous bonds, currently in force with above listed Company, bond-approving officers should secure new bonds with acceptable sureties in those instances where a significant amount of liability remains outstanding. In addition, in no event, should bonds that are continuous in nature be renewed.
The Circular may be viewed and downloaded through the Internet at
Questions concerning this notice may be directed to the U.S. Department of the Treasury, Financial Management Service, Financial Accounting and Services Division, Surety Bond Branch, 3700 East-West Highway, Room 6F07, Hyattsville, MD 20782.
In notice document 02–15348 beginning on page 41525 in the issue of Tuesday, June 18, 2002, make the following correction:
On page 41525, in the third column, in the fourth through seventh lines, the web address should read, “
Office of the Assistant Secretary for Community Planning and Development, HUD.
Proposed rule.
This proposed rule would update the list of programs and statutory authorities for which other entities may assume HUD's environmental responsibilities, and make other changes to update the regulation on assumption of HUD's environmental responsibilities. Also, the proposed rule would make conforming changes to the affected environmental provisions contained in various program regulations.
Interested persons are invited to submit comments regarding this rule to the Rules Docket Clerk, Office of General Counsel, Room 10276, Department of Housing and Urban Development, 451 Seventh Street, SW., Washington, DC 20410–0500. Communications should refer to the above docket number and title. Facsimile (FAX) comments are not acceptable. A copy of each communication submitted will be available for public inspection and copying between 7:30 a.m. and 5:30 p.m. weekdays at the above address.
Richard H. Broun, Director, Office of Community Viability, Office of Community Planning and Development, Room 7240, Department of Housing and Urban Development, 451 Seventh Street, SW., Washington, DC 20410–7000. For inquiry by phone or e-mail: contact Walter Prybyla, Deputy Director for Policy, Environmental Review Division, Office of Community Planning and Development, at (202) 708–1201, Ext. 4466 (this is not a toll-free number), or e-mail:
This proposed rule would make a number of changes to HUD regulations in 24 CFR part 58. Part 58 implements statutory authorities that permit certain entities other than HUD to assume HUD's environmental responsibilities for various HUD programs. HUD proposes to update the list of programs and statutory authorities covered by part 58. Also, the proposed rule would make conforming changes to environmental provisions in certain program regulations to include a cross-reference to part 58. In addition, the proposed rule would make conforming changes in HUD's regulations in 24 CFR part 50, which governs when HUD is responsible to perform environmental responsibilities in accordance with the National Environmental Policy Act (NEPA) (42 U.S.C. 4321
The following additional programs would be added to the list in § 58.1:
(1) Grants provided to private nonprofit organizations and housing agencies under the Supportive Housing Program and the Shelter Plus Care Program (in accordance with section 443 of the McKinney-Vento Homeless Assistance Act (42 U.S.C. 11402), as amended by section 208 of the HUD Appropriations Act for FY 2001 (Pub. L. 106–377, approved October 27, 2000)). Section 443 was amended to provide for assumption of environmental responsibilities by a State or unit of general local government regardless of whether or not it is the recipient. The rule would reflect prospective part 58 coverage of grants to nonprofit organizations and housing agencies, i.e., coverage of such grants for Fiscal Year (FY) 2001 and later;
(2) Assistance provided under the Native American Housing Assistance and Self-Determination Act of 1996 (NAHASDA) (25 U.S.C. 4101
(3) Indian housing loan guarantees under section 184 of the Housing and Community Development Act of 1992 (1992 Act) (12 U.S.C. 1715z–13a, in accordance with section 184(k) of the 1992 Act);
(4) HOPE VI grants for FY 1999 and earlier (in accordance with the HUD Appropriations Act for FY 1999 (Pub. L. 105–276, approved October 21, 1998)). Section 58.1 also would be amended to reflect amendments to the United States Housing Act of 1937 (42 U.S.C. 1437
(5) Housing Opportunities for Persons with AIDS (HOPWA) (42 U.S.C.12901
Accordingly, part 58 applies to environmental reviews for all HOPWA grants entered into after enactment of section 856(h) of HOPWA and all HOPWA grants for FY 1999 and prior years. Part 58 also applies to HOPWA formula grants for FY 2000, but does not apply to HOPWA competitive grants for FY 2000, which by their terms are not subject to subsequent changes in the HOPWA legislation. The amendment to § 58.1 would reflect this applicability.
The Rental Rehabilitation Program and the Housing Development Grant Program authorized by section 17 of the United States Housing Act of 1937 (42 U.S.C. 1437
A new § 58.1(c) also would be added to clarify that activities assisted with repayments to a revolving loan fund initially assisted with HUD funds are subject to environmental requirements only if HUD program rules treat the activity assisted with repayments as being subject to Federal requirements.
A new § 58.1(d) would clarify that the Assistant Secretary for Community Planning and Development, to the extent permitted by applicable laws and the regulations of the Council on Environmental Quality, may, for good cause and with appropriate conditions,
Changes would be made to the definitions section, § 58.2. Obsolete references to Indian Housing Authorities would be removed from the definition of “recipient” and the Indian tribe would be defined as the “recipient” for part 58 purposes with respect to assistance awarded under NAHASDA and the Section 184 Indian Housing Loan Guaranty program (Section 184 program). The specification of the Indian tribe as the “recipient” for these two programs is for part 58 purposes only. The revision reflects the Indian tribe's role in the part 58 process under section 105 of NAHASDA and the Section 184 program and would not affect the definition of “recipient” in 24 CFR part 1000 and section 4 of NAHASDA.
Further, the definition of “responsible entity” (RE) would be revised to clarify that the Indian tribe is the RE under NAHASDA whether or not a Tribally Designated Housing Entity is authorized to receive funds on behalf of the tribe and is also the RE under the Section 184 program. This definition also would state that Regional Corporations in Alaska are considered Indian tribes. The inclusion of Regional Corporations as Indian tribes reflects their specific inclusion in the definition of “Indian tribe” in section 4 of NAHASDA.
A new § 58.4(c) would clarify that under NAHASDA and the Section 184 program, Indian tribes have a choice whether or not to assume environmental responsibilities under part 58. This provision conforms to NAHASDA rules that were adopted through negotiated rulemaking (24 CFR 1000.20).
The list of NEPA-related environmental authorities in § 58.5 would be updated by replacing a reference to an obsolete HUD notice on toxic chemicals and radioactive materials with updated requirements regarding contamination. The new requirements would be similar to those identified in 24 CFR 50.3(i), which apply when HUD performs the environmental review for a project. The new provision would reflect a general HUD policy that regardless of whether the environmental reviews are performed by HUD or by the responsible entity, the same standards would be used. The proposed provision would state HUD's policy that property proposed for use in HUD programs must be free of hazardous materials, contamination, toxic chemicals and gases, and radioactive substances, where a hazard could affect the health and safety of occupants of the property or conflict with the intended utilization of the property.
Environmental reviews for multifamily housing with five or more units (including leasing) and non-residential property must include evaluation of previous site uses and other evidence of contamination on or near the site. The entity responsible for compliance with part 58 must give particular attention to any proposed site on or in the general proximity of areas that contain or may have contained hazardous waste, such as dumps, landfills, and industrial sites. This provision relies on a general performance standard, which could include a Phase I environmental assessment for toxics (American Society for Testing Materials, ASTM E 1527). Some HUD programs already require a Phase I report, which is a standard of private real estate transactions.
Section 58.11 (pertaining to legal capacity and performance) is revised to exclude the term “Indian housing” recipient and add the term “HOPWA” recipient. This section allows recipients that are not a responsible entity to object to the performance of the environmental review by a responsible entity on the basis of performance, timing, or compatibility of objectives. In such a case, HUD will review the facts to determine who will perform the environmental review.
The current provisions of § 58.22(a) would be revised and placed in paragraphs (a) through (c). The new provisions would make it clear that all participants in the development process are subject to the provisions of this part.
The proposed provisions would clarify that the limitations on activities apply not only to recipients, but also to other project participants, such as public or private nonprofit or for-profit entities and their contractors. The provisions also would make it clear that undertaking an activity that would have adverse environmental impact or limit the choice of alternatives, as well as committing non-HUD funds to such an activity, is prohibited before the request for release of funds and environmental certification have been approved.
New paragraph (c) would require that, if a recipient is considering an application from a prospective sub-recipient or beneficiary and is aware that the applicant is about to take an action within the recipient's jurisdiction that is prohibited by § 58.22(a), the recipient shall promptly notify the applicant that the recipient will take appropriate action to ensure that the objectives and procedures of NEPA are achieved. This latter provision is based on provisions in the NEPA regulations of the Council on Environmental Quality (40 CFR 1506.1(b)). The Department is concerned that there have been situations in which the environmental review process has been impaired where private participants have undertaken choice-limiting actions on pending projects with the apparent acquiescence or encouragement of recipients. These revisions would clarify that until the environmental review process and release of funds process are completed, participants other than recipients are expected to adhere to limitations on permissible actions. Further, recipients have a responsibility to respond when they are aware that an applicant is taking a prohibited action.
In addition, a new paragraph would be added to § 58.22 to reflect a statutory amendment that permits an organization, consortium, or affiliate under the Self-Help Homeownership Opportunity Program (SHOP) to advance nongrant funds to acquire land prior to completion of the environmental review process. Section 202(b) of the American Homeownership and Economic Opportunity Act of 2000 (Pub. L. 106–569, approved December 27, 2000) amended section 11(d)(2)(A) of the Housing Opportunity Program Extension Act of 1996 (42 U.S.C. 12805 note) to provide that eligible expenses under the SHOP program “may include reimbursing an organization, consortium, or affiliate upon approval of any required environmental review, for nongrant amounts of the organization, consortium, or affiliate advanced before such a review to acquire land.” This amendment permits SHOP recipients to advance nongrant amounts to acquire land before completion of the environmental review process and be reimbursed from grant amounts. However, such advances are incurred at the recipient's risk, and the Department is not under any obligation to reimburse a recipient for these acquisition costs if the subsequent environmental review is unfavorable and the land is deemed unsuitable to carry out the SHOP project. The Department also notes that advancing nongrant funds for land acquisition prior to approval of a request for release of funds is generally considered a choice-limiting action that is prohibited under § 58.22. The new provision would reflect a statutory exception to this prohibition that applies only under the SHOP program. All other forms of HUD assistance continue to have the more restrictive policy.
The proposed rule would revise the first sentence of § 58.33(b) concerning when and how the pre-submission
Three of the NEPA categorical exclusions in § 58.35 would be revised and one new exclusion would be added. With respect to rehabilitation, the rule would be revised to clarify that the categorical exclusion for minor rehabilitation applies to single-family dwellings as well as to multifamily buildings. The rule would add a reference to “single-family” residential buildings (with one to four dwelling units), whose unit density is not increased beyond four units, and whose dwelling units do not result from a conversion of use from a non-residential use. The rule also would indicate that the exclusion for an individual action on a one-to four-family dwelling would apply when there are no more than four dwelling units on any one site, whether in one or multiple buildings. This rulemaking includes conforming changes to 24 CFR part 50 pertaining to the proposed revision for the exclusions for rehabilitation and individual actions.
New § 58.35(b)(7) would exclude from NEPA and non-NEPA environmental requirements the approval of supplemental assistance (including insurance or guarantee) to complete a project previously approved under this part, if the project or activities have already been environmentally assessed by the same responsible entity, unless a reevaluation of the environmental findings is required under § 58.47(a). This statement of policy is new to this part and would conform this part to the long-held HUD policy stated at 24 CFR 50.36, when HUD itself performs the environmental responsibilities. Also, the exclusion for acquisition of an existing structure or vacant land to be retained for the same use would be revised to clarify that acquisition includes leasing, and a conforming change would be made to 24 CFR part 50. The homeownership assistance exclusion in § 58.35(b)(5) covers dwelling units under construction as well as existing units, while the similar exclusion in § 50.19(b)(5) covers only existing construction; therefore, this rule amends § 50.19(b)(5) to cover units under construction.
Sections 58.34(b) and 58.35(d) would be revised to clarify that the responsible entity's documentation of exemptions and exclusions must be made prior to committing funds for or undertaking the exempt or excluded activities.
In § 58.45, revised language would clarify that the periods provided for certain public comment periods are minimum required periods. Section 58.45 also has been reformatted into a chart for easier reading.
Sections 58.72 and 58.75 would be revised to conform to the changes proposed in § 58.22 “Limitations on actions pending clearance.”
The Department also proposes to add language to certain program regulations for programs that are subject to part 58 procedures. They are part 574 (Housing Opportunities for Persons with AIDS or HOPWA), part 582 (Shelter Plus Care), part 583 (Supportive Housing Program), and part 970 (Public Housing Program—Demolition or Disposition of Public Housing Projects). The added language makes conforming amendments for certain program regulations that do not currently adequately reflect the applicability of part 58 procedures.
A Finding of No Significant Impact with respect to the environment for this rule has been made in accordance with HUD regulations at 24 CFR part 50, which implement section 102(2)(C) of the National Environmental Policy Act of 1969. The Finding of No Significant Impact is available for public inspection between 7:30 a.m. and 5:30 p.m. weekdays in the Office of the Rules Docket Clerk, Office of the General Counsel, Department of Housing and Urban Development, Room 10276, 451 Seventh Street, SW., Washington, DC 20410–5000.
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531–1538) establishes requirements for Federal agencies to assess the effects of their regulatory actions on State, local, and tribal governments and the private sector. This proposed rule does not impose a Federal mandate on any State, local, or tribal governments, or on the private sector, within the meaning of the Unfunded Mandates Reform Act of 1995.
The Secretary, in accordance with the Regulatory Flexibility Act (5 U.S.C. 605(b)), has reviewed this rule before publication and by approving it certifies that this rule would not have a significant economic impact on a substantial number of small entities. There are no anti-competitive discriminatory aspects of the rule with regard to small entities, and there are not any unusual procedures that would need to be complied with by small entities. Although HUD has determined that this proposed rule would not have a significant economic impact on a substantial number of small entities, HUD welcomes comments regarding any less burdensome alternatives to this rule that will meet HUD's objectives as described in this preamble.
This proposed rule does not have Federalism implications and does not impose substantial direct compliance costs on State and local governments or preempt State law within the meaning of the Executive Order.
Environmental protection, Community Development Block Grants, Public Housing Capital Fund Grants, HOPE VI Program Grants, Indian Housing Block Grants, HOME Investment Partnerships Grants, Housing Opportunities for Persons with AIDS Grants, Shelter Plus Care Grants, Supportive Housing Program Grants, Self-Help Homeownership Opportunity Program Grants, Environmental Impact Statements, Environmental Assessments, Grant programs—housing and community development, Reporting and recordkeeping requirements.
AIDS, Community facilities, Disabled, Emergency shelter, Grant programs—health programs, Grant programs—housing and community development, Grant programs—social programs, Homeless, Housing, Low and moderate income housing, Nonprofit organizations, Rent subsidies, Reporting and recordkeeping requirements, Technical assistance.
Homeless, Rent subsidies, Reporting and recordkeeping requirements, Supportive housing programs—housing and community development, Supportive services.
Homeless, Rent subsidies, Reporting and recordkeeping requirements, Supportive housing programs—housing
Grant programs—housing and community development, Loan programs—housing and community development, Public housing, Reporting and recordkeeping requirements.
The Catalog of Federal Domestic Assistance numbers are 14.235, 14.238, 14.241, 14.850, and 14.866.
Accordingly, for the reasons described in the preamble, the Department proposes to amend 24 CFR parts 50, 58, 574, 582, 583, and 970 as follows:
1. The authority citation for part 50 continues to read as follows:
42 U.S.C. 3535(d) and 4332; and Executive Order 11991, 3 CFR, 1977 Comp., p. 123.
2. Amend § 50.19 by revising paragraph (b)(15) to read as follows:
(b) * * *
(15) Activities to assist homebuyers to purchase existing dwelling units or dwelling units under construction, including closing costs and downpayment assistance, interest buydowns, and similar activities that result in the transfer of title.
3. Amend § 50.20 by revising paragraphs (a)(2), (a)(3), and (a)(4), to read as follows:
(a) * * *
(2) Rehabilitation of buildings and improvements when the following conditions are met:
(i) In the case of single-family buildings (with one to four units), unit density is not increased beyond four units and the dwellings do not result from a conversion of use from a non-residential use;
(ii) In the case of multifamily residential buildings:
(A) Unit density is not changed more than 20 percent;
(B) The project does not involve changes in land use from non-residential to residential or from residential to non-residential; and
(C) The estimated cost of rehabilitation is less than 75 percent of the total estimated cost of replacement after rehabilitation.
(iii) In the case of non-residential structures, including commercial, industrial, and public buildings:
(A) The facilities and improvements are in place and will not be changed in size or capacity by more than 20 percent; and
(B) The activity does not involve a change in land use, such as from non-residential to residential, commercial to industrial, or from one industrial use to another.
(3)(i) An individual action on up to four dwelling units where there is a maximum of four units on any one site. The units can be four one-unit buildings or one four-unit building or any combination in between; or
(ii) An individual action on a project of five or more housing units developed on scattered sites when the sites are more than 2,000 feet apart and there are not more than four housing units on any one site.
(4) Acquisition (including leasing) or disposition of, or equity loans on an existing structure, or acquisition (including leasing) of vacant land provided that the structure or land acquired, financed, or disposed of will be retained for the same use.
4. The authority citation for part 58 is revised to read as follows:
12 U.S.C. 1707 note, 1715z–13a(k); 25 U.S.C. 4115; 42 U.S.C. 1437x, 3535(d), 3547, 4332, 4852, 5304(g), 11402, 12838, and 12905(h); title II of Pub. L. 105–276; E.O. 11514 as amended by E.O. 11991, 3 C.F.R. 1977 Comp. p 123.
5. Amend § 58.1 as follows:
a. Removing paragraph (b)(2) and designating it as “reserved”;
b. Redesignating paragraph (b)(3) as paragraph (b)(3)(i) and revising newly redesignated paragraph (b)(3)(i);
c. Adding paragraph (b)(3)(ii);
d. Revising paragraph (b)(6);
e. Removing “and” at the end of paragraph (b)(8);
f. Replacing the period at the end of paragraph (b)(9) with a semicolon; and
g. Adding new paragraphs (b)(10), (11), (12), (c), and (d).
The revisions and additions read as follows:
(b) * * *
(2) [Reserved]
(3)(i) Grants to States and units of general local government under the Emergency Shelter Grant Program, Supportive Housing Program (and its predecessors, the Supportive Housing Demonstration Program (both Transitional Housing and Permanent Housing for Homeless Persons with Disabilities) and Supplemental Assistance for Facilities to Assist the Homeless), Shelter Plus Care Program, Safe Havens for Homeless Individuals Demonstration Program, and Rural Homeless Housing Assistance, authorized by Title IV of the McKinney-Vento Homeless Assistance Act, in accordance with section 443 (42 U.S.C. 11402);
(ii) Grants beginning with fiscal year 2001 to private nonprofit organizations and housing agencies under the Supportive Housing Program and Shelter Plus Care Program authorized by Title IV of the McKinney-Vento Homeless Assistance Act, in accordance with section 443 (42 U.S.C. 11402);
(6)(i) Public Housing Programs under Title I of the United States Housing Act of 1937, including HOPE VI grants authorized under section 24 of the Act for fiscal year 2000 and later, in accordance with section 26 (42 U.S.C. 1437x);
(ii) Grants for the revitalization of severely distressed public housing (HOPE VI) for fiscal year 1999 and prior years, in accordance with Title II of the Departments of Veterans Affairs and Housing and Urban Development, and Independent Agencies Appropriations Act, 1999 (Pub. L. 105–276, approved October 21, 1998); and
(iii) Assistance administered by a public housing agency under section 8 of the United States Housing Act of 1937, except for assistance provided under part 886 of this title, in accordance with section 26 (42 U.S.C. 1437x);
(10) Assistance provided under the Native American Housing Assistance and Self-Determination Act of 1996 (NAHASDA), in accordance with section 105 (25 U.S.C. 4115);
(11) Indian Housing Loan Guarantees authorized by section 184 of the Housing and Community Development Act of 1992, in accordance with section 184(k) (12 U.S.C. 1715z–13a(k)); and
(12) Grants for Housing Opportunities for Persons with AIDS (HOPWA) under the AIDS Housing Opportunity Act, as follows: competitive grants beginning with fiscal year 2001 and all formula
(c) When HUD assistance is used to help fund a revolving loan fund that is administered by a recipient or another party, the activities initially receiving assistance from the fund are subject to the requirements in this part. Future activities receiving assistance from the revolving loan fund, after the fund has received loan repayments, are subject to the environmental review requirements if the rules of the HUD program that initially provided assistance to the fund continue to treat the activities as subject to the Federal requirements. If the HUD program treats the activities as not being subject to any Federal requirements, then the activities cease to become Federally funded activities and the provisions of this part do not apply.
(d) To the extent permitted by applicable laws and the applicable regulations of the Council on Environmental Quality, the Assistant Secretary for Community Planning and Development may, for good cause and with appropriate conditions, approve waivers and exceptions or establish criteria for exceptions from the requirements of this part.
6. Amend § 58.2 as follows:
a. Revising paragraph (a)(5)(v);
b. Removing “and” at the end of paragraph (a)(5)(vii);
c. Adding new paragraphs (a)(5)(ix) and (x);
d. Revising paragraphs (a)(6) and (a)(7), introductory text, (a)(7)(i), and (a)(7)(ii), introductory text;
e. Removing paragraphs (a)(7)(ii)(D) and (E).
The revisions and additions read as follows:
(a) * * *
(5) * * *
(v) With respect to Public Housing Programs under § 58.1(b)(6)(i), fiscal year 1999 and prior HOPE VI grants under § 58.1(b)(6)(ii) or Section 8 assistance under § 58.1(b)(6)(iii), a public housing agency;
(vii) With respect to the FHA Multifamily Housing Finance Agency Pilot Program under § 58.1(b)(8), a qualified housing finance agency;
(viii) With respect to the Self-Help Homeownership Opportunity Program under § 58.1(b)(9), any direct grantee of HUD;
(ix) With respect to NAHASDA assistance under § 58.1(b)(10) and the Section 184 Indian Housing Loan Guarantee program under § 58.1(b)(11), the Indian tribe.
(x) With respect to the Shelter Plus Care and Supportive Housing Programs under § 58.1(b)(3)(ii), nonprofit organizations and other entities.
(6)
(7)
(i) With respect to environmental responsibilities under programs listed in § 58.1(b)(1), (2), (3)(i), (4), and (5), a recipient under the program.
(ii) With respect to environmental responsibilities under the programs listed in § 58.1(b)(3)(ii) and (6) through (12), a State, unit of general local government, Indian tribe or Alaska Native Village, when it is the recipient under the program. Under the Native American Housing Assistance and Self-Determination Act of 1996 (25 U.S.C. 4101
7. Amend § 58.4 as follows:
a. Revising paragraph (b)(2);
b. Removing paragraph (b)(3); and
c. Adding a new paragraph (c).
The revision and addition read as follows:
(b) * * *
(2) States must exercise HUD's responsibilities in accordance with § 58.18, with respect to approval of a unit of local government's environmental certification and RROF for a HUD assisted project funded through the State. Approval by the State of a unit of local government's certification and RROF satisfies the Secretary's responsibilities under NEPA and the related laws cited in § 58.5.
(c)
8. Amend § 58.5 by revising paragraphs (a)(1) and (i) to read as follows:
(a)
(i)
(2) The environmental review of multifamily housing with five or more dwelling units (including leasing), or non-residential property, must include the evaluation of previous uses of the site or other evidence of contamination on or near the site, to assure that the occupants of proposed sites are not adversely affected by any of the hazards listed in § 58.5(i)(1).
(3) Particular attention should be given to any proposed site on or in the general proximity of such areas as dumps, landfills, industrial sites, or other locations that contain, or may have contained, hazardous wastes.
(4) The responsible entity shall use current techniques by qualified professionals to undertake investigations determined necessary.
9. Revise § 58.10 to read as follows:
In accordance with the provisions of law cited in § 58.1(b), except as otherwise provided in § 58.4(c), the responsible entity must assume the environmental responsibilities for projects under programs cited in § 58.1(b). In doing so, the responsible entity must comply with the provisions of NEPA and the CEQ regulations contained in 40 CFR parts 1500 through 1508, including the requirements set forth in this part.
10. Amend § 58.11 by revising paragraph (b) to read as follows:
(b) If a public housing, special project, HOPWA, Supportive Housing, Shelter Plus Care, or Self-Help Homeownership Opportunity recipient that is not a responsible entity objects to the non-recipient responsible entity conducting the environmental review on the basis of performance, timing, or compatibility of objectives, HUD will review the facts to determine who will perform the environmental review.
11. Remove and reserve § 58.17 to read as follows.
12. Revise § 58.18 to read as follows:
States that elect to administer a HUD program shall ensure that the program complies with the provisions of this part. The State must:
(a) Designate the State agency or agencies that will be responsible for carrying out the requirements and administrative responsibilities set forth in subpart H of this part and which will:
(1) Develop a monitoring and enforcement program for post-review actions on environmental reviews and monitor compliance with any environmental conditions included in the award.
(2) Receive public notices, RROFs and certifications from recipients pursuant to §§ 58.70 and 58.71; accept objections from the public and from other agencies (§ 58.73); and perform other related responsibilities regarding releases of funds.
(b) Fulfill the State role in subpart H relative to the time period set for the receipt and disposition of comments, objections and appeals (if any) on particular projects.
13. Revise § 58.22 to read as follows:
(a) Neither a recipient nor any participant in the development process, including public or private nonprofit or for-profit entities, or any of their contractors, may commit HUD assistance under a program listed in § 58.1(b) on an activity or project until HUD or the state has approved the recipient's RROF and the related certification from the responsible entity. In addition, until the RROF and the related certification have been approved, neither a recipient nor any participant in the development process may commit non-HUD funds on or undertake an activity or project under a program listed in § 58.1(b) if the activity or project would have an adverse environmental impact or limit the choice of reasonable alternatives.
(b) If a project or activity is exempt under § 58.34, or is categorically excluded (except in extraordinary circumstances) under § 58.35(b), no RROF is required and the recipient may undertake the activity immediately after the responsible entity has documented its determination as required in § 58.34(b) and § 58.35(d), but the recipient must comply with applicable requirements under § 58.6.
(c) If a recipient is considering an application from a prospective subrecipient or beneficiary and is aware that the prospective subrecipient or beneficiary is about to take an action within the jurisdiction of the recipient that is prohibited by § 58.22(a), then the recipient will take appropriate action to ensure that the objectives and procedures of NEPA are achieved.
(d) An option agreement on a proposed site or property is allowable prior to the completion of the environmental review if the option agreement is subject to a determination by the recipient on the desirability of the property for the project as a result of the completion of the environmental review in accordance with this part and the cost of the option is a nominal portion of the purchase price. There is no constraint on the purchase of an option by third parties that have not been selected for HUD funding, have no responsibility for the environmental review and have no say in the approval or disapproval of the project.
(e)
(f)
14. Amend § 58.33 by revising paragraph (b) to read as follows:
(b) If funds are needed on an emergency basis and adherence to separate comment periods would prevent the giving of assistance during a Presidentially declared disaster, or during a local emergency that has been declared by the chief elected official of the responsible entity who has proclaimed that there is an immediate need for public action to protect the public safety, the combined Notice of FONSI and Notice of Intent to Request Release of Funds (NOI/RROF) may be disseminated and/or published simultaneously with the submission of the RROF. The combined Notice of FONSI and NOI/RROF shall state that the funds are needed on an emergency basis due to a declared disaster and that the comment periods have been combined. The Notice shall also invite commenters to submit their comments to both HUD and the responsible entity issuing the notice to assure that these comments will receive full consideration.
15. Amend § 58.34 by revising paragraph (b) to read as follows:
(b) A recipient does not have to submit an RROF and certification, and no further approval from HUD or the State will be needed by the recipient for
16. Amend § 58.35 as follows:
a. Redesignating paragraphs (a)(3)(i) and (a)(3)(ii) as paragraphs (a)(3)(ii) and (a)(3)(iii);
b. Adding a new paragraph (a)(3)(i);
c. Revising newly redesignated paragraph (a)(3)(ii)(B);
d. Revising paragraphs (a)(4) and (a)(5); and
e. Adding a new paragraph (b)(7) and adding a last sentence to the end of paragraph (d).
The additions and revisions read as follows:
(a) * * *
(3) * * *
(i) In the case of single family residential buildings (with one to four units), unit density is not increased beyond four units and the dwellings do not result from a conversion of use from a non-residential use.
(ii) * * *
(A) * * *
(B) The project does not involve changes in land use from non-residential to residential or from residential to non-residential; and
(C) * * *
(4)(i) An individual action on up to four dwelling units where there is a maximum of four units on any one site. The units can be four one-unit buildings or one four-unit building or any combination in between; or
(ii) An individual action on a project of five or more housing units developed on scattered sites when the sites are more than 2,000 feet apart and there are not more than four housing units on any one site.
(5) Acquisition (including leasing) or disposition of, or equity loans on an existing structure, or acquisition (including leasing) of vacant land provided that the structure or land acquired, financed or disposed of will be retained for the same use.
(b) * * *
(7) Approval of supplemental assistance (including insurance or guarantee) to a project previously approved under this part, if the approval is made by the same responsible entity that conducted the environmental review on the original project and re-evaluation of the environmental findings is not required under § 58.47.
(d) Documentation in the ERR must be made prior to the commitment of funds or to undertaking any of the activities listed in § 58.35.
17. Revise § 58.45 to read as follows:
Required notices must afford the public the following minimum comment periods, counted in accordance with § 58.21:
(a) Notice of Finding of No Significant Impact (FONSI): 15 days when published or, if no publication, 18 days when mailing and posting.
(b) Notice of Intent to Request Release of Funds (NOI–RROF): 7 days when published or, if no publication, 10 days when mailing and posting.
(c) Concurrent or combined notices: 15 days when published or, if no publication, 18 days when mailing and posting.
18. Amend § 58.72 by revising paragraph (b) to read as follows:
(b) HUD (or the State) may disapprove a certification and RROF if it has knowledge that the responsible entity or other participants in the development process have not complied with the items in § 58.75, or that the RROF and certification are inaccurate.
19. Amend § 58.75 by revising paragraph (e) to read as follows:
(e) The recipient or other participants in the development process have committed funds, incurred costs or undertaken activities not authorized by this part before release of funds and approval of the environmental certification by HUD (or the State).
20. The authority citation for part 574 continues to read as follows:
42 U.S.C. 3535(d) and 12901–12912.
21. Revise § 574.510 to read as follows:
(a) Activities under this part are subject to HUD environmental regulations in part 58 of this title, except that HUD will perform an environmental review in accordance with part 50 of this title for any competitive grant for fiscal year 2000.
(b) The recipient, its project partners and their contractors may not acquire, rehabilitate, convert, lease, repair, dispose of, demolish or construct property for a project under this part, or commit or expend HUD or local funds for such eligible activities under this part, until the responsible entity (as defined in § 58.2 of this title) has completed the environmental review procedures required by part 58 and the environmental certification and RROF have been approved (or HUD has performed an environmental review and the recipient has received HUD approval of the property). HUD will not release grant funds if the recipient or any other party commits grant funds (i.e., incurs any costs or expenditures to be paid or reimbursed with such funds) before the recipient submits and HUD approves its RROF (where such submission is required).
(c) For activities under a grant to a nonprofit entity that would generally be subject to review under part 58, HUD may make a finding in accordance with § 58.11(d) and may itself perform the environmental review under the provisions of part 50 of this title if the recipient nonprofit entity objects in writing to the responsible entity's (RE) performing the review under part 58. Irrespective of whether the RE in accord with part 58 (or HUD in accord with part 50) performs the environmental review, the recipient shall supply all available, relevant information necessary for the RE (or HUD, if applicable) to perform for each property any environmental review required by this part. The recipient also shall carry out mitigating measures required by the RE (or HUD, if applicable) or select alternate eligible property.
22. The authority citation for part 582 continues to read as follows:
42 U.S.C. 3535(d) and 11403–11407b.
23. Revise § 582.230 to read as follows:
(a) Activities under this part are subject to HUD environmental regulations in part 58 of this title, except that HUD will perform an
(b) The recipient, its project partners and their contractors may not acquire, rehabilitate, convert, lease, repair, dispose of, demolish or construct property for a project under this part, or commit or expend HUD or local funds for such eligible activities under this part, until the responsible entity (as defined in § 58.2 of this title) has completed the environmental review procedures required by part 58 and the environmental certification and RROF have been approved or HUD has performed an environmental review under part 50 and the recipient has received HUD approval of the property. HUD will not release grant funds if the recipient or any other party commits grant funds (i.e., incurs any costs or expenditures to be paid or reimbursed with such funds) before the recipient submits and HUD approves its RROF (where such submission is required).
24. The authority citation for part 583 continues to read as follows:
42 U.S.C. 3535(d) and 11389.
25. Revise § 583.230 to read as follows:
(a) Activities under this part are subject to HUD environmental regulations in part 58 of this title, except that HUD will perform an environmental review in accordance with part 50 of this title prior to its approval of any conditionally selected applications for fiscal year 2000 and prior years that were received directly from private nonprofit entities and governmental entities with special or limited purpose powers. For activities under a grant that generally would be subject to review under part 58, HUD may make a finding in accordance with § 58.11(d) and may itself perform the environmental review under the provisions of part 50 of this title if the recipient objects in writing to the responsible entity (RE) performing the review under part 58. Irrespective of whether the RE in accord with part 58 (or HUD in accord with part 50) performs the environmental review, the recipient shall supply all available, relevant information necessary for the RE (or HUD, if applicable) to perform for each property any environmental review required by this part. The recipient also shall carry out mitigating measures required by the RE (or HUD, if applicable) or select alternate eligible property. HUD may eliminate from consideration any application that would require an Environmental Impact Statement (EIS).
(b) The recipient, its project partners and their contractors may not acquire, rehabilitate, convert, lease, repair, dispose of, demolish or construct property for a project under this part, or commit or expend HUD or local funds for such eligible activities under this part, until the RE (as defined in § 58.2 of this title) has completed the environmental review procedures required by part 58 and the environmental certification and RROF have been approved or HUD has performed an environmental review under part 50 and the recipient has received HUD approval of the property. HUD will not release grant funds if the recipient or any other party commits grant funds (i.e., incurs any costs or expenditures to be paid or reimbursed with such funds) before the recipient submits and HUD approves its RROF (where such submission is required).
26. The authority citation for part 970 continues to read as follows:
42 U.S.C. 1437p and 3535(d).
27. Amend § 970.4 by revising paragraph (b), removing paragraph (c) and designating it as reserved, to read as follows:
(b)
(2) The PHA, its project partners and their contractors may not acquire, rehabilitate, convert, lease, repair, dispose of, demolish or construct property for a project under this part, or commit or expend HUD or local funds for such eligible activities under this part, until the responsible entity (as defined in § 58.2 of this title) has completed the environmental review procedures required by part 58 and the environmental certification and RROF have been approved or HUD has performed an environmental review under part 50 and has notified the PHA in writing of environmental approval of the property. HUD will not release grant funds if the recipient or any other party commits grant funds (i.e., incurs any costs or expenditures to be paid or reimbursed with such funds) before the recipient submits and HUD approves its RROF (where such submission is required).
(3) Irrespective of whether the RE in accord with part 58 (or HUD in accord with part 50) performs the environmental review, the PHA shall supply all available, relevant information necessary for the RE (or HUD, if applicable) to perform for each property any environmental review required by this part. The PHA also shall carry out mitigating measures required by the RE (or HUD, if applicable) or select alternate eligible property.
(4) Demolition or disposition (including any related replacement housing plan) will be aggregated in accordance with § 58.32 to meet the environmental review requirements. If the site of the replacement housing is unknown at the time of submission of the application for demolition or disposition, the application must contain a certification that the applicant agrees to assist the responsible entity to comply with part 58 (or HUD to comply with part 50, if applicable) of this title, and that the applicant shall obtain environmental clearance of the replacement housing in accordance with
(c) [Reserved]