8–8–02 Thursday Vol. 67 No. 153 August 8, 2002 Pages 51459–51750
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1 II Federal Register / Vol. 67, No. 153 / Thursday, August 8, 2002
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2 III
Contents Federal Register Vol. 67, No. 153
Thursday, August 8, 2002
Agricultural Marketing Service Grants and cooperative agreements; availability, etc.: RULES Special education and rehabilitative services— Cherries (tart) grown in— Alternative Financing Program Technical Assistance, Various States, 51697–51715 51743–51745 State Program Improvement Program, 51747–51750 Agriculture Department Meetings: See Agricultural Marketing Service Educational Excellence for Hispanic Americans, See Animal and Plant Health Inspection Service President’s Advisory Commission, 51549 See Forest Service Energy Department Animal and Plant Health Inspection Service See Federal Energy Regulatory Commission RULES See Southeastern Power Administration Plant-related quarantine, domestic: See Western Area Power Administration Citrus canker, 51459 NOTICES Electricity export and import authorizations, permits, etc.: Arts and Humanities, National Foundation Coral Power, L.L.C., 51549 See National Foundation on the Arts and the Humanities Grants and cooperative agreements; availability, etc.: Rare Isotope Accelerator research and development Centers for Disease Control and Prevention projects, 51550–51551 NOTICES Meetings: Environmental Protection Agency Fetal Alcohol Syndrome and Fetal Alcohol Effect RULES National Task Force, 51584 Air pollution control; new motor vehicles and engines: Patent licenses; non-exclusive, exclusive, or partially Heavy-duty diesel engines and vehicles; 2004 and later exclusive: model year emission standards; nonconformance Antibody Systems, Inc., 51584–51585 penalties, 51464–51478 Reports and guidance documents; availability, etc.: Air quality implementation plans; approval and National Health and Nutrition Examination Survey III; promulgation; various States: DNA specimens; samples use and cost schedule; North Carolina, 51461–51464 guidelines, 51585–51589 Hazardous waste program authorizations: Delaware, 51478–51480 Children and Families Administration Air programs: See Community Services Office Transportation conformnity; initial STP submissions 18- month requirement and newly designated Commerce Department nonattainment areas grace period [Editorial Note: See Foreign-Trade Zones Board This document, published at 67 FR 50808 in the See International Trade Administration Federal Register of Tuesday, August 6, 2002, was See National Institute of Standards and Technology erroneously listed with ’’Michigan’’ at the beginning See National Oceanic and Atmospheric Administration of its entry in that issue’s table of contents. This document actually applies to all States, not just Community Services Office Michigan.] NOTICES PROPOSED RULES Grants and cooperative agreements; availability, etc.: Air quality implementation plans: Community Economic Development Program, 51669– Preparation, adoption, and submittal— 51696 State implementation plan procedural regulations; amendment, 51525–51527 Customs Service Air quality implementation plans; approval and promulgation; various States: PROPOSED RULES North Carolina, 51527 Vessels in foreign and domestic trades: Superfund program: Manifest information; advance and accurate presentation National oil and hazardous substances contingency prior to lading at foreign port, 51519–51524 plan— National priorities list update, 51528–51530 Education Department Water pollution; effluent guidelines for point source PROPOSED RULES categories: Postsecondary education: Construction and development; storm water discharges Institutional eligibility; various loan and grant programs, Meetings; Water Docket location change, 51527–51528 51717–51741 NOTICES Agency information collection activities: Executive Office of the President Proposed collection; comment request, 51548–51549 See Trade Representative, Office of United States
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Federal Aviation Administration Louisiana RULES Bollinger Shipyards Lockport, LLC; shipbuilding, Airworthiness directives: 51534–51535 Airbus; correction, 51459–51461 Missouri Kawasaki Motors Manfacturing Corp., U.S.A.; small, Federal Communications Commission industrial diesel engines and industrial robot NOTICES components manufacturing facility, 51535 Agency information collection activities: North Carolina, 51535 Proposed collection; comment request, 51581 Common carrier services: Forest Service Wireline Competition Bureau; routing and rating of traffic by incumbent local exchange carriers; comment NOTICES request, 51581–51583 Environmental statements; notice of intent: Lolo National Forest, MT, 51533–51534 Federal Election Commission Meetings: NOTICES Resource Advisory Committees— Meetings; Sunshine Act, 51583 South Gifford Pinchot National Forest, 51534
Federal Energy Regulatory Commission Health and Human Services Department PROPOSED RULES See Centers for Disease Control and Prevention Practice and procedure: See Community Services Office Market-based rate contracts for wholesale sales of electric See Food and Drug Administration energy by public utilities; standard of review for See Health Resources and Services Administration changes, 51516–51519 See National Institutes of Health NOTICES NOTICES Agency information collection activities: Federal claims; interest rates on overdue debts, 51584 Submission for OMB review; comment request, 51551– 51552 Electric rate and corporate regulation filings: Health Resources and Services Administration Genova Oklahoma I, LLC, et al., 51552–51553 NOTICES Electric rate and corporate regulation findings: Meetings: Wisconsin Public Service Corp. et al., 51553–51556 Rural Health National Advisory Committee, 51590 Hydroelectric applications, 51556–51564 Meetings: Housing and Urban Development Department Public meeting schedule change, 51564 NOTICES Applications, hearings, determinations, etc.: Agency information collection activities: FirstEnergy Solutions Corp. et al., 51552 Proposed collection; comment request, 51596–51597 Federal Reserve System NOTICES Interior Department Banks and bank holding companies: See Fish and Wildlife Service Change in bank control, 51583 See Land Management Bureau Formations, acquisitions, and mergers, 51583–51584 Internal Revenue Service Federal Retirement Thrift Investment Board NOTICES NOTICES Agency information collection activities: Meetings; Sunshine Act, 51584 Proposed collection; comment request, 51620–51621 Electronic tax return preparation and filing services for Fish and Wildlife Service taxpayers; intent to enter an agreement with PROPOSED RULES consortium of companies; comment request, 51621– Endangered and threatened species: 51624 Critical habitat designations— Gulf sturgeon, 51530–51532 International Trade Administration Food and Drug Administration NOTICES NOTICES Antidumping: Meetings: Barium chloride from— Harmonisation International Conference— China, 51535–51536 Washington, DC; preparation, including common Carbon and alloy steel wire rod from— technical document implementation progress, Ukraine, 51536 51589–51590 Saccharin from— China, 51536–51539 Foreign-Trade Zones Board Silicon metal from— NOTICES Brazil, 51539–51545 Applications, hearings, determinations, etc.: Applications, hearings, determinations, etc.: Illinois Associated Universities, Inc., 51545–51546 Archer Daniels Midland, Inc.; natural vitamin E University of— manufacturing facilities, 51534 Vermont, 51546
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International Trade Commission National Oceanic and Atmospheric Administration NOTICES RULES Import investigations: Fishery conservation and management: Cold-rolled steel products from— Alaska; fisheries of Exclusive Economic Zone— Various countries, 51598 Pacific Ocean perch, 51499 Shallow-water species fishery by vessels using trawl Justice Department gear in Gulf of Alaska, 51499–51500 See Justice Programs Office PROPOSED RULES NOTICES Endangered and threatened species: Agency information collection activities: Critical habitat designations— Proposed collection; comment request, 51598–51599 Gulf sturgeon, 51530–51532 Pollution control; consent judgments: NOTICES Lockheed Martin Corp. et al., 51599–51600 Environmental statements; availability, etc.: Quaker State Corp., 51599 Puget Sound chinook populations harvest; resource management plan, 51547–51548 Justice Programs Office NOTICES Nuclear Regulatory Commission Agency information collection activities: PROPOSED RULES Submission for OMB review; comment request, 51600– Federal Advisory Committee Act regulations, 51501–51507 51601 NOTICES Meetings: Labor Department Byproduct material, medical use; workshop, 51605 Applications, hearings, determinations, etc.: See Occupational Safety and Health Administration NOTICES Entergy Nuclear Indian Point 2, LLC, et al., 51602 Grants and cooperative agreements; availability, etc.: Indiana Michigan Power Co., 51602–51605 Philippines and Pakistan; economic opportunity and Occupational Safety and Health Administration income security expansion through workforce education, skills training, employment creation, etc. PROPOSED RULES Correction, 51601 Occupational safety and healthy standards: 2-methoxyethanol, 2-ethoxyethanol, and acetates (glycol Land Management Bureau ethers); occupational exposure, 51524–51525 NOTICES Office of United States Trade Representative Survey plat filings: See Trade Representative, Office of United States Oregon/Washington, 51597–51598 Public Health Service National Foundation on the Arts and the Humanities See Centers for Disease Control and Prevention NOTICES See Food and Drug Administration Agency information collection activities: See Health Resources and Services Administration Proposed collection; comment request, 51601–51602 See National Institutes of Health
National Institute of Standards and Technology Research and Special Programs Administration NOTICES RULES Infrared spectral library; update; comment request, 51546 Hazardous materials: Inventions, Government-owned; availability for licensing, Hazardous materials transportation— 51546–51547 DOT specification cylinders; maintenance, requalification, repair, and use requirements, National Institutes of Health 51625–51668 NOTICES Meetings: Securities and Exchange Commission National Center for Complementary and Alternative PROPOSED RULES Medicine, 51590–51591 Securities: National Center for Research Resources, 51591 Quarterly and annual reports; certification of disclosure National Eye Institute, 51591–51592 Supplemental information; comment request, 51508– National Heart, Lung, and Blood Institute, 51592 51509 National Human Genome Research Institute, 51592 Regulation analyst certification, 51510–51516 National Institute of Arthritis and Musculoskeletal and NOTICES Skin Diseases, 51594 Self-regulatory organizations; proposed rule changes: National Institute of Mental Health, 51595 American Stock Exchange LLC, 51609–51612 National Institute of Neurological Disorders and Stroke, Chicago Stock Exchange, Inc., 51612–51614 51593–51594 New York Stock Exchange, Inc., 51614–51617 National Institute of Nursing Research, 51592–51593 Applications, hearings, determinations, etc.: National Institute on Alcohol Abuse and Alcoholism, Public utility holding company filings, 51606–51609 51594–51595 National Institute on Deafness and Other Communication Small Business Administration Disorders, 51594 NOTICES National Library of Medicine, 51595–51596 Disaster loan areas: Scientific Review Center, 51596 Colorado, 51618
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Micronesia, 51618 Western Area Power Administration Texas, 51618 NOTICES Power rates: Southeastern Power Administration Parker-Davis Project, 51580–51581 NOTICES Power rates: Georgia-Alabama-South Carolina rates, 51564–51578 Separate Parts In This Issue Jim Woodruff Project, 51578–51580
State Department Part II NOTICES Transportation Department, Research and Special Programs Meetings: Administration, 51625–51668 Overseas Buildings Operations Industry Advisory Panel, 51618 Part III Children and Families Administration, Community Services Surface Transportation Board Office, 51669–51696 NOTICES Railroad operation, acquisition, construction, etc.: Part IV Rutland Line, Inc., 51619–51620 Agriculture Department, Agricultural Marketing Service, Sidney & Lowe Railroad, 51620 51697–51715
Trade Representative, Office of United States Part V NOTICES Education Department, 51717–51741 Tariff-rate quota amount determinations: Raw cane sugar, refined sugar, and sugar-containing Part VI products, 51618–51619 Education Department, 51743–51745 Transportation Department Part VII See Federal Aviation Administration Education Department, 51747–51750 See Research and Special Programs Administration See Surface Transportation Board See Transportation Security Administration Reader Aids Transportation Security Administration Consult the Reader Aids section at the end of this issue for RULES phone numbers, online resources, finding aids, reminders, Practice and procedure: and notice of recently enacted public laws. Investigative and enforcement procedures, 51480–51499 To subscribe to the Federal Register Table of Contents LISTSERV electronic mailing list, go to http:// Treasury Department listserv.access.gpo.gov and select Online mailing list See Customs Service archives, FEDREGTOC-L, Join or leave the list (or change See Internal Revenue Service settings); then follow the instructions.
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CFR PARTS AFFECTED IN THIS ISSUE
A cumulative list of the parts affected this month can be found in the Reader Aids section at the end of this issue.
7 CFR 301...... 51459 930...... 51700 10 CFR Proposed Rules: 7...... 51501 14 CFR 39...... 51459 17 CFR Proposed Rules: 232...... 51508 240...... 51508 242...... 51510 249...... 51508 18 CFR Proposed Rules: 2...... 51516 19 CFR Proposed Rules: 4...... 51519 113...... 51519 29 CFR Proposed Rules: 1910...... 51524 34 CFR Proposed Rules: 600...... 51720 668...... 51720 673...... 51720 675...... 51720 682...... 51720 685...... 51720 690...... 51720 694...... 51720 40 CFR 52...... 51461 86...... 51464 271...... 51478 Proposed Rules: 51...... 51525 52...... 51527 122...... 51527 300...... 51528 450...... 51527 49 CFR 107...... 51626 171...... 51626 172...... 51626 173...... 51626 177...... 51626 178...... 51626 179...... 51626 180...... 51626 1503...... 51480 50 CFR 679 (2 documents) ...... 51499 Proposed Rules: 17...... 51530 226...... 51530
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Rules and Regulations Federal Register Vol. 67, No. 153
Thursday, August 8, 2002
This section of the FEDERAL REGISTER 301 by removing a portion of DEPARTMENT OF TRANSPORTATION contains regulatory documents having general Hillsborough County, FL, from the list applicability and legal effect, most of which of quarantined areas in § 301.75–4(a). Federal Aviation Administration are keyed to and codified in the Code of The regulations require that an area be Federal Regulations, which is published under free from citrus canker for a period of 14 CFR Part 39 50 titles pursuant to 44 U.S.C. 1510. at least 2 years before it may be removed The Code of Federal Regulations is sold by from the list of quarantined areas, and [Docket No. 2002–NM–75–AD; Amendment the Superintendent of Documents. Prices of surveys have shown that the 39–12686; AD 2002–06–09] new books are listed in the first FEDERAL quarantined area in Hillsborough REGISTER issue of each week. County, FL, has been free of citrus RIN 2120–AA64 canker since December 1999. Therefore, the interim rule removed restrictions on Airworthiness Directives; Airbus Model DEPARTMENT OF AGRICULTURE the interstate movement of regulated A300; A300 B4–600, B4–600R, and F4– articles from that area. 600R (Collectively Called A300–600); Animal and Plant Health Inspection and A310 Series Airplanes Service Comments on the interim rule were required to be received on or before May AGENCY: Federal Aviation 20, 2002. We did not receive any 7 CFR Part 301 Administration, DOT. comments. Therefore, for the reason [Docket No. 02–018–2] given in the interim rule, we are ACTION: Final rule; correction. adopting the interim rule as a final rule. Citrus Canker; Removal of SUMMARY: This document corrects Quarantined Area This action also affirms the information in an existing airworthiness information contained in the interim directive (AD) that applies to all Airbus AGENCY: Animal and Plant Health rule concerning Executive Order 12866 Model A300; A300–600; and A310 Inspection Service, USDA. and the Regulatory Flexibility Act, series airplanes. That AD currently ACTION: Affirmation of interim rule as Executive Orders 12372 and 12988, and requires certain inspections of the final rule. the Paperwork Reduction Act. airplane (including the vertical Further, for this action, the Office of stabilizer, horizontal stabilizer, pylons, SUMMARY: We are adopting as a final Management and Budget has waived its wing, and fuselage areas) following an rule, without change, an interim rule review under Executive Order 12866. in-flight incident resulting in extreme that amended the citrus canker lateral loading. This document clarifies regulations by removing a portion of List of Subjects in 7 CFR Part 301 and corrects the information contact in Hillsborough County, FL, from the list the reporting requirement specified in of quarantined areas. The regulations Agricultural commodities, Plant paragraphs (b)(2) and (c)(2) of that AD. require that an area be free from citrus diseases and pests, Quarantine, This correction is necessary to ensure canker for a period of at least 2 years Reporting and recordkeeping that future reports are submitted to a before it may be removed from the list requirements, and Transportation. specific point of contact. of quarantined areas. Surveys have PART 301—DOMESTIC QUARANTINE shown that the quarantined area in DATES: Effective April 8, 2002. NOTICES Hillsborough County, FL, has been free FOR FURTHER INFORMATION CONTACT: Tim of citrus canker since December 1999. Accordingly, we are adopting as a Backman, Aerospace Engineer, ANM– The interim rule removed restrictions 116, International Branch, FAA, on the interstate movement of regulated final rule, without change, the interim rule that amended 7 CFR 301 and that Transport Airplane Directorate, 1601 articles from that portion of Lind Avenue, SW., Renton, Washington Hillsborough County, FL. was published at 67 FR 13083–13084 on March 21, 2002. 98055–4056; telephone (425) 227–2797; EFFECTIVE DATE: The interim rule fax (425) 227–1149. became effective on March 21, 2002. Authority: 7 U.S.C. 166, 7711, 7712, 7714, 7731, 7735, 7751, 7752, 7753, and 7754; 7 SUPPLEMENTARY INFORMATION: On March FOR FURTHER INFORMATION CONTACT: Mr. CFR 2.22, 2.80, and 371.3. 15, 2002, the Federal Aviation Stephen Poe, Operations Officer, Administration (FAA) issued AD 2002– Surveillance and Emergency Programs Section 301.75–15 also issued under Sec. 06–09, amendment 39–12686 (67 FR Planning and Coordination, PPQ, 204, Title II, Pub. L. 106–113, 113 Stat. 1501A–293; sections 301.75–15 and 301.75– 13259, March 22, 2002), which applies APHIS, 4700 River Road Unit 134, 16 also issued under Sec. 203, Title II, Pub. to all Airbus Model A300; A300–600; Riverdale, MD 20737–1231; (301) 734– L. 106–224, 114 Stat. 400 (7 U.S.C. 1421 and A310 series airplanes. That AD 8899. note). requires certain inspections of the SUPPLEMENTARY INFORMATION: airplane (including the vertical Done in Washington, DC, this 2nd day of stabilizer, horizontal stabilizer, pylons, Background August 2002 . wing, and fuselage areas) following an In an interim rule effective and Peter Fernandez, in-flight incident resulting in extreme published in the Federal Register on Acting Administrator, Animal and Plant lateral loading. The actions required by March 21, 2002 (67 FR 13083–13084, Health Inspection Service. that AD are intended to detect and Docket No. 02–018–1), we amended the [FR Doc. 02–20069 Filed 8–7–02; 8:45 am] correct reduced structural integrity of citrus canker regulations in 7 CFR part BILLING CODE 3410–34–P the airplane following any future event.
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Need for the Correction requirements of this AD is affected, the approved by the Office of Management and owner/operator must request approval for an Budget (OMB) under the provisions of the Information obtained recently from alternative method of compliance in Paperwork Reduction Act of 1980 (44 U.S.C. Airbus Industrie indicates that a specific accordance with paragraph (f) of this AD. The 3501 et seq.) and have been assigned OMB point of contact should be included for request should include an assessment of the Control Number 2120–0056. the reporting requirement submissions effect of the modification, alteration, or repair Note 4: Following accomplishment of the in that AD. on the unsafe condition addressed by this requirements of paragraphs (b)(1), (b)(2) and, The FAA has determined that a AD; and, if the unsafe condition has not been if necessary, (e) of this AD, the airplane may correction to AD 2002–06–09 is eliminated, the request should include be returned to service before accomplishing necessary. The correction will replace specific proposed actions to address it. the inspections required by paragraph (b)(3) the reference to AI/SE–D32 Technical Compliance: Required as indicated, unless of this AD. Data and Documentation Services and accomplished previously. Supplementary Inspections the fax number for that office, as To detect and correct reduced structural integrity of the airplane following an extreme (3) The manufacturer will develop an specified in paragraphs (b)(2) and (c)(2) lateral loading event, accomplish the of that AD, with the point of contact airplane loads assessment and recommend, if following: necessary, supplementary inspections of the Jacques Leborgne and the fax number Lateral Load Factor Determination applicable areas of the airplane (including for that contact. the vertical stabilizer, horizontal stabilizer (a) As of the effective date of this AD, Correction of Publication pylons, wing, and fuselage areas). Within 30 before further flight following an in-flight days after the extreme lateral loading event, This document corrects the error and incident that results in extreme lateral do the supplementary inspections of the loading, determine whether the lateral load correctly adds the AD as an amendment airplane according to a method approved by factor (Ny) equaled or exceeded 0.3g. to section 39.13 of the Federal Aviation the Manager, International Branch, ANM– Extreme lateral loading can occur as a 116, FAA, Transport Airplane Directorate. Regulations (14 CFR 39.13). consequence of severe turbulence, loss of The AD is reprinted in its entirety for control of the aircraft involving yaw and/or Note 5: The loads assessment, and if the convenience of affected operators. roll maneuvers, hazardous systems failures, necessary, supplementary inspections The effective date of the AD remains or other rare flight conditions. Then do the required by paragraph (b)(3) of this AD, will April 8, 2002. inspections specified in paragraph (b) or (c) be developed and proposed by the Since this action only adds a point of of this AD, as applicable, at the time manufacturer based on the manufacturer’s contact, it has no adverse economic specified. analysis of the report required by paragraph (b)(2) of this AD. impact and imposes no additional Note 2: Acceptable methods for burden on any person. Therefore, the determining if the lateral load factor equaled Inspections for Certain Other Lateral Load FAA has determined that notice and or exceeded 0.3g include but are not limited Factors public procedures are unnecessary. to: Aircraft Communication Addressing and Reporting System (ACARS), Digital Flight (c) For airplanes on which the lateral load List of Subjects in 14 CFR Part 39 Data Recorder (DFDR) readout, or Quick factor (Ny) is greater than or equal to 0.35g, Access Recorder (QAR). A pilot report of accomplish the following: Air transportation, Aircraft, Aviation extreme lateral acceleration in-flight can be (1) Before further flight, do the detailed safety, Safety. used to assess whether one of the previous inspections specified in paragraph (d) of this AD. Adoption of the Correction methods should be used to determine the lateral load factor. Reporting Requirement Accordingly, pursuant to the Note 3: The inspections specified in (2) Before further flight after accomplishing authority delegated to me by the paragraphs (b) and (c) of this AD are not the inspections required by paragraph (c)(1) Administrator, the Federal Aviation necessary if lateral load factors exceed 0.3g of this AD: Submit a report to Airbus, Administration amends part 39 of the when the airplane is on the ground (landing, including the DFDR recording (or equivalent) Federal Aviation Regulations (14 CFR taxiing). of the portion of the flight when the extreme part 39) as follows: lateral loading event occurred, and other Inspections for Certain Lateral Load Factors relevant information necessary to fully PART 39—AIRWORTHINESS (b) For airplanes on which the lateral load describe the event and develop the actual DIRECTIVES factor (Ny) is greater than or equal to 0.3g, loads, including but not limited to, airplane but less than 0.35g, accomplish the following weight, weather, and flight crew report. 1. The authority citation for part 39 actions: Submit a report of the inspection results continues to read as follows: (1) Before further flight, do the detailed (both positive and negative findings) to inspections specified in paragraph (d) of this Jacques Leborgne, Airbus Industrie Customer Authority: 49 U.S.C. 106(g), 40113, 44701. AD. Services Directorate, 1 Rond Point Maurice Bellonte, 31707 Blagnac Cedex France; fax § 39.13 [Corrected] Reporting Requirement (+33) 5 61 93 36 14. Information collection 2. Section 39.13 is amended by (2) Within 5 days after accomplishing the requirements contained in this regulation correctly adding the following inspections required by paragraph (b)(1) of have been approved by the Office of airworthiness directive (AD): this AD: Submit a report to Airbus, including Management and Budget (OMB) under the the DFDR recording (or equivalent) of the provisions of the Paperwork Reduction Act of 2002–06–09 Airbus Industrie: Amendment portion of the flight when the extreme lateral 39–12686. Docket 2002–NM–75–AD. 1980 (44 U.S.C. 3501 et seq.) and have been loading event occurred, and other relevant assigned OMB Control Number 2120–0056. Applicability: All Model A300; A300 B4– information necessary to fully describe the 600, B4–600R, and F4–600R (collectively event and develop the actual loads, including Supplementary Inspections called A300–600); and A310 series airplanes; but not limited to, airplane weight, weather, (3) The manufacturer will develop an certificated in any category. and flight crew report. Submit a report of the airplane loads assessment and recommend, if Note 1: This AD applies to each airplane inspection results (both positive and negative necessary, supplementary inspections of the identified in the preceding applicability findings) to Jacques Leborgne, Airbus applicable areas of the airplane (including provision, regardless of whether it has been Industrie Customer Services Directorate, 1 the vertical stabilizer, horizontal stabilizer modified, altered, or repaired in the area Rond Point Maurice Bellonte, 31707 Blagnac pylons, wing, and fuselage areas). Before subject to the requirements of this AD. For Cedex France; fax (+33) 5 61 93 36 14. further flight, do the supplementary airplanes that have been modified, altered, or Information collection requirements inspections of the airplane according to a repaired so that the performance of the contained in this regulation have been method approved by the Manager,
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International Branch, ANM–116, FAA, then send it to the Manager, International the public that the rule will not take Transport Airplane Directorate. Branch, ANM–116. effect. Note 6: The loads assessment, and if Note 8: Information concerning the ADDRESSES: All comments should be necessary, supplementary inspections existence of approved alternative methods of required by paragraph (c)(3) of this AD, will compliance with this AD, if any, may be addressed to: Randy Terry at the EPA, be developed and proposed by the obtained from the International Branch, Region 4 Air Planning Branch, 61 manufacturer based on the manufacturer’s ANM–116. Forsyth Street, SW., Atlanta, Georgia analysis of the report required by paragraph 30303–8960. (c)(2) of this AD. Special Flight Permits Copies of the State submittal(s) are (g) Special flight permits may be issued in available at the following addresses for Detailed Inspections accordance with §§ 21.197 and 21.199 of the inspection during normal business (d) Do the following detailed inspections at Federal Aviation Regulations (14 CFR 21.197 hours: the time specified in paragraph (b)(1) or (c)(1) and 21.199) to operate the airplane to a Environmental Protection Agency, of this AD, as applicable. location where the requirements of this AD Region 4, Air Planning Branch, 61 can be accomplished. (1) Do the inspections as specified in and Forsyth Street, SW., Atlanta, Georgia per Chapter 05–51–17 (Inspections After Effective Date Flight in Excessive Turbulence or In Excess 30303–8960. Randy Terry, 404/562– of VMO/MMO) of Airbus A300, A300–600 or (h) The effective date of this amendment 9032. A310 Airplane Maintenance Manual (AMM), remains April 8, 2002. North Carolina Department of as applicable. Extend the areas for these Issued in Renton, Washington, on July 29, Environment and Natural Resources, inspections as specified in paragraphs 2002. 512 North Salisbury Street, Raleigh, (d)(1)(i) and (d)(1)(ii) of this AD. Vi Lipski, North Carolina 27604. (i) Extend the wing inspection area to Forsyth County Environmental Affairs Manager, Transport Airplane Directorate, include rib 22 through rib 29. Aircraft Certification Service. Department, 537 North Spruce Street, (ii) Extend the fuselage inspection area Winston-Salem, North Carolina [FR Doc. 02–20019 Filed 8–7–02; 8:45 am] from the inside to include frame 84 through 27101. 87 above stringer 23, and all areas of frame BILLING CODE 4910–13–P 91. FOR FURTHER INFORMATION CONTACT: (2) Do detailed inspections to find damage Randy B. Terry at 404/562–9032, or by of the areas specified in paragraphs (d)(2)(i), electronic mail at [email protected]. ENVIRONMENTAL PROTECTION (d)(2)(ii), and (d)(2)(iii) of this AD, according SUPPLEMENTARY INFORMATION: to a method approved by the Manager, AGENCY International Branch, ANM–116. I. Background 40 CFR Part 52 (i) Inspect the fuselage external surface On April 16, the State of North under the vertical stabilizer to fuselage Carolina, through the North Carolina fairing, including side load fittings and lower [NC–96; 97–200231(a); FRL–7254–2] surface of rib 1 of the vertical stabilizer. Department of Environmental and (ii) Inspect the rudder hinge arms and Approval and Promulgation of Natural Resources (NCDENR), submitted support fittings 1 through 7, and the actuator Implementation Plans: North Carolina: revisions to the North Carolina SIP. support fittings of the vertical stabilizer. Permitting Rules and Other These revisions include the adoption of (iii) Inspect the rudder hinge fittings 1 Miscellaneous Revisions rules 15A NCAC 2D .0611 through through 7, and the actuator support fittings .0615, the amending of .0501, .0903 and of the vertical stabilizer. AGENCY: Environmental Protection multiple rules within Chapter .0600 Note 7: For the purposes of this AD, a Agency (EPA). Monitoring: Recordkeeping: Reporting, detailed inspection is defined as: ‘‘An ACTION: Direct final rule. the adoption of rules 15A NCAC 2Q intensive visual examination of a specific .0316 and .0317 and the amending of SUMMARY: structural area, system, installation, or EPA is approving a State rules .0109, .0803 and .0805 through assembly to detect damage, failure, or Implementation Plan (SIP) revision .0808. A detailed analysis of each of the irregularity. Available lighting is normally submitted by the State of North supplemented with a direct source of good major revisions submitted is listed Carolina, through the North Carolina below. lighting at intensity deemed appropriate by Department of Environmental and the inspector. Inspection aids such as mirror, II. Analysis of North Carolina’s magnifying lenses, etc., may be used. Surface Natural Resources (NCDENR), on April cleaning and elaborate access procedures 16, 2001. These revisions include the Submittal may be required.’’ adoption of rules 15A NCAC 2D .0611 Subchapter 2D through .0615, the amending of .0501, Corrective Actions .0903 and multiple rules within Chapter 2D .0501 Compliance With Emission (e) If any damage is found during any .0600 Monitoring: Recordkeeping: Control Standards inspection required by this AD: Before Reporting, the adoption of rules 15A This rule was amended to add further flight, repair according to the method NCAC 2Q .0316 and .0317 and the detailed language to the cited ASTM specified in the Airbus structural repair amending of rules .0109, .0803 and methods and to eliminate the manual or according to a method approved .0805 through .0808. The purpose of by the Manager, International Branch, ANM– duplicative processing for the facilities 116, or by the Direction Ge´ne´rale de these revisions is to make the revised with mixed control required to be l’Aviation Civile or its delegated agent. regulations consistent with the permitted according to the requirements requirements of the Clean Air Act as of title V of the CAA. Previously these Alternative Methods of Compliance amended in 1990 (CAA). facilities with mixed control were (f) An alternative method of compliance or DATES: This direct final rule is effective subject to the SIP process and the title adjustment of the compliance time that October 7, 2002, without further notice, V permitting process. Both processes provides an acceptable level of safety may be used if approved by the Manager, unless EPA receives adverse comment involve the same amount of public International Branch, ANM–116. Operators by September 9, 2002. If adverse participation. Both involve EPA review shall submit their requests through an comment is received, EPA will publish and approval. Under their previous appropriate FAA Principal Maintenance a timely withdrawal of the direct final process, there were two public comment Inspector, which may add comments and rule in the Federal Register and inform periods and two EPA reviews for title V
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facilities with mixed control that These changes make tracking the report that required by state law, it does not decided to choose emission trading to submittals easier. contain any unfunded mandate or meet the NO SIP call requirements. significantly or uniquely affect small X III. Final Action These amendments simplify and governments, as described in the streamline the emission trading process EPA is approving the aforementioned Unfunded Mandates Reform Act of 1995 for title V facilities by requiring only changes to the SIP because the revisions (Pub. L. 104–4). one public hearing for both title V and are consistent with Clean Air Act and This rule also does not have tribal SIP processes. EPA regulatory requirements. The EPA implications because it will not have a is publishing this rule without prior substantial direct effect on one or more 2D .0600 Monitoring: Recordkeeping: proposal because the Agency views this Indian tribes, on the relationship Reporting as a noncontroversial submittal and between the Federal Government and This subchapter was amended for the anticipates no adverse comments. Indian tribes, or on the distribution of following purposes: However, in the proposed rules section power and responsibilities between the (1) To resolve deficiencies that EPA of this Federal Register publication, Federal Government and Indian tribes, has identified in the SIP. EPA is publishing a separate document as specified by Executive Order 13175 (2) To write the requirements of 40 that will serve as the proposal to (65 FR 67249, November 9, 2000). This CFR part 51, appendix P in a more approve the SIP revision should adverse action also does not have Federalism concise, precise, and readable form. comments be filed. This rule will be implications because it does not have (3) To require that data collected for effective October 7, 2002, without substantial direct effects on the States, the purposes of showing compliance be further notice unless the Agency on the relationship between the national quality assured data, receives adverse comments by government and the States, or on the (4) To add rule to implement EPA’s September 9, 2002. distribution of power and If the EPA receives such comments, compliance assurance monitoring responsibilities among the various then EPA will publish a document (CAM) requirements. levels of government, as specified in withdrawing the final rule and (5) To clearly delegate to the Director Executive Order 13132 (64 FR 43255, informing the public that the rule will August 10, 1999). This action merely the authority to place monitoring, not take effect. All public comments recordkeeping, and reporting approves a state rule implementing a received will then be addressed in a Federal standard, and does not alter the requirements in permits of non-title V subsequent final rule based on the facilities. relationship or the distribution of power proposed rule. The EPA will not and responsibilities established in the 2D .0903 Recordkeeping: Reporting: institute a second comment period. Clean Air Act. This rule also is not Monitoring Parties interested in commenting should subject to Executive Order 13045 do so at this time. If no such comments This rule was amended to delete ‘‘Protection of Children from are received, the public is advised that Environmental Health Risks and Safety specific recordkeeping and reporting this rule will be effective on October 7, requirements and add a reference to Risks’’ (62 FR 19885, April 23, 1997), 2002, and no further action will be because it is not economically monitoring requirements in section 15A taken on the proposed rule. Please note NCAC 2D .0600. significant. that if we receive adverse comment on In reviewing SIP submissions, EPA’s Subchapter 2Q an amendment, paragraph, or section of role is to approve state choices, this rule and if that provision may be provided that they meet the criteria of 2Q .0109 Compliance Schedule for severed from the remainder of the rule, the Clean Air Act. In this context, in the Previously Exempted Activities we may adopt as final those provisions absence of a prior existing requirement This rule was amended to delete of the rule that are not the subject of an for the State to use voluntary consensus obsolete schedules for submitting adverse comment. standards (VCS), EPA has no authority to disapprove a SIP submission for permit applications for activities that IV. Administrative Requirements have lost their permit exemptions. failure to use VCS. It would thus be Under Executive Order 12866 (58 FR inconsistent with applicable law for 2Q .0316 Administrative Permit 51735, October 4, 1993), this action is EPA, when it reviews a SIP submission, Amendments not a ‘‘significant regulatory action’’ and to use VCS in place of a SIP submission This rule was adopted to describe the therefore is not subject to review by the that otherwise satisfies the provisions of administrative amendment process and Office of Management and Budget. For the Clean Air Act. Thus, the define the types of changes that are this reason, this action is also not requirements of section 12(d) of the administrative amendments. subject to Executive Order 13211, National Technology Transfer and ‘‘Actions Concerning Regulations That Advancement Act of 1995 (15 U.S.C. 2Q .0317 Avoidance Conditions Significantly Affect Energy Supply, 272 note) do not apply. This rule does This rule was adopted to clarify that Distribution, or Use’’ (66 FR 28355, May not impose an information collection conditions can be placed in permits to 22, 2001). This action merely approves burden under the provisions of the avoid applicability of more restrictive state law as meeting Federal Paperwork Reduction Act of 1995 (44 rules. It gives the permittee a chance to requirements and imposes no additional U.S.C. 3501 et seq.). choose a less expensive cost of requirements beyond those imposed by The Congressional Review Act, 5 operations by avoiding the applicability state law. Accordingly, the U.S.C. 801 et seq., as added by the Small of certain rules. Administrator certifies that this rule Business Regulatory Enforcement will not have a significant economic Fairness Act of 1996, generally provides 2Q .0800 Exclusionary rules impact on a substantial number of small that before a rule may take effect, the This Subchapter was amended to entities under the Regulatory Flexibility agency promulgating the rule must require annual reports to be submitted Act (5 U.S.C. 601 et seq.). Because this submit a rule report, which includes a by March 1, 2000, and to the regional rule approves pre-existing requirements copy of the rule, to each House of the supervisors of the appropriate Division under state law and does not impose Congress and to the Comptroller General regional office instead of the Director. any additional enforceable duty beyond of the United States. EPA will submit a
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report containing this rule and other such rule or action. This action may not Subpart II—North Carolina required information to the U.S. Senate, be challenged later in proceedings to the U.S. House of Representatives, and enforce its requirements. (See section 2. In the table in § 52.1770(c), the the Comptroller General of the United 307(b)(2).) table is designated as Table 1 and States prior to publication of the rule in List of Subjects in 40 CFR Part 52 amended as follows: the Federal Register. A major rule b. Under subchapter 2D by revising cannot take effect until 60 days after it Environmental protection, Air pollution control, Carbon monoxide, entries: .0501, .0601, .0602, .0604, .0605, is published in the Federal Register. .0607, .0610, and .0903; This action is not a ‘‘major rule’’ as Intergovernmental relations, Lead, c. Under subchapter 2D by adding in defined by 5 U.S.C. 804(2). Nitrogen dioxide, Ozone, Particulate Under section 307(b)(1) of the Clean matter, Reporting and recordkeeping numerical order a new entry for .0611, Air Act, petitions for judicial review of requirements, Sulfur oxides, Volatile .0612, .0613, .0614, and .0615. this action must be filed in the United organic compounds. d. Under subchapter 2Q by revising States Court of Appeals for the Dated: July 10, 2002. entries .0109, .0803, .0805, .0806, and appropriate circuit by October 7, 2002. A. Stanley Meiburg, .0807. Filing a petition for reconsideration by Acting Regional Administrator, Region 4. d. Under subchapter 2Q by adding in the Administrator of this final rule does numerical order a new entry for .0316, not affect the finality of this rule for the PART 52—[AMENDED] .0317 and .0808. purposes of judicial review nor does it extend the time within which a petition 1. The authority for citation for part § 52.1770 Identification of plan. for judicial review may be filed, and 52 continues to read as follows: * * * * * shall not postpone the effectiveness of Authority: 42 U.S.C. 7401 et seq. (c) * * * TABLE 1.—EPA APPROVED NORTH CAROLINA REGULATIONS
State effec- State citation Title/subject tive date EPA approval date Comments
Subchapter 2D Air Pollution Control Requirements
******* Section .0500 Emission Control Standards Sect. .0501 ...... Compliance With Emission Control Standards ...... 04/01/01 August 8, 2002.
******* Section .0600 Air Contaminants; Monitoring, Reporting Sect. .0601 ...... Monitoring: Recordkeeping: Reporting ...... 04/01/99 August 8, 2002. Sect. .0602 ...... Definitions ...... 04/01/99 August 8, 2002. Sect. .0604 ...... Exceptions to Monitoring and Reporting Requirements ...... 04/01/99 August 8, 2002. Sect. .0605 ...... General Recordkeeping and Reporting Requirements ...... 04/01/99 August 8, 2002.
******* Sect. .0607 ...... Large Wood and Wood-Fossil Fuel Combination Units ...... 04/01/99 August 8, 2002.
******* Sect. .0610 ...... Federal Monitoring Requirements ...... 04/01/99 August 8, 2002. Sect. .0611 ...... Monitoring Emissions From Other Sources ...... 04/01/99 August 8, 2002. Sect. .0612 ...... Alternative Monitoring and Reporting Procedures ...... 04/01/99 August 8, 2002. Sect. .0613 ...... Quality Assurance Program ...... 04/01/99 August 8, 2002. Sect. .0614 ...... Compliance Assurance Monitoring ...... 04/01/99 August 8, 2002. Sect. .0615 ...... Delegation ...... 04/01/99 August 8, 2002.
******* Section .0900 Volatile Organic Compounds
******* Sect. .0903 ...... Recordkeeping: Reporting: Monitoring ...... 04/01/99 August 8, 2002.
******* Subchapter 2Q Air Quality Permits Section .0100 General Provisions
******* Sect. .0109 ...... Compliance Schedule for Previously Exempted Activities .... 04/01/01 August 8, 2002.
******* Section .0300 Construction and Operating Permits
******* Sect. .0316 ...... Administrative Permit Amendments ...... 04/01/01 August 8, 2002. Sect. .0317 ...... Avoidance Conditions ...... 04/01/01 August 8, 2002.
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TABLE 1.—EPA APPROVED NORTH CAROLINA REGULATIONS—Continued
State effec- State citation Title/subject tive date EPA approval date Comments
******* Section .0800 Exclusionary Rules Sect. .0803 ...... Coating, Solvent Cleaning, Graphic Arts Design ...... 04/01/01 August 8, 2002.
******* Sect. .0805 ...... Grain Elevators ...... 04/01/01 August 8, 2002. Sect. .0806 ...... Cotton Gins ...... 04/01/01 August 8, 2002. Sect. .0807 ...... Emergency Generators ...... 04/01/01 August 8, 2002. Sect. .0808 ...... Peak Shaving Generators ...... 04/01/01 August 8, 2002.
* * * * * In general, the availability of NCPs p.m., Monday through Friday, except on [FR Doc. 02–19435 Filed 8–7–02; 8:45 am] allows a manufacturer of heavy-duty government holidays. You can reach the BILLING CODE 6560–50–P engines (HDEs) whose engines fail to Air Docket by telephone at (202) 260– conform with the applicable 2004 model 7548 and by facsimile at (202) 260– year emission standards, but do not 4400. We may charge a reasonable fee ENVIRONMENTAL PROTECTION exceed a designated upper limit, to be for copying docket materials, as AGENCY issued a certificate of conformity upon provided in 40 CFR part 2. payment of a monetary penalty. This FOR FURTHER INFORMATION CONTACT: 40 CFR Part 86 final rule establishes the upper limit Margaret Borushko, U.S. EPA, National associated with the 2004 emission [AMS–FRL–7256–5] Vehicle and Fuels Emission Laboratory, standard for NMHC+NOX as 4.5 grams 2000 Traverwood, Ann Arbor, MI RIN 2060–AJ73 per brake-horsepower-hour for light and 48105; Telephone (734) 214–4334; Fax: medium heavy-duty engines and urban (734) 214–4816; E-mail: Control of Air Pollution From New buses, and 6.0 grams per brake- [email protected]. Motor Vehicles and New Motor Vehicle horsepower-hour for heavy heavy-duty Engines; Non-Conformance Penalties engines. Based on these upper limits, SUPPLEMENTARY INFORMATION: for 2004 and later Model Year Emission this rule also establishes the cost inputs Regulated Entities Standards for Heavy-Duty Diesel used in the general NCP formula This action may affect you if you Engines and Heavy-Duty Diesel currently in the regulations. Vehicles produce or import new heavy-duty DATES: This rule is effective on August diesel engines which are intended for AGENCY: Environmental Protection 8, 2002. use in highway vehicles such as trucks Agency (EPA). ADDRESSES: Comments: All comments and buses or other types of heavy-duty ACTION: Final rule. and materials relevant to today’s action highway vehicles. The table below gives have been placed in Public Docket No. some examples of entities that may have SUMMARY: EPA is finalizing A–2001–25 at the following address: to follow the regulations. But because nonconformance penalties (NCPs) for U.S. Environmental Protection Agency these are only examples, you should the 2004 and later model year non- (EPA), Air Docket (6102), Room M– carefully examine the regulations in 40 methane hydrocarbons and nitrogen 1500, 401 M Street, SW., Washington, CFR part 86. If you have questions, call oxides (NMHC+NOX) standard for DC 20460 (on the ground floor in the person listed in the FOR FURTHER heavy-duty diesel engines and vehicles. Waterside Mall) from 8:00 a.m. to 5:30 INFORMATION CONTACT section above.
a Examples of potentially regulated Category NAICS SIC Codes Codes b entities
Industry ...... 336112 3711 Engine and truck manufacturers. 336120 a North American Industry Classification System (NAICS). b Standard Industrial Classification (SIC) system code.
Access to Rulemaking Documents Web site listed below shortly after the (Look in ‘‘Recent Additions’’ or under Through the Internet rule is signed by the Administrator. This the ‘‘Heavy Trucks/Buses’’ topic.) This final rule is available service is free of charge, except any cost Please note that due to differences electronically on the day of publication that you incur for connecting to the between the software used to develop from the Environmental Protection Internet. the document and the software into Agency Internet Web site listed below. Environmental Protection Agency Web which document may be downloaded, Electronic copies of the preamble, Site: http://www.epa.gov/fedrgstr/ changes in format, page length, etc. may regulatory language, Technical Support occur. (Either select a desired date or use the Document, and other documents Search feature.) Table of Contents associated with today’s final rule are I. Background and Statutory Authority available from the EPA Office of Office of Transportation and Air Quality A. Background to Nonconformance Penalty Transportation and Air Quality (OTAQ) Web Site: http:// Rules (formerly the Office of Mobile Sources) www.epa.gov/otaq/ B. Statutory Authority
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C. Heavy-duty Diesel Consent Decrees laggard to be a manufacturer who 478 F.2d 615 (D.C. Cir. 1973), Congress II. Nonconformance Penalties for 2004 and cannot meet a particular emission realized the dilemma that technology- Later Heavy-Duty Engines and Heavy- standard due to technological (not forcing standards might cause for motor Duty Vehicles economic) difficulties and who, in the vehicle manufacturers. If strict A. Finding of Eligibility for NCPs B. Penalty Rates absence of NCPs, might be forced from standards were maintained, then some III. Significant Issues Raised in this the marketplace, including the manufacturers, ‘‘technological Rulemaking elimination of one or more engine laggards,’’ might be unable to comply A. Relation of NCP Costs to Rulemaking families/configurations from initially and would be forced out of the Costs production. EPA will make the marketplace. NCPs were intended to B. Discount Rate determination that a technological remedy this potential problem. The NCP C. Upper Limit laggard is likely to develop, based in would provide a temporary alternative D. Use of Penalty Funds large part on the first two criteria. that would permit manufacturers to sell E. Incorporating Factors Not Provided For In The NCP Regulations However, these criteria are not always their engines or vehicles by payment of F. Fuel Cost sufficient to determine the likelihood of a penalty. At the same time, conforming IV. Economic Impact the development of a technological manufacturers would not suffer an V. Environmental Impact laggard. An emission standard may economic disadvantage compared to VII. Administrative Requirements become more difficult to meet and nonconforming manufacturers, because A. Regulatory Planning and Review: substantial work may be required for the NCP would be based, in part, on Executive Order 12866 compliance, but if that work merely money saved by the technological B. Regulatory Flexibility Analysis involves transfer of well-developed laggard and its customer from the C. Compliance with the Paperwork Reduction Act technology from another vehicle class, it nonconforming engine or vehicle. D. Unfunded Mandates Reform Act is unlikely that a technological laggard Under section 206(g)(1), NCPs may be E. Executive Order 13175: Consultation would develop. offered for HDVs or HDEs. The penalty and Coordination with Indian Tribal The criteria and methodologies may vary by pollutant and by class or Governments established in the 1985 rule have since category of vehicle or engine. HDVs are F. National Technology Transfer and been used to determine eligibility and to defined in section 202(b)(3)(C) of the Advancement Act establish NCPs for a number of heavy- CAA as vehicles in excess of 6,000 G. Executive Order 13045: Children’s duty emission standards. Phases II, III, pounds gross vehicle weight rating Health Protection IV, and V, published in the period from (GVWR). The light-duty truck (LDT) H. Executive Order 13132: Federalism I. Executive Order 13211:Energy Effects 1985 to 1996, established NCPs that, in classification includes trucks that have J. Congressional Review Act combination, cover the full range of a GVWR of 8500 lbs or less. Therefore, heavy-duty—from heavy light-duty certain LDTs may be classified as HDVs. I. Background and Statutory Authority trucks (6,000–8,500 pounds gross Historically, LDTs up through 6000 lbs A. Background to Nonconformance vehicle weight) to the largest diesel GVWR have been considered ‘‘light Penalty Rules truck and urban bus engines. NCPs have light-duty trucks’’ (LLDTs) and LDTs been established for engine emission between 6,001 and 8,500 pounds GVWR Since the promulgation of the first standards for hydrocarbons (HC), carbon have been considered ‘‘heavy light-duty NCP rule in 1985, NCP rules have monoxide (CO), nitrogen oxides (NOX), trucks’’ (HLDTs). Based on various new generally been described as continuing and particulate matter (PM). The most requirements established by the Clean ‘‘phases’’ of the NCP program. The first recent NCP rule (61 FR 6949, February Air Act Amendments of 1990, each of NCP rule (Phase I), sometimes referred 23, 1996) established NCPs for the 1998 these two light truck categories has been to as the ‘‘generic’’ NCP rule, and later model year NOX standard for further subdivided into groups by established three basic criteria for heavy-duty diesel engines (HDDEs), the weight. The LLDTs are classified by determining the eligibility of emission 1996 and later model year for Light- weight based on ‘‘loaded vehicle standards for nonconformance penalties Duty Truck 3 (LDT3) NOX standard, and weight,’’ or LVW, which maintains its in any given model year (50 FR 35374, the 1996 and later urban bus PM current definition: curb weight plus 300 August 30, 1985). For regulatory standard. A concurrent but separate lbs. The trucks up through 3750 lbs language, see 40 CFR 86.1103–87. First, final rule (61 FR 6944, February 23, LVW make up a subclass called light- the emission standard in question must 1996) established NCPs for the 1996 duty-trucks-1, or LDT1. Those greater become more difficult to meet. This can LDT3 PM standard. The NCP than 3750 lbs LVW but less than or occur in two ways, either by the rulemaking phases are summarized in equal to 6000 lbs GVWR are the subclass emission standard itself becoming more greater detail in the Final Technical light-duty-trucks-2, or LDT2. The stringent, or due to its interaction with Support Document for this rule. HLDTs are divided at 5750 lbs ‘‘adjusted another emission standard that has loaded vehicle weight,’’ or ALVW. B. Statutory Authority become more stringent. Second, Adjusted loaded vehicle weight is the substantial work must be required in Section 206(g) of the Clean Air Act average of the curb weight and the order to meet the emission standard. (the Act), 42 U.S.C. 7525(g), requires GVWR. The HLDTs that are up through EPA considers ‘‘substantial work’’ to EPA to issue a certificate of conformity 5750 lbs ALVW are called light-duty mean the application of technology not for HDEs or HDVs which exceed a trucks-3, or LDT3. Those above 5750 lbs previously used in that vehicle or federal emissions standard, but do not ALVW but less than or equal to 8500 lbs engine class/subclass, or a significant exceed an upper limit associated with GVWR are light-duty-trucks-4, or LDT4. modification of existing technology, in that standard, if the manufacturer pays The LDT3 and LDT4 subclasses make order to bring that vehicle/engine into an NCP established by rulemaking. up the HLDT vehicle class. Since NCPs compliance. EPA does not consider Congress adopted section 206(g) in the can only be established for heavy duty minor modifications or calibration Clean Air Act Amendments of 1977 as vehicles or engines, emission standards changes to be classified as substantial a response to perceived problems with for light-duty trucks of the LDT3 and work. Third, a technological laggard technology-forcing heavy-duty LDT4 categories are the only light-duty must be likely to develop. Prior NCP emissions standards. Following truck categories eligible for NCPs. rules have considered a technological International Harvester v. Ruckelshaus, Section 206(g)(3) requires that NCPs:
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• Account for the degree of emission consent decree manufacturers are NOX and 1.3 g/bhp-hr HC. The 2004 nonconformity; required to invest considerable standard is a combined NMHC+NOX • Increase periodically to provide resources to evaluate instrumentation standard of 2.4 g/bhp-hr, or optionally incentive for nonconforming and methodologies for on-road testing. a 2.5 g/bhp-hr NMHC+NOX with a limit manufacturers to achieve the emission Because the Consent Decrees refer to of 0.5 g/bhp-hr NMHC.1 When standards; and NCPs for the 2004 model year, if promulgated, the Agency concluded • Remove the competitive established, promulgation of this rule that the 2004 standard was a technology disadvantage to conforming would have an impact on the penalties forcing standard, and therefore it is manufacturers. determined under the Consent Decrees. reasonable to conclude that the Section 206(g) authorizes EPA to increased level of stringency made the II. Nonconformance Penalties for 2004 require testing of production vehicles or standard more difficult to meet. engines in order to determine the and Later Heavy-Duty Engines and The second criteria which must be emission level on which the penalty is Heavy-Duty Vehicles met in order for EPA to determine that based. If the emission level of a vehicle A. Finding of Eligibility for NCPs an NCP should be established is the or engine exceeds an upper limit of In the Notice of Proposed Rulemaking determination that substantial work nonconformity established by EPA must be required to meet the emission through regulation, the vehicle or (NPRM) (67 FR 2159, January 16, 2002), we identified the heavy-duty diesel standard. This criteria has also been engine would not qualify for an NCP met. As discussed in both the 1997 final under section 206(g) and no certificate NMHC+NOX standard becoming effective in model year 2004, the heavy- rule (see 62 FR 54694, October 21, 1997) of conformity could be issued to the which established the 2004 standards, manufacturer. If the emission level is duty gasoline standards generally taking effect in the 2005 model year, and the as well as the 2000 final rule (see 65 FR below the upper limit but above the 59896, October 6, 2000) which standard, that emission level becomes Tier 2 standards for Medium-duty Passenger Vehicles & Heavy Light-duty reaffirmed those standards, EPA the ‘‘compliance level,’’ the level to projected that new emission control which the engine must conform. This is Trucks taking effect in 2004 as new standards for which we have statutory technologies would be needed to also the benchmark for warranty and achieve the 2004 standards. In these recall liability. The manufacturer who authority for considering NCPs. We then applied the three generic NCP criteria previous rulemakings EPA identified elects to pay the NCP is liable for technologies such as cooled exhaust gas vehicles or engines that exceed the (discussed in section I.A) to each of those emission standards, and identified recirculation (EGR) and variable compliance level in-use, unless, for the geometry turbochargers (VGT) as some case of HLDTs, the compliance level is the 2004 heavy-duty diesel NMHC+NOX standard of 2.4 g/bhp-hr as satisfying of the technologies manufacturers could below the in-use standard. The use to meet the 2004 standards. Such manufacturer does not have in-use the required NCP criteria and, therefore, proposed to make NCPs available for technologies have not previously been warranty or recall liability for emissions used in the on-highway heavy-duty levels above the standard but below the heavy-duty engines subject to that standard. We also proposed upper limits diesel market, and EPA estimated compliance level. substantial research and development Section 307(d) of the CAA applies to for that standard and numerical values efforts by the engine manufacturers today’s rule as provided by Section to be used in the calculation of the NCP would be undertaken to meet the 2004 307(d)(1)(v), 42 U.S.C. 7607(d)(1)(v). for the associated vehicles. We did not propose NCPs for the standards. We continue to believe such C. Heavy-Duty Diesel Consent Decrees other new standards because they did new technologies will be used by a On October 22, 1998, the Department not meet all three of the generic NCP number of engine manufacturers, and in of Justice and the Environmental criteria. No comments were received fact several manufacturers have Protection Agency announced during the public comment period indicated in recent statements that they settlements with seven major indicating that NCPs should be will use new emission control manufacturers whose diesel engines proposed for these other new standards. technologies in order to achieve the 2 comprise a majority of the diesel engine See the NPRM for additional detail on 2004 standards. The final criteria for EPA to determine market. The settlements resolved claims the consideration of these standards for that an NCP should be established is that the manufacturers installed NCPs. For the reasons stated in the that a technological laggard is likely to computer software on heavy duty diesel NPRM, EPA therefore is not adopting develop. There are several reasons to engines that turned off the engine NCPs at this time for the other new believe a technological laggard is likely, emission control system during highway standards. driving in violation of the CAA’s As discussed in section I.A., EPA as discussed below. First, during our recent discussions prohibition on defeat devices (42 USC must determine that three criteria are with a number of engine manufacturers, 7522(a)(3)). The settlements were met in order to determine that an NCP several manufacturers have indicated entered by the U.S. District Court for the should be established in any given that they are not yet sure that they will District of Columbia on July 1, 1999. model year. For the model year 2004 be able to make the necessary These consent decrees with the U.S. heavy-duty diesel NMHC+NO X technological changes to meet the 2004 Government contained a number of standard, we believe these criteria have emission standards for a limited number provisions applying to heavy-duty on- been met and it is therefore appropriate of their high horsepower rated engines road, and in some cases, nonroad, to establish NCPs for the 2004 model engines. Specific to the on-road engines, year NMHC+NO standard. X 1 NMHC stands for non-methane hydrocarbons, the decrees permit the continued use of The first criteria requires that the which is a measure of total hydrocarbons with the non-complying engines for a period of emission standard in question must methane emissions subtracted out. For typical on- time (although emissions are capped by become more difficult to meet. This is highway diesel fueled heavy-duty engines, methane emissions are on the order of 10 percent of the total limits associated with new the case with the 2004 NMHC+NOX hydrocarbon emissions. supplemental test procedures). Other standard. The previous emission 2 See press releases from Caterpillar Inc., elements of these consent decrees standards to which manufacturers must Cummins, Detroit Diesel Corp. and Mack, available include a program under which the certify for this category are 4.0 g/bhp-hr in EPA Air Docket A–2001–25.
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by model year 2004, and may need to required, and thus, that the first two complying and noncomplying use NCPs for a limited time period to eligibility criteria were likely met. manufacturers must incur certification certify these configurations in 2004. However, we concluded at the time that costs. COC50 is an estimate of the Nevertheless, manufacturers are it was too early to determine the industry-wide average incremental cost exploring a number of technologies to likelihood of a technological laggard, per engine (references to engines are address these limitations. and further, that it was not necessary to intended to include vehicles as well) Second, during recent discussions attempt to make such a judgement at associated with meeting the standard for with engine manufacturers, one that time. Now we are a year closer to which an NCP is offered, compared with manufacturer has indicated that a few implementation of the 2004 standards, meeting the upper limit. More precisely, low volume engine families currently and manufacturers have not withdrawn the values of COC50 presented here are available may not be ready by 2004. A their claims that the likelihood of a estimates of the sales weighted mean low volume engine family may require technological laggard is high. The fact incremental cost. specific and targeted research and that several engine manufacturers as COC90 is EPA’s best estimate of the development efforts in order to comply well as a major trade organization have 90th percentile incremental cost per- with the 2004 standards, and it is indicated they believe a technological engine associated with meeting the reasonable to expect that manufacturers laggard is likely to develop is a relevant standard for which an NCP is offered, may focus their efforts on these low indicator for the Agency regarding the compared with meeting the associated volume products later in the technological laggard criteria. upper limit. MC50 is an estimate of the development process, and time may be It is clear that most companies and industry-wide average marginal cost of too short to bring the product into most engine configurations will be able compliance per unit of reduced compliance for the 2004 model year. to comply with the standards in 2004. pollutant associated with the least cost Finally, in the final rule completed in However, based on the discussion effective emission control technology 2000 which reaffirmed the 2004 above, the Agency believes it is installed to meet the new standard. NMHC+NOX standard, three engine reasonable to conclude that a MC50 is measured in dollars per g/bhp- manufactures as well as the Engine technological laggard is likely to hr for HDEs. F is a factor used to derive Manufacturers Association (EMA), develop for the 2004 NMHC+NOX MC90, the 90th percentile marginal cost commented that EPA should establish heavy-duty diesel standard. of compliance with the NCP standard NCPs for the 2004 standards.3 EMA for engines in the NCP category. MC B. Penalty Rates 90 commented the standards ‘‘will be defines the slope of the penalty rate technology-forcing and likely will result This final rule is the most recent in a curve near the standard and is equal to in the inability of some engine series of NCP rulemakings. The MC50 multiplied by F. UL is the upper manufacturers and/or engine families to discussion of penalty rates in the Phase limit above which no engine may be comply with the standards.’’ Detroit IV rulemaking (58 FR 68532, December certified. UL is specified for each of the Diesel Corp. commented ‘‘Meeting the 28, 1993), Phase III rulemaking (55 FR four service classes for which NCPs are 2004 standards will require the use of 46622, November 5, 1990), the Phase II promulgated. sophisticated new emission control rulemaking (50 FR 53454, December 31, Table 1 displays the parameter values technology and will require emission 1985) as well as the Phase I rulemaking to be used in the NCP formula for the durability evaluation over a greatly (50 FR 35374, August 30, 1985) are 2004 and later model year NMHC+NOX extended useful life period.* * * Any incorporated by reference. This section standard of 2.5 g/bhp-hr for diesel development setbacks or misjudgement briefly reviews the penalty rate formula heavy-duty engines and diesel urban regarding the capability or durability of and discusses how EPA arrived at the bus engines at full useful life. The the new emission control technology penalty rates in this final rule. derivation of the NCP cost parameters is could, at the last minute, put an engine As in the previous NCP rules, the NCP described in a support document manufacturer into a laggard position formula for the 2004 model year entitled ‘‘Technical Support Document: and prevent certification of an engine standard uses the following parameters: Nonconformance Penalties for 2004 family. The likelihood of a technological COC50, COC90, MC50, F, and UL. This Highway Heavy-Duty Diesel Engines,’’ laggard for 2004 is at least as great and rule specifies the value for these (TSD) which is available in the public probably much greater than for other parameters. The NCP formula for the docket for this rulemaking. All costs are standards for which NCPs have been 2004 model year standard is the same as presented in 2001 dollars. Because we provided.’’ When we reaffirmed the that promulgated in the Phase I rule. As are trying to account for cost differences 2004 NOX+NMHC standard in 2000 we was done in previous NCP rules, costs over time, all costs were converted to agreed that the standards were include additional manufacturer costs net present value (NPV) for calendar technology-forcing and that and additional owner costs, but do not year 2004 using a discount rate of seven sophisticated technologies would be include certification costs because both percent.
TABLE 1.—NCP CALCULATION PARAMETERS
Light heavy-duty diesel En- Heavy heavy-duty diesel Parameter gines Medium Heavy-duty diesel Engines Urban bus engines (LHDDE) Engines (MHDDE) (HHDDE)
COC50 ...... $1,240 ...... $2,740 ...... $6,810 ...... $3,930 COC90 ...... $2,710 ...... $4,930 ...... $12,210 ...... $6,660 MC50 ...... $2,000 per g/bhp-hr ...... $1,400 per g/bhp-hr ...... $5,600 per g/bhp-hr ...... $3,800 per g/bhp-hr F ...... 1.3 ...... 1.3 ...... 1.3 ...... 1.3 UL (NOX+NMHC) ...... 4.5 g/bhp-hr ...... 4.5 g/bhp-hr ...... 6.0 g/bhp-hr ...... 4.5 g/bhp-hr
3 Detroit Diesel Corp. (IV–D–28), and EMA (IV–D– See EPA Air Docket A–98–32, comments from 05). Navistar (item IV–D–29), Mack Truck (IV–D–06),
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The calculation parameters listed in approximate first-year penalties for specified in the regulations and the Table 1 are used to calculate the actual different compliance levels for each inflation adjustment. Thus, these penalty rates for each heavy-duty service class. This curves were figures, which are shown here for service class. These parameters are used determined using the parameters in illustrative purposes only, cannot be in the penalty rate formulas which are Table 1, and the general equations in the used to determine the actual penalty defined in the existing NCP regulations regulations. To determine actual amount to be paid by a manufacturer. (See 40 CFR 86.1113(a)(1) and (2)). penalties you would also need to Figures 1–4 below show the include the annual adjustment factors BILLIND CODE 6560–50–P
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BILLING CODE 6560–50–C discussions with several manufacturers described in the Technical Support During the rulemaking we asked for to determine whether the information Document. While most of the changes comment on all aspects of our analysis they provided for the NPRM was still were relatively minor, we made four including the cost information used and current and the best available in the adjustments to the methodology that are the manner in which we analyzed it. We context of ongoing business decisions, more significant: received only a small amount of projected technological progress, and • For heavy heavy-duty engines, we additional information after the cost reduction efforts. Based on the estimated that by the 2004, the average proposal and we incorporated this comments and other new information, fuel consumption would be about one- information into the overall analysis. we have updated our analysis from that half percent better than current Beyond that, we held in-depth used in the NPRM. These changes are manufacturer estimates. Manufacturers
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made it clear that fuel economy • A review with the manufacturers broad range in estimates was a result of improvement was a top priority and are revealed that in providing their cost different approaches used by companies making public projections about further estimates for 2004 they did not to address warranty costs, such that a improvements by 2004. incorporate manufacturing learning straight average of the estimates is not from the consent decree pull ahead • In the NPRM we based our diesel the appropriate way to project actual engines. We included a learning curve fuel price on the 2000 average of about costs. Thus for the final rule we based benefit of 10 percent for heavy-heavy $1.50 per gallon and asked for comment warranty on a flat percentage of the duty engines. on using a 3–5 year average as opposed • average rather than the average itself for Manufacturer warranty cost most service classes. to a one year value. As is discussed estimates varied by more than a factor below, we are using a fuel price of $1.29 of ten. In the NPRM we used a sales- The table below compares the COC50 per gallon, which is the average diesel weighted average. Through discussions and COC90 values for the NPRM and fuel price for 1997 through 2001. with manufacturers, we learned that the FRM.
TABLE 2.—NCP PARAMETER COMPARISONS
COC50 COC90 FRM Service class NPRM COC50 FRM NPRM COC90
LHDDE ...... $1,080 $1,240 $2,610 $2,710 MHDDE ...... 3,360 2,740 6,870 4,930 HHDDE ...... 8,940 6,810 14,790 12,210 Urban Bus ...... 4,400 3,930 7,120 6,660
III. Significant Issues Raised in This rulemaking that initially established the standard of 2.5 g/bhp-hr. In this NCP Rulemaking 2004 standards (62 FR 54694, October rulemaking, however, the penalty rate This section discusses several 21, 1997), as well as the rulemaking that factors for heavy heavy-duty were based significant issues raised in this affirmed the 2004 standards and on the costs required to bring an engine rulemaking, including comments on the updated the cost analysis (65 FR 59896 at the 6.0 g/bhp-hr Upper Limit (e.g., a proposal. Additional issues are also October 6, 2000). There are several key 2001 model year engine) into discussed in the Technical Support reasons that account for these compliance with the 2004 model year Document and Response to Comments differences. The most important reason standard. The fundamental properties of documents. is the difference in the emission the existing engines in 2001, however, characteristics of the baseline engine are not what was envisioned by or A. Relation of NCP Costs to Rulemaking used in the analysis. When the incorporated into the analyses Costs rulemaking costs were determined in performed for the rulemakings that Traditionally, NCP costs are different 1997, the agency assumed a 1998 model established and confirmed the 2004 than those presented in the rulemaking year engine in full compliance with the standards. This important distinction analysis which implemented the 4.0 g/bhp-hr NOX level as the baseline between the baselines engines impacts standards. This occurs for several for the 2004 standard. As discussed every cost category considered in the reasons: above, after that rule was promulgated, NCP rule. Much of the cost associated • NCP costs represent first year costs it became evident that all manufacturers with the heavy heavy-duty service class and thus generally do not include the were not fully complying with the 4.0 NCPs are attributable to those costs effects of manufacturing learning that g/bhp-hr NOX level and in fact in some required to remedy the non-compliance cases were emitting at levels far in occurs in reality and is included in the with the current 4.0 g/bhp-hr NOX rulemaking cost analysis, but do include excess of the standard during significant standard while reducing emission to the full amortized annual fixed costs periods of operation. We proposed an meet the 2004 standards, and are not upper limit of 6.0 g/bhp-hr NMHC+NO which are eliminated after the first few X attributable solely to the 2004 standards. for the 2004 NCP for heavy heavy-duty years of production Consider the following: • diesel engines because that baseline Cost information gathered from • manufacturers and vendors during the value reasonably represents the current A heavy heavy-duty diesel engine NCP rulemaking process reflects a more emissions characteristics of nearly all in full compliance with the current 4.0 complete understanding of the optimum 2001 heavy heavy-duty engines. This g/bhp-hr NOX standard would likely technology path for compliance and the distinction between baselines is critical have sustained little or no increased fuel operating costs and savings which occur to the cost analysis and creates a costs relative to an engine meeting the over the life of the vehicle/engine as fundamental difference between the 2004 standard of 2.5 g/bhp-hr compared to the information that estimated costs presented in this NCP NMHC+NOX. The fuel economy existed during the standard-setting final rule and the estimated costs ‘‘penalty’’ associated with bringing an rulemaking presented in the standard-setting Upper Limit engine into compliance • The NCP is by statute intended to rulemaking. with the 2004 standards is probably protect the complying manufacturer and The compliance costs estimated in the equivalent to the penalty that would thus it is important to avoid standards setting rulemaking for the have resulted from bringing a current underestimating reasonably projected heavy heavy-duty engine service class non-complying engine into compliance actual costs. were intended to reflect the cost with the defeat device prohibition. However, this specific case is unique. associated with bringing an engine in Thus, the cost of reduced fuel economy The analysis presented in the NCP TSD full compliance with the current is incorporated into the NCP costs, but results in costs that differ from the standard of 4.0 g/bhp-hr NOX into full not into the estimated long-term estimated costs presented in the compliance with the 2004 NMHC+NOX rulemaking costs.
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• A heavy heavy-duty diesel engine the costs in the first year. As one would NCPs are not available and a heavy duty in full compliance with the current 4.0 expect, the immediate costs associated engine cannot be certified or introduced g/bhp-hr NOX standard would have with the first year of production are into commerce. CAA section 206(g)(2) incorporated different, more advanced higher than the long-term costs and are refers to the upper limit as a percentage emission control techniques and not representative of long-term costs above the emission standard, set by hardware to comply with the 4.0 g/bhp- because manufacturers often make regulation, that corresponds to an hr standard than have been incorporated significant progress in reducing certain emission level EPA determines to be on current 6.0 g/bhp-hr engines that do costs over time. This is especially true ‘‘practicable.’’ The upper limit is an not fully comply with the current for costs associated with hardware, important aspect of the NCP regulations regulations. Thus, additional costs reliability, and fuel consumption. not only because it establishes an associated with implementing Finally, in the process of conducting emission level above which no engine additional control technologies for 6.0 our cost analysis for this NCP rule, some can be certified, but it is also a critical g/bhp-hr engines, which are new information was provided that was component of the cost analysis used to incorporated into the NCP costs, include not brought to our attention during the develop the NCP factors. The some hardware and development costs prior rulemaking processes. For regulations specify that the relevant that would not have been applicable for example, the NCP analysis includes NCP costs for determining the COC50 the rulemaking analysis where the costs attributable to the truck factors are the difference between an baseline was a compliant 4.0 g/bhp-hr manufacturer (as opposed to the engine average engine at the upper limit and engine. manufacturer) that result from having to one that meets the new standards (see • A heavy heavy-duty diesel engine accommodate new engine 40 CFR 86.1113–87). in full compliance with the current 4.0 configurations with increased size and/ The regulatory approach adopted g/bhp-hr NOX standard would possibly or weight in their trucks. We have also under the first NCP rule sets the Upper have had more frequent oil change included the negative impact on Limit (UL) at the prior emission intervals, resulting in higher baseline revenue due to the increased weight of standard when a prior emission maintenance costs than the current 6.0 the engine and the resulting loss in standard exists and that standard is g/bhp-hr non-complying engines. The freight capacity, as well as the impact of changed and becomes more stringent. NCP costs presented in this rule post-warranty repair costs. We believe EPA concluded that the UL should be incorporate the lower operating costs of that incorporation of this information is reasonably achievable by all today’s engines in the baseline, with an appropriate to include in the NCP cost manufacturers with vehicles in the associated increase in operating costs to estimation analysis as it represents relevant class. It should be within reach comply with the 2.5 g/bhp-hr standard. industries’ most current perspective on of all manufacturers of HDEs or HDVs However, the operating costs estimated compliance costs. that are currently allowed so that they in the rulemakings that established the can, if they choose, pay NCPs and B. Discount Rate 2004 standards were based on engines continue to sell their engines and in full compliance with the 4.0 g/bhp- In the NPRM, we derived the factors vehicles while finishing their hr NOX standard. for the NCP formula using the net development of complying engines. A Thus, the use of fundamentally present value (NPV) of manufacturer manufacturer of a previously certified different baselines accounts for a and user costs. Consistent with other engine or vehicle should not be forced substantial amount of the difference EPA rulemaking analyses, a to immediately remove an HDE or HDV between the resulting cost estimates for compounding/discount rate of seven from the market when an emission heavy heavy-duty diesel engines. In percent was used in these calculations. standard becomes more stringent. In addition, as is described in the We also presented the values using a past NCP rules, the prior emissions Technical Support Document, even for rate of three percent and asked for standard meet these goals, because the other service classes that have comment on the issue including input manufacturers had already certified Upper Limits based directly on the 4.0 on which of two values was more their vehicles to that standard. In the g/bhp-hr NOX standard, the impact on appropriate or if another value or set of first NCP rule, EPA rejected a suggestion engine designs of the alleged defeat values was more representative of that the upper limit should be more device strategies used by a number of industry practice. As is discussed in the stringent than the prior emission engine manufacturers over the past Response to Comments document, the standard, because it would be very decade makes comparison between the response was mixed. Some commenters difficult to identify a limit that would be standard-setting rule cost analysis and supported seven percent, some three within reach of, and could be met by, this analysis difficult. percent, and one commenter supported all manufacturers. While the baseline issue described using different rates for compounding In this final action, we have above is the most important reason for pre-production costs and discounting established an Upper Limit for light- the differences between the NCP costs user costs but did not suggest values for heavy, medium-heavy and urban bus and the rulemaking costs, there is a these industry sectors. Given this mixed engines of 4.5g/bhp-hr NMHC+NOX, second major reason for the difference. response, EPA has decided to continue and for the heavy-heavy service class we Unlike the case with a rulemaking to use the seven percent value as it is have established an Upper Limit of 6.0 analysis, it is the objective of this NCP clear from the comments that this rate g/bhp-hr NMHC+NOX. These final rule analysis to focus solely on the is adequately representative of industry Upper Limit values are identical to the compliance costs associated with the practice and thus will protect the proposed values. first year of production. This has been complying manufacturers. Nonetheless, In this case, the new standard is a the historical approach to incorporating EPA will continue to seek more limit on the combination of cost parameters into the determination information on this issue for NOX+NMHC, while the prior regulatory of the NCP. Regulatory actions that consideration in future rule analyses. standards are separate limits, one for establish emission standards require NOX and one for total HC. In addition, analyses with a longer term view, C. Upper Limit in establishing the Upper Limit we took projecting costs out into future years The upper limit is the emission level into consideration that for a large and decades and not focusing solely on established by regulation above which portion of the industry, there are also
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emissions limits set under judicial off-cycle control (e.g., control of the Euro III test procedure for today’s Consent Decrees (CD), many of which emissions during operation not fully engines, and the 6.0 g/bhp-hr UL we are vary from the regulatory standards, in represented during the FTP, but which proposing is for the FTP. 2004 MY particular for the heavy-heavy service are captured by the supplemental tests engines eligible for certification under class as discussed latter in this section. contained in the CDs, the Euro III and this NCP rule will need to meet the The Consent Decrees establish legally NTE tests) that drives the design applicable FTP standard and will also binding requirements on the requirements for the engine need to comply with the defeat device manufacturers that directly affect the manufacturers. They are the legal prohibition. However, a 2004 MY way engine manufacturers design their requirements that drive the level of engine with EURO III levels engines. In many cases it is the CD control embodied in the engine design. significantly higher than its FTP levels limits, and not the regulatory standards, Model year 2001 certification data would raise significant concerns about that are the controlling factor and shows that combined HC and NOX compliance with the defeat device dictate the level of emissions control emissions for these engines are at or prohibition. While the Euro III is not a required on engines produced during below 6.0 g/bhp-hr when measured regulatory emissions standard in 2004, the term of the Decrees. Since the using the Euro III test.5 it is representative of typical highway purpose of an NCP is to address the real This NCP rulemaking focuses on cruise operation and EPA uses EURO III world problems associated with a technological laggards, which would be emissions levels as a screening tool in transition from a prior emissions those heavy-duty engines that need evaluating compliance with the defeat requirement to a new more stringent more lead time to comply with the 2004 device prohibition. See Advisory requirement, it is appropriate to take the NOX+NMHC standard. For heavy heavy- Circular 24–3. If EPA sets the UL at 6.0 CD requirements into account where the duty engines, the prior actual level of g/bhp-hr NOX+NMHC for the FTP, levels required under the CDs are in fact control that many manufacturers are continued production of engines with the controlling factor in establishing the now achieving and certifying to is EURO III levels comparable to 2001 MY prior level of control. established by the CDs and not by the levels of 6.0 g/bhp-hr would not be For light heavy-duty, medium heavy- 1998 regulatory emission standards. As expected to raise significant defeat duty, and urban bus engines, the CD such, an UL at the level of control device concerns. However, if EPA were requirements are consistent with the required under the CD would set a level to set the UL at 4.5 g/bhp-hr regulatory requirements for the current that is within the reach of all NOX+NMHC for the FTP, an engine FTP-based standards and the defeat manufacturers, including the with EURO III emissions levels of device prohibition. Manufacturers are technological laggards. It would be approximately 6.0 g/bhp-hr, like current currently certifying to the emissions reasonably achievable by all CD engines, would raise very significant levels provided under the CD. An manufacturers in this class, and would concerns about defeat device examination of model year 2001 avoid forcing the technical laggards to compliance, based on the disparity certification data shows that for both CD remove an engine from the market when between FTP and EURO III levels, EPA and non-CD engine manufacturers, the 2004 emissions standards go into would not expect that such an engine engines are generally being certified effect. It would allow continued could be certified. Setting an UL at 6.0 with HC emissions below 0.3 g/bhp-hr, production of current engines but would g/bhp-hr is therefore appropriate as it and no engines in these service classes not allow backsliding. A 6.0 g/bhp-hr should allow for the continued certified to the 4.0 g/bhp-hr NOX Upper Limit, therefore, is consistent production of engines with EURO III standard have a combined NOX plus HC with the policy embodied in the NCP levels comparable to those allowed emission level greater than 4.5 g/bhp- regulations. under the CD for MY 2001. hr.4 Therefore, an UL of 4.5 g/bhp-hr EPA recognizes that under the CD this We received comments both NOX+NMHC on the FTP is most group of heavy-duty engines is also supporting and opposing an Upper consistent with the policy approach required to achieve the 2004 emissions Limit of 6.0 g/bhp-hr for the heavy- embodied in 40 CFR 86.1104–91, levels by October 2002. However, as heavy service class. One commenter allowing continued production of discussed before, EPA has determined who opposed the 6.0 value suggested current engines, but not allowing that there is likely to be a technological that an UL of 4.5 was appropriate for the backsliding. We received only laggard for purposes of meeting the 2004 heavy-heavy engines. However, an UL standards. The prior deadline in the CD supportive comments on the proposal to of 4.5 NOX +NMHC would require that establish an Upper Limit of 4.5 g/bhp- does not change this determination, and CD engine manufacturers significantly hr NMHC+NOX for the light heavy-duty, means only that some manufacturers reduce the level of off-cycle emissions medium heavy-duty, and urban bus would also be subject to the for these engines. Such an emission engines. requirements in the CD, including its reduction would require significant For heavy heavy-duty engines, compliance and enforcement design changes for existing engines at however, the CDs provides a provisions. The CDs allow the same time design work is underway significantly different approach. For manufacturers to pay penalties to to meet the 2.5 standard. This approach these engines, limits are set for Euro III produce engines which emit above the is inconsistent with the policy EPA has and not-to-exceed (NTE) levels that October 2002 emission limits defined in used in past NCP rulemakings, where allow for significantly higher emissions the CDs, thus the CDs also provide a the Upper Limit has been established at off the FTP than EPA would expect to mechanism for technological laggards to a level which would allow engine allow under the defeat device continue to produce today’s engines. manufacturers to continue to focus on prohibition. While the CDs, like the EPA also recognizes that the CD calls developing the technology necessary to regulations, require the use of the FTP for compliance with a 4.0 NOX standard comply with the new emission to measure emissions, it is the level of on the FTP and with a 6.0 NOX limit for standards rather than diverting resources to comply with an 4 5 EPA Memorandum ‘‘Summary of Model Year EPA Memorandum ‘‘Summary of Model Year intermediate emission level more 2001 Heavy-duty Diesel Engine HC and NOX 2001 Heavy-duty Diesel Engine HC and NOX Certification Data’’, copy available in the docket for Certification Data’’, copy available in the docket for stringent than existing products but not this rulemaking. this rulemaking. at the level of the new standard. A more
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detailed discussion of the comments we in the marketplace by such a non- rates. However, this cost element is received and our response to those complying engine. EPA indicated there difficult to estimate because actual fuel comments is contained in the Response was significant uncertainty in this costs will vary based on the price of the to Comments document for this final regard, and that in any case it would be fuel and on the vehicle operation. We rule. hard to quantify this competitive benefit proposed to use the current fuel price, with adequate certainty. D. Use of Penalty Funds but we also requested comment on the EPA asked for comment on this issue use of an average fuel price. As Some of the comments on the and for input on how to accommodate described below, we now believe that a proposed rule suggested that the it in protecting the complying five-year average best approximates revenues generated by the NCPs should manufacturer. Two companies future actual fuel costs considering the be used for clean air projects, such as supported this concern and one economic significance of changes in fuel regional PM and toxics reduction suggested an approach based on consumption rates. projects and diesel retrofit projects. It is including the lost profit margin in the not within EPA’s authority or ability to NCP. EPA sees no practical way to Fuel price varies with time and with direct the use of the penalty monies. implement this comment. It would location. According to the Energy Section 206(g) of the Clean Air Act, 42 require proprietary profit margin, cost, Information Administration (EIA), the U.S.C. § 7525(g), authorizes EPA to price, and perhaps other economic national average highway diesel fuel establish nonconformance penalties, but analysis information for this industry price in February of 1999 was 95 cents it does not authorize EPA to retain and (e.g., price elasticity) not available to per gallon (with taxes), but in October use any penalty monies paid by a EPA even to evaluate it, and even at that of 2000 it was $1.67 per gallon (with manufacturer. Absent such authority to it is difficult to judge the degree to taxes). That represents a 76 percent retain and use penalty monies received, which the purchaser perception will increase in the fuel price within a two the Miscellaneous Receipts Act, 31 affect purchase decisions (i.e., how year period. Figure 5 shows the U.S.C. § 3302(b), requires that such many engine purchases will switch to variation in diesel fuel prices adjusted monies be deposited in the General NCP engines based solely on this for inflation. In terms of constant Revenue Fund of the U.S. Treasury. concern). The comments did not dollars, the price of diesel fuel in the Funds deposited in the General Revenue provide adequate information to late 1990s was unusually low. We Fund may then be appropriated by evaluate the incorporation of an believe that a five-year average most Congress. additional adjustment. Given the appropriately addresses the longer term uncertainty and difficulty in quantifying trends of fuel prices. Thus, we E. Incorporating Factors Not Provided the purchaser perception element EPA calculated the fuel consumption for in the NCP Regulations cannot incorporate an additional impacts using a fuel price of $1.29 per In the NPRM EPA invited comment element in the NCP formula at this time. gallon for calendar years 2004 and 2005, on whether an adjustment to the NCP Nonetheless, we will continue to which represents the five-year average level should be added to account for the consider this issue in the future, retail price of on-highway diesel fuel for potential competitive benefits gained by including evaluating whether there is 1997 through 2001 (EIA estimate) producing an engine that has better usable data available to quantify this adjusted using the Consumer Price performance characteristics compared to factor for future NCP rules. Index (CPI) to be equivalent to 2001 a complying engine. EPA invited dollars, plus 44 cents for federal and comment on whether the current cost F. Fuel Cost state tax. We use a fuel price of $1.34 factors used to develop the NCP levels, One of the most significant categories per gallon for later calendar years to such as warranty and related costs, fully of cost is the cost related to the impact account for the introduction of lower reflected the competitive benefits gained of the standards on fuel consumption sulfur fuel.
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Another important factor in manufacturer elects to use NCPs, these between the rule and the fallback estimating fuel cost is how much fuel a manufacturers and the users of their provisions (assuming the rule becomes model year 2004 vehicle will use over products will not incur any additional final before October 1, 2002) would be its lifetime. This is most important for costs related to NCPs. NCPs remedy the less than $100 million in total for any heavy-heavy duty engines. Some potential problem of having a year in which the consent decree vehicles may be scrapped after their manufacturer’s engines forced out of the penalties are an option for the regulatory useful life (435,000 miles) marketplace due to that manufacturer’s manufacturers. while others may be rebuilt more than inability to conform to new, strict V. Environmental Impact once and not be scrapped until after 2 emission standards in a timely manner. million miles. Thus, the fuel cost could Without NCPs, a manufacturer which When evaluating the environmental impact of this rule, one must keep in vary by a factor of four from one vehicle has difficulty certifying HDEs in mind that, under the Act, NCPs are a to another. We addressed this by using conformance with emission standards or consequence of enacting new, more estimated average lifetime mileages of whose engines fail a Selective stringent emissions requirements for each service class for our COC50 Enforcement Audit has only two analysis, and high mileage estimates for heavy duty engines. Emission standards alternatives: fix the nonconforming are set at a level that most, but not the COC90 analysis. The mileage engines, perhaps at a prohibitive cost, or estimates that we used in our analysis necessarily all, manufacturers can do not introduce them into commerce. achieve by the model year in which the are shown in the table below. The The availability of NCPs provides Technical Support Document provides standard becomes effective. Following manufacturers with a third alternative: International Harvester v. Ruckelshaus, more information about how we used upon payment of a penalty, continue these mileage estimates (see Chapter III). 478 F. 2d 615 (D.C. Cir. 1973), Congress production and introduce into realized the dilemma that technology- commerce an engine that exceeds the ESTIMATES OF LIFETIME VEHICLE forcing standards might cause for motor standard until an emission conformance vehicle manufacturers, and allowed MILES TRAVELED (VMT) USED IN technique is developed. Therefore, manufacturers of heavy-duty engines to COST ANALYSIS NCPs represent a regulatory mechanism certify nonconforming vehicles/engines that allows affected manufacturers to upon the payment of an NCP, under VMT for VMT used have increased flexibility. A decision to average for COC90 certain conditions. This mechanism vehicle analysis use NCPs may be a manufacturer’s only would allow manufacturer(s) who way to continue to introduce HDEs into cannot meet technology-forcing Light Heavy ...... 209,000 280,000 commerce. The NCP rates promulgated standards immediately to continue to Medium Heavy .. 262,000 343,000 in this rule will also be used to set the manufacture these nonconforming Heavy Heavy .... 767,000 1,000,000 per engine penalty under the October engines while they tackle the 1998 consent decrees between several technological problems associated with IV. Economic Impact heavy-duty diesel engine manufacturers meeting new emission standard(s). Because the use of NCPs is optional, and the EPA. EPA recognizes that if we Thus, as part of the statutory structure manufacturers have the flexibility and did not set this rule the per engine to force technological improvements will likely choose whether or not to use penalty under fallback provisions in the while avoiding driving manufacturers NCPs based on their ability to comply consent decrees would be less. We out of the market, NCPs provide with emissions standards. If no HDE expect the net difference in effect flexibility that fosters long-term
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emissions improvement through the or loan programs or the rights and submitted for approval to the Office of setting of lower emission standards at obligations of recipients thereof; or, Management and Budget (OMB) under an earlier date than might otherwise be • raise novel legal or policy issues the Paperwork Reduction Act, 44 U.S.C. possible. By design, NCPs encourage the arising out of legal mandates, the 3501 et seq. An Information Collection technological laggard that is using NCPs President’s priorities, or the principles Request (ICR) document has been to reduce emission levels to the more set forth in the Executive Order. prepared by EPA (ICR No. 1285.05) and stringent standard as quickly as Pursuant to the terms of Executive a copy may be obtained from Susan possible. Order 12866, the Office of Management Auby by mail at U.S. Environmental However, we believe that the and Budget (OMB) has notified EPA that Protection Agency (2822), Office of potential exists for there to be more it considers this a ‘‘significant Environmental Information, Collection widespread use of the NCPs in this rule regulatory action’’ within the meaning Strategies Division, 1200 Pennsylvania in comparison to prior NCPs, thus of the Executive Order. This action was Avenue., NW., Washington, DC 20460, indicating the possibility for an submitted to OMB for review as by email at environmental impact somewhat greater required by Executive Order 12866. For [email protected], or by in magnitude than we have suggested in this reason, written comments from calling (202) 566–1672. A copy may also OMB on today’s action and documents prior NCP rules. Nevertheless, we be downloaded off the internet at http:/ submitted to OMB are in the public believe that any such impacts would be /www.epa.gov/icr. The following ICR docket for this rulemaking. short-term in nature. By including an document has been prepared by EPA: annual adjustment factor that increases B. Regulatory Flexibility Analysis EPA ICR # Title the levels of the penalties, the NCP EPA has determined that it is not program is structured such that the necessary to prepare a regulatory 1285.05 .... Nonconformance Penalties for incentives to produce engines that meet flexibility analysis in connection with Heavy-Duty Engines and the standards increase year-by-year. The this final rule. EPA has also determined Heavy-Duty Vehicles, Includ- practical impact of this adjustment that this rule will not have a significant ing Light-Duty Trucks; Report- factor is that the NCPs will rapidly economic impact on a substantial ing and Recordkeeping Re- become an unattractive option for non- number of small entities. For purposes quirements. complying manufacturers. However, we of assessing the impact of today’s rule are not able to predict at this time how on small entities, small entities are The Agency will collect information many manufacturers will make use of defined as: (1) A small business that has related to nonconformance penalties. the NCPs, how many engine families no more than 1,000 employees; (2) a This information will be used to ensure would be subject to the NCP program, small governmental jurisdiction that is a compliance with and enforce the or what level of emissions the engines government of a city, county, town, provisions in this rule. Responses will will exhibit. Because of these school district or special district with a be mandatory in order to complete the uncertainties we are unable to population of less than 50,000; and (3) certification process. Section 206(g) of accurately quantify the potential impact a small organization that is any not-for- the Clean Air Act (Act) contains the the NCPs might have on emission profit enterprise which is independently nonconformance penalty provisions. inventories, although, as stated above, owned and operated and is not Section 208(a) of the Clean Air Act any impacts are expected to be short- dominant in its field. requires that manufacturers provide term in nature. After considering the economic information the Administrator may reasonably require to determine VII. Administrative Requirements impacts of today’s final rule on small entities, EPA has concluded that this compliance with the regulations; A. Regulatory Planning and Review: action will not have a significant submission of the information is Executive Order 12866 economic impact on a substantial therefore mandatory. EPA will consider confidential all information meeting the Under Executive Order 12866 (58 FR number of small entities. This final rule will not impose any requirements on requirements of section 208(c) of the 51735, Oct. 4, 1993), the Agency is Clean Air Act. required to determine whether this small entities. The NCPs that are established by this final rule are for This collection of information affects regulatory action would be ‘‘significant’’ an estimated 2 respondents with a total and therefore subject to review by the emission standards that pertain to heavy-duty diesel engines. When these of 52 responses per year and an total Office of Management and Budget hour burden of 1,178 hours, for an (OMB) and the requirements of the emission standards were established, the final rulemaking (65 FR 59895, estimated 23 hours per response, with Executive Order. The order defines a estimated total annualized costs of ‘‘significant regulatory action’’ as any October 6, 2000) noted that only two small entities were known to be $18,200.00 per year. The hours and regulatory action that is likely to result annual cost of information collection in a rule that may: affected. Those entities were small businesses that certify alternative fuel activities by a given manufacturer • Have an annual effect on the engines or vehicles, either newly depends on manufacturer-specific economy of $100 million or more or manufactured or modified from variables, such as the number of engine adversely affect in a material way the previously certified gasoline engines. families, production changes, and so economy, a sector of the economy, The emission standards for heavy-duty forth. Burden means the total time, productivity, competition, jobs, the diesel engines, for which NCPs are effort, or financial resources expended environment, public health or safety, or promulgated in this final rule, do not by persons to generate, maintain, retain, State, local, or tribal governments or pertain to the engines manufactured by or disclose or provide information to or communities; these businesses. for a Federal agency. This includes the • create a serious inconsistency or time needed to review instructions; otherwise interfere with an action taken C. Compliance with the Paperwork develop, acquire, install, and utilize or planned by another agency; Reduction Act technology and systems for the purposes • materially alter the budgetary The information collection of collecting, validating, and verifying impact of entitlements, grants, user fees, requirements in this final rule have been information, processing and
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maintaining information, and disclosing rule an explanation why that alternative ensure ‘‘meaningful and timely input by and providing information; adjust the was not adopted. tribal officials in the development of existing ways to comply with any Before EPA establishes any regulatory regulatory policies that have tribal previously applicable instructions and requirements that may significantly or implications.’’ requirements; train personnel to be able uniquely affect small governments, This final rule does not have tribal to respond to a collection of including tribal governments, it must implications as specified in Executive information; search data sources; have developed under section 203 of the Order 13175. The non-conformance complete and review the collection of UMRA a small government agency plan. penalties and associated requirements information; and transmit or otherwise The plan must provide for notifying in this final rule apply only to heavy- disclose the information. potentially affected small governments, duty diesel engine manufacturers. An Agency may not conduct or enabling officials of affected small F. National Technology Transfer and sponsor, and a person is not required to governments to have meaningful and Advancement Act respond to a collection of information timely input in the development of EPA unless it displays a currently valid OMB regulatory proposals with significant Section 12(d) of the National control number. The OMB control Federal intergovernmental mandates, Technology Transfer and Advancement numbers for EPA’s regulations are listed and informing, educating, and advising Act of 1995 (NTTAA), Section 12(d) of in 40 CFR part 9 and 48 CFR Chapter small governments on compliance with Public Law 104–113, directs EPA to use 15. the regulatory requirements. voluntary consensus standards in its Comments are requested on the This final rule contains no Federal regulatory activities unless to do so Agency’s need for this information, the mandates (under the regulatory would be inconsistent with applicable accuracy of the provided burden provisions of Title II of the UMRA) for law or otherwise impractical. Voluntary estimates, and any suggested methods State, local, or tribal governments or the consensus standards are technical for minimizing respondent burden, private sector. The final rule will standards (e.g., materials specifications, including through the use of automated impose no enforceable duty on any test methods, sampling procedures, and collection techniques. Send comments State, local or tribal governments or the business practices) developed or on the ICR to the Director, Collection private sector. adopted by voluntary consensus Strategies Division, Office of EPA has determined that this rule standards bodies. The NTTAA directs Environmental Information, U.S. does not contain a Federal mandate that EPA to provide Congress, through OMB, Environmental Protection Agency may result in expenditures of $100 explanations when the Agency decides (2822); 1200 Pennsylvania Ave., NW., million or more for State, local, and not to use available and applicable Washington, DC 20460; and to the tribal governments, in the aggregate, or voluntary consensus standards. Office of Information and Regulatory the private sector in any one year. This final rule does not involve Affairs, Office of Management and Because the use of NCPs is optional, technical standards. Therefore, EPA did Budget, 725 17th St., NW., Washington, manufacturers have the flexibility and not consider the use of any voluntary DC 20503, marked ‘‘Attention: Desk will likely choose whether or not to use consensus standards. NCPs based on their ability to comply Officer for EPA.’’ Include the ICR G. Executive Order 13045: Children’s number 1285.05 in any correspondence. with emissions standards. Without Health Protection NCPs, manufacturers must either D. Unfunded Mandates Reform Act modify the engine to be in compliance Executive Order 13045: ‘‘Protection of Title II of the Unfunded Mandates with the standards or withdraw the Children from Environmental Health Reform Act of 1995 (UMRA), Public engine from the marketplace. The Risks and Safety Risks’’ (62FR19885, Law 104–4, establishes requirements for availability of NCPs provides April 23, 1997) applies to any rule that: Federal agencies to assess the effects of manufacturers with a third alternative: (1) Is determined to be ‘‘economically their regulatory actions on State, local, continue production and introduce into significant’’ as defined under Executive and tribal governments and the private commerce upon payment of a penalty Order 12866, and (2) concerns an sector. Under section 202 of the UMRA, an engine that exceeds the standard environmental health or safety risk that EPA generally must prepare a written until an emission conformance EPA has reason to believe may have a statement, including a cost-benefit technique is developed. Therefore, disproportionate effect on children. If analysis, for proposed and final rules NCPs represent a regulatory mechanism the regulatory action meets both criteria, with ‘‘Federal mandates’’ that may that allows affected manufacturers to the Agency must evaluate the result in expenditures to State, local, have increased flexibility. Thus, today’s environmental health or safety effects of and tribal governments, in the aggregate, rule is not subject to the requirements the planned rule on children, and or to the private sector, of $100 million of sections 202 and 205 of the UMRA. explain why the planned regulation is or more in any one year. Before EPA has determined that this rule preferable to other potentially effective promulgating an EPA rule for which a contains no regulatory requirements that and reasonably feasible alternatives written statement is needed, section 205 might significantly or uniquely affect considered by the Agency. of the UMRA generally requires EPA to small governments. The requirements of EPA interprets Executive Order 13045 identify and consider a reasonable this rule apply only to the as applying only to those regulatory number of regulatory alternatives and manufacturers of heavy-duty diesel actions that are based on health or safety adopt the least costly, most cost- engines. risks, such that the analysis required effective or least burdensome alternative under section 5–501 of the Order has that achieves the objectives of the rule. E. Executive Order 13175: Consultation the potential to influence the regulation. The provisions of section 205 do not and Coordination With Indian Tribal This final rule is not subject to apply when they are inconsistent with Governments Executive Order 13045 because it does applicable law. Moreover, section 205 Executive Order 13175, entitled not establish an environmental standard allows EPA to adopt an alternative other ‘‘Consultation and Coordination with intended to mitigate health or safety than the least costly, most cost-effective Indian Tribal Governments’’ (65 FR risks and because it is not economically or least burdensome alternative if the 67249, November 6, 2000), requires EPA significant as defined in Executive Administrator publishes with the final to develop an accountable process to Order 12866.
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H. Executive Order 13132: Federalism J. Congressional Review Act for inflation to dollars as of January of The Congressional Review Act, 5 the calendar year preceding the model Executive Order 13132, entitled year in which the NCP is first available ‘‘Federalism’’ (64 FR 43255, August 10, U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement by using the change in the overall 1999), requires EPA to develop an Consumer Price Index, and rounded to accountable process to ensure Fairness Act of 1996, generally provides that before a rule may take effect, the the nearest whole dollar in accordance ‘‘meaningful and timely input by State with ASTM E29–67 (reapproved 1980), and local officials in the development of agency promulgating the rule must submit a rule report, which includes a Standard Recommended Practice for regulatory policies that have federalism Indicating Which Places of Figures are implications.’’ ‘‘Policies that have copy of the rule, to each House of the Congress and to the Comptroller General to be Considered Significant in federalism implications’’ is defined in Specified Limiting Values. The method the Executive Order to include of the United States. EPA will submit a report containing this rule and other was approved by the Director of the regulations that have ‘‘substantial direct Federal Register in accordance with 5 effects on the States, on the relationship required information to the U.S. Senate, the U.S. House of Representatives, and U.S.C. 552(a) and 1 CFR part 51. This between the national government and document is available from ASTM the States, or on the distribution of the Comptroller General of the United States prior to publication of the rule in International, 100 Barr Harbor Drive, power and responsibilities among the P.O. Box C700, West Conshohocken, PA various levels of government.’’ the Federal Register. A ‘‘major rule’’ cannot take effect until 60 days after it 19428–2959, and is also available for This final rule does not have is published in the Federal Register. inspection as part of Docket A–91–06, federalism implications. It will not have This action is not a ‘‘major rule’’ as located at the Central Docket Section, substantial direct effects on the States, defined by 5 U.S.C. 804(a). EPA, 401 M Street, SW., Washington, on the relationship between the national DC or at the Office of the Federal government and the States, or on the List of Subjects in 40 CFR Part 86 Register, 800 North Capitol Street, NW., distribution of power and Environmental protection, suite 700, Washington, DC. This responsibilities among the various Administrative practice and procedure, incorporation by reference was levels of government, as specified in Confidential business information, approved by the Director of the Federal Executive Order 13132. This final rule Motor vehicle pollution, Reporting and Register on January 13, 1992. These adopts NCPs for national emission recordkeeping requirements. materials are incorporated as they exist standards for certain categories of motor on the date of the approval and a notice Dated: August 1, 2002. vehicles. Thus, Executive Order 13132 of any change in these materials will be does not apply to this rule. Christine Todd Whitman, published in the Federal Register. Administrator. I. Executive Order 13211: Energy Effects * * * * * For the reasons set forth in the (i) Effective in the 2004 model year, This final rule is not a ‘‘significant preamble, chapter I, title 40 of the Code NCPs will be available for the following energy action’’ as defined in Executive of Federal Regulations is amended as emission standard: Order 13211, ‘‘Actions Concerning follows: (1) Diesel heavy-duty engine non- Regulations That Significantly Affect methane hydrocarbon plus oxides of PART 86—CONTROL OF EMISSIONS Energy Supply, Distribution, or Use’’ (66 nitrogen standard of 2.4 grams per brake FROM NEW AND IN-USE HIGHWAY FR 28355, May 22, 2001) because it is horsepower-hour (or alternatively, 2.5 VEHICLES AND ENGINES not likely to have a significant adverse grams per brake horsepower-hour with effect on the supply, distribution, or use 1. The authority citation for part 86 a limit on non-methane hydrocarbon of energy. As described in the 2000 final continues to read as follows: emissions of 0.5 grams per brake rule in which we affirmed the 2004 Authority: 42 U.S.C. 7401—7521(l) and horsepower-hour), in § 86.004– standard (65 FR 59896, Oct. 6, 2000), we 7521(m)—7671q. 11(a)(1)(i). have concluded that there would be no (i) For light heavy-duty diesel 2. Section 86.1105–87 is amended by net long-term change in the fuel engines: revising paragraph (e) and by adding consumption performance of heavy- (A) The following values shall be used paragraph (i), to read as follows: duty diesel engines as a result of the to calculate an NCP in accordance with 2004 model year emission standards. § 86.1105–87 Emission standards for § 86.1113–87(a): However, there may be the potential for which nonconformance penalties are (1) COC50: $1,240. higher fuel consumption rates in the available. (2) COC90: $2,710. short term as diesel engine * * * * * (3) MC50: $2,000 per gram per brake manufacturers work to balance the (e) The values of COC50, COC90, and horsepower-hour. inherent tradeoff between control of MC50 in paragraphs (a) and (b) of this (4) F: 1.3. NOX emissions and fuel consumption. section are expressed in December 1984 (5) UL: 4.5 grams per brake The availability of NCPs for the 2004 dollars. The values of COC50, COC90, horsepower-hour; notwithstanding and later model years provides and MC50 in paragraphs (c) and (d) of § 86.1104–91. manufacturers with another option for this section are expressed in December (B) The following factor shall be used balancing this tradeoff and working 1989 dollars. The values of COC50, to calculate the engineering and towards optimizing fuel consumption COC90, and MC50 in paragraph (f) of this development component of the NCP for and emissions—they would be able to section are expressed in December 1991 the standard set forth in § 86.004– use NCPs to emit somewhat higher NOX dollars. The values of COC50, COC90, 11(a)(1)(i) in accordance with levels than they would otherwise be and MC50 in paragraphs (g) and (h) of § 86.1113–87(h): 0.403. allowed, while at the same time this section are expressed in December (ii) For medium heavy-duty diesel avoiding undesirable fuel consumption 1994 dollars. The values of COC50, engines: impacts. Thus, we have concluded that COC90, and MC50 in paragraph (i) of this (A) The following values shall be used this final rule is not likely to have any section are expressed in December 2001 to calculate an NCP in accordance with significant adverse energy effects. dollars. These values shall be adjusted § 86.1113–87(a):
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(1) COC50: $2,740. SUMMARY: Delaware applied to EPA for CFR 262, Subparts E and H, will (2) COC90: $4,930. final authorization of revisions to its continue to be administered by EPA. (3) MC50: $1,400 per gram per brake hazardous waste program under the On January 11, 2002, Delaware horsepower-hour. Resource Conservation and Recovery submitted to EPA a complete program (4) F: 1.3. Act (RCRA). EPA has reached a final revision application, in accordance with (5) UL: 4.5 grams per brake determination that these changes to the 40 CFR 271.21, seeking authorization of horsepower-hour; notwithstanding Delaware hazardous waste program additional changes to its program. On § 86.1104–91. satisfy all requirements necessary for February 27, 2002, EPA published both (B) The following factor shall be used final authorization. Thus, with respect an immediate final rule (67 FR 8900– to calculate the engineering and to these revisions, EPA is granting final 8902) granting Delaware final development component of the NCP for authorization to the State to operate its authorization for these revisions to its the standard set forth in § 86.004– program subject to the limitations on its federally-authorized hazardous waste 11(a)(1)(i) in accordance with authority retained by EPA in accordance program, along with a companion § 86.1113–87(h): 0.197. with RCRA, including the Hazardous proposed rule announcing EPA’s (iii) For heavy heavy-duty diesel and Solid Waste Amendments of 1984. proposal to grant such final engines: authorization (67 FR 8925–8926). EPA (A) The following values shall be used EFFECTIVE DATE: Final authorization for the revisions to Delaware’s hazardous announced in both notices that the to calculate an NCP in accordance with immediate final rule and the proposed § 86.1113–87(a): waste management program shall be effective on August 8, 2002. rule were subject to a thirty-day public (1) COC50: $6,810. comment period. The public comment FOR FURTHER INFORMATION CONTACT: (2) COC90: $12,210. period ended on March 29, 2002. (3) MC50: $5,600 per gram per brake Lillie Ellerbe, Mailcode 3WC21, RCRA Further, EPA stated in both notices that horsepower-hour. State Programs Branch, U.S. EPA Region if it received adverse comments on its (4) F: 1.3. III, 1650 Arch Street, Philadelphia, PA intent to authorize Delaware’s program (5) UL: 6.0 grams per brake 19103–2029, Phone number: (215) 814– revisions that it would (1) withdraw the horsepower-hour; notwithstanding 5454. immediate final rule; (2) proceed with § 86.1104–91. SUPPLEMENTARY INFORMATION: the proposed rule as the basis for the (B) The following factor shall be used receipt and evaluation of such to calculate the engineering and A. Why are Revisions to State Programs comments, and (3) subsequently publish development component of the NCP for Necessary? a final determination responding to the standard set forth in § 86.004– States which have received final such comments and announce its final 11(a)(1)(i) in accordance with authorization from EPA under RCRA decision whether or not to authorize § 86.1113–87(h): 0.090. section 3006(b), 42 U.S.C. 6926(b), must Delaware’s program revisions. EPA did (iv) For diesel urban bus engines: maintain a hazardous waste program receive written comments from two (A) The following values shall be used that is equivalent to, consistent with, to calculate an NCP in accordance with commenters during the public comment and no less stringent than the Federal period and on April 25, 2002, published § 86.1113–87(a): program. As the Federal program (1) COC : $3,930. a notice withdrawing the immediate 50 changes, States must revise their final rule (67 FR 20446). Today’s action (2) COC90: $6,660. programs accordingly and ask EPA to responds to the comments EPA received (3) MC50: $3,800 per gram per brake authorize the revisions. Revisions to and publishes EPA’s final determination horsepower-hour. State programs may be necessary when (4) F: 1.3. granting Delaware final authorization of (5) UL: 4.5 grams per brake Federal or State statutory or regulatory its program revisions. Further horsepower-hour; notwithstanding authority is changed. For example, most background on EPA’s immediate final § 86.1104–91. commonly, States must revise their rule and its tentative determination to (B) The following factor shall be used programs when EPA promulgates grant authorization to Delaware for its to calculate the engineering and changes to its regulations in 40 Code of program revisions appears in the development component of the NCP for Federal Regulations (CFR) parts 124, aforementioned Federal Register the standard set forth in § 86.004– 260 through 266, 268, 270, 273 and 279. notices. The issues raised by the 11(a)(1)(i) in accordance with Delaware received final authorization commenters are summarized and § 86.1113–87(h): 0.155. on June 8, 1984, effective June 22, 1984 responded to as follows. (2) [Reserved] (53 FR 23837), to implement a hazardous waste management program B. What Were the Comments and [FR Doc. 02–19981 Filed 8–7–02; 8:45 am] in lieu of the Federal Program. EPA Responses to EPA’s Proposal? BILLING CODE 6560–50–P subsequently granted authorization for Both commenters challenged Region revisions to Delaware’s program on III’s process for authorizing revisions to August 8, 1996, effective October 7, Delaware’s program in not providing for ENVIRONMENTAL PROTECTION 1996 (61 FR 41345); August 18, 1998, a public hearing, which, they state, is AGENCY effective October 19, 1998 (63 FR required by 40 CFR 271.20. EPA 44152); and July 12, 2000, effective disagrees. The regulations relied upon 40 CFR Part 271 September 11, 2000 (65 FR 42871). by the commenters apply to initial [FRL–7256–8] Please note that in the aforementioned program authorization, and not, as in authorization action effective September the instant matter, to program revisions. Delaware: Final Authorization of State 11, 2000, Checklist 152 was listed in the Rather, EPA has proceeded in Hazardous Waste Management program revision summary table. This accordance with 40 CFR 271.21 Program Revision checklist includes certain import/export pursuant to which public hearings are AGENCY: Environmental Protection provisions for which States cannot not required. On March 4, 1986, at 51 Agency (EPA). receive authorization. While Delaware FR 7540–7542, EPA promulgated adopted the provisions listed in amendments to 40 CFR 271.21 that ACTION: Final rule. Checklist 152, the revisions listed in 40 eliminated public hearing requirements
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for program revisions. In this March 4, With regard to the ‘‘use constituting Disposal Facilities (TSDFs) within its 1986 Federal Register EPA stated: ‘‘As disposal’’ provisions of 40 CFR part borders and for carrying out the aspects discussed in the proposal, the new 266—subpart C, in the context of of the RCRA program described in its procedures do not require public fertilizer applications, these provisions application, subject to the limitations of hearings to be held in conjunction with in Delaware’s program were authorized the Hazardous and Solid Waste EPA’s authorization decisions. Since by EPA as part of Delaware’s first Amendments of 1984 (HSWA). New there is no legal requirement to provide program revision, which took effect on Federal requirements and prohibitions for hearings on revision decisions and October 7, 1996—over five years ago. As imposed by Federal regulations that little public interest has been shown to is Delaware’s practice, Delaware EPA promulgates under the authority of date in attending hearings on initial adopted EPA’s rules verbatim. HSWA take effect in authorized States authorization of State programs, we Therefore, in the State’s revision before they are authorized for the think the opportunity to provide written authorization application, Delaware requirements. Thus, EPA will comments is adequate. Only one claimed its rules were equivalent to implement any such HSWA comment was received on the EPA’s. requirements and prohibitions in elimination of routine public hearings, Delaware’s current revision Delaware, including issuing HSWA and that comment favored the rule application, for which EPA recently permits, until the State is granted change. However, while the regulatory published its tentative approval, with an authorization to do so. requirement is deleted, a Regional opportunity for public comment, does For further background on the scope Administrator, in his discretion, could not include any regulatory revisions to and effect of today’s action to approve decide to hold a hearing.’’ (51 FR 7541). 40 CFR part 266—subpart C. Since the Delaware’s RCRA program revisions, Consequently, EPA Region III believes comment EPA has received on ‘‘use please refer to the preambles of EPA’s it adhered to the governing regulations constituting disposal’’ is not part of February 27, 2002 proposed and regarding opportunities for public Delaware’s most recent program immediate final rules to grant hearings during the EPA approval revision application, EPA believes the authorization to Delaware for its process for State program revisions. EPA public comments on ‘‘use constituting program revisions, at 67 FR 8925–8926 Region III also believes that due to the disposal’’ are not within the scope of and 67 FR 8900–8902, respectively. nature and limited number of comments this Agency action. D. Administrative Requirements received, the opportunity to provide for One commenter raised a third issue written comments, in lieu of a public and claimed that Delaware’s EPA- The Office of Management and Budget hearing, was an adequate process to delegated National Pollutant Discharge has exempted this action from the obtain public comment. Elimination System (NPDES) program is requirements of Executive Order 12866 Both commenters shared a concern not being effectively carried out. The (58 FR 51735, October 4, 1993); about the ‘‘use constituting disposal’’ commenter questioned why EPA would therefore, this action is not subject to provisions of subpart C of 40 CFR part grant additional hazardous waste review by OMB. This action authorizes 266. They appear to have concerns management authority to a State agency State requirements for the purpose of about the provisions of Delaware that is allegedly not performing well in RCRA 3006 and imposes no additional regulations (which are identical to another program area. EPA has requirements beyond those imposed by EPA’s) that allow, under certain determined that there is no basis in 40 State law. Accordingly, I certify that this conditions, ‘‘hazardous wastes,’’ like CFR part 271 that requires EPA to action will not have a significant lime-based slag, to be used as a evaluate the effectiveness of any other economic impact on a substantial ‘‘fertilizer.’’ They argue that Delaware’s environmental program’s management number of small entities under the statute (like RCRA) does not allow the in Delaware before authorizing revisions Regulatory Flexibility Act (5 U.S.C. 601 land application of hazardous wastes to Delaware’s hazardous waste program. et seq.). Because this action authorizes (beneficial or not) unless it occurs at a Based on EPA’s oversight of Delaware’s pre-existing requirements under State permitted disposal facility. For the hazardous waste program over the years, law and does not impose any additional reasons set forth below, EPA disagrees. EPA has determined that DNREC enforceable duty beyond that required EPA’s regulations accommodate the implements an effective hazardous by State law, it does not contain any proper reuse, recycling and reclamation waste program, and EPA sees no reason unfunded mandate or significantly or of as many resources destined for not to proceed with authorizing uniquely affect small governments, as disposal as possible, while regulating Delaware’s hazardous waste program described in the Unfunded Mandates hazardous wastes and hazardous waste revisions. Reform Act of 1995 (Public Law 104–4). residuals that must be discarded. For the same reason, this action does EPA’s regulations at 40 CFR part 266, C. What Decisions Have We Made in not have tribal implications within subpart C, place controls on the This Rule? meaning of Executive Order 13175 (65 management of hazardous wastes before Based on EPA’s response to public FR 68249, November 6, 2000). This such wastes are made into a fertilizer. comments, the Agency has determined action does not have substantial direct Producing fertilizer from an otherwise that approval of Delaware’s RCRA effects on tribal governments, on the hazardous waste is a type of recycling program revisions should proceed. EPA relationship between the Federal which, in EPA’s regulations, is referred has made a final determination that government and the Indian tribes, or on to as ‘‘use constituting disposal.’’ Rather Delaware’s application to revise its the distribution of power and than prohibiting the use of waste- authorized program meets all of the responsibilities between the Federal derived fertilizers, EPA promulgated statutory and regulatory requirements government and Indian tribes, as regulations to require that hazardous established by RCRA. Therefore, we specified in Executive Order 13175. wastes that are going to be made into grant Delaware final authorization to This action will not have substantial fertilizers be managed in accordance operate its hazardous waste program direct effects on the States, on the with all applicable hazardous waste with the changes described in its relationship between the national management requirements until the application for program revisions. government and the States, or on the wastes are actually made into a Delaware has responsibility for distribution of power and fertilizer. permitting Treatment, Storage, and responsibilities among the various
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levels of government, as specified in General of the United States prior to Availability of Final Rule Executive Order 13132 (64 FR 43255, publication in the Federal Register. A You can get an electronic copy using August 10, 1999), because it merely major rule cannot take effect until 60 the Internet by taking the following authorizes State requirements as part of days after it is published in the Federal steps: the State RCRA hazardous waste Register. This action is not a ‘‘major (1) Go to search function of the program without altering the rule’’ as defined by 5 U.S.C. 804(2). This Department of Transportation’s relationship or the distribution of power action will be effective on August 8, electronic Docket Management System and responsibilities established by 2002. (DMS) Web page (http://dms.dot.gov/ RCRA. This action also is not subject to search). Executive Order 13045 (62 FR 19885, List of Subjects in 40 CFR Part 271 (2) On the search page type in the last April 23, 1997) because it is not Environmental protection, digits of the docket number shown at economically significant and does not Administrative practice and procedure, the beginning of this notice. Click on make decisions based on environmental Confidential business information, ‘‘search.’’ health or safety risks. This rule is not Hazardous waste, Hazardous waste (3) On the next page that contains the subject to Executive Order 13211, transportation, Indian lands, docket summary information for the ‘‘Actions Concerning Regulations That Intergovernmental relations, Penalties, docket you selected, click on the final Significantly Affect Energy Supply, Reporting and recordkeeping rule. Distribution, or Use’’ (66 FR 28355 (May requirements. 22, 2001)) because it is not a significant You can also get an electronic copy Authority: This action is issued under the using the Internet through the regulatory action under Executive Order authority of sections 2002(a), 3006 and 12866. Government Printing Office’s web page 7004(b) of the Solid Waste Disposal Act as at http://www.access.gpo.gov/su_docs/ Under RCRA 3006(b), EPA grants a amended 42 U.S.C. 6912(a), 6926, 6974(b). State’s application for authorization as aces/aces140html. Dated: August 1, 2002. long as the State meets the criteria In addition, copies are available by required by RCRA. It would thus be Donald S. Welsh, writing the Transportation Security inconsistent with applicable law for Regional Administrator, Region III. Administration, Attention: Enforcement EPA, when it reviews a State [FR Doc. 02–20096 Filed 8–7–02; 8:45 am] Docket, Office of the Chief Counsel authorization application, to require the BILLING CODE 6560–50–P (TSA–2); 400 Seventh Street, SW., use of any particular voluntary Washington, DC 20590. Such requests consensus standard in place of another should identify the docket number of standard that otherwise satisfies the DEPARTMENT OF TRANSPORTATION this rulemaking. requirements of RCRA. Thus, the Abbreviations and Terms Used in This requirements of section 12(d) of the Transportation Security Administration Document National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 49 CFR 1503 ATSA—Aviation and Transportation 272 note) do not apply. As required by Security Act section 3 of Executive Order 12988 (61 [Docket No. TSA–2002–12777] FSD—Federal Security Director SSI—Sensitive Security Information FR 4729, February 7, 1996), in issuing RIN 2110–AA09 this rule, EPA has taken the necessary TSA—Transportation Security steps to eliminate drafting errors and Investigative and Enforcement Administration ambiguity, minimize potential litigation, Procedures Under Secretary—The Under Secretary and provide a clear legal standard for of Transportation for Security AGENCY: Transportation Security affected conduct. EPA has complied Background with Executive Order 12630 (53 FR Administration (TSA), DOT. 8859, March 15, 1998) by examining the ACTION: Interim final rule. On November 19, 2001, the Aviation takings implications of the rule in and Transportation Security Act (ATSA) accordance with the Attorney General’s SUMMARY: This rulemaking establishes (Public Law 107–71) became law. ATSA ‘‘Supplemental Guidelines for the the interim investigative and created the TSA, and transferred most Evaluation of Risk and Avoidance of enforcement procedural rules that the aviation security functions from the Unanticipated Takings’ issued under the TSA will use to address statutory and FAA to the TSA. With some executive order. This rule does not regulatory violations. It adopts, in large modifications, the civil aviation security impose an information collection part, the Federal Aviation rules have been transferred from the burden under the provisions of the Administration’s (FAA) investigative FAA (in title 14, Code of Federal Paperwork Reduction Act of 1995 (44 and enforcement procedures. In Regulations) to the TSA (in title 49, U.S.C. 3501 et seq.). addition, this rulemaking adopts the Code of Federal Regulations) in a The Congressional Review Act, 5 FAA’s adjustment of civil penalties for separate rulemaking (see docket number U.S.C. 801 et seq., as added by the Small inflation. TSA–2002–11602). 67 FR 8340 Business Regulatory Enforcement DATES: This rule is effective August 8, (February 22, 2002). Under ATSA, the Fairness Act of 1996, generally provides 2002. Under Secretary of Transportation for that before a rule may take effect, the Security may impose a civil penalty for FOR FURTHER INFORMATION CONTACT: agency promulgating the rule must certain statutory violations of 49 U.S.C. Quang Nguyen, Civil Enforcement submit a rule report, which includes a chapter 449 or a regulation prescribed or copy of the rule, to each House of the Division, Office of the Chief Counsel order issued thereunder. Congress and to the Comptroller General (TSA–2), Transportation Security ATSA section 141 provides that all of the United States. EPA will submit a Administration, 400 Seventh Street, rules issued by the FAA continue in report containing this document and SW., Washington, DC 20590; telephone effect until modified or terminated by other required information to the U.S. (202) 493–1233; or e-mail: the TSA. However, part 13 of the FAA Senate, the U.S. House of [email protected]. regulations includes references to FAA Representatives, and the Comptroller SUPPLEMENTARY INFORMATION: agency attorneys and the FAA decision
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maker that do not apply to the TSA’s 4. Revision of the effect of filing a which is embodied in a final decision operations at this time. This action petition to reconsider; and order, and if applicable, an order on permits TSA personnel to serve as 5. Revision of the term ‘‘Record;’’ a petition for modification or agency attorneys and the Under 6. Revision of the numbering system reconsideration. Corresponding changes Secretary to serve as the TSA decision to reflect the TSA’s adoption in part are made to section 1503.235 to reflect maker under these rules. 1503; the changes. Because the TSA currently does not 7. Revision of ‘‘aviation safety’’ to have its own investigatory or ‘‘transportation safety;’’ Expansion of the Term ‘‘Record’’ enforcement procedures in place, the 8. Revision of public access to the Due to an apparent oversight, the FAA TSA is adopting, in large part, the enforcement docket; rules did not include the request for current FAA investigative and 9. Addition of section addressing hearing and the pleadings as part of the enforcement rules in part 13 of title 14 requests for portions of the enforcement official record. Section 1503.230(a) of the Code of Federal Regulations. investigative report (EIR); includes the request for hearing, the These rules will be used in the interim 10. Revision with regard to filing complaint, and the answer in the list of as the TSA prepares revised certain documents with the documents making up the exclusive investigative and enforcement administrative law judge. record. procedures. Those procedures will be Administrative Changes noticed in the Federal Register for Numbering System public comment. Applicable references to FAA were Although the FAA part numbers of Under ATSA, the TSA is not required changed to the TSA. Also, because of its this rule are replaced with a to provide administrative hearings on potential legal ambiguity, the corresponding TSA part number, we the record. Accordingly, the TSA’s occurrences of ‘‘shall’’ have been have retained each section number of enforcement proceedings are not revised to ‘‘must’’ or ‘‘will’’ as the previous FAA rule where required to comply with the appropriate. Additionally, other applicable. For instance, if an FAA Administrative Procedure Act (APA). administrative changes have been made section was previously numbered Although these interim final rules to clarify, without substantively ‘‘13.201,’’ it is now numbered conform to the APA requirements, the changing, the language of the rule. ‘‘1503.201.’’ TSA intends to propose new procedures Time Periods ‘‘Aviation Safety’’ to ‘‘Transportation in accordance with its statutory Safety’’ authority. The TSA’s decision not to In the interests of equity and adopt such new procedures in this practicality, the time periods provided Where applicable, in those instances rulemaking does not limit the TSA’s in 49 CFR 1503.218(f)(2)(i) and 49 CFR that 49 CFR part 13 refers to aviation ability to do so in the future. 1503.218(f)(6)(iii) are both revised from safety, the current rulemaking replaces their FAA counterparts. In 49 CFR ‘‘aviation safety’’ with ‘‘transportation Current Rulemaking 1503.218(f)(2)(i), the time for filing a safety’’ (for instance, §§ 1503.226(b) and This rulemaking establishes the complaint after service of an order 1503.233(j)(4)). This change reflects the interim investigative and enforcement denying a motion to dismiss is extended TSA’s broader mission relating to the procedural rules that the TSA will use from ‘‘10 days’’ to ‘‘20 days.’’ Likewise, various modes of transportation. to address violations of 49 U.S.C. if required by the decision on appeal, chapter 449 and regulations and orders the time period for filing a complaint Public Access to the Enforcement issued thereunder. This rule is being and service on a party is also extended Docket issued as an interim final rule. As a rule from ‘‘10 days’’ to ‘‘20 days.’’ Further, Sensitive Security Information (SSI) is of agency practice and procedure, this in 49 CFR 1503.218(f)(6)(iii), the a category of protected material that is rule is exempt from the prior notice and requirement for an administrative law defined under 49 CFR part 1520. SSI comment requirement under 4(b)(3)(A) judge to render a decision on the motion material is exempted from disclosure of the Administrative Procedure Act for disqualification is extended from under FOIA. Because of the nature of (APA), 5 U.S.C. 553(b)(3)(A). The rule ‘‘15 days’’ to ‘‘20 days.’’ In addition, the SSI material and the high concentration will be codified in 49 CFR part 1503. time period provided for respondents to of such material in the enforcement The rules are largely unchanged from file an answer upon a denial of a motion actions that the TSA will handle, this the FAA investigative and enforcement to dismiss for insufficiency rulemaking procedurally limits public rules found in part 13, Title 14 of the (1503.218(f)(1)), a denial of a motion to access to the TSA enforcement docket. Code of Federal Regulations, except for dismiss a complaint (1503.218(f)(2)(ii)), Under revised 49 CFR 1503.230(b), the following: and denial of a motion requesting a interested members of the public may 1. Omission of FAA procedures or more definite statement of the examine and copy parts of the docket by processes where they are inapplicable to allegations is revised from ‘‘10 days’’ to filing a request under FOIA, 5 U.S.C. or inappropriate or unnecessary for the ‘‘20 days’’ (1503.218(f)(3)(i)). 552. This rulemaking is not intended to TSA at this time; preclude members of the public from Effect of Filing Petition to Reconsider 2. Revision of references from FAA to access to the enforcement docket, but is the TSA and a revision of occurrences Under 14 CFR 13.234(f), filing a designed to prevent the improper of ‘‘shall’’ to ‘‘must’’ or ‘‘will’’ where petition to reconsider does not stay the disclosure of SSI. appropriate; effective date of a final decision and 3. Revision of the time period relating order and does not toll the time for Addition of section addressing requests to motions to dismiss a request for filing a petition for review in a United for portions of the EIR hearing, decision on motion for States court of appeals. Under TSA Under the new section 49 CFR disqualification, motion to dismiss for rules, the filing of a petition for 1503.12, any alleged violator or insufficiency, motion to dismiss a reconsideration or modification will designated representative may request complaint, and motions requesting a stay the effective date of the order and portions of the enforcement more definite statement of the a person may seek judicial review of a investigative report (EIR). Any requests allegations; final order of the Under Secretary, by an alleged violator or designated
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representative for non-privileged Flexibility Act of 1980 requires agencies business, organizations, and portions of the EIR need not be made to analyze the economic effect of governmental jurisdictions subject to under FOIA, but may be made pursuant regulatory changes on small entities. regulation.’’ To achieve that principle, to this section. Any other individual Third, the Office of Management and the Act requires agencies to solicit and interested in obtaining a copy of the EIR Budget directs agencies to assess the consider flexible regulatory proposals must still submit a FOIA request. effect of regulatory changes on and to explain the rationale for their international trade. In conducting these actions. The Act covers a wide-range of Filing with the Enforcement Docket analyses, the TSA has determined that small entities, including small Clerk this rule is not a ‘‘significant regulatory businesses, not-for-profit organizations, The rules of practice under 14 CFR action’’ as defined in the Executive and small governmental jurisdictions. part 13 provided that certain documents Order and the Department of Agencies must perform a review to be filed with the administrative law Transportation Regulatory Policies and determine whether a proposed or final judge, and this may have caused some Procedures. This rule will not have a rule will have a significant economic confusion in the past. Under this significant impact on a substantial impact on a substantial number of small rulemaking, all documents required to number of small entities and will not entities. If the determination is that it be filed must be filed in one place, i.e., constitute a barrier to international will, the agency must prepare a with the Enforcement Docket Clerk. The trade. A full regulatory analysis, which regulatory flexibility analysis as parties must serve a copy on the includes the identification and described in the Act. administrative law judge, or on the chief evaluation of cost-reducing alternatives administrative law judge if no judge has to this rule, has not been prepared. However, if an agency determines that been assigned to the case. This will Instead, the agency has prepared a more a proposed or final rule is not expected enable the Enforcement Docket Clerk to concise analysis of this rule that is to have a significant economic impact maintain a complete set of records for presented in the following paragraphs. on a substantial number of small each case and keep the administrative This rulemaking provides guidance entities, section 605(b) of the 1980 Act law judge apprised of various requests, for the parties as to how civil penalties provides that the head of the agency amendments, motions and notices. are imposed. The rules state the may so certify and a regulatory procedures for investigations, flexibility analysis is not required. The Good Cause for Immediate Adoption enforcement actions, for TSA civil certification must include a statement This action adopts agency rules of penalty actions, and other details of providing the factual basis for this procedure, and therefore a notice of imposing and adjudicating civil determination, and the reasoning should proposed rulemaking is not required penalties. be clear. under 5 U.S.C. 553. Further, this action As discussed above, there are no costs Costs in essence adopts an existing FAA rule imposed by this rulemaking. There are used up to now for these same types of There are no costs associated with unquantified benefits associated with cases, and therefore imposes few new or this rulemaking. The rules do not this rulemaking. For this reason, the different procedures on respondents. impose any new economic requirements TSA certifies that there is not a This rule is needed so that TSA can on the affected parties. The rules significant economic impact on a enforce its security rules and promote provide a framework for investigative substantial number of small entities. compliance with security requirements. and enforcement procedures and Accordingly, the agency finds that prior options for the respondent to respond to International Trade Impact Assessment notice and public comment is a proposed civil penalty. They also The Trade Agreement Act of 1979 impracticable, unnecessary, and provide procedures used if an prohibits Federal agencies from contrary to the public interest. administrative law judge hears a matter. engaging in any standards or related This action adopts a procedural rule; These are essentially the same activities that create unnecessary therefore, it is not subject to the procedures and options as were obstacles to the foreign commerce of the requirement that it be effective not less provided under the FAA rules that United States. Legitimate domestic than 30 days from the date of formerly applied to security objectives, such as safety, are not publication in the Federal Register, as enforcement cases. Respondents are not considered unnecessary obstacles. The provided in 5 U.S.C. 553. Further, required to take any additional action statute also requires consideration of respondents receiving notices initiating based on these rules. Rather, these rules international standards and, where civil penalties under this rule will set out in detail for their options, which appropriate, that they be the basis for receive abundant notice of the respondents may choose to take U.S. standards. In addition, consistent procedures to be used. advantage of or not. with the Administration’s belief in the Paperwork Reduction Act Benefits general superiority and desirability of free trade, it is the policy of the This rule does not contain any This rulemaking will result in some Administration to remove or diminish collection of information requirements, unquantified cost savings to the agency to the extent feasible, barriers to as defined by the Paperwork Reduction and the respondents by making clear international trade, including those Act of 1995, as amended. what procedures apply in civil penalty barriers affecting the import of foreign cases. Regulatory Evaluation goods and services into the United Changes to Federal regulations are Regulatory Flexibility Determination States. required to undergo several economic The Regulatory Flexibility Act of 1980 In accordance with the above statute analyses. First, Executive Order 12866 establishes ‘‘as a principle of regulatory and policy, the TSA has assessed the directs that each Federal agency shall issuance that agencies shall endeavor, potential effect of this final rule and has propose or adopt a regulation only upon consistent with the objective of the rule determined that it will not impose any a reasoned determination that the and of applicable statutes, to fit costs on domestic and international benefits of the intended regulation regulatory and informational entities and thus has a neutral trade justify its costs. Second, the Regulatory requirements to the scale of the impact.
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Executive Order 13132, Federalism information. Persons can obtain further 1503.212 Computation of time. 1503.213 Extension of time. The TSA has analyzed this rule under information regarding SBREFA on the Small Business Administration’s web 1503.214 Amendment of pleadings. the principles and criteria of Executive 1503.215 Withdrawal of complaint or Order 13132, Federalism. We page at http://www.sba.gov/advo/laws/ _ request for hearing. determined that this action will not law lib.html. 1503.216 Waivers. have a substantial direct effect on the List of Subjects in 49 CFR Part 1503 1503.217 Joint procedural or discovery States, or the relationship between the schedule. national Government and the States, or Administrative practice and 1503.218 Motions. on the distribution of power and procedure, Investigations, Law 1503.219 Interlocutory appeals. responsibilities among the various enforcement, Penalties, Transportation. 1503.220 Discovery. 1503.221 Notice of hearing. levels of government. Therefore, we The Amendments 1503.222 Evidence. have determined that this final rule does 1503.223 Standard of proof. not have federalism implications. For the reasons set forth in the 1503.224 Burden of proof. preamble, the Transportation Security Unfunded Mandates Reform Act 1503.225 Offer of proof. Administration adds a new part 1503 in 1503.226 Public disclosure of evidence. The Unfunded Mandates Reform Act Title 49, chapter XII, subchapter A, of 1503.227 Expert or opinion witnesses. of 1995, enacted as Public Law 104–4 on the Code of Federal Regulations to read 1503.228 Subpoenas. March 22, 1995, is intended, among as follows: 1503.229 Witness fees. other things, to curb the practice of 1503.230 Record. imposing unfunded Federal mandates PART 1503—INVESTIGATIVE AND 1503.231 Argument before the on State, local, and tribal governments. ENFORCEMENT PROCEDURES administrative law judge. 1503.232 Initial decision. Title II of the Act requires each Federal Subpart A—Investigative Procedures 1503.233 Appeal from initial decision. agency to prepare a written statement 1503.234 Petition to reconsider or modify a assessing the effects of any Federal Sec. final decision and order of the TSA mandate in a proposed or final agency 1503.1 Reports of violations. decision maker on appeal. rule that may result in a $100 million or 1503.3 Investigations (general). 1503.235 Judicial review of a final order. more expenditure (adjusted annually for 1503.5 Formal complaints. 1503.7 Records, documents and reports. Subpart H—Civil Monetary Penalty Inflation inflation) in any one year by State, local, Adjustment and tribal governments, in the aggregate, Subpart B—Administrative Actions or by the private sector; such a mandate 1503.301 Scope and purpose. 1503.11 Administrative disposition of 1503.303 Definitions. is deemed to be a ‘‘significant regulatory certain violations. 1503.305 Cost of living adjustments of civil action.’’ Subpart C—Legal Enforcement Actions monetary penalties. The requirements of Title II of the Unfunded Mandates Reform Act of 1995 1503.12 Request for portions of the Authority: 18 U.S.C. 6002; 28 U.S.C. 2461 (note); 49 U.S.C. 114, 40113–40114, 40119, do not apply when rulemaking actions enforcement investigative report (EIR). 1503.13 Consent orders. 44901–44907, 46101–46107, 46109–46110, are taken without the issuance of a 1503.15 Civil penalties: Civil penalties 46301, 46305, 46311, 46313–46314. notice of proposed rulemaking. involving an amount in controversy in Therefore, the TSA has not prepared a excess of $50,000, an in rem action, or Subpart A—Investigative Procedures statement under the Act. injunctive relief. 1503.16. Civil penalties: Civil penalties § 1503.1 Reports of violations. Environmental Analysis involving an amount in controversy not (a) Any person who knows of a The TSA has reviewed this action for exceeding $50,000. violation of 49 U.S.C. chapter 449 purposes of the National Environmental 1503.17 [Reserved] (except sections 44902, 44903(d), Policy Act of 1969 (NEPA) (42 U.S.C. 1503.19 [Reserved] 44907(a)–(d)(1)(A), 44907(d)(1)(C)–(f), 4321–4347) and has determined that 1503.20 [Reserved] 44908, and 44909), or a regulation this action will not have a significant 1503.21 Military personnel. prescribed or order issued under any of 1503.23 [Reserved] effect on the human environment. 1503.25 Injunctions. those provisions, should report it to Energy Impact 1503.27 [Reserved] appropriate personnel of any TSA 1503.29 Civil penalties: Streamlined office. The energy impact of this rule has enforcement procedures for certain (b) Each report made under this been assessed in accordance with the security violations. section, together with any other Energy Policy and Conservation Act information the TSA may have that is Subpart D—[Reserved] (EPCA), Public Law 94–163, as amended relevant to the matter reported, will be (43 U.S.C. 6362). It has been determined Subpart E—[Reserved] reviewed by TSA personnel to that this rule is not a major regulatory Subpart F—[Reserved] determine the nature and type of any action under the provisions of the additional investigation or enforcement EPCA. Subpart G—Rules of Practice in action the TSA will take. Transportation Security Administration Small Entity Inquiries (TSA) Civil Penalty Actions § 1503.3 Investigations (general). The Small Business Regulatory 1503.201 Applicability. (a) The Under Secretary may conduct Enforcement Fairness Act (SBREFA) of 1503.202 Definitions. investigations, hold hearings, issue 1996 requires the TSA to comply with 1503.203 Separation of functions. subpoenas, require the production of small entity requests for information 1503.204 Appearances and rights of parties. relevant documents, records, and and advice about compliance with 1503.205 Administrative law judges. 1503.206 Intervention. property, and take evidence and statutes and regulations within the 1503.207 Certification of documents. depositions. TSA’s jurisdiction. Any small entity that 1503.208 Complaint. (b) For the purpose of investigating has a question regarding this document 1503.209 Answer. alleged violations of 49 U.S.C. chapter may contact the person listed in ‘‘For 1503.210 Filing of documents. 449 (except sections 44902, 44903(d), Further Information Contact’’ for 1503.211 Service of documents. 44907(a)–(d)(1)(A), 44907(d)(1)(C)–(f),
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44908, and 44909), or a regulation mailed to each person named in the Room 5008, 301 Seventh Street SW., prescribed or order issued under any of complaint. Washington, DC 20407. Persons with those provisions, the Under Secretary’s (e) Any complaint filed against a access to these records may have a copy authority may be exercised by the member of the Armed Forces of the of the records after payment of various offices for matters within their United States acting in the performance reasonable costs. respective areas for all routine of official duties will be referred to the § 1503.7 Records, documents and reports. investigations. When the compulsory Secretary of the Department concerned processes of section 49 U.S.C. 46104 are for action in accordance with the Each record, document, and report invoked, the Under Secretary’s authority procedures set forth in § 1503.21. that the Transportation Security has been delegated to the Chief Counsel, (f) The person named in the Regulations require to be maintained, each Deputy Chief Counsel, and in complaint must file an answer within 20 exhibited, or submitted to the Under consultation with the Office of the Chief days after service of a copy of the Secretary may be used in any Counsel, the Associate Under Secretary complaint. investigation conducted by the Under for Aviation Operations, the Associate (g) After the complaint has been Secretary; and, except to the extent the Under Secretary for Maritime and Land answered or after the allotted time in use may be specifically limited or Security, the Associate Under Secretary which to file an answer has expired, the prohibited by the section that imposes for Inspections, and each Federal Under Secretary will determine if there the requirement, the records, Security Director. are reasonable grounds for investigating documents, and reports may be used in the complaint. any civil penalty action or other legal § 1503.5 Formal complaints. (h) If the Under Secretary determines proceeding. (a) Any person may file a complaint that a complaint does not state facts that with the Under Secretary with respect to warrant an investigation or action, the Subpart B—Administrative Actions any act or omission by any person in complaint may be dismissed without a § 1503.11 Administrative disposition of contravention of any provision of 49 hearing and the reason for the dismissal certain violations. U.S.C. chapter 449 (except sections will be given, in writing, to the person (a) If it is determined that a violation 44902, 44903(d), 44907(a)–(d)(1)(A), who filed the complaint and the person or an alleged violation of 49 U.S.C. 44907(d)(1)(C)–(f), 44908, and 44909), or named in the complaint. chapter 449 (except sections 44902, a regulation prescribed or order issued (i) If the Under Secretary determines 44903(d), 44907(a)–(d)(1)(A), under any of those provisions. This that reasonable grounds exist, an 44907(d)(1)(C)–(f), 44908, and 44909), or section does not apply to complaints informal investigation may be initiated. a regulation prescribed or order issued against the Under Secretary or Each person named in the complaint under any of those provisions, does not employees of the TSA acting within the will be advised which official has been require legal enforcement action, an scope of their employment. delegated the responsibility under appropriate official of the TSA may take (b) Complaints filed under this § 1503.3(b) for conducting the administrative action in disposition of section must— investigation. the case. (1) Be submitted in writing and (j) If the investigation substantiates (b) An administrative action under identified as a complaint filed for the the allegations set forth in the this section does not constitute a formal purpose of seeking an appropriate order complaint, a notice of proposed order adjudication of the matter, and may be or other enforcement action; may be issued or other enforcement taken by issuing the alleged violator— (2) Be submitted to the U.S. action taken in accordance with this (1) A ‘‘Warning Notice’’ that recites Department of Transportation, part. available facts and information about Transportation Security Administration, (k) The complaint and other pleadings the incident or condition and indicates Office of the Chief Counsel, TSA–2, and official TSA records relating to the that it may have been a violation; or Attention: Enforcement Docket, 400 disposition of the complaint are (2) A ‘‘Letter of Correction’’ that Seventh Street, SW., Washington, DC maintained in current docket form in confirms the TSA decision in the matter 20590; the TSA Enforcement Docket, GSA and states the necessary corrective (3) Set forth the name and address, if Building, Room 5008, 301 Seventh action the alleged violator has taken or known, of each person who is the Street SW., Washington, DC 20407. agrees to take. If the agreed corrective subject of the complaint and, with (1) Generally. Any person interested action is not fully completed, legal respect to each person, the specific in reviewing or obtaining a copy of a enforcement action may be taken. provisions of the statute or regulation or record may do so only by submitting a order that the complainant believes FOIA request under 5 U.S.C. 552 and 49 Subpart C—Legal Enforcement were violated; CFR part 7. Portions of the record may Actions (4) Contain a concise but complete be exempt from disclosure pursuant to statement of the facts relied upon to FOIA. § 1503.12 Request for portions of the substantiate each allegation; (2) Docket Files or Documents Not for enforcement investigative report (EIR). (5) State the name, address, and Public Disclosure. (i) Only the following (a) Discovery and pre-litigation telephone number of the person filing persons may review docket files or disclosure. Pursuant to this section, any the complaint; and particular documents that are not for alleged violator or designated (6) Be signed by the person filing the public disclosure: representative may request, from the complaint or a duly authorized (A) Parties to the proceedings; Chief Counsel or designee, portions of representative. (B) Their designated representatives; the EIR that are not privileged (e.g., (c) Complaints that do not meet the and under the deliberative process, attorney requirements of paragraph (b) of this (C) Persons who have a need to know work-product, or attorney-client section will be considered reports under as determined by the Under Secretary. privileges). This information will be § 1503.1. (ii) Those persons with permission to provided for the sole purpose of (d) Complaints that meet the review these documents or docket files providing the information necessary to requirements of paragraph (b) of this may view the materials at the TSA prepare a response to the allegations section will be docketed and a copy Enforcement Docket, GSA Building, contained in the legal enforcement
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action document. SSI contained in the (c) The Under Secretary may in a United States district court, EIR is released pursuant to 49 CFR part compromise any civil penalty, proposed pursuant to the authority in 49 U.S.C. 1520. Information released under this in accordance with 49 U.S.C. 46301, 46305 to prosecute and collect the civil section is not produced under the involving an amount in controversy in penalty. Freedom of Information Act (FOIA). excess of $ 50,000, an in rem action, or (b) Any person not listed in paragraph suit for injunctive relief, prior to referral § 1503.16 Civil penalties: Civil penalties involving an amount in controversy not (a) of this section that is interested in of the civil penalty action to the United exceeding $50,000. obtaining a copy of the EIR must submit States Attorney General, or the delegate a FOIA request pursuant to 49 U.S.C. of the Attorney General, for prosecution. (a) General. The following penalties 552 and 49 CFR part 7. Portions of the (1) The Under Secretary, through the apply to persons who violate chapter EIR may be exempt from disclosure Chief Counsel or the Deputy Chief 449, as specified in subsection (1), of pursuant to FOIA. Counsel for Enforcement, will send a Title 49 of the United States Code: civil penalty letter to the person charged (1) Any person who violates any § 1503.13 Consent orders. with a violation of 49 U.S.C. chapter 449 provision of 49 U.S.C. chapter 449 (a) At any time before the issuance of (except sections 44902, 44903(d), (except sections 44902, 44903(d), an order under this subpart, the official 44907(a)–(d)(1)(A), 44907(d)(1)(C)–(f), 44907(a)–(d)(1)(A), 44907(d)(1)(C)–(f), who issued the notice and the person 44908, and 44909), or a regulation 44908, and 44909), or a regulation subject to the notice may agree to prescribed or order issued under any of prescribed or order issued under any of dispose of the case by the issuance of a those provisions. The civil penalty letter those provisions is subject to a civil consent order by the official. contains a statement of the charges; the penalty of not more than the amount (b) A proposal for a consent order, applicable law, rule, regulation, or specified in the chapter or section for submitted to the official who issued the order; the amount of civil penalty that each violation in accordance with 49 notice, under this section must the Under Secretary will accept in full U.S.C. 46301, in conformity with the include— settlement of the action or an offer to Federal Civil Penalties Inflation (1) A proposed order; compromise the civil penalty. Adjustment Act of 1990, 28 U.S.C. 2461 (2) An admission of all jurisdictional (2) Not later than 30 days after receipt (note), as amended. facts; of the civil penalty letter, the person (2) [Reserved] (3) An express waiver of the right to charged with a violation may present (3) [Reserved] further procedural steps and of all rights any material or information in answer to (b) Orders assessing civil penalty. An to judicial review; and the charges to the agency attorney, order assessing civil penalty may be (4) An incorporation of the notice by either orally or in writing, that may issued for a violation described in reference and an acknowledgment that explain, mitigate, or deny the violation paragraph (a) of this section, or as the notice may be used to construe the or that may show extenuating otherwise provided by statute, after terms of the order. circumstances. The Under Secretary notice and opportunity for a hearing. A will consider any material or person charged with a violation may be § 1503.15 Civil penalties: Civil penalties information submitted in accordance subject to an order assessing civil involving an amount in controversy in with this paragraph (c) to determine penalty in the following circumstances: excess of $ 50,000, an in rem action, or whether the person is subject to a civil (1) An order assessing civil penalty injunctive relief. penalty or to determine the amount for may be issued if a person charged with (a) Any person who violates any which the Under Secretary will a violation submits or agrees to submit provision of 49 U.S.C. chapter 449 compromise the action. a civil penalty for a violation. (except sections 44902, 44903(d), (3) If the person charged with the (2) An order assessing civil penalty 44907(a)–(d)(1)(A), 44907(d)(1)(C)–(f), violation offers to compromise for a may be issued if a person charged with 44908, and 44909), or a regulation specific amount, that person must send a violation does not request a hearing prescribed or order issued under any of a certified check or money order for that under paragraph (e)(2)(ii) of this section those provisions, is subject to a civil amount to the agency, made payable to within 15 days after receipt of a final penalty of not more than the amount the Transportation Security notice of proposed civil penalty. specified for each violation in Administration. The Chief Counsel or (3) Unless an appeal is filed in a accordance with 49 U.S.C. 46301, in the Deputy Chief Counsel for timely manner, an initial decision or conformity with the Federal Civil Enforcement may accept the certified order of an administrative law judge Penalties Inflation Adjustment Act of check or money order or may refuse and will be considered an order assessing 1990, 28 U.S.C. 2461 (note), as return the certified check or money civil penalty if an administrative law amended. order. judge finds that an alleged violation (b) The authority of the Under (4) If the offer to compromise is occurred and determines that a civil Secretary, under 49 U.S.C. 46301 to accepted by the Under Secretary, the penalty, in an amount found propose a civil penalty for a violation of agency will send a letter to the person appropriate by the administrative law that chapter, or a rule, regulation, or charged with the violation stating that judge, is warranted. order issued thereunder, and the ability the certified check or money order is (4) For penalties issued under to refer cases to the United States accepted in full settlement of the civil § 1503.16(a)(1), unless a petition for Attorney General, or the delegate of the penalty action. review is filed with a U.S. court of Attorney General, for prosecution of (5) If the parties cannot agree to appeals in a timely manner, a final civil penalty actions proposed by the compromise the civil penalty action or decision and order of the Under Under Secretary, involving an amount the offer to compromise is rejected and Secretary will be considered an order in controversy in excess of $ 50,000, an the certified check or money order assessing civil penalty if the TSA in rem action, or suit for injunctive submitted in compromise is returned, decision maker finds that an alleged relief, or for collection of an assessed the Under Secretary may refer the civil violation occurred and a civil penalty is civil penalty, is delegated to the Chief penalty action to the United States warranted. Counsel and the Deputy Chief Counsel Attorney General, or the delegate of the (c) Delegation of authority. The for Enforcement. Attorney General, to begin proceedings authority of the Under Secretary, under
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49 U.S.C. 46301 to initiate and assess (e) Final notice of proposed civil request to the agency attorney. The civil penalties for a violation under penalty. A final notice of proposed civil person requesting the hearing must date chapter 449, or a rule, regulation, or penalty may be issued after and sign the request, and must include order issued thereunder, is delegated to participation in informal procedures his or her current address. The request the Deputy Chief Counsel for provided in paragraph (d)(2) of this for hearing must be typewritten or Enforcement. The authority of the section or failure to respond in a timely legibly written. Under Secretary to refer cases to the manner to a notice of proposed civil (g) Hearing. If the person charged with Attorney General of the United States, penalty. A final notice of proposed civil a violation requests a hearing pursuant or the delegate of the Attorney General, penalty will be sent to the individual to paragraph (d)(3) or paragraph (e)(2)(ii) for the collection of civil penalties, is charged with a violation, to the of this section, the original complaint delegated to the Chief Counsel and the president of the corporation or company will be filed with the Enforcement Deputy Chief Counsel for Enforcement. charged with a violation, or a person Docket Clerk and a copy will be sent to (d) Notice of proposed civil penalty. A previously designated in writing by the the person requesting the hearing. The civil penalty action is initiated by individual, corporation, or company to procedural rules in subpart G of this sending a notice of proposed civil receive documents in that civil penalty part apply to the hearing and any penalty to the person charged with a action. If not previously done in appeal. At the close of the hearing, the violation of 49 U.S.C. chapter 449 response to a notice of proposed civil administrative law judge will issue, (except sections 44902, 44903(d), penalty, a corporation or company may either orally on the record or in writing, 44907(a)–(d)(1)(A), 44907(d)(1)(C)–(f), designate in writing another person to an initial decision, including the 44908, and 44909), or a regulation receive documents in that civil penalty reasons for the decision, that contains prescribed or order issued under any of action. The final notice of proposed findings or conclusions on the those provisions. A notice of proposed civil penalty contains a statement of the allegations contained, and the civil civil penalty will be sent to the charges and the amount of the proposed penalty sought, in the complaint. individual charged with a violation or to civil penalty and, as a result of (h) Appeal. Either party may appeal the president of the corporation or information submitted to the agency the administrative law judge’s initial company charged with a violation. In attorney during informal procedures, decision to the TSA decision maker response to a notice of proposed civil may modify an allegation or a proposed pursuant to the procedures in subpart G penalty, a corporation or company may civil penalty contained in a notice of of this part. If a party files a notice of appeal pursuant to § 1503.233, the designate in writing another person to proposed civil penalty. effectiveness of the initial decision is receive documents in that civil penalty (1) A final notice of proposed civil stayed until a final decision and order action. The notice of proposed civil penalty may be issued— of the Under Secretary have been penalty contains a statement of the (i) If the person charged with a entered on the record. The TSA decision charges and the amount of the proposed violation fails to respond to the notice maker will review the record and issue civil penalty. Not later than 30 days of proposed civil penalty within 30 days a final decision and order of the Under after receipt of the notice of proposed after receipt of that notice; or (ii) If the parties participated in any Secretary that affirms, modifies, or civil penalty, the person charged with a informal procedures under paragraph reverses the initial decision. The TSA violation must— (d)(2) of this section and the parties decision maker may assess a civil (1) Submit the amount of the have not agreed to compromise the penalty but will not assess a civil proposed civil penalty or an agreed- action or the agency attorney has not penalty in an amount greater than that upon amount, in which case either an agreed to withdraw the notice of sought in the complaint. order assessing civil penalty or proposed civil penalty. (i) Payment. A person must pay a civil compromise order must be issued in (2) Not later than 15 days after receipt penalty by sending, to the agency, a that amount; of the final notice of proposed civil certified check or money order made (2) Submit to the agency attorney one penalty, the person charged with a payable to the Transportation Security of the following: violation must do one of the following— Administration. (i) Written information, including (i) Submit the amount of the proposed (j) Collection of civil penalties. If a documents and witness statements, civil penalty or an agreed-upon amount, person does not pay a civil penalty demonstrating that a violation of the in which case either an order assessing imposed by an order assessing civil regulations did not occur or that a civil penalty or a compromise order will penalty or a compromise order within penalty or the amount of the penalty is be issued in that amount; or 60 days after service of the order, the not warranted by the circumstances; (ii) Request a hearing in which case a Under Secretary may refer the order to (ii) A written request to reduce the complaint will be filed with the the United States Attorney General, or proposed civil penalty, the amount of Enforcement Docket Clerk. the delegate of the Attorney General, to reduction, and the reasons and any (f) Request for a hearing. Any person begin proceedings to collect the civil documents supporting a reduction of charged with a violation may request a penalty. The action will be brought in the proposed civil penalty, including hearing, pursuant to paragraph (d)(3) or a United States district court, pursuant records indicating a financial inability paragraph (e)(2)(ii) of this section, to be to the authority in 49 U.S.C. 46305. to pay or records showing that payment conducted in accordance with the (k) Exhaustion of administrative of the proposed civil penalty would procedures in subpart G of this part. A remedies. For violations of 49 U.S.C. prevent the person from continuing in person requesting a hearing must file a chapter 449 (except sections 44902, business; written request for a hearing with the 44903(d), 44907(a)–(d)(1)(A), (iii) A written request for an informal Enforcement Docket Clerk (U.S. 44907(d)(1)(C)–(f), 44908, and 44909), or conference to discuss the matter with Department of Transportation, a regulation prescribed or order issued the agency attorney and to submit Transportation Security Administration, under any of those provisions, a party relevant information or documents; or Office of the Chief Counsel, TSA–2, may only petition for review of a final (3) Request a hearing in which case a Attention: Enforcement Docket Clerk, decision and order of the Under complaint will be filed with the 400 Seventh Street, SW., Washington, Secretary to the courts of appeals of the Enforcement Docket Clerk. DC 20590) and must mail a copy of the United States or the United States Court
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of Appeals for the District of Columbia § 1503.23 [Reserved] (2) Submit to the agency attorney pursuant to section 49 U.S.C. 46110. identified in the material accompanying § 1503.25 Injunctions. Neither an initial decision or order the notice any of the following: issued by an administrative law judge Whenever it is determined that a (i) Written information, including that has not been appealed to the TSA person has engaged, or is about to documents and witness statements, decision maker, nor an order engage, in any act or practice demonstrating that a violation of the compromising a civil penalty action constituting a violation of 49 U.S.C. regulations did not occur or that a constitutes a final order of the Under chapter 449 (except sections 44902, penalty or the penalty amount is not Secretary for the purposes of judicial 44903(d), 44907(a)–(d)(1)(A), warranted by the circumstances; or (ii) A written request to reduce the appellate review under 49 U.S.C. 46110. 44907(d)(1)(C)–(f), 44908, and 44909), or a regulation prescribed or order issued proposed civil penalty, the amount of (l) Compromise. The TSA may under any of those provisions for which reduction, and the reasons and any compromise any civil penalty action the TSA exercises enforcement documents supporting a reduction of initiated in accordance with 49 U.S.C. responsibility, the Chief Counsel or the the proposed civil penalty, including 46301, involving an amount in Deputy Chief Counsel for Enforcement records indicating a financial inability controversy not exceeding $ 50,000, or may request the United States Attorney to pay or records showing that payment any civil penalty action initiated in General, or the delegate of the Attorney of the proposed civil penalty would accordance with 49 U.S.C. 46301 at any General, to bring an action in the prevent the person from continuing in time before referring the action to the appropriate United States district court business; or United States Attorney for collection. for such relief as is necessary or (iii) A written request for an informal (1) An agency attorney may appropriate, including mandatory or conference to discuss the matter with an compromise any civil penalty action prohibitive injunctive relief, interim agency attorney and submit relevant where a person charged with a violation equitable relief, and punitive damages, information or documents; or (3) Request a hearing in which case a agrees to pay a civil penalty and the as provided by 49 U.S.C. 46107. complaint will be filed with the TSA agrees to make no finding of § 1503.27 [Reserved] Enforcement Docket Clerk. violation. Pursuant to such agreement, a (c) Final notice of violation and civil compromise order will be issued, § 1503.29 Civil penalties: Streamlined penalty assessment order. A final notice stating: enforcement procedures for certain security violations. of violation and civil penalty (i) The person agrees to pay a civil assessment order (‘‘final notice and penalty; This section may be used, at the order’’) may be issued after participation (ii) The TSA makes no finding of a agency’s discretion, in enforcement in any informal proceedings as provided violation; and actions involving individuals presenting in paragraph (b)(2) of this section, or dangerous or deadly weapons for after failure of the respondent to (iii) The compromise order will not be screening at airports or in checked respond in a timely manner to a notice used as evidence of a prior violation in baggage where the amount of the of violation. A final notice and order any subsequent civil penalty proposed civil penalty is less than will be sent to the individual charged proceeding. $5,000. In these cases, §§ 1503.16(a), with a violation. The final notice and (2) An agency attorney may 1503.16(c), and 1503.16 (f) through (l) order will contain a statement of the compromise the amount of any civil are used, as well as paragraphs (a) charges and the amount of the proposed penalty proposed in a notice, assessed through (d) of this section: civil penalty and, as a result of in an order, or imposed in a (a) Delegation of authority. The information submitted to the agency compromise order. authority of the Under Secretary, under attorney during any informal 49 U.S.C. 46301, to initiate civil penalty procedures, may reflect a modified § 1503.17 [Reserved] actions in accordance with TSA policies allegation or proposed civil penalty. A § 1503.19 [Reserved] and procedures promulgated pursuant final notice and order may be issued— to 49 U.S.C. 46301 et seq. and 49 CFR (1) If the person charged with a § 1503.20 [Reserved] part 1540, is delegated to each Federal violation fails to respond to the notice Security Director for the purpose of of violation within 30 days after receipt § 1503.21 Military personnel. issuing notices of violation in cases of that notice; or (2) If the parties participated in any If a report made under this part involving violations of 49 U.S.C. chapter informal procedures under paragraph indicates that, while performing official 449, or a regulation prescribed or order (b)(2) of this section and the parties duties, a member of the Armed Forces, issued under any of those provisions. have not agreed to compromise the or a civilian employee of the (b) Notice of violation. A civil penalty action or the agency attorney has not Department of Defense who is subject to action is initiated by sending a notice of agreed to withdraw the notice of the Uniform Code of Military Justice (10 violation to the person charged with the violation. U.S.C. Ch. 47), has violated 49 U.S.C. violation. The notice of violation (d) Order assessing civil penalty. An chapter 449 (except sections 44902, contains a statement of the charges and order assessing civil penalty may be 44903(d), 44907(a)–(d)(1)(A), the amount of the proposed civil issued after notice and opportunity for 44907(d)(1)(C)–(f), 44908, and 44909), or penalty. Not later than 30 days after a hearing. A person charged with a a regulation prescribed or order issued receipt of the notice of violation, the violation may be subject to an order under any of those provisions, the Chief person charged with a violation must: assessing civil penalty in the following Counsel or the Deputy Chief Counsel for (1) Submit the amount of the circumstances: Enforcement will send a copy of the proposed civil penalty or an agreed- (1) An order assessing civil penalty report to the appropriate military upon amount, in which case either an may be issued if a person charged with authority for such disciplinary action as order assessing a civil penalty or a a violation submits, or agrees to submit, that authority considers appropriate and compromise order will be issued in that the amount of civil penalty proposed in a report to the Under Secretary thereon. amount; or the notice of violation.
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(2) An order assessing civil penalty 44902, 44903(d), 44907(a)–(d)(1)(A), (except sections 44902, 44903(d), may be issued if a person charged with 44907(d)(1)(C)–(f), 44908, and 44909), or 44907(a)–(d)(1)(A), 44907(d)(1)(C)–(f), a violation submits, or agrees to submit, a regulation prescribed or order issued 44908, and 44909), or a regulation an agreed-upon amount of civil penalty under any of those provisions. prescribed or order issued under any of that is not reflected in either the notice (b) [Reserved] those provisions and may direct of violation or the final notice and (c) Notwithstanding the provisions of payment of a civil penalty. Unless there order. paragraph (a) of this section, the United is an appeal to the TSA decision maker, (3) The final notice and order States district courts will have exclusive filed in a timely manner, an initial becomes (and contains a statement so jurisdiction of any civil penalty action decision or order of an administrative indicating) an order assessing a civil initiated by the Under Secretary: law judge will be considered an order penalty when the person charged with (1) Which involves an amount in assessing civil penalty if an a violation submits the amount of the controversy in excess of $50,000; administrative law judge finds that an proposed civil penalty that is reflected (2) Which is an in rem action or in alleged violation occurred and in the final notice and order. which an in rem action based on the determines that a civil penalty, in an (4) The final notice and order same violation has been brought; amount found appropriate by the becomes (and contains a statement so (3) Regarding which an aircraft administrative law judge, is warranted. indicating) an order assessing a civil subject to lien has been seized by the Unless a petition for review is filed with penalty 16 days after receipt of the final United States; and a U.S. court of appeals in a timely notice and order, unless not later than (4) In which a suit for injunctive relief manner, a final decision and order of 15 days after receipt of the final notice based on the violation giving rise to the the Under Secretary will be considered and order, the person charged with a civil penalty has also been brought. an order assessing civil penalty if the violation does one of the following— § 1503.202 Definitions. TSA decision maker finds that an (i) Submits an agreed-upon amount of alleged violation occurred and a civil The following definitions apply to civil penalty that is not reflected in the penalty is warranted. final notice and order, in which case an this subpart: Party means the respondent or the order assessing civil penalty or a Administrative law judge means an complainant. compromise order will be issued in that administrative law judge appointed Personal delivery includes hand- amount; or pursuant to the provisions of 5 U.S.C. delivery or use of a contract or express (ii) Requests a hearing in which case 3105. messenger service. Personal delivery a complaint will be filed with the Agency attorney means the Deputy does not include the use of Government Enforcement Docket Clerk. Chief Counsel for Enforcement or an interoffice mail service. (5) Unless there is an appeal to the attorney that he or she designates. An Pleading means a complaint, an TSA decision maker, filed in a timely agency attorney will not include: answer, and any amendment of these manner, an initial decision or order of (1) Any attorney in the Office of the documents permitted under this an administrative law judge will be Chief Counsel who advises the TSA subpart. considered an order assessing civil decision maker regarding an initial Properly addressed means a penalty if an administrative law judge decision or any appeal to the TSA document that shows an address finds that an alleged violation occurred decision maker; or contained in agency records, a and determines that a civil penalty, in (2) Any attorney who is supervised in residential, business, or other address an amount found to be appropriate by a civil penalty action by a person who submitted by a person on any document the administrative law judge, is provides such advice to the TSA provided under this subpart, or any warranted. decision maker in that action or a other address shown by other (6) Unless a petition for review is filed factually related action. reasonable and available means. with a U.S. court of appeals in a timely Attorney means a person licensed by Respondent means a person, manner, a final decision and order of a state, the District of Columbia, or a corporation, or company named in a the Under Secretary will be considered territory of the United States to practice complaint. an order assessing civil penalty if the law or appear before the courts of that TSA decision maker means the Under TSA decision maker finds that an state or territory. Secretary of Transportation for Security, alleged violation occurred and a civil Complainant means those persons acting in the capacity of the decision penalty is warranted. within the TSA responsible for maker on appeal, or any person to investigating and bringing possible whom the Under Secretary has Subpart D—[Reserved] violations of statute and regulation. delegated the Under Secretary’s Complaint means a document issued decision-making authority in a civil Subpart E—[Reserved] by an agency attorney alleging a penalty action. As used in this subpart, violation of 49 U.S.C. chapter 449 the TSA decision maker is the official Subpart F—[Reserved] (except sections 44902, 44903(d), authorized to issue a final decision and 44907(a)–(d)(1)(A), 44907(d)(1)(C)–(f), order of the Under Secretary in a civil Subpart G—Rules of Practice in 44908, and 44909), or a regulation penalty action. Transportation Security Administration prescribed or order issued under any of (TSA) Civil Penalty Actions those provisions that has been filed with § 1503.203 Separation of functions. the enforcement docket after a hearing (a) Civil penalty proceedings, § 1503.201 Applicability. has been requested pursuant to including hearings, will be prosecuted (a) This subpart applies to the § 1503.16(d)(3) or § 1503.16(e)(2)(ii). by an agency attorney. following actions: Mail includes U.S. certified mail, U.S. (b) An agency employee engaged in (1) A civil penalty action in which a registered mail, or use of an overnight the performance of investigative or request for hearing has been filed and express courier service. prosecutorial functions in a civil the amount sought does not exceed Order assessing civil penalty means a penalty action must not, in that case or $50,000 for a violation arising under 49 document that contains a finding of a factually related case, participate or U.S.C. chapter 449 (except sections violation of 49 U.S.C. chapter 449 give advice in a decision by the
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administrative law judge or by the TSA administrative law judge must not issue harass any person, not made to cause decision maker on appeal, except as an order of contempt, award costs to any unnecessary delay, not made to cause counsel or a witness in the public party, or impose any sanction not needless increase in the cost of the proceedings. specified in this subpart. If the proceedings, or for any other improper (c) The Chief Counsel or an attorney administrative law judge imposes any purpose. not covered by paragraph (b) of this sanction not specified in this subpart, a (c) Sanctions. If the attorney of record, section will advise the TSA decision party may file an interlocutory appeal of the party, or the party’s representative maker regarding an initial decision or right pursuant to § 1503.219(c)(4). This signs a document in violation of this any appeal of a civil penalty action to section does not preclude an section, the administrative law judge or the TSA decision maker. administrative law judge from issuing the TSA decision maker, as appropriate, an order that bars a person from a will: § 1503.204 Appearances and rights of specific proceeding based on a finding (1) Strike the pleading signed in parties. of obstreperous or disruptive behavior violation of this section; (a) Any party may appear and be in that specific proceeding. (2) Strike the request for discovery or heard in person. (c) Disqualification. The the discovery response signed in (b) Any party may be accompanied, administrative law judge may disqualify violation of this section and preclude represented, or advised by an attorney himself or herself at any time. A party further discovery by the party; or representative designated by the may file a motion, pursuant to (3) Deny the motion or request signed party and may be examined by that § 1503.218(f)(6), requesting that an in violation of this section; (4) Exclude the document signed in attorney or representative in any administrative law judge be disqualified violation of this section from the record; proceeding governed by this subpart. An from the proceedings. attorney or representative who (5) Dismiss the interlocutory appeal represents a party may file a notice of § 1503.206 Intervention. and preclude further appeal on that appearance in the action, in the manner (a) A person may submit a motion for issue by the party who filed the appeal provided in § 1503.210, and must serve leave to intervene as a party in a civil until an initial decision has been a copy of the notice of appearance on penalty action. Except for good cause entered on the record; or (6) Dismiss the appeal of the each party, in the manner provided in shown, a motion for leave to intervene administrative law judge’s initial § 1503.211, before participating in any must be submitted not later than 10 decision to the TSA decision maker. proceeding governed by this subpart. days before the hearing. The attorney or representative must (b) If the administrative law judge § 1503.208 Complaint. include the name, address, and finds that intervention will not unduly (a) Filing. The agency attorney must telephone number of the attorney or broaden the issues or delay the file the original and one copy of the representative in the notice of proceedings, the administrative law complaint with the Enforcement Docket appearance. judge may grant a motion for leave to Clerk, or may file a written motion (c) Any person may request a copy of intervene if the person will be bound by pursuant to § 1503.218(f)(2)(i) instead of a document upon payment of reasonable any order or decision entered in the filing a complaint, not later than 20 days costs. A person may keep an original action or the person has a property, after receipt by the agency attorney of a document, data, or evidence, with the financial, or other legitimate interest request for hearing. The agency attorney consent of the administrative law judge, that may not be addressed adequately by should suggest a location for the hearing by substituting a legible copy of the the parties. The administrative law when filing the complaint. document for the record. judge may determine the extent to (b) Service. An agency attorney must which an intervenor may participate in personally deliver or mail a copy of the § 1503.205 Administrative law judges. the proceedings. complaint to the respondent, the (a) Powers of an administrative law president of the corporation or company § 1503.207 Certification of documents. judge. In accordance with the rules of named as a respondent, or a person this subpart, an administrative law (a) Signature required. The attorney of designated by the respondent to accept judge may: record, the party, or the party’s service of documents in the civil (1) Give notice of, and hold, pre- representative must sign each document penalty action. hearing conferences and hearings; tendered for filing with the Enforcement (c) Contents. A complaint must set (2) Administer oaths and affirmations; Docket Clerk, or served on the forth the facts alleged, any regulation (3) Issue subpoenas authorized by law administrative law judge, the TSA allegedly violated by the respondent, and issue notices of deposition decision maker on appeal, or each party. and the proposed civil penalty in requested by the parties; (b) Effect of signing a document. By sufficient detail to provide notice of any (4) Rule on offers of proof; signing a document, the attorney of factual or legal allegation and proposed (5) Receive relevant and material record, the party, or the party’s civil penalty. evidence; representative certifies that the attorney, (d) [Reserved] (6) Regulate the course of the hearing the party, or the party’s representative in accordance with the rules of this has read the document and, based on § 1503.209 Answer. subpart; reasonable inquiry and to the best of (a) Writing required. A respondent (7) Hold conferences to settle or to that person’s knowledge, information, must file a written answer to the simplify the issues by consent of the and belief, the document is— complaint, or may file a written motion parties; (1) Consistent with the rules in this pursuant to § 1503.218(f)(1)-(4) instead (8) Dispose of procedural motions and part; of filing an answer, not later than 30 requests; and (2) Warranted by existing law or that days after service of the complaint. The (9) Make findings of fact and a good faith argument exists for answer may be in the form of a letter but conclusions of law, and issue an initial extension, modification, or reversal of must be dated and signed by the person decision. existing law; and responding to the complaint. An answer (b) Limitations on the power of the (3) Not unreasonable or unduly may be typewritten or may be legibly administrative law judge. The burdensome or expensive, not made to handwritten.
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(b) Filing and address. A person filing service, the date shown on the postmark document was deposited with a contract an answer must personally deliver or if there is no certificate of service, or or express messenger, the document was mail the original and one copy of the other mailing date shown by other mailed, or personal delivery of the answer for filing with the Enforcement evidence if there is no certificate of document was refused. Docket Clerk, not later than 30 days service or postmark. (h) Presumption of service. There will after service of the complaint. Filing (c) Form. Each document must be be a presumption of service where a must be made by mail to the ?U.S. typewritten or legibly handwritten. party or a person, who customarily Department of Transportation, (d) Contents. Unless otherwise receives mail, or receives it in the Transportation Security Administration, specified in this subpart, each document ordinary course of business, at either the Office of the Chief Counsel, TSA–2, must contain a short, plain statement of person’s residence or the person’s Attention: Enforcement Docket Clerk, the facts supporting the person’s principal place of business, 400 Seventh Street, SW., Washington, position and a brief statement of the acknowledges receipt of the document. DC 20590 or by personal delivery to action requested in the document. TSA Enforcement Docket, GSA Building § 1503.212 Computation of time. § 1503.211 Service of documents. Room 5008, 301 D Street SW., (a) This section applies to any period Washington, DC 20407. The person (a) General. A person must serve a of time prescribed or allowed by this filing an answer should suggest a copy of any document filed with the subpart, or by notice or order of the location for the hearing when filing the Enforcement Docket on each party and administrative law judge. answer. the administrative law judge or the chief (b) The date of an act, event, or (c) Service. A person filing an answer administrative law judge if no judge has default, after which a designated time must serve a copy of the answer on the been assigned to the proceeding at the period begins to run, is not included in agency attorney who filed the time of filing. Service on a party’s a computation of time under this complaint. attorney of record or a party’s subpart. (d) Contents. An answer must designated representative is service on (c) The last day of a time period is specifically state any affirmative defense the party. included in a computation of time that the respondent intends to assert at (b) Type of service. A person may unless it is a Saturday, Sunday, a legal the hearing. A person filing an answer serve documents by personal delivery or holiday, or a day on which the may include a brief statement of any by mail. enforcement docket is officially closed. relief requested in the answer. (c) Certificate of service. A person If the last day of the time period is a (e) Specific denial of allegations may attach a certificate of service to a Saturday, Sunday, legal holiday, or a required. A person filing an answer document tendered for filing with the day on which the enforcement docket is must admit, deny, or state that the Enforcement Docket Clerk. A certificate officially closed, the time period runs person is without sufficient knowledge of service must consist of a statement, until the end of the next day that is not or information to admit or deny, each dated and signed by the person filing a Saturday, Sunday, legal holiday, or a numbered paragraph of the complaint. the document, that the document was day on which the enforcement docket is Any statement or allegation contained personally delivered or mailed to each officially closed. in the complaint that is not specifically party on a specific date. § 1503.213 Extension of time. denied in the answer may be deemed an (d) Date of service. The date of service admission of the truth of that allegation. will be the date of personal delivery; or (a) Oral requests. The parties may A general denial of the complaint is if mailed, the mailing date shown on the agree to extend for a reasonable period deemed a failure to file an answer. certificate of service, the date shown on the time for filing a document under (f) Failure to file answer. A person’s the postmark if there is no certificate of this subpart. If the parties agree, the failure to file an answer without good service, or other mailing date shown by administrative law judge must grant one cause will be deemed an admission of other evidence if there is no certificate extension of time to each party. The the truth of each allegation contained in of service or postmark. party seeking the extension of time must the complaint. (e) Additional time after service by submit a draft order to the mail. Whenever a party has a right or a administrative law judge to be signed by § 1503.210 Filing of documents. duty to act or to make any response the administrative law judge and filed (a) Address and method of filing. A within a prescribed period after service with the Enforcement Docket Clerk. The person tendering a document for filing by mail, or on a date certain after service administrative law judge may grant must personally deliver or mail the by mail, 5 days will be added to the additional oral requests for an extension signed original and one copy of each prescribed period. of time where the parties agree to the document. Filing must be made either (f) Service by the administrative law extension. by mail to the U.S. Department of judge. The administrative law judge (b) Written motion. A party must file Transportation, Transportation Security must serve a copy of each document he a written motion for an extension of Administration, Office of the Chief or she issues including, but not limited time not later than 7 days before the Counsel, TSA–2, Attention: to, notices of pre-hearing conferences document is due unless good cause for Enforcement Docket Clerk, 400 Seventh and hearings, rulings on motions, the late filing is shown. The Street, SW., Washington, DC 20590 or decisions, and orders, upon each party administrative law judge may grant the by personal delivery to TSA to the proceedings by personal delivery extension of time if good cause for the Enforcement Docket, GSA Building, or by mail. extension is shown. Room 5008, 301 D Street SW., (g) Valid service. A document that (c) Failure to rule. If the Washington, DC 20407. A person must was properly addressed, was sent in administrative law judge fails to rule on serve a copy of each document on each accordance with this subpart, and that a written motion for an extension of party in accordance with § 1503.211. was returned, that was not claimed, or time by the date the document was due, (b) Date of filing. A document will be that was refused, is deemed to have the motion for an extension of time is considered to be filed on the date of been served in accordance with this deemed granted for no more than 20 personal delivery; or if mailed, the subpart. The service will be considered days after the original date the mailing date shown on the certificate of valid as of the date and the time that the document was to be filed.
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§ 1503.214 Amendment of pleadings. (1) The joint schedule may include, of a motion, the party must attach any (a) Filing and service. A party must but need not be limited to, requests for supporting evidence, including file the amendment with the discovery, any objections to discovery affidavits, to the motion. Enforcement Docket Clerk and must requests, responses to discovery (c) Filing of motions. A motion made serve a copy of the amendment on the requests to which there are no prior to the hearing must be in writing administrative law judge and all parties objections, submission of pre-hearing or orally on the record. Unless to the proceeding. motions, responses to pre-hearing otherwise agreed by the parties or for (b) Time. A party must file an motions, exchange of exhibits to be good cause shown, a party must file any amendment to a complaint or an answer introduced at the hearing, and a list of prehearing motion, and must serve a within the following: witnesses that may be called at the copy on each party, not later than 30 (1) Not later than 15 days before the hearing. days before the hearing. Motions scheduled date of a hearing, a party may (2) Each party must sign the original introduced during a hearing may be amend a complaint or an answer joint schedule to be filed with the made orally on the record unless the without the consent of the Enforcement Docket Clerk. administrative law judge directs administrative law judge. (c) Time. The parties may agree to otherwise. (2) Less than 15 days before the submit all pre-hearing motions and (d) Answers to motions. Any party scheduled date of a hearing, the responses and may agree to close may file an answer, with affidavits or administrative law judge may allow discovery in the proceedings under the other evidence in support of the answer, amendment of a complaint or an answer joint schedule within a reasonable time not later than 10 days after service of a only for good cause shown in a motion before the date of the hearing, but not written motion on that party. When a to amend. later than 15 days before the hearing. motion is made during a hearing, the (c) Responses. The administrative law (d) Order establishing joint schedule. answer may be made at the hearing on judge must allow a reasonable time, but The administrative law judge must the record, orally or in writing, within not more than 20 days from the date of approve the joint schedule filed by the a reasonable time determined by the filing, for other parties to respond if an parties. One party must submit a draft administrative law judge. amendment to a complaint, answer, or order establishing a joint schedule to the (e) Rulings on motions. The other pleading has been filed with the administrative law judge to be signed by administrative law judge must rule on administrative law judge. the administrative law judge and filed all motions as follows: with the Enforcement Docket Clerk. (1) Discovery motions. The § 1503.215 Withdrawal of complaint or (e) Disputes. The administrative law administrative law judge must resolve request for hearing. judge must resolve disputes regarding all pending discovery motions not later At any time before or during a discovery or disputes regarding than 10 days before the hearing. hearing, an agency attorney may compliance with the joint schedule as (2) Pre-hearing motions. The withdraw a complaint or a respondent soon as possible so that the parties may administrative law judge must resolve may withdraw a request for a hearing continue to comply with the joint all pending pre-hearing motions not without the consent of the schedule. later than 7 days before the hearing. If administrative law judge. If an agency (f) Sanctions for failure to comply the administrative law judge issues a attorney withdraws the complaint or a with joint schedule. If a party fails to ruling or order orally, the administrative party withdraws the request for a comply with the administrative law law judge must serve a written copy of hearing and the answer, the judge’s order establishing a joint the ruling or order, within 3 days, on administrative law judge must dismiss schedule, the administrative law judge each party. In all other cases, the the proceedings under this subpart with may direct that party to comply with a administrative law judge must issue prejudice. motion or discovery request or, limited rulings and orders in writing and must to the extent of the party’s failure to serve a copy of the ruling or order on § 1503.216 Waivers. comply with a motion or discovery each party. Waivers of any rights provided by request, the administrative law judge (3) Motions made during the hearing. statute or regulation must be in writing may: The administrative law judge may issue or by stipulation made at a hearing and (1) Strike that portion of a party’s rulings and orders on motions made entered into the record. The parties pleadings; during the hearing orally. Oral rulings must set forth the precise terms of the (2) Preclude pre-hearing or discovery or orders on motions must be made on waiver and any conditions. motions by that party; the record. (3) Preclude admission of that portion (f) Specific motions. A party may file § 1503.217 Joint procedural or discovery of a party’s evidence at the hearing; or the following motions with the schedule. (4) Preclude that portion of the Enforcement Docket Clerk: (a) General. The parties may agree to testimony of that party’s witnesses at (1) Motion to dismiss for insufficiency. submit a schedule for filing all the hearing. A respondent may file a motion to prehearing motions, a schedule for dismiss the complaint for insufficiency conducting discovery in the § 1503.218 Motions. instead of filing an answer. If the proceedings, or a schedule that will (a) General. A party applying for an administrative law judge denies the govern all pre-hearing motions and order or ruling not specifically provided motion to dismiss the complaint for discovery in the proceedings. in this subpart must do so by motion. insufficiency, the respondent must file (b) Form and content of schedule. If A party must comply with the an answer not later than 20 days after the parties agree to a joint procedural or requirements of this section when filing service of the administrative law judge’s discovery schedule, one of the parties a motion. A party must serve a copy of denial of the motion. A motion to must file the joint schedule with the each motion on each party. dismiss the complaint for insufficiency administrative law judge, setting forth (b) Form and contents. A party must must show that the complaint fails to the dates to which the parties have state the relief sought by the motion and state a violation of 49 U.S.C. chapter 449 agreed, and must serve a copy of the the particular grounds supporting that (except sections 44902, 44903(d), joint schedule on each party. relief. If a party has evidence in support 44907(a)-(d)(1)(A), 44907(d)(1)(C)-(f),
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44908, and 44909), or a regulation attorney fails to supply a more definite affidavit with the motion for prescribed or order issued under any of statement, the administrative law judge disqualification that sets forth, in detail, those provisions. must strike the allegations in the the matters alleged to constitute grounds (2) Motion to dismiss. A party may file complaint to which the motion is for disqualification. a motion to dismiss, specifying the directed. If the administrative law judge (ii) Answer. A party must respond to grounds for dismissal. If an denies the motion, the respondent must the motion for disqualification not later administrative law judge grants a file an answer and must serve a copy of than 5 days after service of the motion motion to dismiss in part, a party may the answer on each party not later than for disqualification. appeal the administrative law judge’s 20 days after service of the order of (iii) Decision on motion for ruling on the motion to dismiss under denial. disqualification. The administrative law § 1503.219(b). (ii) Answer. An agency attorney may judge must render a decision on the (i) Motion to dismiss a request for a file a motion requesting a more definite motion for disqualification not later hearing. An agency attorney may file a statement if an answer fails to respond than 20 days after the motion has been motion to dismiss a request for a hearing clearly to the allegations in the filed. If the administrative law judge instead of filing a complaint. If the complaint. If the administrative law finds that the motion for motion to dismiss is not granted, the judge grants the motion, the respondent disqualification and supporting affidavit agency attorney must file the complaint must supply a more definite statement show a basis for disqualification, the and must serve a copy of the complaint not later than 15 days after service of the administrative law judge must withdraw on each party not later than 20 days ruling on the motion. If the respondent from the proceedings immediately. If after service of the administrative law fails to supply a more definite the administrative law judge finds that judge’s ruling or order on the motion to statement, the administrative law judge disqualification is not warranted, the dismiss. If the motion to dismiss is must strike those statements in the administrative law judge must deny the granted and the proceedings are answer to which the motion is directed. motion and state the grounds for the terminated without a hearing, the The respondent’s failure to supply a denial on the record. If the respondent may file an appeal pursuant more definite statement may be deemed administrative law judge fails to rule on to § 1503.233. If required by the an admission of unanswered allegations a party’s motion for disqualification decision on appeal, the agency attorney in the complaint. within 20 days after the motion has must file a complaint and must serve a (4) Motion to strike. Any party may been filed, the motion is deemed copy of the complaint on each party not make a motion to strike any insufficient granted. later than 20 days after service of the allegation or defense, or any redundant, (iv) Appeal. A party may appeal the decision on appeal. immaterial, or irrelevant matter in a administrative law judge’s denial of the (ii) Motion to dismiss a complaint. A pleading. A party must file a motion to motion for disqualification in respondent may file a motion to dismiss strike before a response is required accordance with § 1503.219(b). a complaint instead of filing an answer. under this subpart or, if a response is If the motion to dismiss is not granted, not required, not later than 10 days after § 1503.219 Interlocutory appeals. the respondent must file an answer and service of the pleading. (a) General. Unless otherwise must serve a copy of the answer on each (5) Motion for decision. A party may provided in this subpart, a party may party not later than 20 days after service make a motion for decision, regarding not appeal a ruling or decision of the of the administrative law judge’s ruling all or any part of the proceedings, at any administrative law judge to the TSA or order on the motion to dismiss. If the time before the administrative law judge decision maker until the initial decision motion to dismiss is granted and the has issued an initial decision in the has been entered on the record. A proceedings are terminated without a proceedings. The administrative law decision or order of the TSA decision hearing, the agency attorney may file an judge must grant a party’s motion for maker on the interlocutory appeal does appeal pursuant to § 1503.233. If decision if the pleadings, depositions, not constitute a final order of the Under required by the decision on appeal, the answers to interrogatories, admissions, Secretary for the purposes of judicial respondent must file an answer and matters that the administrative law appellate review under 49 U.S.C. 46110. must serve a copy of the answer on each judge has officially noticed, or evidence (b) Interlocutory appeal for cause. If a party not later than 10 days after service introduced during the hearing show that party files a written request for an of the decision on appeal. there is no genuine issue of material fact interlocutory appeal for cause with the (3) Motion for more definite and that the party making the motion is administrative law judge, or orally statement. A party may file a motion for entitled to a decision as a matter of law. requests an interlocutory appeal for more definite statement of any pleading The party making the motion for cause, the proceedings are stayed until that requires a response under this decision has the burden of showing that the administrative law judge issues a subpart. A party must set forth, in there is no genuine issue of material decision on the request. If the detail, the indefinite or uncertain fact. administrative law judge grants the allegations contained in a complaint or (6) Motion for disqualification. A request, the proceedings are stayed until response to any pleading and must party may file the motion at any time the TSA decision maker issues a submit the details that the party believes after the administrative law judge has decision on the interlocutory appeal. would make the allegation or response been assigned to the proceedings but The administrative law judge must grant definite and certain. must make the motion before the an interlocutory appeal for cause if a (i) Complaint. A respondent may file administrative law judge files an initial party shows that delay of the appeal a motion requesting a more definite decision in the proceedings. would be detrimental to the public statement of the allegations contained in (i) Motion and supporting affidavit. A interest or would result in undue the complaint instead of filing an party must state the grounds for prejudice to any party. answer. If the administrative law judge disqualification, including, but not (c) Interlocutory appeals of right. If a grants the motion, the agency attorney limited to, personal bias, pecuniary party notifies the administrative law must supply a more definite statement interest, or other factors showing judge of an interlocutory appeal of right, not later than 15 days after service of the disqualification, in the motion for the proceedings are stayed until the ruling granting the motion. If the agency disqualification. A party must submit an TSA decision maker issues a decision
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on the interlocutory appeal. A party Enforcement Docket Clerk. In the event a copy of the motion for a confidential may file an interlocutory appeal, of a discovery dispute, a party must order on each party. without the consent of the attach a copy of these documents in (1) The party or person making the administrative law judge, before an support of a motion made under this motion must show that the confidential initial decision has been entered in the section. order is necessary to protect the case of: (c) Service on the agency. A party information from disclosure to the (1) A ruling or order by the must serve each discovery request public. administrative law judge barring a directed to the agency or any agency (2) If the administrative law judge person from the proceedings. employee on the agency attorney of determines that the requested material (2) Failure of the administrative law record. is not necessary to decide the case, the judge to dismiss the proceedings in (d) Time for response to discovery administrative law judge must preclude accordance with § 1503.215. requests. Unless otherwise directed by any inquiry into the matter by any party. (3) A ruling or order by the this subpart or agreed by the parties, a (3) If the administrative law judge administrative law judge in violation of party must respond to a request for determines that the requested material § 1503.205(b). discovery, including filing objections to may be disclosed during discovery, the (4) A ruling or order by the a request for discovery, not later than 30 administrative law judge may order that administrative law judge regarding days after service of the request. the material may be discovered and public access to a particular docket or (e) Scope of discovery. Subject to the disclosed under limited conditions or documents. limits on discovery set forth in may be used only under certain terms (d) Procedure. Not later than 10 days paragraph (f) of this section, a party may and conditions. after the administrative law judge’s discover any matter that is not (4) If the administrative law judge decision forming the basis of an privileged and that is relevant to the determines that the requested material interlocutory appeal of right or not later subject matter of the proceeding. A is necessary to decide the case and that than 10 days after the administrative party may discover information that a confidential order is warranted, the law judge’s decision granting an relates to the claim or defense of any administrative law judge must provide: interlocutory appeal for cause, a party party including the existence, (i) An opportunity for review of the must file a notice of interlocutory description, nature, custody, condition, document by the parties off the record; appeal, with supporting documents, and and location of any document or other (ii) Procedures for excluding the the party must serve a copy of the notice tangible item and the identity and information from the record; and and supporting documents on each location of any person having (iii) Order that the parties must not party. Not later than 10 days after knowledge of discoverable matter. A disclose the information in any manner service of the appeal brief, a party must party may discover facts known, or and the parties must not use the file a reply brief, if any, and the party opinions held, by an expert who any information in any other proceeding. must serve a copy of the reply brief on other party expects to call to testify at (h) Protective orders. A party or a each party. The TSA decision maker the hearing. A party may not object to person who has received a request for must render a decision on the a discovery request on the basis that the discovery may file a motion for interlocutory appeal, on the record and information sought would not be protective order and must serve a copy as a part of the decision in the admissible at the hearing if the of the motion for protective order on proceedings, within a reasonable time information sought during discovery is each party. The party or person making after receipt of the interlocutory appeal. reasonably calculated to lead to the the motion must show that the (e) Frivolous appeals. The TSA discovery of admissible evidence. protective order is necessary to protect decision maker may reject frivolous, (f) Limiting discovery. The the party or the person from annoyance, repetitive, or dilatory appeals, and may administrative law judge must limit the embarrassment, oppression, or undue issue an order precluding one or more frequency and extent of discovery burden or expense. As part of the parties from making further permitted by this section if a party protective order, the administrative law interlocutory appeals in a proceeding in shows that— judge may: which there have been frivolous, (1) The information requested is (1) Deny the discovery request; repetitive, or dilatory interlocutory cumulative or repetitious; (2) Order that discovery be conducted appeals. (2) The information requested can be only on specified terms and conditions, obtained from another less burdensome including a designation of the time or § 1503.220 Discovery. and more convenient source; place for discovery or a determination of (a) Initiation of discovery. Any party (3) The party requesting the the method of discovery; or may initiate discovery described in this information has had ample opportunity (3) Limit the scope of discovery or section, without the consent or approval to obtain the information through other preclude any inquiry into certain of the administrative law judge, at any discovery methods permitted under this matters during discovery. time after a complaint has been filed in section; or (i) Duty to supplement or amend the proceedings. (4) The method or scope of discovery responses. A party who has responded (b) Methods of discovery. The requested by the party is unduly to a discovery request has a duty to following methods of discovery are burdensome or expensive. supplement or amend the response, as permitted under this section: (g) Confidential orders. A party or soon as the information is known, as depositions on oral examination or person who has received a discovery follows: written questions of any person; written request for information that is related to (1) A party must supplement or interrogatories directed to a party; a trade secret, confidential or sensitive amend any response to a question requests for production of documents or material, competitive or commercial requesting the identity and location of tangible items to any person; and information, proprietary data, or any person having knowledge of requests for admission by a party. A information on research and discoverable matters. party is not required to file written development, may file a motion for a (2) A party must supplement or discovery requests and responses with confidential order with the amend any response to a question the administrative law judge or the administrative law judge and must serve requesting the identity of each person
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who will be called to testify at the (1) A party must not serve more than section is conclusively established for hearing as an expert witness and the 30 interrogatories to each other party. the purpose of the hearing and appeal. subject matter and substance of that Each subpart of an interrogatory will be (m) Motion to compel discovery. A witness’ testimony. counted as a separate interrogatory. party may make a motion to compel (3) A party must supplement or (2) Before serving additional discovery if a person refuses to answer amend any response that was incorrect interrogatories on a party, a party must a question during a deposition, a party when made or any response that was file a motion for leave to serve fails or refuses to answer an correct when made but is no longer additional interrogatories on a party interrogatory, if a person gives an correct, accurate, or complete. with the administrative law judge and evasive or incomplete answer during a (j) Depositions. The following rules must serve a copy on each party before deposition or when responding to an apply to depositions taken pursuant to serving additional interrogatories on a interrogatory, or a party fails or refuses this section: party. The administrative law judge may to produce documents or tangible items. (1) Form. A deposition must be taken grant the motion only if the party shows During a deposition, the proponent of a on the record and reduced to writing. good cause for the party’s failure to question may complete the deposition The person being deposed must sign the inquire about the information or may adjourn the examination before deposition unless the parties agree to previously and that the information making a motion to compel if a person waive the requirement of a signature. cannot reasonably be obtained using refuses to answer. (2) Administration of oaths. Within less burdensome discovery methods or the United States, or a territory or (n) Failure to comply with a discovery be obtained from other sources. order or order to compel. If a party fails possession subject to the jurisdiction of (l) Requests for admission. A party to comply with a discovery order or an the United States, a party must take a may serve a written request for order to compel, the administrative law deposition before a person authorized to admission of the truth of any matter judge, limited to the extent of the party’s administer oaths by the laws of the within the scope of discovery under this failure to comply with the discovery United States or authorized by the law section or the authenticity of any order or motion to compel, may: of the place where the examination is document described in the request. A held. In foreign countries, a party will party must set forth each request for (1) Strike that portion of a party’s take a deposition in any manner admission separately. A party must pleadings; allowed by the Federal Rules of Civil serve copies of documents referenced in (2) Preclude prehearing or discovery Procedure (28 U.S.C. App.). the request for admission unless the motions by that party; (3) Notice of deposition. A party must documents have been provided or are (3) Preclude admission of that portion serve a notice of deposition, stating the reasonably available for inspection and of a party’s evidence at the hearing; or time and place of the deposition and the copying. (4) Preclude that portion of the name and address of each person to be (1) Time. A party’s failure to respond testimony of that party’s witnesses at examined, on the person to be deposed, to a request for admission, in writing the hearing. on the administrative law judge, on the and signed by the attorney or the party, Enforcement Docket Clerk, and on each not later than 30 days after service of the § 1503.221 Notice of hearing. party not later than 7 days before the request, is deemed an admission of the (a) Notice. The administrative law deposition. A party may serve a notice truth of the statement or statements judge must give each party at least 60 of deposition less than 7 days before the contained in the request for admission. days notice of the date, time, and deposition only with consent of the The administrative law judge may location of the hearing. With the administrative law judge. If a subpoena determine that a failure to respond to a consent of the administrative law judge, duces tecum is to be served on the request for admission is not deemed an the parties may agree to hold the person to be examined, the party must admission of the truth if a party shows hearing on an earlier date than the date attach a copy of the subpoena duces that the failure was due to specified in the notice of hearing. tecum that describes the materials to be circumstances beyond the control of the (b) Date, time, and location of the produced at the deposition to the notice party or the party’s attorney. hearing. The administrative law judge to of deposition. (2) Response. A party may object to a whom the proceedings have been (4) Use of depositions. A party may request for admission and must state the assigned must set a reasonable date, use any part or all of a deposition at a reasons for objection. A party may time, and location for the hearing. The hearing authorized under this subpart specifically deny the truth of the matter administrative law judge must consider only upon a showing of good cause. The or describe the reasons why the party is the need for discovery and any joint deposition may be used against any unable to truthfully deny or admit the procedural or discovery schedule party who was present or represented at matter. If a party is unable to deny or submitted by the parties when the deposition or who had reasonable admit the truth of the matter, the party determining the hearing date. The notice of the deposition. must show that the party has made administrative law judge must give due (k) Interrogatories. A party, the party’s reasonable inquiry into the matter or regard to the convenience of the parties, attorney, or the party’s representative that the information known to, or the location where the majority of the may sign the party’s responses to readily obtainable by, the party is witnesses reside or work, and whether interrogatories. A party must answer insufficient to enable the party to admit the location is served by a scheduled air each interrogatory separately and or deny the matter. A party may admit carrier. completely in writing. If a party objects or deny any part of the request for to an interrogatory, the party must state admission. If the administrative law § 1503.222 Evidence. the objection and the reasons for the judge determines that a response does (a) General. A party is entitled to objection. An opposing party may use not comply with the requirements of present the party’s case or defense by any part or all of a party’s responses to this rule or that the response is oral, documentary, or demonstrative interrogatories at a hearing authorized insufficient, the matter is deemed evidence, to submit rebuttal evidence, under this subpart to the extent that the admitted. and to conduct any cross-examination response is relevant, material, and not (3) Effect of admission. Any matter that may be required for a full and true repetitious. admitted or deemed admitted under this disclosure of the facts.
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(b) Admissibility. A party may detrimental to transportation safety, witness at a deposition or hearing, or introduce any oral, documentary, or disclosure would not be in the public the party at whose request a witness demonstrative evidence in support of interest, or that the information is not appears at a deposition or hearing, must the party’s case or defense. The otherwise required to be made available pay the witness fees described in this administrative law judge must admit to the public. section. any oral, documentary, or demonstrative (b) Amount. Except for an employee evidence introduced by a party but must § 1503.227 Expert or opinion witnesses. of the agency who appears at the exclude irrelevant, immaterial, or An employee of the agency may not direction of the agency, a witness who unduly repetitious evidence. be called as an expert or opinion appears at a deposition or hearing is (c) Hearsay evidence. Hearsay witness, for any party other than the entitled to the same fees and mileage evidence is admissible in proceedings TSA, in any proceeding governed by expenses as are paid to a witness in a governed by this subpart. The fact that this subpart. An employee of a court of the United States in comparable evidence submitted by a party is hearsay respondent may not be called by an circumstances. goes only to the weight of the evidence agency attorney as an expert or opinion and does not affect its admissibility. witness for the TSA in any proceeding § 1503.230 Record. governed by this subpart to which the (a) Exclusive record. The request for § 1503.223 Standard of proof. respondent is a party. hearing, complaint, answer, transcript of The administrative law judge may all testimony in the hearing, all exhibits § 1503.228 Subpoenas. issue an initial decision or may rule in received into evidence, and all motions, a party’s favor only if the decision or (a) Request for subpoena. A party may applications, requests, and rulings will ruling is supported by, and in obtain a subpoena to compel the constitute the exclusive record for accordance with, the reliable, probative, attendance of a witness at a deposition decision of the proceedings and the and substantial evidence contained in or hearing or to require the production basis for the issuance of any orders in the record. In order to prevail, the party of documents or tangible items from the the proceeding. with the burden of proof must prove the administrative law judge who is (b) Examination and copying of party’s case or defense by a assigned to the case, or, if no record—(1) Generally. Any person preponderance of reliable, probative, administrative law judge is assigned or interested in reviewing or obtaining a and substantial evidence. the assigned law judge is unavailable, copy of a record may do so only by from the chief administrative law judge. submitting a FOIA request under 5 § 1503.224 Burden of proof. The party must complete the subpoena, U.S.C. 552 and 49 CFR part 7. Portions (a) Except in the case of an affirmative stating the title of the action and the of the record may be exempt from defense, the burden of proof is on the date and time for the witness’ disclosure pursuant to FOIA. agency. attendance or production of documents (2) Docket Files or Documents Not for (b) Except as otherwise provided by or items. The party who obtained the Public Disclosure. (i) Only the following statute or rule, the proponent of a subpoena must serve the subpoena on persons may review docket files or motion, request, or order has the burden the witness. particular documents that are not for of proof. (b) Motion to quash or modify the public disclosure: (c) A party who has asserted an subpoena. A party, or any person upon (A) parties to the proceedings; affirmative defense has the burden of whom a subpoena has been served, may (B) their designated representatives; proving the affirmative defense. file a motion to quash or modify the and subpoena at or before the time specified (C) persons who have a need to know § 1503.225 Offer of proof. in the subpoena for compliance. The as determined by the Under Secretary. A party whose evidence has been applicant must describe, in detail, the (ii) Those persons with permission to excluded by a ruling of the basis for the application to quash or review these documents or docket files administrative law judge may offer the modify the subpoena including, but not may view the materials at the TSA evidence for the record on appeal. limited to, a statement that the Enforcement Docket, GSA Building, testimony, document, or tangible § 1503.226 Public disclosure of evidence. Room 5008, 301 Seventh Street SW., evidence is not relevant to the Washington, DC 20407. Persons with This section applies to information proceeding, that the subpoena is not access to these records may have a copy other than Sensitive Security reasonably tailored to the scope of the of the records after payment of Information (SSI). All release of SSI is proceeding, or that the subpoena is reasonable costs. governed by § 1503.230. unreasonable and oppressive. A motion (a) The administrative law judge may to quash or modify the subpoena will § 1503.231 Argument before the order that any other information stay the effect of the subpoena pending administrative law judge. contained in the record be withheld a decision by the administrative law (a) Arguments during the hearing. from public disclosure. Any person may judge on the motion. During the hearing, the administrative object to disclosure of information in (c) Enforcement of subpoena. Upon a law judge must give the parties a the record by filing a written motion to showing that a person has failed or reasonable opportunity to present withhold specific information with the refused to comply with a subpoena, a arguments on the record supporting or administrative law judge and serving a party may apply to the local Federal opposing motions, objections, and copy of the motion on each party. The district court to seek judicial rulings if the parties request an party must state the specific grounds for enforcement of the subpoena in opportunity for argument. The nondisclosure in the motion. accordance with 49 U.S.C. 46104. administrative law judge may request (b) The administrative law judge must written arguments during the hearing if grant the motion to withhold § 1503.229 Witness fees. the administrative law judge finds that information in the record if, based on (a) General. Unless otherwise submission of written arguments would the motion and any response to the authorized by the administrative law be reasonable. motion, the administrative law judge judge, the party who applies for a (b) Final oral argument. At the determines that disclosure would be subpoena to compel the attendance of a conclusion of the hearing and before the
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administrative law judge issues an finds that issuing a written initial desiring an extension of time may file a initial decision in the proceedings, the decision is reasonable. The written motion for an extension with the parties are entitled to submit oral administrative law judge must serve a Enforcement Docket Clerk and must proposed findings of fact and copy of any written initial decision on serve a copy of the motion on each conclusions of law, exceptions to each party. party. The TSA decision maker may rulings of the administrative law judge, (d) Order assessing civil penalty. grant an extension if good cause for the and supporting arguments for the Unless appealed pursuant to § 1503.233, extension is shown in the motion. findings, conclusions, or exceptions. At the initial decision issued by the (d) Appeal briefs. A party must file the conclusion of the hearing, a party administrative law judge will be the appeal brief with the TSA may waive final oral argument. considered an order assessing civil Enforcement Docket Clerk and must (c) Posthearing briefs. The penalty if the administrative law judge serve a copy of the appeal brief on each administrative law judge may request finds that an alleged violation occurred party. written posthearing briefs before the and determines that a civil penalty, in (1) A party must set forth, in detail, administrative law judge issues an an amount found appropriate by the the party’s specific objections to the initial decision in the proceedings. If a administrative law judge, is warranted. initial decision or rulings in the appeal party files a written posthearing brief, brief. A party also must set forth, in the party must include proposed § 1503.233 Appeal from initial decision. detail, the basis for the appeal, the findings of fact and conclusions of law, (a) Notice of appeal. A party may reasons supporting the appeal, and the exceptions to rulings of the appeal the initial decision, and any relief requested in the appeal. If the administrative law judge, and decision not previously appealed party relies on evidence contained in supporting arguments for the findings, pursuant to § 1503.219, by filing a the record for the appeal, the party must conclusions, or exceptions. The notice of appeal with the Enforcement specifically refer to the pertinent administrative law judge must give the Docket Clerk. A party must file the evidence contained in the transcript in parties a reasonable opportunity, not notice of appeal with the U.S. the appeal brief. more than 30 days after receipt of the ?Department of Transportation, (2) The TSA decision maker may transcript, to prepare and submit the Transportation Security Administration, dismiss an appeal, on the TSA decision briefs. Office of the Chief Counsel, TSA–2, maker’s own initiative or upon motion Attention: Enforcement Docket Clerk, of any other party, where a party has § 1503.232 Initial decision. 400 Seventh Street, SW., Washington, filed a notice of appeal but fails to (a) Contents. The administrative law DC 20590. A party must file the notice perfect the appeal by timely filing an judge must issue an initial decision at of appeal not later than 10 days after appeal brief. the conclusion of the hearing. In each entry of the oral initial decision on the (e) Reply brief. Unless otherwise oral or written decision, the record or service of the written initial agreed by the parties, any party may file administrative law judge must include decision on the parties and must serve a reply brief not later than 35 days after findings of fact and conclusions of law, a copy of the notice of appeal on each the appeal brief has been served on that and the grounds supporting those party. party. The party filing the reply brief findings and conclusions, upon all (b) Issues on appeal. A party may must serve a copy of the reply brief on material issues of fact, the credibility of appeal only the following issues: each party. If the party relies on witnesses, the applicable law, any (1) Whether each finding of fact is evidence contained in the record for the exercise of the administrative law supported by a preponderance of reply, the party must specifically refer judge’s discretion, the amount of any reliable, probative, and substantial to the pertinent evidence contained in civil penalty found appropriate by the evidence; the transcript in the reply brief. administrative law judge, and a (2) Whether each conclusion of law is (1) Extension of time by agreement of discussion of the basis for any order made in accordance with applicable the parties. The parties may agree to issued in the proceedings. The law, precedent, and public policy; and extend the time for filing a reply brief administrative law judge is not required (3) Whether the administrative law with the consent of the TSA decision to provide a written explanation for judge committed any prejudicial errors maker. If the TSA decision maker grants rulings on objections, procedural during the hearing that support the an extension of time to file the reply motions, and other matters not directly appeal. brief, the Enforcement Docket Clerk will relevant to the substance of the initial (c) Perfecting an appeal. Unless serve a letter confirming the extension decision. If the administrative law judge otherwise agreed by the parties, a party of time on each party. refers to any previous unreported or must perfect an appeal, not later than 50 (2) Written motion for extension. If the unpublished initial decision, the days after entry of the oral initial parties do not agree to an extension of administrative law judge must make decision on the record or service of the time for filing a reply brief, a party copies of that initial decision available written initial decision on the party, by desiring an extension of time may file a to all parties and the TSA decision filing an appeal brief with the written motion for an extension and will maker. Enforcement Docket Clerk. serve a copy of the motion on each (b) Oral decision. Except as provided (1) Extension of time by agreement of party. The TSA decision maker may in paragraph (c) of this section, at the the parties. The parties may agree to grant an extension if good cause for the conclusion of the hearing, the extend the time for perfecting the appeal extension is shown in the motion. administrative law judge must issue the with the consent of the TSA decision (f) Other briefs. The TSA decision initial decision and order orally on the maker. If the TSA decision maker grants maker may allow any person to submit record. an extension of time to perfect the an amicus curiae brief in an appeal of (c) Written decision. The appeal, the Enforcement Docket Clerk an initial decision. A party may not file administrative law judge may issue a will serve a letter confirming the more than one appeal brief or reply written initial decision not later than 30 extension of time on each party. brief. A party may petition the TSA days after the conclusion of the hearing (2) Written motion for extension. If the decision maker, in writing, for leave to or submission of the last post-hearing parties do not agree to an extension of file an additional brief and must serve brief if the administrative law judge time for perfecting an appeal, a party a copy of the petition on each party. The
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party may not file the additional brief raised by a party in the briefs on appeal, (c) Contents. A party must state with the petition. The TSA decision a remand of the case to the briefly and specifically the alleged maker may grant leave to file an administrative law judge for further errors in the final decision and order on additional brief if the party proceedings is not required but may be appeal, the relief sought by the party, demonstrates good cause for allowing provided in the discretion of the TSA and the grounds that support, the additional argument on the appeal. The decision maker. petition to reconsider or modify. TSA decision maker will allow a (2) The TSA decision maker will issue (1) If the petition is based, in whole reasonable time for the party to file the the final decision and order of the or in part, on allegations regarding the additional brief. Under Secretary on appeal in writing consequences of the TSA decision (g) Number of copies. A party must and will serve a copy of the decision maker’s decision, the party must file the original appeal brief or the and order on each party. Unless a describe these allegations and must original reply brief, and two copies of petition for review is filed pursuant to describe, and support, the basis for the the brief, with the Enforcement Docket § 1503.235, a final decision and order of allegations. Clerk. the Under Secretary will be considered (2) If the petition is based, in whole (h) Oral argument. The TSA decision an order assessing civil penalty if the or in part, on new material not maker has sole discretion to permit oral TSA decision maker finds that an previously raised in the proceedings, argument on the appeal. On the TSA alleged violation occurred and a civil the party must set forth the new decision maker’s own initiative or upon penalty is warranted. written motion by any party, the TSA (3) A final decision and order of the material and include affidavits of decision maker may find that oral Under Secretary after appeal is prospective witnesses and authenticated argument will contribute substantially precedent in any other civil penalty documents that would be introduced in to the development of the issues on action. Any issue, finding or conclusion, support of the new material. The party appeal and may grant the parties an order, ruling, or initial decision of an must explain, in detail, why the new opportunity for oral argument. administrative law judge that has not material was not discovered through (i) Waiver of objections on appeal. If been appealed to the TSA decision due diligence prior to the hearing. a party fails to object to any alleged maker is not precedent in any other civil (d) Repetitious and frivolous petitions. error regarding the proceedings in an penalty action. The TSA decision maker will not appeal or a reply brief, the party waives (4) The TSA decision maker will consider repetitious or frivolous any objection to the alleged error. The determine whether the decision and petitions. The TSA decision maker may TSA decision maker is not required to order of the TSA decision maker, with summarily dismiss repetitious or consider any objection in an appeal the administrative law judge’s initial frivolous petitions to reconsider or brief or any argument in the reply brief decision or order attached, may be modify. if a party’s objection is based on released to the public, either in whole (e) Reply petitions. Any other party evidence contained on the record and or in redacted form. In making this may reply to a petition to reconsider or the party does not specifically refer to determination, the TSA decision maker modify, not later than 10 days after the pertinent evidence from the record will consider whether disclosure of any service of the petition on that party, by in the brief. of the information in the decision and filing a reply with the Enforcement (j) The TSA decision maker’s decision order would be detrimental to Docket Clerk. A party must serve a copy on appeal. The TSA decision maker will transportation safety, would not be in of the reply on each party. review the briefs on appeal and the oral the public interest, or should not argument, if any, to determine if the (f) Effect of filing petition. Unless otherwise be required to be made otherwise ordered by the TSA decision administrative law judge committed available to the public. prejudicial error in the proceedings or maker, filing of a petition pursuant to that the initial decision should be § 1503.234 Petition to reconsider or modify this section will stay the effective date affirmed, modified, or reversed. The a final decision and order of the TSA of the TSA decision maker’s final TSA decision maker may affirm, decision maker on appeal. decision and order on appeal. modify, or reverse the initial decision, (a) General. Any party may petition (g) The TSA decision maker’s decision make any necessary findings, or may the TSA decision maker to reconsider or on petition. The TSA decision maker remand the case for any proceedings modify a final decision and order issued has sole discretion to grant or deny a that the TSA decision maker determines by the TSA decision maker on appeal petition to reconsider or modify. The may be necessary. from an initial decision. A party must TSA decision maker will grant or deny (1) The TSA decision maker may raise file a petition to reconsider or modify a petition to reconsider or modify any issue, on the TSA decision maker’s not later than 30 days after service of the within a reasonable time after receipt of own initiative, that is required for TSA decision maker’s final decision and the petition or receipt of the reply proper disposition of the proceedings. order on appeal and must serve a copy petition, if any. The TSA decision The TSA decision maker will give the of the petition on each party. The TSA maker may affirm, modify, or reverse parties a reasonable opportunity to decision maker will not reconsider or the final decision and order on appeal, submit arguments on the new issues modify an initial decision and order or may remand the case for any before making a decision on appeal. If issued by an administrative law judge proceedings that the TSA decision an issue raised by the TSA decision that has not been appealed by any party maker determines may be necessary. maker requires the consideration of to the TSA decision maker and filed § 1503.235 Judicial review of a final order. additional testimony or evidence, the with the Enforcement Docket Clerk. TSA decision maker will remand the (b) Form and number of copies. A A person may seek judicial review of case to the administrative law judge for party must file a petition to reconsider a final order of the Under Secretary as further proceedings and an initial or modify, in writing. The party must provided in 49 U.S.C. 46110. A party decision related to that issue. If an issue file the original petition with the seeking judicial review of a final order raised by the TSA decision maker is Enforcement Docket Clerk and must must file a petition for review not later solely an issue of law or the issue was serve a copy of the petition on each than 60 days after the final order has addressed at the hearing but was not party. been served on the party.
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Subpart H—Civil Monetary Penalty (1) Is for a specific monetary amount (4) Multiple of $5,000 in the case of Inflation Adjustment as provided by Federal law or has a penalties greater than $10,000 but less maximum amount provided by Federal than or equal to $100,000; § 1503.301 Scope and purpose. law; (5) Multiple of $10,000 in the case of (a) This subpart provides a (2) Is assessed or enforced by the TSA pursuant to Federal law; and penalties greater than $100,000 but less mechanism for the regular adjustment than or equal to $200,000; and for inflation of civil monetary penalties (3) Is assessed or enforced pursuant to in conformity with the Federal Civil an administrative proceeding or a civil (6) Multiple of $25,000 in the case of Penalties Inflation Adjustment Act of action in the Federal courts. penalties greater than $200,000. Consumer Price Index means the 1990, 28 U.S.C. 2461 (note), as (b) Definition. For purposes of Consumer Price Index for all urban amended, in order to maintain the paragraph (a) of this section, the term consumers published by the Department deterrent effect of civil monetary of Labor. cost-of-living adjustment means the penalties and to promote compliance percentage (if any) for each civil with the law. This subpart also sets out § 1503.305 Cost of living adjustments of monetary penalty by which the the current adjusted maximum civil civil monetary penalties. Consumer Price Index for the month of monetary penalties or range of (a) Adjustment determination. Except June of the calendar year preceding the minimum and maximum civil monetary for the limitation to the initial adjustment exceeds the Consumer Price penalties for each statutory civil penalty adjustment to statutory maximum civil Index for the month of June of the subject to the TSA’s jurisdiction. monetary penalties or range of calendar year in which the amount of (b) Each adjustment to the maximum minimum and maximum civil monetary such civil monetary penalty was last set civil monetary penalty or the range of penalties set forth in paragraph (c) of or adjusted pursuant to law. this section, the inflation adjustment minimum and maximum civil monetary (c) Limitation on initial adjustment. penalties, as applicable, made in under this subpart is determined by The initial adjustment of maximum civil accordance with this subpart applies increasing the maximum civil monetary penalty or range of minimum and prospectively from the date it becomes penalty or range of minimum and effective to actions initiated under this maximum civil monetary penalty for maximum civil monetary penalties part, notwithstanding references to a each civil monetary penalty by the cost- made pursuant to this subpart does not specific maximum civil monetary of-living adjustment. Any increase exceed 10 percent of the statutory penalty or range of minimum and determined under this paragraph (a) is maximum civil penalty before an maximum civil monetary penalties rounded to the nearest: adjustment under this subpart is made. contained elsewhere in this part. (1) Multiple of $10 in the case of This limitation applies only to the penalties less than or equal to $100; initial adjustment, effective on January § 1503.303 Definitions. (2) Multiple of $100 in the case of 21, 1997. penalties greater than $100 but less than The following definitions apply to this or equal to $1,000; (d) Inflation adjustment. Minimum subpart: (3) Multiple of $1,000 in the case of and maximum civil monetary penalties Civil monetary penalty means any penalties greater than $1,000 but less within the jurisdiction of the TSA are penalty, fine, or other sanction that: than or equal to $10,000; adjusted for inflation as follows:
MINIMUM AND MAXIMUM CIVIL PENALTIES—ADJUSTED FOR INFLATION, EFFECTIVE MARCH 13, 2002
New ad- Maximum penalty United States Code cita- Minimum justed min- amount when last set New or adjusted max- tion Civil monetary penalty description penalty imum pen- or adjusted pursuant to imum penalty amount alty amount law
49 U.S.C. 46301(a)(1)... Violations of statutory provisions N/A ...... N/A ...... $1,100 per violation, $1,100 per violation, listed in 49 U.S.C. 46301(a)(1), adjusted 1/21/97. adjusted 1/21/97. regulations prescribed, or orders issued under those provisions. 49 U.S.C. 46301(a)(2)... Violations of statutory provisions N/A ...... N/A ...... $11,000 per violation, $11,000 per violation, listed in 49 U.S.C. 46301(a)(2), adjusted 1/21/97. adjusted 1/21/97. regulations prescribed, or orders issued under those provisions by a person operating an aircraft for the transportation of passengers or property for compensation.
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Issued in Washington, DC, on July 26, 956, January 8, 2002, and 67 FR 34860, ACTION: Closure. 2002. May 6, 2002). J.M. Loy, In accordance with § 679.20(d)(2), the SUMMARY: NMFS is prohibiting directed Acting Under Secretary of Transportation for Administrator, Alaska Region, NMFS, fishing for species that comprise the Security. has determined that the allocation of the shallow-water species fishery by vessels [FR Doc. 02–19843 Filed 8–7–02; 8:45 am] Pacific ocean perch TAC in the Central using trawl gear in the Gulf of Alaska BILLING CODE 4910–62–P Regulatory Area of the GOA has been (GOA), except for vessels fishing for achieved. Therefore, NMFS is requiring pollock using pelagic trawl gear in those that further catches of Pacific ocean portions of the GOA open to directed DEPARTMENT OF COMMERCE perch in the Central Regulatory Area of fishing for pollock. This action is the GOA be treated as prohibited necessary because the third seasonal National Oceanic and Atmospheric species in accordance with § 679.21(b). apportionment of the 2002 Pacific Administration halibut bycatch allowance specified for Classification the shallow-water species fishery in the 50 CFR Part 679 This action responds to the best GOA has been reached. available information recently obtained [Docket No. 011218304–1304–01; I.D. DATES: Effective 1200 hrs, Alaska local 080502A] from the fishery. The Assistant time (A.l.t.), August 5, 2002, until 1200 Administrator for Fisheries, NOAA, hrs, A.l.t., September 1, 2002. Fisheries of the Exclusive Economic finds good cause to waive the requirement to provide prior notice and FOR FURTHER INFORMATION CONTACT: Zone Off Alaska; Pacific Ocean Perch Mary Furuness, 907–586–7228. in the Central Regulatory Area of the opportunity for public comment Gulf of Alaska pursuant to the authority set forth at 5 SUPPLEMENTARY INFORMATION: NMFS U.S.C. 553(b)(B) as such requirement is manages the groundfish fishery in the AGENCY: National Marine Fisheries contrary to the public interest. This GOA exclusive economic zone Service (NMFS), National Oceanic and requirement is contrary to the public according to the Fishery Management Atmospheric Administration (NOAA), interest as it would delay the closure of Plan for Groundfish of the Gulf of Commerce. the fishery, lead to overharvesting the Alaska (FMP) prepared by the North ACTION: Closure. allocation of the TAC, and therefore Pacific Fishery Management Council reduce the public’s ability to use and under authority of the Magnuson- SUMMARY: NMFS is prohibiting retention enjoy the fishery resource. Stevens Fishery Conservation and of Pacific ocean perch in the Central The Assistant Administrator for Management Act. Regulations governing Regulatory Area of the Gulf of Alaska Fisheries, NOAA, also finds good cause fishing by U.S. vessels in accordance (GOA). NMFS is requiring that catch of to waive the 30 day delay in the with the FMP appear at subpart H of 50 Pacific ocean perch in this area be effective date of this action under 5 CFR part 600 and 50 CFR part 679. treated in the same manner as U.S.C. 553(d)(3). This finding is based The Pacific halibut bycatch allowance prohibited species and discarded at sea upon the reasons provided above for for the GOA trawl shallow-water species with a minimum of injury. This action waiver of prior notice and opportunity fishery, which is defined at is necessary because the allocation of for public comment. § 679.21(d)(3)(iii)(A), was established by the Pacific ocean perch 2002 total This action is required by § 679.20 an emergency rule implementing 2002 allowable catch (TAC) in this area has and is exempt from review under harvest specifications and associated been achieved. Executive Order 12866. management measures for the DATES: Effective 1200 hrs, Alaska local Authority: 16 U.S.C. 1801 et seq. groundfish fisheries off Alaska (67 FR time (A.l.t.), August 5, 2002, until 2400 956, January 8, 2002) for the third hrs, A.l.t., December 31, 2002. Dated: August 5, 2002. season, the period June 30, 2002, Virginia M. Fay, FOR FURTHER INFORMATION CONTACT: through September 1, 2002, as 200 Mary Furuness, 907–586–7228. Acting Director, Office of Sustainable metric tons. Fisheries, National Marine Fisheries Service. SUPPLEMENTARY INFORMATION: NMFS In accordance with § 679.21(d)(7)(i), [FR Doc. 02–20081 Filed 8–5–02; 3:37 pm] manages the groundfish fishery in the the Administrator, Alaska Region, GOA exclusive economic zone BILLING CODE 3510–22–S NMFS, has determined that the third according to the Fishery Management seasonal apportionment of the 2002 Pacific halibut bycatch allowance Plan for the Groundfish Fishery of the DEPARTMENT OF COMMERCE Gulf of Alaska (FMP) prepared by the specified for the trawl shallow-water North Pacific Fishery Management National Oceanic and Atmospheric species fishery in the GOA has been Council under authority of the Administration reached. Consequently, NMFS is Magnuson-Stevens Fishery prohibiting directed fishing for the Conservation and Management Act. 50 CFR Part 679 shallow-water species fishery by vessels Regulations governing fishing by U.S. using trawl gear in the GOA, except for vessels in accordance with the FMP [Docket No. 011218304–1304–01; vessels fishing for pollock using pelagic appear at subpart H of 50 CFR part 600 I.D.080202F] trawl gear in those portions of the GOA open to directed fishing for pollock. The and 50 CFR part 679. Fisheries of the Exclusive Economic species and species groups that The 2002 TAC allocation of Pacific Zone Off Alaska; Shallow-Water comprise the shallow-water species ocean perch for the Central Regulatory Species Fishery by Vessels Using fishery are: pollock, Pacific cod, Area was established as 8,220 metric Trawl Gear in the Gulf of Alaska tons by an emergency rule shallow-water flatfish, flathead sole, implementing 2002 harvest AGENCY: National Marine Fisheries Atka mackerel, and ‘‘other species.≥ specifications and associated Service (NMFS), NationalOceanic and Maximum retainable bycatch amounts management measures for the Atmospheric Administration (NOAA), may be found in the regulations at groundfish fisheries off Alaska (67 FR Commerce. § 679.20(e) and (f).
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Classification opportunity for public comment 553(d)(3), a delay in the effective date is pursuant to the authority set forth at 5 hereby waived. This action responds to the best U.S.C. 553(b)(B). These procedures are available information recently obtained This action is required by § 679.20 unnecessary and contrary to the public and is exempt from review under from the fishery. The Assistant interest because of the need to Executive Order 12866. Administrator for Fisheries, NOAA, implement these measures in a timely finds that, because the third seasonal fashion. The third seasonal Authority: 16 U.S.C. 1801 et seq. apportionment of the 2002 Pacific apportionment of the 2002 Pacific Dated: August 5, 2002. halibut bycatch allowance specified for halibut bycatch allowance specified for Virginia M. Fay, the shallow-water species fishery in the the shallow-water species fishery in the GOA has been reached, the need to GOA has been reached. This constitutes Acting Director, Office of Sustainable immediately implement this action good cause to find that the effective date Fisheries, National Marine Fisheries Service. constitutes good cause to waive the of this action cannot be delayed for 30 [FR Doc. 02–20082 Filed 8–5–02; 3:37 pm] requirement to provide prior notice and days. Accordingly, under 5 U.S.C. BILLING CODE 3510–22–S
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Proposed Rules Federal Register Vol. 67, No. 153
Thursday, August 8, 2002
This section of the FEDERAL REGISTER rm/adams.html. From this site, the changes, shifts in Federal policy, and contains notices to the public of the proposed public can gain entry into the NRC’s Federal court decisions issued since the issuance of rules and regulations. The Agencywide Document Access and GSA regulations were issued in 1987. purpose of these notices is to give interested Management System (ADAMS), which The Commission has determined that persons an opportunity to participate in the provides text and image files of NRC’s NRC’s advisory committee regulations rule making prior to the adoption of the final rules. public documents. For more should be revised to make them more information, contact the NRC Public consistent with the new GSA FACA Document Room (PDR) Reference staff regulations. This proposed rule would NUCLEAR REGULATORY at 1–800–397–4209, 301–415–4737 or revise the NRC’s FACA regulations to COMMISSION by e-mail to [email protected]. meet that goal. FOR FURTHER INFORMATION CONTACT: John The following are the most significant 10 CFR Part 7 Szabo, Senior Attorney, Office of the changes that would be made to current RIN 3150–AH02 General Counsel, U.S. Nuclear NRC regulations by this proposed rule: Regulatory Commission, Washington, 1. The meetings of NRC advisory Federal Advisory Committee Act DC 20555–0001, telephone 301–415– committee subcommittees would be Regulations 1610, e-mail [email protected]. exempted from FACA requirements SUPPLEMENTARY INFORMATION: unless the subcommittee reports AGENCY: Nuclear Regulatory I. Background directly to an NRC employee or its Commission. II. Plain Language recommendations are adopted by its ACTION: Proposed rule. III. Voluntary Consensus Standards parent advisory committee without full IV. Environmental Impact: Categorical deliberations by the parent committee. SUMMARY: The Nuclear Regulatory Exclusion 2. There would be an exemption from Commission (NRC) is proposing to V. Paperwork Reduction Act Statement FACA requirements for meetings VI. Regulatory Analysis amend its regulations on the Federal composed only of Federal employees Advisory Committee Act (FACA) to VII. Regulatory Flexibility Certification VIII. Backfit Analysis and officials or employees of State, conform with newly issued General local, and tribal governments to Services Administration regulations. I. Background exchange views, information, or advice DATES: Submit comments by October 7, In 1972, the Congress enacted the on the management or implementation 2002. Comments received after this date Federal Advisory Committee Act (Pub. of Federal programs in which they share will be considered if it is practical to do L. 92–463, 5 U.S.C. App.) to regulate the responsibilities, as provided in section so, but the Commission is able to ensure formation and operation of advisory 204(b) of the Unfunded Mandates Act of consideration only for comments committees by Federal agencies. Section 1995. received on or before this date. 7(c) of the Act requires the 3. There would be an exemption from ADDRESSES: Mail written comments to: Administrator of the General Services FACA requirements for meetings Secretary, U.S. Nuclear Regulatory Administration (GSA) to establish between NRC employees and Commission, Washington, DC 20555– administrative guidelines and committees or groups not actually 0001, Attn.: Rulemakings and management controls applicable to managed or controlled by the Adjudications Staff. Deliver comments advisory committees. Section 8(a) of the Government which were created by a to: 11555 Rockville Pike, Rockville, Act directs the head of each Federal non-Federal entity and meetings with Maryland 20852–2738, between 7:30 agency to establish uniform NRC contractors, applicants, or a.m. and 4:15 p.m. on Federal workdays. administrative guidelines and licensees to discuss specific matters Comments also may be submitted, management controls for advisory involving the contract or the viewed, and downloaded via the NRC’s committees established by that agency. Commission’s efforts to ensure interactive rulemaking Web site (http:// Agency guidelines and management compliance with regulations. ruleforum.llnl.gov). This site provides controls must be consistent with GSA’s 4. The definition of a ‘‘utilized’’ the ability to upload comments as files directives. committee would be amended to mean (any format) if your Web browser In 1975, the NRC promulgated its a group or committee not established by supports that function. For information Advisory Committee regulations as 10 the Federal Government and whose about the interactive rulemaking Web CFR part 7 (40 FR 8774; March 3, 1975). operations are not managed or site, contact Ms. Carol Gallagher, 301– A revision of part 7 was published on controlled by a Federal agency. 415–5905 (e-mail [email protected]). June 27, 1989 (54 FR 26947), in order to 5. There would be a de-emphasis of Certain documents related to this maintain consistency between NRC and the goal of achieving ‘‘consensus’’ as an rulemaking, including comments GSA FACA regulations, which had been important factor in determining whether received, may be examined at the NRC issued on December 2, 1987 (52 FR an advisory group is subject to FACA. Public Document Room, 11555 45929). The GSA issued a revision of its Instead, the proposed rule provides that Rockville Pike, Rockville, Maryland. regulations, effective August 20, 2001 whether there is a group deliberative Except for restricted information, (66 FR 37728; July 19, 2001), providing process is a more important documents created or received at the administrative and interpretive consideration than whether the group NRC after November 1, 1999, are also guidelines and management controls for seeks to achieve consensus. available electronically at the NRC’s Federal agencies concerning the 6. The definition of an ‘‘operational Public Electronic Reading Room on the implementation of the Act. GSA’s new committee’’ would be amended to mean Internet at http://www.nrc.gov/reading- regulations reflect recent legislative a group performing operational
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functions specifically authorized by impractical. In this proposed rule, the amendments do not include any statute or Presidential directive, such as Commission is clarifying its practices provisions that would impose backfits making or implementing Governmental regarding Federal advisory committees. as defined in 10 CFR Chapter 1. decisions or policy, as long as the group This action does not constitute the List of Subjects in 10 CFR Part 7 does not become primarily advisory in establishment of a technical standard nature. that requires the use of a voluntary Advisory committees, Government in 7. New definitions of ‘‘discretionary’’ consensus standard developed by such the Sunshine Act. and ‘‘non-discretionary’’ committees a body. For the reasons set out in the would be created. ‘‘Non-discretionary’’ preamble and under the authority of the IV. Environmental Impact: Categorical committees would be defined as Atomic Energy Act of 1954, as amended; Exclusion advisory committees required by statute the Energy Reorganization Act of 1974, or Presidential directive, while The NRC has determined that this as amended; and 5 U.S.C. 553, the NRC ‘‘discretionary’’ committees would be proposed rule is the type of action is proposing to adopt the following defined as those established under the described in categorical exclusion 10 amendments to 10 CFR part 7. authority of an agency head or CFR 51.22(c)(1). Therefore, neither an authorized by statute, but not required environmental impact statement nor an PART 7—ADVISORY COMMITTEES by Congress. environmental assessment has been 1. The authority citation for part 7 8. The definition of advisory prepared for the proposed regulation. continues to read as follows: committee meeting would be amended V. Paperwork Reduction Act Statement to include a gathering of advisory Authority: Sec. 161, 68 Stat. 948, as committee members through electronic This proposed rule contains no amended (42 U.S.C. 2201); sec. 201, 88 Stat. means, such as by teleconference, video information collection requirements 1242, as amended (42 U.S.C. 5841); Pub. L. conference, or the Internet. and, therefore, is not subject to the 92–463, 86 Stat. 770 (5 U.S.C. App.). 9. A provision would be added to the requirements of the Paperwork 2. In § 7.1, paragraph (d) is revised effect that the Commission may Reduction Act of 1995 (44 U.S.C. 3501 and paragraphs (e)(1), (e)(2) and (i) are periodically invite feedback from the et seq.). added to read as follows: public regarding the effectiveness of VI. Regulatory Analysis NRC advisory committees. Currently, § 7.1 Policy. NRC’s Advisory Committees on Reactor In 2001, the General Services * * * * * Safeguards, Nuclear Waste, and the Administration (GSA) published (d)(1) An NRC advisory committee Medical Uses of Isotopes conduct amended Federal Advisory Committee shall be established only: periodic self-assessments of their Act (FACA) regulations providing (i) When establishment of the performance. They solicit and receive administrative and interpretive committee is required by law; the views of various stakeholders and guidelines and management controls for (ii) When the Commission determines the general public on their activities. Federal agencies concerning the that the committee is essential to the 10. The NRC would be required to implementation of the Act (66 FR conduct of NRC business; or consult with the GSA Committee 37728; July 19, 2001). This proposed (iii) When the information to be Management Secretariat prior to the rule will conform NRC regulations with obtained is not available through an establishment, renewal, or the amended GSA regulations issued in existing advisory committee or a source reestablishment of an advisory 2001. The proposed rule will not have within the Federal Government. committee, in addition to current a significant impact on state and local (2) Before establishing an advisory requirements on seeking the governments, particular geographical committee, the Commission shall Secretariat’s review. regions, or health, safety and the consider whether: 11. There would be a requirement for environment; nor will it impose (i) Committee deliberations will result reasonable access for persons with substantial costs on licensees, the NRC in a significant contribution to the disabilities to attend advisory or other Federal agencies. This creation, amendment, or elimination of committee meetings. constitutes the regulatory analysis for regulations, guidelines, or rules this proposed rule. affecting NRC business; II. Plain Language (ii) The information to be obtained is The Presidential Memorandum dated VII. Regulatory Flexibility Certification available through another source within June 1, 1998, entitled, ‘‘Plain Language As required by the Regulatory the Federal Government; in Government Writing,’’ directed that Flexibility Act of 1980 (5 U.S.C. 605(b)), (iii) The committee will make the Federal government’s writing be in the Commission certifies that this recommendations resulting in plain language (63 FR 31883; June 10, proposed rule, if adopted, would not significant improvements in service or 1998). Comments on the clarity and have a significant economic impact on reductions in cost; or effectiveness of the language used in a substantial number of small entities. (iv) The committee’s this proposed rule should be sent to the The proposed rule does not impose any recommendations will provide an NRC as indicated under the ADDRESSES obligation or have any financial impact important additional perspective or heading. on entities, including any regulated viewpoint relating to NRC’s mission. entities that may be ‘‘small entities,’’ as The advice or recommendations of an III. Voluntary Consensus Standards defined by the Regulatory Flexibility advisory committee should be the result The National Technology Transfer Act (5 U.S.C. 601(3)), or under the size of the advisory committee’s and Advancement Act of 1995 (Pub. L. standards established by the NRC in 10 independent judgment. 104–113) requires that Federal agencies CFR 2.810. (e) * * * use technical standards that are (1) An advisory committee not developed or adopted by voluntary VIII. Backfit Analysis required to be established by statute consensus standards bodies unless The NRC has determined that a terminates no later than two years after using such a standard is inconsistent backfit analysis is not required for this its establishment or last renewal, unless with applicable law or otherwise proposed rule because these renewed.
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(2) An advisory committee required to attendees on an individual basis and are and carries out the responsibilities of be established by statute terminates not sought from the group as a whole; the Administrator of the General upon the expiration of the time (7) Any meeting with a committee or Services Administration under the Act explicitly specified in the statute or group created by a non-Federal entity and Executive Order 12024 (42 FR implied by operation of the statute. that is not managed or controlled by the 61445; December 1, 1997). * * * * * President or a Federal employee; Committee member means an (i) The Commission may periodically (8) Any meeting of two or more individual who is appointed to serve on invite feedback from the public advisory committee members convened an advisory committee and has the full regarding the effectiveness of NRC solely to: right and obligation to participate in the advisory committees. (i) Discuss administrative matters activities of the committee, including 3. Section 7.2 is revised to read as relating to the operation of their voting on committee recommendations. follows: advisory committee; Committee meeting means any (ii) Receive administrative gathering of advisory committee § 7.2 Definitions. information from a Federal employee; members (whether in person, by Act means the Federal Advisory (iii) Gather information or conduct telephone, or through electronic means) Committee Act, as amended, 5 U.S.C. research for a chartered advisory held with the approval of an agency for App. committee to analyze relevant issues the purpose of deliberating on the Administrator means the and facts for their advisory committee; substantive matters upon which the Administrator of General Services. or advisory committee provides advice or Advisory committee means any (iv) Draft proposed position papers for recommendations. committee, board, commission, council, deliberation by their advisory Designated Federal Officer means a conference, panel, task force, or similar committee; government employee appointed, (9) Any meeting with a group initiated group, or any subcommittee or other pursuant to § 7.11(a), to chair or attend by the President or by one or more subgroup thereof, that is established by each meeting of an NRC advisory Federal employees for the purpose of statute for the purpose of providing committee to which he or she is exchanging facts or information; advice or recommendations on issues of assigned. policy to an official, branch, or agency (10) Any meeting attended only by Discretionary advisory committee of the Federal Government, or that is full-time or permanent part-time officers means any advisory committee that is established or utilized by the President or employees of the Federal Government established, but not required to be or any agency official to obtain advice and elected officers of State, local, and established, under the authority of an or recommendations on issues or tribal governments (or their designated agency head, and its establishment or policies that fall within the scope of his employees with authority to act on their termination is within the legal or her responsibilities, except that the own behalf), acting in their official discretion of an agency head. term ‘‘advisory committee’’ does not capacities. However, the purpose of the GSA means the General Services include the following advisory meetings meeting must be solely to exchange Administration. or groups: views, information, or advice relating to (1) Any group composed wholly of the management or implementation of Non-discretionary advisory committee full-time officers or employees of the Federal programs established pursuant means any advisory committee either Federal Government; to statute, that explicitly or inherently required by statute or Presidential (2) Any group specifically exempted share intergovernmental responsibilities directive. A non-discretionary from the Act or these regulations by an or administration; committee required by statute generally Act of Congress; (11) Any meeting of an NRC is identified specifically in a statute by (3) Any local civic group whose contractor, applicant, or licensee with name, purpose, or functions and its primary function is that of rendering a an NRC employee to discuss specific establishment is mandated. public service with respect to a Federal matters involving the solicitation, NRC means the agency established by program, or any State or local issuance, or implementation of a title II of the Energy Reorganization Act committee, council, board, commission, contract or the Commission’s effort to of 1974, 42 U.S.C. 5801 (88 Stat. 1233), or similar group established to advise or ensure compliance with its regulations; and known as the Nuclear Regulatory make recommendations to any State or and Commission. local government unit or an official (12) Any meeting of a subcommittee NRC Advisory Committee thereof; or other subgroup of an advisory Management Officer means the (4) Any group that performs primarily committee where the subgroup’s individual appointed, pursuant to operational functions specifically recommendations will be reviewed by § 7.10(a), to supervise and control the provided by law. Operational functions its parent advisory committee. establishment and management of NRC are those specifically authorized by Agency means an agency of the advisory committees. statute or Presidential directive, such as Government of the United States as NRC Public Document Room means making or implementing Government defined in 5 U.S.C. 551(1). the Public Document Room maintained decisions or policy, as long as the group Commission means the Nuclear by the NRC at 11555 Rockville Pike, does not become primarily advisory in Regulatory Commission of five Rockville, Maryland 20852–2738. nature; members, or a quorum thereof, sitting as Presidential advisory committee (5) Any meeting initiated by the a body, as provided by section 201 of means an advisory committee President or one or more Federal the Energy Reorganization Act of 1974, established by statute or directed by the employees for the purpose of obtaining 42 U.S.C. 5841, (88 Stat. 1242). President to advise the President. advice or recommendations from one Committee Management Secretariat Staff member means any individual individual; means the organization established who serves in a support capacity to an (6) Any meeting between an NRC within the General Services advisory committee. employee with a non-governmental Administration, pursuant to section 7(a) Subcommittee means a subgroup of individual or group where advice or of the Act, which is responsible for all an advisory committee, whether or not recommendations are provided by the matters relating to advisory committees, its members are drawn in whole or in
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part from the parent advisory (4) The NRC official to whom the requirements. When a statute or committee. committee will report; Executive Order that directed or Utilized committee means a (5) The NRC office responsible for authorized the establishment of an committee or group not established by providing support for the committee; advisory committee is amended, those the Federal Government, but whose (6) A description of the duties that the sections of the advisory committee’s operations are managed or controlled by committee will perform, and if such charter affected by the amendments a Federal agency. duties are not solely advisory, a shall also be amended. 4. Section 7.5 is revised to read as specification of the authority for the (c)(1) The charter of an NRC advisory follows: functions that are not advisory; committee established under general (7) The estimated annual operating agency authority may be amended when § 7.5 Consultation with Committee costs, in dollars and person years, for the Commission determines that the Management Secretariat on establishment the committee; of advisory committees; advisory existing charter no longer reflects the committee charters. (8) The estimated number and objectives or functions of the committee. frequency of committee meetings; and Such changes may be minor (such as (a) Before establishing a discretionary (9) The committee’s termination date, revising the name of the advisory advisory committee, the NRC shall if less than two years from the date of committee or modifying the estimated consult with the Committee the committee’s establishment. number or frequency of meetings), or Management Secretariat. With a full (c) The requirements of this part, they may be major (such as revising the understanding of the background and including the requirements of objectives or composition of the purpose behind the proposed advisory paragraphs (a) and (b) of this section, committee). committee, the Committee Management shall apply to any subcommittee that (2) The procedures in paragraph (b) of Secretariat may share its knowledge and functions independently of the parent this section shall be used in the case of experience with the NRC on how best to advisory committee (such as by making charter amendments involving minor make use of the proposed committee, recommendations directly to the agency changes. A proposed major amendment alternate methods of attaining the rather than to the parent advisory to the charter of an advisory committee agency’s purpose, or whether a pre- committee), regardless of whether the established under general agency existing advisory committee performs subcommittee’s members are drawn in authority shall be submitted to the similar functions. Such consultation whole or in part from the parent Committee Management Secretariat for should include the transmittal of the advisory committee. review with an explanation of the proposed committee charter and the (d) After the Committee Management purpose of the changes and why they following information: Secretariat has notified the Commission are necessary. (1) A request for a review of the of the results of its review of a proposal (3) A committee charter that has been proposed charter; to establish or utilize an NRC amended pursuant to this paragraph is (2) An explanation stating why the discretionary advisory committee, subject to the filing requirements set committee is essential to the conduct of submitted pursuant to paragraph (a) of forth in § 7.8. NRC business and is in the public this section, the Commission shall (4) Amendment of an existing interest; notify the Committee Management advisory committee charter pursuant to (3) An explanation stating why the Secretariat whether the advisory this paragraph does not constitute committee’s functions cannot be committee is actually being established. renewal of the committee for purposes performed by the NRC, an existing NRC Filing of the advisory committee charter of § 7.7. advisory committee, or other means pursuant to § 7.8 shall be deemed to 6. In § 7.7, paragraphs (a)(3) and (b)(2) (such as a public hearing); and fulfill this notification requirement. If are revised to read as follows: (4) A description of NRC’s plan to the advisory committee is not being attain balanced membership on the established, the Commission shall so § 7.7 Termination, renewal, and committee. The plan must ensure that, advise the Committee Management rechartering of advisory committees. in the selection of members for the Secretariat, stating whether NRC intends (a) * * * advisory committee, the NRC will to take any further action with respect (3) Its duration has been otherwise consider a cross-section of those directly to the proposed advisory committee. designated by law. The NRC Committee affected, interested, and qualified, as (e) The date of filing of an advisory Management Officer shall notify the appropriate to the nature and functions committee charter pursuant to § 7.8 Committee Management Secretariat of of the committee. For purposes of shall be added to the charter when such the effective date of termination of any attaining balance in an NRC advisory filing takes place, shall appear on the advisory committee that has been committee’s membership, the face of the charter, and shall constitute terminated by the NRC. Commission shall consider for the date of establishment, renewal, or (b)*** membership interested persons and reestablishment of the committee. (2) Any other NRC advisory groups with professional, technical, or 5. Section 7.6 is revised to read as committee may be renewed, provided personal qualifications or experience follows: that such renewal is carried out in that will contribute to the functions and compliance with the procedures set tasks to be performed. § 7.6 Amendments to advisory committee forth in § 7.5, except that an advisory (b) Each proposed committee charter charters. committee established by the President submitted for review pursuant to (a) Final authority for amending the may be renewed by appropriate action paragraph (a) of this section shall charter of an NRC advisory committee of the President and the filing of a new contain the following information: established or utilized by the NRC is charter. Renewal of an NRC advisory (1) The committee’s official vested in the Commission. committee shall not be deemed to designation; (b) Any proposed changes made to a terminate the appointment of any (2) The committee’s objectives and the current charter for an NRC advisory committee member who was previously scope of its activity; committee shall be coordinated with the appointed to serve on the committee. (3) The period of time necessary for General Counsel to ensure that they are 7. Section 7.8 is revised to read as the committee to carry out its purposes; consistent with applicable legal follows:
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§ 7.8 Charter filing requirements. 9. In § 7.10, paragraphs (a), (b)(5), (c) An NRC advisory committee may No advisory committee may meet or (b)(6), (b)(7) and (c)(2) are revised to not hold a meeting in the absence of its take any action until a charter has been read as follows: Designated Federal Officer or alternate. filed by the Committee Management (d) It shall also be the responsibility § 7.10 The NRC Advisory Committee of the Designated Federal Officer or Officer designated in accordance with Management Officer. § 7.10. alternate to— (a) The Chairman of the Commission (1) Attend all meetings of the (a) To establish, renew, or reestablish or designee shall appoint an NRC a discretionary advisory committee, a committee for which he or she has been Advisory Committee Management appointed; charter must be filed with: Officer to carry out the functions (2) Adjourn the meetings of the (1) The Commission; specified in paragraph (b) of this committee when such adjournment is in (2) The Committee on Environment section. the public interest; and Public Works of the United States (b) * * * Senate and the Committee on Energy (5) Carry out, on behalf of the NRC, (3) Chair the meetings of the and Commerce of the United States the provisions of the Freedom of committee when so directed by the House of Representatives; Information Act (5 U.S.C. 552) and Commission; (3) The Library of Congress, Anglo- implementing NRC regulations (10 CFR (4) Ensure compliance with the American Acquisitions Division, part 9, subpart A) with respect to such requirements of § 7.13 regarding Government Documents Section, reports, records, and other papers; minutes of meetings of the committee; Federal Advisory Committee Desk, 101 (6) Ensure that, subject to the and Independence Avenue, SE., Freedom of Information Act and (5) Make copies of committee Washington, DC 20540–4172; and implementing NRC regulations at 10 documents required to be maintained (4) The Committee Management CFR part 9, subpart A, copies of the for public inspection and copying Secretariat, indicating the date the records, reports, transcript minutes, pursuant to § 7.14(b) and ensure their charter was filed with the congressional appendices, working papers, drafts, availability at the NRC Web site, http:/ committees. studies, agenda, or other documents that /www.nrc.gov, at the NRC Public (b) Charter filing requirements for were made available to or prepared for Document Room, or both. non-discretionary advisory committees or by each NRC advisory committee are 11. In § 7.12, paragraphs (a), (c), and are the same as those in paragraph (a) available for public inspection and (e) are revised, and paragraph (f) is of this section, except the date of copying at the NRC Web site, http:// added to read as follows: establishment for a Presidential www.nrc.gov, the NRC Public § 7.12 Public participation in and public advisory committee is the date the Document, or both, until the advisory notice of advisory committee meetings. charter is filed with the Secretariat. committee ceases to exist; (a) Each meeting of an NRC advisory (c) Subcommittees that report directly (7) Ensure that, subject to the committee shall be held at a reasonable to a Federal employee or agency must Freedom of Information Act and time and in a place reasonably comply with this subpart. implementing NRC regulations, at least accessible to the public, including 8. Section 7.9 is revised to read as eight copies of each report made by each persons with disabilities. Any advisory follows: NRC advisory committee and, where appropriate, background papers committee meeting conducted in whole § 7.9 Public notice of advisory committee prepared by consultants, shall be filed or part by teleconference, video establishment, reestablishment, or renewal. with the Library of Congress; conference, the Internet, or other electronic medium must comply with (a) After the Commission has received * * * * * notice from the Committee Management this section. The size of the meeting (c)*** room must be sufficient to accommodate Secretariat that its review of a proposal (2) Copies of NRC’s portion of the advisory committee members, to establish, reestablish, renew, or Committee Management Secretariat committee or agency staff, and utilize an NRC discretionary advisory Annual Comprehensive Review of interested members of the public, except committee has been completed, the Federal advisory committees required that the provisions of this paragraph Commission shall publish a notice in by section 7(b) of the Act; relating to the room size shall not apply the Federal Register that the committee * * * * * is being established, reestablished, to any part of an NRC advisory 10. Section 7.11 is revised to read as committee meeting that has been closed renewed, or utilized. In the case of a follows: new committee, the notice shall also pursuant to § 7.15. describe the nature and purpose of the § 7.11 The Designated Federal Officer. * * * * * committee and shall include a statement (a) The Chairman of the Commission (c)(1) Except when the President or that the committee is necessary and in or designee shall appoint a Designated designee determines in writing that no the public interest. Federal Officer or alternate Designated notice should be published for reasons (b) Notices required to be published Federal Officer for each NRC advisory of national security, at least 15 days pursuant to paragraph (a) of this section committee. The individual holding prior to an NRC advisory committee shall be published at least 15 calendar either position must be employed by the meeting, a notice that includes the days before the committee charter is Federal Government on either a full- following information shall be filed pursuant to § 7.8, except that the time or a permanent part-time basis. published in the Federal Register: Committee Management Secretariat may (b) All meetings of an NRC advisory (i) The exact name of the advisory approve publication for less than 15 committee must be convened or committee as chartered; days for good cause shown. The 15-day approved by the committee’s Designated (ii) The time, date, place, and purpose advance notice requirement does not Federal Officer or alternate, and the of the meeting; apply to advisory committee renewals, agenda for each committee meeting (iii) A summary of the agenda of the notices of which may be published (except a meeting of a Presidential meeting; concurrently with the filing of the advisory committee) must be approved (iv) Whether all or part of the meeting charter. by that individual. is open to the public; and
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(v) The name and telephone number Act regulations at 10 CFR part 9, subpart available to the public upon request. If of the Designated Federal Officer, A, copies of NRC advisory committees’ such a determination has been issued, alternate, or other responsible agency records, reports, transcripts, minutes, the meeting notice published in the employee who may be contacted for appendices, working papers, drafts, Federal Register should comply with additional information concerning the studies, agenda, and other documents the provisions of § 7.12 applicable to meeting. shall be maintained for public closed meetings. (2) If any part of the meeting is closed, inspection and copying at the NRC Web the notice shall provide the reasons for site, http://www.nrc.gov, the NRC Public § 7.16 [Amended] the closure, citing the specific matter Document Room, or both. To provide 15. In § 7.16, amend paragraph (b) by that has been determined to justify the the public a meaningful opportunity to removing the reference to ‘‘7.27(a)’’ and closure under § 7.15. The Commission comprehend fully the work undertaken adding, in its place, a reference to may publish a single notice announcing by an NRC advisory committee, ‘‘7.17(a)’’. multiple meetings; however, a meeting advisory committee records should be may not be announced so far in advance available to the public as soon as 16. Section 7.17 is revised to read as as to prevent the public from being practicable. Members of the public or follows: adequately informed of an NRC advisory other interested parties may review non- § 7.17 Reports required for advisory committee’s schedule. exempt advisory committee records committees. * * * * * without filing a request for these records (e) In addition to notice required by under the Freedom of Information Act. (a) The Commission shall furnish a paragraph (c) of this section, the NRC (c) Official records generated by or for report on the activities of NRC advisory may also use other forms of notice, such an advisory committee must be retained committees annually to the Committee as press releases, posting the for the duration of the advisory Management Secretariat on a fiscal year information on the NRC Web site, http:/ committee. Upon termination of the basis. The report must contain /www.nrc.gov, or notice by mail, to advisory committee, the records must be information regarding NRC advisory inform the public of advisory committee processed in accordance with the committees consistent with instructions meetings. To that end, the Designated Federal Records Act (44 U.S.C. Chapters provided by the Committee Federal Officer or alternate for each 21, 29–33) and regulations issued by the Management Secretariat. A copy of the NRC advisory committee will, to the National Archives and Records report shall be made available at the extent practicable, maintain lists of Administration (see 36 CFR parts 1220, NRC Web site, http://www.nrc.gov, at people and organizations interested in 1222, 1228, and 1234), or in accordance the NRC Public Document Room, or that advisory committee and notify with the Presidential Records Act (44 both. The information provided by the U.S.C. Chapter 22). them of meetings by mail. Commission regarding its advisory (f) Meetings of a subcommittee whose 14. Section 7.15 is revised to read as follows: committees is contained in the recommendations will not be reviewed Committee Management Secretariat’s by its parent advisory committee shall § 7.15 Procedures for closing an NRC report which is available on its Web be conducted in accordance with all advisory committee meeting. site, http://www.gsa.gov/ notice and openness requirements (a) To close all or part of a meeting of committeemanagement. contained in this section and in §§ 7.13, an NRC advisory committee, the (b) Any NRC advisory committee 7.14, and 7.15. committee shall submit a written 12. In § 7.13, paragraph (c) is revised holding closed or partially closed request for closure to the General to read as follows: meetings shall issue a report, at least Counsel, citing specific exemptions annually, setting forth a summary of its listed in the Government in the § 7.13 Minutes of advisory committee activities consistent with the policy of meetings. Sunshine Act (5 U.S.C. 552b), as implemented by 10 CFR 9.104, that the Government in the Sunshine Act (5 * * * * * U.S.C. 552b), as implemented by 10 CFR (c) The chairperson of an NRC justify the closure. The request shall 9.104. A copy of the report shall be advisory committee shall certify the provide the General Counsel sufficient made available at the NRC Web site, accuracy of the minutes of each of the time for review in order to make a http://www.nrc.gov, at the NRC Public committee’s meetings. determination prior to publication of the Document Room, or both. * * * * * meeting notice pursuant to § 7.12. 13. Section 7.14 is revised to read as (b) If the General Counsel finds that (c) Subject to the Freedom of follows: the request for closure is consistent with Information Act (5 U.S.C. 552) and the provisions of the Government in the implementing NRC regulations (10 CFR § 7.14 Public information on advisory Sunshine Act and this part, a part 9, subpart A), eight copies of each committees. determination shall be issued in writing report made by an advisory committee, (a) The Nuclear Regulatory that all or part of the meeting will be including any report on closed meetings Commission shall maintain systematic closed. The determination shall include pursuant to paragraph (b) of this section, information on the nature, functions, a statement of the reasons for the and, where appropriate, background and operations of each NRC advisory closing, citing the applicable papers prepared by consultants, shall be committee. A complete set of the exemptions in the Government in the filed for public inspection and use with charters of NRC advisory committees Sunshine Act (as implemented by 10 the Library of Congress, Anglo- and copies of the annual reports CFR 9.104). American Acquisitions Division, required by § 7.17(a) will be maintained (c) Except when the President or Government Documents Section, for public inspection at either the NRC designee determines in writing that no Federal Advisory Committee Desk, 101 Web site, http://www.nrc.gov, the NRC notice should be published for reasons Independence Avenue, SE., Public Document Room, or both. of national security, the Secretary of the (b) Subject to the provisions of the Commission shall make a copy of the Washington, DC 20540–4172. Freedom of Information Act (5 U.S.C. determination to close all or part of an 17. Section 7.18 is revised to read as 552) and NRC’s Freedom of Information NRC advisory committee meeting follows:
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§ 7.18 Appointment, compensation, and (2) A staff member of an NRC advisory (1) Prevent any full-time Federal expense reimbursement of advisory committee may not be paid at a rate employee who provides services to an committee members, staffs, and higher than the daily equivalent of the NRC advisory committee from receiving consultants. maximum rate for a GG–15 under NRC’s compensation at a rate at which he or (a) Unless otherwise provided by law, General Grade Salary Schedule, unless she would otherwise be compensated as advisory committee members serve at the Chairman of the Commission a full-time Federal employee. the pleasure of the Commission and determines that the staff member’s (2) Prevent any individual who their terms are at the sole discretion of position would appropriately be placed the Commission. at a grade higher than GG–15, provided provides services to an NRC advisory (b) Except where otherwise provided that in establishing rates of committee, and who immediately before by law, the Commission may accept the compensation, the Chairman shall providing such services was a full-time gratuitous services of an NRC advisory comply with any applicable statutes, Federal employee, from receiving committee member, staff member, or regulations, Executive Orders, and compensation at a rate at which he or consultant who agrees in advance to administrative guidelines. The she was compensated as a full-time serve without compensation. Federal employee. (c)(1) Subject to the provisions of Commission may provide advisory paragraph (c)(2) of this section, if the committee staff members with (3) Affect a rate of pay or a limitation Commission determines that additional compensation, such as on a rate of pay that is specifically compensation of a member of an NRC bonuses or premium pay, as long as the established by law or a rate of pay advisory committee is appropriate, the aggregate compensation does not exceed established under the NRC’s General amount that will be paid shall be fixed the rate of pay for Executive Schedule Grade Salary Schedule and evaluation by the Chairman of the Commission at level IV. system. a rate that is the daily equivalent of a (3) A Federal employee may serve as a staff member of an NRC advisory 17. Section 7.19 is revised to read as rate in NRC’s General Grade Salary follows: Schedule, unless the member is committee only with the knowledge of appointed as a consultant and the advisory committee’s Designated § 7.19 Advisory committee members with compensated at a rate applicable to NRC Federal Officer or alternate and the disabilities. consultants. approval of the employee’s direct An NRC advisory committee member (2) In determining an appropriate rate supervisor. A staff member who is not of pay for a member of an NRC advisory otherwise a Federal employee shall be who is disabled may be provided committee, the Chairman of the appointed in accordance with services by a personal assistant while Commission shall give consideration to applicable agency procedures, following performing advisory committee duties, the significance, scope, and technical consultation with the advisory if the member— complexity of the matters with which committee. (a) Qualifies as disabled under section the advisory committee is concerned (e)(1) Subject to the limitations in 501 of the Rehabilitation Act of 1973 (29 and the qualifications required of the paragraph (2), the following factors shall U.S.C. 794); and be considered in determining an committee member; provided that the (b) Does not otherwise qualify for Chairman may not set the rate of pay for appropriate rate of pay for a consultant assistance under 5 U.S.C. 3102 by an NRC advisory committee member to an NRC advisory committee: reason of being an employee of NRC. higher than the daily equivalent rate for (i) The qualifications required of the level IV of the Executive Schedule consultant, and 17. Section 7.20 is revised to read as under 5 U.S.C. 5315, unless a higher (ii) The significance, scope, and follows: rate is expressly allowed by another technical complexity of the work for § 7.20 Conflict of interest reviews of statute. The Chairman may authorize a which his services are required; (2) The rate of pay for an NRC advisory committee members’ outside rate of basic pay in excess of the interests. maximum rate of basic pay established advisory committee consultant may not for NRC’s General Grade Salary be higher than the maximum rate of The Designated Federal Officer or Schedule. This maximum rate includes basic pay established by NRC’s General alternate for each NRC advisory an applicable locality payment. The Grade Salary Schedule (that is, the GG– committee and the General Counsel or Commission may pay advisory 15, step 10 rate, excluding locality pay designee shall review the interests and committee members on either an hourly or any other supplement), unless a affiliations of each member of the or a daily rate basis. The Commission higher rate is expressly allowed by Designated Federal Officer’s advisory may not provide additional another statute. The appointment and committee annually, and upon the compensation in any form, such as compensation of NRC experts and commencement of the member’s bonuses or premium pay. The Chairman consultants must be in conformance appointment to the committee, for the may not delegate the responsibility for with applicable regulations issued by purpose of ensuring that such the United States Office of Personnel making a determination that a higher appointment is consistent with the laws Management (see 5 CFR part 304). rate of pay than that established by and regulations on conflict of interest (f) A member or staff member of an NRC’s General Grade Salary Schedule is applicable to that member. necessary and justified for an NRC NRC advisory committee engaged in the advisory committee member, and such a performance of duties away from his or Dated at Rockville, Maryland, this 1st day determination must be reviewed her home or regular place of business of August 2002. annually. may be allowed travel expenses, For the Nuclear Regulatory Commission. (d)(1) Each NRC advisory committee including per diem in lieu of Annette Vietti-Cook, staff member may be paid at a rate that subsistence, as authorized by section Secretary of the Commission. is the daily equivalent of a rate in NRC’s 5703, title 5, United States Code, for [FR Doc. 02–19941 Filed 8–7–02; 8:45 am] General Grade Salary Schedule in which persons employed intermittently in the the staff member’s position would Government service. BILLING CODE 7590–01–P appropriately be placed. (g) Nothing in this section shall—
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SECURITIES AND EXCHANGE line if you use electronic-mail. We will 29, 2002, 30 days after the date of COMMISSION make all comment letters available for enactment, under which the principal public inspection and copying in our executive officer or officers and the 17 CFR Parts 232, 240 and 249 public reference room at the same principal financial officer or officers, or [Release No. 34–46300; File No. S7–21–02] address. We will post electronically persons providing similar functions, submitted comment letters on the must provide a specified certification in RIN 3235–AI54 Commission’s Internet Web site (http:// issuers’ annual and quarterly reports. www.sec.gov ).1 Under the statute, the certification must Certification of Disclosure in FOR FURTHER INFORMATION CONTACT: be provided by the officers of a broader Companies’ Quarterly and Annual group of issuers, particularly foreign Reports Mark A. Borges, Special Counsel, or Elizabeth M. Murphy, Chief, Office of issuers, and is different in certain AGENCY: Securities and Exchange Rulemaking, Division of Corporation respects from the certification Commission. Finance, at (202) 942–2910, or, with requirements that we proposed in June. ACTION: Supplemental information on respect to investment company matters, The requirements under section 302 of proposed rule. Tara L. Royal, Attorney, Office of the Act are set forth in section II of this Disclosure Regulation, Division of document, and the principal differences SUMMARY: On July 30, 2002, President Investment Management, at (202) 942– between the form of certification Bush signed into law the Sarbanes- 0721, at the Securities and Exchange required pursuant to section 302 of the Oxley Act of 2002. Section 302 of the Commission, 450 Fifth Street, NW., Act and the form of certification set Act requires us to adopt rules Washington, DC 20549–0312. forth in our proposed rules are implementing specified statutory SUPPLEMENTARY INFORMATION: discussed in section III of this certification requirements for principal document. executive officers and principal I. Background To satisfy the requirements of the financial officers by August 29, 2002. On June 14, 2002, we proposed rules 2 Sarbanes-Oxley Act of 2002, we plan to On June 14, 2002, we had proposed to that would require a company’s issue and make effective final rules on require a specified certification by a principal executive officer and principal or prior to August 29, 2002 to require company’s principal executive officer financial officer each to certify the the certification mandated by the Act. and principal financial officer. In contents of the company’s quarterly However, given the specificity of the addition, we had proposed to require a reports on Forms 10–Q 3 and 10–QSB 4 requirements of section 302, we wanted company to maintain procedures to and annual reports on Forms 10–K 5 and to alert interested parties to the rules provide reasonable assurance that the 10–KSB 6 filed pursuant to the that we will be required to adopt company is able to collect, process and Securities Exchange Act of 1934.7 The pursuant to section 302 and to the disclose the information required in the proposed rules also would require a differences between those rules and our company’s quarterly and annual reports, company filing quarterly and annual proposed rules. as well as current reports on Form 8–K, reports on these forms to maintain and also to require periodic review and II. Required Certification Under Section procedures to provide reasonable 302 of the Sarbanes-Oxley Act of 2002 evaluation of these procedures. This assurance that the company is able to document contains supplemental collect, process and disclose the Section 302(a) of the Sarbanes-Oxley information regarding those proposals information required in these reports Act of 2002 provides that the in light of the enactment of the and in current reports on Form 8–K.8 In Commission shall, by rules that become Sarbanes-Oxley Act of 2002. addition, the proposed rules would effective not later than August 29, 2002, DATES: You should send us any require a periodic review and evaluation require, for each company filing comments so that they arrive at the of these procedures. The annual periodic reports under section 13(a) or Commission by August 19, 2002. This is evaluation would have to be presented 15(d) of the Exchange Act,10 that: the same date by which we originally to the company’s principal executive The principal executive officer or requested comment on the proposals officer and principal financial officer. officers and the principal financial included in Release No. 34–46079. In They would have to certify in the officer or officers, or persons performing view of the statutory deadline by which company’s annual report that they have similar functions, certify in each annual we must adopt final rules, we encourage reviewed the results of the evaluation. or quarterly report filed or submitted you to submit any comments as soon as On July 30, 2002, the Sarbanes-Oxley under either such section of such Act possible since we do not expect to be Act of 2002 was enacted.9 Section 302 that— able to consider comments that arrive of the Act, entitled ‘‘Corporate (1) The signing officer has reviewed after August 19, 2002. Responsibility for Financial Reports,’’ the report; ADDRESSES: Please send three copies of requires the Commission to adopt final (2) based on the officer’s knowledge, your comments to Jonathan G. Katz, rules that must be effective by August the report does not contain any untrue Secretary, Securities and Exchange statement of a material fact or omit to Commission, 450 Fifth Street, NW., 1 We do not edit personal identifying information, state a material fact necessary in order such as names or electronic-mail addresses, from to make the statements made, in light of Washington, DC 20549–0609. electronic submissions. You should only submit Alternatively, you may submit your information that you wish to make publicly the circumstances under which such comments electronically to the available. statements were made, not misleading; following electronic-mail address: rule- 2 See Release No. 34–46079 (June 14, 2002) [67 FR (3) based on such officer’s knowledge, [email protected]. To help us process 41877]. the financial statements, and other 3 17 CFR 249.308a. financial information included in the and review your comments more 4 17 CFR 249.308b. report, fairly present in all material efficiently, comments should be sent by 5 17 CFR 249.310. one method (U.S. mail or electronic- 6 17 CFR 249.310b. respects the financial condition and mail) only. All comment letters should 7 15 U.S.C. 78a et seq. results of operations of the issuer as of, refer to File No. S7–21–02; please 8 17 CFR 249.308. include this file number in the subject 9 Pub. L. 107–204, 116 Stat. 745 (2002). 10 15 U.S.C. 78m(a) or 78o(d).
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and for, the periods presented in the However, our proposed form of While section 302 of the Act requires report; certification used a ‘‘plain English’’ the principal executive officer or (4) the signing officers— approach to reflect the applicable officers and principal financial officer or (A) are responsible for establishing disclosure standard for ‘‘material’’ officers to make specific attestations in and maintaining internal controls; information,12 while the Act uses the their certifications as to the company’s (B) have designed such internal formulation found in Exchange Act internal controls, it does not directly controls to ensure that material Rules 10b–5(b)13 and 12b–20.14 In address the maintenance of these information relating to the issuer and its addition, the Act requires an additional requirements. Our proposed rules consolidated subsidiaries is made attestation regarding the financial would require maintenance of sufficient known to such officers by others within disclosure included in these reports. procedures to provide reasonable those entities, particularly during the Further, while our proposed assurance that the company is able to period in which the periodic reports are certification contains an attestation collect, process and disclose, within the being prepared; regarding the completion of a review of time periods specified in our rules and (C) have evaluated the effectiveness of internal procedures and controls aimed forms, the information, including non- the issuer’s internal controls as of a date at assuring adequate disclosure, the within 90 days prior to the report; and attestations required by the Act require financial information, required to be (D) have presented in the report their additional information regarding certain disclosed in their periodic and current conclusions about the effectiveness of aspects and results of that review. reports. We do not propose to modify, their internal controls based on their and continue to solicit comment on, our There is also a difference regarding proposed Rules 13a–15(a) and 15d–15(a) evaluation as of that date; the companies to whom the certification (5) the signing officers have disclosed that would impose this requirement. requirements are applicable, in respect to the issuer’s auditors and the audit of foreign issuers. Our proposed rules We are considering the manner of committee of the board of directors (or would only have applied to issuers application of section 302 of the Act to persons fulfilling the equivalent subject to the reporting requirements of registered investment companies. We function)— section 13(a) or 15(d) of the Exchange ask commenters to address the manner (A) all significant deficiencies in the Act that filed annual reports on Forms in which the certification requirement design or operation of internal controls 10–K and 10–KSB and quarterly reports should address registered investment which could adversely affect the issuer’s on Forms 10–Q and 10–QSB. Thus, our companies, including the appropriate ability to record, process, summarize, proposed rules would have applied to location for the certification (for and report financial data and have U.S. companies and to companies 19 identified for the issuer’s auditors any example, Form N–SAR; reports to domiciled in foreign jurisdictions that material weaknesses in internal shareholders), the appropriate have a majority of U.S. security holders controls; and individuals to provide the certification and U.S.-based businesses or (B) any fraud, whether or not material, (for example, officers of the investment management. Section 302 of the Act, that involves management or other company itself and/or the investment however, also applies to foreign private employees who have a significant role adviser, administrator or depositor of issuers.15 We, therefore, intend to adopt in the issuer’s internal controls; and the registered investment company), final rules that would apply the (6) the signing officers have indicated how the rule should apply to different certification requirement to foreign in the report whether or not there were types of investment companies (for private issuers filing annual reports on significant changes in internal controls example, managed investment Form 20–F 16 and Canadian issuers or in other factors that could companies; unit investment trusts) and filing Form 40–F 17 under the significantly affect internal controls any other matters that are specific to Commission’s Multijurisdictional subsequent to the date of their Disclosure System.18 registered investment companies. evaluation, including any corrective actions with regard to significant IV. Request for Comment 12 See Release No. 34–46079 at section II.2. deficiencies and material weaknesses. 13 17 CFR 240.10b–5(b) As indicated above, we continue to III. Certain Differences From Our 14 17 CFR 240.12b–20. solicit comment on proposed Rules 13a– 15 Certification Proposal For purpose of the Exchange Act, a ‘‘foreign 15(a) and 15d–15(a), as proposed on private issuer’’ is any foreign issuer (other than a There are several substantive foreign government) except an issuer meeting the June 14, 2002 in Release No. 34–46079. differences between the form of following conditions: (1) more than 50% of the Dated: August 2, 2002. issuer’s outstanding voting securities are directly or certification mandated by section 302 of indirectly held of record by residents of the U.S.; By the Commission. the Sarbanes-Oxley Act of 2002 and the and (2) the majority of the executive officers or Margaret H. McFarland, version that we proposed in June.11 As directors are U.S. citizens or residents; or more than indicated above, we will adopt a form 50% of the assets of the issuer are located in the Deputy Secretary. U.S.; or the business of the issuer is administered [FR Doc. 02–20029 Filed 8–2–02; 4:48 pm] of certification that conforms to the principally in the U.S. See Exchange Act Rule 3b– statutory requirements. Both our 4(c) [17 CFR 240.3b–4(c)]. BILLING CODE 8010–01–P proposed form of certification and that 16 17 CFR 249.220f. required by the Act address the material 17 14 CFR 240.240f. accuracy and completeness of the 18 Section 302(b) of the Sarbanes-Oxley Act of 2002 states that nothing in the section can be periodic reports that they cover. interpreted or applied in any way to allow any issuer to lessen the legal force of the certification 11 Section 906 of the Sarbanes-Oxley Act of 2002 required by the Act by an issuer that has adds new section 1350 to chapter 63 of title 18 of reincorporated or engaged in any other transaction the United States Code. Section 1350 requires a resulting in the transfer of the corporate domicile written statement to accompany all periodic reports or offices of the issuer from inside of the United filed with us that contain financial statements. This States to outside of the United States. Our rules as release does not relate to section 906 of the Act, adopted will, of course, assure complaicne with this any issuer that would seek to lessen the legal force which, by its terms, is effective on enactment of the requirement by applying the certification of the certification as described above. Act, July 30, 2002. requirement to all reporting companies, including 19 17 CFR.330; 17 CFR 274.101.
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SECURITIES AND EXCHANGE edit personal, identifying information, compensation for views or specific COMMISSION such as names or e-mail addresses, from recommendations in the research report. electronic submissions. Submit only the The proposed regulation would also 17 CFR Part 242 information you wish to make publicly require the analyst to make quarterly [Release Nos. 33–8119; 34–46301; File No. available. certifications that the views expressed S7–30–02] FOR FURTHER INFORMATION CONTACT: by the analyst in public appearances James Brigagliano, Thomas Eidt, or accurately reflected the analyst’s RIN 3235–AI60 Racquel Russell in the Office of Risk personal views and whether or not he or she received any related compensation Regulation Analyst Certification Management and Control, Division of Market Regulation, at (202) 942–0772. for his or her views or AGENCY: Securities and Exchange SUPPLEMENTARY INFORMATION: We are recommendations. In so doing, the Commission. proposing new Regulation Analyst proposed regulation should promote the ACTION: Proposed rule. Certification (‘‘Regulation AC’’) 1 under integrity of research reports and investor the Securities Act of 1933 (‘‘Securities confidence in the research analyst’s SUMMARY: The Commission is seeking Act’’) and the Securities Exchange Act recommendations contained in those public comment on proposed of 1934 (‘‘Exchange Act’’). reports. Regulation Analyst Certification. The II. Proposed Rule proposed regulation would require that I. Introduction any research report disseminated by Research analysts study publicly- A. Reasons for Proposal broker or dealer include certifications traded companies and make During 1999, the Commission and by the research analyst that the views recommendations about the securities of Congress began to examine research expressed in the research report those companies, often through the analysts’ conflicts of interest in greater accurately reflect the analyst’s personal issuance of research reports. Analysts depth. The Commission was views, and whether the analyst received typically work for full-service broker- particularly concerned that many compensation or other payments in dealers 2 and, as such, are ‘‘persons investors who rely on analysts’ connection with his or her specific associated with a broker or dealer.’’ 3 recommendations may not know, among recommendations or views. A research The Commission has stated that other things, that favorable research analyst would also be required to analysts, who ‘‘ferret out and analyze could be used as a component of the provide certifications and disclosures in information,’’ play an important role in marketing of investment banking connection with public appearances. the securities markets.4 services provided by the analyst’s firm, Although research analysts are often Research analysts at full-service and that analyst compensation may be viewed by investors as experts and as brokerage firms, so called sell-side based significantly on generating important sources of information about analysts, are often viewed by investors investment banking business. the securities and companies they cover, as experts and as important sources of Beginning in the summer of 1999, many factors can create pressure on information about the securities and the Commission staff began a review of their independence and objectivity. By companies they cover.5 At the same industry practices regarding disclosure requiring these certifications and time, however, many factors can create of research analyst conflicts of interest. disclosures, the proposed regulation pressure on an analyst’s independence Commission staff conducted on-site should promote the integrity of research and objectivity. Among other things, examinations of full-service broker- reports and investor confidence in the investment banking relationships and dealers that focused on analysts’ recommendations contained in those certain compensation arrangements may financial interests in companies they reports. adversely affect analyst objectivity and, cover, reporting structures (in particular DATES: Comments must be received on as a result, the integrity of the views whether analysts report to investment or before September 23, 2002. expressed in research reports and public banking personnel) and analyst compensation arrangements. In June ADDRESSES: To help us process and appearances. and July 2001, the Subcommittee on review your comments more efficiently, Proposed Regulation AC seeks to Capital Markets, Insurance and comments should be sent by one address these concerns by requiring Government Sponsored Enterprises of method only. broker-dealers issuing research reports Persons wishing to submit written to include clear and prominent the House of Representatives’ comments should send three copies to certifications by the research analysts Committee on Financial Services held hearings on research analyst conflict of Jonathan G. Katz, Secretary, Securities that the research report accurately interest issues.6 In addition, also in July and Exchange Commission, 450 Fifth reflects the analyst’s personal views 2001, the staff of the Commission’s Street, NW., Washington, DC 20549– about the subject securities and issuers Office of Investor Education and 0609. Comments also may be submitted and whether the analyst received Assistance issued an Investor Alert electronically at the following E-mail 1 highlighting the numerous biases that address: [email protected]. All 17 CFR 242.500 through 502. 2 Full-service broker-dealers provide a wide range may affect analyst recommendations.7 comment letters should refer to File No. of services to clients, including investment banking, The Senate Committee on Governmental S7–30–02. Comments submitted by E- financial planning, and other financial services. Affairs held a hearing on analysts on mail should include this file number in 3 See Exchange Act Section 3(a)(18). February 27, 2002.8 the subject line. Comment letters 4 Dirks v. SEC, 463 U.S. 646, 658 (1983). See also received will be available for public Securities Act Release No. 7606A (November 13, 1998), 63 FR 67174 (December 4, 1998). 6 Analyzing the Analysts: Hearings Before the inspection and copying in the 5 Sell-side analysts typically work for full-service Subcomm. on Capital Markets Insurance and Commission’s Public Reference Room, broker-dealers that sell securities to the public and Government Sponsored Enterprises of the House 450 Fifth Street, NW., Washington, DC make recommendations on the securities they Comm. on Financial Services (June 14 and July 31, 20549. Electronically submitted cover. Many of the more popular sell-side analysts 2001). work for prominent brokerage firms that also 7 See www.sec.gov/investor/pubs/analysts.htm. comment letters will be posted on the provide investment banking services for corporate 8 The Watchdogs Didn’t Bark: Enron and the Wall Commission’s Internet Web site (http:// clients—including companies whose securities the Street Analysts: Hearing Before the Senate Comm. www.sec.gov). The Commission does not analysts cover. on Governmental Affairs (February 27, 2002).
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On April 25, 2002, the Commission provide increased disclosure to • A statement by the research analyst announced the commencement of a investors. The Commission encourages certifying that no part of his or her formal inquiry into market practices brokers, dealers, and persons associated compensation 12 was, is, or will be concerning research analysts and the with brokers and dealers, to consider directly or indirectly related to the personal conflicts that can arise from voluntarily implementing the types of specific recommendation or views the relationship between research and disclosures that proposed Regulation contained in the research report; or investment banking.9 Further, on May AC, if adopted, would require. The • A statement by the research analyst 10, 2002, the Commission approved rule Commission will continue its efforts to certifying that part or all of his or her changes proposed by the National determine whether any additional compensation was, is, or will be directly Association of Securities Dealers action may be necessary to improve the or indirectly related to the specific (‘‘NASD’’) and the New York Stock integrity of research and to restore recommendation or views contained in Exchange (‘‘NYSE’’) relating to research investor confidence.11 the research report. If the analyst did 10 analyst conflicts of interest. The B. Description of Proposal receive such related compensation, the NASD and NYSE filed these rule statement must include the source and changes with the Commission in We propose new Regulation AC to amount of such compensation, and the February 2002. New NASD Rule 2711 further address conflicts of interest purpose of the compensation, and and amended NYSE Rule 472 faced by research analysts and their further disclose that such compensation established standards governing firms. The proposed regulation would may influence the recommendation in member broker-dealer communications require certification by ‘‘research the research report; with the public to address research analysts’’ that the views they express in • All certifications must be clear and analyst conflicts of interest. Specifically, ‘‘research reports’’ and ‘‘public prominent.13 the rules contain, among other things: appearances’’ accurately reflect their Additionally, under proposed • A prohibition on tying analyst personal views about the subject Regulation AC, broker-dealers must compensation to specific investment securities and issuers. Analysts would make a record related to public banking transactions; also have to disclose whether they appearances by research analysts.14 • A prohibition on offering favorable received compensation for their specific Specifically, a broker-dealer who research to induce firm business; recommendations or views. The publishes, circulates, or provides, • Restrictions on personal trading by proposed regulation defines ‘‘research directly or indirectly, a research report analysts in securities of companies report’’ as ‘‘a written communication by a research analyst, would be required followed by the analyst; and that includes an analysis of securities of to make a record within thirty days after • Requirements mandating increased an issuer or issuers, provides each calendar quarter in which the disclosures of conflicts of interest in information reasonably sufficient upon research analyst made the public research reports and public which to base an investment decision appearance, that includes: appearances, such as business and includes a recommendation.’’ • A written statement by the research relationships with, compensation from, Proposed Regulation AC requires certain analyst certifying that the views or ownership interests in the company certifications and disclosures regarding expressed in each public appearance that is the subject of the research report. a ‘‘public appearance,’’ which is defined accurately reflected such research New NASD Rule 2711 and amended as ‘‘any participation in a seminar, analyst’s personal views about the NYSE Rule 472 also require that forum (including an interactive subject securities and issuers; and members attest annually that the electronic forum), radio or television • A written statement by the research member has adopted and implemented interview, or other public speaking analyst certifying that no part of such written supervisory procedures activity in which a research analyst research analyst’s compensation was, is, reasonably designed to ensure that makes a specific recommendation or or will be directly or indirectly related employees comply with the provisions offers an opinion concerning a security to any specific recommendations or of the rule. These SRO rules close or an issuer.’’ ‘‘Research analyst’’ is views expressed in any public regulatory gaps and take a significant defined as ‘‘any natural person who is appearance. step toward restoring investor principally responsible for the analysis In cases where the analyst is unable confidence in the role of sell-side of any security or issuer included in a to make the certifications in connection research in the capital markets. research report.’’ with public appearances as described However, it is possible that the Proposed Regulation AC would above, the broker-dealer must make, Commission’s formal inquiry may require that broker-dealers and persons keep, and maintain a record of a indicate the need for further SRO rule associated with broker-dealers include statement from the research analyst that changes or additional Commission in their research reports: • he or she is unable to provide the action. Moreover, the Commission has A statement by the research analyst written certifications specified in Rule requested that the NASD and NYSE certifying that the views expressed in 502 (a)(1) of proposed Regulation AC report within a year of implementing the research report accurately reflect these rules on their operation and such research analyst’s personal views 12 The Commission notes that the term effectiveness, and whether they about the subject securities and issuers; ‘‘compensation,’’ for the purposes of Regulation AC, recommend any changes or additions to would also include payments received from sources 11 We note that the recently-enacted Sarbanes- other than the research analyst’s employer, the rules. including issuers, underwriters, dealers, and other Proposed Regulation AC is part of an Oxley Act of 2002 directs the Commission to conduct rulemaking, itself or through the SROs, to related persons. ongoing process by the Commission to address a broad range of issues stemming from 13 The Commission would expect that the address conflicts of interest affecting the analysts conflicts. See Sarbanes-Oxley Act of 2002, required certifications be included on the front page production and dissemination of Public Law 107–204. The Commission voted to of the research report, or that the front page would research by securities firms, and to propose Regulation AC on July 24, 2002, before the specify the page or pages on which each passage of the Act. The Commission will, of course, certification is found. abide by the directives of the Act as it continues 14 If an associated person of a broker-dealer 9 See www.sec.gov/news/press/2002–56.htm. to address analyst conflicts of interest issues, publishes a research report, the broker-dealer would 10 See Securities Exchange Act Release No. 45908 including with respect to the possible adoption of be required to make and keep the mandated (May 10, 2002), 67 FR 34968 (May 16, 2002). Regulation AC. records.
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and the reasons therefor. The broker- potentially is biased with respect to • Should the proposed definition of dealer must also disclose in all research securities or issuers that are the subject ‘‘research report’’ be limited to cover reports for the next 120 days that the of a research report. Further, in only equity securities? research analyst did not comply with evaluating a research report, it is • What disclosures, if any, should be the certification requirements specified reasonable for an investor to want to required during public appearances? We in Rule 502 (a)(1) of proposed know about an analyst’s compensation. also request comment on whether the Regulation AC and the reasons therefor. We believe that proposed Regulation AC proposed requirements relating to It should be noted that the 120 day is reasonably designed to prevent acts public appearances should also apply to disclosure period prescribed in and practices that are fraudulent, research analyst’s recommendations in paragraph (a)(2) of proposed Rule 502, deceptive, or manipulative. The the print media. which is longer than a calendar quarter, proposed regulation does not preclude • Broker-dealers often choose to runs from the time the analyst notifies an analyst from providing services to his publish research reports that cover the broker-dealer employer that he or or her firm’s investment banking multiple issuers, securities, or an she is unable to provide the written department within the requirements of industry segment, in a compendium certifications specified in paragraph governing SRO rules, and it does not report. Certain portions of the NASD (a)(1). The broker-dealer must also prohibit analysts generally from and NYSE rules permit different promptly provide copies of statements receiving compensation for covering treatment of these compendium reports. that the analyst is unable to provide the issuers or for preparing research reports. Should the regulation make allowances certifications in connection with public Rather, proposed Regulation AC focuses for compendium research reports appearances to its examining authority, on disclosure where the analyst is covering six or more securities? For designated pursuant to section 17(d) of compensated for making a specific example, should a broker-dealer be the Exchange Act and Rule 17d–2 recommendation or rating. The permitted to publish the required thereunder. Further, broker-dealers Commission also notes that the disclosures for such a compendium in a must keep and maintain these records proposed regulation is intended to place other than the research report? pursuant to Rule 17a–4(b)(4). address analysts’ beliefs about their • If a research analyst is unable to Proposed Regulation AC is intended expressed views and recommendations, provide the certifications relating to to complement other rules governing not the accuracy of the public appearances in Rule 502(a)(1) conflicts of interest disclosure by recommendations or opinions regarding and instead provides the certifications research analysts, including NYSE Rule securities discussed. Proposed in Rule 502(a)(2), the broker-dealer is 472 and NASD Rule 2711. We note that Regulation AC also does not impose required to disclose that fact in all SRO rules currently address an analyst new liability. Even without proposed research reports for 120 days after the who writes a research report that does Regulation AC, analysts may be found to analyst has provided his or her not reflect his or her personal views, have violated the anti-fraud provisions certification under Rule 502(a)(2). Is 120 even if the analyst states that the report of the federal securities laws if they days the appropriate amount of time the does not reflect his or her views. Thus, make baseless recommendations or broker-dealer should be required to we do not see a need to allow for a recommendations that they disbelieve.15 make such disclosure? Should the negative certification concerning an Regulation AC is not intended to create disclosure period be longer or shorter? analyst’s personal views. Should duties under section 10(b) of the • Are the recordkeeping requirements Regulation AC also provide an analyst a Exchange Act. As a result, no private of Regulation AC appropriate? negative certification option that the liability will arise from a broker, dealer, • What additional procedures would views expressed in the research report or associated person’s failure to make firms need to put in place in order to do not accurately reflect his or her the required disclosure, or make, keep, ensure compliance with the proposed personal views? Similarly, given that and maintain required records. regulation, beyond those already SRO rules currently prohibit an analyst III. General Request for Comment established or that will be established to from receiving compensation for a comply with the recently-approved SRO We encourage any interested person specific investment banking transaction, rules? to submit written comments on all is it necessary or desirable for • The application of proposed aspects of the proposed regulation. In Regulation AC to permit an analyst to Regulation AC broadly covers brokers or disclose the receipt of compensation for particular, we request comment on: • Would the proposed certification dealers and any person associated with a specific recommendation? a broker or dealer because we believe The scope of proposed Regulation AC and disclosure requirements, if adopted, that these entities are subject to the is broader than the scope of the current promote investor confidence in the greatest conflicts. We request comment SRO rules in that the proposed views expressed by research analysts on whether the proposed regulation regulation covers debt as well as equity and provide investors with useful should cover banks that are not securities. We believe that some of the information with which to evaluate associated persons and other same concerns regarding analyst potential biases? independent entities. Are there certain conflicts also pertain to debt securities. • Would the required disclosures and Thus, we propose to coverer debt certifications reduce public appearances classes of persons associated with a securities in the regulation. In addition, by analysts and the amount of useful broker-dealer that should not be subject we understand that the SROs are information available to investors? to the rule? Should the rule explicitly • considering expanding the coverage of Should the proposed definitions of exclude investment advisers? their rules regarding analyst research ‘‘research report,’’ ‘‘research analyst,’’ or reports to cover debt securities. ‘‘public appearance’’ be broader or a mutual fund portfolio manager, who is not 16 principally responsible for preparing research Proposed Regulation AC focuses on narrower than proposed? reports, even if the investment adviser is a core issues of analysts’ integrity: their registered person of a member. See Joint beliefs in their recommendations and 15 Regulation AC does not alter or effect any other Memorandum of the NASD and the New York Stock existing obligation under the federal securities laws Exchange. Discussion and Interpretation of Rules the influence of compensation on their for research analysts or broker-dealers. Governing Research Analysts and Research Reports recommendations. It is important for an 16 For example, we note the term research analyst (NASD Rule 2711 and NYSE Rules 351 and 472) at investor to know whether an analyst would not include an investment adviser, such as 3.
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• Would the required disclosures be B. Reporting and Cost Burden Estimates Commission believes that the total utilized by investors if they are not on The proposed regulation would annual burden in hours of complying the cover page, given the numerous provide that broker-dealers, and persons with the public appearance certification other disclosures that firms must make? associated with broker-dealers, must and disclosure requirements would be • approximately 346 hours per year [(10 Should Rule 501 of proposed include in research reports they publish × Regulation AC allow for a statement that certain certifications and disclosures minutes 2076 appearances) / 60 minutes]. about the analyst’s views expressed in the research analyst is ‘‘unable to In cases where the analyst is unable the research reports and any provide the written certifications to make the certifications in connection required,’’ similar to Rule 502? relationship between the analyst’s with public appearances as specified in • Should Rule 502 require research compensation and the specific Rule 502 (a)(1) of proposed Regulation analysts to provide their employers with recommendations or views expressed. AC, the firm is required to make, keep, a list identifying each public appearance The proposed regulation would also and maintain a record of a statement made during the calendar quarter? require broker-dealers to make, keep, from the research analyst that he or she and maintain records of research analyst is unable to make the specified We solicit comment on our approach certifications and disclosures in and the specific proposed certifications certifications, and the reasons therefor, connection with public appearances. and to provide copies of that statement and disclosures. The Commission The staff of the Commission believes encourages commenters to provide to its examining authority. The staff of that the average amount of time it would the Commission believes that there will information regarding the advantages take a broker-dealer to include the be few, if any, instances where a broker- and disadvantages of the proposed required certifications and disclosures dealer will provide copies of statements regulation. in each research report is one minute to their examining authority, as analysts IV. Paperwork Reduction Act per report. The Commission staff and their firms will have strong estimates that broker-dealers publish incentives to avoid having to make the The proposed regulation contains approximately 657,000 research reports type of disclosures required to be ‘‘collection of information’’ per year.19 Therefore, the Commission provided to their examining authority. requirements within the meaning of the estimates that the total annual burden in Therefore, the total annual burden, in Paperwork Reduction Act of 1995 hours for all broker-dealers to comply dollars, of complying with the public (‘‘PRA’’).17 We will submit the proposal with the research report certification appearance certification requirements to the Office of Management and Budget and disclosure requirements of the would be approximately $42,039 [2,076 (‘‘OMB’’) for review in accordance with proposed regulation is approximately appearances × $20.25 pay per 10 the PRA.18 The Commission is 10,950 hours per year [(1 minute × minutes]. proposing to create a new information 657,000 reports) / 60 minutes]. The The proposed regulation requires that collection entitled ‘‘Regulation AC— Commission staff expects that research the records of statements regarding Analyst Certification.’’ An agency may analysts will likely be the employees public appearances submitted by not conduct or sponsor, and a person is primarily charged with executing research analysts to their broker-dealers not required to respond to, an certifications and including them in be preserved in accordance with information collection unless it displays research reports. According to industry Exchange Act Rule 17a–4(b)(4). a currently valid OMB control number. sources, research analysts, on average, Exchange Act Rule 17a–4(b)(4) requires earn $189,250 per year, for an hourly that any communication relating to a A. Summary of Collection of pay rate of approximately $90. broker-dealer’s business, including Information Including 35% overhead, Commission inter-office communications, must be staff estimates that the hourly pay rate kept for at least three years. In light of Proposed Regulation AC, if adopted, for a research analyst would be the existing record preservation would require that any research report approximately $121.50. Therefore, the requirement for brokers and dealers published, circulated, or provided by a Commission estimates that the total under Exchange Act Rule 17a–4(b)(4),21 broker or dealer or person associated annual burden in dollars of complying the staff of the Commission believes that with a broker or dealer contain a with the research report certification any additional costs to preserve the statement attesting to the fact that the and disclosure requirements is records of the certifications required by views expressed in each research report approximately $1,330,425 per year the proposed regulation would be accurately reflect the analyst’s personal [10,950 hours × $121.50 per hour]. minimal. views and whether or not the research The staff of the Commission believes Proposed Regulation AC, if adopted, analyst received or will receive any that the average amount of time it would would require that brokers and dealers compensation in connection with the take a research analyst to prepare the establish and follow sufficient views or recommendations in the quarterly statements regarding public procedures to comply with the research report. The proposed appearances as required by the provisions of the proposed regulation regulation would also require broker- proposed regulation is ten minutes per and would require that the broker or dealers to, on a quarterly basis, make, analyst. The staff of the Commission dealer is able to: collect, process, and keep, and maintain records of research believes that, on average, approximately disclose the information required to be analyst statements regarding whether 519 public appearances by research included in research reports; ensure the the views expressed in public analysts occur per quarter,20 or about submission of information required to appearances accurately reflected the 2,076 per year. Therefore, the be submitted to the firm’s compliance analyst’s views, and whether any part of department; and periodically review the analyst’s compensation is related to 19 Based on data provided by First Call, the staff and evaluate these procedures. Brokers the specific recommendation or views of the Commission estimates that approximately or dealers should already have these expressed in the public appearance. 657,000 research reports were published in 2001. procedures in place to meet existing 20 519 is approximately 10% of the estimated 5,186 research analysts employed in the U.S., obligations under the SRO rules relating 17 44 U.S.C. 3501 et seq. which is based on information provided by Nelson 18 44 U.S.C. 3507(d) and 5 CFR 1320.11. Information. 21 OMB Control No. 3235–0279.
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to research analysts that recently were OMB receives it within 30 days of the securities laws when issuing approved by the Commission.22 publication. research reports unless the reports Therefore, the Commission estimates include the required certifications and V. Costs and Benefits of the Proposed that the proposed regulation would disclosures. The proposed requirement Rule result in a total annual time burden of that the research analyst principally approximately 11,296 hours [10,950 The Commission is considering the responsible for preparing the research hours to comply with research report costs and the benefits of proposed report personally certify that the views requirements + 346 hours to comply Regulation AC. The Commission expressed in the report accurately with public appearance requirements], encourages commenters to discuss any reflect his or her personal views creates and a total annual cost in dollars of costs or benefits in addition to those an incentive for analysts to examine, approximately $1,372,464 [$1,330,425 discussed below. In particular, the even more carefully, the basis and to comply with the research report Commission requests comment on any foundations for his or her requirements + $42,039 to comply with potential costs, as well as any potential recommendations in preparing research the public appearance requirements]. benefits, resulting from the proposals for reports. investors, issuers, broker-dealers, other Proposed Regulation AC may also C. Request for Comment securities industry professionals, SROs, result in an increase in the quality of The Commission solicits comments in or others. Commenters should provide research because of competitive reasons. order to: (i) Evaluate whether the analysis and data to support their views Firms that publish research reports that proposed collection of information is on the costs and benefits associated do not contain certain analyst necessary for the proper performance of with the proposed amendments. certifications will be in violation of the the functions of the agency, including A. Benefits proposed regulation, and firms whose whether the information shall have research analysts’ compensation is practical utility; (ii) evaluate the We believe that investor confidence in related to the specific recommendations accuracy of the Commission’s estimate the integrity of research has suffered or views provided in research reports of the burden of the proposed collection because some investors may believe that may lose some business to firms that are of information; (iii) determine whether research analyst objectivity has been less conflicted. The proposed regulation there are ways to enhance the quality, compromised due to, among other is intended to enhance investor utility, and clarity of the information to things, analysts’ personal compensation confidence in the integrity of the be collected; and (iv) evaluate whether and firms’ investment banking research available to them. We believe there are ways to minimize the burden relationships with issuers that are the that by requiring research analysts to of the collection of information on those subjects of research reports. Requiring certify as to the accuracy of the views who are to respond, including through that research analysts certify that the expressed in research reports, investor the use of automated collection views expressed in research reports confidence in the securities markets techniques or other forms of information reflect their personal views, and should be enhanced, thereby leading to technology. We also request comment requiring disclosure of information the benefit of more liquid and efficient on how many public appearance regarding whether analyst compensation markets. These benefits are difficult to certifications would likely be submitted is related to the specific quantify. to brokerage firms per quarter, and how recommendations made, would help many of those statements would be bolster investor confidence in the B. Costs required to be provided to the firm’s quality of research. This, in turn, should While the proposed regulation may examining authority. help bolster investor confidence in the lead to some additional costs for brokers Persons submitting comments on the securities markets. or dealers, we believe that any costs collection of information requirements Proposed Regulation AC would should not be significant. The proposed should direct them to the Office of require that broker-dealers include certification and disclosure Management and Budget, Attention: certifications in research reports requirements would require research Desk Officer for the Securities and regarding the accuracy of the views analysts to even more carefully consider Exchange Commission, Office of expressed in the research report. Firms the accuracy of the views expressed in Information and Regulatory Affairs, would be required to include in their research reports and public Washington, DC 20503, and should also research reports certifications that the appearances, to consider their send a copy of their comments to views expressed in the research report compensation arrangements, and then to Jonathan G. Katz, Secretary, Securities accurately reflect the analyst’s personal make the required certifications and and Exchange Commission, 450 Fifth views regarding the subject securities or disclosures. In light of current Street, NW., Washington, DC 20549– issuers and whether or not the analyst requirements under SRO rules, the 0609, with reference to File No. S7–30– received compensation in connection Commission estimates that, beyond the 02. Requests for materials submitted to with the reports. Many investors rely on paperwork costs described above, any OMB by the Commission with regard to the research reports and additional costs that would result from this collection of information should be recommendations provided by their the required certifications and in writing, refer to File No. S7–30–02, brokers. To the extent that the proposed disclosures would be minimal. and be submitted to the Securities and regulations require disclosures that Moreover, with respect to the Exchange Commission, Records provide more transparency than compensation certifications and Management, Office of Filings and provided by current regulation, these disclosures that would be required by Information Services. OMB is required disclosures should provide investors proposed Regulation AC, brokers and to make a decision concerning the with important information with which dealers are already required to make collections of information between 30 to determine the value of the research certain disclosures regarding research and 60 days after publication. available to them. analyst compensation under SRO Consequently, a comment to OMB is Proposed Regulation AC may result in rules.23 Additionally, Exchange Act best assured of having its full effect if an increase in the overall quality of the Rule 17a–3(a)(19) currently requires research available to the public because 22 Supra note 10. a broker-dealer would be in violation of 23 See NASD Rule 2711 and NYSE Rule 472.
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brokers or dealers to maintain a record minutes per small firm. Accordingly, market. The Commission has considered of all agreements pertaining to the the Commission certifies that proposed the proposed regulation in light of the relationship between each associated regulation should not have a significant standards cited in section 23(a)(2) and person and the broker-dealer, including impact on a substantial number of small believes preliminarily that it, if adopted, a summary of each associated person’s entities. would not impose any burden on compensation arrangement or plan.24 VII. Consideration of Impact on the competition not necessary or Brokers or dealers should also already Economy appropriate in furtherance of the have in place procedures necessary to purposes of the Exchange Act. comply with many components of the For purposes of the Small Business We request comment on whether the proposed regulation due to existing Regulatory Enforcement Fairness Act of proposed amendments, if adopted, obligations under SRO rules, although 1996, or ‘‘SBREFA,’’25 we must advise would impose a burden on competition these procedures might require some OMB as to whether the proposed not necessary or appropriate in minor modifications to conform with regulation constitutes a ‘‘major’’ rule. furtherance of the purposes of the proposed Regulation AC. As noted Under SBREFA, a rule is considered Exchange Act. We also request comment previously, the Commission estimates ‘‘major’’ where, if adopted, it results or on whether the proposed amendments, that the annual paperwork costs in is likely to result in: • if adopted, would promote efficiency, dollars of complying with the proposed An annual effect on the economy of competition, and capital formation. regulation would be approximately $100 million or more (either in the form Specifically, research analysts are $1,372,464. of an increase or a decrease); employed by different kinds of entities. • A major increase in costs or prices Therefore, we seek comment on whether C. Request for Comments for consumers or individual industries; the regulation should be more As an aid in evaluating costs or • Significant adverse effects on expansive. For example, should the associated with proposed Regulation proposed regulation cover banks that are AC, the Commission requests the competition, investment or innovation. Where a rule is ‘‘major,’’ its not associated persons? Commenters are public’s views and any supporting requested to provide empirical data and information. We request comment on all effectiveness will generally be delayed for 60 days pending Congressional other factual support for their views if aspects of this cost-benefit analysis, possible. including identification of any review. We request comment on the additional costs or benefits of, or potential impact of the proposed IX. Statutory Authority suggested alternatives to, the proposed regulation on the economy on an annual basis. Commenters are requested to Regulation AC is being proposed regulation. Commenters are requested to pursuant to sections 3, 15, 17, and 23 of provide empirical data and other factual provide empirical data and other factual support for their views to the extent the Exchange Act and pursuant to support for their views to the extent sections 17 and 19 of the Securities Act. possible. possible. Text of the Proposed Regulation VI. Regulatory Flexibility Act VIII. Effects on Competition, Efficiency Certification and Capital Formation List of Subjects in 17 CFR Part 242 26 The Commission certifies, pursuant to Section 3(f) of the Exchange Act Securities. 5 U.S.C. 605(b), that the proposed requires us, when engaging in rulemaking where we are required to In accordance with the foregoing, regulation would not, if adopted, have Title 17, Chapter II, of the Code of a significant economic impact on a consider or determine whether an action is necessary or appropriate in the public Federal Regulations is proposed to be substantial number of small entities. amended as follows: The purpose of the proposed regulation interest, to consider whether the action is to increase analyst independence; will promote efficiency, competition, PART 242—REGULATIONS M, ATS and and capital formation. In addition, AC further manage conflicts of interest; 27 require increased disclosures to section 23(a)(2) of the Exchange Act investors; and promote investor requires the Commission to consider the 1. The authority citation for part 242 confidence in the integrity of research. impact any rule would have on is revised to read as follows: By improving the quality of disclosure, competition. Further, the law requires Authority: 15 U.S.C. 77g, 77q(a), 77s(a), the proposed regulation should enhance that the Commission not adopt any rule 78b, 78c, 78g(c)(2), 78i(a), 78j, 78k–1(c), 78l, investor confidence in the fairness and that would impose a burden on 78m, 78mm, 78n, 78o(b), 78o(c), 78o(g), integrity of the securities markets. The competition not necessary or 78q(a), 78q(b), 78q(h), 78w(a), 78dd–1, 80a– requirements of the proposed regulation appropriate in furtherance of the 23, 80a–29, and 80a–37. are closely related to information, purposes of the Exchange Act. 2. The part heading for part 242 is The proposed regulation is intended procedures, and disclosures required by revised as set forth above. to enhance investor confidence in the existing SRO rules, which apply to both 3. Part 242 is amended by adding integrity of the research available to large and small broker-dealers that Regulation AC, §§ 242.500 through them. We believe that requiring broker- publish or circulate research reports. 242.502 to read as follows: The Division of Market Regulation dealers to include analyst certifications Regulation AC—Analyst Certification estimates that the total burden in hours in research reports, as well as the other required to comply with proposed disclosures required by proposed Sec. Regulation AC would, at most, be Regulation AC, should enhance investor 242.500 Definitions. approximately two hours and two confidence in the securities markets, 242.501 Research reports. thereby leading to a more efficient 242.502 Public appearances. 24 These subparagraphs of the rule may be Regulation AC—Analyst Certification redesignated as Rule 17a–3(a)(12)(ii) and Rule 17a– 25 Public Law 104–121, Title II, 110 Stat. 857 3(a)(12)(iii), should the Commission adopt (1996) (codified in various sections of 5 U.S.C., 15 § 242.500 Definitions. amendments proposed in October 2001. See U.S.C., and as a note to 5 U.S.C. Section 601). Securities Exchange Act Release No. 44992 (October 26 15 U.S.C. Section 78c(f). For purposes of Regulation AC 26, 2001). 27 15 U.S.C. Section 78w(a)(2). (§§242.500 through 242.502):
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Public appearance means any analyst containing the following announce a general policy regarding the participation in a seminar, forum statements: standard of review that must be met to (including an interactive electronic (1) A statement: justify proposed changes to market- forum), radio or television interview, or (i) Attesting that the views expressed based rate contracts for wholesale sales other public speaking activity in which by the research analyst in each public of electric energy by public utilities. The a research analyst makes a specific appearance accurately reflected the intent of the proposed policy statement recommendation or offers an opinion research analyst’s personal views at that is to promote the sanctity of contracts, concerning a security or an issuer. time about any and all of the subject recognize the importance of providing Research analyst means any natural securities or issuers; and certainty and stability in competitive person who is principally responsible (ii) Attesting that no part of the electric energy markets, and provide for the analysis of any security or issuer research analyst’s compensation was, is, adequate protection of electric energy included in a research report. or will be, directly or indirectly, related customers. The Commission is inviting Research report means a written to the specific recommendations or comments on the proposed policy communication that includes an views expressed by the research analyst statement. in any public appearance; or analysis of the securities of an issuer or DATES: Comments on the proposed issuers, provides information reasonably (2) A statement attesting that the research analyst is unable to provide the policy statement are due September 23, sufficient upon which to base an 2002. investment decision and includes a written certifications specified in ADDRESSES: File written comments with recommendation. paragraph (a)(1) of this section and the reasons therefor. The broker or dealer the Office of Secretary, Federal Energy § 242.501 Research reports. must also disclose in all research reports Regulatory Commission, 888 First A broker or dealer, or any person prepared by the research analyst for the Street, NE., Washington, DC 20426. associated with a broker or dealer, that next 120 days that the research analyst FOR FURTHER INFORMATION CONTACT: publishes, circulates, or provides, did not provide the certifications Shaheda Sultan,Office of the General directly or indirectly, a research report specified in paragraph (a)(1) of this Counsel, Federal Energy Regulatory prepared by a research analyst shall section and the reasons therefor. Commission, 888 First Street, NE., include in that research report a clear (b) A broker or dealer shall promptly Washington, DC 20426, Telephone: and prominent certification by the provide copies of all statements (202) 219–2685. research analyst containing the prepared pursuant to paragraph (a)(2) of Jonathan First, Office of the General following statements: this section to its examining authority, Counsel, Federal Energy Regulatory (a) A statement attesting that the designated pursuant to Section 17(d) of Commission, 888 First Street, NE., views expressed in the research report the Securities Exchange Act of 1934 (15 Washington, DC 20426, Telephone: accurately reflect the research analyst’s USC 78q(d)) and § 240.17d–2 of this (202) 208–2142. personal views about any and all of the chapter. Before Commissioners: Pat Wood III, subject securities or issuers; and (c) A broker or dealer shall preserve Chairman; William L. Massey, Linda (b)(1) A statement attesting that no the records specified in paragraph (a) of Breathitt, and Nora Mead Brownell. this section in accordance with part of the research analyst’s Proposed Policy Statement compensation was, is, or will be, § 240.17a–4(b)(4) of this chapter. directly or indirectly, related to the By the Commission. I. Introduction specific recommendations or views Dated: August 2, 2002. 1. The Federal Energy Regulatory expressed by the research analyst in the Margaret H. McFarland, Commission is proposing to adopt a research report; or Deputy Secretary. policy statement to announce a general (2) A statement: [FR Doc. 02–20031 Filed 8–7–02; 8:45 am] policy regarding the standard of review (i) Attesting that part or all of the BILLING CODE 8010–01–P that must be met to justify proposed research analyst’s compensation was, is, changes to market-based rate contracts or will be, directly or indirectly, related for wholesale sales of electric energy by to the specific recommendations or DEPARTMENT OF ENERGY public utilities. The specific prices, views expressed by the research analyst terms and conditions of service agreed in the research report; Federal Energy Regulatory to by willing sellers and buyers in such (ii) Identifying the source and amount Commission contracts are not required to be filed of such compensation and the purpose with the Commission when these therefor; and 18 CFR Part 2 contracts are entered into pursuant to (iii) Further disclosing that the generic market-based rate tariffs already [Docket No. PL02–7–000] compensation could influence the approved by, and on file with, the 1 recommendations or views expressed in Standard of Review for Proposed Commission. Because the generic the research report. Changes to Market-Based Rate tariffs are authorized only after the Commission has made findings that the § 242.502 Public appearances. Contracts for Wholesale Sales of Electric Energy by Public Utilities sellers under such tariffs lack or have (a) If a broker or dealer, or any person mitigated market power, the prices, associated with a broker or dealer, August 1, 2002. terms and conditions of contracts publishes, circulates, or provides, AGENCY: Federal Energy Regulatory pursuant to market-based tariffs are directly or indirectly, a research report Commission, DOE. presumed to fall within a zone of prepared by a research analyst, the ACTION: Notice of proposed policy broker or dealer must make a record statement. 1 See Order No. 2001, Revised Public Utility within thirty days after each calendar Filing Requirements, III FERC Stats. & Regs., SUMMARY: Regulations Preambles ¶ 31,127 at 30,135–140 quarter in which the research analyst The Federal Energy (April 25, 2002), reh’g pending (although contracts has made a public appearance that Regulatory Commission (Commission) is are not filed, detailed information about each includes a certification by the research proposing to adopt a policy statement to transaction is reported to the Commission).
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reasonableness.2 In an electric utility is proposing precise language that sometimes the parties to the contract industry increasingly dominated by parties would be required to include in may attempt to restrict not only such market-based rate contracts, and in their electric power sales contracts if themselves but also the Commission light of recent uncertainties in the they intend that the Commission apply from changing the contract rate under industry brought about by the market the ‘‘public interest’’ standard of review the ‘‘just and reasonable’’ standard. dysfunctions in California and the to their contract. If the parties include Some courts have held that where the collapse of Enron Corp., the in their contract the proposed language utility and the customer have contracted Commission believes it is critical to laid out below, they would be able to for a particular rate and not reserved promote the stability of power supply bind themselves and, if they choose, their rights to propose contractual contracts to meet future energy needs. they would also be able to bind the changes, the contract has been filed One step toward this end is to clarify Commission (acting sua sponte or on with the Commission, and the the standards under which such behalf of a third party) to a public Commission has permitted the rate to contracts may be modified. Accordingly, interest standard of review. Under the become effective, the utility cannot over the purpose of this proposed policy proposed policy, if parties to a market- the objections of the customer file a new statement is to recognize the sanctity of based power sales contract do not rate (under Section 205 of the FPA), and contracts and allow the parties to a include this exact language in their the customer and the Commission market-based power sales contract to contract, however, we would construe cannot (under Section 206 of the FPA) have greater certainty against the omission as demonstrating the propose changing the existing contract contractual changes, by clarifying our intent of the parties to allow a just and rate under the ‘‘just and reasonable’’ application of the ‘‘Mobile-Sierra’’ reasonable standard of review. In other standard of review.11 Certain courts doctrine.3 words, the omission of, or any deviation have instead required the Commission 2. Recently, the Commission received from, the language quoted below would to use the ‘‘public interest’’ standard to complaints against numerous sellers, result in the use of a just and reasonable effect a change to the contract rate. alleging that certain market-based rate standard of review. Although not clearly defined,12 the contracts for electric energy contain 4. We note that the Commission is ‘‘public interest’’ standard of review has excessive rates and should be proposing to depart from past precedent been held to be higher or stricter than 4 reformed. One of the contested issues by agreeing to be bound to a public the ‘‘just and reasonable’’ standard of in these cases was what standard of interest standard of review for market- review.13 review to apply in determining whether based power sales contracts where both III. Discussion changes are permitted to the contract, parties to the contract agree to bind i.e., whether to apply the ‘‘just and themselves, and also seek to bind the 6. A great deal of time and expense is reasonable’’ standard of review or the Commission, to this standard.6 We incurred and much uncertainty is ‘‘public interest’’ standard of review in propose this in order to promote the engendered when the parties involved determining whether to permit one of contract certainty necessary to support in contract disputes and the the parties to seek changes to the competitive wholesale power markets. Commission attempt to resolve the contract over the objections of the other Further, we emphasize that, even under issues of whether the parties intended to party. In earlier cases, another contested a public interest standard of review for invoke a public interest standard of issue was whether the Commission is these types of contracts, we believe we review, and whether this standard binds bound by the same standard of review would have adequate authority to only one party, both parties, third that the parties agreed to in the contract, protect non-parties to the contract. parties, and/or the Commission. In some when the Commission acts on the cases there is the issue of whether the II. Background complaint of a third party or on its own parties intended to include other motion under Section 206 of the Federal 5. The FPA requires that rates must be language in the contract that invokes the 5 Power Act (FPA). just and reasonable and not unduly just and reasonable standard of review 3. The Commission believes that the discriminatory or preferential.7 The for particular portions of the contract proposed policy statement would serve selling public utility can propose the rate.14 More time and resources are to limit, as much as possible, such rates and the Commission can approve disputes in the future. The Commission them if it finds they meet the just and 11 See Boston Edison Co. v. FERC, 233 F.3d 60 reasonable standard.8 The Commission (1st Cir. 2000) (Boston Edison), citing Mobile-Sierra. 2 See, e.g., State of California v. British Columbia can also on its own motion or on the 12 Northeast Utilities, 55 F.3d at 690, describing Power Exchange Corporation, et al., 99 FERC the Mobile-Sierra standard of review: ‘‘[N]owhere in ¶ 61,247 (2002), reh’g pending (prior review complaint of a third party investigate the Supreme Court opinion is the term ‘public consists of ‘‘analysis to assure that the seller lacks existing rates, and alter them interest’ defined. Indeed, the Court seems to assume or has mitigated market power so that its prices will prospectively, if it finds that such rates that the Commission decides what circumstances fall within a zone of reasonableness’’). are no longer just and reasonable.9 The give rise to the public interest.’’ 3 United Gas Pipe Line Co. v. Mobile Gas Serv. 13 Papago Tribal Utility Authority v. FERC, 723 Corp., 350 U.S. 332 (1956); FPC v. Sierra Power Co., FPA also provides that contracts F.2d 950, 954 (D.C. Cir. 1983). 350 U.S. 348 (1956) (Mobile-Sierra). Under the between individual parties can be used 14 See, e.g., Texaco; Union Pacific Fuels, Inc. v. Mobile-Sierra doctrine, private contracts that set to set rates.10 In such contracts, selling FERC, 129 F.3d 157 (D.C. Cir. 1997) (Union Pacific); firm rates or establish a methodology for setting the utilities may agree to voluntarily restrict Northeast Utilities. Section 35.1(d) of the rates for service, and deny either party the right to some or all of their freedom to change Commission’s regulations sought to reduce this unilaterally change those rates, can be modified or uncertainty somewhat in the electric area, by abrogated by the Commission only if required by the contract rates, customers may agree specifying contractual language to be used by the public interest. Texaco Inc. v. FERC, 148 F.3d to restrict their right to request the parties in certain circumstances, 18 CFR 35.1(d) 1091, 1095 (D.C. Cir. 1998) (Texaco). Commission to change the rate, and (2002). However, this regulation applies only to 4 See, e.g., Pub. Utilities Comm’n of the State of contracts for the transmission or sale of firm power California, et al., v. Sellers of Long-Term Contracts for resale to an all-requirements customer, and 6 Northeast Utilities Service Co. v. FERC, 55 F.3d to the California Dep’t of Water Resources, et al., addresses the standard of review only when a seller 686, 692 (1st Cir. 1995) (Northeast Utilities). 99 FERC ¶61,087 (2002), reh’g pending; Nevada proposes contractual changes. If a contract for 7 Power Co. and Sierra Pacific Power Co. v. Duke 16 U.S.C. 824d. services covered by this regulation contains the Energy Trading and Mktg. L.P., et al., 99 FERC 8 16 U.S.C. 824d. language specified in section 35.1(d)(3), we will ¶61,047 (2002), reh’g pending. 9 16 U.S.C. 824e. continue to construe this language as requiring a 5 16 U.S.C. 824e. 10 See, e.g., 16 U.S.C. 824d(d) and 824e(a). Continued
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expended and the uncertainty is before September 23, 2002. The line at (202) 208–2222 or the Public prolonged when these cases are Commission strongly encourages Reference Room at (202) 208–1371 Press appealed to the courts, but as electronic filings. Those filing 0, TTY (202) 208–1695. E-mail the acknowledged by at least one court: electronically do not need to make a Public Reference Room at ‘‘[t]he truth is that the cases, even paper filing. For paper filings, the [email protected]. within the D.C. Circuit itself, do not original and 14 copies of such List of Subjects in 18 CFR Part 2 form a completely consistent pattern. comments should be submitted to the Compare, e.g., Texaco, 148 F.3d at 1096 Office of the Secretary, Federal Energy Administrative practice and with Union Pac. Fuels, Inc. v. FERC, 327 Regulatory Commission, 888 First procedure; Electric power; Natural gas; U.S. App. D.C. 74, 129 F.3d 157, 161– Street, NE., Washington, DC 20426 and Pipelines; Reporting and record keeping 162 (D.C. Circuit 1997).’’ 15 The Boston should refer to Docket No. PL–0–7–000. requirements. Edison court also stated that these issues 10. Comments filed via the Internet By direction of the Commission. would remain in a state of confusion must be prepared in WordPerfect, MS Commissioners Massey, Brownell, and until the Commission ‘‘squarely Word, Portable Document Format, or Breathitt concurred with separate statements confronted the underlying issues,’’ and ASCII format. To file the document, attached. if the Commission ‘‘wanted to eliminate access the Commission’s website at Magalie R. Salas, much of the existing uncertainly http://www.ferc.gov and click on ‘‘e- Secretary. regarding the parties’’ intent, it might Filing,’’ and then follow the instructions The Commission proposes to amend prescribe prospectively the terms that on each screen. First time users will part 2, Chapter I, Title 18 of the Code parties would have to use to invoke have to establish a user name and of Federal Regulations as follows: Mobile-Sierra protection.’’ 16 password. The Commission will send an 7. The Commission is of the opinion automatic acknowledgment to the PART 2—GENERAL POLICY AND that under the circumstances existing in sender’s e-mail address upon receipt of INTERPRETATIONS today’s electric power industry, it is comments. 1. The authority citation for part 2 necessary to eliminate as much 11. User assistance for electronic continues to read as follows: uncertainty as possible and to filing is available at 202–208–0258 or by prospectively prescribe the terms that e-mail to [email protected]. Comments Authority: 5 U.S.C. 601; 15 U.S.C. 717– parties must use to invoke a public should not be submitted to the e-mail 717w, 3301–3432; 16 U.S.C. 792–825y, 2601– interest standard of review to changes in address. All comments will be placed in 2645; 42 U.S.C. 4321–4361, 7101–7352. their market-based power sales the Commission’s public files and will 2. In part 2, § 2.27 is added to read as contracts. Accordingly, the Commission be available for inspection in the follows: is hereby proposing to adopt a general Commission’s Public Reference Room at 888 First Street, NE., Washington DC § 2.27 Commission policy on standard of policy to require parties to market-based review for proposed changes to market- power sales contracts to include specific 20426, during regular business hours. Additionally, all comments may be based power sales contracts. language in their contract if they intend (a) The Commission, by this policy to invoke the public interest standard of viewed, printed, or downloaded remotely via the Internet through statement, seeks to clarify the standard review. (The proposed language is set of review that will apply when forth at the end of this document.) FERC’s Homespage using the RIMS link. User assistance for RIMS is available at reviewing proposed changes to market- Under the proposal, the Commission based power sales contracts executed would apply the ‘‘public interest’’ 202–208–2222, or by e-mail to [email protected]. after [date that is 30 days after standard of review only if this specific publication of the Final Rule in the language is included in the contract. V. Document Availability Federal Register]. The parties could choose specific 12. In addition to publishing the full (b)(1) Market-based power sales language that binds only the parties to text of this document in the Federal contracts must contain the following the public interest standard or language Register, the Commission also provides provision when it is the intent of the that also binds the Commission when it all interested persons an opportunity to contracting parties to bind only acts on behalf of a non-party or on its view and/or print the contents of this themselves to a ‘‘public interest’’ own motion. Under the proposed document via the Internet through standard of review for that contract: policy, it is contemplated that if neither FERC’s Home Page (http:// Absent the agreement of all parties to the version of the specific language is www.ferc.gov/) and in FERC’s Public included in the contract, the proposed change, the standard of review for Reference Room during normal business changes to [sections l of] this contract Commission would apply the ‘‘just and hours (8:30 a.m. to 5:00 p.m. Eastern proposed by a party to the contract shall be reasonable’’ standard of review to the time) at 888 First Street, NE., Room 2A, the ‘‘public interest’’ standard of review set contract regardless of whether it was to Washington, DC 20426. forth in United Gas Pipe Line Co. v. Mobile act on behalf of a party, a non-party, or 13. From FERC’s Home Page on the Gas Service Corp., 350 U.S. 332 (1956) and on its own motion. Internet, this information is available in Federal Power Commission v. Sierra Pacific Power Co., 350 U.S. 348 (1956) (the ‘‘Mobile- IV. Comment Procedure the Federal Energy Regulatory Records Sierra’’ doctrine). Information System (FERRIS). The full 8. The Commission invites interested text of this document is available on (2) Market-based power sales persons to submit comments on this FERRIS in PDF and WordPerfect format contracts must contain the following Notice of Proposed Policy Statement. provision when it is the intent of the 9. Comments may be filed on paper or for viewing, printing, and/or downloading. To access this document contracting parties to bind themselves electronically via the Internet and must and the Commission (acting on behalf of be received by the Commission on or in FERRIS, type the docket number excluding the last three digits of this a non-party or on its own motion) to a ‘‘public interest’’ standard of review for public interest standard of review only when a document in the docket number field. seller proposes contractual changes. 14. User assistance is available for that contract: 15 Boston Edison, 233 F.3d at 67. FERRIS and the FERC website during Absent the agreement of all parties to the 16 Id. at 68. normal business hours from our Help proposed change, the standard of review for
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changes to [sections l of] this contract 1. We are voting in favor of this is much less clear. However, at least two proposed by a party, a non-party or the proposal for two reasons. First, we courts have applied the public interest Federal Energy Regulatory Commission support providing the market with standard in § 206 proceedings acting sua sponte shall be the ‘‘public greater certainty concerning the interest’’ standard of review set forth in notwithstanding the absence of United Gas Pipe Line Co. v. Mobile Gas Commission’s review of market-based contractual language specifying that Service Corp., 350 U.S. 332 (1956) and rate contracts. Second, we support standard.2 Federal Power Commission v. Sierra Pacific changing the Commission’s existing 5. Therefore, we urge interested Power Co., 350 U.S. 348 (1956) (the ‘‘Mobile- policy of not applying the Mobile-Sierra parties to comment on whether, as both Sierra’’ doctrine). public interest standard when a legal and a policy matter, the (c) Any market-based power sales modifying market-based rate contracts ‘‘default’’ in the policy statement should contract that does not contain either of on its own motion. However, we be reversed. wonder if the proposal has gotten things the provisions in paragraph (b) of this Nora Mead Brownell. section will be construed by the backward on when the public interest Linda Key Breathitt. Commission as allowing a ‘‘just and standard is triggered. reasonable’’ standard of review for any 2. Under the proposed policy, the [FR Doc. 02–19915 Filed 8–7–02; 8:45 am] proposed changes to the contract. Commission will not apply the Mobile- BILLING CODE 6717–01–P Sierra public interest standard when Note: The following concurring reviewing proposed changes to a commissioners’ statements will not appear in the Code of Federal Regulations. market-based rate contract (regardless of DEPARTMENT OF THE TREASURY whether the changes are sought by the MASSEY, Commissioner, concurring: seller, the buyer, a third party, or the Customs Service I support this order’s objective of Commission itself) unless explicit clarifying standards under which language dictating that standard is 19 CFR parts 4 and 113 contracts may be modified and allowing included in the contract. We would parties to market-based power sales have preferred to propose a policy of RIN 1515–AD11 contracts greater certainty in the applying the public interest standard application of the Mobile-Sierra Presentation of Vessel Cargo unless there is explicit language in the Declaration to Customs Before Cargo doctrine. Nevertheless, I write contract that invites the Commission to separately because I believe the is Laden Aboard Vessel at Foreign Port apply a lower standard. for Transport to the United States Proposed Policy Statement would have 3. Competitive markets rely on been stronger if it had recognized investors to provide the capital needed AGENCY: U.S. Customs Service, explicitly the potential use of market to build generation. Investors will not Department of the Treasury. power to extract an agreement to a participate in a market in which ACTION: Proposed rule. Mobile-Sierra clause in a contract. As disgruntled buyers are allowed to break recognized by the DC Circuit Court of their contracts, at least not without SUMMARY: This document proposes to Appeals in Atlantic City Electric charging a significant risk premium—a 1 amend the Customs Regulations to Company: cost that will ultimately be borne by require the advance and accurate As we have held, the purpose of the consumers. Therefore, as a policy presentation of manifest information Mobile-Sierra doctrine is to preserve the matter, we think it might be preferable prior to lading at the foreign port and to benefits of the parties’ bargain as reflected in to hold everyone to the same high encourage the electronic presentation of the contract, assuming there was no reason standard when seeking changes to such information in advance. The to question what transpired at the contract market-based rate contracts, absent formation stage. (Citing Town of Norwood v. document also proposes to allow a non- FERC 2) contract language indicating that the vessel operating common carrier parties to the contract have agreed to a (NVOCC) having an International The Mobile-Sierra doctrine assumes that lower standard. Carrier Bond to electronically present contracts are entered into voluntarily. 4. Moreover, we see nothing in the this cargo manifest information to Thus, a seller may not dictate, through Mobile-Sierra case law that bars the Customs. This information is required the exercise of market power, the Commission from adopting such a in advance and is urgently needed in standard of review specified in a policy. Faced with balancing the order to enable Customs to evaluate the contract. I believe the Proposed Policy sanctity of contracts against the risk of smuggling before goods are Statement should have explicitly Commission’s statutory duty to review loaded on vessels for importation into addressed this concern. If a party to a the justness and reasonableness of rates, the United States, including the risk of contract would not have agreed to the the Supreme Court in Mobile, Sierra, smuggling of weapons of mass insertion of the Mobile-Sierra clause and subsequent cases has ruled that, destruction through the use of absent the exercise of market power, absent contractual language to the oceangoing cargo containers, while, at then the Commission should allow that contrary, the Commission may not the same time, enabling Customs to party to advocate the use of the just and approve a seller’s unilateral contract facilitate the prompt release of reasonable standard. modification under § 205 of the Federal With these thoughts in mind, I concur Power Act unless the modification is 2 See Texaco Inc. v. FERC, 148 F.3d 1091, 1096 1 with today’s order. necessary for the public interest. The (D.C. Cir. 1998) (stating that prior decisions ‘‘did William L. Massey, case law on when the public interest not suggest that the parties’ failure to explicitly standard applies in a § 206 proceeding, foreclose the Commission’s authority to replace Commissioner. be it brought by the buyer, a third party, rates [under § 206] would leave it intact. The law BROWNELL, Commissioner, and is quite clear: absent contractual language or by the Commission acting sua sponte, BREATHITT, Commissioner, susceptible to the construction that the rate may be concurring: altered while the contract subsists, the Mobile- 1 See United Gas Pipe Line Co. v. Mobile Gas Sierra doctrine applies.’’); Boston Edison Co. v. Serv. Corp., 350 U.S. 332 (1956); FPC v. Sierra FERC, 233 F.3d 60, 67 (1st Cir. 2000) (‘‘[T]he 1 Atlantic City Electric Company v. FERC, Docket Pacific Power, 350 U.S. 348 (1956); and United Gas specification of a rate or formula by itself implicates No. 97–1097 (issued July 12, 2002), mimeo at 20. Pipeline Co. v. Memphis Light, Gas and Water Div., Mobile-Sierra (unless the parties negate the 2 587 F.2d 1306, 1312 (D.C. Cir. 1978). 358 U.S. 103 (1958). implication).’’).
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legitimate cargo following its arrival in manifest, must list all the inward before they are shipped to the United the United States. Failure to provide the foreign cargo on board the vessel States. This will not only deter terrorists required information in the time period regardless of the intended U.S. port of from attempting to use the global prescribed may result in the assessment discharge of the cargo (§ 4.7a(c)(1)). shipping system for their destructive of civil monetary penalties or claims for Furthermore, 19 U.S.C. 1448 provides, purposes, it will also substantially liquidated damages. in pertinent part, that no merchandise reduce the risk of weapons of mass DATES: Comments must be received on may be unladen from a vessel which is destruction from ever reaching our or before September 9, 2002. required to make entry under section shores. 1434 until Customs has issued a permit CSI, which provides improved ADDRESSES: Written comments are to be addressed to the U.S. Customs Service, for the unlading. In addition, under security without slowing the flow of Office of Regulations & Rulings, section 1448, Customs possesses a legitimate trade, is an integral part of the Attention: Regulations Branch, 1300 reasonable measure of regulatory President’s homeland security strategy. discretion as to whether, and under The initiative also has the full support Pennsylvania Avenue NW., Washington, what circumstances and conditions, to of the G–8 and the World Customs DC 20229. Submitted comments may be issue a permit to unlade incoming cargo Organization. inspected at U.S. Customs Service, 799 from a vessel arriving in the United The Customs Service successfully 9th Street, NW., Washington, DC, during States. Section 4.30, Customs piloted a version of CSI in Canada and regular business hours. Arrangements to Regulations (19 CFR 4.30), lists the already has agreements with the inspect submitted comments should be requirements and conditions under governments of the Netherlands, made in advance by calling Mr. Joseph which Customs may issue a permit to Belgium, and France to implement CSI Clark at (202) 572–8768. unlade foreign merchandise from a at the ports of Rotterdam, Antwerp, and FOR FURTHER INFORMATION CONTACT: For vessel arriving in the United States. Le Havre. U.S. Customs Service legal matters: Larry L. Burton, Office of Finally, 19 U.S.C. 1436(a)(1) and (a)(4) inspectors will be stationed at those Regulations and Rulings, (202–572– provide that it is unlawful to fail to ports shortly. Agreements with other 8724). comply with sections 1431, 1433 or governments are imminent, and the For operational matters: Kimberly 1434 or any regulation prescribed under Customs Service anticipates continued, Nott, Office of Field Operations, (202– any of those statutory authorities. rapid growth of CSI over the next 927–0042). Further, 19 U.S.C. 1436(a)(2) states that several weeks and months. SUPPLEMENTARY INFORMATION: it is unlawful to present or transmit, An essential element of CSI is advance transmission of vessel cargo Background electronically or otherwise, any forged, altered or false document, paper, data or manifest information to Customs. The Customs laws impose certain manifest to the Customs Service under Analysis of the manifest information requirements upon vessels that will 19 U.S.C. 1431, 1433(d) or 1434. Under prior to lading will enable overseas arrive in the United States to discharge section 1436(b), the master of a vessel Customs personnel to identify high-risk their cargo. In particular, vessels who commits any such violation is containers effectively and efficiently, destined for the United States must liable for a civil penalty of $5,000 for while ensuring prompt processing of comply with 19 U.S.C. 1431, which the first violation and $10,000 for each lower risk containers. Because of CSI’s requires that every vessel bound for the subsequent violation and any rapid growth and critical role in United States and required to make conveyance used in connection with homeland security, it is necessary that entry under 19 U.S.C. 1434 have a any such violation is subject to seizure Customs begin receiving the advance manifest that meets the requirements and forfeiture. manifest information required for CSI that are prescribed by regulation. To this implementation as soon as possible. end, under 19 U.S.C. 1431(d), Customs Proposed Rulemaking; Advance may by regulation specify the form for, Presentation of Vessel Cargo Manifest to Non-Vessel Operating Common Carriers and the information and data that must Customs; Required Information (NVOCCs) be contained in, the vessel manifest, as Customs proposes in this document to In the event that a non-vessel well as the manner of production for, amend § 4.7 to provide that, pursuant to operating common carrier (NVOCC) and the delivery or electronic 19 U.S.C. 1431(d), for any vessel subject delivers cargo to a vessel carrier for transmittal of, the vessel manifest. to entry under 19 U.S.C. 1434 upon its lading aboard the vessel at the foreign Currently, § 4.7, Customs Regulations arrival in the United States, Customs port, the NVOCC, if licensed by the (19 CFR 4.7), requires: that the master of must receive the vessel’s cargo manifest Federal Maritime Commission and in every vessel arriving in the United (declaration) from the carrier 24 hours possession of an International Carrier States and required to make entry have before the related cargo is laden aboard Bond executed pursuant to part 113 of on board the vessel a manifest in the vessel at the foreign port. the Customs Regulations (19 CFR part accordance with 19 U.S.C. 1431 and 113), containing the provisions of § 4.7; and that an original and one copy Necessity for Advance Presentation of § 113.64 (19 CFR 113.64), may of the manifest must be ready for Vessel Cargo Manifest to Customs electronically transmit the production upon demand and must be The United States Customs Service corresponding required cargo manifest delivered to the first Customs officer recently launched the Container information directly to Customs through who demands the manifest. Sections Security Initiative (‘‘CSI’’), a program the Automated Manifest System (AMS) 4.7(a) and 4.7a, Customs Regulations (19 that will protect the United States and 24 or more hours before the related CFR 4.7a), set forth the documentary a significant part of the global trading cargo is laden aboard the vessel at the and informational requirements that system—containerized shipping—from foreign port; in the alternative, the constitute the vessel manifest. terrorists and the implements of NVOCC would need to fully disclose Pursuant to § 4.7(a), the cargo terrorism, including weapons of mass and present the required manifest declaration (Customs Form 1302 or its destruction. With CSI, the United States information for the related cargo to the electronic equivalent) is one of the is entering into partnerships with other vessel carrier which would be required documents that comprises a vessel governments to target and inspect high- to present this information to Customs. manifest. The cargo declaration, or cargo risk sea containers in foreign ports, For purposes of this rulemaking, a non-
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vessel operating common carrier (9) The consignee’s name and address, Customs cannot determine whether or (NVOCC) means a common carrier that or the owner’s or owners’ when to permit the unlading of cargo does not operate the vessels by which representative’s name and address, or an until it has received timely, complete, the ocean transportation is provided, identification number, from all bills of and accurate declaration information and is a shipper in its relationship with lading; and has reviewed the cargo manifest to an ocean common carrier. (10) Notice that actual boarded gauge the potential risk associated with This document proposes to amend the quantities are not equal to quantities as the importation of that cargo. conditions of the International Carrier indicated on the relevant bills of lading Bond (19 CFR 113.64) to add a new (except that a carrier is not required to Preliminary Entry provision which would recognize the verify boarded quantities of cargo in It is also proposed that § 4.8 be status of an NVOCC as a manifesting sealed containers); amended to make it clear that the party and would obligate any NVOCC (11) The vessel name, national flag, granting of preliminary entry by having such a bond and electing to and vessel number; Customs will be conditioned upon the provide cargo manifest information to (12) The foreign port where the cargo electronic submission of the Cargo Customs electronically under § 4.7 and is laden on board; Declaration (Customs Form (CF) 1302), 4.7a to transmit such information to (13) Hazardous material indicator; as well as the provision to Customs (14) Container number (for Customs in an accurate and timely either electronically or in paper form of containerized shipments); and manner. Breach of these obligations all other forms required by § 4.7. would result in liquidated damages (15) The seal number affixed to the against the NVOCC. container. Comments As explained above in the context of Cargo Declarations; Information the CSI, these expanded information Before adopting this proposal, Required requirements are necessary to enable consideration will be given to any Customs to evaluate the risk of written comments that are timely Additionally, Customs proposes in submitted to Customs. Only a 30-day this rulemaking to amend § 4.7a to smuggling before goods are loaded onto vessels for importation into the United comment period is being provided for in require that the cargo declaration, on this notice because of the urgent Customs Form 1302 or a Customs- States, including the risk of smuggling of weapons of mass destruction. This necessity for Customs to receive approved electronic equivalent, advance manifest information to separately list all foreign cargo not information is required in advance for Customs to assess the risks presented by strengthen the CSI and to prevent the destined for the United States that risk of smuggling of weapons of mass remains on board the vessel (‘‘FROB’’) shipments for smuggling while providing expedited treatment of cargo destruction. Customs specifically as well as any empty containers that are requests comments on the clarity of this on the vessel. Moreover, in addition to upon arrival. The failure by the master to present or proposed rule and how it may be made the cargo declaration information easier to understand. Comments required for cargo destined for the transmit accurate manifest data in the time period prescribed by regulation submitted will be available for public United States in § 4.7a(c)(1)–(c)(3), inspection in accordance with the § 4.7a would be amended in this and the presentation or transmission by the master of any false, forged or altered Freedom of Information Act (5 U.S.C. proposed rule to add a new paragraph 552), § 1.4 of the Treasury Department (c)(4) to provide that the cargo document, paper, manifest or data to Customs may result in the assessment of Regulations (31 CFR 1.4), and declaration, either on Customs Form § 103.11(b), Customs Regulations (19 1302, or on a separate sheet or Customs- monetary penalties under the provisions of 19 U.S.C. 1436(b). If an NVOCC CFR 103.11(b)), at the U.S. Customs approved electronic equivalent, must Service, 799 9th Street, NW., state: having an International Carrier Bond elects to transmit such data Washington, DC during regular business (1) The foreign port of departure; hours. Arrangements to inspect (2) The carrier (SCAC) code; electronically to Customs and fails to do (3) The voyage number; so in the time period prescribed by submitted comments should be made in (4) The date of scheduled arrival in regulation or transmits any false, forged advance by calling Mr. Joseph Clark at the first U.S. port in Customs territory; or altered document, paper, manifest or (202) 572–8768. (5) The numbers and quantities from data to Customs, the NVOCC may be Regulatory Flexibility Act and the carrier’s ocean bills of lading, either liable for the payment of liquidated Executive Order 12866 master or house, as applicable; damages for breach of the condition of (6) The first port of receipt of the the International Carrier Bond. The advance presentation to Customs cargo by the inward foreign ocean of vessel manifest information for cargo Issuance of Permit to Unlade Cargo carrier; destined for the United States as (7) A precise description (or the If the carrier does not present cargo prescribed under the proposed Harmonized Tariff Schedule (HTS)) declaration information to Customs amendments is intended to expedite the numbers under which the cargo is prior to the lading of the cargo aboard release of incoming cargo while, at the classified if that information is received the vessel at the foreign port, Customs same time, ensuring maritime safety and from the shipper) and weight of the may, in addition to assessment of civil protecting national security. As such, cargo or, for a sealed container, the monetary penalties, delay issuance of a pursuant to the provisions of the shipper’s declared description and permit to unlade the entire vessel until Regulatory Flexibility Act (5 U.S.C. 601 weight of the cargo. Generic all required information is received. et seq.), it is certified that, if adopted, descriptions, specifically such as ‘‘FAK’’ Customs may also decline to issue a the proposed amendments would not (‘‘freight of all kinds’’), ‘‘general cargo’’, permit to unlade the specific cargo for have a significant economic impact on and ‘‘STC’’ (‘‘said to contain’’) are not which a declaration is not received 24 a substantial number of small entities. acceptable; hours before lading in a foreign port. Accordingly, the proposed amendments (8) The shipper’s name and address, Such a delay in the issuance of a permit are not subject to the regulatory analysis or an identification number, from all to unlade or refusal of a permit to or other requirements of 5 U.S.C. 603 bills of lading; unlade would be appropriate because and 604. Nor do they meet the criteria
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for a ‘‘significant regulatory action’’ as approved information collections, (2) For any vessel subject to paragraph specified in E.O. 12866. would be revised to add an appropriate (a) of this section, Customs must receive reference to 4.7a(c)(4), upon adoption of from the carrier the vessel’s Cargo Paperwork Reduction Act the proposal as a final rule. Declaration, Customs Form 1302, or a The collection of information in this Customs-approved electronic List of Subjects document is contained in § 4.7a(c)(4). equivalent, 24 hours before such cargo Under § 4.7a(c)(4), the information 19 CFR Part 4 is laden aboard the vessel at the foreign would be required and used to Administrative practice and port (see § 4.30(n)(1)). Participants in determine the security conditions under the Automated Manifest System (AMS) which cargo was maintained prior to procedure, Arrival, Cargo vessels, Customs duties and inspection, are required to provide the vessel’s and following its delivery for lading cargo declaration electronically. aboard a vessel for shipment to the Declarations, Entry, Freight, Harbors, Hazardous substances, Imports, (3)(i) Where a non-vessel operating United States. The likely respondents common carrier (NVOCC), as defined in and/or recordkeepers are business or Inspection, Landing, Maritime carriers, Merchandise, Reporting and paragraph (b)(3)(ii) of this section, other for-profit institutions. delivers cargo to the vessel carrier for The collection of information recordkeeping requirements, Shipping, Vessels. lading aboard the vessel at the foreign encompassed within this proposed rule port, the NVOCC, if licensed by the has been submitted to the Office of 19 CFR Part 113 Federal Maritime Commission and in Management and Budget (OMB) for Bonds, Customs duties and possession of an International Carrier review in accordance with the Bond containing the provisions of Paperwork Reduction Act of 1995 (44 inspection, Exports, Foreign commerce and trade statistics, Freight, Imports, § 113.64 of this chapter, may U.S.C. 3507). An agency may not electronically transmit the conduct, and a person is not required to Reporting and recordkeeping requirements. corresponding required cargo manifest respond to, a collection of information information directly to Customs through unless the collection of information Proposed Amendments to the the Automated Manifest System (AMS) displays a valid control number Regulations 24 or more hours before the related assigned by OMB. It is proposed to amend parts 4 and cargo is laden aboard the vessel at the Estimated annual reporting and/or 113, Customs Regulations (19 CFR parts foreign port (see § 113.64(c) of this recordkeeping burden: 66,700 hours. 4 and 113), as set forth below: chapter); in the alternative, the NVOCC Estimated average annual burden per must fully disclose and present the respondent/recordkeeper: 6.67 hours. PART 4—VESSELS IN FOREIGN AND required manifest information for the Estimated number of respondents DOMESTIC TRADES related cargo to the vessel carrier which and/or recordkeepers: 10,000. Estimated annual frequency of is required to present this information to 1. The general authority citation for Customs. responses: 100. part 4 and the relevant specific Comments on the collection of (ii) A non-vessel operating common authority citations would continue to carrier (NVOCC) means a common information should be sent to the Office read as follows: of Management and Budget, Attention: carrier that does not operate the vessels Desk Officer of the Department of the Authority: 5 U.S.C. 301; 19 U.S.C. 66, by which the ocean transportation is 1431, 1433, 1434, 1624; 46 U.S.C. App. 3, 91; Treasury, Office of Information and provided, and is a shipper in its Regulatory Affairs, Washington, DC * * * * * relationship with an ocean common 20503. A copy should also be sent to the Section 4.7 also issued under 19 U.S.C. carrier. The term ‘‘non-vessel operating 1581(a); 46 U.S.C. App. 883a, 883b; common carrier’’ does not include Regulations Branch, Office of Section 4.7a also issued under 19 U.S.C. Regulations and Rulings, U.S. Customs freight forwarders as defined in part 112 1498, 1584; of this chapter. Service, 1300 Pennsylvania Avenue, Section 4.8 also issued under 19 U.S.C. NW., Washington, DC 20229. Comments 1448, 1486; * * * * * should be submitted within the time * * * * * (e) Failure to provide manifest frame that comments are due regarding Section 4.30 also issued under 19 U.S.C. information; penalties/liquidated the substance of the proposal. 288, 1446, 1448, 1450–1454, 1490; damages. Any master who fails to Comments are invited on: (a) Whether * * * * * provide manifest information as the collection is necessary for the proper 2. It is proposed to amend § 4.7 by required by this section, or who performance of the functions of the revising its section heading; by presents or transmits electronically any agency, including whether the redesignating the existing text of document required by this section that information will have practical utility; paragraph (b) as paragraph (b)(1) and is forged, altered or false, or who fails (b) the accuracy of the agency’s estimate revising the first sentence of newly to present or transmit the information of the burden of the collection of the redesignated paragraph (b)(1); and by required by this section in a timely information; (c) ways to enhance the adding new paragraphs (b)(2), (b)(3), manner, may be liable for civil penalties quality, utility, and clarity of the and (e) to read as follows: as provided under 19 U.S.C. 1436, in information to be collected; (d) ways to addition to penalties applicable under minimize the burden of the collection of § 4.7 Inward foreign manifest; production other provisions of law. In addition, if information on respondents, including on demand; contents and form; advance any non-vessel operating common through the use of automated collection filing of cargo declaration. carrier (NVOCC) as defined in paragraph techniques or other forms of information * * * * * (b)(3)(ii) of this section elects to transmit technology; and (e) estimates of capital (b)(1) In addition to any Cargo cargo manifest information to Customs or startup costs and costs of operations, Declaration that has been filed in electronically and fails to do so in the maintenance, and purchase of services advance as prescribed in paragraph manner and in the time period required to provide information. (b)(2) of this section, the original and by paragraph (b)(3)(i) of this section, or Part 178, Customs Regulations (19 one copy of the manifest must be ready electronically transmits any false, forged CFR part 178), containing the list of for production on demand. * * * or altered document, paper, manifest or
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data to Customs, such NVOCC may be (xi) The vessel name, national flag, (n)(1) Customs will not issue a permit liable for the payment of liquidated and vessel number; to unlade until it has received the cargo damages as provided in § 113.64(c) of (xii) The foreign port where the cargo declaration information pursuant to this chapter. is laden on board; § 4.7(b). In cases in which Customs does 3. It is proposed to amend § 4.7a by (xiii) Hazardous material indicator; not receive complete cargo manifest revising the first sentence of paragraph (xiv) Container number (for information from the carrier or from the (c)(1), by adding a new paragraph (c)(4), containerized shipments); and NVOCC, in the manner and format and by adding a new paragraph (f) to (xv) The seal number affixed to the required by § 4.7(b), 24 hours prior to read as follows: container. the lading of the cargo aboard the vessel * * * * * at the foreign port, Customs may delay § 4.7a Inward manifest; information issuance of a permit to unlade the entire required; alternative forms. (f) Failure to provide manifest vessel until all required information is information; penalties/liquidated * * * * * received. Customs may also decline to damages. Any master who fails to (c) Cargo Declaration. (1) The Cargo issue a permit to unlade the specific provide manifest information as Declaration (Customs Form 1302 or a cargo for which a declaration is not required by this section, or who Customs-approved electronic received 24 hours before lading in a equivalent) must list all the inward presents or transmits electronically any foreign port. Furthermore, where the foreign cargo on board the vessel document required by this section that carrier does not present an advance regardless of the U.S. port of discharge, is forged, altered or false, may be liable cargo manifest to Customs and must separately list any other for civil penalties as provided under 19 electronically, in the manner provided foreign cargo remaining on board U.S.C. 1436, in addition to penalties in § 4.7(b)(2), preliminary entry (‘‘FROB’’) as well as any empty applicable under other provisions of pursuant to § 4.8(b) will be denied. containers that are on the vessel. * * * law. In addition, if any non-vessel (2) In addition, while the advance * * * * * operating common carrier (NVOCC) as presentation of the cargo manifest for (4) In addition to the cargo manifest defined in § 4.7(b)(3)(ii) elects to any vessel subject to § 4.7(b)(2) may be information required in paragraphs transmit cargo manifest information to made in paper form or by electronic (c)(1)–(c)(3) of this section, for all Customs electronically, and fails to do transmission through a Customs- inward foreign cargo, the Cargo so as required by this section, or approved electronic data interchange Declaration, either on Customs Form transmits electronically any document system, the submission of an electronic 1302, or on a separate sheet or Customs- required by this section that is forged, manifest for the cargo in this regard, as approved electronic equivalent, must altered or false, such NVOCC may be opposed to a paper manifest, will state the following: liable for liquidated damages as further facilitate the prompt issuance of (i) The foreign port of departure; provided in § 113.64(c) of this chapter. a permit to unlade the cargo. (ii) The carrier (SCAC) code; 4. It is proposed to amend § 4.8 by (iii) The voyage number; revising the second and third sentences PART 113—B CUSTOMS BONDS of paragraph (b) to read as follows: (iv) The date of scheduled arrival in 1. The general authority citation for the first U.S. port in Customs territory; part 113 would continue to read as (v) The numbers and quantities from § 4.8 Preliminary entry. follows: the carrier’s ocean bills of lading, either * * * * * master or house, as applicable; (b) Requirements and conditions. Authority: 19 U.S.C. 66, 1623, 1624. (vi) The first port of receipt of the * * * The granting of preliminary 2. It is proposed to amend § 113.64 by cargo by the inward foreign ocean vessel entry by Customs at or revising the first sentence of paragraph carrier; subsequent to arrival of the vessel, is (a); and by redesignating paragraphs (c), (vii) A precise description (or the conditioned upon the presentation to (d), (e) and (f) as paragraphs (d), (e), (f) Harmonized Tariff Schedule (HTS)) and acceptance by Customs of all forms, and (g), respectively, and adding a new numbers under which the cargo is electronically or otherwise, comprising paragraph (c) to read as follows: classified if that information is received a complete manifest as provided in from the shipper) and weight of the § 4.7, except that the Cargo Declaration, § 113.64 International carrier bond cargo or, for a sealed container, the Customs Form (CF) 1302, must be conditions. shipper’s declared description and presented to Customs electronically in (a) Agreement to Pay Penalties, weight of the cargo. Generic the manner provided in § 4.7(b)(2). Duties, Taxes, and Other Charges. If any descriptions, specifically such as ‘‘FAK’’ Vessels seeking preliminary entry in vessel, vehicle, or aircraft, or any (‘‘freight of all kinds’’), ‘‘general cargo’’, advance of arrival must do so: by master, owner, or person in charge of a and ‘‘STC’’ (‘‘said to contain’’) are not presenting to Customs the electronic vessel, vehicle or aircraft, or any non- acceptable; equivalent of a complete Customs Form vessel operating common carrier as (viii) The shipper’s name and address, 1302 (Cargo Declaration), in the manner defined in § 4.7(b)(3)(ii) of this chapter or an identification number, from all provided in § 4.7(b), showing all cargo incurs a penalty, duty, tax or other bills of lading; on board the vessel; and by presenting charge provided by law or regulation, (ix) The consignee’s name and Customs Form 3171 electronically no the obligors (principal and surety, address, or the owner’s or owners’ less than 48 hours prior to vessel arrival. jointly and severally) agree to pay the representative’s name and address, or an *** sum upon demand by Customs. * * * identification number, from all bills of * * * * * * * * * * lading; 5. It is proposed to amend § 4.30 by (c) Non-vessel operating common (x) Notice that actual boarded adding a new paragraph (n) to read as carrier (NVOCC). If a non-vessel quantities are not equal to quantities as follows: operating common carrier (NVOCC) as indicated on the relevant bills of lading defined in § 4.7(b)(3)(ii) of this chapter (except that a carrier is not required to § 4.30 Permits and special licenses for elects to provide vessel cargo manifest verify boarded quantities of cargo in unlading and lading. information to Customs electronically, sealed containers); * * * * * the NVOCC, as a principal under this
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bond, in addition to compliance with ADDRESSES: Regular Mail, Express materials by express delivery, hand the other provisions of this bond, also Delivery, Hand-delivery, and Messenger delivery and messenger service. agrees to provide such manifest Service: You must submit three copies All comments and submissions will information to Customs in the manner of your comments and attachments to be available for inspection and copying and in the time period required by the OSHA Docket Office, Docket No. H– at the OSHA Docket Office at the above §§ 4.7(b) and 4.7a(c) of this chapter. If 044, Room N–2625, U.S. Department of address. Comment and submissions the NVOCC, as principal, defaults with Labor, 200 Constitution Avenue, NW., posted on OSHA’s Web site are regard to these obligations, the principal Washington, DC 20210; telephone (202) available at www.osha.gov. OSHA and surety (jointly and severally) agree 693–2350. OSHA Docket Office and cautions you about submitting personal to pay liquidated damages of $5,000 for Department of Labor hours of operation information such as social security each regulation violated. are 8:15 a.m. to 4:45 p.m., EST. numbers and birth dates. Contact the * * * * * Facsimile: If your comments, OSHA Docket Office at (202) 693–2350 including any attachments, are 10 pages for information about materials not Robert C. Bonner, or fewer, you may fax them to the OSHA available through the OSHA Web page Commissioner of Customs. Docket Office at (202) 693–1648. You and for assistance in using the Web page Approved: August 6, 2002. must include the docket number of this to locate docket submissions. Timothy E. Skud, document, Docket No. H–044, in your Background Deputy Assistant Secretary of the Treasury. comments. Electronic: You may submit On March 23, 1993, OSHA proposed [FR Doc. 02–20147 Filed 8–6–02; 11:42 am] to reduce permissible exposure limits BILLING CODE 4820–02–P comments through the Internet at http:/ /ecomments.osha.gov. for four ethylene glycol ethers (2- Methoxyethanol (2–ME), 2- FOR FURTHER INFORMATION CONTACT: For Ethoxyethanol (2–EE), and their acetates DEPARTMENT OF LABOR general information and press inquiries, (2–MEA, 2–EEA)) to protect contact the Office of Public Affairs, N– approximately 46,000 workers from Occupational Safety and Health 3647, 200 Constitution Avenue, NW., significant risks of adverse reproductive Administration Washington, DC 20210. Telephone: and developmental health effects (58 FR (202) 693–1890. For technical inquiries, 15526). The Agency held informal 29 CFR Part 1910 contact Ms. Amanda Edens, Directorate public hearings on the proposal, and the of Health Standards Programs, OSHA, [Docket No. H–044] record was certified in March 1994. N–3718, 200 Constitution Avenue, NW., Information submitted in response to RIN 1218–AA84 Washington, DC 20210. Telephone 202– the proposal, at the hearings, and in 693–2270. For additional copies of this post-hearing comments indicates that Occupational Exposure to 2- Federal Register document, contact the domestic production of the four Methoxyethanol, 2-Ethoxyethanol and OSHA, Office of Publications, U.S. ethylene glycol ethers was on the Their Acetates (Glycol Ethers) Department of Labor, Room N–3101, decline and that their use in several key 200 Constitution Avenue, NW., industry sectors either may have been AGENCY: Occupational Safety and Health Washington, DC 20210; telephone (202) eliminated or may have been in the Administration, Labor. 693–1888. Electronic copies of this process of being phased out (Exs. 11–18, ACTION: Reopening of the rulemaking Federal Register document, as well as 19B, 28, 29A, 48, 53, 58; Ex. 302–X, pp. record on a proposed rule. news releases and other relevant 596–600). By the close of the record, documents, are available at OSHA’s web there was testimony that 2–MEA SUMMARY: The Occupational Safety and page on the Internet at www.osha.gov. production had been phased out Health Administration (OSHA) is re- SUPPLEMENTARY INFORMATION: completely. There also had been a opening the record in the rulemaking on significant decline in production of the Occupational Exposure to 2- Submission of Comments on This remaining glycol ethers since 1987. The Methoxyethanol, 2-Ethoxyethanol, and Document and Internet Access to vast majority of the 2–EE produced in their Acetates (Glycol Ethers) to solicit Comments and Submissions 1991 was used as a chemical information on the extent to which the You may submit comments in intermediate to produce 2–EEA, of four glycol ethers (2–ME, 2–EE, 2–MEA response to this document by (1) hard which nearly 75% was exported; 2–EEA and 2–EEA) are currently used in the copy, or (2) FAX transmission production for paints and coatings had workplace. The Agency is also seeking (facsimile), or (3) electronically through been reduced by almost three-quarters information on substitutes for these four the OSHA Webpage. Please note that since 1987; and most of 2–ME glycol ethers that employers may be you cannot attach materials, such as production was planned to be phased using, including information on patterns studies or journal articles, to electronic out by 1996 (Exs. 29A, 58). The of use, levels of employee exposure to comments. If you have additional evidence in the record indicated that the substitutes, and their degree of materials, you must submit three copies less than one-half of the 11 major use toxicity. of them to the OSHA Docket Office at categories that had been identified in DATES: Comments must be submitted by the address above. The additional OSHA’s preliminary economic analysis the following dates: materials must clearly identify your remained (Ex. 58; Ex. 302–X, pp. 596– Hard Copy: Your comments must be electronic comments by name, date, 600). submitted (postmarked or sent) by subject and docket number so we can Evidence also was submitted that the November 6, 2002. attach them to your comments. Because four ethylene glycol ethers were being Facsimile and Electronic of security-related problems there may shifted out of several critical uses. Transmission: Your comments must be be a significant delay in the receipt of Evidence indicated that these glycol sent by November 6, 2002. (Please see comments by regular mail. Please ethers were no longer being used in the the Supplementary Information contact the OSHA Docket Office at (202) auto refinishing industry (Exs. 24, 53), provided below for additional 693–2350 for information about security which accounted for about 86 percent of information on submitting comments.) procedures concerning the delivery of the affected establishments and 57
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percent of all exposed workers (58 FR ENVIRONMENTAL PROTECTION Administrative Procedure Act. Buckeye 15583). The targeted glycol ethers also AGENCY Power, Inc. v. EPA, 481 F.2d 162 (6th had been discontinued in construction Cir. 1973). Under clearly established paints and were being replaced in 40 CFR Part 51 case law, once approved by EPA, these SIPs have full force and effect of law surface coatings, printing inks, and in [FRL–7256–9] the semiconductor industry (Exs. 28, and are fully enforceable and binding 48,11–18, 19–B). (More recent public Amendment to State Implementation upon all entities affected by the plans. information confirms this downward Plan (SIP) Procedural Regulations Union Electric Co. v. EPA, 515 F.2d, 206 trend in the production and use of these (8th Cir. 1975). AGENCY: Environmental Protection For a number of years, EPA had glycol ethers. Environmental Protection Agency (EPA). included certain language in the Agency Toxic Release Inventory, http:/ ACTION: Proposed rule. preambles to its rulemaking actions /www.epa.gov/opptintr/tri.) approving or disapproving submitted OSHA has decided to re-open the SUMMARY: The EPA proposes to amend SIPs indicating that ‘‘[n]othing in this rulemaking record, which is now 91⁄2 its procedural regulations regarding action should be construed as years old, to seek up-to-date information State Implementation Plans under the permitting, allowing or establishing a about the extent to which 2–ME, 2–EE, Clean Air Act (CAA) to clarify that such precedent for any future request for 2–MEA and 2–EEA are currently used. plans, when approved by EPA, are fully revision to any SIP. U.S. EPA shall OSHA requests comments and data from enforceable and binding upon all consider each request for revision to the interested persons about whether the entities affected by the plans, and that SIP in light of specific technical, four glycol ethers are still in use, any interpretations of relevant law or economic, and environmental factors including information about the level of application of law to specific facts and in relation to relevant statutory and production, the industries and processes contained in EPA’s rulemaking action regulatory requirements.’’ (58 FR 48312, September 15, 1993). By this language, in which they are still used, and on such plans shall have full force and EPA had intended to convey to States employee exposure levels. effect of law as precedent for any future EPA rulemaking action on similar plans. contemplating prospective SIP revisions OSHA also requests information on Further, EPA proposes to clarify that the that EPA’s approval or disapproval of substitutes for these glycol ethers that agency will apply the CAA and any SIP would depend on the specific are currently used, including implementing regulations in like facts and law applicable to the SIP information on the volume of usage, manner to like situations, and will revision at issue, and that States could levels of employee exposure to the explain any deviations from past not be guaranteed an identical result to substitutes, and toxicity of the practice based upon factual differences that reached in any prior SIP action. The substitutes. As noted in the proposal, in different areas or developing purpose of this language was not to the four glycol ethers have been shown interpretations of applicable law in leave the approved SIPs without the to be potent reproductive and future plan approval or disapproval force and effect of law as to regulated developmental toxins. The Agency is actions, through notice-and-comment parties, nor to deprive the rulemaking interested in information related to the rulemaking. actions regarding SIP submissions of the types of risks that any substitutes may precedential effect they necessarily have DATES: Comments must be received on regarding subsequent EPA rulemaking pose to workers. OSHA will use the or before September 9, 2002. actions. In fact, although EPA certainly information gathered during this re- ADDRESSES: All comments should be has the ability to adjust its policies and opening to make determinations about submitted to Docket #A–2002–10, Office rulings in light of experience and to how to proceed with the Glycol Ethers of Air and Radiation Docket and announce new principles through rulemaking. Information Center, 1200 Pennsylvania rulemaking procedures, EPA may not Authority and Signature Avenue, NW., Mail Code 6102, depart from its prior rules of decision to Washington, DC 20460, phone number reach a different result in future cases This document was prepared under (202) 260–7548. The normal business without fully explaining such the direction of John L. Henshaw, hours are 7:30 a.m. to 5:30 p.m. discrepancies and taking comment on Assistant Secretary of Labor for Comments can either be submitted to the appropriateness of the resulting Occupational Safety and Health, U.S. the address above, by fax (202) 260– action. Western States Petroleum Department of Labor. It is issued 4400, or by e-mail to A-and-R- Association, et al., v. EPA, et al., 87 F.3d pursuant to section 6(b) of the [email protected]. 280 (9th Cir. 1996). In a recent decision concerning a SIP Occupational Safety and Health Act of FOR FURTHER INFORMATION CONTACT: Ms. revision in Nevada, the Court of 1970 (84 Stat. 1594, 29 U.S.C. 655), 29 Denise M. Gerth, Office of Air Quality Appeals for the Ninth Circuit, while CFR 1911.18, and Secretary’s Order 3– Planning and Standards, U.S. acknowledging that SIPs are enforceable 2000. Environmental Protection Agency, Mail against regulated parties, interpreted the Code C–539–02, Research Triangle Park, Signed at Washington, DC, this 2nd day of language EPA had included in the SIP NC 27711, phone number (919) 541– August, 2002. warning States that they could not be 5550 or by e-mail at: guaranteed a given result in future SIP John L. Henshaw, [email protected]. Assistant Secretary of Labor. revision requests as limiting the binding SUPPLEMENTARY INFORMATION: States [FR Doc. 02–20001 Filed 8–7–02; 8:45 am] precedential effect of EPA’s action adopt SIPs under section 110 of the approving the SIP. Hall v. EPA, 273 F.3d BILLING CODE 4510–26–P CAA providing for implementation of 1146 (9th Circuit 2001). As noted above, national ambient air quality standards EPA did not intend this result, and (NAAQS) within their boundaries. Such further the agency believes that in light SIPs are subsequently approved or of existing law concerning Agency disapproved by EPA pursuant to notice- rulemaking, EPA could not impose such and-comment rulemaking under the a restriction on its actions in any event.
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Thus, EPA is proposing to amend its explain why the planned regulation is entities; it just recognizes the regulations to clarify that all EPA preferable to other potentially effective precedential impact of SIP approvals. actions on SIPs do have full force and and reasonably feasible alternatives H. National Technology Transfer and effect of law and binding precedential considered by the Agency. The EPA Advancement Act of 1995 effect. interprets Executive Order 13045 as Under the proposed rule, all approved applying only to those regulatory Section 12(d) of the National SIPs are fully enforceable, and all EPA actions that are based on health or safety Technology Transfer and Advancement actions approving or disapproving SIPs risks, such that the analysis required Act of 1995 (‘‘NTTAA’’), Public Law have binding precedential effect. Where under section 5–501 of the Order has 104–113, section 12(d) (15 U.S.C. 272 EPA proposes in any future SIP action the potential to influence the regulation. note) directs EPA to use voluntary to make any deviations from past This rule is not subject to Executive consensus standards in its regulatory practice based upon factual differences Order 13045 because it does not activities unless to do so would be in different areas or developing establish an environmental standard inconsistent with applicable law or interpretations of applicable law, EPA intended to mitigate health or safety otherwise impractical. Voluntary will do so through full notice-and- risks. consensus standards are technical comment rulemaking in future plan standards (e.g., materials specifications, D. Consultation and Coordination with approval or disapproval actions. test methods, sampling procedures, and Indian Tribal Governments business practices) that are developed or Administrative Requirements Executive Order 13175 (65 FR 67249, adopted by voluntary consensus A. Office of Management and Budget November 9, 2000) requires EPA to standards bodies. The NTTAA directs (OMB) Review develop an accountable process to EPA to provide Congress, through OMB, explanations when the Agency decides Under Executive Order 12866 (58 FR ensure ‘‘meaningful and timely input by tribal officials in the development of not to use available and applicable 51735, October 4, 1993), the Agency voluntary consensus standards. This must determine whether the regulatory regulatory policies that have tribal implications.’’ This proposed rule does proposed rulemaking does not involve action is ‘‘significant’’ and therefore technical standards. Therefore, EPA is subject to OMB review and the not have tribal implications, as specified in Executive Order 13175; thus the not considering the use of any voluntary requirements of the Executive Order. It consensus standards. has been determined that this is not a Order does not apply to this rule. ‘‘significant regulatory action’’ under E. Actions Concerning Regulations that I. Paperwork Reduction Act the terms of Executive Order 12866 and Significantly Affect Energy Supply, Today’s action does not establish any is therefore not subject to OMB review. Distribution or Use new information collection B. Federalism This rule is not subject to Executive requirements beyond those which are currently required under the Ambient This proposed rule does not have Order 13211 (66 FR 28355, May 22, 2001) because it is not a significant Air Quality Surveillance Regulations in federalism implications. It will not have 40 CFR part 58 (OMB #2060–0084, EPA substantial direct effects on the States, regulatory action under Executive Order 12866. ICR No. 0940.15). Therefore, the on the relationship between the national requirements of the Paperwork government and the States, or on the F. Unfunded Mandates Reform Act Reduction Act do not apply to today’s distribution of power and action. responsibilities among the various This rule contains no Federal levels of government, as specified in mandates (under the provisions of Title Dated: August 1, 2002. Executive Order 13132. This proposed II of the Unfunded Mandates Reform Elizabeth Craig, rule is procedural in nature. Thus, Act) for State, local, or tribal Acting Assistant Administrator for Air and Executive Order 13132 does not apply governments or the private sector Radiation. to this rule. because this rule imposes no Part 51, subpart F, Title 40 of the In the spirit of Executive Order 13132, enforceable duty on any State, local or Code of Federal Regulations is proposed and consistent with EPA policy to tribal governments or the private sector. to be amended as follows: promote communications between EPA G. Regulatory Flexibility Act (RFA), as PART 51—REQUIREMENTS FOR and State and local governments, EPA Amended by the Small Business specifically solicits comment on this PREPARATION, ADOPTION, AND Regulatory Enforcement Fairness Act SUBMITTAL OF IMPLEMENTATION proposed rule from State and local (SBREFA) officials. PLANS This proposed rule is not subject to 1. The authority citation for part 51 C. Protection of Children From the RFA, which generally requires an Environmental Health Risks and Safety continues to read as follows: 42 U.S.C. agency to prepare a regulatory flexibility 7401–7671q. Risks analysis for any rule that will have a Executive Order 13045 (62 FR 19885, significant economic impact on a § 51.105 [Amended] April 23, 1997) applies to any rule that: substantial number of small entities. 2. Section 51.105 is amended by (1) Is determined to be ‘‘economically The RFA applies only to rules subject to redesignating the existing paragraph as significant’’ as defined under Executive notice-and-comment under the paragraph (a) and adding a new Order 12866, and (2) concerns an Administrative Procedures Act (APA) or paragraph (b) to read as follows: environmental health or safety risk that any other statute. While this action is (b) All plans, or any portions thereof EPA has reason to believe may have a subject to notice-and-comment under or revisions thereto, that have been disproportionate effect on children. If the APA, a RFA is not necessary approved by EPA shall be fully the regulatory action meets both criteria, because this action does not impose any enforceable and binding upon all the Agency must evaluate the significant impacts on a substantial entities affected by the plans or environmental health or safety effects of number of small entities. This rule revisions, and any interpretations of the planned rule on children, and doesn’t impose any obligations on such relevant law or application of law to
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specific facts contained in EPA’s comment period on this document. Any September 18, 2002. The Water Docket rulemaking action approving or parties interested in commenting on this will be closed during August 12 to 26, disapproving such plans and revisions document should do so at this time. 2002 and will open at a new location on shall have full force and effect of law as DATES: Written comments must be August 27, 2002. See ‘‘Supplementary precedent for any future EPA received on or before September 9, Information’’ for detailed information. rulemaking action on similar plans and 2002. FOR FURTHER INFORMATION CONTACT: Eric revisions under applicable provisions of ADDRESSES: Strassler, EPA, e-mail the Clean Air Act and EPA’s All comments should be addressed to: Randy Terry at the EPA, [email protected] or telephone 202– implementing regulations. The EPA 566–1026. shall apply the Act and implementing Region 4 Air Planning Branch, 61 SUPPLEMENTARY INFORMATION: EPA regulations in like manner to like Forsyth Street, SW, Atlanta, Georgia 30303–8960. published a proposed rule for the situations, and will explain any Construction and Development Category deviations from past practice based Copies of documents relative to this on June 24, 2002 (67 FR 42644) and is upon factual differences in different action are available at the following conducting public meetings. No areas or developing interpretations of addresses for inspection during normal registration is required for these applicable law in future SIP approval or business hours: meetings. Seating will be provided on a disapproval actions through notice-and- Environmental Protection Agency, first-come, first-served basis. comment rulemaking. Region 4, Air Planning Branch, 61 Forsyth Street, SW, Atlanta, Georgia • Thursday, September 5, 2002. 9 [FR Doc. 02–20097 Filed 8–7–02; 8:45 am] 30303–8960. a.m.–noon. Sheraton Atlanta Hotel, 165 BILLING CODE 6560–50–P North Carolina Department of Courtland St., Atlanta, GA. Phone 404– Environment and Natural Resources, 659–6500. 512 North Salisbury Street, Raleigh, • Wednesday, September 18, 2002. 9 ENVIRONMENTAL PROTECTION North Carolina 27604. a.m.–noon. EPA East Building, Room AGENCY FOR FURTHER INFORMATION CONTACT: 1153, 1201 Constitution Avenue, NW., Washington, DC. Please note that 40 CFR Part 52 Randy Terry, Regulatory Development Section, Air Planning Branch, Air, parking is very limited in downtown [NC–96; 97–200231(b); FRL–7254–1] Pesticides and Toxics Management Washington and use of public transit is Division, Region 4, Environmental recommended. The EPA Headquarters Approval and Promulgation of Protection Agency, Atlanta Federal complex is located near the Federal Implementation Plans: North Carolina: Center, 61 Forsyth Street, SW, Atlanta, Triangle Metro subway station. Upon Permitting Rules and Other Georgia 30303–8960. The telephone exiting the Metro station, walk on 12th Miscellaneous Revisions number is (404) 562–9032. Mr. Terry Street to Constitution Avenue, and turn AGENCY: Environmental Protection can also be reached via electronic mail right to proceed to the EPA East Agency (EPA). at [email protected]. Building entrance. Meeting Access: If you need special ACTION: Proposed rule. SUPPLEMENTARY INFORMATION: For additional information see the direct accommodations at these meetings, SUMMARY: EPA is proposing to approve final rule which is published in the including wheelchair access, please a State Implementation Plan (SIP) Rules section of this Federal Register. contact the Eastern Research Group revision submitted by the State of North Conference Registration Line at 781– Carolina, through the North Carolina Dated: July 10, 2002. 674–7374, at least five business days Department of Environmental and A. Stanley Meiburg, before the meeting so that appropriate Natural Resources (NCDENR), on April Acting Regional Administrator, Region 4. arrangements can be made. 16, 2001. These revisions include the [FR Doc. 02–19436 Filed 8–7–02; 8:45 am] During the meetings, EPA will present adoption of rules 15A NCAC 2D .0611 BILLING CODE 6560–50–P information on the applicability of the through .0615, the amending of .0501, proposed regulation, the technology .0903 and multiple rules within Chapter options selected as the basis for the .0600 Monitoring: Recordkeeping: ENVIRONMENTAL PROTECTION proposed limitations and standards, and Reporting, the adoption of rules 15A AGENCY the compliance costs and pollutant NCAC 2Q .0316 and .0317 and the reductions. EPA will also allow time for amending of rules .0109, .0803 and 40 CFR Parts 122 and 450 questions and answers during these .0805 through .0808. In the Final Rules [FRL–7257–1] sessions. These meetings are not public Section of this Federal Register, the hearings for the purpose of obtaining EPA is approving the North Carolina SIP RIN 2040–AD42 comment on the proposal. EPA will not revision as a direct final rule without Effluent Limitation Guidelines and New generate a transcript of the meetings. prior proposal because the Agency Source Performance Standards for the The public may submit written views this as a noncontroversial Construction and Development comments by mail or electronically as submittal and anticipates no adverse Category; Public Meetings and Change described in the June 24, 2002 proposal. comments. A detailed rationale for the of Location for Water Docket Instructions for hand delivery of written approval is set forth in the direct final comments is provided below. rule. If no significant material and AGENCY: Environmental Protection The public record for the proposed adverse comments are received in Agency (EPA). rule is available for review in EPA’s response to this rule, no further activity ACTION: Proposed rule. Water Docket, under Docket No. W–02– is contemplated. If EPA receives adverse 06. The Water Docket will close comments, the direct final rule will be SUMMARY: EPA is announcing public temporarily to prepare for moving to a withdrawn and all public comments information meetings and a change in new location. The closure dates are received will be addressed in a the location of the Water Docket. August 12 to 26, 2002. The new Water subsequent final rule based on this rule. DATES: The public meetings will be held Docket address is EPA West Building, The EPA will not institute a second on Thursday, September 5, 2002 and Room B135, 1301 Constitution Avenue,
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NW., Washington, DC, 20004. The SFD–7–2, 75 Hawthorne Street, San Superfund Site and demonstrates how it docket will reopen on Tuesday, August Francisco, CA 94105–3901, (415) 972– meets the deletion criteria. 27, 2002. Beginning on that date, please 3260 or (800) 231–3075. Deletion of a site from the NPL does call the new docket phone number, Information Repositories: not itself create, alter, or revoke any 202–566–2426, to schedule an Comprehensive information on this Site individual’s rights or obligations. The appointment. For hand deliveries of is available through the Region IX NPL is designed primarily for comments on or after that date, submit public docket which is available for informational purposes and to assist such comments to the new address. viewing at the EPA Region IX EPA management. Additional information about the Superfund Records Center, 95 II. NPL Deletion Criteria proposed rule is available on EPA’s Web Hawthorne Street, San Francisco, CA site at http://www.epa.gov/ 94105–3901, (415) 536–2000 (Monday Section 300.425(e) of the NCP waterscience/guide/construction/. through Friday 8 a.m. to 5 p.m.); provides that sites may be deleted from the NPL where no further response is Dated: August 1, 2002. Crescent City Library, 190 Price Mall, Crescent City, CA 95531, (707) 464– appropriate. In making a determination Geoffrey H. Grubbs, to delete a site from the NPL, EPA, in Director, Office of Science and Technology. 9793 (Monday, Tuesday, Thursday and Friday 10 a.m. to 6 p.m., Wednesday 10 consultation with the State, shall [FR Doc. 02–20098 Filed 8–7–02; 8:45 am] a.m. to 8 p.m., Saturday 10 a.m. to 2 consider whether any of the following BILLING CODE 6560–50–P p.m., Sunday closed). criteria have been met: i. Responsible parties or other persons FOR FURTHER INFORMATION CONTACT: have implemented all appropriate ENVIRONMENTAL PROTECTION Beatriz Bofill, Remedial Project response actions required; or AGENCY Manager, U.S. EPA, Region IX, SFD–7– ii. All appropriate Fund-financed 2, 75 Hawthorne Street, San Francisco, (Hazardous Substance Superfund 40 CFR Part 300 CA 94105–3901, (415) 972–3260 or Response Trust Fund) response under [FRL–7257–2] (800) 231–3075; or Viola Cooper, CERCLA has been implemented, and no Community Involvement Coordinator, further response action by responsible National Oil and Hazardous Substance U.S. EPA, Region IX, SFD–3, 75 parties is appropriate; or Pollution Contingency Plan; National Hawthorne Street, San Francisco, CA iii. The remedial investigation has Priorities List 94105–3901, (415) 972–3243 or (800) shown that the release poses no 231–3075. significant threat to public health or the AGENCY: Environmental Protection Agency. SUPPLEMENTARY INFORMATION: environment and, therefore, the taking of remedial measures is not appropriate. ACTION: Notice of intent to delete the Del Table of Contents CERCLA section 101(25) defines Norte County Pesticide Storage Area I. Introduction response as removal and remedial Superfund Site from the National II. NPL Deletion Criteria actions, and does not include operation Priorities List. III. Deletion Procedures and maintenance activities. IV. Basis for Site Deletion SUMMARY: The Environmental Protection Accordingly, a site may be deleted from Agency (EPA) Region IX is issuing a I. Introduction the NPL where only operation and maintenance activities remain. Even if a Notice of Intent to Delete the Del Norte The U.S. EPA Region IX is publishing County Pesticide Storage Area site is deleted from the NPL, where this Notice of Intent to Delete the Del hazardous substances, pollutants, or Superfund Site (Site) located in Norte County Pesticide Storage Area Crescent City, California, from the contaminants remain at the deleted site Superfund Site from the NPL and above levels that allow for unlimited National Priorities List (NPL) and requests public comment on this requests public comments on this use and unrestricted exposure, CERCLA proposed action. The NPL constitutes section 121(c), 42 U.S.C. 9621(c) Notice of Intent to Delete. The NPL, appendix B of 40 CFR part 300, which promulgated pursuant to section 105 of requires that a subsequent review of the is the National Oil and Hazardous site be conducted at least every five the Comprehensive Environmental Substances Pollution Contingency Plan, Response, Compensation, and Liability years after the initiation of the remedial which EPA promulgated pursuant to action at the deleted site to ensure that Act of 1980 (CERCLA), as amended, is section 105 of CERCLA, as amended. found at appendix B of 40 CFR part 300, the action remains protective of public The EPA identifies sites that appear to health and the environment. If new which is the National Oil and present a significant risk to public Hazardous Substances Pollution information becomes available which health, welfare, or the environment, and indicates a need for further action, EPA Contingency Plan (NCP). The EPA and maintains the NPL as the list of those the State of California, through the may initiate remedial actions. Whenever sites. As described in § 300.425(e)(3) of there is a significant release from a site California Department of Toxic the NCP, sites deleted from the NPL Substances Control (DTSC), have deleted from the NPL, the deleted site remain eligible for remedial action in may be restored to the NPL without determined that all appropriate the unlikely event that conditions at the response actions under CERCLA, other application of the Hazard Ranking site warrant such action. System (40 CFR 300.425(e)(3)). than Operation and Maintenance and EPA will accept comments on the Five-Year Reviews, have been proposal to delete this Site for thirty III. Deletion Procedures completed. However, this deletion does (30) days after publication of this The following procedures apply to not preclude future actions under document in the Federal Register. CERCLA. deletion of the Site: Section II of this document explains (1) A ROD Amendment documents DATES: Comments concerning this Site the criteria for deleting sites from the the technical infeasibility of reaching must be received by September 9, 2002. NPL. Section III discusses procedures the Maximum Contaminant Level (MCL) ADDRESSES: Written comments should that EPA is following specifically for for 1,2-dichloropropane (1,2-DCP). be addressed to: Beatriz Bofill, Remedial this Site. Section IV discusses the Del (2) All remedial action has been Project Manager, U.S. EPA, Region IX, Norte County Pesticide Storage Area implemented as is documented in the
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Final Close Out Report (FCOR), dated containers generated by local dichlorophenoxyacetic acid (2,4-D), and July 19, 2002. agricultural and forestry-related 50 parts per billion as the groundwater (3) The EPA consulted with the State industries. cleanup goal for Chromium. No MCL of California on the deletion of the Site The pesticide container storage area had been set for 1,2-DCP at that time, so from the NPL prior to developing this operated from 1970–1981. Soil and a health-based advisory level of 10µg/L Notice of Intent to Delete. groundwater contamination was was chosen as the cleanup goal for 1,2- (4) The State of California concurred discovered in the fall of 1981, indicating DCP. EPA continued to monitor the with deletion of the Site from the NPL. that the pesticide containers had been contaminants and conditions at the Site. (5) A notice has been published in the rinsed on-site, and that the residues and In August 1987, EPA used removal local newspaper and has been rinseates were improperly disposed of authorities to perform a Removal Action distributed to appropriate federal, state, in a bermed, unlined sump area. In in which 290 cubic yards of and local officials and other interested 1982, approximately 1,150 containers contaminated soils were excavated and parties announcing the commencement were removed from the Site. disposed of off-site at a licensed of a 30-day public comment period on Preliminary investigations from 1981– hazardous waste disposal facility. This EPA’s Notice of Intent to Delete. 1983, by NCRWQCB and California action removed the contaminated soils (6) The EPA placed copies of Department of Health Services, in the sump area, thereby eliminating documents supporting the deletion in identified soil and groundwater the source of additional incremental the Site information repositories contamination with herbicides, groundwater contamination. identified above. pesticides and volatile and semivolatile An Explanation of Significant For deletion of this Site, EPA’s compounds. Del Norte County’s Differences (ESD) dated September 21, Regional Office will accept and evaluate inability to fund further Site 1989 clarified that the chromium found public comments before making a final investigations initiated the process of at the Site was in fact trivalent decision to delete. If comments are listing the Site on the NPL in the fall of chromium, not the significantly more received, EPA will prepare a 1983. toxic hexavalent form. Furthermore, Responsiveness Summary to address data collected at the Site led to the Remedial Investigation and Feasibility those comments. The Responsiveness conclusion that chromium levels were Study (RI/FS) Summary will be available for review in consistent with naturally occurring the Deletion Docket. The Deletion EPA produced a Remedial background levels. Therefore, it was Docket is a compilation of documents Investigation/Feasibility Study (RI/FS) determined that treatment of chromium containing all pertinent information Final Report on September 13, 1985. in groundwater was not necessary and supporting the deletion The RI/FS established that operations at the ESD removed the chromium cleanup recommendation. the storage area resulted in standard from the Site remedy. A deletion occurs when the Regional contamination of soil and groundwater Additionally, levels of 2,4-D were Administrator places a final notice in with herbicides, pesticides, volatile and only detected above the MCL in two the Federal Register. Generally, the NPL semi-volatile compounds. Because the samples during the RI/FS, Remedial will reflect deletions in the final update contamination had reached the Design and Removal phases of the following the notice. Public notices and groundwater, use of the contaminated project. By 1989, 2,4-D was detected in copies of the Responsiveness Summary groundwater as a water supply would only one well at a concentration of will be made available to local residents result in a significant health risk. One 20µg/L, supporting the conclusion that by the Regional Office. Contaminant of Concern (COC), 1,2- the cleanup criteria had been met. As a DCP, had migrated downgradient of the result, a 1998 ESD changed the original IV. Basis for Site Deletion storage area to a distance of about 150 remedy of carbon filtration, coagulation, The following information provides to 300 feet in the southeasterly direction and sand filtration to aeration, which EPA’s rationale for deleting the Site from the sump area. There was no had not been selected in the 1989 ROD from the NPL: spread of soil contamination due to due to its ineffective removal of 2,4-D wind or runoff detected beyond the Site Location and chromium. The only COC storage area boundaries. There was also remaining to be remediated was the The Del Norte County Pesticide widespread detection of chromium in presence of 1,2-DCP in the groundwater. Storage Area Site, located soil and groundwater, both on- and off- A pump and treatment system began approximately one mile northwest of site, which required further extracting groundwater from one Crescent City, California, consists of less investigation to determine whether it extraction well at the rate of 15 gallons than one acre of land which had been was the highly toxic hexavalent form or per minute, and operated continuously contaminated with a variety of whether it was trivalent chromium, from April 1990 to December 1994. herbicides, pesticides, and other which is much less toxic. After 1994, 1,2-DCP concentrations in compounds. The Site is located in a the groundwater monitoring wells Response Actions rural area immediately south of reached asymptotic levels ranging McNamara Field, the airport that serves EPA’s September 30, 1985 Record of between 15µg/L and 40µg/L. In 1994, Del Norte County. The property is zoned Decision (ROD) selected a Site remedy EPA installed an air sparging system to manufacturing performance. of excavation and off-site disposal of determine if the injection of air into the In December 1969, the Del Norte contaminated soils as well as extraction aquifer would enhance contaminant County Sanitarian notified the North and treatment of the contaminated removal. No discernable changes in the Coast Regional Water Quality Control groundwater. The selected groundwater levels of 1,2-DCP in groundwater were Board (NCRWQCB) of the County’s remedy consisted of: (1) Carbon noted. The plume is stable and is not intent to operate a pesticide container adsorption for removal of organics and migrating vertically or laterally. storage area. During 1970, the Site was pesticides and (2) coagulation and sand designated by the NCRWQCB as a Class filtration for removal of chromium. The Cleanup Standards II–2 disposal site to serve as a County- ROD utilized the drinking water MCL of Because treatment was no longer wide collection point for interim or 100 micrograms/Liter (µg/L) as the reducing the contaminant levels, an emergency storage of pesticide groundwater cleanup goal for 2,4- August 2000 ROD Amendment modified
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the remedy to containment of the proposed groundwater extraction wells Dated: July 26, 2002. groundwater plume. In 1992, a MCL of within the one mile area described Keith Takata, 5µg/L was established, for 1,2-DCP. This above all, necessary information must Acting Regional Administrator, Region IX. MCL is an Applicable or Relevant and be provided to the lead agency to [FR Doc. 02-20099 Filed 8–7–02; 8:45 am] Appropriate Requirement (ARAR) for demonstrate that the restrictions are BILLING CODE 6560–50–P the groundwater cleanup at the Site. met. However, given the conclusions reached Five-Year Review about the status of the 1,2-DCP plume, DEPARTMENT OF THE INTERIOR EPA’s 2000 ROD Amendment Because contaminants remain at the concluded that the 5,000 foot plume Fish and Wildlife Service was not migrating and that it was Site above the MCL, Five-Year Reviews technically impracticable to restore the are required by statute. A Five-Year 50 CFR Part 17 1,2-DCP plume to the 5µg/L MCL. The Review was completed at the Site on 2000 ROD Amendment therefore waived December 27, 2000, and found the RIN 1018–AH33 remedy to be protective of human health this ARAR on the basis of Technical DEPARTMENT OF COMMERCE Impracticability. and the environment. Five-Year Reviews will continue to be conducted Operation and Maintenance National Oceanic and Atmospheric at this Site until contaminant levels are Administration On March 6, 2002, a Consent Decree below cleanup levels. The next Five- (CD) was entered among EPA, DTSC and Year Review will be completed by 50 CFR Part 226 Del Norte County, which provides that December 27, 2005. Del Norte County will continue to [I.D. 052002A] provide monitoring at the Site with Community Involvement RIN 0648–AQ03 oversight by DTSC. Semiannual groundwater monitoring will be ongoing Public participation activities have been satisfied as required in CERCLA Endangered and Threatened Wildlife at the Site until levels of 1,2-DCP have and Plants; Designation of Critical section 113(k), 42 U.S.C. 9613(k), and dropped below the MCL and EPA makes Habitat for the Gulf Sturgeon a determination that monitoring is no CERCLA section 117, 42 U.S.C. 9617. longer necessary. Sampling Documents in the Deletion Docket AGENCIES: Fish and Wildlife Service, methodology and protocol can be found which EPA relied on for Interior, and National Marine Fisheries in the Del Norte County Pesticide recommendation of the deletion from Service (NMFS), National Oceanic and Storage Area Superfund Site the NPL are available to the public in Atmospheric Administration (NOAA), Groundwater Monitoring Plan, dated the information repositories. Commerce. June 6, 2001. ACTION: Proposed rule; notice of Institutional controls were established Applicable Deletion Criteria/State availability (NOA) of draft economic in the 2000 ROD Amendment and will Concurrence analysis, and correction on public be implemented through the CD. hearing location. All the completion requirements for Controls for the Site include: (1) Restricting access to the Site to protect this Site have been met as described in SUMMARY: The U.S. Fish and Wildlife existing groundwater monitoring wells the FCOR dated July 19, 2002. The NPL Service and the National Marine and to prevent use of contaminated provides that a site is eligible for Fisheries Service, collectively ‘‘the groundwater; (2) Prohibiting use of deletion where ‘‘all appropriate Fund- Services’’ are announcing the contaminated groundwater; (3) financed (Hazardous Substance availability of a draft economic analysis Prohibiting the use of the Site (which is Superfund Response Trust Fund) of the proposal to designate critical currently zoned for industrial purposes) response under CERCLA has been habitat for the Gulf sturgeon (Acipenser for residences, hospitals for humans, implemented, and no further response oxyrinchus desotoi). We are soliciting public or private schools for persons action by responsible parties is public comments on both the proposal under 21 years of age, or for day care appropriate,’’ and where ‘‘responsible and the draft economic analysis. We centers for children; (4) Restricting the parties or other parties have also are correcting the address of a use of the Site to industrial/commercial implemented all appropriate response public hearing to be held in Defuniak purposes that do not interfere with the actions required.’’ The FCOR documents Springs, FL on August 20, 2002. containment and monitoring of the that Site monitoring and institutional DATES: Comments: We are extending the contaminated groundwater, and that do controls have been implemented and comment period announced in the not damage, alter, destroy, or ensure the protectiveness of the remedy. proposed rule, published at 67 FR compromise the integrity of the existing Site monitoring will continue, 39106, to allow a 60–day comment groundwater monitoring wells at the conducted under the supervision of period following this NOA.The revised Site; (5) Prohibiting the installation and/ comment period on both the proposed DTSC, until levels of 1,2-DCP reach or pumping of water-producing wells, critical habitat designation and the draft below the MCL. including but not limited to water economic analysis is now open and will supply, irrigation and private wells on EPA, with the concurrence of the close on October 7, 2002. We must the Site; and (6) Prohibiting the State of California through its receive comments from all interested installation and operation of any Department of Toxic Substances Control parties by the closing date. Any groundwater extraction wells in the area on July 22, 2002, finds that these criteria comments that we receive after the extending one mile from the boundary for deletion of the Site have been met. closing date will not be considered. of the Site that would cause the plume Consequently, EPA is proposing Comments previously submitted need of contaminated groundwater under the deletion of the Del Norte County not be resubmitted as they have already Site to move or that would cause Pesticide Storage Area Superfund Site been incorporated into the public record contaminated groundwater under the from the NPL. and will be fully considered in the final Site to be brought to the surface. For any rule.
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Public Hearings: The Services have Rivers in Louisiana and Mississippi; (2) August 20, 2002, Chautaugua scheduled four public hearings from Pascagoula, Leaf, Bowie (also referred to Building, Museum Room, 96 Circle August 19 to 22, 2002, on the proposed as Bouie), Big Black Creek and Drive, Defuniak Springs, FL 32435 critical habitat designation and the draft Chickasawhay Rivers in Mississippi; (3) August 21, 2002, J. L. Scott Marine economic analysis. See SUPPLEMENTARY Escambia, Conecuh, and Sepulga Rivers Education Center and Aquarium, 115 INFORMATION for details including in Alabama and Florida; Yellow, Beach Boulevard, Biloxi, MS 39530. locations, times and dates. Blackwater, and Shoal Rivers in (4) August 22, 2002, Hilton New ADDRESSES: Draft Economic Analysis: Alabama and Florida; Choctawhatchee Orleans Airport, 901 Airline Drive, Copies of the draft economic analysis and Pea Rivers in Florida and Alabama; Kenner, LA 70062. are available on the Internet at http:// Apalachicola and Brothers Rivers in Public Comments Solicited alabama.fws.gov/gs/ or by writing to or Florida; and Suwannee and Withlacoochee River in Florida. We solicit comments on the draft calling Patty Kelly, Panama City Field economic analysis, as well as any other Office, U.S. Fish and Wildlife Service, The proposal also includes portions of aspect of the proposed designation of 1601 Balboa Avenue, Panama City, FL the following estuarine and marine critical habitat for the Gulf sturgeon. 32405; telephone 850/769–0552. areas: Lake Pontchartrain (east of the Anyone wishing to make an oral Comments: If you wish to comment, Lake Pontchartrain Causeway), Lake statement for the record at the public you may submit your comments by any Catherine, Little Lake, The Rigolets, hearings is encouraged to provide a one of several methods: Lake Borgne, Pascagoula Bay and written copy of their statement to us at 1. You may submit written comments Mississippi Sound systems in Louisiana the start of the hearing. In the event and information to the Project Leader, c/ and Mississippi, and sections of the there is a large attendance, the time o Patty Kelly, Panama City Field Office, adjacent state waters within the Gulf of allotted for oral statements may have to U.S. Fish and Wildlife Service, 1601 Mexico; Pensacola Bay system in be limited. Oral and written statements Balboa Avenue, Panama City, FL 32405. Florida; Santa Rosa Sound in Florida; receive equal consideration. There are 2. You may hand-deliver written nearshore Gulf of Mexico in Florida; no limits to the length of written comments to our Panama City Field Choctawhatchee Bay system in Florida; comments presented at the hearings or Office, at the above address or fax your Apalachicola Bay system in Florida; and mailed to us. Our final economic comments to 850/763–2177. Suwannee Sound and adjacent state analysis and final designation of critical 3. You may send comments by waters within the Gulf of Mexico in habitat will take into consideration electronic mail (e-mail) to Florida. These geographic areas comments and any additional [email protected]. For directions on encompass approximately 2,544 river information received by the date how to submit electronic filing of kilometers (1,580 river miles) and 6,042 specified above. The comment period comments, see ‘‘Public Comments square kilometers (2,333 square miles) for both the proposed rule and the draft Solicited.’’ of estuarine and marine habitat. economic analysis closes on [insert date 4. You may provide oral and/or Section 4(b)(2) of the Act requires that 60 days after date of publication in the written comments at any of the public FEDERAL REGISTER]. All previous hearings. the Services designate or revise critical habitat based upon the best scientific comments and information submitted Comments and materials received, as during the comment period need not be well as supporting documentation used data available and after taking into consideration the economic impact, and resubmitted. Written comments may be in preparation of this proposed rule, submitted to the Project Leader (see will be available for public inspection, any other relevant impact, of specifying any particular area as critical habitat. ADDRESSES). by appointment, during normal business Please submit electronic comments as hours at the above address. We may exclude an area from critical habitat if we determine that the benefits an ASCII file format and avoid the use FOR FURTHER INFORMATION CONTACT: of excluding the area outweigh the of special characters and encryption. Patty Kelly, Fish and Wildlife Biologist, benefits of including the area as critical Please also include ‘‘Attn: RIN 1018– Panama City Field Office (see habitat, provided such exclusion will A123’’ and your name and return ADDRESSES) (telephone 850/769–0552, not result in the extinction of the address in your e-mail message. If you extension 228) with questions species. Consequently, we have do not receive a confirmation from the concerning units 1 to 7; or Stephania prepared a draft economic analysis system that we have received your e- Bolden, NOAA Fisheries, at 9721 concerning the proposed critical habitat mail message, please contact us directly Executive Center Drive North, St. designation, which is available for by calling our Panama City Field Office Petersburg, FL 33702–2449 (telephone review and comment (see ADDRESSES ). (see ADDRESSES). 727/570–5312; facsimile 727/570–5517) Our practice is to make all comments, with questions concerning units 8 to 14. Public Hearings including names and home addresses of SUPPLEMENTARY INFORMATION: respondents, available for public review The Services have scheduled four during regular business hours. Background public hearings on the proposed critical Individual respondents may request that The Services listed the Gulf sturgeon habitat designation and the draft we withhold their home address from as a threatened species under the economic analysis. We will hold public the rulemaking record, which we will Endangered Species Act of 1973, as informational meetings prior to each honor to the extent allowable by law. In amended (Act), on September 30, 1991 public hearing at the hearing locations. some circumstances, we would (56 FR 49653). On June 6, 2002, we The public information sessions will withhold from the rulemaking record a published in the Federal Register a start at 5 p.m. and end at 6:30 p.m. The respondent’s identity, as allowable by proposal to designate critical habitat for formal public hearings will start at 7 law. If you wish for us to withhold your this species (67 FR 39106). The p.m. and end at 9 p.m. on the dates name and/or address, you must state proposed designation includes portions indicated. this prominently at the beginning of of the following Gulf of Mexico rivers (1) August 19, 2002, Suwannee River your comments. However, we will not and tributaries as critical habitat for the Water Management District, 9225 C.R. consider anonymous comments. We Gulf sturgeon: Pearl and Bogue Chitto 49, Live Oak, FL 32060. will make all submissions from
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organizations or businesses, and from address for the location of the hearing Dated: July 29, 2002. individuals identifying themselves as to be held in Defuniak Springs, FL on Donald R. Knowles, representatives or officials of August 20, 2002. The corrected address Director, Office of Protected Resources, organizations or businesses, available is provided in this notice under the National Marine Fisheries Service. for public inspection in their entirety. heading ‘‘Public Hearings.’’ August 1, 2002. Correction Authority Craig Manson Assistant Secretary for Fish, Wildlife and In the proposed rule, published at 67 The authority for this action is the Parks, Department of Interior. FR 39106, June 6, 2002, we Endangered Species Act of 1973 (16 [FR Doc. 02–20091 Filed 8–7–02; 8:45 am] inadvertently published an incorrect U.S.C. 1531 et seq.). BILLING CODE 3510–22–S
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Notices Federal Register Vol. 67, No. 153
Thursday, August 8, 2002
This section of the FEDERAL REGISTER Approximately 2921 acres of timber scheduled to be completed by August contains documents other than rules or harvest; (2) approximately 1037 acres of 2003. proposed rules that are applicable to the precommercial thinning; (3) The comment period on the draft public. Notices of hearings and investigations, approximately 887 acres of prescribed environmental impact statement will be committee meetings, agency decisions and burning; (4) approximately 21⁄2 miles of 45 days from the date the rulings, delegations of authority, filing of petitions and applications and agency temporary road construction to access Environmental Protection Agency statements of organization and functions are some of the harvest units; (5) publishes the notice of availability in examples of documents appearing in this approximately 177 miles of road the Federal Register. section. decommissioning; (6) approximately The Forest Service believes, at this 30–35 miles of road reconstruction; (7) early stage, it is important to give approximately 30 miles of herbicide reviewers notice of several court rulings DEPARTMENT OF AGRICULTURE treatment of noxious weeds along related to public participation in the roadsides; (8) abandonment of the environmental review process. First, Forest Service Fishtrap grazing allotment; and (9) to reviewers of draft environmental impact correct Forest Plan mapping errors in statements must structure their Fishtrap EIS, Lolo National Forest, scattered parcels throughout the participation in the environmental Sanders County, MT analysis area by changing an review of the proposal so that it is AGENCY: Forest Service, USDA. approximate net 625 acres from timber- meaningful and alerts an agency to the ACTION: Notice; intent to prepare suitable to unsuitable management reviewer’s position and contentions. environmental impact statement. areas. In addition to these proposals, the Vermont Yankee Nuclear Power Corp. v. Forest Service will consider alternate NRDC, 435 U.S. 519, 553 (1978). Also, SUMMARY: The Forest Service will road access to the Fishtrap Lake environmental objections that could be prepare an environmental impact campground, which may include long- raised at the draft environmental impact statement (EIS) on a proposal to term specified road construction. statement stage but that are not raised implement timber harvest, The Lolo National Forest Plan, 1986, until after completion of the final precommercial thinning, prescribed provides overall guidance for land environmental impact statement may be burning, herbicide treatment of noxious management activities in the project waived or dismissed by the courts. City weeds, abandonment of the Fishtrap area. The purposes for these actions are of Angoon v. Hodel, 803 F.2d 1016, grazing allotment, temporary road to: (1) Improve water quality, fish 1022 (9th Cir. 1986) and Wisconsin construction, road reconstruction and habitat and fish passage; (2) Improve Heritages, Inc. v. Harris, 490 F. Supp. road decommissioning; and to correct grizzly bear habitat within the Cabinet- 1334, 1338 (E.D. Wis. 1980). Because of management area mapping errors in the Yaak Grizzly Bear Recovery Zone; (3) these court rulings, it is very important Lolo National Forest Land and Resource Restore, maintain or enhance native ‘‘at that those interested in this proposed Management Plan (Forest Plan) in the risk’’ vegetative communities, as action participate by the close of the 45- Fishtrap Creek drainage, Lolo National identified in the Northern Region day scoping comment period so that Forest, Plains/Thompson Falls Ranger Overview, USDA 1998; (4) Provide for substantive comments and objections District, Sanders County, Montana. ecological sustainability and community are made available to the Forest Service This EIS will tier to the Lolo Forest stability through the use of forest at a time when it can meaningfully Plan Final EIS (April, 1986). products; (5) Improve and maintain big consider them and respond to them in DATES: Written comments should be game winter range; (6) Provide for a the final environmental impact received within 30 days following transportation system that better reflects statement. publication of this notice. current access and resource concerns To assist the Forest Service in identifying and considering issues and ADDRESSES: Please submit written and reduces economic burdens comments on the proposed management associated with maintaining unneeded concerns on the proposed action, activities or a request to be placed on roads. comments on the draft environmental impact statement should be as specific the project mailing list to: Lisa Krueger, Issues currently identified for analysis as possible. It is also helpful if District Ranger, Plains/Thompson Falls in the EIS include potential effects on comments refer to specific pages or Ranger District, Lolo National Forest, wildlife (particularly grizzly bear), water chapters of the draft statement. P.O. Box 429, Plains, Montana 59859. quality, fisheries and forest access. Comments may also address the FOR FURTHER INFORMATION CONTACT: Pat The Forest Service will consider a adequacy of the draft environmental Partyka, EIS Team Leader, (406) 826– range of alternatives. A No Action impact statement or the merits of the 4314. alternative and other alternatives, which alternatives formulated and discussed in SUPPLEMENTARY INFORMATION: The respond to significant issues, will be the statement. Reviewers may wish to Fishtrap analysis area of approximately developed, analyzed and compared in refer to the Council on Environmental 36,400 acres is located approximately 20 the Draft EIS. Quality Regulations for implementing air miles north of Thompson Falls, The Draft EIS is expected to be filed the procedural provisions of the Montana, Sanders County, in T23N, with the Environmental Protection National Environmental Policy Act at 40 R28W; T23N, R29W; T24N, R27W; Agency (EPA) and available for public CFR 1503.3 in addressing these points. T24N, R28W; T24N, R29W; and T25N, review in April 2003. Comments on the Responsible Official: Deborah L.R. R28W; PMM. Within this area, the Lolo Draft EIS will be considered and Austin, Forest Supervisor, Lolo National National Forest proposes (1) responded to in the Final EIS, Forest, Building 24—Fort Missoula,
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Missoula, MT 59804, is the responsible DEPARTMENT OF COMMERCE DEPARTMENT OF COMMERCE official. In making the decision, the responsible official will consider Foreign-Trade Zones Board Foreign-Trade Zones Board comments, responses, disclosure of [Order No. 1237] [Order No. 1241] environmental consequences, and applicable laws, regulations, and Grant of Authority For Subzone Status, Approval for Expansion of Subzone policies. The responsible official will Archer Daniels Midland, Inc. (Natural 124h, Bollinger Shipyards Lockport, state the rationale for the chosen Vitamin E), Decatur, IL LLC (Shipbuilding), Lafourche, alternative in the Record of Decision. Jefferson and Orleans Parishes, LA Pursuant to its authority under the Dated: August 2, 2002. Foreign-Trade Zones Act of June 18, Pursuant to its authority under the Deborah L.R. Austin, 1934, as amended (19 U.S.C. 81a-81u), Foreign-Trade Zones Act of June 18, Forest Supervisor. the Foreign-Trade Zones Board (the 1934, as amended (19 U.S.C. 81a–81u), [FR Doc. 02–20036 Filed 8–7–02; 8:45 am] Board) adopts the following Order: the Foreign-Trade Zones Board (the BILLING CODE 3410–11–M Whereas, the Foreign-Trade Zones Act Board) adopts the following Order: provides for ‘‘* * * the establishment Whereas, the Port of South Louisiana, * * * of foreign-trade zones in ports of grantee of FTZ 124, has requested DEPARTMENT OF AGRICULTURE entry of the United States, to expedite authority on behalf of Bollinger and encourage foreign commerce, and Shipyards Lockport, LLC (Bollinger), to Forest Service for other purposes,’’ and authorizes the expand Subzone 124H to include six Foreign-Trade Zones Board to grant to additional sites in Lafourche, Jefferson South Gifford Pinchot National Forest qualified corporations the privilege of and Orleans Parishes, Louisiana (FTZ Resource Advisory Committee Meeting establishing foreign-trade zones in or Docket 3–2002, filed 1/8/2002); Notice adjacent to U.S. Customs ports of entry; Whereas, notice inviting public AGENCY: Forest Service, USDA. Whereas, the Board’s regulations (15 comment has been given in the Federal CFR part 400) provide for the ACTION: Notice of meeting. Register (67 FR 1960, 1/15/02); establishment of special-purpose Whereas, the Board adopts the SUMMARY: The South Gifford Pinchot subzones when existing zone facilities findings and recommendations of the National Forest Resource Advisory cannot serve the specific use involved, examiner’s report, and finds that the Committee will meet on Monday, and when the activity results in a requirements of the FTZ Act and August 19, 2002 at the Skamania County significant public benefit and is in the Board’s regulations would be satisfied, Public Works Department basement public interest; and that approval of the application located in the Courthouse Annex, 170 Whereas, the Decatur Park District, would be in the public interest if N.W. Vancouver Avenue, Stevenson, grantee of Foreign-Trade Zone 245, has approval is subject to the conditions Washington. The meeting will begin at made application to the Board for listed below; 8:30 a.m. and continue until 6 p.m. The authority to establish special-purpose Now, therefore, the Board hereby purpose of the meeting is to: subzone status at the manufacturing orders: (1) Review and recommend for facilities (vitamin E) of Archer Daniels The application to expand Subzone funding Title II projects for fiscal year Midland, Inc., located in Decatur, 124H on behalf of Bollinger, is 2003. Illinois (FTZ Docket 29–2000, filed 6/ approved, subject to the FTZ Act and (2) Provide for a Public Open Forum. 13/2000; amended 6/6/2001); the Board’s regulations, including All South Gifford Pinchot National Whereas, notices inviting public § 400.28, and subject to the following Forest Resource Advisory Committee comment have been given in the conditions: meetings are open to the public. Federal Register (65 FR 39123, 6/23/ 1. Any foreign steel mill products Interested citizens are encouraged to 2000; 66 FR 32599, 6/15/2001); and, admitted to the subzone, including attend. The ‘‘open forum’’ provides an Whereas, the Board adopts the plate, angles, shapes, channels, rolled opportunity for the public to bring findings and recommendations of the steel stock, bars, pipes and tubes, not issues, concerns, and discussion topics examiner’s report, and finds that the incorporated into merchandise to the Advisory Committee. The ‘‘open requirements of the FTZ Act and the otherwise classified, and which is used forum’’ is scheduled as part of agenda Board’s regulations are satisfied, and in manufacturing, shall be subject to item (2) for this meeting. Interested that approval of the application would Customs duties in accordance with speakers will need to register prior to be in the public interest; applicable law, unless the Executive Now, therefore, the Board hereby the open forum period. The committee Secretary determines that the same item grants authority for subzone status at the welcomes the public’s written is not then being produced by a natural vitamin E manufacturing comments on committee business at any domestic steel mill; and facilities of Archer Daniels Midland, time. 2. In addition to the annual report, Inc., located in Decatur, Illinois FOR FURTHER INFORMATION CONTACT: Bollinger Shipyards Lockport, LLC, (Subzone 245A), at the locations shall advise the Board’s Executive Direct questions regarding this meeting described in the application, subject to to Tom Knappenberger, Public Affairs Secretary (§ 400.28(a)(3)) as to the FTZ Act and the Board’s regulations, significant new contracts with Officer, at (360) 891–5005, or write including § 400.28. Forest Headquarters Office, Gifford appropriate information concerning Pinchot National Forest, 10600 NE 51st Signed at Washington, DC, this 29th day of foreign purchases otherwise dutiable, so Circle, Vancouver, WA 98682. July, 2002. that the Board may consider whether Faryar Shirzad, any foreign dutiable items are being Dated: July 26, 2002. Assistant Secretary for Import imported for manufacturing in the Claire Lavendel, Administration, Alternate Chairman, Foreign- subzone primarily because of subzone Forest Supervisor. Trade Zones Board. status and whether the Board should [FR Doc. 02–20030 Filed 8–7–02; 8:45 am] [FR Doc. 02–20072 Filed 8–7–02; 8:45 am] consider requiring Customs duties to be BILLING CODE 3410–11–M BILLING CODE 3510–DS–P paid on such items.
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Signed at Washington, DC, this 29th day of DEPARTMENT OF COMMERCE DEPARTMENT OF COMMERCE July 2002. Faryar Shirzad, Foreign-Trade Zones Board International Trade Administration Assistant Secretary for Import [A–570–007] Administration, Alternate Chairman, Foreign- [Order No. 1240] Trade Zones Board. Barium Chloride From the People’s [FR Doc. 02–20075 Filed 8–7–02; 8:45 am] Expansion of Foreign-Trade Zone 57, Republic of China: Extension of Time BILLING CODE 3510–DS–P Charlotte, NC, Area Limit for Preliminary Results of Antidumping Duty Administrative Pursuant to its authority under the Review DEPARTMENT OF COMMERCE Foreign-Trade Zones Act of June 18, AGENCY: Import Administration, 1934, as amended (19 U.S.C. 81a–81u), International Trade Administration, Foreign-Trade Zones Board the Foreign-Trade Zones Board (the Department of Commerce. Board) adopts the following Order: EFFECTIVE DATE: August 8, 2002. [Order No. 1239] Whereas, the North Carolina FOR FURTHER INFORMATION CONTACT: John Department of Commerce, grantee of Conniff or Howard Smith, AD/CVD Approval for Expanded Manufacturing Foreign-Trade Zone 57, submitted an Authority (Industrial Diesel Engines, Enforcement, Office 4, Group II, Import application to the Board for authority to Administration, International Trade Parts of Industrial Robots), Within expand FTZ status to eight additional Foreign-Trade Subzone 15E, Kawasaki Administration, U.S. Department of sites (2,045 acres) in the Counties of Commerce, 14th Street and Constitution Motors Manufacturing Corp., U.S.A., Burke, Caldwell, Alexander and Avenue, NW., Washington, DC 20230; Maryville, MO Catawba in North Carolina (Sites 4–11), telephone (202) 482–1009 or (202) 482– adjacent to the Charlotte Customs port 5193, respectively. Pursuant to its authority under the of entry (FTZ Docket 30–2001; filed Foreign-Trade Zones Act of June 18, SUPPLEMENTARY INFORMATION: 7/3/01; amended 4/29/02); 1934, as amended (19 U.S.C. 81a-81u), TIME LIMITS: Whereas, notice inviting public the Foreign-Trade Zones Board (the Statutory Time Limits Board) adopts the following Order: comment was given in the Federal Register (66 FR 36250, 7/11/01) and the Section 751(a)(3)(A) of the Tariff Act Whereas, the Greater Kansas City application, as amended, has been of 1930, as amended (the Act), requires Foreign-Trade Zone, Inc., grantee of FTZ processed pursuant to the FTZ Act and the Department of Commerce (the 15, has requested authority on behalf of the Board’s regulations; and, Department) to make a preliminary Kawasaki Motors Manufacturing Corp., Whereas, the Board adopts the determination within 245 days after the U.S.A. (KMM), operator of FTZ Subzone last day of the anniversary month of an findings and recommendations of the 15E, located in Maryville, Missouri, to order or finding for which a review is examiner’s report, and finds that the expand the scope of FTZ authority to requested and a final determination include the manufacture of small, requirements of the FTZ Act and within 120 days after the date on which industrial diesel engines and industrial Board’s regulations are satisfied, and the preliminary determination is robot components under FTZ that the proposal, as amended, is in the published. However, if it is not procedures (FTZ Doc. 5–2000, filed 3– public interest; practicable to complete the review 1–2000); Now, therefore, the Board hereby within these time periods, section Whereas, notice inviting public orders: 751(a)(3)(A) of the Act allows the comment was given in the Federal The application, as amended, to Department to extend the 245–day time Register (65 FR 12969, 3–10–2000); expand FTZ 57 is approved, subject to limit for the preliminary determination the Act and the Board’s regulations, to a maximum of 365 days and the time Whereas, the Board adopts the limit for the final determination to 180 including Section 400.28, and subject to findings and recommendations of the days (or 300 days if the Department the Board’s standard 2,000-acre examiner’s report, and finds that the does not extend the time limit for the requirements of the FTZ Act and the activation limit for the overall zone preliminary determination) from the Board’s regulations are satisfied, and project, and further subject to a sunset date of publication of the preliminary that approval of the application is in the provision that would terminate determination. public interest; authority for the proposed sites on September 1, 2009, unless the sites are Background Now therefore, the Board hereby activated under FTZ procedures. On November 21, 2001, the approves the request subject to the FTZ Department published a notice of Act and the Board’s regulations, Signed at Washington, DC, this 29th day of July 2002. initiation of administrative review of the including Section 400.28. antidumping duty order on barium Faryar Shirzad, Signed at Washington, DC, this 29th day of chloride from the People’s Republic of July 2002. Assistant Secretary of Commerce for Import China, covering the period October 1, Administration, Alternate Chairman, Foreign- Faryar Shirzad, 2000, through September 30, 2001. See Trade Zones Board. Initiation of Antidumping and Assistant Secretary of Commerce for Import [FR Doc. 02–20074 Filed 8–7–02; 8:45 am] Administration, Alternate Chairman, Foreign- Countervailing Duty Administrative Trade Zones Board. BILLING CODE 3510–DS–P Reviews and Request for Revocation in [FR Doc. 02–20073 Filed 8–7–02; 8:45 am] Part, 66 FR 58432. On July 3, 2002, the Department published a notice BILLING CODE 3510–DS–P extending the time limits for completing the preliminary results of its review until August 3, 2002. See Barium
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Chloride From the People’s Republic of to the provisions effective January 1, DC 20230; telephone: (202) 482–2243, China: Extension of Time Limit for 1995, the effective date of the (202) 482–0162, respectively. Preliminary Results of Antidumping amendments made to the Act by the SUPPLEMENTARY INFORMATION: Duty Administrative Review 67 FR Uruguay Round Agreements Act. 45088 (July 3, 2002). Initiation Of Investigation Background Extension of Time Limit for Preliminary The Applicable Statute and Regulations The Government of Ukraine and Results of Review Unless otherwise indicated, all Krivorozhstal, the sole respondent in citations to the statute are references to We determine that it is not practicable the instant proceeding, have requested the Tariff Act of 1930 (‘‘Act’’), as to complete the preliminary results of revocation of Ukraine’s non-market amended. In addition, unless otherwise this review within the current time economy (‘‘NME’’) status. In response to indicated, all citations to the limit. Therefore, the Department is the request, the Department has invited Department of Commerce’s extending the time limit for completion and received public comments and (‘‘Department’’) regulations are to 19 of the preliminary results until no later rebuttal comments regarding Ukranian CFR Part 351 (2002). than October 31, 2002. See Decision economic reforms. See 67 FR 19394 Memorandum from Holly A. Kuga to (April 19, 2002). In addition, the The Petition Bernard T. Carreau, dated concurrently Department has compiled and analyzed with this notice, which is on file in the On July 11, 2002, the Department information regarding Ukrainian received a petition on imports of Central Records Unit, Room B–099 of economic reforms from independent the Department’s main building. We saccharin from the People’s Republic of third-party sources that we commonly China (‘‘PRC’’) filed in proper form by intend to issue the final results no later cite for our decisions in this area. than 120 days after the publication of PMC Specialities Group, Inc., the preliminary results notice. Decision Deferral hereinafter referred to as ‘‘the Petitioner.’’ On July 23, 2002, the This extension is in accordance with The Department has developed a great Department requested clarification of section 751(a)(3)(A) of the Act. deal of information regarding Ukraine’s certain areas of the petition and Dated: August 2, 2002. economic reforms. The information received a response on July 26, 2002. Bernard T. Carreau, raises a broad range of issues that In accordance with section 732(b) of require additional time to evaluate Deputy Assistant Secretary for Import the Act, the Petitioner alleges that Administration, Group II. before the Department makes a decision imports of saccharin from the PRC are on this matter. The Department is [FR Doc. 02–20080 Filed 8–7–02; 8:45 am] being, or are likely to be, sold in the therefore deferring its decision BILLING CODE 3510–DS–S United States at less than fair value regarding Ukraine’s non-market within the meaning of section 731 of the economy status beyond the instant Act, and that such imports are DEPARTMENT OF COMMERCE investigation’s final determination date materially injuring, and threatening of August 23, 2002. Since a country’s material injury to, an industry in the International Trade Administration NME status remains in effect until United States. revoked, Ukraine will continue to be [A–823–812] The Petitioner is a saccharin producer treated as a NME country for purpose of and accounts for over fifty percent of Antidumping Duty Investigation of the instant final determination (see domestic production of saccharin, as Carbon and Certain Alloy Steel Wire section 771(18)(C)(i) of the Act). defined in the petition. Therefore, the Rod From Ukraine. August 5, 2002. Department finds that the Petitioner has AGENCY: Import Administration, Faryar Shirzad, standing to file the petition because it is International Trade Administration, Assistant Secretary for Import an interested party as defined under Department of Commerce. Administration. section 771(9)(C) of the Act, with ACTION: Notice to defer a decision [FR Doc. 02–20238 Filed 8–7–02; 8:45 am] respect to the merchandise subject to regarding Ukraine’s non-market BILLING CODE 3510–DS–P this investigation. The Petitioner has economy status. demonstrated sufficient industry support with respect to the antidumping SUMMARY: The Department of Commerce DEPARTMENT OF COMMERCE duty investigation, which it is is deferring its decision regarding requesting the Department to initiate Ukraine’s non-market economy status International Trade Administration (see ‘‘Determination of Industry Support beyond the instant investigation’s final for the Petition’’ below). determination date of August 23, 2002, [A–570–878] as provided in section 771(18)(C)(ii) of Scope of Investigation the Tariff Act of 1930, as amended. Initiation of Antidumping Duty The product covered by this DATE: August 8, 2002. Investigation: Saccharin from the investigation is saccharin. Saccharin is FOR FURTHER INFORMATION CONTACT: People’s Republic of China a non-nutritive sweetener used in George Smolik, Import Administration, beverages and foods, personal care AGENCY: Import Administration, International Trade Administration, products such as toothpaste, table top International Trade Administration, U.S. Department of Commerce, 14th sweeteners, and animal feeds. It is also Department of Commerce. Street and Constitution Avenue, NW., used in metalworking fluids. There are Washington, DC 20230; telephone: (202) EFFECTIVE DATE: August 8, 2002. four primary chemical compositions of 482–1843. FOR FURTHER INFORMATION CONTACT: saccharin: (1) sodium saccharin SUPPLEMENTARY INFORMATION: Javier Barrientos or Sally Gannon, (American Chemical Society Chemical Import Administration, International Abstract Service (‘‘CAS’’) Registry ι128– The Applicable Statute Trade Administration, U.S. Department 44–9); (2) calcium saccharin (CAS All citations to the Tariff Act of 1930, of Commerce, 14th Street and Registry ι6485–34–3); (3) acid (or as amended (‘‘the Act’’), are references Constitution Avenue, NW., Washington, insoluble) saccharin (CAS Registry ι81–
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07–2); and (4) research grade saccharin. Department to look to producers who Accordingly, the Department Most of the U.S.-produced and imported produce the domestic like product. The determines that this petition is filed on grades of saccharin from the PRC are International Trade Commission behalf of the domestic industry within sodium and calcium saccharin, which (‘‘ITC’’), which is responsible for the meaning of section 732(b)(1) of the are available in granular, powder, spray- determining whether ‘‘the domestic Act. dried powder, and liquid forms. industry’’ has been injured, must also Export Price and Normal Value The merchandise subject to this determine what constitutes a domestic investigation is classifiable under like product in order to define the The following is a description of the subheading 2925.11.00 of the industry. While the Department and the allegation of sales at less than fair value Harmonized Tariff Schedule of the ITC must apply the same statutory (‘‘LTFV’’) upon which the Department United States (HTSUS) and includes all definition regarding the domestic like based its decision to initiate this types of saccharin imported under this product (see section 771(10) of the Act), investigation. The sources of data for the HTSUS subheading, including research they do so for different purposes and deductions and adjustments relating to and specialized grades.1 Although the pursuant to separate and distinct U.S. price and factors of production are HTSUS subheading is provided for authority. In addition, the Department’s also discussed in the Initiation convenience and Customs purposes, the determination is subject to limitations of Checklist. Should the need arise to use Department’s written description of the time and information. Although this any of this information as facts available scope of this investigation remains may result in different definitions of the under section 776 of the Act in our dispositive. domestic like product, such differences preliminary or final determination, we During our review of the petitions, we do not render the decision of either may reexamine the information and discussed the scope with the petitioner agency contrary to law.2 revise the margin calculations, if to ensure that it accurately reflects the Section 771(10) of the Act defines the appropriate. The anticipated period of product for which the domestic industry domestic like product as ‘‘a product investigation (‘‘POI’’) is January 1, 2002 is seeking relief. Moreover, as discussed which is like, or in the absence of like, through June 30, 2002. in the preamble to the Department’s most similar in characteristics and uses The Petitioner identified five PRC regulations (62 FR 27323), we are setting with, the article subject to an companies as producers and exporters aside a period for parties to raise issues investigation under this subtitle.’’ Thus, of saccharin in the PRC. See Initiation regarding product coverage. The the reference point from which the Checklist at Attachment I. Department encourages all parties to domestic like product analysis begins is The Petitioner submitted an LTFV submit such comments within 20 ‘‘the article subject to an investigation,’’ analysis for the PRC as a non-market calendar days of the publication of this i.e., the class or kind of merchandise to economy (‘‘NME’’). The Petitioner notice. Comments should be addressed be investigated, which normally will be provided a dumping margin calculation to Import Administration’s Central the scope as defined in the petition. using the Department’s NME Records Unit at Room 1870, U.S. In this case, the domestic like product methodology as required by 19 C.F.R. § Department of Commerce, 14th Street referred to in the petition is the single 351.202(b)(7)(i)(C). and Constitution Avenue, NW., domestic like product defined in the Washington, DC 20230. The period of ‘‘Scope of Investigation’’ section, above. Export Price scope consultations is intended to At this time, the Department has no Petitioner calculated a range of export provide the Department with ample basis on the record to find the petition’s prices using average unit values (AUVs) opportunity to consider all comments definition of the domestic like product of saccharin imports reported by the and consult with parties prior to the to be inaccurate. The Department, U.S. Census Bureau and the price quotes issuance of the preliminary therefore, has adopted the domestic like it obtained, subtracting ocean freight, determinations. product definition set forth in the insurance, brokerage and handling Determination of Industry Support for petition. charges and foreign inland freight, Moreover, the Department has the Petition where appropriate. See Petition at determined that the petition contains Exhibit 6; and Letter from Petitioner to Section 732(b)(1) of the Act requires adequate evidence of industry support; the Department: Response to Petition that a petition be filed on behalf of the therefore, polling was unnecessary. See Clarifications Questions (July 26, 2002) domestic industry. Section 732(c)(4)(A) Import Administration AD Investigation (‘‘Petition Clarifications’’) at Exhibits 1 of the Act provides that a petition meets of Saccharin from the PRC: Initiation and 2, for a detailed calculation of these this requirement if the domestic Checklist, (July 31, 2002) (‘‘Initiation export prices. Petitioner did not producers or workers who support the Checklist’’), at Attachment II (public calculate imputed credit expenses for petition account for: (1) at least 25 version on file in the Central Records PRC sales because the petition bases percent of the total production of the Unit of the Department of Commerce, normal value (‘‘NV’’) on a factors of domestic like product, and (2) more Room B–099). To the best of the production analysis pursuant to section than 50 percent of the production of the Department’s knowledge, the Petitioner 773(c) of the Act. See Initiation domestic like product produced by that supporting the petition represents over Checklist for further information. portion of the industry expressing 50 percent of total production of the support for, or opposition to, the domestic like product. Additionally, no Petitioner argues that, because at least petition. person who would qualify as an one PRC producer of saccharin sells to Section 771(4)(A) of the Act defines interested party pursuant to section an affiliated reseller in the United the ‘‘industry’’ as the producers as a 771(9) (C), (D), (E), (F), or (G) of the Act States, some sales during the period of whole of a domestic like product. has expressed opposition to the petition. investigation (‘‘POI’’) should be Thus, to determine whether the considered constructed export price petition has the requisite industry (‘‘CEP’’) sales.3 See Initiation Checklist. 2 See Algoma Steel Corp. Ltd., v. United States, support, the statute directs the 688 F. Supp. 639, 642-44 (CIT 1988); High Information Content Flat Panel Displays and 3 Petitioner alleges that Suzhou maintains an 1 See Harmonized Tariff Schedule of the United Display Glass from Japan: Final Determination; affiliated reseller, Suzhou-Chem USA, Inc., which States (2002) (Rev. 3), Chapter 29, Section VI at 29- Rescission of Investigation and Partial Dismissal of is located at 17 Appleby Rd., Suite B1 Wellesley, 60. Petition, 56 FR 32376, 32380-81 (July 16, 1991). MA 02482.
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Normal Value producing saccharin. See Initiation We made adjustments to NV for Checklist. packing materials. For further For the normal value (‘‘NV’’) To value electricity, Petitioner information, see the Initiation Checklist. calculation, Petitioner based the factors obtained industrial electricity costs in of production, as defined by section Based on comparisons of EP and CEP India from the 2000–2001 annual report 773(c)(3) of the Act (raw materials, labor to NV, calculated in accordance with of National Peroxide Limited (‘‘National and energy), for saccharin on section 773(c) of the Act, the estimated Peroxide’’), a publicly traded Indian information from PRC producers. See dumping margins for saccharin from the chemical producer. Petitioner maintains Initiation Checklist. PRC range from 116.64 percent to that this information is appropriate for 355.55 percent. The Petitioner selected India as the use as a surrogate value because it surrogate country for purposes of accurately reflects the cost associated Fair Value Comparisons valuing the factors of production. The with an Indian chemical company’s Based on the data provided by the Petitioner argued that, pursuant to purchases of electricity and is the most section 773(c)(4) of the Act, India is an Petitioner, there is reason to believe that contemporaneous pricing data available imports of saccharin from the PRC are appropriate surrogate because it is a to Petitioner. See Initiation Checklist. market-economy country that is at a being, or are likely to be, sold in the To value coal, Petitioner obtained coal United States at less than fair value. comparable level of economic costs in India based on the 1999–2000 development to the PRC and is a financial statement of Hindustan Lever Allegations and Evidence of Material significant producer of comparable Limited (‘‘Hindustan’’), a publicly Injury and Causation merchandise. Based on the information traded Indian chemical producer. This The petition alleges that the U.S. provided by the Petitioner, we believe represents the most contemporaneous industry producing the domestic like that the Petitioner’s use of India as a information available to Petitioner product is being materially injured, and surrogate country is appropriate for because National Peroxide’s more recent is threatened with material injury, by purposes of initiation of this annual report does not contain data reason of the imports of the subject investigation. See Initiation Checklist. regarding purchases of coal. See merchandise sold at LTFV. The In accordance with section 773(c)(4) Initiation Checklist. Petitioner contends that the industry’s of the Act, the Petitioner valued factors Pursuant to 19 C.F.R. §351.408(c)(3), injured condition is demonstrated by: of production, where possible, on the Department calculates and publishes (1) reduced shipments; (2) reduced reasonably available, public, surrogate the surrogate values for labor to be used market share; (3) reduced prices; (4) country data. To value certain raw in non-market economy cases. The declining production and capacity materials, the Petitioner used various Petitioner applied the regression utilization; (5) growing inventories; (6) sources including import statistics from formula published on the Department’s significant operating losses; and, (7) lost India, the periodical Chemical Weekly, website to derive the PRC labor rate that sales. and U.S. Census data. See Initiation would be calculated using the Checklist. Where Indian import Department’s methodology. See The Department assessed the statistics were used, the Department Initiation Checklist. allegations and supporting evidence recalculated the data to exclude NME For factory overhead (‘‘overhead’’), regarding material injury and causation countries and countries determined to selling, general, and administrative and determined that these allegations provide non-industry specific export expenses (‘‘SG&A’’), and profit, are supported by accurate and adequate subsidies. See Final Determination of Petitioner states that its research evidence and meet the statutory Sales at Less Than Fair Value: Certain indicated that several companies requirements for initiation. See Automotive Replacement Glass currently produce saccharin in India. Initiation Checklist at Attachment IV. Windshields from the People’s Republic However, to the best of Petitioner’s Initiation of Antidumping Investigation of China, 67 FR 6482 (February 12, knowledge, all of these companies are 2002) and accompanying Issues and privately owned. Consequently, Based upon our examination of the Decision Memorandum. For inputs financial statements for an Indian petition on saccharin from the PRC, we valued in Indian Rupees and not producer of saccharin were not find that the petition meets the contemporaneous with the POI, the reasonably available to Petitioner. requirements of section 732 of the Act. Petitioner used information from the Overhead was, therefore, calculated Therefore, we are initiating an wholesale price indices (‘‘WPI’’) in based on the most recent financial antidumping duty investigation to India, as published by the International statements of two Indian chemical determine whether imports of saccharin Monetary Fund, to determine the producers: Calibre Chemicals Pvt. from the PRC are being, or are likely to inflation adjustment. Limited (‘‘Calibre’’) and National be, sold in the United States at LTFV. The Petitioner explained that, as a Peroxide. Petitioner states that data from Unless postponed, we will make our result of the saccharin production the 2000 annual report of Calibre was preliminary determination no later than process, certain byproducts are created used by the Department in its recent 140 days after the date of this initiation. that can in turn be sold by the producer preliminary and final results of the Distribution of Copies of the Petition to offset the cost of production. annual administrative review of Petitioner calculated the quantity of Persulfates from the PRC, and that the In accordance with section byproducts released per pound of 2000–2001 annual report for National 732(b)(3)(A) of the Act, a copy of the saccharin production, and identified Peroxide has been placed on the record public version of the petition has been Indian prices to value sales of these of the current annual review of the provided to the government byproducts. The quantity of byproduct dumping order in the same case. The representatives of the PRC. We will was then multiplied by the Indian price overhead, SG&A, and profit ratios for attempt to provide a copy of the public to determine the total amount of each company were averaged to obtain version of the petition to each exporter byproduct offset, and subtracted this the respective surrogate values used. named in the petition, as appropriate, amount from the total variable cost of See Initiation Checklist. pursuant to 19 CFR 351.203(c)(2).
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International Trade Commission the U.S. Customs Service (Customs requested that the Department conduct Notification Service) to assess antidumping duties an administrative review of its sales and We have notified the ITC of our based on the difference between the partially revoke the order with respect initiation, as required by section 732(d) export price (EP) or constructed export to Rima pursuant to 19 CFR 351.222. On July 31, 2001, petitioners of the Act. price (CEP) and NV. We invite interested parties to comment on the requested that the Department conduct Preliminary Determination by the ITC preliminary results. Parties who submit an administrative review of sales made The ITC will preliminarily determine, comments in this proceeding should by CBCC, Minasligas and Rima. On no later than August 25, 2002, whether also submit with the argument: (1) a August 20, 2001, in accordance with 19 there is a reasonable indication that statement of the issue(s), and (2) a brief CFR 351.221(c)(1)(i), the Department imports of saccharin from the PRC are summary of the argument (not to exceed published in the Federal Register a materially injuring, or threatening five pages). Further, we would notice of initiation of this antidumping material injury to, a U.S. industry. A appreciate it if parties submitting duty administrative review. See negative ITC determination will result written comments would provide the Initiation of Antidumping and Countervailing Duty Administrative in this investigation being terminated; Department with an additional copy of Reviews and Requests for Revocation in otherwise, this investigation will the public version of any such Part, 66 FR 43570 (August 20, 2001). On proceed according to statutory and comments on diskette. September 5, 2001, the Department regulatory time limits. EFFECTIVE DATE: August 8, 2002. issued questionnaires to CBCC, This notice is published pursuant to FOR FURTHER INFORMATION CONTACT: Minasligas and Rima.1 section 777(i) of the Act. Maisha Cryor at (202) 482–5831 or On October 19, 2001, the Department Dated: July 31, 2002. Thomas Futtner at (202) 482–3814, AD/ received responses to sections A Faryar Shirzad, CVD Enforcement, Office IV, Group II, through D of the questionnaire from Assistant Secretary for Import Import Administration, International Minasligas. On October 22, 2001, the Administration. Trade Administration, U.S. Department Department received responses to [FR Doc. 02–20076 Filed 8–7–02; 8:45 am] of Commerce, 14th Street and sections A through C of the Constitution Avenue, N.W., BILLING CODE 3510–DS–S questionnaire from Rima. On November Washington, D.C. 20230. 5, 2001, the Department received SUPPLEMENTARY INFORMATION: responses to sections A through D of the DEPARTMENT OF COMMERCE The Applicable Statute questionnaire from CBCC. On February 22, 2002, the Department initiated a cost International Trade Administration Unless otherwise indicated, all investigation with respect to Rima. On citations to the Tariff Act of 1930, as [A–351–806] March 5, 2002, the Department amended (the Act), are references to the informed Rima that it was required to Silicon Metal From Brazil: Preliminary provisions effective January 1, 1995, the respond to section D of the Results of Antidumping Duty effective date of the amendments made Department’s questionnaire. On March Administrative Review and Notice of to the Act by the Uruguay Round 22, 2002, the Department received a Intent To Revoke Order in Part. Agreements Act (URAA). In addition, response to section D of the unless otherwise indicated, all citations questionnaire from Rima. AGENCY: Import Administration, to the Department’s regulations are to The Department issued supplemental International Trade Administration, the regulations at 19 CFR Part 351 questionnaires to Minasligas on March Department of Commerce. (2001). 29, 2002, April 12, 2002, and June 7, SUMMARY: In response to requests by 2002, and received responses on April Background Elkem Metals Company and Globe 24, 2002, and June 21, 2002. The Metallurgical (collectively petitioners), On July 31, 1991, the Department Department issued supplemental and requests by Companhia Brasileira published in the Federal Register the questionnaires to CBCC on March 29, Carbureto de Calcio (CBCC), Rima antidumping duty order on silicon 2002, and May 24, 2002, and received Industrial S.A. (Rima) and Companhia metal from Brazil. See Antidumping responses on April 19, 2002 and June Ferroligas Minas Gerais - Minasligas Duty Order: Silicon Metal from Brazil 56 12, 2002. The Department issued (Minasligas) (collectively respondents), FR 36135 (July 31, 1991). On July 2, supplemental questionnaires to Rima on the Department of Commerce (the 2001, the Department published in the April 12, 2002, May 15, 2002 and May Department) is conducting an Federal Register a notice of opportunity 17, 2002 and received responses on May administrative review of the to request an administrative review of 3, 2002, and May 31, 2002. antidumping duty order on silicon the antidumping duty order on silicon On March 15, 2002, in accordance metal from Brazil. The period of review metal from Brazil for the period July 1, with section 751(a)(3)(A) of the Act, the (POR) is July 1, 2000 through June 30, 2000, through June 30, 2001. See 2001. Antidumping or Countervailing Duty 1 Section A of the questionnaire requests general We preliminarily determine that one Order, Finding, or Suspended information concerning a company’s corporate structure and business practices, the merchandise respondent sold subject merchandise at Investigation; Opportunity To Request under investigation that it sells, and the manner in less than normal value (NV) during the Administrative Review, 66 FR 34910 which it sells that merchandise in all of its markets. POR. We also intend, preliminarily, to (July 2, 2001). On July 13, 2001, CBCC Section B requests a complete listing of all home revoke the order, in part, with respect to requested that the Department conduct market sales, or, if the home market is not viable, of sales in the most appropriate third-country Rima, because we find that Rima has an administrative review of its sales. On market (this section is not applicable to respondents met all of the requirements for July 13, 2001, Minasligas requested that in non-market economy (NME) cases). Section C revocation, as set forth in section the Department conduct an requests a complete listing of U.S. sales. Section D 351.222(b) of the Department’s administrative review of its sales and requests information on the cost of production (COP) of the foreign like product and the regulations. If these preliminary results partially revoke the order with respect constructed value (CV) of the merchandise under are adopted in our final results of this to Minasligas pursuant to 19 CFR investigation. Section E requests information on administrative review, we will instruct 351.222. On July 31, 2001, Rima further manufacturing.
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Department published in the Federal comparisons to U.S. sales. Further, as in merchandise at less than NV. See 19 Register its notice extending the the preceding segment of this CFR 351.222(e)(1). Upon receipt of such deadline for the preliminary results proceeding, we have continued to treat a request, the Department will consider until July 31, 2002. See Silicon Metal all silicon metal meeting the description the following in determining whether to from Brazil: Extension of Time Limit for of the merchandise under the ‘‘Scope of revoke the order in part: (1) whether the Preliminary Results of Antidumping Review’’ section, above (with the producer or exporter requesting Duty Administrative Review, 67 FR exception of slag and contaminated revocation has sold subject merchandise 11674 (March 15, 2002). The products) as identical products for at not less than NV for a period of at Department is conducting this review in purposes of model-matching. See least three consecutive years; (2) accordance with section 751 of the Act. Silicon Metal From Brazil: Preliminary whether the continued application of Results, Intent To Revoke in Part, Partial the antidumping duty order is otherwise Scope of Review Rescission of Antidumping Duty necessary to offset dumping; and (3) The merchandise covered by this Administrative Review, and Extension whether the producer or exporter administrative review is silicon metal of Time Limits, 64 FR 43161 (August 9, requesting revocation in part has agreed from Brazil containing at least 96.00 1999). Therefore, where there were no in writing to the immediate percent but less than 99.99 percent contemporaneous sales of identical reinstatement of the order, as long as silicon by weight. Also covered by this merchandise in the home market made any exporter or producer is subject to administrative review is silicon metal in the ordinary course of trade to the order, if the Department concludes from Brazil containing between 89.00 compare to U.S. sales, we compared that the exporter or producer, and 96.00 percent silicon by weight but U.S. sales to the CV of the product sold subsequent to revocation, sold the which contains more aluminum than in the U.S. market during the subject merchandise at less than NV. the silicon metal containing at least comparison period, consistent with See 19 CFR 351.222(b)(2); see also 96.00 percent but less than 99.99 section 351.405 of the Department’s Notice of Preliminary Results and percent silicon by weight. Silicon metal regulations. Partial Rescission of Antidumping Duty is currently provided for under Administrative Review and Intent to Verification subheadings 2804.69.10 and 2804.69.50 Revoke Antidumping Duty Order in of the Harmonized Tariff Schedule As provided in section 782(i) of the Part: Certain Pasta From Italy, 66 FR (HTS) as a chemical product, but is Act, we conducted verifications of the 34414, 34420 (June 28, 2001). commonly referred to as a metal. information provided by Rima and Semiconductor grade silicon (silicon CBCC. We used standard verification I. Rima metal containing by weight not less than procedures including examination of On July 31, 2001, Rima submitted a 99.99 percent silicon and provided for relevant sales and financial records, and request, in accordance with 19 CFR in subheading 2804.61.00 of the HTS) is selection of relevant source 351.222, that the Department partially not subject to the order. Although the documentation as exhibits. Our revoke the order covering silicon metal HTS item numbers are provided for verification findings are detailed and on from Brazil with respect to its sales of convenience and for Customs purposes, file in the Central Records Unit, Room subject merchandise. In accordance the written description remains B099 of the Main Commerce building with 19 CFR 351.222(e)(1), the request dispositive. (CRU--Public File). was accompanied by certifications from Rima that, for a consecutive three-year Revocation Fair Value Comparisons period, including this review period, it During the POR, Brazilian The Department ‘‘may revoke, in sold the subject merchandise in respondents made both EP and CEP whole or in part’’ an antidumping duty commercial quantities at not less than sales to the United States. To determine order upon completion of a review NV, and would continue to do so in the whether EP sales of silicon metal by the under section 751 of the Act. While future. Rima also agreed to its Brazilian respondents to the United Congress has not specified the immediate reinstatement in this States were made at less than NV, we procedures that the Department must antidumping order, as long as any firm compared EP to the NV, as described in follow in revoking an order, the is subject to the order, if the Department the Export Price and Normal Value Department has developed a procedure concludes that, subsequent to sections of this notice. To determine for revocation that is described in 19 revocation, Rima sold the subject whether CEP sales of silicon metal by CFR 351.222 (2001). This regulation merchandise at less than NV. We the Brazilian respondents to the United requires, inter alia, that a company received no comments from petitioners States were made at less than NV, we requesting revocation must submit the on Rima’s request for revocation. compared CEP to the NV, as described following: (1) a certification that the Based on the preliminary results in in the Constructed Export Price and company has sold the subject this review and the final results of the Normal Value sections of this notice. In merchandise at not less than NV in the two preceding reviews, Rima has accordance with section 777A(d)(2) of current review period and that the preliminarily demonstrated three the Act, we calculated monthly company will not sell at less than NV consecutive years of sales at not less weighted-average prices for NV and in the future; (2) a certification that the than NV. Further, in determining compared these to individual EP or CEP company sold the subject merchandise whether three years of no dumping transactions, as appropriate. in commercial quantities in each of the establish a sufficient basis to make a three years forming the basis of the revocation determination, the Product Comparisons revocation request; and (3) an agreement Department must be able to determine In accordance with section 771(16) of to reinstatement in the order or that the company continued to the Act, we considered all products suspended investigation, as long as any participate meaningfully in the U.S. produced by the respondents, covered exporter or producer is subject to the market during each of the three years at by the description in the ‘‘Scope of order (or suspended investigation), if issue. See Certain Corrosion-Resistant Review’’ section, above, to be foreign the Secretary concludes that the Carbon Steel Flat Products and Certain like products for purposes of exporter or producer, subsequent to the Cut-to-Length Carbon Steel Plate From determining appropriate product revocation, sold the subject Canada; Final Results of Antidumping
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Duty Administrative Reviews and above and pursuant to 19 CFR 351.222, the continued application of the Determination To Revoke in Part, 64 FR we preliminarily find, for Rima, that the antidumping duty order is otherwise 2173, 2175 (January 13, 1999); see also subject merchandise was sold at not less necessary to offset dumping with Pure Magnesium From Canada; Final than NV for a period of at least three respect to Minasligas. Results of Antidumping Duty consecutive years and that dumping is Sales Reviewed Administrative Review and not likely to resume in the future. Determination Not to Revoke Order in Consequently, the continuing We have continued to employ the Part, 64 FR 12977, 12979 (March 16, imposition of an antidumping duty is approach, adopted in the final results of 1999); and Notice of Final Results of not necessary to offset dumping. the second review of this order, Antidumping Duty Administrative Therefore, if these preliminary results covering the 1992–1993 POR, in Review and Determination Not to are affirmed in our final results, we determining which U.S. sales to review Revoke the Antidumping Order: Brass intend to revoke the order in part with for all companies. If a respondent sold Sheet and Strip from the Netherlands, respect to merchandise produced and subject merchandise, and the importer 65 FR 742 (January 6, 2000). This exported by Rima. In accordance with of that merchandise had at least one practice has been codified in Sec. 19 CFR 351.222(f)(3), we will terminate entry during the POR, we reviewed all 351.222(d)(1) of the Department’s the suspension of liquidation for any sales to that importer during the POR. regulations, which states that, ‘‘before such merchandise entered, or See Silicon Metal from Brazil, Final revoking an order or terminating a withdrawn from warehouse, for Results of Antidumping Duty suspended investigation, the Secretary consumption on or after the first day Administrative Review, 61 FR 46763 must be satisfied that, during each of the after the period under review, and will (September 5, 1996). three (or five) years, there were exports instruct the Customs Service to refund Level of Trade to the United States in commercial any cash deposits. In accordance with section quantities of the subject merchandise to II. Minasligas which a revocation or termination will 773(a)(1)(B) of the Act, to the extent apply.’’ 19 CFR 351.222(d)(1) (emphasis On July 13, 2001, Minasligas practicable, we determine NV based on added); see also 19 CFR submitted a request, in accordance with sales in the comparison market at the 351.222(e)(1)(ii). For purposes of 19 CFR 351.222, that the Department same level of trade (LOT) as the EP or revocation, the Department must be able partially revoke the order covering CEP transaction, as appropriate. The NV to determine that past margins are silicon metal from Brazil with respect to LOT is that of the starting-price sales in reflective of a company’s normal its sales of subject merchandise. In the comparison market or, when NV is commercial activity. Sales during the accordance with 19 CFR 351.222(e)(1), based on CV, that of the sales from POR which, in the aggregate, are of an the request was accompanied by which we derive selling, general and abnormally small quantity do not certifications from Minasligas that for a administrative (SG&A) expenses and provide a reasonable basis for consecutive three-year period, including profit. For EP sales, the U.S. LOT is also determining that the discipline of the this review period, it sold the subject the level of the starting-price sale, order is no longer necessary to offset merchandise in commercial quantities which is usually from the exporter to dumping. at not less than NV, and would continue the importer. For CEP sales, the U.S. With respect to the threshold matter to do so in the future. Minasligas also LOT is the level of the constructed sale of whether Rima made sales of subject agreed to its immediate reinstatement in from the exporter to the importer. merchandise to the United States in this antidumping order, as long as any To determine whether NV sales are at commercial quantities, we find that firm is subject to the order, if the a different LOT than EP or CEP sales, we Rima’s aggregate sales to the United Department concludes that, subsequent examine stages in the marketing process States were made in commercial to revocation, Minasligas sold the and selling functions along the chain of quantities during the past three subject merchandise at less than NV. distribution between the producer and consecutive years. The quantity of After a review of the record, the the unaffiliated or affiliated customer. If Rima’s shipments of subject Department preliminarily determines the comparison-market sales are at a merchandise to the United States has that because Minasligas did not have a different LOT, and the difference affects remained at a sufficiently high level to zero or de minimis dumping margin price comparability, as manifested in a be considered as having been made in during the 1999–2000 POR, the pattern of consistent price differences commercial quantities. Therefore, we preceding review period, it has failed to between the sales on which NV is based can reasonably conclude that the zero make sales of subject merchandise ‘‘at and the comparison market sales at the and de minimis margins calculated for not less than NV for a period of at least LOT of the export transaction, we make Rima in each of the last three three consecutive years,’’ as required by a LOT adjustment under section administrative reviews are reflective of the Department’s regulations. During the 773(a)(7)(A) of the Act. For CEP sales, if the company’s normal commercial 1999–2000 review period, Minasligas’ the NV level is more remote from the experience. See Memorandum from weighted-average dumping margin was factory than the CEP level and there is Maisha Cryor to File, ‘‘Shipments of determined to be 1.23 percent, i.e., not no basis for determining whether the Silicon Metal to the United States by a de minimis rate. See Silicon Metal difference in the levels between NV and Rima,’’ dated July 31, 2002. from Brazil; Final Results of CEP affects price comparability, we Rima also agreed in writing that it Antidumping Duty Administrative adjust NV under section 773(a)(7)(B) of will not sell subject merchandise at less Review, 67 FR 6488 (February 12, 2002) the Act (the CEP offset provision). See than NV in the future and to the (1999–2000 Silicon Metal). Therefore, Notice of Final Determination of Sales immediate reinstatement of the we do not intend to revoke the at Less Than Fair Value: Certain Cut-to- antidumping order, as long as any antidumping duty order with respect to Length Carbon Steel Plate from South exporter or producer is subject to the Minasligas. Additionally, because one of Africa, 62 FR 61731 (November 19, order, if the Department concludes that, the requirements to qualify for 1997). subsequent to the partial revocation, revocation has not been met, the In determining whether separate Rima has sold the subject merchandise Department has not addressed the issues LOTs actually existed in the home and at less than NV. Thus, in light of the of commercial quantities and whether U.S. markets for each respondent, we
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examined whether the respondent’s determined that essentially the same this POR does not establish that at the sales involved different marketing stages services were provided for both markets. time of the sales by CBCC to the (or their equivalent) based on the The selling functions in both markets unaffiliated trading companies, CBCC channel of distribution, customer were minimal in nature and limited to had or should have had knowledge that categories, and selling functions (or arranging for freight and delivery. this merchandise would ultimately be services offered) to each customer or Therefore, based upon this information, purchased by Dow. Therefore, for the customer category, in both markets. we have preliminarily determined that purposes of these preliminary results, for Rima, the LOT for all EP sales is the we have continued to treat CBCC’s sales I. CBCC same as that in the home market. to unaffiliated trading companies as EP CBCC reported home market sales Accordingly, because we find the U.S. sales. through one channel of distribution to sales and home market sales to be at the We made deductions from the starting three unaffiliated customer categories same LOT, no LOT adjustment under price for movement expenses in (i.e., direct sales to traders, original section 773(a)(7)(A) of the Act is accordance with section 772(c) of the equipment manufacturers and silicon warranted for Rima. Act. Movement expenses included, metal producers). CBCC reported both where appropriate, foreign inland III. Minasligas EP and CEP sales in the U.S. market. For freight, brokerage and handling, EP sales, CBCC reported one customer Minasligas reported home market international freight, insurance, U.S. category and one channel of distribution sales through one channel of duties and U.S. warehousing. For (i.e., direct sales to unaffiliated trading distribution to two unaffiliated Minasligas, in accordance with section companies). For CEP sales, CBCC customer categories (i.e., direct sales to 772(c)(1)(B) of the Act, we increased EP reported one customer category and one domestic retailers and original by duty drawback. We made company- channel of distribution (i.e., direct sales equipment manufacturers). In the U.S. specific adjustments to reported to original equipment manufacturers). In market, Minasligas reported EP sales expenses as follows: its response, CBCC stated that it through one channel of distribution to performs the same type of services for one unaffiliated customer category (i.e., I. Minasligas home market customers as it does for its direct sales to trading companies). In its We recalculated Minasligas’ imputed foreign market customers. For this response, Minasligas stated that it U.S. credit expense using the date of reason, CBCC has not requested a LOT performs the same type of services for payment by the U.S. customer to the adjustment to NV for comparison to its home market customers as it does for its bank as the date of payment. This EP and CEP sales. foreign market customers. For this adjustment is consistent with our past Because of the similarity of the selling reason, Minasligas has not requested a practice concerning the calculation of functions involved in the EP and CEP LOT adjustment. imputed U.S. credit expense in this sales, we found there is only one LOT In analyzing Minasligas’ selling proceeding. See 1999–2000 Silicon in the U.S. market. Moreover, in activities for the home and U.S. markets, Metal, 67 FR 6488 (February 12, 2002) analyzing CBCC’s selling activities in we determined that essentially the same and accompanying Decision both the home and U.S. markets, we services were provided for both markets. Memorandum at Comment 2. We determined that essentially the same The selling functions in both markets revised Minasligas’ reported duty services were provided for both markets. were minimal in nature and limited to drawback adjustment. See Minasligas’ The selling functions in both markets arranging for freight and delivery. Preliminary Results Calculation were minimal in nature and limited to Therefore, based upon this information, Memorandum, dated July 31, 2002. arranging for freight and delivery. we have preliminarily determined that Therefore, based upon this information, for Minasligas, the LOT for all EP sales II. Rima we have preliminarily determined that is the same as that in the home market. We recalculated Rima’s U.S. credit for CBCC, the LOT for all U.S. sales is Accordingly, because we find the U.S. expense using the date of shipment from the same as that in the home market. sales and home market sales to be at the the factory to the port as the date of Consequently, because we find the U.S. same LOT, no LOT adjustment under shipment. See Rima’s Preliminary and home market sales to be at the same section 773(a)(7)(A) of the Act is Results Calculation Memorandum, LOT, no LOT adjustment under section warranted for Minasligas. dated July 31, 2002. 773(a)(7) of the Act is warranted for Export Price Constructed Export Price CBCC. For Rima, Minasligas and CBCC In its November 5, 2001, response, II. Rima (where appropriate) we used the CBCC reported sales to its U.S. affiliate, Rima reported home market sales Department’s EP methodology, in Dow as constructed export price (CEP) through one channel of distribution to accordance with section 772(a) of the sales. CBCC also reported that Dow one unaffiliated customer category (i.e., Act, because the respondents sold the further manufactured the purchased direct sales to original equipment subject merchandise to unaffiliated silicon metal into a multitude of other manufacturers). In the U.S. market, purchasers in the United States prior to products, mostly chemicals, and sold Rima reported EP sales through one importation and because the these products in the United States. channel of distribution to one Department’s CEP methodology was not Therefore, CBCC requested that the unaffiliated customer category (i.e., otherwise warranted. CBCC reported Department apply section 772(e) of the direct sales to original equipment sales to unaffiliated trading companies Act to the further manufactured sales. manufacturers). In its response, Rima as EP sales in its November 25, 2001, Where appropriate, in accordance stated that it performs the same type of response. However, in a subsequent with section 772(d)(2) of the Act, the services for home market customers as May 2, 2002, submission, CBCC stated Department deducts from CEP the cost it does for its foreign market customers. that all of its sales to unaffiliated trading of any further manufacture or assembly For this reason, Rima has not requested companies were ultimately purchased in the United States, except where the a LOT adjustment. by Dow Corning Corporation, an affiliate special rule, provided in section 772(e) In analyzing Rima’s selling activities of CBCC. Nevertheless, we have of the Act, is applied. Section 772(e) of for the home and U.S. markets, we determined that the record evidence in the Act provides that, where the subject
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merchandise is imported by an affiliated price paid to CBCC by Dow. See methodology provided the Department person and the value added in the Memorandum on Whether to Determine with a reasonable basis to believe or United States by the affiliated person is the Constructed Export Price for Certain suspect that sales in the home market likely to exceed substantially the value Further-Manufactured Sales Sold by had been made at prices below the COP of the subject merchandise, the Companhia Brasileira Carbureto de by Rima. Accordingly, pursuant to Department has the discretion to Calcio in the United States During the section 773(b)(1) of the Act, we initiated determine the CEP using alternative Period of Review Under Section 772(e) an investigation to determine whether methods. of the Act (Special Rule Memo), dated Rima’s sales of silicon metal were made The alternative methods for July 31, 2002. at prices below the COP during the POR. establishing constructed export price See Memorandum Regarding the are: (1) the price of identical subject Normal Value Analysis of Petitioners’ Allegation of merchandise sold by the exporter or 1. Viability Sales Below the COP for Rima, dated producer to an unaffiliated person; or February 22, 2002. (2) the price of other subject In order to determine whether there We did not initiate a cost merchandise sold by the exporter or was a sufficient volume of sales in the investigation with respect to Minasligas producer to an unaffiliated person. The home market to serve as a viable basis because its home market sales were not Statement of Administrative Action for calculating NV (i.e., the aggregate disregarded during the most recently (SAA) notes the following with respect volume of home market sales of the completed segment of this proceeding to these alternatives: foreign like product is greater than five prior to the initiation of this review There is no hierarchy between these percent of the aggregate volume of U.S. (which was the 1998–1999 POR at the alternative methods of establishing the sales), we compared each respondent’s time this instant review was initiated) export price. If there is not a sufficient volume of home market sales of the and petitioners did not file a sales- quantity of sales under either of these foreign like product to the volume of its below-cost allegation. See 1998–1999 alternatives to provide a reasonable U.S. sales of subject merchandise, in Silicon Metal. basis for comparison, or if the accordance with section 773(a)(1) of the Department determines that neither of Act. Since each respondent’s aggregate A. Calculation of COP these alternatives is appropriate, it may volume of home market sales of the In accordance with section 773(b)(3) use any other reasonable method to foreign like product was greater than of the Act, we calculated company- and determine CEP, provided that it five percent of its aggregate volume of product-specific COPs based on the sum supplies the interested parties with a U.S. sales for the subject merchandise, of the respondent’s cost of materials and description of the method chosen and we determined that the home market fabrication for the foreign like product, an explanation of the basis for its provides a viable basis for calculating plus amounts for home market SG&A selection. Such a method may be based NV for each respondent. Therefore, expenses, including interest expenses, upon the price paid to the exporter or pursuant to section 773(a)(1)(B) of the and packing costs. producer by the affiliated person for the Act, we based NV on home market sales. We relied on the COP information submitted by each respondent in its subject merchandise, if the Department 2. Cost of Production Analysis determines that such price is questionnaire responses, except for the appropriate. In the review segment of this following adjustments. For Rima and To determine whether the value proceeding that was most recently CBCC, we compared home market added is likely to exceed substantially completed prior to initiating this prices and COP exclusive of value the value of the subject merchandise, we review, we disregarded home market added taxes (VAT); we did not allow estimated the value added based on the sales found to be below the cost of Rima and CBCC to reduce its COP for difference between the averages of the production (COP) for CBCC. See Silicon the amount paid with VAT credits. See prices charged to the first unaffiliated Metal from Brazil; Preliminary Results Final Results of Antidumping Duty purchaser for one form of the of Antidumping Duty Administrative Administrative Review: Silicon Metal merchandise sold in the United States Review and Notice of Intent Not to from Brazil, 65 FR 7497, 7499 (February and the averages of the prices paid for Revoke Order in Part, 65 FR 47960, 15, 2000); see also Silicon Metal from the subject merchandise by the affiliated 47966 (August 4, 2000) aff’d Silicon Brazil: Preliminary Results of person. See 19 C.F.R. 351.402(2). Based Metal from Brazil; Final Results of Antidumping Duty Administrative on this analysis, and the information on Antidumping Duty Administrative Review and Notice of Intent Not To the record, we determined that the Review and Determination Not To Revoke Order in Part, 65 FR 47960, estimated value added in the United Revoke in Part, 66 FR 11256 (February 47966 (August 4, 2000). In addition, for States by Dow accounted for at least 65 23, 2001) (1998–1999 Silicon Metal). Rima, we corrected the calculation of its percent of the price charged to the first Therefore, in accordance with section COP. In its section D questionnaire unaffiliated customer for the 773(b)(2)(A)(ii) of the Act, the response, Rima mistakenly doubled the merchandise as sold in the United Department has reasonable grounds to value of its total cost of manufacturing States. Therefore, we determined that believe or suspect that sales of the (TOTCOM) prior to including TOTCOM the value added is likely to exceed foreign like product under consideration in the calculation of its COP. See Rima’s substantially the value of the subject for the determination of NV in this Preliminary Results Calculation merchandise. As a consequence, the review may have been made by CBCC at Memorandum, dated July 31, 2002. Department has relied upon an prices below the COP. alternative methodology to calculate On November 13, 2001, petitioners in B. Test of Home Market Sales Prices for CBCC’s margin for these sales. However, this proceeding filed a timely sales- CBCC and Rima we found that there is not a sufficient below-cost allegation with respect to For CBCC and Rima, we compared the quantity of sales to unaffiliated parties Rima. In the case of Rima, petitioners’ per-unit adjusted weighted-average COP to use such sales as an alternative allegation was based on Rima’s figures for the POR to home market sale method of establishing export price. antidumping duty questionnaire prices of the foreign like product, as Therefore, as the alternative responses. Upon review of the required under section 773(b) of the Act, methodology, the Department used the allegation, we found that petitioners’ in order to determine whether these
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sales were made at prices below the the VAT from the gross home market defines invoicing under Article ‘‘Third’’ COP. On a product-specific basis, we price, consistent with past practice. See to be the gross revenue ‘‘originating compared the COP to the home market Silicon Metal from Brazil: Preliminary from the sale of goods.’’ Id. prices, less any applicable movement Results of Antidumping Administrative Section 351.102(b) of the charges, rebates, and discounts. In Review and Notice of Intent Not to Department’s regulations defines an determining whether to disregard home Revoke Order in Part, 66 FR 40980, indirect tax as a ‘‘sales, excise, turnover, market sales made at prices below the 40986 (August 6, 2001; aff’d 1999–2000 value added, franchise, stamp, transfer, COP, we examined whether: (1) within Silicon Metal from Brazil. inventory, or equipment tax, border tax, an extended period of time, such sales Pursuant to section 773(a)(6)(B)(iii) of or any other tax other than a direct tax were made in substantial quantities; and the Act, we deducted taxes imposed or an import charge.’’ As noted above in (2) such sales were made at prices directly on sales of the foreign like the discussion of the PIS and COFINS which permitted the recovery of all product (VAT, PIS, and COFINS taxes), legislation, these taxes are derived from costs within a reasonable period of time. but not collected on the subject the ‘‘monthly invoicing’’ or ‘‘invoicing’’ merchandise. We note that, in past cases originating from the sale of goods and C. Results of COP Test for CBCC and involving Brazil, we have determined services. Therefore, we preliminarily Rima that since PIS and COFINS taxes are find that the manner in which these Pursuant to section 773(b)(2)(C), levied on total revenues, except for taxes are assessed is characteristic of an where less than 20 percent of a export revenues, the taxes are direct indirect tax, which is directly imposed respondent’s sales of a given product taxes (akin to taxes on profits or wages) on sales of the foreign like product and were at prices below the COP, we did and, as such, should not be deducted should be subtracted from NV. not disregard any below-cost sales of from NV. See Certain Cut-To-Length To account for differences in that product because we determined Carbon Steel Plate From Brazil: Final circumstances of sale between the home that the below-cost sales were not made Results of Antidumping Duty market and the United States, where in ‘‘substantial quantities.’’ Where 20 Administrative Review, 63 FR 12744, appropriate, we adjusted home market percent or more of the respondent’s 12746 (March 16, 1998) (Plate from prices by deducting home market direct sales of a given product during the POR Brazil). In Plate from Brazil, the selling expenses (including credit) and were made at prices below the COP, we Department determined that since these adding an amount for late payment fees determined such sales to have been taxes are not indirect taxes, there is no earned on home market sales, where made in ‘‘substantial quantities’’ within basis on which to deduct them in the appropriate. Specifically, for Minasligas, an extended period of time in calculation of NV, according to section we recalculated Minasligas’ home accordance with section 773(b)(2)(B) of 773(a)(6)(B)(iii) of the Act. Id. However, market imputed credit expense using a the Act. In such cases, because we in a recent countervailing duty surrogate interest rate and the period of compared prices to POR-average costs, preliminary determination regarding time between the date of shipment and we also determined that such sales were Certain Cold-Rolled Carbon Steel Flat the date of payment. Regarding not made at prices which would permit Products from Brazil, the Department Minasligas’ reported interest rate, the recovery of all costs within a preliminarily concluded that the PIS Minasligas did not demonstrate that it reasonable period of time, in accordance and COFINS taxes are indirect. See incurred short-term borrowings during with section 773(b)(2)(D) of the Act. Notice of Preliminary Affirmative the POR at the rate it reported in its We found that no respondent made Countervailing Duty Determination and questionnaire response. Therefore, as in comparison-market sales at prices below Alignment with Final Antidumping the most recently completed segment of the COP within an extended period of Duty Determinations: Certain Cold- this proceeding, we have denied time in substantial quantities. Therefore, Rolled Carbon Steel Flat Products from Minasligas reported credit expense and we did not exclude any sales from our Brazil, 67 FR 9652, 9659 (March 4, have used the Special Clearance and analysis in accordance with section 2002). Custody System (SELIC), as the 773(b)(1) of the Act. In reaching this decision, we note that surrogate interest rate to calculate the in the Notice of Preliminary expense. See 1999–2000 Silicon Metal Price-to-Price Comparisons Determination of Sales at Less Than from Brazil, 67 FR 6488 (February 12, For those comparison products for Fair Value and Postponement of Final 2002) and accompanying Decision which there were sales at prices above Determination: Carbon and Certain Memorandum at Comment 1. See also the COP, we based the respondents’ NV Alloy Steel Wire Rod From Brazil (Steel Minasligas′ Preliminary Results on the prices at which the foreign like Wire Rod from Brazil), the Department Calculation Memorandum, dated July product was first sold to unaffiliated examined the legislation underlying the 31, 2002. parties for consumption in Brazil, in the PIS and COFINS in order to determine Specifically, for CBCC, we usual commercial quantities, in the how Brazil assesses these taxes. 67 FR recalculated CBCC’s home market ordinary course of trade in accordance 18586, 18590 (April 16, 2002). In Steel imputed credit expense using a with section 773(a)(1)(B)(i) of the Act. Wire Rod from Brazil the Department surrogate interest rate. We reviewed We based NV on sales at found the following: documentation at verification pertaining the same LOT as the U.S. transactions. Article 2 of the COFINS legislation to CBCC’s short-term borrowing activity For LOT analysis, please see the Level states that ‘‘corporate bodies’’ will during the POR and found the activity of Trade section above. In accordance contribute two percent, ‘‘charged against to be outside the ‘‘normal course of with section 773(a)(6) of the Act, we monthly billings, that is, gross revenue trade.’’ In particular, at the verification made adjustments to home market price, derived from the sale of goods and of CBCC, conducted June 13, 2002, where appropriate for inland freight, services of any nature.’’ Likewise, through June 14, 2002, CBCC brokerage and handling charges, and Article ‘‘Second’’ of the PIS tax law characterized its own short-term rebates. Where home market prices were (also found in the PIS and COFINS borrowing activity during this POR as reported exclusive of VAT we made no legislation) provides similar language rare. See CBCC’s Verification Report, adjustment for this item. However, stating that this tax contribution will be dated July 15, 2002. We therefore where home market prices were calculated ‘‘on the basis of the determine that CBCC’s short-term reported inclusive of VAT, we deducted invoicing.’’ The PIS legislation further borrowing during this POR, was not in
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the ‘‘normal course of trade.’’ case briefs are filed. A hearing, if responsibility under 19 CFR 351.402(f) Consequently, as in the most recently requested, will be held two days after of the Department’s regulations to file a completed segment of this proceeding, the date the rebuttal briefs are filed or certificate regarding the reimbursement we have denied CBCC’s reported credit the first business day thereafter. of antidumping duties prior to expense and have used the SELIC rate The Department will publish a notice liquidation of the relevant entries to calculate the expense. See Silicon of the final results of this administrative during this review period. Failure to Metal 1999–2000, 67 FR 6488 (February review, which will include the results of comply with this requirement could 12, 2002) and accompanying Decision its analysis of the issues raised in any result in the Secretary’s presumption Memorandum at Comment 18. written comments or at the hearing, that reimbursement of antidumping In order to adjust for differences in within 120 days from the publication of duties occurred and the subsequent packing between the two markets, we these preliminary results. assessment of double antidumping deducted HM packing costs and added The Department shall determine, and duties. U.S. packing costs, where appropriate, Customs shall assess, antidumping This administrative review and notice in accordance with sections 773(a)(6)(A) duties on all appropriate entries. Upon are issued and published in accordance and (B) of the Act. completion of this review, the with sections 751(a)(1) and 777(i)(1) of Department will issue appraisement the Act and 19 CFR 351.221. Currency Conversions instructions directly to Customs. The Dated: July 31, 2002. We made currency conversions in final results of this review shall be the accordance with section 773A of the Act basis for the assessment of antidumping Faryar Shirzad, based on the exchange rates in effect on duties on entries of merchandise Assistant Secretary for Import the dates of the U.S. sales as certified by covered by the determination and for Administration. the Federal Reserve Bank. future deposits of estimated duties. For [FR Doc. 02–20077 Filed 8–7–02; 8:45 am] BILLING CODE 3510–DS–S Preliminary Results of Review duty assessment purposes, we calculated a per-unit customer or As a result of our review, we importer-specific assessment rate by preliminarily determine that the aggregating the dumping margins DEPARTMENT OF COMMERCE following weighted-average dumping calculated for all U.S. sales to each International Trade Administration margins exist for the period July 1, 2000 customer/importer and dividing this through June 30, 2001, and we amount by the total quantity of those Associated Universities, Inc.; Notice of preliminarily determine not to revoke sales. Where the assessment rate is Decision on Application for Duty-Free the order covering silicon metal from above de minimis, we will instruct the Entry of Scientific Instrument Brazil with respect to sales of subject U.S. Customs Service to assess duties on merchandise by Minasligas. However, all entries of subject merchandise by This decision is made pursuant to we do preliminarily determine to revoke that importer. section 6(c) of the Educational, the order covering silicon metal from Furthermore, the following deposit Scientific, and Cultural Materials Brazil with respect to sales of subject requirements will be effective for all Importation Act of 1966 (Pub. L. 89– merchandise by Rima. shipments of silicon metal from Brazil 651, 80 Stat. 897; 15 CFR part 301). entered, or withdrawn from warehouse, Related records can be viewed between Weighted-average for consumption on or after the 8:30 a.m. and 5 p.m. in Suite 4100W, Manufacturer/exporter Margin Percentage publication date of the final results of U.S. Department of Commerce, Franklin this administrative review, as provided Court Building, 1099 14th Street, NW, CBCC ...... 0.00 by section 751(a)(1) of the Act: (1) the Washington, DC. Minasligas ...... 4.30 cash deposit rates for the reviewed Docket Number: 02–016. Applicant: Rima ...... 0.00 companies will be those established in Associated Universities, Inc., National the final results of this review except if Radio Astronomy Observatory, Pursuant to 19 CFR 351.224(b), the the rate is less than 0.5 percent, and Charlottesville, VA 22903. Instrument: Department will disclose to parties to therefore, de minimis, the cash deposit Atacama Large Millimeter Array the proceeding any calculations rate will be zero; (2) for previously (ALMA) Radio Telescope. performed in connection with these reviewed or investigated companies not Manufacturer: Vertex Antennentechnik preliminary results within 5 days of the listed above, the cash deposit rate will GmbH, Germany. Intended Use: See date of publication of this notice. Any continue to be the company-specific rate notice at 67 FR 35961, May 22, 2002. interested party may request a hearing published for the most recent period; (3) Comments: None received. Decision: within 30 days of the date of publication if the exporter is not a firm covered in Approved. No instrument of equivalent of this notice. Parties who submit this review, a prior review, or the scientific value to the foreign arguments in this proceeding are original LTFV investigation, but the instrument, for such purposes as it is requested to submit with each manufacturer is, the cash deposit rate intended to be used, is being argument: (1) a statement of the issue will be the rate established for the most manufactured in the United States. and (2) a brief summary of the recent period for the manufacturer of Reasons: The foreign instrument argument. Further, we would appreciate the merchandise; and (4) for all other provides: (1) Extremely high surface it if parties submitting written manufacturers and/or exporters of this precision (25.0 µm) and pointing comments would provide the merchandise, the cash deposit rate will accuracy (0.6 arcseconds), (2) a structure Department with an additional copy of continue to be 91.06 percent, the ‘‘all immune to changes in temperature, (3) the public version of any such others’’ rate established in the LTFV high speed motion and (4) operation comments on diskette. All case briefs investigation. These requirements, when from 30–950 GHz. The Harvard- must be submitted within 30 days of the imposed, shall remain in effect until Smithsonian Center for Astrophysics date of publication of this notice. publication of the final results of the advised July 30, 2002 that (1) these Rebuttal briefs, which are limited to next administrative review. capabilities are pertinent to the issues raised in the case briefs, may be This notice serves as a preliminary applicant’s intended purpose and (2) it filed not later than seven days after the reminder to importers of their knows of no domestic instrument or
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apparatus of equivalent scientific value to the foreign instrument which is being add approximately 10,000 spectra for to the foreign instrument for the manufactured in the United States. compounds primarily in the condensed phase which have been digitized applicant’s intended use. Gerald A. Zerdy, We know of no other instrument or (vectorized) from existing hard copy Program Manager, Statutory Import Programs versions of the spectra. They will also apparatus of equivalent scientific value Staff. to the foreign instrument which is being contain the auxiliary information [FR Doc. 02–20079 Filed 8–7–02; 8:45 am] described above. These spectra, which manufactured in the United States. BILLING CODE 3510–DS–P have been published by the Coblentz Gerald A. Zerdy, Society, have been highly evaluated and Program Manager, Statutory Import Programs DEPARTMENT OF COMMERCE have long been widely available in Staff. reference books. The new spectra add [FR Doc. 02–20078 Filed 8–7–02; 8:45 am] National Institute of Standards and coverage of compounds in the condensed phase to current NIST BILLING CODE 3510–DS–P Technology collections and also enable the use of [Docket No.: 020724177–2177–01] this spectral information by digital data DEPARTMENT OF COMMERCE Notice of Intent To Update Infrared systems. We invite comments Spectral Library concerning this update. International Trade Administration Dated: August 1, 2002. AGENCY: National Institute of Standards Karen H. Brown, University of Vermont; Notice of and Technology, Commerce. Deputy Director. Decision on Application for Duty-Free ACTION: Notice and request for [FR Doc. 02–20101 Filed 8–7–02; 8:45 am] Entry of Scientific Instrument comments. BILLING CODE 3510–13–P This decision is made pursuant to SUMMARY: The National Institute of Standards and Technology announces section 6(c) of the Educational, DEPARTMENT OF COMMERCE Scientific, and Cultural Materials its intent to add condensed phase infrared spectra to its current library of Importation Act of 1966 (Pub. L. 89– gas phase infrared spectra. The update National Institute of Standards and 651, 80 Stat. 897; 15 CFR part 301). will include approximately 10,000 Technology Related records can be viewed between spectra of diverse compounds digitized 8:30 a.m. and 5 p.m. in Suite 4100W, Notice of Inventions Available for from the published spectra of the Licensing U.S. Department of Commerce, Franklin Coblentz Society. Interested parties are Court Building, 1099 14th Street, NW, invited to submit comments to the AGENCY: National Institute of Standards Washington, DC. address below. and Technology, Commerce. Docket Number: 02–012R. Applicant: DATES: Comments must be received by ACTION: Notice of inventions available University of Vermont, Burlington, VT September 9, 2002. for licensing. 05405. Instrument: Slow Scan CCD ADDRESSES: Comments should be sent to Camera System, Model TemCam–0124. the attention of Dr. Stephen Stein at the SUMMARY: The inventions listed below Manufacturer: Tietz Video and Image National Institute of Standards and are owned in whole or in part by the Processing Systems GmbH, Germany. Technology, Mail Stop 8380, 100 U.S. Government, as represented by the Intended Use: See notice at 67 FR Bureau Drive, Gaithersburg, MD 20899– Department of Commerce. The 34903, May 16, 2002. 8380. Department of Commerce’s interest in the inventions is available for licensing Comments: None received. Decision: FOR FURTHER INFORMATION CONTACT: Dr. in accordance with 35 U.S.C. 207 and 37 Approved. No instrument of equivalent Stephen Stein by writing to the above CFR part 404 to achieve expeditious scientific value to the foreign address or by e-mail at commercialization of results of federally instrument, for such purposes as it is [email protected] or by telephone funded research and development. intended to be used, is being at (301) 975–2444. manufactured in the United States. SUPPLEMENTARY INFORMATION: As part of FOR FURTHER INFORMATION CONTACT: Reasons: The foreign instrument its responsibilities under Title 15 U.S.C. Technical and licensing information on provides: (1) Superior resolution by 290 to collect, evaluate and publish high these inventions may be obtained by writing to: National Institute of matching the surface of the fiber optic quality Standard Reference Data (SRD), Standards and Technology, Office of coupling to the shape of the CCD chip NIST creates and maintains evaluated Technology Partnerships, Attn: Mary surface, permitting determination of the SRD databases. NIST currently distributes a gas phase infrared library Clague, Building 820, Room 213, quality of cryo samples needed to assess Gaithersburg, MD 20899. Information is areas suitable for tomography and (2) containing spectra for approximately 6,000 discrete chemical substances. The also available via telephone: 301–975– accommodation for a high resolution 4188, e-mail: [email protected], or fax: CRT screen. The National Institutes of database is primarily used to aid in the application of infrared spectroscopy to 301–869–2751. Any request for Health advises in its memorandum of chemical analysis and to assist in information should include the NIST July 16, 2002 that (1) these capabilities identification of chemical compounds Docket number and title for the relevant are pertinent to the applicant’s intended by providing a source for reference invention as indicated below. purpose and (2) it knows of no domestic spectra for comparison to spectra SUPPLEMENTARY INFORMATION: NIST may instrument or apparatus of equivalent acquired by instruments. For each enter into a Cooperative Research and scientific value to the foreign spectrum, auxiliary information for Development Agreement (‘‘CRADA’’) instrument for the applicant’s intended chemical identification is provided, with the licensee to perform further use. including chemical names, formulas, research on the inventions for purposes We know of no other instrument or chemical structures and related of commercialization. The inventions apparatus of equivalent scientific value information. The planned update will available for licensing are:
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[Docket No.: 97–026US] DEPARTMENT OF COMMERCE As reference material, the RMP Title: Method and apparatus for implemented in April 2001 under the National Oceanic and Atmospheric ESA 4(d) Rule Limit 6, Puget Sound diffraction measurement using a Administration Comprehensive Chinook Management scanning x-ray source. [I.D. 080102D] Plan: Harvest Management Component, Abstract: The invention is jointly is available on the Internet at http:// owned by the U.S. Government, as Environmental Impact Statement; www.nwifc.wa.gov/recovery/. NMFS’s represented by the Secretary of Public Scoping; Endangered and evaluation and determination on the Commerce, and Digiray Corporation. Threatened Species 2001 RMP is available at http:// This invention is available for non- www.nwr.noaa.gov/1sustfish/limit6/ AGENCY: exclusive licensing. The present National Marine Fisheries rmpfinal.htm . Service (NMFS), National Oceanic and invention relates to x-ray diffraction FOR FURTHER INFORMATION CONTACT: Atmospheric Administration (NOAA), measurement by using moving x-ray Commerce. Susan Bishop, NMFS, Northwest source x-ray diffraction. The invention Region, 206/526–4587, or e-mail: ACTION: Notice of intent to conduct comprises a raster-scanned x-ray source, [email protected]. public scoping and prepare an a specimen, a collimator, and a detector. Environmental Impact Statement (EIS). SUPPLEMENTARY INFORMATION: The x-ray source is electronically scanned which allows a complete image SUMMARY: Pursuant to the National Background of the x-ray diffraction characteristics of Environmental Policy Act (NEPA), The Puget Sound chinook the specimen to be produced. The NMFS intends to gather the information Evolutionarily Significant Unit (ESU) specimen is placed remote from the x- necessary to prepare an EIS on a was listed as threatened under the ESA ray source and the detector. The determination pursuant to the in March 1999 (64 FR 14308). The ESU collimator is located directly in front of Endangered Species Act (ESA) related to encompasses all naturally spawned the detector. The x-rays are diffracted by a resource management plan (RMP) for spring-, summer-, and fall-runs of the specimen at certain angles, which harvest of Puget Sound chinook chinook salmon in the Puget Sound cause them to travel through the populations. NMFS is furnishing this region from the North Fork Nooksack notification to: advise other agencies collimator and to the detector. The River to the Elwha River on the Olympic and the public of its intent, and to detector may be placed in any radial Peninsula. This ESU is located in obtain suggestions and information on portions of Clallam, Island, King, location relative to the specimen in the scope of issues to include in the EIS, Kitsap, Jefferson, Mason, Pierce, San order to take the necessary specifically to assist NMFS in Juan, Skagit, Snohomish, and Whatcom measurements. The detector can detect identifying the range of alternatives to Counties in Washington state. Puget the intensity and/or the wavelength of include in the EIS analysis. In addition, Sound chinook have a complex life the diffracted x-rays. All information NMFS will hold a scoping meeting (see history, migrating from their natal needed to solve the Bragg equation as ADDRESSES) to provide for public input streams throughout Puget Sound to the well as the Laue equations is available. into the range of alternatives and issues Pacific Ocean where they generally The x-ray source may be scanned that the EIS should consider. NMFS is spend 1 to 3 years before returning to electronically or mechanically. The accepting written comments on the their natal streams, primarily as 3 and present invention is used to perform range of alternatives and issues it 4 year old adults. In their ocean texture analysis and phase should consider for this EIS. migration, they travel north along the identification. DATES: Written comments from all west coast into Canadian, and at times [Docket No.: 99–021D ] interested parties must be received at as far north as Alaskan, waters. In doing the appropriate address or fax number so, they are caught in a broad range of Title: Apparatus and method for (see ADDRESSES), no later than 5 p.m. fisheries which are managed by an array refreshable tactile display. Pacific Standard Time on September 9, of agencies, bodies and governments Abstract: The invention is owned by 2002. Written comments will also be including the U.S. Department of the U.S. government, as represented by accepted at a public scoping meeting Commerce, States of Washington, the Secretary of Commerce. This held from 6:30-8:30 p.m., August 22, Oregon, and Alaska, over 20 Native invention is available for exclusive or 2002, in Building 9 of the National American tribal jurisdictions, the North non-exclusive licensing. The invention Oceanic and Atmospheric Pacific Fisheries Management Council, Administration facility at Sand Point, utilizes a rotating-wheel and is designed the Pacific Fisheries Management 7600 Sand Point Way NE, Seattle, to be mechanically simpler than existing Council, and the Pacific Salmon Washington. Each attendee will be refreshable tactile display devices, Commission. asked for his/her photo identification Since the listing, NMFS has evaluated while providing much of their and the reason for his/her visit by the impact of some fisheries affecting functionality as well as additional NMFS security at the facility entrance. listed Puget Sound chinook in features. It is believed that this design ADDRESSES: Comments and requests to compliance with section 7 of the ESA will allow for greatly lowered cost and be included on a mailing list of persons and also evaluated the 2001 RMP for improved reliability in comparison to interested in the EIS should be sent to Puget Sound chinook under the 4(d) existing systems. Susan Bishop, Puget Sound and Rule Limit 6. The Washington Dated: August 1, 2002. Washington Coastal Harvest Department of Fish and Wildlife Karen H. Brown, Management Team Leader, Sustainable (WDFW) and the Puget Sound Treaty Deputy Director. Fisheries Division, National Marine Tribes (co-managers) are jointly Fisheries Service, 7600 Sand Point Way developing another RMP intended to [FR Doc. 02–20100 Filed 8–7–02; 8:45 am] NE, Seattle, WA 98115–0070; telephone take effect when the current RMP BILLING CODE 3510–13–P 206/526–4587; facsimile (fax) 206/526– expires in April 2003. It will encompass 6736. Comments will not be accepted if commercial, recreational, ceremonial, submitted via e-mail or the Internet. and subsistence salmon fisheries
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potentially affecting the listed Puget Dated: August 2, 2002. burden of this collection on the Sound Chinook ESU within the marine Susan L. Pultz, respondents, including through the use and freshwater areas of Puget Sound, Acting Chief, Endangered Species Division, of information technology. from the entrance of the Strait of Juan Office of Protected Resources, National Dated: August 2, 2002. Marine Fisheries Service. de Fuca inward, including fisheries John Tressler, under the jurisdiction of the U.S. Fraser [FR Doc. 02–20092 Filed 8–7–02; 8:45 am] Leader, Regulatory Information Management Panel. However, as with the current BILLING CODE 3510–22–S Office of the Chief Information Officer. RMP, harvest objectives specified in the RMP will account for fisheries-related Office of the Undersecretary mortality of Puget Sound chinook DEPARTMENT OF EDUCATION Type of Review: New. throughout its migratory range from Title: Longitudinal Assessment of CSR Oregon and Washington to Southeast Notice of Proposed Information Implementation and Outcomes (LACIO). Alaska. The RMP will also include Collection Requests Frequency: Annually. implementation, monitoring, and AGENCY: Department of Education. Affected Public: State, Local, or Tribal evaluation procedures designed to Gov’t, SEAs or LEAs. SUMMARY: ensure fisheries are consistent with the The Leader, Regulatory Reporting and Recordkeeping Hour RMP’s objectives. Under the ESA 4(d) Information Management Group, Office Burden: Rule Limit 6 NMFS must make a of the Chief Information Officer, invites Responses: 4,380. determination that the RMP, as comments on the proposed information Burden Hours: 2,567. proposed and implemented by the Puget collection requests as required by the Abstract: This evaluation assesses the Sound Treaty Tribes and State of Paperwork Reduction Act of 1995. accomplishments of the Comprehensive Washington, does not appreciably DATES: Interested persons are invited to School Reform (CSR) program in reduce the likelihood of survival and submit comments on or before October implementing school reform and recovery of Puget Sound chinook while 7, 2002. thereby improving student achievement. providing for fishing opportunities and SUPPLEMENTARY INFORMATION: Section The evaluation also makes a preliminary the exercise of federally protected treaty 3506 of the Paperwork Reduction Act of assessment of the conditions fishing rights, as implemented and 1995 (44 U.S.C. Chapter 35) requires influencing the sustainability of reforms enforced within the continuing that the Office of Management and once Federal support ends. The jurisdiction of U.S. v. Washington. Budget (OMB) provide interested evaluation uses a variety of data sources NMFS will conduct an environmental Federal agencies and the public an early to understand the complex interplay of review of the RMP and prepare an EIS. opportunity to comment on information state policies, school district, The environmental review will analyze collection requests. OMB may amend or educational support, and CSR school the proposed action, the proposed RMP, waive the requirement for public conditions affecting CSR as well as a full range of reasonable consultation to the extent that public implementation and outcomes. The alternatives and the associated impacts participation in the approval process major evaluation questions are: (1) To of each. NMFS is currently developing would defeat the purpose of the what extent have CSR-supported alternatives for analysis. In addition to information collection, violate State or schools made gains on state assessments the No Action Alternative (no Federal law, or substantially interfere in comparison to gains for schools in the authorized take of listed Puget Sound with any agency’s ability to perform its same state with similar characteristics; chinook within the Strait of Juan de statutory obligations. The Leader, (2) How effective is CSR support for Fuca and Puget Sound area), the Regulatory Information Management reform; and (3) How have district alternatives could include at least the Group, Office of the Chief Information policies and state policies affected CSR following: (1) a harvest regime based on Officer, publishes that notice containing implementation and comprehensive escapement goal management and (2) an proposed information collection school reform. A mixed method alternative that combines escapement requests prior to submission of these approach will be used to collect goal management at the individual requests to OMB. Each proposed appropriate data for addressing each population level with terminal fisheries. information collection, grouped by evaluation question. The methods office, contains the following: (1) Type include mail surveys of 400 CSR- Authority of review requested, e.g. new, revision, program and 400 non-CSR program extension, existing or reinstatement; (2) schools, telephone surveys of 50 The environmental review of this Title; (3) Summary of the collection; (4) districts and 20 states, and a case study project will be conducted in accordance Description of the need for, and inquiry of 30 ‘‘sites’’ to provide data on with requirements of the National proposed use of, the information; (5) vertical slices of the CSR program (each Environmental Policy Act of 1969, Respondents and frequency of ‘‘site’’ comprises a CSR school and National Environmental Policy Act collection; and (6) Reporting and/or comparison school, as well as the Regulations (40 CFR 1500-1508), other Recordkeeping burden. OMB invites district, state, and support infrastructure appropriate Federal laws and public comment. The Department of in which the schools operate). regulations, and policies and procedures Education is especially interested in Evaluators will be able to link of NOAA for compliance with those public comment addressing the information from these various sources regulations. following issues: (1) is this collection in order to provide policymakers and Special Accommodations necessary to the proper functions of the other stakeholders with coherent Department; (2) will this information be findings. Requests for sign language processed and used in a timely manner; Requests for copies of the proposed interpretation or other auxiliary aids (3) is the estimate of burden accurate; information collection request may be should be directed to Susan Bishop (4) how might the Department enhance accessed from http://edicsweb.ed.gov, (206/526–4587, or email: the quality, utility, and clarity of the by selecting the ‘‘Browse Pending [email protected]) at least 5 days information to be collected; and (5) how Collections’’ link and by clicking on before the meeting date. might the Department minimize the link number 2091. When you access the
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information collection, click on DEPARTMENT OF ENERGY expedited treatment. On July 11, 2002, ‘‘Download Attachments’’ to view. the applicant clarified the reason for [Docket Nos. EA–212–B] Written requests for information should requesting expedited treatment by be addressed to Vivian Reese, Application To Export Electric Energy; stating that completion of the La Rosita Department of Education, 400 Maryland Coral Power, L.L.C.; To Amend plant in Mexico (the power plant that is Avenue, SW., Room 4050, Regional Authorization to Transmit Electric connected to the permitted facilities, Office Building 3, Washington, DC Energy to Mexico PP–234) is scheduled to be completed 20202–4651 or to the e-mail address and ready to be energized in the first AGENCY: [email protected]. Requests may also Office of Fossil Energy, DOE. week in August 2002 for testing be electronically mailed to the internet ACTION: Notice of applications. purposes. No other source of power is _ readily available for this purpose. address OCIO [email protected] or faxed to SUMMARY: Coral Power, L.L.C. (Coral) 202–708–9346. Please specify the has applied to amend its authorization DOE notes that the circumstances complete title of the information to transmit electric energy from the described in this application are collection when making your request. United States to Mexico pursuant to virtually identical to those for which Comments regarding burden and/or section 202(e) of the Federal Power Act. export authority had previously been the collection activity requirements DATES: Comments, protests or requests granted in FE Order EA–212. should be directed to Jacqueline to intervene must be submitted on or Consequently, DOE believes that it has Montague at (202) 708–5359 or via her before August 23, 2002. adequately satisfied its responsibilities e-mail address [email protected]. ADDRESS: Comments, protests or under the National Environmental Individuals who use a requests to intervene should be Policy Act of 1969 through the telecommunications device for the deaf addressed as follows: Office of Coal & documentation of a categorical (TDD) may call the Federal Information Power Imports/Exports (FE–27), Office exclusion in the FE Docket EA–212 Relay Service (FIRS) at 1–800–877– of Fossil Energy, U.S. Department of proceeding. 8339. Energy, 1000 Independence Avenue, Procedural Matters: Any person SW., Washington, DC 20585–0350 (FAX [FR Doc. 02–20035 Filed 8–7–02; 8:45 am] desiring to become a party to this 202–287–5736). proceeding or to be heard by filing BILLING CODE 4000–01–P FOR FURTHER INFORMATION CONTACT: comments or protests to these Steven Mintz (Program Office) 202–586– applications should file a petition to 9506 or Michael Skinker (Program DEPARTMENT OF EDUCATION intervene, comment or protest at the Attorney) 202–586–2793. address provided above in accordance President’s Advisory Commission on SUPPLEMENTARY INFORMATION: Exports of with §§ 385.211 or 385.214 of the Educational Excellence for Hispanic electricity from the United States to a FERC’s Rules of Practice and Procedures Americans foreign country are regulated and (18 CFR 385.211, 385.214). Fifteen require authorization under section copies of each petition and protest AGENCY: President’s Advisory 202(e) of the Federal Power Act (FPA) should be filed with the DOE on or Commission on Educational Excellence (16 U.S.C. 824a(e)). before the date listed above. On June 9, 1999, the Office of Fossil for Hispanic Americans, Department of Comments on the Coral application to Energy (FE) of the Department of Energy Education. export electric energy to Mexico should (DOE) authorized Coral to transmit be clearly marked with Docket EA–212– ACTION: To amend the date of the electric energy from the United States to B. Additional copies are to be filed meeting posted in the 67 FR 140, Mexico using the international electric directly with Andrea M. Settanni, Monday, July 22, 2002, page 47777. transmission facilities of San Diego Gas and Electric Company, El Paso Electric Bracewell & Patterson, L.L.P., 2000 K Street, NW., Suite 500, Washington, DC Date and Time: Monday, August 5, Company, Central Power and Light 20006–1872 AND Robert Reilley, Vice 2002, from 4:30 p.m. to 6 p.m. Company, and Comision Federal de Electricidad, the national utility of President, Regulatory Affairs, Coral ADDRESSES: The Commission meeting Mexico. That two-year authorization Power, L.L.P., 909 Fannin, Suite 700, will be held in San Diego, California, at (Order EA–212) expired on August 13, Houston, TX 77010. the Westgate Hotel located at 1055 2001. Copies of these applications will be Second Avenue, San Diego, CA, 92101 On June 27, 2001, Coral filed an made available, upon request, for public FOR FURTHER INFORMATION CONTACT: application with FE for renewal of its inspection and copying at the address Leslie Sanchez, Executive Director, or authorization to transmit electric energy provided above or by accessing the from the United States to Mexico. That Adam Chavarria, Associate Director, Fossil Energy Home Page at http:// two-year authorization (Order EA–212– White House Initiative on Educational www.fe.doe.gov. Upon reaching the A) will expire on August 13, 2003. Fossil Energy Home page, select Excellence for Hispanic Americans, 400 On July 8, 2002, Coral filed an Maryland Ave., SW., Washington, DC ‘‘Electricity Regulation’’, then ‘‘Pending application with FE to amend its Procedures’’ from the options menus. 20202, (202) 401–1411. authorization to transmit electric energy Issued in Washington, DC, on August 2, Dated: August 2, 2002. from the United States to Mexico in 2002. Rod Paige, order to add the recently permitted Baja Ellen Russell, Secretary, U.S. Department of Education. transmission facilities (Docket PP–234). Coral is an affiliate of Baja California Acting Deputy Director, Electric Power [FR Doc. 02–20027 Filed 8–7–02; 8:45 am] Power, Inc., the owner of the Regulation, Office of Coal & Power Imports/ BILLING CODE 4000–01–M transmission facilities built pursuant to Exports, Office of Coal & Power Systems, PP–234. Coral also requested that its Office of Fossil Energy. authorization be extended for a five-year [FR Doc. 02–20061 Filed 8–7–02; 8:45 am] period and that its application be given BILLING CODE 6450–01–P
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DEPARTMENT OF ENERGY Department of Energy, 19901 solutions to beam strippers such as Germantown Road, Germantown, MD liquid lithium films, or rotating carbon Office of Science Financial Assistance 20874–1290; telephone: (301) 903–6093; foil strippers that do not degrade beam Program Notice 02–27; Research and facsimile: (301) 903–3833; e-mail: emittance. Development for the Rare Isotope [email protected]. The full • High-power targets including liquid Accelerator text of Program Notice 02–27 is lithium for fragmentation and isotope available via the World Wide Web using separator on-line (ISOL-type) sources AGENCY: U.S. Department of Energy. the following web site address: http:// with good diffusion and effusion ACTION: Notice inviting grant www.sc.doe.gov/production/grants/ properties. The development of ISOL- applications. grants.html. type targets with long lifetimes and fast extraction times at high beam powers SUMMARY: SUPPLEMENTARY INFORMATION: The The Nuclear Physics Division are essential for the success of RIA. For (NP), Office of High Energy and Nuclear nuclear science community has proposed the Rare Isotope Accelerator in-flight fragmentation and fission, Physics (HENP), Office of Science (SC), development of a liquid-lithium target, U.S. Department of Energy (DOE), as a new accelerator facility to address emerging research opportunities in or other new high power fragmentation hereby announces interest in receiving target concepts, is imperative. applications for Research and nuclear structure, nuclear astrophysics, • and fundamental interactions and Other RIA accelerator and Development (R&D) projects directed at experimental facility components will the proposed Rare Isotope Accelerator symmetries. [See the DOE/NSF Nuclear Science Advisory Committee’s 2002 also require focused effort. These (RIA). RIA is proposed as a new include post-acceleration including accelerator facility to address emerging Long Range Plan.] The Department of Energy is radio frequency quadrupoles (RFQs) and research opportunities in low energy very low velocity accelerating nuclear physics, and DOE is sponsoring sponsoring pre-conceptual research and development for the Rare Isotope structures, charge-multiplying ECRs, pre-conceptual R&D activities on the radiation hardened magnetic facility. Accelerator. Community sponsored studies and workshops have identified a equipment, innovative detector DATES: The deadline for receipt of number of areas where focused R&D and instrumentation, beam diagnostics formal applications is 4:30 p.m., E.D.T., prototyping could enhance optimized for a broad range of beam October 2, 2002, to be accepted for merit performance, reduce costs, and impact intensities, beam dumps, radio- review and to permit timely the engineering and construction frequency equipment, and controls. consideration for award in early Fiscal schedule. Among these areas are: The concept, elements and R&D Year 2003. • Gas stopper for fast fragments. A issues of RIA are outlined in the Nuclear ADDRESSES: We encourage you to submit key feature of the RIA concept is the use Science Advisory Committee (NSAC) formal applications in response to this of intense high-energy heavy-ion beams ISOL Taskforce Report that can be found solicitation electronically through with projectile fragmentation as the at: http://www.sc.doe.gov/production/ DOE’s Industry Interactive Procurement production mechanism. The gas stopper henp/np/. Select the NSAC button. System (IIPS) at: will slow the projectile fragments and Applications requesting support for http://e-center.doe.gov/. IIPS provides deliver them for subsequent re- research and development in the areas for the posting of solicitations and acceleration. outlined above should indicate a • receipt of applications in a paperless Fragment momentum compression separate task for each area. Applications environment via the World Wide Web. preceding the gas stopper. To stop may include more than one task. For Applications must be submitted through fragments efficiently in a finite gas each task the application should address IIPS in PDF format by an authorized stopper volume, there must be the goal of the effort; the method or institutional business official. Questions compensation of the large fragment approach to be taken; the cost and momentum spread. schedule of the effort; the deliverable regarding the operation of IIPS may be • e-mailed to the IIPS Help Desk at: Fragment separators that handle result of the work; and the performance, [email protected] or you may beam spray and allow beam sharing. cost, or schedule benefit for RIA. call the help desk at (800) 683–0751. Development work on the front end of Institutional contributions to the effort Further information on the use of IIPS the fragment separator is required to should be clearly indicated. minimize radiation damage to the by the Office of Science is available at: Program Funding http://www.sc.doe.gov/production/ magnetic elements. • Electron cyclotron resonance (ECR) It is anticipated that up to $3,500,000 grants/grants.html. ion sources producing high intensity, will be available for multiple awards to If you are unable to submit the high-charge-state uranium, and the low be made in early Fiscal Year 2003, in application through IIPS, formal energy beam transport (LEBT). The the areas described above, contingent on applications referencing Program Notice driver linear accelerator requires ECR the availability of appropriated funds. 02–27, should be sent to: U.S. ion source performance for uranium Applications should be for one year, Department of Energy Office, Grants and greater than the current state of the art with a continuation of up to two Contracts Division, SC–64, 19901 by a factor of 2 to 8. additional years for those tasks Germantown Road, Germantown, MD • Driver technologies, especially requiring a multi-year effort. For 20874–1290, ATTN: Program Notice 02– superconducting radio-frequency (SRF) continuation of multi-year effort, out- 27. This above address must also be structures. The driver linear accelerator year support is contingent on the used when submitting applications by will require a number of distinct radio- availability of funds, progress of the U.S. Postal Service Express, any frequency (RF) structures, likely research and programmatic needs. For commercial mail delivery service, or superconducting, but possibly room multi-year tasks, intermediate when hand carried by the applicant. temperature. Among the issues to be milestones should be indicated. FOR FURTHER INFORMATION CONTACT: Dr. addressed are beam loss, SRF structure Eugene A. Henry, Nuclear Physics cavity cleanliness, and overall cost. Collaboration Division, Office of High Energy and • Beam stripping. The high power of Applicants are encouraged to Nuclear Physics, Office of Science, U.S. the heavy ion beams requires innovative collaborate with researchers in other
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institutions, such as: Universities, 3. Competency of Applicant’s Energy Regulatory Commission, 888 industry, non-profit organizations, Personnel and Adequacy of Proposed First Street, NE., Washington, DC 20426. federal laboratories and Federally Resources, Mr. Miller can be reached by telephone Funded Research and Development 4. Reasonableness and at (202) 502–8415 and by e-mail at Centers (FFRDCs), including the DOE Appropriateness of the Proposed [email protected]; and National Laboratories, where Budget. (2) Ms. Ruth Solomon, FERC Desk appropriate, and to include cost sharing The evaluation will include program Officer, Office of Information and and/or consortia wherever feasible. policy factors, such as the relevance of Regulatory Affairs, Office of Additional information on collaboration the proposed research to the terms of Management and Budget, Room 10202 is available in the Application Guide for the announcement and agency’s NEOB, 725 17th Street, NW., the Office of Science Financial programmatic needs. Note, external peer Washington, DC 20503. Ms. Solomon Assistance Program that is available via reviewers are selected with regard to may be reached by telephone at (202) the World Wide Web at: http:// both their scientific expertise and the 395–7856 or by fax at (202) 395–7285. www.sc.doe.gov/production/grants/ absence of conflict-of-interest issues. Ms. Solomon should be contacted by Colab.html. Non-federal reviewers may be used, and phone or fax. submission of an application constitutes FOR FURTHER INFORMATION CONTACT: Formal Applications agreement that this is acceptable to the Mark Klose, Office of the Executive Information about the development investigator(s) and the submitting Director, Division of Regulatory and submission of applications, institution. Accounting Policy, (202) 219–2595; eligibility, limitations, evaluation, The Catalog of Federal Domestic Federal Energy Regulatory Commission, selection process, and other policies and Assistance Number for this program is 888 First Street NE., Washington, DC procedures are contained in 10 CFR Part 81.049, and the solicitation control 20426. 605, and in the Application Guide for number is ERFAP 10 CFR part 605. SUPPLEMENTARY INFORMATION: The the Office of Science Financial Issued in Washington, DC, on July 30, Federal Energy Regulatory Commission Assistance Program. Electronic access to 2002. (Commission) in Docket No. RM02–14– the latest version of the Office of John Rodney Clark, 000, issued a proposed rule, to amend Science’s Financial Assistance Guide Associate Director of Science for Resource its Uniform System of Accounts for and required forms is made available via Management. public utilities, natural gas companies the World Wide Web at: http:// [FR Doc. 02–20064 Filed 8–7–02; 8:45 am] and oil pipeline companies by www.sc.doe.gov/production/grants/ BILLING CODE 6450–02–P establishing the documentation grants.html. DOE is under no obligation necessary to furnish readily full to pay for any costs associated with the information concerning cash preparation or submission of DEPARTMENT OF ENERGY management agreements created by a applications if an award is not made. Commission-regulated subsidiary and a Federal Energy Regulatory The research project description must non-regulated parent. Specifically, the Commission be five pages per task or less, exclusive Commission is requiring that all such of attachments and must contain an [Docket No. IC02–907–000, FERC–907] cash management arrangements be in abstract or summary of the proposed writing and specify the duties and research. Projects reporting results or Public Information Collection and responsibilities of participants in a cash progress on work conducted with DOE Request for Comments August 2, 2002. management system (a system in which funds are transferred from multiple funding under the previous RIA R&D AGENCY: Federal Energy Regulatory accounts to a single account in the program may include two additional Commission. pages per task. All collaborators should parent company’s name or a single ACTION: Request for Office of be listed with the abstract or summary. account with interest earned or charged Management and Budget Emergency On the grant face page, form DOE F on the net cash balance position, or in Processing of proposed information 4650.2, in block 15, also provide the which balances in affiliated companies’ collection and request for comments. Principal Investigator’s phone number, accounts are at the same bank as the fax number, and E-mail address. SUMMARY: The Federal Energy parent company and transfers are made Attachments include curriculum vitae, a Regulatory Commission (Commission) daily to the parent’s account). The Commission’s staff has reviewed listing of all current and pending federal has received Office of Management and several cash management agreements support and letters of intent when Budget (OMB) approval for the between Commission-regulated collaborations are part of the proposed following public information collection companies and their non-regulated research. Curriculum vitae should be pursuant to the requirements of Section parent companies. With only one limited to no more than two pages per 3507(j)(1)of the Paperwork Reduction exception, there was no formal, written individual. Act of 1995 (Pub. L. No.104–13), and 5 agreements at the gas pipelines, electric CFR 1320.13 of OMB’s regulations. An Merit Review utilities and oil pipelines among the agency may not conduct or sponsor and companies reviewed. There is potential Applications will be subjected to a person is not required to respond to for serious financial harm to scientific merit review (peer review) and a collection of information unless it Commission-regulated entities if non- will be evaluated against the following displays a currently valid control regulated parent companies default on evaluation criteria listed in descending number. accounts payable owed to their order of importance as codified at 10 DATES: The Commission and OMB must CFR part 605.10(d): regulated subsidiaries. Accordingly, the receive comments on or before August Commission is proposing to require 1. Scientific and/or Technical Merit of 15, 2002. written cash management agreements the Project, ADDRESSES: Send comments to: (1) for the entities it regulates. Cash 2. Appropriateness of the Proposed Michael Miller, Office of the Chief management agreements serve to define Method or Approach, Information Officer, CI–1, Federal the rights and responsibilities of the
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parties to the agreements plus clarify appropriate automated electronic, must file a motion to intervene. The how the funds will be advanced/ mechanical, or other forms of answer to the complaint and all transferred and whether interest will be information technology. comments, interventions or protests paid and at what rate of interest to the OMB Control No.: (to be assigned). must be filed on or before August 21, companies providing the funds. Expiration Date: 01/31/2002. 2002. This filing is available for review The Commission intends to clearly Title: Regulation of Cash Management at the Commission or may be viewed on define the roles and responsibilities of Practices. the Commission’s web site at http:// all parties regarding transfers of cash, IC No.: FERC–907. www.ferc.gov using the ‘‘RIMS’’ link, payment of bills, payment of interest, Respondents: Businesses or other for select ‘‘Docket #’’ and follow the and the funds that can be taken from the -profit. instructions (call 202–208–2222 for regulated subsidiary. Cash management Estimated annual burden: 896 hours. assistance). The answer to the agreements should be reviewed and Estimated Annual Reporting and/or complaint, comments, protests and updated periodically to ensure that Recordkeeping cost: $50,418. interventions may be filed electronically change in the corporate structure has Frequency of Response: On occasion. via the Internet in lieu of paper; see 18 not made the agreements obsolete. Obligation to Respond: Mandatory. CFR 385.2001(a)(1)(iii) and the Additionally, cash management Linwood A. Watson, Jr., instructions on the Commission’s web agreements must provide assurance for site under the ‘‘e-Filing’’ link. The Deputy Secretary. Commission-regulated entities and Commission strongly encourages regulators that non-regulated parents [FR Doc. 02–20043 Filed 8–7–02; 8:45 am] electronic filings. aren’t exposing their subsidiaries to BILLING CODE 6717–01–P severe financial harm for the benefit of Linwood A. Watson, Jr., non-regulated affiliated companies. Deputy Secretary. Under the statutes that it administers, DEPARTMENT OF ENERGY [FR Doc. 02–20042 Filed 8–7–02; 8:45 am] the Commission has broad authority to BILLING CODE 6717–01–P act in the public interest and to ensure Federal Energy Regulatory that adequate supplies of energy are Commission available to the nation at a reasonable [Docket No. EL02–112–000] DEPARTMENT OF ENERGY cost. Because of the Commission’s concern that cash management accounts FirstEnergy Solutions Corp., Federal Energy Regulatory not be used improperly to impair the FirstEnergy Generation Corp., Commission financial health of regulated entities, so Complainant, v. PJM Interconnection, [Docket No. EG02–172–000, et al.] as to cause harm to the rate paying LLC, Respondent; Notice of Complaint public, it believes it is appropriate to Genova Oklahoma I, LLC, et al.; August 2, 2002. put into place these requirements to Electric Rate and Corporate Regulation protect the ratepayers. Take notice that on August 1, 2002, Filings The Commission has submitted this FirstEnergy Solutions Corp. and collection of information to OMB for FirstEnergy Generation Corp. July 31, 2002. approval. OMB’s regulations describe (FirstEnergy) filed a Complaint against The following filings have been made the process that federal agencies must PJM Interconnection, LLC (‘‘PJM’’). In with the Commission. The filings are follow in order to obtain OMB approval the Complaint, FirstEnergy requests that listed in ascending order within each for collections of information. See 5 CFR the Commission issue an order directing docket classification. PJM to eliminate its eFuel reporting 1320. The standards for emergency 1. Genova Oklahoma I, LLC processing of information collections requirement. In the alternative, appear at 5 CFR 1320.13. If OMB FirstEnergy requests that the [Docket No. EG02–172–000] approves a reporting requirement, then Commission issue an order directing Take notice that on July 25, 2002, it will assign an information control PJM to address the eFuel reporting Genova Oklahoma I, LLC, 5700 West number to that requirement. OMB requirement under the MMU Plano Parkway, Suite 1000, Plano, Texas requires federal agencies seeking information gathering rules in effect at 75093, filed with the Federal Energy approval of information collections to the time PJM initiated reporting Regulatory Commission (Commission) allow the public an opportunity to requirement in February 2002. an application for determination of comment on the proposed information Copies of this filing were served upon exempt wholesale generator status collection. 5 CFR 1320.5(a)(1)(iv). PJM, state regulatory agencies in Ohio, pursuant to part 365 of the Commissions Therefore, the Commission is soliciting Pennsylvania and New Jersey and others regulations. comment on: FirstEnergy reasonably knows may be Genova Oklahoma I, LLC states it is a (1) Whether the collection of expected to be affected by the limited liability company, organized information is necessary for the proper Complaint. under the laws of the State of Delaware, performance of the Commission’s Any person desiring to be heard or to and is engaged directly and exclusively functions, including whether the protest this filing should file with the in owning and operating the Genova information will have practical utility: Federal Energy Regulatory Commission, Oklahoma I, LLC electric generating (2) The accuracy of the Commission’s 888 First Street, NE., Washington, DC facility (the Project) to be located in estimate of the burden of the collection 20426, in accordance with Rules 211 Grady County, Oklahoma, and selling of this information, including the and 214 of the Commission’s Rules of electric energy at wholesale from the validity of methodology and Practice and Procedure (18 CFR 385.211 Project. The Project will consist of a assumptions used; and 385.214). Protests will be combined cycle combustion turbine unit (3) The quality, utility, and clarity of considered by the Commission in with a nominal rating of approximately the information to be collected; and determining the appropriate action to be 580 megawatts and associated (4) How to minimize the burden of the taken, but will not serve to make transmission interconnection collection of this information on protestants parties to the proceeding. components. respondents, including the use of Any person wishing to become a party Comment Date: August 21, 2002.
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2. San Diego Gas & Electric Company, Services, Inc. in compliance with the DEPARTMENT OF ENERGY Complainant, v. Sellers of Energy and Federal Energy Regulatory Ancillary Services Into Markets Commission’s ‘‘Order Conditionally Federal Energy Regulatory Operated by the California Independent Accepting for Filing Unexecuted Service Commission System Operator and the California Agreement, As Modified,’’ issued in [Docket No. EC02–97–000, et al.] Power Exchange, Respondents Docket No. ER02–1663–000 on June 27, [Docket Nos. EL00–95–066 and EL01–68– 2002. Wisconsin Public Service Corporation, 018] A copy of the compliance filing has et al.; Electric Rate and Corporate Regulation Filings Investigation of Practices of the been served on each person on the California Independent System service list in Docket No. ER02–1663– August 1, 2002. Operator and the California Power 000 and the Florida Public Service The following filings have been made Exchange Commission. with the Commission. The filings are [Docket No. EL00–98–055] Comment Date: August 16, 2002. listed in ascending order within each docket classification. Take notice that on July 24, 2002, the 5. Blythe Energy, LLC California Independent System Operator 1. Wisconsin Public Service Corporation (ISO) submitted a filing [Docket No. ER02–2018–001] Corporation; De Pere Energy L.L.C. with the Federal Energy Regulatory Take notice that on July 26, 2002, [Docket No. EC02–97–000] Commission (Commission) in Blythe Energy, LLC (Blythe) tendered Take notice that on July 26, 2002, compliance with the Commission’s July for filing with the Federal Energy 11, 2002, ‘‘Order on Rehearing, Wisconsin Public Service Corporation Regulatory Commission a letter (WPSC) and De Pere Energy L.L.C. (De Reconsideration and Clarification’’ 100 submitting certain additional FERC ¶ 61,050. Pere Energy) tendered for filing with the information with respect to Blythe’s The ISO states that it has served Federal Energy Regulatory Commission copies of this filing upon all parties Application for market-based rate (Commission) a joint Application listed on the official service list for this authority filed on June 5, 2002. pursuant to Section 203 of the Federal proceeding. Comment Date: August 12, 2002. Power Act and Part 33 of the Comment Date: August 23, 2002. Commission’s Regulations requesting Standard Paragraph authorization for De Pere Energy to sell 3. Pacific Gas and Electric Company to WPSC the De Pere Energy Center, a E. Any person desiring to intervene or 180 MW electric generating facility, [Docket Nos. ER02–358–003, ER01–2998– to protest this filing should file with the 003, and EL02–64–003] including associated transformers and Federal Energy Regulatory Commission, switchyard equipment. Take notice that on July 25, 2002, 888 First Street, NE., Washington, DC Pacific Gas and Electric Company Copies of the filing were served upon 20426, in accordance with Rules 211 (PG&E) tendered for filing an errata to the Public Service Commission of and 214 of the Commission’s Rules of its filing dated July 15, 2002 of a Wisconsin and the Michigan Public Practice and Procedure (18 CFR 385.211 Settlement Agreement pursuant to Rule Service Commission. 602 of the Commission’s Rules of and 385.214). Protests will be Comment Date: August 16, 2002. considered by the Commission in Practice and Procedure, 18 CFR 385.602. 2. American Atlas No. 1, Ltd., L.L.L.P. The Settlement Agreement replaces determining the appropriate action to be Interconnection Agreements between taken, but will not serve to make [Docket No. EC02–98–000] PG&E and the Northern California protestants parties to the proceeding. Take notice that on July 26, 2002, Power Agency (NCPA) and between Any person wishing to become a party American Atlas No. 1, Ltd., L.L.L.P. PG&E and the City of Santa Clara, must file a motion to intervene. All such (Atlas) tendered for filing an application Silicon Valley Power (SVP), on file with motions or protests should be filed on requesting all necessary authorizations the Commission as PG&E First Revised or before the comment date, and, to the under Section 203 of the Federal Power Rate Schedules FERC Nos. 142 and 85. extent applicable, must be served on the Act for the sale by Atlas to Tri-State The errata consists of an appendix F to applicant and on any other person Generation and Transmission each of these Interconnection designated on the official service list. Association, Inc. of Atlas’s interests in Agreements, which Appendices were This filing is available for review at the the jurisdictional assets associated with inadvertently omitted from the July 15, Commission or may be viewed on the a nominal 75-megawatt cogeneration 2002 filing. Commission’s web site at http:// power plant located in Rifle, Colorado, Copies of this filing have been served www.ferc.gov using the ‘‘RIMS’’ link, and known as the American Atlas No. upon all members of he Official Service select ‘‘Docket #’’ and follow the 1 Cogeneration Facility. Lists of the above-mentioned Dockets, instructions (call 202–208–2222 for Comment Date: August 16, 2002. the California Public Utilities assistance). Protests and interventions 3. La Paloma Generating Trust Ltd.; La Commission, and the California may be filed electronically via the Paloma Generating Company, LLC Independent System Operator Internet in lieu of paper; see 18 CFR Corporation. [Docket No. EC02–99–000] 385.2001(a)(1)(iii) and the instructions Comment Date: August 15, 2002. Take notice that on July 26, 2002, La on the Commission’s web site under the Paloma Generating Trust Ltd. (La 4. Tampa Electric Company ‘‘e-Filing’’ link. Paloma Trust) and La Paloma [Docket No. ER02–1663–002] Magalie R. Salas, Generating Company, LLC (La Paloma Take notice that on July 26, 2002, Secretary. Gen), tendered for filing with the Tampa Electric Company (Tampa [FR Doc. 02–20026 Filed 8–7–02; 8:45 am] Federal Energy Regulatory Commission Electric) filed a revised unexecuted (Commission), pursuant to Section 203 transmission service agreement between BILLING CODE 6717–01–P of the Federal Power Act, 16 U.S.C. Tampa Electric and Calpine Energy 824b (1994), and part 33 of the
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Commission’s regulations, 18 CFR part 7. Delmarva Power & Light Company Agent for the Four Corners Participants, 33, an application to authorize an [Docket No. ER99–2781–002] hereby submits for filing the assignment of beneficial interests in La Interconnection and Operating Take notice that on July 29, 2002, Paloma Trust to La Paloma Gen. Agreement (IOA) under its Open Access Delmarva Power & Light Company Transmission Tariff between the Four Comment Date: August 16, 2002. (Delmarva) tendered for filing its Corner Participants and the triennial market power analysis in 4. Big Cajun I Peaking Power LLC Interconnection Participants. support of its market-based rate [Docket No. EG02–120–000] The Four Corner Participants consist authority in compliance with the of the joint owners of a 345-kV Take notice that on July 30, 2002, Big Federal Energy Regulatory Switchyard and include APS, El Paso Cajun I Peaking Power LLC (Big Cajun Commission’s September 26, 1996, Electric Company (EPE), Public Service I Peaking) filed with the Federal Energy order accepting Delmarva’s updated Company of New Mexico (PNM), Salt Regulatory Commission (Commission) market-based tariff. Delmarva Power & River Project Agricultural Improvement an amendment to its application for Light Co., 75 FERC 61,331. determination of exempt wholesale Comment Date: August 19, 2002. and Power District (SRP), Southern generator status pursuant to section 32 California Edison Company (SCE), and of the Public Utility Holding Company 8. Duke Energy St. Francis LLC Tucson Electric Power Company (TEP). Act of 1935 (PUHCA) and part 365 of [Docket No. ER99–3118–002] The Interconnection Participants consist of Public Service of Colorado the Commission’s regulations. Take notice that on July 29, 2002, (PSCO), Tri-State Generation and As more fully explained in the Duke Energy St. Francis LLC (Duke St. Transmission Association, Inc (Tri- application, Big Cajun I Peaking stated Francis) tendered for filing its triennial State), and the acting by an through the that it is a limited liability company that market power analysis in compliance Administrator, Western Area Power will be engaged either directly or with the Federal Energy Regulatory Administration, Department of Energy indirectly and exclusively in the Commission Order granting it market- (Western). The Interconnection business of owning and operating an based rate authority in Docket No. Participants have rights to a Shiprock- electric generation facility located in ER99–3118–000 on July 28, 1999. Four Corners Transmission Line and Louisiana. Copies of this filing were served upon desire an interconnection to the 345-kV Comment Date: August 21, 2002. those parties on the official service list. Comment Date: August 19, 2002. Switchyard of the Four Corner 5. Rocky Mountain Power, Inc. Participants. 9. Tenaska Georgia Partners, L.P. A copy of this filing has been served [Docket No. EG02–173–000] [Docket No. ER99–3165–001] on parties, the appropriate state Take notice that on July 30, 2002, Take notice that on July 29, 2002, commissions, and the United States Rocky Mountain Power, Inc. a Montana Department of Agriculture, Rural corporation (Applicant), with its Tenaska Georgia Partners, L.P.,(Tenaska Georgia) submitted for filing with the Utilities Service (RUS). principal executive office at 918 East Comment Date: August 16, 2002. Divide Avenue, Bismarck, North Dakota, Federal Energy Regulatory Commission 58506–5650, filed with the Federal its triennial updated market analysis in 12. California Independent System Energy Regulatory Commission accordance with Appendix B of the Operator Corporation Commission’s Order in Minergy (Commission) an application for [Docket No. ER02–2370–000] determination of exempt wholesale Neenah, L.L.C. 88 FERC 61,102. Questions concerning this filing may Take notice that on July 26, 2002, the generator (EWG) status pursuant to part be directed to counsel for Tenaska California Independent System Operator 365 of the Commission’s regulations and Georgia, Neil L. Levy, Kirkland & Ellis, Corporation (ISO) tendered for filing Section 32 of the Public Utility Holding 655 Fifteenth Street, NW., Suite 1200, First Revised Service Agreement No. Company Act of 1935, as amended. Washington, DC 20005, Phone (202) 305 under FERC Electric Tariff, Original Applicant is in the process of 879–5116, Fax (202) 879–5200, e-mail Volume No. 1, which is a Participating developing a 113 MW (gross) coal-fired, [email protected]. Generator Agreement (PGA) between the simple-cycle electrical generating Comment Date: August 19, 2002. ISO and Gas Recovery Systems, Inc (Gas facility to be located in Big Horn Recovery Systems). The ISO has revised County, Hardin, Montana. Applicant 10. PacifiCorp the PGA to update Original Volume No. states that it will be engaged directly [Docket No. ER02–2333–001] 1 of the PGA. and exclusively in the business of Take notice that on July 26, 2002, The ISO requests that the revised PGA owning and operating eligible facilities PacifiCorp submitted for filing the First be made effective as of June 12, 2000. and selling electric energy at wholesale. Amended and Restated Long-Term The ISO states that this filing has been Comment Date: August 22, 2002. Power Sales Agreement (Agreement) served on all entities that are on the 6. Atlantic City Electric Company between PacifiCorp and Southern official service list for Docket No. ER00– California Edison Company (SCE). 3007–000. [Docket No. ER99–2781–001] PacifiCorp inadvertently submitted and Comment Date: August 16, 2002. Take notice that on July 29, 2002, outdated version of the redline Rate 13. DePere Energy L.L.C. Atlantic City Electric Company (Atlantic Schedule No. 248. Please substitute the City) tendered for filing its triennial enclosed correct version of the Rate [Docket No. ER02–2371–000] market power analysis in support of its Schedule. Take notice that on July 26, 2002, market-based rate authority in Comment Date: August 16, 2002. DePere Energy L.L.C. (DePere) filed a compliance with the Federal Energy Notice of Cancellation of its Power 11. Arizona Public Service Company Regulatory Commission’s May 16, 1996, Purchase Agreement with Wisconsin order accepting Atlantic City’s updated [Docket No. ER02–2369–000] Public Service Corporation (WPSC), market-based tariff. Atlantic City Take notice that on July 26, 2002, which has been designated as DePere’s Electric Co., 75 FERC 61,167. Arizona Public Service Company (APS) Rate Schedule FERC No. 1. DePere Comment Date: August 19, 2002. on behalf of itself, and as the Operating proposes that the cancellation be
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effective as of the closing date for the 17. PPL Electric Utilities Corporation Agreement No. 33); (ii) Heartland proposed sale of the DePere Energy [Docket No. ER02–2375–000] Energy Services (Service Agreement No. Center to WPSC. 1); (iii) Federal Energy Sales, Inc. Take notice that on July 26, 2002, PPL (Service Agreement No. 38); (iv) Coastal Comment Date: August 16, 2002. Electric Utilities Corporation (PPL Electric Service Company (Service Electric) filed notice of termination of 14. PJM Interconnection, L.L.C. Agreement No. 12); (v) KN Marketing, the Service Agreement between it and [Docket No. ER02–2372–000] Inc. (Service Agreement No. 37); (vi) Sempra Energy Trading Corp. Catex Vitol Electric, LLC (Service Take notice that on July 26, 2002 PJM designated as Service Agreement No. Agreement No. 9); (vii) Progress Power Interconnection, L.L.C. (PJM), submitted 157 under PPL Electric Utilities Marketing, Inc. (Service Agreement No. for filing with the Federal Energy Corporation’s Market-Based Rate and 53); (viii) PECO Energy Company Regulatory Commission (Commission) Resale of Transmission Rights Tariff, (Service Agreement No. 44); (ix) Calpine an executed interim interconnection FERC Electric Tariff, Revised Volume Power Services Company (Service service agreement between PJM and No. 5. Exelon Corporation. PPL Electric requests that the Agreement No. 61); (x) Central PJM requests a waiver of the termination be effective on September Louisiana Electric Company (Service Commission’s 60-day notice 24, 2002. Notice of the termination has Agreement No. 73); (xi) City of requirement to permit the effective date been served upon Sempra Energy Gainesville, Florida (Service Agreement agreed to by the parties. Copies of this Trading Corp. No. 204); (xii) CMEX Energy, Inc. filing were served upon each of the Comment Date: August 16, 2002. (Service Agreement No. 24); (xiii) Gulf parties to the agreements and the state Stream Energy (Service Agreement No. 18. Southwest Power Pool, Inc. regulatory commissions within the PJM 40); (ivx) PanEnergy Power Services, region. [Docket No. ER02–2376–000] Inc. (Service Agreement No. 49); (vx) Questar Energy Trading Company Comment Date: August 16, 2002. Take notice that on July 29, 2002, Southwest Power Pool, Inc. (SPP) (Service Agreement No. 52); (vxi) Union 15. PJM Interconnection, L.L.C. submitted for filing an unexecuted Electric Company (Service Agreement [Docket No. ER02–2373–000] service agreement for Firm Point-to- No. 65); (vxii) Utilicorp United, Inc., (Service Agreement No. 57); and (vxiii) Take notice that on July 26, 2002 PJM Point Transmission Service with Kansas Municipal Energy Agency. Wisconsin Power & Light (Service Interconnection, L.L.C. (PJM), submitted Agreement No. 56). Additionally, the for filing with the Federal Energy (Transmission Customer). SPP seeks an effective date of July 1, Notice of Cancellation includes the Regulatory Commission (Commission) Short Term Firm Point-to-Point one executed interconnection service 2002 for this service agreement. The Transmission Customer was served with Transmission Service Agreement agreement between PJM and FPL Energy between SCS, as agent for Southern Marcus Hook, L.P. and one executed a copy of this filing. Comment Date: August 19, 2002. Companies, and Catex Vitol Electric, interim interconnection service LLC, designated Service Agreement No. agreement between PJM and Delaware 19. Midwest Generation, LLC 13 under the Tariff as well as the Short Municipal Electric Cooperative. [Docket No. ER02–2377–000] Term Firm Point-to-Point Transmission PJM requests a waiver of the Take notice that on July 29, 2002, Service Agreement between SCS, as Commission’s 60-day notice Midwest Generation, LLC. (Midwest) , agent for Southern Companies, and requirement to permit the effective dates tendered for filing a First Revised PECO Energy Company, designated agreed to by the parties. Copies of this Service Agreement No. 2 under Midwest Service Agreement No. 198 under the filing were served upon each of the FERC Electric Tariff, Original Volume Tariff. parties to the agreements and the state No. 1 (the Peaking Generating Station Comment Date: August 19, 2002. regulatory commissions within the PJM Power Purchase Agreement between region. 21. Xcel Energy Services, Inc. Public Commonwealth Edison Company and Service Company of Colorado Comment Date: August 16, 2002. Midwest). 16. PJM Interconnection, L.L.C. Comment Date: August 19, 2002. [Docket No. ER02–2379–000] Take notice that on July 29, 2002, [Docket No. ER02–2374–000] 20. Southern Company Services, Inc. Xcel Energy Services, Inc. (XES), on Take notice that on July 26, 2002, PJM [Docket No. ER02–2378–000] behalf of Public Service Company of Interconnection, L.L.C. (PJM), submitted Take notice that on July 29, 2002, Colorado (PSCo) submitted for filing for filing with the Federal Energy Southern Company Services, Inc. (SCS), with the Federal Energy Regulatory Regulatory Commission (Commission) acting on behalf of Alabama Power Commission (Commission) the one executed interim interconnection Company, Georgia Power Company, Generation Interconnection Agreement service agreement between PJM and Gulf Power Company, Mississippi between PSCo and Thermo PSEG Fossil L.L.C. and two executed Power Company, and Savannah Electric Cogeneration Partnership, L.P. interconnection service agreements and Power Company (collectively PSCo requests the letter agreements be between PJM and Free State Electric, Southern Companies), filed a Notice of accepted for filing effective July 1, 2002, LLC. Cancellation of twenty (20) transmission and requests waiver of the PJM requests a waiver of the service agreements under the Open Commission’s notice requirements in Commission’s 60-day notice Access Transmission Tariff of Southern order for the Agreements to be accepted requirement to permit the effective dates Companies (Tariff) (FERC Electric Tariff, for filing on the date requested. agreed to by the parties. Copies of this Fourth Revised Volume No. 5). These Comment Date: August 19, 2002. filing were served upon each of the cancellations include non-firm point-to- 22. Madison Gas and Electric Company parties to the agreements and the state point transmission service agreements regulatory commissions within the PJM under the Tariff between SCS, as agent [Docket No. ER02–2380–000] region. for Southern Companies, and (I) Valero Take notice that on July 29, 2002, Comment Date: August 16, 2002. Power Service Company (Service Madison Gas and Electric Company
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(MGE) tendered for filing a service f. Location: The proposed project project must submit the competing agreement under MGE’s Market-Based would be located on an existing dam application itself, or a notice of intent to Power Sales Tariff with NRG Power owned by the U.S. Army Corps of file such an application, to the Marketing Inc. Engineers, on Hominy Creek in Osage Commission on or before the specified MGE requests the agreement be County, Oklahoma. comment date for the particular effective on the date it was filed with g. Filed Pursuant to: Federal Power application (see 18 CFR 4.36). the Federal Energy Regulatory Act, 16 U.S.C. 791(a)–825(r). Submission of a timely notice of intent Commission. h. Applicant Contact: Mr. Brent L. allows an interested person to file the Comment Date: August 19, 2002. Smith, Northwest Power Services, Inc., competing preliminary permit P.O. Box 535, Rigby, ID 83442, (208) application no later than 30 days after Standard Paragraph 745–8630. the specified comment date for the E. Any person desiring to intervene or i. FERC Contact: Any questions on particular application. A competing to protest this filing should file with the this notice should be addressed to Mr. preliminary permit application must Federal Energy Regulatory Commission, Lynn R. Miles, Sr. at (202) 219–2671. conform with 18 CFR 4.30(b) and 4.36. 888 First Street, NE., Washington, DC j. Deadline for filing motions to n. Preliminary Permit—Any qualified 20426, in accordance with Rules 211 intervene, protests and comments: 60 development applicant desiring to file a and 214 of the Commission’s Rules of days from the issuance date of this competing development application Practice and Procedure (18 CFR 385.211 notice. must submit to the Commission, on or and 385.214). Protests will be All documents (original and eight before a specified comment date for the considered by the Commission in copies) should be filed with: Magalie R. particular application, either a determining the appropriate action to be Salas, Secretary, Federal Energy competing development application or a taken, but will not serve to make Regulatory Commission, 888 First notice of intent to file such an protestants parties to the proceeding. Street, NE, Washington, D.C. 20426. application. Submission of a timely Any person wishing to become a party Comments, protests and interventions notice of intent to file a development must file a motion to intervene. All such may be filed electronically via the application allows an interested person motions or protests should be filed on Internet in lieu of paper; see 18 CFR to file the competing application no or before the comment date, and, to the 385.2001(a)(1)(iii) and the instructions later than 120 days after the specified extent applicable, must be served on the on the Commission’s web site under the comment date for the particular applicant and on any other person ‘‘e-Filing’’ link. The Commission application. A competing license designated on the official service list. strongly encourages electronic filings. application must conform with 18 CFR This filing is available for review at the Please include the project number (P– 4.30(b) and 4.36. Commission or may be viewed on the 12189–000) on any comments or o. Notice of Intent—A notice of intent Commission’s web site at http:// motions filed. must specify the exact name, business www.ferc.gov using the ‘‘RIMS’’ link, The Commission’s Rules of Practice address, and telephone number of the select ‘‘Docket #’’ and follow the and Procedure require all interveners prospective applicant, and must include instructions (call 202–208–2222 for filing documents with the Commission an unequivocal statement of intent to assistance). Protests and interventions to serve a copy of that document on submit, if such an application may be may be filed electronically via the each person in the official service list filed, either a preliminary permit Internet in lieu of paper; see 18 CFR for the project. Further, if an intervener application or a development 385.2001(a)(1)(iii) and the instructions files comments or documents with the application (specify which type of on the Commission’s web site under the Commission relating to the merits of an application). A notice of intent must be ‘‘e-Filing’’ link. issue that may affect the responsibilities served on the applicant(s) named in this of a particular resource agency, they public notice. Linwood A. Watson, Jr., must also serve a copy of the document p. Proposed Scope of Studies under Deputy Secretary. on that resource agency. Permit—A preliminary permit, if issued, [FR Doc. 02–20041 Filed 8–7–02; 8:45 am] k. Description of Project: The does not authorize construction. The BILLING CODE 6717–01–P proposed run-of-river project using the term of the proposed preliminary permit existing Corps of Engineers’ Skiatook would be 36 months. The work Dam would consist of: (1) A 48-inch- proposed under the preliminary permit DEPARTMENT OF ENERGY diameter, 200-foot-long steel penstock, would include economic analysis, (2) a powerhouse containing one preparation of preliminary engineering Federal Energy Regulatory generating unit with an installed plans, and a study of environmental Commission capacity of 1.04 MW, (3) a 15 kv impacts. Based on the results of these transmission line approximately 3 miles studies, the Applicant would decide Notice of Application Accepted for long, and (4) appurtenant facilities. The whether to proceed with the preparation Filing and Soliciting Comments, project would have an annual of a development application to Motions to Intervene, and Protests generation of 5.4 GWh. construct and operate the project. August 2, 2002. l. This filing is available for review at q. Comments, Protests, or Motions to Take notice that the following the Commission or may be viewed on Intervene—Anyone may submit hydroelectric application has been filed the Commission’s web site at http:// comments, a protest, or a motion to with the Commission and is available www.ferc.gov using the ‘‘RIMS’’ link, intervene in accordance with the for public inspection: select ‘‘Docket #’’ and follow the requirements of Rules of Practice and a. Type of Application: Preliminary instructions (call 202–208–2222 for Procedure, 18 CFR 385.210, 385.211, Permit. assistance). A copy is also available for 385.214. In determining the appropriate b. Project No: 12189–000. inspection and reproduction at the action to take, the Commission will c. Date Filed: June 10, 2002. address in item h above. m. consider all protests or other comments d. Applicant: Skiatook Hydro, LLC. Preliminary Permit—Anyone desiring filed, but only those who file a motion e. Name of Project: Skiatook Dam to file a competing application for to intervene in accordance with the Hydroelectric Project. preliminary permit for a proposed Commission’s Rules may become a
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party to the proceeding. Any comments, f. Location: The proposed project project must submit the competing protests, or motions to intervene must would be located on an existing dam application itself, or a notice of intent to be received on or before the specified owned by the U.S. Army Corps of file such an application, to the comment date for the particular Engineers, on the East Fork Trinity Commission on or before the specified application. River in Collin County, Texas. comment date for the particular r. Filing and Service of Responsive g. Filed Pursuant to: Federal Power application (see 18 CFR 4.36). Documents—Any filings must bear in Act, 16 USC §§ 791(a)–825(r). Submission of a timely notice of intent all capital letters the title h. Applicant Contact: Mr. Brent L. allows an interested person to file the ‘‘COMMENTS’’, ‘‘NOTICE OF INTENT Smith, Northwest Power Services, Inc., competing preliminary permit TO FILE COMPETING APPLICATION’’, P.O. Box 535, Rigby, ID 83442, (208) application no later than 30 days after ‘‘COMPETING APPLICATION’’, 745–8630. the specified comment date for the ‘‘PROTEST’’, ‘‘MOTION TO i. FERC Contact: Any questions on particular application. A competing INTERVENE’’, as applicable, and the this notice should be addressed to Mr. preliminary permit application must Project Number of the particular Lynn R. Miles, Sr. at (202) 219–2671. conform with 18 CFR 4.30(b) and 4.36. application to which the filing refers. j. Deadline for filing motions to n. Preliminary Permit—Any qualified Any of the above-named documents intervene, protests and comments: 60 development applicant desiring to file a must be filed by providing the original days from the issuance date of this competing development application and the number of copies provided by notice. must submit to the Commission, on or the Commission’s regulations to: The All documents (original and eight before a specified comment date for the Secretary, Federal Energy Regulatory copies) should be filed with: Magalie R. particular application, either a Commission, 888 First Street, NE., Salas, Secretary, Federal Energy competing development application or a Washington, DC 20426. An additional Regulatory Commission, 888 First notice of intent to file such an copy must be sent to Director, Division Street, NE., Washington, DC 20426. application. Submission of a timely of Hydropower Administration and Comments, protests and interventions notice of intent to file a development Compliance, Federal Energy Regulatory may be filed electronically via the application allows an interested person Commission, at the above-mentioned Internet in lieu of paper; see 18 CFR to file the competing application no address. A copy of any notice of intent, 385.2001(a)(1)(iii) and the instructions later than 120 days after the specified competing application or motion to on the Commission’s web site under the comment date for the particular intervene must also be served upon each ‘‘e-Filing’’ link. The Commission application. A competing license representative of the Applicant strongly encourages electronic filings. application must conform with 18 CFR specified in the particular application. Please include the project number (P– 4.30(b) and 4.36. s. Agency Comments—Federal, state, 12233–000) on any comments or o. Notice of Intent—A notice of intent and local agencies are invited to file motions filed. must specify the exact name, business comments on the described application. The Commission’s rules of practice address, and telephone number of the A copy of the application may be and procedure require all interveners prospective applicant, and must include obtained by agencies directly from the filing documents with the Commission an unequivocal statement of intent to Applicant. If an agency does not file to serve a copy of that document on submit, if such an application may be comments within the time specified for each person in the official service list filed, either a preliminary permit filing comments, it will be presumed to for the project. Further, if an intervener application or a development have no comments. One copy of an files comments or documents with the application (specify which type of agency’s comments must also be sent to Commission relating to the merits of an application). A notice of intent must be the Applicant’s representatives. issue that may affect the responsibilities served on the applicant(s) named in this of a particular resource agency, they public notice. Linwood A. Watson, Jr., must also serve a copy of the document p. Proposed Scope of Studies under Deputy Secretary. on that resource agency. Permit—A preliminary permit, if issued, [FR Doc. 02–20044 Filed 8–7–02; 8:45 am] k. Description of Project: The does not authorize construction. The BILLING CODE 6717–01–P proposed project using the existing term of the proposed preliminary permit Corps of Engineers’ Lavon Dam would would be 36 months. The work consist of: (1) A 84-inch-diameter, 200- proposed under the preliminary permit DEPARTMENT OF ENERGY foot-long steel penstock, (2) a would include economic analysis, powerhouse containing one generating preparation of preliminary engineering Federal Energy Regulatory unit with an installed capacity of 1.8 plans, and a study of environmental Commission MW, (3) a 25–kv transmission line impacts. Based on the results of these approximately 1 mile long, and (4) studies, the Applicant would decide Notice of Application Accepted for appurtenant facilities. The project whether to proceed with the preparation Filing and Soliciting Comments, would have an annual generation of 7.2 of a development application to Motions to Intervene, and Protests GWh. construct and operate the project. August 2, 2002. l. This filing is available for review at q. Comments, Protests, or Motions to Take notice that the following the Commission or may be viewed on Intervene—Anyone may submit hydroelectric application has been filed the Commission’s web site at http:// comments, a protest, or a motion to with the Commission and is available www.ferc.gov using the ‘‘RIMS’’ link, intervene in accordance with the for public inspection: select ‘‘Docket #’’ and follow the requirements of Rules of Practice and a. Type of Application: Preliminary instructions (call 202–208–2222 for Procedure, 18 CFR 385.210, .211, .214. Permit. assistance). A copy is also available for In determining the appropriate action to b. Project No: 12233–000. inspection and reproduction at the take, the Commission will consider all c. Date Filed: June 17, 2002. address in item h above. protests or other comments filed, but d. Applicant: Lavon Hydro, LLC. m. Preliminary Permit—Anyone only those who file a motion to e. Name of Project: Lavon Dam desiring to file a competing application intervene in accordance with the Hydroelectric Project. for preliminary permit for a proposed Commission’s Rules may become a
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party to the proceeding. Any comments, f. Location: The proposed project project must submit the competing protests, or motions to intervene must would be located on an existing dam application itself, or a notice of intent to be received on or before the specified owned by the U.S. Army Corps of file such an application, to the comment date for the particular Engineers, on the Caddo River in Clark Commission on or before the specified application. County, Arkansas. comment date for the particular r. Filing and Service of Responsive g. Filed Pursuant to: Federal Power application (see 18 CFR 4.36). Documents—Any filings must bear in Act, 16 USC §§791(a)–825(r). Submission of a timely notice of intent all capital letters the title h. Applicant Contact: Mr. Brent L. allows an interested person to file the ‘‘COMMENTS’’, ‘‘NOTICE OF INTENT Smith, Northwest Power Services, Inc., competing preliminary permit TO FILE COMPETING APPLICATION’’, P.O. Box 535, Rigby, ID 83442, (208) application no later than 30 days after ‘‘COMPETING APPLICATION’’, 745–8630. the specified comment date for the ‘‘PROTEST’’, ‘‘MOTION TO i. FERC Contact: Any questions on particular application. A competing INTERVENE’’, as applicable, and the this notice should be addressed to Mr. preliminary permit application must Project Number of the particular Lynn R. Miles, Sr. at (202) 219–2671. conform with 18 CFR 4.30(b) and 4.36. application to which the filing refers. j. Deadline for filing motions to n. Preliminary Permit—Any qualified Any of the above-named documents intervene, protests and comments: 60 development applicant desiring to file a must be filed by providing the original days from the issuance date of this competing development application and the number of copies provided by notice. must submit to the Commission, on or the Commission’s regulations to: The All documents (original and eight before a specified comment date for the Secretary, Federal Energy Regulatory copies) should be filed with: Magalie R. particular application, either a Commission, 888 First Street, NE., Salas, Secretary, Federal Energy competing development application or a Washington, DC 20426. An additional Regulatory Commission, 888 First notice of intent to file such an copy must be sent to Director, Division Street, NE., Washington, DC 20426. application. Submission of a timely of Hydropower Administration and Comments, protests and interventions notice of intent to file a development Compliance, Federal Energy Regulatory may be filed electronically via the application allows an interested person Commission, at the above-mentioned Internet in lieu of paper; see 18 CFR to file the competing application no address. A copy of any notice of intent, 385.2001(a)(1)(iii) and the instructions later than 120 days after the specified competing application or motion to on the Commission’s web site under the comment date for the particular intervene must also be served upon each ‘‘e-Filing’’ link. The Commission application. A competing license representative of the Applicant strongly encourages electronic filings. application must conform with 18 CFR specified in the particular application. Please include the project number (P– 4.30(b) and 4.36. s. Agency Comments—Federal, state, 12256–000) on any comments or o. Notice of Intent—A notice of intent and local agencies are invited to file motions filed. must specify the exact name, business comments on the described application. The Commission’s rules of practice address, and telephone number of the A copy of the application may be and procedure require all interveners prospective applicant, and must include obtained by agencies directly from the filing documents with the Commission an unequivocal statement of intent to Applicant. If an agency does not file to serve a copy of that document on submit, if such an application may be comments within the time specified for each person in the official service list filed, either a preliminary permit filing comments, it will be presumed to for the project. Further, if an intervener application or a development have no comments. One copy of an files comments or documents with the application (specify which type of agency’s comments must also be sent to Commission relating to the merits of an application). A notice of intent must be the Applicant’s representatives. issue that may affect the responsibilities served on the applicant(s) named in this of a particular resource agency, they public notice. Linwood A. Watson, Jr., must also serve a copy of the document p. Proposed Scope of Studies under Deputy Secretary. on that resource agency. Permit—A preliminary permit, if issued, [FR Doc. 02–20045 Filed 8–7–02; 8:45 am] k. Description of Project: The does not authorize construction. The BILLING CODE 6717–01–P proposed run-of-river project using the term of the proposed preliminary permit Corps’ existing Degray Reregulating would be 36 months. The work Dam would consist of: (1) An 84-inch- proposed under the preliminary permit DEPARTMENT OF ENERGY diameter, 200-foot-long steel penstock, would include economic analysis, (2) a powerhouse containing one preparation of preliminary engineering Federal Energy Regulatory generating unit with an installed plans, and a study of environmental Commission capacity of 1 MW, (3) a 15-kv impacts. Based on the results of these transmission line approximately 2 miles studies, the Applicant would decide Notice of Application Accepted for long, and (4) appurtenant facilities. The whether to proceed with the preparation Filing and Soliciting Comments, project would have an annual of a development application to Motions to Intervene, and Protests generation of 4.4 GWh. construct and operate the project. August 2, 2002. l. This filing is available for review at q. Comments, Protests, or Motions to Take notice that the following the Commission or may be viewed on Intervene—Anyone may submit hydroelectric application has been filed the Commission’s web site at http:// comments, a protest, or a motion to with the Commission and is available www.ferc.gov using the ‘‘RIMS’’ link, intervene in accordance with the for public inspection: select ‘‘Docket #’’ and follow the requirements of Rules of Practice and a. Type of Application: Preliminary instructions (call 202–208–2222 for Procedure, 18 CFR 385.210, .211, .214. Permit. assistance). A copy is also available for In determining the appropriate action to b. Project No: 12256–000. inspection and reproduction at the take, the Commission will consider all c. Date Filed: June 20, 2002. address in item h above. protests or other comments filed, but d. Applicant: DeGray Hydro, LLC. m. Preliminary Permit—Anyone only those who file a motion to e. Name of Project: DeGray desiring to file a competing application intervene in accordance with the Reregulating Dam Hydroelectric Project. for preliminary permit for a proposed Commission’s rules may become a party
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to the proceeding. Any comments, e. Name of Project: Eel Weir (11) a powerhouse containing three protests, or motions to intervene must Hydroelectric Project. Hercules turbines and generating units, be received on or before the specified f. Location: The existing project is having an installed capacity of 1,800 comment date for the particular located on the Presumpscot River at the kilowatts; (12) a 3.5-mile-long, 11- application. outlet of Sebago Lake, in Cumberland kilovolt transmission line; and (13) r. Filing and Service of Responsive County, Maine. The project does not appurtenant facilities. Documents—Any filings must bear in affect federal lands. The average annual generation is all capital letters the title g. Filed Pursuant to: Federal Power estimated to be about 12,300 megawatt- ‘‘COMMENTS’’, ‘‘NOTICE OF INTENT Act 16 U.S.C. §§ 791(a)–825(r) hours. All power generated by the TO FILE COMPETING APPLICATION’’, h. Applicant Contact: Thomas P. project is utilized by the applicant’s ‘‘COMPETING APPLICATION’’, Howard, S.D. Warren Company, 89 paper mill in Westbrook, Maine. Cumberland Street, P.O. Box 5000, ‘‘PROTEST’’, ‘‘MOTION TO m. Location of the Application: A INTERVENE’’, as applicable, and the Westbrook, ME 04098–1597; Telephone (207) 856–4286 copy of application is on file with the Project Number of the particular Commission and is available for public application to which the filing refers. i. FERC Contact: Allan Creamer, (202) 502–8365 or [email protected]. inspection. The application may be Any of the above-named documents viewed on the web at http:// must be filed by providing the original j. Deadline for Filing Motions to Intervene and Protests: 60 days from the www.ferc.gov using the ‘‘FERRIS’’ link. and the number of copies provided by Enter the docket number, excluding the the Commission’s regulations to: The issuance date of this notice. All documents (original and eight last three digits in the docket number Secretary, Federal Energy Regulatory copies) should be filed with: Magalie R. field, to access the document. For Commission, 888 First Street, NE., Salas, Secretary, Federal Energy assistance, call (202) 502–8222. A copy Washington, DC 20426. An additional Regulatory Commission, 888 First is also available for inspection and copy must be sent to Director, Division Street, NE., Washington, DC 20426. The reproduction at the address in item h of Hydropower Administration and Commission strongly encourages above. Compliance, Federal Energy Regulatory electronic filings. n. Anyone may submit a motion to Commission, at the above-mentioned The Commission’s rules of practice intervene or protest in accordance with address. A copy of any notice of intent, require all interveners filing documents the requirements of rules of practice and competing application or motion to with the Commission to serve a copy of procedure, 18 CFR 385.210, 385.211, intervene must also be served upon each that document on each person on the and 385.214. In determining the representative of the Applicant official service list for the project. appropriate action to take, the specified in the particular application. Further, if an intervener files comments Commission will consider all protests s. Agency Comments—Federal, state, or documents with the Commission filed, but only those who file a motion and local agencies are invited to file relating to the merits of an issue that to intervene in accordance with the comments on the described application. may affect the responsibilities of a Commission’s Rules may become a A copy of the application may be particular resource agency, they must party to the proceeding. Any motions to obtained by agencies directly from the also serve a copy of the document on intervene or protests must be received Applicant. If an agency does not file that resource agency. on or before the specified deadline date comments within the time specified for Motions to intervene and protests may for the particular application. filing comments, it will be presumed to be filed electronically via the Internet in have no comments. One copy of an All filings must (1) bear in all capital lieu of paper. See 18 CFR letters the title ‘‘MOTION TO agency’s comments must also be sent to 385.2001(a)(1)(iii) and the instructions the Applicant’s representatives. INTERVENE’’ or ‘‘PROTEST;’’ (2) set on the Commission’s website (http:// forth in the heading the name of the Linwood A. Watson, Jr., www.ferc.gov) under the ‘‘e-Filing’’ link. applicant and the project number of the Deputy Secretary. The Commission strongly encourages application to which the filing [FR Doc. 02–20046 Filed 8–7–02; 8:45 am] electronic filing. responds; (3) furnish the name, address, k. Status: This application has been BILLING CODE 6717–01–P and telephone number of the person accepted for filing, but is not ready for intervening or protesting; and (4) environmental analysis at this time. otherwise comply with the requirements l. Description of Project: The existing DEPARTMENT OF ENERGY of 18 CFR 385.2001 through 385.2005. Eel Weir Project operates in a store-and- Agencies may obtain copies of the release mode. The project consists of the Federal Energy Regulatory application directly from the applicant. following features: (1) A 115-foot-long, Commission A copy of any motion to intervene or 23-foot-high stone masonry spillway protest must be served upon each dam; (2) a 150-foot-long, 10-foot-high Notice of Application Accepted for representative of the applicant specified stone and earth-fill east abutment Filing, Soliciting Motions to Intervene in the particular application. and Protests, and Establishing section; (3) a 90-foot-long, 5-foot-high Procedural Milestones for Relicensing stone and earth-fill west abutment o. Procedural Schedule and Final section; (4) five 6.5-foot-high by 4.75- Amendments: The application will be August 2, 2002. foot-wide discharge gates; (5) four 8.8- processed according to the following Take notice that the following foot-high by 7-foot-wide canal intake Hydro Licensing Schedule. Revisions to hydroelectric application has been filed gates; (6) a 12-mile-long, 28,771-acre the schedule will be made if the with the Commission and is available impoundment, Sebago Lake, at elevation Commission determines it necessary to for public inspection. 266.65 msl; (7) a 6,700-mile-long do so: a. Type of Application: New Major bypassed reach; (8) a 90-foot-long fish Tentative License. screen, located upstream of the canal Action date b. Project No.: 2984–042. gates; (9) a 4,826-foot-long, 15-foot-deep c. Date Filed: March 29, 2002. earthen power canal; (10) a 90-foot-long Request Additional August/September d. Applicant: S.D. Warren Company. timber-sheathed canal overflow weir; Information. 2002.
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Tentative P.O. Box 535, Rigby, Idaho 83442, allows an interested person to file the Action date Telephone: (208) 745–8630. competing preliminary permit i. FERC Contact: Mr. Lynn R. Miles, application no later than 30 days after Issue Scoping Doc- October 2002. Sr. (202) 219–2671. the specified comment date for the ument 1 for j. Deadline for filing motions to particular application. A competing Comment. intervene, protests and comments: 60 preliminary permit application must Hold Scoping November 2002. days from the issuance date of this Meeting(s). conform with 18 CFR 4.30(b) and 4.36. Request Additional January 2003. notice. n. Preliminary Permit—Any qualified Information (if All documents (original and eight development applicant desiring to file a necessary). copies) should be filed with: Magalie R. competing development application Issue Scoping Doc- January 2003. Salas, Secretary, Federal Energy must submit to the Commission, on or ument 2. Regulatory Commission, 888 First before a specified comment date for the Notice of Applica- February 2003. Street, NE., Washington, DC 20426. particular application, either a tion Ready for Comments, protests and interventions competing development application or a Environmental may be filed electronically via the notice of intent to file such an Analysis. Internet in lieu of paper; see 18 CFR application. Submission of a timely Notice of avail- August 2003. 385.2001(a)(1)(iii) and the instructions notice of intent to file a development ability of the draft on the Commission’s web site under the NEPA document. application allows an interested person Initiate 10(j) proc- October 2003. ‘‘e-Filing’’ link. The Commission to file the competing application no ess. strongly encourages electronic filings. later than 120 days after the specified Notice of avail- December 2004. Please include the project number (P– comment date for the particular ability of the final 12181–000) on any comments or application. A competing license NEPA document. motions filed. application must conform with 18 CFR Ready for Commis- March 2004. The Commission’s rules of practice 4.30(b) and 4.36. sion decision on and procedure require all interveners o. Notice of Intent—A notice of intent the application. filing documents with the Commission must specify the exact name, business to serve a copy of that document on address, and telephone number of the Final amendments to the application each person in the official service list prospective applicant, and must include must be filed with the Commission no for the project. Further, if an intervener an unequivocal statement of intent to later than 30 days from the issuance files comments or documents with the submit, if such an application may be date of the notice of ready for Commission relating to the merits of an filed, either a preliminary permit environmental analysis. issue that may affect the responsibilities application or a development Linwood A. Watson, Jr., of a particular resource agency, they application (specify which type of must also serve a copy of the document Deputy Secretary. application). A notice of intent must be on that resource agency. served on the applicant(s) named in this [FR Doc. 02–20047 Filed 8–7–02; 8:45 am] k. Description of Project: The public notice. BILLING CODE 6717–01–P proposed project would consist of: (1) p. Proposed Scope of Studies under The existing 51-foot-high, 225-feet-long Permit—A preliminary permit, if issued, earthfill dam, (2) the existing Sequoia does not authorize construction. The DEPARTMENT OF ENERGY Lake with a surface area of 200 acres term of the proposed preliminary permit Federal Energy Regulatory and a storage capacity of 1,370 acre-feet would be 36 months. The work Commission at a normal maximum water surface proposed under the preliminary permit elevation of 5,337 feet msl, (3) a 72- would include economic analysis, Notice of Application Accepted for inch-diameter, 700-foot-long steel preparation of preliminary engineering Filing and Soliciting Comments, penstock, (4) a powerhouse with an plans, and a study of environmental Motions to Intervene, and Protests installed capacity of 1.09 MW, (5) a 15- impacts. Based on the results of these kv transmission line approximately 2 studies, the Applicant would decide August 2, 2002. miles in length, and (6) appurtenant whether to proceed with the preparation Take notice that the following facilities. The project would have an of a development application to hydroelectric application has been filed annual generation of 3.905 GWh. construct and operate the project. with the Commission and is available l. This filing is available for review at q. Comments, Protests, or Motions to for public inspection: the Commission or may be viewed on Intervene—Anyone may submit a. Type of Application: Preliminary the Commission’s web site at http:// comments, a protest, or a motion to Permit. www.ferc.gov using the ‘‘RIMS’’ link, intervene in accordance with the b. Project No: 12181–000. select ‘‘Docket #’’ and follow the requirements of rules of practice and c. Date Filed: June 4, 2002. instructions (call 202–208–2222 for procedure, 18 CFR 385.210, .211, .214. d. Applicant: Sequoia Hydro, LLC. assistance). A copy is also available for In determining the appropriate action to e. Name of Project: Sequoia Dam inspection and reproduction at the take, the Commission will consider all Hydroelectric Project. address in item h above. protests or other comments filed, but f. Location: The proposed project m. Preliminary Permit—Anyone only those who file a motion to would be located on an existing dam desiring to file a competing application intervene in accordance with the owned by YMCA Inc., on the Mill Flat for preliminary permit for a proposed Commission’s Rules may become a Creek in Fresno County, California. The project must submit the competing party to the proceeding. Any comments, proposed project would not occupy application itself, or a notice of intent to protests, or motions to intervene must federal lands or facilities. file such an application, to the be received on or before the specified g. Filed Pursuant to: Federal Power Commission on or before the specified comment date for the particular Act, 16 USC §§791(a)–825(r). comment date for the particular application. h. Applicant Contact: Mr. Brent L. application (see 18 CFR 4.36). r. Filing and Service of Responsive Smith, Northwest Power Services, Inc., Submission of a timely notice of intent Documents—Any filings must bear in
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all capital letters the title g. Filed Pursuant to: Federal Power Submission of a timely notice of intent ‘‘COMMENTS’’, ‘‘NOTICE OF INTENT Act, 16 USC §§ 791(a)–825(r). allows an interested person to file the TO FILE COMPETING APPLICATION’’, h. Applicant Contact: Mr. Brent L. competing preliminary permit ‘‘COMPETING APPLICATION’’, Smith, Northwest Power Services, Inc., application no later than 30 days after ‘‘PROTEST’’, ‘‘MOTION TO P.O. Box 535, Rigby, ID 83442. the specified comment date for the INTERVENE’’, as applicable, and the i. FERC Contact: Any questions on particular application. A competing Project Number of the particular this notice should be addressed to Mr. preliminary permit application must application to which the filing refers. Lynn R. Miles, Sr. at (202) 219–2671. conform with 18 CFR 4.30(b) and 4.36. Any of the above-named documents j. Deadline for filing motions to n. Preliminary Permit—Any qualified must be filed by providing the original intervene, protests and comments: 60 development applicant desiring to file a and the number of copies provided by days from the issuance date of this competing development application the Commission’s regulations to: The notice. must submit to the Commission, on or Secretary, Federal Energy Regulatory All documents (original and eight before a specified comment date for the copies) should be filed with: Magalie R. Commission, 888 First Street, NE., particular application, either a Salas, Secretary, Federal Energy Washington, DC 20426. An additional competing development application or a Regulatory Commission, 888 First copy must be sent to Director, Division notice of intent to file such an Street, NE., Washington, DC 20426. of Hydropower Administration and application. Submission of a timely Comments, protests and interventions Compliance, Federal Energy Regulatory notice of intent to file a development may be filed electronically via the Commission, at the above-mentioned application allows an interested person Internet in lieu of paper; see 18 CFR address. A copy of any notice of intent, to file the competing application no 385.2001(a)(1)(iii) and the instructions competing application or motion to later than 120 days after the specified on the Commission’s web site under the intervene must also be served upon each comment date for the particular ‘‘e-Filing’’ link. The Commission representative of the Applicant application. A competing license strongly encourages electronic filings. specified in the particular application. application must conform with 18 CFR Please include the project number (P– s. Agency Comments—Federal, state, 4.30(b) and 4.36. 12203–000) on any comments or and local agencies are invited to file o. Notice of Intent—A notice of intent comments on the described application. motions filed. The Commission’s Rules of Practice must specify the exact name, business A copy of the application may be and Procedure require all interveners address, and telephone number of the obtained by agencies directly from the filing documents with the Commission prospective applicant, and must include Applicant. If an agency does not file to serve a copy of that document on an unequivocal statement of intent to comments within the time specified for each person in the official service list submit, if such an application may be filing comments, it will be presumed to for the project. Further, if an intervener filed, either a preliminary permit have no comments. One copy of an files comments or documents with the application or a development agency’s comments must also be sent to Commission relating to the merits of an application (specify which type of the Applicant’s representatives. issue that may affect the responsibilities application). A notice of intent must be Linwood A. Watson, Jr., of a particular resource agency, they served on the applicant(s) named in this Deputy Secretary. must also serve a copy of the document public notice. p. Proposed Scope of Studies under [FR Doc. 02–20050 Filed 8–7–02; 8:45 am] on that resource agency. Permit—A preliminary permit, if issued, BILLING CODE 6717–01–P k. Description of Project: The proposed run-of-river project using the does not authorize construction. The Corps of Engineers’ existing North San term of the proposed preliminary permit DEPARTMENT OF ENERGY Gabriel Dam would consist of: (1) A 60- would be 36 months. The work inch-diameter, 100-foot-long steel proposed under the preliminary permit Federal Energy Regulatory penstock, (2) a powerhouse containing would include economic analysis, Commission one generating unit with an installed preparation of preliminary engineering capacity of 1 MW, (3) a 15–kv plans, and a study of environmental Notice of Application Accepted for transmission line approximately 1 mile impacts. Based on the results of these Filing and Soliciting Comments, long, and (4) appurtenant facilities. The studies, the Applicant would decide Motions To Intervene, and Protests project would have an annual whether to proceed with the preparation of a development application to August 2, 2002. generation of 1.8 GWh. construct and operate the project. Take notice that the following l. This filing is available for review at q. Comments, Protests, or Motions to hydroelectric application has been filed the Commission or may be viewed on Intervene—Anyone may submit with the Commission and is available the Commission’s web site at http:// comments, a protest, or a motion to for public inspection: www.ferc.gov using the ‘‘RIMS’’ link, a. Type of Application: Preliminary select ‘‘Docket #’’ and follow the intervene in accordance with the Permit. instructions (call 202–208–2222 for requirements of Rules of Practice and b. Project No: 12203–000. assistance). A copy is also available for Procedure, 18 CFR 385.210, .211, .214. c. Date Filed: June 11, 2002. inspection and reproduction at the In determining the appropriate action to d. Applicant: North San Gabriel address in item h above. take, the Commission will consider all Hydro, LLC. m. Preliminary Permit—Anyone protests or other comments filed, but e. Name of Project: North San Gabriel desiring to file a competing application only those who file a motion to Dam Hydroelectric Project. for preliminary permit for a proposed intervene in accordance with the f. Location: The proposed project project must submit the competing Commission’s Rules may become a would be located on an existing dam application itself, or a notice of intent to party to the proceeding. Any comments, owned by the U.S. Army Corps of file such an application, to the protests, or motions to intervene must Engineers, on the North Fork San Commission on or before the specified be received on or before the specified Gabriel River in Williamson County, comment date for the particular comment date for the particular Texas. application (see 18 CFR 4.36). application.
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r. Filing and Service of Responsive g. Filed Pursuant to: Federal Power application (see 18 CFR 4.36). Documents—Any filings must bear in Act, 16 USC §§791(a)–825(r). Submission of a timely notice of intent all capital letters the title h. Applicant Contact: Mr. Brent L. allows an interested person to file the ‘‘COMMENTS’’, ‘‘NOTICE OF INTENT Smith, Northwest Power Services, Inc., competing preliminary permit TO FILE COMPETING APPLICATION’’, P.O. Box 535, Rigby, ID 83442, (208) application no later than 30 days after ‘‘COMPETING APPLICATION’’, 745–8630. the specified comment date for the ‘‘PROTEST’’, ‘‘MOTION TO i. FERC Contact: Any questions on particular application. A competing INTERVENE’’, as applicable, and the this notice should be addressed to Mr. preliminary permit application must Project Number of the particular Lynn R. Miles, Sr. at (202) 219–2671. conform with 18 CFR 4.30(b) and 4.36. application to which the filing refers. j. Deadline for filing motions to n. Preliminary Permit—Any qualified Any of the above-named documents intervene, protests and comments: 60 development applicant desiring to file a must be filed by providing the original days from the issuance date of this competing development application and the number of copies provided by notice. must submit to the Commission, on or the Commission’s regulations to: The All documents (original and eight before a specified comment date for the Secretary, Federal Energy Regulatory copies) should be filed with: Magalie R. particular application, either a Commission, 888 First Street, NE., Salas, Secretary, Federal Energy competing development application or a Washington, DC 20426. An additional Regulatory Commission, 888 First notice of intent to file such an Street, NE., Washington, DC 20426. copy must be sent to Director, Division application. Submission of a timely Comments, protests and interventions of Hydropower Administration and notice of intent to file a development may be filed electronically via the Compliance, Federal Energy Regulatory application allows an interested person Internet in lieu of paper; see 18 CFR Commission, at the above-mentioned to file the competing application no 385.2001(a)(1)(iii) and the instructions address. A copy of any notice of intent, later than 120 days after the specified on the Commission’s web site under the competing application or motion to comment date for the particular ‘‘e-Filing’’ link. The Commission intervene must also be served upon each application. A competing license strongly encourages electronic filings. representative of the Applicant application must conform with 18 CFR Please include the project number (P– specified in the particular application. 4.30(b) and 4.36. s. Agency Comments—Federal, state, 12228–000) on any comments or o. Notice of Intent—A notice of intent and local agencies are invited to file motions filed. must specify the exact name, business The Commission’s rules of practice comments on the described application. address, and telephone number of the and procedure require all interveners A copy of the application may be prospective applicant, and must include filing documents with the Commission obtained by agencies directly from the an unequivocal statement of intent to to serve a copy of that document on Applicant. If an agency does not file submit, if such an application may be each person in the official service list comments within the time specified for filed, either a preliminary permit for the project. Further, if an intervener filing comments, it will be presumed to application or a development files comments or documents with the have no comments. One copy of an application (specify which type of Commission relating to the merits of an agency’s comments must also be sent to application). A notice of intent must be issue that may affect the responsibilities the Applicant’s representatives. served on the applicant(s) named in this of a particular resource agency, they public notice. Linwood A. Watson, Jr., must also serve a copy of the document p. Proposed Scope of Studies under Deputy Secretary. on that resource agency. Permit—A preliminary permit, if issued, [FR Doc. 02–20051 Filed 8–7–02; 8:45 am] k. Description of Project: The does not authorize construction. The BILLING CODE 6717–01–P proposed run-of-river project using the term of the proposed preliminary permit existing Corps of Engineers’ Hulah Dam would be 36 months. The work would consist of: (1) A 96-inch- proposed under the preliminary permit DEPARTMENT OF ENERGY diameter, 250-foot-long steel penstock, would include economic analysis, (2) a powerhouse containing one preparation of preliminary engineering Federal Energy Regulatory generating unit with an installed plans, and a study of environmental Commission capacity of 1.64 MW, (3) a 15-kv impacts. Based on the results of these transmission line approximately 1 mile studies, the Applicant would decide Notice of Application Accepted for long, and (4) appurtenant facilities. The whether to proceed with the preparation Filing and Soliciting Comments, project would have an annual of a development application to Motions to Intervene, and Protests generation of 2.5 GWh. construct and operate the project. q. Comments, Protests, or Motions to August 2, 2002. l. This filing is available for review at Intervene—Anyone may submit Take notice that the following the Commission or may be viewed on comments, a protest, or a motion to hydroelectric application has been filed the Commission’s web site at http:// intervene in accordance with the with the Commission and is available www.ferc.gov using the ‘‘RIMS’’ link, requirements of Rules of Practice and for public inspection: select ‘‘Docket #’’ and follow the a. Type of Application: Preliminary instructions (call 202–208–2222 for Procedure, 18 CFR 385.210, .211, .214. Permit. assistance). A copy is also available for In determining the appropriate action to b. Project No: 12228–000. inspection and reproduction at the take, the Commission will consider all c. Date Filed: June 17, 2002. address in item h above. protests or other comments filed, but d. Applicant: Hulah Hydro, LLC. m. Preliminary Permit—Anyone only those who file a motion to e. Name of Project: Hulah Dam desiring to file a competing application intervene in accordance with the Hydroelectric Project. for preliminary permit for a proposed Commission’s Rules may become a f. Location: The proposed project project must submit the competing party to the proceeding. Any comments, would be located on an existing dam application itself, or a notice of intent to protests, or motions to intervene must owned by the U.S. Army Corps of file such an application, to the be received on or before the specified Engineers, on the Caney River in Osage Commission on or before the specified comment date for the particular County, Oklahoma. comment date for the particular application.
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r. Filing and Service of Responsive Engineers on the Monongahela River in application itself, or a notice of intent to Documents—Any filings must bear in Allegheny County, Pennsylvania. file such an application, to the all capital letters the title g. Filed Pursuant to: Federal Power Commission on or before the specified ‘‘COMMENTS’’, ‘‘NOTICE OF INTENT Act, 16 U.S.C. 791(a)–825(r). comment date for the particular TO FILE COMPETING APPLICATION’’, h. Applicant Contact: Mr. Raymond application (see 18 CFR 4.36). ‘‘COMPETING APPLICATION’’, Helter, Universal Electric Power Submission of a timely notice of intent ‘‘PROTEST’’, ‘‘MOTION TO Corporation 1145 Highbrook Street, allows an interested person to file the INTERVENE’’, as applicable, and the Akron, OH 44301, (330) 535–7115. competing preliminary permit Project Number of the particular i. FERC Contact: Any questions on application no later than 30 days after application to which the filing refers. this notice should be addressed to Mr. the specified comment date for the Any of the above-named documents Lynn R. Miles, Sr. at (202) 219–2671. particular application. A competing must be filed by providing the original j. Deadline for filing motions to preliminary permit application must and the number of copies provided by intervene, protests and comments: 60 conform with 18 CFR 4.30(b) and 4.36. the Commission’s regulations to: The days from the issuance date of this n. Preliminary Permit—Any qualified Secretary, Federal Energy Regulatory notice. development applicant desiring to file a All documents (original and eight Commission, 888 First Street, N.E., competing development application copies) should be filed with: Magalie R. Washington, D.C. 20426. An additional must submit to the Commission, on or Salas, Secretary, Federal Energy copy must be sent to Director, Division before a specified comment date for the Regulatory Commission, 888 First of Hydropower Administration and particular application, either a Street, NE., Washington, DC 20426. Compliance, Federal Energy Regulatory competing development application or a Comments, protests and interventions Commission, at the above-mentioned notice of intent to file such an may be filed electronically via the address. A copy of any notice of intent, application. Submission of a timely Internet in lieu of paper; see 18 CFR competing application or motion to notice of intent to file a development 385.2001(a)(1)(iii) and the instructions intervene must also be served upon each application allows an interested person on the Commission’s web site under the representative of the Applicant to file the competing application no ‘‘e-Filing’’ link. The Commission specified in the particular application. later than 120 days after the specified strongly encourages electronic filings. s. Agency Comments—Federal, state, comment date for the particular Please include the project number (P– and local agencies are invited to file application. A competing license 12259–000) on any comments or comments on the described application. application must conform with 18 CFR motions filed. A copy of the application may be 4.30(b) and 4.36. The Commission’s Rules of Practice o. Notice of Intent—A notice of intent obtained by agencies directly from the and Procedure require all interveners must specify the exact name, business Applicant. If an agency does not file filing documents with the Commission address, and telephone number of the comments within the time specified for to serve a copy of that document on prospective applicant, and must include filing comments, it will be presumed to each person in the official service list an unequivocal statement of intent to have no comments. One copy of an for the project. Further, if an intervener submit, if such an application may be agency’s comments must also be sent to files comments or documents with the filed, either a preliminary permit the Applicant’s representatives. Commission relating to the merits of an application or a development Linwood A. Watson, Jr., issue that may affect the responsibilities application (specify which type of Deputy Secretary. of a particular resource agency, they application). A notice of intent must be [FR Doc. 02–20052 Filed 8–7–02; 8:45 am] must also serve a copy of the document served on the applicant(s) named in this BILLING CODE 6717–01–P on that resource agency. public notice. k. Description of Project: The p. Proposed Scope of Studies under proposed run-of-river project using the Permit—A preliminary permit, if issued, DEPARTMENT OF ENERGY Corps’ existing Monongahela Lock and does not authorize construction. The Dam No. 2 would consist of: (1) six steel term of the proposed preliminary permit Federal Energy Regulatory penstocks approximately 30 feet in would be 36 months. The work Commission length, each 84 inches in diameter, (2) proposed under the preliminary permit a powerhouse containing several would include economic analysis, Notice of Application Accepted for turbine/generating units with a preparation of preliminary engineering Filing and Soliciting Comments, combined installed capacity of 6.14 plans, and a study of environmental Motions to Intervene, and Protests MW, (3) a 14.7–kv transmission line impacts. Based on the results of these approximately 1,800 feet long, and (4) studies, the Applicant would decide August 2, 2002. appurtenant facilities. The project whether to proceed with the preparation Take notice that the following would have an annual generation of 24 of a development application to hydroelectric application has been filed GWh. construct and operate the project. with the Commission and is available l. This filing is available for review at q. Comments, Protests, or Motions to for public inspection: the Commission or may be viewed on Intervene—Anyone may submit a. Type of Application: Preliminary the Commission’s web site at http:// comments, a protest, or a motion to Permit. b www.ferc.gov using the ‘‘RIMS’’ link, intervene in accordance with the . Project No: 12259–000. select ‘‘Docket #’’ and follow the requirements of Rules of Practice and c. Date Filed: June 21, 2002. instructions (call 202–208–2222 for Procedure, 18 CFR 385.210, 385.211, d. Applicant: Universal Electric assistance). A copy is also available for 385.214. In determining the appropriate Power Corporation. inspection and reproduction at the action to take, the Commission will e. Name of Project: Monongahela L&D address in item h above. consider all protests or other comments No. 2 Hydroelectric Project. m. Preliminary Permit— Anyone filed, but only those who file a motion f. Location: The proposed project desiring to file a competing application to intervene in accordance with the would be located on an existing dam for preliminary permit for a proposed Commission’s Rules may become a owned by the U.S. Army Corps of project must submit the competing party to the proceeding. Any comments,
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protests, or motions to intervene must Wednesday, December 18, 2002 Dated: July 25, 2002. be received on or before the specified Spencer Abraham, Magalie R. Salas, comment date for the particular Secretary. application. Secretary. r. Filing and Service of Responsive [FR Doc. 02–20049 Filed 8–7–02; 8:45 am] Order Confirming and Approving Documents—Any filings must bear in BILLING CODE 6717–01–P Power Rates on an Interim Basis all capital letters the title Pursuant to Sections 302(a) and ‘‘COMMENTS’’, ‘‘NOTICE OF INTENT 301(b) of the Department of Energy TO FILE COMPETING APPLICATION’’, DEPARTMENT OF ENERGY Organization Act, Public Law 95–91, the ‘‘COMPETING APPLICATION’’, functions of the Secretary of the Interior ‘‘PROTEST’’, ‘‘MOTION TO Georgia-Alabama-South Carolina and the Federal Power Commission INTERVENE’’, as applicable, and the Rates, Rate OrderNo. SEPA–41 under section 5 of the Flood Control Act Project Number of the particular of 1944, 16 U.S.C. 825s, relating to the AGENCY: Southeastern Power application to which the filing refers. Southeastern Power Administration Administration, DOE. Any of the above-named documents (Southeastern) were transferred to and must be filed by providing the original ACTION: Notice of Rate Order. vested in the Secretary of Energy. By and the number of copies provided by Delegation Order No. 0204–108, the Commission’s regulations to: The SUMMARY: The Secretary of Department effective May 30, 1986, 51 FR 19744 Secretary, Federal Energy Regulatory of Energy, confirmed and approved, on (May 30, 1986), the Secretary of Energy Commission, 888 First Street, NE., an interim basis, Rate Schedules SOCO– delegated to the Administrator the Washington, DC 20426. An additional 1–A, SOCO–2–A, SOCO–3–A, SOCO–4– authority to develop power and copy must be sent to Director, Division A, ALA–1–J, MISS–1–J, Duke–1–A, transmission rates, and delegated to the of Hydropower Administration and Duke–2–A, Duke–3–A, Duke–4–A, Under Secretary the authority to Compliance, Federal Energy Regulatory Santee–1–A, Santee–2–A, Santee–3–A, confirm, approve, and place in effect Commission, at the above-mentioned Santee–4, SCE&G–1–A, SCE&G–2–A, such rates on an interim basis and address. A copy of any notice of intent, SCE&G–3–A, SCE&G–4–A, Regulation– delegated to the Federal Energy competing application or motion to 1, Replacement–1, Pump–1–A, and Regulatory Commission (FERC) the intervene must also be served upon each Pump–2. The rates were approved on an authority to confirm and approve on a representative of the Applicant interim basis through September 30, final basis or to disapprove rates specified in the particular application. 2007, and are subject to confirmation developed by the Administrator under s. Agency Comments—Federal, state, and approval by the Federal Energy the delegation. On December 6, 2001, and local agencies are invited to file Regulatory Commission on a final basis. the Secretary of Energy issued comments on the described application. Delegation Order No. 00–001.00, DATES: A copy of the application may be Approval of rate on an interim granting the Deputy Secretary authority obtained by agencies directly from the basis is effective through September 30, to confirm, approve, and place into Applicant. If an agency does not file 2007. effect Southeastern’s rates on an interim comments within the time specified for FOR FURTHER INFORMATION CONTACT: basis. Because there is no Deputy filing comments, it will be presumed to Leon Jourolmon, Assistant Secretary at the present time, the have no comments. One copy of an Administrator, Finance & Marketing, Secretary of Energy has exercised his agency’s comments must also be sent to Southeastern Power Administration, authority to confirm, approve, and place the Applicant’s representatives. Department of Energy, 1166 Athens into effect on an interim basis the rate Tech Road, Elberton, Georgia 30635– schedules in Southeastern Rate Order Linwood A. Watson, Jr., 6711, (706)–213–3800. No. 41. Deputy Secretary. [FR Doc. 02–20053 Filed 8–7–02; 8:45 am] SUPPLEMENTARY INFORMATION: The Background BILLING CODE 6717–01–P Federal Energy Regulatory Commission, Power from the Georgia-Alabama- by Order issued February 26, 1999, in South Carolina System is presently sold Docket No. EF98–3011–000, confirmed under Wholesale Power Rate Schedules DEPARTMENT OF ENERGY and approved Wholesale Power Rate SOCO–1, SOCO–2, SOCO–3, SOCO–4, Schedules SOCO–1, SOCO–2, SOCO–3, ALA–1–I, MISS–1–I, Duke–1, Duke–2, Federal Energy Regulatory SOCO–4, ALA–1–I, MISS–1–I, Duke–1, Duke–3, Duke–4, Santee–1, Santee–2, Commission Duke–2, Duke–3, Duke–4, Santee–1, Santee–3, Santee–4, SCE&G–1, SCE&G– Santee–2, Santee–3, Santee–4, SCE&G– 2, SCE&G–3, SCE&G–4, and Pump–1. Notice of Change of Commission 1, SCE&G–2, SCE&G–3, SCE&G–4, and Meeting Dates for 2002 These rate schedules were approved by Pump–1. On April 23, 1999, in Docket the FERC on February 26, 1999, for a August 2, 2002. No. EF98–3011–001, the Commission period ending September 30, 2003 (93 The Chairman has approved a change issued an order granting rehearing for FERC 62100). to the public meeting schedule for further consideration. On July 31, 2001, Public Notice and Comment September through December 2002. The in the same docket number, the change consists of an additional public Commission issued an order denying Notice of proposed rate adjustment meeting scheduled for September 5, rehearing. Rate schedules SOCO–1–A, was published in the Federal Register 2002. Accordingly, the revised schedule SOCO–2–A, SOCO–3–A, SOCO–4–A, March 13, 2002 (67 FR 11325). In the for public meetings for September ALA–1–J, MISS–1–J, Duke–1–A, Duke– notice, SEPA proposed four rate through December 2002 is as follows: 2–A, Duke–3–A, Duke–4–A, Santee–1– alternatives for public comment. SEPA Thursday, September 5, 2002 A, Santee–2–A, Santee–3–A, Santee–4– proposed two rate alternatives that Wednesday, September 18, 2002 A, SCE&G–1–A, SCE&G–2–A, SCE&G– would continue the current rate design Wednesday, October 9, 2002 3–A, SCE&G–4–A, Regulation–1, that included estimated purchases of Wednesday, October 30, 2002 Replacement–1, Pump–1–A, and Pump– replacement energy in the capacity and Wednesday, November 20, 2002 2 replace these schedules. energy charges from SEPA. These were
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designated ‘‘Scenario 1A’’ and that this number merits further more regular basis. Oglethorpe suggests ‘‘Scenario 1B.’’ In addition, SEPA investigation by SEPA. The SeFPC does that SEPA consider implementing only proposed two rate alternatives that not understand why there is an increase one change [in rate design] to provide included a direct pass through of for the Corps O&M expense. an opportunity to determine whether replacement energy costs. These were Response 2: Actual Corps O&M that change is sufficient to provide the designated ‘‘Scenario 2A’’ and expenses were $31,735,000 in 1998, revenue stability to assure that [SEPA] ‘‘Scenario 2B.’’ Under version ‘‘A’’ of $29,090,000 in 1999, $36,692,000 in will meet its repayment obligation. each of the two alternatives, 70 percent 2000, and $34,200,000 in 2001, which is Response 5: Replacement energy costs of the generation costs were recovered an average compound increase of 1.9% are estimated to average $3.2 million per from capacity sales and 30 percent were per year. Estimated Corps O&M is year. Based on this estimate, the recovered from energy sales. Under $32,836,000 in 2002, $33,654,000 in comment that this has shifted about two version ‘‘B’’ of each of the two 2003, $34,715,000 in 2004, and percentage points of generation costs alternatives, 85 percent of the $35,177,000 in 2005 through the end of from a capacity charge to an energy generation costs were recovered from the study, which is an average charge is accurate. However, there is capacity sales and 15 percent were compound increase of 1.7% per year for considerable variation in the actual recovered from energy sales. the 2002–2005 period. Should these replacement energy costs associated The notice advised interested parties estimates prove to be higher than the with this estimate. In an average water of a public information and comment actual costs incurred, SEPA’s repayment year, SEPA will not purchase forum to be held in Atlanta, Georgia on of investment will be greater than replacement energy. In a poor water April 18, 2002. Written comments were anticipated, which will reduce the year, replacement energy costs have accepted on or before June 11, 2002. The impact on the next rate adjustment for been as high as $16 million. By following is a summary of the the system. Should these estimates recovering replacement energy costs comments: prove to be too low, SEPA may be from energy effectively shifts required to adjust rates earlier than this Staff Evaluation of Public Comments considerable risk of cost fluctuations to filing anticipates. SEPA believes that the energy customers. SEPA believes that Written comments were received from estimates provided by the Corps are this justifies a shift of more than two nine sources pursuant to this notice. reasonable. SEPA will work with the percent of generation costs from energy Eight of the sources specified a Corps and the customers in an effort to to capacity to compensate. preference with regards to the reduce O&M expenses charged to power Comment 6: Oglethorpe is concerned distribution of generation costs between in the Southeastern Federal Power about the methodology used to calculate capacity and energy. There was no Program. unanimity in preference for the either of Comment 3: The SeFPC reminds the generation services charge. SEPA the proposed versions (70/30 or 85/15). SEPA that the amount included in rates has set rates for certain ancillary Most comments did support some for renewals and replacements has services based on Southern Company’s movement towards recovering more exceeded the amount appropriated by Open Access Transmission Tariff costs from capacity sales. SEPA is Congress for renewals and replacements (OATT). Because SEPA pays Southern therefore proposing a division of 75 by $124 million. Company a flat fee for all ancillary percent to capacity and 25 percent. Response 3: The amount listed services, SEPA has arbitrarily assumed The following are additional represents all of SEPA’s four repayment that reductions in the OATT charges for comments received on or before the systems. The amount for the Georgia- certain ancillary services were offset by June 11, 2002 deadline. SEPA’s Alabama-South Carolina System is $39 increases in the cost of all other response follows each comment. million. SEPA will work with the Corps ancillary services purchased by the flat Comment 1: SEPA will establish a to assure the accuracy of projected fee. SEPA should reconsider the cost Apass-through@ charge for replacement replacements. allocation of this flat fee to recognize energy. With this change in the rate Comment 4: The SeFPC supports the that its costs were not reduced as a structure, the Customers will pay for current decision by SEPA not to include result of reductions in the OATT rate for their ratable share of replacement costs for the Russell Pumped Storage ancillary services. energy in the billing month in which Units in this rate increase. Response 6: The Generation Services replacement energy is purchased by Response 4: The Russell Pump charge is to recover the cost of ancillary SEPA. The SeFPC supports this Storage units have not been included in services charged by the Southern approach, cognizant that it follows the these proposed rates. Company. SEPA pays Southern statutory mandate to set rate schedules Comment 5: SEPA has proposed a Company $4,428,000 annually for to allow for the lowest possible costs pass-through mechanism to recover ancillary services as part of a negotiated consistent with sound business replacement energy costs. Removal of contract for services. SEPA charges principles. those costs from the charges that recover affected customers for Scheduling, Response 1: SEPA will forward the generation costs results in an effective System Control and Dispatch Services, proposed rate schedule for replacement shift of about two percentage points of Reactive Supply and Voltage Control energy, Replacement–1, to the Deputy generation costs from a capacity charge from Generation Sources Services, and Secretary with a request for interim to an energy charge. Because both of Regulation and Frequency Response approval. these changes [pass-through recovery of Services at Southern Company’s current Comment 2: The Southeastern Federal replacement energy and an increase in OATT rate for these services. Any Power Customers (SeFPC) remains the percentage of generation costs portion of Southern Company’s annual concerned regarding the increase in recovered from capacity] increase charge for ancillary services not operation and maintenance (AO&M@) revenue stability, it would seem recovered through the above three expenses for the U. S. Army Corps of sufficient to implement only one change charges is recovered through a Engineers (Corps). The repayment study at this time to stabilize SEPA’s revenue Generation Services charge. The assumes an increase from $32,836,000 as it seeks to respond to the need to Generation Services charge is charged to in fiscal year 2002 to $35,177,000 for provide greater assurance that it will all customers of the Georgia-Alabama- fiscal year 2005. The SeFPC believes meet its repayment obligations on a South Carolina System.
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When Southern Company updates the law and DOE Procedure RA 6120.2. The Dated: July 25, 2002. OATT rates for the three ancillary Administrator of Southeastern has Spencer Abraham, services listed above, SEPA updates certified that the rates are consistent Secretary. these rates for the affected customers. with applicable law and that they are However, as a result of a negotiated Wholesale Power Rate Schedule SOCO– the lowest possible rates to customers 1–A ancillary services charge between SEPA consistent with sound business and Southern Company, SEPA does not principles. Availability pay the filed OATT rates, this requires Environmental Impact This rate schedule shall be available a change in the Generation Services to public bodies and cooperatives (any charge. one of whom is hereinafter called the SEPA established this process with Southeastern has reviewed the possible environmental impacts of the Customer) in Georgia, Alabama, rates that were proposed in 1998. SEPA Mississippi, and Florida to whom power is proposing to continue this process rate adjustment under consideration and has concluded that, because the may be transmitted and scheduled with these proposed rates. In 1998, pursuant to contracts between the SEPA anticipated that the $4,428,000 adjusted rates would not significantly affect the quality of the human Government and Southern Company negotiated ancillary services charge Services, Incorporated (hereinafter would be replaced with an environment within the meaning of the National Environmental Policy Act of called the Company) and the Customer. ‘‘unbundled’’ arrangement. SEPA Nothing in this rate schedule shall 1969, the proposed action is not a major established the design of the generation preclude modifications to the Federal action for which preparation of services charge in anticipation of this aforementioned contracts to allow an unbundling. As such, SEPA does not an Environmental Impact Statement is eligible customer to elect service under believe it is appropriate to refer to the required. another rate schedule. rate design as arbitrary. SEPA continues to anticipate that the Availability of Information Applicability negotiated ancillary services charge will Information regarding these rates, This rate schedule shall be applicable be replaced with an unbundled including studies, and other supporting to the sale at wholesale of power and arrangement. The timing of this change materials is available for public review accompanying energy generated at the is uncertain. However, SEPA believes it in the offices of Southeastern Power Allatoona, Buford, J. Strom Thurmond, is appropriate to continue to pass Administration, 1166 Athens Tech Walter F. George, Hartwell, Millers through any changes in Southern Road, Elberton, Georgia 30635–6711. Ferry, West Point, Robert F. Henry, Company’s ancillary services to the Carters and Richard B. Russell Projects affected customers when Southern Submission to the Federal Energy and sold under appropriate contracts Company adjusts these rates. Regulatory Commission between the Government and the Comment 7: SEPA has suggested that Customer. This rate schedule does not it might be able to convert some must The rates hereinafter confirmed and apply to energy from pumping run energy into energy that [South approved on an interim basis, together operations at the Carters and Richard B. Mississippi Electric Power Association with supporting documents, will be Russell Projects. (SMEPA) and Alabama Electric submitted promptly to the Federal Cooperative (AEC)] could schedule Energy Regulatory Commission for Character of Service during peak hours through a pumping confirmation and approval on a final The electric capacity and energy conversion factor. At this time, (SMEPA basis for a period beginning October 1, supplied hereunder will be delivered at and AEC are) interested in pursuing this 2002, and ending no later than the delivery points of the Customer on arrangement. September 30, 2007. the Company’s transmission and Response 7: SEPA can use must run distribution system. energy for pumping operations at the Order Carters, and, if it comes on-line, the Monthly Rate Richard B. Russell projects. This would In view of the foregoing and pursuant The monthly rate for capacity, energy, replace pumping energy that SEPA to the authority delegated to me by the and generation services provided under would otherwise purchase. This energy Secretary of Energy, I hereby confirm this rate schedule for the period would then become part of the and approve on an interim basis, specified shall be: customer’s minimum energy. The total effective October 1, 2007, attached Capacity Charge energy delivered to the customer would Wholesale Power Rate Schedules be reduced. SEPA will propose a new SOCO–1–A, SOCO–2–A, SOCO–3–A, $3.09 Per kilowatt of total contract rate schedule, Pump–2, to allow SOCO–4–A, ALA–1–J, MISS–1–J, Duke– demand per month. customers who elect to allow SEPA to 1–A, Duke–2–A, Duke–3–A, Duke–4–A, Energy Charge use their must run energy for pumping Santee–1–A, Santee–2–A, Santee–3–A, to receive this energy on-peak at a lower Santee–4–A, SCE&G–1–A, SCE&G–2–A, 6.39 Mills per kilowatt-hour. rate than other energy from pumping. SCE&G–3–A, SCE&G–4–A, Regulation– Generation Services Discussion 1, Replacement–1, Pump–1–A, and $0.13 Per kilowatt of total contract Pump–2. The rate schedules shall demand per month. System Repayment remain in effect on an interim basis Additional rates for Transmission, An examination of Southeastern’s through September 30, 2007, unless System Control, Reactive, and revised system power repayment study, such period is extended or until the Regulation Services provided under this prepared in July, 2002, for the Georgia- FERC confirms and approves them or rate schedule shall be the rates charged Alabama-South Carolina System, shows substitute rate schedules on a final Southeastern Power Administration by that with the proposed rates, all system basis. the Company. Future adjustments to power costs are paid within the 50-year these rates will become effective upon repayment period required by existing acceptance for filing by the Federal
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Energy Regulatory Commission of the Energy To Be Furnished by the Character of Service Company’s rate. Government The electric capacity and energy Transmission The Government will sell to the supplied hereunder will be delivered at Customer and the Customer will the delivery points of the Customer on $1.51 Per kilowatt of total contract purchase from the Government energy the Company’s transmission and demand per month as of February 2002 each billing month equivalent to a distribution system. is presented for illustrative purposes. percentage specified by contract of the Monthly Rate The initial transmission charge will energy made available to the company The monthly rate for capacity, energy, be the Customer’s ratable share of the (less applicable losses). The Customer’s and generation services provided under Transmission and Distribution Charges contract demand and accompanying this rate schedule for the period paid by the Government. The initial energy will be allocated proportionately specified shall be: monthly transmission demand charge to its individual delivery points served Capacity Charge: $3.09 Per kilowatt of shall be determined by multiplying the from the Company’s system. Applicable total contract demand per month. Government’s Load Ratio Share time energy losses are as follows: Energy Charge: 6.39 Mills per 1 one twelfth ( ⁄12) of Southern Transmission facilities, 3.0% kilowatt-hour. Companies’ Annual Transmission Costs Distribution Substations, 0.9% Generation Services: $0.13 Per as specified in Schedule 1 of the Distribution Lines, 2.25% kilowatt of total contract demand per Government-Company Contract. The month. transmission charges are governed by These losses shall be effective until Additional rates for Transmission, and subject to refund based upon the modified by the Federal Energy System Control, Reactive, and determination in proceedings before the Regulatory Commission, pursuant to Regulation Services provided under this Federal Energy Regulatory Commission application by Southern Companies rate schedule shall be the rates charged (FERC) involving Southern Companies’ under section 205 of the Federal Power Southeastern Power Administration by Open Access Transmission Tariff Act or SEPA under section 206 of the the Company. Future adjustments to (OATT). The distribution charges may Federal Power Act or otherwise. these rates will become effective upon be modified by FERC pursuant to Billing Month acceptance for filing by the Federal application by the Company under Energy Regulatory Commission of the section 205 of the Federal Power Act or The billing month for power sold Company’s rate. the Government under section 206 of under this schedule shall end at 12 Transmission: $1.51 Per kilowatt of the Federal Power Act. midnight on the last day of each total contract demand per month as of Proceedings before FERC involving calendar month. February 2002 is presented for illustrative purposes. the OATT or the Distribution charge Wholesale Power Rate Schedule SOCO– may result in the separation of charges The initial transmission charge will 2–A be the Customer’s ratable share of the currently included in the transmission Transmission and Distribution Charges rate. In this event, the Government may Availability paid by the Government. The initial charge the Customer for any and all This rate schedule shall be available monthly transmission demand charge separate transmission and distribution to public bodies and cooperatives (any shall be determined by multiplying the charges paid by the Government in one of whom is hereinafter called the Government’s Load Ratio Share time behalf of the Customer. Customer) in Georgia, Alabama, one twelfth (1⁄12) of Southern Scheduling, System Control and Mississippi, and Florida to whom power Companies’ Annual Transmission Costs Dispatch Service: $0.0806 Per kilowatt may be transmitted pursuant to as specified in Schedule 1 of the of total contract demand per month. contracts between the Government and Government-Company Contract. The Reactive Supply and Voltage Control Southern Company Services, transmission charges are governed by from Generation Sources Service: $0.11 Incorporated (hereinafter called the and subject to refund based upon the Per kilowatt of total contract demand Company) and the Customer. The determination in proceedings before the per month. Customer is responsible for providing a Federal Energy Regulatory Commission scheduling arrangement with the Regulation and Frequency Response (FERC) involving Southern Companies’ Government. Nothing in this rate Open Access Transmission Tariff Service: $0.0483 Per kilowatt of total schedule shall preclude modifications contract demand per month. (OATT). The distribution charges may to the aforementioned contracts to allow be modified by FERC pursuant to Transmission, System Control, Reactive, an eligible customer to elect service application by the Company under and Regulation Services under another rate schedule. section 205 of the Federal Power Act or Applicability the Government under section 206 of The charges for Transmission, System the Federal Power Act. Control, Reactive, and Regulation This rate schedule shall be applicable Proceedings before FERC involving Services shall be governed by and to the sale at wholesale of power and the OATT or the Distribution charge subject to refund based upon the accompanying energy generated at the may result in the separation of charges determination in the proceeding Allatoona, Buford, J. Strom Thurmond, currently included in the transmission involving Southern Companies’ Open Walter F. George, Hartwell, Millers rate. In this event, the Government may Access Transmission Tariff. Ferry, West Point, Robert F. Henry, charge the Customer for any and all Contract Demand Carters and Richard B. Russell Projects separate transmission and distribution and sold under appropriate contracts charges paid by the Government in The contract demand is the amount of between the Government and the behalf of the Customer. capacity in kilowatts stated in the Customer. This rate schedule does not Reactive Supply and Voltage Control contract which the Government is apply to energy from pumping from Generation Sources Service: $0.11 obligated to supply and the Customer is operations at the Carters and Richard B. Per kilowatt of total contract demand entitled to receive. Russell Projects. per month.
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Transmission, System Control, Reactive, Applicability Energy To Be Furnished by the and Regulation Services This rate schedule shall be applicable Government The charges for Transmission, System to the sale at wholesale of power and The Government will sell to the Control, Reactive, and Regulation accompanying energy generated at the Customer and the Customer will Services shall be governed by and Allatoona, Buford, J. Strom Thurmond, purchase from the Government energy subject to refund based upon the Walter F. George, Hartwell, Millers each billing month equivalent to a determination in the proceeding Ferry, West Point, Robert F. Henry, percentage specified by contract of the involving Southern Companies’ Open Carters and Richard B. Russell Projects energy made available to the company Access Transmission Tariff. (hereinafter referred to collectively as (less applicable losses). the Projects) and sold under appropriate Contract Demand Billing Month contracts between the Government and The contract demand is the amount of the Customer. This rate schedule does The billing month for power sold capacity in kilowatts stated in the not apply to energy from pumping under this schedule shall end at 12:00 contract which the Government is operations at the Carters and Richard B. midnight on the last day of each obligated to supply and the Customer is Russell Projects. calendar month. entitled to receive. Character of Service Wholesale Power Rate Schedule SOCO– Energy To Be Furnished by the 4–A The electric capacity and energy Government supplied hereunder will be delivered at Availability The Government will sell to the the Projects. This rate schedule shall be available Customer and the Customer will Monthly Rate to public bodies and cooperatives (any purchase from the Government energy one of whom is hereinafter called the each billing month equivalent to a The monthly rate for capacity, energy, Customer) in Georgia, Alabama, percentage specified by contract of the and generation services provided under Mississippi, and Florida served through energy made available to the company this rate schedule for the period the transmission facilities of Southern (less applicable losses). The Customer’s specified shall be: Company Service, Inc. (hereinafter contract demand and accompanying Capacity Charge called the Company) or the Georgia energy will be allocated proportionately Integrated Transmission System. The to its individual delivery points served $3.09 Per kilowatt of total contract Customer is responsible for providing a from the Company’s system. Applicable demand per month. scheduling arrangement with the energy losses are as follows: Energy Charge: 6.39 Mills per Government and for providing a Transmission facilities, 3.0% kilowatt-hour. transmission arrangement. Nothing in Distribution Substations, 0.9% Generation Services: $0.13 Per this rate schedule shall preclude Distribution Lines, 2.25% kilowatt of total contract demand per modifications to the aforementioned month. These losses shall be effective until contracts to allow an eligible customer Additional rates for Transmission, modified by the Federal Energy to elect service under another rate System Control, Reactive, and Regulatory Commission, pursuant to schedule. Regulation Services provided under this application by Southern Companies rate schedule shall be the rates charged Applicability under Section 205 of the Federal Power Southeastern Power Administration by Act or EPA under Section 206 of the This rate schedule shall be applicable the Company. Future adjustments to Federal Power Act or otherwise. to the sale at wholesale of power and these rates will become effective upon accompanying energy generated at the Billing Month acceptance for filing by the Federal Allatoona, Buford, J. Strom Thurmond, Energy Regulatory Commission of the The billing month for power sold Walter F. George, Hartwell, Millers Company’s rate. under this schedule shall end at 12 Ferry, West Point, Robert F. Henry, midnight on the last day of each Scheduling, System Control and Carters and Richard B. Russell Projects calendar month. Dispatch Service: $0.0806 Per Kilowatt (hereinafter referred to collectively as of total contract demand per month. the Projects) and sold under appropriate Wholesale Power Rate Schedule SOCO– Regulation and Frequency Response contracts between the Government and 3–A Service: $0.0483 Per Kilowatt of total the Customer. This rate schedule does Availability contract demand per month. not apply to energy from pumping Transmission, System Control, Reactive, operations at the Carters and Richard B. This rate schedule shall be available Russell Projects. to public bodies and cooperatives (any and Regulation Services one of whom is hereinafter called the The charges for Transmission, System Character of Service Customer) in Georgia, Alabama, Control, Reactive, and Regulation The electric capacity and energy Mississippi, and Florida to whom power Services shall be governed by and supplied hereunder will be delivered at may be scheduled pursuant to contracts subject to refund based upon the the Projects. between the Government and Southern determination in the proceeding Company Services, Incorporated involving Southern Companies’ Open Monthly Rate (hereinafter called the Company) and Access Transmission Tariff. The monthly rate for capacity, energy, the Customer. The Customer is and generation services provided under Contract Demand responsible for providing a transmission this rate schedule for the period arrangement. Nothing in this rate The contract demand is the amount of specified shall be: schedule shall preclude modifications capacity in kilowatts stated in the Capacity Charge: $3.09 Per kilowatt of to the aforementioned contracts to allow contract which the Government is total contract demand per month. an eligible customer to elect service obligated to supply and the Customer is Energy Charge: 6.39 Mills per under another rate schedule. entitled to receive. kilowatt-hour.
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Generation Services: $0.13 Per Character of Service Applicability kilowatt of total contract demand per The electric capacity and energy This rate schedule shall be applicable month. supplied hereunder will be three-phase to the sale at wholesale of power and Additional rates for Transmission, alternating current at a nominal accompanying energy generated at the System Control, Reactive, and frequency of 60 Hertz and shall be Allatoona, Buford, J. Strom Thurmond, Regulation Services provided under this delivered at the Walter F. George, West Walter F. George, Hartwell, Millers rate schedule shall be the rates charged Point, and Robert F. Henry Projects. Ferry, West Point, Robert F. Henry, Southeastern Power Administration by Carters and Richard B. Russell Projects the Company. Future adjustments to Monthly Rate and sold under appropriate contracts these rates will become effective upon The monthly rate for capacity, energy, between the Government and the acceptance for filing by the Federal and generation services provided under Customer. This rate schedule does not Energy Regulatory Commission of the this rate schedule for the period apply to energy from pumping Company’s rate. specified shall be: operations at the Carters and Richard B. Transmission, System Control, Reactive, Capacity Charge: $3.09 Per kilowatt of Russell Projects. and Regulation Services total contract demand per month. Character of Service The charges for Transmission, System Energy Charge: 6.39 Mills per Control, Reactive, and Regulation kilowatt-hour. The electric capacity and energy Services shall be governed by and Generation Services: $0.13 Per supplied hereunder will be threephase subject to refund based upon the kilowatt of total contract demand per alternating current at a nominal determination in the proceeding month. frequency of 60 Hertz delivered at the involving Southern Companies’ Open Additional rates for Transmission, delivery points of the Customer on Access Transmission Tariff. System Control, Reactive, and AEC’s transmission and distribution Regulation Services provided under this system. The voltage of delivery will be Contract Demand rate schedule shall be the rates charged maintained within the limits established The contract demand is the amount of Southeastern Power Administration by by the state regulatory commission. capacity in kilowatts stated in the the Southern Company. Future Monthly Rate contract that the Government is adjustments to these rates will become obligated to supply and the Customer is effective upon acceptance for filing by The monthly rate for capacity, energy, entitled to receive. the Federal Energy Regulatory and generation services provided under Commission of the Company’s rate. this rate schedule for the period Energy To Be Furnished by the specified shall be: Transmission, System Control, Reactive, Government Capacity Charge: $3.09 Per kilowatt of and Regulation Services The Government will sell to the total contract demand per month. Customer and the Customer will The charges for Transmission, System Energy Charge: 6.39 Mills per purchase from the Government energy Control, Reactive, and Regulation kilowatt-hour. each billing month equivalent to a Services shall be governed by and Generation Services: $0.13 Per percentage specified by contract of the subject to refund based upon the kilowatt of total contract demand per energy made available to the company determination in the proceeding month. (less applicable losses). involving Southern Companies’ Open Additional rates for Transmission, Access Transmission Tariff. Billing Month System Control, Reactive, and Energy To Be Furnished by the Regulation Services provided under this The billing month for power sold Government rate schedule shall be the rates charged under this schedule shall end at 12:00 Southeastern Power Administration by midnight on the last day of each The Government will sell to the the Company. Future adjustments to calendar month. Cooperative and the Cooperative will these rates will become effective upon purchase from the Government those acceptance for filing by the Federal Wholesale Power Rate Schedule ALA– quantities of energy specified by 1–J Energy Regulatory Commission of the contract as available to the Cooperative Company’s rate. Availability for scheduling on a weekly basis. Transmission This rate schedule shall be available Billing Month to the Alabama Electric Cooperative, $1.854 per kilowatt of total contract The billing month for power sold Incorporated (hereinafter called the demand per month as of February 2002 under this schedule shall end at 12 Cooperative). is presented for illustrative purposes. midnight on the last day of each This rate is subject to annual adjustment Applicability calendar month. on January 1, and will be computed This rate schedule shall be applicable Wholesale Power Rate Schedule MISS– subject to the Appendix A attached to to power and accompanying energy 1–J the Government-AEC contract. generated at the Allatoona, Buford, J. Availability Transmission, System Control, Reactive, Strom Thurmond, Walter F. George, and Regulation Services Hartwell, Millers Ferry, West Point, This rate schedule shall be available Robert F. Henry, Carters, and Richard B. to the South Mississippi Electric Power The charges for Transmission, System Russell Projects and sold under contract Association (hereinafter called the Control, Reactive, and Regulation between the Cooperative and the Customer) to whom power may be Services shall be governed by and Government. This rate schedule does wheeled pursuant to contracts between subject to refund based upon the not apply to energy from pumping the Government and Alabama Electric determination in the proceeding operations at the Carters and Richard B. Cooperative, Inc. (hereinafter called involving Southern Companies’ Open Russell Projects. AEC). Access Transmission Tariff.
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Contract Demand Energy Charge: 6.39 Mills per allocated proportionately to its The contract demand is the amount of kilowatt-hour. individual delivery points served from capacity in kilowatts stated in the Generation Services: $0.13 Per the Company’s system. These losses contract that the Government is kilowatt of total contract demand per shall be effective until modified by the obligated to supply and the Customer is month. Federal Energy Regulatory Commission, entitled to receive. Additional rates for Transmission, pursuant to application by the Company System Control, Reactive, and under section 205 of the Federal Power Energy To Be Furnished by the Regulation Services provided under this Act or SEPA under Section 206 of the Government rate schedule shall be the rates charged Federal Power Act or otherwise. Southeastern Power Administration by The Government will sell to the Billing Month Cooperative and the Cooperative will the Company. Future adjustments to purchase from the Government those these rates will become effective upon The billing month for power sold quantities of energy specified by acceptance for filing by the Federal under this schedule shall end at 12 contract as available to the Cooperative Energy Regulatory Commission of the midnight on the last day of each for scheduling on a weekly basis. Company’s rate. calendar month. Transmission: $0.93 Per kilowatt of Billing Month total contract demand per month as of Wholesale Power Rate Schedule Duke– The billing month for power sold February 2002 is presented for 2–A under this schedule shall end at 12 illustrative purposes. Availability midnight on the last day of each The initial transmission charge will calendar month. be the Customers’ ratable share of the This rate schedule shall be available Transmission Distribution Charges paid to public bodies and cooperatives (any Wholesale Power Rate Schedule Duke– by the Government. The initial monthly one of whom is hereinafter called the 1–A transmission demand charge shall Customer) in North Carolina and South Availability reflect the Government’s Load Ratio Carolina to whom power may be This rate schedule shall be available Share Responsibility. The Load Ratio transmitted pursuant to contracts to public bodies and cooperatives (any Share shall be computed each month between the Government and Duke one of whom is hereinafter called the and shall be the ratio of the Network Power Company (hereinafter called the Customer) in North Carolina and South Load to the average of the Company’s Company) and the Customer. The Carolina to whom power may be Transmission System load for each of Customer is responsible for providing a transmitted and scheduled pursuant to the 12 preceding months. The scheduling arrangement with the contracts between the Government and Company’s Transmission System Load Government. Nothing in this rate Duke Power Company (hereinafter shall be the load as determined in schedule shall preclude modifications called the Company) and the Customer. Section 34.3 of the Company’s Pro to the aforementioned contracts to allow Nothing in this rate schedule shall Forma Open Access Transmission Tariff an eligible customer to elect service preclude modifications to the (the Tariff). The Government shall pay under another rate schedule. a monthly demand charge which shall aforementioned contracts to allow an Applicability eligible customer to elect service under be determined by multiplying its Load another rate schedule. Ratio Share by 1⁄12 of the Annual This rate schedule shall be applicable Transmission Revenue Requirement set to the sale at wholesale of power and Applicability forth in Attachment H of the Company’s accompanying energy generated at the This rate schedule shall be applicable Tariff. Allatoona, Buford, J. Strom Thurmond, to the sale at wholesale of power and Proceedings before FERC involving Walter F. George, Hartwell, Millers accompanying energy generated at the the Tariff may result in the separation Ferry, West Point, Robert F. Henry, Allatoona, Buford, J. Strom Thurmond, of charges currently included in the Carters and Richard B. Russell Projects Walter F. George, Hartwell, Millers transmission rate. In this event, the and sold under appropriate contracts Ferry, West Point, Robert F. Henry, Government may charge the Customer between the Government and the Carters and Richard B. Russell Projects for any and all separate transmission Customer. This rate schedule does not and sold under appropriate contracts and distribution charges paid by the apply to energy from pumping between the Government and the Government in behalf of the Customer. operations at the Carters and Richard B. Customer. This rate schedule does not Contract Demand Russell Projects. apply to energy from pumping Character of Service operations at the Carters and Richard B. The contract demand is the amount of Russell Projects. capacity in kilowatts stated in the The electric capacity and energy contract which the Government is Character of Service supplied hereunder will be delivered at obligated to supply and the Customer is the delivery points of the Customer on The electric capacity and energy entitled to receive. the Company’s transmission and supplied hereunder will be delivered at Energy To Be Furnished by the distribution system. the delivery points of the Customer on Government the Company’s transmission and Monthly Rate distribution system. The Government will sell to the Customer and the Customer will The monthly rate for capacity, energy, Monthly Rate purchase from the Government energy and generation services provided under The monthly rate for capacity, energy, each billing month equivalent to a this rate schedule for the period and generation services provided under percentage specified by contract of the specified shall be: this rate schedule for the period energy made available to the company Capacity Charge: $3.09 Per kilowatt of specified shall be: (less applicable losses of three per cent total contract demand per month. Capacity Charge: $3.09 Per kilowatt of (3%)). The Customer’s contract demand Energy Charge: 6.39 Mills per total contract demand per month. and accompanying energy will be kilowatt-hour.
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Generation Services: $0.13 Per the Company’s system. These losses rate schedule shall be the rates charged kilowatt of total contract demand per shall be effective until modified by the Southeastern Power Administration by month. Federal Energy Regulatory Commission, the Company. Future adjustments to Additional rates for Transmission, pursuant to application by the Company these rates will become effective upon System Control, Reactive, and under section 205 of the Federal Power acceptance for filing by the Federal Regulation Services provided under this Act or SEPA under section 206 of the Energy Regulatory Commission of the rate schedule shall be the rates charged Federal Power Act or otherwise. Company’s rate. Southeastern Power Administration by the Company. Future adjustments to Billing Month Contract Demand these rates will become effective upon The billing month for power sold The contract demand is the amount of acceptance for filing by the Federal under this schedule shall end at 12 capacity in kilowatts stated in the Energy Regulatory Commission of the midnight on the last day of each contract which the Government is Company’s rate. calendar month. Transmission: $0.93 Per kilowatt of obligated to supply and the Customer is Wholesale Power Rate Schedule Duke– total contract demand per month as of entitled to receive. 3–A February 2002 is presented for Energy To Be Furnished by the illustrative purposes. Availability Government The initial transmission charge will This rate schedule shall be available be the Customers’ ratable share of the to public bodies and cooperatives (any The Government will sell to the Transmission Distribution Charges paid one of whom is hereinafter called the Customer and the Customer will by the Government. The initial monthly Customer) in North Carolina and South purchase from the Government energy transmission demand charge shall Carolina to whom power may be each billing month equivalent to a reflect the Government’s Load Ratio scheduled pursuant to contracts percentage specified by contract of the Share Responsibility. The Load Ratio between the Government and Duke energy made available to the company Share shall be computed each month Power Company (hereinafter called the (less applicable losses). and shall be the ratio of the Network Company) and the Customer. The Billing Month Load to the average of the Company’s Customer is responsible for providing a Transmission System load for each of transmission arrangement. Nothing in The billing month for power sold the 12 preceding months. The this rate schedule shall preclude under this schedule shall end at 12 Company’s Transmission System Load modifications to the aforementioned midnight on the last day of each shall be the load as determined in contracts to allow an eligible customer calendar month. Section 34.3 of the Company’s Pro to elect service under another rate Wholesale Power Rate Schedule Duke– Forma Open Access Transmission Tariff schedule. (the Tariff). The Government shall pay 4–A a monthly demand charge which shall Applicability Availability be determined by multiplying its Load This rate schedule shall be applicable Ratio Share by 1⁄12 of the Annual to the sale at wholesale of power and This rate schedule shall be available Transmission Revenue Requirement set accompanying energy generated at the to public bodies and cooperatives (any forth in Attachment H of the Company’s Allatoona, Buford, J. Strom Thurmond, one of whom is hereinafter called the Tariff. Walter F. George, Hartwell, Millers Customer) in North Carolina and South Proceedings before FERC involving Ferry, West Point, Robert F. Henry, Carolina served through the the Tariff may result in the separation Carters and Richard B. Russell Projects transmission facilities of Duke Power of charges currently included in the and sold under appropriate contracts Company (hereinafter called the transmission rate. In this event, the between the Government and the Company) and the Customer. The Government may charge the Customer Customer. This rate schedule does not Customer is responsible for providing a for any and all separate transmission apply to energy from pumping scheduling arrangement with the and distribution charges paid by the operations at the Carters and Richard B. Government and for providing a Government in behalf of the Customer. Russell Projects. transmission arrangement with the Company. Nothing in this rate schedule Contract Demand Character of Service shall preclude modifications to the The contract demand is the amount of The electric capacity and energy aforementioned contracts to allow an capacity in kilowatts stated in the supplied hereunder will be delivered at eligible customer to elect service under contract which the Government is the Savannah River Projects. another rate schedule. obligated to supply and the Customer is entitled to receive. Monthly Rate Applicability The monthly rate for capacity, energy, Energy To Be Furnished by the This rate schedule shall be applicable Government and generation services provided under this rate schedule for the period to the sale at wholesale of power and The Government will sell to the specified shall be: accompanying energy generated at the Customer and the Customer will Capacity Charge: $3.09 Per kilowatt of Allatoona, Buford, J. Strom Thurmond, purchase from the Government energy total contract demand per month. Walter F. George, Hartwell, Millers each billing month equivalent to a Energy Charge: 6.39 Mills per Ferry, West Point, Robert F. Henry, percentage specified by contract of the kilowatt-hour. Carters and Richard B. Russell Projects energy made available to the company Generation Services: $0.13 Per and sold under appropriate contracts (less applicable losses of three per cent kilowatt of total contract demand per between the Government and the (3%)). The Customer’s contract demand month. Customer. This rate schedule does not and accompanying energy will be Additional rates for Transmission, apply to energy from pumping allocated proportionately to its System Control, Reactive, and operations at the Carters and Richard B. individual delivery points served from Regulation Services provided under this Russell Projects.
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Character of Service Applicability obligated to supply and the Customer is entitled to receive. The electric capacity and energy This rate schedule shall be applicable supplied hereunder will be delivered at to the sale at wholesale of power and Energy To Be Furnished by the the Savannah River Projects. accompanying energy generated at the Government Allatoona, Buford, J. Strom Thurmond, Monthly Rate The Government will sell to the Walter F. George, Hartwell, Millers Customer and the Customer will The monthly rate for capacity, energy, Ferry, West Point, Robert F. Henry, purchase from the Government energy and generation services provided under Carters and Richard B. Russell Projects each billing month equivalent to a this rate schedule for the period and sold under appropriate contracts percentage specified by contract of the specified shall be: between the Government and the energy made available to the Authority Capacity Charge: $3.09 Per kilowatt of Customer. This rate schedule does not (less applicable losses of two per cent total contract demand per month. apply to energy from pumping (2%)). The Customer’s contract demand operations at the Carters and Richard B. and accompanying energy will be Energy Charge: 6.39 Mills per Russell Projects. kilowatt-hour. allocated proportionately to its individual delivery points served from Generation Services: $0.13 Per Character of Service the Authority’s system. kilowatt of total contract demand per The electric capacity and energy month. supplied hereunder will be delivered at Billing Month Additional rates for Transmission, the delivery points of the Customer on The billing month for power sold System Control, Reactive, and the Authority’s transmission and under this schedule shall end at 12:00 Regulation Services provided under this distribution system. midnight on the last day of each rate schedule shall be the rates charged Monthly Rate calendar month. Southeastern Power Administration by Service Interruption the Company. Future adjustments to The monthly rate for capacity, energy, these rates will become effective upon and generation services provided under When energy delivery to the acceptance for filing by the Federal this rate schedule for the period Customer’s system for the account of the Energy Regulatory Commission of the specified shall be: Government is reduced or interrupted, Company’s rate. Capacity Charge: $3.09 Per kilowatt of and such reduction or interruption is total contract demand per month. not due to conditions on the Customer’s Contract Demand Energy Charge: 6.39 Mills per system, the demand charge for the The contract demand is the amount of kilowatt-hour. month shall be appropriately reduced as capacity in kilowatts stated in the Generation Services: $0.13 Per to kilowatts of such capacity which contract which the Government is kilowatt of total contract demand per have been interrupted or reduced for obligated to supply and the Customer is month. each day in accordance with the entitled to receive. Additional rates for Transmission, following formula: System Control, Reactive, and Energy To Be Furnished by the Wholesale Power Rate Schedule Regulation Services provided under this Santee–2–A Government rate schedule shall be the rates charged Availability The Government will sell to the Southeastern Power Administration by Customer and the Customer will the Authority. Future adjustments to This rate schedule shall be available purchase from the Government energy these rates will become effective upon to public bodies and cooperatives (any each billing month equivalent to a acceptance for filing by the Federal one of whom is hereinafter called the percentage specified by contract of the Energy Regulatory Commission of the Customer) in South Carolina to whom energy made available to the company Authority’s rate. power may be wheeled pursuant to (less applicable losses). Transmission: $1.59 Per kilowatt of contracts between the Government and total contract demand per month as of South Carolina Public Service Authority Billing Month February 2002 is presented for (hereinafter called the Authority). The The billing month for power sold illustrative purposes. customer is responsible for providing a under this schedule shall end at 12 The initial transmission rate is subject scheduling arrangement with the midnight on the last day of each to annual adjustment on July 1 of each Government. Nothing in this rate calendar month. year, and will be computed subject to schedule shall preclude an eligible the formula contained in Appendix A to customer from electing service under Wholesale Power Rate Schedule the Government-Authority Contract. another rate schedule. Santee–1–A Proceedings before the Federal Energy Applicability Availability Regulatory Commission involving the Authority’s Open Access Transmission This rate schedule shall be applicable This rate schedule shall be available Tariff may result in the separation of to the sale at wholesale of power and to public bodies and cooperatives (any charges currently included in the accompanying energy generated at the one of whom is hereinafter called the transmission rate. In this event, the Allatoona, Buford, J. Strom Thurmond, Customer) in South Carolina to whom Government may charge the Customer Walter F. George, Hartwell, Millers power may be wheeled and scheduled for any and all separate transmission Ferry, West Point, Robert F. Henry, pursuant to contracts between the and distribution charges paid by the Carters and Richard B. Russell Projects Government and South Carolina Public Government in behalf of the Customer. and sold under appropriate contracts Service Authority (hereinafter called the between the Government and the Authority). Nothing in this rate Contract Demand Customer. This rate schedule does not schedule shall preclude an eligible The contract demand is the amount of apply to energy from pumping customer from electing service under capacity in kilowatts stated in the operations at the Carters and Richard B. another rate schedule. contract which the Government is Russell Projects.
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Character of Service individual delivery points served from Generation Services: $0.13 Per The electric capacity and energy the Authority’s system. kilowatt of total contract demand per month. supplied hereunder will be delivered at Billing Month the delivery points of the Customer on Additional rates for Transmission, The billing month for power sold the Authority’s transmission and System Control, Reactive, and under this schedule shall end at 12:00 distribution system. Regulation Services provided under this midnight on the last day of each rate schedule shall be the rates charged Monthly Rate calendar month. Southeastern Power Administration by The monthly rate for capacity, energy, Service Interruption the Authority. Future adjustments to and generation services provided under these rates will become effective upon this rate schedule for the period When energy delivery to the acceptance for filing by the Federal specified shall be: Customer’s system for the account of the Energy Regulatory Commission of the Government is reduced or interrupted, Capacity Charge: $3.09 Per kilowatt of Authority’s rate. and such reduction or interruption is total contract demand per month. not due to conditions on the Customer’s Contract Demand Energy Charge: 6.39 Mills per system, the demand charge for the kilowatt-hour. The contract demand is the amount of month shall be appropriately reduced as Generation Services: $0.13 Per capacity in kilowatts stated in the to kilowatts of such capacity which kilowatt of total contract demand per contract which the Government is have been interrupted or reduced for month. obligated to supply and the Customer is each day in accordance with the Additional rates for Transmission, entitled to receive. following formula: System Control, Reactive, and Energy To Be Furnished by the Regulation Services provided under this Wholesale Power Rate Schedule Government rate schedule shall be the rates charged Santee–3–A Southeastern Power Administration by The Government will sell to the Availability the Authority. Future adjustments to Customer and the Customer will these rates will become effective upon This rate schedule shall be available purchase from the Government energy acceptance for filing by the Federal to public bodies and cooperatives (any each billing month equivalent to a Energy Regulatory Commission of the one of whom is hereinafter called the percentage specified by contract of the Authority’s rate. Customer) in South Carolina to whom energy made available to the Authority Transmission: $1.59 Per kilowatt of power may be scheduled pursuant to (less applicable losses). total contract demand per month as of contracts between the Government and Billing Month February 2002 is presented for South Carolina Public Service Authority illustrative purposes. (hereinafter called the Authority). The The billing month for power sold The initial transmission rate is subject customer is responsible for providing a under this schedule shall end at 12:00 to annual adjustment on July 1 of each transmission arrangement. Nothing in midnight on the last day of each year, and will be computed subject to this rate schedule shall preclude an calendar month. the formula contained in Appendix A to eligible customer from electing service the Government-Authority Contract. under another rate schedule. Service Interruption Proceedings before the Federal Energy Applicability When energy delivery to the Regulatory Commission involving the Customer’s system for the account of the Authority’s Open Access Transmission This rate schedule shall be applicable Government is reduced or interrupted, Tariff may result in the separation of to the sale at wholesale of power and and such reduction or interruption is charges currently included in the accompanying energy generated at the not due to conditions on the Customer’s transmission rate. In this event, the Allatoona, Buford, J. Strom Thurmond, system, the demand charge for the Government may charge the Customer Walter F. George, Hartwell, Millers month shall be appropriately reduced as for any and all separate transmission Ferry, West Point, Robert F. Henry, to kilowatts of such capacity which and distribution charges paid by the Carters and Richard B. Russell Projects have been interrupted or reduced for Government in behalf of the Customer. and sold under appropriate contracts each day in accordance with the between the Government and the following formula: Contract Demand Customer. This rate schedule does not The contract demand is the amount of apply to energy from pumping Wholesale Power Rate Schedule capacity in kilowatts stated in the operations at the Carters and Richard B. Santee–4–A contract that the Government is Russell Projects. Availability obligated to supply and the Customer is Character of Service entitled to receive. This rate schedule shall be available The electric capacity and energy to public bodies and cooperatives (any Energy To Be Furnished by the supplied hereunder will be delivered at one of whom is hereinafter called the Government the Projects. Customer) in South Carolina served The Government will sell to the through the transmission facilities of Monthly Rate Customer and the Customer will South Carolina Public Service Authority purchase from the Government energy The monthly rate for capacity, energy, (hereinafter called the Authority). The each billing month equivalent to a and generation services provided under customer is responsible for providing a percentage specified by contract of the this rate schedule for the period scheduling arrangement with the energy made available to the Authority specified shall be: Government and for providing a (less applicable losses of two per cent Capacity Charge: $3.09 Per kilowatt of transmission arrangement. Nothing in (2%)). The Customer’s contract demand total contract demand per month. this rate schedule shall preclude an and accompanying energy will be Energy Charge: 6.39 Mills per eligible customer from electing service allocated proportionately to its kilowatt-hour. under another rate schedule.
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Applicability Government is reduced or interrupted, Energy Regulatory Commission of the This rate schedule shall be applicable and such reduction or interruption is Company’s rate. to the sale at wholesale of power and not due to conditions on the Customer’s Transmission: $1.13 Per kilowatt of accompanying energy generated at the system, the demand charge for the total contract demand per month as of February 2002 is presented for Allatoona, Buford, J. Strom Thurmond, month shall be appropriately reduced as illustrative purposes. Walter F. George, Hartwell, Millers to kilowatts of such capacity which The initial rate will be subject to Ferry, West Point, Robert F. Henry, have been interrupted or reduced for monthly adjustment and will be Carters and Richard B. Russell Projects each day in accordance with the computed subject to Section 7 of the and sold under appropriate contracts following formula: Government-Company contract. between the Government and the Wholesale Power Rate Schedule Proceedings before the Federal Energy Customer. This rate schedule does not SCE&G–1–A Regulatory Commission involving the apply to energy from pumping Availability Company’s Open Access Transmission operations at the Carters and Richard B. Tariff may result in the separation of Russell Projects. This rate schedule shall be available charges currently included in the Character of Service public bodies and cooperatives (any one transmission rate. In this event, the of which is hereinafter called the Government may charge the Customer The electric capacity and energy Customer) in South Carolina to whom for any and all separate transmission supplied hereunder will be delivered at power may be wheeled and scheduled and distribution charges paid by the the Projects. pursuant to contracts between the Government in behalf of the Customer. Monthly Rate Government and the South Carolina Electric & Gas Company (hereinafter Contract Demand The monthly rate for capacity, energy, called the Company). Nothing in this The contract demand is the amount of and generation services provided under rate schedule shall preclude an eligible capacity in kilowatts stated in the this rate schedule for the period customer from electing service under contract which the Government is specified shall be: another rate schedule. Capacity Charge: $3.09 Per kilowatt of obligated to supply and the Customer is total contract demand per month. Applicability entitled to receive. Energy Charge: 6.39 Mills per This rate schedule shall be applicable Energy To Be Furnished by the kilowatt-hour. to the sale at wholesale of power and Government Generation Services: $0.13 Per accompanying energy generated at the The Government will sell to the kilowatt of total contract demand per Allatoona, Buford, J. Strom Thurmond, Customer and the Customer will month. Walter F. George, Hartwell, Millers purchase from the Government energy Additional rates for Transmission, Ferry, West Point, Robert F. Henry, each billing month equivalent to a System Control, Reactive, and Carters and Richard B. Russell Projects percentage specified by contract of the Regulation Services provided under this and sold under appropriate contracts energy made available to the company rate schedule shall be the rates charged between the Government and the (less applicable losses). The Customer’s Southeastern Power Administration by Customer. This rate schedule does not contract demand and accompanying the Authority. Future adjustments to apply to energy from pumping energy will be allocated proportionately these rates will become effective upon operations at the Carters and Richard B. to its individual delivery points served acceptance for filing by the Federal Russell Projects. from the Company’s system. Energy Regulatory Commission of the Authority’s rate. Character of Service Billing Month Contract Demand The electric capacity and energy The billing month for power sold under this schedule shall end at 12:00 The contract demand is the amount of supplied hereunder will be delivered at midnight on the last day of each capacity in kilowatts stated in the the delivery points of the Customer on calendar month. contract that the Government is the Company’s transmission and obligated to supply and the Customer is distribution system. Conditions of Service entitled to receive. Monthly Rate The Customer shall at its own Energy To Be Furnished by the The monthly rate for capacity, energy, expense provide, install, and maintain Government and generation services provided under on its side of each delivery point the equipment necessary to protect and The Government will sell to the this rate schedule for the period specified shall be: control its own system. In so doing, the Customer and the Customer will installation, adjustment, and setting of purchase from the Government energy Capacity Charge: $3.09 Per kilowatt of total contract demand per month. all such control and protective each billing month equivalent to a equipment at or near the point of percentage specified by contract of the Energy Charge: 6.39 Mills per kilowatt-hour. delivery shall be coordinated with that energy made available to the Authority which is installed by and at the expense (less applicable losses). Generation Services: $0.13 Per kilowatt of total contract demand per of the Company on its side of the Billing Month month. delivery point. The billing month for power sold Additional rates for Transmission, Wholesale Power Rate Schedule under this schedule shall end at 12 System Control, Reactive, and SCE&G–2–A midnight on the last day of each Regulation Services provided under this Availability calendar month. rate schedule shall be the rates charged Southeastern Power Administration by This rate schedule shall be available Service Interruption the Company. Future adjustments to public bodies and cooperatives (any one When energy delivery to the these rates will become effective upon of which is hereinafter called the Customer’s system for the account of the acceptance for filing by the Federal Customer) in South Carolina to whom
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power may be wheeled pursuant to Government may charge the Customer Walter F. George, Hartwell, Millers contracts between the Government and for any and all separate transmission Ferry, West Point, Robert F. Henry, the South Carolina Electric & Gas and distribution charges paid by the Carters and Richard B. Russell Projects Company (hereinafter called the Government in behalf of the Customer. and sold under appropriate contracts between the Government and the Company). The customer is responsible Contract Demand for providing a scheduling arrangement Customer. This rate schedule does not with the Government. Nothing in this The contract demand is the amount of apply to energy from pumping rate schedule shall preclude an eligible capacity in kilowatts stated in the operations at the Carters and Richard B. customer from electing service under contract which the Government is Russell Projects. another rate schedule. obligated to supply and the Customer is entitled to receive. Character of Service Applicability Energy To Be Furnished by the The electric capacity and energy This rate schedule shall be applicable Government supplied hereunder will be delivered at to the sale at wholesale of power and the Projects. accompanying energy generated at the The Government will sell to the Monthly Rate Allatoona, Buford, J. Strom Thurmond, Customer and the Customer will Walter F. George, Hartwell, Millers purchase from the Government energy The monthly rate for capacity, energy, Ferry, West Point, Robert F. Henry, each billing month equivalent to a and generation services provided under Carters and Richard B. Russell Projects percentage specified by contract of the this rate schedule for the period and sold under appropriate contracts energy made available to the company specified shall be: between the Government and the (less applicable losses). The Customer’s Capacity Charge: $3.09 Per kilowatt of Customer. This rate schedule does not contract demand and accompanying total contract demand per month. apply to energy from pumping energy will be allocated proportionately Energy Charge: 6.39 Mills per operations at the Carters and Richard B. to its individual delivery points served kilowatt-hour. Russell Projects. from the Company’s system. Generation Services: $0.13 Per Billing Month kilowatt of total contract demand per Character of Service month. The electric capacity and energy The billing month for power sold Additional rates for Transmission, supplied hereunder will be delivered at under this schedule shall end at 12:00 System Control, Reactive, and the delivery points of the Customer on midnight on the last day of each Regulation Services provided under this the Company’s transmission and calendar month. rate schedule shall be the rates charged distribution system. Conditions of Service Southeastern Power Administration by the Company. Future adjustments to Monthly Rate The Customer shall at its own expense provide, install, and maintain these rates will become effective upon The monthly rate for capacity, energy, acceptance for filing by the Federal and generation services provided under on its side of each delivery point the equipment necessary to protect and Energy Regulatory Commission of the this rate schedule for the period Company’s rate. specified shall be: control its own system. In so doing, the Capacity Charge: $3.09 Per kilowatt of installation, adjustment, and setting of Contract Demand total contract demand per month. all such control and protective The contract demand is the amount of Energy Charge: 6.39 Mills per equipment at or near the point of capacity in kilowatts stated in the kilowatt-hour. delivery shall be coordinated with that contract that the Government is Generation Services: $0.13 Per which is installed by and at the expense obligated to supply and the Customer is kilowatt of total contract demand per of the Company on its side of the entitled to receive. month. delivery point. Energy To Be Furnished by the Additional rates for Transmission, Wholesale Power Rate Schedule Government System Control, Reactive, and SCE&G–3–A Regulation Services provided under this The Government will sell to the rate schedule shall be the rates charged Availability Customer and the Customer will Southeastern Power Administration by This rate schedule shall be available purchase from the Government energy the Company. Future adjustments to public bodies and cooperatives (any one each billing month equivalent to a these rates will become effective upon of which is hereinafter called the percentage specified by contract of the acceptance for filing by the Federal Customer) in South Carolina to whom energy made available to the company Energy Regulatory Commission of the power may be scheduled pursuant to (less applicable losses). Company’s rate. contracts between the Government and Billing Month Transmission: $1.13 Per kilowatt of the South Carolina Electric & Gas total contract demand per month as of Company (hereinafter called the The billing month for power sold February 2002 is presented for Company). The customer is responsible under this schedule shall end at 12:00 illustrative purposes. for providing a transmission midnight on the last day of each The initial rate will be subject to arrangement. Nothing in this rate calendar month. monthly adjustment and will be schedule shall preclude an eligible Conditions of Service computed subject to Section 7 of the customer from electing service under Government-Company contract. another rate schedule. The Customer shall at its own Proceedings before the Federal Energy expense provide, install, and maintain Regulatory Commission involving the Applicability on its side of each delivery point the Company’s Open Access Transmission This rate schedule shall be applicable equipment necessary to protect and Tariff may result in the separation of to the sale at wholesale of power and control its own system. In so doing, the charges currently included in the accompanying energy generated at the installation, adjustment, and setting of transmission rate. In this event, the Allatoona, Buford, J. Strom Thurmond, all such control and protective
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equipment at or near the point of Contract Demand Contract Demand delivery shall be coordinated with that The contract demand is the amount of The contract demand is the amount of which is installed by and at the expense capacity in kilowatts stated in the capacity in kilowatts stated in the of the Company on its side of the contract that the Government is contract to which the Government is delivery point. obligated to supply and the Customer is obligated to supply and the Customer is Wholesale Power Rate Schedule entitled to receive. entitled to receive regulation service. SCE&G–4–A Energy To Be Furnished by the Billing Month Government Availability The billing month for services The Government will sell to the provided under this schedule shall end This rate schedule shall be available Customer and the Customer will public bodies and cooperatives (any one at 12 midnight on the last day of each purchase from the Government energy calendar month. of which is hereinafter called the each billing month equivalent to a Customer) in South Carolina served percentage specified by contract of the Wholesale Power Rate Schedule through the transmission facilities of energy made available to the company Replacement-1 South Carolina Electric & Gas Company (less applicable losses). (hereinafter called the Company). The Availability customer is responsible for providing a Billing Month This rate schedule shall be available scheduling arrangement with the The billing month for power sold to public bodies and cooperatives (any Government and for providing a under this schedule shall end at 12 one of whom is hereinafter called the transmission arrangement. Nothing in midnight on the last day of each Customer) in Georgia, Alabama, this rate schedule shall preclude an calendar month. Mississippi, Florida, South Carolina, or eligible customer from electing service Conditions of Service North Carolina to whom power is under another rate schedule. provided pursuant to contracts between The Customer shall at its own the Government and the customer. Applicability expense provide, install, and maintain Applicability This rate schedule shall be applicable on its side of each delivery point the to the sale at wholesale of power and equipment necessary to protect and This rate schedule shall be applicable accompanying energy generated at the control its own system. In so doing, the to the sale at wholesale energy Allatoona, Buford, J. Strom Thurmond, installation, adjustment, and setting of purchased to meet contract minimum Walter F. George, Hartwell, Millers all such control and protective energy and sold under appropriate Ferry, West Point, Robert F. Henry, equipment at or near the point of contracts between the Government and Carters and Richard B. Russell Projects delivery shall be coordinated with that the Customer. and sold under appropriate contracts which is installed by and at the expense Character of Service between the Government and the of the Company on its side of the Customer. This rate schedule does not delivery point. The energy supplied hereunder will apply to energy from pumping Wholesale Rate Schedule Regulation-1 be delivered at the delivery points operations at the Carters and Richard B. provided for under appropriate Russell Projects. Availability contracts between the Government and This rate schedule shall be available the Customer. Character of Service to public bodies and cooperatives (any Monthly Rate The electric capacity and energy one of whom is hereinafter called the supplied hereunder will be delivered at Customer) in Georgia, Alabama, The rate for energy sold under this the Projects. Mississippi, Florida, South Carolina, or rate schedule for the months specified North Carolina to whom service is shall be: [computed to the nearest Monthly Rate provided pursuant to contracts between $.00001 (1⁄100 mill) per kwh]; (The The monthly rate for capacity, energy, the government and the customer. weighted average cost of energy for replacement energy divided by one and generation services provided under Applicability minus losses for delivery.) this rate schedule for the period This rate schedule shall be applicable specified shall be: Where: The weighted average cost of to the sale of regulation services energy for replacement energy is equal Capacity Charge: $3.09 Per kilowatt of provided from the Allatoona, Buford, J. to the cost of replacement energy total contract demand per month. Strom Thurmond, Walter F. George, purchased divided by the replacement Energy Charge: 6.39 Mills per Hartwell, Millers Ferry, West Point, energy purchased, net losses. Robert F. Henry, Carters, and Richard B. kilowatt-hour. = Dollars cost of energy purchased for Russell Projects (hereinafter called the Generation Services: $0.13 Per replacement energy during the Projects) and sold under appropriate kilowatt of total contract demand per specified month, including all contracts between the Government and month. direct costs to deliver energy to the the Customer. Additional rates for Transmission, project. System Control, Reactive, and Character of Service = Kilowatt-hours of energy purchased Regulation Services provided under this The service supplied hereunder will for replacement energy during the rate schedule shall be the rates charged be delivered at the Projects. specified month. Southeastern Power Administration by = Energy loss factor for transmission the Company. Future adjustments to Monthly Rate on replacement energy purchased these rates will become effective upon The rate for service supplied under (Expected to be 0 or zero percent.) acceptance for filing by the Federal this rate schedule for the period = Weighted average energy loss factor Energy Regulatory Commission of the specified shall be: $0.05 per kilowatt of on energy delivered by the Company’s rate. total contract demand per month. facilitator to the customer.
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Energy To Be Furnished by the (Cost of energy for pumping for this rate Billing Month Government schedule is equal to the cost of energy The billing month for power sold The Government will sell to the purchased or supplied for the benefit under this schedule shall end at 12:00 Customer and the Customer will of the customer plus the cost of midnight on the last day of each purchase from the Government energy energy in storage carried over from calendar month. each billing month equivalent to a the month preceding the specified Wholesale Power Rate Schedule Pump- percentage specified by contract of the month.) 2 energy made available to the Facilitator (Energy for pumping for this rate (less any losses required by the schedule is equal to the energy Availability purchased or supplied for the benefit Facilitator). The Customer’s contract This rate schedule shall be available of the customer, after losses, plus the demand and accompanying energy will to public bodies and cooperatives who energy for pumping in storage as of be allocated proportionately to its provide their own scheduling the end of the month preceding the individual delivery points served from arrangement and elect to allow specified month.) the Facilitator’s system. Southeastern to use a portion of their (Cost of energy in storage is equal to the Billing Month allocation for pumping (any one of weighted average cost of energy for whom is hereinafter called the The billing month for power sold pumping for the month preceding the Customer) in Georgia, Alabama, under this schedule shall end at 12:00 specified month times the energy for Mississippi, Florida, South Carolina, or midnight on the last day of each pumping in storage at the end of the North Carolina to whom power is calendar month. month preceding the specified provided pursuant to contracts between Wholesale Power Rate Schedule Pump– month.) the Government and the customer. 1–A = Dollars cost of energy purchased or supplied for the benefit of the Applicability Availability customer for pumping during the This rate schedule shall be applicable This rate schedule shall be available specified month, including all to the sale at wholesale energy to public bodies and cooperatives (any direct costs to deliver energy to the generated from pumping operations at one of whom is hereinafter called the project. the Carters and Richard B. Russell Customer) in Georgia, Alabama, = Kilowatt-hours of energy purchased Projects and sold under appropriate Mississippi, Florida, South Carolina, or or supplied for the benefit of the contracts between the Government and North Carolina to whom power is customer for pumping during the the Customer. This energy will be provided pursuant to contracts between specified month. segregated from energy from other the Government and the customer. = Energy loss factor for transmission pumping operations. Applicability on energy purchased or supplied for Character of Service the benefit of the customer for This rate schedule shall be applicable pumping (Expected to be .03 or The energy supplied hereunder will to the sale at wholesale energy three percent.) be delivered at the delivery points provided for under appropriate generated from pumping operations at = Kilowatt-hours of energy in storage contracts between the Government and the Carters and Richard B. Russell as of the end of the month the Customer. Projects and sold under appropriate immediately preceding the contracts between the Government and specified month. Monthly Rate the Customer. The energy will be = Weighted average cost of energy for segregated from energy from other The rate for energy sold under this pumping for the month pumping operations. rate schedule for the months specified immediately preceding the shall be: Character of Service specified month. [computed to the nearest $.00001 (1/100 The energy supplied hereunder will (Weighted average energy conversion mill) per kwh] be delivered at the delivery points factor is equal to the energy generated (The weighted average cost of energy for provided for under appropriate from pumping divided by the total pumping divided by the energy contracts between the Government and energy for pumping) conversion factor, quantity divided by the Customer. = Energy generated from pumping. one minus losses for delivery.) = Weighted average energy loss factor Where: Monthly Rate on energy delivered by the facilitator (The weighted average cost of energy for The rate for energy sold under this to the customer. pumping for this rate schedule is rate schedule for the months specified equal to the cost of energy purchased shall be: Energy To Be Furnished by the Government or supplied for the benefit of the [computed to the nearest $.00001 (1⁄100 customer for pumping divided by the mill) per kwh] The Government will sell to the total energy for pumping.) (The weighted average cost of energy for Customer and the Customer will (Cost of energy for pumping for this rate pumping divided by the energy purchase from the Government energy schedule is equal to the cost of energy conversion factor, quantity divided by each billing month equivalent to a purchased or supplied for the benefit one minus losses for delivery.) percentage specified by contract of the of the customer plus the cost of Where: energy made available to the Facilitator energy in storage carried over from (The weighted average cost of energy for (less any losses required by the the month preceding the specified pumping for this rate schedule is Facilitator). The Customer’s contract month.) equal to the cost of energy purchased demand and accompanying energy will (Energy for pumping for this rate or supplied for the benefit of the be allocated proportionately to its schedule is equal to the energy customer for pumping divided by the individual delivery points served from purchased or supplied for the benefit total energy for pumping.) the Facilitator’s system. of the customer, after losses, plus the
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energy for pumping in storage as of DEPARTMENT OF ENERGY present time, the Secretary of Energy has the end of the month preceding the exercised his authority to confirm, approve, specified month.) Southeastern Power Administration and place into effect on an interim basis the rate schedules in Southeastern Rate Order (Cost of energy in storage is equal to the Jim Woodruff Project Power Rates, No. SEPA–42. weighted average cost of energy for Rate Order No. 42 Background pumping for the month preceding the specified month times the energy for AGENCY: Southeastern Power Power from the Jim Woodruff Project is Administration, DOE. presently sold under Wholesale Power Rate pumping in storage at the end of the Schedules JW–1–F and JW–2–C. These rate month preceding the specified ACTION: Notice of rate order. schedules were approved by the FERC on month.) November 9, 2000, for a period ending SUMMARY: The Secretary of Department = Dollars cost of energy purchased or September 19, 2005 (93 FERC 62100). of Energy, confirmed and approved, on supplied for the benefit of the an interim basis, Rate Schedules JW–1– Public Notice and Comment customer for pumping during the G and JW–2–D. The rates were approved Southeastern prepared a Power Repayment specified month, including all on an interim basis through September Study, dated March of 2002, that showed that revenues at current rates were not adequate direct costs to deliver energy to the 19, 2005, and are subject to project. to meet repayment criteria. A revised study confirmation and approval by the with a revenue increase of $331,000 = Kilowatt-hours of energy purchased Federal Energy Regulatory Commission produced rates that are adequate to meet or supplied for the benefit of the on a final basis. repayment criteria. On April 11, 2002, by customer for pumping during the DATES: Approval of rate on an interim Federal Register Notice 70 FR 17686, specified month. basis is effective through September 19, Southeastern proposed a rate adjustment of about 5.7 percent to recover this revenue. = Energy loss factor for transmission 2005. The notice also announced a Public on energy purchased or supplied for FOR FURTHER INFORMATION CONTACT: Information and Comment Forum to be held the benefit of the customer for Leon Jourolmon, Assistant May 16, 2000, in Tallahassee, Florida, with pumping (Expected to be .03 or Administrator, Finance & Marketing, a deadline for written comments of July 10, three percent.) Southeastern Power Administration, 2002. Southeastern received no comments on the proposed rates. = Kilowatt-hours of energy in storage Department of Energy, 1166 Athens as of the end of the month Tech Road, Elberton, Georgia 30635– Discussion immediately preceding the 6711, (706) 213–3800. System Repayment specified month. SUPPLEMENTARY INFORMATION: The An examination of Southeastern’s revised = Weighted average cost of energy for Federal Energy Regulatory Commission, system power repayment study, prepared in pumping for the month by Order issued November 9, 2000, in April 2002, for the Jim Woodruff Project, immediately preceding the Docket No. EF00–3031–000, confirmed shows that with the proposed rates, all specified month. and approved Wholesale Power Rate system power costs are paid within the 50- Schedules JW–1–F and JW–2–C. Rate year repayment period required by existing (Weighted average energy conversion schedules JW–1–G and JW–2–D replace law and DOE Procedure RA 6120.2. The Administrator of Southeastern has certified factor is equal to the energy these schedules. generated from pumping divided by that the rates are consistent with applicable the total energy for pumping) Dated: July 25, 2002. law and that they are the lowest possible Spencer Abraham, rates to customers consistent with sound = Energy generated from pumping. business principles. Secretary. = Weighted average energy loss factor Environmental Impact on energy delivered by the Order Confirming and Approving Power Rates on an Interim Basis Southeastern has reviewed the possible facilitator to the customer. environmental impacts of the rate adjustment Pursuant to Sections 302(a) and 301(b) of under consideration and has concluded that, Energy To Be Furnished by the the Department of Energy Organization Act, because the adjusted rates would not Public Law 95–91, the functions of the Government significantly affect the quality of the human Secretary of the Interior and the Federal The Government will sell to the environment within the meaning of the Power Commission under Section 5 of the National Environmental Policy Act of 1969, Customer and the Customer will Flood Control Act of 1944, 16 U.S.C. 825s, the proposed action is not a major Federal purchase from the Government energy relating to the Southeastern Power action for which preparation of an each billing month equivalent to a Administration (Southeastern) were Environmental Impact Statement is required. percentage specified by contract of the transferred to and vested in the Secretary of energy made available to the Facilitator Energy. By Delegation Order No. 0204–108, Availability of Information effective May 30, 1986, 51 FR 19744 (May 30, Information regarding these rates, (less any losses required by the 1986) the Secretary of Energy delegated to the Facilitator). The Customer’s contract including studies, and other supporting Administrator the authority to develop power materials is available for public review in the demand and accompanying energy will and transmission rates, and delegated to the offices of Southeastern Power be allocated proportionately to its Under Secretary the authority to confirm, Administration, 1166 Athens Tech Road, individual delivery points served from approve, and place in effect such rates on an Elberton, Georgia 30635–6711. the Facilitator’s system. interim basis and delegated to the Federal Energy Regulatory Commission (FERC) the Submission to the Federal Energy Regulatory Billing Month authority to confirm and approve on a final Commission basis or to disapprove rates developed by the The rates hereinafter confirmed and The billing month for power sold Administrator under the delegation. On approved on an interim basis, together with under this schedule shall end at 12:00 December 6, 2001, the Secretary of Energy supporting documents, will be submitted midnight on the last day of each issued Delegation Order No. 00–001.00, promptly to the Federal Energy Regulatory calendar month. granting the Deputy Secretary authority to Commission for confirmation and approval confirm, approve, and place into effect on a final basis for a period beginning [FR Doc. 02–20060 Filed 8–7–02; 8:45 am] Southeastern’s rates on an interim basis. September 20, 2002, and ending no later than BILLING CODE 6450–01–P Because there is no Deputy Secretary at the September 19, 2005.
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Order Energy Charge equipment at or near the point of delivery In view of the foregoing and pursuant to 16.25 mills per kilowatt hour shall be coordinated with that which is the authority delegated to me by the installed by and at the expense of the Florida Secretary of Energy, I hereby confirm and Billing Demand Power Corporation on its side of the delivery approve on an interim basis, effective The monthly billing demand for any billing point. September 20, 2002, attached Wholesale month shall be the lower of (a) the Power Rate Schedules JW–1–G and JW–2–D. Customer’s contract demand or (b) the sum Service Interruption The rate schedules shall remain in effect on of the maximum 30-minute integrated When energy delivered to the Customer’s an interim basis through September 19, 2005, demands for the month at each of the system for the account of the Government is unless such period is extended or until the Customer’s points of delivery; provided, that, reduced or interrupted for one hour or FERC confirms and approves them or if an allocation of contract demand to longer, and such reduction or interruption is substitute rate schedules on a final basis. delivery points has become effective, the 30- not due to conditions on the Customer’s minute maximum integrated demand for any Dated: July 25, 2002. system or has not been planned and agreed Spencer Abraham, point of delivery shall not be considered to be greater than the portion of the Customer’s to in advance, the demand charge for the Secretary. contract demand allocated to that point of month shall be appropriately reduced. Proposed Wholesale Power Rate Schedule delivery. Proposed Wholesale Power Rate Schedule JW–1–G Contract Demand JW–2–D Availability The contract demand is the amount of Availability capacity in kilowatts stated in the contract This rate schedule shall be available to This rate schedule shall be available to the public bodies and cooperatives served by the which the Government is obligated to supply and the Customer is entitled to receive. Florida Power Corporation (hereinafter called Florida Power Corporation and having points the Company). of delivery within 150 miles of the Jim Energy Made Available Woodruff Project (hereinafter called the Applicability Project). During any billing month in which the Government supplies all the Customer’s This rate schedule shall be applicable to Applicability capacity requirements, the Government will electric energy generated at the Jim Woodruff This rate schedule shall be applicable to make available such when both the Project (hereinafter called the Project) and firm power and accompanying energy made Government and the Florida Power sold to the Company in wholesale quantities. available by the Government from the Project Corporation are supplying capacity to a Points of Delivery and sold in wholesale quantities. delivery point, each kilowatt of capacity supplied to such point during such month Power sold to the Company by the Character of Service will be considered to be accompanied by an Government will be delivered at the The electric capacity and energy supplied equal quantity of energy. connection of the Company’s transmission hereunder will be three-phase alternating Billing Month system with the Project bus. current at a nominal frequency of 60 cycles per second delivered at the delivery points of The billing month for power sold under Character of Service this schedule shall end at 12 midnight on the the customer. Electric power delivered to the Company 20th day of each calendar month. Monthly Rate will be three-phase alternating current at a Conditions of Service The monthly rate for capacity and energy nominal frequency of 60 cycles per second. made available or delivered under this rate The customer shall, at its own expense, Monthly Rate schedule shall be: provide, install, and maintain on its side of each delivery point the equipment necessary The monthly rate for energy sold under Demand Charge to protect and control its own system. In so this schedule shall be equal to 70 percent of $5.79 per kilowatt of monthly contract doing, the installation, adjustment, and the calculated saving in the cost of fuel per demand setting of all such control and protective KWH to the Company determined as follows:
Fm Energy Rate = 70% × [Computed to the nearest $0.00001 ()1 mill per KWH] Sm 100
Where: Determination of Energy Sold shall be separated on the basis of the metered Fm = Company fuel cost in the current Energy will be furnished by the Company deliveries to it at the Project during on-peak period as defined in Federal Power to supply any excess of Project use over and off-peak hours, respectively. Deliveries Commission Order 517 issued November Project generation. Energy so supplied by the to preference customers of the Government 13, 1974, Docket No. R–479. Company will be deducted from the actual shall be divided on the basis (with allowance for losses) of 77 percent being considered as Sm = Company sales in the current period deliveries to the Company’s system to on-peak energy and 23 percent being off-peak reflecting only losses associated with determine the net deliveries for energy energy. Such percentages may by mutual wholesale sales for resale. Sale shall be accounting and billing purposes. Energy for consent be changed from time to time as equated to the sum of (a) generation, (b) Project use shall consist of energy used for station service, lock operation, Project yard, further studies show to be appropriate. In the purchases, (c) interchange-in, less (d) village lighting, and similar uses. event that in classifying energy there is more inter-system sales, less estimated The on-peak hours shall be the hours than enough on-peak energy available to wholesale losses (based on average between 7 a.m. and 11 p.m., Monday through supply on-peak requirements of the transmission loss percentage for Sunday, inclusive. Off-peak hours shall be all Government’s preference customers but less preceding calendar year). other hours. than enough off-peak energy available to Method of Application: The energy rate All energy made available to the Company supply such customers off-peak applied during the current billing month will shall, to the extent required, be classified as requirements, such excess on-peak energy be based on costs and equated sales for the energy transmitted to the Government’s may be applied to the extent necessary to second month preceding the billing month. preference customers served from the meet off-peak requirements of such Company’s system. All energy made customers in lieu of purchasing deficiency available to the Company from the Project energy to meet such off-peak requirements.
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Billing Month comments on or before November 6, to P–S and LAP, a commitment of not The billing month under this schedule 2002. less than 96 percent of the hydroelectric shall end at 12 midnight on the 20th day of ADDRESSES: Comments may be power resource determined to be each calendar month. submitted to: Mr. J. Tyler Carlson, available to the customers was to be Power Factor Western Area Power Administration, extended, and a power resource pool of Desert Southwest Regional Manager, up to 4 percent of the power from these The purchaser and seller under this rate customers would be created. In schedule agree that they will both so operate P.O. Box 6457, Phoenix, AZ 85005– their respective systems that neither party 6457. Comments may also be faxed to addition, the PMI states that ‘‘at two 5- will impose an undue reactive burden on the (602) 352–2490 or e-mailed to year intervals after the effective date of other. [email protected]. the extension to existing customers, The public information and public Western will create a project-specific [FR Doc. 02–20063 Filed 8–7–02; 8:45 am] resource pool increment of up to an BILLING CODE 6450–01–P comment forum locations are: 1. McCarran International Airport, 5th additional 1 percent of the long-term Floor, Commissioner’s Meeting Room, marketable resource under contract at the time.’’ The resource pool would be DEPARTMENT OF ENERGY Las Vegas, Nevada; 2. Western Area Power Administration, Desert used for allocations to new customers. Western Area Power Administration Southwest Regional Office, 615 S. 43rd The rule stated that a more precise Ave, Phoenix, Arizona; 3. DoubleTree decision on how resource pools would Parker-Davis Project—Extension of Ontario Airport, 222 N. Vineyard, be used, as well as the percentage of Electric Power Resource Commitments Ontario, California. existing commitments extended, would be determined through future, project- by Application of the Energy Planning FOR FURTHER INFORMATION CONTACT: Roy specific public processes. and Management Program Power Tinsley, Project Manager, Desert Consistent with the application of the Marketing Initiative Southwest Region, Western Area Power PMI to other recent Western marketing Administration, 615 S. 43rd Ave., AGENCY: Western Area Power efforts, Western proposes to apply the Phoenix, AZ 85005, telephone (602) Administration, DOE. PMI (10 CFR parts 905.31 through 352–2788, e-mail ACTION: Notice of proposal. 905.37), to the P–DP. This includes a [email protected]. Program proposal to extend 94 percent of the P– information and the current P–DP SUMMARY: The Western Area Power DP customers’ entitlement of long-term, marketing plan are available for viewing firm P–DP resources as of September 30, Administration (Western), a Federal at http://www.wapa.gov/dsw/pwrmkt. power marketing agency of the 2008, for an additional 20 years. Given SUPPLEMENTARY INFORMATION: In 1987, Department of Energy, announces its the direction contained within the PMI Western marketed the long-term, firm Post-2008 re-marketing effort for the for a ‘‘reservation of a modest power resources of the Parker and Davis Parker-Davis Project (P–DP). Current P– percentage of resources to create a dams and entered into 20-year term FES DP long-term, Firm Electric Service resource pool,’’ Western proposes that a contracts with the current P–DP (FES) contracts will expire on resource pool of 6 percent of available customers. These FES contracts will September 30, 2008. In 1995, Western P–DP resources be established for new expire on September 30, 2008. Western adopted the Power Marketing Initiative customers. Western proposes creation of must determine if the PMI, as outlined (PMI) in Subpart C of the Energy a single, one-time resource pool of a in the Energy Planning and Management Planning and Management Program definite size, due to the costs and effort Program (Program), will be applied to (Program). The Record of Decision for associated with incremental resource the P–DP for FES commitments beyond the Program states that application of pools as experienced by the P–S and that date. the PMI will be done on a project- LAP projects, and given the small size Western first proposed the Program specific basis. If, by means of a public of the proposed P–DP resource pool on April 19, 1991 (56 FR 16093). The process, Western applies the PMI to the relative to those of other Western goals of the Program were to encourage P–DP, the current long-term FES projects. During the most recent efficient energy use by Western’s long- customers of the project would receive marketing effort of the Salt Lake City term, firm power customers by requiring an extension of a major portion of the Area Integrated Projects, which shares Integrated Resource Planning and to resources available to them at the time many of the same P–DP customers, a extend Western’s firm power resource their contracts expire. Western now single resource pool was created in commitments. In the final rule of the proposes to apply the PMI to the long- response to public comments. Program, Western stated that The existing P–DP marketing plan term, firm power contracts of the P–DP. application of the PMI, including the defines the marketing area as generally DATES: Western will hold three public amount of resources extended, would consisting of southern California, information forums on the following initially apply only to the Pick-Sloan southern Nevada, most of Arizona, and dates: 1. September 16, 2002, 1 p.m. to Missouri Basin Program-Eastern a small part of New Mexico; and is more 4 p.m., Las Vegas, Nevada, 2. September Division (P–S) and the Loveland Area specifically defined in the Conformed 17, 2002, 1 p.m. to 4 p.m., Phoenix, Projects (LAP). Applicability to other General Consolidated Power Marketing Arizona, 3. September 18, 2002, 1 p.m. projects would be determined through Criteria or Regulations for Boulder City to 4 p.m., Ontario, California. future, project-specific public processes. Area Projects (49 FR 50582, December Following the public information Specific to the P–DP, the rule stated that 28, 1984). New customers meeting the forums, Western will hold three public Western would evaluate application of requirements established in the P–DP comment forums. The dates for these the PMI to the Parker-Davis Project no Marketing Criteria and qualifying Native forums are as follows: 1. October 8, more than 10 years before existing American tribes within the P–DP 2002, 1 p.m. to 4 p.m., Las Vegas, contracts expire. marketing area will be eligible to request Nevada, 2. October 9, 2002, 1 p.m. to 4 The PMI calls for extending a major an allocation of capacity and energy p.m., Phoenix, Arizona, 3. October 10, portion of existing firm power sales from the P–DP resource pool. Native 2002, 1 p.m. to 4 p.m., Ontario, commitments for 20 years beyond the American tribes need not have utility California. Western will accept written existing termination date. With respect status to qualify for an allocation.
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Adjustments may be made to resource Program, pursuant to the National Room 1–C804, Washington, DC 20554 or allocations at any time to reflect changes Environmental Policy Act of 1969 via the internet to [email protected]. in dam operations and/or water (NEPA). The Record of Decision was FOR FURTHER INFORMATION CONTACT: For conditions upon 5 years notification. published in 60 FR 53181, October 12, additional information or copies of the As provided in the current P–DP 1995. Western’s NEPA review assured information collections contact Judy Advancement of Funds contract, new all environmental effects related to these Boley Herman at 202–418–0214 or via customers will be required to reimburse actions have been analyzed. the internet at [email protected]. existing customers for undepreciated Dated: July 26, 2002. SUPPLEMENTARY INFORMATION: OMB replacement advances, to the extent Michael S. Hacskaylo, Control No.: 3060–0572. existing customers’ allocations are Administrator. Title: Filing Manual for Annual reduced as a result of creating the [FR Doc. 02–20062 Filed 8–7–02; 8:45 am] International Circuit Status Reports. resource pool. New customers who Form No.: N/A. receive an allocation will also be BILLING CODE 6450–01–P Type of Review: Extension of a required to participate in advance currently approved collection. funding of Western’s and the Bureau of Respondents: Business or other for- Reclamation’s operation and FEDERAL COMMUNICATIONS profit. maintenance expenses. COMMISSION Number of Respondents: 138. Western is seeking comments Estimated Time Per Response: 11 Notice of Public Information regarding the applicability of the PMI to hours. Collection(s) Being Reviewed by the the P–DP, the percentage of resources to Frequency of Response: Annual Federal Communications Commission be extended to existing customers, and reporting requirement. for Extension Under Delegated the size of the proposed resource pool. Total Annual Burden: 1,540 hours. Authority, Comments Requested Following the public comment period, Annual Reporting and Recordkeeping Cost Burden: N/A. Western will analyze the comments July 30, 2002. Needs and Uses: The information will received and publish its policy SUMMARY: The Federal Communications enable the Commission to discharge its regarding extension of resource Commission, as part of its continuing obligation to authorize the construction commitments in the Federal Register. effort to reduce paperwork burden and use of international common carrier I. Review Under the Regulatory invites the general public and other transmission facilities. The information Flexibility Act Federal agencies to take this will be used by the Commission and the opportunity to comment on the The Regulatory Flexibility Act, 5 industry as to whether an international following information collection(s), as common carrier is providing direct or U.S.C. 601–621, requires Federal required by the Paperwork Reduction agencies to perform a regulatory indirect service to countries and to Act of 1995, Pub. L. 104–13. An agency assess industry trends in the use of flexibility analysis if a final rule is likely may not conduct or sponsor a collection to have a significant economic impact international transmission facilities. The of information unless it displays a information is extremely valuable on a substantial number of small entities currently valid control number. No and there is a legal requirement to issue because it not available from any other person shall be subject to any penalty source. a general notice of proposed for failing to comply with a collection rulemaking. Western has determined of information subject to the Paperwork Federal Communications Commission. this action does not require a regulatory Reduction Act (PRA) that does not Marlene H. Dortch, flexibility analysis since it is a display a valid control number. Secretary. rulemaking of particular applicability Comments are requested concerning [FR Doc. 02–20028 Filed 8–7–02; 8:45 am] involving rates or services applicable to whether the proposed collection of BILLING CODE 6712–01–P public property. information is necessary for the proper II. Small Business Regulatory performance of the functions of the FEDERAL COMMUNICATIONS Enforcement Fairness Act Commission, including whether the information shall have practical utility; COMMISSION Western determined this rule is the accuracy of the Commission’s [CC Docket No. 01–92, DA 02–1740] exempt from congressional notification burden estimate; ways to enhance the requirements under 5 U.S.C. 801 quality, utility, and clarity of the Routing and Rating of Traffic by because the action is a rulemaking of information collected; and ways to Incumbent Local Exchange Carriers particular applicability relating to rates minimize the burden of the collection of (ILECs) or services and involves matters of information on the respondents, AGENCY: Federal Communications procedure. including the use of automated Commission. III. Determination 12866 collection techniques or other forms of information technology. ACTION: Notice; solicitation of DOE has determined that this is not comments. a significant regulatory action because it DATES: Persons wishing to comment on does not meet the criteria of Executive this information collection should SUMMARY: In a public notice in this Order 12866, 58 FR 51735. Western has submit comments October 7, 2002. If proceeding released on July 18, 2002, an exemption from centralized you anticipate that you will be the Wireline Competition Bureau sought regulatory review under Executive submitting comments, but find it comment on the Sprint Petition for Order 12866; accordingly, this notice difficult to do so within the period of Declaratory Ruling regarding the routing requires no clearance by the Office of time allowed by this notice, you should and rating of traffic by ILECs and on Management and Budget. advise the contact listed below as soon BellSouth’s opposition to the petition, as possible. including the appropriate intercarrier IV. Environmental Compliance ADDRESSES: Direct all comments to Judy compensation applicable to this traffic, Western has completed an Boley Herman, Federal Communications both under our existing rules and environmental impact statement on the Commission, 445 12th Street, SW., prospectively.
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DATES: Comments due August 8, 2002 May 23, 2001. Accordingly, we ask that 20743. U.S. Postal Service first-class and reply comments due August 19, parties file their pleadings in CC Docket mail, Express Mail, and Priority Mail 2002. No. 01–92. The petition and other should be addressed to 445 12th Street, ADDRESSES: Federal Communications pleadings will be incorporated into CC SW., Washington, DC 20554. All filings Commission, 445 12th St., SW., Docket No. 01–92. must be addressed to the Commission’s Washington, DC 20554. See Pursuant to sections 1.415 and 1.419 Secretary, Office of the Secretary, SUPPLEMENTARY INFORMATION section for of the Commission’s rules, interested Federal Communications Commission. where and how to file comments. parties may file comments on or before Regardless of whether parties choose to FOR FURTHER INFORMATION CONTACT: August 8, 2002, and reply comments on file electronically or by paper, parties Steve Morris or Victoria Schlesinger, or before August 19, 2002. Comments should also file one copy of any Pricing Policy Division, Wireline may be filed using the Commission’s documents filed in this docket with the Competition Bureau, (202) 418–1530, or Electronic Comment Filing System Commission’s copy contractor, Qualex Gregory Vadas, Policy Division, (ECFS) or by filing paper copies. International, Portals II, 445 12th Street Wireless Telecommunications Bureau, Comments filed through the ECFS can SW., CY–B402, Washington, DC 20554 (202) 418–1798. be sent as an electronic file via the (telephone 202–863–2893; facsimile SUPPLEMENTARY INFORMATION: On May 9, Internet to http://www.fcc.gov/e-file/ 202–863–2898) or via e-mail at 2002, Sprint Corporation (Sprint), on ecfs.html. Generally, only one copy of [email protected]. In addition, one an electronic submission must be filed. behalf of its wireless division, filed a copy of each submission must be filed If multiple docket or rulemaking petition for declaratory ruling seeking with the Chief, Pricing Policy Division, confirmation that: (1) An incumbent numbers appear in the caption of this proceeding, however, commenters must Wireline Competition Bureau, and local exchange carrier (ILEC) may not Chief, Policy Division, Wireless refuse to load telephone numbering transmit one electronic copy of the Telecommunications Bureau, 445 12th resources of an interconnecting carrier, filing to each docket or rulemaking Street, SW., Washington, DC 20554. and (2) an ILEC may not refuse to honor number referenced in the caption. In the routing and rating points designated completing the transmittal screen, Documents filed in this proceeding will by that interconnecting carrier. Sprint’s commenters should include their full be available for public inspection during concern is its contention that, in certain name, Postal Service mailing address, regular business hours in the circumstances, BellSouth has signaled and the applicable docket or rulemaking Commission’s Reference Information its intention to refuse to program its number. Parties may also submit an Center, 445 12th Street, SW., LATA tandem switches with Sprint’s electronic copy by Internet e-mail. To Washington, DC 20554, and will be NPA–NXXs. In particular, where Sprint get filing instructions for e-mail placed on the Commission’s Internet wishes to associate an NPA–NXX with comments, commenters should send an site. a rate center of an ILEC other than e-mail to [email protected], and should This proceeding will be governed by BellSouth, and the rating and routing include the following words in the body ‘‘permit-but-disclose’’ ex parte points are different (e.g., the routing of the message: ‘‘get form
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Federal Communications Commission. The notices are available for pursuant to the Bank Holding Company Deena Shetler, immediate inspection at the Federal Act of 1956 (12 U.S.C. 1841 et seq.) Deputy Division Chief, Pricing Policy Reserve Bank indicated. The notices (BHC Act), Regulation Y (12 CFR Part Division. also will be available for inspection at 225), and all other applicable statutes [FR Doc. 02–20176 Filed 8–7–02; 8:45 am] the office of the Board of Governors. and regulations to become a bank BILLING CODE 6712–01–P Interested persons may express their holding company and/or to acquire the views in writing to the Reserve Bank assets or the ownership of, control of, or indicated for that notice or to the offices the power to vote shares of a bank or FEDERAL ELECTION COMMISSION. of the Board of Governors. Comments bank holding company and all of the must be received not later than August banks and nonbanking companies Sunshine Act Notices 23, 2002. owned by the bank holding company, A. Federal Reserve Bank of including the companies listed below. AGENCY: Federal Election Commission. Minneapolis (Julie Stackhouse, Vice DATE & TIME: Tuesday, August 13, 2002 President) 90 Hennepin Avenue, The applications listed below, as well at 10 A.M. Minneapolis, Minnesota 55480–0291: as other related filings required by the PLACE: 999 E Street, NW., Washington, 1. Jerry E. Gerber, Rice Lake, Board, are available for immediate DC. Wisconsin; Terry G. Gerber, Cameron, inspection at the Federal Reserve Bank indicated. The application also will be STATUS: This meeting will be closed to Wisconsin; Susan J. Gerber, Blaine, available for inspection at the offices of the public. Minnesota; Ernest J. Gerber, Bruce, Wisconsin; Alan F. Gerber, Radisson, the Board of Governors. Interested ITEMS TO BE DISCUSSED: Wisconsin; Kathleen L. Gerber, Quincy, persons may express their views in Compliance matters pursuant to 2 writing on the standards enumerated in U.S.C. 437g. Massachusetts; and Holly A. Barnes, Hayward, Wisconsin, to acquire voting the BHC Act (12 U.S.C. 1842(c)). If the Audits conducted pursuant to 2 proposal also involves the acquisition of U.S.C. 437g, 438(b), and Title 26, U.S.C. shares of Old Murry Bancorp, Inc., a nonbanking company, the review also Matters concerning participation in Cameron, Wisconsin, and thereby includes whether the acquisition of the civil actions or proceedings or indirectly acquire voting shares of nonbanking company complies with the arbitration. Owen-Curtiss Financial Corporation, Internal personnel rules and Rice Lake, Wisconsin, Brill Bancshares, standards in section 4 of the BHC Act procedures or matters affecting a Inc., Rice Lake, Wisconsin, Brill State (12 U.S.C. 1843). Unless otherwise particular employee. Bank, Rice Lake, Wisconsin, and Gilman noted, nonbanking activities will be Corporation, Gilman, Wisconsin, and conducted throughout the United States. DATE & TIME: Thursday, August 15, 2002 State Bank of Gilman, Gilman, Additional information on all bank at 10 A.M. Wisconsin. holding companies may be obtained PLACE: 999 E Street, NW., Washington, 2. Marcelle McVay, Chicago, Illinois, from the National Information Center DC (NINTH FLOOR). to retain voting shares of Minnwest website at www.ffiec.gov/nic/. Corporation, Minnetonka, Minnesota, STATUS: This meeting will be closed to Unless otherwise noted, comments and thereby indirectly retain voting the public. regarding each of these applications shares of Minnwest Bank Luverne, ITEMS TO BE DISCUSSED: must be received at the Reserve Bank Luverne, Minnesota; Minnwest Bank Correction and Approval of Minutes. indicated or the offices of the Board of Notice of Proposed Rulemaking on Central, Montevideo, Minnesota; Minnwest Bank Ortonville, Ortonville, Governors not later than September 3, Contribution Limitations and 2002. Prohibitions. Minnesota; Minnwest Bank, M.V., Administrative Matters. Redwood Falls, Minnesota; Minnwest A. Federal Reserve Bank of St. Louis Bank South, Tracy, Minnesota; and (Randall C. Sumner, Vice President) 411 PERSON TO CONTACT FOR INFORMATION: Minnwest Bank Sioux Falls, Sioux Falls, Locust Street, St. Louis, Missouri Mr. Ron Harris, Press Officer, South Dakota. 63166–2034: Telephone: (202) 694–1220. 3. Kenneth D. and Suzanne M. 1. Linn Holding Company, Linn, Mary W. Dove, Roeder, De Smet, South Dakota, to Missouri; to acquire 100 percent of the Secretary of the Commission. acquire voting shares of Kingsbury Bank voting shares of South Gasconade Holding Company, De Smet, South [FR Doc. 02–20210 Filed 8–6–02; 12:13 pm] Investment Corporation, Owensville, Dakota, and thereby indirectly acquire BILLING CODE 6715–01–M Missouri, and thereby indirectly acquire voting shares of Peoples State Bank, De voting shares of Charter 1 Bank, Smet, South Dakota. Owensville, Missouri. FEDERAL RESERVE SYSTEM Board of Governors of the Federal Reserve System, August 5, 2002. 2. Planters Financial Group, Inc., Change in Bank Control Notices; Robert deV. Frierson, Hopkinsville, Kentucky; to acquire 100 percent of the voting shares of City State Acquisition of Shares of Bank or Bank Deputy Secretary of the Board. Bank, Martin, Tennessee. Holding Companies [FR Doc. 02–20087 Filed 8–7–02; 8:45 am] B. Federal Reserve Bank of The notificants listed below have BILLING CODE 6210–01–S Minneapolis (Julie Stackhouse, Vice applied under the Change in Bank President) 90 Hennepin Avenue, Control Act (12 U.S.C. 1817(j)) and FEDERAL RESERVE SYSTEM Minneapolis, Minnesota 55480–0291: § 225.41 of the Board’s Regulation Y (12 CFR 225.41) to acquire a bank or bank Formations of, Acquisitions by, and 1. First Sleepy Eye Bancorporation, holding company. The factors that are Mergers of Bank Holding Companies Inc., Sioux Falls, South Dakota; to considered in acting on the notices are acquire 96 percent of the voting shares set forth in paragraph 7 of the Act (12 The companies listed in this notice of Stearns Bank Canby National U.S.C. 1817(j)(7)). have applied to the Board for approval, Association, Canby, Minnesota.
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Board of Governors of the Federal Reserve quarterly by the Department of Health updates from the CDC; and a discussion of System, August 5, 2002. and Human Services in the Federal the implementation of the Task Force Robert deV. Frierson, Register. recommendations by various governmental Deputy Secretary of the Board. The Secretary of the Treasury has agencies. Additional agenda items include: certified a rate of 125⁄8% for the quarter Working group updates; discussion of future [FR Doc. 02–20088 Filed 8–7–02; 8:45 am] topics, and scheduling the next meeting. BILLING CODE 6210–01–S ended June 30, 2002. This interest rate will remain in effect until such time as Agenda items are subject to change as priorities dictate. the Secretary of the Treasury notifies Contact Person for More Information: R. FEDERAL RETIREMENT THRIFT HHS of any change. Louise Floyd, DSN, RN, Designated Federal INVESTMENT BOARD Dated: July 31, 2002. Official, National Center on Birth Defects and George Strader, Developmental Disabilities, CDC, 4700 Sunshine Act Notice Deputy Assistant Secretary, Finance Buford Highway, NE, (F–49), Atlanta, Georgia 30333, telephone 770/488–7372, fax 770/ TIME AND DATE: 10 a.m. (EDT) August 19, [FR Doc. 02–20020 Filed 8–7–02; 8:45 am] 488–7361. 2002. BILLING CODE 4150–04–M The Director, Management Analysis and PLACE: 4th Floor, Conference Room, Services Office, has been delegated the 1250 H Street, NW., Washington, DC. authority to sign Federal Register notices DEPARTMENT OF HEALTH AND pertaining to announcements of meetings and STATUS: Parts will be open to the public HUMAN SERVICES other committee management activities for and part closed to the public. both the CDC and ATSDR. Centers for Disease Control and Matters To Be Considered Dated: August 2, 2002. Prevention Parts Open to the Public John Burckhardt, 1. Approval of the minutes of the July National Task Force on Fetal Alcohol Acting Director, Management Analysis and 15, 2002, Board member meeting. Syndrome and Fetal Alcohol Effect: Services Office, , Centers for Disease Control 2. Thrift Savings Plan activity report Meeting and Prevention. by the Executive Director (with [FR Doc. 02–20037 Filed 8–7–02; 8:45 am] In accordance with section 10(a)(2) of discussion of litigation to be closed to BILLING CODE 4163–18–P the public). the Federal Advisory Committee Act 3. Review of investment policy. (Pub. L. 92–463), the Centers for Disease 4. Review of Ernst & Young Control and Prevention (CDC) DEPARTMENT OF HEALTH AND semiannual financial review. announces the following Federal HUMAN SERVICES Part Closed to the Public advisory committee meeting. Name: National Task Force on Fetal Centers for Disease Control and Discussion of litigation. Alcohol Syndrome and Fetal Alcohol Effect Prevention CONTACT PERSON FOR MORE INFORMATION: (NTFFASFAE). Thomas J. Trabucco, Director, Office of Times and Dates: Prospective Grant of Exclusive External Affairs, (202) 942–1640. 8:30 a.m.–4:30 p.m., September 20, 2002. License: Various Retrovirus Isolated 8:30 a.m.–12 noon, September 21, 2002. From Humans Dated: August 6, 2002. Place: Hyatt Regency, 265 Peachtree Street, Elizabeth S. Woodruff, N.E., Atlanta, Georgia 30303, telephone 404/ AGENCY: Technology Transfer Office, Secretary to the Board, Federal Retirement 577–1234, fax 404/588–3752. Thrift Investment Board. Status: Open to the public, limited only by Centers for Disease Control and Prevention (CDC), Department of Health [FR Doc. 02–20263 Filed 8–6–02; 3:33 pm] the space available. The meeting room accommodates approximately 65 people. and Human Services. BILLING CODE 6760–01–M Purpose: The Secretary is authorized by the ACTION: Notice. Public Health Service Act, section 399H, (42 U.S.C. 280f, as added by Public Law 105– DEPARTMENT OF HEALTH AND 392) to establish a National Task Force on SUMMARY: This is a notice in accordance HUMAN SERVICES Fetal Alcohol Syndrome and Fetal Alcohol with 35 U.S.C. 209 (e)and 37 CFR Effect to: (1) Foster coordination among all 404.7(a)(1)(i) that the Centers for Disease Office of the Secretary governmental agencies, academic bodies and Control and Prevention (CDC), community groups that conduct or support Technology Transfer Office, Department Notice of Interest Rate on Overdue Fetal Alcohol Syndrome (FAS) and Fetal of Health and Human Services (DHHS), Debts Alcohol Effect (FAE) research, programs and surveillance; and (2) to otherwise meet the is contemplating the grant of a Section 30.13 of the Department of general needs of populations actually or worldwide exclusive license to practice Health and Human Services’ claims potentially impacted by FAS and FAE. the inventions embodied in the patents collection regulations (45 CFR part 30) Matters To Be Discussed: Discussions will and patent applications referred to provides that the Secretary shall charge focus on ways the Task Force can collaborate below to Antibody Systems, Inc., an annual rate of interest as fixed by the with CDC and other Federal agencies on located in Hurst, Texas. The patent issues of diagnostic criteria for FAS/Alcohol Secretary of the Treasury after taking rights in these inventions have been Related Neurodevelopmental Disorder assigned to the government of the into consideration private consumer (ARND) in order to enhance health care rates of interest prevailing on the date providers’ recognition of these disorders, and United States of America. The patents that HHS become entitled to recovery. to ensure that those affected and their and patent applications to be licensed The rate generally cannot be lower than families receive needed services; the special are: the Department of Treasury’s current needs of birth mothers of children with FAS/ Title: Retrovirus Isolated from value of funds rate or the applicable ARND; a report of the Substance Abuse and Humans, U.S. Patent No. 5,882,912. rates determined from the ‘‘Schedule of Mental Health Services Administration FAS/ Issue Date: 03/16/99. CDC Reference No. FAE Center for Excellence on their initial Certified Interest Rates with Range of ‘‘stakeholders’’ meetings and future plans; an I–012–97/0; New Spumavirus Isolated Maturities.’’ This rate may be revised update on activities from the Interagency form Humans, U.S. Patent Application quarterly by the Secretary of the Coordinating Committee on Fetal Alcohol PCT/US98/02598 dated 2/12/98. CDC Treasury and shall be published Syndrome; new research and program Reference No. I–012–97/1; Spumavirus
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Isolated from Humans, U.S. Patent DEPARTMENT OF HEALTH AND part of this solicitation. Proposals will Application 09/367,213 dated 12/08/ HUMAN SERVICES be reviewed by a technical panel. 1999. CDC Reference No. I–012–97/2; Approved projects that do not obtain New Retrovirus Isolated from Humans, Centers for Disease Control and funding on their own will be canceled. U.S. Patent Application PCT/US01/ Prevention A more complete description of this 51411 dated 10.19.2001. CDC Reference program follows. National Health and Nutrition No. I–023–00/0 Spumavirus Isolated Examination Survey III (NHANES) DNA Dates from Humans, U.S. Patent Application Specimens: Guidelines for Proposals • PCT/US99/25171 dated 10/27/99. CDC Letter of Intent Receipt: September to Use Samples and Proposed Cost 9, 2002 Reference No. I–034–97/0; Spumavirus Schedule • Submission of Proposals: October 7, Isolated from Humans, U.S. Patent 2002 Application Serial No. 09/830,616 filed ACTION: Notice. • Application Receipt: November 18, 9/05/01. CDC Reference No. I–034–97/1; SUMMARY: The National Health and 2002 The prospective exclusive license will • Scientific Review: January, 2003 Nutrition Examination Survey • be royalty-bearing and will comply with (NHANES) is a program of periodic Institutional Review: February, the terms and conditions of 35 U.S.C. 2003 surveys conducted by the National • 209 and 37 CFR 404.7. Center for Health Statistics (NCHS) of Notification of approval: March These inventions cover unique the Centers for Disease Control and 2003 • Anticipated distribution of samples: spumavirus isolates and clones from Prevention (CDC). Examination surveys July-August 2003 infected humans, and an infectious conducted since 1960 by NCHS have spumavirus vector. Licensee will further provided national estimates of the ADDRESSES: To send comments and for development this technology to assess health and nutritional status of the U.S. information, contact: this vector’s suitability for gene therapy civilian non-institutionalized Ms. Kika Oraegbu, Division of Health Examination Statistics, National Center applications, attenuated vaccines, and population. To add to the large amount for Health Statistics, Centers for Disease use as a stable replicating viral vector. of information collected for the purpose of describing the health of the Control and Prevention, 6525 Belcrest ADDRESSES: Requests for a copy of the population, blood lymphocytes were Road, Room 1000, Hyattsville, MD patent applications, inquiries, collected in NHANES III in anticipation 20782, Phone: 301–458–4367, FAX: comments, and other materials relating of advances in genetic research. 301–458–4028, E-Mail: [email protected], to the contemplated license should be The lymphocytes have been stored Internet: http://www.cdc.gov/nchs/ directed to Andrew Watkins, Director, and maintained at the Division of about/major/nhanes/dnafnlgm2.htm. Technology Transfer Office, Centers for Laboratory Sciences (DLS) at the SUPPLEMENTARY INFORMATION: Disease Control and Prevention (CDC), National Center for Environmental The goals of NHANES are (1) to 4770 Buford Highway, Mailstop K–79, Health (NCEH), CDC. The collection of estimate the number and percentage of Atlanta, GA 30341, telephone: (770) lymphocytes was begun in the second people in the U.S. population and 488–8600; facsimile: (770) 488–8615. phase of the survey (1991–1994) designated subgroups with selected Applications for a license filed in because of the significant advances in diseases and risk factors for those response to this notice will be treated as the rapidly evolving field of molecular diseases; (2) to monitor trends in the objections to the grant of the biology that were occurring during the prevalence, awareness, treatment and contemplated license. Only written planning phase of this survey. CDC is control of selected diseases; (3) to comments and/or applications for a making DNA samples from these monitor trends in risk behaviors and license which are received by CDC specimens available to the research environmental exposures; (4) to analyze community for such analyses. risk factors for selected diseases; (5) to within sixty days of this notice will be Specimens are available from study the relation among diet, nutrition considered. Comments and objections approximately 7,300 participants in the and health; (6) to explore emerging submitted in response to this notice will second phase of NHANES III. No cell public health issues and new not be made available for public lines will be made available. technologies; (7) to establish and inspection, and, to the extent permitted This program has been previously maintain a national probability sample by law, will not be released under the announced (Tuesday, June 1, 1999 (64 of baseline information on health and Freedom of Information Act, 5 U.S.C. FR 29321)). The purpose of this notice nutrition status. 552. A signed Confidential Disclosure is to announce a third category for The Third National Health and Agreement will be required to receive a proposals for use of these specimens Nutrition Examination Survey copy of any pending patent application. and a new cost schedule. For final (NHANES III) began in the Fall of 1988 Dated: August 2, 2002. proposal guidelines and request for and ended in the Fall of 1994. Survey Joseph R. Carter, letters of intent, please contact Ms. data were collected and can be analyzed Oraegbu or go to http://www.cdc.gov/ from two phases: Phase I was conducted Associate Director for Management and nchs/about/major/nhanes/ from October 1988 to October 1991, and Operations, Centers for Disease Control and dnafnlgm2.htm. Phase II was conducted from October Prevention (CDC). All interested researchers are 1991 to October 1994. Both phases are [FR Doc. 02–20039 Filed 8–7–02; 8:45 am] encouraged to submit letters of intent. nationally representative samples. For BILLING CODE 4163–18–P Approximately twenty proposals for a details of the sampling design see the full set of specimens (∼7,300 samples) Plan and Operation of NHANES III (1). and a limited number of proposals (less This information can be obtained by than five, depending on the number of contacting the Data Dissemination specimens requested) for smaller sets of Branch, NCHS, at 301–458–4636 or from samples can be awarded in this the Internet at http://www.cdc.gov/nchs/ solicitation. No funding is provided as about/major/nhanes/nh3data.htm.
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Blood specimens were collected from samples. Studies which request DNA support time, it is recommended that participants as a part of NHANES III. samples linked to previously collected the investigator develop the project Lymphocytes were isolated from the NHANES III public use data without the proposal in conjunction with the blood collected from participants aged restriction of anonymization. Data NHANES Staff and Research Data 12 years and older and stored frozen in analyses must be done within the NCHS Center staff. The investigator should liquid nitrogen or as cell cultures Research Data Center. perform preliminary analyses using immortalized with Epstein-Barr virus Category (B): Age-race-sex studies NHANES public use data to determine and frozen at the Molecular Biology using anonymized samples: A limited whether the proposed research is Branch of DLS, NCEH, CDC, Atlanta, number of subsets may be distributed in feasible. Approval of these protocols by GA. DNA is available from cell lines of 50uL cryovials. Subsets based on the the RDC is required after approval by Phase II (1991–1994) participants. selection criteria proposed by the Genetics Technical Panel. The RDC Health information collected in the investigators. Studies of allele uses the following criteria for approval: NHANES III is kept in strictest frequencies which require only basic risk of disclosure, consistency with the confidence. During the informed demographic information (age, race/ mission of NCHS, availability of RDC consent process, survey participants are ethnicity, and sex) to be linked to the resources, and the feasibility of the assured that data collected will be used samples. project. only for stated purposes and will not be Category (C): Special anonymized Although researchers sign disclosed or released to others without studies: A limited number of subsets confidentiality agreements to use the the consent of the individual or the may be distributed in 50uL cryovials. RDC, strict confidentiality protocols establishment in accordance with Subsets based on the selection criteria require that researchers with approved section 308(d) of the Public Health proposed by investigators. Studies in projects must complete their work using Service Act (42 U.S.C. 242m). Although which additional co-variates from the the facilities located within the the consent form was signed by NHANES III public use database are Research Data Centers (currently only participants in the survey, and required, but the re-coding maintains the Hyattsville, MD, facility is in participants consented to storing anonymization (minimum of 5 operation). Two access methods are specimens of their blood for future individuals in each statistical cell) of available for researchers to accomplish research, specific mention of genetic the samples. their tasks: onsite and remote. The costs research was not included. These latter two research designs do and restrictions are different for each Nevertheless, given the scientific not differ from the previous Plan for method. Onsite researchers have the importance of this resource, the CDC/ distributing NHANES III DNA samples ability to use the full capabilities of the NCHS Institutional Review Board (IRB) to researchers. SAS system with the only additional approved making anonymized samples Category (A): Special studies using requirement being a disclosure review. of DNA available to the genetic research the NCHS Research Data Center— Individual cells are suppressed if the community. Distribution of the complete set of minimum requirements for disclosure The anonymization requirements samples in deep-well format (96 are not met. Additional restrictions limit proved to be restrictive and difficult to specimens/per plate) ∼7,300 samples. the analysis capabilities of the remote implement, therefore, in August, 2001 The investigator will specify the genetic access system. Under these situations, the CDC/NCHS IRB approved a revised analyses to be conducted on the the printed output is scanned and plan for using these specimens based on samples. The investigator will also screened prior to transmittal to the the guidelines in the August, 1999 include in the research protocol investigator. Strict minimal disclosure National Bioethics Advisory application a list of demographic and limits are adhered to and data items are Commission (NBAC) report on the use clinical variables that would be used for suppressed if the minimums are not of stored biological materials for the data analyses. Data analyses that met. For remote access, all statistical research. This revised plan includes a combine the genetic analyses with cells with fewer than five observations process that gives researchers the ability NHANES III data must be conducted in are suppressed. Under the RDC option to obtain more information associated the NCHS Research Data Center (RDC). (protocol category A), the researcher with specimens for protocols that are The researcher will conduct the genetic may obtain aggregate statistics from determined by the IRB to have minimal laboratory analyses on the samples that statistical calculations which effectively risk for harm to the participant. For are labeled with a unique random ID use smaller statistical cell sizes for those protocols that cannot be and are, therefore, anonymous to the intermediate steps, such as performing conducted under unlinked (or researcher. To perform the data regression analyses on detailed data, as anonymous) conditions, but have been analyses, the researcher will then long as the intermediate steps are never determined to involve minimal risk, the provide the results of the genetic made available separately. revised plan allows for linking the laboratory tests with the random Category (B) Age-race-gender Studies: genetic laboratory results to the identification numbers to the Division A limited number of subsets may be NHANES data through the NCHS of Health Examination Statistics distributed in 50uL cryovials. Subsets Research Data Center. This process (DHES). The random identification based on the selection criteria proposed would ensure that confidentiality of the numbers are also anonymous to all staff, by investigators. To facilitate the subjects’ identity is maintained, and except the one person who has the research proposal preparation of allele would reduce the possibility that crosswalk file. These results will be frequency, NCHS will make the linking genetic information to the matched to the NHANES III data by that following data available with the DNA NHANES III data files might identify an person. The resulting data file will be sample: age in 10-year age groups, race- individual or cause group harm. provided to the RDC. These analyses ethnicity (white, black, Mexican- will be subject to all the confidentiality American), gender, mean sample Potential Research Proposals restrictions of the RDC (http:// weights for each demographic group Category (A): Special studies using www.cdc.gov/nchs/r&d/rdc.htm). and the average design effect. Thus, the NCHS Research Data Center: Because all the data analyses will be investigators wishing to submit Complete set of samples in deep-well completed in the NCHS RDC, which proposals under this research design format (96 specimens/per plate) ∼7,300 charges for computer time and for RDC type do not need to provide an analysis
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of NHANES III data to support the may be required for integral variables to available. There are only 3 complete sets unlinked (anonymization) scheme ensure anonymity. Because the samples of cryovials, so the number of projects proposed. These data have sufficient are primarily available from phase II that can be filled with these samples sample sizes in each category (the subjects, these analyses should be run depends on the types of projects smallest age, race/ethnicity, gender using phase II subjects only proposed. statistical cell contains 62 persons) to (SDPPHASE=2). (Household codes are preserve anonymity. To further preserve confidential data. Therefore, if only one Proposed Cost Schedule for Providing anonymity, only 80 percent of the individual per household is to be NHANES III DNA Specimen Bank subjects in each statistical cell will be included in the protocol, the A nominal processing fee of $5.00 is used. investigator can estimate the sample charged for each sample received from Proposals submitted for this category size per statistical cell by halving the the NHANES III DNA Specimen Bank if of review are limited to those requesting cross tabulation results. For instance, if the full set of specimens (category A) are samples from within these age, gender, only one individual per household is requested. If the more limited set of race/ethnicity cells for identifying the requested, the minimum statistical cell cryovials is requested, a cost of $38.00/ frequency of the alleles in the size of the cross tabulation should be vial is assessed to cover the manual population. These proposals must ten subjects.) From each statistical cell, selection of these samples. Costs are address all criteria except for the either 2 or 20 percent of the subjects of determined both for NCEH and NCHS verification that anonymization can be the cell, whichever is larger, will be and include the physical materials achieved. deleted from the pool of samples sent to needed to process the samples at the Category (C): Special Anonymized the investigator. In all three proposal NCEH laboratory, as well as the Studies (Requests for Additional designs, the investigators will receive materials to process the requests for Variables)—A limited number of subsets samples that are coded with a random samples at NCHS. These costs include may be distributed in 50uL aliquots in identifier that is unique to that proposal. cryovials. Subsets are based on the salaries of the staff needed to conduct selection criteria proposed by the DNA Samples these activities at each Center. The fee investigator(s). The investigator will For proposals falling into category A, is estimated to cover the costs of include a list of demographic and the laboratory will dilute the stock processing, handling, and preparing the clinical variables and specify recoding specimens that are currently in deep- samples in accordance with the detailed schemes, if appropriate, that the well plates 1:2 and distribute 50 ul requirements of the investigators. These principal investigator would like to aliquots of diluted lysate. The amount of costs were based on an assumption that have linked to the samples to meet the DNA in each aliquot will be NCEH and NCHS will receive and objectives of the study. The combined approximately 180–1,500 nanograms process 20 proposals in a year, each information on all variables provided to (ng). Aliquots will be dispensed into requesting 7,300 samples as shown in the investigator by CDC must not deep-well plates for distribution to the table below or 5 subsets of 1000 constitute a unique set of values that investigators. Each well will be bar- samples in cryovials. could link the samples with participant coded and labeled with a readable The materials listed are for the data on the NHANES III public use data identifier. Approximately 20–22 sample recurring laboratory costs to dispense set. Investigators should obtain the sets of specimens from 7,300 and prepare the samples for shipping. NHANES III Public Use Data and should participants will be available for Labor costs are based on the need for verify that anonymity can be achieved proposals. An investigator must microbiologists, a proposal before submitting the proposal with the purchase the samples in full sets. For administrator, and computer requested set of variables. proposals falling into category B or C, programmers for NCHS and NCEH to A cross tabulation of all requested specimens will be distributed in 50 µL maintain the data bases and verify variables must be provided and must aliquots in cryovials rather than deep- anonymity. Technical panel travel and demonstrate that there are at least five well plates. The amount of DNA in each expenses are based on the panel meeting individuals in each statistical cell of aliquot will be 75 to 650 nanograms. twice a year. The space estimate is that cross tabulation. Recoding is Only a limited number of smaller based on acquiring storage and sample required for continuous variables and specialized sets for category B or C are aliquoting space in the laboratory.
Per sample for 7,300 samples in 96 Total costs well plates Per sample for individual cryovials
Materials ...... $ 0.25 ...... $ 1.90 Labor ...... 2.90 ...... 22.00 Application review and other administrative expenses ...... 0.35 ...... 2.69 Space ...... 0.13 ...... 0.97 Subtotal ...... 3.63 ...... 27.56 NCHS overhead (15%) ...... 0.54 ...... 4.12 Subtotal ...... 4.17 ...... 31.68 CDC/FMO overhead (20%) ...... 0.83 ...... 6.32 Total cost per sample ...... 5.00 ...... 38.00 Total cost per proposal ...... 36,500 ...... NA
Shipping costs are not included in the Procedures for Letter of Intent 2002. The letter of intent is required to processing fee. These costs must also be enable CDC to plan the review more paid by the investigator. NCHS will post information about efficiently, evaluate the number of letters of intent on the NHANES Web requests, and to assess the capacity of site www.cdc.gov/nchs/about/major/ the DNA Bank to fulfill requests. Only nhanes/nhanes.htm, by September 9,
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20–22 full sets of samples (7,300 As there are only 20–22 full sets of The potential difficulties and specimens) are available for this round samples (7,300 specimens) and only a limitations of the proposed procedures of proposals. A limited set of individual limited set of individual cryovials for should also be discussed. Address cryovials will be available for less than proposals requiring less than the full set adequate methods for handling and the full set of samples. All letters of of samples available for this round of storage of samples. NCHS will verify the intent will be reviewed by Division of proposals, proposals will be ranked by anonymity for category B and C Health Examination Statistics staff for the technical panel on a scale of 1–10 proposals. potential major problems related to the with 10 being the highest rank for each (4) Discussion regarding the race/ feasibility of the project. If a problem is category. ethnicity variables: If the sample request identified, the Division staff will inform The proposal should contain, and will is limited to specific race or ethnic the investigator so it can be addressed be evaluated according to, the following groups or if information about the race in the proposal. elements: or ethnicity of the subjects is requested, All potential investigators must (1) Specific Aims—List the broad indicate the reason for analyzing race/ submit letters of intent. The letter objectives; describe concisely and ethnicity and how the results will be should be no more than two pages and realistically what the research is interpreted. Discuss the potential for include (1) a descriptive title of the intended to accomplish, and state the group harm. overall proposed research; (2) the name, specific hypotheses to be tested. (5) Clinical relevance of research address and telephone number of the Category A proposals which request findings: The specimens under this Plan Principal Investigator (PI); (3) a list of using the full set of specimens will are available for genetic research, not key investigators and their institution(s); receive priority consideration. Category genetic testing. Therefore, it is the intent (4) one paragraph on the background for B and C proposals will be evaluated of the program to approve only those the proposal and a paragraph briefly together since they will be competing proposals that would yield meaningful addressing each criterion for technical for the limited set of cryovials. research, but not clinically relevant evaluation of letters of intent and (2) Background and Public Health information for the participants. proposals; (5) the genetic assessments Significance: Describe the public health Researchers should address whether or proposed; (6) a list of proposed significance, scientific merit, and not findings from the proposed research variables; and (7) an estimate of the practical utility of the assay. Scientific merit disclosure. number of samples that would be merit will be judged on the basis of the (6) Qualifications: Provide a brief requested. The background paragraph scientific, technical, or medical description of the requestor’s expertise should state concisely the importance of significance of the research; the in the proposed area, including the research in terms of the broad, long- appropriateness and adequacy of the publications in this area within the last term objectives and public health experimental approach; and the three years. relevance and consistency of NCHS’s methodology proposed to reach the (7) Anonymity: Final approval is mission to monitor the nations’s health. research goals. Convey how the results based upon NCHS confirmation that Letters of intent should be submitted will be used and the relation of the anonymity can be maintained by the by September 9, 2002. results to the data already collected in categorization of variables for category C Ms. Kika Oraegbu, National Center for NHANES III. Analyses should be proposals (proposals requiring Health Statistics, Centers for Disease consistent with the NHANES mission to anonymity). Control and Prevention, 6525 Belcrest assess the health of the nation. Because (8) Period of performance: Specify the Road, Room 1000, Hyattsville, MD NHANES is a complex, multistage project period. The period may be up to 20782, Phone: 301–458–4367, FAX: probability sample of the national three years. At the end of the project 301–458–4028, E-Mail: [email protected]. population, the appropriateness of using period, any unused samples must be the NHANES sample to address the returned to the NHANES DNA Procedures for Proposals goals of the proposal will be an Specimen Bank in accordance with The investigator should follow these important aspect of determining instructions from the Division of instructions for preparation of scientific merit. The Panel will ensure Environmental Laboratory Science. proposals: Prepare proposals with a that the proposed project does not go Extensions to the period of performance maximum of five single-spaced typed beyond either the general purpose for may be requested. pages, excluding figures and tables, collecting the samples in the survey, (9) Funding: Include the source and using ten cpi type density. If a proposal i.e., to determine allele frequencies in status of the funding to perform the is approved, the title, specific aims, subgroups of the population, or, the requested laboratory analysis. name, and phone number of the author specific stated goals of the proposal Investigators will be responsible for the will be maintained by NCHS and (3) Research Design and Methods: cost of processing and shipping the released if requested by the public. Describe the sampling scheme and samples. Currently the cost per DNA Unapproved proposals will be returned number of samples requested if specimen is $5.00 for proposals that use to the investigator and will not be submitting a category C proposal. the full set of samples (∼7,300) and maintained by NCHS. The cover of the Include power calculations for the $38.00 for subsets. Reimbursement for proposal should include the name, subsample and a list of variables the samples will be collected before the address, phone number, and E-mail requested; provide a cross-tabulation of samples are released. address, if available, of the PI, and the requested variables for category C Proposals will be evaluated by a name of the institution where the DNA proposals. For all proposal categories, Genetics Technical Panel and, if analysis will be done, and the category include a detailed description of the approved, by the CDC/NCHS IRB for of proposal (A, B, C) that would be laboratory methods. If a non-standard human subject concerns. The IRB submitted. The cover page should be laboratory method is to be used, discuss review will be conducted, even though signed by the responsible institution its advantages over using existing investigators’ proposals may have representative. Proposals will be ranked methods. The characteristics of the received review by their home by the technical panel on a scale of 1– laboratory assay, such as reliability, institution. The Panel will also review 10 with 10 being the highest rank for validity, and ‘‘state-of-the-art,’’ should an NCHS evaluation of whether each category. be included with appropriate references. anonymity can be assured for the
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proposed project for proposals in for use of the DNA as stated in this DEPARTMENT OF HEALTH AND categories B and C. The samples that are document and as agreed upon by the HUMAN SERVICES sent to the investigator will be selected investigators and CDC. A key randomly from the domains by NCHS component of this agreement is that no Food and Drug Administration staff. The Director of NCHS will verify attempt will be made to link the results Docket No. 02N–0332 that projects have received appropriate of the proposed research to any other reviews. data, including, but not limited to, the Preparation for the International Requirements for the Inclusion of NHANES III public use data set. Also, Conference on Harmonization Women and Racial and Ethnic the investigator agrees that the samples Meetings in Washington, DC, Including Minorities in Research cannot be used for commercial Progress on Implementation of the purposes. Common Technical Document; Public In NHANES III, race/ethnicity was Meeting defined by self-report as non-Hispanic Progress Reports white, non-Hispanic black, or Mexican AGENCY: Food and Drug Administration, American. Individuals who did not self- A progress report will be submitted HHS. select into these categories were annually. CDC/NCHS IRB continuation ACTION: Notice of public meeting. classified as ‘‘other.’’ If the proposal reports are also required annually. excludes one or more race/ethnic groups SUMMARY: The Food and Drug Disposition of Results and Samples or a gender, this exclusion must be Administration (FDA) is announcing a justified. No DNA samples provided can be public meeting entitled ‘‘Preparation for CDC is also sensitive to the used for any purpose other than those ICH Meetings in Washington, DC, stigmatization of racial/ethnic specific specifically requested in the proposal Including Progress on Implementation populations through inappropriate and approved by the Genetics Technical of the Common Technical Document’’ to reporting and interpretation of findings. Panel and the NHANES IRB. No sample solicit information and receive For all proposals that request comments on the International can be shared with others, including information on race/ethnicity for the Conference on Harmonisation (ICH) as other investigators, unless specified in samples selected, the investigator well as the upcoming meetings in should indicate the reason for analyzing the proposal and so approved. Any Washington, DC. The purpose of the race/ethnicity and how the results will unused samples must be destroyed meeting is to solicit public input prior be interpreted. upon completion of the approved to the next Steering Committee and project. Researchers requesting DNA Expert Working Group meetings in Submission of Proposals samples for age-race-gender studies and Washington, DC, September 9 to 12, Proposals should be submitted by special studies will be required to 2002, at which discussion of the October 7, 2002. All investigators who provide NCHS with the results of all Common Technical Document and the submitted letters of intent may submit DNA tests performed for each future of ICH will continue. proposals. anonymized sample. These results, once Date and Time: The public meeting Electronic submission of proposals is returned to NCHS, will be part of the will be held on September 5, 2002, from encouraged. Please submit proposals to: public domain. Therefore, ample time 10:30 a.m. to 2 p.m. Ms. Kika Oraegbu, National Center for will be given to the investigator to Location: The public meeting will be Health Statistics, 6525 Belcrest Rd., Rm publish results prior to reporting the held at 5630 Fishers Lane, rm. 1066, 1000, Hyattsville MD 20782, Phone: results to NCHS. Rockville, MD 20852. (301) 458–4367, FAX: (301) 458–4028, Contact: Kimberly Topper, Center for E-Mail: [email protected], Attention: Send Request for Information: Ms. Kika Oraegbu, National Center for Drug Evaluation and Research (HFD– NHANES III Genetic Testing Program. 21), Food and Drug Administration, Health Statistics, Centers for Disease 5600 Fishers Lane, Rockville, MD Approved Proposals Control and Prevention, 6525 Belcrest 20857, 301–827–7001, FAX 301–827– NCHS/NCEH will provide a data file Road, Room 1000, Hyattsville, MD 6801, e-mail: [email protected]. with the requested recoded variables 20782, Phone: 301–458–4367, FAX: Registration and Request for Oral (for category B and C proposals) and a 301–458–4028, E-Mail: [email protected]. Presentation: Send registration randomly assigned unique identification References information (including name, title, firm number that is linked to the DNA name, address, telephone, and fax specimen. No record connecting the 1. Plan and Operation of the Third number), and written material and new number with the original National Health and Nutrition requests to make oral presentations to identification number will be kept after Examination Survey, 1988–94. National the contact person by August 29, 2002. the samples have been sent. These Center for Health Statistics. Vital Health If you need special accommodations samples cannot be traced to any files Stat (32) 1994. due to a disability, please contact maintained by NCHS. For proposals in 2. Clayton EW, Steinberg KK, Khoury Kimberly Topper at least 7 days in category A, the genetic results will be advance. sent back to NCHS so they can be linked MJ, et al. Informed consent for genetic to the NHANES III public use data in research on stored tissue samples. SUPPLEMENTARY INFORMATION: The the Research Data Center for analysis. JAMA 1995;274:1786–1792. International Conference on Harmonisation of Technical Dated: August 2, 2002. Agency Agreement Requirements for the Registration of A formal signed agreement in the Joseph R. Carter, Pharmaceuticals for Human Use was form of a Materials Transfer Agreement Associate Director for Management and established in 1990 as a joint regulatory/ (MTA) with individuals who have Operations, Centers for Disease Control and industry project to improve, through projects approved will be completed Prevention (CDC). harmonization, the efficiency of the before the release of the samples. This [FR Doc. 02–20038 Filed 8–7–02; 8:45 am] process for developing and registering agreement will contain the conditions BILLING CODE 4163–18–P new medicinal products in Europe,
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Japan, and the United States without and an indication of the approximate update on the Department of Health and compromising the regulatory obligations time requested to make their Human Services Rural Initiative. of safety and effectiveness. presentation. Monday, September 9, at 8:30 a.m. the In recent years, many important The agenda for the public meeting Committee will depart for a site visit at the Big Timber Hospital. At 11 a.m. the initiatives have been undertaken by will be made available on August 29, Committee will depart for a site visit to regulatory authorities and industry 2002, under Docket No. 02N–0332, at Livingston, Montana. Transportation to these associations to promote international the Dockets Management Branch (HFA– locations will not be provided to the general harmonization of regulatory 305), Food and Drug Administration, public. At 3:30 p.m. the Committee will hear requirements. FDA has participated in 5630 Fishers Lane, rm. 1061, Rockville, a presentation from a representative of the many meetings designed to enhance MD 20852. Governor’s Health Workforce Study. harmonization and is committed to Transcripts: Transcripts of the The final plenary session will be convened seeking scientifically based harmonized on Tuesday, September 10. Beginning at 8 meeting may be requested in writing a.m. there will be a review of the site visits technical procedures for pharmaceutical from the Freedom of Information Office and a report from the Quality Subcommittee. development. One of the goals of (HFI–35), Food and Drug The meeting will conclude with a discussion harmonization is to identify and then Administration, 5600 Fishers Lane, rm. of the Montana presentations and what issues reduce differences in technical 12A–16, Rockville, MD 20857, to raise in the Committee’s meeting summary requirements for medical product approximately 15 working days after the that will be sent to the Secretary. The development among regulatory meeting at a cost of 10 cents per page. meeting will be adjourned at 10:30 a.m. agencies. The ICH was organized to Anyone requiring information regarding Dated: August 1, 2002. provide an opportunity for the subject Committee should contact Tom harmonization initiatives to be Margaret M. Dotzel, Morris, Executive Secretary, National Associate Commissioner for Policy. Advisory Committee on Rural Health, Health developed with input from both Resources and Services Administration, regulatory and industry representatives. [FR Doc. 02–20009 Filed 8–7–02; 8:45 am] Room 9A–55, Parklawn Building, 5600 The ICH is concerned with BILLING CODE 4160–01–S Fishers Lane, Rockville, MD 20857, harmonization among three regions: The telephone (301) 443–0835, Fax (301) 443– European Union, Japan, and the United 2803. States. The six ICH sponsors are the DEPARTMENT OF HEALTH AND Persons interested in attending any portion European Commission; the European HUMAN SERVICES of the meeting should contact Michele Pray, Federation of Pharmaceutical Industries Office of Rural Health Policy (ORHP), (301) 443–0835. The National Advisory Committee Associations; the Japanese Ministry of Health Resources and Services Administration meeting agenda will be posted on ORHP’s Health, Labor and Welfare; the Japanese Web site, http://www.ruralhealth.hrsa.gov. Pharmaceutical Manufacturers Advisory Committee; Notice of Meeting Association; the Centers for Drug Dated: August 2, 2002. Evaluation and Research and Biologics In accordance with section 10(a)(2) of Jane M. Harrison, Evaluation and Research, FDA; and the the Federal Advisory Committee Act Director, Division of Policy Review and Pharmaceutical Research and (Pub. L. 92–463), announcement is Coordination. Manufacturers of America. The ICH made of the following National [FR Doc. 02–20040 Filed 8–7–02; 8:45 am] Secretariat, which coordinates the Advisory body scheduled to meet BILLING CODE 4165–15–P 3 preparation of documentation, is during the month of September 2002. provided by the International The National Advisory Committee on Federation of Pharmaceutical Rural Health will convene its forty- DEPARTMENT OF HEALTH AND Manufacturers Associations. The ICH second meeting in the time and place HUMAN SERVICES Steering Committee includes specified below: National Institutes of Health representatives from each of the ICH Name: National Advisory Committee on sponsors and Canadian Therapeutics Rural Health. National Center for Complementary & Programme, and the European Free Date and Time: September 8, 2002, 1:30 Alternative Medicine; Notice of Meeting Trade Area. The ICH process has p.m.–5 p.m.; September 9, 2002, 8:30 a.m.– achieved significant harmonization of 4:45 p.m.; September 10, 2002, 8 a.m.–10:30 Pursuant to section 10(d) of the the technical requirements for the a.m. Federal Advisory Committee Act, as approval of pharmaceuticals for human Place: Chico Hot Springs Resort, P.O. Box amended (5 U.S.C. Appendix 2), notice use in the three ICH regions. The 29, Pray, Montana 59047, Phone: 406–333– is hereby given of the National Advisory current ICH process and structure can 4933. Council for Complementary and be found on the Internet at http:// The meeting is open to the public. Alternative Medicine (NACCAM). Purpose: The National Advisory The meeting will be open to the www.ifpma.org/ich1.html Committee on Rural Health provides advice Interested persons may present data, and recommendations to the Secretary with public as indicated below, with information, or views orally or in respect to the delivery, research, attendance limited to space available. writing, on issues pending at the public development and administration of health Individuals who plan to attend and meeting. Oral presentations from the care services in rural areas. need special assistance, such as sign public will be scheduled between Agenda: Sunday, September 8, at Chico language interpretation or other approximately 11:30 a.m. and 1 p.m. Hot Springs Resort at 1:30 p.m. the reasonable accommodations, should Time allotted for oral presentations may chairperson, the Honorable David Beasley, notify the Contact Person listed below be limited to 10 minutes. Those desiring will open the meeting and welcome the in advance of the meeting. to make oral presentations should notify Committee members. The first plenary The meeting will be closed to the the contact person by August 29, 2002, session will consist of presentations by the public in accordance with the Montana Quality Improvement Organization and submit a brief statement of the and the Montana Health Quality Network. provisions set forth in sections general nature of the evidence or This will be followed by reports from the 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., arguments they which to present, the Quality and Workforce Subcommittees. At as amended. The grant applications names and addresses, phone number, 3:45 p.m. the Committee will hear a and/or contract proposals and the fax, and e-mail of proposed participants, presentation from Libby Hospital and an discussion could disclose confidential
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trade secrets or commercial property Dated: August 2, 2002. 20892–7965, (301) 435–0810, such as patentable material, and LaVerne Y. Stringfield, [email protected]. personal information concerning Director, Office of Federal Advisory Name of Committee: National Center for individuals associated with the grant Committee Policy, NIH. Research Resources Special Emphasis Panel applications and/or contract proposals, [FR Doc. 02–20109 Filed 8–7–02; 8:45 am] Biomedical Research Technology. the disclosure of which would Date: October 7–8, 2002. BILLING CODE 4140–01–M Time: October 7, 2002, 8 a.m. to constitute a clearly unwarranted Adjournment. invasion of personal privacy. Agenda: To review and evaluate grant Name of Committee: National Advisory DEPARTMENT OF HEALTH AND applications. Council for Complementary and Alternative HUMAN SERVICES Place: Four Points by Sheraton Bethesda, Medicine. 8400 Wisconsin Avenue, Bethesda, MD National Institutes of Health Date: August 26, 2002. 20814. Contact Person: Mohan Viswanathan, PHD, Closed: 8:30 a.m. to 12:15 p.m. National Center for Research Agenda: To review and evaluate grant Scientific Review Administrator, National Resources; Notice of Closed Meetings applications and/or proposals. Center for Research Resources, National Open: 1:15 p.m. to adjournment. Institutes of Health, Office of Review, 6705 Pursuant to section 10(d) of the Rockledge Drive, MSC 7965, One Rockledge Agenda: The agenda includes Opening Federal Advisory Committee Act, as Remarks by Director, NCCAM, NIH Director’s Centre, Room 6018, Bethesda, MD 20892, amended (5 U.S.C. Appendix 2), notice (301) 435–0829, [email protected]. Remarks by Director, NIH, Report on NCCAM is hereby given of the following Research Centers Program, Concept Review: (Catalogue of Federal Domestic Assistance meetings. Program Nos. 93.306, Comparative Medicine, Research Centers, CAM Research Education, The meetings will be closed to the Clinical Evaluation of CAM Products, PC 93.306; 93.333, Clinical Research, 93.333, SPES Update, and other business of the public in accordance with the 93.371, Biomedical Technology; 93.389, Council. provisions set forth in section 552b(c)(4) Research Infrastructure, National Institutes of Place: Neuroscience Conference Center, and 552b(c)(6), Title 5 U.S.C., as Health, HHS) amended. The grant applications and 6001 Executive Boulevard, Conference Dated: August 2, 2002. Rooms C and D, Rockville, MD 20852. the discussions could disclose Contact Person: Jane F. Kinsel, Ph.D., confidential trade secrets or commercial LaVerne Y. Stringfield, Executive Secretary, National Center for property such as patentable material, Director, Office of Federal Advisory Complementary and Alternative Medicine, and personal information concerning Committee Policy. National Institutes of Health, 6707 individuals associated with the grant [FR Doc. 02–20111 Filed 8–7–02; 8:45 am] Democracy Blvd., Suite 401, Bethesda, MD applications, the disclosure of which BILLING CODE 4140–01–M 20892. 301/402–7269. would constitute a clearly unwarranted The public comments session is invasion of personal privacy. scheduled from 5:45–6 p.m. Each DEPARTMENT OF HEALTH AND Name of Committee: National Center for HUMAN SERVICES speaker will be permitted 5 minutes for Research Resources Special Emphasis Panel their presentation. Interested Scientific and Technical Review Board on National Institutes of Health individuals and representatives of Biomedical and Behavioral Research organizations are requested to notify Dr. Facilities. National Eye Institute; Notice of Closed Date: August 8, 2002. Jane Kinsel, National Center for Meeting Complementary and Alternative Time: 2 p.m. to Adjournment. Agenda: To review and evaluate grant Pursuant to section 10(d) of the Medicine, NIH, 6707 Democracy applications. Boulevard, Suite 401, Bethesda, Place: Office of Review, National Center for Federal Advisory Committee Act, as Maryland 20892, 301–402–7269, Fax: Research Resources, 6705 Rockledge Drive, amended (5 U.S.C. Appendix 2), notice 301–480–3519. Letters of intent to Bethesda, MD 20892. (Telephone Conference is hereby given of the following present comments, along with a brief Call). meeting. description of the organization Contact Person: D.G. Patel, PHD, Scientific The meeting will be closed to the represented, should be received no later Review Administrator, Office of Review, public in accordance with the than 5 p.m. on August 16, 2002. Only National Center for Research Resources, provisions set forth in sections one representative of an organization National Institutes of Health, 6705 Rockledge Drive, MSC 7965, One Rockledge Centre, 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., may present oral comments. Any person Room 6018, Bethesda, MD 20892–7965, (301) as amended. The grant applications and attending the meeting who does not 435–0824, [email protected]. the discussions could disclose request an opportunity to speak in This notice is being published less than 15 confidential trade secrets or commercial advance of the meeting may be days prior to the meeting due to the timing property such as patentable material, considered for oral presentation, if time limitations imposed by the review and and personal information concerning permits, and at the discretion of the funding cycle. individuals associated with the grant Chairperson. In addition, written Name of Committee: National Center for applications, the disclosure of which comments may be submitted to Dr. Jane Research Resources Special Emphasis Panel would constitute a clearly unwarranted Kinsel at the address listed above up to Comparative Medicine. invasion of personal privacy. Date: August 28, 2002. ten calendar days (September 10, 2002) Time: 7 a.m. to Adjournment. Name of Committee: National Eye Institute following the meeting. Agenda: To review and evaluate grant Special Emphasis Panel, NEI U10 Copies of the meeting agenda and the applications. Applications on Cataract Anesthesia roster of members will be furnished Place: Sheraton Framingham Hotel, 1657 Management. upon request by Dr. Jane Kinsel, Worcester Road, Framingham, MA 01701. Date: August 13, 2002. Time: 3 p.m. to 5 p.m. Executive Secretary, NACCAM, Contact Person: Camille M. King, PHD, Scientific Review Administrator, Office of Agenda: To review and evaluate grant National Institutes of Health, 6707 Review, National Center for Research applications. Democracy Boulevard, Suite 401, Resources, National Institutes of Health, One Place: 6120 Executive Blvd., Suite 350, Bethesda, Maryland 20892, 301–402– Rockledge Centre, MSC 7965, 6705 Rockville, MD 20892. (Telephone Conference 7269, Fax 301–480–3519. Rockledge Drive, Suite 6018, Bethesda, MD Call).
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Contact Person: Samuel Rawlings, PhD, Dated: July 31, 2002. In the interest of security, NIH has Chief, Scientific Review Branch, Division of LaVerne Y. Stringfield, instituted stringent procedures for Extramural Research, National Eye Institute, Director, Office of Federal Advisory entrance into the building by non- Bethesda, MD 20892. 301–451–2020. Committee Policy. government employees. Persons without This notice is being published less than 15 [FR Doc. 02–20010 Filed 8–7–02; 8:45 am] a goverment I.D., will need to show a days prior to the meeting due to the timing BILLING CODE 4140–01–M photo I.D. and sign-in at the security limitations imposed by the review and desk upon entering the building. funding cycle. (Catalogue of Federal Domestic Assistance (Catalogue of Federal Domestic Assistance DEPARTMENT OF HEALTH AND Program Nos. 93.172, Human Genome Program Nos. 93.867, Vision Research, HUMAN SERVICES Research, National Institutes of Health, HHS) National Institutes of Health, HHS) Dated: July 31, 2002. Dated: August 1, 2002. National Institutes of Health LaVerne Y. Stringfield, LaVerne Y. Stringfield, Director, Office of Federal Advisory National Human Geonome Research Committee Policy. Director, Office of Federal Advisory Institute; Notice of Meeting Committee Policy. [FR Doc. 02–20014 Filed 8–7–02; 8:45 am] [FR Doc. 02–20105 Filed 8–7–02; 8:45 am] Pursuant to section 10(d) of the BILLING CODE 4140–01–M BILLING CODE 4140–01–M Federal Advisory Committee Act, as amended (5 U.S.C. Appendix 2), notice DEPARTMENT OF HEALTH AND is hereby given of a meeting of the HUMAN SERVICES DEPARTMENT OF HEALTH AND National Council for Human Genome HUMAN SERVICES Research. National Institutes of Health The meeting will be open to the National Institutes of Health public as indicated below, with National Institute of Nursing Research; attendance limited to space available. Amended Notice of Meeting National Heart, Lung, and Blood Individuals who plan to attend and Institute; Notice of Closed Meeting Notice is hereby given of a change in need special assistance, such as sign the meeting of the National Institute of language interpretation or other Pursuant to section 10(d) of the Nursing Research Special Emphasis reasonable accommodations, should Federal Advisory Committee Act, as Panel, June 19, 2002, 3 p.m. to June 19, notify the Contact Person listed below amended (5 U.S.C. Appendix 2), notice 2002, 5 p.m. Holiday Inn—Bethesda, in advance of the meeting. is hereby given of the following 8120 Wisconsin Avenue, Bethesda, MD meeting. The meeting will be closed to the 20814 which was published in the public in accordance with the Federal Register on June 18, 2002, FR The meeting will be closed to the provisions set forth in sections public in accordance with the 67:41435. 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., The date of the meeting has been provisions set forth in sections as amended. The grant applications rescheduled to August 7, 2002 at 9 a.m. 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., and/or contract proposals and the and will be held as a telephone as amended. The grant applications and discussions could disclose confidential conference meeting at 1 Democracy the discussions could disclose trade secrets or commercial property Boulevard, Bethesda, Maryland. The confidential trade secrets or commercial such as patentable material, and meeting is closed to the public. property such as patentable material, personal information concerning Dated: July 31, 2002. and personal information concerning individuals associated with the grant individuals associated with the grant applications and/or contract proposals, LaVerne Y. Stringfield, applications, the disclosure of which the disclosure of which would Director, Office of Federal Advisory Committee Policy. would constitute a clearly unwarranted constitute a clearly unwarranted invasion of personal privacy. invasion of personal privacy. [FR Doc. 02–20011 Filed 8–7–02; 8:45 am] Name of Committee: National Heart, Lung, Name of Committee: National Advisory BILLING CODE 4140–01–M and Blood Institute Special Emphasis Panel, Council for Huamn Genome Research, Demonstration and Education Research Date: September 9–10, 2002. Grant. Open: September 9, 2002, 8:30 a.m. to DEPARTMENT OF HEALTH AND Date: September 23, 2002. 12:30 p.m. HUMAN SERVICES Time: 8 a.m. to 5 p.m. Agenda: To discuss matters of program National Institutes of Health Agenda: To review and evaluate grant relevance. Place: National Institutes of Health, applications. Natcher Building, Conference Rooms E1 & National Institute of Nursing Research; Place: Sheraton Columbia Hotel, 10207 E2, 45 Center Drive, Bethesda, MD 20892. Amended Notice of Meeting Wincopin Circle, Columbia, MD 21060. Closed: September 9, 2002, 1 p.m. to Contact Person: Patricia A. Haggerty, Adjournment on Tuesday, September 10, Notice is hereby given of a change in Review Branch, Division of Extramural 2002. the meeting of the National Institute of Affairs, National Heart, Lung, and Blood Agenda: To review and evaluate grant Nursing Research Special Emphasis Institute, National Institutes of Health, 6701 applications and/or proposals. Panel, June 19, 2002, 1 p.m. to June 19, Rockledge Drive, Room 7202, Bethesda, MD Place: National Institutes of Health, 2002, 3 p.m., Holiday Inn—Bethesda, 20892, 301/435–0310. Natcher Building, Conference Rooms E1 & 8120 Wisconsin Avenue, Bethesda, MD, E2, 45 Center Drive, Bethesda, MD 20892. 20814 which was published in the (Catalogue of Federal Domestic Assistance Contact Person: Mark S. Guyer, Director for Program Nos. 93.233, National Center for Extramural Research, Assistant Director for Federal Register on June 18, 2002, FR Sleep Disorders Research; 93.837, Heart and Scientific Coordination, National Human 67: 41435. Vascular Diseases Research; 93.838, Lung Genome Research Institute, 31 Center Drive, The date of this meeting has been Diseases Research; 93.839, Blood Diseases MSC 2033, Building 31, Room B2B07, rescheduled to August 9, 2002 at 10 a.m. and Resources Research, National Institutes Bethesda, MD 20892–2033, Bethesda MD and will be held as a telephone of Health, HHS) 20892, 301–435–5536. [email protected]. conference meeting at 1 Democracy
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Building Boulevard, Bethesda, and Stroke, National Institutes of Health, Date: September 11, 2002. Maryland. The meeting is closed to the Neuroscience Center, 6001 Executive Blvd., Time: 8 P.M. to 10 P.M. public. Suite 3309, MSC 9531, Bethesda, MD 20892– Agenda: To discuss the training programs 9531, (301) 496–9248. of the institute. Dated: July 31, 2002. In the interest of security, NIH has Place: Holiday Inn, 8120 Wisconsin LaVerne Y. Stringfield, instituted stringent procedures for entrance Avenue, Bethesda, MD 20814. Director, Office of Federal Advisory into the building by non-government Contact Person: Constance W. Atwell, PhD, Committee Policy. employees. Persons without a government Associate Director for Extramural Research, I.D. will need to show a photo I.D. and sign- [FR Doc. 02–20012 Filed 8–7–02; 8:45 am] National Institute of Neurological Disorders in at the security desk upon entering the and Stroke, National Institutes of Health, BILLING CODE 4140–01–M building. Information is also available on the Neuroscience Center, 6001 Executive Blvd., Institute’s/Center’s home page: Suite 3309, MSC 9531, Bethesda, MD 20892– DEPARTMENT OF HEALTH AND www.ninds.nih.gov, where an agenda and 9531, (301) 496–9248. HUMAN SERVICES any additional information for the meeting Name of Committee: National Advisory will be posted when available. Neurological Disorders and Stroke Council, National Institutes of Health (Catalogue of Federal Domestic Assistance Clinical Trials Subcommittee. Program Nos. 93.853, Clinical Research Date: September 12, 2002. National Institute of Neurological Related to Neurological Disorders; 93.854, Open: 8 A.M. to 8:30 A.M. Disorders and Stroke; Notice of Biological Basis Research in the Agenda: To discuss clinical trials policy. Meeting Neurosciences, National Institutes of Health, Place: National Institutes of Health, HHS) Building 31, C Wing, Conference Room 10, Pursuant to section 10(d) of the Dated: August 1, 2002. 31 Center Drive, Bethesda, MD 20892. Federal Advisory Committee Act, as Closed: 8:30 A.M. to 10 A.M. LaVerne Y. Stringfield, amended (5 U.S.C. Appendix 2), notice Agenda: To review and evaluate grant is hereby given of a meeting of the Director, Office of Federal Advisory applications. National Advisory Neurological Committee Policy. Place: National Institutes of Health, Disorders and Stroke Council. [FR Doc. 02–20102 Filed 8–7–02; 8:45 am] Building 31, C Wing, Conference Room 10, The meeting will be open to the BILLING CODE 4140–01–M 31 Center Drive, Bethesda, MD 20892. public as indicated below, with Contact Person: Constance W. Atwell, PhD, attendance limited to space available. Associate Director for Extramural Research, Individuals who plan to attend and DEPARTMENT OF HEALTH AND National Institute of Neurological Disorders need special assistance, such as sign HUMAN SERVICES and Stroke, National Institutes of Health, language interpretation or other Neuroscience Center, 6001 Executive Blvd., reasonable accommodations, should National Institutes of Health Suite 3309, MSC 9531, Bethesda, MD 20892– 9531, (301) 496–9248. notify the Contact Person listed below National Institute of Neurological in advance of the meeting. Name of Committee: National Advisory Disorders and Stroke; Notice of Neurological Disorders and Stroke Council, The meeting will be closed to the Meetings public in accordance with the Infrastructure, Neuroinformatics, and provisions set forth in sections Pursuant to section 10(d) of the Computational Neuroscience Subcommittee. Date: September 12, 2002. 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., Federal Advisory Committee Act, as Time: 8 A.M. to 10 A.M. as amended. The grant applications and amended (5 U.S.C. Appendix 2), notice Agenda: To discuss research mechanisms the discussions could disclose is hereby given of meetings of the and infrastructure needs. confidential trade secrets or commercial National Advisory Neurological Place: National Institutes of Health, 31 property such as patentable material, Disorders and Stroke Council. Center Drive, Building 31, Room 8A28, and personal information concerning The meetings will be open to the Bethesda, MD 20892. individuals associated with the grant public as indicated below, with Contact Person: Robert Baughman, MD, applications, the disclosure of which attendance limited to space available. Associate Director for Technology constitute a clearly unwarranted Individuals who plan to attend and Development, National Institute of invasion of personal privacy. need special assistance, such as sign Neurological Disorders and Stroke, National Institutes of Health, 6001 Executive Blvd., Name of Committee: National Advisory language interpretation or other Neurological Disorders and Stroke Council. reasonable accommodations, should Suite 2137, MSC 9527, Bethesda, MD 20892– Date: September 12–13, 2002. notify the Contact Person listed below 9527, (301) 496–1779. Open: September 12, 2002, 10:30 AM to 5 in advance of the meeting. Information is also available on the PM. The meetings will be closed to the Institutes/Center’s home page: Agenda: Report by the Acting Director, public in accordance with the www.ninds.nih.gov, where an agenda and NINDS; Report by the Director, Division of provisions set forth in sections any additional information for the meeting Extramural Research; and other 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., will be posted when available. administrative and program developments. as amended. The grant applications and (Catalogue of Federal Domestic Assistance Place: National Institutes of Health, Program Nos. 93.853, Clinical Research Building 31, C Wing, Conference Room 10, the discussions could disclose Related to Neurological Disorders; 93.854, 9000 Rockville Pike, Bethesda, MD 20892. confidential trade secrets or commercial Biological Basis Research in the Closed: September 13, 2002, 8:30 AM to 12 property such as patentable material, Neurosciences, National Institutes of Health, PM. and personal information concerning HHS) Agenda: To review and evaluate grant individuals associated with the grant applications. applications, the disclosure of which Dated: August 1, 2002. Place: National Institutes of Health, would constitute a clearly unwarranted LaVerne Y. Stringfield, Building 31, C Wing, Conference Room 10, Director, Office of Federal Advisory 9000 Rockville Pike, Bethesda, MD 20892. invasion of personal privacy. Committee Policy. Contact Person: Constance W. Atwell, PhD, Name of Committee: National Advisory Associate Director for Extramural Research, Neurological Disorders and Stroke Council, [FR Doc. 02–20103 Filed 8–7–02; 8:45 am] National Institute of Neurological Disorders Training Subcommittee. BILLING CODE 4140–01–M
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DEPARTMENT OF HEALTH AND The meeting will be closed to the the meeting will be closed to the HUMAN SERVICES public in accordance with the public in accordance with the provisions set forth in sections provisions set forth in sections National Institutes of Health 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The purpose of this as amended. The grant applications and National Institute of Arthritis and meeting is to evaluate clinical research the discussions could disclose Musculoskeletal and Skin Diseases; projects with yearly direct costs greater confidential trade secrets or commercial Notice of Closed Meeting than $1 million dollars for their property such as patentable material, relevance to the mission and the goals and personal information concerning Pursuant to section 10(d) of the of NINDS. The outcome of the individuals associated with the grant Federal Advisory Committee Act, as evaluation will be a decision whether applications, the disclosure of which amended (5 U.S.C. Appendix 2), notice NINDS should accept the application for would constitute a clearly unwarranted is hereby given of the following scientific review. The research invasion of personal privacy. meeting. proposals and the discussions could Name of Committee: National Institute on The meeting will be closed to the disclose confidential trade secrets or Deafness and Other Communications public in accordance with the commercial property such as patentable Disorders Special Emphasis Panel, Re-review provisions set forth in sections material, and personal information of R03 grant application. 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., concerning individuals associated with Date: August 27, 2002. as amended. The grant applications and the proposed research projects, the Time: 1 p.m. to 1:30 p.m. the discussions could disclose disclosure of which would constitute a Agenda: To review and evaluate grant confidential trade secrets or commercial clearly unwarranted invasion of applications. property such as patentable material, personal privacy. Place: 6120 Executive Blvd., Suite 400C, and personal information concerning Rockville, MD 20852. (Telephone Conference Name of Committee: Clinical Trials individuals associated with the grant Call). Subcommittee of the National Advisory, Contact Person: Stanley C. Oaks, PhD, applications, the disclosure of which Neurological Disorders and Stroke Council. would constitute a clearly unwarranted Scientific Review Administrator, Scientific Date: August 6, 2002. Review Branch, Division of Extramural invasion of personal privacy. Time: 2:00 p.m. to 4:00 p.m. Research, Executive Plaza South, Room 400C, Name of Committee: National Institute of Agenda: To evaluate the rationale of large 6120 Executive Blvd., Bethesda, MD 20892– Arthritis and Musculoskeletal and Skin proposed clinical research projects. 7180. 301–496–8683. Place: 6001 Executive Boulevard, Diseases Special Emphasis Panel; AMS (Catalogue of Federal Domestic Assistance Bethesda, MD 20892. (Telephone Conference Conflicts. Program Nos. 93.173, Biological Research Call). Date: August 27, 2002. Related to Deafness and Communicative Contact Person: Dr. Constance W. Atwell, Time: 2 PM to 3 PM. Disorders, National Institutes of Health, HHS) Agenda: To review and evaluate grant Associate Director for Extramural Research, applications. National Institute of Neurological Disorders Dated: August 2,2002. Place: 1 Democracy, 6701 Democracy and Stroke, 6001 Executive Boulevard, Suite LaVerne Y. Stringfield, Blvd., Suite 707 MSC 4870, Bethesda, MD 3309, MSC 9531, Bethesda, MD 20892–9531. Director, Office of Federal Advisory 20892–4870, (Telephone Conference Call). 301 496–9248. Committee Policy. Contact Person: Richard J. Bartlett, PhD, This notice is being published less than 15 [FR Doc. 02–20110 Filed 8–07–02; 8:45 am] Scientific Review Administrator, National days prior to the meeting due to the timing Institute of Arthritis and Musculoskeletal and limitations imposed by the review and BILLING CODE 4140–01–M Skin Diseases, Natcher Bldg./Bldg. 45, MSC funding cycle. 6500/Room 5AS–37B, Bethesda, MD 20892, (Catalogue of Federal Domestic Assistance (301) 594–4952. Program Nos. 93.853, Clinical research DEPARTMENT OF HEALTH AND (Catalogue of Federal Domestic Assistance Related to Neoruological Disorders; 93.854, HUMAN SERVICES Program Nos. 93.846, Arthritis, Biological Basis Research in the Musculoskeletal and Skin Diseases Research, Neurosciences, National Institutes of Health, National Institutes of Health National Institutes of Health, HHS) HHS) National Institute on Alcohol Abuse Dated: August 1, 2002. Dated: August 7, 2002. and Alcoholism; Notice of Closed LaVerne Y. Stringfield, LaVerne Y. Stringfield, Meetings Director, Office of Federal Advisory Director, Office of Federal Advisory Committee Policy. Committee Policy. Pursuant to section 10(d) of the [FR Doc. 02–20104 Filed 8–7–02; 8:45 am] [FR Doc. 02–20106 Filed 8–7–02; 8:45 am] Federal Advisory Committee Act, as BILLING CODE 4140–01–M BILLING CODE 4140–01–M amended (5 U.S.C. Appendix 2), notice is hereby given of the following meetings. DEPARTMENT OF HEALTH AND DEPARTMENT OF HEALTH AND The meetings will be closed to the HUMAN SERVICES HUMAN SERVICES public in accordance with the NATIONAL INSTITUTES OF HEALTH National Institutes of Health provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., National Institute of Neurological National Institute on Deafness and as amended. The grant applications and Disorders and Stroke; Notice of Closed Other Communication Disorders; the discussions could disclose Meeting Notice of Closed Meeting confidential trade secrets or commercial property such as patentable material, Pursuant to section 10(d) of the Pursuant to section 10(d) of the and personal information concerning Federal Advisory Committee Act, as Federal Advisory Committee Act, as individuals associated with the grant amended (5 U.S.C. Appendix 2) notice amended (5 U.S.C. Appendix 2), notice applications, the disclosure of which is hereby given of the following is hereby given of the following would constitute a clearly unwarranted meeting. meeting. invasion of personal privacy.
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Name of Committee: National Institute on Contact Person: Elsie Taylor, Scientific Date: August 28, 2002. Alcohol Abuse and Alcoholism Special Review Administrator, Extramural Project Time: 1 p.m. to 5 p.m. Emphasis Panel Review of R21 Grant Review Branch, National Institute on Alcohol Agenda: To review and evaluate contract Application(s). Abuse and Alcoholism, National Institutes of proposals. Date: August 5, 2002.1 Health, Suite 409, 6000 Executive Blvd., Place: Neuroscience Center, National Time: 11:30 a.m. to 12:30 p.m. Bethesda, MD 20892–7003, 301–443–9787, Institutes of Health, 6001 Executive Blvd., Agenda: To review and evaluate grant [email protected]. Bethesda, MD 20892, (Telephone Conference applications. Name of Committee: National Institute on Call). Place: Wilco Bilding, Suite 409, Rockville, Alcohol Abuse and Alcoholism Initial Contact Person: Richard E. Weise, PhD, MD 20892 (Telephone Conference Call). Review Group, Clinical and Treatment Scientific Review Administrator, Division of Contact Person: Sean N. O’Rourke, Subcommittee, Review of Clinical Treatment Extramural Activities, National Institute of Scientific Review Administrator, Extramural Applications. Mental Health, NIH, Neuroscience Center, Project Review Branch, National Institute on Date: October 24–25, 2002. 6001 Executive Boulevard, Room 6140, Alcohol Abuse and Alcoholism, National Time: 8:30 a.m. to 5 p.m. MSC9606, Bethesda, MD 20892–9606, 301– Institutes of Health, Suite 409, 6000 443–1225, [email protected]. Executive Boulevard, Bethesda, MD 20892– Agenda: To review and evaluate grant 7003, 301–443–2861. applications. This notice is being published less than 15 Place: Bethesda Marriott, 5151 Pooks Hill days prior to the meeting due to the timing This notice is being published less than 15 Road, Bethesda, MD 20814. limitations imposed by the review and days prior to the meeting due to the timing Contact Person: Elsie Taylor, MS, funding cycle. limitations imposed by the review and Scientific Review Administrator, Extramural (Catalogue of Federal Domestic Assistance funding cycle. Project Review Branch, National Institute on Program Nos. 93.242, Mental Health Research Name of Committee: National Institute on Alcohol Abuse and Alcoholism, National Grants; 93.281, Scientist Development Alcohol Abuse and Alcoholism Special Institutes of Health, Suite 409, 6000 Award, Scientist Development Award for Emphasis Panel Review of R21 Grant Executive Blvd., Bethesda, MD 20892–7003, Clinicians, and Research Scientist Award; Application(s). 301–443–9787, [email protected]. 93.282, Mental Health National Research Date: August 7, 2002. (Catalogue of Federal Domestic Assistance Service Awards for Research Training, Time: 11:30 a.m. to 12:30 p.m. Program Nos. 93.271, Alcohol Research National Institutes of Health, HHS) Agenda: To review and evaluate grant Career Development Awards for Scientists applications. and Clinicians; 93.272, Alcohol National Dated: August 2, 2002. Place: Willco Building, Suite 409, 6000 LaVerne Y. Stringfield, Executive Blvd., Rockville, MD 20892 Research Service Awards for Research (Telephone Conference Call). Training; 93.273, Alcohol Research Programs; Director, Office of Federal Advisory Contact Person: Sean N. O’Rourke, 93.891, Alcohol Research Center Grants, Committee Policy. Scientific Review Administrator, Extramural National Institutes of Health, HHS) [FR Doc. 02–20113 Filed 8–7–02; 8:45 am] Project Review Branch, National Institute on BILLING CODE 4140–01–M Alcohol Abuse and Alcoholism, National Dated: August 2, 2002. Institutes of Health, Suite 409, 6000 LaVerne Y. Stringfield, Executive Boulevard, Bethesda, MD 20892– Director, Office of Federal Advisory DEPARTMENT OF HEALTH AND 7003, 301–443–2861. Committee Policy. HUMAN SERVICES This notice is being published less than 15 [FR Doc. 02–20112 Filed 8–7–02; 8:45 am] days prior to the meeting due to the timing National Institutes of Health limitations imposed by the review and BILLING CODE 4140–01–M funding cycle. National Library of Medicine; Notice of Name of Committee: National Institute on DEPARTMENT OF HEALTH AND Closed Meeting Alcohol Abuse and Alcoholism Special HUMAN SERVICES Emphasis Panel ZAA1 DD (22) Biomedical Pursuant to section 10(d) of the Research Application(s) Review. Federal Advisory Committee Act, as Date: August 22, 2002. National Institutes of Health Time: 11 a.m. to 12 p.m. amended (5 U.S.C. Appendix 2), notice Agenda: To review and evaluate grant National Institute of Mental Health; is hereby given of the following applications. Notice of Closed Meeting meeting. Place: Willco Building, Suite 409, 6000 The meeting will be closed to the Pursuant to section 10(d) of the Executive Blvd., Rockville, MD 20892 public in accordance with the Federal Advisory Committee Act, as (Telephone Conference Call). provisions set forth in sections amended (5 U.S.C. Appendix 2), notice Contact Person: Sathasiva B. Kandasamy, 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., Ph.D., Scientific Review Administrator, is hereby given of the following as amended. The grant applications and Extramural Project Review Branch, Office of meeting. Scientific Affairs, National Institute on The meeting will be closed to the the discussions could disclose Alcohol Abuse and Alcoholism, 6000 public in accordance with the confidential trade secrets or commercial Executive Blvd., Suite 409, Bethesda, MD provisions set forth in sections property such as patentable material, 20892–7003, 301–443–2926, and personal information concerning [email protected]. 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The contract proposals and individuals associated with the grant Name of Committee: National Institute on applications, the disclosure of which Alcohol Abuse and Alcoholism Initial the discussions could disclose confidential trade secrets or commercial would constitute a clearly unwarranted Review Group, Health Services Research invasion of personal privacy. Review Subcommittee, Health Services property such as patentable material, Review Meeting. and personal information concerning Name of Committee: National Library of Date: October 10, 2002. individuals associated with the contract Medicine Special Emphasis Panel, Internet Time: 8:30 a.m. to 5 p.m. proposals, the disclosure of which Access. Agenda: To review and evaluate grant would constitute a clearly unwarranted Date: August 22, 2002. applications. Time: 3 p.m. to 4 p.m. Place: Hilton, 8727 Colesville Road, Silver invasion of personal privacy. Agenda: To review and evaluate grant Spring, MD 20910. Name of Committee: National Institute of applications. Mental Health Special Emphasis Panel, Tools Place: National Library of Medicine, 6705 1 Editorial Note: This document was received at for Mental Health Interventions in Rural and Rockledge Drive, Suite 301, Bethesda, MD the Office of the Federal Register on August 5, 2002. Frontier Areas. 20892, (Telephone Conference Call).
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Contact Person: Merlyn M. Rodrigues, MD, Health, 6701 Rockledge Drive, Room 4150, Dated: August 2, 2002. PhD, Medical Officer/SRA, National Library MSC 7804, Bethesda, MD 20892. (301) 435– LaVerne Y. Stringfield, of Medicine, Extramural Programs, 6705 1719. Director, Office of Federal Advisory Rockledge Drive, Suite 301, Bethesda, MD This notice is being published less Committee Policy. 20894. than 15 days prior to the meeting due [FR Doc. 02–20108 Filed 8–7–02; 8:45 am] (Catalogue of Federal Domestic Assistance to the timing limitations imposed by the BILLING CODE 4140–01–M Program Nos. 93.879, Medical Library review and funding cycle. Assistance, National Institutes of Health, (Catalogue of Federal Domestic HHS) DEPARTMENT OF HOUSING AND Dated: July 31, 2002. Assistance Program Nos. 93.306, Comparative Medicine, 93.306; 93.333, URBAN DEVELOPMENT LaVerne Y. Stringfield, Clinical Research, 93.333, 93.337, [Docket No. FR–4739–N–38] Director, Office of Federal Advisory 93.393–93.396, 93.837–93.844, 93.846– Committee Policy. 93.878, 93.892, 93.893, National Notice of Proposed Information [FR Doc. 02–20013 Filed 8–7–02; 8:45 am] Institutes of Health, HHS) Collection: Comment Request; BILLING CODE 4140–01–M Prepayment of Direct loans on Section Dated: August 2, 2002. 202 and 202/8 Projects with Inclusion LaVerne Y. Stringfield, of FHA Mortgage Insurance Guidelines DEPARTMENT OF HEALTH AND Director, Office of Federal Advisory HUMAN SERVICES Committee Policy. AGENCY: Office of the Assistant [FR Doc. 02–20107 Filed 8–7–02; 8:45 am] Secretary for Housing-Federal Housing National Institutes of Health Commissioner, HUD. BILLING CODE 4140–01–M ACTION: Notice. Center for Scientific Review; Notice of Closed Meetings SUMMARY: The proposed information DEPARTMENT OF HEALTH AND collection requirement described below Pursuant to section 10(d) of the HUMAN SERVICES will be submitted to the Office of Federal Advisory Committee Act, as Management and Budget (OMB) for amended (5 U.S.C. Appendix 2), notice National Institutes of Health review, as required by the Paperwork is hereby given of the following Reduction Act. The Department is meetings. Center for Scientific Review; Notice of The meetings will be closed to the Meeting soliciting public comments on the public in accordance with the subject proposal. provisions set forth in section 552b(c)(4) Pursuant to section 10(a) of the DATES: Comments Due Date: October 7, and 552b(c)(6), Title 5 U.S.C., as Federal Advisory Committee Act, as 2002. amended. The grant applications and amendment (5 U.S.C. Appendix 2), ADDRESSES: Interested persons are the discussions could disclose notice is hereby given of a meeting of invited to submit comments regarding confidential trade secrets or commercial the Center for Scientific Review this proposal. Comments should refer to property such as patentable material, Advisory Committee. the proposal by name and/or OMB and personal information concerning The meeting will be open to the Control Number and should be sent to: individuals associated with the grant public, with attendance limited to space Wayne Eddins, Reports Management applications, the disclosure of which available. Individuals who plan to Officer, Department of Housing and would constitute a clearly unwarranted attend and need special assistance, such Urban Development, 451 7th Street, invasion of personal privacy. language interpretation or other SW., L’Enfant Building, Room 8003, Name of Committee: Center for Scientific reasonable accommodations, should Washington, DC 20410. Review Special Emphasis Panel. notify the Contact Person listed below FOR FURTHER INFORMATION CONTACT: Date: August 7, 2002. in advance of the meeting. Beverly J. Miller, Director, Office of Time: 1:00 PM to 2:30 PM. Name of Committee: Center for Scientific Asset Management, Department of Agenda: To review and evaluate grant Review Advisory Committee. Housing and Urban Development, 451 applications. Date: September 30–October 1, 2002. 7th Street, SW., Washington, DC 20410, Place: NIH, Rockledge 2, Bethesda, MD Time: 8:30 AM to 5:00 PM. 20892. (Telephone Conference Call). telephone number (202) 708–3730 (this Agenda: Discussion of activities to evaluate Contact Person: John L. Bowers, PHD, is not a toll-free number) for copies of organization and function of the Center for Scientific Review Administrator, Center for the proposed forms and other available Scientific Review, National Institutes of Scientific Review Process. information. Place: National Institutes of Health, Two Health, 6701 Rockledge Drive, Room 4168, SUPPLEMENTARY INFORMATION: The MSC 7806, Bethesda, MD 20892. (301) 435– Rockledge Center, Conference Room 9100, 6701 Rockledge Drive, Bethesda, MD 20892. Department is submitting the proposed 1725. information collection to OMB for This notice is being published less than 15 Contact Person: Brent B. Stanfield, PHD, days prior to the meeting due to the timing Deputy Director, Center for Scientific review, as required by the Paperwork limitations imposed by the review and Review, National Institutes of Health, 6701 Reduction Act of 1995 ( 44 U.S.C. funding cycle. Rockledge Drive, Room 3016, MSC 7776, Chapter 35, as amended). Name of Committee: Center for Scientific Bethesda, MD 20892. (301) 435–1114. This Notice is soliciting comments Review Special Emphasis Panel, Clinical Information is also available on the from members of the public and affected Oncology. Institute’s/Center’s home page: agencies concerning the proposed Date: August 12, 2002. www.csr.nih.gov/drgac/drgac.htm, where an collection of information to: (1) Evaluate Time: 1:30 PM to 2:30 PM. agenda and any additional information for the meeting will be posted when available. whether the proposed collection is Agenda: To review and evaluate grant necessary for the proper performance of (Catalogue of Federal Domestic Assistance applications. the functions of the agency, including Place: NIH, Rockledge 2, Bethesda, MD Program Nos. 93.306, Comparative Medicine, 20892. (Telephone Conference Call). 93.306; 93.333, Clinical Research, 93.333, whether the information will have Contact Person: Marcia Litwack, PHD, 93.337, 93.393–93.396, 93.837–93.844, practical utility; (2) Evaluate the Scientific Review Administrator, Center for 93.846–93.878, 93.892, 93.893, National accuracy of the agency’s estimate of the Scientific Review, National Institutes of Institutes of Health, HHS) burden of the proposed collection of
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information; (3) Enhance, the quality, ACTION: Notice. HUD’s Loss Mitigation Default utility, and clarity of the information to Counseling Demonstration Program. be collected; and (4) Minimize the SUMMARY: The proposed information Each of the Housing Counseling burden of the collection of information collection requirement described below Agencies (HCAs) that are participating on those who are to respond; including will be submitted to the Office of in the Demonstration will be eligible to the use of appropriate automated Management and Budget (OMB) for be reimbursed each time a completed collection techniques or other forms of review, as required by the Paperwork Loss Mitigation package is referred to information technology, e.g., permitting Reduction Act. The Department is one of the four lenders participating in electronic submission of responses. soliciting public comments on the the Demonstration. This Notice also lists the following subject proposal. Agency form numbers, if applicable: information: DATES: Comments Due Date: October 7, None. Title of Proposal: Prepayment of 2002. Estimation of the total numbers of Direct Loans on Section 202 and 202/8 ADDRESSES: Interested persons are hours needed to prepare the information Projects with Inclusion of FHA invited to submit comments regarding collection including number of Mortgage Insurance Guidelines. this proposal. Comments should refer to respondents, frequency of response, and OMB Control Number, if applicable: the proposal by name and/or OMB hours of response: The estimated total None. Control Number and should be sent to: number of hours needed to prepare the Description of the need for the Wayne Eddins, Reports Management information collection is 4,120, the information and proposed use: This Officer, Department of Housing and number of respondents is 11 generating information is necessary to gather Urban Development, 451 7th Street, approximately 8,240 annual responses, documents from owners of multifamily SW., L’Enfant Plaza Building, Room the frequency of response is monthly housing projects financed under Section 8003, Washington, DC 20410. and on occasion, the estimated time 202 of the National Housing Act who needed to prepare the response is 30 FOR FURTHER INFORMATION CONTACT: voluntarily request to prepay the minutes. Joseph McCloskey, Director, Office of mortgage. HUD staff must review the Status of the proposed information Single Family Asset Management, documents submitted by the owner to collection: Extension of a currently Department of Housing and Urban determine if approval of the prepayment approved collection. Development, 451 7th Street, SW., request should be granted. Washington, DC 20410, telephone (202) Agency form numbers, if applicable: Authority: The Paperwork Reduction Act 708–1672 (this is not a toll free number) of 1995, 44 U.S.C., Chapter 35, as amended. None. for copies of the proposed forms and Estimation of the total numbers of Dated: July 30, 2002. other available information. hours needed to prepare the information Sean G. Cassidy, SUPPLEMENTARY INFORMATION: The collection including number of General Deputy Assistant Secretary for respondents, frequency of response, and Department is submitting the proposed Housing-Deputy Federal Housing hours of response: The number of information collection to OMB for Commissioner. respondents is 150 generating review, as required by the Paperwork [FR Doc. 02–20025 Filed 8–7–02; 8:45 am] Reduction Act of 1995 (44 U.S.C. approximately 150 annual responses; BILLING CODE 4210–27–M the frequency of response is on Chapter 35, as amended). occasion; the estimated time to gather This Notice is soliciting comments from members of the public and affected and prepare the necessary documents is DEPARTMENT OF THE INTERIOR about 2 hours per submission, and the agencies concerning the proposed estimated total annual burden hours is collection of information to: (1) Evaluate Bureau of Land Management estimated to be 300 hours. whether the proposed collection is Status of the proposed information necessary for the proper performance of [OR–957–00–1420–BJ; GPO2–0315] the functions of the agency, including collection: New Collection. Filing of Plats of Survey: Oregon/ whether the information will have Washington Authority: The Paperwork Reduction Act practical utility; (2) Evaluate the of 1995, 44 U.S.C., Chapter 35, as amended. accuracy of the agency’s estimate of the AGENCY: Bureau of Land Management, Dated: July 30, 2002. burden of the proposed collection of Interior. Sean G. Cassidy, information; (3) Enhance the quality, ACTION: Notice. General Deputy Assistant Secretary for utility, and clarity of the information to SUMMARY: Housing-Deputy Federal Housing be collected; and (4) Minimize the The plat of survey of the Commissioner. burden of the collection of information following described lands were [FR Doc. 02–20024 Filed 8–7–02; 8:45 am] on those who are to respond; including officially filed in the Oregon State Office, Portland, Oregon, on June 28, BILLING CODE 4210–27–M the use of appropriate automated collection techniques or other forms of 2002. information technology, e.g., permitting Willamette Meridian DEPARTMENT OF HOUSING AND electronic submission of responses. URBAN DEVELOPMENT This Notice also lists the following Oregon information: T. 22 S., R. 30 E., accepted June 19, 2002 [Docket No. FR–4739–N–39] Title of Proposal: HUD’s Loss A copy of the plats may be obtained Notice of Proposed Information Mitigation Default Counseling from the Oregon State Office, Bureau of Collection: Comment Request; HUD’s Demonstration Program. Land Management, 333 SW. 1st Avenue, Loss Mitigation Default Counseling OMB Control Number, if applicable: Portland, Oregon 97204, upon required Demonstration Program 2502–0549. payment. A person or party who wishes Description of the need for the to protest against a survey must file with AGENCY: Office of the Assistant information and proposed use: The the State Director, Bureau of Land Secretary for Housing-Federal Housing information collection will be used to Management, Portland, Oregon, a notice Commissioner, HUD. verify vouchers for reimbursement in that they wish to protest.
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For further information contact: For further information concerning (1) Evaluate whether the proposed Bureau of Land Management, (333 S.W. these investigations see the collection of information is necessary 1st Avenue) P.O. Box 2965, Portland, Commission’s notice cited above and for the proper performance of the Oregon 97208. the Commission’s rules of practice and functions of the agency, including procedure, part 201, subparts A through whether the information will have Sherrie Reid, E (19 CFR part 201), and part 207, practical utility; Branch of Realty and Records Services. subparts A and C (19 CFR part 207). (2) Evaluate the accuracy of the [FR Doc. 02–19946 Filed 8–7–02; 8:45 am] agency’s estimate of the burden of the BILLING CODE 4310–33–M Authority: These investigations are being proposed collection of information, conducted under authority of title VII of the Tariff Act of 1930; this notice is published including the validity of the methodology and assumptions used; INTERNATIONAL TRADE pursuant to § 207.21 of the Commission’s rules. (3) Enhance the quality, utility, and COMMISSION clarity of the information to be By order of the Commission. [Investigations Nos. 701–TA–422–425 and collected; and Issued: August 2, 2002 731–TA–964–983 (Final)] (4) Minimize the burden of the Marilyn R. Abbott, collection of information on those who Certain Cold-Rolled Stell Products Secretary to the Commission. are to respond, including through the from Argentina, Australia, Belgium, [FR Doc. 02–20059 Filed 8–7–02; 8:45 am] use of appropriate automated, Brazil, China, France, Germany, India, BILLING CODE 7020–02–P electronic, mechanical, or other Japan, Korea, The Netherlands, New technological collection techniques or Zealand, Russia, South Africa, Spain, other forms of information technology, Sweden, Taiwan, Thailand, Turkey, and DEPARTMENT OF JUSTICE e.g., permitting electronic submission of Venezuela responses. Office of Community Oriented Policing AGENCY: International Trade Services (COPS) Overview of this information Commission. collection: ACTION: Revised schedule for the subject Agency Information Collection (1) Type of Information Collection: investigations. Activities: Proposed Collection; New Collection. Comments Requested (2) Title of the Form/Collection: EFFECTIVE DATE: August 2, 2002. Making Officer Redeployment Effective ACTION: FOR FURTHER INFORMATION CONTACT: Fred 30-Day Notice of Information (MORE) Closeout Report. Fischer (202–205–3179 / Collection Under Review: New (3) Agency form number, if any, and [email protected]), Office of Collection; Making Officer the applicable component of the Investigations, U.S. International Trade Redeployment Effective (MORE) Department of Justice sponsoring the Commission, 500 E Street SW., Closeout Report. collection: COPS Form Number: N/A. Washington, DC 20436. Hearing- The Department of Justice (DOJ) (4) Affected public who will be asked impaired persons can obtain Office of Community Oriented Policing or required to respond, as well as a brief information on this matter by contacting Services (COPS) has submitted the abstract: Primary: MORE award the Commission’s TDD terminal on 202– following information collection request recipients. Other: None. Abstract: The 205–1810. Persons with mobility to the Office of Management and Budget information collected will be used by impairments who will need special (OMB) for review and approval in the COPS Office to determine that assistance in gaining access to the accordance with the Paperwork MORE award recipients have completed Commission should contact the Office Reduction Act of 1995. The proposed the grant programmatic requirements. of the Secretary at 202–205–2000. information collection is published to (5) An estimate of the total number of General information concerning the obtain comments from the public and respondents and the amount of time Commission may also be obtained by affected agencies. estimated for an average respondent to accessing its internet server (http:// The purpose of this notice is to allow respond: There will be an estimated www.usitc.gov). The public record for for an additional 30 days for public 1,856 responses per year. The estimated these investigations may be viewed on comment until September 9, 2002. This amount of time required for the average the Commission’s electronic docket process is conducted in accordance with respondent to respond is: 1.0 hour. (EDIS–ON–LINE) at http:// 5 CFR 1320.10. Written comments and/ (6) An estimate of the total public dockets.usitc.gov/eol/public. or suggestions regarding the items burden (in hours) associated with the SUPPLEMENTARY INFORMATION: On June 3, contained in this notice, especially the collection: 3,712 annually. 2002, the Commission established a estimated public burden and associated If additional information is required schedule for the conduct of the final response time, should be directed to the contact: Brenda Dyer, Deputy Clearance phase of the subject investigations (67 Office of Management and Budget, Officer, Information Management and FR 38291, June 3, 2002). Because official Office of Information and Regulatory Security Staff, Justice Management import statistics of Commerce for June Affairs, Attention Department of Justice Division, United States Department of 2002 will not be available to the Desk Officer, Washington, DC 20503. Justice, 601 D Street NW., Patrick Henry Commission and the public until Additionally, comments may be Building, Suite 1600, NW., Washington, August 20, 2002, the Commission is submitted to OMB via facsimile to (202) DC 20530. revising its schedule. 395–7285. The Commission’s new schedule for Written comments and suggestions Dated: August 2, 2002. the investigations is as follows: The from the public and affected agencies Brenda Dyer, Commission will make its final release concerning the proposed collection of Deputy Clearance Officer, Department of of information on August 21, 2002; and information are encouraged. Your Justice. final party comments are due on August comments should address one or more [FR Doc. 02–20056 Filed 8–7–02; 8:45 am] 23, 2002. of the following four points: BILLING CODE 4410–AT–M
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DEPARTMENT OF JUSTICE (1) Type of Information Collection: original decree in settlement of claims New Collection. under the Resource, Conservation and Office of Community Oriented Policing (2) Title of the Form/Collection: Recovery Act (‘‘RCRA’’), Pennzoil- Services (COPS) Public Safety/Crime Prevention Quaker State failed to install control Proposal Kit. measures required by the Clean Air Act Agency Information Collection (3) Agency form number, if any, and (‘‘CAA’’) to prevent or reduce fugitive Activities: Proposed collection; the applicable component of the emissions. It has now agreed to Comment Requested Department of Justice sponsoring the implement the necessary safeguards. collection: Form Number: None. U.S. The proposed amendment specifies the ACTION: 60-Day notice of information Department of Justice, Office of collection under review; new collection; work to be implemented and the Community Oriented Policing Services public safety/crime prevention proposal schedule for doing do, and provides for (COPS). kit. a penalty of $23,250, to be split between (4) Affected public who will be asked the United States and the West Virginia The Department of Justice (DOJ), or required to respond, as well as a brief DEP. Office of Community Oriented Policing abstract: Primary: State and local law The Department of Justice will Services (COPS) has submitted the enforcement entities. Other: None. receive, for a period of thirty (30) days following information collection request Abstact: The information collected by from the date of this publication, to the Office of Management and Budget the Public Safety/Crime Prevention comments relating to the proposed (OMB) for review and approval in Proposal Kit is requested to obtain a consent decree. Comments should be accordance with the Paperwork comprehensive understanding of project addressed to the Assistant Attorney Reduction Act of 1995. The proposed objectives in accordance with the General for the Environment and information collection is published to Federally appropriated mandate and Natural Resources Division, Department obtain comments from the public and grant program policies of the COPS of Justice, Washington, DC 20530. Each affected agencies. Office. communication should refer on its face Comments are encouraged and will be (5) An estimate of the total number of to United States v. Quaker State, DOJ accepted for sixty days until October 7, respondents and the amount of time #90–5–2–1–1873A. 2002. This process is conducted in estimated for an average respondent to The proposed consent decree may be accordance with 5 CFR 1320.10. respond: There will be an estimated 160 examined at the office of the United If you have comments especially on responses. The estimated amount of States Attorney for the Northern District the estimated public burden or time required for the average respondent of West Virginia, 1100 Main Street, associated response time, suggestions, to respond is: 15 hours. Suite 200, Wheeling, WV 26003; and the or need a copy of the proposed (6) An estimate of the total public Region III Office of the Environmental information collection instrument with burden (in hours) associated with the Protection Agency, 1650 Arch Street, instructions or additional information, collection: 2,560 hours. Philadelphia, PA 19103–2029. A copy of please contact Gretchen De Pasquale, If additional information is required the proposed consent decree may be Office of Community Oriented Policing contact: Brenda Dyer, Deputy Clearance obtained by faxing a request to Tonia Services, 1100 Vermont Avenue, NW., Officer, Information Management and Fleetwood, Department of Justice Washington, DC 20530. Security Staff, Justice Management Consent Decree Library, fax number Written comments and suggestions Division, United States Department of (202) 616–6584; phone confirmation from the public and affected agencies Justice, 601 D Street NW., Patrick Henry (202) 514–1547. In requesting a copy, concerning the proposed collection of Building, Suite 1600, NW., Washington, please forward the request and a check information are encouraged. Your DC 20530. in the amount of $2.00 (25 cents per comments should address one or more Dated: August 2, 2002. page reproduction cost) payable to the of the following four points: Brenda Dyer, U.S. Treasury, referencing the DOJ (1) Evaluate whether the proposed Consent Decree Library, United States v. Deputy Clearance Officer, United States collection of information is necessary Department of Justice. Quaker State, DOJ #90–5–2–1–1873A, to for the proper performance of the the first-class mail address listed above. [FR Doc. 02–20057 Filed 8–7–02; 8:45 am] functions of the agency, including Robert Brook, whether the information will have BILLING CODE 4410–AT–M practical utility; Assistant Section Chief, Environmental (2) Evaluate the accuracy of the Enforcement Section, Environment and DEPARTMENT OF JUSTICE Natural Resources Division. agency’s estimate of the burden of the proposed collection of information, [FR Doc. 02–20033 Filed 8–7–02; 8:45 am] Notice of Lodging of Consent Decree BILLING CODE 4410–15–M including the validity of the Pursuant to the Clean Water Act methodology and assumptions used; (3) Enhance the quality, utility, and In accordance with Departmental DEPARTMENT OF JUSTICE clarity of the information to be policy; 28 CFR 50.7, notice is hereby collected; and given that a proposed amendment to the Notice of Lodging of Consent Decree (4) Minimize the burden of the consent decree in United States v. Pursuant to the Comprehensive collection of information on those who Quaker State Corporation, Civil Action Environmental Response, are to respond, including through the No. 93–0196W, was lodged with the Compensation and Liability Act use of appropriate automated, United States Court for the Northern electronic, mechanical, or other District of West Virginia on July 18, In accordance with 28 CFR 50.7 and technological collection techniques or 2002. section 122 of the Comprehensive other forms of information technology, After entry of the decree, Quaker State Environmental Response, Compensation e.g., permitting electronic submission of merged with Pennzoil Corporation to and Liability Act (‘‘CERCLA’’), 42 U.S.C. responses. form Pennzoil-Quaker State, the 9622, the Department of Justice gives Overview of this information successor to Quaker State. In notice that a proposed consent decree, collection: implementing work required by the in United States v. Lockheed Martin
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Corporation, et al., Civil No. 4:02CV– The proposed consent decree may be Written comments and/or suggestions 146–M (W.D. Ky.), was lodged with the examined at: (1) The Office of the regarding the items contained in this United States District Court for the United States Attorney for the Western notice, especially the estimated public Western District of Kentucky on July 26, District of Kentucky, 510 West burden and associated response time, 2002, pertaining to the Green River Broadway, 10th Floor, Louisville, should be directed to The Office of Landfill Superfund Site located in Kentucky 40202, (502–582–5911); and Management and Budget, Office of Maceo, Daviess County, Kentucky (the (2) the United States Environmental Information and Regulatory Affairs, ‘‘Site’’). The proposed consent decree Protection Agency (Region 4), 61 Attention Department of Justice Desk would resolve the United States’ civil Forsyth Street, Atlanta, Georgia 30303 Officer, Washington, DC. 20503. claims under sections 106 and 107 of (contact: Lucia Mendez (404–562– Additionally, comments may be CERCLA, 42 U.S.C. 9606 and 9607, and 9637)). A copy of the proposed consent submitted to OMB via facsimile to section 7003 of the Solid Waste Disposal decree may be obtained by mail from (202)–395–7285. Act, as amended (‘‘RCRA’’), 42 U.S.C. the Consent Decree Library, U.S. Request written comments and 6973, including Natural Resource Department of Justice, PO Box 7611, suggestions from the public and affected Damages, against the Settling Washington, DC 20044–7611. In agencies concerning the proposed Defendants: 15 generators and a current requesting a copy, please refer to the collection of information are owner of a portion of the Site. The referenced case and DOJ Reference encouraged. Your comments should proposed consent decree also resolves Number and enclose a check in the address one or more of the following claims against a Settling Federal amount of $26.75 for the consent decree four points: Agency. only (107 pages, at 25 cents per page (1) Evaluate whether the proposed Under the proposed consent decree, reproduction costs), or $126.75 for the collection of information is necessary 10 Settling Defendants (‘‘Settling consent decree and all appendices (507 for the proper performance of the Performing Parties’’), are obligated to pages), made payable to the Consent functions of the agency, including finance and perform any remaining Decree Library. whether the information will have practical utility; work at the Site for Operable Unit 1, Ellen M. Mahan, principally operation and maintenance (2) Evaluate the accuracy of the Assistant Chief, Environmental Enforcement agencies estimate of the burden of the (‘‘O&M’’)—obligations initially imposed Section, Environment and Natural Resources by a Unilateral Administrative Order proposed collection of information Division. including the validity of the (‘‘UAO’’) issued by U.S. Environmental [FR Doc. 02–20034 Filed 8–7–02; 8:45 am] Protection Agency (‘‘U.S. EPA’’) in methodology and assumptions used; BILLING CODE 4410–15–M 1996—perform the remedial design/ (3) Enhance the quality, utility, and remedial action for Operable Unit 2 clarity of the information to be (estimated total present value of all collected; and DEPARTMENT OF JUSTICE (4) Minimize the burden of the response actions to be undertaken under collection of information on those who the Decree: $3.7 million), and pay all Office of Justice Programs are to respond, including through the Future Response Costs at the Site not use of appropriate automated, inconsistent with the National Agency Information Collection electronic, mechanical, or other Contingency Plan, excluding the first Activities: Proposed Collection; technological collection techniques or $307,449 of Future Oversight Costs to be Comments Requested other forms of information technology, incurred by the United States. Six e.g., permitting electronic submission of Settling Defendants (‘‘Settling Non- ACTION: 30-Day notice of information responses. Performing Parties’’) are obligated to pay collection under review: Reinstatement, monies to the Settling Performing without change, of a previously Overview of This Information Collection Parties for costs incurred and to be approved collection for which approval (1) Type of Information Collection: incurred for response actions at the Site. has expired; Victims of Crime Act, Reinstatement, With change, of a In addition, the United States, on behalf Crime Victim Assistance Grant Program, Previously Approved Collection for of the Settling Federal Agency, would Subgrant Award Report. Which Approval has Expired. pay $155,000 to the Settling Performing (2) Title of the Form/Collection: Parties in reimbursement of the Settling The Department of Justice (DOJ), Victims of Crime Act, Crime Victim Performing Parties’ response costs Office of Justice Programs has submitted Assistance Grant Program, Subgrant incurred and to be incurred at the Site. the following information collection Award Report. The Department of Justice will request to the office of Management and (3) Agency form number, if any, and receive, for a period of thirty (30) days Budget (OMB) for review and approval the applicable component of the from the date of this publication, in accordance with the paperwork Department of Justice sponsoring the comments relating to the proposed Reduction Act of 1995. The proposed collection: Form Number: 1121–0142. consent decree. Comments should be information collection is published to Office for Victims of Crime, Office of addressed to the Assistant Attorney obtain comments from the public and Justice Programs, U.S. Department of General, Environment and Natural affected agencies. This proposed Justice. Resources Division, United States information collection was previously (4) Affected public who will be asked Department of Justice, Washington, DC published in the Federal Register or required to respond, as well as a brief 20530, and should refer to United States Volume 67, Number 90, page 31380 on abstract: Primary: State, Local or Tribal v. Lockheed Martin Corporation, et al., May 9, 2002, allowing for a 60 day Government. Other: None. the Civil No. 4:02CV–146–M (W.D. Ky.), comment period. information requested is necessary to and DOJ Reference No. 90–11–2–1098. The purpose of this notice is to allow ensure compliance with statutory Commenters may request an for an additional 30 days for public criteria which allows the Director of opportunity for a public meeting in the comment until September 9, 2002. This OVC to collect performance data from affected area, in accordance with section process is conducted in accordance with recipients of the VOCA victim 7003(d) of RCRA, 42 U.S.C. 6973(d). 5 CFR 1320.10. assistance grant funds. The affected
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public include up to 57 States and NATIONAL FOUNDATION FOR THE ADDRESSES: Send comments to territories administering the crime ARTS AND HUMANITIES Stephanie Clark, Office of Library assistance provisions of the Victims of Services, Institute of Museum and Crime Act. Institute of Museum and Library Library Services, 1100 Pennsylvania (5) As estimate of the total number of Services; Proposed Collection, Ave., NW., Room 802, Washington, DC respondents and the amount of time Comment Request Recruiting and 20506. Fax: 202–606–1077 or by email estimated for an average respondent to Educating Librarians for the 21st [email protected] Fax or e-mail preferred. Century Application Form respond: There are 57 respondents who SUPPLEMENTARY INFORMATION: will complete a three minute subgrant award report. However, a State can be ACTION: Notice. I. Background responsible for entering subgrant data SUMMARY: The Institute of Museum and The Institute of Museum and Library for as many as 9 to 417 programs. Library Services as part of its continuing Services is an independent Federal (6) An estimate of the total public effort to reduce paperwork and grant-making agency authorized by the burden (in hours) associated with the respondent burden, conducts a Museum and Library Services Act collection: There are 295 burden hours preclearance consultation program to Public Law 104–208. The IMLS associated with this information provide the general public and federal provides a variety of grant programs to collection. agencies with an opportunity to assist the nation’s museums and If additional information is required comment on proposed and/or libraries in improving their operations contact; Mrs. Brenda E. Dyer, Deputy continuing collections of information in and enhancing their services to the Clearance Officer, United States accordance with the Paperwork public. Museums and libraries of all Department of Justice, Information Reduction Act of 1995 (PRA95) [44 sizes and types may receive support Management and Security Staff, Justice U.S.C. 3508(2)(A)] This program helps from IMLS programs. Management Division, Suite 1600, to ensure that requested data can be Patrick Henry Building, 601 D Street The President’s FY2003 Budget provided in the desired format, NW., Washington, DC 20530. Request submitted to Congress in early reporting burden (time and financial February, 2002 proposes a $10 million Dated: August 2, 2002. resources) is minimized, collection initiative to educate and train librarians. Brenda E. Dyer, instruments are clearly understood, and Anticipating the loss of as many as 68% Department Deputy Clearance Officer, United the impact of collection requirements on of the current cohort of professional States Department of Justice. respondents can be properly assessed. librarians by 2019, the initiative will be [FR Doc. 02–20055 Filed 8–7–02; 8:45 am] Currently the Institute of Museum and designed to ‘‘help recruit a new BILLING CODE 4410–18–M Library Services is soliciting comments generation of librarians.’’ concerning the proposed study of the The President’s proposed initiative needs of assessment of end-users in recognizes the key role of libraries and DEPARTMENT OF LABOR library and museum digitization librarians in maintaining the flow of projects funded through the Institute of information that is critical to support Office of the Secretary Museum and Library Services. formal education; to guide intellectual, A copy of the proposed information scientific, and commercial enterprise; to Solicitation For Grant Applications collection request can be obtained by strengthen individual decisions; and to (SGA 02–19); Expanding Economic contacting the individual listed below create the informed populace that lies at Opportunity and Income Security in the addressee section of this notice. the core of democracy. Through Workforce Education, Skills DATES: Written comments must be Draft application and guidelines are Training, Employment Creation and submitted to the office listed in the Local Economic Development prepared contingent upon Congressional addressee section below on or before action. AGENCY: Bureau of International Labor October 7, 2002. Agency: Institute of Museum and Affairs, Office of Foreign Relations, IMLS is particularly interested in Library Services. Labor. comments that help the agency to: • Evaluate whether the proposed Title: Recruiting and Educating ACTION: Notice of correction. collection of information is necessary Librarians for the 21st Century. OMB Number: n/a. SUMMARY: The available funding level is for the proper performance of the corrected downward from $4,000,000.00 functions of the agency, including Agency Number: 3137. to $3,285,000.00. All technical and whether the information will have Frequency: One time. administrative requirements under the practical utility; Affected Public: Libraries and school SGA are unchanged. This solicitation • Evaluate the accuracy of the of library information science. (SGA) will be published in the Federal agency’s estimate of the burden of the Number of Respondents: 120. Register on Tuesday, August 6, 2002. proposed collection of information Estimated Time Per Respondent: 40 FOR FURTHER INFORMATION CONTACT: Lisa including the validity of the hours. Harvey, Department of Labor, methodology and assumptions used; Total Burden Hours: 4800. • Enhance the quality, utility and Procurement Services Center, Room N– Total Annualized capital/startup clarity of the information to be 5416, 200 Constitution Ave., NW., costs: 0. collected; and Washington, DC 20210, Telephone (202) • Total Annual costs: 0. 693–4570, e-mail: [email protected]. Minimize the burden of the collection of information on those who CONTACT: Mamie Bittner, Director Office Signed at Washington, DC, this 2nd day of are to respond, including through the of Public and Legislative Affairs, August, 2002. use of appropriate automated electronic, Institute of Museum and Library Lawrence J. Kuss, mechanical, or other technological Services, 1100 Pennsylvania Avenue, Grant Officer. collection techniques or other forms of NW., Washington, DC 20506. e-mail [FR Doc. 02–20117 Filed 8–7–02; 8:45 am] information technology, e.g. permitting [email protected] fax (202) 606–8591. BILLING CODE 4510–28–M electronic submissions of responses. e-mail or fax preferred.
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Dated: August 2, 2002. public comment on its proposal to make After the installation is complete, read Mamie Bittner, a ‘‘no significant hazards’’ the available online instructions on how Director of Public and Legislative Affairs. determination as to the amendment to search for documents on ADAMS. [FR Doc. 02–20070 Filed 8–7–02; 8:45 am] request. The notice also provided the Documents are commonly accessed by BILLING CODE 7036–01–M opportunity for anyone opposed to the using docket numbers. All publicly amendment ‘‘whose interest may be available documents relating to the affected’’ thereby to file within 30 days Indian Point proceeding can be accessed NUCLEAR REGULATORY (by September 21, 2001) a petition to by entering 05000247 in the docket field COMMISSION intervene in the proceeding and to line in the ‘‘ADAMS Find’’ menu. request a hearing. [Docket No. 50–247–OLA and ASLBP No. Dated at Rockville, Maryland, on August 2, On March 18, 2002, nearly six months 2002. 02–789–01–OLA] after the deadline for intervening, For the Atomic Safety and Licensing Atomic Safety and Licensing Board; In Riverkeeper filed a ‘‘Section 2.714 Board. Petition for Leave to Intervene and the Matter of Entergy Nuclear Indian Michael C. Farrar, Point 2, LLC, and Entergy Nuclear Request for a Hearing.’’ Riverkeeper justified its late filing, and its Chairman, Administrative Judge. Operations, Inc., (Indian Point Nuclear [FR Doc. 02–20083 Filed 8–7–02; 8:45 am] Generating Unit No. 2); Public Notice concomitant request for a hearing on the BILLING CODE 7590–01–P of Prehearing Conference proposed license amendment, by pointing to the then-recent disclosure in August 2, 2002. the press of the discovery of rusted areas in the reactor containment building. The NUCLEAR REGULATORY Before Administrative Judges: Michael C. three participants in this proceeding—- COMMISSION Farrar, Chairman, Dr. Richard F. Cole, Dr. Charles N. Kelber. the petitioner Riverkeeper, the licensee Entergy, and the NRC Staff—-have each [Docket Nos. 50–315 and 50–316] The Atomic Safety and Licensing filed several pleadings since that time, Board presiding over this license and are expected to be filing additional In the Matter of Indiana Michigan amendment proceeding hereby gives pleadings before the conference. Power Company, (Donald C. Cook public notice that on Tuesday, August Nuclear Plant, Units 1 and 2); Order 27, 2002, it will hold a prehearing B. Public Attendance at Prehearing Approving Application Regarding conference at the Hilton Rye Town, 699 Conference Proposed Corporate Restructuring Westchester Avenue, Rye Brook, New Members of the public are welcome to York. The conference will convene at attend the conference, but are advised I 9:00 A.M. and conclude by 1:00 P.M. that this adjudicatory proceeding is Indiana Michigan Power Company (no lunch break will be taken). The open for observation only. In other (I&M or the licensee) owns 100 percent purpose of this prehearing conference is words, oral presentations at the of the Donald C. Cook Nuclear Plant to hear arguments on (1) the standing of conference will be limited to the three (D.C. Cook), Units 1 and 2, located in petitioner Riverkeeper, Inc. to intervene organizations listed above, which have Berrien County, Michigan. I&M in the proceeding; (2) the admissibility undertaken the task of full participation exclusively operates the facility. of Riverkeeper’s petition under in the proceeding. I&M is a wholly owned, direct regulatory standards governing late-filed In accordance with the policies that subsidiary of American Electric Power intervention requests; and (3) the govern NRC adjudicatory proceedings, Corporation (AEP). I&M is the sole admissibility of any proposed members of the public who do attend holder of Facility Operating Licenses contention(s) which Riverkeeper may will be subject to security screening, Nos. DPR–58 for D.C. Cook Unit 1, and file. This notice sets forth the which may involve the use of metal DPR–71 for D.C. Cook Unit 2, issued by background developments that led to detectors and the inspection of the U.S. Nuclear Regulatory the conference and covers matters briefcases and handbags. Signs, banners, Commission (NRC or the Commission) related to public attendance and posters, and the like are not allowed pursuant to Part 50 of Title 10 of the document availability. because they are disruptive to the active participants in the proceeding and to Code of Federal Regulations (10 CFR A. Background other members of the audience. Part 50) on October 25, 1974, and The issues before the Board in this December 23, 1977, respectively. C. Availability of Documents license amendment proceeding relate to II the admissibility of a late-filed Documents relating to the Entergy intervention petition. The petition Indian Point Nuclear Generating Unit Pursuant to section 184 of the Atomic submitted by Riverkeeper challenges the No. 2 license amendment application Energy Act of 1954, as amended, and 10 pending application of Entergy Nuclear and the Riverkeeper petition for CFR 50.80, I&M filed an application Indian Point 2, LLC and Entergy Nuclear intervention at issue in this pretrial dated March 28, 2002, requesting the Operations, Inc. (Entergy), the new conference are now on file at the Commission’s consent to the indirect operators of Indian Point Nuclear Commission’s Public Document Room, transfer of the D.C. Cook Units 1 and 2 Generation Unit No. 2, for a license 11545 Rockville Pike, Rockville, licenses. The indirect transfer would change that would, in effect, give the Maryland, 20850, and may also be occur as a result of a proposed corporate operators a one-time five-year extension obtained through ADAMS, the restructuring, under which an affiliate of the period within which to conduct electronic Agencywide Documents company, Central and South West the ‘‘containment integrated leak rate’’ Access and Management System, Corporation (CSW), would become the test that is otherwise required every ten accessible through the NRC Web site, direct parent company of I&M. I&M and years. using the link http://www.nrc.gov/ CSW are currently wholly owned, direct After conducting a review of the reading-rm/adams.html. Follow the subsidiaries of AEP. AEP is a registered application, the NRC Staff issued a instructions on the Web site to holding company under the Public Federal Register notice (66 FR 44,161, download and install the appropriate Utility Holding Company Act of 1935, 44,165 (August 22, 2001)) seeking ADAMS software onto your computer. as amended. Upon the completion of the
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restructuring, CSW will remain a wholly application and for good cause shown, the Commission’s regulations in Title 10 owned, direct subsidiary of AEP, while such date may be extended. of the Code of Federal Regulations (10 I&M will be a wholly owned, direct This Order is effective upon issuance. CFR), Section 50.92, this means that subsidiary of CSW. Thus, I&M will operation of the facility in accordance IV become an indirect subsidiary of AEP. with the proposed amendments would No physical changes to the D.C. Cook For further details with respect to this not (1) involve a significant increase in facility or operational changes are Order, see the application dated March the probability or consequences of an proposed in the application. I&M, which 28, 2002, and the safety evaluation accident previously evaluated; or (2) is authorized under the licenses to dated August 2, 2002, which are create the possibility of a new or operate and maintain the facility, will available for inspection at the different kind of accident from any continue to do so following the Commission’s Public Document Room, accident previously evaluated; or (3) restructuring. No direct transfer of the U.S. Nuclear Regulatory Commission, involve a significant reduction in a licenses will result from the planned One White Flint North, Room O–1 F21, margin of safety. As required by 10 CFR restructuring. Notice of this request for 11555 Rockville Pike, Rockville, MD 50.91(a), the licensee has provided its approval was published in the Federal 20852–2738, and accessible analysis of the issue of no significant Register on May 8, 2002 (67 FR 30980). electronically through the ADAMS hazards consideration, which is No hearing requests or written Public Electronic Reading Room link at presented below: comments were received. the NRC Web site (http:// Under 10 CFR 50.80, no license shall 1. Does the proposed change involve a www.NRC.gov). significant increase in the probability of be transferred, directly or indirectly, occurrence or consequences of an accident through transfer of control of the Dated at Rockville, Maryland, this 2nd day of August, 2002. previously evaluated? license, unless the Commission gives its Response: No. consent in writing. Upon review of the For the Nuclear Regulatory Commission. John A. Zwolinski, Probability of Occurrence of an Accident information submitted in the Previously Evaluated application and other information Director, Division of Licensing Project The ESW system provides cooling water to before the Commission, the NRC staff Management, Office of Nuclear Reactor Regulation. safety-related components. This is a support has determined that the proposed function, and malfunctions of the ESW restructuring of I&M’s parent [FR Doc. 02–20085 Filed 8–7–02; 8:45 am] system are not initiators of accidents that organization described above will not BILLING CODE 7590–01–P have been previously analyzed. The one-time affect the qualifications of I&M as the extension of the allowed outage time for an holder of the D.C. Cook Units 1 and 2 ESW pump does not introduce any failure licenses, and that the indirect transfer of NUCLEAR REGULATORY mechanisms that would initiate a previously the licenses, to the extent effected by the COMMISSION analyzed accident. Consequences of an Accident Previously restructuring, is otherwise consistent [Docket Nos. 50–315 AND 50–316] with applicable provisions of laws, Evaluated regulations, and orders issued by the Indiana Michigan Power Company; The ESW pump provides cooling water to Commission, subject to the conditions Notice of Consideration of Issuance of safety-related components, a support set forth herein. These findings are Amendments to Facility Operating function. There are two ESW pumps per unit, and only one ESW pump per unit is required supported by a safety evaluation dated Licenses, Proposed No Signigicant to meet the accident analysis. During the August 2, 2002. Hazards Consideration Determination, ESW pump replacement, the redundant ESW and Opportunity for a Hearing III pump will be available to provide cooling water to the safety-related components. Thus, Accordingly, pursuant to sections The U.S. Nuclear Regulatory there is no increase in the consequences of 161b, 161i, 161o, and 184 of the Atomic Commission (the Commission) is an accident previously evaluated. Energy Act of 1954, as amended, 42 considering issuance of amendments to 2. Does the proposed change create the U.S.C. 2201(b), 2201(i), 2201(o), and Facility Operating Licenses Nos. DPR– possibility of a new or different kind of 2234; and 10 CFR 50.80, it is hereby 58 and DPR–74 issued to Indiana accident from any accident previously Michigan Power Company (the licensee) evaluated? ordered that the application regarding Response: No. the indirect license transfers referenced for operation of the Donald C. Cook The ESW system provides cooling water to above is approved, subject to the Nuclear Power Plant, Units 1 and 2, safety-related components, a support following conditions: located in Berrien County, Michigan. function. The one-time extension of the (1) Following the completion of the The proposed amendments would allowed outage time facilitates the subject indirect license transfers, I&M amend Operating Licenses Nos. DPR–58 installation of an ESW pump, and of itself shall provide the Director of the Office and DPR–74 to add a license condition does not introduce any mechanisms that of Nuclear Reactor Regulation a copy of allowing a one-time 140-hour allowed would initiate an accident not previously any application, at the time it is filed, outage time for the essential service analyzed. water (ESW) system, to allow ESW 3. Does the proposed change involve a to transfer (excluding grants of security significant reduction in a margin of safety? interests or liens) from I&M to its parent, pump replacement during plant Response: No. or to any other affiliated company, operation. The one-time allowed outage time facilities for the production, Before issuance of the proposed extension does not alter the function of the transmission, or distribution of electric license amendments, the Commission ESW pump, nor does it change the mode of energy having a depreciated book value will have made findings required by the plant operation. Only one ESW pump per exceeding ten percent (10%) of I&M’s Atomic Energy Act of 1954, as amended unit is required to mitigate the consequences consolidated net utility plant, as (the Act), and the Commission’s of an accident. The redundant ESW pump regulations. will be operable during the time that the recorded on its book of account. ESW pump is being replaced. A risk (2) Should the corporate restructuring The Commission has made a assessment has been performed for an described above not be completed by proposed determination that the allowed outage time of 140 hours. The results July 31, 2003, this Order shall become amendment request involves no of that evaluation demonstrate that the null and void, provided, however, upon significant hazards consideration. Under [incremental core damage probability] ICDP
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and [incremental large early release affected by this proceeding and who made party to the proceeding; (2) the probability] ILERP associated with the wishes to participate as a party in the nature and extent of the petitioner’s increase in allowed outage time is within the proceeding must file a written request property, financial, or other interest in NUMARC 93–01 guidelines. Therefore, the margin of safety is not significantly reduced. for a hearing and a petition for leave to the proceeding; and (3) the possible intervene. Requests for a hearing and a effect of any order which may be The NRC staff has reviewed the petition for leave to intervene shall be entered in the proceeding on the licensee’s analysis and, based on this filed in accordance with the petitioner’s interest. The petition should review, it appears that the three Commission’s ‘‘Rules of Practice for also identify the specific aspect(s) of the standards of 10 CFR 50.92(c) are Domestic Licensing Proceedings’’ in 10 subject matter of the proceeding as to satisfied. Therefore, the NRC staff CFR part 2. Interested persons should which petitioner wishes to intervene. proposes to determine that the consult a current copy of 10 CFR 2.714,1 Any person who has filed a petition for amendment request involves no which is available at the Commission’s leave to intervene or who has been significant hazards consideration. Public Document Room, located at One admitted as a party may amend the The Commission is seeking public White Flint North, 11555 Rockville Pike petition without requesting leave of the comments on this proposed (first floor), Rockville, Maryland, or Board up to 15 days prior to the first determination. Any comments received electronically on the Internet at the NRC prehearing conference scheduled in the within 30 days after the date of Web site http://www.nrc.gov/reading- proceeding, but such an amended publication of this notice will be rm/doc-collections/cfr/. If there are petition must satisfy the specificity considered in making any final problems in accessing the document, requirements described above. determination. contact the Public Document Room Normally, the Commission will not Not later than 15 days prior to the first issue the amendments until the Reference staff at 1–800–397–4209, 301– prehearing conference scheduled in the expiration of the 30-day notice period. 415–4737, or by e-mail to [email protected]. proceeding, a petitioner shall file a However, should circumstances change If a request for a hearing or petition for supplement to the petition to intervene during the notice period such that leave to intervene is filed by the above which must include a list of the failure to act in a timely way would date, the Commission or an Atomic contentions which are sought to be result, for example, in derating or Safety and Licensing Board, designated litigated in the matter. Each contention shutdown of the facility, the by the Commission or by the Chairman must consist of a specific statement of Commission may issue the license of the Atomic Safety and Licensing the issue of law or fact to be raised or amendments before the expiration of the Board Panel, will rule on the request controverted. In addition, the petitioner 30-day notice period, provided that its and/or petition; and the Secretary or the shall provide a brief explanation of the final determination is that the designated Atomic Safety and Licensing bases of the contention and a concise amendment involves no significant Board will issue a notice of hearing or statement of the alleged facts or expert hazards consideration. The final an appropriate order. opinion which support the contention determination will consider all public As required by 10 CFR 2.714, a and on which the petitioner intends to and State comments received. Should petition for leave to intervene shall set rely in proving the contention at the the Commission take this action, it will forth with particularity the interest of hearing. The petitioner must also publish in the Federal Register a notice the petitioner in the proceeding, and provide references to those specific of issuance and provide for opportunity how that interest may be affected by the sources and documents of which the for a hearing after issuance. The results of the proceeding. The petition petitioner is aware and on which the Commission expects that the need to should specifically explain the reasons petitioner intends to rely to establish take this action will occur very why intervention should be permitted those facts or expert opinion. Petitioner infrequently. with particular reference to the must provide sufficient information to Written comments may be submitted following factors: (1) The nature of the show that a genuine dispute exists with by mail to the Chief, Rules and petitioner’s right under the Act to be the applicant on a material issue of law Directives Branch, Division of or fact. Contentions shall be limited to 1 Administrative Services, Office of The most recent version of Title 10 of the Code matters within the scope of the of Federal Regulations, published January 1, 2002, amendment under consideration. The Administration, U.S. Nuclear Regulatory inadvertently omitted the last sentence of 10 CFR Commission, Washington, DC 20555– 2.714(d) and subparagraphs (d)(1) and (2), regarding contention must be one which, if 0001, and should cite the publication petitions to intervene and contentions. Those proven, would entitle the petitioner to date and page number of this Federal provisions are extant and still applicable to relief. A petitioner who fails to file such petitions to intervene. Those provisions are as a supplement which satisfies these Register notice. Written comments may follows: ‘‘In all other circumstances, such ruling also be delivered to Room 6D59, Two body or officer shall, in ruling on— requirements with respect to at least one White Flint North, 11545 Rockville (1) A petition for leave to intervene or a request contention will not be permitted to Pike, Rockville, Maryland, from 7:30 for hearing, consider the following factors, among participate as a party. other things: Those permitted to intervene become a.m. to 4:15 p.m. Federal workdays. (i) The nature of the petitioner’s right under the Documents may be examined, and/or Act to be made a party to the proceeding. parties to the proceeding, subject to any copied for a fee, at the NRC’s Public (ii) The nature and extent of the petitioner’s limitations in the order granting leave to Document Room, located at One White property, financial, or other interest in the intervene, and have the opportunity to Flint North, 11555 Rockville Pike (first proceeding. participate fully in the conduct of the (iii) The possible effect of any order that may be hearing, including the opportunity to floor), Rockville, Maryland. entered in the proceeding on the petitioner’s The filing of requests for hearing and interest. present evidence and cross-examine petitions for leave to intervene is (2) The admissibility of a contention, refuse to witnesses. discussed below. admit a contention if: If a hearing is requested, the By September 9, 2002, the licensee (i) The contention and supporting material fail to Commission will make a final may file a request for a hearing with satisfy the requirements of paragraph (b)(2) of this determination on the issue of no section; or respect to issuance of the amendment to (ii) The contention, if proven, would be of no significant hazards consideration. The the subject facility operating license and consequence in the proceeding because it would final determination will serve to decide any person whose interest may be not entitle petitioner to relief.’’ when the hearing is held.
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If the final determination is that the Publicly available records will be September 24, 2002: Radisson Hotel amendment request involves no accessible from the Agencywide Valley Forge, 1160 First Avenue, King of significant hazards consideration, the Documents Access and Management Prussia, Pennsylvania, 19406. Hotel Commission may issue the amendment System’s (ADAMS) Public Electronic information: (610) 337–2000. Meeting and make it immediately effective, Reading Room on the Internet at the information: Christine O’Rourke, (610) notwithstanding the request for a NRC Web site, http://www.nrc.gov/ 337–5386. hearing. Any hearing held would take reading-rm/adams.html. Persons who September 28, 2002: The Embassy place after issuance of the amendment. do not have access to ADAMS or who Suites Hotel and Casino—San Juan, If the final determination is that the encounter problems in accessing the 8000 Tartak Street, Carolina, PR 00979. amendment request involves a documents located in ADAMS, should Hotel information: (787) 791–0505. significant hazards consideration, any contact the NRC PDR Reference staff by Meeting information: Hector Bermudez, hearing held would take place before telephone at 1–800–397–4209, 301– (404) 562–4734. the issuance of any amendment. 415–4737, or by e-mail to [email protected]. Note: This workshop will be held mostly A request for a hearing or a petition in Spanish. for leave to intervene must be filed with Dated at Rockville, Maryland, this 2nd day of August, 2002. the Secretary of the Commission, U.S. October 9, 2002: Wyndham Lisle, Nuclear Regulatory Commission, For the Nuclear Regulatory Commission. 3000 Warrenville Road, Lisle, IL 60532. Washington, DC 20555–0001, Attention: Mohammed Shuaibi, Hotel information: (630) 505–1000. Meeting information: Patricia Pelke, Rulemakings and Adjudications Staff, or Acting Section Chief, Section 1, Project may be delivered to the Commission’s Directorate III, Division of Licensing Project (630) 829–9868. October 16, 2002: Holiday Inn— Public Document Room (PDR), located Management, Office of Nuclear Reactor Arlington, 1507 N. Watson Road, Hwy at One White Flint North, 11555 Regulation. 360 at Brown Blvd., Arlington, Texas Rockville Pike (first floor), Rockville, [FR Doc. 02–20086 Filed 8–7–02; 8:45 am] 76006. Hotel information: (817) 640– Maryland, by the above date. Because of BILLING CODE 7590–01–P 7712. Meeting information: Jack the continuing disruptions in delivery Whitten, (817) 860–8197. of mail to United States Government offices, it is requested that petitions for NUCLEAR REGULATORY FOR FURTHER INFORMATION CONTACT: leave to intervene and requests for COMMISSION Linda M. Psyk, Office of Nuclear hearing be transmitted to the Secretary Material Safety and Safeguards, Nuclear of the Commission either by means of Medical Use of Byproduct Material; Regulatory Commission, Washington, facsimile transmission to 301–415–1101 Announcement of Public Workshop DC 205555–0001, Telephone (301) 415– or by e-mail to [email protected]. 0215, or e-mail [email protected]. AGENCY: Nuclear Regulatory For those attending the September 10, A copy of the petition for leave to Commission. intervene and request for hearing should 2002, workshop, please contact Lucia ACTION: Announcement of public Lopez in advance at 301–415–7852 to also be sent to the Office of the General workshop. Counsel, U.S. Nuclear Regulatory provide information that will facilitate entrance into the building on the day of Commission, Washington, DC 20555– SUMMARY: The Nuclear Regulatory the meeting. Individuals calling from 0001, and because of continuing Commission (NRC) will be conducting outside of the Washington, DC disruptions in delivery of mail to United several workshops to inform external metropolitan area may call 1–800–368– States Government offices, it is stakeholders of the changes made to 10 5642 and ask for extension 7852. requested that copies be transmitted CFR part 35, Medical Use of Byproduct either by means of facsimile Material. The purpose of these SUPPLEMENTARY INFORMATION: The transmission to 301–415–3725 or by e- workshops is to provide stakeholders workshops will be conducted by means mail to [email protected]. A copy with the necessary information to of presentations made by the NRC staff of the request for hearing and petition promote a successful transition into the to the attendees. NRC staff will allow for leave to intervene should also be revised rule. The revised Part 35 is a time for question and answer sessions. The workshops are open to the public sent to David W. Jenkins, Esquire, risk-informed, and performance-based but the target audience will be members Indiana Michigan Power Company, regulation that focuses on those medical of the regulated medical community Nuclear Generation Group, One Cook procedures that pose the highest who possess a license or permit issued Place, Bridgman, Michigan 49106, radiological risk to workers, patients, by the NRC, Agreement State or Master attorney for the licensee. and the public. The revised Part 35 was Material Licensee, authorizing the use of Nontimely filings of petitions for published in the Federal Register on byproduct material for medical leave to intervene, amended petitions, April 24, 2002 (67 FR 20249), and will purposes. supplemental petitions and/or requests become effective on October 24, 2002. for hearing will not be entertained Those needing accommodations DATES: absent a determination by the The workshops will be held on under the American with Disabilities Commission, the presiding officer or the September 10, 2002, September 24, Act or having special concerns should presiding Atomic Safety and Licensing 2002, September 28, 2002, October 9, contact the person listed as point of Board that the petition and/or request 2002, and October 16, 2002. All contact for each meeting. should be granted based upon a workshops will be conducted between 8 a.m. and 4:30 p.m., eastern standard Dated at Rockville, Maryland, this 1st day balancing of the factors specified in 10 of August, 2002. CFR 2.714(a)(1)(i)–(v) and 2.714(d). time. For the Nuclear Regulatory Commission. For further details with respect to this ADDRESSES: September 10, 2002: Thomas H. Essig, action, see the application for Nuclear Regulatory Commission, Two Chief, Materials Safety and Inspection amendments dated July 26, 2002, which White Flint North, 11555 Rockville Branch, Division of Industrial and Medical is available for public inspection at the Pike, Rockville, Maryland, 20852. Nuclear Safety, Office of Nuclear Materials Commission’s PDR, located at One Room: Auditorium. Meeting Safety and Safeguards. White Flint North, 11555 Rockville Pike information: Linda Psyk, (301) 415– [FR Doc. 02–20084 Filed 8–7–02; 8:45 am] (first floor), Rockville, Maryland. 0215. BILLING CODE 7590–01–P
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SECURITIES AND EXCHANGE and ‘‘all-risk’’ coverage of Columbia. By (collectively, ‘‘Applicants’’) have filed a COMMISSION order dated July 23, 1999 (HCAR No. post-effective amendment to an 27051) (‘‘1999 Order’’) the Commission application-declaration previously filed [Release No. 35–27558] authorized Columbia to expand the with the Commission under sections Filings Under the Public Utility Holding reinsurance activities of CICL to include 6(a), 7, 32 and 33 of the Act and rules Company Act of 1935, as Amended all predictable risks related to the 53 and 54 under the Act. (‘‘Act’’) business of Columbia and to establish By order dated August 16, 2000 one or more direct subsidiaries to (HCAR No. 27212), the Commission August 2, 2002. engage in the proposed reinsurance authorized the merger of New Century Notice is hereby given that the activities. Energies, Inc. and Northern States following filing(s) has/have been made CICL and Columbia now propose: (1) Power Company (‘‘NSP’’).5 By order with the Commission pursuant to In instances where NiSource direct or dated August 22, 2000 (HCAR No. provisions of the Act and rules indirect subsidiaries (‘‘NiSource 27218) (‘‘Financing Order’’), the promulgated under the Act. All companies’’) do not require evidence of Commission authorized, through interested persons are referred to the coverage 1 from rated or admitted September 30, 2003 (‘‘Authorization application(s) and/or declaration(s) for insurers, that CICL have the ability to Period’’), the following: (1) Xcel, complete statements of the proposed underwrite risks of all NiSource Cheyenne, and Black Mountain to transaction(s) summarized below. The companies directly; 2 (2) that CICL engage in external financing; (2) Xcel application(s) and/or declaration(s) and underwrite directly corporate and certain of its subsidiaries to engage any amendment(s) is/are available for deductible or self-insured in intrasystem financings, including public inspection through the reimbursement risk, such as workers’ guarantees; (3) Xcel and certain Commission’s Branch of Public compensation coverage of NiSource subsidiaries to enter into hedging Reference. companies; and (3) that CICL provide transactions for existing and anticipated Interested persons wishing to controlled unrelated third-party debt; (4) Xcel and certain subsidiaries to comment or request a hearing on the business risk coverage in situations establish, guarantee the obligations of, application(s) and/or declaration(s) where providing this coverage would and borrow the proceeds of the debt and should submit their views in writing by directly or indirectly benefit NiSource preferred securities issued by, one or August 26, 2002, to the Secretary, companies.3 more special purpose financing entities; Securities and Exchange Commission, CICL and Columbia state that no (5) Xcel and any subsidiary to acquire Washington, DC 20549–0609, and serve additional staff would be required to and restructure investments in one or a copy on the relevant applicant(s) and/ operate CICL in the proposed matter and more special purpose entities organized or declarant(s) at the address(es) that the current managers will be for the purpose of acquiring, financing, specified below. Proof of service (by retained to provide administrative and holding the securities of one or affidavit or, in the case of an attorney at services. CICL and Columbia further more nonutility subsidiaries; and (6) law, by certificate) should be filed with state that, except for the modifications Xcel and any Xcel’s nonutility the request. Any request for hearing proposed, all other terms, conditions subsidiary to pay dividends out of should identify specifically the issues of and limitations under the 1996 Order capital and unearned surplus. In the facts or law that are disputed. A person and 1999 Order will continue to apply. Financing Order, the Commission who so requests will be notified of any reserved jurisdiction over Xcel’s request hearing, if ordered, and will receive a Xcel Energy, Inc. (70–9635) to use the proceeds of the financings to copy of any notice or order issued in the Xcel Energy, Inc. (‘‘Xcel’’), a invest in exempt wholesale generators matter. After August 26, 2002, the registered holding company, located at (‘‘EWGs’’), as defined in section 32 of application(s) and/or declaration(s), as 800 Nicollet Mall, Minneapolis, the Act, and foreign utility companies filed or as amended, may be granted Minnesota 55402, and its subsidiaries 4 (‘‘FUCOs’’), as defined in section 33 of and/or permitted to become effective. the Act, so long as Xcel’s ‘‘aggregate 1 CICL and Columbia state that this practice of investment’’ 6 in these entities did not Columbia Insurance Corporation, Ltd. providing evidence of coverage is known as exceed 100 percent of its ‘‘consolidated (70–9371) ‘‘fronting’’ and is an accepted practice for retained earnings.’’ 7 Columbia Insurance Corporation, Ltd. underwriting risks where the insured requires evidence of coverage from rated or admitted By supplemental order dated March 7, (‘‘CICL’’), a wholly owned captive insurers for business or statutory reasons. They 2002 (HCAR No. 27494) (‘‘Supplemental insurance subsidiary of Columbia further state that the practice of ‘‘fronting’’ creates Financing Order,’’ and together with Energy Group (‘‘Columbia’’), a registered additional cost to the insured. Financing Order, the ‘‘Financing holding company and a wholly owned 2 CICL and Columbia represent that by acting as Orders’’), the Commission released a ‘‘front’’ company, CICL can eliminate as much as subsidiary of NiSource Inc. 40 percent of the premium charged on primary risk jurisdiction over the use of proceeds of (‘‘NiSource’’), also a registered holding insurance policies and that this savings would certain financing transactions for company, and Columbia, all located at benefit NiSource companies. 801 East 86th Avenue, Merrillville, 3 CICL proposes to provide performance bonds 5 Following this merger, NSP, as the surviving Indiana 46410–6272, have filed a post- and construction-related insurance for contractors entity, changed its name to Xcel and registered as working on projects for NiSource subsidiaries. a public utility holding company under section 5 effective amendment to their 4 Xcel directly owns six utility subsidiaries that of the Act. application-declaration filed previously serve electric and/or natural gas customers in 12 6 ‘‘Aggregate investment’’ is defined in rule with the Commission under sections states. These six utility subsidiaries are Northern 53(a)(1)(i) to mean all amounts invested, or 9(a), 10, and 12(b) of the Act and rules States Power Company, a Minnesota corporation, committed to be invested, in EWGs and FUCOs, for Northern States Power Company, a Wisconsin which there is recourse, directly or indirectly, to the 45 and 54 under the Act. corporation, Public Service Company of Colorado, holding company. By order dated October 25, 1996 Southwestern Public Service Co., Black Mountain 7 ‘‘Consolidated retained earnings’’ is defined in (HCAR No. 26596) (‘‘1996 Order’’), the Gas Company (‘‘Black Mountain’’), and Cheyenne rule 53(a)(1)(ii) to mean the average of the Commission authorized Columbia to Light, Fuel and Power Company (‘‘Cheyenne’’). consolidated retained earnings of the registered form and capitalize CICL to engage in Xcel’s major nonutility subsidiaries are Viking Gas holding company system as reported for the most Transmission Company, NRG Energy, Inc. (‘‘NRG’’), recent quarterly periods on the holding company’s the reinsurance of predictable losses Seren Innovations, Inc., e prime, inc., and Eloigne Form 10–K or 10–Q filed under the Securities under automobile and general liability Company. Exchange Act of 1934, as amended.
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investments in EWGs and FUCO up to as ‘‘held for sale.’’ Although the actual and provided that the Applicants shall 100 percent of consolidated retained asset sales may not occur until later not engage in any of the financing earnings. Both the Financing Order and periods, this write-down must be made transactions authorized in the Financing the Supplemental Financing Order at the time that the asset is determined Orders at any time after June 30, 2003 contain certain commitments, including to be ‘‘held for sale,’’ not at the time of unless at such time the Xcel 30 percent a commitment by Xcel to maintain a the completion of the sale. test is met. level of common equity that will be at Applicants state that, in light of the Applicants represent that, with the least 30 percent of consolidated total recent erosion in power pool prices and exception of this proposed revision to capitalization (‘‘30 percent test’’). related asset valuations within the the Financing Orders, all the terms and As of March 31, 2002, Xcel’s common independent power production sector, it conditions of the Financing Orders will equity was 30.8% of capitalization. is possible that Xcel could recognize an remain in effect. Applicants further Applicants state that there exist, impairment loss as Xcel’s Board represent that the net proceeds of the however, circumstances that could considers, and later this year potentially common stock of between $500 million result in the common equity of Xcel approves, a plan to sell certain NRG or and $800 million during 2002 issued by falling below 30% of capitalization and other assets. At this time, however, Xcel Xcel pursuant to the authorizations thus Xcel failing to satisfy the 30% test cannot predict what actions its Board granted in the Financing Orders will be for a period of time. Applicants further will take regarding any commitment it applied to repay debt of Xcel, NRG, and/ state that Xcel is evaluating the business may make to sell NRG or other assets, or one or more of Xcel’s subsidiaries. of NRG and its other businesses and is or how much, if any, impairment losses The Southern Company, et al. (70– considering certain restructuring Xcel may be required to recognize in 10073) alternatives. Alternatives under future periods as a result of such consideration include the possible sale actions. The Southern Company (‘‘Southern’’), of selected generating assets of NRG and Applicants state that there is the 270 Peachtree Street, NW., Atlanta, exiting other businesses that do not fit possibility that Xcel may be required to Georgia 30303, a registered holding strategically with Xcel. Xcel states that record a write-down as a result of future company, and Georgia Power Company it has announced plans to address credit Board actions and the corresponding (‘‘Georgia Power’’), 241 Ralph McGill and liquidity issues at NRG. Xcel states recognition of an impairment loss under Boulevard, NE., Atlanta, Georgia 30308, that its management and its board of FASB 144 with respect to NRG or other a wholly owned public-utility company directors (‘‘Board’’) have been assets being reclassified as ‘‘held for subsidiary of Southern (collectively, considering the possible sale of some of sale.’’ As a result of the accounting ‘‘Applicants’’), have filed an the existing generating assets of NRG. treatment, Xcel will be required to application-declaration under sections Xcel’s management has not yet record an impairment charge at the time 6(a), 7, 9(a), 10 and 12(b) of the Act and completed its review of bids received to that an asset is ‘‘held for sale,’’ and in rules 45 and 54 under the Act. date for many of the NRG assets advance of the completion of the sale Southern and Georgia Power propose considered for sale, and the Board has and application of the net proceeds to to organize and acquire, indirectly and not yet received or committed to the reduction of outstanding directly, respectively, all the common management’s recommended plan to indebtedness. Because of the mismatch stock of one or more special purpose sell such assets. In addition, Xcel’s in timing between the recording of the subsidiaries (‘‘Subsidiaries’’) for the management and Board have not yet write-downs and the application of sale purpose of effecting various financing completed their review of other proceeds to the reduction of transactions described below through businesses for their strategic fit, and indebtedness, the common equity of June 30, 2006. Applicants state that, by thus has not committed to a plan to sell Xcel may fall below 30% of its using the Subsidiaries in these any such businesses. This commitment capitalization. In such event, the transactions, they would have greater is required before NRG’s assets or the conditions to the authorization granted access to new sources of capital and businesses are classified as ‘‘held for in the Financing Orders would not be may reap certain tax benefits. sale.’’ 8 satisfied. Applicants request authority to issue Under generally accepted accounting Applicants expect that any reduction and sell, through the Subsidiaries, up to principles, Xcel evaluates assets of Xcel’s common equity ratio below an aggregate amount of $650 million in classified as ‘‘held for use’’ by 30% would be temporary. Applicants preferred securities (‘‘Preferred comparing the book value to the state that upon consummation of the Securities’’). Each of the Preferred discounted cash flows expected, and sale of generating assets of NRG and Securities would have a specified par evaluates assets classified as ‘‘held for other businesses, the outstanding amount, stated value amount, sale’’ by comparing the carrying value of indebtedness of Xcel and its liquidation amount, or preference. the asset to its fair value. Thus, if any subsidiaries will be reduced—either by The Subsidiaries may be organized in asset being reclassified as ‘‘held for the application of net proceeds of such the following corporate forms: (1) sale’’ has a fair value which is less than sale to repay outstanding indebtedness Limited liability companies in any state its book value, Xcel will record an at NRG or as a result of the purchaser jurisdiction considered advantageous by impairment charge against income to of a project assuming the project-related Georgia Power; (2) a limited partnership reduce the carrying value of the asset to indebtedness. in any state jurisdiction considered its fair value at the time it is classified Applicants request authority to advantageous by Georgia Power; (3) a engage in the financing transactions business trust in any state jurisdiction 8 Applicants represent that the Statement of authorized in the Financing Orders at a considered advantageous by Georgia Financial Accounting Standards No. 144, time when the Xcel 30 percent test is Power; or (4) any other entity or Accounting for the Impairment or Disposal of Long- Lived Assets (‘‘FASB 144’’) sets forth the criteria for not met, provided that the common structure, foreign or domestic, that is classification as ‘‘held for sale’’—including, among equity of Xcel, as reflected on its most considered advantageous by Georgia others, (a) management, having the authority to recent Form 10–K or Form 10–Q and as Power. In the event that any Subsidiary approve the action, commits to a plan to sell the adjusted to reflect subsequent events is organized as a limited liability asset, (b) the asset is being actively marketed for sale and (c) the sale of the asset is expected to be that affect capitalization, be at least 24 company, Applicants may organize a completed within one year. percent of total capitalization of Xcel second special purpose wholly-owned
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subsidiary (‘‘Investment Subsidiary’’) periodic basis by auction or remarketing ‘‘dividends received deduction’’ under for the purpose of acquiring and holding procedures according to a formula based the Internal Revenue Code. Subsidiary membership interests to on certain reference rates, or by other Any series of Preferred Securities may comply with any requirements that a predetermined method. Interest be redeemable at the option of the limited liability company have at least payments would constitute each issuing Subsidiary, with the consent or two members. In the event that any Subsidiary’s only income and would be at the direction of Georgia Power, at a Subsidiary is organized as a limited used to pay dividends or distributions price equal to the Preferred Securities’ partnership, Georgia Power may on the Preferred Securities and par amount, stated value amount, organize an Investment Subsidiary to act dividends or distributions on the liquidation amount, or preference, plus as the general partner of the Subsidiary. common stock or the general any accrued and unpaid dividends or Further, Georgia Power may acquire, partnership or other common equity distributions. The Preferred Securities directly or indirectly through an interests of the Subsidiary. Dividend may be redeemable at any time after a Investment Subsidiary, a limited payments or distributions on the specified date not later than partnership interest in a Subsidiary to Preferred Securities would be made on approximately ten years from their date comply with any requirements that a a monthly or other periodic basis and of issuance or upon the occurrence of Subsidiary would have a limited must be made to the extent that the certain events. These events may be partner. Subsidiary has legally available funds that: (1) The Subsidiary is required to Georgia Power and/or an Investment and cash. However, Georgia Power may withhold or deduct certain amounts in Subsidiary would acquire all the have the right to defer payment of connection with dividend, distribution common stock or all of the general interest on Notes for up to five or more or other payments or is subject to partnership or other common equity years. Each Subsidiary would have the federal income tax on interest received interests of any Subsidiary for an parallel right to defer dividend on the Notes issued to the Subsidiary; amount not less than the minimum payments or distributions on the related (2) it is determined that the interest required by law and not exceeding series of Preferred Securities for up to payment by Georgia Power on the twenty-one percent of the total equity five or more years, provided that if related Notes are not deductible for capitalization of any Subsidiary dividends or distributions on any series income tax purposes; or (3) the (‘‘Equity Contribution’’).9 Georgia Power of Preferred Securities are not paid for Subsidiary becomes subject to may issue and sell to any Subsidiary, at up to 18 or more consecutive months, regulation as an ‘‘investment company’’ any time, or from time to time, in one then the Preferred Securities holders under the Investment Company Act of or more series, subordinated debentures, may have the right to appoint a trustee, 1940, as amended. Any series of promissory notes or other debt special general partner or other special Preferred Securities may also be subject instruments (‘‘Notes’’) under an representative to enforce the to mandatory redemption upon the indenture or other document. The Subsidiary’s rights under the Note or occurrence of certain events. Georgia Subsidiary would apply both the Equity Guarantee. The dividend or distribution Power also may have the right in certain Contribution and the proceeds from the rates, payment dates, redemption and cases or in its discretion to exchange the sale of Preferred Securities to purchase other similar provisions of each series of Preferred Securities of any Subsidiary Notes. Alternatively, Georgia Power may Preferred Securities would be for the Notes or other junior enter a loan agreement with any substantially identical to the interest subordinated debt issued to the Subsidiary, under which the Subsidiary rates, payment dates, redemption and Subsidiary. would loan to Georgia Power (‘‘Loans’’) other provisions of the related Notes In the event that any Subsidiary is both the Equity Contribution and the issued by Georgia Power. required to withhold or deduct certain proceeds from the sale of the Preferred The Notes and related Guaranties amounts in connection with dividend, Securities and Georgia Power would would be subordinate to all other distribution or other payments, it may issue Notes to the Subsidiary evidencing existing and future unsubordinated also be obligated to ‘‘gross up’’ such the borrowings. indebtedness for borrowed money of payments so that the Preferred Applicants request authority for Georgia Power and may have no cross- Securities holders would receive the Georgia Power to guarantee: (1) Payment default provisions with respect to other same payment after such withholding or of dividends or distributions on the indebtedness of Georgia Power. deduction as they would have received Preferred Securities of any Subsidiary if, However, Georgia Power may be if no withholding or deduction were and to the extent, that the Subsidiary prohibited from declaring and paying required. In such event, Georgia Power’s has legally available funds; (2) payments dividends on its outstanding capital obligations under its related Note and to the Preferred Securities holders of stock and making payments related to Guaranty may also extend to the ‘‘gross amounts due upon liquidation of a pari passu debt unless all payments up’’ obligation. In addition, if any Subsidiary or redemption of the then due under the Notes and Subsidiary is required to pay taxes on Preferred Securities; and (3) certain Guaranties, without giving effect to the income derived from interest payments additional amounts that may be payable deferral rights, have been made. on Notes issued to it, Georgia Power regarding the Preferred Securities It is expected that Georgia Power’s may be required to pay additional (collectively, ‘‘Guaranties’’). interest payments on the Notes would interest on the related Notes in an Notes would have terms of up to fifty be deductible for federal income tax amount equal to the tax obligation. years. Prior to maturity, Georgia Power purposes and that each Subsidiary In the event of any voluntary or would pay interest on the Notes at a rate would be treated as either a partnership involuntary liquidation, dissolution or equal to the dividend or distribution or a passive grantor trust for federal winding up of any Subsidiary, the rate on the related series of Preferred income tax purposes. Consequently, holders of the Preferred Securities Securities. The dividend or distribution holders of the Preferred Securities, would be entitled to receive, out of the rate may be either a fixed rate or an Georgia Power and any Investment assets of the Subsidiary available for adjustable rate to be determined on a Subsidiary would be deemed to have distribution to its shareholders, partners received distributions from their or other owners, an amount equal to the 9 The remaining equity would be obtained ownership interests in any Subsidiary par, stated value or liquidation amount through the purchase of the Preferred Securities. and would not be entitled to any or preference of the Preferred Securities,
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plus any accrued and unpaid dividends and Exchange Commission (‘‘SEC’’ or on the Exchange pursuant to UTP, in or distributions. ‘‘Commission’’) pursuant to Section accordance with provisions of the Joint Applicants state that each 19(b)(1) of the Securities Exchange Act Self-Regulatory Organization Plan Subsidiary’s activities would be limited of 1934 (‘‘Act’’)1 and Rule 19b–4 Governing the Collection, Consolidation to issuing and selling Preferred thereunder,2 a proposed rule change to and Dissemination of Quotation and Securities and lending to Georgia Power adopt Amex Rule 118 and to amend Transaction Information for Nasdaq- or an Investment Subsidiary the Amex Rules 1, 3, 7, 24, 115, 170, 175, Listed Securities Traded on Exchanges proceeds from those sales and the 190, 205 and Section 950 of the Amex on an Unlisted Trading Privileges Basis Equity Contributions and any related Company Guide to provide for the (‘‘Plan’’). The Exchange is a participant activities. Applicants further state that a trading of Nasdaq Stock Market, Inc. in the Plan. Exchange trading in NNM Subsidiary’s common stock, general (‘‘Nasdaq’’) National Market (‘‘NNM’’) securities will be governed primarily by partnership or other common equity securities pursuant to unlisted trading Amex Rule 118, Trading in Nasdaq interests are not transferable, except to privileges (‘‘UTP’’). On January 14, National Market Securities. The certain permitted successors, that its 2002, the Amex filed Amendment No. 1 Exchange intends to limit Nasdaq UTP business and affairs would be managed to the proposed rule change.3 The trading to NNM issues and not to and controlled by Georgia Power and/or proposed rule change, as amended by its Investment Subsidiary or successor, Amendment No. 1, was published in the include Nasdaq SmallCap issues at this and that Georgia Power or its successor Federal Register on February 6, 2002.4 time. would pay all expenses of the The Commission received two comment Proposed Rule 118: Subsidiary. letters and a response. On April 19, (a) Defines NNM security and Nasdaq The distribution rate to be borne by 2002, the Amex filed Amendment No. 2 System. the Preferred Securities and the interest to the proposed rule change 5 and on rate on the Notes would not exceed the (b) States that the Exchange July 26, 2002 filed Amendment No. 3 to Constitution and rules apply to trading greater of 300 basis points over U.S. 6 the proposed rule change. This order NNM securities, except to the extent Treasury securities having comparable approves the proposed rule change, as maturities or a gross spread over U.S. that Rule 118 governs or unless the amended. In addition, the Commission context otherwise requires. Treasury securities that is consistent is publishing notice to solicit comment with similar securities having on and is simultaneously approving, on (c) Requires Amex specialists to comparable maturities and credit an accelerated basis, Amendment Nos. 2 permit Nasdaq market makers direct quality issued by other companies. and 3 to the proposal. telephone access to the specialist post Georgia Power would use the The Exchange is proposing rules to and allows Nasdaq market makers to use proceeds from the sale of the proposed accommodate trading of NNM securities telephone access to transmit orders for securities to fund its ongoing execution on the Amex. construction program, pay scheduled 1 15 U.S.C. 78s(b)(1). (d) Provides that quotations maturities and/or refundings of its 2 17 CFR 240.19b–4. distributed by Nasdaq market makers securities, repay short-term 3 See letter from Geraldine Brindisi, Vice will be displayed on the Floor, that indebtedness to the extent outstanding, President and Corporate Secretary, Amex, to Amex specialists may send orders from and for other general corporate Katherine England, Assistant Director, Division of Market Regulation (‘‘Division’’), Commission the Floor for execution via telephone to purposes. (January 11, 2002) (‘‘Amendment No. 1’’). Nasdaq market makers, and that 4 See Securities Exchange Act Release No. 45365 For the Commission, by the Division of quotations in Nasdaq securities from Investment Management, under delegated (January 30, 2002), 67 FR 5626. authority. 5 See letter from Claire P. McGrath, Senior Vice other market centers have no standing President and Deputy General Counsel, Amex, to on the Floor. Margaret H. McFarland, Katherine England, Assistant Director, Division, Deputy Secretary. Commission (April 18, 2002) (‘‘Amendment No. (e) Provides that the Exchange will [FR Doc. 02–20067 Filed 8–7–02; 8:45 am] 2’’). In Amendment No. 2, the Exchange amended report intermarket transactions in which the proposed Amex Rule 118, Trading in Nasdaq the Exchange member is the seller to the BILLING CODE 8010–01–P National Market Securities, to provide that orders sent via telephone from other market centers to the Nasdaq UTP Securities Information Floor and executed by the Amex specialist must be Processor (‘‘SIP’’). SECURITIES AND EXCHANGE compared and cleared through an Exchange member or member organization or the clearing (f) Provides that intermarket COMMISSION firm of a member or member organization. transactions in NNM securities must be [Release No. 34–46305; File No. SR–AMEX– 6 See letter from Claire P. McGrath, Senior Vice compared and cleared through an 2001–106] President and Deputy General Counsel, Amex, to Exchange member or member Nancy Sanow, Assistant Director, Division, Commission (July 25, 2002) (‘‘Amendment No. 3’’). organization or the clearing firm of a Self-Regulatory Organizations; In Amendment No. 3, the Exchange deleted member or member organization. American Stock Exchange LLC; Order formerly proposed Commentary .01 to Rule 175, (g) Provides that specialists in Nasdaq Granting Approval to a Proposed Rule Specialist Prohibitions. See Securities Exchange Act securities must be registered and Change and Amendment No. 1 Thereto Release No. 46213 (July 16, 2002), 67 FR 48232 (July 23, 2002). In addition, in Commentary .01 to qualified, and includes specified testing and Notice of Filing and Order Rule 118, Trading in Nasdaq National Market and training requirements.7 Granting Accelerated Approval to Securities, the Exchange deleted a formerly Amendment Nos. 2 and 3 Thereto proposed reference to Commentary .01 to Rule 175 7 The Commission notes that under Amex Rule Relating to Unlisted Trading Privileges due to deletion of the referenced Commentary by 175, specialists registered as such in securities Amendment No. 3. Finally, the Exchange deleted admitted to dealings pursuant to UTP may be in Nasdaq National Market Securities formerly proposed Commentary .05 to Rule 205, affiliated with specialists, registered options Manner of Executing Odd-Lot Orders, because of a August 2, 2002. traders, and other market makers in options on the related Exchange rule filing addressing odd-lot specialty UTP securities provided that information executions in NNM securities. See Securities barriers are established, approved, and maintained I. Introduction and Description of the Exchange Act Release No. 46148 (June 28, 2002), 67 Proposal FR 45773 (July 10, 2002) (File No. SR–Amex–2002– pursuant to Amex Rule 193 between the stock and options specialist units. However, side-by-side On December 17, 2001, the American 56). SR–Amex–2002–56 proposes to add a new subsection (j) to Rule 118 that deals specifically trading of stocks and related options is not Stock Exchange LLC (‘‘Amex’’ or with executions of odd-lot orders in Nasdaq permitted. See Securities Exchange Act Release No. ‘‘Exchange’’) filed with the Securities securities. 46213 (July 16, 2002).
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(h) Provides for a disclaimer of Rule 24 requirements of Rules 150 and 155 will Exchange liability with respect to Exempts NNM securities from the apply to orders entered with a specialist transactions on the Exchange in NNM rule’s block transactions restrictions. in NNM securities from affiliates of the securities, in accordance with Article Rule 24 states that, after learning about specialist. IV, Section 1 (e) of the Exchange a trade executed or about to be executed Rule 190 Constitution. on the Floor involving 10,000 shares or (i) Provides that the specialist more, a member or employee of a Provides that paragraph (b) shall not financial requirements of Rule 171, member or member organization cannot apply to NNM securities. Paragraph (b) Commentary .04 apply to specialists in initiate or transmit to the Floor an order prohibits specialists from accepting an Nasdaq securities. Rule 171, for the account of a member or member order to buy or sell the specialist’s Commentary .04 currently provides that organization for two minutes following specialty securities directly from a specialist in a security principally the print of the trade on the tape. The specified entities, including the issuer; traded or priced in another U.S. market Exchange does not believe it is an officer, director or 10% shareholder must maintain a cash or net liquid asset appropriate to apply the restrictions in in the issuer; a pension fund; or a bank, position sufficient to assume a position Rule 24 to NNM securities, for which insurance company or investment of 20 trading units. For Amex-listed Amex would not be the primary company. The Exchange does not view securities, the requirement is 60 trading market.11 the potential abuses addressed by units. paragraph (b) as raised by trading in The following existing Amex rules Rule 115 NNM securities insofar as the Exchange also would be amended to accommodate Amends Commentary .01(3) to would not be the primary market for Nasdaq UTP trading: 8 provide for notification to the SIP for these securities, and restrictions such as Rule 1, Comm. .05 NNM securities in the event unusual those in Rule 190(b) are not imposed by market activity or an unusual condition regional exchanges or Nasdaq. Provides that the hours of business for exists that prevents the specialist from Company Guide securities traded on the Exchange updating quotations on a timely basis. pursuant to UTP are the same as the Section 950 hours of trading in the primary market Rule 170, Comm. .11 for such securities.9 Exempts specialists from Rule 170, Adds Commentary .01 to state that the Exchange may trade NNM securities Rule 3 paragraph (e) and specified Commentary to the rule. Rule 170(e) restricts pursuant to UTP. This provision would Exempts trading with non-member members or persons affiliated with a distinguish Nasdaq UTP trading from Nasdaq market makers from the specialist or the specialist’s member Amex securities that were admitted to prohibition on trading with non- organization from purchasing or selling UTP and that, for the most part, were members. a specialty security for an account in traded on the Amex before 1934. Rule 7 which such person or party has an II. Summary of Comments and interest, except when the specialist is States that Rule 7, which includes the Response to Comments acting pursuant to Rule 170(c) or (d) short selling ‘‘tick-test’’ restriction of (e.g., is engaged in dealings reasonably The Commission received a comment Rule 10a–1 under the Act, does not necessary to maintain a fair and orderly letter on the proposed rule change from apply to transactions in NNM securities market, and to maintain price continuity Knight Trading Group, Inc. (‘‘Knight’’) effected under Rule 118.10 and reasonable depth). Amex as a on February 28, 2002,13 which primary market for listed securities expressed concern that the proposal will 8 The Commission has separately approved allocation procedures applicable to NNM securities. imposes the requirements of Amex Rule disrupt the national market system and 14 See Securities Exchange Act Release No. 45698 170. However, the proposed exemption undermine the Firm Quote Rule. (April 5, 2002), 67 FR 18051 (April 12, 2002). provides regulatory parity with other Specifically, Knight argued in its 9 The Commission notes that the Plan defines markets trading Nasdaq securities.12 comment letter that the proposal will Primary Market. However, in Plan Amendment No. disrupt the national market system by 13, the Plan participants propose to delete the The Exchange notes that the Primary Market definition and add a Listing Market permitting Amex members to trade definition. If the Primary Market definition is 11 While Nasdaq UTP trading on the Amex will NNM securities without providing ultimately deleted and the Listing Market definition be exempt from Amex Rule 24, the Commission automatic execution and thereby delay is added to the Plan, the Exchange should reflect notes that, with respect to trading in all securities executions. Knight asserts that all this change in its rules where applicable. See on the Exchange, including Nasdaq securities Securities Exchange Act Release No. 46139 (June traded pursuant to UTP, it is a violation of just and 28, 2002), 67 FR 44888 (July 5, 2002) (Notice of equitable principles of trade, see Amex Constitution 13 See Letter from Michael T. Dorsey, Senior Vice Filing and Partial Summary Effectiveness of Article V, Section 4(h), for a person with material President, General Counsel, and Secretary, Knight, Amendment No. 13 of the Plan). non-public information of an imminent transaction to Commission (February 28, 2002). In its comment 10 The Commission notes that the proposed in a security to take advantage of that information letter, Knight incorporated by reference its amendment to Amex Rule 7, Short Sales, does not by effecting trades in that security or related comment letters previously filed with the require an exemption from the Commission’s short securities. The Exchange’s frontrunning prohibition Commission with regard to the expansion of the sale rule, Rule 10a–1, since Nasdaq securities currently applies not only to trading options ahead issues trading by means of the Plan as well as its currently are excluded from the Rule. See 17 CFR of a block of stock, but also to trading activity in comments regarding the admission of new entrants 240.10a–1(a)(1)(ii). However, Nasdaq has applied to the same stock (‘‘stock to stock frontrunning’’). The to the Plan. See Letter from Michael T. Dorsey become a national securities exchange. See Exchange has procedures in place to examine for (‘‘Dorsey’’), Senior Vice President and General Securities Exchange Act Release No. 44396 (June 7, stock to stock frontrunning activity, and these Counsel (‘‘SVP/GC’’), Knight, to Jonathan Katz 2001), 66 FR 31952 (June 13, 2001). If Nasdaq procedures will be applied to Amex trading in (‘‘Katz’’), Secretary, Commission (December 19, becomes a registered national securities exchange, Nasdaq securities traded pursuant to UTP. See letter 2000); Letter from Dorsey, SVP/GC, Knight, to Katz, Nasdaq securities will be exchange listed and from Richard T. Chase, Executive Vice President, Secretary, Commission (December 13, 2000); Letter subparagraph (ii) of Rule 10a–1 will no longer be Member Firm Regulation, Amex, to Nancy Sanow, from Dorsey, SVP/GC, Knight, to Katz, Secretary, available. Accordingly, the Exchange specialists Assistant Director, Division, Commission, dated Commission (November 1, 2000); see also Letter trading Nasdaq securities would be subject to Rule July 31, 2002. from Richard B. Levin, Assistant General Counsel 10a–1 unless the Exchange obtains an exemption 12 The Commission notes that Amex members and Regulatory Affairs Officer, Knight, to Katz, from the Rule. Nasdaq has requested an exemption remain subject to Section 11(a) under the Act, 15 Secretary, Commission (April 17, 2001). from Rule 10a–1. U.S.C. 78k, and the rules thereunder. 14 17 CFR 240.11Ac1–1.
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Nasdaq market participants currently Finally, Amex averred that UTP trading and to remove impediments to and provide automatic execution through will not have a detrimental impact on perfect the mechanism of a free and either SuperSOES or Select Net.15 the Firm Quote Rule 18 and that Knight’s open market and a national market Knight also contended that the proposal assertion otherwise is unsupported. system.23 will permit Amex members to obtain an Amex stated that any increase in the Moreover, the Commission, pursuant unfair informational advantage by number of inter-market locked and to section 19(b)(2) 24 of the Act, finds monitoring the trading and quoting crossed markets subsequent to the good cause for approving Amendment activity of NNM securities without Commission approving the Amex’s UTP Nos. 2 and 3 prior to the thirtieth day accepting automatic executions. Knight trading rules would likely be caused by after the date of publication of notice also asserted that the proposal will Nasdaq’s trading rules. Specifically, thereof in the Federal Register. The unfairly require market participants to Amex referenced the Nasdaq trading Commission notes that granting provide Amex specialists telephonic rule that permits trading through of accelerated approval to Amendment No. access to their quotes, while orders sent quotes of UTP participants that do not 2 will allow the Amex to implement its to the Amex by Nasdaq market makers use Nasdaq automatic execution intermarket trade comparison and will not be afforded any standing on the systems. clearing procedures and commence Amex floor. Further, Knight argued that The Commission also received a trading of NNM securities on a UTP the proposal will undermine the Firm comment letter from a Congressional basis in a timely fashion. In addition, Quote Rule 16 because UTP exchange panel (‘‘Panel’’) on May 30, 2002.19 In Amex discussed the substance of members are not required to provide its comment letter, the Panel expressed Amendment No. 2 with the Plan automatic execution against their quotes its concern that the proposal would not Participants at meetings of the and can enter orders that lock and cross be ‘‘consistent with the maintenance of Operating Committee. The Commission markets. Knight states ‘‘the Commission fair and orderly markets and the notes that granting accelerated approval should not permit AMEX members to protection of investors’’ as is required to Amendment No. 3 will harmonize the 20 trade Nasdaq issues without being by section 12(f)(2) of the Act. instant proposal with other Amex subject to automatic executions.’’ Knight Specifically, the Panel argued that the proposals that have been approved or further argues that the proposal lack of an automatic execution will be contemporaneously approved. ‘‘enables AMEX members to adhere to requirement could increase the The Commission has carefully auction market principles even though incidence of ‘‘locked’’ and ‘‘crossed’’ considered all the issues raised by the this behavior will disrupt the fair and markets. Moreover, the Panel stated that commenters and is not persuaded by orderly trading of Nasdaq issues within without automatic executions the result their arguments. Knight and the Panel the national market system.’’ would be an unequal playing field essentially argued that accepting The Commission received a response favoring those market participants with automatic execution is a pre-condition to trading Nasdaq securities pursuant to to Knight’s comment letter from the the least sophisticated technology. Such UTP and the only way to comply with Amex on May 21, 2002,17 which unsophisticated market participants the Firm Quote Rule.25 In addition, the addressed various points raised in could gain an advantage by monitoring commenters argued that telephone Knight’s comment letter. First, Amex market activity without being subject to access provides Amex specialists an argued that trading by telephone will automatic executions. As discussed advantage over other Plan participants not delay executions because the Amex above, the Amex substantially who are required to accept automatic does not anticipate a significant addressed the Panel’s comments in the Amex response to Knight’s comment execution. According to Knight, an proportion of orders being telephoned to letter. Amex specialist could ‘‘obtain an unfair or from Amex specialists. Instead, the informational advantage by monitoring Amex anticipates that most orders for III. Discussion the trading and quoting activity of Nasdaq securities will be sent through The Commission finds that the Nasdaq issues in the national market the Common Message Switch for routing proposed rule change, as amended, is system without accepting automatic to specialists’ posts. Moreover, Amex consistent with the Act and the rules executions like all other market believes that trading by telephone is and regulations promulgated thereunder participants trading Nasdaq issues.’’ 26 permissible since it is explicitly applicable to a national securities First, participating in Nasdaq’s contemplated under the Plan. Amex exchange, and, in particular, with the automatic execution facility is not a also noted that Knight’s argument is requirements of Section 6(b) 21 of the requirement for exchanges to trade unfounded because of the Nasdaq rule Act. Specifically, the Commission finds Nasdaq issues. The Commission has not that automatically permits SuperSOES that approval of the proposed rule required competitors to participate in a to trade through the quotes of Plan change is consistent with Section Nasdaq trading facility or required participants. Second, the Amex argued 6(b)(5) 22 of the Act because it is Nasdaq to provide access to its trading that UTP specialists will have no designed to promote just and equitable facilities to its competitors. Each of the informational advantage by slowing the principles of trade, to foster cooperation UTP participants has independently execution process, viewing quotation and coordination with persons engaged decided whether to participate in messages, and adjusting their quotes in facilitating transactions in securities, Nasdaq’s automatic execution facility. and positions accordingly. Amex asserted that Amex UTP specialists will 18 17 CFR 240.11Ac1–1. 23 The Amex has informed the Commission that not have any additional information that 19 See letter from Congresswoman Judy Biggert, its systems are not capable of reporting or clearing is not also available to other Plan Congressmen Mike Ferguson, Walter B. Jones, Mike transactions in sub pennies. If an Amex specialist Rogers, Ed Royce, and Patrick Tiberi to The were to effect a trade in sub pennies, the Amex has participants and Nasdaq market makers. Honorable Harvey Pitt, Chairman, Commission represented that it will advise specialists to effect (May 29, 2002). the trade with the customer at a rounded price. See 15 The Commission notes that SelectNet is not, in 20 15 U.S.C. 78l(f)(2). Information Circular (7/02). The Commission fact, an automatic execution system. 21 15 U.S.C. 78f(b). In approving this proposal, the expects the Amex to address this system limitation 16 17 CFR 240.11Ac1–1. Commission has considered the proposed rule’s in the near future. 17 See letter from Michael J. Ryan, Jr., Executive impact on efficiency, competition and capital 24 15 U.S.C. 78s(b)(2). Vice President & General Counsel, Amex, to Katz, formation. 15 U.S.C. 78c(f). 25 17 CFR 240.11Ac1–1. Secretary, Commission (May 21, 2002). 22 15 U.S.C. 78f(b)(5). 26 See Knight letter page 2.
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Two of the participants, in addition to must follow if it trades Nasdaq SECURITIES AND EXCHANGE the Amex, have chosen not to securities on the Exchange. The COMMISSION participate—the Philadelphia Stock commenters’ concerns appear to be with [Release No. 34–46297; File No. SR–CHX– Exchange, Inc. and the Cincinnati Stock the extension of UTP to the regional 2002–25] Exchange, Inc. Second, providing exchanges and the choice of some of the automatic executions—rather than regional exchanges not to participate in Self-Regulatory Organizations; Notice operating an auction market—is not a Nasdaq’s automated execution system. of Filing and Immediate Effectiveness precondition to competing in Nasdaq The Commission believes that the of Proposed Rule Change by the securities. The very essence of UTP is to commenters’ concerns are more Chicago Stock Exchange, Inc. Relating permit competition among markets and appropriately raised in the context of to Membership Dues and Fees market structures. Requiring one market the approval and amendment process of structure for trading Nasdaq securities August 1, 2002. the Plan, rather than in the context of a would defeat this purpose. Third, while Pursuant to section 19(b)(1) of the compliance with the Firm Quote Rule 27 single Plan participant’s rules related to Securities Exchange Act of 1934 is easier to monitor in an automatic trading under the Plan and that are (‘‘Act’’)1 and Rule 19b4 thereunder,2 execution environment, the Firm Quote consistent with the Plan. notice hereby is given that on July 30, Rule does not require market IV. Solicitation of Comments 2002, the Chicago Stock Exchange, Inc. participants to be subject to automatic (‘‘CHX’’) filed with the Securities and execution. Indeed, the Firm Quote Rule Interested persons are invited to Exchange Commission the proposed has always applied to exchange trading submit written data, views and rule change as described in Items I, II as well as over-the-counter trading. arguments concerning Amendment Nos. and III below, which the CHX has The Commission is unconvinced by 2 and 3, including whether the prepared. The Commission is the assertion of Knight and the Panel amendments are consistent with the publishing this notice to solicit that Amex specialists will have an Act. Persons making written comments on the proposed rule change from interested persons. informational advantage because they submissions should file six copies will be able to monitor trading and thereof with the Secretary, Securities I. Self-Regulatory Organization’s quoting activity of Nasdaq securities and Exchange Commission, 450 Fifth Statement of the Terms of Substance of while not being subject to automatic Street, NW., Washington, DC 20549– the Proposed Rule Change execution. Amex specialists, as well as 0609. Copies of the submission, all the specialists of all other Plan The CHX proposes to amend its subsequent amendments, all written participants, will be able to see the membership dues and fees schedule statements with respect to the proposed market for Nasdaq securities. They will effective through December 31, 2002, to have no special advantage. As noted rule change that are filed with the provide for continued assessment of a marketing fee in instances where above, two other participants have Commission, and all written transactions in a subject issue meet chosen not to participate in Nasdaq’s communications relating to the certain criteria, described below. The automatic execution system. proposed rule change between the text of the proposed rule change is Furthermore, Amex specialists must Commission and any person, other than available at the CHX and at the comply with the Firm Quote Rule. If an those that may be withheld from the Commission. Amex specialist quotes the best bid or public in accordance with the offer for a security and receives an provisions of 5 U.S.C. 552, will be II. Self-Regulatory Organization’s order, it must fill the order in available for inspection and copying in Statement of the Purpose of, and compliance with the Firm Quote Rule. the Commission’s Public Reference Statutory Basis for, the Proposed Rule To be sure, it will generally take longer Room. Copies of such filing will also be Change to receive a fill from an Amex specialist available for inspection and copying at In its filing with the Commission, the than it will to receive a fill from a the principal office of the Amex. All CHX included statements concerning Nasdaq member that is subject to submissions should refer to File No. the purpose of and basis for the automatic execution. This does not, SR–Amex–2001–106 and should be proposed rule change and discussed any however, make trading pursuant to UTP submitted by August 29, 2002. comments it had received regarding the under the Plan impermissible under the proposed rule change. The text of these V. Conclusion Act and the rules and regulations statements may be examined at the thereunder. It is therefore ordered, pursuant to places specified in Item IV below. The In November of 2001, the Commission Section 19(b)(2) of the Act,29 that the CHX has prepared summaries, set forth approved the most recent amendment to in Sections A, B, and C below, of the the Plan.28 Among other things, the 12th proposed rule change (SR–Amex–2001– 106), as amended, is hereby approved most significant aspects of such Amendment extended UTP to all statements. Nasdaq securities, SmallCap as well as on an accelerated basis. NNM. The 12th Amendment also For the Commission, by the Division of A. Self-Regulatory Organization’s admitted the Amex as a participant. As Market Regulation, pursuant to delegated Statement of the Purpose of, and has been the case since the inception of authority.30 Statutory Basis for, the Proposed Rule the Plan, exchange participants are Change Margaret H. McFarland, required to provide telephone access to 1. Purpose Nasdaq market makers. This proposed Deputy Secretary. rule change, SR–Amex–2001–106, spells [FR Doc. 02–20068 Filed 8–7–02; 8:45 am] The proposed change to the CHX fee schedule would provide for continued out the rules that an Amex specialist BILLING CODE 8010–01–P assessment of a marketing fee, in an 27 17 CFR 240.11Ac1–1. amount equal to $.01 per share, 28 See Securities Exchange Act Release No. 45081 (November 19, 2001), 66 FR 59273 (November 27, 29 15 U.S.C. 78s(b)(2). 1 15 U.S.C. 78s(b)(1). 2001). 30 17 CFR 200.30–2(a)(12). 2 17 CFR 240.19b–4.
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applicable to transactions occurring on specialist trading a Subject Issue is the The CHX believes that this analysis or before December 31, 2002. The sole bearer of the often substantial costs mistakenly attributes the decline in marketing fee would apply only to associated with attracting order flow to CHX market maker activity to the ‘‘Subject Transactions’’ 3 in ‘‘Subject the CHX, as well as the licensing fees imposition of the marketing fee. The Issues’’ 4 and would not be assessed if that the licensor of the product CHX believes that the decline is the specialist trading the Subject Issue imposes.7 CHX market makers attributable to other factors, including elected to forego collection of the participating in transactions in Subject significant competition for ETF order marketing fee. Issues, conversely, do not currently flow from other national market The CHX currently assesses a share any of these costs. The proposed participants and alternative trading marketing fee under a provision of the rule change would allow a specialist systems. According to the CHX, one CHX fee schedule that, by its terms, trading a Subject Issue to elect or alternative trading system has recently expires on July 31, 2002.5 Under the decline imposition of the marketing fee captured nearly a one-third market system currently in place, the CHX depending on whether the specialist share in the QQQ product, a market calculates, bills, and collects the believes it is appropriate for a part of the share higher than that sustained by the marketing fee and remits the proceeds to financial burden of trading the Subject QQQ listing market. Moreover, although the specialist firm trading the Subject Issue to be allocated among those the CHX acknowledges that imposition Issue. The specialist firm then trading the Subject Issue. The CHX of the marketing fee does increase a distributes the funds to order-sending anticipates that the proposed rule market maker’s cost of trading Subject firms in accordance with its payment- change will continue to provide Issues on the CHX, the CHX believes for-order flow arrangements relating to specialists trading Subject Issues with that the often significant costs the Subject Issue (and possibly also to sufficient incentive to continue their associated with the Subject Issues, market makers who contribute to market efforts to attract additional order flow including increasingly hefty license share growth in certain instances).6 The and increase market share. fees, amply justify asking the CHX remaining undistributed funds in excess members who trade the Subject Issues to 2. Statutory Basis of $1000 are refunded, on a quarterly share the costs of attracting the order basis, to the paying parties pro rata, in The CHX believes that the proposed flow and trading these popular products proportion to the fees they have paid. rule change is consistent with section on the CHX. The CHX notes that the proposed 6(b)(4) of the Act 8 in that it provides for III. Date of Effectiveness of the marketing fee provision does not differ the equitable allocation of reasonable Proposed Rule Change and Timing for from the previous versions, except that dues, fees and other charges among its Commission Action it would extend application of the members. The foregoing rule change establishes marketing fee through December 31, or changes a due, fee, or other CHX 2002. The CHX intends that the B. Self-Regulatory Organization’s charge and therefore has become continued imposition of the marketing Statement of Burden on Competition effective pursuant to section 19(B)(3)(A) fee will allocate equitably the financial The CHX believes that the proposed of the Act 9 burden of seeking order flow for Subject and Rule 19b–4(f)(2) rule change will not impose any burden thereunder.10 At any time within 60 Issues. According to the CHX, in the on competition that is not necessary or absence of the marketing fee the CHX days of the filing of the rule change, the appropriate in furtherance of the Commission may summarily abrogate purposes of the Act. 3 ‘‘Subject Transaction’’ means: (a) Any trade with the rule change if it appears to the a customer, whether the contra party is a specialist C. Self-Regulatory Organization’s Commission that such action is or a market maker, where the order is delivered to Statement on Comments Regarding the necessary or appropriate in the public the CHX via the MAX system or where interest, for the protection of investors, compensation is paid to induce the routing of the Proposed Rule Change Received From order to the CHX; or (b) any trade between a Members, Participants or Others or otherwise in furtherance of the specialist and a market maker in which the market purposes of the Act. maker is exercising rights under the market maker The CHX received one written entitlement rules. comment from a member in advance of IV. Solicitation of Comments 4 ‘‘Subject Issue’’ means any issue which the CHX Finance Committee meeting on Interested persons are invited to constitutes an exchange-traded fund and meets the submit written data, views and following two criteria: (a) Average daily share July 23, 2002. This letter from John P. volume in the issue exceeds 150,000 shares each Finnegan of Susquehanna Investment arguments concerning the foregoing, month during a consecutive two month period; and Group, a CHX market maker in the including whether the proposed rule (b) market maker share participation in the same Nasdaq 100 Index (or QQQ), noted that change is consistent with the Act. issue exceeds 5% for each month during the same Persons making written submissions two-month period. since imposition of the Marketing Fee 5 See Securities Exchange Act Release Nos. 44646 the number of CHX market makers should file six copies thereof with the (August 2, 2001), 66 FR 41641 (August 8, 2001) trading in exchange-traded funds Secretary, Securities and Exchange (announcing immediate effectiveness of the new (‘‘ETFs’’) has dropped from fifteen Commission, 450 Fifth Street, NW., marketing fee provision to the CHX fee schedule market makers to three market makers. Washington, DC 20549. Copies of the through December 31, 2001); 45282 (January 15, 2002), 67 FR 3517 (January 24, 2002) (extending Mr. Finnegan requested that the CHX submission, all subsequent program through June 30, 2002); and 46233 (July 19, reduce the amount of the marketing fee amendments, all written statements 2002), 67 FR 48960 (July 26, 2002) (extending significantly, to enable the CHX to ‘‘be with respect to the proposed rule program through July 31, 2002). competitive with other marketplaces.’’ change that are filed with the 6 See Securities Exchange Act Release No. 44646 Commission, and all written (August 2, 2001), 66 FR 41641 (August 8, 2001) (SR–CHX–2001–10) (describing potential 7 The marketing fee, under the rule change communications relating to the arrangements between specialists and market proposed herein, will be assessed only against proposed rule change between the makers). According to the CHX, no such exchange-traded fund products, which virtually Commission and any person, other than arrangements are currently in place. Conversation always have an associated licensing fee. Currently, those that may be withheld from the between Kathleen M. Boege, Associate General the marketing fee is assessed only against the Counsel, CHX, and Patrick M. Joyce, Special Nasdaq-100 Index exchange-traded fund, commonly Counsel, Division of Market Regulation, known as ‘‘QQQ.’’ 9 15 U.S.C. 78s(b)(3)(A). Commission, on July 31, 2002. 8 15 U.S.C. 78f(b)(4). 10 17 CFR 19b–4(f)(2).
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public in accordance with the II. Self-Regulatory Organization’s wholly owned subsidiary of Barclays provisions of 5 U.S.C. 552, will be Statement of the Purpose of, and Global Investors, N.A. (‘‘BGI’’). BGI is a available for inspection and copying at Statutory Basis for, the Proposed Rule wholly owned indirect subsidiary of the Commission’s Public Reference Change Barclays Bank PLC of the United 7 Room. Copies of the filing will also be In its filing with the Commission, the Kingdom. available for inspection and copying at self-regulatory organization included SEI Investments Distribution Co. (the the principal office of the CHX. All statements concerning the purpose of ‘‘Distributor’’), a Pennsylvania submissions should refer to File No. and basis for the proposed rule change. corporation and broker-dealer registered SR–CHX–2002–25 and should be The text of these statements may be under the Exchange Act, is the principal underwriter and distributor of Creation submitted by August 29, 2002. examined at the places specified in item IV below and is set forth in Sections A, Unit Aggregations (as defined below) of For the Commission, by the Division of B, and C below. iShares. The distributor is not affiliated Market Regulation, pursuant to delegated with the Exchange or the Advisor.8 authority.11 A. Self-Regulatory Organization’s The shares of the Fund are issued by Margaret H. McFarland, Statement of the Purpose of, and iShares, Inc., and are based on the Deputy Secretary. Statutory Basis for, the Proposed Rule Morgan Stanley Capital International Change [FR Doc. 02–20032 Filed 8–7–02; 8:45 am] (‘‘MSCI’’) Japan Index. iShares, Inc. is 1. Purpose an open-ended management investment BILLING CODE 8010–01–P company operating 22 separate The Exchange has adopted listing investment portfolios or ‘‘index funds.’’ standards applicable to ICUs, which the The MSCI Japan Index (the ‘‘Index’’) is SECURITIES AND EXCHANGE Exchange states are consistent with the COMMISSION intended to represent the Japanese listing criteria currently used by the market. The Index consists of stocks American Stock Exchange LLC traded primarily on the Tokyo Stock Release No. 34–46298; File No. SR–NYSE– (‘‘Amex’’) and other exchanges, and Exchange. As of July 16, 2002, the three 2002–27 trading standards pursuant to which the largest stocks in the Index were Toyota Exchange may trade ICUs on the Motor Corp., Sony Corp., and NTT Self-Regulatory Organizations; Notice 3 Exchange on a UTP basis. The DoCoMo Inc. The investment objective of Filing and Order Granting Exchange now proposes to trade the of the Fund is to seek investment results Fund on a UTP basis. The Fund has Accelerated Approval of a Proposed similar to the performance of the stock been listed and actively traded on the Rule Change by the New York Stock markets in Japan, as represented by the Amex since 1996 4 and trades on other Exchange, Inc. Relating to the iShares Index. The Fund uses a ‘‘passive,’’ or securities exchanges 5 and in the over- MSCI Japan Index Fund indexing, approach to attempt to the-counter market. The information produce investment results that August 1, 2002. below is intended to provide a approximate the investment Pursuant to section 19(b)(1) of the description of how the Fund was 6 performance of the Index. The Fund Securities Exchange Act of 1934, the created and is traded. Barclays Global Fund Advisors (the will normally invest at least 95% of its ‘‘1934 Act’’)1 and Rule 19b–4 total assets in stock that are represented 2 ‘‘Advisor’’ or ‘‘BGFA’’) is the investment thereunder, notice is hereby given that adviser to the Fund. The Advisor is in the Index, and will, at all times, on July 24, 2002, the New York Stock registered under the Investment invest at least 90% of its total assets in Exchange, Inc. (‘‘NYSE’’ or ‘‘Exchange’’) Advisers Act of 1940. The Adviser is a such stocks. The Fund will not hold all filed with the Securities and Exchange of the stocks that comprise the Index, Commission (‘‘SEC’’ or ‘‘Commission’’) 3 In 1996, the Commission approved Section but will attempt to hold a representative the proposed rule change as described 703.16 of the NYSE’s Listed Company Manual sampling of the securities in the Index in items I, II, and III below, which items (‘‘Manual’’), which sets forth the rules related to the in a technique known as ‘‘portfolio listing of ICUs. See Securities Exchange Act Release sampling.’’ iShares, Inc. will issue and have been prepared by the Exchange. No. 36923 (March 5, 1996), 61 FR 10410 (March 13, The Commission is publishing this 1996). In 2000, the Commission also approved the redeem the shares of the Fund only in notice to solicit comments on the Exchange’s generic listing standards for the listing aggregations of 600,000 shares (each and trading, or the trading pursuant to UTP, of ICUs proposed rule change from interested aggregation a ‘‘Creation Unit’’), which under Section 703.16 of the Manual and Exchange had an estimated value of persons and is approving the proposal Rule 1100. See Securities Exchange Act Release No. approximately $5 million as of January on an accelerated basis. 43679 (December 5, 2000), 65 FR 77949 (December 13, 2000). 1, 2002. On July 16, 2002, the NAV of Self-Regulatory Organization’s 4 The Fund and other MSCI funds similar in the Fund was $8.36, and the Fund Statement of the Terms of Substance of nature were formerly known as World Equity traded at a price of $8.25 per share. As Benchmark Securities (‘‘WEBS’’) and were the Proposed Rule Change approved for listing and trading on the Amex in of the same day, the Fund had total net 1996. See Securities Exchange Act Release No. assets of approximately $732,548,000 The NYSE proposes to trade, on an 36947 (March 8, 1996), 61 FR 10606 (March 14, and 87,600,000 shares outstanding. unlisted trading privileges (‘‘UTP’’) 1996) (‘‘Amex WEBS Approval Order’’). MSCI generally seeks to have 85% of basis, the iShares MSCI Japan Index 5 See, e.g., Securities Exchange Act Release No. the free float-adjusted market 39117 (September 22, 1997), 62 FR 50973 Fund (‘‘Fund’’), which is a type of (September 29, 1997) (approving the trading of capitalization of a country’s stock Investment Company Unit (‘‘ICU’’) and WEBS on a UTP basis on the Chicago Stock is considered an Exchange Traded Exchange, Inc.). 7 Telephone conversation between Janet M. (‘‘ETF’’). 6 Much of the information in this filing was taken Kissane, Office of General Counsel, NYSE, and from the Prospectus of iShares, Inc., dated as of Florence E. Harmon, Senior Special Counsel, January 1, 2002, as supplemented, and from the Division of Market Regulation (‘‘Division’’), Web sites of the Amex (www.Amex.com) and Commission on August 1, 2002. iShares (www.iShares.com.) Fund information 8 Telephone conversation between Janet M. 11 17 CFR 200.30–3(a)(12). relating to Net Asset Value (‘‘NAV’’), returns, Kissane, Office of General Counsel, NYSE, and 1 15 U.S.C. 78s(b)(1). dividends component stock holdings and the like Florence E. Harmonn, Senior Special Counsel, 2 17 CFR 240.19b–4. is updated on a daily basis of the Web sites. Division, Commission, on August 1, 2002.
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market reflected in the MSCI Index for disseminated every fifteen seconds 2. Statutory Basis such country. Thus, MSCI seeks to during regular Amex trading hours of balance the inclusiveness of an ‘‘all 9:30 a.m. to 4 p.m. Eastern Standard The Exchange believes that the share’’ index against the replicability of Time. The Value likely will not reflect proposed rule change is consistent with a ‘‘blue chip’’ index. The Index, as with the value of all securities included in section 6(b) of the Act 11 in general, and all of the MSCI indices, is market the Index. In addition, the Value will furthers the objectives of section 6(b)(5) capitalization weighted. The Index is not necessarily reflect the precise of the Act 12 in particular, in that it is calculated daily. The calculation composition of the current portfolio of designed to prevent fraudulent and method weights stocks in the index by securities held by the Fund at a manipulative acts and practices, to their beginning-of-period market particular moment. The Value promote just and equitable principles of capitalization. Shares prices area ‘‘swept disseminated during Amex trading trade, to remove impediments to, and clean’’ daily and adjusted for any rights hours should not be viewed as a real- perfect the mechanism of a free and issues, stock dividends, or splits. The time update of the NAV of the Fund, open market and, in general, to protect Index is calculated in local currency which is calculated only once a day. It investors and the public interest. and in U.S. dollars, without dividends is expected, however, that during the B. Self-Regulatory Organization’s and with gross dividends reinvested. trading day the Value will closely Statement on Burden on Competition Prices used to calculate the Index are approximate the value per share of the the official exchange closing prices. All portfolio of securities for the Fund The Exchange does not believe that prices are taken from the dominant except under unusual circumstances. the proposed rule change will impose exchange in the Japanese market. To The Exchange will distribute an any burden on competition that is not calculate the applicable foreign information circular to its members in necessary or appropriate in furtherance currency exchange rate, MSCI uses WM/ connection with the trading of the Fund. of the purposes of the Act. Reuters Closing Spot Rates. Under The circular will discuss the special exceptional circumstances, MSCI may characteristics and risks of trading this C. Self-Regulatory Organization’s elect to use an alternative exchange rate type of security. Specifically, the Statement on Comments on the for any country if the WM/Reuters rate circular, among other things, will Proposed Rule Change Received From is believed not to be representative for discuss what the Fund is, how it is Members, Participants or Others the given currency on a particular day. created and redeemed, the requirement The Index is calculated by MSCI for that members and member firms deliver The Exchange has neither solicited each trading day in the Japanese foreign a prospectus to investors purchasing nor received written comments on the exchange market based on official shares of the Fund prior to or proposed rule change. closing prices in such exchange market. concurrently with the confirmation of a III. Commission’s Findings and Order For each trading day, MSCI publicly 9 transaction, applicable Exchange rules, Granting Accelerated Approval of disseminates the Index value for the dissemination information, trading Proposed Rule Change previous day’s close. The Index is information and the applicability of reported periodically in major financial suitability rules. The Exchange also The Commission finds that the publications and also is available intends to utilize its existing proposed rule change is consistent with through vendors of financial surveillance procedures to monitor the requirements of the Act and the information. iShares, Inc. will cause to trading in the Fund, including rules and regulations thereunder be made available daily the names and surveilling specialist compliance with applicable to a national securities required number of shares of each of the Exchange Rule 460.10, which exchange, and, in particular, with the securities to be deposited in connection contemplates specialists engaging in requirements of Section 6(b)(5).13 The with the issuance of the Fund shares in transactions with iShares, Inc. under Commission believes that the Creation Unit size aggregations for the certain circumstances.10 Exchange’s proposal to trade the Fund fund, as well as information relating to pursuant to UTP will provide investors the required cash payment representing, 9 The Commission has granted the Fund an with a convenient way of participating in part, the amount of accrued exemption from section 24(d) of the Investment in foreign securities markets and can Company Act of 1940. See Investment Company dividends for the Fund. This produce added benefits to investors information will be made available to Act Release No. 25623 (June 25, 2002). Thus, the Exchange, in an Informational Circular to Exchange through the increased competition the Fund Advisor to any National members and member organizations, will inform between other markets trading the Securities Clearing Corporation members and member organizations, prior to produce. Specifically, the Commission commencement of trading, of the prospectus or (‘‘NSCC’’) participant requesting such believes that NYSE’s proposal should information. In addition, other investors Product Description delivery requirements applicable to iShares. Any product description used help provide investors with increased can request such information directly in reliance on the Section 24(d) exemptive order flexibility in satisfying their investment from the Fund distributor. The NAV for will comply with all representations made and all needs, by allowing them to purchase the fund will be calcualted directly by conditions contained in the Application for the Order. Telephone conversation between Janet M. and sell at negotiated prices throughout the Fund administrator, PFPC, Inc. The the trading day securities that replicate NAV will also be made available to the Kissane, Office of General Counsel, NYSE, and Florence E. Harmon, Senior Special Counsel, the performance of several portfolios of public from the Fund distributor by Division, Commission, on August 1, 2002. means of a toll-free number and to 10 The Exchange represents that Exchange Rule of 10% of the outstanding issue of the ETF shares, NSCC participants through data made 460.10 generally precludes certain business provided, however, that a specialist registered in a available from the NSCC. relationships between an issuer and the specialist security issued by an investment company may To provide current Fund pricing in the issuer’s securities. The Exchange further purchase and redeem the investment company unit represents that exceptions in the Rule permit or securities that can be subdivided or converted information, Amex disseminates specialists in ETF shares, to enter into Creation Unit into such unit, from the investment company as through the facilities of the transactions through the Distributor to facilitate the appropriate to facilitate the maintenance of a fair Consolidated Tape Association as maintenance of a fair and orderly market. A and orderly market in the subject security. specialist Creation Unit transaction may only be 11 ‘‘indicative optimized portfolio value’’ effected on the same terms and conditions as any 14 U.S.C. 78f(b). (the ‘‘Value’’) for the Fund, as calculated other investor, and only at the NAV of the ETF 12 15 U.S.C. 78f(b)(5). by Bloomberg, L.P. The Value will be shares. A specialist may acquire a position in excess 13 15 U.S.C. 78f(b)(5).
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stock,14 and by increasing the end management investment company contain specific listing and delisting availability of the Fund as an shares to purchasing or redeeming criteria to accommodate the trading of investment tool. Accordingly, as securities of the fund based on the net Units, will apply to the trading of the discussed below, the rule proposal is asset value of the securities held by the Fund.21 These criteria should help to consistent with the requirements of fund as designated by the board of ensure that a minimum level of liquidity Section 6(b)(5) that Exchange rules directors. Thus, the Fund should allow will exist in each iShares series to allow facilitate transactions in securities, investors to respond quickly to market for the maintenance of fair and orderly remove impediments to, and perfect the changes through intra-day trading markets. The delisting criteria allow the mechanism of a free and open market opportunities, expand the opportunity Exchange to consider the suspension of and a national market system, and, in for retail investors to engage in hedging trading and the delisting of a series of general, protect investors and the public strategies, and reduce transaction costs Units, including suspending trading in interest, and is not designed to permit for trading a portfolio of stocks. The the Fund traded on the Exchange unfair discrimination between Commission notes that, under the pursuant to UTP, if an event were to customers, issuers, brokers, or dealers.15 proposed rule change, the benefits of the occur that made further dealings in such As the Commission noted in greater Fund will now be available to investors securities inadvisable. This will give the detail in the order approving iShares trading on NYSE, and believes that the Exchange flexibility to suspend training (formally ‘‘World Equity Benchmark addition of their trading on NYSE in the Fund if circumstances warrant Securities’’ or ‘‘WEBS’’) for listing and pursuant to UTP could produce added such action. Accordingly, the trading on Amex,16 the estimated cost of benefits to investors through the Commission believes that NYSE’s equity an individual iShares, such as the Fund, increased competition. rules in general, and Section 703.16 of should make it attractive to individual The Commission notes that, although the Manual and Exchange Rule 1100 in retail investors who wish to hold a the value of the Fund is based on the particular, provide adequate safeguards security replicating the performance of value of the securities and cash held in to prevent manipulative acts and a portfolio of foreign stocks. The the Fund, Fund shares are not leveraged practices and to protect investors and Commission also notes that the Fund instruments. Fund shares are essentially the public interest.22 should provide investors with several equity securities that represent an advantages over standard open-end interest in a portfolio of stocks designed B. Disclosure investment companies; in particular, to reflect substantially the applicable The Commission believes that NYSE’s investors can trade the Fund MSCI Index. Accordingly, it is proposal should provide for adequate continuously throughout the day in appropriate to regulate the Fund in a disclosure to investors relating to the secondary markets at negotiated manner similar to other equity terms, characteristics, and risks of 17 prices. In contrast, Investment securities. Nonetheless, the Commission trading the Fund. All investors in the Company Act of 1940 (‘‘Investment believes that the unique nature of the Fund, including those purchasing the 18 Company Act’’) Rule 22c–1 limits Fund raises certain disclosure, trading, Fund on NYSE pursuant to UTP, will holders and prospectus holders of open- and other issues that need to be receive a prospectus or a Product addressed. The remainder of this section Description 23 regarding the product. 14 The Commission notes that unlike typical addresses these issues, although they open-end investment companies, where investors The prospectus or Product Description are discussed in greater detail in the will address the special characteristics have the right to redeem their fund shares on a Amex WEBS Approval Order, where the daily basis, investors in the Fund can redeem them of the Fund, including a statement Commission initially approved WEBS in creation unit size aggregations only. regarding their redeemability and 15 for trading as a new product. In approving this rule, the Commission notes method of creation, and that Fund that it has considered the proposed rule’s impact on efficiency, competition, and capital formation. 15 A. Trading of the Fund on NYSE shares are not individually redeemable. U.S.C. 78c(f). Pursuant to UTP The Commission notes that the 16 See Amex WEBS Approval Order, supra note The Commission notes that, pursuant Exchange has represented that it will 4. The Commission hereby incorporates by 19 also distribute an information circular to reference the discussion and rational for approving to Rule 12f–5 under the Act, prior to WEBS provided in the Amex WEBS Approval trading a particular class or type of all NYSE members prior to the Order. security pursuant to UTP, NYSE must commencement of trading of the Fund 17 The Commission believes that the Fund will have listing standards comparable to explaining the unique characteristics not trade at a material discount or premium in those of the primary market on which and risks of the Fund. The circular will relation to their NAV, because of potential arbitrage opportunities. See Amex WEBS Approval Order, the security is listed. The Commission note, for example, Exchange member supra note 4. The mere potential for arbitrage finds that adequate rules and responsibilities, including that, before should keep the market price of Fund shares procedures exist to govern the trading of an Exchange member undertakes to comparable to their NAVs; therefore, arbitrage the Fund on NYSE, pursuant to UTP. recommend a transaction in the Fund, it activity likely will not be significant. In addition, the Fund will redeem in-kind, thereby enabling the Fund shares will be deemed equity should make a determination that it is Fund to invest virtually all of its assets in securities securities subject to NYSE’s rules in compliance with applicable rules of comprising the MSCI Index. governing the trading of equity other self-regulatory organizations of 18 17 CFR 270.22c–1. Investment Company Act securities. Accordingly, the Exchange’s which it is a member, including Rule 22c–1 generally provides that a registered existing general rules that currently investment company issuing a redeemable security, its principal underwriter, and dealers in that apply to the trading of equity securities 21 The Commission notes the listing and delisting security may sell, redeem, or repurchase the will also apply to the Fund. In addition, criteria is similar to those adopted by Amex to trade security only at a price based on the NAV next Section 703.16 of the NYSE’s Manual WEBS/iShares. 22 computed after receipt of an investor’s request to and Exchange Rule 1100 20 which The Commission also believes that the purchase, redeem, or resell. The NAV of an open- proposed rule change should help protect investors end management investment company generally is and the public interest, and help perfect the computed once daily Monday to Friday as 19 17 CFR 240.12f–5. mechanisms of a national market system, in that it designated by the investment company’s board of 20 The Commission approval generic rules for the will allow for the trading of the Fund on NYSE directors. The Commission granted WEBS an listing and trading of ICUs on NYSE in 2000. See pursuant to UTP, making the Fund more broadly exemption from this provision to allow them to Securities Exchange Act Release No. 43679 available to the investing public. trade in the secondary market at negotiated prices. (December 5, 2000), 65 FR 77949 (December 13, 23 See Investment Company Release No. 25623 See Amex WEBS Approval Order, supra note 4. 2000). (June 25, 2002).
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suitability rules.24 The circular will also concerns associated with specialists thirtieth day after the date of address members’ responsibility to purchasing and redeeming Creation publication of notice thereof in the deliver a prospectus or product Units. The Exchange has represented Federal Register pursuant to section description to all investors purchasing that its surveillance procedures should 19(b)(2) of the Act.29 The Commission the Fund, as well as highlight the allow it to identify situations where finds that this proposal is similar to characteristics of the Fund, including specialists purchase or redeem Creation several approved instruments currently that Fund shares are only redeemable in Units to ensure compliance with NYSE listed and traded on the Exchange. Creation Unit size aggregation.25 Rule 460.10, which requires that such Accordingly, the Commission finds that purchases or redemptions facilitate the C. Dissemination of the Fund Portfolio the listing and trading of the Fund on maintenance of a fair and orderly Information a UTP basis is consistent with the Act, market in the subject security.27 and promote just and equitable The Commission believes that since E. Specialists principles of trade, foster cooperation Amex is disseminating the Values for and coordination with persons engaged the various WEBS/iShares series, The Commission finds that it is in regulating, clearing, settling, investors will be provided with timely consistent with the Act to allow a processing information with respect to, and useful information concerning the specialist registered in a security issued and facilitating transactions in value of iShares, on a per iShares basis. by an Investment Company to purchase securities, and, in general, protect The Commission notes that the or redeem the listed security from the investors and the public interest.30 The information is disseminated through issuer as appropriate to facilitate the Commission further finds that facilities of the CTA and reflects the maintenance of a fair and orderly accelerated approval will enable the currently available information market in that security. The Exchange to begin listing and trading concerning the value of the assets Commission believes that such market the Fund on the Exchange on a UTP comprising the deposit securities. The activities should enhance liquidity in basis immediately. The Commission information is disseminated every such security and facilitate a specialist’s therefore approves this proposal on an fifteen seconds during the hours of 9:30 market making responsibilities. In accelerated basis. a.m. to 4 p.m. Eastern Standard Time addition, because the specialist only and will be available to all investors, will be able to purchase and redeem IV. Solicitation of Comments irrespective of where the transaction is Fund shares on the same terms and Interested persons are invited to executed. In addition, because the value conditions as any other investor (and submit written data, views and is expected to closely track the only at the NAV), and Creation arguments concerning the foregoing, applicable iShares series, the transactions must occur through the including whether the proposed rule Commission believes the Values will distributor and not directly with the change is consistent with the Act. provide investors with adequate issuer, the Commission believes that Persons making written submissions information to determine the intra-day concerns regarding potential abuse are should file six copies thereof with the value of a given iShares series, such as minimized. As noted above, the 26 Secretary, Securities and Exchange the Fund. In the Amex WEBS Exchange’s surveillance procedures also Commission, 450 Fifth Street NW., Approval Order, the Commission noted should ensure that such purchases are Washington, DC 20549. Copies of the that it expected Amex to monitor the only for the purpose of maintaining fair submission, all subsequent disseminated Value, and if Amex and orderly markets, and not for any amendments, all written statements determines that the Value does not other improper or speculative purposes. with respect to the proposed rule closely track applicable WEBS/iShares Finally, the Commission notes that its change that are filed with the series, it will arrange to disseminate an approval of this aspect of the Exchange’s Commission, and all written adequate alternative. rule proposal does not address any other communications relating to the requirements or obligations under the D. Surveillance proposed rule change between the federal securities laws that may be Commission and any person, other than The Commission notes that NYSE has applicable.28 submitted surveillance procedures for those that may be withheld from the the Fund and believes that those F. Accelerated Approval public in accordance with the procedures are adequate to address After careful review, the Commission provisions of 5 U.S.C. 552, will be concerns associated with the listing and finds good cause for approving the available for inspection and copying in trading of such securities, including any proposed rule change prior to the the Commission’s Public Reference Room. 24 Telephone conversation between Janet M. 27 The Commission notes that, in the Amex WEBS Copies of such filing will also be Kissane, Office of General Counsel, NYSE, and Approval Order, it discussed the concerns raised available for inspection and copying at Sapna C. Patel, Attorney, Division, Commission, on when a broker-dealer is involved in the the principal office of the NYSE. All July 29, 2002. development, maintenance, and calculation of a submissions should refer to the file 25 The Commission notes that the information stock index upon which a product such as WEBS circular should also discuss exemptive relief is based. Adequate procedures to prevent the number SR–NYSE–2002–27 and should granted by the Commission from certain rules under misuse of material, non-public information be submitted by August 29, 2002. the Act. The applicable rules are: Rule 10a–1; Rule regarding changes to component stocks in an MSCI 10b–10; Rule 14e–5; Rule 10b–17; Rule 11d1–2; Index have been adopted and should help to For the Commission, by the Division of Rules 15c1–5 and 15c1–6; and Rules 101 and 102 address concerns raised by Morgan Stanley’s Market Regulation, pursuant to delegated of Regulation M under the Exchange Act. involvement in the management of the Indices. See authority.31 26 In addition, the Amex WEBS Approval Order also the ‘‘firewall’’ requirements under Section Margaret H. McFarland, 703.16 of the NYSE’s Manual. states that the statement of additional information Deputy Secretary. (‘‘SAI’’) to the preliminary prospectus states that 28 The Commission notes that with respect to each series will calculate its NAV per share at the iShares, broker-dealers and other persons are [FR Doc. 02–20066 Filed 8–7–02; 8:45 am] close of the regular trading session for the Amex on cautioned in the prospectus and/or the Fund’s SAI BILLING CODE 8010–01–M each day that the Amex is open for business. NAV that some activities on their part may, depending generally will be based on the last quoted sales on the circumstances, result in their being deemed price on the exchange where the security primarily statutory underwriters and subject them to the 29 15 U.S.C. 78s(b)(2). is traded. See Amex WEBS Approval Order, supra prospectus delivery and liability provision of the 30 15 U.S.C. 78f(b)(5). note 4. Securities Act of 1933. 31 17 CFR 200.30–3(a)(12).
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SMALL BUSINESS ADMINISTRATION Percent DEPARTMENT OF STATE [Public Notice 4043] [Declaration of Disaster #3424, Amdt. 1] For Physical Damage: Homeowners with Credit Avail- Overseas Buildings Operations; State of Colorado able Elsewhere ...... 6.750 Industry Advisory Panel: Meeting Homeowners without Credit Notice In accordance with information Available Elsewhere ...... 3.375 received from the Federal Emergency Businesses with Credit Avail- The Industry Advisory Panel of Management Agency dated July 29, able Elsewhere ...... 7.000 Overseas Buildings Operations will 2002, the above numbered declaration is Businesses and Non-Profit Or- meet on Thursday, September 12, 2002 hereby amended to include Larimer, ganizations without Credit from 9:45 until 11:45 a.m. and 1 p.m. Available Elsewhere ...... 3.500 Jackson and Weld Counties in the State until 3:30 p.m. Eastern Standard Time. of Colorado as disaster areas due to Others (Including Non-Profit Or- ganizations) with Credit Avail- The meeting will be held in conference damages caused by wildfires occurring able Elsewhere ...... 6.375 room 1105 at the Department of State, on April 23, 2002 and continuing. For Economic Injury: 2201 C Street NW. (entrance on 23rd In addition, applications for economic Businesses and Small Agricul- Street), Washington, DC. The purpose of injury loans from small businesses tural Cooperatives without the meeting is to discuss new located in the following contiguous Credit Available Elsewhere ... 3.500 technologies and successful counties may be filed until the specified management practices for design, date at the previously designated The number assigned to this disaster construction, security, property location: Albany and Laramie Counties for physical damage is 343611 and for management, emergency operations, the in Wyoming; and Kimball County in economic injury the number is 9Q8700. environment, and planning and Nebraska. All other counties contiguous development. An agenda will be to the above named primary counties (Catalog of Federal Domestic Assistance available prior to the meeting. have been previously declared. Program Nos. 59002 and 59008). The meeting will be open to the All other information remains the Dated: August 1, 2002. public, however, seating is limited. same, i.e., the deadline for filing Herbert L. Mitchell, Prior notification and a valid photo ID applications for physical damage is Associate Administrator for Disaster are mandatory for entry into the August 18, 2002, and for economic Assistance. building. Members of the public who injury the deadline is March 19, 2003. [FR Doc. 02–20094 Filed 8–7–02; 8:45 am] plan to attend must notify Luigina (Gina) Pinzino at 703/875–7109 before (Catalog of Federal Domestic Assistance BILLING CODE 8025–01–P Program Nos. 59002 and 59008) Wednesday, September 4th, to provide Dated: August 2, 2002. date of birth, Social Security number, and telephone number. Herbert L. Mitchell, SMALL BUSINESS ADMINISTRATION FOR FURTHER INFORMATION CONTACT: Associate Administrator for Disaster Assistance. [Declaration of Disaster #3428, Amdt. 7] Luigina (Gina) Pinzino 703/875–7109. [FR Doc. 02–20095 Filed 8–7–02; 8:45 am] Dated: July 30, 2002. BILLING CODE 8025–01–P State of Texas Charles E. Williams, Director/Chief Operating Officer, Overseas In accordance with a notice received Buildings Operations, Department of State. SMALL BUSINESS ADMINISTRATION from the Federal Emergency [FR Doc. 02–20089 Filed 8–7–02; 8:45 am] Management Agency dated July 29, BILLING CODE 4710–24–P [Declaration of Disaster #3436] 2002, the above numbered declaration is hereby amended to include Calhoun Federated States of Micronesia County in the State of Texas as a OFFICE OF THE UNITED STATES disaster area due to damages caused by TRADE REPRESENTATIVE As a result of the President’s major severe storms and flooding occurring on disaster declaration for Public June 29, 2002 and continuing. 2002–2003 Allocations of the Tariff-rate Assistance on July 11, 2002, and All other counties contiguous to the Quotas for Raw Cane Sugar, Refined Amendment 1 adding Individual Sugar, and Sugar-Containing Products Assistance on July 26, 2002, I find that above named primary counties have the Federated States of Micronesia been previously declared. AGENCY: Office of the United States constitute a disaster area due to All other information remains the Trade Representative. damages caused by Tropical Storm same, i.e., the deadline for filing ACTION: Notice. Chata’an, including flooding, mudslides applications for physical damage is and landslides occurring on July 2–4, September 2, 2002, and for economic SUMMARY: The Office of the United 2002. Applications for loans for injury the deadline is April 4, 2003. States Trade Representative (USTR) is physical damage as a result of this providing notice of the country-by- disaster may be filed until the close of (Catalog of Federal Domestic Assistance country allocations of the in-quota business on September 24, 2002 and for Program Nos. 59002 and 59008) quantity of the tariff-rate quotas for economic injury until the close of Dated: August 2, 2002. imported raw cane sugar, refined sugar, business on April 28, 2003 at the Herbert L. Mitchell, and sugar-containing products for the address listed below or other locally Associate Administrator for Disaster period that begins October 1, 2002 and announced locations: Small Business Assistance. ends September 30, 2003. The allocation Administration, Disaster Area 4 Office, [FR Doc. 02–20093 Filed 8–7–02; 8:45 am] for Mexico provided for under the North American Free Trade Agreement will be PO Box 13795, Sacramento, CA 95853– BILLING CODE 8025–01–P 4795. made at a later date. The interest rates are: EFFECTIVE DATE: October 1, 2002.
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ADDRESSES: Inquiries may be mailed or FY 2003 Conversion factor: 1 metric ton = delivered to Sharon Sydow, Director of Country Allocation 1.10231125 short tons. Agricultural Trade Policy, Office of Allen F. Johnson, Agricultural Affairs, Office of the United Nicaragua ...... 22,114 States Trade Representative, 600 17th Panama ...... 30,538 Chief Agriculture Negotiator. Street, NW., Washington, DC 20508. Papua New Guinea ...... 7,258 [FR Doc. 02–20008 Filed 8–7–02; 8:45 am] Paraguay ...... 7,258 FOR FURTHER INFORMATION CONTACT: BILLING CODE 3190–01–P Peru ...... 43,175 Sharon Sydow, Office of Agricultural Philippines ...... 142,160 Affairs, 202–395–6127. South Africa ...... 24,220 SUPPLEMENTARY INFORMATION: Pursuant St. Kitts & Nevis ...... 7,258 DEPARTMENT OF TRANSPORTATION to Additional U.S. Note 5 to chapter 17 Swaziland ...... 16,849 of the Harmonized Tariff Schedule of Taiwan ...... 12,636 [STB Finance Docket No. 34216] the United States (HTS), the United Thailand ...... 14,743 States maintains tariff-rate quotas for Trinidad-Tobago ...... 7,371 South Dakota Railroad Authority– imports of raw cane and refined sugar. Uruguay ...... 7,258 Acquisition Exemption–Rutland Line, Pursuant to additional U.S. Note 8 to Zimbabwe ...... 12,636 Inc. chapter 17 of the HTS, the United States also maintains a tariff-rate quota for These allocations are based on the South Dakota Railroad Authority certain sugar-containing products. countries’ historical trade to the United (SDRA), a noncarrier, has filed a verified Section 404(d)(3) of the Uruguay States. The allocations of the raw cane notice of exemption under 49 CFR Round Agreements Act (19 U.S.C. sugar tariff-rate quota to countries that 1150.31 to acquire approximately 22.40 3601(d)(3)) authorizes the President to miles of track from Rutland Line, Inc. in allocate the in-quota quantity of a tariff- are net importers of sugar are conditioned on receipt of the Sargent County, ND. The line to be rate quota for any agricultural product acquired is located between milepost appropriate verifications of origin. among supplying countries or customs 65.57 at the South Dakota/North Dakota areas. The President delegated this This allocation includes the following border and milepost 43.17, including authority to the United States Trade minimum quota-holding countries: approximately 275 feet of track 1 at Representative under paragraph (3) of Congo, Cote d’ Ivoire, Gabon, Haiti, Geneseo Junction, ND. SDRA states that Presidential Proclamation No. 6763 (60 Madagascar, Papua New Guinea, an operator for the line has not yet been FR 1007). Paraguay, St. Kitts & Nevis, and determined. SDRA certifies that its The in-quota quantity of the tariff-rate Uruguay. projected annual revenues will not quota for raw cane sugar for the period The in-quota quantity of the tariff-rate exceed those that would qualify it as a October 1, 2002–September 30, 2003, Class III rail carrier. has been established by the Secretary of quota for refined sugar for the period SDRA reports that an agreement for Agriculture at 1,117,195 metric tons, October 1, 2002–September 30, 2003, the transaction was reached and the raw value (1,231,497 short tons), the has been established by the Secretary of transaction was consummated on June minimum to which the United States is Agriculture at 37,000 metric tons, raw 4, 2002. The effective date of the committed under the Uruguay Round value (40,786 short tons), of which the exemption was July 16, 2002 (7 days Agreement. The quantity of 1,117,195 Secretary has reserved 16,656 metric after the exemption was filed). metric tons, raw value is being allocated tons (18,360 short tons) for specialty to the following countries: sugars. Of the quantity not reserved for If the notice contains false or specialty sugars, a total of 10,300 metric misleading information, the exemption is void ab initio. Petitions to revoke the Country FY 2003 tons (11,354 short tons) is being Allocation allocated to Canada and 2,954 metric exemption under 49 U.S.C. 10502(d) may be filed at any time. The filing of Argentina ...... 45,281 tons (3,256 short tons) is being allocated to Mexico. The remaining 7,090 metric a petition to revoke will not Australia ...... 87,402 automatically stay the transaction. Barbados ...... 7,371 tons (7,815 short tons) of the in-quota Belize ...... 11,583 quantity not reserved for specialty An original and 10 copies of all Bolivia ...... 8,424 sugars may be supplied by any country pleadings, referring to STB Finance Brazil ...... 152,691 on a first-come, first-served basis, Docket No. 34216, must be filed with Colombia ...... 25,273 subject to any other provision of law. the Surface Transportation Board, 1925 Congo ...... 7,258 The 16,656 metric tons(18,360 short K Street NW., Washington, DC 20423– Cote d’ Ivoire ...... 7,258 0001. In addition, a copy of each Costa Rica ...... 15,796 tons) reserved for specialty sugars is also not being allocated among pleading must be served on Bruce E. Dominican Republic ...... 185,335 Lindholm, Program Manager, 700 East Ecuador ...... 11,583 supplying countries and is available on Broadway Avenue, Pierre, SD 57501. El Salvador ...... 27,379 a first-come, first-served basis, subject to Fiji ...... 9,477 any other provision of law. Board decisions and notices are Gabon ...... 7,258 available on our website at ‘‘http:// Guatemala ...... 50,546 With respect to the tariff-rate quota for www.stb.dot.gov.’’ Guyana ...... 12,636 certain sugar-containing products Decided: July 30, 2002. Haiti ...... 7,258 maintained pursuant to additional U.S. Honduras ...... 10,530 Note 8 to chapter 17 of the HTS, 59,250 1 By letter filed July 22, 2002, SDRA requested India ...... 8,424 metric tons (65,312 short tons) of sugar- modification of the notice of the exemption to Jamaica ...... 11,583 containing products is being allocated to include an additional 275 feet of track beyond Madagascar ...... 7,258 Canada. The remaining in-quota milepost 43.17 (Geneseo Joint Section), so that a Malawi ...... 10,530 future operator of the line may be able to Mauritius ...... 12,636 quantity for this tariff-rate quota is interchange with another carrier. SDRA indicates Mexico ...... 7,258 available to other countries on a first- that an amendment to the purchase agreement will Mozambique ...... 13,690 come, first-served basis. be executed to effect the change.
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By the Board, David M. Konschnik, By the Board, David M. Konschnik, The following paragraph applies to all Director, Office of Proceedings. Director, Office of Proceedings. of the collections of information covered Vernon A. Williams, Decided: July 29, 2002. by this notice: Secretary. Vernon A. Williams, An agency may not conduct or [FR Doc. 02–19793 Filed 8–7–02; 8:45 am] Secretary. sponsor, and a person is not required to BILLING CODE 4915–00–P [FR Doc. 02–19528 Filed 8–7–02; 8:45 am] respond to, a collection of information BILLING CODE 4915–00–P unless the collection of information displays a valid OMB control number. DEPARTMENT OF TRANSPORTATION Books or records relating to a collection DEPARTMENT OF THE TREASURY of information must be retained as long Surface Transportation Board as their contents may become material Internal Revenue Service in the administration of any internal [STB Finance Docket No. 34228] revenue law. Generally, tax returns and Proposed Collection; Comment tax return information are confidential, S&L Railroad, LLC—Acquisition and Request for Form 8874 as required by 26 U.S.C. 6103. Operation Exemption—Progress Rail AGENCY: Internal Revenue Service (IRS), Request for Comments: Comments Services Corporation d/b/a Sidney & submitted in response to this notice will Lowe Railroad Treasury. ACTION: Notice and request for be summarized and/or included in the S&L Railroad, LLC (S&L), a noncarrier comments. request for OMB approval. All and wholly owned subsidiary of comments will become a matter of Progress Rail Services Corporation SUMMARY: The Department of the public record. Comments are invited on: doing business as Sidney & Lowe Treasury, as part of its continuing effort (a) Whether the collection of Railroad (PRSC), has filed a notice of to reduce paperwork and respondent information is necessary for the proper exemption under 49 CFR 1150.31 to burden, invites the general public and performance of the functions of the acquire from PRSC and operate other Federal agencies to take this agency, including whether the approximately 11 miles of rail line and opportunity to comment on proposed information shall have practical utility; connecting track known as the Sidney & and/or continuing information (b) the accuracy of the agency’s estimate Lowe Railroad Line, extending from collections, as required by the of the burden of the collection of milepost 0 at Huntsman, NE, where it Paperwork Reduction Act of 1995, information; (c) ways to enhance the connects with a rail line of The Public Law 104–13 (44 U.S.C. quality, utility, and clarity of the Burlington Northern and Santa Fe 3506(c)(2)(A)). Currently, the IRS is information to be collected; (d) ways to Railway Company, to milepost 10 at soliciting comments concerning Form minimize the burden of the collection of Brownson, NE, where it connects with 8874, New Markets Credit. information on respondents, including a rail line of Union Pacific Railroad DATES: Written comments should be through the use of automated collection Company. received on or before October 7, 2002 to techniques or other forms of information According to S&L, an agreement has be assured of consideration. technology; and (e) estimates of capital been reached between S&L and PRSC ADDRESSES: Direct all written comments or start-up costs and costs of operation, regarding the sale and operation of the to Glenn P. Kirkland, Internal Revenue maintenance, and purchase of services rail line. S&L certifies that its projected Service, room 6411, 1111 Constitution to provide information. annual revenues as a result of this Avenue NW., Washington, DC 20224. Approved: August 1, 2002. transaction do not exceed those that FOR FURTHER INFORMATION CONTACT: Carol Savage, would qualify it as a Class III rail Requests for additional information or Program Analyst. carrier, and that such revenues will not copies of the form and instructions [FR Doc. 02–20115 Filed 8–7–02; 8:45 am] exceed $5 million annually. should be directed to Carol Savage, BILLING CODE 4830–01–P The transaction was scheduled to be (202) 622–3945, or through the internet consummated on or shortly after July ([email protected].), Internal 22, 2002, the effective date of the Revenue Service, room 6407, 1111 DEPARTMENT OF THE TREASURY exemption (7 days after the exemption Constitution Avenue NW., Washington, was filed). DC 20224. Internal Revenue Service If the verified notice contains false or SUPPLEMENTARY INFORMATION: misleading information, the exemption Title: New Markets Credit. [REG–253578–96] is void ab initio. Petitions to revoke the OMB Number: To be assigned later. exemption under 49 U.S.C. 10502(d) Form Number: Form 8874. Proposed Collection; Comment may be filed at any time. The filing of Abstract: Investors to claim a credit Request for Regulation Project a petition to revoke will not for equity investments made in automatically stay the transaction. Qualified Community Development AGENCY: Internal Revenue Service (IRS), An original and 10 copies of all Entities use Form 8874. Treasury. pleadings, referring to STB Finance Current Actions: This is a new ACTION: Notice and request for Docket No. 34228 must be filed with the collection of information. comments. Surface Transportation Board, 1925 K Type of Review: New OMB approval. Street, NW., Washington, DC 20423– Affected Public: Individuals or SUMMARY: The Department of the 0001. In addition, a copy of each households, and business or other for- Treasury, as part of its continuing effort pleading must be served on J. Duane profit organizations. to reduce paperwork and respondent Cantrell, Progress Rail Services Estimated Number of Respondents: burden, invites the general public and Corporation, 1600 Progress Drive, 10,000. other Federal agencies to take this Albertville, AL 35950. Estimated Time Per Respondent: 10 opportunity to comment on proposed Board decisions and notices are hours, 5 minutes. and/or continuing information available on our website at ‘‘http:// Estimated Total Annual Burden collections, as required by the WWW.STB.DOT.GOV.’’ Hours: 100,900. Paperwork Reduction Act of 1995,
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Public Law 104–13 (44 U.S.C. respond to, a collection of information Services offered by the Consortium 3506(c)(2)(A)). Currently, the IRS is unless the collection of information participants through a web page that soliciting comments concerning an displays a valid OMB control number. will be hosted at irs.gov with links from existing notice of proposed rulemaking, Books or records relating to a collection firstgov.gov. These links to the REG–253578–96, Health Insurance of information must be retained as long Consortium will replace the current Portability for Group Health Plans; and as their contents may become material heading on IRS.gov for ‘‘Free Internet temporary regulation (TD 8716) Interim in the administration of any internal Filing Opportunities’’. Under the Rules for Health Insurance Portability revenue law. Generally, tax returns and Agreement and during its term, the IRS for Group Health Plans (§§ 54.9801–3T, tax return information are confidential, will not compete with the Consortium 54.9801–4T, 54.9801–5T, and 54.9801– as required by 26 U.S.C. 6103. in providing free, online tax return 6T). Request for Comments: Comments preparation and filing services to DATES: Written comments should be submitted in response to this notice will taxpayers. The IRS is soliciting received on or before October 7, 2002 to be summarized and/or included in the comments on this proposed Agreement request for OMB approval. All be assured of consideration. and complimentary or competitive comments will become a matter of ADDRESSES: Direct all written comments offers from alternative consortia to public record. Comments are invited on: to Glenn P. Kirkland, Internal Revenue provide Free Services to taxpayers. (a) Whether the collection of Service, room 6411, 1111 Constitution During this process other Federal Avenue NW., Washington, DC 20224. information is necessary for the proper performance of the functions of the agencies will be consulted. FOR FURTHER INFORMATION CONTACT: agency, including whether the DATES: Requests for additional information or Comments or proposals must be information shall have practical utility; submitted by September 4, 2002. copies of regulations should be directed (b) the accuracy of the agency’s estimate to Carol Savage, (202) 622–3945, or of the burden of the collection of ADDRESSES: Send letters with comments through the internet information; (c) ways to enhance the and suggestions on the proposed ([email protected].), Internal quality, utility, and clarity of the Agreement, or other proposals, to Paul Revenue Service, room 6407, 1111 information to be collected; (d) ways to J. Mamo, 1111 Constitution Avenue, Constitution Avenue NW., Washington, minimize the burden of the collection of Room 2403, Washington DC. 20224 or to DC 20224. information on respondents, including the IRS Internet address: SUPPLEMENTARY INFORMATION: Title: through the use of automated collection [email protected]. Notice of Proposed Rulemaking, Health techniques or other forms of information SUPPLEMENTARY INFORMATION: Insurance Portability for Group Health technology; and (e) estimates of capital The IRS Plans, and temporary regulation, Interim or start-up costs and costs of operation, plans to enter into an Agreement (the Rules for Health Insurance Portability maintenance, and purchase of services Agreement) with the Consortium to for Group Health Plans. to provide information. accomplish the following five OMB Number: 1545–1537. objectives: Regulation Project Number: REG– Approved: August 2, 2002. Carol Savage, 1. Seek to assure access to a free and 253578–96. secure electronic preparation and filing Abstract: These regulations contain Program Analyst. option for additional taxpayers, building rules governing access, portability, and [FR Doc. 02–20116 Filed 8–7–02; 8:45 am] upon free electronic tax preparation and renewability requirements for group BILLING CODE 4830–01–P filing provided in the commercial health plans and issuers of health market today; insurance coverage offered in connection with a group health plan. DEPARTMENT OF THE TREASURY 2. Making tax return preparation and The regulations also provide guidance filing easier and reducing the burden on for group health plans and the Internal Revenue Service individual taxpayers; employers maintaining them regarding Electronic Tax Preparation and Filing; 3. Supporting the IRS’s statutory goals requirements imposed on plans relating Intent to Enter Agreement, Opportunity of increased e-filing, pursuant to the IRS to preexisting condition exclusions, for Comment, Opportunity to Submit Restructuring and Reform Act of 1998, discrimination based on health status, Proposals for Additional Consortia which encouraged the IRS to set a goal and access to coverage. of having 80% of Federal tax and AGENCY: Internal Revenue Service (IRS), Current Actions: There is no change to information returns filed electronically these existing regulations. Treasury. by the year 2007; Type of Review: Extension of a ACTION: Advance notice of intent to currently approved collection. enter an agreement, opportunity for 4. Providing greater service and access Affected Public: Business or other for- comment, opportunity to submit to taxpayers; and profit organizations, not-for-profit proposals for additional consortia. 5. Implementing one of the proposals institutions, and state, local, or tribal in the President’s FY’03 budget, SUMMARY: The Internal Revenue Service governments. specifically to encourage further growth (IRS) proposes to enter into an Estimated Number of Respondents: in electronic filing by providing agreement (the Agreement) with a 1,300,000. taxpayers the option to file their tax consortium of companies in the Estimated Time Per Respondent: return on-line without charge using Varies. electronic tax preparation and filing cooperation with, and encouraging Estimated Total Annual Burden industry (the Consortium) who together competition within, the private sector to Hours: 591,561. desire to work together to offer free, The following paragraph applies to all online tax return preparation and filing increase e-filing. of the collections of information covered services to taxpayers (Free Services). The anticipated essential terms of the by this notice: The Consortium will offer these Free Agreement are established in a An agency may not conduct or Services to taxpayers. The IRS will document described as a Term Sheet. sponsor, and a person is not required to provide taxpayers with links to the Free This draft Term Sheet follows.
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Dated: July 31, 2002. stated objectives because it will promote 4. Are Authorized IRS E-File Terence H. Lutes, higher quality Services by utilizing the Providers in accord with IRS Rev. Proc. Director, IRS Electronic Tax Administration. existing expertise of the private sector, 2000–31. maximize consumer choice, promote July 30, 2002 Draft 5. Are in compliance with applicable competition for such Services, and law, including but not limited to, Free On-Line Electronic Tax Filing thereby meet the objectives in the least Department of Treasury/IRS rules, Agreement costly manner. including but not limited to 31 C.F.R. Term Sheet III. Consortium Part 10, IRS Rev. Proc. 2000–31, current versions of IRS Publications 1345 and The Consortium is intended to be part I. Purpose 1345–A, and 26 U.S.C. § 7216. of an existing, non-profit corporation The purpose of this term sheet is to (under the provisions of 26 U.S.C. 6. Demonstrate the competence and describe the essential terms of an § 501(c)(3)) affiliated with The Council capability to deliver their free offerings. agreement (‘‘the Agreement’’). The This competence and capability may be Agreement will provide for free, online for Electronic Revenue Communication Advancement (CERCA). The demonstrated either by providing tax return preparation and filing to evidence of prior experience in individual taxpayers, thereby meeting Consortium is being formed to facilitate participation in the Agreement by providing on-line or electronic filing the following five objectives: services or by self-certification. Such 1. Seeking to assure access to a free commercial entities (‘‘Consortium self-certification shall be reasonably and and secure electronic preparation and Participants’’) engaged in the business objectively determined by the filing option for additional taxpayers, of electronic tax preparation and filing. Consortium, taking into account the building upon free electronic tax IV. Scope of Offerings above referenced need for competence preparation and filing provided in the A. The Consortium will offer Free commercial market today; and capability and the intent of the 2. Making tax return preparation and Services for eligible taxpayers Agreement to avoid unnecessary filing easier and reducing the burden on (taxpayers meeting the qualifications for barriers to entry. Consortium individual taxpayers; free offerings) from individual Participants must have adequate 3. Supporting the IRS’s statutory goals commercial sites. Such offerings, when capacity to meet the expected demand of increased e-filing, pursuant to the IRS taken in the aggregate, are intended to for their Free Services. In addition to Restructuring and Reform Act of 1998, provide for Free Services to be available initial Participants, the Consortium will which encouraged the IRS to set a goal to 60% or more of taxpayers. If at any accept later qualified applicants as of having 80% of Federal tax and point the Consortium’s aggregate Consortium Participants. information returns filed electronically offerings of Free Services are available 7. Have security certification, from a by the year 2007; to fewer than 60 % of taxpayers, the IRS third party agreed to by the IRS. It is 4. Providing greater service and access may notify the Consortium of that fact. understood that the Agreement will to taxpayers; and After receipt of such notice, the contain the names of acceptable third- 5. Implementing one of the proposals Consortium will have six months within party certifiers. in the President’s FY’03 budget, which to raise the availability of such 8. Comply with the privacy provisions specifically to encourage further growth offerings to at least 60% of taxpayers. If in electronic filing by providing the Consortium fails to achieve 60% of 26 U.S.C. § 7216. Have privacy taxpayers the option to file their tax within such six-month period, the IRS certification from a third party agreed to return on-line without charge, using may terminate the Agreement. In by the IRS. Consortium participants are cooperation with, and encouraging making this decision, the IRS agrees to encouraged to use software that will competition within, the private sector to take into account the extent to which enable their websites to state their increase e-filing. actual usage of Free Services has privacy practices in a standard machine increased. Consortium offerings, taken readable format that can be retrieved II. Summary together, will provide eligible taxpayers automatically and interpreted easily by To accomplish the above objectives, with a reasonable assurance that: (1) users. Consortium Participants shall the Internal Revenue Service (the ‘‘IRS’’) Free Services will be available on also agree that provisions of Free and a consortium of companies in the demand, and (2) these services will Services shall not be conditioned on electronic tax preparation and filing provide the ability to file the same obtaining an eligible taxpayer’s consent industry (the ‘‘Consortium’’) (together, federal tax forms which are fileable and to solicitations of additional business. It ‘‘the Parties’’) desire to work together to available in the comparable paid online is understood that the Agreement will offer free, online tax return preparation services offered by a selected contain the names of acceptable third- and filing services to taxpayers (‘‘Free Consortium member. party certifiers. Services’’). The Consortium will offer B. The Consortium shall accept 9. Will not contain or provide links to Free Services to taxpayers at no cost. offerings only from entities that: inappropriate content. The IRS will provide taxpayers with 1.Provide electronic, on-line tax 10. Clearly disclose to users their links to the Free Services offered by the preparation and filing of individual customer service support options and Consortium participants through a web income tax returns; privacy policy. page (described more fully in VI below; 1. Will offer and can provide Free hereafter, the ‘‘Web Page’’), which will Services to a number of individual 11. Agree to have at least one link to be hosted at irs.gov accessible through taxpayers which equals or exceeds 10 the IRS. firstgov.gov. During the term of the percent (10%) of the number of C. The Consortium will take Agreement, the IRS will not compete individual income tax returns filed in reasonable steps to publicize the criteria with the Consortium in providing free, the base year (CY 2001). for Consortium participation. The online tax return preparation and filing 3. Offer online software approved by Consortium will provide to the IRS, on services to taxpayers. the IRS that generates returns that can request, the names of unsuccessful The Agreement is the best method be sent to the IRS via an IRS-approved applicants for Consortium participation (business case) for meeting the above channel. and the reason for their rejection.
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V. Performance Standards Participant’s paying customers, if and with the Consortium and the A. The IRS will have the Consortium applicable, consistent with usability Consortium Participants for their web page ready by December 31, 2002. design principles marketing expenditures. Consortium participants will have VI. Consortium Web Page Operation B. The IRS will not endorse specific submitted their test returns produced by offerings or products, but will promote A. The IRS will host and maintain the their software to the IRS sufficiently in the availability of the Consortium’s Free Web Page. The Consortium will submit advance of that date for testing . The IRS Services. to the IRS proposed content for the Web will not list on the Consortium web C. The Parties will work with the Page, and the IRS shall determine the page a Consortium participant whose States to explore how the Agreement final content to appear on the Web Page. test returns have not been certified prior can support the states. Online tax The IRS will ensure that there are links to the beginning of the filing season preparation and e-filing of both federal from appropriate Government sites to until that participant’s test returns has and state returns can maximize benefits The Web Page. been tested and certified. B. The design of the Web Page will of this Agreement to taxpayers. B. The Consortium will make its best conform to the following guidelines: D. The Consortium understands that efforts to assure that Free Services by 1. The Consortium will determine the IRS may continue to provide individual Consortium Participants are rank order placement of links to Consortium Participants or non- performed in accordance with the terms individual offerings in accordance with Participants Partners links from of the Agreement and in accordance reasonable, objective criteria. Each Government sites to electronic preparers with the offer made by the Consortium listing of an offering will provide a and filers. Participant. If the IRS determines a description of the scope of, and VIII. Term of Agreement; Termination particular offering of Free Services is eligibility for, free Services it offers. deficient or that Free Services are not 1. The Web Page will provide a link A. The Agreement will have an initial being properly performed, it will notify to each Consortium Participant’s Free term of three years from its effective the Consortium in writing of that fact, Services entry using a minimum date with automatic options to renew and provide information regarding number of clicks. for successive two year periods. corrective actions it believes are needed. 2. No advertising will appear on the Representatives from the Parties will C. The undertaking by the Consortium Web Page. meet semiannually to review operation under IV. A to offer Free Services at or 3. The Consortium will create and of the Agreement. The Parties will above the 60% level shall apply only to supply to IRS proposed content for the review the terms of the Agreement on an January through April of each year (the Web Page using existing IRS content annual basis, and, upon mutual consent, primary tax filing season). Outside of management procedures. can agree in writing to modify any the primary tax filing season, the 4. The Web Page will be developed provision of the Agreement. Consortium shall encourage Consortium using usability design principles and B. Either Party may terminate the members to offer Free Services to the will be updated based upon usability Agreement for cause if the other Party same extent that such services are testing and other user feedback. fails to comply with the Agreement, and offered by Consortium members for C. Taxpayers will be able to use such failure is not cured within thirty compensation. Consortium Participants’ software to D. The Consortium will be days of written notice of such failure prepare and electronically file their own from the other Party. responsible for establishing its personal income tax returns using governance standards. These standards proprietary processes and systems C. The IRS may terminate the shall be in accord with applicable law which such Participants host and Agreement without cause, such and regulations. The standards shall be maintain. termination to be effective 12 months consistent with the Consortium D. The Consortium will promptly after the date of notice of such performing its obligations under the notify the IRS of any planned or termination. Agreement and be designed to maximize unplanned unavailability (i.e., D. Should the IRS decide to offer Free participation of industry members while downtime) of an offering that is Services to taxpayers the IRS shall meeting the requirements of the anticipated to exceed five hours in notify the Consortium immediately. If Agreement. duration. The IRS will annotate that the IRS gives such notice during the tax E. IRS, in consultation with the offering’s listing on The Web Page with season (between January 1st and April Consortium, will develop an assessment a notice advising the public of the 15th), or the last day of the filing process including usability performance unavailability. The IRS may delist an deadline if that date is changed from measures to measure the extent to offeror if its service remains unavailable April 15) of any year, the Consortium which the Agreement is accomplishing for more than 24 hours, but shall re-list may, by written notice to the IRS, the objectives described in I., above. after restoration of availability; terminate the Agreement, effective on They will include at least: provided, however, if a Consortium April 16th of that year. If the IRS gives 1. Uptime and reliability through the Participant repeatedly has periods of such notice between April 16th and tax season. such unavailability, the IRS shall be October 15th of any year, then the 2. Delivery of the taxpayer to the Free entitled to delist that Consortium Consortium may, by written notice to Services in the minimum number of Participant. the IRS other than during a tax season, clicks consistent with usability design terminate the Agreement, such principles and the need to fully inform VII. Marketing termination to be effective no fewer than taxpayers about the free online services. A. The Parties will coordinate with 30 days after the date of the From the site the taxpayer arrives at by each other their respective marketing of Consortium’s notice of such clicking on the Consortium page’s link these Free Services to provide termination. If the IRS gives such notice to the Consortium Participant, until the uniformity and maximize public between October 15 and December 31, taxpayer arrives at the Free Services, awareness. Final decisions on the the Consortium may by written notice there will be no more clicks than marketing campaign will remain with immediately terminate the Agreement at required of such Consortium the IRS for IRS marketing expenditures any time on or before December 31.
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IX. Status of Term Sheet consistent with these terms in the near lllllllllllllllllllll For IRS For the Consortium This is not the Agreement, and it is future. not intended to bind the parties. It is the lllllllllllllllllllll [FR Doc. 02–19835 Filed 8–5–02; 2:58 pm] parties’ objective to reach an agreement For IRS BILLING CODE 4830–01–P
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Part II
Department of Transportation Research and Special Programs Administration
49 CFR Part 107 et al. Hazardous Materials: Requirements for Maintenance, Requalification, Repair and Use of DOT Specification Cylinders; Final Rule
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DEPARTMENT OF TRANSPORTATION cylinders; and (3) discontinue the (67 FR 6667), terminating rulemaking manufacture of certain specification action under Docket HM–220. The Research and Special Programs cylinders. We took this action because termination notice announced that we Administration many of our current cylinder were withdrawing the proposals specifications have not been updated applicable to metric-marked cylinders 49 CFR Parts 107, 171, 172, 173, 177, since their adoption into the regulations and ultrasonic examination. 178, 179, and 180 over 50 years ago. The proposed We worked closely with the UN [Docket No. RSPA–01–10373 (HM–220D)] changes were intended to enhance Committee of Experts as it developed an operational controls and transportation international cylinder standard based on RIN 2137–AD58 safety by incorporating into the HMR the above-referenced ISO requirements. new manufacturing and testing The new international standard was Hazardous Materials: Requirements for technologies and clarifying existing adopted as part of the UN Model Maintenance, Requalification, Repair regulatory requirements. In addition, the Regulations in December 2000. We will and Use of DOT Specification proposed changes addressed three address issues related to the Cylinders National Transportation Safety Board harmonization of the U.S. cylinder AGENCY: Research and Special Programs (NTSB) recommendations for improving regulations with the UN Model Administration (RSPA), DOT. the safety of cylinders in transportation. Regulations in a future rulemaking. The Finally, the proposed changes would ACTION: Final rule. proposals in the 1998 NPRM relating to have eased the regulatory burden on the maintenance, requalification, repair, SUMMARY: In this final rule, RSPA is regulated industry by incorporating the and use of DOT specification cylinders amending the requirements of the provisions of more than 30 exemptions and approval of cylinder requalifiers, Hazardous Materials Regulations into the HMR. independent inspection agencies, and applicable to the maintenance, More than 140 commenters submitted non-domestic chemical analyses and requalification, repair, and use of DOT over 200 comments in response to the tests are addressed in this final rule, specification cylinders. In addition, NPRM, including representatives of which has been designated HM–220D RSPA is adopting changes to revise the cylinder and equipment manufacturers, (RSPA–01–10373). requirements for approval of cylinder requalifiers, refillers and users, trade The 1998 NPRM proposed to require requalifiers, independent inspection associations, gas producers, distributors, all cylinders manufactured or rebuilt to agencies, and non-domestic chemical shippers, carriers, emergency the proposed new metric-marked responders, representatives of federal analysis and tests. Further, RSPA is cylinder specifications to undergo and state governmental agencies, private removing authorization for the inspection and certification by an consultants, and the general public. In manufacture of DOT specification Independent Inspection Agency rather addition, we held a series of public cylinders made with aluminum alloy than an employee of the manufacturing meetings to obtain comments. 6351–T6. This action is being taken to company. This proposal responded to simplify the regulations, respond to Many commenters objected to the proposed new metric-marked cylinder an NTSB recommendation (I–90–009) petitions for rulemaking, address that RSPA require independent recommendations of the National specifications, identified as 3M, 3ALM, 3FM, and 4M. Commenters also inspection of new and reconditioned Transportation Safety Board, and opposed the proposed requirement for low pressure cylinders consistent with enhance the safe transportation of these new metric-marked cylinders and current independent inspection hazardous materials in cylinders. certain cylinders manufactured to the requirements for high pressure DATES: Effective Date: October 1, 2002. current specifications, that is, non- cylinders. Because we are not adopting Incorporation by Reference Date: The metric marked cylinders, to be the metric-marked cylinder incorporation by reference of requalified by ultrasonic examination. specifications in this final rule, we are publications listed in this final rule has These commenters suggested we allow not adopting the proposed independent been approved by the Director of the continued manufacture of cylinders to inspection requirements. However, we Federal Register as of October 1, 2002. the current DOT specifications and will address this issue in a rulemaking FOR FURTHER INFORMATION CONTACT: revise the current requirements to to harmonize the U.S. cylinder Cheryl Freeman or Mark Toughiry, (202) include certain enhancements from the regulations with the UN Model 366–4545, Office of Hazardous Materials metric-marked cylinder proposals. Regulations that we plan to initiate in Technology, Research and Special These commenters preferred we wait the near future. Programs Administration. until after the International II. Overview of Changes in this Final SUPPLEMENTARY INFORMATION: Organization for Standardization (ISO) Rule cylinder standards were completed and I. Background adopted into the United Nation (UN) In this final rule, we are amending the On October 30, 1998, the Research Recommendations on the Transport of HMR to: and Special Programs Administration Dangerous Goods (UN Model (1) Prohibit a filled cylinder with a (RSPA, we) published a notice of Regulations) before we considered specified service life from being offered proposed rulemaking (NPRM) under incorporating new specification for transportation in commerce after its Docket HM–220 (63 FR 58460). In the requirements into the HMR. Based on service life has expired. NPRM, we proposed to amend the the merits of the comments received, we (2) Remove authorization for the Hazardous Materials Regulations (HMR; agree the proposed metric-marked manufacture of DOT specification 49 CFR Parts 171–180) to: (1) Establish cylinder standards and related cylinders using aluminum alloy 6351– four new DOT cylinder specifications to proposals that were based on the draft T6. Cylinders manufactured with this replace the 12 current seamless and ISO standard should not be adopted. aluminum alloy have a greater risk of welded cylinder specifications; (2) Because of significant opposition to failure than other aluminum cylinders. revise the requirements for many of the proposals in the 1998 (3) Incorporate by reference new and maintenance, requalification, repair, NPRM, we published a notice in the updated Compressed Gas Association and use of all DOT specification Federal Register on February 13, 2002 (CGA) standards and updated American
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Society for Testing and Materials adopts the proposed consolidation in of compliance should be heightened. (ASTM) standards. Part 107, with the revisions noted We estimate the number of affected (4) Require each person who performs below. requalifiers to be 7,200. Under the a requalification function that requires provisions in this final rule, these Section 107.803 marking of an inspection or retest date requalifers must submit a letter on a cylinder to have approval from the Prescribes application procedures for containing information on their Associate Administrator for Hazardous approval or renewal as an IIA. These qualifications and the location at which Materials Safety (Associate procedures permit an approved IIA to they work. The regulatory burden Administrator). perform other functions relating to the imposed by this new requirement is (5) Standardize requirements for cylinder requalification requirements. minimal. Moreover, this final rule repair and rebuilding of DOT–4 series The criteria permit the approval of any includes a transition period of one year cylinders, other than the DOT 4L. person or organization technically to allow sufficient time for affected (6) Allow the application of competent to perform cylinder individuals to obtain the requisite requalification markings on cylinders by requalification functions and free from approvals. using alternative methods that produce undue influence by persons involved As requested by commenters, we are durable, legible marks. with the fabrication, ownership, or making editorial changes to paragraph (7) Require pressure relief devices on movement of the cylinders that the (f) to recognize that visual cylinder all DOT–3 series specification cylinders applicant, if approved, would be called requalifications are often performed at to be set at test pressure with a tolerance upon to evaluate and certify. We are not the owner’s or end-user’s facility rather of ¥10% to +0 beginning at the first adopting a proposal to permit persons or than the requalifier’s facility. requalification due on or after the organizations approved by foreign Because this final rule expands the effective date of this final rule. governments to perform these functions. approval provisions to apply to In addition, we are consolidating This latter proposal was contingent repairers and rebuilders, we are requirements for obtaining approval to upon our adopting the metric-marked replacing the terms ‘‘retester’’ and be a cylinder requalifier, independent cylinder specifications proposed in the ‘‘retester identification number’’ in this inspection agency, or to have chemical NPRM. final rule with the terms ‘‘requalifier’’ tests or analyses performed outside the Section 107.805 and ‘‘requalifier identification number,’’ respectively. United States on cylinders Sets forth application procedures for manufactured outside the United States a person seeking approval to perform Section 107.807 in a new Subpart I in Part 107. periodic cylinder requalifications. The Sets forth the application procedures, The safety of cylinders constructed NPRM proposed to broaden the current currently in § 173.300b, for issuance or with aluminum alloy 6351–T6 was first approval requirement to apply to any renewal of an approval to perform raised in a safety advisory and NPRM person who performs a requalification chemical analyses and tests outside the published in 1987 under Docket HM– function after which the cylinder is United States on DOT specification 176A. With publication of this final required to be marked with a date. The cylinders manufactured outside the rule, further action under Docket HM– affected requalification functions United States. These procedures are 176A is terminated. include visual inspections, pressure unchanged from current requirements. III. Section-by-Section Review tests, repairs, and rebuilding of cylinders. The new approval procedures Part 171 The following is a section-by-section will enhance the accountability of the Section 171.2. review of the changes adopted in this cylinder requalification process. This In this final rule, we are adopting the final rule and, where applicable, a change was supported by most discussion of comments received. NPRM proposal to revise paragraph commenters. However, the National (d)(3). The revision clarifies that no Part 107 Propane Gas Association (NPGA) and person may mark a requalifier some of its members opposed the Section 107.1 identification number (RIN) on a proposal because it would require cylinder that has not been requalified This final rule adopts the proposal in persons who perform only visual according to the applicable the 1998 NPRM to remove the reference inspections of cylinders to obtain DOT requirements. to a cylinder retester who is registered approval. NPGA stated that this new pursuant to § 173.34(a)(1) from the approval requirement is burdensome, Section 171.6. definition of ‘‘registration.’’ Commenters unenforceable, and an excessive We are revising certain section did not address this issue. response to a safety problem only references in the table of OMB control identifiable through individual Subpart I numbers for consistency with this final instances of egregious cylinder wear. rule. The 1998 NPRM proposed to add a NPGA also said that the proposal could new subpart I to Part 107 to consolidate potentially affect tens of thousands of Section 171.7 procedures currently in §§ 173.34(e)(2), individuals and many small facilities. The NPRM proposed to revise this 173.300a, and 173.300b of the HMR for We disagree. As we stated in the NPRM, section to incorporate by reference the obtaining approval from the Associate this change ensures the accountability latest editions of previously approved Administrator. The approval procedures of a person performing visual CGA Pamphlets and ASTM standards address requirements for cylinder requalifications. In addition, this change and certain additional ASTM and CGA requalifiers and independent inspection provides RSPA with the authority to standards. In this final rule, we are agencies (IIAs), and to have chemical revoke or suspend a person’s approval incorporating the 1999 edition of the tests or analyses performed outside the for demonstrated noncompliance with ASTM standards for tension testing of United States on DOT specification the requalification requirements. Also, if metallic materials; the 1999 edition of cylinders manufactured outside the an applicant must certify it has the the ASTM standard specification for United States. Commenters generally ability to perform requalifications, each heat-resisting chromium and chromium- supported this proposal. This final rule applicant’s awareness of the importance nickel stainless steel plate, sheet, and
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strip for pressure vessels; and the 1998 Section 173.40 requirement even for Hazard Zone A edition of the ASTM standards for We are adopting the proposed change materials. One commenter noted the notched bar impact testing of metallic to paragraph (a) of this section to NPRM did not include statistics on the materials instead of the 1996 editions prohibit the use of DOT 3AL cylinders incidence of cylinder punctures. Other proposed in the NPRM. We reviewed made of aluminum alloy 6351–T6 for commenters stated that DOT the more recent editions and identified Hazard Zone A materials. The major specification cylinders such as the 3A no significant differences from the 1996 domestic cylinder manufacturers of and 3AA have had excellent safety editions. In addition, we are DOT 3AL cylinders discontinued using records for a number of years, and there incorporating the 1997 edition of the aluminum alloy 6351–T6 in is no substantial evidence to support the ASTM standard specification for specification cylinders before July 1990. need for puncture-resistance testing. Based on these comments, we are not liquefied petroleum gases (see The prohibition on the use of cylinders adopting the proposed puncture- discussion under ‘‘Section 180.203’’ made of aluminum alloy 6351–T6 for resistance requirements. However, below). We are also incorporating the Hazard Zone A materials is effective on minimum thickness requirements for 1998 edition of the ASTM standard for October 1, 2002. After that date, cylinders used to transport Hazard Zone ultrasonic examination of metal pipe cylinders made of aluminum alloy A or B material remain in effect. and tubing instead of the 1993 edition 6351–T6 may not be filled and offered Further, this final rule includes a new proposed in the NPRM. We reviewed for transportation in toxic inhalation performance requirement, applicable to the more recent edition and found no hazard service. In this final rule, we are all cylinders, for metal attachments to significant differences from the 1993 adding a provision to permit cylinders edition. The ASTM standard for be constructed or protected so as to filled before October 1, 2002, to be prevent the likelihood of puncturing or ultrasonic examination replaces a 1967 offered for transportation and standard that is no longer available and damaging hazardous materials packages transported to their ultimate transported in the same transport applies to the manufacture of destinations until April 1, 2003. When specification DOT 3T stainless steel conveyance. necessary, cylinders containing unused In the NPRM, we sought comments on cylinders. We are not incorporating the gas may be returned to the filler. ASTM standards addressing the metric- whether the current Hazard Zone A Cylinders prohibited for use under this closure requirements in paragraph (c) marked cylinder proposals in the provision are seamless aluminum NPRM. Further, we are not should be extended to Hazard Zone B cylinders marked ‘‘DOT 3AL’’, materials. Several commenters opposed incorporating CGA pamphlet C–1, including exemption cylinders ‘‘Methods for Hydrostatic Testing of such an extension. They said that the authorized under exemption numbers change is excessive and unjustified, and Compressed Gas Cylinders,’’ 1996 DOT–E 6498, 7042, 8107, 8364, and edition. It is our understanding that would require changing the valving on 8422, and composite cylinders many cylinders used to transport CGA is in the process of completely authorized under exemption numbers revising the C–1 standard. We will Hazard Zone B materials. Based on DOT–E 7235, 8023, and 8115. these comments, we are not adopting consider incorporating the revised C–1 Several commenters requested we add standard in a future rulemaking. the Hazard Zone A closure requirements a table in the HMR to identify all for Hazard Zone B materials in this final Section 171.12 cylinders made of aluminum alloy rule. 6351–T6 by date of manufacture, serial We are adopting new paragraph (d) to As proposed in the NPRM, we are number, manufacturer, etc. We agree specify cylinder valve protection revising paragraph (b)(15) to include a that a need exists to identify all affected requirements for Hazard Zone A and B reference to a provision on Canadian cylinders. We are making this materials. None of the commenters manufactured cylinders contained in information available from the Associate opposed extending the valve protection current § 171.12a(b)(13). Administrator and at our web site requirements to Hazard Zone B Part 172 Homepage at ‘‘hazmat.dot.gov’’. Making materials. Indeed, one commenter stated the information available as a separate its company is currently shipping both Section 172.101 document permits greater flexibility in Hazard Zone A and B materials in In the § 172.101 Hazardous Materials de-listing cylinders removed from cylinders conforming to the current Table, for the entries ‘‘Cyanogen,’’ hazardous material service. valve protection drop test requirement ‘‘Germane,’’ and ‘‘Iron Pentacarbonyl,’’ We are adopting paragraph (b) to for Hazard Zone A materials. In this we are revising the references in column include current requirements for outage final rule, we are revising the valve (8b) to specify packaging authorization and pressure in cylinders used for toxic protection requirements to require that sections consistent with the materials’ materials. This paragraph was when a protective cap is used, it must toxic properties. Commenters did not inadvertently omitted from the NPRM. be made of metal. This change responds We are not adopting proposed specifically address this proposal. to a commenter who pointed out that paragraph (c)(1) to require cylinders current § 173.301(h)(2)(i) provides for Part 173 containing Hazard Zone A and B equipping a cylinder with a securely Section 173.34 materials to meet puncture resistance attached metal cap. The commenter criteria. A number of commenters stated that nonmetallic caps should not We are adopting the changes opposed the puncture-resistance be permitted under § 173.40. We agree, proposed in the NPRM and supported requirement for Zone B materials. These and have included the change. by most commenters to move the commenters said that Zone B materials Several commenters suggested the provisions in this section to Subpart I of have an excellent safety record in protection device should be designed to Part 107, § 173.301, and Subpart B of transportation, and that the proposed protect against leakage in the event of Part 180, as appropriate, and remove requirements would pose a significant valve deformation rather than to prevent § 173.34. We are removing all references and unjustified financial burden for deformation or breakage of the valve. to § 173.34 in the HMR, and replacing transporters of Hazard Zone B materials. We disagree. A deformed or broken them with the appropriate new section Several commenters opposed the valve presents a potential safety hazard references. proposal to add a puncture-resistance that could affect the integrity of the
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cylinder. One commenter asked for a Section 173.192 requirements for phosgene cylinders are better definition of the term We are revising the section title to long-standing regulatory requirements. ‘‘deformation.’’ In this context, reflect that the requirements in this However, to accommodate CGA’s ‘‘deformation’’ means a valve that is section apply only to Hazard Zone A concerns, we are adding a precautionary bent, distorted, mangled, misshapen, gases, as proposed. In addition, we are safety statement to alert requalifiers. twisted, warped, or in a similar extending the current restriction in Section 173.198 condition. We have added a definition § 173.192(a)(3), which limits of ‘‘deformation’’ in this final rule. transportation of DOT 3AL cylinders in We are making a minor editorial A commenter asked us to revise the arsine and phosphine service to change to paragraph (a). drop height requirement from 2 meters highway and rail, to include all Hazard Section 173.226 (6.5 feet) to 1.2 meters (4 feet) for Zone A gases. Thus, Hazard Zone A consistency with ISO Standard 11117 Currently, Division 6.1, Hazard Zone gases in 3AL cylinders may only be A materials may be shipped in any DOT (Gas Cylinders—Valve Protection Caps transported by highway or rail. CGA and and Valve Guards for Industrial and specification cylinder, except DOT 8, another commenter requested that we 8AL, and 39. The NPRM proposed a Medical Gas Cylinders—Design, authorize transportation of DOT 3AL Construction, and Tests). We disagree. revision to paragraph (a) to permit cylinders by vessel and by cargo aircraft. materials that are poisonous by Because these cylinders are used to CGA stated that prohibiting such transport Division 2.3 materials in inhalation (PIH materials) in Hazard transportation places U.S. companies at Zone A to be transported only in Hazard Zone A or B, they must be able an economic disadvantage in the world to survive severe handling and abuse seamless specification cylinders market. We have some reservations conforming to the requirements of without leakage of contents. Therefore, about the CGA comment. Aluminum a more stringent drop test requirement § 173.40. A commenter requested that undergoes a marked reduction in tensile we continue to permit the use of welded is warranted. Further, the ISO Standard strength when subjected to high 11117 drop test requires the cylinder to cylinders for PIH materials. We temperatures. This occurs at much disagree. Because of the inherent risk be filled with water, while the drop test lower temperatures than for steel adopted in this final rule requires the involved in the transportation of PIH cylinders. The potential consequences materials, they should only be permitted cylinder to be empty. Since the tests are of a fire on board a vessel or aircraft are conducted under different conditions, in cylinders providing the highest level more serious than a fire occurring on a of safety. Therefore, this final rule the drop heights must be different to truck or rail car. The release of toxic assure meaningful test results. adopts the change as proposed in the vapors in the confined space of a vessel NPRM. This change also provides We are adopting paragraph (e), which hold or cargo aircraft compartment consistency in packaging assignments restates the current prohibition against could have significant adverse with current § 173.192, which manifolding or interconnecting consequences. However, on August 30, authorizes only seamless specification cylinders containing toxic materials. 2001, we issued an exemption (DOT–E– cylinders for Packing Group I materials. Section 173.115 12339) that permits the transportation by cargo vessel of DOT 3AL cylinders Section 173.227 As proposed in the NPRM, this (6061 aluminum alloy) containing We are adopting the proposal in the section permits LC50 values for various Division 2.1 and 2.3 gases. The NPRM to revise paragraph (a). The mixtures to be determined using CGA cylinders must be contained inside steel revision authorizes only seamless and pamphlet P–20 and adds a definition for freight containers. We will evaluate the welded specification cylinders ‘‘refrigerant or dispersant gas.’’ safety record of cylinders transported on conforming to the requirements in Section 173.163 cargo vessels under this exemption, and § 173.40 for transportation of PIH consider incorporating its terms into a materials in Hazard Zone B. A number of commenters opposed the regulation of general applicability in a proposal in the NPRM to require future rulemaking. Section 173.228 cylinders used for hydrogen fluoride to Also, we are revising paragraph (c), as As proposed in the NPRM, we are be requalified by ultrasonic examination proposed, to permit the use of revising paragraph (a) to require only. They said that there is no safety alternative leakage tests having bromine pentafluoride and bromine justification for the proposal, and it will equivalent levels of sensitivity as the trifluoride, which are Hazard Zone A significantly increase costs for the current water bath leakage test, upon materials, to be transported only in regulated industry. Commenters noted written approval from the Associate seamless specification cylinders that that ultrasonic examination requires Administrator. Currently, paragraph (c) conform to the requirements in § 173.40. sophisticated equipment and highly requires a cylinder containing any trained personnel. They expressed amount of phosgene gas to be subjected Sections 173.300a–173.300c concern that retest facilities do not have to a water bath leakage test before it is We are moving the provisions infrastructure in place to accommodate offered for transportation. CGA noted contained in these sections to new the proposed examination procedures. that the water bath test is conducted at Subpart I of Part 107. We are deleting Because of commenter concerns, we are 150° F, and the normal filling densities §§ 173.300a, 173.300b, and 173.300c. not adopting the ultrasonic examination and liquid full conditions for phosgene proposal in this final rule. We are cylinders are based on 130° F. For this Sections 173.301–173.301b retaining the current requirement for an reason, CGA suggested that we should We are revising § 173.301 to specify external visual inspection in place of add a precautionary statement to warn the general shipper requirements for the the hydrostatic test and internal visual persons that a cylinder filled to 125% of use of specification cylinders. These inspection. We will continue to permit capacity could experience an overfill requirements include general prefill the use of ultrasonic examination under condition when it is heated to 150° F. requirements, maintenance and the exemption program. Issues related to Alternatively, CGA suggested the water legibility of markings, pressure relief ultrasonic testing will be addressed in a bath test should be conducted at 130° F. devices (PRDs), valve protection, subsequent rulemaking. We disagree. The water bath manifolding of cylinders, and charging
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of foreign cylinders. We are removing Similarly, aluminum lined, hoop fail to operate as designed. As we stated the cargo tank manifolding requirements wrapped, and fiber reinforced plastic in the 1998 NPRM (63 FR 58465), we currently in § 173.301(d), and placing composite cylinders would be have previously proposed voluntary them with other cargo tank prohibited from transportation after 15 compliance with paragraph 9.1.1.1 of requirements in § 173.315. A derivation years. Several commenters requested a CGA Pamphlet S–1.1. Commenters table showing the relocation of the revision to allow the transportation of generally opposed this proposal, citing requirements appeared in Part X of the affected non-leaking cylinders for its cost and the lack of incident data preamble in the NPRM. reprocessing or disposing of the justifying the requirement. In the Paragraph (a) includes general cylinder contents. Another commenter NPRM, we asked for data and comments cylinder qualification requirements. We requested we require the cylinders to be on the cost, effectiveness, and need for are revising the wording in paragraph stamped as condemned or be rendered adopting paragraph 9.1.1.1. Commenters (a)(2) in response to several commenters unserviceable when the authorized did not provide specific information. who stated the proposed wording service life has expired. We agree, and Therefore, we are not adopting implied that defective PRDs could be have adopted the suggested changes in paragraph 9.1.1.1 at this time. However, repaired. This was not our intent. The this final rule. we will examine this issue in a future wording is revised to state that, in some We are revising the wording in rulemaking, as necessary. cases, the cylinder may be repaired and proposed paragraph (a)(7) to prohibit We are revising the wording in requalified if the work is performed the pressure of the hazardous material at proposed paragraph (f)(2) that would according to Part 180. 55° C (131° F) from exceeding 5/4 of the have required a PRD, when installed, to In the NPRM, we proposed to place in service pressure of the cylinder. be in the vapor space of the cylinder. paragraph (a)(4) a current provision Commenters pointed out the ‘‘5/4’’ was Several commenters objected to authorizing the use of a cylinder with a omitted from the text in the NPRM. This requiring the PRD to be in the vapor higher marked pressure limit when a was an oversight. We have corrected the space of a cylinder containing liquefied cylinder of the same specification, but a text in this final rule. Division 2.2 gases. They stated the lower marked pressure limit, is Paragraph (b) sets forth requirements proposal would require valve redesign prescribed. We proposed no change to for cylinder markings and is adopted as at substantial costs and would be the wording. A commenter suggested proposed in the NPRM. ineffective in tube trailers and other that, when a cylinder with a higher Paragraph (c) specifies requirements cylinders loaded in horizontal positions. marked pressure limit is used for for toxic gases and mixtures and is The commenters suggested we revise Division 2.2 gases, the PRD setting adopted as proposed in the NPRM. the provision to require the PRD to be should be based on the lowest Paragraph (d) addresses gases capable ‘‘in communication with the vapor acceptable test pressure of the cylinder of combining chemically. In this final space.’’ We agree. The paragraph is for the particular gas service. We rule, we are prohibiting the use of DOT revised to require the inlet port to the disagree. This is a long-standing 3AL cylinders made of aluminum alloy relief channel to be in the vapor space regulatory requirement with a 6351–T6 for gases having pyrophoric of the cylinder. demonstrated safety benefit. If a higher properties. Commenters requested we We also are revising the wording of pressure cylinder is chosen for a allow time for transporting the affected proposed paragraph (f)(3) that would particular service, another user may not cylinders for reprocessing or disposal of have required the pressure relief setting be aware the PRD setting has been the cylinder’s contents. We agree time (the start-to-discharge or ruptured lowered. If the cylinder were over- should be provided for transporting the pressure) of a PRD for DOT–3 series heated or over-pressurized, a premature cylinders. We are providing a transition cylinders to be not less than the release of product could result. period of six months after the effective minimum designed test pressure. In the We are making a minor editorial date of the final rule to provide for NPRM, the proposed allowable change in the second sentence of transportation of cylinders filled before tolerances for these PRDs were minus paragraph (a)(5). The sentence in the the effective date of the final rule. zero to plus 10%. Many commenters NPRM stated ‘‘This requirement does As proposed in the NPRM, we are were concerned about the cost of not apply to a cylinder filled before the adopting paragraph (e). This paragraph producing PRDs with tolerances of requalification due date’’. In response to restates the current requirement to minus zero to plus 10%. They stated a comment, the sentence is revised for prohibit a cylinder from being offered that the proposed amendment would clarification to read ‘‘This prohibition for transportation unless it was filled by necessitate retrofitting many cylinders does not apply * * *’’ Another the cylinder owner or with the owner’s with new PRDs. Several commenters commenter suggested the first sentence consent. reiterated that CGA Pamphlet S–1.1 should be revised to read ‘‘No person Paragraph (f) sets forth requirements stipulates a maximum burst pressure for may fill a cylinder overdue for periodic for PRDs. The NPRM restated the a disk as minus 10% to zero of test requalification with a hazardous current provision in § 173.34(d) to pressure. They stated that we provided material.’’ We disagree. HMR require a cylinder filled with gas and no justification for requiring a cylinder requirements for filling a cylinder do transported in commerce to be equipped pressure greater than the cylinder’s not apply unless the cylinder is offered with one or more PRDs sized and specified test pressure. They also for transportation. selected in accordance with CGA suggested that, in some situations, a We are revising paragraph (a)(6), as Pamphlets S–1.1 and S–7. Compliance shipper may want a cylinder to be fitted proposed, to prohibit the offering for with paragraph 9.1.1.1 of CGA Pamphlet with a PRD that will function at a transportation and transportation in S–1.1, which requires periodic pressure much lower than the test commerce of a filled cylinder after its replacement of a PRD, is not required. pressure of the cylinder. specified service life has expired. For Several commenters objected to this Considering the comments received, example, DOT 3HT cylinders would be provision, stating compliance with we believe a setting of 100% of test prohibited from transportation 24 years paragraph 9.1.1.1 should be mandatory. pressure, with an allowable tolerance of after the date of the original test or 4,380 These commenters cited data generated minus 10% to plus zero of its setting for pressurizations, whichever occurs first by Transport Canada and industry tests a PRD, is appropriate. This will provide (see current § 173.34(e)(15)(ii)(C)). that suggest a large percentage of PRDs a reasonable balance between keeping a
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gas in a cylinder and preventing the diameter. However, if the cylinder is cylinders to be brought into cylinder from rupturing in case of a fire filled with a nonliquefied gas to a conformance with this requirement. In or overfill. PRDs designed to release at pressure of 1800 psig or higher, then it this final rule, we are revising the not less than test pressure, within the must have a PRD. language proposed in the NPRM to allowable tolerance, will eliminate the Paragraph (g) specifies requirements clarify that cylinders manufactured possibility of gas release through the for manifolding cylinders in before October 1, 2007, must conform to relief device at a temperature less than transportation. We are revising the current valve protection requirements. or equal to 54° C (130° F). At the same wording in proposed paragraph (g)(1) The Chlorine Institute stated that conditions and test pressure, the safety that would have required the PRD on tracking protective valve hoods to make factor for cylinder rupture is 1.6. It is manifolded cylinders containing any sure they are used on the type of our understanding, based on compressed gas to be arranged to cylinder on which they were tested is discussions with gas distributors, that discharge upward and unobstructed to unrealistic. The Chlorine Institute said many major gas distributors using DOT– the open air. Our intent for expanding hoods are frequently interchanged with 3 series cylinders are currently setting the original requirement in the HMR others on cylinders in the same type of the PRDs at 90–100% of test pressure for from flammable gases to all compressed service and suggested that a valve hood toxic and flammable gases. Because it is gases was to protect personnel and that has been tested on at least one common practice for many shippers of adjacent cylinders from gases released cylinder specified for a particular gas DOT–3 series cylinders to replace the due to a PRD function. Upon further should be accepted for use with the PRD at the time of a cylinder’s consideration, we agree with manufacturer’s other cylinders in the requalification, we believe this final rule commenters that the need for PRDs to same or lower net weight service. We will result in minimal incremental cost. discharge upward is more crucial for recognize that protective caps and Further, for most gases, the increased horizontal cylinders containing hoods may be interchanged among PRD setting will not significantly affect flammable gases. Discharges of cylinders. However, we are concerned the performance of cylinders in bonfire flammable gases could result in flame that different protective hoods may not tests. To allow users sufficient time to impingement on personnel or adjacent provide the same level of protection. If modify cylinders to meet the new PRD cylinders. We agree the requirement is cylinder hoods and caps are settings, we are providing that each not necessary on cylinders containing interchanged among different cylinders, cylinder must be brought into nonflammable gases or on vertical each must provide an equivalent level of conformance at the first requalification cylinders. We revised the final rule to safety to the performance standard of the cylinder after the effective date of reflect these changes. specified in this final rule. this final rule. Commenters were also concerned Paragraph (i) addresses cylinders We are not adopting the change in with the wording in proposed paragraph mounted on motor vehicles or in frames. proposed paragraph (f)(4) that would (g)(1)—‘‘equivalent valve protection In the NPRM, we proposed revisions to have required a PRD to be visually required in § 173.301(h).’’ These clarify the following points: (1) Any inspected for damage before filling the comments said that the wording implies DOT specification cylinder over 6.5 cylinder. We agree with commenters that manifolded cylinders must be drop meters transported in container-on-flat- who stated that a visual inspection of tested in the manifolded configuration. car (COFC) or trailer-on-flat-car (TOFC) the PRD will not detect defects This was not our intent. Therefore, we service by rail must be transported associated with internal components are revising the wording to specify that under conditions approved by the FRA; and their ability to function. Neither are valves and PRDs must be protected by (2) the force the valve and PRD must we adopting proposed paragraph (f)(5) framing, a cabinet, or other method. withstand is equal to twice the weight that would have required a cylinder Paragraph (h) contains cylinder valve of the cylinder and the framework filling facility to test a PRD for leaks protection requirements. The assembly; and (3) a discharge of any before offering a filled cylinder for requirements adopted in this final rule compressed gas from the PRD must not transportation. Rather, we are adding a prescribe a performance-oriented contact personnel or adjacent cylinders. new subparagraph to paragraph (a) to approach to valve assembly protection. CGA requested we revise paragraph (i) include the long-standing regulatory The requirements include a drop test to to: (1) Provide examples of protective requirement, currently in § 173.34(d), verify the performance of valve structure, such as rear bumpers, frame that safety relief devices must be tested protection devices. In response to rails, and bulkheads; (2) add a detailed for leaks before the filled cylinder is commenters, we are revising paragraph description of the forces involved in a transported. We are also adding (h)(1) to grant an exception from the road accident (static compressive language pertaining to repair of leaking valve assembly protection requirements longitudinal force, parallel to the fuse plug devices, also currently in for cylinders used as fire extinguishers, ground, equal to twice the weight of the § 173.34(d), that was inadvertently acetylene MC cylinders, and Medical E loaded tube trailer); and (3) add omitted in the NPRM. In addition, styles with a water capacity of 300 in3 language describing the latest several commenters suggested revising or less. technology in front safety design for the wording to prohibit a cylinder with Several commenters also suggested tube trailers. CGA stated that an in-tube a leaking PRD from being offered for that the drop test should be performed safety device has the burst disc inside transportation. We agree with the at 2 m (6.5 ft) instead of 1.8 m (6 ft) for the neck of the tube. Therefore, if a front commenters. We have included a consistency with the 2 m (6.5 ft) end collision occurs, the safety device restriction on leaking PRDs in paragraph puncture resistance requirement in will not be sheared off, and product will (a)(2) of this final rule. § 173.40. We disagree. We are not be discharged. The clarifications We are correcting the wording that prescribing a 6-foot drop test for proposed in the NPRM in paragraph (i) appeared in proposed paragraph consistency with performance primarily address service by rail. We (f)(6)(i)(B), adopted as paragraph requirements adopted for cylinders by agree with CGA that requirements for (f)(5)(i)(B) in this final rule, to state that the UN Committee of Experts on the cylinders transported horizontally by a PRD is not required on a cylinder of Transport of Dangerous Goods. The final road (DOT 3T and DOT 3AX and 3AAX 305 mm (12 inches) or less in length and rule provides a transition period of five cylinders configured as tube trailers) 114 mm (4.5 inches) or less in outside years, until October 1, 2007, for may need to be updated. However, that
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issue is beyond the scope of this Paragraph (m) proposed to prohibit (b)(1) to require any portion of the valve rulemaking. We will address this issue the use of metal cylinder attachments that contacts the oxygen in the cylinder in a future rulemaking. with sharp features that may cause to be made of brass or stainless steel. Paragraph (j) prohibits filled non-DOT damage to other packages. This proposal Several commenters pointed out that specification cylinders, except for responds to NTSB Recommendation I– proposed paragraph (b)(3) cites former certain foreign cylinders, from being 92–001, which urges RSPA to require Federal specification RR–C–901b and transported in the United States. Two attachments to DOT hazardous materials not the current RR–C–901C. The commenters asked us to revise packagings to be designed to minimize paragraph cites are corrected in this paragraph (j) to specifically permit the risk of puncturing other hazardous final rule. transportation of non-specification materials packagings. Several Paragraph (c) addresses cylinders cylinders used as fire extinguishers in commenters expressed confusion as to containing oxygen that is continuously accordance with § 173.309. We agree, the meaning of the term ‘‘sharp’’ as used fed to fish tanks. It is adopted as and have revised paragraph (j) in the NPRM. They stated that the term proposed in the NPRM. accordingly. is vague and not based on any objective Paragraph (d) permits shipment of Paragraph (k) specifies requirements measure. They also said that it is Division 2.1 materials in aluminum for transportation of foreign cylinders impossible to guarantee that any corner, cylinders only when transported by within a single port area. A commenter edge, or other feature cannot cause highway, rail, or cargo-only aircraft. A suggested we define a single port area as damage to other freight. Commenters commenter requested we revise a distance of 360 miles from any port. were also concerned that variations on paragraph (d) to authorize the That issue is beyond the scope of this how other freight is packaged, the other transportation of specification rulemaking. The U.S. Coast Guard freight’s susceptibility to impact aluminum cylinders containing Division expressed concern that this proposal damage, the vehicle speed, and the 2.1 gases by vessel. As stated above in would impose a greater burden on vehicle acceleration and deceleration the preamble discussion for § 173.192, cylinders intended to be filled in the speeds make it impossible to evaluate a we will evaluate the safety record of United States and shipped for export cylinder attachment’s performance in cylinders transported on cargo vessels only. The Coast Guard stated that the transportation. We agree it may not be under an exemption issued on August inflatable life raft servicing industry possible to prevent a corner, edge, or 30, 2001. We will consider relies on this provision to transport other feature of a cylinder attachment incorporating the terms of this foreign cylinders taken from foreign flag from damaging other freight in an exemption into a regulation of general vessels to and from servicing industries. accident. However, we believe applicability if the safety record The provision referenced by the Coast attachments can be designed to indicates that such incorporation is Guard is adopted as paragraph (l) in this minimize potential damage. In response appropriate. final rule, with no change from current to comments, the provision in this final Another commenter suggested there is requirements. Further, we issued an rule is written as a performance no scientific rationale for limiting the exemption on December 31, 2001, to standard. transportation of Division 2.1 materials authorize non-specification cylinders in aluminum cylinders to cargo-only used in self-inflating life-saving Section 173.301a aircraft. As we have previously appliances to be transported between a We are adopting, as proposed, this explained, a cylinder must be able to vessel and a USCG-approved servicing new section containing the current withstand fire without rupture for at facility. requirements for the pressure in a least 90 minutes to enable an aircraft to Another commenter opposed the cylinder at 70° F and 130° F and a reach the nearest airport and land safely proposal in the NPRM that foreign grandfather provision currently in in the event of an emergency. Heat cylinders transported within a single § 173.34(b). exposure such as a pressurized port area must be transported in a aluminum cylinder would experience in Section 173.302 closed freight container. This a fire would cause the cylinder to burst commenter stated that such foreign We are adopting this section well before 90 minutes had elapsed and cylinders must be certified by the containing general requirements for possibly disable the aircraft. importer to provide an equivalent level filling specification cylinders with a of safety as DOT specification cylinders. nonliquefied (permanent) compressed Section 173.302a For this reason, there is no need to gas. Paragraph (a) sets forth general In this final rule, we are adopting this require their transportation in a closed requirements for transporting a cylinder new section specifying requirements for freight container. We disagree. The filled with a nonliquefied compressed filling a cylinder with a nonliquefied requirement is intended to reduce the gas. It is adopted as proposed in the compressed gas. possibility a foreign cylinder may NPRM. Paragraph (a) sets forth detailed filling inadvertently be included in a load of Paragraph (b) specifies requirements requirements. A commenter requested DOT-authorized cylinders. The for aluminum cylinders in oxygen we revise the filling requirement European Industrial Gases Association service. We are revising proposed applicable to flammable gases in DOT urged us to allow the use in the United paragraph (b)(1) to require an aluminum 39 cylinders. Current § 173.302(a)(4) States of cylinders of foreign origin that cylinder in oxygen service to be says that, for DOT 39 cylinders used to have been approved for use in Europe equipped with brass or stainless steel transport flammable gas, the ‘‘internal by the European Conference of valves only. A commenter noted the volume may not exceed 75 cubic Ministers of Transport. This issue is valves on many medical oxygen inches.’’ The commenter suggested that, beyond the scope of this rulemaking. cylinders are chrome-plated in areas as currently written, it is not clear However, we may consider it in a future that do not come into contact with the whether the term ‘‘internal volume’’ action. oxygen. Our intent is to prevent oxygen refers to the amount of gas permitted in As proposed in the NPRM, we are from coming into contact with an the cylinder or the total capacity of the adopting paragraph (l), which restates aluminum valve having internal rubbing cylinder. We agree. The volume the current requirements for filling or abrading aluminum parts. Therefore, limitation is intended to apply to a foreign cylinders for export. we are revising proposed paragraph cylinder’s internal volume. In this final
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rule, we revised paragraph (a)(3) to cylinders to the authorized list of we are not adopting the proposed clarify that the restriction applies to a cylinders. We inadvertently omitted the metric-marked cylinder provisions. cylinder’s internal volume. DOT 3AL reference from the NPRM. Section 173.336 Paragraph (b) specifies special filling In paragraph (a)(3), the NPRM limits for DOT 3A, 3AX, 3AA, 3AAX, proposed extending the provision This section sets forth requirements and 3T cylinders. We are adopting limiting cylinder volume to 75 cubic for nitrogen dioxide, liquefied, and paragraph (b)(3)(iv), as proposed, to inches, which currently applies to dinitrogen tetroxide, liquefied and is provide for a cylinder’s average wall liquefied petroleum gas and Division 2.1 amended, as proposed, except we are stress calculation to be determined materials listed in the § 173.304 table, to not adopting the proposed metric- through computation of the rejection all Division 2.1 materials. One marked cylinder provisions. We are elastic expansion limit (REE) in commenter suggested this proposal correcting the referenced Federal accordance with CGA Pamphlet C–5, or would have a negative impact on Specification RR–C–901C paragraph through the use of the manufacturer’s companies using DOT 39 cylinders cites. marked REE on the cylinder. A larger than 75 cubic inches in aerosol Section 173.337 commenter requested that we also allow applications. We plan to address issues the use of the standard calculated values This section prescribes requirements related to requirements for all cylinders for nitric oxide and is amended, as listed in CGA Pamphlet C–5 or the use used in aerosol applications in a future of a previously determined REE marked proposed, except we are not adopting rulemaking. This rulemaking will the proposed metric-marked cylinder on the cylinder. It was not our intent to harmonize, to the extent possible, the prevent use of standard calculated provisions. We are correcting the U.S. cylinder regulations with referenced Federal Specification RR–C– values listed in CGA Pamphlet C–5. In international regulations recently this final rule, we revised the wording 901C paragraph cites and adding a adopted by the UN Committee of reference to § 173.40 in the introductory to authorize the use of these values. Experts on the Transport of Dangerous However, we are not authorizing the use paragraph that was inadvertently Goods. Therefore, in this final rule, we omitted in the NPRM. of an REE marking applied to the are not adopting paragraph (a)(3) as cylinder by a person other than the proposed. We will address filling limits Part 177 manufacturer because it may be for liquefied compresses gases and Section 177.840 inaccurate. Division 2.1 materials in a future We are revising current paragraph Paragraph (c) prescribes requirements rulemaking. for carbon monoxide. In response to a (a)(1) to allow horizontal loading of Paragraph (b) is reserved. CGA petition (P–1082), we are removing cylinders containing Class 2 materials if Paragraph (c) establishes requirements the 5/6 filling pressure limitation for the cylinders are designed so the inlet for verifying a cylinder’s contents and is DOT 3AL cylinders in carbon monoxide to the PRD is located in the vapor space. adopted as proposed in the NPRM. service. CGA furnished information to The cylinders must be properly secured support its conclusion that, although Paragraph (d) specifies filling during transportation. evidence shows carbon monoxide can requirements for liquefied petroleum We had proposed to require the use of cause stress corrosion cracking in steel gas and is adopted as proposed in the cylinder restraint systems to reduce the cylinders, there is no evidence carbon NPRM. One commenter requested a likelihood of cylinders being ejected monoxide causes corrosion cracking or change to the filling densities. The from a vehicle in the case of an carbonyl formation in aluminum request is beyond the scope of this accident. We issued this proposal in cylinders. We agree with CGA, and are rulemaking. It will be considered under response to NTSB Recommendation I– permitting a DOT 3AL cylinder to be a separate rulemaking. 90–008, which urges RSPA to require filled to its marked service pressure Paragraph (e) sets forth requirements hazardous materials packages to be when used for carbon monoxide. We for carbon dioxide, refrigerated liquid, secured with adequate cargo restraint also modified the paragraph to indicate and nitrous oxide, refrigerated liquid. It systems to prevent their ejection from that the 5/6 pressure limitation applies is adopted as proposed in the NPRM. the vehicle during transportation. Considering the wide variation in to steel cylinders. Section 173.305 Paragraph (d) sets forth requirements cylinder sizes, and the various types of for diborane and diborane mixtures. It is This section is revised as proposed in restraints that would be required, we adopted as proposed in the NPRM. the NPRM to add a reference to solicited information in the NPRM on § 173.301 to paragraph (b). the NTSB recommendation. We asked Section 173.304 commenters to address anticipated Section 173.306 This section specifies filling safety benefits and the costs of requiring requirements for cylinders used to This section is revised as proposed in the use of restraint systems, particularly transport liquefied compressed gas. the NPRM to change the reference for on small businesses. Numerous With minor editorial revisions, it is overpack requirements. commenters objected to the proposed amendment. They stated it is common revised as proposed in the NPRM. Section 173.315 practice to secure carbon dioxide and Section 173.304a Consistent with the NPRM, this final other Division 2.2 gases in horizontal This new section, proposed in the rule adds paragraph (q) to this section. positions. NPGA requested that we NPRM, addresses additional Paragraph (q) specifies conditions under allow Class 2 gases to be loaded in a requirements for transporting liquefied which cargo tanks containing anhydrous horizontal position if the cylinder is compressed gases in specification ammonia may be manifolded. designed so the inlet to the PRD is cylinders. Paragraph (a) specifies located in the vapor space. We agree Section 173.334 detailed filling requirements for a with NPGA that the inlet port must be number of gases, including a table of This section establishes requirements in the vapor space. maximum filling densities. As requested for organic phosphates mixed with Several commenters also objected to by commenters, this section is revised compressed gas. In this final rule, this our usage of the word ‘‘lash.’’ This term in the final rule to add DOT 3AL section is amended as proposed, except appears in the current regulations, and
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we have received no previous requests prevent the possibility of puncturing or requested we revise the wording to read for a revision. The commenters stated damaging other hazardous materials ‘‘a hazardous material having a moisture that lashing should be considered an packages. pressure dew point at or below * * *’’ appropriate means of securing We are revising paragraph (f), as They stated the change would recognize cylinders, but should not be made a proposed in the NPRM, to except DOT water as the contaminant at service prescriptive requirement. One 3E cylinders from the requirement to be pressure. NPGA stated propane has a commenter asked us to remove the marked with an inspector’s mark or dew point of ¥42.2° C (¥44° F). NPGA wording ‘‘and securely attached to serial number. noted that ASTM D–1835 ‘‘Standard Specification for Liquefied Petroleum motor vehicle.’’ The commenter stated Section 178.45 that thousands of low-pressure (LP) Gases’’ incorporates provisions to cylinders containing nonliquefied gases We are revising paragraph (h) to control moisture content and the level are shipped on stretch-wrapped pallets. update an old incorporation by of corrosive sulfur compounds in The commenter said requiring such reference. propane. NPGA urged us to adopt the pallets to be securely attached to a Section 178.46 moisture content criteria contained in motor vehicle would be overly the ASTM standard. We agree an burdensome, costly to the regulated This section prescribes requirements exception from hydrostatic test industry and consumers, and would for DOT 3AL seamless cylinders. This requirements should be granted for provide no added safety benefits. final rule revises the tables in paragraph cylinders used exclusively for the We reviewed the HM–220 comments (b)(4) to remove aluminum alloy 6351– transportation of petroleum gas that is and considered the wide range of T6 as an authorized material for the essentially free of moisture and packaging configurations and sizes that manufacture of DOT 3AL seamless corroding components. We are revising may be loaded on a vehicle. We find it cylinders. In addition, in Table 1, this the table in § 180.209(g) accordingly. neither practicable nor cost-beneficial to final rule makes several changes to the We are adopting the definitions of require carriers to secure each chemical composition limits for 6061 ‘‘condemn,’’ ‘‘defect,’’ and ‘‘elastic hazardous material package on a vehicle alloy for consistency with limits stated expansion,’’ as proposed in the NPRM. in a manner that will withstand every in The Aluminum Association The NPRM proposed a definition for conceivable accident or overturn Standards and Data, 1993 edition. The ‘‘filled.’’ A commenter stated the words situation. The current regulations currently stated silicon (Si) maximum of ‘‘charged’’ and ‘‘filled’’ are used require hazardous materials packages 0.80% is revised to read 0.8%, the interchangeably in Part 173 of the HMR containing Class 2 (gases), Class 3 currently stated iron (Fe) maximum of and suggested we add the wording ‘‘(or (flammable liquid), Division 6.1 (toxic), 0.70% is revised to read 0.7%, the charged)’’ following the word ‘‘filled.’’ Class 7 (radioactive), or Class 8 currently stated magnesium (Mg) We agree; this final rule adopts a (corrosive) materials to be secured minimum of 0.80% is revised to read definition for ‘‘filled or charged.’’ We are adopting the definition of against movement within the vehicle 0.8%, and the currently stated Mg ‘‘non-corrosive service’’ as proposed in under conditions normally incident to maximum of 1.20% is revised to read the NPRM, revised slightly for clarity. transportation. We believe this standard 1.2%. Finally, the currently stated Table 1 limit of 0.01 for the chemical We had proposed to define the term provides an acceptable level of safety. ‘‘over-heated’’ to mean a condition in However, we recognize the requirement composition of lead (Pb) and bismuth (Bi) is changed to 0.005. which any part of a cylinder has been should be broadened to include all subjected to a temperature in excess of hazardous materials packages rather Appendix to Subpart C of Part 178 176° C (350° F). Several commenters than limited to hazardous materials of We are adopting an appendix noted a temperature of 176° C (350° F) certain hazard classes. We will propose containing illustrations of the is conservatively low for steel. They these changes in a future rulemaking. recommended locations for taking test requested we reference a temperature of Part 178 specimens for specific welded cylinder 176° C (350° F) for aluminum and 343° designs. C (650° F) for nickel or steel. We agree, Section 178.35 and revised the definition accordingly This section establishes general Part 180 in this final rule. In addition, we revised requirements for cylinders. We are Part 180, Subpart C the definition to indicate that a cylinder revising paragraph (c)(3)(iv) to reference We are adopting a new subpart to is over-heated if the temperature of any a new Appendix C, which provides specify requirements for the continuing portion of the cylinder reaches the illustrations of recommended locations qualification, maintenance, repair, and specified temperatures. This change for selecting test specimens from rebuilding of DOT specification and responds to the concerns expressed by welded cylinders. In the NPRM, we exemption cylinders. Most of the firefighters discussed below under proposed the use of Appendix C for requirements are currently contained in § 180.205. metric-marked welded cylinders. §§ 173.34 and 173.301. We had proposed to define the term Although commenters opposed ‘‘over-pressurized’’ to mean a condition adoption of the metric-marked cylinder Section 180.201 in which a cylinder has been subjected proposals, they requested that we This section lists the entities to which to an internal pressure in excess of 30% include the appendix as guidance of use Subpart C applies and is adopted as of its test pressure. This definition was with non-metric-marked cylinders. proposed in the NPRM. intended to apply to the pressure to We are revising paragraph (d) of this which a cylinder may be subjected section to set forth requirements, Section 180.203 during requalification testing, not to a established elsewhere in this final rule, This section contains definitions for cylinder’s service pressure or to applicable to specification cylinders. A terms used throughout Subpart C. pressure during normal transportation cylinder may not be constructed of We are adopting the definition of operations. Since publication of the material having seams, cracks or ‘‘commercially free of corrosive NPRM, we have determined that a laminations or other defects, and metal components’’ as proposed in the NPRM. single definition for ‘‘over-pressurized’’ attachments must be constructed to CGA and several other commenters that would apply to all cylinders is not
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practicable. Pressure limits may vary not adopting a suggestion to require any proper inspection of the cylinder depending on the design specification of cylinder removed from service to be surface. the cylinder, its material of marked with a notation that the cylinder We had proposed in paragraph (f)(4) construction, and the material has been removed from service. to require DOT 3AL cylinders to be transported. Therefore, we are not We revised the proposed wording in inspected for evidence of sustained load adopting the proposed definition in this paragraph (d)(3) that read ‘‘the cylinder cracking in the neck and shoulder areas final rule. Persons who use cylinders to has been over-heated or over- in accordance with the cylinder transport hazardous materials in pressurized’’ to state, instead, that the manufacturer’s written commerce should be aware that a cylinder ‘‘shows evidence of, or is recommendation. The manufacturer’s cylinder subjected to pressures beyond known to have been’’ over-heated. We recommendation must be approved in its design capability may be rendered removed the reference to over- writing by the Associate Administrator. unfit for continued service. Any person pressurized cylinders for the reasons A commenter suggested we clarify that in possession of an over-pressurized noted above in the discussion the procedure applies only to cylinders cylinder must determine the cylinder’s concerning the definition for ‘‘over- made of aluminum alloy 6351–T6. We suitability for continued use prior to pressurized.’’ Any person in possession agree. In this final rule, we revised the offering the cylinder for transportation of an over-pressurized cylinder must provision to require the inspection only in commerce. determine the cylinder’s suitability for for DOT specification or exemption We are adopting the definitions for continued use prior to offering the cylinders made of aluminum alloy ‘‘permanent expansion,’’ ‘‘proof cylinder for transportation in commerce. 6351–T6. pressure test,’’ ‘‘rebuild,’’ ‘‘rejected Paragraph (e) addresses cylinders We are not adopting the provision in cylinder,’’ ‘‘repair,’’ ‘‘requalification,’’ containing Class 8 liquids. In this final paragraph (g) to require the pressure test ‘‘requalification identification number rule, we modified the paragraph for to be conducted in accordance with the consistency and clarity. or RIN,’’ ‘‘test pressure,’’ ‘‘total procedures in paragraphs 4 and 5 of Paragraph (f) sets forth visual expansion,’’ ‘‘visual inspection,’’ and CGA Pamphlet C–1. One commenter inspection requirements. A commenter ‘‘volumetric expansion test’’ as objected to incorporation of Pamphlet proposed in the NPRM. suggested we revise the paragraph (f) introductory text to require an internal C–1. In addition, it is our understanding Section 180.205 and an external visual inspection to be that CGA is in the process of completely This section prescribes general performed prior to the pressure test, and revising the C–1 standard. In this final requirements for the continuing another internal inspection for rule, we revised paragraph (g) to qualification and use of cylinders and contaminants and damaged threads after incorporate the requirements for for persons who perform cylinder the pressure test. The commenter stated pressure testing cylinders that are requalification functions. Paragraph (a) that performing the visual inspection currently in § 173.34(e)(4). We will states that a cylinder must be an prior to the pressure test will save time consider incorporating the revised C–1 authorized packaging. Paragraph (b) sets if the cylinder is unfit for pressure standard in a future rulemaking. forth requirements for persons testing. The commenter stated that a We had proposed to provide for use performing requalification functions. cylinder that ruptures during the of an ultrasonic examination as an We are adopting both as proposed in the pressure test can damage equipment and alternative requalification method. We NPRM. property and may cause operational had also proposed to allow other In response to comments, we made delays. We disagree. Some requalifiers nondestructive test methods with the several editorial revisions to paragraph have modernized their operations and approval of the Associate Administrator. (c). Several commenters requested we perform hydrostatic tests on all As discussed in the above referenced revise the paragraph to state a cylinder cylinders, followed by visual HM–220 termination notice, we are not may be requalified at any time prior to inspections. We find no reason to limit adopting these provisions. We will the date requalification is due. They the requalifiers’ flexibility in deciding continue to permit the use of ultrasonic also suggested we reiterate the whether to perform the visual examinations and other nondestructive restriction against filling and offering a requalifications before or after the methods under the exemption program. cylinder for transportation after its pressure test. Paragraph (h) establishes criteria for authorized service life has expired. We We are revising paragraph (f)(2) to rejecting cylinders. We are adopting the agree, and include the suggested require any coating or attachments that provision in paragraph (h)(1) changes in this final rule. Also, we are would inhibit inspection of the cylinder prohibiting a rejected cylinder from revising paragraph (c)(4) to require the to be removed prior to performing a being marked as meeting the set pressure of PRDs on DOT–3 series visual inspection. We had proposed to requirements of this section. A cylinders to be set at test pressure with require any vinyl or plastic coating on commenter requested we revise the a tolerance of plus zero to minus 10% a cylinder to be completely removed paragraph to recognize that CGA at the first requalification due on or after prior to performing a visual inspection. Pamphlet C–6.2 establishes levels of October 1, 2002, as discussed in the CGA suggested we revise the provision damage for fiber reinforced exemption preamble discussion to 173.301(f)(4). to apply only to cylinders with cylinders, some of which is repairable. Two commenters suggested we revise removable vinyl or plastic coatings. This issue is more appropriately paragraph (d), which prescribes Other commenters suggested the addressed in the specific exemptions conditions requiring test and inspection removal of both internal and external authorizing use of fiber reinforced of cylinders, to require the vinyl or plastic coatings and, when cylinders. Provided it is permitted requalification of any DOT specification necessary, layers of paint. A different under the exemption, repairs of such cylinder used for nonhazardous material commenter questioned whether wire cylinders in accordance with CGA service prior to its being returned to wrapping should be remove prior to Pamphlet C–6.2 are permitted. hazardous material service. This change performing the inspection. In Paragraph (h)(4)(iii) of this final rule is beyond the scope of this rulemaking consideration of the comments, we are permits a cylinder with a service and, therefore, is not adopted in this requiring the removal of any coating, pressure of less than 900 psig to be final rule. For the same reason, we are attachment, or wrapping that hinders repaired in accordance with an
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exemption covering the manufacture, 10 years for a DOT 3A and 3AA cylinder Section 180.211 requalification, or use of the cylinder. with a water capacity of 125 pounds or This section prescribes repair, Paragraph (i) sets forth criteria for less that is used for certain named gases. rebuild, and heat treatment condemning cylinders. We had A commenter stated numerous new requirements currently prescribed in proposed in paragraph (i)(1)(viii) to refrigerants and blends are being §§ 173.34(g) thru 173.34(l), with certain require an aluminum or aluminum- marketed and requested we allow revisions. We received no comments on lined cylinder to be condemned if cylinders containing ‘‘fluorinated these provisions and are adopting them exposed to a temperature exceeding hydrocarbons, liquefied hydrocarbons, as proposed with editorial revisions for 177° C (350° F). Numerous commenters and mixtures thereof which are clarity. We are not adopting the representing fire fighters and emergency commercially free from corroding proposed requirements for metric- responder organizations strongly components’ to be requalified every 10 marked cylinders. objected to the proposal. They stated it years rather than every 5 years. The would require the removal of aluminum commenter also pointed out that we Section 180.213 and composite exemption cylinders authorized these materials under DOT This section consolidates the marking used as self-contained breathing Exemptions 10184 and 12084. Several requirements currently contained in apparatus (SCBAs) based on possible other commenters requested we add § 173.34, with certain revisions. These exposure to temperatures in excess of certain other gases to the list. We agree marking requirements identify the type 350° F. These commenters noted that the listing in paragraph (b)(1)(ii) should of inspection, test, or work performed most SCBAs are exposed to be updated. In this final rule, we are on a cylinder. Locating the marking temperatures exceeding 177° C (350° F) revising this paragraph to accommodate requirements in a single section of the whenever they are carried into a fire. commenters concerns. The commenters suggested that the Paragraph (c) sets forth requalification HMR will facilitate their use by NPRM proposal would require requirements for DOT 4-series cylinders, shippers, carriers, and enforcement replacement of SCBAs after each fire and is adopted as proposed in the personnel. exposure, resulting in substantial costs NPRM. We had proposed to allow the to the emergency response community. Paragraph (d) prescribes application of requalification markings Our intent was to require the removal requalification requirements for by stamping, engraving, scribing, or any from service of any aluminum cylinder cylinders 12 pounds or less with service other method approved in writing by or aluminum-lined composite pressures of 300 psig or less, and is the Associate Administrator. NSWA and exemption cylinder with reduced adopted a proposed in the NPRM. another commenter objected to the structural integrity resulting from the Paragraph (e) includes requirements permissive use of electric or manual metal temperature of the aluminum for proof pressure testing for certain scribes as an alternative method. They cylinder or liner reaching a temperature DOT–4 series cylinders, and is adopted stated markings made by a scribe are of above 350° F. Such cylinders may pose as proposed in the NPRM. poor quality, particularly over multiple a safety risk. We did not intend to Paragraph (f) sets forth requalification coats of paint, and should not be require the removal of undamaged requirements for cylinders used to permitted. Also, NSWA stated that, cylinders from service. During typical transport poisonous materials, and is unless specifically approved for firefighting operations, the metal adopted as proposed in the NPRM. flammable atmospheres, electrical temperature of an aluminum cylinder or We are revising paragraph (g) to apparatuses may create a safety hazard liner does not reach temperatures above clarify the interval for performance of a when used to mark cylinders containing 350° F. We are revising the paragraph to visual inspection, in place of a five-year flammable gases or in plants where require a cylinder to be condemned if periodic retest, for cylinders used flammable gases may be present. The over-heated. As defined in § 180.203 of exclusively for the listed non-corrosive proposal was fully accepted by other this final rule, for an aluminum gases. commenters. Because of concerns raised cylinder, ‘‘over-heated’’ means that the Paragraph (h) sets forth requalification about the quality of certain marking metal temperature of any part of the requirements for cylinders used to methods and to alleviate unnecessary cylinder has reached a temperature in transport anhydrous ammonia, and is delays incurred by obtaining an excess of 350° F. adopted as proposed in the NPRM. approval from the Associate Paragraph (i) sets forth requalification Administrator, we have revised this Section 180.209 requirements for DOT–8 series provision in this final rule. We will This section includes the cylinders, currently in § 173.34(e)(18). permit the use of any marking method requirements currently contained in The provision requires the replacement capable of producing durable, legible § 173.34(e) for the periodic valve to be the same weight as the valve marks. A cylinder with illegible requalification of specification to be replaced. If it is not, the cylinder’s requalification markings will be cylinders. marked tare weight must be adjusted to considered out-of-test and will have to Paragraph (a) sets forth specific compensate for the valve weight be retested before being returned to periodic requalification requirements differential. The Chlorine Institute and service. Also, we are allowing the use of for each specification cylinder. As two valve manufacturers requested we pressure sensitive labels to display the discussed elsewhere in this preamble, revise paragraph (i)(3) to allow a requalification markings on fire we are not adopting the proposal to tolerance on the replacement valve extinguishers, as proposed. permit ultrasonic testing in place of a weight to compensate for variations. Section 180.215 hydrostatic test. Ultrasonic testing will The valve manufacturers suggested the continue to be permitted under tolerance should be a stated weight or This section contains the reporting exemption. a percentage of the weight of the valve and record retention requirements Paragraph (b) establishes being replaced. They recommended no currently prescribed in § 173.34(e)(8), requalification requirements for DOT 3A specific weight or percentage. In the with certain revisions. and 3AA cylinders. We are revising the absence of a specific recommendation, We revised the retester authorization provision in paragraph (b)(1) to increase we are adopting the provision as stated record requirements in current the requalification interval from five to in the NPRM. § 173.34(e)(8)(i) to include all cylinder
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requalifiers who inspect, test, repair, or transportation safety. The potential This final rule addresses covered rebuild cylinders. In addition, proposed benefits to society more than offset the subject items 2 and 5 above and paragraph (d)(1) requires records potential costs associated with the final preempts state, local, and Indian tribe covering any work involving welding or rule. requirements not meeting the brazing repairs, or the building or reheat ‘‘substantively the same’’ standard. This B. Regulatory Flexibility Act treatment of cylinders to be retained by final rule is necessary to assure an the cylinder requalifier for 15 years. The The Regulatory Flexibility Act (5 acceptable level of safety for the requalifier must retain inspection and U.S.C. 601 et seq.) requires an agency to transportation of hazardous materials in test records until expiration of the review regulations to assess their impact cylinders. inspection or requalification period or on small entities unless the agency Federal hazardous materials until the cylinder is again requalified, determines a rule is not expected to transportation law provides at section whichever occurs first. Records of any have a significant economic impact on 5125(b)(2) that, if DOT issues a welding or brazing repair, rebuilding or a substantial number of small entities. regulation concerning any of the reheat treatment must be retained for 15 This final rule imposes only minimal covered subjects, DOT must determine years. new costs of compliance on the and publish in the Federal Register the regulated industry and, in fact, should effective date of federal preemption. The IV. Regulatory Analyses and Notices reduce overall costs of compliance. effective date may not be earlier than A. Executive Order 12866 and DOT Based on the assessment in the the 90th day following the date of Regulatory Policies and Procedures regulatory evaluation, I hereby certify issuance of the final rule and not later that while this final rule applies to a than two years after the date of issuance. This final rule is not considered a substantial number of small entities, The effective date of federal preemption significant regulatory action under there will not be a significant economic of this final rule is 90 days from section 3(f) of Executive Order 12866. It impact on those small entities. A publication of this final rule in the was reviewed informally by the Office detailed Regulatory Flexibility analysis Federal Register. of Management and Budget. The rule is is available for review in the docket. not considered significant under the D. Executive Order 13175 Regulatory Policies and Procedures of C. Executive Order 13132 This final rule has been analyzed in the Department of Transportation (44 FR This final rule has been analyzed in accordance with the principles and 11034). A regulatory evaluation is accordance with the principles and criteria contained in Executive Order available for review in the docket. criteria contained in Executive Order 13175 (‘‘Consultation and Coordination The compliance costs associated with 13132 (‘‘Federalism’’). This final rule with Indian Tribal Governments’’). this final rule are minimal. Most preempts state, local, and Indian tribe Because this final rule does not increased compliance costs involve the requirements but does not propose any significantly or uniquely affect the new requirement for a person who regulation with substantial direct effects communities of the Indian tribal performs visual inspections of cylinders on the states, the relationship between governments and does not impose to obtain approval from the Associate the national government and the states, substantial direct compliance costs, the Administrator and mark his RIN number or the distribution of power and funding and consultation requirements on the cylinders he inspects. The responsibilities among the various of Executive Order 13175 do not apply. aggregate cost to the industry of this levels of government. Therefore, the new requirement is $29,520 per year. E. Unfunded Mandates Reform Act of consultation and funding requirements 1995 On a per facility basis, the cost is $20.50 of Executive Order 13132 do not apply. per filing or $4.10 per year. Although Federal hazardous materials This final rule does not impose they are difficult to quantity, the transportation law, 49 U.S.C. 5101– unfunded mandates under the benefits associated with the provisions 5127, contains an express preemption Unfunded Mandates Reform Act of in this final rule are significant. This provision (49 U.S.C. 5125(b)) 1995. It does not result in costs of $100 final rule will: (1) Enhance the preempting state, local, and Indian tribe million or more, in the aggregate, to any accountability of the cylinder requirements on certain covered of the following: State, local, or Indian requalification process; (2) improve subjects. Covered subjects are: tribal governments, or the private sector. voluntary compliance with the cylinder (1) The designation, description, and This rule is the least burdensome requirements; (3) enhance enforcement classification of hazardous materials; alternative to achieve the objective of related to cylinder requalifications; and (2) The packing, repacking, handling, the rule. (4) reduce the regulatory burden on the labeling, marking, and placarding of F. Paperwork Reduction Act regulated industry while increasing its hazardous materials; flexibility and providing an opportunity (3) The preparation, execution, and RSPA has current information to use new technologies. Further, this use of shipping documents related to collection approvals under OMB No. final rule will improve cylinder hazardous materials and requirements 2137–0022, Testing, Inspection, and transportation safety by reducing the related to the number, contents, and Marking Requirements for Cylinders, number of unintentional releases of placement of those documents; with 168,431 burden hours and flammable and toxic material from (4) The written notification, $10,882,516 annual costs, which expires DOT–3 series cylinders, prohibiting the recording, and reporting of the October 31, 2004; and OMB No. 2137– use of an unsafe aluminum alloy for unintentional release in transportation 0557, Approvals for Hazardous cylinder manufacture, and prohibiting of hazardous material; or Materials, with 18,381 burden hours the use of a cylinder after the expiration (5) The design, manufacture, and $413,737.40 annual costs, which of its service life. Although we cannot fabrication, marking, maintenance, expires July 31, 2004. We believe that assign definitive dollar amounts to these recondition, repair, or testing of a this rule may result in a minimal potential benefits, we believe that, taken packaging or container represented, increase or decrease in annual burden together, the provisions of this final rule marked, certified, or sold as qualified hours and costs. These current are the least costly alternatives available for use in transporting hazardous approvals have been revised and for ensuring an acceptable level of material. submitted to OMB for extension and re-
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approval. Under the Paperwork Because this final rule broadens the environmental damage associated with Reduction Act of 1995, no person is approval requirements for affected such releases. We find that there are no required to respond to an information persons who requalify cylinders and significant environmental impacts collection unless it displays a valid relocates cylinder requalification associated with this final rule. OMB control number. requirements to other sections of the List of Subjects The information collection and HMR, we revised the current burden recordkeeping requirements in current hour submission and resubmitted the 49 CFR Part 107 §§ 173.34, 173.302(c), and 178.35 revised submission to OMB for Administrative practice and (pertaining to records prepared by extension and re-approval. procedure, Hazardous materials persons performing the requalification, We estimate the total revised transportation, Packaging and repair, rebuild and use of cylinders) and information collection and containers, Penalties, Reporting and requirements in current § 173.34 recordkeeping burden in this rule as recordkeeping requirements. (pertaining to persons seeking approval follows: to requalify cylinders) were approved by OMB No. 2137–0022: 49 CFR Part 171 the Office of Management and Budget Number of Respondents: 139,352. Exports, Hazardous materials (OMB) and assigned OMB No. 2137– Total Annual Responses: 153,287. transportation, Hazardous waste, 0022, with an expiration date of October Total Annual Burden Hours: 168,431. Imports, Incorporation by reference, 31, 2004. This information is used to Total Annual Burden Cost: Reporting and recordkeeping verify that cylinders meet the required $10,882,516.00. requirements. OMB No. 2137–0557: manufacturing standards prior to being 49 CFR Part 172 authorized for initial use, and that, once Number of Respondents: 10,718. Total Annual Responses: 11,069. manufactured, the cylinders are Hazardous materials transportation, Total Annual Burden Hours: 25,581 maintained and used in compliance Hazardous waste, Labeling, Packaging (1st year). with applicable requirements of the and containers, Reporting and Total Annual Burden Cost: HMR. In this rule, these information recordkeeping requirements. $561,337.40 (1st year). collection and recordkeeping Subsequent years 2–5 Burden Hours: 49 CFR Part 173 requirements for records used to verify 1,440 per year. Hazardous materials transportation, that cylinders are being properly Subsequent years 2–5 Burden Cost: Incorporation by reference, Packaging maintained for continuing hazardous $29,520 per year. and containers, Radioactive materials, material service are revised and Requests for a copy of the information Reporting and recordkeeping redesignated in new §§ 180.205, collections should be directed to requirements, Uranium. 180.209, 180.211, 180.213, and 180.215, Deborah Boothe, Office of Hazardous with no change in burden. Materials Standards (DHM–10), 49 CFR Part 177 The information collection and Research and Special Programs Hazardous materials transportation, recordkeeping requirements in current Administration, Room 8102, 400 Motor vehicle safety, Packaging and §§ 173.300a and 173.300b (pertaining to Seventh Street, SW., Washington, DC containers, Reporting and recordkeeping persons seeking approval to be an 20590–0001, Telephone (202) 366–8553. requirements. independent inspection agency and for chemical analyses and tests of DOT G. Regulation Identifier Number (RIN) 49 CFR Part 178 specification and exemption cylinders A regulation identifier number (RIN) Hazardous materials transportation, conducted outside the United States) is assigned to each regulatory action Incorporation by reference, Packaging were approved by OMB and assigned listed in the Unified Agenda of Federal and containers, Reporting and OMB No. 2137–0557, with an expiration Regulations. The Regulatory Information recordkeeping requirements. date of July 31, 2004. The information Service Center publishes the Unified 49 CFR Part 179 is used to evaluate an applicants’s Agenda in April and October of each qualification to perform the applicable year. The RIN contained in the heading Hazardous materials transportation, requalification functions and to ensure of this document can be used to cross- Incorporation by reference, Railroad that cylinders made outside the United reference this action with the Unified safety, Reporting and recordkeeping States conform to the applicable HMR Agenda. requirements. requirements. In this rule, the 49 CFR Part 180 information collection and H. Environmental Assessment Hazardous materials transportation, recordkeeping requirements are moved This final rule incorporates new Incorporation by reference, Motor to new subpart I of part 107 and cylinder technologies through new and vehicle safety, Packaging and §§ 107.803, 107.805, 107.807, and updated incorporations by reference of containers, Reporting and recordkeeping 180.205(c). This final rule includes a consensus standards developed by CGA; requirements. new information collection and increases flexibility for cylinder recordkeeping requirement for persons manufacturers, requalifiers, and users; In consideration of the foregoing, title seeking approval to perform and facilitates compliance with the 49, Chapter I, Subchapters A and C of requalification functions that require HMR by clarifying and reorganizing the Code of Federal Regulations, are marking a date on a cylinder. This new regulatory requirements applicable to amended as follows: requirement is placed with the other cylinders. In addition, this final rule PART 107—HAZARDOUS MATERIALS hazardous materials approval improves the overall safety performance PROGRAM PROCEDURES requirements under OMB control of DOT specification cylinders by number 2137–0557. This new approval addressing several identified safety 1. The authority citation for part 107 is required every five years; therefore, problems. To the extent that this final continues to read as follows: first year and subsequent years’ rule will reduce unintentional releases Authority: 49 U.S.C. 5101–5127, 44701; estimates are included in the burden of hazardous materials from cylinders Sec. 212–213, Pub. L. 104–121, 110 Stat. 857; estimates for OMB No. 2137–0557. during transportation, it will reduce 49 CFR 1.45, 1.53.
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§ 107.1 [Amended] (b) Criteria. No applicant for approval part 178 or subpart C of part 180 of this 2. In § 107.1, the definition of as an independent inspection agency chapter or under the terms of an ‘‘Registration’’ is amended by removing may be engaged in the manufacture of exemption issued under this part. the wording ‘‘registration with RSPA as cylinders for use in the transportation of (b) Independent Inspection Agency a cylinder retester pursuant to 49 CFR hazardous materials, or be directly or Review. Each applicant must arrange for 173.34(e)(1), or’’. indirectly controlled by, or have a an independent inspection agency, 3. Subpart I is added to part 107 to financial involvement with, any entity approved by the Associate read as follows: that manufactures cylinders for use in Administrator pursuant to this subpart, Subpart I—Approval of Independent the transportation of hazardous to perform a review of its inspection or Inspection Agencies, Cylinder Requalifiers, materials, except for providing services requalification operation. The person and Non-domestic Chemical Analyses and as an independent inspector. seeking approval must bear the cost of Tests of DOT Specification Cylinders (c) Application information. Each the inspection. A list of approved Sec. applicant must submit an application in independent inspection agencies is 107.801 Purpose and scope. conformance with § 107.705 containing available from the Associate 107.803 Approval of independent the information prescribed in Administrator at the address listed in inspection agency. § 107.705(a). In addition, the application § 107.705. Assistance in obtaining an 107.805 Approval of cylinder requalifiers. must contain the following information: approval is available from the same 107.807 Approval of non-domestic (1) Name and address of each facility address. chemical analyses and tests. where tests and inspections are to be (c) Application for approval. If the Subpart I—Approval of Independent performed. inspection performed by an Inspection Agencies, Cylinder (2) Detailed description of the independent inspection agency is Requalifiers, and Non-domestic inspection and testing facilities to be completed with satisfactory results, the Chemical Analyses and Tests of DOT used by the applicant. applicant must submit a letter of Specification Cylinders (3) Detailed description of the recommendation from the independent applicant’s qualifications and ability to inspection agency, an inspection report, § 107.801 Purpose and scope. perform the inspections and to verify and an application containing the (a) This subpart prescribes procedures the inspections required by part 178 of information prescribed in § 107.705(a). for— this chapter or under the terms of an In addition, the application must (1) A person who seeks approval to be exemption issued under this part. contain— an independent inspection agency to (4) Name, address, and principal (1) The name of the facility manager; perform cylinder inspections and business activity of each person having (2) The DOT specification/exemption verifications required by parts 178 and any direct or indirect ownership interest cylinders that will be inspected, tested, 180 of this chapter; in the applicant greater than three repaired, or rebuilt at the facility; (2) A person who seeks approval to percent and any direct or indirect (3) A certification that the facility will engage in the requalification (e.g., ownership interest in each subsidiary or operate in compliance with the inspection, testing, or certification), division of the applicant. applicable requirements of subchapter C rebuilding, or repair of a cylinder (5) Name of each individual whom of this chapter; and manufactured in accordance with a DOT the applicant proposes to employ as an (4) The signature of the person specification under subchapter C of this inspector and who will be responsible making the certification and the date on chapter or under the terms of an for certifying inspection and test results, which it was signed. exemption issued under this part; and a statement of that person’s (d) Issuance of requalifier (3) A person who seeks approval to qualifications. identification number (RIN). The perform the manufacturing chemical (6) An identification or qualification Associate Administrator issues a RIN as analyses and tests of DOT specification number assigned to each inspector who evidence of approval to requalify DOT or exemption cylinders outside the is supervised by a certifying inspector specification/exemption cylinders if it is United States. identified in paragraph (c)(3) of this determined, based on the applicant’s (b) No person may engage in a section. submission and other available function identified in paragraph (a) of (7) A statement that the applicant will information, that the applicant’s this section unless approved by the perform its functions independent of the qualifications and, when applicable, Associate Administrator in accordance manufacturers and owners of the facility are adequate to perform the with the provisions of this subpart. Each cylinders. requested functions in accordance with person must comply with the applicable (8) The signature of the person the criteria prescribed in subpart C of requirements in this subpart. In certifying the approval application and Part 180 of this chapter. addition, the procedural requirements the date on which it was signed. (e) Expiration of RIN. Unless in subpart H of this part apply to the (d) Facility inspection. Upon the otherwise provided in the issuance filing, processing, and termination of an request of the Associate Administrator, letter, an approval expires five years approval issued under this subpart. the applicant must allow the Associate from the date of issuance, provided the Administrator or the Associate applicant’s facility and qualifications § 107.803 Approval of independent Administrator’s designee to inspect the are maintained at or above the level inspection agency. applicant’s facilities and records. The observed at the time of inspection by the (a) General. Prior to performing person seeking approval must bear the independent inspection agency, or at cylinder inspections and verifications cost of the inspection. the date of the certification in the required by parts 178 and 180 of this application for approval for requalifiers chapter, a person must apply to the § 107.805 Approval of cylinder requalifiers. only performing inspections made Associate Administrator for an approval (a) General. A person must meet the under § 180.209(g) of this chapter. as an independent inspection agency. A requirements of this section to be (f) Exceptions. Notwithstanding the person approved as an independent approved to inspect, test, certify, repair, requirements in paragraphs (b) and (c) inspection agency is not an RSPA agent or rebuild a cylinder in accordance with of this section, a person who only or representative. a DOT specification under subpart C of performs inspections in accordance
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with § 180.209(g) of this chapter may chemical analyses and tests of those applicant or holder must bear the cost submit an application that, in addition cylinders outside the United States. of the initial and subsequent to the information prescribed in (b) Application for approval. Each inspections, analyses, and tests. § 107.705(a), identifies the DOT applicant must submit an application specification/exemption cylinders to be containing the information prescribed in PART 171—GENERAL INFORMATION, inspected; certifies the requalifier will § 107.705(a). In addition, the application REGULATIONS, AND DEFINITIONS operate in compliance with the must contain— (1) The name, address, and a 4. The authority citation for part 171 applicable requirements of subchapter C continues to read as follows: of this chapter; certifies the persons description of each facility at which performing inspections have been cylinders are to be manufactured and Authority: 49 U.S.C. 5101–5127; 49 CFR trained and have the information chemical analyses and tests are to be 1.53. performed; contained in each applicable CGA 5. In § 171.2, paragraph (d)(3) is pamphlet incorporated by reference in (2) Complete details concerning the dimensions, materials of construction, revised to read as follows: § 171.7 of this chapter applicable to the wall thickness, water capacity, shape, requalifiers’ activities; and includes the § 171.2 General requirements. type of joints, location and size of signature of the person making the * * * * * openings and other pertinent physical certification and the date on which it (d) * * * characteristics of each specification or was signed. Each person must comply exemption cylinder for which approval (3) Test dates associated with with the applicable requirements in this is being requested, including specification, registration, approval, subpart. In addition, the procedural calculations for cylinder wall stress and retest, exemption, or requalification requirements in subpart H of this part wall thickness, which may be shown on identification number (RIN) markings apply to the filing, processing and a drawing or on separate sheets attached indicating compliance with a test or termination of an approval issued under to a descriptive drawing; retest requirement of this subchapter, or this subpart. After September 30, 2003, (3) The name of the independent an exemption, an approval, or a no person may requalify a DOT inspection agency to be used; and registration issued under this specification/exemption cylinder in (4) The signature of the person subchapter or subchapter A of this accordance with § 180.209(g) of this making the certification and the date on chapter. chapter unless that person has been which it was signed. * * * * * issued a RIN as provided in paragraph (c) Facility inspections. Upon the 6. In § 171.6, the table in paragraph (d) of this section. request of the Associate Administrator, (b)(2) is amended by revising the entries the applicant must allow the Associate § 107.807 Approval of non-domestic for 2137–0022 and 2137–0057, to read chemical analyses and tests. Administrator or the Associate as follows: Administrator’s designee to inspect the (a) General. A person who seeks to applicant’s cylinder manufacturing and § 171.6 Control numbers under the manufacture DOT specification or testing facilities and records, and must Paperwork Reduction Act. exemption cylinders outside the United provide such materials and cylinders for * * * * * States must seek an approval from the analyses and tests as the Associate (b) * * * Associate Administrator to perform the Administrator may specify. The (2) Table.
Current OMB Control No. Title Title 49 CFR part or section where identified or described
******* 2137–0022 ...... Testing, Inspection, and Marking Secs. 173.302a, 173.303, 173.304, 173.309, 178.2, 178.3, 178.35, Requirements for Cylinders. 178.44, 178.45, 178.46, 178.57, 178.59, 178.60, 178.61, 178.68, 180.205, 180.209, 180.211, 180.213, 180.215.
******* 2137–0557 ...... Approvals for Hazardous Materials Secs. 107.402; 107.403; 107.405; 107.503; 107.705; 107.713; 107.715; 107.717; 107.803; 107.805; 107.807; 110.30; 172.101; 172.102, Special Provisions 26, 19, 53, 55, 60, 105, 118, 121, 125, 129, 131, 133, 136; 172.102, Special Provisions B45, B55, B61, B69, B77, B81, N10, N72, Code: T42; 173.2a; 173.4; 173.7; 173.21; 173.22; 173.24; 173.38; 173.31; 173.51; 173.56; 173.58; 173.59; 173.124; 173.128; 173.159; 173.166; 173.171; 173.214; 173.222; 173.224; 173.225; 173.245; 173.301; 173.305; 173.306; 173.314; 173.315; 173.316; 173.318; 173.334; 173.340; 173.411; 173.433; 173.457; 173.471; 173.472; 173.473; 173.476; 174.50; 174.63; 175.10; 175.701; 176.168; 176.340; 176.704; 178.3; 178.35; 178.47; 178.53; 178.58; 178.270–3; 178.270–13; 178.273; 178.274; 178.503; 178.509; 178.605; 178.606; 178.608; 178.801; 178.813; 180.213.
*******
7. In § 171.7, in the table in paragraph a. In the entry ASTM A 240/A 240M– b. The entry ASTM A 388–67 is (a)(3), the following changes are made: 94b, the wording ‘‘A 240M–94b’’ is removed. revised to read ‘‘A 240M–99b’’. c. In the entry ASTM E 8–89, the wording ‘‘E 8–89 Tension Testing of
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Metallic Materials’’ is revised to read ‘‘E 180.205; 180.209; 180.211;’’ are added, n. In the entry CGA Pamphlet C–14, 8–99 Standard Test Methods for in numerical order. in column 2, the reference ‘‘173.34’’ is Tension Testing of Metallic Materials’’. h. In the entry CGA Pamphlet C–6.1, removed and the reference ‘‘173.301’’ is d. In the entry ASTM E 23–60, in in column 2, the reference ‘‘173.34’’ is added, in its place. column 1, the wording ‘‘E 23–60 removed and the references ‘‘180.205; o. In the entry CGA Pamphlet S–1.1, Notched Bar Impact Testing of Metallic 180.209’’ are added, in its place. in column 2, the reference ‘‘173.34’’ is Materials’’ is revised to read ‘‘E 23–98 i. In the entry CGA Pamphlet C–6.2, removed and the reference ‘‘173.301; Standard Test Methods for Notched Bar in column 2, the reference ‘‘173.34’’ is 173.304a.’’ is added, in its place. Impact Testing of Metallic Materials’’ removed and the reference ‘‘180.205’’ is p. Under General Services and in column 2, the reference ‘‘; added, in its place. Administration, in the entry Federal Specification RR–C–901C, in column 2, 179.400’’ is removed. j. In the entry CGA Pamphlet C–6.3, the reference ‘‘173.304;’’ is removed and e. In the entry CGA Pamphlet C–3, in in column 2, the reference ‘‘173.34’’ is the reference ‘‘; 173.337’’ is added, in column 1, the wording ‘‘Standards for removed and the references ‘‘180.205; numerical order. Welding and Brazing on Thinned 180.209’’ are added, in its place. Walled Containers, 1975’’ is revised to q. Two new entries are added in k. In the entry CGA Pamphlet C–8, in alphanumeric sequence under American read ‘‘Standards for Welding on Thin- column 2, the reference ‘‘173.34’’ is Walled Steel Cylinders, 1994’’ and in Society for Testing and Materials, the removed and the reference ‘‘180.205’’ is address for Compressed Gas column 2, the reference ‘‘; 180.211’’ is added, in its place. added, in numerical order. Association, Inc., is revised, and two l. In the entry CGA Pamphlet C–12, in new entries are added in alphanumeric f. In the entry CGA Pamphlet C–5, in column 2, the reference ‘‘173.34;’’ is sequence under Compressed Gas column 2, the reference ‘‘173.302’’ is removed and the reference ‘‘173.301;’’ is Association, to read as follows: removed and the reference ‘‘173.302a’’ added, in numerical order. is added in its place. m. In the entry CGA Pamphlet C–13, § 171.7 Reference material. g. In the entry CGA Pamphlet C–6, in in column 2, the reference ‘‘173.34;’’ is (a) * * * column 2, the reference ‘‘173.34;’’ is removed and the references ‘‘; 180.205; (3) Table of material incorporated by removed and the references ‘‘173.198; 180.209.’’ are added, in numerical order. reference. ***
49 CFR ref- Source and name of material erence
******* American Society for Testing and Materials * * *
******* ASTM D 1835–97, Standard Specification for Liquefied Petroleum (LP) Gases 180.209
******* ASTM E 213–98, Standard Practice for Ultrasonic Examination of Metal Pipe and Tubing 178.45
******* Compressed Gas Association, Inc., 4221 Walney Road, 5th Floor, Chantilly, Virginia 20151
******* CGA Pamphlet P–20, Standard for the Classification of Toxic Gas Mixtures, 1995 ...... 173.115
******* CGA Pamphlet S–7, Method for Selecting Pressure Relief Devices for Compressed Gas Mixtures in Cylinders, 1996 ...... 173.301
*******
* * * * * requirements of § 173.301(j) through (l) Authority: 49 U.S.C. 5101–5127; 49 CFR of this subchapter or, for Canadian 1.53. § 171.8 [Amended] manufactured cylinders, to the 8. In § 171.8, in the definition of requirements of § 171.12a(b)(13). 11. In § 172.101, the Hazardous ‘‘Filling density’’, paragraph (1) is * * * * * Materials Table is amended by revising amended by revising the reference the entries Cyanogen, Germane, and ‘‘§ 173.304(a)(2) table note 1’’ to read PART 172—HAZARDOUS MATERIALS Iron pentacarbonyl, to read as follows: ‘‘§ 173.304a(a)(2) table note 1’’. TABLE, SPECIAL PROVISIONS, 9. In § 171.12, paragraph (b)(15) is HAZARDOUS MATERIALS § 172.101 Purpose and use of hazardous revised to read as follows: COMMUNICATIONS, EMERGENCY materials table. RESPONSE INFORMATION, AND § 171.12 Import and export shipments. * * * * * TRAINING REQUIREMENTS * * * * * (b) * * * 10. The authority citation for part 172 (15) Cylinders not manufactured to a continues to read as follows: DOT specification must conform to the
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§ 172.101.—HAZARDOUS MATERIALS TABLE
Haz- (8) (9) (10) ardous Packaging (§ 173.***) Quanity limitations Vessel stowage materials descrip- Hazard Identifica- Label Special provi- Symbols tions and class or tion num- PG codes sions Pas- proper division bers (§ 172.102) Excep- Nonbulk Bulk senger Cargo air- Loca- Other shipping tions aircraft/rail craft only tion names
(1) (2) (3) (4) (5) (6) (7) (8A) (8B) (8C) (9A) (9B) (10A) (10B)
******* Cyanogen 2.3 UN1026 .. 2.3, 2.1.. 2 ...... None .... 304 ...... 245 ..... Forbidden Forbidden D ...... 40
******* Germane 2.3 UN2192 .. 2.3, 2.1.. 2 ...... None .... 302 ...... 245 ..... Forbidden Forbidden D ...... 40 Iron penta 6.1 UN1994 .. I ...... 6.1, 3 ..... 1,B9, B14, None .... 226 ...... 244 ..... Forbidden Forbidden D ...... 40 car- B30, B72, bonyl. B77, T22, TP2, TP13, TP38, TP44.
PART 173—SHIPPERS—GENERAL service pressure of the cylinder. parts of the cylinder and valve, if any, REQUIREMENTS FOR SHIPMENTS Sufficient outage must be provided so from deformation and breakage resulting AND PACKAGINGS that the cylinder will not be liquid full from a drop of 2.0 m (7 ft) or more onto at 55° C(131° F). a non-yielding surface, such as concrete 12. The authority citation for part 173 (c) Closures. Each cylinder containing or steel, impacting at an orientation continues to read as follows: a Hazard Zone A material must be most likely to cause damage. Authority: 49 U.S.C. 5101–5127, 44701; 49 closed with a plug or valve conforming ‘‘Deformation’’ means a cylinder or CFR 1.45, 1.53. to the following: valve that is bent, distorted, mangled, § 173.34 [Removed] (1) Each plug or valve must have a misshapen, twisted, warped, or in a taper-threaded connection directly to similar condition. 13. Section 173.34 is removed. the cylinder and be capable of 14. Section 173.40 is revised to read (2) Each cylinder with a valve must be withstanding the test pressure of the as follows: equipped with a protective metal cap, cylinder without damage or leakage. other valve protection device, or an § 173.40 General packaging requirements (2) Each valve must be of the packless overpack sufficient to protect the valve for toxic materials packaged in cylinders. type with non-perforated diaphragm, from deformation, breakage or leakage When this section is referenced for a except that, for corrosive materials, a resulting from a drop of 2.0 m (7 ft) onto Hazard Zone A or B hazardous material valve may be of the packed type with an a non-yielding surface, such as concrete elsewhere in this subchapter, the assembly made gas-tight by means of a or steel. Impact must be at an requirements in this section are seal cap with gasketed joint attached to orientation most likely to cause damage. applicable to cylinders used for that the valve body or the cylinder to (e) Interconnection. Cylinders may material. prevent loss of material through or past not be manifolded or interconnected. (a) Authorized cylinders. (1) A the packing. 15. In § 173.115, the last sentence in cylinder must conform to one of the (3) Each valve outlet must be sealed paragraph (c)(2) and paragraph (j) are specifications for cylinders in subpart C by a threaded cap or threaded solid plug revised to read as follows: of part 178 of this subchapter, except and inert gasketing material. that specification 8, 8AL, and 39 (4) The materials of construction for § 173.115 Class 2, Divisions 2.1, 2.2, and 2.3—Definitions. cylinders are not authorized. the cylinder, valves, plugs, outlet caps, (2) After September 30, 2002, DOT luting, and gaskets must be compatible * * * * * 3AL cylinders made of aluminum alloy with each other and with the lading. (c) * * * 6351–T6 may not be filled and offered (d) Additional handling protection. (2) * * * LC50 values for mixtures for transportation or transported with a Each cylinder or cylinder overpack may be determined using the formula in Division 2.3 Hazard Zone A material, a combination offered for transportation § 173.133(b)(1)(i) or CGA Pamphlet P–20 Division 6.1 Hazard Zone A material, or containing a Division 2.3 or 6.1 Hazard (incorporated by reference; see § 171.7 any liquid meeting the definition of Zone A or B material must conform to of this subchapter). Division 6.1 and the criteria for Packing the valve damage protection * * * * * Group I Hazard Zone A, as specified in performance requirements of this (j) Refrigerant gas or Dispersant gas. § 173.133. If it is otherwise serviceable section. In addition to the requirements The terms Refrigerant gas and and conforms to the regulations in effect of this section, overpacks must conform Dispersant gas apply to all on September 30, 2002, a DOT 3AL to the overpack provisions of § 173.25. nonpoisonous refrigerant gases; cylinder made of aluminum alloy 6351– (1) Each cylinder with a wall dispersant gases (fluorocarbons) listed T6 and filled before October 1, 2002, thickness at any point of less than 2.03 in § 172.101 of this subchapter and may be transported for reprocessing or mm (0.08 inch) and each cylinder that §§ 173.304, 173.314(c), 173.315(a)(1), disposal of the cylinder’s contents until does not have fitted valve protection and 173.315(h) and mixtures thereof; April 1, 2003. must be overpacked in a box. The box and any other compressed gas having a (b) Outage and pressure requirements. must conform to overpack provisions in vapor pressure not exceeding 260 psia at The pressure of the hazardous material § 173.25. Box and valve protection must 54° C(130° F), used only as a refrigerant, at 55° C(131° F) may not exceed the be of sufficient strength to protect all dispersant, or blowing agent.
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16. Section 173.163 is revised to read 18. In § 173.198, the last two or charged means an introduction or as follows: sentences in paragraph (a) are revised to presence of a hazardous material in a read as follows: cylinder. A Class 2 material (gas) offered § 173.163 Hydrogen fluoride. for transportation in a cylinder must be § 173.198 Nickel carbonyl. Hydrogen fluoride (hydrofluoric acid, prepared in accordance with this anhydrous) must be packaged in a (a) * * * A cylinder used exclusively section and §§ 173.302 through 173.305, specification 3, 3A, 3AA, 3B, 3BN, 3E, for nickel carbonyl may be given a as applicable. or 4A cylinder; or a specification 4B, complete external visual inspection (1) Compressed gases must be in 4BA, or 4BW cylinder, if the cylinder is instead of the pressure test required by metal cylinders and containers built in not brazed. Filling density may not § 180.205 of this subchapter. Visual accordance with the DOT and ICC exceed 85 percent of the cylinder’s inspection must be in accordance with specifications, as shown in this water weight capacity. In place of the CGA Pamphlet C–6 (incorporated by paragraph (a)(1), in effect at the time of periodic hydrostatic retest, cylinders reference; see § 171.7 of this manufacture, and requalified and used in exclusive service may be given subchapter). marked as required by the specification a complete external visual inspection in * * * * * and the regulation for requalification, if conformance with part 180, subpart C, 19. In § 173.226, paragraph (a) is applicable: of this subchapter, at the time such revised to read as follows: Packagings retest becomes due. Cylinders removed § 173.226 Materials poisonous by 2P from hydrogen fluoride service must be inhalation, Division 6.1, Packing Group I, condemned in accordance with 2Q Hazard Zone A. ICC–31*COM019* § 180.205 of this subchapter or, at the * * * * * 3A direction of the owner, rendered (a) In seamless specification cylinders 3AA incapable of holding pressure. conforming to the requirements of 3AL 17. Section 173.192 is revised to read § 173.40. 3AX as follows: 3A480X * * * * * 3AAX § 173.192 Packaging for certain toxic 20. In § 173.227, the section heading 3B gases in Hazard Zone A. and paragraph (a) are revised to read as 3BN When § 172.101 of this subchapter follows: 3E 3HT specifies a toxic material must be § 173.227 Materials poisonous by packaged under this section, only 3T inhalation, Division 6.1, Packing Group I, 4AA480 specification cylinders are authorized, Hazard Zone B. as follows: 4B * * * * * 4B240ET (a) Specification 3A1800, 3AA1800, (a) In packagings as authorized in 4BA 3AL1800, or 3E1800 cylinders, under § 173.226 and seamless and welded 4BW the following conditions: specification cylinders conforming to 4D (1) Specification 3A, 3AA, or 3AL the requirements of § 173.40. 4DA cylinders may not exceed 57 kg (125 lb) 4DS * * * * * water capacity (nominal). 4E 21. Section 173.228 is revised to read 4L (2) Specification 3AL cylinders may as follows: only be offered for transportation or 8 transported by highway and rail. § 173.228 Bromine pentafluoride or 8AL (b) Packagings must conform to the bromine trifluoride. 39 requirements of § 173.40. The following packagings are (2) A cylinder must be filled in (c) For cylinders used for phosgene: authorized for bromine pentafluoride accordance with this part. Before each (1) The filling density may not exceed and bromine trifluoride: filling of a cylinder, the person filling 125 percent; (a) Specification 3A150, 3AA150, the cylinder must visually inspect the (2) A cylinder may not contain more 3B240, 3BN150, 4B240, 4BA240, outside of the cylinder. A cylinder that than 68 kg (150 lb) of phosgene; and 4BW240 and 3E1800 cylinders. No has a crack or leak, is bulged, has a (3) Each cylinder containing phosgene cylinder may be equipped with a defective valve or a leaking or defective must be tested for leakage before it is pressure relief device. pressure relief device, or bears evidence offered for transportation or transported (b) A material in Hazard Zone A must of physical abuse, fire or heat damage, and must show no leakage. The leakage be transported in a seamless or detrimental rusting or corrosion, may test must consist of immersing the specification cylinder conforming to the not be filled and offered for cylinder and valve, without the requirements of § 173.40. No cylinder transportation. A cylinder may be protective cap attached, in a bath of may be equipped with a pressure relief repaired and requalified only as water at a temperature of approximately device. prescribed in subpart C of part 180 of 66° C (150° F) for at least 30 minutes, this subchapter. §§ 173.300a, 173.300b, 173.300c during which time frequent [Removed] (3) Pressure relief devices must be examinations must be made to note any tested for leaks before the charged 22. In part 173, §§ 173.300a, 173.300b, escape of gas. The valve of the cylinder cylinder is shipped from the cylinder may not be loosened after this test. and 173.300c are removed. 23. Section 173.301 is revised to read filling plant. It is expressly forbidden to Suitable safeguards must be provided to as follows: repair a leaking fuse plug device, where protect personnel and facilities should the leak is through the fusible metal or failure occur during the test. As an § 173.301 General requirements for between the fusible metal and the alternative, each cylinder containing shipment of compressed gases in cylinders opening in the plug body, except by phosgene may be tested for leakage by and spherical pressure vessels. a method approved in writing by the (a) General qualifications for use of 1 Use of existing cylinders is authorized. New Associate Administrator. cylinders. As used in this subpart, filled construction is not authorized.
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removal of the device and replacement contain any gas or material capable of (i) A cylinder 305 mm (12 inches) or of the fusible metal. combining chemically with the less in length, exclusive of neck, and (4) A cylinder that previously cylinder’s contents or with the 114 mm (4.5 inches) or less in outside contained a Class 8 material must be cylinder’s material of construction, so as diameter, except when the cylinder is requalified in accordance with to endanger the cylinder’s serviceability. filled with a liquefied gas for which this § 180.205(e) of this subchapter. After September 30, 2002, DOT 3AL part requires a service pressure of 1800 (5) When a cylinder with a marked cylinders made of aluminum alloy psig or higher or a nonliquefied gas to pressure limit is prescribed, another 6351–T6 may not be filled and offered a pressure of 1800 psig or higher at 21° cylinder made under the same for transportation with pyrophoric C (70° F); specification but with a higher marked gases; however, if it is otherwise (ii) A cylinder with a water capacity pressure limit is authorized. For serviceable and conforms to the of less than 454 kg (1000 lbs) filled with example, a cylinder marked ‘‘DOT– regulations in effect on September 30, a nonliquefied gas to a pressure of 300 4B500’’ may be used when ‘‘DOT– 2002, a DOT 3AL cylinder made of psig or less at 21°C (70°F), except for a 4B300’’ is specified. aluminum alloy 6351–T6 and filled DOT 39 cylinder or a cylinder used for (6) No person may fill a cylinder before October 1, 2002, may be acetylene in solution; or overdue for periodic requalification transported for reprocessing or disposal (iii) A cylinder containing a Class 3 or with a hazardous material and then offer of the cylinder’s contents until April 1, a Class 8 material without it for transportation. The prohibition 2003. pressurization, unless otherwise against offering a cylinder for (e) Ownership of cylinder. A cylinder specified for the hazardous material. transportation that is overdue for filled with a hazardous material may not (6) A pressure relief device is periodic requalification does not apply be offered for transportation unless it prohibited on a cylinder filled with a to a cylinder filled prior to the was filled by the owner of the cylinder Division 2.3 or 6.1 material in Hazard requalification due date. or with the owner’s consent. Zone A. (7) A cylinder with an authorized (f) Pressure relief device systems. (1) (g) Manifolding cylinders in service life may not be offered for Except as provided in paragraphs (f)(5) transportation. (1) Cylinder manifolding transportation in commerce after its and (f)(6) of this section, a cylinder is authorized only under conditions authorized service life has expired. filled with a gas and offered for prescribed in this paragraph (g). However, a cylinder in transportation or transportation must be equipped with Manifolded cylinders must be a cylinder filled prior to the expiration one or more pressure relief devices supported and held together as a unit by of its authorized service life may be sized and selected as to type, location, structurally adequate means. Except for transported for reprocessing or disposal and quantity, and tested in accordance Division 2.2 materials, each cylinder of the cylinder’s contents. After with CGA Pamphlets S–1.1 must be equipped with an individual emptying, the cylinder must be (incorporated by reference; see § 171.7 shutoff valve that must be tightly closed condemned in accordance with of this subchapter; compliance with while in transit. Manifold branch lines § 180.205 of this subchapter. paragraph 9.1.1.1 of CGA Pamphlet S– must be sufficiently flexible to prevent (8) The pressure of the hazardous 1.1 is not required) and S–7 damage to the valves that otherwise material at 55° C (131° F) may not (incorporated by reference; see § 171.7 might result from the use of rigid branch exceed 5/4 of the service pressure of the of this subchapter). The pressure relief lines. Each cylinder must be cylinder. Sufficient outage must be device must be capable of preventing individually equipped with a pressure provided so the cylinder will not be rupture of the normally filled cylinder relief device as required in paragraph (f) liquid full at 55° C (131° F). when subjected to a fire test conducted of this section. Pressure relief devices (9) Specification 2P, 2Q, 3E, 3HT, in accordance with CGA Pamphlet C–14 on manifolded horizontal cylinders spherical 4BA, 4D, 4DA, 4DS, and 39 (incorporated by reference; see § 171.7 filled with a compressed gas must be cylinders must be shipped in strong of this subchapter), or, in the case of an arranged to discharge unobstructed to outer packagings. The strong outer acetylene cylinder, CGA Pamphlet C–12 the open air in such a manner as to packaging must conform to paragraph (incorporated by reference; see § 171.7 prevent any escaping gas from (h) of this section and to § 173.25. of this subchapter). contacting personnel or any adjacent (b) Cylinder markings. Required (2) When a pressure relief device is cylinders. Pressure relief devices on markings on a cylinder must be legible installed, the inlet port to the relief manifolded horizontal cylinders filled and must meet the applicable channel must be in the vapor space of with a flammable compressed gas must requirements of subpart C of part 180 of the cylinder. be arranged to discharge upward to this subchapter. Additional information (3) For a DOT 3, 3A, 3AA, 3AL, 3AX, prevent any escaping gas from may be marked on the cylinder 3AXX, 3B or 3BN cylinder, from the contacting any adjacent cylinders. provided it does not affect the required first requalification due on and after Valves and pressure relief devices on markings prescribed in the applicable October 1, 2002, the set pressure of the manifolded cylinders filled with a cylinder specification. pressure relief device must be at test compressed gas must be protected from (c) Toxic gases and mixtures. pressure with a tolerance of plus zero to damage by framing, a cabinet, or other Cylinders containing toxic gases and minus 10%. method. Manifolding is authorized for toxic gas mixtures meeting the criteria (4) A pressure relief device is required cylinders containing the following of Division 2.3 Hazard Zone A or B must on a DOT 39 cylinder regardless of gases: conform to the requirements of § 173.40 cylinder size or filled pressure. A DOT (i) Nonliquefied (permanent) and CGA Pamphlets S–1.1 and S–7 39 cylinder used for liquefied Division compressed gases authorized by (incorporated by reference; see § 171.7 2.1 materials must be equipped with a § 173.302. of this subchapter). A DOT 39 cylinder metal pressure relief device. Fusible (ii) Liquefied compressed gases may not be used for toxic gases or toxic pressure relief devices are not authorized by § 173.304. Each gas mixtures meeting the criteria for authorized on a DOT 39 cylinder manifolded cylinder containing a Division 2.3, Hazard Zone A or B. containing a liquefied gas. liquefied compressed gas must be (d) Gases capable of combining (5) A pressure relief device is not separately filled and means must be chemically. A filled cylinder may not required on— provided to ensure no interchange of
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cylinder contents can occur during (iii) Constructing the cylinder such to other than a DOT specification or transportation. that the valve is recessed into the exemption, may be filled with a gas in (iii) Acetylene as authorized by cylinder or otherwise protected. the United States and offered for § 173.303. (i) Cylinders mounted on motor transportation and transported for (2) For the checking of tare weights or vehicles or in frames. Seamless DOT export, if the following conditions are replacing solvent, the cylinder must be specification cylinders longer than 2 m met: removed from the manifold. This (6.5 feet) are authorized for (1) The cylinder has been requalified requirement is not intended to prohibit transportation only when horizontally and marked with the month and year of filling acetylene cylinders while mounted on a motor vehicle or in an requalification in accordance with manifolded. ISO framework or other framework of subpart C of part 180 of this subchapter, (h) Cylinder valve protection. (1) A equivalent structural integrity. or has been requalified as authorized by cylinder used to transport a hazardous Cylinders may not be transported by rail the Associate Administrator. material must meet the requirements in container on freight car (COFC) or (2) The maximum filling density and specified in this paragraph (h). The trailer on flat car (TOFC) service except service pressure for each cylinder following cylinders are not subject to under conditions approved by the conform to the requirements of this part the cylinder valve protection Associate Administrator for Safety, for the gas involved. requirements in this paragraph (h): Federal Railroad Administration. The (3) The bill of lading or other shipping (i) A cylinder containing only a cylinder must be configured as follows: paper identifies the cylinder and Division 2.2 material without a Division (1) Each cylinder must be fixed at one includes the following certification: 5.1 subsidiary hazard; end of the vehicle or framework with ‘‘This cylinder has (These cylinders (ii) A cylinder containing a Class 8 provision for thermal expansion at the have) been qualified, as required, and liquid corrosive only to metal; opposite end attachment; filled in accordance with the DOT (2) The valve and pressure relief (iii) A cylinder with a water capacity requirements for export.’’. device protective structure must be of 4.8 liters (293 in 3) or less containing (m) Metal attachments. Metal sufficiently strong to withstand a force oxygen, compressed; attachments to cylinders must have equal to twice the weight of the cylinder (iv) A cylinder containing oxygen, rounded or chamfered corners, or be and framework assembly with a safety refrigerated liquid (cryogenic liquid); otherwise protected, so as to prevent the factor of four, based on the ultimate (v) A Medical E cylinder with a water likelihood of causing puncture or strength of the material used; and capacity of 4.9 liters (300 in 3) or less; damage to other hazardous materials (vi) A fire extinguisher; or (3) Discharge from a pressure relief device must be arranged in such a packages. This requirement applies to (vii) A cylinder containing acetylene. manner as to prevent any escaping gas anything temporarily or permanently (2) For cylinders manufactured before from contacting personnel or any attached to the cylinder, such as metal October 1, 2007, a cylinder must have adjacent cylinders. skids. its valves protected by one of the (j) Non-specification cylinders in 24. Section 173.301a is added to read following methods: domestic use. Except as provided in as follows: (i) By equipping the cylinder with paragraphs (k) and (l) of this section, a § 173.301a Additional general securely attached metal caps of filled non-DOT specification cylinder, sufficient strength to protect valves from requirements for shipment of specification other than a DOT exemption cylinder or cylinders. damage during transportation; a cylinder used as a fire extinguisher in (ii) By boxing or crating the cylinders (a) General. The requirements in this conformance with § 173.309, may not be section are in addition to the so as to protect valves from damage offered for transportation or transported during transportation; or requirements in § 173.301 and apply to to, from, or within the United States. the shipment of gases in specification (iii) By constructing the cylinder so (k) Importation of foreign cylinders for cylinders. that the valve is recessed into the discharge within a single port area. A cylinder or otherwise protected to the cylinder manufactured to other than a (b) Authorized cylinders not marked extent that it will not be subjected to a DOT specification and certified as being with a service pressure. For authorized blow when the container is dropped in conformance with the transportation cylinders not marked with a service onto a flat surface. regulations of another country may be pressure, the service pressure is (3) For cylinders manufactured after authorized, upon written request to and designated as follows: October 1, 2007, each cylinder valve approval by the Associate assembly must be of sufficient strength Service Administrator, for transportation within Specification marking Pressure or protected such that no leakage occurs a single port area, provided— psig when a cylinder with the valve installed (1) The cylinder is transported in a is dropped 1.8 m (6 ft.) or more onto a closed freight container; 3 ...... 1800 non-yielding surface, such as concrete (2) The cylinder is certified by the 3E ...... 1800 or steel, impacting the valve assembly or importer to provide a level of safety at 8 ...... 250 protection device at an orientation most least equivalent to that required by the likely to cause damage. The cylinder regulations in this subchapter for a (c) Cylinder pressure at 21° C (70° F). valve assembly protection may be comparable DOT specification cylinder; The pressure in a cylinder at 21° C (70° provided by any method meeting the and F) may not exceed the service pressure performance requirement in this (3) The cylinder is not refilled for for which the cylinder is marked or paragraph (h)(3). Examples include: export unless in compliance with designated, except as provided in (i) Equipping the cylinder with a paragraph (l) of this section. § 173.302a(b). For certain liquefied securely attached metal cap. (l) Filling of foreign cylinders for gases, the pressure at 21° C (70° F) must (ii) Packaging the cylinder in a box, export. A cylinder not manufactured, be lower than the marked service crate, or other strong outside packaging inspected, tested and marked in pressure to avoid having a pressure at a conforming to the requirements of accordance with part 178 of this temperature of 55° C (131° F) that is § 173.25. subchapter, or a cylinder manufactured greater than permitted.
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(d) Cylinder pressure at 55° C (131° (2) Each cylinder opening must be cylinders must be equipped with F). The pressure in a cylinder at 55° C configured with straight threads only. frangible disc type pressure relief (131° F) may not exceed 5/4 times the (3) Each cylinder must be cleaned in devices that meet the requirements of service pressure, except: accordance with the requirements of § 173.301(f). Each frangible disc must (1) For a cylinder filled with Federal Specification RR–C–901C, have a rated bursting pressure not acetylene, liquefied nitrous oxide, or paragraphs 3.3.1 and 3.3.2 (incorporated exceeding 90 percent of the minimum carbon dioxide. by reference; see § 171.7 of this required test pressure of the cylinder. (2) For a cylinder filled in accordance subchapter). Cleaning agents equivalent Discs with fusible metal backing are not with § 173.302a(b), the pressure in the to those specified in RR–C–901C may be permitted. Specification 3HT cylinders cylinder at 55° C (131° F) may not used provided they do not react with may be offered for transportation only exceed 5/4 times the filling pressure. oxygen. One cylinder selected at when packed in strong outer packagings (3) For toxic materials, the pressure in random from a group of 200 or fewer conforming to the requirements of the cylinder at 55° C (131° F) may not and cleaned at the same time must be § 173.25. exceed the service pressure of the tested for oil contamination in (3) For a DOT 39 cylinder filled with cylinder. accordance with Specification RR–C– a Division 2.1 material, the internal (e) Grandfather clause. A cylinder in 901C, paragraph 4.4.2.2 (incorporated volume of the cylinder may not exceed 3 domestic use prior to the date on which by reference; see § 171.7 of this 1.23 L (75 in ). the specification for the cylinder was subchapter), and meet the specified (4) DOT 3AX, 3AAX, and 3T first made effective may be used if the standard of cleanliness. cylinders are authorized for Division 2.1 (4) The pressure in each cylinder may and 2.2 materials and for carbon cylinder has been properly tested and ° ° otherwise conforms to the requirements not exceed 3000 psig at 21 C (70 F). monoxide. DOT 3T cylinders are not (c) Notwithstanding the provisions of applicable to the gas with which it is authorized for hydrogen. When used in § 173.24(b)(1), an authorized cylinder charged. methane service, the methane must be a containing oxygen continuously fed to nonliquefied gas with a minimum § 173.301b [Reserved] tanks containing live fish may be offered purity of 98.0 percent methane and 25. Section 173.301b is added and for transportation and transported. commercially free of corroding reserved. (d) Shipment of Division 2.1 materials components. in aluminum cylinders is authorized for 26. Section 173.302 is revised to read (5) Aluminum cylinders transportation only by motor vehicle, as follows: manufactured in conformance with rail car, or cargo-only aircraft. specifications DOT 39 and 3AL are § 173.302 Filling of cylinders with 27. Section 173.302a is added to read authorized for oxygen only under the nonliquefied (permanent) compressed as follows: conditions specified in § 173.302(b). gases. § 173.302a Additional requirements for (b) Special filling limits for DOT 3A, (a) General requirements. A cylinder shipment of nonliquefied (permanent) 3AX, 3AA, 3AAX, and 3T cylinders. A filled with a nonliquefied compressed compressed gases in specification DOT 3A, 3AX, 3AA, 3AAX, and 3T gas (except gas in solution) must be cylinders. cylinder may be filled with a offered for transportation in accordance (a) Detailed filling requirements. compressed gas, other than a liquefied, with the requirements of this section Nonliquefied compressed gases (except dissolved, Division 2.1, or Division 2.3 and §§ 173.301, 173.301a, 173.302a, and gas in solution) for which filling gas, to a pressure 10 percent in excess 173.305, as applicable. Where more than requirements are not specifically of its marked service pressure, provided: one section applies to a cylinder, the prescribed in § 173.304a must be (1) The cylinder is equipped with a most restrictive requirements must be shipped subject to the requirements in frangible disc pressure relief device followed. this section and §§ 173.301, 173.301a, (without fusible metal backing) having a (b) Aluminum cylinders in oxygen 173.302, and 173.305 in specification bursting pressure not exceeding the service. Each aluminum cylinder filled cylinders, as follows: minimum prescribed test pressure. with oxygen must meet all of the (1) DOT 3, 3A, 3AA, 3AL, 3B, 3E, 4B, (2) The cylinder’s elastic expansion following conditions: 4BA and 4BW cylinders. was determined at the time of the last (1) Each valve or portion of a valve (2) DOT 3HT cylinders. These test or retest by the water jacket method. that may come into contact with the cylinders are authorized for aircraft use (3) Either the average wall stress or oxygen being transported in the cylinder only and only for nonflammable gases. the maximum wall stress does not must be constructed of brass or stainless They have a maximum service life of 24 exceed the wall stress limitation shown steel. years from the date of manufacture. The in the following table:
Average wall Maximum wall Type of steel stress limita- stress limita- tion tion
I. Plain carbon steels over 0.35 carbon and medium manganese steels ...... 53,000 58,000 II. Steels of analysis and heat treatment specified in spec. 3AA ...... 67,000 73,000 III. Steels of analysis and heat treatment specified in spec. DOT–3T ...... 87,000 94,000 IV. Plain carbon steels less than 0.35 carbon made prior to 1920 ...... 45,000 48,000
(i)(A) The average wall stress must be S = wall stress, pounds per square inch; in accordance with CGA Pamphlet computed from the elastic expansion EE = elastic expansion (total less C–5; data using the following formula: permanent) in cubic centimeters; V = internal volume in cubic centimeter K = factor × 10¥7 experimentally S = 1.7EE / KV¥0.4P (1 cubic inch = 16.387 cubic determined for the particular type centimeters); Where: of cylinder being tested or derived
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P = test pressure, pounds per square compressed gas may not have a pressure of 54° C (130° F) without evidence of inch. exceeding the service pressure of the leakage, distortion, or other defect. Each (B) The formula in paragraph cylinder if complete decomposition of outside package must be plainly marked (b)(3)(i)(A) of this section is derived the diborane occurs. Cylinder valve ‘‘INSIDE CONTAINERS COMPLY WITH from the formula in paragraph (b)(3)(ii) assemblies must be protected in PRESCRIBED SPECIFICATIONS’’. of this section and the following: accordance with § 173.301(h). (e) Engine starting fluid. Engine EE = (PKVD2) / (D2–d2) § 173.302b [Reserved] starting fluid containing a flammable compressed gas or gases must be 28. Section 173.302b is added and (ii) The maximum wall stress must be shipped in a cylinder as prescribed in reserved. computed from the formula: § 173.304a or as follows: S = (P(1.3D2 + 0.4d2)) / (D2–d2) 29. Section 173.304 is revised to read as follows: (1) Inside non-refillable metal Where: containers having a capacity not greater S = wall stress, pounds per square inch; § 173.304 Filling of cylinders with liquefied than 500 mL (32 in 3). The containers P = test pressure, pounds per square compressed gases. must be packaged in strong, tight outer inch; (a) General requirements. Liquefied packagings. The pressure in the D = outside diameter, inches; compressed gases (except gas in container may not exceed 145 psia at d = D–2t, where t=minimum wall solution) must be shipped in accordance 54° C (130° F). If the pressure exceeds thickness determined by a suitable with the requirements in this section 145 psia at 54° C (130° F), a DOT 2P method. and in §§ 173.301, 173.301a, 173.304a, container must be used. In either case, (iii) Compliance with average wall and 173.305. the metal container must be capable of (1) A DOT 3AL cylinder may not be stress limitation may be determined by withstanding, without bursting, a used for any material with a primary or computing the elastic expansion pressure of 1.5 times the pressure of the subsidiary hazard of Class 8. contents at 54° C (130° F). The liquid rejection limit in accordance with CGA (2) Shipments of Division 2.1 Pamphlet C–5 (incorporated by content of the material and gas may not materials in aluminum cylinders are ° reference; see § 171.7 of this completely fill the container at 54 C authorized only when transported by (130° F). Each container filled for subchapter), by reference to data motor vehicle, rail car, or cargo-only tabulated in CGA Pamphlet C–5, or by shipment must have been heated until aircraft. its contents reach a minimum the manufacturer’s marked elastic (b) Filling limits. Except for carbon temperature of 54° C (130° F), without expansion rejection limit (REE) on the dioxide; 1,1-Difluoroethylene (R– evidence of leakage, distortion, or other cylinder. 1132A); nitrous oxide; and vinyl defect. Each outside shipping container (4) An external and internal visual fluoride, inhibited, the liquid portion of must be plainly marked, ‘‘INSIDE examination made at the time of test or a liquefied gas may not completely fill CONTAINERS COMPLY WITH retest shows the cylinder to be free from the packaging at any temperature up to PRESCRIBED SPECIFICATIONS’’. excessive corrosion, pitting, or and including 54° C (130° F). The liquid dangerous defects. portion of vinyl fluoride, inhibited, may (2) [Reserved] (5) A plus sign (+) is added following completely fill the cylinder at 54° C 30. Section 173.304a is added to read the test date marking on the cylinder to (130° F) provided the pressure at the as follows: indicate compliance with paragraphs (b) critical temperature does not exceed (2), (b)(3), and (b)(4) of this section. § 173.304a Additional requirements for 1.25 times the service pressure of the shipment of liquefied compressed gases in (c) Carbon monoxide. Carbon cylinder. specification cylinders. monoxide must be offered in a DOT 3, (c) Mixture of compressed gas and 3A, 3AX, 3AA, 3AAX, 3AL, 3E, or 3T other material. A mixture of compressed (a) Detailed filling requirements. cylinder having a minimum service gas must be shipped in accordance with Liquefied gases (except gas in solution) pressure of 1800 psig. The pressure in § 173.305. must be offered for transportation, a steel cylinder may not exceed 1000 (d) Refrigerant and dispersant gases. subject to the requirements in this psig at 21° C (70° F), except that if the Nontoxic and nonflammable refrigerant section and §§ 173.301 and 173.304, in gas is dry and sulfur free, the cylinder or dispersant gases must be offered for specification cylinders, as follows: may be filled to 5/6 of the cylinder’s transportation in cylinders prescribed in (1) DOT 3, 3A, 3AA, 3AL, 3B, 3BN, service pressure or 2000 psig, whichever § 173.304a, or in DOT 2P and 2Q 3E, 4B, 4BA, 4B240ET, 4BW, 4E, 39, is less. A DOT 3AL cylinder may be containers (§§ 178.33, 178.33a of this except that no DOT 4E or 39 packaging filled to its marked service pressure. A subchapter). DOT 2P and 2Q containers may be filled and shipped with a DOT 3AL cylinder is authorized only must be packaged in a strong wooden or mixture containing a pyrophoric liquid, when transported by motor vehicle, rail fiberboard box of such design as to carbon bisulfide (disulfide), ethyl car, or cargo-only aircraft. protect valves from damage or chloride, ethylene oxide, nickel (d) Diborane and diborane mixtures. accidental functioning under conditions carbonyl, spirits of nitroglycerin, or Diborane and diborane mixed with incident to transportation. Pressure in toxic material (Division 6.1 or 2.3), compatible compressed gas must be the inside metal containers may not unless specifically authorized in this offered in a DOT 3AA1800 cylinder. exceed 87 psia at 21° C (70° F). Each part. The maximum filling density of the completed metal container filled for (2) For the gases named, the following diborane may not exceed 7 percent. shipment must be heated until its requirements apply (for cryogenic Diborane mixed with compatible contents reach a minimum temperature liquids, see § 173.316):
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Packagings marked as shown in this column or of the Maximum permitted filling same type with higher service pressure must be used Kind of gas density (percent) except as provided in §§ 173.301(a)(1), 173.301(a)(4) (see Note 1) (see notes following table)
Anhydrous ammonia ...... 54 ...... DOT–4; DOT–3A480; DOT–3AA480; DOT–3A480X; DOT–4A480; DOT–4AA480; DOT–3; DOT–3E1800; DOT–3AL480. Bromotrifluoromethane (R–13B1 or H–1301) ...... 124 ...... DOT–3A400; DOT–3AA400; DOT–3B400; DOT–4A400; DOT–4AA480; DOT–4B400; DOT–4BA400; DOT– 4BW400; DOT–3E1800; DOT–39; DOT–3AL40. Carbon dioxide (see Notes 4, 7, and 8) ...... 68 ...... DOT–3A1800; DOT–3AX1800; DOT–3AA1800; DOT– 3AAX1800; DOT–3; DOT–3E1800; DOT–3T1800; DOT–3HT2000; DOT–39; DOT–3AL1800. Carbon dioxide, refrigerated liquid (see paragraph (e) of ...... DOT–4L. this section). Chlorine (see Note 2) ...... 125 ...... DOT–3A480; DOT–3AA480; DOT–3; DOT–3BN480; DOT–3E1800. Chlorodifluroethane or 1-Chloro-1, 1-difluoroethane (R– 100 ...... DOT–3A150; DOT–3AA150; DOT–3B150; DOT–4B150; 142b). DOT–4BA225; DOT–4BW225; DOT–3E1800; DOT– 39; DOT–3AL150. Chlorodifluoromethane (R–22) (see Note 8) ...... 105 ...... DOT–3A240; DOT–3AA240; DOT–3B240; DOT–4B240; DOT–4BA240; DOT–4BW240; DOT–4B240ET; DOT– 4E240; DOT–39; DOT–41; DOT–3E1800; DOT– 3AL240. Chloropentafluorethane (R–115) ...... 110 ...... DOT–3A225; DOT–3AA225; DOT–3B225; DOT–4A225; DOT–4BA225; DOT–4B225; DOT–4BW225; DOT– 3E1800; DOT–39; DOT–3AL225. Chlorotrifluoromethane (R–13) (see Note 8) ...... 100 ...... DOT–3A1800; DOT–3AA1800; DOT–3; DOT–3E1800; DOT–39; DOT–3AL1800. Cyclopropane (see Note 8) ...... 55 ...... DOT–3A225; DOT–3A480X; DOT–3AA225; DOT– 3B225; DOT–4A225; DOT–4AA480; DOT4B225; DOT–4BA225; DOT–4BW225; DOT–4B240ET; DOT– 3; DOT–3E1800; DOT–39; DOT–3AL225. Dichlorodifluoromethane (R–12) (see Note 8) ...... 119 ...... DOT–3A225; DOT–3AA225; DOT–3B225; DOT–4A225; DOT–4B225; DOT–4BA225; DOT–4BW225; DOT– 4B240ET; DOT–4E225; DOT–9; DOT–39; DOT–41; DOT–3E1800; DOT–3AL225. Dichlorodifluoromethane and difluoroethane mixture Not liquid full at 130°F ...... DOT–3A240; DOT–3AA240; DOT–3B240; DOT– (constant boiling mixture) (R–500) (see Note 8). 3E1800; DOT–4A240; DOT–4B240; DOT–4BA240; DOT–4BW240; DOT–4E240; DOT–9; DOT–39. 1,1-Difluoroethane (R–152a) (see note 8) ...... 79 ...... DOT–3A150; DOT–3AA150; DOT–3B150; DOT–4B150; DOT–4BA225; DOT–4BW225; DOT–3E1800; DOT– 3AL150. 1,1-Difluoroethylene (R–1132A) ...... 73 ...... DOT–3A2200; DOT–3AA2200; DOT–3AX2200; DOT– 3AAX2200; DOT–3T2200; DOT–39. Dimethylamine, anhydrous ...... 59 ...... DOT–3A150; DOT–3AA150; DOT–3B150; DOT–4B150; DOT–4BA225; DOT–4BW225; ICC–3E1800. Ethane (see Note 8) ...... 35.8 ...... DOT–3A1800; DOT–3AX1800; DOT–3AA1800; DOT– 3AAX1800; DOT–3; DOT–3E1800; DOT–3T1800; DOT–39; DOT–3AL1800. Ethane (see Note 8) ...... 36.8 ...... DOT–3A2000; DOT–3AX2000; DOT–3AA2000; DOT– 3AAX2000; DOT–3T2000; DOT–39; DOT–3AL2000. Ethylene (see Note 8) ...... 31.0 ...... DOT–3A1800; DOT–3AX1800; DOT–3AA1800; DOT– 3AAX1800; DOT–3; DOT–3E1800; DOT–3T1800; DOT–39; DOT–3AL1800. Ethylene (see Note 8) ...... 32.5 ...... DOT–3A2000; DOT–3AX2000; DOT–3AA2000; DOT– 3AAX2000; DOT–3T2000; DOT–39; DOT–3AL2000. Ethylene (see Note 8) ...... 35.5 ...... DOT–3A2400; DOT–3AX2400; DOT–3AA2400; DOT– 3AAX2400; DOT–3T2400; DOT–39; DOT–3AL2400. Hydrogen chloride, anhydrous ...... 65 ...... DOT–3A1800; DOT–3AA1800; DOT–3AX1800; DOT– 3AAX1800; DOT–3; DOT–3T1800; DOT–3E1800. Hydrogen sulfide (see Note 10) ...... 62.5 ...... DOT–3A480; DOT–3AA480; DOT–3B480; DOT–4A480; DOT–4B480; DOT–4BA480; DOT–4BW480.; DOT– 3E1800; DOT–3AL480. Insecticide, gases liquefied (see Notes 8 and 12) ...... Not liquid full at 130°F ...... DOT–3A300; DOT–3AA300; DOT–3B300; DOT–4B300; DOT–4BA300; DOT–4BW300; DOT–9; DOT–40; DOT–41; DOT–3E1800. Liquefied nonflammable gases, other than classified Not liquid full at 130°F ...... Specification packaging authorized in paragraph (a)(1) flammable, corrosive, toxic & mixtures or solution of this section and DOT–3HT; DOT 4D; DOT–4DA; thereof filled w/nitrogen, carbon dioxide, or air (see DOT–4DS. Notes 7 and 8)..
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Packagings marked as shown in this column or of the Maximum permitted filling same type with higher service pressure must be used Kind of gas density (percent) except as provided in §§ 173.301(a)(1), 173.301(a)(4) (see Note 1) (see notes following table)
Methyl acetylene-propadiene, mixtures, stabilized DOT– Not liquid at 130°F ...... DOT–4B240 without brazed seams; DOT–4BA240 with- 3A240; (see Note 5).. out brazed seams; DOT–3A240; DOT–3AA240; DOT–3B240; DOT–3E1800; DOT–4BW240; DOT– 4E240; DOT–4B240ET; DOT–4; DOT–41; DOT– 3AL240. Methyl chloride ...... 84 ...... DOT–3A225; DOT–3AA225; DOT–3B225; DOT–4A225; DOT–4B225; DOT–4BA225; DOT–4BW225; DOT–3; DOT–4; DOT–38; DOT–3E1800; DOT–4B240ET. Cylinders complying with DOT–3A150; DOT–3B150; DOT–4A150; and DOT–4B150 manufactured prior to Dec. 7, 1936 are also authorized. Methyl mercaptan ...... 80 ...... DOT–3A240; DOT–3AA240; DOT–3B240; DOT–4B240; DOT–4B240ET; DOT–3E1800; DOT–4BA240; DOT– 4BW240. Nitrosyl chloride ...... 110 ...... DOT–3BN400 only. Nitrous oxide (see Notes 7, 8, and 11) ...... 68 ...... DOT–3A1800; DOT–3AX1800; DOT–3AA1800; DOT– 3AAX1800; DOT–3; DOT–3E1800; DOT–3T1800; DOT–3HT2000; DOT–39; DOT- 3AL1800. Nitrous oxide, refrigerated liquid (see paragraph (e) of ...... DOT–4L. this section.). Refrigerant gas, n.o.s. or Dispersant gas, n.o.s. (see Not liquid full at 130°F ...... DOT–3A240; DOT–3AA240; DOT–3B240; DOT– Notes 8 and 13). 3E1800; DOT–4A240; DOT–4B240; DOT–4BA240; DOT–4BW240; DOT–4E240; DOT–9; DOT–39; DOT–3AL240. Sulfur dioxide (see note 8) ...... 125 ...... DOT–3A225; DOT–3AA225; DOT–3B225; DOT–4A225; DOT–4B225; DOT–4BA225; DOT–4BW225; DOT– 4B240ET; DOT–3; DOT–4; DOT–38; DOT–39; DOT– 3E1800; DOT–3AL225. Sulfur hexafluoride ...... 120 ...... DOT–3A1000; DOT–3AA1000; DOT–AAX2400; DOT– 3; DOT–3AL1000; DOT–3E1800; DOT–3T1800. Sulfuryl fluoride ...... 106 ...... DOT–3A480; DOT–3AA480; DOT–3E1800; DOT– 4B480; DOT–4BA480; DOT–4BW480. Tetrafluoroethylene/inhibit ...... 90 ...... DOT–3A1200; DOT–3AA1200; DOT–3E1800. Trifluorochloroethylene, inhibited ...... 115 ...... DOT–3A300; DOT–3AA300; DOT–3B300; DOT–4A300; DOT–4B300; DOT–4BA300; DOT–4BW300; DOT– 3E1800. Trimethylamine, anhydrous ...... 57 ...... DOT–3A150; DOT–3AA150; DOT–3B150; DOT–4B150; DOT–4BA225; DOT–4BW225; DOT–3E1800. Vinyl chloride (see Note 5) ...... 84 ...... DOT–4B150 without brazed seams; DOT–4BA225 with- out brazed seams; DOT–4BW225; DOT–3A150; DOT–3AA150; DOT–3E1800; DOT–3AL150. Vinyl fluoride, inhibited ...... 62 ...... DOT–3A1800; DOT–3AA1800; DOT–3E1800; DOT– 3AL1800. Vinyl methyl ether, inhibited (see Note 5) ...... 68 ...... DOT–4B150, without brazed seams; DOT–4BA225 without brazed seams; DOT–4BW225; DOT–3A150; DOT–3AA150; DOT–3B1800; DOT–3E1800. Note 1: ‘‘Filling density’’ means the percent ratio of the weight of gas in a packaging to the weight of water that the container will hold at 16° C (60° F). (1 lb of water=27.737 in 3 at 60° F.). Note 2: Cylinders purchased after Oct. 1, 1944, for the transportation of chlorine must contain no aperture other than that provided in the neck of the cylinder for attachment of a valve equipped with an approved pressure relief device. Cylinders purchased after Nov. 1, 1935, and filled with chlorine may not contain over 68.04 kg (150 lb) of gas. Note 3: [Reserved] Note 4: Special carbon dioxide mining devices containing a heating element and filled with not over 2.72 kg (6 lb) of carbon dioxide may be filled to a density of not over 85 percent, provided the cylinder is made of steel with a calculated bursting pressure in excess of 39000 psig, fitted with a frangible disc that will operate at not over 57 percent of that pressure, and is able to withstand a drop of 10 feet when striking crosswise on a steel rail while under a pressure of at least 3000 psig. Such devices must be shipped in strong boxes or must be wrapped in heavy burlap and bound by 12-gauge wire with the wire completely covered by friction tape. Wrapping must be applied so as not to interfere with the func- tioning of the frangible disc pressure relief device. Shipments must be described as ‘‘liquefied carbon dioxide gas (mining device)’’ and marked, labeled, and certified as prescribed for liquefied carbon dioxide. Note 5: All parts of valve and pressure relief devices in contact with contents of cylinders must be of a metal or other material, suitably treated if necessary, that will not cause formation of any acetylides. Note 6: [Reserved] Note 7: Specification 3HT cylinders for aircraft use only, having a maximum service life of 24 years. Authorized only for nonflammable gases. Cylinders must be equipped with pressure relief devices of the frangible disc type that meet the requirements of § 173.301(f). Each frangible disc must have a rated bursting pressure that does not exceed 90 percent of the minimum required test pressure of the cylinder. Discs with fusible metal backing are not permitted. Cylinders may be shipped only when packed in strong outside packagings. Note 8: See § 173.301(a)(8). Note 9: [Reserved] Note 10: Each valve outlet must be sealed by a threaded cap or a threaded solid plug. Note 11: Must meet the valve and cleaning requirements in § 173.302(b). Note 12: For an insecticide gas that is nontoxic and nonflammable, see § 173.305(c). Note 13: For a refrigerant or dispersant gas that is nontoxic and nonflammable, see § 173.304(d).
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(b) [Reserved] Minimum specific Maximum the filling Minimum specific Maximum the filling (c) Verification of content in cylinder. gravity of liquid mate- density in percent of gravity of liquid mate- density in percent of Except as noted in paragraph (d)(4) of rial at 60° F the water-weight ca- rial at 60° F the water-weight ca- this section, the amount of liquefied gas pacity of the cylinder pacity of the cylinder filled into a cylinder must be by weight 0.339 to 0.354 ...... 30 0.618 to 0.626 ...... 56 or, when the gas is lower in pressure 0.355 to 0.371 ...... 31 0.627 to 0.634 ...... 57 than required for liquefaction, a 0.372 to 0.398 ...... 32 pressure-temperature chart for the 0.399 to 0.425 ...... 33 (2) Subject to § 173.301a(d), any specific gas may be used to ensure that 0.426 to 0.440 ...... 34 filling density percentage prescribed in the service pressure at 54° C (130° F) 0.441 to 0.452 ...... 35 0.453 to 0.462 ...... 36 this section is authorized to be will not exceed 5/4 of the service increased by a factor of 2 for liquefied pressure at 21° C (70° F). The weight of 0.463 to 0.472 ...... 37 0.473 to 0.480 ...... 38 petroleum gas in DOT 3 cylinders or in liquefied gas filled into the cylinder also 0.481 to 0.488 ...... 39 DOT 3A cylinders marked for 1800 psig, must be checked, after disconnecting 0.489 to 0.495 ...... 40 or higher, service pressure. the cylinder from the filling line, by the 0.496 to 0.503 ...... 41 (3) Liquefied petroleum gas must be use of an accurate scale. 0.504 to 0.510 ...... 42 shipped in specification cylinders as (d) Requirements for liquefied 0.511 to 0.519 ...... 43 follows: petroleum gas. (1) Filling density limits 0.520 to 0.527 ...... 44 are as follows: 0.528 to 0.536 ...... 45 (i) DOT 3, 3A, 3AA, 3B, 3E, 3AL, 4B, 0.537 to 0.544 ...... 46 4BA, 4B240ET, 4BW, 4E, or 39 Maximum the filling 0.545 to 0.552 ...... 47 cylinders. Shipments of flammable Minimum specific density in percent of 0.553 to 0.560 ...... 48 gases in DOT 3AL cylinders are gravity of liquid mate- 0.561 to 0.568 ...... 49 rial at 60° F the water-weight ca- authorized only when transported by pacity of the cylinder 0.569 to 0.576 ...... 50 motor vehicle, rail car, or cargo-only 0.577 to 0.584 ...... 51 0.271 to 0.289 ...... 26 0.585 to 0.592 ...... 52 aircraft. 0.290 to 0.306 ...... 27 0.593 to 0.600 ...... 53 (ii) Additional containers may be used 0.307 to 0.322 ...... 28 0.601 to 0.608 ...... 54 within the limits of quantity and 0.323 to 0.338 ...... 29 0.609 to 0.617 ...... 55 pressure as follows:
Maximum capacity Maximum filling pressure Type of container (cubic (psig) inches)
DOT–2P or DOT–2Q (see Note 1) ...... 31.83 45 psig at 70° F and 105 psig at 130° F (see Note 2). DOT–2P or DOT–2Q (see Note 1) ...... 31.83 35 psig at 70° F and 100 psig at 130° F. Note 1: Containers must be packed in strong wooden or fiber boxes of such design as to protect valves from damage or accidental functioning under conditions normally incident to transportation. Each completed container filled for shipment must have been heated until its contents reach a temperature of 54° C (130° F), without evidence of leakage, distortion, or other defect. Each outside shipping container must be plainly marked ‘‘INSIDE CONTAINERS COMPLY WITH PRESCRIBED SPECIFICATIONS’. Note 2: A container must be equipped with a pressure relief device that will prevent rupture of the container and dangerous projection of a closing device when exposed to fire.
(4) Verification of content. A cylinder through which the tube is inserted to (i) DOT 4L cylinders conforming to with a water capacity of 90.72 kg (200 the proper level of the liquid in the the provisions of this paragraph are lb) or more and for use with a liquefied container. The length of each dip tube authorized. petroleum gas with a specific gravity of must be checked when installed by (ii) Each cylinder must be protected 9.504 or greater at 16° C (60° F) may weighing each container after filling with at least one pressure relief device have the quantity of its contents except when installed in groups of and at least one frangible disc determined by using a fixed length dip substantially identical containers, in conforming to § 173.301(f) and tube gauging device. The length of the which case one of each 25 containers paragraph (a)(2) of this section. The dip tube must be such that when a must be weighed. The quantity of relieving capacity of the pressure relief liquefied petroleum gas, with a specific liquefied gas in each container must be device system must be equal to or volume of 0.03051 cu. ft./lb. at a greater than that calculated by the ° checked by means of the dip tube after temperature of 40 F, is filled into the disconnecting from the filling line. The applicable formula in paragraph 5.9 of container, the liquid just reaches the CGA Pamphlet S–1.1 (incorporated by outlet from the dip tube may not be bottom of the tube. The weight of this reference; see § 171.7 of this larger than 0.1016 centimeters (0.040 liquid may not exceed 42 percent of the subchapter). water capacity of the container, which inch; No. 54 drill bit size orifice). A (iii) The temperature and pressure of must be stamped on the cylinder. The container representative of each day’s the gas at the time the shipment is length of the dip tube, expressed in filling at each filling plant must have its offered for transportation may not inches carried out to one decimal place contents checked by weighing after exceed ¥18 ° C (0 ° F) and 290 psig for and prefixed with the letters ‘‘DT’’, must disconnecting from the filling line. carbon dioxide and ¥15.6 ° C (+4 ° F) be stamped on the container and on the (e) Carbon dioxide, refrigerated liquid and 290 psig for nitrous oxide. exterior of removable type dip tube. For or nitrous oxide, refrigerated liquid. (1) Maximum time in transit may not the purpose of this requirement, the The following provisions apply to exceed 120 hours. marked length must be expressed as the carbon dioxide, refrigerated liquid, and (2) The following pressure relief distance measured along the axis of a nitrous oxide, refrigerated liquid: device settings, design service straight tube from the top of the boss temperatures and filling densities apply:
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Maximum permitted filling density (percent by weight) Pressure relief device setting maximum start—to discharge gauge pressure inpsig Carbon dioxide, re- Nitrous oxide, refrig- frigerated liquid erated liquid
105 psig ...... 108 104 170 psig ...... 105 101 230 psig ...... 104 99 295 psig ...... 102 97 360 psig ...... 100 95 450 psig ...... 98 83 540 psig ...... 92 87 625 psig ...... 86 80 Design service temperature ° C(° F) ...... ¥196 ° C(¥320 °F) ¥196 ° C(¥320 °F)
§ 173.304b [Reserved] (including a compound or mixture), 36. Section 173.336 is revised to read 31. Section 173.304b is added and may be mixed with a non-flammable as follows: reserved. compressed gas. This mixture may not 32. In § 173.305, the parenthetical contain more than 20 percent by weight § 173.336 Nitrogen dioxide, liquefied, or dinitrogen tetroxide, liquefied. phrase in paragraph (b) is revised to of organic phosphate and must be read as follows: packaged in DOT 3A240, 3AA240, Nitrogen dioxide, liquefied, or 3B240, 4A240, 4B240, 4BA240, or dinitrogen tetroxide, liquefied, must be § 173.305 Charging of cylinders with a 4BW240 cylinders meeting all of the packaged in specification cylinders as mixture of compressed gas and other material. following requirements: prescribed in § 173.192. Specification (a) Each cylinder may be filled with cylinders prescribed in § 173.192 with * * * * * not more than 5 kg (11.0 lb) of the valve removed are authorized. Each (b) Filling limits. (See § 173.301.) mixture, to a maximum filling density of valve opening must be closed by means *** not more than 80 percent of the water of a solid metal plug with tapered * * * * * capacity. thread properly luted to prevent 33. In § 173.306, paragraph (g)(5) is (b) No cylinder may be equipped with leakage. Transportation in DOT 3AL revised to read as follows: an education tube or a fusible plug. cylinders is authorized only by highway (c) No cylinder may be equipped with § 173.306 Limited quantities of or rail. Each cylinder must be cleaned compressed gases. any valve unless the valve is a type in compliance with the requirements of approved by the Associate * * * * * Federal Specification RR–C–901C, Administrator. paragraphs 3.3.1 and 3.3.2 (incorporated (g) * * * (d) Cylinders must be overpacked in (5) Each tank must be overpacked in by reference; see § 171.7 of this a box, crate, or other strong outside subchapter). Cleaning agents equivalent a strong outside container in accordance packaging conforming to the with § 173.301(a)(8). to those specified in RR–C–901C may be requirements of § 173.25 and arranged used; however, any cleaning agent must * * * * * to protect each valve or other closing not be capable of reacting with oxygen. 34. In § 173.315, in paragraph (a), in device from damage. Except as provided Note 2 following the table, the reference One cylinder selected at random from a in paragraph (e) of this section, no more group of 200 or fewer and cleaned at the ‘‘§ 173.301(d)’’ is revised to read than four cylinders may be packed in a ‘‘paragraph (q) of this section’’, and same time must be tested for oil strong outside packaging. Each strong contamination in accordance with paragraph (q) is added to read as outside packaging with its closing follows: Specification RR–C–901C, paragraphs device protection must be sufficiently 4.4.2.2 (incorporated by reference; see § 173.315 Compressed gases in cargo strong to protect all parts of each § 171.7 of this subchapter) and meet the tanks and portable tanks. cylinder from deformation or leakage if standard of cleanliness specified * * * * * the completed package is dropped 1.8 m therein. (q) Manifolding is authorized for (6 feet) onto a non-yielding surface, such as concrete or steel, impacting at 37. Section 173.337 is revised to read cargo tanks containing anhydrous as follows: ammonia provided each individual the packaging’s weakest point. cargo tank is equipped with a pressure (e) Cylinders may be packed in strong § 173.337 Nitric oxide. wooden boxes with valves or other relief device or valves and gauging Nitric oxide must be packed in DOT devices as required by paragraphs (h) closing devices protected from damage, with not more than twelve cylinders in 3A1800, 3AA1800, 3E1800, or 3AL1800 and (i) of this section. Each valve must cylinders conforming to the be tightly closed while the cargo tank is one outside wooden box. An outer fiberboard box may be used when not requirements of § 173.40. Cylinders in transit. Each cargo tank must be filled must be equipped with a stainless steel separately. more than four such cylinders are to be shipped in one packaging. Valves must valve and valve seat that will not 35. Section 173.334 is revised to read deteriorate if in contact with nitric as follows: be adequately protected. Box and valve protection must be of sufficient strength oxide or nitrogen dioxide. Cylinders or § 173.334 Organic phosphates mixed with to protect all parts of inner packagings valves may not be equipped with compressed gas. and valves from deformation or pressure relief devices of any type. In Hexaethyl tetraphosphate, parathion, breakage resulting from a drop of at least addition— tetraethyl dithio pyrophosphate, 1.8 m (6 feet) onto a non-yielding (a) Transportation in DOT 3AL or tetraethyl pyrophosphate, or other surface, such as concrete or steel, 3ALM cylinders is authorized only by Division 6.1 organic phosphates impacting at the weakest point. highway or rail.
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(b) Each cylinder must be cleaned in (b) Inspections and analyses. (incorporated by reference; see § 171.7 compliance with the requirements of Chemical analyses and tests required by of this subchapter)’’. Federal Specification RR–C–901C, this subchapter must be made within paragraphs 3.3.1 and 3.3.2 (incorporated the United States, unless otherwise § 178.38 [Amended] by reference; see § 171.7 of this approved in writing by the Associate 44. In § 178.38, in paragraph (k)(3)(i), subchapter). Cleaning agents equivalent Administrator, in accordance with the wording ‘‘ASTM Standard E8’’ is to those specified in Federal subpart I of part 107 of this chapter. revised to read ‘‘ASTM E 8 Specification RR–C–901C may be used; Inspections and verification must be (incorporated by reference; see § 171.7 however, any cleaning agent must not performed by— of this subchapter)’’. be capable of reacting with oxygen. One (1) An independent inspection agency § 178.39 [Amended] cylinder selected at random from a approved in writing by the Associate group of 200 or fewer and cleaned at the Administrator, in accordance with 45. In § 178.39, in paragraph (k)(3)(i), same time must be tested for oil subpart I of part 107 of this chapter; or the wording ‘‘ASTM Standard E8’’ is revised to read ‘‘ASTM E 8 contamination in accordance with * * * * * Federal Specification RR–C–901C (incorporated by reference; see § 171.7 (c)*** of this subchapter)’’. paragraph 4.4.2.2 (incorporated by (3)*** reference; see § 171.7 of this subchapter) (iv) Obtaining samples for all tests § 178.44 [Amended] and meet the standard of cleanliness and check chemical analyses (Note: 46. In § 178.44, in paragraph (m)(3)(i), specified therein. Recommended locations for test the wording ‘‘ASTM Standard E8’’ is specimens taken from welded cylinders PART 177 —CARRIAGE BY PUBLIC revised to read ‘‘ASTM E 8 are depicted in Figures 1 through 5 in HIGHWAY (incorporated by reference; see § 171.7 Appendix C to this subpart for the of this subchapter)’’. 38. The authority citation for part 177 specific construction design.); 47. In § 178.45, paragraphs (h) and continues to read as follows: * * * * * (j)(3)(i) are revised to read as follows: Authority: 49 U.S.C. 5101–5127; 49 CFR (d) Defects and attachments. Cylinders must conform to the § 178.45 Specification 3T seamless steel 1.53. cylinder. following: 39. In § 177.840, paragraph (a)(1) is * * * * * revised to read as follows: (1) A cylinder may not be constructed of material with seams, cracks or (h) Ultrasonic examination. After the § 177.840 Class 2 (gases) materials. laminations, or other injurious defects. hydrostatic test, the cylindrical section of each vessel must be examined in * * * * * (2) Metal attachments to cylinders (a) * * * must have rounded or chamfered accordance with ASTM Standard E 213 (1) Cylinders. Cylinders containing corners or must be protected in such a (incorporated by reference; see § 171.7 Class 2 (gases) materials must be manner as to prevent the likelihood of of this subchapter). The equipment used securely restrained in an upright causing puncture or damage to other must be calibrated to detect a notch position, loaded in racks, or packed in hazardous materials packages. This equal to five percent of the design boxes or crates and securely attached to requirement applies to anything minimum wall thickness. Any the motor vehicle to prevent the temporarily or permanently attached to discontinuity indication greater than cylinders from being shifted, overturned the cylinder, such as metal skids. that produced by the five percent notch or ejected from the vehicle under (e) Safety devices. Pressure relief must be cause for rejection of the normal transportation conditions. A devices and protection for valves, safety cylinder, unless the discontinuity is cylinder containing a Class 2 material devices, and other connections, if repaired within the requirements of this may be loaded in a horizontal position applied, must be as required or specification. when the cylinder is designed so that authorized by the appropriate * * * * * the inlet port to the relief channel of the specification, and as required in (j) Basic conditions for acceptable pressure relief device is located in the § 173.301 of this subchapter. physical testing. *** vapor space of the cylinder. (f)*** (3)*** * * * * * (3) Marking exceptions. A DOT 3E (i) This yield strength must be cylinder is not required to be marked determined by the ‘‘offset’’ method or PART 178—SPECIFICATIONS FOR with an inspector’s mark or a serial the ‘‘extension under load’’ method PACKAGINGS number. described in ASTM E 8 (incorporated by * * * * * reference; see § 171.7 of this 40. The authority citation for part 178 subchapter). continues to read as follows: § 178.36 [Amended] * * * * * Authority: 49 U.S.C. 5101–5127; 49 CFR 42. In § 178.36, in paragraph (k)(3)(i), 48. In § 178.46, in paragraph (b)(4), in 1.53. the wording ‘‘ASTM Standard E8’’ is Table 2, the entry ‘‘6351–T6’’ is 41. In § 178.35, paragraphs (b) revised to read ‘‘ASTM E 8 removed, and Table 1 is revised to read introductory text, (b)(1), (c)(3)(iv), (d), (incorporated by reference; see § 171.7 as follows: (e), and (f)(3) are revised to read as of this subchapter)’’. follows: § 178.46 Specification 3AL seamless § 178.37 [Amended] aluminum cylinders. § 178.35 General requirements for 43. In § 178.37, in paragraph (k)(3)(i), * * * * * specification cylinders. the wording ‘‘ASTM Standard E8’’ is (b)*** * * * * * revised to read ‘‘ASTM E 8 (4)***
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TABLE 1.—HEAT OR CAST ANALYSIS FOR ALUMINUM; SIMILAR TO ‘‘ALUMINUM ASSOCIATION’’1 ALLOY 6061 [CHEMICAL ANALYSIS IN WEIGHT PERCENT2]
Other Si Fe Cu Mn Mg Cr Zn Ti Pb Bi min/max max min/max max min/max min/max max max max max each total A1 max max
0.4/0.8 0.7 0.15/0.4 0.15 0.8/1.2 0.04/0.35 0.25 0.15 0.005 0.005 0.05 0.15 Bal. 1 The ‘‘Aluminum Association’’ refers to ‘‘Aluminum Standards and Data 1993’’, published by the Aluminum Association Inc. 2 Except for ‘‘Pb’’ and ‘‘Bi’’, the chemical composition corresponds with that of Table 1 of ASTM B221 for Aluminum Association alloy 6061.
* * * * * C–3’’ is revised to read ‘‘CGA Pamphlet (incorporated by reference; see § 171.7 C–3 (incorporated by reference; see of this subchapter).*** § 178.47 [Amended] § 171.7 of this subchapter)’’. (e)*** 49. In § 178.47, in the fourth sentence b. In paragraph (j)(5)(i), the wording (3) For welding the cylinder, each of paragraph (d), the wording ‘‘CGA ‘‘ASTM Standard E8’’ is revised to read procedure and operator must be Pamphlet C–3’’ is revised to read ‘‘CGA ‘‘ASTM E 8 (incorporated by reference; qualified in accordance with the Pamphlet C–3 (incorporated by see § 171.7 of this subchapter)’’. sections of CGA Pamphlet C–3 reference; see § 171.7 of this (incorporated by reference; see § 171.7 subchapter)’’. § 178.55 [Amended] of this subchapter) that apply.*** § 178.50 [Amended] 53. In § 178.55, in paragraph (k)(3)(i), * * * * * the wording ‘‘ASTM Standard E8’’ is (j) * * 50. In § 178.50, the following changes revised to read ‘‘ASTM E 8 are made: (3)*** (incorporated by reference; see § 171.7 (i) The yield strength must be a. In paragraph (d) introductory text, of this subchapter)’’. in the fifth sentence, the wording ‘‘CGA determined by either the ‘‘offset’’ Pamphlet C–3’’ is revised to read ‘‘CGA § 178.56 [Amended] method or the ‘‘extension under load’’ method as prescribed in ASTM E 8 Pamphlet C–3 (incorporated by 54. In § 178.56, the following changes (incorporated by reference; see § 171.7 reference; see § 171.7 of this are made: of this subchapter). subchapter)’’. a. In paragraph (j)(3)(i), the wording b. In paragraph (k)(3)(i), the wording ‘‘ASTM Standard E8’’ is revised to read * * * * * ‘‘ASTM Standard E8’’ is revised to read ‘‘ASTM E 8 (incorporated by reference; (l)*** ‘‘ASTM E 8 (incorporated by reference; see § 171.7 of this subchapter)’’. (1) Tensile test. * * * The specimen see § 171.7 of this subchapter)’’. b. In paragraph (l)(1), in the fourth must be taken across the major seam and must be prepared in accordance § 178.51 [Amended] sentence the wording ‘‘CGA Pamphlet with and must meet the requirements of 51. In § 178.51, the following changes C–3’’ is revised to read ‘‘CGA Pamphlet C–3 (incorporated by reference; see CGA Pamphlet C–3 (incorporated by are made: reference; see § 171.7 of this a. In paragraph (d)(2), the wording § 171.7 of this subchapter)’’. c. In paragraph (l)(2), in the last subchapter).*** ‘‘CGA Pamphlet C–3’’ is revised to read (2) Guided bend test. *** ‘‘CGA Pamphlet C–3 (incorporated by sentence, the wording ‘‘CGA Pamphlet C–3’’ is revised to read ‘‘CGA Pamphlet Specimens must be taken across the reference; see § 171.7 of this particular seam being tested and must subchapter)’’. C–3 (incorporated by reference; see § 171.7 of this subchapter)’’. be prepared and tested in accordance b. In paragraph (j)(3)(i), the wording with and must meet the requirements of d. In paragraph (l)(3), in the first ‘‘ASTM Standard E8’’ is revised to read CGA Pamphlet C–3 (incorporated by sentence, the wording ‘‘CGA Pamphlet ‘‘ASTM E 8 (incorporated by reference; reference; see § 171.7 of this C–3’’ is revised to read ‘‘CGA Pamphlet see § 171.7 of this subchapter)’’. subchapter). c. In paragraph (l)(1), in the fourth C–3 (incorporated by reference; see § 171.7 of this subchapter)’’. (3) Alternate guided-bend test. This sentence, the wording ‘‘CGA Pamphlet test may be used and must be as 55. In § 178.57, the first sentence in C–3’’ is revised to read ‘‘CGA Pamphlet specified in CGA Pamphlet C–3 paragraph (d)(5), the first sentence in C–3 (incorporated by reference; see (incorporated by reference; see § 171.7 paragraph (e)(3), paragraph (j)(3)(i), the § 171.7 of this subchapter)’’. of this subchapter).*** d. In paragraph (l)(2), in the last fourth sentence in paragraph (l)(1), the (4) Impact tests. *** sentence, the wording ‘‘CGA Pamphlet last sentence in paragraph (l)(2), the first (v) All impact test specimens must be C–3’’ is revised to read ‘‘CGA Pamphlet sentence in paragraph (l)(3), the first of the charpy type, keyhole or milled U- C–3 (incorporated by reference; see sentence in paragraph (l)(4)(v), the notch, and must conform in all respects § 171.7 of this subchapter)’’. second sentence in paragraph (l)(4)(vi), to ASTM E 23 (incorporated by e. In paragraph (l)(3), in the first paragraph (m)(1), and the first sentence reference; see § 171.7 of this sentence, the wording ‘‘CGA Pamphlet in paragraph (o)(1) are revised to read as subchapter).*** C–3’’ is revised to read ‘‘CGA Pamphlet follows: (vi)***The apparatus for testing C–3 (incorporated by reference; see § 178.57 Specification 4L welded insulated the specimens must conform to § 171.7 of this subchapter)’’. cylinders. requirements of ASTM Standard E 23 § 178.53 [Amended] * * * * * (incorporated by reference; see § 171.7 52. In § 178.53, the following changes (d)*** of this subchapter).*** are made: (5) Welding procedures and * * * * * a. In paragraph (d), in the last operations must be qualified in (m) Radiographic sentence, the wording ‘‘CGA Pamphlet accordance with CGA Pamphlet C–3 examination. ***
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(1) The techniques and acceptability § 178.60 [Amended] d. In paragraph (l)(2), in the last of radiographic inspection must 58. In § 178.60, the following changes sentence, the wording ‘‘CGA Pamphlet conform to the standards set forth in are made: C–3’’ is revised to read ‘‘CGA Pamphlet CGA Pamphlet C–3 (incorporated by a. In paragraph (d), in the last C–3 (incorporated by reference; see reference; see § 171.7 of this sentence, the wording ‘‘CGA Pamphlet § 171.7 of this subchapter)’’. subchapter). C–3’’ is revised to read ‘‘CGA Pamphlet e. In paragraph (l)(3), in the first * * * * * C–3 (incorporated by reference; see sentence, the wording ‘‘CGA Pamphlet § 171.7 of this subchapter)’’. (o)*** C–3’’ is revised to read ‘‘CGA Pamphlet b. In paragraph (l)(3)(i), the wording C–3 (incorporated by reference; see (1) Inner containment vessel ‘‘ASTM Standard E8’’ is revised to read § 171.7 of this subchapter)’’. (cylinder). Electric furnace steel of ‘‘ASTM E 8 (incorporated by reference; f. In paragraph (m)(1), in the first uniform quality must be used. Chemical see § 171.7 of this subchapter)’’. sentence, the wording ‘‘CGA Pamphlet analysis must conform to ASTM A 240/ c. In paragraph (n)(1), in the second C–3’’ is revised to read ‘‘CGA Pamphlet A 240M (incorporated by reference; see sentence, the wording ‘‘CGA Pamphlet C–3 (incorporated by reference; see § 171.7 of this subchapter), Type 304 C–3’’ is revised to read ‘‘CGA Pamphlet § 171.7 of this subchapter)’’. stainless steel.*** C–3 (incorporated by reference; see * * * * * § 171.7 of this subchapter)’’. § 178.65 [Amended] d. In paragraph (n)(2), in the last 60. In § 178.65, in paragraph (c)(4), § 178.58 [Amended] sentence, the wording ‘‘CGA Pamphlet the wording ‘‘CGA Pamphlet C–3’’ is 56. In § 178.58, the following changes C–3’’ is revised to read ‘‘CGA Pamphlet revised to read ‘‘CGA Pamphlet C–3 are made: C–3 (incorporated by reference; see (incorporated by reference; see § 171.7 § 171.7 of this subchapter)’’. of this subchapter)’’. a. In paragraph (d)(1), in the last e. In paragraph (n)(3), in the first sentence, the wording ‘‘CGA Pamphlet sentence, the wording ‘‘CGA Pamphlet § 178.68 [Amended] C–3’’ is revised to read ‘‘CGA Pamphlet C–3’’ is revised to read ‘‘CGA Pamphlet 61. In § 178.68, the following changes C–3 (incorporated by reference; see C–3 (incorporated by reference; see are made: § 171.7 of this subchapter)’’. § 171.7 of this subchapter)’’. a. In paragraph (j)(3)(i), the wording b. In paragraph (m)(5)(i), the wording § 178.61 [Amended] ‘‘ASTM Standard E8’’ is revised to read ‘‘ASTM Standard E8’’ is revised to read ‘‘ASTM E 8 (incorporated by reference; 59. In § 178.61, the following changes ‘‘ASTM E 8 (incorporated by reference; see § 171.7 of this subchapter)’’. see § 171.7 of this subchapter)’’. are made: a. In paragraph (d)(4), the wording b. In paragraph (l)(2), in the third § 178.59 [Amended] ‘‘CGA Pamphlet C–3’’ is revised to read sentence, the wording ‘‘CGA Pamphlet ‘‘CGA Pamphlet C–3 (incorporated by C–3’’ is revised to read ‘‘CGA Pamphlet 57. In § 178.59, the following changes C–3 (incorporated by reference; see are made: reference; see § 171.7 of this subchapter)’’. § 171.7 of this subchapter)’’. a. In paragraph (d), in the last b. In paragraph (j)(3)(i), the wording 62. Appendix A is added to subpart sentence, the wording ‘‘CGA Pamphlet ‘‘ASTM Standard E8’’ is revised to read C of part 178, to read as follows: C–3’’ is revised to read ‘‘CGA Pamphlet ‘‘ASTM E 8 (incorporated by reference; Appendix A to Subpart C of Part 178— C–3 (incorporated by reference; see see § 171.7 of this subchapter)’’. Illustrations: Cylinder Tensile Sample § 171.7 of this subchapter)’’. c. In paragraph (l)(1), in the last b. In paragraph (j)(3)(i), the wording sentence, the wording ‘‘CGA Pamphlet The following figures illustrate the ‘‘ASTM Standard E8’’ is revised to read C–3’’ is revised to read ‘‘CGA Pamphlet recommended locations for test ‘‘ASTM E 8 (incorporated by reference; C–3 (incorporated by reference; see specimens taken from welded cylinders: see § 171.7 of this subchapter)’’. § 171.7 of this subchapter)’’. BILLING CODE 4910–60–P
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BILLING CODE 4910–60–C
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§ 178.358–5 [Amended] b. In paragraph (b), the wording 46.7° C (minus 52° F) at 101kPa (1 63. In § 178.358–5, in paragraph (c), ‘‘ASTM Specification A 240’’ is revised atmosphere) and free of components the wording ‘‘ASTM A–240, Type 304L’’ to read ‘‘ASTM A 240/A 240M that will adversely react with the is revised to read ‘‘ASTM A 240/A (incorporated by reference; see § 171.7 cylinder (e.g. chemical stress corrosion). 240M (incorporated by reference; see of this subchapter)’’. Condemn means a determination that § 171.1 of this subchapter), Type 304L’’. a cylinder is unserviceable for the § 179.220–7 [Amended] continued transportation of hazardous PART 179—SPECIFICATIONS FOR 72. In § 179.220–7, in the table in materials in commerce and that the TANK CARS paragraph (d), the wording ‘‘ASTM A cylinder may not be restored by repair, 240,’’ is revised to read ‘‘ASTM A 240/ 64. The authority citation for part 179 rebuilding, requalification, or any other A 240M (incorporated by reference; see procedure. continues to read as follows: § 171.7 of this subchapter),’’ each time Defect means an imperfection it appears. Authority: 49 U.S.C. 5101–5127; 49 CFR requiring removal of a cylinder from 1.53. § 179.400–5 [Amended] service. § 179.100–7 [Amended] 73. In § 179.400–5, in paragraph (a) Elastic expansion means a temporary 65. In § 179.100–7, in the table in introductory text, the wording ‘‘ASTM increase in a cylinder’s volume, due to paragraph (c)(1), the wording ‘‘ASTM Specification A240,’’ is revised to read application of pressure, that is lost A240,’’ is revised to read ‘‘ASTM A 240/ ‘‘ASTM A 240/A 240M (incorporated by when pressure is released (elastic A 240M (incorporated by reference; see reference; see § 171.7 of this expansion = total expansion minus § 171.7 of this subchapter),’’ each time subchapter)’’. permanent expansion). it appears. Filled or charged means an PART 180—CONTINUING introduction or presence of a hazardous § 179.100–10 [Amended] QUALIFICATION AND MAINTENANCE material in a cylinder. 66. In § 179.100–10, in paragraph (c), OF PACKAGINGS Non-corrosive service means a the wording ‘‘ASTM A 240’’ is revised 74. The authority citation for part 180 hazardous material that, in the presence to read ‘‘ASTM A 240/A 240M continues to read as follows: of moisture, is not corrosive to the (incorporated by reference; see § 171.7 materials of construction of a cylinder of this subchapter)’’. Authority: 49 U.S.C. 5101–5127; 49 CFR 1.53. (including valve, pressure relief device, § 179.102–1 [Amended] etc.). 75. Subpart C is added to part 180 to Over-heated means a condition in 67. In § 179.102–1, in paragraph (a)(1), read as follows: which the temperature of any portion of in the last sentence, the wording an aluminum cylinder has reached 176° ‘‘ASTM Specification A 240’’ is revised Subpart C—Qualification, Maintenance C (350° F) or higher, or in which the to read ‘‘ASTM A 240/A 240M and Use of Cylinders temperature of any portion of a steel or (incorporated by reference; see § 171.7 Sec. nickel cylinder has reached 343° C (650° of this subchapter)’’. 180.201 Applicability. F) or higher. § 179.102–4 [Amended] 180.203 Definitions. Permanent expansion means a 180.205 General requirements for permanent increase in a cylinder’s 68. In § 179.102–4, in paragraph (a)(1), requalification of cylinders. the wording ‘‘ASTM Specification 180.207 [Reserved] volume after the test pressure is A240’’ is revised to read ‘‘ASTM A 240/ 180.209 Requirements for requalification of released. A 240M (incorporated by reference; see specification cylinders. Proof pressure test means a pressure § 171.7 of this subchapter)’’. 180.211 Repair, rebuilding and reheat test by interior pressurization without treatment of DOT–4 series specification the determination of a cylinder’s § 179.102–17 [Amended] cylinders. expansion. 180.213 Requalification markings. 69. In § 179.102–17, in paragraph Rebuild means the replacement of a (b)(1), the wording ‘‘ASTM 180.215 Reporting and record retention requirements. pressure part (e.g. a wall, head, or Specification A240’’ is revised to read pressure fitting) by welding. ‘‘ASTM A 240/A 240M (incorporated by Subpart C—Qualification, Maintenance Rejected cylinder means a cylinder reference; see § 171.7 of this and Use of Cylinders that cannot be used for the subchapter)’’. transportation of a hazardous material § 180.201 Applicability. § 179.200–7 [Amended] in commerce without repair, rebuilding, This subpart prescribes requirements, and requalification. 70. In § 179.200–7, in the table in in addition to those contained in parts Repair means a procedure for paragraph (d), the wording ‘‘ASTM A 107, 171, 172, 173, and 178 of this correction of a rejected cylinder that 240’’ is revised to read ‘‘ASTM A 240/ chapter, applicable to any person may involve welding. A 240M (incorporated by reference; see responsible for the continuing Requalification means the completion § 171.7 of this subchapter)’’ each time it qualification, maintenance, or periodic of a visual inspection and/or the test(s) appears. requalification of DOT specification and required to be performed on a cylinder exemption cylinders. § 179.201–5 [Amended] to determine its suitability for continued 71. In § 179.201–5, the following § 180.203 Definitions. service. revisions are made: In addition to the definitions Requalification identification number a. In paragraph (a), the wording contained in § 171.8 of this subchapter, or RIN means a code assigned by DOT ‘‘ASTM Specification A 240’’ is revised the following definitions apply to this to uniquely identify a cylinder to read ‘‘ASTM A 240/A 240M subpart: requalification, repair, or rebuilding (incorporated by reference; see § 171.7 Commercially free of corrosive facility. of this subchapter)’’ each time it components means a hazardous material Test pressure means the pressure used appears. having a dew point at or below minus for the requalification of a cylinder.
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Total expansion means the total and marked in conformance with this inspection is recorded as prescribed in increase in a cylinder’s volume due to section and the terms of the applicable § 180.215; application of the test pressure. exemption. No cylinder may be filled (2) Requalified in accordance with Visual inspection means an internal with a hazardous material and offered this section, regardless of the date of the or external visual examination, or both, for transportation in commerce unless previous requalification; performed as part of the cylinder that cylinder has been successfully (3) Marked in accordance with requalification process. requalified and marked in accordance § 180.213; and Volumetric expansion test means a with this subpart. A cylinder may be (4) Decontaminated to remove all pressure test to determine the total and requalified at any time during or before significant residue or impregnation of permanent expansion of a cylinder at a the month and year that the the Class 8 material. given pressure. The volumetric requalification is due. However, a (f) Visual inspection. Except as expansion test is conducted using the cylinder filled before the requalification otherwise provided in this subpart, each water jacket or direct expansion becomes due may remain in service time a cylinder is pressure tested, it methods: until it is emptied. A cylinder with a must be given an internal and external (1) Water jacket method means a specified service life may not be refilled visual inspection. volumetric expansion test to determine and offered for transportation after its (1) The visual inspection must be a cylinder’s total and permanent authorized service life has expired. performed in accordance with the expansion by measuring the difference (1) Each cylinder that is requalified in following CGA Pamphlets: C–6 for steel between the volume of water the accordance with the requirements and nickel cylinders (incorporated by cylinder externally displaces at test specified in this section must be marked reference; see § 171.7 of this pressure and the volume of water the in accordance with § 180.213. subchapter); C–6.1 for seamless cylinder externally displaces at ambient (2) Each cylinder that fails aluminum cylinders (incorporated by pressure. requalification must be: reference; see § 171.7 of this subchapter); C–6.2 for fiber reinforced (2) Direct expansion method means a (i) Rejected and may be requalified in composite exemption cylinders volumetric expansion test to calculate a accordance with § 180.211; or (incorporated by reference; see § 171.7 cylinder’s total and permanent (ii) Condemned in accordance with of this subchapter); C–6.3 for low expansion by measuring the amount of paragraph (i) of this section. pressure aluminum cylinders water forced into a cylinder at test (3) For DOT specification cylinders, (incorporated by reference; see § 171.7 pressure, adjusted for the the marked service pressure may be of this subchapter); C–8 for DOT 3HT compressibility of water, as a means of changed upon approval of the Associate cylinders (incorporated by reference; see determining the expansion. Administrator and in accordance with § 171.7 of this subchapter); and C–13 for written procedures specified in the § 180.205 General requirements for DOT 8 series cylinders (incorporated by approval. requalification of cylinders. reference; see § 171.7 of this (4) For a DOT–3 series cylinder,at the (a) General. Each cylinder used for the subchapter). transportation of hazardous materials first requalification due on and after (2) For each cylinder with a coating or must be an authorized packaging. To October 1, 2002, the set pressure of a attachments that would inhibit qualify as an authorized packaging, each pressure relief device must be set at test inspection of the cylinder, the coating or cylinder must conform to this subpart, pressure with a tolerance of plus zero attachments must be removed before the applicable requirements specified in and minus 10%. performing the visual inspection. part 173 of this subchapter, and the (d) Conditions requiring test and (3) Each cylinder subject to visual applicable requirements of subpart C of inspection of cylinders. Without regard inspection must be approved, rejected, part 178 of this subchapter. to any other periodic requalification or condemned according to the criteria (b) Persons performing requalification requirements, a cylinder must be tested in the applicable CGA pamphlet. functions. No person may represent that and inspected in accordance with this (4) In addition to other requirements a repair or requalification of a cylinder section prior to further use if— prescribed in this paragraph (f), a DOT has been performed in accordance with (1) The cylinder shows evidence of specification or exemption cylinder the requirements in this subchapter dents, corrosion, cracked or abraded made of aluminum alloy 6351–T6 must unless that person holds a current areas, leakage, thermal damage, or any be inspected for evidence of sustained approval issued under the procedural other condition that might render it load cracking in the neck and shoulder requirements prescribed in subpart I of unsafe for use in transportation; area in accordance with the cylinder part 107 of this chapter. No person may (2) The cylinder has been in an manufacturer’s written mark a cylinder with a RIN and a accident and has been damaged to an recommendations, which must be requalification date or otherwise extent that may adversely affect its approved in writing by the Associate represent that a DOT specification or lading retention capability; Administrator. exemption cylinder has been requalified (3) The cylinder shows evidence of or (g) Pressure test. (1) Unless otherwise unless all applicable requirements of is known to have been over-heated; or provided, each cylinder required to be this subpart have been met. A person (4) The Associate Administrator retested under this subpart must be who requalifies cylinders must maintain determines that the cylinder may be in retested by means suitable for the records prescribed in § 180.215 at an unsafe condition. measuring the expansion of the cylinder each location at which it inspects, tests, (e) Cylinders containing Class 8 under pressure. Bands and other or marks cylinders. (corrosive) liquids. A cylinder removable attachments must be (c) Periodic requalification of previously containing a Class 8 loosened or removed before testing so cylinders. Each cylinder bearing a DOT (corrosive) liquid may not be used to that the cylinder is free to expand in all specification marking must be transport a Class 2 material in directions. requalified and marked as specified in commerce unless the cylinder is— (2) The pressure indicating device of the Requalification Table in this (1) Visually inspected, internally and the testing apparatus must permit subpart. Each cylinder bearing a DOT externally, in accordance with reading of pressures to within 1% of the exemption number must be requalified paragraph (f) of this section and the minimum prescribed test pressure of
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each cylinder tested, except that for an calibrated cylinder certificates in expansion exceeds 10 percent of total analog device, interpolation to 1⁄2 of the conformance with § 180.215(b)(4). expansion. marked gauge divisions is acceptable. (5) Minimum test pressure must be (v) For a DOT 3HT cylinder— The expansion-indicating device of the maintained for at least 30 seconds, and (A) The pressure test yields an elastic testing apparatus must also permit as long as necessary for complete expansion exceeding the marked incremental reading of the cylinder expansion of the cylinder. A system rejection elastic expansion (REE) value. expansion to 1% of the total expansion check may be performed at or below 3 (B) The cylinder shows evidence of of each cylinder tested or 0.1 cm , 90% of test pressure prior to the retest. denting or bulging. whichever is larger. Midpoint visual In the case of a malfunction of the test (C) The cylinder bears a manufacture interpolation is permitted. equipment, the test may be repeated at or an original test date older than (3) Each day before retesting, the a pressure increased by 10% or 100 twenty-four years or after 4380 retester shall confirm, by using a psig, whichever is less. This paragraph pressurizations, whichever occurs first. calibrated cylinder or other method (g) does not authorize retest of a If a cylinder is refilled, on average, more authorized in writing by the Associate cylinder otherwise required to be than once every other day, an accurate Administrator, that: condemned under paragraph (i) of this record of the number of rechargings (i) The pressure-indicating device, as section. must be maintained by the cylinder part of the retest apparatus, is accurate (h) Cylinder rejection. A cylinder ± owner or the owner’s agent. within 1.0% of the prescribed test must be rejected when, after a visual pressure of any cylinder tested that day. inspection, it meets a condition for (vi) For a DOT 4E aluminum cylinder, The pressure indicating device, itself, rejection under the visual inspection permanent expansion exceeds 12 must be certified as having an accuracy requirements of paragraph (f) of this percent of total expansion. ± of 0.5%, or better, of its full range, and section. (vii) For a DOT exemption cylinder, must permit readings of pressure from (1) Except as provided in paragraphs permanent expansion exceeds the limit 90%-110% of the minimum prescribed (h)(3) and (h)(4) of this section, a in the applicable exemption, or the test pressure of the cylinder to be tested. cylinder that is rejected may not be cylinder meets another criterion for The accuracy of the pressure indicating marked as meeting the requirements of condemnation in the applicable device within the test system can be this section. exemption. demonstrated at any point within 500 (2) The requalifier must notify the (viii) For an aluminum or an psig of the actual test pressure for test cylinder owner, in writing, that the aluminum-lined composite exemption pressures at or above 3000 psig, or 10% cylinder has been rejected. cylinder, the cylinder is known to have of the actual test pressure for test (3) Unless the cylinder is requalified been or shows evidence of having been pressures below 3000 psig. in conformance with requirements in over-heated. (ii) The expansion-indicating device, § 180.211, it may not be filled with a (2) When a cylinder must be as part of the retest apparatus, gives a hazardous material and offered for condemned, the requalifier must stamp stable reading of expansion and is transportation in commerce where use ± a series of X’s over the DOT accurate to 1.0% of the total expansion of a specification packaging is required. specification number and the marked of any cylinder tested or 0.1 cubic (4) A rejected cylinder with a service pressure or stamp ‘‘CONDEMNED’’ on centimeter, whichever is larger. The pressure of less than 900 psig may be the shoulder, top head, or neck using a expansion-indicating device itself must requalified and marked if the cylinder is ± steel stamp. Alternatively, at the have an accuracy of 0.5%, or better, of repaired or rebuilt and subsequently direction of the owner, the requalifier its full scale. inspected and tested in conformance may render the cylinder incapable of (4) The test equipment must be with— holding pressure. In addition, the verified to be accurate within ±1.0% of (i) The visual inspection requirements requalifier must notify the cylinder the calibrated cylinder’s pressure and of paragraph (f) of this section; owner, in writing, that the cylinder is corresponding expansion values. This (ii) Part 178 of this subchapter and condemned and may not be filled with may be accomplished by bringing the this part; hazardous material and offered for pressure to a value shown on the (iii) Any exemption covering the transportation in commerce where use calibration certificate for the calibrated manufacture, requalification, and/or use of a specification packaging is required. cylinder used and verifying that the of that cylinder; and resulting total expansion is within (3) No person may remove or (iv) Any approval required under obliterate the ‘‘CONDEMNED’’ marking. ±1.0% of the total expansion shown on § 180.211. the calibration certificate. Alternatively, (i) Cylinder condemnation. (1) A § 180.207 [Reserved] calibration may be demonstrated by cylinder must be condemned when— bringing the total expansion to a known (i) The cylinder meets a condition for § 180.209 Requirements for requalification value on the calibration certificate for condemnation under the visual of specification cylinders. the calibrated cylinder used and inspection requirements of paragraph (f) (a) Periodic qualification of cylinders. verifying that the resulting pressure is of this section. (1) Each specification cylinder that within ±1.0% of the pressure shown on (ii) The cylinder leaks through its becomes due for periodic the calibration certificate. The calibrated wall. requalification, as specified in the cylinder must show no permanent (iii) Evidence of cracking exists to the following table, must be requalified and expansion. The retester must extent that the cylinder is likely to be marked in conformance with the demonstrate calibration in conformance weakened appreciably. requirements of this subpart. with this paragraph (g) to an authorized (iv) For a DOT specification cylinder, Requalification records must be inspector on any day that it retests other than a DOT 4E aluminum cylinder maintained in accordance with cylinders. A retester must maintain or an exemption cylinder, permanent § 180.215. Table 1 follows:
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TABLE 1.—REQUALIFICATION OF CYLINDERS 1
Specification under which cylinder was made Minimum test pressure Test period (psig) 2 (years)
DOT 3 ...... 3000 psig ...... 5 DOT 3A, 3AA ...... 5/3 times service pressure, except noncorro- 5, 10, or 12 (see § 180.209(b), (f), (h), and (j) sive service (see § 180.209(g)). DOT 3AL ...... 5/3 times service pressure ...... 5 or 12 (see § 180.209(j)) DOT 3AX, 3AAX ...... 5/3 times service pressure ...... 5 3B, 3BN ...... 2 times service pressure (see § 180.209(g)) ... 5 or 10 (see § 180.209(f)) 3E ...... Test not required. 3HT ...... 5/3 times service pressure ...... 3 (see §§ 180.209(i) and 180.213(c)) 3T ...... 5/3 times service pressure ...... 5 4AA480 ...... 2 times service pressure (see § 180.209(g)) ... 5 or 10 (see § 180.209(e)(14) 4B, 4BA, 4BW, 4B–240ET ...... 2 times service pressure, except non-corro- 5, 10, or 12 (see § 180.209(e), (f), and (j)) sive service (see § 180.209(g)). 4D, 4DA, 4DS ...... 2 times service ...... 5 DOT 4E ...... 2 times service pressure, except non-corro- 5 sive (see § 180.209(g)). 4L ...... Test not required. 8, 8AL ...... 10 or 20 (see § 180.209(i)) Exemption cylinder ...... See current exemption ...... See current exemption Foreign cylinder (see § 173.301(j) of this sub- As marked on cylinder, but not less than 5/3 5 (see §§ 180.209(k) and 180.213(d)(iii)) chapter for restrictions on use). of any service or working pressure marking. 1 Any cylinder not exceeding 2 inches outside diameter and less than 2 feet in length is excepted from volumetric expansion test. 2 For cylinders not marked with a service pressure, see § 173.301(e)(1) of this subchapter.
(b) DOT 3A or 3AA cylinders. (1) A (2) If, since the last required pressure of 300 psig or less must be cylinder conforming to specification requalification, a cylinder has not been given a complete external visual DOT 3A or 3AA with a water capacity used exclusively for the gases inspection at the time periodic of 56.7 kg (125 lb) or less that is specifically identified in paragraph requalification becomes due. External removed from any cluster, bank, group, (b)(1)(ii) of this section, but currently visual inspection must be in accordance rack, or vehicle each time it is filled, conforms with all other provisions of with CGA Pamphlet C–6 or C–6.1 may be requalified every ten years paragraph (b)(1) of this section, it may (incorporated by reference; see § 171.7 instead of every five years, provided the be requalified every 10 years instead of of this subchapter). The cylinder may be cylinder conforms to all of the following every five years, provided it is first proof pressure tested. The test is conditions: requalified and examined as prescribed successful if the cylinder, when (i) The cylinder was manufactured by § 173.302a(b) (2), (3) and (4) of this examined under test pressure, does not after December 31, 1945. subchapter. display a defect described in (ii) The cylinder is used exclusively (3) Except as specified in paragraph § 180.205(i)(1) (ii) or (iii). Upon for air; argon; cyclopropane; ethylene; (b)(2) of this section, if a cylinder, successful completion of the test and helium; hydrogen; krypton; neon; marked with a star, is filled with a inspection, the cylinder must be marked nitrogen; nitrous oxide; oxygen; sulfur compressed gas other than as specified in accordance with § 180.213. hexafluoride; xenon; fluorinated in paragraph (b)(1)(ii) of this section, the (e) Proof pressure test. A cylinder hydrocarbons, liquefied hydrocarbons, star following the most recent test date made in conformance with and mixtures thereof that are must be obliterated. The cylinder must specifications DOT 4B, 4BA, 4BW, or 4E commercially free from corroding be requalified five years from the used exclusively for: liquefied components; permitted mixtures of marked test date, or prior to the first petroleum gas that meets the these gases (see § 173.301(d) of this filling with a compressed gas, if the requirements in Table I of ASTM D subchapter); and permitted mixtures of required five-year requalification period 1835, Standard Specification for these gases with up to 30 percent by has passed. Liquefied Petroleum (LP) Gases volume of carbon dioxide, provided the (c) DOT 4-series cylinders. A DOT 4- (incorporated by reference; see § 171.7 gas has a dew point at or below minus series cylinder, except a 4L cylinder, of this subchapter); anhydrous (52° F) at 1 atmosphere. that at any time shows evidence of a dimethylamine; anhydrous (iii) Before each refill, the cylinder is leak or of internal or external corrosion, methylamine; anhydrous removed from any cluster, bank, group, denting, bulging or rough usage to the trimethylamine; methyl chloride; rack or vehicle and passes the hammer extent that it is likely to be weakened methylacetylene-propadiene stabilized; test specified in CGA Pamphlet C–6 appreciably, or that has lost five percent or dichlorodifluoromethane, (incorporated by reference; see § 171.7 or more of its official tare weight must difluoroethane, difluorochloroethane, of this subchapter). be requalified before being refilled and chlorodifluoromethane, (iv) The cylinder is dried immediately offered for transportation. (Refer to CGA chlorotetrafluoroethane, after hydrostatic testing to remove all Pamphlet C–6 or C–6.3, as applicable, trifluorochloroethylene, or mixture traces of water. regarding cylinder weakening.) After thereof, or mixtures of one or more with (v) The cylinder is not used for testing, the actual tare weight must be trichlorofluoromethane; and underwater breathing. recorded as the new tare weight. commercially free from corroding (vi) Each cylinder is stamped with a (d) Cylinders 5.44 kg (12 lb) or less components and protected externally by five-pointed star at least one-fourth of with service pressures of 300 psig or a suitable corrosion-resistant coating an inch high immediately following the less. A cylinder of 5.44 (12 lb) or less (such as galvanizing or painting) may be test date. water capacity authorized for service requalified by volumetric expansion
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testing every 12 years instead of every (such as galvanizing or painting) and inspections are required at five-year five years. As an alternative, the internally by a suitable corrosion intervals after the first inspection. After cylinder may be subjected to a proof resistant lining (such as galvanizing) September 30, 2003, inspections must pressure test at least two times the may be tested every 10 years instead of be made only by persons holding a marked service pressure, but this latter every five years, provided a visual current RIN and the results recorded type of test must be repeated every internal and external examination of the and maintained in accordance with seven years after expiration of the first cylinder is conducted every five years in § 180.215. Records must include: date of 12-year period. When subjected to a accordance with CGA Pamphlet C–6 inspection (month and year); DOT proof pressure test, the cylinder must be (incorporated by reference; see § 171.7 specification number; cylinder carefully examined under test pressure of this subchapter). The cylinder must identification (registered symbol and and removed from service if a leak or be examined at each filling, and rejected serial number, date of manufacture, and defect is found. if a dent, corroded area, leak or other owner); type of cylinder protective (f) Poisonous materials. A cylinder condition indicates possible weakness. coating (including statement as to need conforming to specification DOT 3A, (g) Visual inspections. A cylinder of refinishing or recoating); conditions 3AA, 3B, 4BA, or 4BW having a service conforming to a specification listed in checked (e.g., leakage, corrosion, pressure of 300 psig or less and used the table in this paragraph and used gouges, dents or digs in shell or heads, exclusively for methyl bromide, liquid; exclusively in the service indicated broken or damaged footring or mixtures of methyl bromide and may, instead of a periodic hydrostatic protective ring or fire damage); ethylene dibromide, liquid; mixtures of test, be given a complete external visual disposition of cylinder (returned to methyl bromide and chlorpicrin, liquid; inspection at the time periodic service, returned to cylinder mixtures of methyl bromide and requalification becomes due. External manufacturer for repairs or condemned). petroleum solvents, liquid; or methyl visual inspection must be in accordance A cylinder passing requalification by bromide and nonflammable, with CGA Pamphlet C–6 or C–6.3, as the external visual inspection must be nonliquefied compressed gas mixtures, applicable (incorporated by reference; marked in accordance with § 180.213. liquid; commercially free of corroding see § 171.7 of this subchapter). When Specification cylinders must be in components, and protected externally this inspection is used instead of exclusive service as shown in the by a suitable corrosion resistant coating hydrostatic pressure testing, subsequent following table:
Cylinders conforming to— Used exclusively for—
DOT 3A, DOT 3AA, DOT 3A480X, DOT 4AA480 ...... Anhydrous ammonia of at least 99.95% purity. DOT 3A, DOT 3AA, DOT 3A480X, DOT 3B, DOT 4B, DOT 4BA, DOT Butadiene, inhibited, that is commercially free from corroding compo- 4BW. nents. DOT 3A, DOT 3A480X, DOT 3AA, DOT 3B, DOT 4AA480, DOT 4B, Cyclopropane that is commercially free from corroding components. DOT 4BA, DOT 4BW. DOT 3A, DOT 3AA, DOT 3A480X, DOT 4B, DOT 4BA, DOT 4BW, Fluorinated hydrocarbons and mixtures thereof that are commercially DOT 4E. free from corroding components. DOT 3A, DOT 3AA, DOT 3A480X, DOT 3B, DOT 4B, DOT 4BA, DOT Liquefied hydrocarbon gas that is commercially free from corroding 4BW, DOT 4E. components. DOT 3A, DOT 3AA, DOT 3A480X, DOT 3B, DOT 4B, DOT 4BA, DOT Liquefied petroleum gas that meets the requirements in Table I of 4BW, DOT 4E. ASTM D 1835, Standard Specification for Liquefied Petroleum (LP) Gases (incorporated by reference; see § 171.7 of this subchapter). DOT 3A, DOT 3AA, DOT 3B, DOT 4B, DOT 4BA, DOT 4BW, DOT 4E Methylacetylene-propadiene, stabilized, that is commercially free from corroding components. DOT 3A, DOT 3AA, DOT 3B, DOT 4B, DOT 4BA, DOT 4BW ...... Anhydrous mono, di,trimethylamines that are commercially free from corroding components. DOT 4B240, DOT 4BW240 ...... Ethyleneimine, inhibited.
(h) Cylinders containing anhydrous resistant coating (such as paint) may be and the porous filler requalified in ammonia. A cylinder conforming to requalified every 10 years instead of accordance with CGA Pamphlet C–13 specification DOT 3A, 3A480X, or every five years. (incorporated by reference; see § 171.7 4AA480 used exclusively for anhydrous (i) Requalification of DOT–8 series of this subchapter). Requalification must ammonia, commercially free from cylinders. (1) Each owner of a DOT–8 be performed in accordance with the corroding components, and protected series cylinder used to transport following schedule: externally by a suitable corrosion- acetylene must have the cylinder shell
Date of cylinder manufac- Shell (visual inspection) requalification Porous filler requalification ture Initial Subsequent Initial Subsequent
Before January 1, 1991 ..... Before January 1, 2001 .... 10 years ...... Before January 1, 2011 .... Not required. On or after January 1, 10 years 1 ...... 10 years ...... 3 to 20 years 2 ...... Not required. 1991. 1 Years from date of cylinder manufacture. 2 For a cylinder manufactured on or after January 1, 1991, requalification of the porous filler must be performed no sooner than 3 years, and no later than 20 years, from the date of manufacture.
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(2) Unless requalified and marked in procedures and requirements of this markings is replaced, all markings must accordance with CGA Pamphlet C–13 subpart or the Associate Administrator be transferred to the attachment on the (incorporated by reference; see § 171.7 has authorized the filling company to repaired cylinder. of this subchapter) before October 1, fill foreign cylinders under an (10) Walls, heads or bottoms of 1994, an acetylene cylinder must be alternative method of qualification; and cylinders with defects or leaks in base requalified by a person who holds a (2) It is offered for transportation in metal may not be repaired, but may be current RIN. conformance with the requirements of replaced as provided for in paragraph (3) If a cylinder valve is replaced, a § 173.301(l) of this subchapter. (d) of this section. cylinder valve of the same weight must (c) Additional repair requirements for § 180.211 Repair, rebuilding and reheat be used or the tare weight of the treatment of DOT–4 series specification 4L cylinders. (1) Repairs to a DOT 4L cylinder must be adjusted to cylinders. cylinder must be performed in accordance with paragraphs (a) and (b) compensate for valve weight (a) General requirements for repair of this section and are limited to the differential. and rebuilding. Any repair or rebuilding (4) The person performing a visual of a DOT 4-series cylinder must be following: inspection or requalification must (i) The removal of either end of the performed by a person holding an insulation jacket to permit access to the record the results as specified in approval as specified in § 107.805 of cylinder, piping system, or neck tube. § 180.215. this chapter. A person performing a (5) The person performing a visual (ii) The replacement of the neck tube. rebuild function is considered a inspection or requalification must mark At least a 13 mm (0.51 inch) piece of the manufacturer subject to the the cylinder as specified in § 180.213. original neck tube must be protruding requirements of § 178.2(a)(2) and (j) Cylinder used as a fire above the cylinder’s top end. The subpart C of part 178 of this subchapter. extinguisher. Only a DOT specification original weld attaching the neck tube to The person performing a repair, rebuild, cylinder used as a fire extinguisher and the cylinder must be sound and the or reheat treatment must record the test meeting Special Provision 18 in replacement neck tube must be welded results as specified in § 180.215. Each § 172.102(c)(1) of this subchapter may to this remaining piece of the original cylinder that is successfully repaired or be requalified in accordance with this rebuilt must be marked in accordance neck tube. paragraph (j). (iii) The replacement of material such with § 180.213. (1) A DOT 4B, 4BA, 4B240ET or 4BW (b) General repair requirements. Each as, but not limited to, the insulating cylinder may be tested as follows: repair of a DOT 4-series cylinder must material and the piping system within (i) For a cylinder with a water be made in accordance with the the insulation space is authorized. The capacity of 5.44 kg (12 lb) or less, by following conditions: replacement material must be volumetric expansion test using the (1) The repair and the inspection of equivalent to that used at the time of water jacket method or by proof the work performed must be made in original manufacture. pressure test. A requalification must be accordance with the requirements of the (iv) Other welding procedures that are performed by the end of 12 years after cylinder specification. permitted by CGA Pamphlet C–3 the original test date and at 12-year (2) The person performing the repair (incorporated by reference; see § 171.7 intervals thereafter. must use the procedure, equipment, and of this subchapter), and not excluded by (ii) For a cylinder having a water filler metal or brazing material as the definition of ‘‘rebuild,’’ are capacity over 5.44 kg (12 lb)— authorized by the approval issued under authorized. (A) By proof pressure test. A § 107.805 of this chapter. (2) After repair, the cylinder must requalification must be performed by (3) Welding and brazing must be be— the end of 12 years after the original test performed on an area free from (i) Pressure tested in accordance with date and at 7-year intervals; or contaminants. the specifications under which the (B) By volumetric expansion test using (4) A weld defect, such as porosity in cylinder was originally manufactured; the water jacket method. A a pressure retaining seam, must be (ii) Leak tested before and after requalification must be performed 12 completely removed before re-welding. assembly of the insulation jacket using years after the original test date and at Puddling may be used to remove a weld a mass spectrometer detection system; 12-year intervals thereafter. defect only by the tungsten inert gas and (2) A DOT 3A, 3AA, or 3AL cylinder shielded arc process. (iii) Tested for heat conductivity must be requalified by volumetric (5) After removal of a non-pressure requirements. expansion test using the water jacket attachment and before its replacement, (d) General rebuilding requirements. method. A requalification must be the cylinder must be given a visual (1) The rebuilding of a DOT 4-series performed 12 years after the original test inspection in accordance with cylinder must be made in accordance date and at 12-year intervals thereafter. § 180.205(f). with the following requirements: (k) Requalification of foreign cylinders (6) Reheat treatment of DOT 4B, 4BA (i) The person rebuilding the cylinder filled for export. A cylinder or 4BW specification cylinders after must use the procedures and equipment manufactured outside the United States, replacement of non-pressure as authorized by the approval issued other than as provided in § 171.12a of attachments is not required when the under § 107.805 of this chapter. this subchapter, that has not been total weld material does not exceed 20.3 (ii) After removal of a non-pressure manufactured, inspected, tested and cm (8 inches). Individual welds must be component and before replacement of marked in accordance with part 178 of at least 7.6 cm (3 inches) apart. any non-pressure component, the this subchapter may be filled with (7) After repair of a DOT 4B, 4BA or cylinder must be visually inspected in compressed gas in the United States, 4BW cylinder, the weld area must be accordance with CGA Pamphlet C–6 and shipped solely for export if it meets leak tested at the service pressure of the (incorporated by reference; see § 171.7 the following requirements, in addition cylinder. of this subchapter). to other requirements of this subchapter: (8) Repair of weld defects must be free (iii) The rebuilder may rebuild a DOT (1) It has been inspected, tested and of cracks. 4B, 4BA or 4BW cylinder having a water marked (with only the month and year (9) When a non-pressure attachment capacity of 9.07 kg (20 lb) or greater by of test) in conformance with the with the original cylinder specification replacing a head of the cylinder using a
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circumferential joint. When this weld (iii) Replacing the outer jacket. (B) The minimum wall thickness is joint is located at other than an original (2) Reheat treatment of cylinders is maintained in accordance with welded joint, a notation of this prohibited. manufacturing specifications for the modification must be shown on the (3) After rebuilding, each inner cylinder; and Manufacturer’s Report of Rebuilding in containment vessel must be proof (C) The original manufacturing test § 180.215(d)(2). The weld joint must be pressure tested at 2 times its service date is not removed. on the cylindrical section of the pressure. Each completed assembly (ii) When the cylinder is fitted with a cylinder. must be leak-tested using a mass footring, additional dates may be (iv) Any welding and the inspection spectrometer detection system. (f) Reheat treatment. (1) Prior to marked on the external surface of the of the rebuilt cylinder must be in footring. accordance with the requirements of the reheat treatment, each cylinder must be given a visual inspection, internally and (c) Requalification marking method. applicable cylinder specification and externally, in accordance with The depth of requalification markings the following requirements: may not be greater than specified in the (A) Rebuilding of any cylinder § 180.205(f). (2) Cylinders must be segregated in applicable specification. The markings involving a joint subject to internal lots for reheat treatment. The reheat must be made by stamping, engraving, pressure may only be performed by treatment and visual inspection must be scribing or other method that produces fusion welding; performed in accordance with the a legible, durable mark. (B) Welding must be performed on an (1) A cylinder used as a fire area free from contaminants; and specification for the cylinders except as provided in paragraph (f)(4) of this extinguisher (§ 180.209(j)) may be (C) A weld defect, such as porosity in marked by using a pressure sensitive a pressure retaining seam, must be section. (3) After reheat treatment, each label. completely removed before re-welding. cylinder in the lot must be subjected to (2) For a DOT 3HT cylinder, the test Puddling may be used to remove a weld a volumetric expansion test and meet date and RIN must be applied by low- defect only by using the tungsten inert the acceptance criteria in the applicable stress steel stamps to a depth no greater gas shielded arc process. specification or be scrapped. than that prescribed at the time of (2) Any rebuilt cylinder must be— (4) After all welding and heat (i) Heat treated in accordance with manufacture. Stamping on the sidewall treatment, a test of the new weld must paragraph (f) of this section; is not authorized. (ii) Subjected to a volumetric be performed as required by the original (d) Requalification markings. Each expansion test on each cylinder. The specification. The test results must be cylinder that has successfully passed results of the tests must conform to the recorded in accordance with § 180.215. requalification must be marked with the applicable cylinder specification; § 180.213 Requalification markings. RIN set in a square pattern, between the month and year of the requalification (iii) Inspected and have test data (a) General. Each cylinder requalified date. The first character of the RIN must reviewed to determine conformance in accordance with this subpart with appear in the upper left corner of the with the applicable cylinder acceptable results must be marked as square pattern; the second in the upper specification; and specified in this section. Required right; the third in the lower right, and (iv) Made of material conforming to specification markings may not be the fourth in the lower left. Example: A the specification. Determination of altered or removed. conformance shall include chemical (b) Placement of markings. Each cylinder requalified in September 1998, analysis, verification, inspection and cylinder must be plainly and and approved by a person who has been tensile testing of the replaced part. permanently marked on the metal of the issued RIN ‘‘A123’’, would be marked Tensile tests must be performed on the cylinder as permitted by the applicable plainly and permanently into the metal replaced part after heat treatment by lots specification. Unless authorized by the of the cylinder in accordance with defined in the applicable specification. cylinder specification, marking on the location requirements of the cylinder (3) For each rebuilt cylinder, an cylinder sidewall is prohibited. specification or on a metal plate inspector’s report must be prepared to (1) Requalification and required permanently secured to the cylinder in include the information listed in specification markings must be legible accordance with paragraph (b) of this § 180.215(d). so as to be readily visible at all times. section. An example of the markings (4) Rebuilding a cylinder with brazed Illegible specification markings may be prescribed in this paragraph (d) is as seams is prohibited. remarked on the cylinder as provided by follows: (5) When an end with the original the original specification. cylinder specification markings is Requalification markings may be placed A1 replaced, all markings must be on any portion of the upper end of the 9 98 × transferred to the rebuilt cylinder. cylinder excluding the sidewall, as 32 (e) Additional rebuilding provided in this section. Requalification requirements for DOT 4L cylinders. (1) and required specification markings that The rebuilding of a DOT 4L cylinder are illegible may be reproduced on a Where: must be performed in accordance with metal plate and attached as provided by paragraph (d) of this section. Rebuilding ‘‘9’’ is the month of requalification, the original specification. ‘‘A123’’ is the RIN, of a DOT 4L cylinder is: (2) Previous requalification markings (i) Substituting or adding material in ‘‘98’’ is the year of requalification, and may not be obliterated, except that, ‘‘X’’ represents the symbols described in the insulation space not identical to that when the space originally provided for used in the original manufacture of that paragraphs (f)(2) through (f)(7) of this requalification dates becomes filled, section. cylinder; additional dates may be added as (ii) Making a weld repair not to follows: (1) Upon a written request, variation exceed 150 mm (5.9 inches) in length on (i) All preceding requalification dates from the marking requirement may be the longitudinal seam of the cylinder or may be removed by peening provided approved by the Associate 300 mm (11.8 inches) in length on a that— Administrator. circumferential weld joint of the (A) Permission is obtained from the (2) Exception. A cylinder subject to cylinder; or cylinder owner; the requirements of § 173.301(l) of this
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subchapter may not be marked with a (3) Copies of notifications to Associate test sheet must indicate the method by RIN. Administrator required under § 107.805 which any average or maximum wall (e) Size of markings. The size of the of this chapter; stress was computed. Records must be markings must be at least 6.35 mm (1⁄4 (4) Current copies of those portions of kept for all completed, as well as in.) high, except RIN characters must be this subchapter applicable to its unsuccessful tests. The entry for a at least 3.18 mm (1⁄8 in.) high. cylinder requalification and marking second test after a failure to hold test (f) Marking illustrations. Examples of activities at that location; pressure must indicate the date of the required requalification markings for (5) Current copies of all exemptions earlier test. DOT specification and exemption governing exemption cylinders (3) Wall stress. Calculations of average cylinders are illustrated as follows: requalified or marked by the requalifier and maximum wall stress pursuant to (1) For designation of the 5-year at that location; and § 173.302a(b)(3) of this subchapter, if (6) The information contained in each volumetric expansion test, 10-year performed. applicable CGA or ASTM standard volumetric expansion test for cylinders (4) Calibration certificates. The most incorporated by reference in § 171.7 of conforming to § 180.209(f) and (h), or recent certificate of calibration must be this subchapter applicable to the 12-year volumetric expansion test for maintained for each calibrated cylinder. requalifier’s activities. This information fire extinguishers conforming to (c) Repair, rebuilding or reheat must be the same as contained in the § 173.309(b) of this subchapter and treatment records. (1) Records covering edition incorporated by reference in cylinders conforming to § 180.209(e) welding or brazing repairs, rebuilding or § 171.7 of this subchapter. and § 180.209(g), the marking is as reheat treating shall be retained for a (b) Requalification records. Daily minimum of fifteen years by the illustrated in paragraph (d) of this records of visual inspection, pressure section. approved facility. test, and ultrasonic examination if (2) A record of rebuilding, in (2) For designation of the 10-year permitted under an exemption, as accordance with § 180.211(d), must be volumetric expansion test for cylinders applicable, must be maintained by the completed for each cylinder rebuilt. The conforming to § 180.209(b), the marking person who performs the requalification record must be clear, legible, and is as illustrated in paragraph (d) of this until either the expiration of the contain the following information: section, except that the ‘‘X’’ is replaced requalification period or until the (i) Name and address of test facility, with a five-point star. cylinder is again requalified, whichever date of test report, and name of original (3) For designation of special filling occurs first. A single date may be used manufacturer; limits up to 10% in excess of the for each test sheet, provided each test on (ii) Marks stamped on cylinder to marked service pressure for cylinders the sheet was conducted on that date. include specification number, service conforming to § 173.302a(b) of this Ditto marks or a solid vertical line may pressure, serial number, symbol of subchapter, the marking is as illustrated be used to indicate repetition of the manufacturer, inspector’s mark, and in paragraph (d) of this section, except preceding entry for the following entries other marks, if any; that the ‘‘X’’ is replaced with a plus sign only: date; actual dimensions; (iii) Cylinder outside diameter and ‘‘+’’. manufacturer’s name or symbol, if length in inches; (4) For designation of the proof present; owner’s name or symbol, if (iv) Rebuild process (welded, brazed, pressure test, the marking is as present; and test operator. Blank spaces type seams, etc.); illustrated in paragraph (d) of this may not be used to indicate repetition (v) Description of assembly and any section, except that the ‘‘X’’ is replaced of a prior entry. The records must attachments replaced (e.g., neckrings, with the letter ‘‘S’’. include the following information: footrings); (5) For designation of the 5-year (1) Pressure test records. For each test (vi) Chemical analysis of material for external visual inspection for cylinders to demonstrate calibration, the date; the cylinder, including seat and Code conforming to § 180.209(g), the marking serial number of the calibrated cylinder; No., type of analysis (ladle, check), is as illustrated in paragraph (d) of this calibration test pressure; total, elastic chemical components (Carbon (C), section, except that the ‘‘X’’ is replaced and permanent expansions; and legible Phosphorous (P), Sulfur (S), Silicon (Si), with the letter ‘‘E’’. identification of test operator. The test Manganese (Mn), Nickel (Ni), (6) For designation of DOT 8 series operator must be able to demonstrate Chromium (Cr), Molybdenum (Mo), cylinder shell requalification only, the that the results of the daily calibration Copper (Cu), Aluminum (Al), Zinc marking is as illustrated in paragraph verification correspond to the (Zn)), material manufacturer, name of (d) of this section, except that the ‘‘X’’ hydrostatic tests performed on that day. person performing the analysis, results is replaced with the letter ‘‘S’’. The daily verification of calibration(s) of physical tests of material for cylinder (7) For designation of DOT 8 series may be recorded on the same sheets as, (yield strength (psi), tensile strength cylinder shell and porous filler and with, test records for that date. (psi), elongation percentage (inches), requalification, the marking is as (2) Pressure test and visual inspection reduction in area percentage, weld illustrated in paragraph (d) of this records. The date of requalification; bend, tensile bend, name of inspector); section, except that the ‘‘X’’ is replaced serial number; DOT specification or (vii) Results of proof pressure test on with the letters ‘‘FS’’. exemption number; marked pressure; cylinder, including test method, test actual dimensions; manufacturer’s name pressure, total expansion, permanent § 180.215 Reporting and record retention or symbol; owner’s name or symbol, if expansion, elastic expansion, percent requirements. present; result of visual inspection; permanent expansion (permanent (a) Facility records. A person who actual test pressure; total, elastic and expansion may not exceed ten percent requalifies, repairs or rebuilds cylinders permanent expansions; percent (10%) of total expansion), and must maintain the following records permanent expansion; disposition, with volumetric capacity (volumetric where the requalification is performed: reason for any repeated test, rejection or capacity of a rebuilt cylinder must be (1) Current RIN issuance letter; condemnation; and legible within ± 3% of the calculated capacity); (2) If the RIN has expired and renewal identification of test operator. For each (viii) Each report must include the is pending, a copy of the renewal cylinder marked pursuant to following certification statement: ‘‘I request; § 173.302a(b)(5) of this subchapter, the certify that this rebuilt cylinder is
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accurately represented by the data above rebuild technician and principal, Issued in Washington, DC, on June 19, and conforms to all of the requirements officer, or partner of the rebuild facility. 2002, under authority delegated in 49 CFR in Subchapter C of Chapter I of Title 49 part 1. of the Code of Federal Regulations.’’. Elaine E. Joost, The certification must be signed by the Acting Administrator, Research and Special Programs Administration. [FR Doc. 02–15977 Filed 8–7–02; 8:45 am] BILLING CODE 4910–60–P
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Part III
Department of Health and Human Services Administration for Children and Families
Request for Applications for the Office of Community Services’ Fiscal Year 2002 Community Economic Development Program-Special Initiatives; Notice
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DEPARTMENT OF HEALTH AND consideration. See Part IV of this C. SF–424B—Assurances—Non- HUMAN SERVICES announcement for more information on Construction Programs (Attachment D) submitting applications. Part VI: Contents of Application and Receipt Process Administration for Children and FOR FURTHER INFORMATION CONTACT: Mr. Families A. Contents of Application Ros Relaford, Technical Assistance B. Application Format [Program Announcement No. OCS–2002– Manager, OCS Operations Center at 1– C. Acknowledgment of Receipt 16] 800–281–9519 for referral to the Part VII: Post Award Information and appropriate contact person in OCS for Reporting Requirements Request for Applications for the Office programmatic questions or send an A. Notification of Grant Award or of Community Services’ Fiscal Year e-mail to: [email protected] or contact Cooperative Agreement 2002 Community Economic Calvin Brockington at (202) 401–5273. B. Reporting Requirements Development Program-Special For a copy of this announcement, C. Audit Requirements Initiatives contact: OCS Operations Center, 1815 D. Prohibitions and Requirements with Regard to Lobbying North Fort Myer Drive, Suite 300, AGENCY: Office of Community Services, E. Applicable Federal Regulations Arlington, Virginia 22209, 1(800) 281– Administration for Children and 9519. Paperwork Reduction Act of 1995 Families, Department of Health and In addition, the announcement is (Public Law 104–13) Human Services (HHS). accessible on the OCS web site for ACTION: Announcement of availability of Public reporting burden for this reading or downloading at: http:// collection of information is estimated to funds and request for competitive www.acf.dhhs.gov/programs/ocs/ applications under the Office of average 10 hours per response, kits1.htm. including the time for reviewing Community Services’ Community The Catalog of Federal Domestic Services Block Grant—Discretionary instructions, gathering and maintaining Assistance number for this program is the data needed and reviewing the Awards—Special Initiatives for the 93.570. The title is Community Services Community Economic Development collected information. Block Grant—Discretionary Awards— The project description is approved Program (CEDP). Special Initiatives. under OMB control number 0970–0139 SUMMARY: The Administration for SUPPLEMENTARY INFORMATION: This which expires 12/31/2003. Children and Families (ACF), Office of Program Announcement consists of An agency may not conduct or Community Services (OCS), announces seven parts plus attachments: sponsor, and a person is not required to that competing applications will be Part I: Background Information respond to an information request from accepted for the award of cooperative A. Legislative Authority an agency unless a currently valid OMB agreements pursuant to the Secretary’s B. Departmental Goals control number is displayed. C. Form of Award Community Economic Development Part I. Background Information authority under section 680 (a)(1) and D. Definition of Terms E. Eligible Applicants A. Legislative Authority (2) of the Community Services Block Part II: Program Objectives and Requirements Grant Act of 1981, as amended, (Pub. L. A. Duties and Responsibilities of Applicant The Community Services Block Grant 105–285). This Program Announcement and Grantor Agency (CSBG) Act of 1981, as amended, contains forms and instructions for B. Program Priority Areas (Section 680(a) (1), (2), and (4) of the submitting an application. The C. Project Requirements Community Opportunities, awarding of cooperative agreements D. Project and Budget Periods Accountability, and Training and under this Program Announcement are E. Mobilization of Resources F. Program Beneficiaries Educational Services Act of 1998), subject to the availability of funds for G. Number of Projects in Application authorizes the Secretary to make grants support of these activities. H. Multiple Submittal or provide cooperative agreements to The Office of Community Services I. Sub-awarding or Delegating Projects provide technical and financial (OCS) proposes to provide funds in J. Funding Considerations assistance for economic development Fiscal Year 2002 to provide K. Prohibited Activities activities designed to address the administration and management L. Community Empowerment and economic needs of low-income Collaboration expertise (Priority Area 1) through a individuals and families by creating Community Development Corporation Part III: The Project Description, Program Proposal Elements and Review Criteria employment and business ownership (CDC) with nationwide experience to A. Purpose opportunities. share its experience in dealing with day- B. Project Summary/Abstract to-day project related issues and C. Objectives and Need for Assistance B. Departmental Goals challenges in promoting community D. Results or Benefits Expected This announcement is particularly economic development. The E. Approach relevant to the departmental goal of organization must have documented F. Organizational Profiles strengthening the American family and experience on a nationwide basis. G. Budget and Budget Justification promoting self-sufficiency. The OCS also proposes to provide funds to H. Evaluation Criteria Part IV: Application Procedures Community Economic Development a private, non-profit organization with A. Application Development/Availability Program has objectives of increasing the nationwide experience for the purpose of Forms access of low-income people to of providing training and technical B. Application Submission employment and business development assistance (Priority Area 2) to strengthen C. Intergovernmental Review opportunities, and improving the the network of CDCs. D. Initial OCS Screening integration, coordination, and DATES: The closing time and date for E. Consideration of Applications continuity of the various HHS (and submission of applications for Fiscal Part V: Instructions for Completing Forms other Federal Departments) funded SF–424 Year 2002 is at 4:30 PM (Eastern Time A. SF–424—Application for Federal services potentially available to families Zone) September 9, 2002. Applications Assistance (Attachment B) living in poverty. Faith-based received after this date will be classified B. SF–424A—Budget Information—Non- organizations are eligible to apply for as late and will not be accepted for Construction Programs (Attachment C) grants and cooperative agreements
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under this program if they are private, is divided for budgetary and funding applicant that pledges financial or other non-profit organizations. purposes. support for the grant activities only Building deconstruction: The subject to receiving an award of OCS C. Form of Award systematic disassembly of residential grant funds. The Office of Community Services and commercial buildings. Poverty Income Guidelines: The plans to support all Priority Areas of the Cash contributions: The recipient’s official poverty line defined by the Community Services Block Grant— cash outlay, including the outlay of Office of Management and Budget, as Discretionary Awards—Special money contributed to the recipient by revised and published annually by the Initiatives through Cooperative the third parties. U.S. Department of Health and Human Agreements. A Cooperative Agreement Community Development Corporation Services that establish the level of is an award instrument of financial (CDC): A private, non-profit corporation, poverty defined as low-income for assistance when substantial governed by a board of directors individuals and their families. involvement is anticipated between the consisting of residents of the Program income: Gross income awarding federal office and the recipient community and business and civic earned by the grant recipient that is during the performance of the leaders, that has as a principal purpose directly generated by an activity contemplated project. planning, developing, or managing low- supported with grant funds or earned as The Office of Community Services income housing or community a result of the award. (OCS) and the successful applicant will development projects. Project period: The total time for function as partners sharing Community Economic Development which a project is approved for OCS responsibility for the design, (CED): A process by which a community support, including any approved coordination, and implementation of the uses resources to attract capital and extensions. project. OCS Staff will be the increase physical, commercial, and Self-employment: The state of an Administration of Children and business development and job individual or individuals who engage in Families’ (ACF) representatives opportunities for its residents. self-directed economic activities. primarily responsible for efforts under Cooperative Agreement: An award Self-sufficiency: The economic state this cooperative agreement. In addition, instrument of financial assistance when for an individual or family where public ACF regional office staff may work substantial involvement is anticipated assistance is not required to maintain a closely with OCS and the applicant in between the awarding office and the comfortable living standard. planning and implementing the recipient during performance of the Sub-award: An award of financial proposed work plan of the project. The contemplated project. assistance in the form of money, or purpose of the cooperative agreement is Distressed community: A geographic property in lieu of money, made under to ensure cooperation and coordination urban neighborhood or rural community an award by a recipient to an eligible between OCS and the organization of high unemployment and pervasive sub-recipient or by a sub-recipient to a receiving funds. poverty. lower tier sub-recipient. The term Eligible applicant: A private, non- includes financial assistance when The Office of Community Services profit organization. (Also, see ‘‘Eligible provided by any legal agreement, even will outline a plan of interaction with Applicants’’ under Part B—Application if the agreement is called a contract, but the funded organization for Pre-Requisites and also Program Priority does not include procurement of goods implementation under the cooperative Areas under Part C.) and services nor does it include any agreement. The respective Empowerment Zones and Enterprise form of assistance which is excluded responsibilities of the Office of Communities (EZ/EC): Those from the definition of ‘‘award’’ in 45 Community Services and the successful communities designated as such by the CFR 74.2. applicant will be identified and Secretary of Agriculture or Secretary of incorporated into the Cooperative (Note: Sub-awards do not include Housing and Urban Development. equity investments or loan transactions Agreement during pre-award Faith-Based Non-Profit Organization: since they are promulgated under third negotiations. The OCS responsibilities A non-profit organization that has a party agreements.) will not change the project requirements religious character. found in this Announcement. Intervention: Any planned activity Technical assistance: A problem- The plan under the cooperative within a project that is intended to solving event generally utilizing the agreement will describe the general and produce changes in the target services of a specialist. Such services specific responsibilities of the funded population and/or the environment and may be provided on-site, by telephone, organization and the grantor. A that can be formally evaluated. For or by other communications. These schedule of tasks will be developed and example, assistance in the preparation services address specific problems and agreed upon in addition to any special of a business plan and loan package are are intended to assist with the conditions relating to implementation of planned interventions. immediate resolution of a given problem the project. Job creation: New jobs, i.e. jobs not in or set of problems. D. Definition of Terms existence prior to the start of the project, Temporary Assistance to Needy that result from new business startups, Families (TANF): Title I of the Personal For purposes of this Program business expansion, development of Responsibility and Work Opportunity Announcement, the following new services industries, and/or other Reconciliation Act of 1996 (Pub. L. 104– definitions apply: newly-undertaken physical or 193) created the TANF program which Beneficiaries: Low-income people (as commercial activities. replaced the entitlement program that defined in the most recent annual Job placement: Placing a person in an guaranteed public assistance to revision of the Poverty Income existing vacant job of a business, individuals in economic distress. The Guidelines published by DHHS) and service, or commercial activity not TANF program requires work in low-income communities receive direct related to new development or exchange for time-limited assistance. benefits. expansion activity. The law specifically repeals the Aid to Budget period: The interval of time Letter of commitment: A signed letter Families with Dependent Children into which a grant period of assistance or agreement from a third party to the (AFDC) program, Emergency
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Assistance(EA) and Job Opportunities Community Economic Development and other initiatives to strengthen their and Basic Skills Training (JOBS) Program grantees. knowledge and resource base for programs, and replaces them with a providing effective assistance to OCS A. Duties and Responsibilities of block grant entitlement to States under and CEDP grantees. Applicant and Grantor Agency Title IV–A of the Social Security Act. 7. Host the annual orientation and Third party: Any individual, The duties and responsibilities of the training meeting for newly funded CEDP organization, or business entity that is applicant and ACF/OCS in fulfilling the grantees. not the direct recipient of grant funds. Cooperative Agreement during each Third party in-kind contributions: The phase will include the following: B. Program Priority Areas value of non-cash contributions The Community Services Block The Applicant—Role and provided by non-federal third parties Grant—Discretionary Awards—Special Responsibilities which may be in the form of real Initiatives has two priority areas. property, equipment, supplies and other The successful applicant shall be expendable property, and the value of responsible for the following: Priority Area 1—Administration and goods and services directly benefitting 1. In collaboration with OCS, design, Management (AM) and specifically identifiable to the coordinate, and implement the project Is intended to provide administrative project or program. according to requirements and management expertise to current accompanying each priority area. Office of Community Services’ CDC E. Eligible Applicants 2. Attend a 2–3 day meeting in grantees that are experiencing problems An eligible applicant must be a Washington, D.C. to discuss and finalize in the implementation of urban and private, non-profit organization. The the major goals and objectives of the rural community economic organization must have significant and overall project, the fiscal year work development projects. relevant experience working with plans, and exchange and share community development corporations, information on strategies for achieving Priority Area 2—Training and Technical foundations, financial institutions and the goals and objectives of the project. Assistance (UT) other community-based organizations. 3. Establish subordinate objectives to Makes funds available to provide The applicant must provide proof of its guide the focus of their research based training and technical assistance to non-profit status. The non-profit agency upon the needs assessed in the major groups of community development can accomplish this by providing a copy objectives. corporations in developing or of either the applicant’s listing in the 4. Participate in the annual implementing projects funded under Internal Revenue Service’s (IRS) most orientation meeting for newly funded this section; its aim is to generally recent list of tax-exempt organizations, grantees of the Community Economic enhance the viability and competence of a copy of the currently valid IRS tax Development Program (CEDP). community development corporations. exemption certificate, or a copy of the This priority area also seeks to attract ACF/OCS—Role and Responsibilities articles of incorporation bearing the seal additional private capital into distressed of the State in which the corporation or The grantor agency, ACF/OCS, shall communities, including empowerment association is domiciled. Faith-based be responsible for the following: zones and enterprise communities, and organizations meeting the requirements 1. Throughout the term of the to build and/or expand the ability of of section 680(a)(2) or (4) are eligible to Agreement, provide the time and local institutions to better serve the apply. expertise of OCS to help the applicant economic needs of local residents. All eligible applicants must have implement the goals and objectives of The estimated level of funding private, non-profit status at the time of the project. Specifically, OCS will available under each area is: submission of their application. In organize periodic consultations and 1. (AM)—$ 500,000.00 addition to non-profit status, each teleconferences to review planned 2. (UT)—$ 270,000.00 priority area of this program activities, to share information, and to announcement has additional eligibility promote nationwide coordination. C. Project Requirements requirements. These requirements are 2. Provide to the applicant a complete The project requirements for each identified in the narrative descriptions listing of current CEDP grantees. priority areas are as follows: 3. Organize a 2–3 day meeting in of each priority area found in Part C. Priority Area 1—Administration and Washington, D.C. to discuss and finalize Applicant must submit proof of non- Management profit status in its application at the the major goals and objectives of the time of submission. Applications that do overall project, the fiscal year work OCS believes that one of the most not include proof of this status with plans, and to exchange program effective means of ensuring the their application will be disqualified. information, and to share information successful operation of a project under on strategies for achieving the goals and the CED Program area is through the Part II—Program Objectives and objectives of the project. sharing among CDCs of their Requirements 4. Throughout the term of this experiences in dealing with the day-to- The Office of Community Services Agreement, review and comment on day issues and challenges presented in (OCS) invites eligible applicants to required progress reports and other promoting community economic submit competing grant applications for relevant materials prior to their development. Accordingly, OCS the award of two Cooperative finalization. strongly encourages more experienced Agreements for the Community Services 5. Throughout the term of this private, non-profit CDCs to share their Block Grant—Discretionary Awards— Agreement, make available to the administrative and management Special Initiatives. The Community applicant program information and/or expertise with less experienced CDCs or Services Block Grant—Discretionary products from OCS activities that are with those who have encountered Awards—Special Initiatives provide available and relevant to the project. difficulties in implementing their work funds to cover the following areas: 6. Throughout the term of this programs. In order to facilitate this, OCS Administrative Management and Agreement, promote the involvement of will provide funds to one community Training and Technical Assistance for the applicant in meetings, conferences, development corporation to assist with
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its efforts to enhance the management project via a handbook, a progress normally published in the Federal and operational capacities of the less paper, evaluation reports, general Register in February or early March of experienced CDCs or those having manual, or seminars/workshops. each year. Grantees will be required to difficulties. Approximately one cooperative apply the most recent guidelines An applicant in this priority area agreement is anticipated to be made at throughout the project period. These must document its experience and $500,000 under this Priority Area. The revised guidelines may be obtained at capability to operate on a national basis award will provide a project and budget public libraries, Congressional offices, in several of the following areas: period not to exceed 17 months. or by writing the Superintendent of • Business/development; Documents, U.S. Government Printing Priority Area 2—Training and Technical • Micro-entrepreneurship Office (GPO), Washington, DC 20402. Assistance development; Also, grantees may contact the OCS • Commercial development; Funds will be awarded for the Operations Center to obtain a copy of • Organizational and staff purpose of providing training and the guidelines. No other government development; technical assistance to strengthen the agency or privately defined poverty • Board training; network of CDCs. • guidelines are applicable for the Business management, including Eligible applicants are private, non- determination of low-income eligibility strategic planning and fiscal profit organizations. for these OCS programs. management; Applicant must have the ability to • Note, however, that low-income Finance, including business collect and analyze data nationally that individuals granted lawful temporary packaging and financial/accounting may benefit CDCs and be able to resident status under Sections 245A or services; disseminate information to all OCS- • 210A of the Immigration and Regulatory compliance including funded grantees; publish a national Nationality Act, as amended by the zoning and permit compliance; directory of funding sources for CDCs • Immigration Reform and Control Act of Incubator development; (public, corporate, foundation, 1986 (Public law 99–603), may not be • Tax credits and bond financing; and religious); publish research papers on eligible for direct or indirect assistance Marketing. specific aspects of job creation by CDCs; based on financial need under this Eligible applicants are private, non- and design and provide information on program for a period of five years from profit, organizations that are community successful projects and economic niches the date such status was granted. development corporations. Applicants that CDCs can target. The applicant also must be able to operate on a national will be responsible for the development G. Number of Projects in Application basis and have significant and relevant of instructional programs, national All Priority Area applications shall experience in working with community conferences, seminars, and other contain only one proposed project. development corporations. activities to assist community Applicants that are not in compliance The applicant must document staff development corporations. An applicant with this requirement will be competence or the accessibility of third in this priority area must document its disqualified. party resources with proven experience and capability in competence. If the work program in the implementing projects national in scope H. Multiple Submittals proposal requires the significant use of and have significant and relevant There is no limit to the number of third party (consultant/contractor) experiences in working with community applications that an applicant can resources, those resources should be development corporations. submit under this announcement as identified and resumes of the Approximately one cooperative long as each application contains a individuals or key organizational staff agreement is anticipated to be made for different project. provided. $270,000 under this Priority Area with I. Sub-awarding or Delegating Projects Resumes of the applicant’s staff, who a grant period not to exceed 17 months. are to be directly involved in OCS does not fund projects where the programmatic and administrative D. Project and Budget Periods role of the applicant is primarily to expertise sharing, should also be Cooperative Agreements funded serve as a conduit for funds through the included. The applicant must document under this program announcement for use of sub awards to other successful experience in the all Priority Areas shall have both project organizations. In cases where the mobilization of resources (both cash and and budget periods of 17 months. applicant proposes to make one or more in-kind) from private and public sub awards, it must retain a substantive E. Mobilization of Resources sources. The applicant also must clearly role in the implementation and state how the information learned from OCS encourages and strongly support operation of the project for which this project may be disseminated to leveraging of resources through public/ funding is requested. other interested grantees. private partnerships that can mobilize OCS will share with the grantee cash and/or third-party in-kind J. Funding Considerations information on other grantees seeking to contributions. In cases where an applicant ranks benefit from such assistance. Such high and is competitive, the following F. Program Beneficiaries formal requests could also be initiated may apply: by a grantee with the concurrence of Projects proposed for funding under (a) Previous performance of OCS. These contacts may occur on-site, this announcement must result in direct applicants will be considered an by telephone, or by other methods of benefits to low-income people as important determining factor in the communication. Costs incurred in defined in the most recent annual grant decisions. connection with participation in such revision of the Poverty Income (b) Any applicant that has two or activities will be borne by the Guidelines published by DHHS. more active OCS grants may only be recipient(s) of the OCS grant under this Attachment A to this announcement funded under exceptional sub-priority area. is an excerpt from the Poverty Income circumstances. A grantee under this priority area will Guidelines currently in effect. Annual (c) Pre-award site visits may be be expected to disseminate results of the revisions of these guidelines are performed for the purpose of
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undertaking assessments of many of developing the project description, the contact persons and telephone numbers, these applications prior to OCS making applicant may volunteer or be requested child care licenses and other final determinations on grant awards. to provide information on the total documentation of professional range of projects currently being accreditation, information on K. Prohibited Activities conducted and supported (or to be compliance with Federal/State/local OCS will not consider applications initiated), some of which may be government standards, documentation that propose the establishment of Small outside the scope of the program of experience in the program area, and Business Investment Corporations or announcement. other pertinent information. Any non- Minority Enterprise Small Business profit organization submitting an D. Results or Benefits Expected Investment Corporations. application must submit proof of its Projects that would result in the Identify the results anticipated and non-profit status in its application at the relocation of a business from one the benefits to be derived. For example, time of submission. The non-profit geographic area to another with the describe the population to be served by agency can accomplish this by possible displacement of employees are the Community Services Block Grant— providing a copy of either the discouraged. Discretionary Awards—Special applicant’s listing in the Internal L. Community Empowerment and Initiatives. Explain the ways in which Revenue Service’s (IRS) most recent list Collaboration the project will be used to reach your of tax-exempt organizations, or the client base and how it will benefit low- currently valid IRS tax exemption Eligible organizations including faith- income participants, including whether certificate, or, the articles of based organizations are urged to submit it may aid some participants in moving incorporation bearing the seal of the applications. towards self-sufficiency. State in which the corporation or Part III. The Project Description, E. Approach association is domiciled which certifies Program Proposal Elements and Review that the organization has met the state’s Criteria Outline a plan of action which criteria as a nonprofit organization. describes the scope and detail of how A. Purpose the proposed work will be G. Budget and Budget Justification The project description provides the accomplished. Account for all functions Provide a line item detail and detailed major means by which an application is or activities identified in the calculations for each budget object class evaluated and ranked to compete with application. Cite factors which might identified on the Budget Information other applications for available accelerate or decelerate the work and form. Detailed calculations must assistance. The project description state your reason for taking the include estimation methods, quantities, should be concise and complete and proposed approach rather than others. unit costs, and other similar quantitative should address the activity for which Describe any unusual features of the detail sufficient for the calculation to be Federal funds are being requested. project such as design or technological duplicated. The detailed budget must Supporting documents should be innovations, reductions in cost or time, also include a breakout by the funding included where they can present or extraordinary social and community sources identified in Block 15 of the SF– information clearly and succinctly. In involvement. 424. preparing your project description, all Provide quantitative monthly or Provide a narrative budget information requested through each quarterly projections of the justification that describes how specific evaluation criteria should be accomplishments to be achieved for categorical costs are derived. Discuss provided. Awarding offices use this and each function or activity in such terms the necessity, reasonableness, and other information in making their as the number of people served and the allocability of the proposed costs. funding recommendations. It is number of activities accomplished. The following guidelines are for important, therefore, that this When accomplishments cannot be preparing the budget and budget information be included in the quantified by activity or function, list justification. Both Federal and non- application. them in chronological order to show the Federal resources shall be detailed and schedule of accomplishments and their justified in the budget and narrative B. Project Summary/Abstract target dates. justification. For purposes of preparing Provide a summary of the project Identify the kinds of data to be the budget and budget justification, description (one page or less) with collected, maintained, and/or ‘‘Federal resources’’ refers only to the reference to the funding request. disseminated. Note that clearance from ACF grant for which you are applying. the U.S. Office of Management and C. Objectives and Need for Assistance Non-Federal resources are all other Budget (OMB) might be needed prior to Federal and non-Federal resources. It is Clearly identify the physical, a ‘‘collection of information’’ that is suggested that budget amounts and economic, social, financial, ‘‘conducted or sponsored’’ by ACF. List computations be presented in a instructional, and/or other problem(s) organizations, cooperating entities, columnar format: first column, object requiring a solution. The need for consultants, or other key individuals class categories; second column, Federal assistance must be demonstrated and who will work on the project along with budget; next column(s), non-Federal the principal and subordinate objectives a short description of the nature of their budget(s), and last column, total budget. of the project must be clearly stated. effort or contribution. The budget justification should be a Supporting documentation, such as narrative. letters of support and testimonials from F. Organizational Profiles concerned interests other than the Provide information on the applicant Personnel applicant, may be included. Any organization(s) and cooperating partners Description: Costs of employee relevant data based on planning studies such as organizational charts, financial salaries and wages. should be included or referred to in the statements, audit reports or statements Justification: Identify the project endnotes/footnotes. Incorporate from CPAs/Licensed Public director or principal investigator, if demographic data and participant/ Accountants, Employer Identification known. For each staff person, provide beneficiary information, as needed. In Numbers, names of bond carriers, the title, time commitment to the project
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(in months), time commitment to the Supplies the project as identified in Block 15 of project (as a percentage or full-time the SF–424. Description: Costs of all tangible equivalent), annual salary, grant salary, personal property other than that Justification: The firm commitment of wage rates, etc. Do not include the costs included under the Equipment category. these resources must be documented of consultants or personnel costs of and submitted with the application in delegate agencies or of specific Justification: Specify general categories of supplies and their costs. order to be given credit in the review project(s) or businesses to be financed process. A detailed budget must be by the applicant. Show computations and provide other information which supports the amount prepared for each funding source. Fringe Benefits requested. H. Evaluation Criteria Description: Costs of employee fringe Contractual Proposal Elements and Review Criteria benefits, unless treated as part of an for Applications approved indirect cost rate. Description: Costs of all contracts for Justification: Provide a breakdown of services and goods except for those Each application which passes the the amounts and percentages that which belong under other categories initial screening described in Part IV, comprise fringe benefit costs such as such as equipment, supplies, Section D of this Program health insurance, FICA, retirement construction, etc. Third-party evaluation Announcement will be assessed and insurance, taxes, etc. contracts (if applicable) and contracts scored by three independent reviewers. with secondary recipient organizations, Travel including delegate agencies and specific Each reviewer will give a numerical Description: Costs of project-related project(s) or businesses to be financed score for each application. These travel by employees of the applicant by the applicant, should be included numerical scores will be supported by organization (does not include costs of under this category. explanatory statements on a formal rating form describing major strengths consultant travel). Travel costs for key Justification: All procurement and weaknesses under each applicable staff to attend ACF-sponsored transactions shall be conducted in a criterion published in the workshops should be detailed in the manner to provide, to the maximum Announcement. Scoring will be based budget. extent practical, open and free on a total of 100 points, and for each Justification: For each trip, show the competition. Recipients and sub- application will be the average of the total number of traveler(s), travel recipients, other than States that are scores of the three reviewers. destination, duration of trip, per diem, required to use Part 92 procedures, must mileage allowances, if privately owned justify any anticipated procurement The competitive review of proposals vehicles will be used, and other action that is expected to be awarded will be based on the degree to which transportation costs and subsistence without competition and exceed the applicants: allowances. simplified acquisition threshold fixed at (1) Adhere to the requirements in Part Equipment 41 U.S.C. 403(11) (currently set at II and (2) incorporate each of the Elements and Sub-Elements below into Description: ‘‘Equipment’’ means an $100,000.) article of non-expendable, tangible Recipients might be required to make their proposals, so as to describe personal property having a useful life of available to ACF pre-award review and convincingly a project that will meet the more than one year and an acquisition procurement documents, such as requirements set forth above. cost which equals or exceeds the lesser request for proposals or invitations for In order to simplify the application of (a) the capitalization level established bids, independent cost estimates, etc. preparation and review process, OCS by the organization for the financial seeks to keep grant proposals cogent and Note: Whenever the applicant intends to statement purposes, or (b) $5,000. brief. Applications with project delegate part of the project to another agency, narratives (excluding Project (Note: Acquisition cost means the net the applicant must provide a detailed budget invoice unit price of an item of and budget narrative for each delegate Summaries, Budget Justifications and equipment, including the cost of any agency, by agency title, along with the Appendices) exceeding 35 letter-sized modifications, attachments, accessories, required supporting information referred to pages of 12 c.p.i. type or equivalent on or auxiliary apparatus necessary to in these instructions. a single side will not be reviewed. make it usable for the purpose for which Applicants should prepare and it is acquired. Ancillary charges, such as Other assemble their project descriptions taxes, duty, protective in-transit Description: Enter the total of all other using the following outline of required insurance, freight, and installation shall costs. Such costs, where applicable and project elements. They should, be included in, or excluded from, appropriate, may include but are not furthermore, build their project concept, acquisition cost in accordance with the limited to insurance, food, medical and plans, and application description upon organization’s regular written dental costs (non-contractual), the guidelines set forth for each of the accounting practices.) professional services costs, space and project elements. Justification: For each type of equipment rentals, printing and Project descriptions are evaluated on equipment requested, provide a publication, computer use, training the basis of substance, not length. Pages description of the equipment, the cost costs such as tuition and stipends, staff should be numbered consecutively and per unit, the number of units, the total development costs, and administrative a table of contents should be included cost, and a plan for use on the project, costs. for easy reference. Applicants are as well as use or disposal of the Justification: Provide computations, a reminded that the overall Project equipment after the project ends. An narrative description and a justification Narrative must not exceed 35 pages. applicant organization that uses its own for each cost under this category. When writing their Project Narratives, definition of equipment should provide applicants should respond to the review Non-Federal Resources a copy of its policy or section of its criteria using the same sequential order. policy which includes the equipment Description: Amounts of non-Federal Each Priority area shall be reviewed by definition. resources that will be used to support separate review criteria.
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Criteria for Review and Evaluation of the project director who is not only well e. Criterion V: Budget Applications Submitted Under This qualified, but who has professional Appropriateness and Reasonableness Program Announcement capabilities relevant to the successful (Maximum: 5 points) Applicant documents that the funds (Note: The review criteria both implementation of the project. If the key requested are commensurate with the reiterate and explain in greater detail staff person has not yet been identified, level of effort necessary to accomplish the information requirements contained the application contains a the goals and objectives of the project. in Part II of this Announcement.) comprehensive position description that indicates that the responsibilities to be The application includes a detailed Criteria for Review and Evaluation of assigned to the project director are budget breakdown for each of the Applications Submitted Under Priority relevant to the successful appropriate budget categories in the SF– Area 1 implementation of the project. (0–5 424A. (0–3 points) a. Criterion I: Organizational points) The estimated cost to the government Experience in Program Area and Staff The applicant has adequate facilities of the project also is reasonable in Responsibilities (Maximum: 30 points) and resources (i.e. space and relation to the anticipated results. (0–2 (1) Organizational experience in equipment) to successfully carry out the points) program area (sub-rating: 0–20 points) work plan. (0–3 points) Criteria for Review and Evaluation of Applicant has documented experience The assigned responsibilities of the Applications Submitted Under Priority in working with CDCs on a national staff are appropriate to the tasks Area 2 identified for the project and sufficient basis. a. Criterion I: Need for Assistance Applicant has documented the time of senior staff will be budgeted to (Maximum: 10 points) capability to provide leadership in assure timely implementation and cost The application documents that the solving long-term and immediate effective management of the project. (0– project addresses a vital, nationwide problems locally and/or nationally in 2 points) need related to the purposes of CDCs such areas as business development, b. Criterion II: Work Program and provides data and information in commercial development, (Maximum: 20 points) support of its contention. organizational and staff development, The applicant demonstrates in some b. Criterion II: Organizational board training, and micro- specificity a thorough understanding of Experience in Program Area and Staff entrepreneurship development. (0–8 the problems a grantee may encounter Responsibilities (Maximum: 30 points) points) in implementing a successful project. (1) Organizational experience Applicant documents a capability (0–10 points) Applicant has documented (including access to a network of skilled The application includes a strategy for experience in working with CDCs. individuals and/or organizations) in two assessing the specific nature of the Applicant has documented the or more of the following areas: problems, outlining a course of action capability to provide leadership in Business management, including and identifying the resources required solving long-term and immediate strategic planning and fiscal to resolve the problems. (0–10 points) problems locally and/or nationally in management; finance, including c. Criterion III: Significant and such areas as business development, development of financial packages and Beneficial Impact (Maximum: 30 points) commercial development, provision of financial/accounting Project funds under this sub-priority organizational and staff development, services; and regulatory compliance, area are to be used for the purposes of board training, and micro- including assistance with zoning and transferring expertise directly, or by a entrepreneurship development. permit compliance. (0–4 points) contract with a third party, to other OCS Applicant documents a capability The applicant has the demonstrated funded CDC grantees. Applicant (including access to a network of skilled ability to mobilize dollars from sources describes how the success or failure of individuals and/or organizations) in two such as the private sector (corporations, collaboration with these grantees will be or more of the following areas: Business banks, foundations, etc.) and the public documented. (0–15 points) management, including strategic sector, including state and local Applicant demonstrates an ability to planning and fiscal management; governments. (0–2 points) finance, including development of Applicant also demonstrates that it disseminate results on the kinds of programmatic and administrative financial packages and provision of has a sound organizational structure and financial/accounting services; and proven organizational capability as well expertise transfer efforts in which it participated and successful strategies regulatory compliance, including as an ability to develop and maintain a assistance with zoning and permit stable program in terms of business, that it may have developed to share expertise with grantees during the grant compliance. (0–15 points) physical or community development (2) Staff skills period. (0–10 points) activities that have provided permanent The applicant’s proposed project jobs, services, business development Applicant states whether the results director and primary staff are well opportunities, and other benefits to of the project will be included in a qualified and their professional poverty community residents. (0–4 handbook, a progress paper, an experiences are relevant to the points) evaluation report, a general manual, or successful implementation of the Applicant indicates why it feels that seminars/workshops, and why the proposed project. (0–15 points) its successful experiences would be of particular methodology chosen would c. Criterion III: Work Plan (Maximum: assistance to existing CDC grantees that be most effective. (0–5 points) 25 points) are experiencing difficulties in d. Criterion IV: Public-Private The applicant has submitted a implementing their projects. (0–2 Partnerships (Maximum: 15 points) detailed and specific work plan that is points) Applicant demonstrates how it will both sound and feasible. Specifically, (2) Staff skills, resources and design a comprehensive strategy that the work plan: responsibilities (sub-rating 0–10 points) makes use of other available resources (1) Demonstrates that all activities are The application describes in brief to resolve typical and recurrent CDC comprehensive and nationwide in resume form the experience and skills of grantee problems. scope, adequately described, and
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appropriately related to the goals of the under the section entitled FOR FURTHER U.S. Department of Health and Human program. (0–5 points) INFORMATION CONTACT at the beginning of Services, Administration for Children (2) Demonstrates in some specificity a this announcement. In addition, this and Families, Office of Community thorough understanding of the kinds of Announcement is accessible on the Services Operations Center: 1815 North training and technical assistance that Internet through the OCS Website for Fort Myer Drive, Suite 300, Arlington, can be provided to the network of reading or downloading at: http:// VA 22209 between Monday and Friday community development corporations. www.acf.dhhs.gov/programs/ocs/ (excluding Federal holidays). This (0–5 points) kits1.htm under ‘‘Funding address must appear on the envelope/ (3) Delineates the tasks and sub-tasks Opportunities.’’ package containing the application with involved in the areas necessary to carry The applicant must be aware that in the note ‘‘Attention: Application for out the responsibilities, i.e. training, signing and submitting the application ‘‘Community Services Block Grant— technical assistance, research, outreach, for this award, it is certifying that it will Discretionary Awards—Special seminars, etc. (0–5 points) comply with the Federal requirements Initiatives’’. Applicants are cautioned (4) States the intermediate and end concerning the drug-free workplace, the that express/overnight mail services do products to be developed by task and Certification Regarding environmental not always deliver as agreed. sub-task. (0–5 points) tobacco smoke, and debarment ACF cannot accommodate (5) Provides realistic time frames and regulations set forth in Attachments E, transmission of applications by fax or a chronology of key activities for the J, and F. through other electronic media. goals and objectives. (0–5 points) PART III contains instructions for the Therefore, applications transmitted to d. Criterion IV: Significant and substance and development of the ACF electronically will not be accepted Beneficial Impact (Maximum: 25 points) project narrative. PART V contains regardless of date or time of submission Project funds will be used for the instructions for completing application and time of receipt. purpose of providing training and forms. PART VI, Section A, describes 3. Late Applications. Applications technical assistance on a national basis the contents and format of the which do not meet the criteria above are to the network of community application as a whole. considered late applications. ACF shall notify each late applicant that its development corporations. B. Application Submission The applicant describes how: application will not be considered in (1) The project will assure long-term 1. Number of Copies Required. One the current competition. program and management signed original application and two 4. Extension of Deadlines. ACF may improvements for community copies must be submitted at the time of extend application deadlines when development corporations. (0–10 points) initial submission. (OMB 0970–0139). circumstances such as acts of God (2) The project will impact on a Two additional optional copies would (floods, hurricanes, etc) occur, or when significant number of community be appreciated to facilitate the there are widespread disruptions of the development corporations. (0–10 points) processing of applications. mail service, or in other rare cases. A (3) The project will leverage or The first page of the SF–424 must determination to extend or waive mobilize significant other non-federal contain in the lower right-hand corner, deadline requirements rest with the resources for the direct benefit of the a designation indicating under which Chief Grants Management Officer. priority area funds are being requested project. (0–5 points) C. Intergovernmental Review e. Criterion V: Budget Reasonableness (for example AM for 1 and UT for 2. (See Part II for a description of each of This program is covered under (Maximum: 10 points) Executive Order 12372, (1) The resources requested are the priority areas.) 2. Closing Date. The closing date for ‘‘Intergovernmental Review of Federal reasonable and adequate to accomplish receiving applications is cited under the Programs,’’ and 45 CFR Part 100, the project. (0–5 points) heading DATES at the beginning of this ‘‘Intergovernmental Review of (2) Total costs are reasonable and announcement. Applications received Department of Health and Human consistent with anticipated results. (0– after the closing date will be classified Services Program and Activities.’’ Under 5 points) as late. the Order, States may design their own Part IV. Application Procedures Deadline: Mailed applications shall be processes for reviewing and considered as meeting an announced commenting on proposed Federal A. Application Development/ deadline if they are received on or assistance under covered programs. Availability of Forms before the deadline time and date at the All States and Territories except To be considered for a grant under OCS Operations Center: 1815 North Fort Alabama, Alaska, Arizona, Colorado, this program announcement, an Myer Drive, Suite 300, Arlington Connecticut, Hawaii, Idaho, Indiana, application must conform to the Virginia 22209; Attention: Application Kansas, Louisiana, Massachusetts, Program Requirements set out in Part II for Community Development Program— Minnesota, Montana, Nebraska, New and be prepared in accordance with the Special Initiatives. Jersey, New York, Ohio, Oklahoma, guidelines set out in Part III. It must be Applicants are responsible for mailing Oregon, Pennsylvania, South Dakota, submitted on the forms supplied in the applications well in advance, when Tennessee, Vermont, Virginia, attachments to this Announcement and using all mail services, to ensure that Washington, Wyoming, and Palau have in the manner prescribed below. the application is received on or before elected to participate in the Executive Attachments A through K contain all the deadline time and date. Order process and have established standard forms necessary to apply for Applications hand carried by Single Points of Contact (SPOCs). awards under this OCS program. These applicants, applicant couriers, other Applicants from these 27 jurisdictions attachments and Parts V and VI of this representatives of the applicant, or by do not need to take action regarding Announcement contain all the general overnight/express mail couriers shall be E.O. 12372. Applicants for projects to be instructions required for submitting considered as meeting an announced administered by Federally-recognized applications. deadline if they are received on or Indian Tribes are also exempt from the Additional copies may be obtained by before the deadline date, between the requirements of E.O. 12372. Otherwise, writing or telephoning the office listed hours of 8 a.m. to 4:30 p.m. EST at the applicants should contact their SPOCs
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as soon as possible to alert them of the according to instructions published in the timely and proper completion by prospective applications and receive Part V and Attachments A, B, and C of applicant of projects funded with OCS any necessary instructions. Applicants this Program Announcement. The SF– funds granted in the last five (5) years; must submit any required material to 424 and the SF–424B must be signed by comments of reviewers and government the SPOCs as soon as possible so that an official of the organization applying officials; staff evaluation and input; the program office can obtain and for the grant who has authority to amount and duration of the grant review SPOC comments as part of the obligate the organization legally. requested and the proposed project’s award process. It is imperative that the Applicant must also be aware that the consistency and harmony with OCS applicant submit all required materials, applicant’s legal name as required on goals and policy; geographic if any, to the SPOC and indicate the date the SF–424 (Item 5) must match that distribution of applications; previous of this submittal (or indicate ‘‘not listed as corresponding to the Employer program performance of applicants; applicable’’ if no submittal is required) Identification Number (Item 6). compliance with grant terms under on the standard form 424, item 16a. (2) A project narrative must also previous HHS grants, including the Under 45 CFR 100.8(a)(2), a SPOC has accompany the standard forms. OCS actual dedication to program of 60 days from the application deadline to requires that the narrative portion of the mobilized resources as set forth in comment on proposed new or application be no more than 35 letter- project applications; audit reports; competing continuation awards. size pages, numbered consecutively , investigative reports; and applicant’s SPOCs are encouraged to eliminate and typewritten on one side of the paper progress in resolving any final audit the submission of routine endorsements only with one-inch margins and type disallowance on previous OCS or other as official recommendations. face no smaller than 12 characters per Federal agency grants. Additionally, SPOCs are requested to inch (c.p.i.) or equivalent. Applications Applicants may omit from the clearly differentiate between mere with project narratives (excluding application the specific salary rates or advisory comments and those official Project Summaries and appendices) of amounts for individuals identified in State process recommendations which more than 35 letter-size pages of 12 the application budget. Rather, only may trigger the ‘‘accommodate or c.p.i. type or equivalent on a single side summary information is required. OCS explain’’ rule. will not be reviewed for funding. reserves the right to discuss applications When comments are submitted The budget narrative, charts, exhibits, with other Federal or non-Federal directly to ACF, they should be resumes, position descriptions, letters of funding sources to verify the applicant’s addressed to: Department of Health and support or commitment are not counted performance record and the documents Human Services, Administration for against this page limit and should be in submitted. the Appendix. It is strongly Children and Families, Office of Grants Part V. Instructions for Completing recommended that applicants adopt for Management, Division of Discretionary Forms SF–424 Grants, 370 L’Enfant Promenade, SW., their Program project narratives the 4th floor West, Washington, DC 20447. sequence and content Described in Part All application forms are now A list of the Single Points of Contact III. available on the ACF Website for for each State and Territory is included (3) Application must contain downloading: http://www.acf.dhhs.gov/ as Attachment G to this Announcement. documentation of the applicant’s tax programs/ofs/forms.htm. You may also find this list at the exempt status as required under Part I, The standard forms attached to this following web address: http://www/ Section E. announcement shall be used to apply whitehouse.gov/omb/grants/spoc.html. for funds under this program E. Consideration of Applications announcement. D. Initial OCS Screening Applications which pass the initial It is suggested that you reproduce Each application submitted under this OCS screening will be reviewed and single-sided copies of the SF–424 and program announcement will undergo a rated by an independent review panel SF–424A, and type your application on pre-review to determine that the on the basis of requirements set forth in the copies. Please prepare your application was received by the closing Parts II and III. These review criteria application in accordance with date and submitted in accordance with were designed to assess the quality of a instructions provided on the forms the instructions in this Announcement. proposed project and determine the (Attachments B, C and D) as modified All applications that meet the likelihood of its success. The review by the instructions set forth in PART III, published deadline requirements as criteria are closely related and are and the OCS specific instructions set provided in this Program considered as a whole in judging the forth below: Announcement will be screened for overall quality of an application. Points Provide line item detail and detailed completeness and conformity with the are awarded only to applications which calculations for each budget object class following requirements. Only complete are responsive to the program elements identified on the Budget Information applications that meet the requirements and review criteria within the context of form. Detailed calculations must listed below will be reviewed and this Program Announcement. include estimation methods, quantities, evaluated competitively. Other Reviewers’ scores will assist the unit costs, and other similar quantitative applications will be returned to the Director and OCS program staff in detail sufficient for the calculation to be applicants with a notation that they considering competing applications. duplicated. The detailed budget must were unacceptable and will not be Reviewers’ scores will weigh heavily in also include a breakout by the funding reviewed. funding decisions, but will not be the sources identified in Block 15 of the SF– The following requirements must be only factors considered. 424. met by all applicants except as noted: Applications generally will be Provide a narrative budget (1) The application must contain a considered in order of the average justification which describes how the signed Standard Form 424 Application scores assigned by reviewers. However, categorical costs are derived. Discuss for Federal Assistance’’ (SF–424), highly ranked applications are not the necessity, reasonableness, and Attachment B, a budget (SF–424A), guaranteed funding because other allocability of the proposed costs. Attachment C, and signed ‘‘Assurances’’ factors are taken into consideration. (Note: The Budget detail and (SF–424B), Attachment D, completed These include, but are not limited to: Narrative Budget Justification should
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follow the SF 424 and 424A, and are not Federal will include funds mobilized organization’s staff who will be working counted as part of the Project Narrative.) from all other sources—applicant, state, on the project. local, and other. Federal funds other Line 6b A. SF–424—Application for Federal than those requested from the Fringe Benefits—Enter the total costs Assistance (Attachment B) Community Services Block Grant— of fringe benefits unless treated as part Where the applicant is a previous Discretionary Awards—Special of an approved indirect cost rate which DHHS grantee, enter the Central Initiatives should be included in Non- is entered on Line 6j. Registry System Employee Identification Federal entries. Justification—Enter the total costs of Number (CRS/EIN) and the Payment Sections A and D of SF–424A must fringe benefits, unless treated as part of Identifying Number, if one has been contain entries for both Federal (OCS) an approved indirect cost rate. Provide assigned, in the Block entitled Federal and non-Federal mobilized funds. a breakdown of amounts and percentages that comprise fringe benefit Identifier located at the top right hand Section A—Budget Summary corner of the form (third line from the costs. Lines 1–4, top). Line 6c Column (a) Line 1—Enter CSBG Travel—Enter total cost of all travel Item 1. For the purposes of this Community Economic Development, by employees of the project. Do not announcement, all projects are Column (b) Line 1—Enter 93.570, enter costs for consultant’s travel. considered Applications; there are no Columns (c) and (d)—Not Applicable, Justification—Include the name(s) of Pre-Applications. Columns (e), (f) and (g)—Line 1— traveler(s), total number of trips, Item 7. If applicant Is an Indian Tribe Enter appropriate amounts needed to destinations, length of stay, mileage enter ‘‘K’’ in the box. If applicant is a support the project for the entire project rate, transportation costs and non-profit organization enter ‘‘N’’ in the period. subsistence allowances. Traveler must box. Line 5, be a person listed under the personnel Item 9. Name of Federal Agency— Enter the figures from Line 1 for all line or employee being paid under non- Enter DHHS–ACF/OCS. columns completed, (e), (f), and (g). Federal share. Item 10. The Catalog of Federal Domestic Assistance number for OCS Section B—Budget Categories (Note: Local transportation and programs covered under this This section should contain entries consultant travel costs are entered on announcement is 93.570. The title is for OCS funds only. For all projects, the Line 6h.) ‘‘Community Services Block Grant budget period of 17 months will be Line 6d Discretionary Awards—Special entered in Column (1). Equipment—Enter the total costs of Initiatives.’’ Allocability of costs is governed by all equipment to be acquired by the Item 11. In addition to a brief applicable cost principles set forth in project. Equipment means an article of descriptive title of the project, indicate the Code of Federal Regulations (CFR), non-expendable, tangible personal the priority area for which funds are Title 45, Parts 74 and 92. property having a useful life of more being requested. Use the following letter Budget estimates for administrative than one year and an acquisition cost designations: Use AM for Priority Area costs must be supported by adequate which equals or exceeds the lesser of (a) 1 and UT for Priority Area 2. detail for the grants officer to perform a the capitalization level established by Item 13. Proposed Project Dates— cost analysis and review. Adequately the organization for financial statement Show 17-month project period (See Part detailed calculations for each budget purposes, or (b) $5,000. II). In addition, the project start date object class are those which reflect (Note: If an applicant’s current rate must begin on or before September 30, estimation methods, quantities, unit agreement was based on another 2002; the ending date should be costs salaries, and other similar definition for equipment, such as calculated on the basis of a 17-month quantitative detail sufficient for the ‘‘tangible personal property $500 or project period. calculation to be duplicated. For any more,’’ the applicant shall use the Item 14. Congressional District of additional object class categories definition used by the cognizant agency Applicant/Project—Enter the number(s) included under the object class other, in determining the rate(s). However, of the Congressional District where the identify the additional object class(es) consistent with the applicant’s applicant’s principal office is located and provide supporting calculations. and the number(s) of the Congressional Supporting narratives and equipment policy, lower limits may be District(s) where the project will be justifications are required for each set.) located. budget category, with emphasis on Justification—Equipment to be Item 15. Estimated Funding—Item unique/special initiatives; large dollar purchased with Federal funds must be 15a. Show the total amount requested amounts; local, regional, or other travel; required to conduct the project, and the for the entire project period; Item 15b– new positions; major equipment applicant organization or its sub- e. For each line item, show both cash purchases; and training programs. grantees must not already have the and third party in-kind contributions for A detailed itemized budget with a equipment or a reasonable facsimile the total project period; Item 15f. Show separate budget justification for each available to the project. the estimated amount of program major item should be included as Line 6e income for the total project period; Item indicated below: Supplies—Enter the total costs of all 15g. Enter the sum of all the line items. Line 6a tangible personal property other than Personnel—Enter the total costs of that included on line 6d. B. SF–424A—Budget Information—Non- salaries and wages. Justification—Provide a general Construction Programs (Attachment C) Justification—Identify the project description of what is being purchased In completing these sections, the director and staff. Specify by title or such as type of supplies (office, Federal Funds budget entries will relate name the percentage of time allocated to classroom, medical, etc.). Include to the requested Community Services the project, the individual annual equipment costing less than $5,000 per Block Grant—Discretionary Awards— salaries and the cost to the project (both item. Special Initiatives funds only, and Non- Federal and non-Federal) of the Line 6f
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Contractual—Costs of all contracts for in the pertinent DHHS Guide for Lines 9, 10 and 11 services and goods except for those Establishing Indirect Cost Rates and Leave Blank which belong under other categories submit it to the appropriate DHHS Line 12 such as equipment, supplies, Regional Office. It should be noted that Carry the total of each column of Line construction, etc. Third-party evaluation when an indirect cost rate is requested, 8, (b) through (e). The amount in contracts (if applicable) and contracts those costs included in the indirect cost Column (e) should be equal to the with secondary recipient organizations, pool cannot also be budgeted or charged amount on Section A, Line 5, Column including delegate agencies and specific as direct costs to the grant. Indirect costs (f). project(s) or businesses to be financed consistent with approved indirect cost Justification—Describe third party in- by the applicant, should be included rate agreements are allowable. Also, if kind contributions, if included. under this category. the applicant is requesting a rate which Section D—Forecasted Cash Needs Justification: All procurement is less than what is allowed under the transactions shall be conducted in a program, the authorized representative Line 13 manner to provide, to the maximum of the applicant organization must Federal—Enter the amount of Federal extent practical, open and free submit a signed acknowledgment that (OCS) cash needed for this grant, by competition. Recipients and sub- the applicant is accepting a lower rate quarter, during the 12-month budget recipients, other than States that are than allowed. period. required to use Part 92 procedures, must Line 6k Line 14 justify any anticipated procurement Totals—Enter the total amount of Non-Federal—Enter the amount of action that is expected to be awarded Lines 6i and 6j. cash from all other sources needed by without competition and exceed the Line 7 quarter during the first year. simplified acquisition threshold fixed at Program Income—Enter the estimated Line 15 Totals—Enter the total of Lines 13 and 41 U.S.C. 403(11) currently set at amount of income, if any, expected to be 14. $100,000. generated from this project. Separately Recipients might be required to make show expected program income Section F—Other Budget Information available to ACF pre-award review and generated from OCS support and Line 21 income generated from other mobilized procurement documents, such as Direct Charges—Include narrative funds. Do not add or subtract this request for proposals or invitations for justification required under Section B amount from the budget total. Show the bids, independent cost estimates, etc. for each object class category for the nature and source of income in the Note: Whenever the applicant intends to total project period. delegate part of the project to another agency, program narrative statement. Line 22 the applicant must provide a detailed budget Justification—Describe the nature, Indirect Charges—Enter the type of and budget narrative for each delegate source and anticipated use of program DHHS or other Federal agency approved agency, by agency title, along with the income in the Program Narrative indirect cost rate (provisional, required supporting information referred to Statement. in these instructions. predetermined, final or fixed) that will Section C—Non-Federal Resources be in effect during the funding period, Line 6g the estimated amount of the base to Construction—Not applicable. This section is to record the amounts Line 6h of non-Federal resources that will be which the rate is applied and the total Other—Enter the total of all other used to support the project. Non-Federal indirect expense. Also, enter the date costs. Such costs, where applicable, may resources mean other than OCS funds the rate was approved, where include, but are not limited to, for which the applicant has received a applicable. Attach a copy of the insurance, food, medical and dental commitment. Provide a brief approved rate agreement. costs (non-contractual); fees and travel explanation, on a separate sheet, Line 23 Provide any other explanations and paid directly to individual consultants; showing the type of contribution, continuation sheets required or deemed local transportation (all travel which broken out by Object Class Category, necessary to justify or explain the does not require per diem is considered (see SF–424A, Section B.6) and whether budget information. local travel); space and equipment it is cash or third party in-kind. The rentals; printing and publication; firm commitment of these required C. SF–424B—Assurances Non- computer use training costs including funds must be documented and Construction Programs (Attachment D) tuition and stipends; training service submitted with the application in order All applicants must sign and return costs including wage payments to to be given credit in the criterion. the ‘‘Assurances’’ with the application. individuals and supportive service This documentation must be in the payments; and staff development costs. form of letters of commitment or letters Part VI. Contents of Application and Line 6j of intent from the organization(s)/ Receipt Process Indirect Charges—Enter the total individuals from which funds will be A. Contents of Application amount of indirect costs. This line received. should be used only when the applicant Line 8 Each Community Services Block currently has an indirect cost rate Column (a)—Enter the project title. Grant—Discretionary Awards—Special approved by DHHS or other Federal Column (b)—Enter the amount of cash Initiatives application must include all agencies. or donations to be made by the of the following, in the order listed If the applicant organization is in the applicant. below: process of initially developing or Column (c)—Enter the State 1. Table of Contents renegotiating a rate, it should, contribution. 2. An abstract of the Proposed immediately upon notification that an Column (d)—Enter the amount of cash Project—very brief, not to exceed 250 award will be made, develop a tentative and third party in-kind contributions to words, that would be suitable for use in indirect cost rate proposal based on its be made from all other sources. an announcement that the application most recently completed fiscal year in Column (e)—Enter the total of has been selected for a grant award and accordance with the principles set forth columns (b), (c), and (d). which identifies the type of project, the
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target population, and the major 7. A Project Narrative of no more than which specifies the amount of Federal elements of the work plan. 35 pages consisting of the Elements funds approved for use in the project, 3. A completed Standard Form 424 described in Part III of this the project and budget period for which that has been signed by an Official of announcement set forth in the order support is provided, the terms and the organization applying for the grant therein presented and preceded by a conditions of the award. who has authority to obligate the consecutively numbered table of B. Reporting Requirements organization legally. (Attachment B) contents. 4. Budget Information—Non- The total number of pages for the Grantees will be required to submit Construction Programs (SF–424A) narrative portion of the application semi-annual program progress and (Attachment C); package must not exceed 35 pages (See financial reports (SF 269) as well as a 5. A narrative budget justification for Part IV.D.2 for pages that do not count final progress and financial report. each object class category required against the 35-page limit). C. Audit Requirements under Section B, SF–424A. 8. Appendices—proof of nonprofit 6. Certification and Assurances tax-exempt status as outlined in Part II, Grantees are subject to the audit Required: Section C; Single Point of Contact requirements in 45 CFR part 74 (non- Applicants requesting financial comments, if applicable, and resumes profit organizations) or part 92 assistance for a non-construction and position descriptions. (governmental entities) which require projects must file the Standard Form Pages should be numbered audits under OMB Circular A–133. 424B, ‘‘Assurances: Non-Construction sequentially throughout, including D. Prohibitions and Requirements With Programs.’’ Applicants must sign and appendices, beginning with the Abstract Regard To Lobbying return the Standard Form 424B with as page 1. their applications (See Attachment D). Section 319 of Public Law 101–121, Applicants must provide a B. Application Format signed into law on October 23, 1989, certification regarding lobbying when Applications must be uniform in imposes prohibitions and requirements applying for an award in excess of composition since OCS may find it for disclosure and certification related $100,000. Applicants must sign and necessary to duplicate them for review to lobbying on recipients of Federal return the certification with their purposes. Therefore, applications must contracts, grants, cooperative application (See Attachment H). agreements, and loans. It provides be submitted on white 81⁄2 x 11 inch Applicants must disclose lobbying paper only. Applicants must not include limited exemptions for Indian tribes and activities on the Standard Form LLL colored, oversized or folded materials. tribal organizations. Current and when applying for an award in excess Applicants should not include prospective recipients (and their sub- of $100,000. Applicants who have used organizational brochures or other tier contractors and/or grantees) are non-federal funds for lobbying activities promotional materials, slides, films, prohibited from using appropriated in connection with receiving assistance clips, etc. Such material will be funds for lobbying Congress or any under this announcement shall discarded if included. Applications Federal agency in connection with the complete a disclosure form to report must be bound or enclosed in loose-leaf award of a contract, grant, cooperative lobbying. Applicants must sign and binder notebooks. Preferably, agreement or loan. In addition, for each return the disclosure form, if applicable, applications should be two-holed award action in excess of $100,000 (or with their applications (See Attachment punched at the top center and fastened $150,000 for loans) the law requires H). separately with a compressor slide recipients and their subtier contractors Applicants must make the appropriate paper fastener, or a binder clip. and/or sub-grantees (1) to certify that certification of their compliance with they have neither used nor will use any the Drug-Free Workplace Act of 1988. C. Acknowledgment of Receipt appropriated funds for payment to By signing and submitting the All applicants will receive an lobbyists, (2) to submit a declaration applications, applicants are providing acknowledgment with an assigned setting forth whether payments to the certification and need not mail back identification number. Applicants are lobbyists have been or will be made out the certification with the applications requested to supply a self-addressed of non-appropriated funds and, if so, the (See Attachment E). mailing label with their Application, or name, address, payment details, and Applicant must make the appropriate a FAX number or e-mail address which purpose of any agreements with such certification that they are not presently can be used for acknowledgment. The lobbyists whom recipients or their debarred, suspended or otherwise assigned identification number, along subtier contractors or sub-grantees will ineligible for an award. By signing and with any other identifying codes, must pay with the non-appropriated funds submitting the applications, applicants be referenced in all subsequent and (3) to file quarterly up-dates about are providing the certification and need communications concerning the the use of lobbyists if an event occurs not mail back the certification with the Application. If an acknowledgment is that materially affects the accuracy of applications. (See Attachment F) not received within three weeks after the information submitted by way of Applicants must make the appropriate the deadline date, please notify the OCS declaration and certification. certification of their compliance with all Operations Center at 1–800–281–9519. The law establishes civil penalties for Federal statues relating to noncompliance and is effective with nondiscrimination. By signing and Part VII. Post Award Information and respect to contracts, grants, cooperative submitting the applications, applicants Reporting Requirements agreements and loans entered into or are providing the certification and need A. Notification of Grant Award made on or after December 23, 1989. See not mail back a certification form. Attachment H, for certification and Applicants must make the appropriate Following approval of the disclosure forms to be submitted with certification of their compliance with applications selected for funding, notice the applications for this program. the requirements of the Pro-Children of project approval and authority to Act of 1994 as outlined in Certification draw down project funds will be made E. Applicable Federal Regulations Regarding Environmental Tobacco in writing. The official award document Attachment K indicates the Smoke. (See Attachment J) is the Financial Assistance Award regulations which apply to all
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applicants/grantees under the Attachment A 2001 POVERTY GUIDELINES FOR Community Services Block Grant— ALASKA—Continued Discretionary Awards—Special 2002 POVERTY GUIDELINES FOR THE Initiatives. 48 CONTIGUOUS STATES AND THE Poverty Size of family unit guideline Dated: July 29, 2002. DISTRICT OF COLUMBIA Clarence H. Carter, Poverty 8 ...... 38,030 Director, Office of Community Services. Size of family unit guideline BILLING CODE 4184–01–P For family units with more than 8 1 ...... $8,860 members, add $3,850 for each additional List of Attachments 2 ...... 11,940 member. A. 2002 Poverty Income Guidelines For 3 ...... 15,020 (The same increment applies to smaller updates see: http://aspe.os.dhhs.gov/ 4 ...... 18,100 family sizes also, as can be seen in the figures poverty/02poverty.htm 5 ...... 21,180 above). 6 ...... 24,260 B. Standard Form 424, Application for 7 ...... 27,340 Federal Assistance 2001 POVERTY GUIDELINES FOR 8 ...... 30,420 C. Standard Form 424A, Budget HAWAII Information—Non-Construction Programs For family units with more than 8 D. Standard Form 424B, Assurances—Non- Poverty members, add $3,080 for each additional Size of family unit guidelines Construction Programs member. E. Certification Regarding Drug-Free (The same increment applies to smaller Workplace Requirements 1 ...... $10,200 family sizes also, as can be seen in the figures 2 ...... 13,740 F. Certification Regarding Debarment, above). Suspension And Other Responsibility 3 ...... 17,280 4 ...... 20,820 Matters 2001 POVERTY GUIDELINES FOR G. Intergovernmental Review State Single 5 ...... 24,360 ALASKA Point Of Contact (SPOC) List 6 ...... 27,900 H. Certification Regarding Lobbying and 7 ...... 31,440 Poverty 8 ...... 34,180 Disclosure Of Lobbying Activities, Size of family unit guideline Standard Form LLL For family units with more than 8 I. Applicant’s Checklist 1 ...... $11,080 members, add $3,540 for each additional J. Certification Regarding Environmental 2 ...... 14,930 member. Tobacco Smoke 3 ...... 18,780 (The same increment applies to smaller K. DHHS Regulations Applying To All 4 ...... 22,630 family sizes also, as can be seen in the figures Applicants/Grantees Under The 5 ...... 26,480 above). Community Services Block Grant— 6 ...... 30,330 Discretionary Awards—Special Initiatives 7 ...... 34,180 BILLING CODE 4184–01–M
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BILLING CODE 4184–01–C
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Attachment B—Instructions for the SF–424 Federal identifier number. If for a new 12. List only the largest political entities Public reporting burden for this collection project, leave blank. affected (e.g., State, counties, cities). of information is estimated to average 45 5. Legal name of applicant, name of 13. Self-explanatory. minutes per response, including time for primary organization unit which will 14. List the applicant’s Congressional reviewing instructions, searching existing undertake the assistance activity, complete District and any District(s) affected by the data sources, gathering and maintaining the address of the applicant, and name and program or project. data needed, and completing and reviewing telephone number of the person to contact on 15. Amount requested or to be contributed the collection of information. Send matters related to this application. during the first funding/budget period by comments regarding the burden estimate or 6. Enter Employer Identification Number each contributor. Value of in-kind any other aspect of this collection of (EIN) as assigned by the Internal Revenue contributions should be included on information, including suggestions for Service. appropriate lines as applicable. If the action reducing this burden, to the Office of 7. Enter the appropriate letter in the space will result in a dollar change to an existing Management and Budget, Paperwork provided. award, indicate only the amount of the Reduction Project (0348–0043), Washington, 8. Check appropriate box and enter change. For decreases, enclose the amounts DC 20503. appropriate letter(s) in the space(s) provided: in parentheses. If both basic and Please do not return your completed form —‘‘New’’ means a new assistance award. supplemental amounts are included, show to the Office of Management and Budget. —‘‘Continuation’’ means an extension for breakdown on an attached sheet. For Send it to the address provided by the an additional funding/budget period for a multiple program funding, use totals and sponsoring agency. period for a project with a projected show breakdown using same categories as This is a standard form used by applicants completion date. item 15. as a required facesheet for preapplications —‘‘Revision’’ means any change in the 16. Applicants should contact the State and applications submitted for Federal Federal Government’s financial obligation or Single Point of Contact (SPOC) for Federal assistance. It will be used by Federal agencies contingent liability from an existing Executive Order 12372 to determine whether to obtain applicant certification that States obligation. the application is subject to the State which have established a review and 9. Name of Federal agency from which intergovernmental review process. comment procedure in response to Executive assistance is being requested with this 17. This question applies to the applicant Order 12372 and have selected the program application. organization, not the person who signs as the to be included in their process, have been 10. Use the Catalog of Federal Domestic authorized representative. Categories of debt given an opportunity to review the Assistance number and title of the program include delinquent audit disallowances, applicant’s submission. under which assistance is requested. loans and taxes. 11. Enter a brief descriptive title of the 18. To be signed by the authorized Item and Entry project. If more than one program is representative of the applicant. A copy of the 1. Self-explantatory. involved, you should append an explanation governing body’s authorization for you to 2. Date application submitted to Federal on a separate sheet. If appropriate (e.g., sign this application as official representative agency (or State if applicable) and applicant’s construction or real property projects), attach must be on file in the applicant’s office. control number (if applicable). a map showing project location. For (Certain Federal agencies may require that 3. State use only (if applicable). preapplications, use a separate sheet to this authorization be submitted as part of the 4. If this application is to continue or provide a summary description of this application.) revise an existing award, enter present project. BILLING CODE 4184–01–M
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BILLING CODE 4184–01–C
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Attachment C—Instructions for the SF–424A For new applications, leave Columns (c) breakdown by function or activity is not Public reporting burden for this collection and (d) blank. For each line entry in Columns necessary. of information is estimated to average 180 (a) and (b), enter in Columns (e), (f), and (g) Column (b)—Enter the contribution to be minutes per response, including time for the appropriate amounts of funds needed to made by the applicant. reviewing instructions, searching existing support the project for the first funding Column (c)—Enter the amount of the data sources, gathering and maintaining the period (usually a year). State’s cash and in-kind contribution if the data needed, and completing and reviewing For continuing grant program applications, applicant is not a State or State agency. the collection of information. Send submit these forms before the end of each Applicants which are a State or State comments regarding the burden estimate or funding period as required by the grantor agencies should leave this column blank. any other aspect of this collection of agency. Enter in Columns (c) and (d) the Column (d)—Enter the amount of cash and estimated amounts of funds which will information, including suggestions for in-kind contributions to be made from all remain unobligated at the end of the grant reducing this burden, to the Office of other sources. funding period only if the Federal grantor Management and Budget, Paperwork agency instructions provide for this. Column (e)—Enter totals of Columns (b), Reduction Project (0348–0044), Washington, Otherwise, leave these columns blank. Enter (c), and (d). DC 20503. Please do not return your in Columns (e) and (f) the amounts of funds Line 12—Enter the total for each of completed form to the Office of Management needed for the upcoming period. The Columns (b)–(e). The amount in Column (e) and Budget. Send it to the address provided amount(s) in Column (g) should be the sum should be equal to the amount on Line 5, by the sponsoring agency. of amounts in Columns (e) and (f). Column (f), Section A. General Instructions For supplemental grants and changes to Section D. Forecasted Cash Needs existing grants, do not use Columns (c) and This form is designed so that application Line 13—Enter the amount of cash needed can be made for funds from one or more grant (d). Enter in Column (e) the amount of the increase or decrease of Federal funds and by quarter from the grantor agency during the programs. In preparing the budget, adhere to first year. any existing Federal grantor agency enter in Column (f) the amount of the increase or decrease of non-Federal funds. In Line 14—Enter the amount of cash from all guidelines which prescribe how and whether other sources needed by quarter during the budgeted amounts should be separately Column (g) enter the new total budgeted first year. shown for different functions or activities amount (Federal and non-Federal) which Line 15—Enter the totals of amounts on within the program. For some programs, includes the total previous authorized Lines 13 and 14. grantor agencies may require budgets to be budgeted amounts plus or minus, as separately shown by function or activity. For appropriate, the amounts shown in Columns (e) and (f). The amounts(s) in Column (g) Section E. Budget Estimates of Federal Funds other programs, grantor agencies may require Needed for Balance of the Project a breakdown by function or activity. Sections should not equal the sum of amounts in Lines 16–19—Enter in Column (a) the same A, B, C, and D should include budget Columns (e) and (f). grant program titles shown in Column (a), estimates for the whole project except when Line 5—Show the totals for all columns used. applying for assistance which requires Section A. A breakdown by function or activity is not necessary. For new Federal authorization in annual or other Section B. Budget Categories applications and continuation grant funding period increments. In the latter case, In the column headings (1) through (4), Sections A, B, C, and D should provide the applications, enter in the proper columns enter the titles of the same programs, amounts of Federal funds which will be budget for the first budget period (usually a functions, and activities shown on Lines 1– year) and Section E should present the need needed to complete the program or project 4, Column (a), Section A. When additional over the succeeding funding periods (usually for Federal assistance in the subsequent sheets are prepared for Section A, provide budget periods. All applications should in years). This section need not be completed similar column headings on each sheet. For for revisions (amendments, changes, or contain a breakdown by the object class each program, function or activity, fill in the categories shown in Lines a–k of Section B. supplements) to funds for the current year of total requirements for funds (both Federal existing grants. and non-Federal) by object class categories. Section A. Budget Summary Lines 1–4 If more than four lines are needed to list Line 6a—i-Show the totals of Lines 6a to Columns (a) and (b) the program titles, submit additional 6h in each column. schedules as necessary. For applications pertaining to a single Line 6j—Show the amount of indirect cost. Federal grant program (Federal Domestic Line 6k—Enter the total of amounts on Line 20—Enter the total for each of the Assistance Catalog number) and not requiring Lines 6i and 6j. For all applications for new Columns (b)–(e). When additional schedules a functional or activity breakdown, enter on grants and continuation grants the total are prepared for this Section, annotate Line 1 under Column (a) the Catalog program amount in Column (5), Line 6k, should be the accordingly and show the overall totals on title and the Catalog number in Column (b). same as the total amount shown in Section this line. For applications pertaining to a single A, Column (g), Line 5. For supplemental Section F. Other Budget Information program requiring budget amounts by grants and changes to grants, the total multiple functions or activities, enter the amount of the increase or decrease as shown Line 21—Use this space to explain name of each activity or function on each in Columns (1)–(4), Line 6k should be the amounts for individual direct object class line in Column (a), and enter the Catalog same as the sum of the amounts in Section cost categories that may appear to be out of number in Column (b). For applications A, Columns (e) and (f) on Line 5. the ordinary or to explain the details as pertaining to multiple programs where none Line 7—Enter the estimated amount of required by the Federal grantor agency. of the programs require a breakdown by income, if any, expected to be generated from Line 22—Enter the type of indirect rate function or activity, enter the Catalog this project. Do not add or subtract this (provisional, predetermined, final or fixed) program title on each line in Column (a) and amount from the total project amount. Show that will be in effect during the funding the respective Catalog number on each line under the program narrative statement the period, the estimated amount of the base to in Column (b). nature and source of income. The estimated which the rate is applied, and the total For applications pertaining to multiple amount of program income may be indirect expense. programs where one or more programs considered by the Federal grantor agency in Line 23—Provide any other explanations or require a breakdown by function or activity, determining the total amount of the grant. comments deemed necessary. prepare a separate sheet for each program requiring the breakdown. Additional sheets Section C. Non-Federal Resources Attachment D—Assurances—Non- should be used when one form does not Lines 8–11—Enter amounts of non-Federal Construction Programs provide adequate space for all breakdown of resources that will be used on the grant. If Public reporting burden for this collection data required. However, when more than one in-kind contributions are included, provide a of information is estimated to average 15 sheet is used, the first page should provide brief explanation on a separate sheet. minutes per response, including time for the summary totals by programs. Column (a)—Enter the program titles reviewing instructions, searching existing Line 1–4, Columns (c) through (g). identical to Column (a), Section A. A data sources, gathering and maintaining the
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data needed, and completing and reviewing Rehabilitation Act of 1970 (Pub. L. 91–616), 12. Will comply with the Wild and Scenic the collection of information. Send as amended, relating to nondiscrimination on Rivers Act of 1968 (16 U.S.C. §§ 1271 et seq.) comments regarding the burden estimate or the basis of alcohol abuse or alcoholism; (g) related to protecting components or potential any other aspect of this collection of §§ 523 and 527 of the Public Health Service components of the national wild and scenic information, including suggestions for Act of 1912 (42 U.S.C. §§ 290 dd–3 and 290 rivers system. reducing this burden, to the Office of ee 3), as amended, relating to confidentiality 13. Will assist the awarding agency in Management and Budget, Paperwork of alcohol and drug abuse patient records; (h) assuring compliance with Section 106 of the Reduction Project (0348–0040), Washington, Title VIII of the Civil Rights Act of 1968 (42 National Historic Preservation Act of 1966, as DC 20503. U.S.C. §§ 3601 et seq.), as amended, relating amended (16 U.S.C. § 470), EO 11593 Please Do not return your completed form to nondiscrimination in the sale, rental or (identification and protection of historic to the Office of Management and Budget. financing of housing; (i) any other properties), and the Archaeological and Send it to the address provided by the nondiscrimination provisions in the specific Historic Preservation Act of 1974 (16 U.S.C. sponsoring agency. statute(s) under which application for §§ 469a–1 et seq.). Note: Certain of these assurances may not Federal assistance is being made; and, (j) the 14. Will comply will Pub. L. 93–348 be applicable to your project or program. If requirements of any other nondiscrimination regarding the protection of human subjects you have questions, please contact the statute(s) which may apply to the involved in research, development, and awarding agency. Further, certain Federal application. related activities supported by this award of awarding agencies may require applicants to 7. Will comply, or has already complied, assistance. certify to additional assurances. If such is the with the requirements of Titles II and III of 15. Will comply with the Laboratory case, you will be notified. the Uniform Relocation Assistance and Real Animal Welfare Act of 1966 (Pub. L. 89–544, Property Acquisition Policies Act of 1970 as amended, 7 U.S.C. §§ 2131 et seq.) As the duly authorized representative of (Pub. L. 91–646) which provide for fair and the applicant, I certify that the applicant: pertaining to the care, handling, and equitable treatment of persons displaced or treatment of warm blooded animals held for 1. Has the legal authority to apply for whose property is acquired as a result of Federal assistance and the institutional, research, teaching, or other activities Federal or federally-assisted programs. These supported by this award of assistance. managerial and financial capability requirements apply to all interests in real (including funds sufficient to pay the non- 16. Will comply with the Lead-Based Paint property acquired for project purposes Poisoning Prevention Act (42 U.S.C. §§ 4801 Federal share of project cost) to ensure regardless of Federal participation in proper planning, management and et seq.) which prohibits the use of lead-based purchases. paint in construction or rehabilitation of completion of the project described in this 8. Will comply, as applicable, with application. residence structures. provisions of the Hatch Act (5 U.S.C. 17. Will cause to be performed the required 2. Will give the awarding agency, the §§ 1501–1508 and 7324–7328) which limit Comptroller General of the United States and, financial and compliance audits in the political activities of employees whose accordance with the Single Audit Act if appropriate, the State, through any principal employment activities are funded authorized representative, access to and the Amendments of 1996 and OMB Circular No. in whole or in part with Federal funds. A–133, ‘‘Audits of States, Local right to examine all records, books, papers, 9. Will comply, as applicable, with the or documents related to the award; and will Governments, and Non-Profit Organizations.’’ provisions of the Davis-Bacon Act (40 U.S.C. 18. Will comply with all applicable establish a proper accounting system in §§ 276a to 276a–7), the Copeland Act (40 requirements of all other Federal laws, accordance with generally accepted U.S.C. § 276c and 18 U.S.C. § 874), and the executive orders, regulations, and policies accounting standards or agency directives. Contract Work Hours and Safety Standards governing this program. 3. Will establish safeguards to prohibit Act (40 U.S.C. §§ 327–333), regarding labor employees from using their positions for a standards for federally-assisted construction Signature of Authorized Certifying Official purpose that constitutes or presents the subagreements. lllllllllllllllllllll appearance of personal or organizational 10. Will comply, if applicable, with flood Title conflict of interest, or personal gain. insurance purchase requirements of Section lllllllllllllllllllll 4. Will initiate and complete the work 102(a) of the Flood Disaster Protection Act of Applicant Organization within the applicable time frame after receipt 1973 (Pub. L. 93–234) which requires lllllllllllllllllllll of approval of the awarding agency. recipients in a special flood hazard area to Date Submitted 5. Will comply with the Intergovernmental participate in the program and to purchase lllllllllllllllllllll Personnel Act of 1970 (42 U.S.C. §§ 4728– flood insurance if the total cost of insurable Attachment E—Certification Regarding 4763) relating to prescribed standards for construction and acquisition is $10,000 or Drug-Free Workplace Requirements merit systems for programs funded under one more. of the 19 statutes or regulations specified in 11. Will comply with environmental This certification is required by the Appendix A of OPM’s Standards for a Merit standards which may be prescribed pursuant regulations implementing the Drug-Free System of Personnel Administration (5 CFR to the following: (a) institution of Workplace Act of 1988: 45 CFR Part 76, 900, Subpart F). environmental quality control measures Subpart F, Sections 76.630(c) and (d)(2) and 6. Will comply with all Federal statutes under the National Environmental Policy Act 76.645(a)(1) and (b) provide that a Federal relating to nondiscrimination. These include of 1969 (Pub. L. 91–190) and Executive Order agency may designate a central receipt point but are not limited to: (a) Title VI of the Civil (EO) 11514; (b) notification of violating for STATE-WIDE AND STATE AGENCY- Rights Act of 1964 (Pub. L. 88–352) which facilities pursuant to EO 11738; (c) protection WIDE certifications, and for notification of prohibits discrimination on the basis of race, of wetlands pursuant to EO 11990; (d) criminal drug convictions. For the color or national origin; (b) Title IX of the evaluation of flood hazards in floodplains in Department of Health and Human Services, Education Amendments of 1972, as amended accordance with EO 11988; (e) assurance of the central point is: Division of Grants (20 U.S.C. §§ 1681–1683, and 1685–1686), project consistency with the approved State Management and Oversight, Office of which prohibits discrimination on the basis management program developed under the Management and Acquisition, Department of of sex; (c) Section 504 of the Rehabilitation Coastal Zone Management Act of 1972 (16 Health and Human Services, Room 517–D, Act of 1973, as amended (29 U.S.C. § 794), U.S.C. §§ 1451 et seq.); (f) conformity of 200 Independence Avenue, SW., which prohibits discrimination on the basis Federal actions to State (Clean Air) Washington, DC 20201. of handicaps; (d) the Age Discrimination Act Implementation Plans under Section 176(c) Certification Regarding Drug-Free of 1975, as amended (42 U.S.C. §§ 6101– of the Clean Air Act of 1955, as amended (42 Workplace Requirements (Instructions for 6107), which prohibits discrimination on the U.S.C. §§ 7401 et seq.); (g) protection of Certification) basis of age; (e) the Drug Abuse Office and underground sources of drinking water under 1. By signing and/or submitting this Treatment Act of 1972 (Pub. L. 92–255), as the Safe Drinking Water Act of 1974, as application or grant agreement, the grantee is amended, relating to nondiscrimination on amended (Pub. L. 93–523); and, (h) providing the certification set out below. the basis of drug abuse; (f) the protection of endangered species under the 2. The certification set out below is a Comprehensive Alcohol Abuse and Endangered Species Act of 1973, as amended material representation of fact upon which Alcoholism Prevention, Treatment and (Pub. L. 93–205). reliance is placed when the agency awards
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the grant. If it is later determined that the Certification Regarding Drug-Free Workplace performance or work done in connection grantee knowingly rendered a false Requirements with the specific grant: certification, or otherwise violates the Alternate I. (Grantees Other Than Place of Performance (Street address, city, requirements of the Drug-Free Workplace Individuals) county, state, zip code). Act, the agency, in addition to any other Check if there are workplaces on file that remedies available to the Federal The grantee certifies that it will or will are not identified here. continue to provide a drug-free workplace by: Government, may take action authorized Alternate II. (Grantees Who Are Individuals) under the Drug-Free Workplace Act. (a) Publishing a statement notifying 3. For grantees other than individuals, employees that the unlawful manufacture, (a) The grantee certifies that, as a condition Alternate I applies. distribution, dispensing, possession, or use of of the grant, he or she will not engage in the 4. For grantees who are individuals, a controlled substance is prohibited in the unlawful manufacture, distribution, Alternate II applies. grantee’s workplace and specifying the dispensing, possession, or use of a controlled 5. Workplaces under grants, for grantees actions that will be taken against employees substance in conducting any activity with the other than individuals, need not be identified for violation of such prohibition; grant; on the certification. If known, they may be (b) Establishing an ongoing drug-free (b) If convicted or a criminal drug offense identified in the grant application. If the awareness program to inform employees resulting from a violation occurring during grantee does not identify the workplaces at about— the conduct of any grant activity, he or she the time of application, or upon award, if (1) The dangers of drug abuse in the will report the conviction, in writing, within there is no application, the grantee must keep workplace; 10 calendar days of the conviction, to every the identity of the workplace(s) on file in its (2) The grantee’s policy of maintaining a grant officer or other designee, unless the office and make the information available for drug-free workplace; Federal agency designates a central point for Federal inspection. Failure to identify all (3) Any available drug counseling, the receipt of such notices. When notice is known workplaces constitutes a violation of rehabilitation, and employee assistance made to such a central point, it shall include the grantee’s drug-free workplace programs; and the identification number(s) of each affected requirements. (4) The penalties that may be imposed grant. 6. Workplace identifications must include upon employees for drug abuse violations Attachment F—Certification Regarding the actual address of buildings (or parts of occurring in the workplace; Debarment, Suspension and Other buildings) or other sites where work under (c) Making it a requirement that each Responsibility Matters the grant takes place. Categorical descriptions employee to be engaged in the performance may be used (e.g., all vehicles of a mass of the grant be given a copy of the statement Certification Regarding Debarment, transit authority or State highway department required by paragraph (a); Suspension, and Other Responsibility while in operation, State employees in each (d) Notifying the employee in the statement Matters—Primary Covered Transactions local unemployment office, performers in required by paragraph (a) that, as a condition Instructions for Certification concert halls or radio studios). of employment under the grant, the employee 7. If the workplace identified to the agency 1. By signing and submitting this proposal, will— changes during the performance of the grant, the prospective primary participant is (1) Abide by the terms of the statement; the grantee shall inform the agency of the providing the certification set out below. change(s), if it previously identified the and 2. The inability of a person to provide the workplaces in question (see paragraph five). (2) Notify the employer in writing of his or certification required below will not 8. Definitions of terms in the her conviction for a violation of a criminal necessarily result in denial of participation in Nonprocurement Suspension and Debarment drug statute occurring in the workplace no this covered transaction. The prospective common rule and Drug-Free Workplace rule later than five calendar days after such participant shall submit an explanation of apply to this certification. Grantee’s attention conviction; why it cannot provide the certification set is called, in particular, to the following (e) Notifying the agency in writing, within out below. The certification or explanation definitions from these rules: ten calendar days after receiving notice under will be considered in connection with the Controlled substance means a controlled paragraph (d)(2) from an employee or department or agency’s determination substance in Schedules I through V of the otherwise receiving actual notice of such whether to enter into this transaction. Controlled Substances Act (21 U.S.C. 812) conviction. Employers of convicted However, failure of the prospective primary and as further defined by regulation (21 CFR employees must provide notice, including participant to furnish a certification or an 1308.11 through 1308.15); position title, to every grant officer or other explanation shall disqualify such person Conviction means a finding of guilt designee on whose grant activity the from participation in this transaction. (including a plea of nolo contendere) or convicted employee was working, unless the 3. The certification in this clause is a imposition of sentence, or both, by any Federal agency has designated a central point material representation of fact upon which judicial body charged with the responsibility for the receipt of such notices. Notice shall reliance was placed when the department or to determine violations of the Federal or include the identification number(s) of each agency determined to enter into this State criminal drug statutes; affected grant; transaction. If it is later determined that the Criminal drug statute means a Federal or (f) Taking one of the following actions, prospective primary participant knowingly non-Federal criminal statute involving the within 30 calendar days of receiving notice rendered an erroneous certification, in manufacture, distribution, dispensing, use, or under paragraph (d)(2), with respect to any addition to other remedies available to the possession of any controlled substance; employee who is so convicted— Federal Government, the department or Employee means the employee of a grantee (1) Taking appropriate personnel action agency may terminate this transaction for directly engaged in the performance of work against such an employee, up to and cause or default. under a grant, including: (i) All direct charge including termination, consistent with the 4. The prospective primary participant employees; (ii) All indirect charge employees requirements of the Rehabilitation Act of shall provide immediate written notice to the unless their impact or involvement is 1973, as amended; or department or agency to which this proposal insignificant to the performance of the grant; (2) Requiring such employee to participate is submitted if at any time the prospective and, (iii) Temporary personnel and satisfactorily in a drug abuse assistance of primary participant learns that its consultants who are directly engaged in the rehabilitation program approved for such certification was erroneous when submitted performance of work under the grant and purposes by a Federal, State, or local health, or has become erroneous by reason of who are on the grantee’s payroll. This law enforcement, or other appropriate changed circumstances. definition does not include workers not on agency; 5. The terms covered transaction, debarred, the payroll of the grantee (e.g., volunteers, (g) Making a good faith effort to continue suspended, ineligible, lower tier covered even if used to meet a matching requirement; to maintain a drug-free workplace through transaction, participant, person, primary consultant or independent contractors not on implementation of paragraphs (a), (b), (c), (d), covered transaction, principal, proposal, and the grantee’s payroll; or employees or (e) and (f). voluntarily excluded, as used in this clause, subrecipients or subcontractors in covered (B) The grantee may insert in the space have the meanings set out in the Definitions workplaces). provided below the site(s) for the and Coverage sections of the rules
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implementing Executive Order 12549. You (b) Have not within a three-year period by the department or agency with which this may contact the department or agency to preceding this proposal been convicted of or transaction originated. which this proposal is being submitted for had a civil judgment rendered against them 6. The prospective lower tier participant assistance in obtaining a copy of those for commission of fraud or a criminal offense further agrees by submitting this proposal regulations. in connection with obtaining, attempting to that it will include this clause titled 6. The prospective primary participant obtain, or performing a public (Federal, State ‘‘Certification Regarding Debarment, agrees by submitting this proposal that, or local) transaction or contract under a Suspension, Ineligibility and Voluntary should the proposed covered transaction be public transaction; violation of Federal or Exclusion-Lower Tier Covered Transaction,’’ entered into, it shall not knowingly enter into State antitrust statutes or commission of without modification, in all lower tier any lower tier covered transaction with a embezzlement, theft, forgery, bribery, covered transactions and in all solicitations person who is proposed for debarment under falsification or destruction of records, making for lower tier covered transactions. 48 CFR part 9, subpart 9.4, debarred, false statements, or receiving stolen property; 7. A participant in a covered transaction suspended, declared ineligible, or voluntarily (c) Are not presently indicted for or may rely upon a certification of a prospective excluded from participation in this covered otherwise criminally or civilly charged by a participant in a lower tier covered transaction, unless authorized by the governmental entity (Federal, State or local) transaction that it is not proposed for department or agency entering into this with commission of any of the offenses debarment under 48 CFR part 9, subpart 9.4, transaction. enumerated in paragraph (1)(b) of this debarred, suspended, ineligible, or 7. The prospective primary participant certification; and voluntarily excluded from covered further agrees by submitting this proposal (d) Have not within a three-year period transactions, unless it knows that the that it will include the clause titled preceding this application/proposal had one certification is erroneous. A participant may ‘‘Certification Regarding Debarment, or more public transactions (Federal, State or decide the method and frequency by which Suspension, Ineligibility and Voluntary local) terminated for cause or default. it determines the eligibility of its principals. Exclusion-Lower Tier Covered Transaction,’’ (2) Where the prospective primary Each participant may, but is not required to, provided by the department or agency participant is unable to certify to any of the check the List of Parties Excluded from entering into this covered transaction, statements in this certification, such Federal Procurement and Nonprocurement without modification, in all lower tier prospective participant shall attach an Programs. covered transactions and in all solicitations explanation to this proposal. 8. Nothing contained in the foregoing shall for lower tier covered transactions. Certification Regarding Debarment, be construed to require establishment of a 8. A participant in a covered transaction Suspension, Ineligibility and Voluntary system of records in order to render in good may rely upon a certification of a prospective Exclusion—Lower Tier Covered Transactions faith the certification required by this clause. participant in a lower tier covered The knowledge and information of a transaction that it is not proposed for Instructions for Certification participant is not required to exceed that debarment under 48 CFR part 9, subpart 9.4, 1. By signing and submitting this proposal, which is normally possessed by a prudent debarred, suspended, ineligible, or the prospective lower tier participant is person in the ordinary course of business voluntarily excluded from the covered providing the certification set out below. dealings. transaction, unless it knows that the 2. The certification in this clause is a 9. Except for transactions authorized under certification is erroneous. A participant may material representation of fact upon which paragraph 5 of these instructions, if a decide the method and frequency by which reliance was placed when this transaction participant in a covered transaction it determines the eligibility of its principals. was entered into. If it is later determined that knowingly enters into a lower tier covered Each participant may, but is not required to, the prospective lower tier participant transaction with a person who is proposed check the List of Parties Excluded from knowingly rendered an erroneous for debarment under 48 CFR part 9, subpart Federal Procurement and Nonprocurement certification, in addition to other remedies 9.4, suspended, debarred, ineligible, or Programs. available to the Federal Government the voluntarily excluded from participation in 9. Nothing contained in the foregoing shall department or agency with which this this transaction, in addition to other be construed to require establishment of a transaction originated may pursue available remedies available to the Federal system of records in order to render in good remedies, including suspension and/or Government, the department or agency with faith the certification required by this clause. debarment. which this transaction originated may pursue The knowledge and information of a 3. The prospective lower tier participant available remedies, including suspension participant is not required to exceed that shall provide immediate written notice to the and/or debarment. which is normally processed by a prudent person to which this proposal is submitted if person in the ordinary course of business at any time the prospective lower tier Certification Regarding Debarment, dealings. participant learns that its certification was Suspension, Ineligibility an Voluntary 10. Except for transactions authorized erroneous when submitted or had become Exclusion—Lower Tier Covered Transactions under paragraph 6 of these instructions, if a erroneous by reason of changed (1) The prospective lower tier participant participant in a covered transaction circumstances. certifies, by submission of this proposal, that knowingly enters into a lower tier covered 4. The terms covered transaction, debarred, neither it nor its principals is presently transaction with a person who is proposed suspended, ineligible, lower tier covered debarred, suspended, proposed for for debarment under 48 CFR part 9, subpart transaction, participant, person, primary debarment, declared ineligible, or voluntarily 9.4, suspended, debarred, ineligible, or covered transaction, principal, proposal, and excluded from participation in this voluntarily excluded from participation in voluntarily excluded, as used in this clause, transaction by any Federal department or this transaction, in addition to other have the meaning set out in the Definitions agency. remedies available to the Federal and Coverage sections of rules implementing (2) Where the prospective lower tier Government, the department or agency may Executive Order 12549. You may contact the participant is unable to certify to any of the terminate this transaction for cause or person to which this proposal is submitted statements in this certification, such default. for assistance in obtaining a copy of those prospective participant shall attach an regulations. explanation to this proposal. Certification Regarding Debarment, 5. The prospective lower tier participant Suspension, and Other Responsibility agrees by submitting this proposal that, Attachment G—Intergovernmental Review Matters—Primary Covered Transactions [[Page 33043]] should the proposed covered (SPOC List) (1) The prospective primary participant transaction be entered into, it shall not It is estimated that in 2001 the Federal certifies to the best of its knowledge and knowingly enter into any lower tier covered Government will outlay $305.6 billion in belief, that it and its principals: transaction with a person who is proposed grants to State and local governments. (a) Are not presently debarred, suspended, for debarment under 48 CFR part 9, subpart Executive Order 12372, ‘‘Intergovernmental proposed for debarment, declared ineligible, 9.4, debarred, suspended, declared ineligible, Review of Federal Programs,’’ was issued or voluntarily excluded by any Federal or voluntarily excluded from participation in with the desire to foster the Department or agency; this covered transaction, unless authorized intergovernmental partnership and
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strengthen federalism by relying on State and Iowa North Carolina local processes for the coordination and Steven R. McCann, Division of Community Jeanette Furney, Department of review of proposed Federal financial and Rural Development, Iowa Department Administration, 1302 Mail Service Center, assistance and direct Federal development. of Economic Development, 200 East Grand Raleigh, North Carolina 27699–1302, The Order allows each State to designate an Avenue, Des Moines, Iowa 50309, Telephone: (919) 807–2323, Fax: (919) entity to perform this function. Below is the Telephone: (515) 242–4719, Fax: (515) 733–9571, [email protected] official list of those entities. For those States 242–4809, [email protected] that have a home page for their designated North Dakota entity, a direct link has been provided below. Kentucky Jim Boyd, Division of Community Services, States that are not listed on this page have Ron Cook, Department for Local Government, 600 East Boulevard Ave, Dept 105, chosen not to participate in the 1024 Capital Center Drive, Suite 340, Bismarck, North Dakota 58505–0170, intergovernmental review process, and Frankfort, Kentucky 40601, Telephone: Telephone: (701) 328–2094, Fax: (701) therefore do not have a SPOC. If you are (502) 573–2382, Fax: (502) 573–2512, 328–2308, [email protected] located within one of these States, you may [email protected] Rhode Island still send application materials directly to a Maine Federal awarding agency. Kevin Nelson, Department of Administration, Statewide Planning Program, One Capitol Contact information for Federal agencies Joyce Benson, State Planning Office, 184 Hill, Providence, Rhode Island 02908– that award grants can be found in Appendix State Street, 38 State House Station, 5870, Telephone: (401) 222–2093, Fax: IV of the Catalog of Federal Domestic Augusta, Maine 04333, Telephone: (207) (401) 222–2083 [email protected] Assistance. 287–3261, (207) 287–1461 (direct) Fax: (207) 287–6489, [email protected] South Carolina Arkansas Maryland Omeagia Burgess, Budget and Control Board, Tracy L. Copeland, Manager, State Office of State Budget, 1122 Ladies Street, Linda Janey, Manager, Clearinghouse and Clearinghouse, Office of Intergovernmental 12th Floor, Columbia, South Carolina Plan Review Unit, Maryland Office of Services, Department of Finance and 29201, Telephone: (803) 734–0494, Fax: Planning, 301 West Preston Street—Room Administration, 1515 W. 7th St., Room (803) 734–0645, 1104, Baltimore, Maryland 21201–2305, 412, Little Rock, Arkansas 72203, [email protected] Telephone: (501) 682–1074, Fax: (501) Telephone: (410) 767–4490, Fax: (410) 682–5206, [email protected] 767–4480, [email protected] Texas Denise S. Francis, Director, State Grants California Michigan Team, Governor’s Office of Budget and Grants Coordination, State Clearinghouse, Richard Pfaff, Southeast Michigan Council of Planning, P.O. Box 12428, Austin, Texas Office of Planning and Research, P.O. Box Governments, 535 Griswold, Suite 300, 78711, Telephone: (512) 305–9415, Fax: 3044, Room 222, Sacramento, California Detroit, Michigan 48226, Telephone: (313) (512) 936–2681, 95812–3044, Telephone; (916) 445–0613, 961–4266, Fax: (313) 961–4869, [email protected] Fax: (916) 323–3018, [email protected] Utah [email protected] Mississippi Carolyn Wright, Utah State Clearinghouse, Delaware Cathy Mallette, Clearinghouse Officer, Governor’s Office of Planning and Budget, Charles H. Hopkins, Executive Department, Department of Finance and State Capitol, Room 114, Salt Lake City, Office of the Budget, 540 S. Dupont Administration, 1301 Woolfolk Building, Utah 84114, Telephone: (801) 538–1535, Highway, 3rd Floor, Dover, Delaware Suite E, 501 North West Street, Jackson, Fax: (801) 538–1547, 19901, Telephone: (302) 739–3323, Fax: Mississippi 39201, Telephone: (601) 359– [email protected] 6762, Fax: (601) 359–6758 (302) 739–5661, [email protected] West Virginia Missouri District of Columbia Fred Cutlip, Director, Community Luisa Montero-Diaz, Office of Partnerships Angela Boessen, Federal Assistance Development Division, West Virginia Clearinghouse, Office of Administration, and Grants, Development, Executive Office Development Office, Building #6, Room P.O. Box 809, Truman Building, Room 840, of the Mayor, District of Columbia 553, Charleston, West Virginia 25305, Jefferson City, Missouri 65102, Telephone: Telephone: (304) 558–4010, Fax: (304) Government, 441 4th Street, NW., Suite (573) 751–4834, Fax: (573) 522–4395 558–3248, [email protected] 530 South, Washington, DC 20001, [email protected] Telephone: (202) 727–8900, Fax: (202) Wisconsin 727–1652, [email protected] Nevada Jeff Smith, Section Chief, Federal/State Florida Heather Elliott, Department of Relations, Wisconsin Department of Administration, State Clearinghouse, 209 Administration, 101 East Wilson Street–6th Jasmin Raffington, Florida State E. Musser Street, Room 200, Carson City, Floor, P.O. Box 7868, Madison, Wisconsin Clearinghouse, Department of Community Nevada 89701, Telephone: (775) 684–0209, 53707, Telephone: (608) 266–0267, Fax: Affairs, 2555 Shumard Oak Blvd, Fax: (775) 684–0260, (608) 267–6931, Tallahassee, Florida 32399–2100, [email protected] [email protected] Telephone: (850) 922–5438, Fax: (850) 414–0479, [email protected] New Hampshire American Samoa Georgia Jeffrey H. Taylor, Director, New Hampshire Pat M. Galea’i, Federal Grants/Programs Office of State Planning, Attn: Coordinator, Office of Federal Programs, Georgia State Clearinghouse, 270 Washington Intergovernmental Review Process, Mike Office of the Governor/Department of Street, SW., Atlanta, Georgia 30334, Blake, 21⁄2 Beacon Street, Concord, New Commerce, American Samoa Government, Telephone: (404) 656–3855, Fax: (404) Hampshire 03301, Telephone: (603) 271– Pago Pago, American Samoa 96799, 656–7901, [email protected] 2155, Fax: (603) 271–1728, Telephone: (684) 633–5155, Fax: (684) Illinois [email protected] 633–4195, [email protected] Virginia Bova, Department of Commerce and New Mexico Guam Community Affairs, James R. Thompson Ken Hughes, Local Government Division, Director, Bureau of Budget and Management Center, 100 West Randolph, Suite 3–400, Room 201 Bataan Memorial Building, Research, Office of the Governor, P.O. Box Chicago, Illinois 60601, Telephone: (312) Santa Fe, New Mexico 87503, Telephone: 2950, Agana, Guam 95910, Telephone: 814–6028, Fax (312) 814–8485, (505) 827–4370, Fax: (505) 827–4948, 011–671–472–2285, Fax: 011–472–2825, [email protected] [email protected] [email protected]
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Puerto Rico Attachment H—Certification Regarding certify and disclose accordingly. This Jose Caballero/Mayra Silva, Puerto Rico Lobbying certification is a material representation of fact upon which reliance was placed when Planning Board, Federal Proposals Review Certification for Contracts, Grants, Loans, this transaction was made or entered into. Office, Minillas Government Center, P.O. and Cooperative Agreements Submission of this certification is a Box 41119, San Juan, Puerto Rico 00940– The undersigned certifies, to the best of his prerequisite for making or entering into this 1119, Telephone: (787) 723–6190, Fax: or her knowledge and belief, that: transaction imposed by section 1352, title 31, (787) 722–6783 (1) No Federal appropriated funds have U.S. Code. Any person who fails to file the been paid or will be paid, by or on behalf of North Mariana Islands required certification shall be subject to a the undersigned, to any person for civil penalty of not less than $10,000 and not Ms. Jacoba T. Seman, Federal Programs influencing or attempting to influence an more than $100,000 for each such failure. Coordinator, Office of Management and officer or employee of an agency, a Member Statement for Loan Guarantees and Loan Budget, Office of the Governor, Saipan, MP of Congress, an officer of employee of Insurance 96950, Telephone: (670) 664–2289, Fax: Congress, or an employee of a Member of The undersigned states, to the best of his Congress in connection with awarding of any (670) 664–2272, [email protected] or her knowledge and belief, that: Federal contract, the making of any Federal If any funds have been paid or will be paid Virgin Islands grant, the making of any Federal loan, the to any person for influencing or attempting entering into of any cooperative agreement, Ira Mills, Director, Office of Management and to influence an officer or employee of any and the extension, continuation, renewal, Budget, #41 Norre Gade Emancipation agency, a Member of Congress, an officer or amendment, or modification of any Federal employee of Congress, or an employee of a Garden Station, Second Floor, Saint contract, grant, loan, or cooperative Member of Congress in connection with this Thomas, Virgin Islands 00802, Telephone: agreement. commitment providing for the United States (340) 774–0750, Fax: (340) 776–0069, (2) If any funds other than Federal to insure or guarantee a loan, the appropriated funds have been paid or will be [email protected] undersigned shall complete and submit paid to any person for influencing or Changes to this list can be made only after Standard Form–LLL, ‘‘Disclosure Form to attempting to influence an officer or OMB is notified by a State’s officially Report Lobbying,’’ in accordance with its employee of any agency, a Member of designated representative. E-mail messages instructions. Submission of this statement is Congress, an officer or employee of Congress, can be sent to [email protected]. If you a prerequisite for making or entering into this or an employee of a Member of Congress in prefer, you may send correspondence to the transaction imposed by section 1352, title 31, connection with this Federal contract, grant, following postal address: Attn: Grants U.S. Code. Any person who fails to file the loan, or cooperative agreement, the required statement shall be subject to a civil Management, Office of Management and undersigned shall complete and submit penalty of not less than $10,000 and not more Budget, New Executive Office Building, Suite Standard Form-LLL, ‘‘Disclosure Form to than $100,000 for each such failure. 6025, 725 17th Street, NW., Washington, DC Report Lobbying,’’ in accordance with its 20503. instructions. lllllllllllllllllllll Signature Please note: Inquiries about obtaining a (3) The undersigned shall require that the language of this certification be included in lllllllllllllllllllll Federal grant should not be sent to the OMB Title e-mail or postal address shown above. The the award documents for all subawards at all tiers (including subcontracts, subgrants, and lllllllllllllllllllll best source for this information is the CFDA. contract under grants, loans, and cooperative Organization BILLING CODE 4184–01–C agreements) and that all subrecipients shall BILLING CODE 4184–01–M
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BILLING CODE 4184–01–C material change report. Refer to the 4. Enter the full name, address, city, State Attachment H—Instructions for Completion implementing guidance published by the and zip code of the reporting entity. Include of SF–LLL Disclosure of Lobbying Activities Office of Management and Budget for Congressional District, if known. Check the additional information. appropriate classification of the reporting This disclosure form shall be completed by 1. Identify the type of covered Federal entity that designates if it is, or expects to be, the reporting entity, whether subawardee or prime Federal recipient, at the initiation or action for which lobbying activity is and/or a prime or subaward recipient. Identify the receipt of a covered Federal action, or a has been secured to influence the outcome of tier of a subawardee, e.g., the first material change to a previous filing, pursuant a covered Federal action. subawardee of the prime is the 1st tier. to title 31 U.S.C. section 1352. The filing of 2. Identify the status of the covered Federal Subawards include but are not limited to a form is required for each payment or action. subcontracts, subgrants and contract awards agreement to make payment to any lobbying 3. Identify the appropriate classification of under grants. entity for influencing or attempting to this report. If this is a followup report caused 5. If the organization filing the report in influence an officer or employee of any by a material change to the information item 4 checks ‘‘Subawardee,’’ then enter the agency, a Member of Congress, an officer or previously reported, enter the year and full name, address, city, State and zip code employee of Congress, or an employee of a quarter in which the change occurred. Enter of the prime Federal recipient. Include Member of Congress in connection with a the date of the last previously submitted Congressional District, if known. covered Federal action. Complete all items report by this reporting entity for this 6. Enter the name of the Federal agency that apply for both the initial filing and covered Federal action. making the award or loan commitment.
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Include at least one organizational level 9. For a covered Federal action where there respond to a collection of information unless below agency name, if known. For example, has been an award or loan commitment by it displays a valid OMB Control Number. The Department of Transportation, United States the Federal agency, enter the Federal amount valid OMB control number for this Coast Guard. of the award/loan commitment for the prime information collection is OMB No. 0348– 7. Enter the Federal program name or entity identified in item 4 or 5. 0046. Public reporting burden for this description for the covered Federal action 10. (a) Enter the full name, address, city, collection of information is estimated to (item 1). If known, enter the full Catalog of State and zip code of the lobbying registrant average 10 minutes per response, including under the Lobbying Disclosure Act of 1995 Federal Domestic Assistance (CFDA) number time for reviewing instructions, searching engaged by the reporting entity identified in for grants, cooperative agreements, loans, and existing data sources, gathering and item 4 to influence the covered Federal maintaining the data needed, and completing loan commitments. action. and reviewing the collection of information. 8. Enter the most appropriate Federal (b) Enter the full names of the individual(s) identifying number available for the Federal performing services, and include full address Send comments regarding the burden action identified in item 1 (e.g., Request for if different from 10(a). Enter Last Name, First estimate or any other aspect of this collection Proposal (RFP) number; Invitation for Bid Name, and Middle Initial (MI). of information, including suggestions for (IFB) number; grant announcement number; 11. The certifying official shall sign and reducing this burden, to the Office of the contract, grant, or loan award number; date the form, print his/her name, title, and Management and Budget, Paperwork the application/proposal control number telephone number. Reduction Project (0348–0046), Washington, assigned by the Federal agency). Include According to the Paperwork Reduction DC 20503. prefixes, e.g., ‘‘RFP–DE–90–001.’’ Act, as amended, no persons are required to BILLING CODE 4184–01–M
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BILLING CODE 4184–01–C Attachment J—Certification Regarding Children Act of 1994, requires that smoking Environmental Tobacco Smoke not be permitted in any portion of any indoor Public Law 103227, Part C Environmental routinely owned or leased or contracted for by an entity and used routinely or regularly Tobacco Smoke, also known as the Pro for provision of health, day care, education,
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or library services to children under the age Attachment K—DHHS Regulations Applying Part 84—Non-discrimination on the Basis of of 18, if the services are funded by Federal to All Applicants/Grantees Under the Handicap in Programs and Activities programs either directly or through State or Community Economic Development Receiving Federal Financial Assistance local governments, by Federal grant, contract, Program—Special Initiatives Part 85—Enforcement of Non-Discrimination on the Basis of Handicap in Programs or loan, or loan guarantee. The law does not Title 45 of the Code of Federal Regulations apply to children’s services provided in Activities Conducted by the Department of Part 16—Department of Grant Appeals Health and Human Services private residences, facilities funded solely by Process Part 86—Nondiscrimination on the Basis of Medicare or Medicaid funds, and portions of Part 74—Administration of Grants (grants Sex in Education Programs and Activities facilities used for inpatient drug or alcohol and subgrants to entities) Receiving or Benefiting from Federal treatment. Failure to comply with the Part 75—Informal Grant Appeal Procedures Financial Assistance provisions of the law may result in the Part 76—Debarment and Suspension from Part 91—Non-discrimination on the Basis of imposition of a civil monetary penalty of up Eligibility for Financial Assistance Age in Health and Human Services to $1000 per day and/or the imposition of an Programs or Activities Receiving Federal administrative compliance order on the Subpart F—Drug Free Workplace Financial Assistance responsible entity. By signing and submitting Requirements Part 92—Uniform Administrative this application the applicant/grantee Part 80—Non-Discrimination Under Requirements for Grants and Cooperative certifies that it will comply with the Programs Receiving Federal Assistance Agreements to States and Local Governments (Federal Register, March 11, requirements of the Act. through the Department of Health and Human Services Effectuation of Title VI of 1988) The applicant/grantee further agrees that it Part 93—New Restrictions on Lobbying the Civil Rights Act Of 1964 will require the language of this certification Part 100—Intergovernmental Review of Part 81—Practice and Procedures for be included in any subawards which contain Department of Health and Human Services provisions for the children’s services and that Hearings Under Part 80 of this Title Programs and Activities all subgrantees shall certify accordingly. Part 83—Regulation for the Administration and Enforcement of Sections 799A and 845 [FR Doc. 02–19770 Filed 8–7–02; 8:45 am] of the Public Health Service Act BILLING CODE 4184–01–M
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Part IV
Department of Agriculture 7 CFR Part 930 Tart Cherries Grown in the States of Michigan, New York, Pennsylvania, Oregon, Utah, Washington and Wisconsin; Order Amending Marketing Agreement and Order No. 930; Final Rule
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DEPARTMENT OF AGRICULTURE SUPPLEMENTARY INFORMATION: Prior inventory reserve; and the use of crop documents in this proceeding: Notice of estimates other than the official USDA Agricultural Marketing Service Hearing issued on March 17, 2000, and crop estimate in developing the Board’s published in the March 23, 2000, issue marketing policy. 7 CFR Part 930 of the Federal Register (65 FR 15580); The Fruit and Vegetable Programs of [Docket Nos. AO–370–A7; FV00–930–1] Recommended Decision and AMS proposed to allow such changes as Opportunity to File Written Exceptions may be necessary to the order, if any of Tart Cherries Grown in the States of issued on January 15, 2002, and the proposed amendments are adopted, Michigan, New York, Pennsylvania, published in the January 24, 2002, issue so that all of the order’s provisions Oregon, Utah, Washington and of the Federal Register (67 FR 3540); conform with the effectuated Wisconsin; Order Amending Marketing and Secretary’s Decision and amendments. Agreement and Order No. 930 Referendum Order issued May 3, 2002, Upon the basis of evidence and published in the Federal Register introduced at the hearing and the record AGENCY: Agricultural Marketing Service, on May 10, 2002 (67 FR 31896). thereof, the Administrator of AMS on USDA. This administrative action is governed January 15, 2002, filed with the Hearing ACTION: Final rule. by the provisions of sections 556 and Clerk, U.S. Department of Agriculture, a 557 of Title 5 of the United States Code SUMMARY: This final rule amends the Recommended Decision and and, therefore, is excluded from the marketing agreement and order for tart Opportunity to File Written Exceptions requirements of Executive Order 12866. cherries grown in Michigan, New York, thereto by February 13, 2002. Ninety-six Pennsylvania, Oregon, Utah, Preliminary Statement exceptions were filed during the period provided. Washington and Wisconsin. The This final rule was formulated based amendments are based on those on the record of a public hearing held A Secretary’s Decision and proposed by the Cherry Industry in Rochester, New York on March 27 Referendum Order was issued on May 3, Administrative Board (Board), which is and 28, 2000; in Grand Rapids, 2002, directing that a referendum be responsible for local administration of Michigan on March 29, 30, and 31, conducted during the period May 20 the order. The amendments include 2000; in Kennewick, Washington on through May 31, 2002, among growers making districts producing more than 6 April 4 and 5, 2000; and in Salt Lake of tart cherries to determine whether million pounds per year subject to City, Utah on April 6, 2000. The hearing they favored the proposed amendments volume regulations (rather than 15 was held to consider the proposed to the order. In the referendum, all million pounds); making shipments of amendment of Marketing Agreement amendments were favored by more than cherry juice and juice concentrate to and Order No. 930, regulating the two-thirds of the growers voting in the certain markets eligible to receive handling of tart cherries grown in the referendum by number and volume. diversion credit; changing provisions States of Michigan, New York, The amended marketing agreement related to alternate Board members Pennsylvania, Oregon, Utah, was mailed to all tart cherry handlers in serving for absent members at Board Washington, and Wisconsin, hereinafter the production area for their approval. meetings; making all processed cherries referred to collectively as the ‘‘order.’’ The marketing agreement was approved subject to assessments; and eliminating The hearing was held pursuant to the by handlers representing more than 50 the requirement that different provisions of the Agricultural Marketing percent of the volume of tart cherries assessment rates be established for Agreement Act of 1937, as amended (7 handled by all handlers during the different cherry products. Remaining U.S.C. 601 et seq.), hereinafter referred representative period of June 1, 2000, amendments pertain to allocation of to as the ‘‘Act,’’ and the applicable rules through May 31, 2001. Board membership; clarification of of practice and procedure governing the Small Business Considerations order provisions relating to exemption formulation of marketing agreements and diversion; release of cherries in the and marketing orders (7 CFR Part 900). Pursuant to the requirements set forth inventory reserve; and the use of crop The notice of hearing contained in the Regulatory Flexibility Act (RFA), estimates other than the official USDA numerous proposals submitted by the AMS has considered the economic crop estimate in developing the Board’s Board, and one proposed by the impact of this action on small entities. marketing policy. The amendments are Agricultural Marketing Service (AMS). Accordingly, AMS has prepared this intended to improve the operation and The Board’s proposals included final regulatory flexibility analysis. functioning of the tart cherry marketing making all districts subject to volume The purpose of the RFA is to fit order program. regulations, rather than only those regulatory actions to the scale of EFFECTIVE DATE: August 9, 2002. districts producing more than 15 business subject to such actions so that FOR FURTHER INFORMATION CONTACT: million pounds per year; making small businesses will not be unduly or Anne M. Dec, Marketing Order shipments of cherry juice and juice disproportionately burdened. Marketing Administration Branch, Fruit and concentrate to certain markets eligible to orders and amendments thereto are Vegetable Programs, AMS, USDA, 1400 receive diversion credit; changing unique in that they are normally Independence Avenue, SW., STOP provisions related to alternate Board brought about through group action of 0237, Washington, DC 20250–0237; members serving for absent members at essentially small entities for their own telephone: (202) 720–2491, or Fax: (202) Board meetings; making all cherry benefit. Thus, both the RFA and the Act 720–8938. Small businesses may request shipments subject to assessments; and are compatible with respect to small information on compliance with this eliminating the requirement that entities. regulation by contacting Jay Guerber, different assessment rates be established Small agricultural producers have Marketing Order Administration for different cherry products. Other been defined by the Small Business Branch, Fruit and Vegetable Programs, amendments proposed by the Board Administration (SBA) (13 CFR 121.201) AMS, USDA, 1400 Independence pertained to allocation of Board as those having annual receipts of less Avenue, SW., STOP 0237, Washington, membership; clarification of order than $750,000. Small agricultural DC 20250–0237; telephone (202) 720– provisions relating to exemption and service firms, which include handlers 2491; Fax (202) 720–8938. diversion; release of cherries in the regulated under the order, are defined as
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those with annual receipts of less than Dividing total production by the provisions of the order by eliminating $5,000,000. number of growers, the average grower cross references among those provisions Interested persons were invited to produces about 332,500 pounds of and adding general rulemaking present evidence at the hearing on the cherries annually. With grower returns authority to implement handler probable regulatory and informational of about 20 cents per pound, average diversion provisions; (5) To add specific impact of the proposed amendments on revenues would be $66,500. Thus, it is authority to the order to exempt or small businesses. The record indicates reasonable to conclude that most tart provide diversion credit for cherries that these amendments could result in cherry growers are small entities. exported to designated markets; (6) To additional regulatory requirements At 20 cents per pound, a grower provide diversion credit for shipments being imposed on some tart cherry would have to produce 2.5 million of cherry juice and juice concentrate to handlers, while regulatory burdens on pounds of cherries to reach the $500,000 established diversion markets; (7) To other handlers could be reduced. receipt threshold to qualify as a large add specific authority for the transfer of Overall benefits are expected to exceed producing entity under the SBA’s diversion credits among handlers; (8) To costs. definition that was in effect at the time provide that grower diversions that take The record indicates that there are of the hearing. The evidence of record place in districts that are subsequently about 40 handlers regulated under is that only 13 growers (or less than 2 exempt from volume regulation qualify Marketing Order No. 930. In addition, percent of the total number of growers) for diversion credit; (9) To allow there are about 905 producers of tart produced 2.5 million pounds or more cherries in the inventory reserve to be cherries in the production area. during the 1999–2000 crop year. Five of released for use in only certain The record indicates that of the 41 tart those growers (or 38 percent) were designated markets; (10) To specify that cherry handlers operating during the located in Northern Michigan (district 1) the 10-percent reserve release for market 1999–2000 season, 7 had processed and three operated (23 percent) in expansion only applies during years tonnage of more than 10 million pounds Central Michigan (district 2). The when volume regulations are in effect; (or 17 percent of all handlers); 8 had remaining five growers in this category (11) To require assessments to be paid between 5.1 and 10 million pounds (20 (38 percent) were distributed among the on all cherries handled, except for those percent); 12 had between 2.1 and 5 remaining seven districts. The that are diverted by destruction at a million pounds (29 percent); and the distribution of large growers is thus in handler’s facility and those covered by remaining 14 had less than 2 million proportion to the overall distribution of a grower diversion certificate; (12) To pounds of processed tonnage (34 growers among the districts. eliminate the requirement that percent). Handlers accounting for 10 A large majority (more than 98 differential assessment rates be million pounds or more would be percent) of the tart cherry growers falls established for various cherry products classified as large businesses. Thus, a into the previous SBA definition of a based on the relative market values of majority of tart cherry handlers could be small entity (annual receipts of less than such products; and (13) To allow the classified as small entities. $500,000); it is reasonable to assume Board to use an estimate other than the Twenty handlers are located in that an even greater majority qualify official USDA crop estimate in Michigan—nine in district 1 (Northern under the current SBA definition of a developing its marketing policy. Michigan), eight in district 2 (Central small grower (annual receipts of less Michigan) and three in district 3 than $750,000). Industry Background (Southern Michigan). Of the remaining During the 3 years 1999 to 2001, the 21 handlers, 4 are in district 4 (New average grower accounted for about The principal demand for tart cherries York), 3 are in district 5 (Oregon), 1 is 333,000 pounds of cherries. By district, is in the form of processed products. in district 5 (Pennsylvania), 3 are in average grower size varies considerably. Tart cherries are dried, frozen, canned, district 7 (Utah), 5 are in district 8 The average grower in Washington juiced, and pureed. During the period (Washington), and 5 are in district 9 accounts for roughly 1,159,000 pounds 1995–96 through 1999–00, (Wisconsin). Many handlers process of cherries. Next in size is Central approximately 91 percent of the U.S. cherries grown in more than one Michigan with 530,000 pounds, tart cherry crop, or 280.5 million district. followed by Utah (518,000 pounds), pounds, was processed annually. Of the Of the 904 growers who produced Northern Michigan (360,000 pounds), 280.5 million pounds of tart cherries cherries in 1999, 368 were in Northern New York (191,000 pounds), processed, 62 percent was frozen, 29 Michigan (41 percent), 149 were in Pennsylvania (179,000 pounds), percent was canned, and 9 percent was Southern Michigan (16 percent), 129 Southern Michigan (177,000 pounds), utilized for juice. percent in Central Michigan (14 Wisconsin (155,000 pounds) and Based on National Agricultural percent), 84 in New York (9 percent), 65 Oregon (141,000 pounds). Statistics Service data, acreage in the in Wisconsin (7 percent), 38 in Utah (4 This action amends the order: (1) To United States devoted to tart cherry percent), 29 in Pennsylvania (3 percent), provide that all districts in the production has been trending 27 in Oregon (3 percent), and 17 in production area with annual production downward. In the ten-year period, Washington (2 percent). in excess of 6 million pounds be subject 1987–88 through 1997–98, the tart During the 3-year period 1999–2001, to volume regulation rather than only cherry area decreased from 50,050 acres, production of tart cherries averaged those with annual production in excess to less than 40,000 acres. In 1999–00, 300.6 million pounds. By district, of 15 million pounds; (2) To allocate approximately 90 percent of domestic Northern Michigan accounted for 44.0 Board membership among districts tart cherry acreage was located in four percent of the production, followed by based on levels of production and make States: Michigan, New York, Utah and Central Michigan with 22.4 percent, a corresponding change in quorum Wisconsin. Michigan leads the nation in Southern Michigan with 8.7 percent, requirements; (3) To authorize a Board tart cherry acreage with 70 percent of Utah and Washington each with 6.6 member to designate any alternate to the total. Michigan produces about 75 percent, New York with 5.3 percent, serve for that member at a Board percent of the U.S. tart cherry crop each Wisconsin with 3.4 percent, meeting in the event the member and year. In 1999–00, tart cherry acreage in Pennsylvania with 1.7 percent, and his or her alternate are unavailable; (4) Michigan decreased to 28,100 acres Oregon with 1.3 percent. To clarify the diversion and exemption from 28,400 acres the previous year.
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In crop years 1987–88 through 1999– service outlets minus per-unit production levels, the cost of 00, tart cherry production ranged from processing and distribution costs production is reported to be $0.20 to a high of 396.0 million pounds in 1995– incurred in transforming the raw farm $0.22 per pound. Thus, the estimated 96 to a low of 189.9 million pounds in commodity into a product available to $0.20 per pound received by growers is 1991–92. The price per pound received consumers. These costs comprise what close to the cost of production. The use by tart cherry growers ranged from a low is known as the ‘‘marketing margin.’’ of volume controls is believed to have of 7.3 cents in 1987 to a high of 46.4 The supply of tart cherries, by little or no effect on consumer prices cents in 1991. These problems of wide contrast, varies greatly. The magnitude and will not result in fewer retail sales supply and price fluctuations in the tart of annual fluctuations in tart cherry or sales to food service outlets. cherry industry are national in scope supplies is one of the most pronounced Without the use of volume controls, and impact. Growers testified during the for any agricultural commodity in the the industry could be expected to order promulgation process that the United States. In addition, since most continue to build large amounts of prices they received often did not come tart cherries are either canned or frozen, unwanted inventories. These close to covering the costs of they can be stored and carried over from inventories have a depressing effect on production. They also testified that year-to-year. This creates substantial grower prices. The use of volume production costs for most growers range coordination and marketing problems. controls allows the industry to supply between 20 and 22 cents per pound, The supply and demand for tart cherries the primary markets while avoiding the which is well above average prices are rarely in equilibrium. As a result, disastrous results of oversupplying received during the 1993–1995 seasons. grower prices fluctuate widely, these markets. In addition, through The industry demonstrated a need for reflecting the large swings in annual volume control, the industry has an an order during the promulgation supplies. additional supply of cherries that can be process of the marketing order because In an effort to stabilize prices, the tart used to develop secondary markets such large variations in annual tart cherry cherry industry uses the volume control as exports and the development of new supplies tend to lead to fluctuations in mechanisms under the authority of the products. prices and disorderly marketing. As a Federal marketing order. This authority The free and restricted percentages result of these fluctuations in supply allows the industry to set free and established under the order release the and price, growers realize less income. restricted percentages. optimum supply and apply uniformly to The industry chose a volume control The primary purpose of setting all regulated handlers in the industry, marketing order to even out these wide restricted percentages is an attempt to regardless of size. There are no known variations in supply and improve bring supply and demand into balance. additional costs incurred by small returns to growers. During the If the primary market is oversupplied handlers that are not incurred by large promulgation process, proponents with cherries, grower prices decline handlers. The stabilizing effects of the testified that small growers and substantially. percentages impact all handlers processors would have the most to gain The tart cherry sector uses an positively by helping them maintain from implementation of a marketing industry-wide storage program as a and expand markets, despite seasonal order because many such growers and supplemental coordinating mechanism supply fluctuations. Likewise, price handlers had been going out of business under the Federal marketing order. The stability positively impacts all due to low tart cherry prices. They also primary purpose of the storage program producers by allowing them to better testified that, since an order would help is to warehouse supplies in large crop anticipate the revenues their tart increase grower returns, this should years in order to supplement supplies in cherries will generate. increase the buffer between business short crop years. The storage approach While the benefits resulting from success and failure because small is feasible because the increase in operation of the marketing order growers and handlers tend to be less price—when moving from a large crop program are difficult to quantify, the capitalized than larger growers and to a short crop year—more than offsets stabilizing effects of volume regulations handlers. the cost for storage, interest, and impact both small and large handlers Aggregate demand for tart cherries handling of the stored cherries. positively by helping them maintain and tart cherry products tends to be The price that growers receive for markets even though tart cherry relatively stable from year-to-year. their crop is largely determined by the supplies fluctuate widely from season to Similarly, prices at the retail level show total production volume and carry-in season. minimal variation. Consumer prices in inventories. The Federal marketing grocery stores, and particularly in food order permits the industry to exercise Districts Subject to Volume Regulation service markets, largely do not reflect supply control provisions, which allow The order currently covers cherries fluctuations in cherry supplies. Retail for the establishment of free and grown in Michigan, New York, demand is assumed to be highly restricted percentages for the primary Pennsylvania, Oregon, Utah, inelastic which indicates that price market, and a storage program. The Washington and Wisconsin. For reductions do not result in large establishment of restricted percentages purposes of regulation and allocation of increases in the quantity demanded. impacts the production to be marketed Board membership, the seven-State Most tart cherries are sold to food in the primary market, while the storage production area is divided into nine service outlets and to consumers as pie program has an impact on the volume districts. Michigan, the largest filling; frozen cherries are sold as an of unsold inventories. producing State, is divided into three ingredient to manufacturers of pies and The volume control mechanism used districts—Northern Michigan, Central cherry desserts. Juice and dried cherries by the cherry industry results in Michigan, and Southern Michigan. Each are expanding market outlets for tart decreased shipments to primary of the other States constitutes a single cherries. markets. Without volume control the district. Demand for tart cherries at the farm primary markets (domestic) would A principal feature of the tart cherry level is derived from the demand for tart likely be oversupplied, resulting in low marketing order is supply management cherry products at retail. In general, the grower prices. through the use of volume regulations. farm-level demand for a commodity Recent grower prices have been as Volume regulations are implemented consists of the demand at retail or food high as $0.20 per pound. At current through the establishment of free and
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restricted percentages that are specified markets receive diversion Board’s proposal. Opposition was recommended by the Board and credits which handlers use to fulfill primarily from growers and handlers in implemented by the Department their restricted obligation. Pennsylvania and Oregon. Some through the public rulemaking process. Section 930.52 of the order provides growers and processors in New York These percentages are then applied to that volume regulations only apply to and Washington testified in support of each regulated handler’s acquisitions in cherries grown in districts in which the Board’s proposal, while others were a given season. ‘‘Free market tonnage average annual production of cherries opposed to a change in the 15-million percentage’’ cherries may be marketed over the prior 3 years has exceeded 15 pound threshold. million pounds. Additionally, in any outlet. ‘‘Restricted percentage’’ The record shows that production cherries must be withheld from the paragraph (d) of § 930.52 provides that any district producing a crop which is levels in the nine districts vary primary market. This can be less than 50 percent of the average considerably, with Northern Michigan accomplished by either placing the annual processed production in that consistently producing the largest cherries into handlers’ inventory district in the previous 5 years would be volume of tart cherries, and Oregon the reserves or by diverting them. Cherries exempt from any volume regulation in least. The following table shows tart may be diverted by leaving them the year of the short crop. cherry production by district for the 5 unharvested in the orchard or by The Board proposed eliminating the years 1997 through 2001 (all figures are destruction at the processing plant; or 15-million pound threshold, and in million pound units). The data for the by using them in secondary markets. subjecting all 9 districts to volume first 3 years (1997 through 1999) were These secondary markets include regulation. No proposal was made to introduced on the hearing record. The exports (except to Canada or Mexico), change the provision of § 930.52(d). statistics for 2000 and 2001 became new products, new market Most witnesses at the hearing available subsequent to the hearing and development, experimental purposes, addressed this issue. Growers and may be found in reports compiled by and charitable contributions. Shipments processors in Michigan, Utah and the Board and retained by the of restricted percentage cherries to these Wisconsin testified in support of the Department.
District 1997 1998 1999 2000 2001
No. Michigan ...... 140.7 187.8 107.7 107.5 182.0 Central Mich...... 68.7 58.2 47.2 70.8 84.0 So. Michigan ...... 14.4 17.4 28.6 20.3 30.1 New York ...... 13.3 13.1 16.9 16.5 14.6 Oregon ...... 2.4 2.2 5.1 4.0 2.2 Pennsylvania ...... 5.6 4.0 6.9 5.3 3.5 Utah ...... 17.5 32.5 14.5 32.5 12.0 Washington ...... 11.8 13.7 16.6 17.4 25.2 Wisconsin ...... 11.2 14.7 7.9 9.7 12.7
Total ...... 285.4 343.6 251.4 284.0 366.3
Using the above figures, the following 3-year averages (used to determine which districts are subject to volume regulation) were computed.
Average District 1997–99 1998–00 1999–01
No. Michigan ...... 145.4 134.3 132.4 Central Mich...... 58.0 58.7 67.3 So. Michigan ...... 20.1 22.1 26.3 New York ...... 14.4 15.5 16.0 Oregon ...... 3.2 3.8 3.8 Pennsylvania ...... 5.5 5.4 5.2 Utah ...... 21.4 26.5 19.7 Washington ...... 14.0 15.9 19.7 Wisconsin ...... 11.3 10.8 10.1
Total ...... 293.5 293.0 300.6
The above table shows that for each The order became effective in 1996, pounds. These five districts accounted of the 3-year periods, the three Michigan based on a series of hearings that began for 92 percent of U.S. production in districts and Utah consistently exceeded in December 1993 and ended in January 1995, and 89 percent of U.S. production the 15-million pound threshold. 1995. Proponents of the order supported in 1996. Production in Oregon, Pennsylvania and the 15-million pound threshold as a Proponents of the order also Wisconsin was below the threshold in criterion for determining which districts supported a provision that a district not all periods, while New York and would be subject to volume regulation. meeting the 15-million pound threshold Washington each exceeded the 15- At the time the order was implemented, would become covered by regulation million pound threshold in two out of the three Michigan districts, New York when it reached a production level three of the periods. and Utah had average annual equal to 150 percent of its average production in excess of 15 million annual production during the period
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1989 through 1992. The purpose of this contributing to the effort to reduce not a critical amount when compared to provision was to catch surges in surplus supplies. the total volume of tart cherries production that occasionally occur in After considering the record evidence produced. in support of this provision, the order to more equitably distribute the Several witnesses at the amendatory Department decided not to include it in burden of supply control. It was also to hearing suggested that, had the 150 make sure that when smaller producing the order. The provision, as proposed, seemed to be overly complicated to percent rule been incorporated into the districts expand production capacity, initial order, the amendment to they do not take advantage of the system administer and would possibly be inequitable to tart cherry growers and eliminate the 15-million pound and become free riders. This was handlers. In addition, proponents threshold would now be unnecessary. intended to prevent a district from indicated that it was not their intent to The following table shows production benefitting from the program without regulate States with small production in the initially unregulated districts volumes since their aggregate volume is during the period 1989 through 1992.
1989 1990 1991 1992 Average 150%
Pennsylvania ...... 6.0 3.5 11.5 6.0 6.7 10.0 Wisconsin ...... 7.6 4.8 7.8 9.1 7.3 10.9 Oregon ...... 15.0 7.5 7.5 9.5 9.9 14.8 Washington ...... 6.4 7.4 9.8 12.8 9.1 13.6
The record shows that neither Wisconsin during those years brings the in Oregon, Pennsylvania and Wisconsin Pennsylvania nor Oregon has reached a percentages in the 3 years 1999 to 2001 was likely to remain below 15 million level of production equal to 150 percent to 8 percent, 7 percent and 5 percent pounds. of their production during this base respectively. The conclusion by proponents of the period. Wisconsin first exceeded With respect to New York, witnesses Board’s proposal was that with the order production of 10.9 million pounds (150 concurred that with the 15-million as currently written, a greater percent of its average annual production pound threshold, that district would in the base period) in 1997, and likely be subject to regulation only proportion of U.S. production could Washington exceeded production of about 50 percent of the time in the become unregulated. This would dilute 13.6 million pounds (150 percent of its future. That is because production in the effectiveness of the program and, production during the base period) in that State is close to the threshold, more important, increase the amount of 1998. ranging from 13.1 to 16.9 million regulation imposed on the remaining If the order were implemented as pounds over the last 5 seasons. Concern regulated districts. proposed by the proponents during the was also expressed that Utah could fall Since the order became operational, promulgation, all districts but below the established threshold in volume regulations have been Pennsylvania and Oregon would upcoming years and become implemented for four crop years—1997, currently be regulated. As it is, for the unregulated. Washington was expected 1998, 2000, and 2001. No regulation was 2001 season, Wisconsin is also to continue to increase its production deemed necessary for the 1999 crop. unregulated. In the 1999 crop year, and become subject to regulation in the The following table shows the level of Pennsylvania and Oregon together near future. (Washington did exceed the regulation implemented in 1997, 1998, accounted for 4.9 percent of the U.S. tart threshold during the period 1998–2000, cherry crop. In 2000, they accounted for and was subject to the volume 2000 and 2001. With the exception of 3.3 percent of the total, and in 2001, regulation implemented for the 2001 the restricted percentages, all figures are only 1.6 percent. Adding production in crop). Witnesses agreed that production in million pound units.
1997 1998 2000 2001
U.S. Crop ...... 285.0 344.0 284.0 366.3 Carry-in ...... 70.0 38.8 87.0 39.0 Total Available Supply ...... 355.0 382.8 371.0 405.3 3-Year Average Sales ...... 269.9 288.6 277.0 217.0 Target Carry-out ...... 0.0 0.0 0.0 0.0 Economic Adjustment ...... (23.0) (31.4) (22.0) 50.0 Optimum Supply ...... 246.9 257.2 257.0 267.0 Surplus ...... 108.1 125.6 116.0 138.3 Production in Regulated ...... Districts ...... 240.0 309.0 232.0 335.9 Restricted Percentage ...... 45 41 50 41
If all districts had been subject to have been 37 percent rather than 41 Utah (12 million pounds) was less than regulation, the surplus would have been percent; the restricted percentage in 50 percent of its prior 5-year average, so divided by total production rather than 2000 would have been 41 percent rather that district was unregulated in the 2001 by production in the regulated districts. than 50 percent; and the restricted crop year. Had this been done, the restricted percentage in 2001 would have been 39 One of the primary arguments made percentage in 1997 would have been 38 percent instead of 41 percent. The by supporters of the Board’s proposed percent rather than 45 percent; the difference is relatively small for the amendment was that of fairness. These restricted percentage in 1998 would 2001 crop year because production in witnesses stated that all tart cherry
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growers benefit from the operation of For purposes of this analysis, it was was used for reserve cherries because of the order, but the burden of regulation assumed that the grower in the non- the many uncertainties as to what those is borne only by those in the regulated regulated district could sell all of his or cherries might return (for example, the districts. They testified that revenues her production in primary market timing of their release and prevailing received by growers of similar size outlets. In the case of the grower in the prices that might exist). Export sales varied considerably due solely to where regulated district, it was assumed that were estimated by industry leaders to a particular grower’s farm was located. his or her crop utilization would be average about 9 cents per pound in They concluded that no growers in the allocated in accordance with the overall 1998. For new product development, an regulated districts receive gross returns industry averages in 1998. For example, estimate of 11 cents per pound was equal to those received in non-regulated about 3 percent of the tonnage would be used, taking into account the districts. placed in the inventory reserve, 11 considerable variation of returns for To illustrate, an agricultural percent would be exported, and 13 new cherry products depending upon economist from Michigan State percent would be diverted through non- University (who was a witness testifying harvest. the processor and the circumstances in support of the Board’s amendment) Prices for free market cherries were surrounding the new products. For non- presented an analysis of the economic USDA estimates of 14 cents per pound harvested cherries, a savings of 3 cents impacts of the program on growers in for the regulated districts and 13.5 cents per pound in variable costs (e.g., regulated versus non-regulated districts. per pound for the non-regulated harvesting and trucking) was used. This analysis compared gross farm districts. Finally, no return was recorded for income for growers of the same size in Returns for market growth factor cherries diverted through at-plant regulated and non-regulated districts. It cherries were expected to be somewhat diversions. assumed a grower who produces 200 lower (12 cents per pound) because The income for a grower in a tons on 40 acres, or 10,000 pounds per these cherries tend to be sold later in the regulated district, based on the analysis acre. Estimates of likely returns for the year, or perhaps in a subsequent year. A of the witness, is shown below: 1998 crop were used. conservative figure of 6 cents per pound
Lbs. Percent Price Income
Open Market ...... 240,000 60 $0.14 $33,600 Market Growth ...... 36,000 9 0.12 4,320 Inventory Reserve ...... 12,000 3 0.06 720 Exports ...... 44,000 11 0.09 3,960 New Products ...... 8,000 2 0.11 880 Non-Harvest ...... 52,000 13 0.03 1,560 At-Plant Diversion ...... 8,000 2 0.00 0
Total Production ...... 400,000 100 ...... 45,040
For a grower in a non-regulated district, income was estimated as follows:
Lbs. Percent Price Income
Open Market ...... 400,000 100 $0.135 $54,000
In summary, the grower in the non- regulation because yields in those provided total production of 96,000 regulated district would receive districts are so low compared to those pounds and revenues of only $2,960. revenues of $54,000, about 20 percent in regulated districts. Had the second grower been subject to more than the grower in the regulated One witness used the analysis given volume regulation, his or her revenues district. Both growers would benefit above, but used different yields per acre. would have been even lower. from any strengthening of prices For the grower in a regulated district, he The following table shows yields per through the use of volume regulations. used 40 acres with a yield of 7,400 acre in the States covered by the order Opposition to the Board’s proposal pounds per acre. This resulted in total for the years 1997 through 2000. The was expressed primarily by industry production for that grower of 296,000 annual yields are from USDA statistics, members in unregulated districts. One pounds and revenues of about $33,330. while the average yield for Washington of the arguments made was that growers For the grower in a non-regulated for the 4-year period was obtained from in these districts would be much more district, he again used 40 acres, but used a processor survey in that State. All severely impacted by a volume a yield of 2,400 pounds per acre. This figures are in pounds per acre.
State 1997 1998 1999 2000 Average
Utah ...... 6,250 11,790 5,360 11,800 8,800 Michigan ...... 7,920 9,260 6,580 7,020 7,695 New York...... 5,580 5,380 6,850 7,550 6,340 Pennsylvania ...... 5,420 3,500 6,000 5,080 5,000 Wisconsin ...... 4,670 6,580 4,350 4,350 4,988 Oregon ...... 2,850 2,150 4,080 3,380 3,115 Washington ...... NA NA NA NA 14,000
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The above table shows that average This witness further went on to state contribute to a grower’s yield per acre. yields do vary among the cherry that variations in yields within a These include the density of trees producing States. It also shows that geographic district exceed the variations planted per acre, the age of the trees, yields within the States vary among the districts. He gave a personal and cultural practices undertaken by considerably from year to year. example. The witness is a processor in individual growers to care for their A witness supporting the Board’s Central Michigan. His organization orchards. However, the table showing proposal stated that the use of average deals with about 20 growers. Yields for yields per acre does indicate that there yields for an entire State is misleading. those growers in 1998 ranged from 1,000 is a definite difference in yields among Michigan, for example, has a 4-year to 15,000 pounds per acre. the various States. average yield of about 7,600 pounds per Therefore, it is reasonable to assume Regarding the age of trees, the record acre. The average yields for the three that the State in which a grower farms indicates that tart cherry trees start districts that comprise Michigan are is not necessarily a good indicator of an losing optimum productivity at about 20 quite different. In Northern Michigan, individual grower’s potential yield per years. Growers testified that they yields averaged about 13,000 pounds acre. While weather conditions affect typically replant their trees when they per acre, while in Central Michigan they yields (e.g., susceptibility to freezes), are between 20 and 25 years old. The averaged 5,000 pounds per acre and in weather conditions can vary as much following table shows the percentage of Southern Michigan only 4,000 pounds within a district as between districts. acreage in each State that contained per acre. Also, there are many other variables that older trees in 1998.
Percent acre- State age 21–25 Percent acre- Total percent years age 26+years 21+ years
Michigan ...... 15 6 21 Utah ...... 8 1 9 New York ...... 24 7 31 Wisconsin ...... 20 15 35 Washington ...... 18 5 23 Pennsylvania ...... 30 6 36 Oregon ...... 30 48 78
Oregon, consistently the lowest but the largest decline in total number entire U.S. tart cherry industry. The yielding producing district, has of acres (a reduction of 5,140 acres). short-run benefits arise when surplus substantially more older trees planted The record evidence is that acreage in supplies are reduced, and market prices than other States. Because older trees all districts have declined over the past (due to the inelastic demand for tart tend to produce less fruit, and Oregon decade. Decisions to reduce acreage cherries) rise to levels that are closer to has a high percentage of older trees, this were made by individual growers based growers’ typical costs of production. is likely to explain in part why Oregon’s on their assessments of the best use of Longer range gains are also expected yields are, on average, lower than in their land. While opportunities for from the encouragement to expand other areas. Pennsylvania had the alternative land uses vary somewhat by market demand through new market second largest percentage of older trees. State, they also vary within the States. and new product development. Another argument against eliminating In determining whether a surplus of The aggregate short-run benefits to the the 15 million-pound threshold was that tart cherries exists, total U.S. supplies industry’s growers from the use of unregulated districts like Oregon and are compared to total demand in the volume regulation in 1997 and 1998 have been estimated to be at least $20 Pennsylvania had already ‘‘done their primary market. Production in each million per year. This has resulted part’’ to reduce the surplus of tart district contributes to the total supply, because the smaller market surpluses cherries by reducing their acreage. Any and thus to any surplus that may exist. have resulted in stronger grower prices continued surpluses were attributable to However, Michigan accounts for such a large proportion of the total, that which are estimated to be 7 to 9 cents the major producing State, Michigan. It production in that State alone can per pound greater during those years. was therefore argued that State should warrant a volume regulation. The record shows that tart cherries, bear the consequences of its actions and Additionally, the evidence is that regardless of where grown in the U.S., not impose its problems on the smaller production in the smallest producing are sold into markets that are essentially districts. State—Oregon—is negatively correlated national markets with similar, closely The record shows that U.S. tart cherry to production in Michigan. That is, interrelated prices throughout the bearing acreage had declined from a when production in Michigan is high, country. Therefore, the somewhat high of 50,050 acres in 1987, to 39,880 production in Oregon is generally low. higher prices that have resulted from the acres in 2000. All producing States Thus, it is likely that with elimination order’s supply management features recorded acreage reductions during this of the production threshold, Oregon have accrued to all tart cherry growers period. On a percentage basis, the would be regulated in years when its in the United States. greatest reduction was in New York production is below normal. This could However, the history of the order and (down 52 percent), followed by Oregon result in a heavier burden being placed the evidence on the record support the (down 36 percent), Utah (down 30 on growers in Oregon as a result of premise that the smallest producing percent), Pennsylvania (down 25 volume regulation than is true in the districts should not be subject to volume percent), Washington (down 24 other producing districts. regulation under the tart cherry percent), and Wisconsin (down 17 Additionally, the record shows that marketing order. Further, there is an percent). Michigan had the lowest the benefits of the supply management argument to be made for reducing the percentage decrease (down 15 percent), provisions of the order accrue to the current 15-million pound threshold.
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After considering all the testimony and locally administer the program. Among expenses are funded through handler other record evidence, the Department the Board’s responsibilities is assessments, all handlers would be has concluded that a threshold of 6 recommending regulations to impacted by slightly higher million pounds would be more implement marketing order authorities. assessments. reasonable. This would result in all The Board consists of 19 members: 18 However, these slight cost increases districts that have increased production tart cherry growers and handlers, and 1 will be offset by better industry over the past decade being subject to public member. representation on the Board. regulation, consistent with the original For purposes of Board representation Reallocating membership on an annual intent of the proponents of the order. (among other things), the production basis will allow membership to more The record shows that the two area is divided into nine districts. Each closely reflect changing production districts that would not be regulated district is allocated one to four Board trends in the industry. This should lead under a 6-million pound threshold— members. Six of the nine current to better decision making by a more Oregon and Pennsylvania—produce districts, including all districts subject representative administrative body. insignificant volumes of tart cherries to volume regulation, are allocated more compared with total U.S. production. than one member. Those five districts Designation of a Temporary Alternate Production in these districts has not are Northern Michigan (four members), to Act for an Absent Board Member grown, nor is it anticipated that it will Central Michigan (three members), in the future. The evidence supports Southern Michigan (two members), New As previously discussed, the Board is claims that these smaller producing York (two members), Utah (two composed of 19 members, with the districts would be more impacted by a members), and Washington (two industry members allocated among nine volume regulation than other districts. members). The three districts with one districts. Each Board member has an Costs may be higher to growers in those member each are Oregon, Pennsylvania, alternate who has the same areas than in others because they tend and Wisconsin. The nineteenth Board qualifications as the member. Industry to have lower yields. Also, processing member is selected to represent the Board members and alternates are capacity in those districts tends to be general public, and need not be from nominated by their peers in the district limited, supporting the argument that any specific area. they represent. production is unlikely to increase. In Section 930.20 further provides that if Section 930.28 of the order provides addition, processors in the smaller a district with a single member becomes that if a Board member is absent from producing districts testified that they subject to volume regulation, that a meeting, his or her alternate will act would have to shut down their facilities district will get a second Board member in that member’s place. There is no if those districts were subject to volume position. There is no specific provision for a situation in which both regulation because they would not be requirement that a district must lose a the member and that member’s alternate able to get sufficient supplies of cherries seat if it falls below the 15 million are unavailable. to run their operations efficiently. If the pound threshold and is no longer The Board proposed changing smaller producing districts do increase subject to regulation. § 930.28 as follows. If both a member their production, they would become The Board proposed amending and his or her alternate cannot attend a regulated once they reach the 6-million § 930.20 to provide that membership for Board meeting, the member or the pound threshold. each district be based on the average alternate (in that order) could designate The proponent evidence showed that annual production for that district over another alternate member to act in their while volume regulations have helped the previous 3 years. Districts with up stead. If neither the member nor the strengthen overall cherry prices, there to and including 10 million pounds alternate chooses to make such a are costs involved with complying with would be represented by one Board designation, the Board’s chairperson these regulations. Such costs include member; districts with more than 10 would be free to do so (with the reduced returns for cherries that cannot and up to and including 40 million concurrence of a majority of present be sold in primary markets. Imposing pounds would have two members; members). those costs on the smallest producing districts with more than 40 and up to districts would not result in any higher and including 80 million pounds would The record supports the concept of overall price for tart cherries. have three members; and districts with allowing more flexibility for alternates Additionally, regulating the two more than 80 million pounds would to fill in for absent Board members. smallest States would not reduce the have four members. However, the Department revised the volume of regulation imposed on The record shows that this Board’s proposal. A Board member can cherries grown in the other States amendment could result in a larger designate an additional alternate to act because of their low levels of number of Board members. Using in his or her place when that member production. In the four years that average annual production figures for and that member’s alternate are unable restricted percentages have been the years 1999 through 2001, one to attend a Board meeting. However, if recommended by the Board, the district (Wisconsin) would have been the member chooses not to name an percentage would not have changed at entitled to an additional Board member additional alternate, that decision does all in two of four years (by not including position for the term of office that began not then revert to the Board or its Pennsylvania and Oregon) and would July 1, 2000. Thus, the total number of chairperson. have been marginally reduced in the Board members under this proposed This amendment will allow more other two years. Thus, it appears that amendment would have increased to 20 flexibility for Board members who the costs of regulating these minor members (versus 19 members under the cannot attend a Board meeting. It should districts would not be outweighed by provisions currently in effect). also encourage a full contingency of any accrued benefits. An increase in the number of Board voting members at Board meetings, members would result in a marginal while maintaining adequate Allocation of Board Membership increase in Board expenses. This is representation among the districts Section 930.20 of the order provides because the Board reimburses members comprising the production area. No for a Cherry Industry Administrative for costs incurred in attending Board additional costs should be incurred as a Board, appointed by the Secretary to meetings (travel costs, etc.). Since Board result of this change.
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Clarification of Diversion and difference. Assume a restricted to export markets, excluding Canada Exemption Provisions percentage of 20 percent has been and Mexico. Canada and Mexico were As previously discussed, a primary established, a regulated handler not included because of their proximity feature of the tart cherry marketing acquires 10 million pounds of cherries, to the United States and concern about order is supply management through the and that handler uses 2 million pounds compliance matters. The record indicates that allowing establishment of free and restricted of those cherries for new market export shipments to receive diversion percentages. These percentages are development. This handler would have credits resulted in stronger export sales. applied to each regulated handler’s a restricted obligation of 2 million Exports in 1997–98 were unusually high acquisitions of cherries. Free percentage pounds of cherries (20 percent of the 10 million pounds of cherries acquired). (around 50 million pounds), although cherries may be sold in any market, If cherries used for new market they declined during the next season to while restricted percentage cherries development were eligible for diversion 34 million pounds. Witnesses stated must be diverted by a grower or handler credit, this handler would have met his that the tart cherry industry needs to or placed in the inventory reserve. or her restricted obligation by using 2 expand demand for its product through, Section 930.58 of the order provides million pounds for that purpose. The among other things, development of for grower diversions. Under this handler could thus market the new markets. section, growers may receive diversion remaining 8 million pounds of his or The Board proposed adding specific certificates for cherries used for animal her cherries as free percentage cherries authority to §§ 930.59 and 930.62 to feed and cherries left unharvested in the in any outlet he or she chose. If, allow diversion credits or exemptions orchard. Growers may also receive however, cherries used for new market for such export markets as diversion certificates for ‘‘uses exempt development were exempt from recommended by the Board and under § 930.62.’’ A grower’s diversion regulation, the restricted percentage approved by the Secretary. This is a certificates can then be transferred to would be applied to that handler’s total clarifying change only. It imposes no that grower’s handler and used to meet acquisitions (10 million pounds), less new or different regulatory requirements the handler’s restricted obligation. the volume of cherries exempt from on the tart cherry industry. Section 930.59 provides for handler regulation (2 million pounds). Thus, diversions. Handlers may receive Diversion Credit for Juice and Juice this handler would have a restricted Concentrate diversion credits for cherries used in obligation of 1.6 million pounds (20 such forms as the Board may designate, percent of 8 million pounds), which Section 930.59 of the order relates to with approval of USDA. These forms would have to be diverted in forms how handlers may receive diversion may include destruction at the handler’s approved by the Board as eligible for credits to offset their restricted facility; use in Board approved food diversion credit. obligations. Paragraph (b) of that section banks or other approved charitable Cross references between §§ 930.59 states that diversion may not be organizations; acquisition of grower and 930.62 have proved to be confusing. accomplished by converting cherries diversion certificates; and uses exempt Thus, these sections are amended by into juice or juice concentrate. under § 930.62. Handlers desiring to use deleting those cross references. Also, The Board recommended that the the first three forms must notify the uses listed under § 930.62 as possible order be amended by deleting the Board prior to diverting cherries. Use of exempt uses are being listed under prohibition in § 930.59 (b) that the fourth form requires application to § 930.59 as possible uses eligible for shipments of cherry juice and juice and approval by the Board prior to handler diversion credit. Rulemaking concentrate to approved diversion diversion. will be required to designate whether a outlets be eligible for diversion credit. Section 930.62 provides that certain particular use would be exempt from The record indicates that in the cherries may be exempt from volume regulation or would constitute an promulgation proceeding, handlers from regulation upon Board recommendation approved diversion outlet. Such Oregon and Washington were concerned and USDA approval. Such cherries rulemaking would be based on Board that juice concentrate could be would also be exempt from assessment recommendations, following its established as a use eligible for obligations and any established quality assessment of the impact exemptions or diversion credit. Those handlers standards. Section 930.62 currently diversions would have on the tart cherry indicated that they processed all or a provides that exemptions may be industry. majority of their cherries into juice provided for cherries diverted in This amendment is a clarification of concentrate. Cherries produced in that accordance with § 930.59 (Handler the current order and its operation. It area of the country have a high brix diversion privilege); used for new does not introduce new or different (sugar content) level desirable for juice product and new market development; concepts. To the extent that it makes the concentrate. Concern was expressed that or used for experimental purposes or for order easier for growers and handlers to if the Board decided to allow diversion any other use designated by the Board, understand, it should be of benefit to credit for juice concentrate, an increase including cherries processed into the industry. in the volume of juice in the products for markets for which less than marketplace and an accompanying 5 percent of the preceding 5-year Exemption or Diversion Credit for reduction in juice prices could result. average production of cherries was Export Shipments This would unduly harm the industry in utilized. As discussed in the previous material the Washington and Oregon. USDA The record indicates that the industry issue, §§ 930.59 and 930.62 provide for therefore inserted the provision to supports continuation of both the handler diversions and exemptions, prohibit the use of juice or juice authority to exempt certain cherries respectively. Certain uses of cherries are concentrate for diversion credit. from regulation, and the authority to listed as eligible for diversion credit or However, the use of juice and juice provide diversion credits for cherries exemptions. Under the authority in concentrate for export was allowed used for certain purposes. The these sections (specifically, that for under the exemption provisions of the application of each provision is market development), diversion credits order for the 1997–98 season. The 1997– different, however. An example have been made available to handlers 98 season was the first season of provided at the hearing illustrates the during recent crop years for shipments operation for the cherry order, and its
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provisions were new to the industry and could not export juice concentrate in a exported. For these reasons, the Board complex to administer. Handlers way that was economically feasible. unanimously recommended suspension unfamiliar with order’s diversion Some processors exported raw juice of the prohibition on receiving diversion provisions had exported or contracted to stock to Europe so the raw stock could credit for exports of cherry juice and export tart cherry juice or juice be juiced overseas. This meant that the juice concentrate. This suspension concentrate to eligible countries with added value of converting the stock to became effective August 1, 2001 [66 FR the intention of applying for and juice concentrate was lost to U.S. 39409, July 31, 2001]. receiving diversion certificates for those processors. It also meant higher freight An additional benefit of allowing exports. If those handlers had been costs for the raw product (versus diversion credits for exported juice and prohibited from receiving diversion concentrate). When juice stock was juice concentrate is that it would ensure certificates for those sales, the handlers exported, the freight cost to Europe was that the domestic market is adequately would have incurred severe financial about 10 cents per pound. Growers supplied in short crop years. In years difficulties. Thus, the prohibition received little for cherries exported as when the crop is small, most available against exports of juice and juice raw juice stock, while grower returns for tart cherries will be used to supply concentrate was suspended for the exported juice concentrate were higher value finished products rather 1997–98 season only. positive. than juice concentrate. If the industry The record shows that until 1997, the Further, this restriction resulted in does not have a supply of concentrate in juice market was distressed. One reason shorting the export juice market. reserve, the juice markets, both was that there had been large volumes Witnesses stated that if you are unable domestic and foreign, could go of concentrate produced in the to supply a market consistently, that unsatisfied. In order to have supplies preceding years in the Western United market looks for a more reliable source available in short crop years, there States—volumes that exceeded market of supplies. When a market is lost to the needs to be an incentive to have tart demand. In 1995 particularly, there was U.S. industry for this reason, it is cherries stored as juice concentrate. a very large crop of tart cherries (a difficult to regain. This is particularly Making juice and juice concentrate record 395.6 million pounds), and a detrimental to the tart cherry industry as eligible for diversion credit would large portion of that crop was processed it seeks to expand markets for its heavy create an incentive to produce and store into concentrate. An oversupply supplies of product. concentrate, which would ensure that situation occurred, which led to low As previously indicated, the markets for those products are prices and a large carry-over of prohibition on diversion credits for adequately supplied. It could also result concentrate. juice and juice concentrate was in in fewer cherries being diverted in the Witnesses claimed that the operation response to concerns expressed by the orchard. This would benefit growers of the order has helped address the industry in the Northwest. At the time through enhanced revenues, because cherry oversupply situation, including the order was promulgated, it was they receive more for cherries that are the surplus of juice. Allowing exports of represented that more than 85 percent of processed and sold than for cherries that juice to receive diversion credits in the crop in Washington was processed are diverted in the orchard. 1997–98 was quite successful. The into juice. During recent years, less than This amendment would result in industry exported more than 4 million half of the Washington crop was used additional options for handlers in pounds (raw product equivalent) of for juice. Most of the rest of the crop meeting their restricted obligations juice concentrate that year, comprising was used for 5 + 1 cherries (25 pounds under the order. It should also about 10 percent of total exports of cherries to 5 pounds of sugar). encourage expansion of markets for U.S. qualifying for credit. At 9 cents per Additionally, the record shows that in tart cherry products, which would pound for the raw fruit, growers 1993 there were 7 pitters in the State; by benefit the industry as a whole. It will received about $382,500 in revenue 2000, that number had grown to 20. not adversely impact the sale of juice from these sales. Handlers, whose value- This supports the conclusion that and juice concentrate in primary added component is about $5.00 per processors in Washington are able to markets; in fact, it could tend to gallon (or $.056 per pound), received pack a wider variety of finished strengthen prices in those markets. This $236,000 in revenue. In total, the products. Cherries grown in Washington is because more juice will likely be industry gained at least $618,000 from have increasingly been processed into exported, which would reduce the export sales of juice concentrate in products other than juice and juice supply available in the domestic market. 1997–98. concentrate. Providing diversion credits for Also, production in the State of Handler Transfers of Diversion Credits exports of juice concentrate by handlers Washington has grown, and a number of Section 930.59 of the order provides in the regulated districts encouraged witnesses at the hearing held in early for handler diversion credits. Those more exports of this product. The higher 2000 expressed their belief that diversion credits are used by handlers to levels of exports of concentrate helped Washington would soon produce in meet their restricted obligations. That reduce heavy inventories and reduced excess of 15 million pounds annually provision of the order is silent with the supplies available in the domestic and thus would become subject to respect to the ability of handlers to market. This led to an increase in the volume regulation. In fact, production transfer diversion credits among domestic price for juice concentrate of in Washington for the 3 years 1998 to themselves to meet their restricted about $4.00–$6.00 per gallon. Producers 2000 averaged 15.9 million pounds, and obligations. whose cherries were processed into Washington became subject to volume The Board proposed adding a new concentrate benefitted from the regulation in 2001. It was critical for paragraph (e) to § 930.59 to provide that strengthening of domestic juice prices. handlers in Washington to be able to a handler who acquires diversion In 1998, diversion credits were no receive diversion credits for exports of certificates representing diverted longer authorized for exports of juice juice and juice concentrate. This was cherries during any crop year may and juice concentrate. Witnesses stated particularly true because 5+1 cherries transfer such certificates to another that this hurt the U.S. cherry industry. do not generally sell in export markets handler or handlers. Demand for juice concentrate in Europe because they contain sugar and are thus The record shows that allowing was strong, but domestic processors subject to increased tariffs when transfers of diversion certificates
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provides additional flexibility to tart cherries in a given year, and would Additionally, there may be a situation cherry growers and handlers in meeting want to process and sell a higher in which Handler C’s growers have low program requirements, without percentage of those cherries than his or quality cherries due to adverse growing changing the amount of tart cherries her free percentage would allow. conditions. These growers may choose available to be marketed as free Handler B may be in a situation where to use in-orchard diversions to a greater percentage cherries. This can also result he or she receives more diversion extent than they normally would. in the processing of the highest quality credits than needed because most of that Handler C could wind up with more cherries available in any crop year, handler’s pack is for export. (We are diversion credits than needed and may which would benefit the industry as a assuming that export sales are eligible want to transfer those credits to Handler whole. for diversion credits.) Handler B might A. A simple example to illustrate this One witness at the hearing explained want to transfer those excess credits to situation follows. In this example, we as an example that Handler A may Handler A. will assume a restricted percentage of 40 acquire a very high quality of tart percent has been established.
Restricted Grower Excess diver- Handler Receipts obligation Exports diversions sion credits (pounds) (pounds) (pounds) (pounds) (pounds)
A ...... 100,000 40,000 0 0 (40,000) B ...... 100,000 40,000 70,000 0 30,000 C ...... 100,000 40,000 0 50,000 10,000
In this case, Handler A needs ability to transfer diversion credits, would serve to increase consumer diversion credits totaling 40,000 pounds Handler A could acquire excess credits confidence and acceptance, thereby to meet his or her restricted obligation, from Handlers B and C. Handler A strengthening demand for tart cherries. while Handlers B and C have excess would benefit by being able to process This would benefit the U.S. tart cherry credits representing 40,000 pounds of all of his or her cherries for free use. industry as a whole. cherries. If Handler A could receive Handlers B and C (and their growers) Additionally, if the transfer of Handler B’s and C’s excess diversion would benefit by being compensated for diversion credits were not allowed, the credits, he or she could use them to their diversions, including those above market could be shorted. This would fulfill Handler A’s restricted obligation. the required amount. have a detrimental impact on the tart Otherwise, Handler A would have to Both the transferring handlers’ and cherry industry. Again, we will use the divert 40,000 pounds of cherries (by the receiving handler’s growers would above illustration and assume these destroying them, for example) or put benefit. Also, the overall quality of the three handlers comprise the entire them in the inventory reserve. With the crop marketed could be improved. This industry.
‘‘Free’’ sales Restricted Excess Handler Receipts obligation diversions Without With transfers transfers
A ...... 100,000 40,000 (40,000) 100,000 60,000 B ...... 100,000 40,000 30,000 30,000 30,000 C ...... 100,000 40,000 10,000 50,000 50,000
Total ...... 300,000 120,000 0 180,000 140,000
With a 60 percent free percentage, it Typically, this is accomplished by were already suffering from a severely would be expected that 180,000 pounds leaving cherries in the orchard short crop. of cherries would be available for sale unharvested, although other means are The Board proposed an amendment to as free percentage cherries (60 percent provided as well. Upon diversion in § 930.58(a) to provide that any grower of total receipts of 300,000 pounds). As accordance with order provisions, the diversions completed in a district shown above, without the ability to Board issues the grower a diversion subsequently exempt from regulation transfer diversion credits, the total certificate which the grower may then under § 930.52(d) will qualify for volume of ‘‘free’’ cherries available to offer to handlers in lieu of delivering diversion credit. market would be only 140,000 pounds. cherries. Handlers may then redeem Witnesses at the hearing testified that This would be well below the 180,000 those certificates to meet their restricted this is a needed change to the order to pounds deemed necessary to meet obligations. reduce the risk growers face in deciding market demand. This would hamper the Section 930.52(d) of the order whether or not to divert all or a portion industry’s efforts to expand markets for provides that any district producing a of their crops. The reason such risk its products. Allowing transfers of crop which is less than 50 percent of the exists is primarily due to the difference diversion certificates therefore has a average annual processed production in between the time diversions must take positive impact on the industry. that district in the previous 5 years is place and the time a district’s final exempt from any volume regulation in production figure is known. Grower Diversion Certificates that year. This provision was included The Board is required to meet on or Section 930.58 provides that a grower in the order to help relieve a district about July 1 of each crop year to may voluntarily choose to divert all or from the burdens of the order in a year develop its marketing policy and a portion of his or her cherries. in which its processors and growers recommend preliminary free and
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restricted percentages (if crop facilities, or shipment into approved needed to fill demand in the primary conditions so warrant). The marketing secondary outlets. market. If anticipated supplies exceed policy is typically a week or two after The order specifies three possible demand in the primary market, a the release of the USDA tart cherry crop releases of inventory reserves under volume regulation may be issued. estimate in late June. Final free and §§ 930.50 (g) and (j) and 930.54 (a). The Restricted percentage cherries are then restricted percentages are not first, under § 930.50 (g), releases an used to fill these secondary markets. recommended until after the actual crop additional 10 percent (above the If anticipated supplies are reasonably production figure is available. This is optimum supply level) of the average of in balance with demand in the primary typically not until September, after the prior 3 years sales if such inventory market, no volume regulation would be harvest is complete. This is also when is available. This release is for market issued. Since all of a handler’s cherries a final determination is made as to expansion purposes. would then be ‘‘free’’ percentage whether a district will be covered by The second release, under § 930.50 (j) cherries, he or she would likely attempt regulation in accordance with occurs in years when the expected to sell all those cherries in the primary § 930.52(d). availability from the current crop plus market because returns tend to be higher The record shows that the tart cherry expected carry-in does not fulfill the in that market. This could result in few crop is harvested in late June or July. optimum supply (100 percent of the cherries being made available for sale in Growers must, therefore, make decisions average annual sales in the prior 3 years secondary markets (such as exports). as to whether to undertake diversion plus the desirable carry-out). This The record shows that the tart cherry activities before they are certain release is made to all handlers holding industry needs to continue its efforts to whether or not their district will be primary inventory reserves and is a expand markets. A critical aspect of this covered by regulation. This occurred in required release to be made by the effort is to ensure that supplies are Southwest Michigan in 1997. Based on Board if the above conditions are met available to fill needs in developing the USDA estimate, it was expected that and reserve cherries are available. This markets. If, for example, an export this district would be covered by provision is intended to assure that market is developed over the course of volume regulation during the upcoming inventory reserves are utilized to time, and then cherries are not available crop year. However, the actual crop stabilize supplies available on the to supply that market, that market may came in at less than 50 percent of the market. Under this authority, cherries be lost to the industry. The Board’s prior 5-year average production in that released from the reserve can be sold in proposal would allow a release of district, and Southwest Michigan any market. inventory reserves to meet the needs of (District 3) was exempt from regulation. The third release is authorized under these specific markets. This should Witnesses testified that growers who § 930.54 (a) which allows the Board to contribute to the long-run health of the divert their crops in anticipation of a recommend to the Secretary a release of industry. volume regulation should not be a portion or all of the primary (and Another witness suggested that a penalized for that decision because the secondary) reserve. To make this limited release should also be possible USDA crop estimate indicates their release, the Boards needs to determine for specific types of cherry products. He district will be regulated, but it turns that the total available supplies for use stated that over time, the mix of out it is not. If those growers’ diversion in commercial outlets do not equal the products offered by the tart cherry certificates become invalid, they receive amount needed to meet the demand in industry has changed considerably. New nothing for the cherries they diverted. If such outlets. product development should continue their diversions continue to qualify for The Board recommended an to be encouraged to expand marketing credit, however, handlers who accept amendment to § 930.54 to provide a opportunities for the industry. Releases those diversion certificates compensate fourth option for a reserve release. of inventory reserves can play a part in the growers for them. Specifically, it proposed that a portion this endeavor. Without this amendment, the record or all of the primary and/or secondary The witness gave a hypothetical shows that growers in some districts inventory reserve may be released for situation using dried cherries as an (where application of volume regulation sale in certain designated markets. example. He said that if demand for is uncertain) could be forced into Witnesses at the hearing suggested dried cherries was very strong, and harvesting their crops. This would be that the industry (through the Board) supplies of that product from the contrary to the program objective of needs more flexibility in determining current year’s crop were insufficient to balancing tart cherry supplies with how to utilize inventory reserves. One meet that demand, releases of that market demand. witness opined that limited releases of product from the inventory reserve This amendment should benefit tart reserves during years of non-regulation should be authorized. cherry growers who choose to divert may be necessary to maintain markets This amendment should contribute to cherries in anticipation of a volume that are available for diversion credits the industry’s efforts to balance tart regulation. It should also contribute to during years of regulation. The example cherry supplies with market demand. It the supply management objectives of given dealt with sales to export markets will give the Board more flexibility in the program, which would benefit the other than Canada and Mexico. In years determining when inventory reserve U.S. tart cherry industry as a whole. of volume regulation, sales of cherries to cherries should be released for use. It these markets are eligible for diversion will not impose any additional Release of Cherries in the Inventory credits that handlers may use to meet regulatory requirements on tart cherry Reserve their restricted obligations. handlers. Section 930.51 of the order authorizes In developing its marketing policy the issuance of volume regulations for and determining whether a surplus Ten Percent Reserve Release for Market tart cherries in the form of free and exists, the optimum supply is compared Expansion restricted percentages. Section 930.50(i) with available supplies. The optimum Section 930.51 of the order authorizes provides that a handler’s restricted supply is defined as average sales over the issuance of volume regulations for percentage cherries must be placed in the last 3 years, minus sales qualifying tart cherries in the form of free and an inventory reserve or diverted through for diversion credit. Thus, the optimum restricted percentages. Section 930.50(i) non-harvest, destruction at a handler’s supply measures the volume of cherries provides that a handler’s restricted
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percentage cherries must be placed in cycle with less bearing acreage and diverted by growers through non- an inventory reserve or diverted into shorter supplies, a short crop year can harvest. Overall grower returns would approved secondary outlets. result in significant shortages of be lower, and long term market losses Section 930.50 provides that any available market supplies. This can may occur. volume regulation make available as curtail continued market demand and This amendment should contribute to free percentage cherries an ‘‘optimum market growth. When supplies are short, the industry’s efforts to balance tart supply’’ of tart cherries. The optimum they can be supplemented by reserve cherry supplies with market demand. It supply is defined as the average sales of cherries. This would mitigate spikes in will give the Board more flexibility in the prior 3 years (minus sales of cherries prices, which hinder long term market determining when inventory reserve qualifying for diversion credit) plus a demand. Food manufacturing customers cherries should be released for use. It desired carry-out. Section 930.50(g) in particular demand a stable supply of will not impose any additional further provides that in addition to the product at reasonable prices. Absent a regulatory requirements on tart cherry free market tonnage percentage cherries, reliable supply, these customers tend to handlers. the Board must make available tonnage substitute other fruits in their products. Assessments on All Cherries Handled equal to 10 percent of the average sales The use of the inventory release of the prior 3 years for market option also provides that some surplus Section 930.40 of the order authorizes expansion. supplies in a large crop year with low the Board to incur such expenses as the The Board proposed amending prices can be carried over to short crop, Secretary finds are reasonable and § 930.50(g) to specify that the 10 percent high price years. This results in necessary for it to administer the tart reserve release only apply during years improved revenues for growers and cherry marketing order program. Section when volume regulation is in effect. processors. The use of the inventory 930.40 further provides that the Board’s The record shows that the 10 percent reserve option also provides an expenses be covered by income from reserve release provision was made a alternative to grower diversions (i.e., handler assessments. part of the order in large part due to non-harvest). Section 930.41 provides that handlers USDA policy guidelines. The Several witnesses used the 1999–2000 pay their pro rata share of the Board’s Secretary’s Guidelines for Fruit, crop year to show the effects of a reserve expenses. Each handler’s share is Vegetable, and Specialty Crop release during a year of no regulation. determined by applying the established Marketing Orders (Guidelines) state During that year, the crop was 251.0 assessment rate(s) to the volume of that, under volume control programs, million pounds which, when added to cherries each handler handles during a primary markets should have available a carryover from the previous crop year crop year. Section 930.41 further a quantity equal to 110 percent of recent of 38.0 million pounds, yielded total provides that handlers are exempt from years’ sales in those outlets before the available supplies of 289.0 million paying assessments on cherries that are Secretary would approve secondary pounds. With the optimum supply at diverted in accordance with § 930.59, market allocation or pooling. This is to 285.0 million pounds, the Board found including cherries represented by assure plentiful supplies for consumers that supplies were reasonably in line grower diversion certificates issued and for market expansion while with market demand, and recommended under § 930.58. Cherries devoted to retaining the mechanism for dealing no volume regulation be implemented. exempt uses under § 930.62 are also free with burdensome supply situations. At the beginning of the crop year, from assessments. Witnesses in support of the Board’s industry reserves totaled 28.4 million The Board recommended that proposal stated that allowing for and pounds. Four million pounds were § 930.41 be amended to provide that all encouraging market growth in years of released early in the crop year to meet cherries processed and sold by handlers surplus supplies is sensible. In fact, unanticipated demand, leaving 24.4 be subject to assessments. The only several witnesses stated that an million pounds in the reserve when it cherries that would be exempt from important objective of the tart cherry came time for the release for market assessments would be those diverted in- industry and the marketing order expansion. Ten percent of the 3-year orchard by growers, and those diverted program is to expand markets for tart average sales figure meant that 28.5 by handlers through destruction at their cherries. This is supported, for example, million pounds should have been plants. by the authorization of diversion credits released for market expansion; however, Proponent witnesses testifying in for new product and new market there were only 24.4 million pounds in support of this change stated that all development. the inventory reserve, so the entire processed cherries should be subject to Several witnesses spoke against the 10 reserve was released. assessments because handlers profit percent release during years of no Witnesses claimed that the release of from the sale of these cherries. This is volume regulation, however. Two reserves in the current crop year may because each pound of fruit processed concerns were expressed in this regard. result in a surplus supply of cherries in increases the handler’s overall First, the release of inventories in a year the marketplace. This could put a profitability by reducing the per unit in which supplies and market demand downward pressure on price, and could cost of processing. This is true even if are reasonably in balance results in an result in a higher carryover into the next the cherries are used in an outlet oversupply situation. This can be crop year. This could mean a greater approved for diversion credit. accompanied by reduced grower prices. surplus in 2000–2001, which could The record shows that handlers have Second, and probably more important, result in a higher restricted percentage different ways of meeting their industry reserves can be depleted. One and greater probability of cherries being restricted obligations. Their decisions objective of keeping an inventory left in the orchard unharvested. are based on their own marketing reserve is to aid in stabilizing annual Ultimately, these releases could result strategies. Some handlers take supply fluctuations and safeguard in less economic incentive to place advantage of marketing their products in against the detrimental impacts of a cherries in the reserve because they eligible diversion outlets, while others short crop year. could be released at the wrong time and either cannot or do not do so. Witnesses The record shows that the tart cherry return little to growers. With less suggested that providing an exemption industry experiences cycles in acreage incentive to participate in the inventory from assessments to handlers who and production. During the phase of the reserve, more cherries would likely be choose to divert their cherries through
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sales in those designated outlets creates for cherries used in any or all products. The Department concludes that while a competitive advantage over their This would be true unless the Board there may be justification for competitors who do not do so. It was decided to consider the volumes of establishing different assessment rates their opinion that if a substantial cherries used for various products and for different products, it should not be volume of cherries is diverted by certain their relative values; if that were the required under the order. Thus, the handlers, the burden of financing the case, the Board could recommend amendment to § 930.41 provides that in program increases on other handlers. differential assessment rates if its deliberations pertaining to Those in support of assessing all warranted. appropriate levels of assessment rates, processed cherries concluded that The record shows that at the time the the Board should consider the volume subjecting all processed cherries to the order was promulgated, proponents of of cherries used in making various assessment provisions of the order the program supported different products and the relative market value would eliminate this unintended assessment rates being established for of those products. The assessment rate advantage. cherries used for various products. In established may be uniform or may vary Additionally, the record shows that a their testimony, they suggested that high among products, based on the Board’s large portion of the Board’s annual value products such as frozen, canned analysis. expenses is incurred for oversight of or dried cherries be assessed at one rate, Implementation of this amendment compliance activities related to and low value products such as juice could result in a single, uniform diversion credits. For example, for those concentrate and puree be assessed at assessment rate applicable to all export sales eligible for diversion credit, one-half that rate. cherries. Such action would likely handlers are required to submit proof of Proponents of the Board’s increase the rate established for cherries export. The documentation typically recommended amendment stated that used for juice concentrate and puree, consists of warehouse receipts, bills of the order should not require one rate for and could result in a lower rate for lading, overseas bills of lading, and certain products and twice that rate for cherries used for other products. The other documents proving the cherries others. They stated that while a two- impact of any such action would be were exported. The Board staff reviews tiered assessment rate scheme may be analyzed by the Board and USDA prior the documentation submitted by each appropriate in some years, it may not be to its effectuation. handler for sufficiency, requests in others. They cited the fact that the Crop Production Estimate additional documentation if necessary, absolute and relative market values of and issues diversion certificates upon Section 930.50 of the order requires various tart cherry products fluctuate the Board to develop an annual proof of compliance with order from year to year. requirements. Similar activities are marketing policy. This policy serves as One witness testified, for example, undertaken with respect to sales in the basis for determining the level of that producer returns for cherries used other designated diversion markets (e.g., volume regulation needed in a given for juice concentrate are comparable to new product development). Witnesses crop year. First, the Board determines those for other products. He stated that stated that those handlers who take the ‘‘optimum supply’’ which is defined cherry juice concentrate was selling for advantage of these order provisions as the average sales of cherries in the about $17 per gallon. Subtracting should pay their share of the costs of past three years plus the desirable carry- estimated handling charges of $5.81 per enforcing those provisions. out. Next, the Board takes the crop One witness also stated that an gallon, the net return to the grower forecast for the upcoming year and advantage of this amendment would be would be an estimated $11.19. In subtracts from it the optimum supply that it would broaden the assessment Washington, where about 50 pounds are (less the carry-in). If the remainder is base under the order. This would lower required to make a gallon of positive, it represents a surplus in the assessment rate needed to effectively concentrate, growers would receive 22 supplies, supporting the use of volume administer the program. cents per pound. In Michigan, where it regulation. Section 930.50 prescribes This amendment would increase takes approximately 90 pounds of that the Board must use the official assessment obligations on handlers who cherries to make a gallon of concentrate, USDA crop estimate as its crop forecast. choose to divert their restricted growers would receive 12 cents per The Board’s amendment proposal percentage cherries in approved outlets. pound. This witness stated that grower would allow the Board to use a crop However, it would also tend to result in returns in this range are comparable to estimate other than the official USDA a more reasonable assessment system. returns available for other products. crop estimate in its marketing policy. The conclusion of the proponent The record shows that USDA bases its Uniform Assessment Rate witnesses was that the Board should pre-harvest estimate on two methods. In As discussed in the preceding section, have discretion in determining Michigan, an objective yield survey is §§ 930.40 and 930.41 of the order appropriate rates of assessment. They done by the State. Such a survey is provide that the Board may incur did not believe a two-tiered approach based on the actual count of fruit on the certain expenses, and that the funds to should be mandated. tree, the number of trees per acre, and defray those expenses be paid by An opponent of the proposed change the acres in production. In the other handlers through assessments. Section stated that the order should continue to producing States, subjective yield 930.41 also provides, among other require the Board to consider the surveys are done by those States. This things, that the assessment rate(s) volume of raw product used in method entails canvassing tart cherry recommended by the Board and producing various cherry products as growers and handlers to obtain their approved by the Secretary must well as the relative value of those assessment of the upcoming year’s crop. compensate for the differences in the products in recommending annual The Michigan crop survey costs a amounts of cherries used for various assessment rates. He stated that he did total of $60,000 per year. Of this total, cherry products and the relative market not necessarily support two levels of the Board pays $24,000. The Board’s values of those products. assessment rates, but believed the Board share was expected to increase to half of The Board recommended that should be required to give due the total in 2001. Concern was § 930.41 be amended to provide that a consideration to relevant factors in expressed at the hearing that if the uniform assessment rate be established making its recommendations. industry decides to no longer contribute
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to the cost of the Michigan State survey, would have to be from other reliable, law and request a modification of the that State would likely discontinue its independent sources, and would be order or to be exempted therefrom. A objective yield surveys and turn to averaged in with the USDA estimate. handler is afforded the opportunity for subjective yield surveys. This could Currently available is an annual a hearing on the petition. After the result in a less reliable crop estimate estimate made by the Michigan Food hearing the Secretary would rule on the than is currently available. This is of Processors Association. Other possible petition. The Act provides that the particular concern because Michigan sources include the Michigan district court of the United States in any produces more than 70 percent of the Agricultural Cooperative Marketing district in which the handler is an U.S. tart cherry crop. Association and individual State grower inhabitant, or has his or her principal Witnesses in support of this proposal associations. place of business, has jurisdiction to stated that, in some years, USDA’s pre- This amendment provides the Board review the Secretary’s ruling on the harvest crop estimate may not be with more flexibility in developing its petition, provided an action is filed not accurate enough due to quickly marketing policy and recommending later than 20 days after date of the entry changing crop conditions. They stated preliminary free and restricted of the ruling. that current order provisions prohibit percentages. To the extent that the the Board from using any other estimate Board’s decision making improves, the Order Amending the Order Regulating even if the majority of Board members, entire U.S. tart cherry industry would the Handling of Tart Cherries Grown in with their years of experience in the benefit. the States of Michigan, New York, industry, believe USDA’s estimate in a The collection of information under Pennsylvania, Oregon, Utah, given year is inaccurate. Using the most the marketing order would not be Washington, and Wisconsin accurate crop estimate available in affected by these amendments to the Findings and determinations deriving preliminary free and restricted marketing order. Current information percentages is important because collection requirements for Part 930 are The findings and determinations growers and handlers make decisions approved by OMB under OMB number hereinafter set forth are supplementary based in part on those percentages. For 0581–0177. and in addition to the findings and example, growers decide whether to As with all Federal marketing order determinations previously made in divert or harvest their crops; these programs, reports and forms are connection with the issuance of the decisions are irrevocable. Handlers also periodically reviewed to reduce order; and all of said previous findings make pack and marketing plans based in information requirements and and determinations are hereby ratified part on the expected level of regulation. duplication by industry and public and affirmed, except insofar as such If actual harvest varies significantly sector agencies. findings and determinations may be in from the pre-harvest estimate, growers The Department has not identified conflict with the findings and and handlers could suffer economic any relevant Federal rules that determinations set forth herein. harm. Using the most accurate duplicate, overlap or conflict with this (a) Findings and Determinations Upon information available is therefore final rule. These amendments are the Basis of the Hearing Record. necessary to enhance industry decision designed to enhance the administration Pursuant to the provisions of the making. and functioning of the marketing order Agricultural Marketing Agreement Act One witness pointed to the situation to the benefit of the industry. of 1937, as amended (7 U.S.C. 601 et faced by district 3 (Southern Michigan) Board meetings regarding these seq.), and the applicable rules of growers in 1997. As previously amendments as well as the hearing practice and procedure effective discussed under Material Issue Number dates were widely publicized thereunder (7 CFR part 900), a public 9, at the time the Board developed its throughout the tart cherry industry, and hearing was held upon the proposed marketing policy, indications were that all interested persons were invited to amendments to the Marketing district 3 would be regulated that year. attend the meetings and the hearing and Agreement and Order No. 930 (7 CFR Subsequent to harvest, however, it was participate in Board deliberations on all part 930), regulating the handling of tart determined that volume regulation issues. All Board meetings and the cherries grown in the States of would not apply to district 3 cherries hearing were public forums and all Michigan, New York, Pennsylvania, that year. Growers who made decisions entities, both large and small, were able Oregon, Utah, Washington, and to divert their crops based on the to express views on these issues. Wisconsin. Board’s marketing policy estimates Upon the basis of the evidence found themselves with diversion Civil Justice Reform introduced at such hearing and the certificates that were of no value. The amendments contained in this record thereof, it is found that: The record shows that the USDA rule have been reviewed under (1) The marketing agreement and estimate should be used by the Board Executive Order 12988, Civil Justice order, as amended, and as hereby unless two things happen. The first Reform. They are not intended to have further amended, and all of the terms would be that the Board would have to retroactive effect. The amendments will and conditions thereof, will tend to agree that the USDA estimate was not preempt any State or local laws, effectuate the declared policy of the Act; inaccurate. The second would be that regulations, or policies, unless they (2) The marketing agreement and the Board would have to agree on present an irreconcilable conflict with order, as amended, and as hereby another estimate or estimates to use. the amendments. further amended, regulate the handling Both these actions would require The Act provides that administrative of tart cherries grown in the production concurrence by at least two-thirds of the proceedings must be exhausted before area in the same manner as, and is Board members. This would safeguard parties may file suit in court. Under applicable only to persons in the against the possibility of some members section 608c(15)(A) of the Act, any respective classes of commercial and attempting to manipulate the crop handler subject to an order may file industrial activity specified in the estimate to impact the level of volume with the Secretary a petition stating that marketing order upon which hearings restriction. the order, any provision of the order, or have been held; In addition, witnesses testified that any obligation imposed in connection (3) The marketing agreement and other estimates used by the Board with the order is not in accordance with order, as amended, and as hereby
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further amended, are limited in participated in a referendum on the of the Board shall be a public member application to the smallest regional question of approval and who, during who, along with his or her alternate, production area which is practicable, the period June 1, 2000, through May shall be elected by the Board from the consistent with carrying out the 31, 2001 (which has been deemed to be general public. declared policy of the Act, and the a representative period), have been (b) District representation on the issuance of several orders applicable to engaged within the production area in Board shall be based upon the previous subdivisions of the production area the production of such cherries, such three-year average production in the would not effectively carry out the producers having also produced for district and shall be established as declared policy of the Act; market at least two-thirds of the volume follows: (4) The marketing agreement and of such commodity represented in the (1) Up to and including 10 million order, as amended and as hereby further referendum. pounds shall have 1 member; amended, prescribe, insofar as Order Relative to Handling (2) Greater than 10 and up to and practicable, such different terms including 40 million pounds shall have applicable to different parts of the It is therefore ordered, That on and 2 members; production area as are necessary to give after the effective date hereof, all (3) Greater than 40 and up to and due recognition to the differences in the handling of tart cherries grown in the including 80 million pounds shall have production and marketing of tart States of Michigan, New York, 3 members; and Pennsylvania, Oregon, Utah, cherries grown in the production area; (4) Greater than 80 million pounds Washington and Wisconsin, shall be in and shall have 4 members; and (5) All handling of tart cherries grown conformity to, and in compliance with, (5) Allocation of the seats in each in the production area is in the current the terms and conditions of the said district shall be as follows but subject to of interstate or foreign commerce or order as hereby amended as follows: directly burdens, obstructs, or affects The provisions of the proposed the provisions of paragraphs (d), (e) and such commerce. marketing agreement and the order (f) of this section: (b) Additional findings. amending the order contained in the Grower Handler It is necessary and in the public Secretary’s Decision issued by the District type members or members interest to make these amendments to Administrator on May 3, 2002, and the order effective not later than one day published in the Federal Register on Up to and includ- after publication in the Federal May 10, 2002, shall be and are the terms ing 10 million Register. and provisions of this order amending pounds ...... 1 1 A later effective date would the order and are set forth in full herein. More than 10 unnecessarily delay implementation of and up to 40 the amendments including the List of Subjects in 7 CFR Part 930 million pounds 1 1 reallocation of Board membership. In Marketing agreements, Reporting and More than 40 and up to 80 addition, the informal rulemaking recordkeeping requirements, Tart million pounds 1 2 needed to implement order amendments cherries. More than 80 requires additional time to complete. million pounds 2 2 Therefore, making the effective date one PART 930—TART CHERRIES GROWN IN THE STATES OF MICHIGAN, NEW day after publication in the Federal * * * * * YORK, PENNSYLVANIA, OREGON, Register will allow the amendments, (d) The ratio of grower to handler UTAH, WASHINGTON, AND which are expected to be beneficial to representation in districts with three WISCONSIN the industry, to be implemented as soon members shall alternate each time the as possible. term of a Board member from the In view of the foregoing, it is hereby 1. The authority citation for 7 CFR part 930 continues to read as follows: representative group having two seats found and determined that good cause expires. During the initial period of the exists for making these amendments Authority: 7 U.S.C. 601–674. order, the ratio shall be as designated in effective one day after publication in the 2. Amend § 930.20 as follows: paragraph (b) of this section. Federal Register, and that it would be a. By revising paragraphs (a), (b), (d) (e) Board members from districts with contrary to the public interest to delay and (e); one seat may be either grower or the effective date for 30 days after b. Redesignating paragraphs (f) and (g) handler members and will be nominated publication in the Federal Register (Sec. as paragraphs (g) and (h); and and elected as outlined in § 930.23. 553(d), Administrative Procedure Act; 5 c. Adding new paragraphs (f) and (i). (f) If the 3-year average production of U.S.C. 551–559). The additions and revisions read as a district changes so that a different (c) Determinations. It is hereby follows: number of seats should be allocated to determined that: (1) Handlers (excluding cooperative § 930.20 Establishment and membership. the district, then the Board will be associations of producers who are not (a) There is hereby established a reestablished by the Secretary, and such engaged in processing, distributing, or Cherry Industry Administrative Board, seats will be filled according to the shipping tart cherries covered by the the membership of which shall be applicable provisions of this part. Each order as hereby amended) who, during calculated in accordance with paragraph district’s 3-year average production the period June 1, 2000, through May (b) of this section. The number of Board shall be recalculated annually as soon as 31, 2001, handled 50 percent or more of members may vary, depending upon the possible after each season’s final the volume of such cherries covered by production levels of the districts. All production figures are known. said order, as hereby amended, have but one of these members shall be * * * * * signed an amended marketing qualified growers and handlers selected (i) The Board, with the approval of the agreement; and pursuant to this part, each of whom Secretary, may establish rules and (2) The issuance of this amendatory shall have an alternate having the same regulation’s necessary and incidental to order is favored or approved by at least qualifications as the member for whom the administration of this section. two-thirds of the producers who the person is an alternate. One member 3. Revise 930.28 to read as follow:
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§ 930.28 Alternate members. (1) The differences in the number of preliminary percentages in accordance An alternate member of the Board, pounds of cherries utilized for various with paragraph (h) of this section. during the absence of the member for cherry products; and * * * * * whom that member serves as an (2) The relative market values of such (g) Additional tonnage to sell as free alternate, shall act in the place and cherry products. tonnage. In addition, the Board, in years stead of such member and perform such * * * * * when restricted percentages are other duties as assigned. However, if a established, shall make available member is in attendance at a meeting of 6. Amend § 930.50 by revising tonnage equivalent to an additional 10 the Board, an alternate member may not paragraphs (a), (b) and (g) to read as percent, if available, of the average sales act in the place and stead of such follows: of the prior 3 years, as defined in paragraph (a) of this section, for market member. In the event a member and his § 930.50 Marketing policy. or her alternate are absent from a expansion. meeting of the Board, such member may (a) Optimum supply. On or about July * * * * * designate, in writing and prior to the 1 of each crop year, the Board shall hold 7. Amend § 930.51 by revising meeting, another alternate to act in his a meeting to review sales data, paragraph (c) to read as follows: or her place: Provided, that such inventory data, current crop forecasts alternate represents the same group and market conditions in order to § 930.51 Issuance of volume regulations. (grower or handler) as the member. In establish an optimum supply level for * * * * * the event of the death, removal, the crop year. The optimum supply (c) That portion of a handler’s cherries resignation or disqualification of a volume shall be calculated as 100 that are restricted percentage cherries is member, the alternate shall act for the percent of the average sales of the prior the product of the restricted percentage member until a successor is appointed three years reduced by average sales that imposed under paragraph (a) of this and has qualified. represent dispositions of exempt section multiplied by the tonnage of cherries, originating in a regulated 4. Amend 930.32 by revising cherries and restricted percentage district, handled, including those paragraph (a) to read as follows: cherries qualifying for diversion credit for the same three years, unless the diverted according to § 930.59, by that § 930.32 Procedure. Board determines that it is necessary to handler in that fiscal year. (a) Two-thirds of the members of the recommend otherwise with respect to * * * * * Board, including alternates acting for sales of exempt and restricted 8. Amend § 930.52 by revising absent members, shall constitute a percentage cherries, to which shall be paragraph (a) to read as follows: added a desirable carry-out inventory quorum. For any action of the Board to § 930.52 Establishment of districts subject pass, at least two-thirds of the entire not to exceed 20 million pounds or such other amount as the Board, with the to volume regulation. Board must vote in support of such (a) The districts in which handlers action. approval of the Secretary, may establish. This optimum supply volume shall be shall be subject to any volume * * * * * announced by the Board in accordance regulations implemented in accordance 5. Amend § 930.41 by revising with paragraph (h) of this section. with this part shall be those districts in which the average annual production of paragraphs (c) and (f) to read as follows: (b) Preliminary percentages. On or cherries over the prior 3 years has about July 1 of each crop year, the Board § 930.41 Assessments. exceeded 6 million pounds. Handlers shall establish a preliminary free market * * * * * shall become subject to volume tonnage percentage which shall be regulation implemented in accordance (c) As a pro rata share of the calculated as follows: from the optimum with this part in the crop year that administrative, inspection, research, supply computed in paragraph (a) of follows any 3-year period in which the development, and promotion expenses this section, the Board shall deduct the 6-million pound average production which the Secretary finds reasonable carry-in inventory to determine the requirement is exceeded in that district. and likely to be incurred by the Board tonnage requirements (adjusted to a raw during a fiscal period, each handler fruit equivalent) for the current crop * * * * * shall pay to the Board assessments on year which will be subtracted from the 9. Revise § 930.54 to read as follows: all cherries handled, as the handler current year USDA crop forecast or by § 930.54 Prohibition on the use or thereof, during such period: Provided, a an average of such other crop estimates disposition of inventory reserve cherries. handler shall be exempt from any the Board votes to use. If the resulting Cherries that are placed in inventory assessment only on the tonnage of number is positive, this would represent reserve pursuant to the requirements of handled cherries that either are diverted the estimated overproduction which § 930.50, § 930.51, § 930.55, or § 930.57 by destruction at the handler’s facilities would be the restricted tonnage. This shall not be used or disposed of by any according to § 930.59 or are cherries restricted tonnage would then be handler or any other person except as represented by grower diversion divided by the sum of the crop provided in § 930.50 or in paragraphs certificates issued pursuant to forecast(s) for the regulated districts to (a), (b), or (c) of this section. § 930.58(b) and acquired by handlers as obtain a preliminary restricted (a) If the Board determines that the described in § 930.59. percentage, rounded to the nearest total available supplies for use in * * * * * whole number, for the regulated commercial outlets are less than the (f) Assessments shall be calculated on districts. If subtracting the current crop amount needed to meet the demand in the basis of pounds of cherries handled. year requirement, computed in the first such outlets, the Board may recommend The established assessment rate may be sentence from the current crop forecast, to the Secretary that a portion or all of uniform, or may vary dependent on the results in a negative number, the Board the primary and/or secondary inventory product the cherries are used to shall establish a preliminary free market reserve cherries be released for such manufacture. In recommending annual tonnage percentage of 100 percent with use. assessment rates, the Board shall a preliminary restricted percentage of (b) The Board may recommend to the consider: zero. The Board shall announce these Secretary that a portion or all of the
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primary and/or secondary inventory diverted in accordance with the in rules and regulations, including but reserve cherries be released for sale in following terms and conditions or such not limited to procedures for transfer of certain designated markets. Such other terms and conditions that the diversion credit and limitations on the designated markets may be defined in Board, with the approval of the type of certification eligible for transfer, terms of the use or form of the cherries. Secretary, may establish. Such diversion a handler who acquires diversion (c) Cherries in the primary and/or may take place in any form which the certificates representing diverted secondary inventory reserve may be Board, with the approval of the cherries during any crop year may used at any time for uses exempt from Secretary, may designate. Tart cherry transfer such certificates to another regulation under § 930.62. juice and juice concentrate may receive handler or handlers. The Board must be 10. Amend § 930.58 by revising diversion credit but only if diverted in notified in writing whenever such paragraph (a) to read as follows: forms approved under the terms of this transfers take place during a crop year. section. Such forms may include, but § 930.58 Grower diversion privilege. (f) The Board, with the approval of the are not limited to: Secretary, may establish rules and (a) In general. Any grower may (1) Contribution to a Board-approved regulations necessary and incidental to voluntarily elect to divert, in accordance food bank or other approved charitable the administration of this section. with the provisions of this section, all organization; 12. Revise § 930.62 to read as follows: or a portion of the cherries which (2) Use for new product and new otherwise, upon delivery to a handler, market development; § 930.62 Exempt uses. would become restricted percentage (3) Export to designated destinations; (a) The Board, with the approval of cherries. Upon such diversion and or compliance with the provisions of this (4) Other uses or disposition, the Secretary, may exempt from the section, the Board shall issue to the including destruction of the cherries at provisions of § 930.41, § 930.44, diverting grower a grower diversion the handler’s facilities. § 940.51, § 930.53, or § 930.55 through certificate which such grower may (c) Notification. The handler electing § 930.57 cherries for designated uses. deliver to a handler, as though there to divert cherries through means Such uses may include, but are not were actual harvested cherries. Any authorized under this section shall first limited to: grower diversions completed in notify the Board of such election. Such (1) New product and new market accordance with this section, but which notification shall describe in detail the development; are undertaken in districts subsequently manner in which the handler proposes (2) Export to designated destinations; exempted by the Board from volume to divert cherries including, if the (3) Experimental purposes; or regulation under § 930.52(d), shall diversion is to be by means of (4) For any other use designated by qualify for diversion credit. destruction of the cherries, a detailed the Board, including cherries processed * * * * * description of the means of destruction into products for markets for which less 11. Revise § 930.59 to read as follows: and ultimate disposition of the cherries. than 5 percent of the preceding 5-year It shall also contain an agreement that average production of cherries were § 930.59 Handler diversion privilege. the proposed diversion is to be carried utilized. (a) In general. Handlers handling out under the supervision of the Board (b) The Board, with the approval of cherries harvested in a regulated district and that the cost of such supervision is the Secretary, shall prescribe such rules, may fulfill any restricted percentage to be paid by the handler. Uniform fees regulations, and safeguards as it may requirement in full or in part by for such supervision may be established deem necessary to ensure that cherries acquiring diversion certificates or by by the Board, pursuant to rules and handled under the provisions of this voluntarily diverting cherries or cherry regulations approved by the Secretary. section are handled only as authorized. products in a program approved by the (d) Diversion certificate. The Board (c) Diversion certificates shall not be Board, rather than placing cherries in an shall conduct such supervision of the issued for cherries which are used for inventory reserve. Upon voluntary handler’s diversion of cherries under exempt purposes; Provided, that diversion and compliance with the paragraph (c) of this section as may be growers engaging in such activities provisions of this section, the Board necessary to assure that the cherries are under the authority of § 930.58 shall be shall issue to the diverting handler a diverted as authorized. After the issued diversion certificates for such handler diversion certificate which shall diversion has been completed, the activities. satisfy any restricted percentage or Board shall issue to the diverting diversion requirement to the extent of handler a handler diversion certificate Dated: July 31, 2002. the Board or Department inspected indicating the weight of cherries which A.J. Yates, weight of the cherries diverted. may be used to offset any restricted Administrator, Agricultural Marketing (b) Eligible diversion. Handler percentage requirement. Service. diversion certificates shall be issued to (e) Transfer of certificates. Within [FR Doc. 02–19672 Filed 8–7–02; 8:45 am] handlers only if the cherries are such restrictions as may be prescribed BILLING CODE 3410–02–P
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Part V
Department of Education 34 CFR Part 600 et al. Postsecondary Education; Federal Perkins Loan Program, et al.; Proposed Rule
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DEPARTMENT OF EDUCATION you must send your comments to the We also invite you to assist us in Office of Management and Budget at the complying with the specific 34 CFR Parts 600, 668, 673, 675, 682, address listed in the Paperwork requirements of Executive Order 12866 685, 690, and 694 Reduction Act section of this preamble. and its overall requirement of reducing RIN 1845–AA24 You may also send a copy of these regulatory burden that might result from comments to the Department these proposed regulations. Please let us Institutional Eligibility Under the representative named in this section. know of any further opportunities we Higher Education Act of 1965, as FOR FURTHER INFORMATION CONTACT: Ms. should take to reduce potential costs or Amended; Student Assistance General Wendy Macias Telephone: (202) 502– increase potential benefits while Provisions; General Provisions for the 7526 or via the Internet: preserving the effective and efficient Federal Perkins Loan Program, Federal [email protected]. administration of the programs. Work-Study Program, and Federal During and after the comment period, If you use a telecommunications you may inspect all public comments Supplemental Educational Opportunity device for the deaf (TDD), you may call Grant Program; Federal Work-Study about these proposed regulations at the Federal Information Relay Service 1990 K Street, NW., (8th Floor) Programs; Federal Family Education (FIRS) at 1–800–877–8339. Loan Program; William D. Ford Federal Washington, DC, between the hours of Direct Loan Program; Federal Pell Individuals with disabilities may 8:30 a.m. and 4 p.m., Eastern time, Grant Program; and Gaining Early obtain this document in an alternative Monday through Friday of each week Awareness and Readiness for format (e.g., Braille, large print, except Federal holidays. If you want to Undergraduate Programs audiotape, or computer diskette) on schedule an appointment to inspect the request to the contact person listed public comments, please contact the AGENCY: Office of Postsecondary under FOR FURTHER INFORMATION person listed under FOR FURTHER Education, Department of Education. CONTACT. INFORMATION CONTACT. ACTION: Notice of proposed rulemaking. SUPPLEMENTARY INFORMATION: Assistance to Individuals With SUMMARY: The Secretary proposes to Invitation To Comment Disabilities in Reviewing the amend the Institutional Eligibility Rulemaking Record We invite you to submit comments Under the Higher Education Act of On request, we will supply an regarding these proposed regulations. 1965, as Amended; Student Assistance appropriate aid, such as a reader or To ensure that your comments have General Provisions; General Provisions print magnifier, to an individual with a maximum effect in developing the final for the Federal Perkins Loan (Perkins disability who needs assistance to regulations, we urge you to identify Loan) Program, Federal Work-Study review the comments or other clearly the specific section or sections of Program, and Federal Supplemental documents in the public rulemaking the proposed regulations that each of Educational Opportunity Grant (FSEOG) record for these proposed regulations. If your comments addresses and to arrange Program; Federal Work-Study (FWS) you want to schedule an appointment your comments in the same order as Programs; Federal Family Education for this type of aid, please contact the they are discussed in the Significant Loan (FFEL) Program; William D. Ford person listed under FOR FURTHER Proposed Regulations section of this Federal Direct Loan (Direct Loan) INFORMATION CONTACT. Program; Federal Pell Grant (Pell Grant) document. Program; and Gaining Early Awareness Section 482(c)(1) of the Higher Negotiated Rulemaking and Readiness for Undergraduate Education Act of 1965, as amended Section 492 of the HEA requires the Programs (GEAR UP) regulations. The (HEA) provides that in order for a Secretary, before publishing any Secretary is amending these regulations regulatory change to be effective for the proposed regulations for programs to reduce administrative burden for start of an award year on July 1, it must authorized by Title IV of the HEA, to program participants, to provide have been published in final form in the obtain public involvement in the benefits to students and borrowers, and Federal Register no later than the development of the proposed to protect taxpayers’ interests. preceding November 1. The Secretary’s regulations. After obtaining advice and DATES: We must receive your comments intent is to publish final rules resulting recommendations from individuals and on or before October 7, 2002. from this Notice of Proposed representatives of groups involved in ADDRESSES: Address all comments about Rulemaking (NPRM) by November 1, the Federal student financial assistance these proposed regulations to Wendy 2002, making the new rules effective on programs, the Secretary must subject all Macias, U.S. Department of Education, July 1, 2003. However, section 482(c)(2) proposed regulations to a negotiated P.O. Box 33076, Washington, DC 20033– of the HEA allows the Secretary to rulemaking process. All proposed 3076. We encourage commenters to use designate regulatory provisions that an regulations that the Department e-mail because paper mail to the entity subject to the provision may, at publishes must conform to agreements Washington area may be subject to its option, choose to implement earlier. resulting from that process unless the delay, but please use one method only Therefore, we are seeking suggestions Secretary reopens the process or to provide your comments. If you on which of the proposed regulatory provides a written explanation to the comment via e-mail, we will send a provisions in this NPRM, if finalized, participants in that process stating why return e-mail acknowledging our receipt should be so designated. the Secretary has decided to depart from of your comments. If you choose to send Section 482 of the HEA does not the agreements. your comments through the Internet, apply to regulations governing programs We developed a list of proposed use the following address: other than the Federal student aid regulatory changes from advice and [email protected]. programs. Therefore, if the proposed recommendations submitted by You must include the term ‘‘Team II regulations on GEAR UP included in individuals and organizations in Program Issues’’ in the subject line of this NPRM are finalized, they would be response to a May 24, 2001, request for your electronic message. effective upon the date that the final recommendations on improving the If you want to comment on the regulations are published in the Federal Title IV student assistance programs information collection requirements, Register. from Representative Howard P. ‘‘Buck’’
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McKeon and Representative Patsy Mink, United Negro College Fund and the discussed on the 2002 Negotiated the Chairman and Ranking Member, National Association for Equal Rulemaking Web site for Team Two at: respectively, of the Subcommittee on Opportunity in Higher Education; http://www.ed.gov/offices/OPE/ 21st Century Competitiveness of the • Claire M. Roemer and Patricia rulemaking/index2002.html, include the Education and the Workforce Hurley (alternate), representing two-year following— Committee of the U.S. House of public colleges and universities; • Use of electronics in the Representatives. including the American Association of administration of the Title IV programs, On December 5, 2001, we published Community Colleges; • Use of electronic signatures on a notice in the Federal Register (66 FR • Dawn Mosisa and Jo Ann Yoshida timesheets in the FWS Program, 63203) announcing our intent to (alternate), representing four-year public • The fifty percent grant overpayment establish two negotiated rulemaking colleges and universities; including the protection in the Return of Title IV aid committees to develop proposed National Association of System Heads, regulations, regulations. One committee (Committee the American Association of State • ‘‘90–10’’ computations, I) would address issues related to the Colleges and Universities, and the • Equity in Athletics Disclosure Act Title IV student loan programs. The University Continuing Education (EADA) reporting requirements, other committee (Committee II) would Association; • FWS community service waiver address all other Title IV student aid • Lydia MacMillan, Ryan Craig requirements, issues. The notice requested Williams (alternate), and Maureen • Inclusion of a computer in a nominations of individuals for Budetti (2nd alternate), representing student’s cost of attendance, • membership on the committees who private, not-for-profit colleges and Regaining student eligibility, • represented key stakeholder universities; including the National Overaward tolerances for the Title constituencies that are involved in the IV programs, Association of Independent Colleges • student financial assistance programs, and Universities, and the Association of Effect of enrollment of certain with preference given to individuals Jesuit Colleges and Universities; home-schooled students on institutional • eligibility, and who are actively involved in Robert Collins and Nancy Broff • administering the Federal student (alternate), representing for-profit The fifty percent requirements for financial assistance programs or whose postsecondary institutions; including telecommunications and interests are significantly affected by the the American Association of correspondence courses in institutional regulations. In the notice, we identified Cosmetology Schools and the Career eligibility. the constituencies with interests that are College Association; No regulatory proposals are included significantly affected by the subject • Charles Cook and Diane Rogers in this NPRM for these issues either matter of the negotiated rulemaking and (alternate), representing accrediting because the committee concluded that announced that we expected that agencies; including the Council for the proposed changes could not be representatives of each of those Higher Education Accreditation (12- made without statutory amendments or constituencies would likely be selected hour rule only); because the committee ultimately as members of one, or both, committees. • Neal Combs and Carl Buck agreed to remove the item from the This NPRM is the result of the (alternate), representing guaranty agenda and not to pursue a regulatory deliberations of Committee II. agencies and loan servicers; including change at this time. Instead, we decided The members of Committee II were: the National Council of Higher to address a number of these issues in • Jo’ie Taylor and Ellynne Bannon Education Loan Programs (NCHELP), a non-regulatory way, such as providing (alternate) representing students; the CEO caucus of NCHELP, and the clarifying policy language in the Federal including the United States Student National Association of Student Loan Student Financial Aid Handbook. Association and State PIRGs (Public Administrators; Tentative agreement was reached by Interest Research Groups) Higher • Francine Andrea and Wanda Hall the committee on all but three of the Education Project; (alternate), representing lenders, agenda items. The entire committee did • Alan White and Elena Ackel secondary markets, and loan servicers; not reach consensus on the proposed (alternate), representing legal assistance including the Consumer Bankers changes to §§ 668.2, 668.3, 668.4, 668.8, organizations that represent students; Association, the Education Finance and 690.75, all of which are related to including Community Legal Services Council, the Student Loan Servicing the proposal to replace the 12-hour rule and the National Consumer Law Center; Alliance, and the National Council of with the one-day rule, because three of • Rachael Lohman and Marty Guthrie Higher Education Loan Programs; the 13 negotiators objected to the (alternate), representing financial aid • Carney McCullough, representing change. The committee also did not administrators at institutions of higher the U.S. Department of Education. reach consensus on the proposed education; including the National At its first meeting, Committee II changes to § 668.14, which would have Association of Student Financial Aid reached agreement on its protocols and modified the section of the program Administrators agenda. During later meetings, the participation agreement that relates to • Laurie Quarles and Alisa Abadinsky Committee reviewed and discussed incentive payment restrictions, because (alternate), representing business drafts of proposed regulations. The two of the 13 negotiators opposed the officers and bursars at institutions of Committee met over the course of proposed changes. Finally, the higher education, and institutional several months, beginning in January committee reached conceptual servicers; including the Coalition of 2002. agreement on the issue of timely refunds Higher Education Assistance In addition to the proposed (§ 668.173), but did not review or agree Organizations and the National regulations discussed under the section to the actual text of the regulatory Association of College and University of this document called SIGNIFICANT language. Detailed discussions of these Business Officers; PROPOSED REGULATIONS, Committee issues are provided in the body of this • Reginald T. Cureton and William II discussed other issues related to the document. ‘‘Buddy’’ Blakey (alternate), administration of the Title IV student The negotiated rulemaking protocols representing the American Indian assistance programs. Those issues, provide that, unless agreed to otherwise, Higher Education Consortium, the which are more comprehensively consensus on all of the amendments in
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the proposed regulations must be ownership and control under the or as a sole proprietorship, the achieved in order for consensus to be institutional eligibility and financial institution’s parent corporation, or other reached on the entire NPRM. responsibility regulations. entity such as a partnership. The Section 600.31 provides for the excluded transfer would apply to the Significant Proposed Regulations treatment of changes of ownership and owner’s equity interest or partnership We discuss substantive issues under establishes that an institution that interest in that entity. the sections of the proposed regulations undergoes a change in ownership Reason: We agree that the scope of to which they pertain. Generally, we do resulting in a change of control ceases family members in the current not address proposed regulatory to qualify as an eligible institution until exemption for transfers within a family provisions that are technical or it establishes that it meets eligibility and is too narrowly defined, and also agree otherwise minor in effect. certification requirements. Section that the current restriction that transfers 600.31(e) provides that a transfer of Branch Campuses (Section 600.8) of ownership and control of an ownership and control due to the institution within a family may only be Current Regulations: Section 600.8 retirement or death of the institution’s excluded from the change of ownership implements the statutory requirement owner to a member of the owner’s regulations when made in connection that a branch campus may request family or to an individual with an with the death or retirement of the certification as a main campus or as a ownership interest in the institution owner is overly restrictive. The free-standing institution only after it has who has been involved in the proposed regulations would require that been certified by the Secretary for at management of the institution for two the transfer to an owner’s family least two years. However, the regulation years prior to the transfer is not member be reported under § 600.21. The does not reflect the statutory distinction considered a change of ownership and reporting of that transfer is required to that the two-year certification control for purposes of institutional keep our records up-to-date. requirement applies only to a branch of eligibility. a proprietary institution of higher Suggested Change: A group of Definition of Academic Year—‘‘12-Hour education or of a postsecondary institutions suggested that the definition Rule’’ (Sections 668.2, 668.3, and 668.8) vocational institution. of ‘‘family member’’ in the regulations Current Regulations: The definition of Suggested Change: We recommended be expanded to include other persons in an academic year appears in § 668.2. that the regulation clarify that the ‘‘two- the owner’s family including people Section 481(a)(2) of the HEA provides year rule’’ in § 600.8 applies only to an who become part of the owner’s family that an academic year, for Title IV, HEA eligible branch campus of either a as a result of remarriage. They also student financial assistance purposes, proprietary institution of higher suggested broadening the list of must contain at least 30 weeks of education or a postsecondary vocational transactions that are not considered instructional time. For undergraduate institution. changes in ownership to include programs, the law requires that over the Proposed Regulations: The proposed situations where an owner who was 30 weeks of instructional time a full- regulation would specifically refer to a retiring from operating an institution time undergraduate student must be branch campus of either an eligible and transferring ownership to another expected to complete at least 24 proprietary institution of higher family member would still perform semester or trimester hours, 36 quarter education or an eligible postsecondary some duties at the institution. hours, or 900 clock hours. Section vocational institution as the only types Proposed Regulations: The proposed 481(b) of the HEA sets forth minimum of institutions whose branches are changes to §§ 600.21(f) and lengths of time for certain eligible covered by the two-year certification 668.174(c)(4) would expand the programs in terms of weeks of requirement. definition of a member of the family to Reason: Under sections 102(b) and (c) include grandchildren, a spouse’s instructional time. of the HEA, the ‘‘two-year rule’’ is children and grandchildren, and family Section 668.2 currently defines a applicable only to an eligible branch members as a result of remarriage. week of instructional time for campus of either a proprietary The proposed change to § 600.31(e) educational programs that measure institution of higher education or a would expand the conditions under academic progress using credit hours postsecondary vocational institution which transfers of ownership and and standard terms (semesters, and is not applicable to an institution of control to family members are not trimesters, or quarters) or clock hours, higher education as defined in § 600.4 of considered a change of ownership for as any week in which one day of the regulations. institutional eligibility purposes. We are regularly scheduled instruction, However, it should be noted that a proposing to expand the current examination, or preparation for single public or non-profit institution exception in the regulations to allow an examination is offered—the one-day can be both an institution of higher owner to transfer his or her interest in rule. For educational programs that education and a postsecondary an institution to a member of his or her measure academic progress using credit vocational institution depending upon family, provided that the ownership hours and are either nonterm or the programs it offers. In such a case, transfer is reported to the Department nonstandard term programs, the the ‘‘two year rule’’ would apply if the under § 600.21(a)(6). The proposed regulations define a week of institution wanted a branch campus that regulations would clarify that the instructional time as any week in which offered vocational programs of less than excluded transfer would be only to at least 12 hours of instruction, one year to become a free-standing persons that have held an ownership examination, or preparation for institution. interest and a management role at the examination is offered. This regulatory institution for at least two years. requirement for programs using credit Change of Ownership (Sections 600.21, Finally, the proposed regulations hours in non-standard terms or without 600.31 and 668.174) would also clarify that the entity terms is commonly referred to as ‘‘the Current Regulations: Sections covered by the change of ownership 12-hour rule’’. 600.21(f) and 668.174(c)(4) define who requirements and that signs the Program Eligible program requirements are is considered a family member for Participation Agreement (PPA) may be codified in § 668.8 and include the same purposes of transfer of institutional the institution signing as a corporation definitions of a week of instructional
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time as used in the academic year discussed at length. Nearly all of the separate payment period definition for definition discussed above. negotiators were supportive of the each of the three types of academic Suggested Change: A large number of elimination of the 12-hour rule and the programs: (a) Programs that measure institutions and groups, including the adoption of the one-day rule as the progress in credit hours and have bipartisan Web-based Education definition of a week of instructional academic terms, (b) programs that Commission chartered by the Higher time for all types of educational measure progress in credit hours and do Education Amendments of 1998, programs. not have academic terms, and (c) suggested that the 12-hour rule be One negotiator, while recognizing the programs that measure progress in clock eliminated. Many suggested that the need for change in this area, felt that we hours. one-day rule be adopted as the should wait until the reauthorization of In all three types of programs, the definition of a week of instructional the HEA and then address, in a more main point of having payment periods time for all types of educational comprehensive manner, all issues is to ensure that a student’s award is programs, not just those measuring related to providing student financial paid in approximately equal increments academic progress using standard terms assistance to students enrolled in over the course of the student’s program or clock hours. nontraditional educational programs. of study, with those payments usually Proposed Regulation: These proposed Every negotiator, including those who being made at least twice during an regulations would eliminate the 12-hour voiced opposition to the elimination of academic year. The current regulations rule for nonstandard and nonterm the 12-hour rule, agreed that the current do not specifically address how to educational programs that measure rule was problematic, limited determine the beginning and end of a progress in credit hours, and adopt a educational opportunities, and needed payment period when a student who single regulatory standard for all types to be changed. However, those was paid for a payment period of educational programs. negotiators who voiced opposition did withdraws before completing that Under the proposed regulation, the not propose any alternatives to the one- payment period and returns to the same current definition that has applied for day rule. institution or transfers to another several years to credit hour, standard While nearly all of the negotiators institution. The ambiguity on how the term programs would also apply to agreed with the proposal to replace the regulations are to be applied in such credit hour nonstandard term and credit 12-hour rule with the one-day rule, the instances may have resulted in an hour nonterm programs. Under this committee was unable to reach uneven application of the regulations longstanding definition, a week of complete consensus on the proposal. for these students. instructional time is a week in which However, we agree with the vast Suggested Change: With the proposed there is at least one day of regularly majority of the negotiators and the replacement of the 12-hour rule with the scheduled instruction or examinations, constituents whose interests they one-day rule for determining when an or after the last day of classes, at least represent that the 12-hour rule is an institution is considered to have one day of study in preparation for final unnecessary barrier to flexible and provided a week of instructional time, examinations. Similar changes would be innovative educational programs, and we suggested that there should be made to § 668.8—Eligible program. that a week of instructional time should additional disbursement safeguards for Finally, the proposed regulation be defined in the same way for all credit hour programs without terms. would move the definition of academic educational programs. We have not Specifically, we suggested that the year from § 668.2, and place the revised experienced any problem with the one- definition of a payment period for credit definition in a new § 668.3. day rule as it has been applied to hour programs without terms require Reason: Many institutions are now standard term-based and clock hour that, in addition to completing one-half offering programs in shorter time programs and believe that it is the of the academic coursework of the periods which may also have appropriate measure to adopt for all period (e.g., academic year, program, or overlapping terms and rolling starting programs. In addition, we believe that remainder of the program), the student dates. For many of the new nonstandard the clock hour/credit hour conversion complete one-half of the required weeks or nonterm educational programs, regulations (34 CFR 668.8(k) and (l)), of instruction in that period. compliance with the 12-hour rule has provide adequate safeguards. Moreover, Additionally, for the past several become increasingly difficult and at the proposed changes to the definition years institutions that offer programs in odds with the educational advantages of payment periods provide additional clock hours and credit hours without such flexible program formats provide assurance that Title IV program funds terms requested that we clarify how to for students, especially non-traditional will be properly disbursed. determine the beginning and end of a students. The 12-hour rule also results Finally, we note that accrediting payment period when a student who in significant disparities in the amount agencies are aware of these new was paid for a payment period of Title IV, HEA funding that students educational program formats, and have withdraws before completing that receive for the same amount of taken steps to ensure the quality of payment period and returns to the same academic credit, based solely on education offered in these new formats. institution or transfers to another whether the program that they are institution. enrolled in uses standard academic Payment Periods (Sections 668.4, Proposed Regulations: The proposed terms or not. 682.603, 685.301, and 690.75) regulations would amend the definition We, and most of the negotiators, are Current Regulations: Current of a payment period in § 668.4(b) to concerned that a number of the statutory regulations provide a definition of a require a student to complete the and regulatory provisions that govern payment period for the Title IV student requisite number (usually half) of weeks the Title IV student assistance programs, financial assistance programs. In in that academic year or program, in including the 12-hour rule, are stifling general, the amount of a student’s Title addition to the clock hours or credit innovation and creating inequities in IV award and the frequency and timing hours. the amount of Federal student financial of its disbursement are determined on a The proposed regulations would also assistance that students receive. During payment period basis (with special rules clarify the definition of a payment negotiated rulemaking, the proposal to for disbursements of FFEL and Direct period to specifically address the eliminate the 12-hour rule was Loans). The regulations provide a situation when a student withdraws
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from a clock hour program or a credit discussed above if a student completes student as a result of the earlier hour nonterm program during a the first 12 credits in 10 weeks, the first withdrawal. payment period, but then returns to payment period would not be If a student withdraws during a school. The proposed regulations considered to be completed and the payment period and either returns to the provide that, if the student returns to second disbursement could not be made same program at the same institution the same program at the same until 15 weeks of instructional time had after 180 days, or transfers into another institution within 180 days of the elapsed in addition to the completion of program, we believe that treating the original withdrawal, the student is 12 credit hours. student as if he or she was still in the considered to be in the same payment This addition of ‘‘half of the number same payment period would be period he or she was in at the time of of weeks’’ in the academic year (or in cumbersome for institutions to the withdrawal. Such a student would the program) to the payment period administer and for students to retain his or her original eligibility for definition is not necessary for term- understand. Therefore, we have that payment period. Once the student based, credit hour programs or for clock proposed that for such a student the completes the payment period for which hour programs. Standard academic institution start a new series of payment he or she had been paid, he or she terms currently result in payment periods. becomes eligible for a subsequent Title periods of relatively equal length. We believe that it is reasonable to IV student aid payment. Likewise, in clock hour programs, the differentiate between situations in Additionally, under the proposed student’s payment periods are based on which, on the one hand, the student regulations, a student who withdraws the completion of actual hours of returns to the same program at the same from a program during a payment instruction completed by the student, institution within a short period of time period and then returns to that program and not on the scheduled hours offered (180 days), and, on the other hand, the after 180 days, or transfers, within any in the program. student either returns to the same program after a longer period of time or time frame, into another program either We have proposed two other changes transfers into another program (either at at the same institution or at another to the definition of a payment period for the same institution or at another). institution would start new payment clock hour programs and for credit hour periods. The institution would calculate Because of the continuity in the programs without terms to address these new payment periods using the student’s attendance and similarity to a situations in which a student withdraws regular rules in the appropriate part of leave of absence in the first situation, from a program before the completion of the definition of a payment period, we believe it appropriate, and the payment period for which he or she except that it would consider the length administratively convenient to keep was paid and then either returns to the of the program to be equal to the such a student in the same payment same institution or transfers to another remainder of the program that the period upon his or her return to school. institution. student has to complete upon return to Conversely, because continuity is not the original program or transfer to When a student withdraws from a present in situations in which a another one. However, if the remainder program during a payment period and considerable time period (more that 180 of a student’s program is one-half of an returns to the same program at the same days) has passed, or in which the academic year or less, that remaining institution within 180 days, the student student transfers into a new program, period would constitute one payment is considered to be in the same payment we believe it appropriate to start that period. period he or she was in at the time of student over in terms of the calculation Reason: We believe that an additional the withdrawal. This proposed change of his or her payment periods. safeguard is needed to prevent is similar to a leave of absence, and the Program Participation Agreement institutions from structuring proposed regulation is consistent with (Section 668.14) educational programs in such a way as the current regulations for students who to allow the second payment of Title IV are granted leaves of absence. The 180- Current Regulations: Section aid for an academic year to be made day measure is consistent with the 668.14(b)(22) of the current regulations before half of the academic year (as maximum 180 days allowed for an implements the statutory restrictions on measured in weeks) actually occurs. approved leave of absence in the Return incentive payments for success in This could happen, for example, if a 24 of Title IV Aid regulations. The securing enrollment or financial aid. credit hour, nonterm program was difference, of course, is that with an Section 487(a)(20) of the HEA provides offered over a 30 week period, but was unauthorized leave of absence the that, as part of its program participation structured so that the first 12 credits institution would not know that the agreement, an institution will not were earned in the first 10 weeks, with student would be returning and would provide any commission, bonus, or the remaining 12 credits being earned in have treated the student as a other incentive payment based directly the last 20 weeks. Under the current withdrawal. Based upon that or indirectly on success in securing payment period definition, an withdrawal, the institution would have enrollments or financial aid. The only institution would be able to pay a completed the Return of Title IV Aid significant addition to the statutory student the second half of a Pell Grant calculation, which may have required it requirements in the current regulations long before the half-way point of the and the student to return funds to the is a provision that exempts from the academic year, which under the HEA Title IV programs. If the student returns incentive payment restrictions token must be a minimum of 30 weeks long. within 180 days to his or her original gifts of less than $25. Because of this concern, we are program, the student would have to Suggested Change: Many higher proposing to modify the payment period complete the remaining clock or credit education institutions have made a definition for credit hour programs hours before starting a new payment number of recommendations regarding without terms to require that a payment period and receiving Title IV aid for that activities that should be specifically period cover half of the number of new payment period. However, the exempt from the current restrictions on weeks of an academic year (or of a institution would re-disburse any funds incentive payments. These restrictions program), in addition to covering half that it had previously returned to the and our interpretation of the statutory the number of credits earned in that Title IV, HEA programs, including any requirements were identified by the period. For example, in the situation overpayment it had collected from the Web-based Education Commission as a
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barrier to students enrolling in distance • Compensation based upon period and then again after the education and on-line courses. completion of program employee completes the first year. In Institutions and many others • Pre-enrollment activities light of this common business practice requested that the regulations be • Managerial and supervisory and using the conference report amended to explicitly identify certain employees language as a guide, we believe, as did types of payments and compensation • Token gifts a majority of the negotiators, that two plans that do not violate the current • Profit distributions salary adjustments within a twelve statutory restrictions. Another more • Internet-based activities month period is the appropriate specific suggestion from institutions and • Payments to third parties for non- balance. As a result, the proposed the Web-Based Education Commission recruitment activities regulations provide that an institution • was that the regulations should clearly Payments to third parties for that makes up to two adjustments permit an institution to contract with an recruitment activities (upward or downward) to a covered outside entity that offers enrollment and Reason: As indicated above, section employee’s (one who is involved in information services through the World 487(a)(20) of the HEA prohibits an recruitment, admissions, enrollment, or Wide Web and allow the institution to institution that participates in programs financial aid activities) annual salary or pay for those services based on the authorized under Title IV of the HEA fixed hourly wage rate within any number of prospective students visiting from providing any commission, bonus, twelve month period is not in violation the site who ultimately apply to, or or other incentive payment based of the restrictions on incentive enroll at, the institution. Such services directly or indirectly on success in payments. However, consistent with the are currently not considered to be a securing enrollments or financial aid. conference language the basis for any violation if they are done through an This provision was enacted as part of adjustment may not be solely the institution’s own Web site. the Higher Education Amendments of number of students recruited, admitted, Another suggestion was that the 1992. While the statutory language enrolled, or awarded financial aid. regulations clarify that the incentive noting ‘‘directly or indirectly’’ is broad, The proposed regulations also provide payment restrictions do not extend to the conference committee report on the that one upward adjustment resulting revenue-sharing agreements between legislation included the following from a cost of living increase within a institutions and third-party service statement to clarify the legislative intent twelve month period that is paid to all providers as long as the third-party and limits of these restrictions: or substantially all of the institution’s servicers have no decision-making ‘‘The conferees wish to clarify, employees will not be considered an authority for admissions decisions or however, that the use of the term ‘‘adjustment’’ for the purpose of this financial aid awards. ‘indirectly’ does not imply that regulation. Proposed Regulations: The proposed institutions cannot base employee We believe the proposed regulations regulations begin, in § 668.14(b)(22)(i), salaries on merit. It does imply that for compensation adjustments address by re-stating the statutory prohibition such compensation cannot solely be a the concern that such adjustments are against incentive payments. function of the number of students not formulated in a way that Paragraph (b)(22)(ii) of the proposed recruited, admitted, enrolled, or circumvents the statutory prohibition regulations lists 12 types of activities awarded financial aid.’’ against incentive payments. and payment arrangements that an Consistent with this clarification of legislative intent, the proposed B. Enrollments in Programs That Are institution may carry out without Not Eligible for Title IV, HEA Assistance violating the incentive payment regulations are based on a purposive restrictions provision. We believe that reading of section 487(a)(20) of the HEA. The program participation agreement these ‘‘safe harbors’’ will allow The list of specifically permitted established under section 487 of the institutions to maintain payment and activities provides a reasonable and HEA applies only to programs eligible compensation plans that are in workable framework that institutions for Title IV HEA program assistance. compliance with the HEA and the can use to determine if a payment is a Therefore, the proposed regulations do regulations. violation of the incentive payment not consider payments to recruiters and The list of ‘‘safe harbor’’ activities is restrictions. Most non-Federal others based upon the enrollment of derived from compensation and negotiators were supportive of this type students in programs that are not payment plans that the majority of the of regulatory structure. eligible for Title IV funding to be a negotiators agreed should be included. What follows is a brief discussion of violation of the incentive payment They provide institutions with specific, each of the payment types included in restrictions. the proposed regulations. concrete examples of payments they can C. Contracts With Employers make that do not violate the statutory A. Adjustments to Employee Many institutions suggested that the provision. We have not, however, Compensation included in the regulations a development of contractual agreements complementary listing of payment or The inclusion of compensation for training or instruction between an compensation plans that are adjustments under this provision of the institution and an employer is another impermissible. proposed regulations recognizes the area where the incentive payment The specific types of payments or balance between the need of an restrictions should not be applied. They compensation plans included in the institution to base its employees’ argued that the restrictions on incentive listing in paragraph (b)(22)(ii) cover the salaries or wages on merit, and concern payments should not apply in situations following subjects, which are further that such adjustments do not make the where an individual is paid for discussed below: statutory prohibition against the successfully obtaining a contract for the • Adjustments to employee payment of commissions, bonuses and institution to provide education and compensation other incentive payments meaningless. training to a business’s employees. We • Enrollments in programs that are During the deliberations some of the agree that as long as there is no direct not eligible for Title IV, HEA assistance non-Federal negotiators stated that contact by the institution’s • Contracts with employers institutions commonly adjust a new representative with students and • Profit-sharing or bonus payments employee’s salary after a probationary because the employer is paying a
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significant portion (at least 50 percent) organizational level. We agreed with supervisors should be covered because of the training costs, such activities are this proposal after restating that such an their actions generally have a direct, not considered to be ‘‘recruitment’’ or organizational level could not consist immediate, and dramatic impact on the the ‘‘securing of enrollments’’ under the predominantly of recruiters, admissions individuals who carry out these covered provisions of section 487(a)(20) of the staff, or financial aid staff. activities. The incentive payment HEA. Therefore, the proposed restrictions do not extend to supervisors E. Compensation Based Upon regulations provide that incentive who do not directly manage or Completion of Program payments may be paid to individuals for supervise employees who are directly arranging contracts under which the Completion of an academic program involved in those activities. They also institution provides education and is not ‘‘enrollment’’ under the do not apply when an employee, training to employees provided that the provisions of section 487(a)(20) of the manager or otherwise, occasionally has employer pays 50 percent or more of the HEA. We believe that one of the reasons direct contact with a prospective tuition and fees charged for the training for the prohibition against incentive student. For example, there would be no and the payments provided to the payments for success in recruitment, problem if the president of an individual are not based upon either the admissions, enrollment, or securing institution, who was compensated at number of employees who enroll or on financial aid, is to prevent institutions least partially on the profitability of the the amount of revenue generated by from enrolling students into a program institution, happened, on a very those employees. The employer may without regard to their qualifications or occasional basis, to offer a tour of the pay the tuition and fees either directly likelihood of completing the program. institution to a prospective student. to the institution or by reimbursement Most of the negotiators believed that the H. Token Gifts to the employee. The institution’s completion of the program or, in the representative may not have any contact case of students enrolled in a program The negotiators indicated support for with the employees. longer than one academic year, the an increase of the current $25 limit that During the discussion on this issue in completion of the first academic year is is allowable for a single gift to a student the negotiated rulemaking committee a reliable indicator that the student was or an alumnus of the institution. We much attention was given to how much, qualified for the program. Therefore, the realize that the cost of a token gift has if any, of the institutional charges proposed regulations allow payments risen since the inception of the current should be paid by the employer for the made to an institution’s employees regulation and therefore propose to institution not be in violation of the based upon students’ successful increase the maximum cost of a token, incentive payment restrictions. Some completion of their educational non-cash gift that may be provided to an negotiators suggested that the amount or program, or one academic year for a alumnus or student to not more than percentage paid by the employer was longer program, not to be a violation of $100. Moreover, the proposed irrelevant. Others thought that the the incentive payment restrictions. regulations would also expand the payment by the employer of a limitation of a single gift provided to a F. Pre-Enrollment Activities significant portion of the costs of the student or alumnus by the institution, to training was critical in determining Generally, pre-enrollment activities not more than one gift annually. whether the program was a contract are not considered recruitment. The The cost basis of a token non-cash gift training program with the employer proposed regulations recognize the is what the institution paid for it. The rather than simply enrollment of ancillary nature of various supportive value is the fair market value of the individual employees. They also argued activities that, while part of the overall item. Some of the negotiators wanted to that to the extent the employer pays a recruitment or financial aid process, are use ‘‘value’’ rather than ‘‘cost’’ because significant share of the tuition and fees somewhat removed from the actual they were concerned that an outside of the employees’ education and recruitment and admissions of students source would donate something of great training, there would be less likelihood or the awarding of financial aid. value to an institution, and the that unqualified students would be Therefore, individuals whose institution would give it to a student or enrolled. responsibilities are limited to ‘‘pre- alumnus as an incentive to recruit enrollment’’ activities that are clerical in students. One negotiator argued that if D. Profit-Sharing or Bonus Payments nature are outside the scope of the a car were donated to the institution, the Generally, profit-sharing and bonus incentive payment restrictions. It is not cost to the institution would be zero, payments are not payments based on a violation of the incentive payment and therefore permitted to be a token success in securing enrollments or restrictions for employees engaged in gift under the proposed regulations. In awarding financial aid unless they are pre-enrollment activities to be addition to pointing out the made only to employees who are compensated based upon such pre- unlikelihood of that scenario, we noted involved in recruitment, admissions, enrollment activities as long as the that the proposed (and current) enrollment, or financial aid. Therefore, number of people who actually enroll is regulations specifically use the term the proposed regulations provide that not a factor in determining the ‘‘token gift’’ and anything of great value, such payments made by an institution compensation. However, soliciting such as a car, would certainly not be are not prohibited as long as those students for interviews is recruitment considered ‘‘token’’ as that term is payments are made to all or and not a pre-enrollment activity. reasonably understood to mean. substantially all of the institution’s full- time professional and administrative G. Managerial and Supervisory I. Profit Distributions employees and are substantially the Employees Profit distributions to owners are not same amount or are based upon the We believe the incentive payment payments based on success in securing same percentage of salary. During the restrictions apply only to those enrollments or awarding financial aid. discussion on this issue several individuals who perform activities Therefore, the proposed regulations negotiators asked that such payments related to recruitment, admissions, specifically acknowledge that any also be in compliance even if they were enrollment, or the financial aid owner, whether an employee or not, is not made to all of an institution’s awarding process and their immediate entitled to a share of the organization’s employees but to only those at the same supervisors. We believe that direct profits. However, any profit
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distributions under this paragraph are We believe that Congress included these attendance for some or all of its permitted only to the extent they outside entities because it did not want students. Absent a determination by an represent a proportionate distribution an institution to avoid the limitations in outside entity that the institution is based upon the employee’s ownership that section merely by using an outside required to take attendance, the interest. entity. On the other hand, we believe institution would be considered to be that Congress did not intend to limit an J. Internet-Based Activities one that is not required to take institution’s ability to contract with attendance. Institutions have indicated their need outside entities for recruitment, Reason: Several of the negotiators to utilize and expand the most admissions, enrollment, or financial aid expressed concern with our current accessible and cost-effective means services if the outside entity adheres to interpretation of the definition of an possible for recruitment and admission the same limitations that apply to institution that is required to take activities. The report of the Web-based institutions. Payments made by an attendance. We have previously stated Education Commission found that, institution to a third party would not that if we determine that the only way ‘‘Although not the original intent, the violate the incentive payment that an institution can comply with a language [of the incentive payment restrictions as long as the individuals requirement of an outside entity is to restriction] effectively bars higher performing any activities related to take attendance, the institution is education institutions that participate in recruitment, admissions, enrollment, or considered to be ‘‘required to take Title IV from using third-party Web financial aid were compensated in a attendance’’ even if the outside entity portals to provide prospective students way that would otherwise be states that it does not require the with access to information about many permissible under the standards in this institution to take attendance (Dear institutions or provide the same services section for covered employees of the Colleague Letter GEN–00–24). as institutions offer on their own Web institution. Several of the negotiators felt that we sites * * *’’. The Commission At the conclusion of the discussion on should defer to the outside entity to suggested that the regulations permit an the issue of incentive payment determine when requirements of that institution to contract, without violating restrictions, all the negotiators agreed entity mean that an institution is the incentive payment restrictions, with that clarification was needed in the area required to take attendance. The an outside entity that offers services of the incentive payment restrictions negotiators believed that the outside through the World Wide Web. and that the issuance of specific entity was in the better position to make Moreover, we believe that for guidance in the regulations was that determination, not the Department. purposes of these regulations, the preferable to our earlier use of private The committee agreed to modify the Internet is simply a communications letter guidance in response to individual regulations to make clear that an medium, much like the U.S. mail, and inquiries. However, because universal institution is considered to be ‘‘required direct mail solicitations and agreement could not be reached on to take attendance’’ only when an advertisements have generally not been some of the specific proposals outside entity has determined that the considered within the scope of the presented, the committee was not able institution must, even for a limited incentive payment restrictions. to reach consensus on the proposed period of time, take attendance for some Therefore, the proposed regulations do regulatory language related to the or all of its students. not preclude an institution from incentive payment restrictions. compensating a service provider for Institutions should note that we have Institutions Required to Take not changed the existing regulatory Internet-based recruitment and Attendance (Section 668.22) admission services. requirement in § 668.22(b)(3)(ii), which Current Regulations: Section provides that if an outside entity K. Payments to Third Parties for Non- 668.22(b)(3) defines, for purposes of the specifically requires an institution to Recruitment Activities Return of Title IV Aid calculations, an take attendance for only a portion of its Section 487(a)(20) applies only to institution that is ‘‘required to take students, the institution is required to recruiting, admissions, enrollment, or attendance’’ as one that is required to use the attendance records for those financial aid. Therefore, these proposed take attendance by an entity outside of students only. The institution would not regulations would not consider the institution, such as the institution’s be required to take attendance for any of payments to third parties for services to accrediting agency or a State agency. its other students unless it is required to the institution other than recruiting, Suggested Change: Some institutions take attendance for those students by admissions, enrollment, or financial aid and the non-Federal negotiators another entity. services, to be in violation of the suggested that we provide greater If an outside entity has a requirement, incentive payment restrictions. Under specificity in the definition of when an as determined by that entity, for the such arrangements, the third party institution is considered to be one that institution to consistently take might provide services such as is required to take attendance. In attendance for a limited period of time instruction, curricula, and course particular, they wanted the regulations (e.g., up to a census date), the institution materials. This provision would clearly to clearly state that an institution is one meets the definition of an institution establish that payments to third parties, that is ‘‘required to take attendance’’ required to take attendance for that including tuition sharing arrangements, only if the outside entity has limited period of time only. If a student that are not for recruitment, admissions, determined that it requires the ceased enrollment during that limited enrollment, or financial aid services, institution to take attendance. period, the institution must use its would not be in violation of the Proposed Regulations: Under the attendance records to determine the incentive payment restrictions. proposed regulations in § 668.22(b)(3)(i), student’s withdrawal date. However, if for the purposes of determining the an outside entity has a requirement, as L. Payments to Third Parties for withdrawal date of a student, an determined by the entity, to take Recruitment Activities institution would be considered to be attendance for a single day such as Section 487(a)(20) applies both to one that is ‘‘required to take attendance’’ attendance for census purposes, that individuals who work for the institution only when an outside entity determines single event would not cause the and to entities outside the institution. that it requires that the institution take institution to meet the definition of an
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institution that is required to take the number and type of leaves of comply with when students return from attendance. absence that they can approve. a leave of absence but, instead of Also, as we have previously Proposed Regulations: The proposed resuming their academic program at the indicated, when an institution regulations would simplify the point they began the leave of absence, administratively withdraws a student approved leave of absence definition by they repeat prior coursework in from all of his or her classes the student allowing multiple leaves of absence at preparation for continuing in the is considered to have officially the discretion of the institution, as long original program of study. withdrawn as of the date of that as the total number of days for all leaves One element of an approved leave of administrative withdrawal. This does not exceed 180 days within a 12- absence is that the institution may not guidance applies regardless of whether month period. As a result, we propose impose additional charges when the or not the institution is required to take to remove the current language that approved leave of absence ends and the attendance. describes the exceptions to the single student resumes his or her program of Consistent with that guidance, when, leave of absence rule. study. The same requirement holds through a census on a certain date or The requirement that an institution’s when a student returns for the purpose similar process, all of a student’s leave of absence policy require a student of repeating prior coursework to instructors indicate that the student is to submit a written request would be enhance his or her skills and knowledge no longer in attendance, the student is modified to require that the request in order to resume the program. That is, considered to have officially withdrawn must include a reason. a student may return and repeat prior Reason: Some of the non-Federal as of the census date. coursework as long as the student does negotiators indicated that the range of not incur additional institutional Leaves of Absence (Section 668.22) reasons that cause students to need charges. As a result, the student would multiple leaves of absence can be Current Regulations: Section also not be eligible for any additional outside the scope of the current 668.22(d)(1)(vi) of the Return of Title IV Title IV program assistance for this regulations, but nonetheless important Aid regulations provides that generally, preparatory phase, even if the student for the students and their families. Also, only one leave of absence that meets were to start again at the beginning of the restriction in the current regulations the module or course from which he or certain requirements and does not that the first subsequent leave of exceed 180 days in a 12-month period she took the leave of absence. absence, although it may be granted for Until a student described above has may be granted to a student. However, any unforeseen circumstance, be limited resumed the academic program at the additional leaves of absence may be to no more than 30 days, is arbitrary in point he or she began the leave of granted under exceptions provided in practice and results in unfair treatment, absence, the student is considered to § 668.22(d)(2). One of those exceptions while not providing any additional still be on the approved leave of allows an institution to grant an protection for either the student or the absence, including during the time the additional leave of absence if the programs. For example, if a student had prior coursework is being repeated. subsequent leave of absence does not taken a leave of absence for 61 days and Since such a student is considered to be exceed 30 days and it is due to subsequently needed an additional on a leave of absence while repeating unforeseen circumstances. Additionally, leave of absence of 31 days for prior coursework, if the student fails to other leaves of absence may be granted unforeseen circumstances, under the begin attendance at the point in the if the institution documents that the current regulations the second leave academic program where he or she left leaves are for jury duty, military could not be an approved leave of off at the beginning of the leave of reasons, or circumstances covered under absence. The total of 92 days for leaves absence, the regulatory requirement that the Family and Medical Leave Act of of absence is significantly less than the a student who fails to return from an 1993. maximum of 180 days allowable, but approved leave of absence must be Current regulations also provide that because the second leave of absence for treated as a withdrawal back to the start a leave of absence for Return of Title IV unforeseen circumstances is for more of the leave of absence applies. The date Aid purposes must have been granted than 30 days, it cannot meet the current of the student’s withdrawal that must be by the institution under its formal leave definition in § 668.22(d)(2)(i). used in the Return of Title IV Aid of absence policy. An institution’s leave We agree that if there is a reasonable calculation is the date that he or she of absence policy is a formal policy if expectation that a student will return began the leave of absence and not the it is in writing and publicized to from a leave of absence, it is better to date the student ceased participation in students, and it requires students to keep the student enrolled than to have the repeated courses. provide a written request for a leave of the student withdraw. absence. The current regulations already Overpayments (Sections 668.35, 673.5, Suggested Change: Some institutions provide that an institution must and 690.79) and the non-Federal negotiators determine, before it grants a leave of Current Regulations: Section recommended that the protection absence, that there is a reasonable 668.35(c) provides that a student who provided by the 180-day maximum expectation that the student will return receives a Federal Perkins loan or Title timeframe within a 12-month period for from the leave. In order for the IV grant overpayment of any amount is an approved leave of absence is institution to make such a eligible to receive further Title IV aid sufficient to prevent abuse and that determination, it must know the only if the student repays the tracking the reasons for requests for student’s reason for requesting the overpayment in full or makes subsequent leaves and evaluating them leave. For this reason, the proposed arrangements, satisfactory to the holder against certain limited exceptions is language would require the institution’s of the debt, to repay the overpayment. administratively burdensome. They formal leave of absence policy to Sections 673.5(f) and 690.79 establish stated that institutions should have include the requirement that the student student and institutional liability for broad flexibility to make the best provide the reason for the requested Perkins loan, FSEOG, and Federal Pell determination for each student based leave of absence. Grant overpayments and specify the upon his or her unique needs and We have been asked to clarify the repayment and collection of such, as situation rather than being limited by requirements that an institution must well as the conditions for the referral of
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FSEOG and Pell Grant overpayments to is neither a remaining balance nor a It is important to note that for all the Secretary. result of applying the overaward programs the de minimis $25 amount For all three programs, the regulations threshold for the campus-based must not be the result of a remaining provide that the student is liable for any programs allowed under § 673.5(d). balance. A remaining balance less than overpayment made to the student The proposed regulations would $25 occurs when the overpayment regardless of the amount. They also revise §§ 673.5(f) and 690.79 to specify amount for which the student was provide that the institution is liable for that a student is not liable for a Perkins responsible was originally $25 or more, any overpayment that was the result of loan, FSEOG, or Pell Grant overpayment but is now less than $25 because of its failure to comply with the that is less than $25 and is not a payments made. In such cases, even appropriate regulatory requirements. In remaining balance and, for a Perkins though the balance of the overpayment addition, the regulations provide that, loan or FSEOG overpayment, is not the now owed is less than $25, the de for any overpayment for which it is not result of applying the $300 campus- minimis standard would not apply, and liable, the institution must assist the based overaward threshold. The the student would still be responsible Secretary in recovering that proposed regulations also would for fully repaying that remaining overpayment. specify, for all three programs, that a balance. The student would also not be For Perkins and FSEOG overpayments student is not liable for an overpayment eligible for additional Title IV aid until only, the regulations also provide that if the institution is liable for it. the overpayment is fully paid or the institution must promptly send the The proposed regulations would satisfactory arrangements to repay are student a written notice requesting provide that for purposes of FSEOG made. repayment of the overpayment. In overpayments, the provisions apply Federal Perkins Loan and FSEOG contrast, however, the regulations for only to the Federal share of FSEOG overpayments that result from the the Pell Grant program require the awards if the institution meets its application of the $300 campus-based institution to make a reasonable effort to matching share by the individual overaward threshold also would not be contact the student and recover the recipient method or the aggregate subject to the de minimis standard. For overpayment. method. When an FSEOG award is example, if an institution discovers that Also, the Perkins and FSEOG matched under the fund specific a student with campus-based funds regulations require the institution to method, the entire amount of the award subsequently received additional consider any objection made by the sources of aid such that the student is student that the overpayment would be subject to the provisions of § 673.5(f). now overawarded by $314, the student determination is erroneous and to would have a campus-based The proposed regulations would make determine whether the objection is overpayment of $14 after the $300 the collection and referral requirements warranted. The Pell Grant regulations overaward threshold is applied. In this for a Pell Grant overpayment consistent do not specify this step. instance, the student would still be with current requirements for FSEOG For the Perkins program, the responsible for the $14 overpayment overpayments. They would specify that institution is responsible for attempting and would not be eligible for additional when attempting to collect a Federal to collect any overpayment and cannot Title IV student aid until the refer the overpayment to the Secretary. Pell Grant overpayment, the institution overpayment is resolved. Any amount collected must be returned must provide written notice of the In order to provide consistent to the institution’s Federal Perkins Loan overpayment to the student, and if a treatment among the programs, the fund. If an FSEOG overpayment is not student objects to an overpayment proposed change to the Pell Grant resolved, the institution must refer it to determination on the grounds that it is regulations would provide that an the Secretary if it is $25 or more. An erroneous, the institution must institution must promptly send a unresolved Pell Grant overpayment determine whether the objection is written notice to the student requesting must also be referred to the Secretary, warranted. repayment of an overpayment. (Note but the regulations are silent on a For student overpayments that meet that unless specifically indicated minimum amount. the conditions of the proposed de otherwise, any written notice Suggested Change: At various minimis standard, an institution would requirement can be delivered by conferences and meetings, institutions not be required to attempt recovery of electronic means, as well as via paper have suggested that the regulations on the overpayment, report it to NSLDS, or methods.) the treatment of overpayments be refer it to the Secretary. To provide students with the applied consistently to all of the Title IV Reason: Institutions have questioned opportunity to object to any programs. Further, they suggested that the complexity created by making overpayment determination that they the treatment of overpayments students ineligible for further Title IV believe is in error, we are proposing the incorporate the de minimis amount funding due to small overpayments and same requirement for the Pell Grant concept that currently applies to a grant the cost effectiveness of collecting such program that currently exists for the overpayment under the Return of Title small amounts. They thought that the Perkins and FSEOG programs. That is, IV Aid requirements. That is, they current grant overpayment policies institutions would be required to allow suggested that a student not lose under the Return of Title IV Aid students to object to a Pell Grant eligibility for Title IV funds nor be requirements allowed more flexibility overpayment determination on the required to repay an overpayment if the and should be adopted for other types grounds that it is erroneous. The original overpayment amount is less of overpayments. They further noted an institution would be required to than $25. This request was repeated by inconsistency in the treatment of consider any information provided by some of the non-Federal negotiators. different types of overpayments. The the student and determine whether the Proposed Regulations: The proposed negotiators agreed with the reasons objection is warranted. regulations would revise § 668.35(c) to provided by the institutions. The The proposed regulations would not allow a student to remain eligible to regulatory changes of applying a $25 de modify the responsibilities of an receive additional Title IV aid if the minimis standard to other overpayments institution when it is liable for an amount of the Perkins Loan or Title IV are proposed for consistency, simplicity, overpayment. If the institution is liable grant overpayment is less than $25 and and cost effectiveness. for an overpayment of any amount, it
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must immediately return the amount of publisher or from the assessment center institution must make a late the overpayment to the appropriate Title that administered the test. disbursement (referred to as a ‘‘post- IV student aid account or otherwise Proposed Regulations: The proposed withdrawal disbursement’’) and a return the funds to the Secretary as regulations would revise § 668.32(e) by provision of the late disbursement appropriate. These regulations would eliminating the provision that limits the regulations under which an institution not prevent an institution from billing duration of a passing score on an appears to have the choice of whether or otherwise holding the student approved ATB test to 12 months before to make the late disbursement. responsible for the amount of the a student initially receives Title IV, HEA The third and fourth suggestions deal overpayment that the institution program assistance. with the requirement that, as a returned. However, such a debt is, by The proposed regulations would make condition for making a late definition, not a Title IV debt and it clear that an institution must obtain disbursement an institution must have cannot be considered as such. the results of an approved ATB test received a SAR or ISIR with an official Further, these proposed regulations directly from either the test publisher or EFC before the date a student became would not change the current rule that the assessment center that administered ineligible. The non-Federal negotiators an institution is not required to refer to the test. suggested that this requirement should the Secretary a Federal Perkins loan Reason: We agreed with the non- not apply to a late disbursement of a overpayment, because all payments Federal negotiators that an ATB test PLUS loan because the EFC is not must be returned to the institution’s score should be valid for as long as the needed by an institution to certify or revolving loan fund. test publisher or the assessment center originate the loan. Moreover, they that administered the test is able to Finally, the proposed regulations believed that it was unfair that some provide the institution with an official would not change the fact that under the students do not qualify for a late report of the original passing score. In Return of Title IV Aid calculations in disbursement solely because institutions other words, an institution may not § 668.22, Federal Perkins loans are not may not be aware (or cannot document) accept as a valid passing test score a treated as an overpayment. Rather, that they received an ISIR before the report it received from the student or unearned Federal Perkins funds for date the student became ineligible. To from another institution (unless it came which the student is responsible are make it fair for all students, the non- from a test assessment center at another repaid according to the terms of the Federal negotiators suggested that the institution in accordance with the loan. date the SAR or ISIR was received by regulations). the institution be replaced by the date Expiration of Ability to Benefit Tests Late Disbursements (Section 668.164) the Secretary processed a SAR or ISIR (Sections 668.32 and 668.151) with an official EFC for the student. Current Regulations: Section Proposed Regulations: The proposed Current Regulations: As provided in 668.164(g) sets forth the conditions that regulations would increase the § 668.32(e), an otherwise eligible must be satisfied before an institution timeframe within which an institution student who does not have a high may make a late disbursement to an may make a late disbursement from 90 school diploma or its recognized otherwise eligible student (or the to 120 days. In addition, the proposed equivalent and who does not meet the student’s parent in the case of a PLUS regulations would provide that, for home-schooled standards of the loan) who has become ineligible either those cases in which the student is not regulation is eligible to receive Title IV, because the student is no longer at fault, we may approve an institution’s HEA program assistance only if the enrolled at the institution or, for FFEL request to make a late disbursement student has obtained a passing score, as and Direct Loan purposes, is no longer after 120 days. specified by the Secretary, on an enrolled on at least a half-time basis. With respect to when an institution approved ability-to-benefit (ATB) test One of the conditions is that the must make a late disbursement in cases within 12 months before the date the institution must have received a SAR or in which a student withdraws and is student initially receives Title IV ISIR for the student before the student eligible for a post-withdrawal program assistance. became ineligible. If all of the disbursement, the proposed regulations Section 668.151(a)(2) requires an conditions are met, an institution has 90 incorporate directly, rather than by institution to use the results of an days from the date the student became cross reference, the requirement that an approved test to determine a student’s ineligible to make the late disbursement. institution must make or offer the eligibility for Title IV assistance if the Suggested Change: Institutions disbursement, as appropriate. The approved test was independently and suggested that the regulations be proposed regulations would also require properly administered. modified to reflect our private letter an institution to offer or make the late Suggested Change: Institutions guidance that allows, under limited disbursement to the student (or the suggested that the 12-month limitation circumstances, a late disbursement to be student’s parent for a PLUS loan) for a on the acceptability of an ATB test made after the 90-day regulatory student who completed the payment passing score was not necessary and deadline. Under this guidance, a period or period of enrollment. should be removed from the regulations. guaranty agency, or the Department for These proposed regulations would They pointed out that one of the a Direct Loan, may permit an institution adopt the suggestions made by the non- alternatives to a passing score on an to make a late disbursement of the loan Federal negotiators to eliminate the approved ATB test is either a high if the reason the disbursement was not SAR/ISIR requirement for a late school diploma or its equivalent, but made within 90 days was not the fault disbursement of a PLUS loan. neither the diploma nor its equivalent of the student. The proposed regulations would expires after a certain period of time. They also suggested that we clarify change the requirement that the During the negotiated rulemaking the circumstances in which an institution must have received a SAR or discussion on ATB testing, we suggested institution must make a late ISIR before the student became that the regulations should be modified disbursement and those in which it has ineligible to a requirement that a SAR or to make it clear that an institution must the option to do so. In particular, the ISIR, with an official EFC, must have obtain the results of an approved ATB institutions pointed to the Return of been processed by the Secretary before test directly from either the test Title IV Aid regulations under which an the student became ineligible.
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Finally, the proposed regulations It was noted during the discussion student who completes 100 percent of would eliminate the requirement, that that there may be situations where, the payment period or period of in order for an institution to make a late because of administrative constraints, a enrollment has the same entitlement to disbursement of a Federal Pell Grant, it late disbursement may not be possible all of his or her Title IV funds for the must have received a ‘‘valid’’ SAR or even if the request is made within the period. Under the proposed regulations, ISIR before the student became applicable timeframes. Examples of the institution would be permitted to ineligible. Instead, a student’s eligibility these constraints include the closing of credit the student’s account to pay for for a late Pell Grant disbursement would an award year’s disbursement current and allowable charges in be based upon the rule that the processing for the Pell Grant and accordance with the current cash Secretary must have processed a SAR/ campus-based programs or the management regulations. For example, ISIR with an official EFC while the termination of an FFEL lender’s an institution would have to provide student was still eligible. Of course, the processing for a year. During the notice to a student, or parent in the case institution must receive the SAR or ISIR negotiations, we were asked to consider of a PLUS loan, when the institution before the actual disbursement can be what interventions we could take in our credits the student’s account with Direct made. processing to minimize the instances in Loan, FFEL, or Federal Perkins Loan Reason: We agree with the non- which a student who was otherwise Program funds in order to give the Federal negotiators that the eligible for a late disbursement could student or parent an opportunity to Department’s informal guidance not receive the funds because of these cancel all or a portion of the loan allowing institutions to make late administrative limitations. We will disbursement. disbursements after the established provide additional guidance on this The proposed change that allows a timeframe in limited cases should be issue at a later time. student to be considered for a late made part of the regulations. Doing so In the discussions pertaining to late disbursement when the Secretary has would inform all institutions and disbursements for students that processed a SAR/ISIR with an official guaranty agencies (as opposed to only withdraw from an institution, the non- EFC rather than when the institution those that received private-letter Federal negotiators pointed to what they receives the SAR or ISIR, provides the guidance) that this procedure is viewed as an apparent conflict in the institution with an easy way to available. However, the proposed regulations. Under the provisions of document the student’s eligibility since regulations differ from the current § 668.22, an institution may be required each ISIR record includes the date that regulations and guidance in two ways. to make a late disbursement (post- the Secretary processed the application First, we believe that increasing the withdrawal disbursement) to a student and created the SAR/ISIR. More timeframe from 90 to 120 days would who withdraws during a payment importantly, this proposed change benefit students and institutions by period or period of enrollment. would provide equity to students in the providing sufficient time, in most cases, However, under the cash management consideration of a late disbursement, for a late disbursement to be made provisions in § 668.164(g)(3)(i), an since eligibility would be based upon without our approval and without institution has the option of making a the student’s action in submitting an regard to the reason for the late late disbursement to pay for educational application (FAFSA) or correction to the disbursement. costs that a student incurred for the Secretary and not on when an Second, for the limited cases in which period in which the student was institution happens to draw its ISIRs it is not the fault of the student that a enrolled and eligible. However, it would from its electronic mailbox. late disbursement was not made within be contrary to the primary tenet in We agree with the reasons noted by the 120-day period, an institution would § 668.22—that a withdrawn student has the non-Federal negotiators for seek our approval (not that of the earned Title IV loan or grant assistance proposing changes to the regulations guaranty agency, as provided under equal to the percent of the payment regarding the relevance of the current guidance) to make that period or period of enrollment the institution receiving a SAR/ISIR for a disbursement. During the discussion on student completed—for an institution to PLUS loan, and the proposed this point, the negotiators representing deny that student a late disbursement. regulations would not require the guaranty agencies, supported by others, The current late disbursement institution to rely upon a SAR/ISIR for suggested that, for FFEL loans, guaranty regulations at § 668.164(g)(1)(ii) determining if a parent is eligible for a agencies continue to be allowed to specifically require institutions to late disbursement of a PLUS loan. approve a late disbursement based upon follow the provisions in § 668.22 for a However, we wish to make clear that in receiving information that the reason for student who withdraws from the cases in which an institution does not the delay was not the fault of the institution. Although, we are not have a SAR/ISIR, it may not certify or student. For program integrity reasons, proposing any change to this originate a PLUS loan until it we believe it is more appropriate that requirement, we are proposing to redraft documents that the student for whom we determine whether to approve a late the requirement in order to eliminate the loan is intended meets all the disbursement after the established any confusion regarding this issue. applicable eligibility requirements deadline. We offered assurances that, if Along the same lines, the proposed described in § 668.32 (the student is not this proposed rule is made final, we will rule would require an institution to pay in default, does not owe an implement an expedited process for or offer a late disbursement to a student overpayment, is a citizen or eligible approving late disbursement requests. who completes the payment period or non-citizen, etc.). While details have not been finalized, period of enrollment. Under the Finally, while these proposed we expect that we will establish a single requirements of § 668.22, a student who regulations would eliminate the point of contact for requests for late completes more than 60 percent of the requirement that for purposes of a Pell disbursements beyond the proposed payment period or period of enrollment Grant an institution must have received 120-day limit. An institution would has earned 100 percent of his or her a valid SAR or ISIR before the student make its request and provide sufficient Title IV aid and the institution must withdrew, a valid SAR or ISIR would information showing that the reason for make or offer, as appropriate, a post- still be required before an institution the delay was not the fault of the withdrawal disbursement of any of could actually make the late student or parent. those funds that were not received. A disbursement of a Pell Grant.
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Notices and Authorizations (Section reserves if an audit or review finding when the draft report was issued. They 668.165) shows that the institution did not make pointed out that, as a practical matter, Current Regulations: Whenever an required refunds in a timely manner for it is not worthwhile to require a letter institution credits a student’s account 5 percent or more of the students of credit for a small amount of money. with Title IV, HEA loan funds, it must sampled during the audit or review. In The non-Federal negotiators also notify the student (or the student’s this case, an institution must suggested changes to the 5 percent parent in case of a PLUS loan) of his or demonstrate that it has sufficient cash threshold and the timeframes for reserves by submitting a letter of credit submitting the letter of credit. her right to cancel all or part of the loan. payable to the Secretary. [Note to Finally, they asserted that an audit or The notice may be provided in writing readers: The financial responsibility review finding citing an institution for or sent electronically. If it is sent regulations in Subpart L were not fully not returning funds in a timely manner electronically, the institution must revised when the Department published may prompt an administrative or confirm that the notice was received by the regulations under § 668.22 for compliance arm of the institution to the student or parent. returning Title IV, HEA program funds. require a comprehensive review of, and Suggested Change: Institutions The regulations for returning funds changes to, its practices and procedures. suggested that the requirement that an replaced the previous ‘‘refund’’ The non-Federal negotiators believed institution confirm the receipt of a requirements. To avoid confusion over that the comprehensive review should notice sent electronically be eliminated. the terms used in the current not be prompted unnecessarily in cases Proposed Regulations: The proposed regulations, from this point forward we where the finding is for a de minimis regulations would adopt the suggested will use the phrase ‘‘returning funds.’’] number of untimely returns. change. Suggested Change: The non-Federal Proposed Regulations: Under the Reason: We no longer believe this negotiators suggested that we clarify the proposal, unearned funds must be requirement is necessary in view of timeframe that an institution has to returned no later than 30 days after the continuing advances in, and more return unearned Title IV funds that it is date of the institution’s determination widespread use of, technologies for responsible for returning. The non- that the student withdrew. The conducting electronic transactions. Federal negotiators pointed to proposed regulations would define Nevertheless, we expect institutions to § 668.22(j), which provides that an specifically when we consider the take seriously the student’s right to institution must return unearned Title institution to have returned funds reconsider his or her loan obligation IV, HEA program funds no later than 30 depending upon the method it uses to (the notice may be the student’s last days after the date of the institution’s return the funds. Specifically, the chance to cancel the loan) by taking determination that a student withdrew. regulations would provide that an steps that reasonably ensure that the However, the Department’s audit guide institution returns funds when it: (1) student receives the notice. is more specific, stating that if the funds Deposits or transfers the funds into the Also, the proposed rule would are returned by check, the check used bank account it maintains for Federal eliminate the apparent distinction must clear the institution’s bank within funds, (2) initiates an EFT to transfer the between providing the notice in writing the 30-day period. The non-Federal funds, (3) initiates an electronic or electronically. In keeping with prior negotiators believed it was unfair to transaction that instructs an FFEL guidance on this matter, we wish to hold an institution responsible for a lender to adjust a borrower’s loan for the emphasize there is generally no check clearance process that is beyond amount of the ‘‘returned funds’’, or (4) difference in the regulations between its control. They suggested that we issues a check. However, if a check is the terms ‘‘in writing’’ and clarify that an institution has 30 days to used to return unearned funds, the ‘‘electronically.’’ Unless a particular issue a check. They felt this was proposed regulations would also require regulation requires otherwise, an important since, in the context of the that the check must be received by an institution may comply with a financial responsibility regulations, any FFEL Program lender or the Secretary requirement that an activity be ambiguity in the rules could no later than 45 days after the conducted ‘‘in writing’’ by conducting inadvertently result in an institution institution determined the student that activity electronically. having to submit a letter of credit. withdrew. In response to suggestions made Timely Return of Funds (Sections During the negotiated rulemaking during the negotiating sessions, these 668.171 and 668.173) sessions the non-Federal negotiators made several suggestions regarding the proposed regulations would make Current Regulations: Under the letter of credit requirement. They several other changes. First, in cases in provisions of Subpart L of the General suggested that the regulations provide which there are exceptional Provisions regulations, one of the that an institution that would otherwise circumstances beyond an institution’s standards that an institution must be required to submit a letter of credit control or when the institution believes satisfy to be financially responsible, as not have to do so if the reason that that an auditor or reviewer made an provided in Section 498(c)(6)(A) of the funds were not returned in a timely error, the regulations would provide HEA, is that it must have sufficient cash manner was not the institution’s fault or that the institution may request the reserves to make required refunds. An was beyond the institution’s control. Secretary to reconsider a finding that it institution is considered to have They also noted that there may be failed to return unearned funds in a sufficient cash reserves if it is a public cases where the initial determination timely manner. In its request, the institution or it is covered by a State’s that an institution exceeded the 5 institution would need to submit tuition recovery fund. Otherwise, we percent threshold was in error. documents showing that it would not consider that an institution has Therefore, they wanted the letter of have exceeded the 5 percent threshold sufficient cash reserves if, for its two credit to be required only after a had it not been for the exceptional most recently completed fiscal years, it preliminary finding, made during a circumstance or error. An institution makes required refunds in a timely Department or guaranty agency review, that submits the request would not be manner, as required in § 668.22(j). On is verified or resolved, as noted in the required to submit a letter of credit the other hand, an institution is not final review report, rather than at an unless the Secretary notifies the considered to have sufficient cash earlier point in the process such as institution that its request is denied.
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Second, the proposed regulations with the reserve standard by issuing the related to the work-study student’s would establish timeframes for check within 30 days. However, in training or education and that may submitting a letter of credit depending another section of the regulations the include, but are not limited to, financial on whether the finding triggering the institution would not comply with the aid, library, peer guidance counseling, letter of credit was made in a same reserve standard if the check was and social, health, and tutorial compliance audit, in a program review not received within 45 days. services.’’ conducted by the Department or Consequently, the two-part criteria for The statutory requirements for FWS guaranty agency, or an audit conducted determining whether an institution jobs at a proprietary institution are by the Department’s Office of the satisfies the reserve standard when it reflected in § 675.21(b) of the Inspector General (OIG). uses a check to return unearned funds regulations. Specifically § 675.21(b)(2) Third, the proposed regulations are contained in one section of the states that if the FWS jobs are not would provide that an institution would regulations. community service jobs they must be on not be required to submit a letter of We also agreed that changes should be campus, provide student services, credit of less than $5,000. However, to made to the current regulations to complement the student’s educational meet the statutory reserve requirement, account for errors, or unusual program or vocational goals to the such an institution would need to circumstances beyond an institution’s maximum extent possible, and not demonstrate that it has available at all control, and to otherwise make more involve soliciting potential students to times cash reserves of at least $5,000 to certain that an institution has exceeded enroll at the institution. Section make required returns. the 5 percent threshold before it would 675.21(b)(2) provides a reference to the Finally, in response to general be required to submit a letter of credit. definition of ‘‘student services’’ in concerns over the threshold requirement In this regard, an institution would be § 675.2 for the previously discussed and the consequences of a finding that required to submit a letter of credit no requirement that the services must be an institution did not return funds in a later than 30 days after the Department, directly related to the FWS student’s timely manner, we propose that the OIG, or guaranty agency issues a education. Secretary will consider an institution preliminary report that the institution Suggested Change: Proprietary that makes one or two untimely returns did not return unearned funds in a institutions have suggested at to be in compliance with the reserve timely manner for 10 percent or more of conferences, meetings, and in letters standard. the sampled students. that the current FWS Program Reason: We agree that the regulations If the finding in the preliminary regulations in § 675.2(b) that define should clearly establish the date by report is less than 10 percent, an ‘‘student services’’ and our guidance on which an institution is required to institution would not generally be employment at these institutions be return unearned funds for which it is required to submit the letter of credit changed to expand employment responsible. We also would like to stress unless the final report shows that the opportunities for FWS students that one of the reasons for the institution did not return unearned employed in non-community service requirement that funds be returned funds in a timely manner for 5 percent jobs by the proprietary institution itself. promptly is so that the student’s Title IV or more of its students. If the letter of The proprietary institutions especially loan debt can be promptly and properly credit is required, the institution would urged us to allow FWS students to assist reduced. have to submit it no later than 30 days instructors in curriculum-related The proposed provision that an after the final report is issued activities that are prohibited under institution initiates an electronic Finally, if the Secretary believes it is current policies. transaction for returning unearned necessary, the Secretary could at any These institutions also suggested that funds (as opposed to initiating an time send a notice to the institution we modify past guidance and state in electronic transfer of funds) is intended requesting the letter of credit. the regulations that, in furnishing to accommodate the ‘‘hold and release’’ student services, FWS students are not process used by some FFEL Program Federal Work Study at For-Profit required to provide direct or personal participants. Under this process, an Institutions (Sections 675.2 and 675.21) services. The proprietary institutions institution and a lender agree that Current Regulations: The current FWS further suggested that we provide in the adjustments to FFEL Program loans, Program regulations reflect the regulations examples of FWS jobs that including the return of unearned funds, limitations placed by the HEA on would never be considered student are made when the institution initiates proprietary institutions with regard to services. In addition, these institutions an electronic transaction notifying the the types of non-community service jobs suggested that the statutory requirement lender of the adjustment or return. The that FWS students may hold when they that the non-community service FWS lender then makes the adjustment by are employed by the institution itself. jobs must furnish student services that crediting or otherwise adjusting the The specific statutory restrictions are are directly related to the student’s borrower’s loan account for the amount provided in section 443(b)(8)(A) of the training or education be removed from returned. HEA. the definition of ‘‘student services’’ and Although we adopted most of the The HEA requires, among other be placed in the same section of the approach suggested by the non-Federal things, that FWS jobs for students who FWS Program regulations (§ 675.21(b)) negotiators for returning unearned funds are employed in non-community service in which the other requirements for by check, we could not incorporate in jobs by a proprietary institution itself employment at a proprietary institution the regulations their suggestion to must furnish student services that are are located. separate the requirement that the check directly related to the FWS student’s Proposed Regulations: The proposed must be issued within 30 days from the education. The HEA specifies that the regulations would amend the definition requirement that it must be received by definition of ‘‘student services’’ is to be of ‘‘student services’’ in § 675.2(b) first an FFEL Program lender or the Secretary determined by the Secretary according by, adding more examples of jobs in within 45 days. Doing so would create to regulations. ‘‘Student services’’ are which a proprietary institution may a conflict in the regulations. For defined in § 675.2(b) of the FWS employ students on campus to work for example, under one section of the Program regulations as ‘‘Services that the institution itself. The examples that regulations an institution would comply are offered to students that are directly would be added to the definition of
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student services are job placement, work areas. The new examples are job institutions should note that the statute assisting instructors in curriculum- placement, assisting instructors in and the proposed regulations in related activities, and security. Second, curriculum-related activities, and § 675.21(b)(2) still require that student the proposed changes to the definition security. For example, an FWS student services must be directly related to the of ‘‘student services’’ would modify past would be able to work in a proprietary FWS student’s education when the FWS guidance and indicate that there is no institution’s placement office helping student is employed in a non- expectation that the FWS job involve students find jobs. Under the proposed community service job by the institution direct or personal services. Third, the regulations, an FWS student would be itself. For example, a job that involves proposed changes to the definition of able to assist an instructor in the lab or working in job placement would be ‘‘student services’’ would specify that in other work related to the instructor’s considered directly related to an FWS some jobs, such as facility maintenance, official academic duties at the student’s education or training for a cleaning, purchasing, and public institution and have such work student enrolled in the area of human relations, are never considered student considered a student service. Also, an resources, management, or business. In services. Finally, the statutory FWS student would be able to perform a second example, a job that involves requirement that the non-community security functions such as being a night assisting an instructor in academic- service job must provide student watchman or being an institution related activities of the program in services that are directly related to the security officer. These security roles which the student was enrolled would FWS student’s training or education have taken on increased importance and be considered as being directly related would be removed from the definition are now considered an essential student to an FWS student’s education or of ‘‘student services’’ in § 675.2 and service for the protection of students training. In a final example, work in placed in § 675.21(b)(2) of the FWS and their property. The list of areas in security, for an FWS student enrolled in regulations. which FWS employment is authorized the field of law enforcement or a related Reason: Many proprietary institutions is not meant to be exhaustive. However, field, would also be considered directly informed us that the current definition we believe that they are excellent related to the student’s education. of ‘‘student services’’ in the FWS examples of employment that provide Institutions are also reminded that the Program regulations and our current student services. proposed regulations would not change guidance on that definition do not The proposed regulations would other requirements of the regulations. support or address the needs of the modify guidance issued in the past that Students who are employed by the student population at most proprietary stated that the FWS student had to proprietary institution itself may be institutions that offer short-term training provide direct and personal services to employed in FWS non-community in a specific skill. A number of other students. A service would be service jobs only when those jobs are on proprietary institutions have also considered a ‘‘student service’’ if the campus and when they complement and expressed the concern that our current service provides a benefit either directly reinforce the education programs and definition and guidance result in or indirectly to students. Proprietary vocational goals of the FWS student to students being denied valuable on-the- institutions would be given more the maximum extent practicable. job experience in their chosen fields of flexibility in establishing what types of Finally, work in the admissions or study. The proprietary institutions have jobs performed by FWS students at their recruitment area of an institution would asked for more flexibility in establishing institutions provide a direct or indirect continue to be prohibited, as this FWS jobs on campus to enable students benefit to other students. Further, the to find FWS work that fits into their fact that a job has some operational employment is considered to involve academic schedules and to earn money functions does not preclude it from soliciting potential students to enroll at to pay their educational costs. These being an acceptable FWS job as long as the institution. institutions further stated that some of it furnishes student services. GEAR UP Program (Section 694.10) the types of jobs currently excluded Work that does not serve students will actually do provide a service to students still not be permissible. Thus, because Current Regulations: Section at proprietary institutions, although facility maintenance, cleaning, 694.10(e) of the regulations interprets some jobs provide this more directly purchasing, and public relations jobs sections 404E(c) and 404C(b)(1)(C) of than others. The negotiators agreed with primarily benefit the institution, the the HEA to require that GEAR UP the reasons provided by the proprietary proposed changes would specify that scholarship funds not supplant other institutions. such jobs are not considered student gift aid that the student would We agree that many proprietary services under the FWS Program. There otherwise have been eligible to receive. institutions can offer FWS jobs that are, of course, other jobs that also would Specifically, § 694.10(e) requires that a provide essential services to students not be considered student services. student eligible for a GEAR UP and that the regulations can provide The proposed regulations would scholarship be awarded financial aid in greater flexibility in this area. Therefore, remove from the definition of ‘‘student the following order: Federal Pell Grant; these proposed regulations would services’’ in § 675.2(b) the requirement any other public or private grants, expand the definition of ‘‘student that the non-community service job scholarships, or tuition discounts; the services’’ in § 675.2(b) of the FWS provide student services that are GEAR UP scholarship; and other regulations to broaden the scope of FWS directly related to the FWS student’s financial assistance, such as loans or job opportunities for students who training or education. This requirement work-study. An exception to this attend proprietary institutions. The would be made clearer by being moved required awarding order is allowed if negotiators welcomed the proposed to § 675.21(b), where the other the institution documents that there are expansion of the definition of student requirements for employment at a exceptional circumstances related to the services and the proposed increase of proprietary institution are located. The GEAR UP student’s aid package that are FWS job opportunities for students negotiators agreed with this proposed unique to that GEAR UP student. attending proprietary institutions. regulation change for clarity of this Suggested Change: Members of the The proposed change would expand requirement. institutional community suggested that the definition of ‘‘student services’’ by Even with the expanded opportunities the requirement that an institution adding further examples of acceptable for student services, proprietary award student financial assistance in an
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established order for GEAR UP true. They contended that because has estimated that the proposed scholarship recipients be eliminated. institutions are not in a position of regulations would have no effect on Proposed Regulations: These ensuring a reduction in gift aid provided Federal costs over FY 2002–2006. proposed regulations would remove the by outside entities, GEAR UP 2. Clarity of the Regulations requirement that an institution award scholarship students would have to student financial assistance in an forego benefiting from additional Executive Order 12866 and the established order for students who are sources of aid that are required to be Presidential Memorandum on ‘‘Plain eligible for a GEAR UP scholarship. The used as ‘‘last dollar’’ assistance. In Language in Government Writing’’ proposed regulations would only addition, those opposed to the current require each agency to write regulations specify the statutory requirement in provision believed that because of the that are easy to understand. The section 404E(c) of the HEA that GEAR concerns that they cited, some Secretary invites comments on how to UP scholarships not be considered in institutions would choose not to make these proposed regulations easier awarding Title IV grant assistance. As a participate in the GEAR UP scholarship to understand, including answers to result, under this proposal, an program. questions such as the following: institution would treat GEAR UP The committee reached tentative • Are the requirements in the scholarships as they relate to other gift agreement to remove the institutional proposed regulations clearly stated? • aid (e.g., grants and scholarships) as the packaging requirements from the Do the proposed regulations contain institution sees fit, except in the case of regulations. The committee believed technical terms or other wording that Title IV grant assistance, which must be interferes with their clarity? that the goal of assuring a significant • awarded without regard to a student’s level of assistance to GEAR UP Does the format of the proposed eligibility for a GEAR UP scholarship. scholarship recipients could be regulations (grouping and order of The requirement of section achieved without mandating a Federal sections, use of headings, paragraphing, 404(b)(1)(C) of the HEA, although no etc.) aid or reduce their clarity? financial aid packaging order. The • longer applicable to individual student negotiator who had expressed concern Would the proposed regulations be aid packages, would continue to apply with the removal of the packaging easier to understand if we divided them to States and Partnerships at the requirements stated a hope that if this into more (but shorter) sections? A program level, meaning that States and change to the regulation is made, ‘‘section’’ is preceded by the symbol Partnerships must include as a part of institutions would be eager to ‘‘§ ’’ and a numbered heading; for their participation plan an assurance participate in the GEAR UP program. example, § 668.35 Student Debts under that GEAR UP funds will supplement the HEA and to the U.S. and not supplant other funds expended Executive Order 12866 • Could the description of the proposed regulations in the by the States and Partnerships for 1. Potential Costs and Benefits existing programs. SUPPLEMENTARY INFORMATION section of Section 694.10(c) of the regulations, Under Executive Order 12866, we this preamble be more helpful in which implements the portion of have assessed the potential costs and making the proposed regulations easier section 404E(c) of the HEA that provides benefits of this regulatory action. to understand? If so, how? that a GEAR UP scholarship, in The potential costs associated with • What else could we do to make the combination with any Title IV the proposed regulations are those proposed regulations easier to assistance or other grant or scholarship resulting from statutory requirements understand? assistance, may not exceed the student’s and those we have determined to be Send any comments that concern how cost of attendance, would remain necessary for administering these the Department could make these unchanged. programs effectively and efficiently. proposed regulations easier to Reason: Several negotiators expressed Elsewhere in this SUPPLEMENTARY understand to the person listed in the concern with the current requirement INFORMATION section we identify and ADDRESSES section of the preamble. that an institution award aid to a explain burdens specifically associated Regulatory Flexibility Act Certification student eligible for a GEAR UP with information collection scholarship in a particular order. These requirements. See the heading The Secretary certifies that these negotiators felt that it was highly Paperwork Reduction Act of 1995. proposed regulations would not have a inappropriate for the regulations to In assessing the potential costs and significant economic impact on a dictate a packaging policy for benefits—both quantitative and substantial number of small entities. institutions. They maintained that qualitative—of this regulatory action, These proposed regulations would affect institutions are in the best position to we have determined that the benefits institutions of higher education, determine the financial aid package that would justify the costs. lenders, and guaranty agencies that will best meet the student’s needs. We have also determined that this participate in Title IV, HEA programs, One negotiator expressed support for regulatory action would not unduly and individual students and loan the current packaging requirement, interfere with State, local, and tribal borrowers. The U.S. Small Business noting that the intent in implementing governments in the exercise of their Administration (SBA) Size Standards it was to insure that a student who is governmental functions. define for-profit or nonprofit eligible to receive a GEAR UP institutions with total annual revenue scholarship would benefit from as Summary of Potential Costs and below $5,000,000 or institutions significant a reduction in his or her Benefits controlled by governmental entities postsecondary expenses as intended by The Secretary is amending these with populations below 50,000, and the statute. The negotiator was regulations to reduce administrative lenders with total assets under $100 concerned that in the absence of the burden for program participants, million, as ‘‘small entities.’’ Guaranty institutional packaging requirement, provide benefits to students and agencies are State and private nonprofit GEAR UP students might not get the full borrowers, and to protect the taxpayers’ entities that act as agents of the Federal benefit of their GEAR UP grant. Several interests. The proposed regulations are government, and as such are not of the negotiators opposed to the current fully described elsewhere in this considered ‘‘small entities’’ under the requirement argued that the opposite is preamble. The Department of Education Regulatory Flexibility Act. Individuals
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are also not defined as ‘‘small entities’’ absence meet certain special terms). providing that an institution only has to under the Regulatory Flexibility Act. There would be no significant impact refer the Federal portion of certain A significant percentage of the over upon burden associated with this FSEOG overpayments, and by making 4,000 lenders participating in the FFEL requirement. consistent the process for reporting Program meets the definition of ‘‘small overpayments for all the relevant Section 668.165—Notices and entities.’’ While these lenders and a Authorizations programs. There are no new information number of institutions fall within the collection requirements as a result of SBA size guidelines, the proposed The proposed regulation would changing this section. regulations do not impose significant reduce burden under this section by If you want to comment on the new costs on these entities. eliminating the ‘‘confirm receipt’’ information collection requirements, The Secretary invites comments from requirement for a notice sent please send your comments to the Office small institutions and lenders as to electronically to a student or parent (the of Information and Regulatory Affairs, whether they believe the proposed notice informs the student or parent of OMB, Room 10235, New Executive changes would have a significant his or her right to cancel a loan or loan Office Building, Washington, DC, 20503; economic impact on them and if so, disbursement). The proposed changes Attention: Desk Officer for U.S. requests evidence to support that belief. do not change the burden hours Department of Education. You may also associated with this section of the Paperwork Reduction Act of 1995 send a copy of these comments to the regulations because there is no burden Department representative named in the Proposed §§ 600.31, 668.22, 668.165, currently associated with this provision. ADDRESSES section of this preamble. 668.173, and 673.5 contain information Section 668.173—Refund Reserve We consider your comments on these collection requirements. Under the Standard proposed collections of information in— Paperwork Reduction Act of 1995 (44 • Deciding whether the proposed U.S.C. 3507(d)), the Department of The proposed regulations would collections are necessary for the proper Education has submitted a copy of these provide greater flexibility to an performance of our functions, including sections to the Office of Management institution that is cited in an audit or whether the information will have and Budget (OMB) for its review. review report for failing to return practical use; Collection of Information: unearned Title IV program funds in a • Evaluating the accuracy of our Institutional Eligibility under the Higher timely manner. Under the current estimate of the burden of the proposed Education Act of 1965, as amended— regulations, an institution that is cited collections, including the validity of our for this reason must automatically Section 600.31—Change in Ownership methodology and assumptions; submit a letter of credit to the Secretary. • Enhancing the quality, usefulness, Resulting in a Change in Control for Under this proposal, the institution and clarity of the information we Private Nonprofit, Private For-Profit and would be able to demonstrate that collect; and Public Institutions circumstances beyond its control • Minimizing the burden on those The proposed regulations expand the inappropriately triggered the audit or who must respond. This includes conditions under which a change in the review finding or that the finding was exploring the use of appropriate ownership of an institution is not erroneously made. If the Secretary automated, electronic, mechanical, or considered a change of ownership for determines that the finding was other technological collection institutional eligibility purposes when inappropriately or erroneously made, techniques or other forms of information the transfer is to a family member. The the institution would not have to submit technology; e.g., permitting electronic proposed regulations also exclude a a letter of credit. The proposed submission of responses. transfer of ownership upon the death or regulations would also provide that the OMB is required to make a decision retirement of an owner to a member of Secretary or guaranty agency may delay concerning the collections of management who has had an ownership requiring a letter of credit from the information contained in these interest during the preceding two years. institution until the final audit or proposed regulations between 30 and 60 We expect the decrease in burden to be review report is issued. In addition, the days after publication of this document insignificant because of the small proposed regulations would not require in the Federal Register. Therefore, to number of institutions who annually the institution to submit the letter of ensure that OMB gives your comments report under this regulation and of that credit if the amount of the letter of full consideration, it is important that number the few instances where a credit is less than $5,000. OMB receives the comments within 30 change in ownership would meet the The proposed regulations could days of publication. This does not affect expanded exemption and therefore marginally increase the burden on some the deadline for your comments to us on would not be required to file. institutions because while institutions the proposed regulations. that are cited may submit If you want to comment on the Student Assistance General documentation showing that the finding information collection requirements, Provisions—Section 668.22—Treatment was inappropriately or erroneously please send your comments to the Office of Title IV Funds When a Student made, they would not be required to of Information and Regulatory Affairs, Withdraws submit a letter of credit. OMB, room 10235, New Executive The proposed regulations would Office Building, Washington, DC 20503; General Provisions for the Federal clarify the definition of ‘‘an institution Attention: Desk Officer for U.S. Perkins Loan, FWS, and FSEOG that is required to attendance’’. Also, Department of Education. You may also Programs—Section 673.5—Overaward under the proposed regulations, an send a copy of these comments to the institution would only be required to The proposed regulations would Department representative named in the insure that the sum of all leaves of modify the process for referring ADDRESSES section of this preamble. absence that a Title IV aid recipient overpayments by specifying that a We consider your comments on these takes does not exceed 180 days within student is not liable for certain proposed collections of information in— a 12-month period (as opposed to the overpayments less than $25. The • Deciding whether the proposed current rule where an institution must proposed regulations would clarify and collections are necessary for the proper determine whether subsequent leaves of simplify the current process by performance of our functions, including
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whether the information will have Program; 84.063 Federal Pell Grant Program; § 600.21 Updating application information. practical use; 84.268 William D. Ford Federal Direct Loan * * * * * • Evaluating the accuracy of our Program) (f) Definition. A family member estimate of the burden of the proposed List of Subjects includes a person’s— collections, including the validity of our (1) Parent or stepparent, sibling or methodology and assumptions; 34 CFR Parts 600 and 668 step-sibling, spouse, child or stepchild, • Enhancing the quality, usefulness, Administrative practice and or grandchild or step-grandchild; and clarity of the information we procedure, Colleges and universities, (2) Spouse’s parent or stepparent, collect; and Consumer protection, Education, Grant sibling or step-sibling, child or • Minimizing the burden on those programs—education, Loan programs— stepchild, or grandchild or step- who must respond. This includes education, Reporting and recordkeeping grandchild; exploring the use of appropriate requirements, Student aid, Vocational (3) Child’s spouse; and automated, electronic, mechanical, or education. (4) Sibling’s spouse. 4. Section 600.31 is amended by other technological collection 34 CFR Parts 673 and 675 techniques or other forms of information revising paragraph (e) to read as follows: technology; e.g., permitting electronic Administrative practice and § 600.31 Change in ownership resulting in submission of responses. procedure, Colleges and universities, Consumer protection, Education, a change in control for private nonprofit, OMB is required to make a decision private for-profit and public institutions. concerning the collections of Employment, Grant programs— * * * * * information contained in these education, Loan programs—education, Reporting and recordkeeping (e) Excluded transactions. A change proposed regulations between 30 and 60 in ownership and control reported days after publication of this document requirements, Student aid, Vocational education. under § 600.21 and otherwise subject to in the Federal Register. Therefore, to this section does not include a transfer ensure that OMB gives your comments 34 CFR Parts 682 and 685 of ownership and control of all or part full consideration, it is important that Administrative practice and of an owner’s equity or partnership OMB receives the comments within 30 procedure, College and universities, interest in an institution, the days of publication. This does not affect Education, Loan programs—education, institution’s parent corporation, or other the deadline for your comments to us on Reporting and recordkeeping legal entity that has signed the the proposed regulations. requirements, Student aid, Vocational institution’s Program Participation Assessment of Educational Impact education. Agreement— (1) From an owner to a ‘‘family The Secretary particularly requests 34 CFR Part 690 member’’ of that owner as defined in comments on whether these proposed Grant programs—education, § 600.21(f); or regulations would require transmission Reporting and recordkeeping (2) Upon the retirement or death of of information that any other agency or requirements, Student aid. the owner, to a person with an authority of the United States gathers or ownership interest in the institution makes available. 34 CFR Part 694 who has been involved in management Electronic Access to This Document Colleges and universities, Elementary of the institution for at least two years and secondary education, Grant preceding the transfer and who You may view this document, as well programs—education, Reporting and as all other Department of Education established and retained the ownership recordkeeping requirements, Student interest for at least two years prior to the documents published in the Federal aid. Register, in text or Adobe Portable transfer. Dated: August 5, 2002. Document Format (PDF) on the Internet Rod Paige, PART 668—STUDENT ASSISTANCE at the following site: www.ed.gov/ GENERAL PROVISIONS legislation/FedRegister. Secretary of Education. To use PDF you must have Adobe For the reasons discussed in the 5. The authority citation for part 668 Acrobat Reader, which is available free preamble, the Secretary proposes to continues to read as follows: amend parts 600, 668, 673, 675, 682, at this site. If you have questions about Authority: 20 U.S.C. 1001, 1002, 1003, using PDF, call the U.S. Government 685, 690, and 694 of title 34 of the Code of Federal Regulations as follows: 1085, 1091, 1091b, 1092, 1094, 1099c, and Printing Office (GPO), toll free, at 1– 1099c–1, unless otherwise noted. 888–293–6498; or in the Washington, PART 600—INSTITUTIONAL § 668.2 [Amended] DC, area at (202) 512–1530. ELIGIBILITY UNDER THE HIGHER 6. Section 668.2(b) is amended by You may also view this document in EDUCATION ACT OF 1965, AS removing the definition of ‘‘Academic PDF format at the following site: AMENDED ifap.ed.gov. year’’. 7. Section 668.3 is revised to read as Note: The official version of this document 1. The authority citation for part 600 is the document published in the Federal is revised to read as follows: follows: Register. Free Internet access to the official Authority: 20 U.S.C. 1001, 1002, 1003, § 668.3 Academic year. edition of the Federal Register and the Code 1088, 1091, 1094, 1099b, and 1099c, unless of Federal Regulations is available on GPO otherwise noted. (a) General. Except as provided in Access at: http://www.access.gpo.gov/nara/ paragraph (c) of this section, an index.html. § 600.8 [Amended] academic year is a period that begins on the first day of classes and ends on the (Catalog of Federal Domestic Assistance 2. Section 600.8 is amended by Numbers: 84.007 Federal Supplemental adding ‘‘proprietary institution of higher last day of classes or examinations Educational Opportunity Grant Program; education or a postsecondary during which— 84.032 Federal Family Education Loan vocational’’ after ‘‘eligible’’. (1) An institution provides a Program; 84.033 Federal Work-Study 3. Section 600.21 is amended by minimum of 30 weeks of instructional Program; 84.038 Federal Perkins Loan revising paragraph (f) to read as follows: time; and
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(2) For an undergraduate educational § 668.4 Payment period. (ii) The calendar midpoint between program, a full-time student is expected (a) Payment periods for an eligible the first and last scheduled days of class to complete at least— program that measures progress in of the program, academic year, or the (i) Twenty-four semester or trimester credit hours and has academic terms. remainder of the program. credit hours or 36 quarter credit hours For a student enrolled in an eligible (c) Payment periods for an eligible for a program measured in credit hours; program that is offered in terms and program that measures progress in clock or measures progress in credit hours, the hours. (1) For a student enrolled in an (ii) 900 clock hours for a program payment period is the academic term. eligible program that is one academic measured in clock hours. (b) Payment periods for an eligible year or less in length— (b) Definitions. For purposes of program that measures progress in (i) The first payment period is the paragraph (a) of this section— credit hours and does not have period of time in which the student completes half the number of clock (1) A week is a consecutive seven-day academic terms—(1) For a student enrolled in an eligible program that is hours in the program; and period; (ii) The second payment period is the (2) A week of instructional time is any one academic year or less in length— (i) The first payment period is the period of time in which the student week in which at least one day of completes the program. regularly scheduled instruction or period of time in which the student completes half the number of credit (2) For a student enrolled in an examinations occurs or, after the last eligible program that is more than one scheduled day of classes for a term or hours in the program and half the number of weeks in the program; and academic year in length— payment period, at least one day of (i) For the first academic year and any (ii) The second payment period is the study for final examinations occurs; and subsequent full academic year— period of time in which the student (3) Instructional time does not include (A) The first payment period is the completes the program. any vacation periods, homework, or period of time in which the student (2) For a student enrolled in an periods of orientation or counseling. completes half the number of clock eligible program that is more than one (c) Reduction in the length of an hours in the academic year; and academic year in length— academic year. (B) The second payment period is the (i) For the first academic year and any period of time in which the student (1) Upon the written request of an subsequent full academic year— institution, the Secretary may approve, completes the remaining number of (A) The first payment period is the clock hours in the academic year. for good cause, an academic year of period of time in which the student between 26 and 29 weeks of (ii) For any remaining portion of an completes half the number of credit eligible program that is more than one- instructional time for educational hours in the academic year and half the programs offered by the institution if the half an academic year but less than a number of weeks in the academic year; full academic year in length— institution offers a two-year program and leading to an associate degree or a four- (A) The first payment period is the (B) The second payment period is the period of time in which the student year program leading to a baccalaureate period of time in which the student degree. completes half the number of clock completes the academic year. hours in the remaining portion of the (2) An institution’s written request (ii) For any remaining portion of an program; and must— eligible program that is more than one- (B) The second payment period is the (i) Identify each educational program half an academic year but less than a period of time in which the student for which the institution requests a full academic year in length— completes the remainder of the program. reduction, and the requested number of (A) The first payment period is the (iii) For any remaining portion of an weeks of instructional time for that period of time in which the student eligible program that is not more than program; completes half the number of credit one half of an academic year, the (ii) Demonstrate good cause for the hours in the remaining portion of the payment period is the remainder of the requested reductions; and program and half the number of weeks program. (iii) Include any other information remaining in the program; and (d) Number of payment periods. that the Secretary may require to (B) The second payment period is the Notwithstanding paragraphs (b) and (c) determine whether to grant the request. period of time in which the student of this section, an institution may (3)(i) The Secretary approves the completes the remainder of the program. choose to have more than two payment request of an eligible institution for a (iii) For any remaining portion of an periods. If an institution so chooses, the reduction in the length of its academic eligible program that is not more than regulations in paragraphs (b) and (c) of year if the institution has demonstrated half an academic year, the payment this section are modified to reflect the good cause for granting the request and period is the remainder of the program. increased number of payment periods. the institution’s accrediting agency and (3) For purposes of paragraphs (b)(1) For example, if an institution chooses to State licensing agency have approved and (b)(2) of this section, if an have three payment periods in an the request. institution is unable to determine when academic year in a program that (ii) If the Secretary approves the a student has completed half of the measures progress in credit hours but request, the approval terminates when credit hours in a program, academic does not have academic terms, each the institution’s program participation year, or the remainder of a program; the payment period must correspond to agreement expires. The institution may student is considered to begin the one-third of the academic year request an extension of that approval as second payment period of the program, measured in both credit hours and part of the recertification process. academic year, or remainder of a weeks of instruction. program at the later of— (e) Re-entry within 180 days. If a (Approved by the Office of Management and Budget under control number 1840–0537) (i) When, as determined by the student withdraws from a program institution, the student has completed described in paragraph (b) or (c) of this (Authority: 20 U.S.C. 1088) half of the academic coursework in the section during a payment period and 8. Section 668.4 is revised to read as program, academic year, or the then reenters that program within 180 follows: remainder of the program; or days, the student remains in that same
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payment period when he or she returns (b) * * * at least 24 semester or trimester credit and, subject to conditions established by (22)(i) It will not provide any hours or 36 quarter credit hours, or has the Secretary or by the FFEL lender or commission, bonus, or other incentive successfully completed at least 900 guaranty agency, is eligible to receive payment based directly or indirectly clock hours of instruction. any title IV student assistance funds for upon success in securing enrollments or (F) Compensation paid to employees which he or she was eligible prior to financial aid to any person or entity who perform ‘‘pre-enrollment’’ withdrawal, including funds that were engaged in any student recruiting or activities, such as answering telephone returned by the institution or student admission activities or in making calls, referring inquiries, or distributing under the provisions of § 668.22. decisions regarding the awarding of title institutional materials, as long as the (f) Re-entry after 180 days or transfer. IV, HEA program funds, except that this compensation is not based on the (1) Subject to the conditions of limitation does not apply to the number of people actually enrolled. paragraph (f)(2) of this section, an recruitment of foreign students residing (G) Compensation to managerial or institution calculates new payment in foreign countries who are not eligible supervisory employees who do not periods for the remainder of the to receive title IV, HEA program funds. directly manage or supervise employees student’s program based on paragraphs (ii) Activities and arrangements that who are directly involved in recruiting (b) through (d) of this section, for a an institution may carry out without or admissions activities, or the awarding student who withdraws from a program violating the provisions of paragraph of title IV, HEA program funds. described in paragraphs (b) or (c) of this (b)(22)(i) of this section include, but are (H) The awarding of token gifts to the section, and— not limited to: institution’s students or alumni, (i) Reenters that program after 180 (A) The payment of fixed provided that the gifts are not in the days, compensation, such as a fixed annual form of money, no more than one gift is (ii) Transfers into another program at salary or a fixed hourly wage, as long as provided annually to an individual, and the same institution within any time that compensation is not adjusted up or the cost of the gift is not more than period, or down more than twice during any $100. (iii) Transfers into a program at twelve month period, and any (I) Profit distributions proportionately adjustment is not based solely on the another institution within any time based upon an individual’s ownership number of students recruited, admitted, period. interest in the institution. enrolled, or awarded financial aid. For (2) For a student described in (J) Compensation paid for Internet- this purpose, an increase in fixed paragraph (f)(1) of this section— based recruitment and admission (i) For the purpose of calculating compensation resulting from a cost of activities that provide information about payment periods only, the length of the living increase that is paid to all or the institution to prospective students, program is the number of credit hours substantially all employees is not or permit them to apply for admission and the number of weeks, or the number considered an adjustment. on-line. of clock hours, that the student has (B) Compensation to recruiters based (K) Payments to third parties, remaining in the program he or she upon their recruitment of students who including tuition sharing arrangements, enters or reenters, and enroll only in programs that are not (ii) If the remaining hours, and weeks, eligible title IV, HEA programs. that deliver various services to the if applicable constitute one-half of an (C) Compensation to recruiters who institution provided that none of the academic year or less, the remaining arrange contracts between the services involve recruiting or admission hours constitute one payment period. institution and an employer under activities, or the awarding of title IV, HEA program funds. (Authority: 20 U.S.C. et seq.) which the employer’s employees enroll in the institution, and the employer (L) Payments to third parties, 9. Section 668.8 is amended by: pays, directly or by reimbursement, 50 including tuition sharing arrangements, A. Revising paragraph (b)(3). percent or more of the tuition and fees that deliver various services to the B. Removing paragraph (b)(4). institution, even if one of the services The revision reads as follows: charged to its employees; provided that the compensation is not based upon the involve recruiting or admission § 668.8 Eligible program. number of employees who enroll in the activities or the awarding of title IV, institution, or the revenue they generate, HEA program funds, provided that the * * * * * individuals performing the recruitment (b) * * * and the recruiters have no contact with (3)(i) The Secretary considers that an the employees. or admission activities, or the awarding institution provides one week of (D) Compensation paid as part of a of title IV, HEA program funds, are not instructional time in an academic profit-sharing or bonus plan, as long as compensated in a manner that would be program during any week the institution those payments are made to all or impermissible under paragraph (b)(22) provides at least one day of regularly substantially all of the institution’s full- of this section. scheduled instruction or examinations, time professional and administrative * * * * * or, after the last scheduled day of staff. Such payments can be limited to 11. Section 668.22 is amended by: classes for a term or a payment period, all, or substantially all of the full-time A. Revising paragraph (b)(3)(i). at least one day of study for final employees at one or more organizational B. Revising paragraph (d)(1)(vi). examinations. level at the institution, except that an C. Removing paragraph (d)(1)(vii). (ii) Instructional time does not organizational level may not consist D. Redesignating paragraphs include any vacation periods, predominantly of recruiters, admissions (d)(1)(viii) and (d)(1)(ix) as (d)(1)(vii) homework, or periods of orientation or staff, or financial aid staff. and (d)(1)(viii), respectively. counseling. (E) Compensation that is based upon E. Removing paragraph (d)(2). * * * * * students successfully completing their F. Redesignating paragraphs (d)(3) 10. Section 668.14(b)(22) is revised to educational programs, or one academic and (d)(4) as (d)(2) and (d)(3), read as follows: year of their educational programs, respectively. whichever is shorter. For this purpose, G. Removing ‘‘on’’ and adding in its § 668.14 Program participation agreement. successful completion of an academic place ‘‘at’’ in newly redesignated * * * * * year means that the student has earned paragraph (d)(2).
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H. Removing ‘‘are’’ and adding in its 15. Section 668.164(g) is revised to under the FFEL or Direct Loan programs place ‘‘is’’ in newly redesignated read as follows: to pay for educational costs that the paragraph (d)(3)(i). institution determines the student I. Adding ‘‘, that includes the reason § 668.164 Disbursing funds. incurred for the period in which the for the request,’’ after ‘‘request’’ in * * * * * student was eligible. newly redesignated paragraph (g) Late disbursements— (1) Ineligible (4) Limitations. (i) Generally, an (d)(3)(iii)(B). student. For purposes of this paragraph, institution may not make a late J. Adding ‘‘The timeframe for an otherwise eligible student becomes disbursement later than 120 days after returning funds is further described in ineligible to receive title IV, HEA the date of the institution’s § 668.173(b) and (c)(3).’’ at the end of program funds on the date that— determination that the student paragraph (j)(1). (i) For a loan under the FFEL and withdrew, as provided under § 668.22, The revisions read as follows: Direct Loan programs, the student is no or, for a student who did not withdraw, longer enrolled at the institution as at 120 days after the date the student § 668.22 Treatment of title IV funds when least a half-time student for the loan a student withdraws. otherwise became ineligible. On an period; or exception basis, and with the approval * * * * * (ii) For an award under the Federal of the Secretary, an institution may (b) * * * Pell Grant, FSEOG, and Federal Perkins make a late disbursement after the (3)(i) An institution is required to take Loan programs, the student is no longer attendance if an outside entity (such as applicable 120-day period, if the reason enrolled at the institution for the award the late disbursement was not made was the institution’s accrediting agency or a year. State agency) has a requirement, as not the fault of the student. (2) Conditions for a late disbursement. (ii) An institution may not make a determined by the entity, that the Except as limited under paragraph (g)(4) second or subsequent late disbursement institution take attendance. of this section, a student who becomes of a loan under the FFEL or Direct Loan * * * * * ineligible (or the student’s parent in the programs unless the student (d) * * * case of a PLUS loan) qualifies for a late successfully completed the period of (1) * * * disbursement if, before the date the enrollment for which the loan was (vi) The number of days in the student became ineligible— intended. approved leave of absence, when added (i) Except in the case of a PLUS loan, (iii) An institution may not make a to the number of days in all other the Secretary processed a SAR or ISIR late disbursement of a loan under the approved leaves of absence, does not with an official expected family FFEL or Direct Loan programs if the exceed 180 days in any 12-month contribution; and student was a first-year, first-time period; (ii)(A) For a loan under the FFEL or borrower unless the student completed * * * * * Direct Loan programs, the institution the first 30 days of his or her program certified or originated the loan; or § 668.32 [Amended] of study. This limitation does not apply (B) For an award under the Federal 12. Section 668.32(e)(2) is amended if the institution is exempt from the 30- Perkins Loan or FSEOG programs, the day delayed disbursement requirements by removing ‘‘within 12 months before institution made that award to the the date the student initially receives under § 682.604(c)(5)(i), (ii), or (iii) or student. § 685.303(b)(4)(i)(A), (B), or (C). title IV, HEA program assistance,’’. (3) Making a late disbursement. 13. Section 668.35(c) is revised to 16. Section 668.165(a)(3) is revised to Provided that the conditions described read as follows: read as follows: in paragraph (g)(2) of this section are § 668.165 Notices and authorizations. § 668.35 Student debts under the HEA and satisfied— to the U.S. (i) If the student withdrew from the (a) * * * (3) The institution must send the * * * * * institution during a payment period or (c) A student who receives an period of enrollment, the institution notice described in paragraph (a)(2) of overpayment under the Federal Perkins must make any post-withdrawal this section in writing no earlier than 30 Loan Program, or under a title IV, HEA disbursement required under days before, and no later than 30 days grant program may nevertheless be § 668.22(a)(3) in accordance with the after, crediting the student’s account at eligible to receive title IV, HEA program provisions of § 668.22(a)(4); the institution. assistance if— (ii) If the student successfully * * * * * completed the payment period or period (1) The student pays the overpayment § 668.171 [Amended] in full; of enrollment, the institution must (2) The student makes arrangements provide the student (or parent) the 17. Section 668.171(b) is amended by: satisfactory to the holder of the opportunity to receive the amount of A. Removing ‘‘refunds’’ and adding, overpayment debt to pay the title IV, HEA program funds that the in its place ‘‘returns of unearned title IV overpayment; or student (or parent) was eligible to HEA program funds’’ in paragraph (3) The overpayment amount is less receive while the student was enrolled (b)(2). than $25 and is neither a remaining at the institution. For a late B. Removing ‘‘and the payment of balance nor a result of the application disbursement in this circumstance, the post-withdrawal disbursements under of the overaward threshold in 34 CFR institution may credit the student’s § 668.22’’ in paragraph (b)(4)(i). account to pay for current and allowable 18. Section 668.173 is amended by: 673.5(d). A. Revising paragraphs (a) through (c). * * * * * charges as described in paragraph (d) of B. Redesignating paragraph (d) as (f). this section, but must pay or offer any C. Adding new paragraphs (d) and (e). § 668.151 [Amended] remaining amount to the student or The revisions and additions read as 14. Section 668.151(a)(2) is amended parent; or follows: by adding the words ‘‘it received from (iii) If the student did not withdraw an approved test publisher or but ceased to be enrolled as at least a § 668.173 Refund reserve standards. assessment center’’ after ‘‘an approved half-time student, the institution may (a) General. The Secretary considers test’. make the late disbursement of a loan that an institution has sufficient cash
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reserves, as required under includes only students for whom the calculated under paragraph (d)(2) of this § 668.171(b)(2), if the institution— institution was required to return section is less than $5,000 and the (1) Satisfies the requirements for a unearned funds during its most recently institution can demonstrate that it has public institution under § 668.171(c)(1); completed fiscal year.); or cash reserves of at least $5,000 available (2) Is located in a State that has a (ii) A material weakness or reportable at all times. tuition recovery fund approved by the condition in the institution’s report on (2) An institution may delay Secretary and the institution contributes internal controls relating to the return of submitting the letter of credit and to that fund; or unearned title IV, HEA program funds. request the Secretary to reconsider a (3) Returns, in a timely manner as (2) The Secretary does not consider an finding made in its most recent audit or described in paragraph (b) of this institution to be out of compliance with review report that it failed to return section, unearned title IV, HEA program the reserve standard under unearned title IV, HEA program funds funds that it is responsible for returning § 668.173(a)(3) if the institution is cited in a timely manner if— under the provisions of § 668.22 for a in any audit or review report because it (i)(A) The institution submits student that withdrew from the did not return unearned funds in timely documents showing that the unearned institution. manner for one or two students, or for title IV, HEA program funds were not (b) Timely return of title IV, HEA less the 5% of the students in the returned in a timely manner solely program funds. In accordance with sample referred to in paragraph (c)(1)(i) because of exceptional circumstances procedures established by the Secretary of this section. beyond the institution’s control and that or FFEL Program lender, an institution (d) Letter of credit. (1) Except as the institution would not have exceeded returns unearned title IV, HEA funds provided under paragraph (e)(1) of this the compliance thresholds under timely if— section, an institution that can satisfy paragraph (c)(1) of this section had it (1) The institution deposits or the reserve standard only under not been for these exceptional transfers the funds into the bank paragraph (a)(3) of this section, must circumstances; or account it maintains under § 668.163 no submit an irrevocable letter of credit (B) The institution submits later than 30 days after the date it acceptable and payable to the Secretary documents showing that it did not fail determines that the student withdrew; if a finding in an audit or review shows to make timely refunds as provided (2) The institution initiates an that the institution exceeded the under paragraphs (b) and (c) of this electronic funds transfer (EFT) no later compliance thresholds in paragraph (c) section; than 30 days after the date it determines of this section (i.e., the institution did (ii) The institution’s request, along that the student withdrew; not return unearned funds for 5% or with the documents described in (3) The institution initiates an more of its students) for either of its two paragraph (e)(2)(i) of this section, are electronic transaction, no later than 30 most recently completed fiscal years. submitted to the Secretary no later than days after the date it determines that the (2) The amount of the letter of credit the date it would otherwise be required student withdrew, that informs an FFEL required under paragraph (d)(1) of this to submit a letter of credit under lender to adjust the borrower’s loan section is 25 percent of the total amount paragraph (d)(3). account for the amount returned; or of unearned title IV, HEA program funds (3) If the Secretary denies the (4) The institution issues a check no that the institution was required to institution’s request under paragraph later than 30 days after the date it return under § 668.22 during the (e)(2) of this section, the Secretary determines that the student withdrew. institution’s most recently completed notifies the institution of the date it However, the Secretary considers that fiscal year. must submit the letter of credit. the institution did not satisfy this (3) An institution that is subject to * * * * * requirement if— paragraph (d)(1) of this section must 19. Section 668.174(c)(4) is revised to (i) The institution’s records show that submit to the Secretary a letter of credit read as follows: the check was issued more than 30 days no later than 30 days after the earlier of after the date the institution determined the date that— § 668.174 Past performance. that the student withdrew; or (i) The institution is required to * * * * * (ii) The date on the cancelled check submit its compliance audit; (c) * * * shows that the Secretary or FFEL (ii) The Office of the Inspector (4) ‘‘Family member’’ is defined in Program lender received that check General, issues a final audit report; § 600.21(f). more than 45 days after the date the (iii) The designated department institution determined that the student official issues a final program review PART 673—GENERAL PROVISIONS withdrew. determination; FOR THE FEDERAL PERKINS LOAN (c) Compliance thresholds. (1) An (iv) The Department, through a PROGRAM, FEDERAL WORK-STUDY institution does not comply with the program review report or draft audit PROGRAM, AND FEDERAL reserve standard under § 668.173(a)(3) report, or a guaranty agency issues a SUPPLEMENTAL EDUCATIONAL if, in a compliance audit conducted preliminary report showing that the OPPORTUNITY GRANT PROGRAM under § 668.23, an audit conducted by institution did not return unearned the Office of the Inspector General, or a funds for 10% or more of the sampled 20. The authority citation for part 673 program review conducted by the students; or continues to read as follows: Department or guaranty agency, the (v) The Secretary sends a written Authority: 20 U.S.C. 421–429, 1070b– auditor or reviewer finds— notice to the institution requesting the 1070b–3, and 1087aa–1087ii; 42 U.S.C. 2751– (i) In the sample of student records letter of credit that explains why the 2756b, unless otherwise noted. audited or reviewed that the institution institution has failed to return unearned 21. Section 673.5(f) is revised to read did not return unearned title IV, HEA funds in a timely manner. as follows: program funds within the timeframes (e) Exceptions. With regard to the described in paragraph (b) of this letter of credit described in paragraph § 673.5 Overaward. section for 5% or more of the students (d) of this section— * * * * * in the sample (For purposes of (1) An institution does not have to (f) Liability for and recovery of determining this percentage, the sample submit the letter of credit if the amount Federal Perkins loans and FSEOG
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overpayments. (1) Except as provided in collection purposes, in accordance with PART 685—WILLIAM D. FORD paragraphs (f)(2) and (f)(3) of this procedures required by the Secretary. FEDERAL DIRECT LOAN PROGRAM section, a student is liable for any After referring the FSEOG overpayment Federal Perkins loan or FSEOG to the Secretary under this section, the 28. The authority citation for part 685 overpayment made to him or her. An institution need make no further effort continues to read as follows: FSEOG overpayment for purposes of to recover the overpayment. Authority: 20 U.S.C. 1087a et seq., unless this paragraph (f) does not include the otherwise noted. non-Federal share of an FSEOG award if PART 675—FEDERAL WORK-STUDY an institution meets its FSEOG PROGRAMS § 685.203 [Amended] matching share by the individual 29. Section 685.203(h) is amended by recipient method or the aggregate 22. The authority citation for part 675 adding ‘‘, as defined in 34 CFR 668.3’’ method. continues to read as follows: after ‘‘year’’. (2) The institution is liable for a Authority: 42 U.S.C. 2751–2756b, unless § 685.301 [Amended] Federal Perkins loan or FSEOG otherwise noted. overpayment if the overpayment 30. Sections 685.301(a)(9)(i)(B)(2) and occurred because the institution failed 23. Section 675.2(b) is amended by (a)(9)(ii)(A) are amended by removing to follow the procedures in this part or revising the definition of ‘‘Student ‘‘34 CFR 668.2’’ and adding, in its place 34 CFR parts 668, 674, or 676. The services’’ to read as follows: ‘‘34 CFR 668.3’’. institution shall restore an amount equal § 675.2 Definitions. PART 690—FEDERAL PELL GRANT to the overpayment and any * * * * * administrative cost allowance claimed PROGRAM (b) * * * on that amount to its loan fund for a 31. The authority citation for part 690 Federal Perkins loan overpayment or to Student services: Services that are continues to read as follows: its FSEOG account for an FSEOG offered to students that may include, but overpayment. are not limited to, financial aid, library, Authority: 20 U.S.C. 1070a, unless (3) A student is not liable for, and the peer guidance counseling, job otherwise noted. institution is not required to attempt placement, assisting an instructor with 32. Section 690.75(a) is revised to recovery of, a Federal Perkins loan or curriculum-related activities, security, read as follows: FSEOG overpayment, nor is the and social, health, and tutorial services. Student services do not have to be direct § 690.75 Determination of eligibility for institution required to refer an FSEOG payment. overpayment to the Secretary, if the or involve personal interaction with overpayment— students. For purposes of this (a) For each payment period, an (i) Is less than $25, and definition, facility maintenance, institution may pay a Federal Pell Grant (ii) Is neither a remaining balance nor cleaning, purchasing, and public to an eligible student only after it a result of the application of the relations are never considered student determines that the student— overaward threshold in paragraph (d) of services. (1) Qualifies as an eligible student under 34 CFR part 668, subpart C; this section. * * * * * (4)(i) Except as provided in paragraph (2) Is enrolled in an eligible program (f)(3) of this section, if an institution 24. Section 675.21(b)(2)(i) is revised as an undergraduate student; and makes a Federal Perkins loan or FSEOG to read as follows: (3) If enrolled in a credit hour overpayment for which it is not liable, § 675.21 Institutional employment. program without terms or a clock hour it shall promptly send a written notice * * * * * program, has completed the payment to the student requesting repayment of period as defined in § 668.4 for which (b) * * * the overpayment amount. The notice he or she has been paid a Federal Pell must state that failure to make that (2) * * * Grant. repayment, or to make arrangements (i) Involve the provision of student * * * * * satisfactory to the holder of the services as defined in § 675.2(b) that are 33. Section 690.79 is revised to read overpayment debt to pay the directly related to the work-study as follows: overpayment, makes the student student’s training or education; ineligible for further title IV aid until * * * * * § 690.79 Liability for and recovery of final resolution of the overpayment. Federal Pell Grant overpayments. (ii) If a student objects to the PART 682—FEDERAL FAMILY (a)(1) Except as provided in institution’s Federal Perkins loan or EDUCATION LOAN (FFEL) PROGRAM paragraphs (a)(2) and (a)(3) of this FSEOG overpayment determination on section, a student is liable for any the grounds that it is erroneous, the 25. The authority citation for part 682 Federal Pell Grant overpayment made to institution shall consider any continues to read as follows: him or her. information provided by the student Authority: 20 U.S.C. 1071 to 1087–2, (2) The institution is liable for a and determine whether the objection is unless otherwise noted. Federal Pell Grant overpayment if the warranted. overpayment occurred because the (5) Except as provided in paragraph § 682.204 [Amended] institution failed to follow the (f)(3) of this section, if a student fails to 26. Section 682.204(l) is revised by procedures set forth in this part or 34 repay an FSEOG overpayment, or make changing ‘‘34 CFR 668.2’’ to ‘‘34 CFR CFR Part 668. The institution must arrangements satisfactory to the holder 668.3’’. restore an amount equal to the of the overpayment debt to repay the overpayment to its Federal Pell Grant FSEOG overpayment, after the § 682.603 [Amended] account. institution has taken the action required 27. Sections 682.603(f)(1)(ii)(B) and (3) A student is not liable for, and the by paragraph (f)(4) of this section, the (f)(2)(i) are amended by removing ‘‘34 institution is not required to attempt institution must refer the FSEOG CFR 668.2’’ and adding, in its place ‘‘34 recovery of or refer to the Secretary, a overpayment to the Secretary for CFR 668.3’’. Federal Pell Grant overpayment if the
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amount of the overpayment is less than and determine whether the objection is PART 694—GAINING EARLY $25 and is not a remaining balance. warranted. AWARENESS AND READINESS FOR (b)(1) Except as provided in paragraph (c) Except as provided in paragraph UNDERGRADUATE PROGRAMS (a)(3) of this section, if an institution (a)(3) of this section, if the student fails (GEAR UP) makes a Federal Pell Grant overpayment to repay a Federal Pell Grant 34. The authority citation for part 694 for which it is not liable, it must overpayment, or make arrangements continues to read as follows: promptly send a written notice to the satisfactory to the holder of the student requesting repayment of the Authority: 20 U.S.C. 1070a–21 to 1070a– overpayment debt to repay the Federal 28. overpayment amount. The notice must Pell Grant overpayment, after the state that failure to make that institution has taken the action required 35. Section 694.10(e) is revised to repayment, or to make arrangements by paragraph (b) of this section, the read as follows: satisfactory to the holder of the institution must refer the overpayment overpayment debt to repay the § 694.10 What are the requirements for to the Secretary for collection purposes, awards under the program’s scholarship overpayment, makes the student component under section 404E of the HEA? ineligible for further title IV aid until in accordance with procedures required final resolution of the Federal Pell Grant by the Secretary. After referring the * * * * * overpayment. Federal Pell Grant overpayment to the (e) Other grant assistance. A GEAR Secretary under this section, the UP scholarship may not be considered (2) If a student objects to the institution need make no further efforts in the determination of a student’s institution’s Federal Pell Grant eligibility for other grant assistance overpayment determination on the to recover the overpayment. provided under title IV of the HEA. grounds that it is erroneous, the (Authority: 20 U.S.C. 1070a) institution must consider any [FR Doc. 02–20058 Filed 8–7–02; 8:45 am] information provided by the student BILLING CODE 4000–01–P
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Part VI
Department of Education National Institute on Disability and Rehabilitation Research; Notice
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DEPARTMENT OF EDUCATION During and after the comment period, that meet the priority (34 CFR you may inspect all public comments 75.105(c)(3)). National Institute on Disability and about this priority in room 3412, Competitive preference priority: Rehabilitation Research Switzer Building, 330 C Street, SW., Under a competitive preference priority, Washington, DC, between the hours of we give competitive preference to an AGENCY: Office of Special Education and 8:30 a.m. and 4 p.m., Eastern time, application by either (1) awarding Rehabilitative Services, Department of Monday through Friday of each week additional points, depending on how Education. except Federal holidays. well or the extent to which the ACTION: Notice of proposed priority. application meets the priority (34 CFR Assistance to Individuals With 75.105(c)(2)(i)); or (2) selecting an SUMMARY: The Assistant Secretary for Disabilities in Reviewing the application that meets the priority over Special Education and Rehabilitative Rulemaking Record Services proposes a priority for an application of comparable merit that On request, we will supply an Alternative Financing Program does not meet the priority (34 CFR appropriate aid, such as a reader or Technical Assistance (AFPTA) under 75.105(c)(2)(ii)). print magnifier, to an individual with a title III of the Assistive Technology Act Invitational priority: Under an disability who needs assistance to of 1998 (AT Act), which is administered invitational priority, we are particularly review the comments or other by the National Institute on Disability interested in applications that meet the documents in the public rulemaking and Rehabilitation Research (NIDRR). invitational priority. However, we do record for this proposed priority. If you The Assistant Secretary may use this not give an application that meets the want to schedule an appointment for priority for competitions in fiscal year priority a competitive or absolute this type of aid, please contact the (FY) 2002 and later years. We take this preference over other applications (34 person listed under FOR FURTHER action to focus attention on an CFR 75.105(c)(1)). INFORMATION CONTACT. identified national need. We intend this Priority priority to provide information and Alternative Financing Program technical assistance to States and Technical Assistance Program (AFPTA) Background outlying areas participating or interested Title III of the AT Act established an We are particularly interested in in participating in the AFP. Alternative Financing Program (AFP), applications that propose ways to DATES: We must receive your comments which pays part of the cost for the States collect, analyze, compile and report data on or before September 9, 2002. and outlying areas to establish or provided by the AFP projects. ADDRESSES: Address all comments about maintain alternative financing projects You may obtain additional this proposed priority to Donna Nangle, to increase access to assistive information about the background of Department of Education, 400 Maryland technology (AT) for individuals with this priority by contacting the person Avenue, SW., room 3412, Switzer disabilities. The purpose of the AFPTA listed under FOR FURTHER INFORMATION Building, Washington, DC 20202–2645. is to provide information and technical CONTACT. If you prefer to send your comments assistance to States and outlying areas Statutory Priority through the Internet, use the following participating in the AFP. Public or address: [email protected]. private agencies and organizations, As required by section 306(a) of the AT Act, the AFPTA project must: FOR FURTHER INFORMATION CONTACT: including institutions of higher education, are the entities eligible for an (a) Provide assistance to States Donna Nangle. Telephone: (202) 205– preparing applications for the AFP; 5880 or via the Internet: AFPTA grant award. This priority reflects issues discussed (b) Assist States to develop and [email protected]. If you use a implement the AFP; and telecommunications device for the deaf in the New Freedom Initiative (NFI) and NIDRR’s Long-Range Plan (the Plan). (c) Provide any other information and (TDD), you may call the TDD number at TA the Assistant Secretary determines (202) 205–4475. The NFI can be accessed on the Internet at: http://www.whitehouse.gov/news/ to be appropriate to assist States to Individuals with disabilities may achieve the objectives of AFP. obtain this document in an alternative freedominitiative/freedominiative.html. format (e.g., Braille, large print, The Plan can be accessed on the Internet Proposed Priority at: http://www.ed.gov/offices/OSERS/ audiotape, or computer diskette) on In addition to the statutory priority, request to the contact person listed NIDRR/Products. We will announce the final priority in NIDRR is particularly interested in under FOR FURTHER INFORMATION having the AFPTA collect, analyze, CONTACT. a notice in the Federal Register. We will determine the final priority after compile, and report data provided by SUPPLEMENTARY INFORMATION: considering responses to this notice and the AFP projects. AFP projects currently report data using an instrument that was Invitation To Comment other information available to the Department. This notice does not developed and implemented to assist We invite you to submit comments preclude us from proposing or funding the State grantees with their data regarding this proposed priority. additional priorities, subject to meeting collection obligations. NIDRR will We invite you to assist us in applicable rulemaking requirements. provide this instrument to the grantee complying with the specific upon receipt of award. The AFPTA requirements of Executive Order 12866 Note: This notice does not solicit must: applications. In any year in which we choose and its overall requirement of reducing to use this proposed priority, we invite (1) Collect data from the AFP projects regulatory burden that might result from applications through a notice in the Federal and assist the projects in this effort; this proposed priority. Please let us Register. When inviting applications, we (2) Propose strategies for reviewing know of any further opportunities we designate the priority as absolute, the AFP data collection instrument to should take to reduce potential costs or competitive preference, or invitational. The determine what modifications should be increase potential benefits while effect of each priority follows: made to improve its usability, reliability preserving the effective and efficient Absolute priority: Under an absolute and validity and suggest strategies to administration of the program. priority, we consider only applications facilitate and expedite the collection of
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uniform annual data from the AFP shall be classified by age, type of at this site. If you have questions about projects; disability, type of assistive technology using PDF, call the U.S. Government (3) Provide technical assistance to the device or assistive technology service Printing Office (GPO), toll free, at 1– State grantees on the data collection financed through the program, 888–293–6498; or in the Washington, instrument that will support and geographic distribution within the State, DC, area at (202) 512–1530. improve the data collection efforts of the gender, and whether the consumers are Note: The official version of this document States; part of an underrepresented population is the document published in the Federal (4) Provide technical assistance and or rural population and, includes an Register. Free Internet access to the official training to State grantees on data executive summary, description of data edition of the Federal Register and the Code collection strategies that will improve collection procedures utilized and an of Federal Regulations is available on GPO the quality of the data collected; and analysis of the aggregated States’ data access at: http://www.access.gpo.gov/nara/ (5) Through the technical assistance including a discussion of trends. index.html. activities conducted under this priority, Electronic Access to This Document (Catalog of Federal Domestic Assistance the project shall prepare a report on the Number 84.224C, Alternative Financing activities funded under this Title. The You may review this document, as Program.) report shall include the following: (a) well as all other Department of Program Authority: 29 U.S.C. 3056. the type of alternative financing Education documents published in the mechanisms used by each State and the Federal Register, in text or Adobe Dated: August 5, 2002. community-based organization with Portable Document Format (PDF) on the Robert H. Pasternack, which each State entered into a Internet at the following site: Assistant Secretary for Special Education contract, under the program; and (b) the www.ed.gov/legislation/FedRegister. and, Rehabilitative Services. amount of assistance given to To use PDF you must have Adobe [FR Doc. 02–20065 Filed 8–7–02; 8:45 am] consumers through the program who Acrobat Reader, which is available free BILLING CODE 4000–01–P
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Part VII
Department of Education Office of Special Education and Rehabilitative Services, Office of Special Education Programs; Final Priority Under the State Improvement Grant Program; Notice Inviting Applications for New Awards for Fiscal Year 2002; Notices
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DEPARTMENT OF EDUCATION Note: This notice does not solicit representing individuals with applications. In any year in which we choose disabilities and their parents, the lead Office of Special Education Programs; to use this priority, we invite applications State agency for part C IDEA, Final Priority Under the State through a notice in the Federal Register. institutions of higher education within Improvement Grant Program When inviting applications we designate the the State, etc.), submitted improvement priority as absolute, competitive preference, plans focused on such areas as: (1) AGENCY: Office of Special Education or invitational. The effect of each type of And Rehabilitative Services, priority follows: Training and personnel; (2) recruitment Department of Education. and retention of special education, Absolute priority: Under an absolute related services and early intervention ACTION: Notice of final priority. priority we consider only applications staff; (3) performance of children with that meet the priority (34 CFR SUMMARY: disabilities; and (4) improving overall The Assistant Secretary for 75.105(c)(3)). Special Education and Rehabilitative program effectiveness. The States Competitive preference priority: receiving the grants have used the funds Services announces a priority under the Under a competitive preference priority State Program Improvement Grant to implement the improvement we give competitive preference to an strategies that they proposed in their Program administered by the Office of application by either (1) awarding Special Education and Rehabilitative plans. The Secretary anticipates that additional points, depending on how there will be additional fiscal year 2001 Services (OSERS) under the Individuals well or the extent to which the with Disabilities Education Act (IDEA), funds available subsequent to making application meets the priority (34 CFR awards under this year’s competition. as amended. The Assistant Secretary 75.105(c)(2)(i)); or (2) selecting an may use this priority for competitions in To utilize additional funds that may application that meets the priority over become available, the Secretary is fiscal year 2002 and in later years. We an application of comparable merit that take this action to focus Federal conducting a separate competition does not meet the priority (34 CFR under which only grantees from the FY financial assistance on identified needs 75.105(c)(2)(ii)). to improve results for children with 1999, 2000 and 2001 competitions Invitational priority: Under an would be eligible. disabilities. The priority is intended to invitational priority we are particularly ensure wide and effective use of interested in applications that meet the Priority program funds. invitational priority. However, we do The Secretary has established a EFFECTIVE DATE: This priority is effective not give an application that meets the priority to award competitive September 9, 2002. priority a competitive or absolute supplements to State Improvement FOR FURTHER INFORMATION CONTACT: preference over other applications (34 Grants awarded in 1999, 2000, or 2001 Larry Wexler, U.S. Department of CFR 75. 105(c)(1)). for the purpose of enhancing current Education, 400 Maryland Avenue, SW., Priority grant activities. Applicants must room 3630, Switzer Building, describe additional activities that Washington, DC 20202–2641. Competitive Supplement to State augment or complement those goals and Telephone: (202) 205–5390. FAX: (202) Program Improvement Grants activities that are already being 205–9179 or via Internet: Background implemented as part of their State [email protected] Improvement Grant. Enhancement If you use a telecommunications There are currently 36 State activities may be simply an expansion device for the deaf (TDD), you may call educational agencies that are funded of activities already described in the the Federal Information Relay Service under the State Program Improvement narrative or they may be new activities (FIRS) at 1–800–877–8339. Grant program. These grants are meant that will improve the quality of the Individuals with disabilities may to improve results for children with previously approved State improvement obtain a copy of this document in an disabilities by addressing personnel grant tasks. The Secretary is particularly alternative format (e.g., Braille, large training needs of States, as identified by interested in activities that focus on: (1) print, audiotape, or computer diskette) the States, and have been an example of Retention and recruitment of highly on request to the contact person listed the Department’s continuing effort to qualified personnel; (2) the use of FOR FURTHER INFORMATION under improve educational opportunities for research-based reading intervention CONTACT. all children. Congress established the strategies; and (3) the use of research- SUPPLEMENTARY INFORMATION: We State Program Improvement Grant based positive behavior supports. published a notice of proposed priority program when it reauthorized IDEA in Projects must— for this program in the Federal Register 1997. The money helps State (a) Enhance only those State on June 18, 2002 (67 FR 41586). educational agencies reform their Improvement Grant activities that can Except for minor editorial and systems for providing educational, early be shown, based on the project’s data- technical revisions, there are no intervention and transitional services based evaluation, to have impacted differences between the notice of for children with disabilities. It also positively on the goal(s) of the project; proposed priority and this notice of supports technical assistance for local (b) Incorporate the expanded or new final priority. schools and dissemination of knowledge activities into the project’s ongoing about best practices. Seventy-five evaluation activities; Public Comment percent of each grant must be used for (c) Incorporate the expanded or new In the notice of proposed priority, we professional development. activities into the project’s existing invited comments on the proposed As part of the competition, each State, partnership agreements; and priority. We did not receive any in conjunction with required partners, (d) Ensure that the State uses not less substantive comments. However, we including local education agencies and than 75 percent of the funds (existing have made a change in the second other State agencies that provide special budget plus any supplemental funds) it paragraph under (d) on page 41587, to education services (at its option the receives under the grant for any fiscal clarify that the awards are not new State may also include other partners year on professional development and projects but are supplements to existing such as the Governor, parents of training of regular education, special projects. children with disabilities, organizations education, or related services personnel.
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Only 50 percent of the funds must be DEPARTMENT OF EDUCATION certifications; or the one-page abstract, used on professional development if the the resumes, the bibliography or [CFDA No. 84.323] State can demonstrate to the Department references, or the letters of support. that it has sufficient personnel. Office of Special Education and However, you must include all of the Under this priority, the Secretary will Rehabilitative Services, Office of application narrative in Part III. We will reject any application if— make, based on available funds, up to 36 Special Education Programs—State • You apply these standards and supplements. Program Improvement Grant Program; Notice Inviting Applications for New exceed the page limit; or • Intergovernmental Review Awards for Fiscal Year 2002 You apply other standards and exceed the equivalent of the page limit. This program is subject to the Purpose of Program: The purpose of Applicable Regulations: (a) The requirements of Executive Order 12372 the State Program Improvement Grant Education Department General and the regulations in 34 CFR part 79. program is to assist State educational Administrative Regulations (EDGAR) in One of the objectives of the Executive agencies and their partners referred to in 34 CFR parts 74, 75, 77, 79, 80, 81, 82, order is to foster an intergovernmental section 652(b) of IDEA with reforming 85, 86, 97, 98, and 99; and (b) The partnership and a strengthened and improving their systems for regulations for this program in 34 CFR federalism. The Executive order relies providing educational, early part 304; and (c) The selection criteria on processes developed by State and intervention, and transitional services, chosen from the general selection local governments for coordination and including their systems for professional criteria in 34 CFR 75.210. The specific review of proposed Federal financial development, technical assistance, and selection criteria for this priority are assistance. dissemination of knowledge about best included in the application package for practices, to improve results for this competition. This document provides early children with disabilities. notification of our specific plans and Eligible Applicants: State educational Priority actions for this program. agencies with currently funded State For FY 2002 this priority is an Electronic Access to This Document Improvement Grants. absolute priority. Under 34 CFR Applications Available: August 8, 75.105(c)(3) we consider only You may view this document, as well 2002. applications that meet the priority. as all other Department of Education Deadline for Transmittal of This competition focuses on projects documents published in the Federal Applications: September 9, 2002. designed to meet a priority in the notice Register, in text or Adobe Portable Deadline for Intergovernmental of final priority for this program, Document Format (PDF) on the Internet Review: September 19, 2002. published elsewhere in this issue of the Estimated Available Funds: at either of the following site: http:// Federal Register. $8,000,000. www.ed.gov/legislation/FedRegister Estimated Number of Awards: Under FOR APPLICATION INFORMATION CONTACT: To use PDF you must have Adobe this priority, the Secretary will make, For this priority under the Special Acrobat Reader, which is available free based on available funds, up to 36 Education—State Program Improvement at this site. If you have questions about supplements. Grant Program, contact Larry Wexler, using PDF, call the U.S. Government Estimated Size of Awards: State U.S. Department of Education, 400 Printing Office (GPO), toll free, at educational agencies with currently Maryland Avenue, SW., Room 3630, 1–888–293–6498; or in the Washington, funded State Improvement grants may Switzer Building, Washington, DC 20202–2641. Telephone: (202) 205– DC, area at (202) 512–1530. apply for up to 10 percent of the five- year total of their existing awards. 5390. FAX: (202) 205–9179 or via Note: The official version of this Internet: [email protected]. document is the document published in Page Limit If you use a telecommunications the Federal Register. Free Internet Part III of each application, the device for the deaf (TDD), you may call access to the official edition of the application narrative, is where an the Federal Information Relay Service Federal Register and the Code of applicant addresses the selection (FIRS) at 1–800–877–8339. Federal Regulations is available on GPO criteria that are used by reviewers in Individuals with disabilities may access at: http://www.access.gpo. gov/ evaluating the application. You must obtain a copy of this document in an nara/index.html limit Part III to the equivalent of no alternative format (e.g., Braille, large (Catalog of Federal Domestic Assistance more than 25 pages, using the following print, audiotape, or computer diskette) standards: on request to the contact person listed Number: State Program Improvement Grants • ″ × ″ Program, 84.323A) A ‘‘page’’ is 8.5 11 (on one side under FOR APPLICATION INFORMATION only) with one-inch margins (top, CONTACT. Program Authority: 20 U.S.C. 1405, 1461, bottom, and sides). Electronic Access to This Document 1472, 1474, and 1487. • Double-space (no more than three You may view this document, as well Dated: August 5, 2002 lines per vertical inch) all text in the application narrative, including titles, as all other Department of Education Robert H. Pasternack, headings, footnotes, quotations, and documents published in the Federal Assistant Secretary for Special Education and captions, as well as all text in charts, Register, in text or Adobe Portable Rehabilitative Services. tables, figures, and graphs. Document Format (PDF) on the Internet [FR Doc. 02–20119 Filed 8–7–02; 8:45 am] • Use a font that is either 12-point or at either of the following site: http:// BILLING CODE 4000–01–P larger or no smaller than 10 pitch www.ed.gov/legislation/FedRegister. (characters per inch). To use PDF you must have Adobe The page limit does not apply to Part Acrobat Reader, which is available free I, the cover sheet; Part II, the budget at this site. If you have questions about section, including the narrative budget using PDF, call the U.S. Government justification; Part IV, the assurances and Printing Office (GPO), toll free, at 1–
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888–293–6498; or in the Washington, of Federal Regulations is available on GPO Dated: August 5, 2002. DC, area at (202) 512–1530. access at: http://www.access.gpo.gov/nara/ Robert H. Pasternack, index.html. Note: The official version of this document Assistant Secretary for Special Education and is the document published in the Federal Rehabilitative Services. Register. Free Internet access to the official Program Authority: 20 U.S.C. 1405, 1461, [FR Doc. 02–20120 Filed 8–7–02; 8:45 am] edition of the Federal Register and the Code 1472, 1474, and 1487. BILLING CODE 4000–01–P
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Reader Aids Federal Register Vol. 67, No. 153 Thursday, August 8, 2002
CUSTOMER SERVICE AND INFORMATION CFR PARTS AFFECTED DURING AUGUST
Federal Register/Code of Federal Regulations At the end of each month, the Office of the Federal Register General Information, indexes and other finding 202–523–5227 publishes separately a List of CFR Sections Affected (LSA), which aids lists parts and sections affected by documents published since Laws 523–5227 the revision date of each title. 3 CFR 50345, 50347, 50764, 50791, Presidential Documents 50793, 50799, 51065, 51068, Executive orders and proclamations 523–5227 Executive Orders: 51069, 51459 The United States Government Manual 523–5227 12722 (See Notice of 71 ...... 51070, 51071, 51072, July 30, 2002) ...... 50341 51073, 51074 Other Services 12724 (See Notice of Proposed Rules: 523–3447 July 30, 2002) ...... 50341 Electronic and on-line services (voice) 39...... 50383, 51147 Administrative Orders: Privacy Act Compilation 523–3187 71...... 51149 Public Laws Update Service (numbers, dates, etc.) 523–6641 Notices: TTY for the deaf-and-hard-of-hearing 523–5229 Notice of July 30, 15 CFR 2002 ...... 50341 774...... 50348 Presidential 902...... 50292, 51074 ELECTRONIC RESEARCH Determinations: World Wide Web No. 2002–26 of July 17 CFR 17, 2002 ...... 50343 Full text of the daily Federal Register, CFR and other publications Proposed Rules: 15...... 50608 is located at: http://www.access.gpo.gov/nara 5 CFR 230...... 50326 532 (2 documents) ...... 49855 Federal Register information and research tools, including Public 232...... 51508 2634...... 49856 Inspection List, indexes, and links to GPO Access are located at: 240...... 50326, 51508 http://www.nara.gov/fedreg Proposed Rules: 242...... 51510 532 (2 documents) ...... 49878, 249...... 51508 E-mail 49879 18 CFR FEDREGTOC-L (Federal Register Table of Contents LISTSERV) is 7 CFR an open e-mail service that provides subscribers with a digital Proposed Rules: 301...... 51459 form of the Federal Register Table of Contents. The digital form 2...... 51516 735...... 50778 of the Federal Register Table of Contents includes HTML and 101...... 51150 PDF links to the full text of each document. 736...... 50778 737...... 50778 201...... 51150 To join or leave, go to http://listserv.access.gpo.gov and select 738...... 50778 352...... 51150 Online mailing list archives, FEDREGTOC-L, Join or leave the list 739...... 50778 19 CFR (or change settings); then follow the instructions. 740...... 50778 741...... 50778 Proposed Rules: PENS (Public Law Electronic Notification Service) is an e-mail 4...... 51519 service that notifies subscribers of recently enacted laws. 742...... 50778 928...... 50581 113...... 51519 To subscribe, go to http://hydra.gsa.gov/archives/publaws-l.html 930...... 51700 21 CFR and select Join or leave the list (or change settings); then follow 1160...... 49857 the instructions. Proposed Rules: 510 ...... 50802, 51079, 51080 FEDREGTOC-L and PENS are mailing lists only. We cannot 701...... 49879 520...... 50596, 51080 respond to specific inquiries. 1001...... 49887 529...... 51079 558...... 51080, 51081 Reference questions. Send questions and comments about the 9 CFR Federal Register system to: [email protected] 22 CFR 77...... 50791 41...... 50349 The Federal Register staff cannot interpret specific documents or Proposed Rules: regulations. 112...... 49891 196...... 50802 113...... 49891, 50606 24 CFR FEDERAL REGISTER PAGES AND DATE, AUGUST 10 CFR 903...... 51030 49855–50342...... 1 Proposed Rules: 25 CFR 50343–50580...... 2 7...... 51501 50581–50790...... 5 50...... 50374 Proposed Rules: 170...... 51328 50791–51064...... 6 52...... 50374 51065–51458...... 7 11 CFR 26 CFR 51459–51750...... 8 100...... 50582, 51131 1...... 49862 104...... 51131 301...... 49862 105...... 51131 Proposed Rules: 114...... 51131 1 ...... 49892, 50386, 50510, 50840 13 CFR 31...... 50386 Proposed Rules: 301...... 50840 121...... 50383 27 CFR 14 CFR Proposed Rules: 39 ...... 49858, 49859, 49861, 9...... 51156
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28 CFR 675...... 51720 272...... 49900 1813...... 50823 79...... 51422 682...... 51036, 51720 300...... 51528 1815...... 50823 542...... 50804 685...... 51036, 51720 450...... 51527 1819...... 50824 690...... 51720 1825...... 50823 Proposed Rules: 694...... 51720 42 CFR 1852...... 50823 79...... 51440 405...... 49982 36 CFR 29 CFR 412...... 49982 49 CFR 242...... 50597 413...... 49982 Proposed Rules: 107...... 51626 Proposed Rules: 485...... 49982 1910...... 51524 171...... 51626 242...... 50619 Proposed Rules: 1926...... 50610 172...... 51626 68d...... 50622 33 CFR 39 CFR 173...... 51626 44 CFR 177...... 51626 6...... 51082 927...... 50353 178...... 51626 64...... 50817 117...... 50349 179...... 51626 40 CFR 65...... 50362 125...... 51082 180...... 51626 165...... 50351, 51083 51...... 50600 46 CFR 192...... 50824 Proposed Rules: 52...... 50602, 51461 1503...... 51480 Ch. I ...... 50840 81...... 50805 Proposed Rules: 117 ...... 50842, 50842, 51157 86...... 51464 221...... 50406 50 CFR 155...... 51159 93...... 50808 47 CFR 165...... 50846 180 ...... 50354, 51083, 51088, 17...... 51116 334...... 50389, 50390 51097, 51102 25...... 51105, 51110 216...... 49869 385...... 50340 271...... 51478 54...... 50602 622...... 50367, 51074 272...... 49864 73 ...... 50603, 50819, 50820, 648 ...... 50292, 50368, 50604 34 CFR Proposed Rules: 50821, 50822, 51115 660...... 49875, 50835 Proposed Rules: 51...... 51525 100...... 51110 679 ...... 49877, 50604, 51129, 200...... 50986 52 ...... 49895, 49897, 50391, Proposed Rules: 51130, 51499 600...... 51720 50847, 51527 73 ...... 50850, 50851, 50852 Proposed Rules: 668...... 51036, 51720 85...... 51402 17...... 50626, 51530 673...... 51720 86...... 51402 48 CFR 100...... 50619 674...... 51036 122...... 51527 1804...... 50823 226...... 51530
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REMINDERS Investigative and ENVIRONMENTAL HEALTH AND HUMAN The items in this list were enforcement procedures; PROTECTION AGENCY SERVICES DEPARTMENT editorially compiled as an aid published 8-8-02 Air pollutants, hazardous; Food and Drug to Federal Register users. national emission standards: Administration Inclusion or exclusion from COMMENTS DUE NEXT Generic Maximum Medical devices: this list has no legal WEEK Achievable Control Dental devices— significance. Technology— Root-form endosseous Spandex production; AGRICULTURE dental implants and comments due by 8-12- RULES GOING INTO DEPARTMENT abutments; 02; published 7-12-02 reclassification from EFFECT AUGUST 8, 2002 Agricultural Marketing [FR 02-12842] Class III to Class II; Service Spandex production; comments due by 8-12- CORPORATION FOR Milk marketing orders: NATIONAL AND correction; comments 02; published 5-14-02 Mideast; comments due by COMMUNITY SERVICE due by 8-12-02; [FR 02-12041] 8-12-02; published 6-11- AmeriCorps grant regulations; published 7-12-02 [FR HOUSING AND URBAN 02 [FR 02-14455] published 7-9-02 02-12843] DEVELOPMENT Mushroom promotion, ENVIRONMENTAL Secondary aluminum DEPARTMENT research, and consumer PROTECTION AGENCY production; comments due Public and Indian housing: information order; comments Air pollution control; new by 8-13-02; published 6- Native Hawaiian Housing due by 8-15-02; published motor vehicles and engines: 14-02 [FR 02-14627] Block Grant and Loan 7-16-02 [FR 02-17764] Heavy-duty diesel engines Air quality implementation Guarantees for Native and vehicles; 2004 and Specialty crops; import plans; approval and Hawaiian Housing later model year emission regulations: promulgation; various Programs; comments due standards; Raisins, Other-Seedless States: by 8-12-02; published 6- nonconformance penalties; Sulfured; comments due California; comments due by 13-02 [FR 02-14721] published 8-8-02 by 8-13-02; published 6- 8-15-02; published 7-16- INTERIOR DEPARTMENT 14-02 [FR 02-15059] 02 [FR 02-17696] Hazardous waste program Fish and Wildlife Service authorizations: Georgia; comments due by AGRICULTURE Endangered and threatened Delaware; published 8-8-02 8-12-02; published 7-11- DEPARTMENT species: FEDERAL 02 [FR 02-17317] Animal and Plant Health Critical habitat COMMUNICATIONS Tennessee; comments due Inspection Service designations— COMMISSION Plant-related quarantine, by 8-15-02; published 7- Common carrier services: 16-02 [FR 02-17700] Blackburn’s sphinx moth; foreign: comments due by 8-12- International Hazardous waste program Gypsy moth host material 02; published 6-13-02 telecommunications authorizations: from Canada; comments [FR 02-14683] services; biennial Georgia; comments due by due by 8-13-02; published Various plant species regulatory review; 8-15-02; published 7-16- 6-14-02 [FR 02-15074] from Lanai, HI; published 7-9-02 02 [FR 02-17694] Viruses, serums, toxins, etc.: comments due by 8-15- POSTAL SERVICE Hazardous waste: Equine influenza vaccine, 02; published 7-16-02 Domestic Mail Manual: killed virus; comments Cathode ray tubes and [FR 02-18016] Free matter for blind and due by 8-15-02; published mercury-containing other physically disabled INTERIOR DEPARTMENT 8-1-02 [FR 02-19422] equipment; comments due persons; eligibility by 8-12-02; published 6- Minerals Management standards; published 7-8- COMMERCE DEPARTMENT 12-02 [FR 02-13116] Service 02 National Oceanic and Identification and listing— Outer Continental Shelf; oil, Atmospheric Administration gas, and sulphur operations: TRANSPORTATION Exclusions; comments due DEPARTMENT Endangered and threatened by 8-12-02; published Plans and information; Federal Aviation species: 7-12-02 [FR 02-17458] comments due by 8-15- Administration 02; published 5-17-02 [FR Findings on petitions, etc.— Municipal solid waste 02-11641] Airworthiness directives: Klamath River Basin coho landfills; location Empresa Brasileira de salmon; comments due restrictions for airport INTERIOR DEPARTMENT Aeronautica S.A. by 8-12-02; published safety; comments due by Surface Mining Reclamation (EMBRAER); published 7- 6-13-02 [FR 02-14959] 8-12-02; published 7-11- and Enforcement Office 24-02 Fishery conservation and 02 [FR 02-16994] Permanent program and Class E airspace; published 3- management: abandoned mine land 11-02 FEDERAL West Coast States and COMMUNICATIONS reclamation plan Class E airspace; correction; Western Pacific COMMISSION submissions: published 3-15-02 fisheries— Kentucky; comments due by Class E5 airspace; published Radio services special: 8-14-02; published 7-15- 5-22-02 West Coast salmon; Maritime services— 02 [FR 02-17654] Federal airways; published 5- comments due by 8-16- Global Maritime Distress 10-02 02; published 8-1-02 and Safety System; Montana; comments due by 8-14-02; published 7-15- IFR altitudes; published 7-1-02 [FR 02-19429] comments due by 8-15- 02 [FR 02-17653] Jet routes; published 6-20-02 DEFENSE DEPARTMENT 02; published 5-17-02 Jet routes and VOR Federal Civilian health and medical [FR 02-12430] PERSONNEL MANAGEMENT airways; published 4-17-02 program of uniformed FEDERAL TRADE OFFICE Restricted areas; published 6- services (CHAMPUS): COMMISSION Prevailing rate systems; 20-02 TRICARE program— Textile Fiber Products comments due by 8-16-02; published 7-17-02 [FR 02- TRANSPORTATION Sub-acute and long-term Identification Act; 17900] DEPARTMENT care program reform; implementation: Transportation Security comments due by 8-12- Lastol; comments due by 8- RAILROAD RETIREMENT Administration 02; published 6-13-02 12-02; published 5-24-02 BOARD Practice and procedure: [FR 02-14707] [FR 02-13151] Railroad Retirement Act:
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Retirement age; definition; TRANSPORTATION TRANSPORTATION session of Congress which comments due by 8-16- DEPARTMENT DEPARTMENT have become Federal laws. It 02; published 6-17-02 [FR Federal Aviation Federal Motor Carrier Safety may be used in conjunction 02-15104] Administration Administration with ‘‘PLUS’’ (Public Laws SMALL BUSINESS Air traffic operating and flight Hazardous materials Update Service) on 202–523– ADMINISTRATION rules, etc.: transportation; driving and 6641. This list is also Small business size standards: Noise operating limits; parking rules: available online at http:// Nonmanufacturer rule; transition to all Stage 3 Motor carriers transporting www.nara.gov/fedreg/ waivers— fleet operating in 48 hazardous materials; plawcurr.html. Small arms ammunition contiguous United States periodic tire check manufacturing; and District of Columbia; requirement; comments The text of laws is not comments due by 8-16- comments due by 8-14- due by 8-15-02; published published in the Federal 02; published 8-2-02 02; published 7-15-02 [FR 7-16-02 [FR 02-17898] Register but may be ordered [FR 02-19472] 02-17744] TRANSPORTATION in ‘‘slip law’’ (individual pamphlet) form from the SOCIAL SECURITY Airworthiness directives: DEPARTMENT Superintendent of Documents, ADMINISTRATION Airbus; comments due by 8- Maritime Administration U.S. Government Printing Social security benefits and 16-02; published 7-17-02 Vessel financing assistance: [FR 02-18027] Office, Washington, DC 20402 supplemental security Deposit funds; establishment Boeing; comments due by (phone, 202–512–1808). The income: and administration; text will also be made Federal old-age, survivors, 8-12-02; published 6-28- comments due by 8-12- 02 [FR 02-16310] available on the Internet from and disability benefits, 02; published 6-12-02 [FR GPO Access at http:// Boeing and McDonnell and aged, blind, and 02-14823] www.access.gpo.gov/nara/ Douglas; comments due disabled— TREASURY DEPARTMENT nara005.html. Some laws may by 8-12-02; published 6- Residual functional Internal Revenue Service not yet be available. capacity assessments 26-02 [FR 02-15661] Excise taxes: and vocational experts CFM International; H.R. 2175/P.L. 107–207 and other sources use, comments due by 8-12- Diesel fuel; blended taxable 02; published 6-13-02 [FR fuel; comments due by 8- clarifications; special Born-Alive Infants Protection profile incorporation into 02-14856] 14-02; published 5-16-02 [FR 02-12308] Act of 2002 (Aug. 5, 2002; regulations; comments Eurocopter France; 116 Stat. 926) due by 8-12-02; comments due by 8-12- Income taxes: published 6-11-02 [FR 02; published 6-12-02 [FR Gross proceeds payments Last List August 6, 2002 02-13901] 02-14568] to attorneys; reporting TRANSPORTATION General Electric; comments requirements; comments DEPARTMENT due by 8-12-02; published due by 8-15-02; published 6-13-02 [FR 02-14857] 5-17-02 [FR 02-12464] Coast Guard Public Laws Electronic Ports and waterways safety: General Electric Co.; TREASURY DEPARTMENT comments due by 8-12- Notification Service East River, Manhattan, NY; Thrift Supervision Office (PENS) safety zone; comments 02; published 6-12-02 [FR Savings associations; fiduciary due by 8-16-02; published 02-14700] powers; and securities 7-26-02 [FR 02-18921] SOCATA-Groupe transactions; recordkeeping Houston-Galveston Captain AEROSPATIALE; and confirmation PENS is a free electronic mail of Port Zone, TX; security comments due by 8-14- requirements; comments notification service of newly zones; comments due by 02; published 7-12-02 [FR due by 8-12-02; published enacted public laws. To 8-12-02; published 6-11- 02-17600] 6-11-02 [FR 02-14317] subscribe, go to http:// 02 [FR 02-14560] Airworthiness standards: VETERANS AFFAIRS hydra.gsa.gov/archives/ Houston and Galveston Special conditions— DEPARTMENT publaws-l.html or send E-mail Ports, TX; security zones; Eclipse Aviation Corp. Board of Veterans Appeals: to [email protected] comments due by 8-12- Model 500 airplane; Appeals regulations and with the following text 02; published 6-11-02 [FR comments due by 8-16- rules of practice— message: 02-14562] 02; published 7-17-02 Aging veterans; speeding [FR 02-18017] SUBSCRIBE PUBLAWS-L Lower Mississippi River, appellate review Your Name. New Orleans, LA; security New Piper Aircraft Corp., process; comments due zones; comments due by PA 34-200T, Seneca V by 8-12-02; published 8-12-02; published 6-11- airplanes; comments 6-12-02 [FR 02-14685] Note: This service is strictly 02 [FR 02-14557] due by 8-16-02; for E-mail notification of new St. Louis Captain of Port published 7-17-02 [FR laws. The text of laws is not Zone, MO; security zones; 02-18018] LIST OF PUBLIC LAWS available through this service. comments due by 8-12- Class E airspace; comments PENS cannot respond to 02; published 6-11-02 [FR due by 8-15-02; published This is a continuing list of specific inquiries sent to this 02-14556] 8-7-02 [FR 02-19677] public bills from the current address.
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